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Petitioner: KHALIL AHMAD SIDDIQUI VS Respondent: PAKISTANHonorable Justice EJAZ AFZAL KHANYahya Khan Afridi,Hamid Farooq Durrani
2003 P L C (C
2003 P L C (C.S.) 696
[Peshawar High Court]
Present: Mian Shakirullah Jan, C.J. and Ijaz Afzal Khan, J
KHALIL AHMAD SIDDIQUI
Versus
PAKISTAN through Secretary Interior, Interior Division, Government of Pakistan and 5 others
Writ Petition No. 1268 of 2001, heard on 11th December, 2002.
(a) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---
----R.12-A [as inserted vide S.R.O. No.521(1)/2000, dated 31-7-2000]-- Qanun-e-Shahadat (10 of 1984), Art. 114---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Date of birth, correction of---Estoppel by conduct---Civil servant sought to correct his date of birth recorded at time of joining service in year 1965---Validity---Date of birth of civil servant recorded in Secondary School Certificate and service record was the same-- Civil servant had not pursued the applications made in years 1966 and 1982 for correction of service record to their logical end---Civil servant had not explained as to why he had slept over such matter for decades, and why he had not got Secondary School Certificate corrected from the concerned. Board---Such facts militated against genuineness of stand taken by civil servant---Plea of civil servant that in the year 1998, Department had refused him N.O.C., for visiting India to collect Birth Certificate appeared to be an afterthought to confuse and confound one issue with another, "particularly when same too had not been raised and pursued wholeheartedly at right time---Such was clearly case of estoppel by conduct, which would bar civil servant from seeking relief prayed for at such belated stage---Date of birth once recorded at time of joining Government service would be final by virtue of R. 12-A of the Rules.---Court dismissed Constitutional petition being, misconceived.
Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504; Sobho Gian Chandani v. Federation of Pakistan and 8 others 1996 MLD 1569; S. Munawar Ali Sher v. Federation of Pakistan through Ministry of Interior Government of Pakistan and 3 others PLD 1999 Lah. 459; Malik Mushtaq Awan v. Government of Pakistan and others PLD 1999 Lah. 372 and Khalid v. Chief Secretary, Punjab and another 1994 SCMR 1633 ref
Zulftqar Ali v. H. Kamal Hussain and others Election Appeal No. 1 of 1994 distinguished.
(b) Civil service-
---- Date of birth---Seeking correction of date of birth by civil servant at the verge of his retirement---Purpose---Just to prolong their tenure and enjoy perks and privileges of their service at the costs of others---Such idea either never creeps in their mind earlier or is never taken seriously and pursued to desired end.
(c) Civil service-
---- Date of birth entered- in National Identity Card as well as Secondary School Certificate---Preference---Entry made in Secondary School Certificate was more authentic and reliable document as compared to former.
Zulfiqar Ali v. H. Kamal Hussain and others Election Appeal No. 1 of 1994 ref.
Yahya Khan Afridi for Appellant.
Hamid Farooq Durrani, D.A.-G. for Respondents
Date of hearing: 11th December, 2002.
JUDGMENT
EJAZ AFZAL KHAN, J.---Mr. Khalil Ahmad Siddiqui, petitioner herein, joined service in Customs Collectorate Lahore in the ministerial cadre on 27-12-1965 and was posted as such at Layalpur. Later on he was transferred to Kohat and after having served in various capacities in different parts of the N.-W.F.P., was now serving as an Assistant Collector Pakistan Customs Dry Port Peshawar that he instituted the instant. Constitutional petition for the correction of his date of birth which, according to him, was 19-12-1944 instead of 19-12-1941. Another additional prayer he made in the writ petition was that he be allowed to visit India so that he may collect his birth certificate as, according to the averments trade in the petition, he was born at Bijnoor.
2. The learned counsel appearing on behalf of the petitioner after reiterating the facts mentioned above contended that the petitioner soon after joining service proceeded with all the reasonable dispatch by moving an application on 31-3-1966 for the correction in his service record and once again picked up the thread on 22-12-1982 by moving another application but in vain, as the High-Ups did not respond thereto. The learned counsel next contended that the request of the petitioner made through an application dated 30-10-1998 for grant of N.O.C. to visit India for collecting the birth certificate too was. not countenanced by the High-Ups of the Department, which could have enabled him to furnish proof in this behalf, as many of his relatives are still residing in Bijnoor, a place in Uttar Pardesh India. The learned counsel on the strength of the judgment rendered in Election Appeal No. 1/94 in the case of Zulfiqar Ali. v. H. Kamal Hussain and others contended that according to the entry made in the National Indentity Card which is to be preferred over those in the School Leaving Certificate, the petitioner was born on 19-12-1944 and, as such, he would reach the age of superannuationt on 19-12-2004 instead of 19-12-2001. The learned counsel by relying on the judgments in the cases of Government of Pakistan and another. v. Dada Amir Haider Khan (PLD 1987 SC 504), Sobho Gian Chandani v. Federation of Pakistan and eight others (1996 MLD 1569), S. Munawar Ali Sher v. Federation of Pakistan through Ministry of Interior Government of Pakistan and three others (PLD 1999 Lahore 459) and Malik Mushtaq Awan. v. Government of Pakistan and others (PLD 1999 Lahore 372) contended that they petitioner could not have been refused N.O.C. for visit to India for doing the needful.
3. The learned Additional Advocate-General appearing on behalf of the respondents Nos. 1, 5 and 6 contended that when the petitioner has slept over the entry in the service record, even if, without conceding, it is assumed to be wrong, for almost two decades, he cannot turn round at the fag end of his service to question it, more so when he made no effort to get the entry as to his date of birth corrected in his Secondary School Certificate which is the basic document in this context. He by referring to Rule 12-A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 contended that the date of birth once recorded at the time of joining service shall be final once for all and no alteration therein shall be permissible afterwards.
4. The learned counsel representing respondents Nos.2 and 3 by placing reliance on the case of Mr. Khalid v. Chief Secretary Punjab and another (1994 SCMR 1633) contended that correction of date of birth involving terms and conditions of service exclusively falls within the domain of Service Tribunal, 4 and this Court in the exercise of its Constitutional jurisdiction cannot enter into the relief, especially when it is prominently factual.
5. We have gone through the record, perused the judgments cited at the bar and carefully considered the submissions of the learned counsel for the parties.
6. A perusal of the record would reveal that the date of birth of the petitioner was recorded as 19-12-1941 in the Secondary School Certificate as well as the service record. It may be true that the petitioner moved an application for the correction of his service record in the year 1966 before his High-Ups but it is equally true that the said application was not pursued to its logical end. It is also true that another application was moved in this behalf in the year 1982 but again its left the halfway and never persued whole-heatedly to the desired culmination. Why did the petitioner sit and sleep over it for decades and decades together has not been plausibly explained anywhere either in the writ petition or in rejoinder or during the course of arguments addressed at the bar. Why did the petitioner make no effort to get corrected the very basic document of Secondary School Certificate from the Board concerned is another circumstance which violently militates against the genuineness of the stand adopted by him as to the date of birth. If at all the petitioner was in know of some document showing his actual date of birth lying somewhere in Bijnoor, he could well have gone to India to fetch it in mid or late sixties. Why did he postpone his purposeful visit to India till 1998 and why did he not use the good offices of his relatives to have the same is yet another question whose answer cannot be found either from the record or the counsel representing the petitioner. It, is a matter of fact, has become a common phenomenon and usual practice that the Government Servants if and when they come at the verge of their retirement, they question their dates of birth just to prolong their tenure and enjoy the perks and privileges of their service for a few more years at the cost of others. This idea never creeps across their mind earlier and in case it does, it is never taken seriously and pursued to the desired end. It is clearly and sequarely a case of estoppel of conduct which will certainly bar and barricade the petitioner from seeking the correction asked for at least at such a belated stage.
7. The argument addressed on the strength of the judgment rendered in the case of Zulfiqar Ali. v. H. Kamal Hussain and others supra will, not advance the case of the petitioner, as in that case probative value of School Leaving Certificate was in question vis-a-vis the National Identity Card. But in this case, it is the entry made in the National Identity card which is sought to be preferred over the entry made in the Secondary School Certificate which is certainly more authentic and more reliable document as compared to the former. The argument that the petitioner could not have been refused N.O.C. for visiting India for doing the needful also appears to be a product of an afterthought to confuse and confound one issue with another particularly when that too was, not raised and pursued wholeheartedly at the right time. The judgments cited at the bar by the learned counsel for the petitioner are, therefore, distinguishable and, as such, would not tend to advance the case sought to be coned by him at the bar.
8. Apart from this, when a date of birth once recorded at the time of joining Government service has been blessed with finality by virtue of Rule 12-A of Civil 'Servants (Appointment, Promotion and Transfer) Rules, 1973 which was inserted vide S.R.O. No.521(I)/2000 date 31-7-2000, we do not think that the petitioner can make any headway to success in this behalf anywhere either before this Court or any other forum of the Country.
9. For the reasons discussed above, this petition being misconceived is dismissed.
S.A.K./715/P Petition dismissed.