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Petitioner: Kh. Aamir Ahmed VS Respondent: Azad Government Of The State Of Jammu And
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Sadaqat Hussain Raja Title:Kh. Aamir Ahmed vs Azad Government Of The State Of Jammu And
JUDGMENT
Reported As: 2021 YLR 1313 Result: Order accordingly Judgment JUDGMENT SADAQA T HUSSAIN RAJA, J.---The instant writ petitions have been filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby following relief is solicited by the petitioner in Writ Petition No. 67-A of 2021:-- "(I) It is, therefore, most respectfully prayed on behalf of the petitioner that this Hon'ble Court may very graciously be pleased to issue direction to the official respondents to retire the private respondent from position of Judge/Acting Chief Justice of High Court of Azad Jammu and Kashmir with effect from 23.02,2021 as for his service record coupled with passport and CNIC forthwth; (II) It is further prayed that this Hon'ble Court may kindly be issued writ in the nature of Quo-W arranto and asked from private respondent under what authority of law he is holding the post of Acting Chief Justice High Court; (III) The of ficial respondents be directed to fill the post of Chief Justice High Court as per law forthwith; (IV) Any other relief which is deemed fit and proper may kindly be granted." While in W rit Petition No. 691/ 2021 following relief is implored by the petitioner:-- "(I) It is, therefore, most respectfully prayed on behalf of the petitioner that this Hon'ble Court may very graciously be pleased to issue direction to the official respondents to amend the Notification dated 23.02.2021 in the manner that the private respondent be retired with effect from 23.02.2021 from position of Judge/Acting Chief justice of High Court of Azad Jammu and Kashmir as per his service pay record coupled with passport and CNIC forthwith; (II) It is further prayed that this Hon'ble Court may kindly be issued writ in the nature of Quo-W arranto and asked from private respondent under what authority of law he is holding the post of Acting Chief Justice High Court; (III) The of ficial respondents be directed to fill the post of Chief Justice High Court as per law forthwith; (IV) Any other relief which is deemed fit and proper may kindly be granted."
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As common questions of fact and law are involved in both the above titled writ petitions, hence, were heard together and decided as such through this single judgment. While drafting the supra titled writ petitions, in Writ Petition No. 691/ 2021, the name of respondents have not been inserted serial wise, wherein the same have been started from serial No.2 instead of serial No.1, therefore, the name of respondents shall be read and written according to the serial wise. 2. Snappish summary of the facts culminating into filing of instant writ petitions is that the petitioner is a 1st Class State Subject, Member , of Central Bar Association Muzaf farabad and is a practicing Lawyer . It is stated that the petitioner being a Lawyer found an irregularity that according to the National Identity Card of private respondent and salary slip reveals that the date of birth of private respondent is 23.02.1959 but the Government issued the notification of retirement of private respo ndent with effect from 22.03.2021 and private respondent is holding the office illegally as Acting Chief Justice of the High Court of Azad Jammu and Kashmir . In support of his claim, the learned counsel placed a facsimile of I.D Card and salary slip of private respond ent. It is submitted that private respondent is holding the post as Judge/Acting Chief Justice of the High Court of Azad Jammu and Kashmir and the Government was legally bound to issue retirement notification one month prior to attaining the age of retirement according to service record as has already been held by the, apex Court of Azad Jammu and Kashmir but the competent authority failed to do so. It is further submitted that the correction period in the date of birth is two years as is mentioned in Article 67(2) of Civil Financial Code. It is stated that private respondent has completed his constitutional age for retirement as Judg e/Acting Chief Justice of the High Court on 23.02.2021 in the light of service record annexed with the writ petitions but the competent authority/ Law Department wrongly issued the retirement notification of private respondent as 23.03.2021. It is prayed for acceptance of the writ petitions. 3. Pre-admission notices were issued to the respondents for filing parawise comments which were filed accordingly on behalf of respondents Nos. 5 to 7, wherein the claim of the petitioner has been negated in toto and prayed for dismissal of the instant writ petitions in limine. 4. On 15.03.2021, it was brought into notice of the Court by the learned counsel for the parties that the petitioner filed petition for leave to appeal before the apex Court which was disposed of and the apex Court admitted the writ petition for regular hearing and remanded the case for decision. In the light of direction of the apex Court on 15.03.2021, the parties were directed to file written statement and other relevant documents, if any. In compliance of the aforesaid order of this Court, written statements have been filed on behalf of all the respondents, separately , wherein, it is stated on behalf of respondents Nos. 2, 4 to 6 that the petitioner has no locus stand, to invoke the extraordinary Constitutional Jurisdiction of this Court as he does not fall within the definition of an aggrieved person, hence, the instant writ petition entails dismissal. It is further stated that the petitioner has failed to point out any violation of law, rules or regulations on the subject, therefore, the instant writ petition is not competent. It is submitted that initial service record of private respondent should be in the custody of respondents Nos. 5 and 6, however , available record in the custody of respondent No.7 was provided to respondent No.6 for process of retirement of private respondent. It is further submitted that the Law Department moves all cases of retirement of Judges of the Superior Courts on the proposal of respective Registrar of the Court, since service record of the Hon'ble Judges is maintained in the Hon'ble Supreme Court and High Court. The Law Department inquired about the personal service record of private respondent from respondent No.7 (Registrar High Court) verbally , who replied that no such record is available. It is contended that since no specific date was mentioned by respondent No.7 regarding retirement of private respondent, hence, the Law Department analyzed the entire case and submitted proposal to the worthy President through proper channel and the worthy President accorded approval for retirement of private respondent w.e.f. 22.03.2021 on the basis of date of birth mentioned in the Matriculation Certificate. 5. It is stated in the written statement filed on behalf of private respondent that the petitioner being probono publico litigant has no locus standi to file the supra titled writ petitions as he does not fall within the definition of an aggrieved person, hence, both the writ petitions entails dismissal. It is further stated that private respondent was initially inducted in judicial service of Azad Jammu and Kashmir as Sub-Judge B-17 on the recommendation of Public Service Commission on 03,08.1988 on the basis of date of birth entered in Matriculation Certificate as
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23,03.1959. Later on, he remained on various positions by promotion and lastly , he was elevated as Judge of High Court in the year, 2013, whereas, the petitioner by filing writ petitions, called in question the entries of date of birth of private respondent after pretty long time without explaining such an inordinate delay , therefore, the supra titled writ petitions are hit by the doctrine of laches, hence, liable to be dismissed on the sole ground. It .is averred that the actual date of birth of private respond ent is 23.03.1959 which was entered in Matriculation Certificate and on passing the examination of LL.B in the year, 1981, the similar date of birth was entered as 23.03.1959 in the provisional certificate issued by University Law College Lahore. It is further averred that the Pleader-ship License was issued by the High Court on 18.07.1982, wherein the date of birth is entered as 23.03.1959. Subsequently , the License of Advocacy was issued by the High Court on 14.01.1988, which bears the similar date of birth as 23.03.1959. It is stated that private respondent was inducted in Judicial Service as Sub-Judge B-17 on the recommendations of Public Service Commission on the basis of date of birth as 23.03.1959 motioned in Matriculation Certificate. The ACRs of private respondent throughout in service carrier in subordinate Judiciary have been recorded, wherein, the date of birth has been entered as 23 03.1959. It is further stated that during service, private respondent applied for leave, which was sanctioned and the date of birth was entered as 23.03.1959, which was attested/confirmed by the Audit and Accounts Department, therefore, no ambiguity or contradiction is found regarding date of birth in service record of private respondent. It is contended that the writ petitions are not maintainable even on the ground of mis-joinder and non-join der of necessary parties. The petitioner throughout in his writ petition disputed the date of birth of respondent No.3, whereas, respondent No.3 is the worthy President of Azad Jammu and Kashmir who could not be impleaded as party in writ petition, therefore, the writ petition is not maintainable on this score too. It is prayed for dismissal of the writ petitions with costs. 6. The writ petition has also been resiste d by respondent No. 8 (Accountant General) by filing written statement, wherein, it is stated that as per personal record maintained and kept by this office, the date of birth of private respondent according to National Identity Card is 23.02.1959 and the Salary Slip prepared on system contains the date of birth as 23.02.1959 and the particulars of ID Card are taken on SAP System for computerization of Pay Roll, the date of birth is shown as 23.02.1959 on pay slip. Now, it has been noted as 23.03.1959 on SAP System as per Matriculation Certificate. 7. Mr. Fayyaz Ahmed Janjua Advocate, the learned counsel for the petitioner reiterated the facts and grounds as taken in the petitions and argued that private respondent during his service, never approached before any competent forum for correction of date of birth in the Matriculation Certificate, therefore, the declaration of age the time of entry in service should be deemed absolutely conclusive which cannot be revived at later stage for any purpose. The learned counsel further argued that private respondent despite rendering the service more than 03 decades has not disputed the entries of Service Record regarding his age, hence, at this belated stage; in the light of Statutory Provisions, the claim of private to respondent is ex-facie and is liable to be discouraged. The learned counsel prayed for acceptance of the instant writ petition and relied upon the following case law , which are as follows:-- 1. 2004 SCR 435, 2. 1999 MLD 187, 3. PLJ 2014 (AJ&K) 244, 4. 2012 PLC (C.S.) 429, 5. 2015 SCR 1083, 6. 2012 PLC (C.S.) 1412 , 7. 1991 PLC (C.S.) 1202 , 8. 2007 SCMR 66 , 9. 2021 PLC (C.S.) 429 and PLJ 2014 AJ&K 344. An unreported case titled "Raja Munsaf Khan v. Board of Intermediate and Secondary Education Mirpur and 3 others" decided by this Court on 04.02.2020.. 1. In case titled "Javed Iqbal and 5 others v. Social Welfare Department and 5 others" [2004 SCR 435], it was held by the apex Court of Azaz Jammu and Kashmir that the Advocates are officers of the Courts---Courts expect help from them to do justice---The role of Advocates upholds the dignity and purity of the Courts. 2. In case titled "Sardar Aftab Ahmed and 5 others v. Maj. (R) Muhammad Aftab Ahmed and 3 others " 1999 MLD 187 following points have been formulated by the apex Court of Azad Jammu and Kashmir: (a) Aggrieved Party-- ----It is not necessary that an aggrieved person should have a strict juristic right to enforce it by filing a writ petition but on the other hand if he can show prima facie some interest which has been adversely affected by an executive or judicial order he becomes fully competent to file appeal.
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(b) Law Point-- ----Contention being purely legal can be raised at any time before this Court. (c) Appointment of Army Officers as S.P .--- ----If a serving or retired Army Officers wants to be appointed as S.P, the appointment shall be made on the basis of examination and test conducted by P .S.C. (d) W rit Jurisdiction-- ----An illegal and unlawful order could not have been enforced in exercise of writ jurisdiction. 3. In case titled "Zafar Iqbal Khan v. Azad Jammu and Kashmir Government through Chief Secretary , Muzaf farabad and 3 others" [PLJ 2014 AJ&K 344] the apex Court of Azad Jammu and Kash mir declared that---R. 67(2)---AJ&K Interim Constitution Act, 1974, S. 44---Correction of date of birth--- Correction cannot be allowed--- Subordinate Judiciary as civil judge---Suit against board of education and obtained ex-parte decree for correction of date of birth---Dispute regarding correction of date of birth was brought just a few months ago before his retirement---V alidity--Provision of law declaration of age made at time of entry into Government service is conclusive which cannot be revived at latter stage for any purpose----Petitioner despite rendering judicial service extended over two and half decades had failed to apprise his competent authority for such correction hence, at such belated stage his claim cannot be accepted in light of statutory provision... Writ petition, therefore, was also attracted by principle of laches extended over decades----According to judicial consensus, a civil servant, should solicit correction of his date of birth within two years of joining service----It is a settled principle of law that writ jurisdiction cannot be exercised to direct a person give effect to an unlawful order of any authority , therefore, same cannot be enforced through writ jurisdiction---Petition was dismissed. 4. In case titled "Khurshid Hussain v. Azad Govt. through its Chief Secretary New Secretariat, Muzaf farabad and 3 others" (2012 PLC (C.S.) 429), it was held by the apex Court of Azad Jammu and Kashmir that---S.4--- Correction of date of birth in service book---Order of ombudsman of Punjab---Not controverted---Complaint was filed against BISE qua date of birth---Direction to issue duplicate certificate---After withdrawal of complaint from ombudsman of Punjab pertaining to correction of date of birth in matriculation certificate, could not file instant writ petition due to bar of estoppels---Revised notification was not challenged by petitioner before any forum-- Validity----Matter was probed afresh through inquiry committee and after thrashing out the same found that date of birth of petitioner was 15.1.1952 which was not challenged before any forum---Petitioner was inducted in service on 20.4.1971 who had promoted up to rank---Petitioner never solicited relief for correction of date of birth which was written in his service book as 15.1.1952--Petition was attracted by laches----Civil servant would solicit correction of date of birth within two years---Petition was dismissed. 5. In case titled "Muhammad Abdul Rehman Abbasi v. Azad Government and 7 others" [2015 SCR 1083 ] it was opined by the apex Court of Azad Jammu and Kashmir that the appellant/civil servant during his service never approached any competent forum for correction of entry of his date of birth in the matriculation certificate. He approached the Civil Court only ten months prior to the age of superannuation for correction of his date of birth in the matriculation certificate, which shows mala fide of the appellant. Further held that under section 12 of the AJ&K Civil Servants Act, 1976, no right of hearing is provided to a civil servant in such like matters. Under the proviso to subsection (iii) of section 12 of Act, 1976, the right of hearing shall be provided to such civil servants, who are being retired after completion of ten years qualifying service for pensionary or other benefits as envisaged in subsection 12(i) of section 12 of the Act '1976. It was also held that as no such eventuality prevails in the case in hand, therefore, the question of personal hearing is not available to the appellant as he has been retired under section 12(ii) of Act, 1976 after attaining the age of superannuation, i.e. sixtieth years of his age. 6. In case titled "Sardar Khurshid Hussain, Deputy Inspector General v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 4 others " (2012 PLC (C.S.) 1412 ) the apex Court of Azad Jammu and Kashmir observed that---Section 47---Civil service--Retirement---Dispute regarding date of birth--- Petitioner who was 'retired vide notification after attaining age of superannuation, had challenged said notification of retirement alleging that his date of birth had been wrongly recorded in his Service Book--- Date of birth as recorded, on the basis of which the petitioner was retired from service was 15.1.1952, while the petitioner had
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claimed his date of birth as 15.1.1956---Petitioner had served more than 40 years in the Police Department, but had not timely applied for correction of his date of birth as recorded---Petitioner had himself applied for issuance of duplicate copy of his Matriculation Certific ate and upon his application, the Board of Education, verified his date of birth as 15.1.1952---Petitioner raised dispute regarding the correction of his date of birth before competent Authority , just less than a one month's time before his retirement---As per latest verification issued by the Board of Education, petitioner's date of birth was 15.1.1952 and that verification had been issued after holding an inquiry--- Unless any contrary conclusion drawn by the Board of Education, was brought on record, said verification could not be ignored as the most relevant and competent authority/Institution was the Board----If the date of birth 15.1.1956, as contended by the petitioner , was considered correct, then his retirement/ induction in the department would be in 15 years age, while according to statutory provision, no person should be inducted into service, who was found less than 18 years of age----No illegality was in the impugned judgment of Service Tribunal--- No substantial question of law of public importance was involved in the petition for leave to appeal, which was dismissed, in circumstances. 7. In case titled "Sh. Mumtaz Ali alias Mumtaz Alam v. Government of Punjab" [1991 PLC (C.S.) 1202 ], the apex Court of Pakistan laid down the verdict that---Date of birth--Correction--- Government servant can seek correction of service record as to date of birth within two years of his service--- Government servant not making such a move within two years and filed civil suit and did not explain as to how and in what manner alleged actual date of birth came to his knowledge---Prayer for correction of service record, was not accepted in circumstances. It was also held that---Ex parte decree---T rend of Government Officers to obtain ex parte decrees for correction of date of birth towards fag-end of their service career was deprecated. 8. In case titled "Qamaruddin v. Pakistan through Secretary , Establishment Division, Islamabad and another" [2007 SCMR 66], the apex Court of Pakistan declared that according to Rule 12-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the date of birth once recorded at the time of joining Government service shall be final and thereafter no alteration in the date of birth of a civil servant shall be permissible; 9. In case titled "Khursheed Hussain v. Azad Government through its Chief Secretary New Secretariat, Muzaf farabad and 3 others" (2012 PLC (C.S.) 429), held that the facsimile of matriculation certificate produced along with writ petition was doubtful and could be relied upon due to its inconsist ency with an attested photo stat copy produced by petitioner at time of induction in service of police department--- Petitioner on one hand stated that his date of birth was 15.1.1956 and on other hand produced service book showing date of birth as 15.1.1954 which was contradictory stand and against rendered version of the petitioner as doubtful. Further held that the revised notification was not challenged by petitioner before any forum. Petitioner was inducted in service on 20.4.1971 who had promoted up to rank---Petitioner never solicited relief for correction of date of birth which was written in his service book as 15.1.1952---Petition was attracted by laches---Civil servant would solicit correction of date of birth within two years---Petition was dismissed. 10. In case titled "Zafar Iqbal Khan v. Azad Jammu and Kashmir Government through Chief Secretary , Muzaf farabad and 3 others" [PLJ 2014 AJ&K 344], it was held that writ petition, therefore, was also attracted by principle of laches extended over decades--- According to judicial consensus, a civil servant should solicit correction of his date of birth within two years of joining service. 11. In unreported case titled "Raja Munsaf Khan v. Board of Intermediate and Secondary Education Mirpur and 3 others" decided by the Acting Chief Justice of High Court on 04.02.2020, wherein, it is stated that it is settled now that date of birth mentioned in Secondary School Certificate is treated as Birth Certificate. It is commonly observed that some of the official employees, in order to extend their length of service, file civil suit before the Court to rectify their date of birth. The Higher Courts however discouraged such practices. Leading case in this regard can be referred as PLD 2014 AJ&K 344 and 2015 PLC (C.S.) 1533 : 8. While controverting the arguments advanced by the learned counsel for the petitioner , the learned A.A.G. appeared on behalf of the official respondents and contended that according to Article 35-A of Kashmir Service
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Regulations (KSR), the age to be entered in service record of an official should be that entered in his University Certificate but if, he has no University qualification, it should be one that is entered in his School Leaving Certificate duly attested by a Gazetted Officer. It is averred that in the Punjab University/Law College Provisional Certificate and Matriculation Certificate, the date of birth of private respondent is 23.03.1959, hence, in the light of Article 35-A of KSR, the date of birth mentioned in Metric Certificate was taken into considerati on for the purpose of retirement vis--vis the date mentioned in CNIC or Salary Slip by the competent authority . The learned AAG prayed for dismissal of the instant writ petitions with cost and cited the following precedents in support of his version. 1991 CLC 870 , 1998 PLC 270 and 1988 PLC 135 9. Sardar M.R. Khan Advocate, the learned counsel for the private respondent owned the arguments advanced by the learned A.A.G. and also relied upon the following case law . 2017 SCR 507, 1998 SCMR 1494 , 2004 PLC (C.S.) 897 , 2016 SCR 960 and 2006 PLJ 1706 Lahore(sic) 10. I have heard the learned counsel for the parties and perused the record with utmost care. 11. The learned counsel for the petitioner laid great stress in his arguments that the respondents may be directed to amend the Notification dated 23.02.2021in the manner that the private respondent be retired w.e.f. 23.02.2021 from position of Judge/Acting Chief Justice of High Court of Azad Jammu and Kashmir as per his service pay record coupled with Passport and CNIC. 12. I have examined the whole service record and Matriculation Certificate of private respondent, wherein, his date of birth is entered as 23.03.1959. It is also not denied that private respondent entered into service on the strength of Matriculation Certificate which remained as part of his service record. In all other documents relating to service of private respondent, his date of birth is entered as 23.03.1959, whereas, in National Identity Card and Salary Slip, the date of birth of private respondent is entered as 23.02.1959. It may be mentioned that private respondent inducted into service on the basis of Matriculation Certificate, therefore, it cannot be assumed that it is a fault on behalf of private respondent. It is a settled principle of law that no one can be penalized for any fault/act of the authority . The same view has been fortified by the apex Cdtirt of Azad Jammu and Kashmir in a case titled Muhammad Irfan Ali Gorsi v. Azad Government and 6 others" (2014 SCR 710). The relevant portion of…
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