1998 PLP 640 (SCMR)

SAIDUZZAMAN SADDIQUI, J.‑‑‑Respondent No. 1, an employee of appellants, who was due to retire from his service on 20‑3‑1995 before his retirement, obtained a decree from Civil, Court for correction of his date of birth in the Matriculation Certificate from 20‑3‑1935 to 16‑1‑1938. The Controller of Examination, University of Peshawar, on the basis of the decree of Civil Court accordingly, corrected the date of birth in the Matriculation Certificate as 16‑1‑1938 in place of 20‑3‑1935. Armed with the corrected matriculation certificate showing his date of birth as 16‑1‑1938 the respondent approached the appellants to correct his date of birth in the service record but without any success. The respondent then approached the Service Tribunal which allowed the appeal, as follows.‑ "We have examined the record and also perused the relevant documents. The Senior Civil Judge, Peshawar had also passed a decree in favour of the appellant and on the basis of that decision, respondent No. 3, Peshawar University issued a duplicate Matriculation Certificate. The departmental representative of Peshawar University has also stated that correct date of birth by the University has always been honoured by the agencies concerned and the Court. The appellant has also cited two cases of M/s. Rashid Ahmad, General Manager (Water), WAPDA and Abdul Qadir, Project Director wherein the date of birth was corrected of both the officers by WAPDA/respondents. We do not understand why this facility has been denied to the appellant. This is a discriminatory treatment which is bad in law and against the norms of justice. Their contention that as per rule the date of birth is corrected only when there is clerical mistake is vague and evasive as it does not clarify that at what stage it is taken as clerical mistake whether at the time of entry of service in WAPDA or at the time of passing of matriculation examination or at the time of first entry in the school. We on the basis of the Civil Court decree, the change in the record of University and also keeping in view the above two cases, accept the appeal, set aside the impugned order dated 20‑9‑1994 and direct the respondent to correct the appellant's date of birth as 16‑1‑1938. No order is made for costs. Parties to be informed. " Leave was granted in the case to consider the following contention.‑ "Learned counsel for the petitioners submits that the respondent joined WAPDA as Junior Engineer on 8‑9‑1962 and his date of birth mentioned in his Matriculation Certificate was entered in his service record. During the last 30 years or so, the respondent never raised any objection to his date of birth as entered in the service record and now that he is retiring on 20‑3‑1995, he has come up with a decree from the civil Court With a view to gain some more years in service. In the submission of the learned counsel, petitioner Department is not bound by the Court's decree as it was n t a party thereto. Learned counsel points out that in somewhat similar circumstances, this Court has held in the case of M.R. Khalid v. Chief Secretary, Punjab' 1994 SCMR 1633 that silence of a civil servant over the major portion of his service was such that he did not merit a favourable decision from the Government in the matter of correction of his date of birth. Contention raised needs consideration. Leave is, therefore, granted with the direction that the appeal shall be made ready and fixed for hearing before the long summer vacation of this year. " The learned counsel for the appellants contended that the appellants were not bound by the decree of Civil Court as they were not party to the civil suit filed by the respondent No.

1. The contention may be legally correct but as rightly pointed out by the learned counsel for the respondents that the appellants have been showing favour. to certain employees in identical circumstances while denying the same to others. The learned Tribunal in the impugned judgment also found that the appellants had not followed any consistent or uniform policy in this regard and referred to the case of Rashid Ahmed General Manager (Water) WAPDA and Abdul Qadir, Project Director in whose cases change in the date of birth was allowed in identical circumstances. The appellants on factual plane have not challenged the correctness of the above finding of learned Tribunal. The respondent No. l has placed before us a copy of the office order dated 10‑11‑1991, issued by appellants in the case of Rashid Ahmed Choudhry, General Manager (Water) Central WAPDA which shows that in that case after the retirement of the said officer on attaining age of superannuation, the change in the date of birth was allowed as his date of birth in the matriculation certificate was amended by the University of Punjab on the basis of a decree passed by Civil Judge, and consequently his retirement order was modified. As the appellants themselves have not followed a consistent and inform policy in the matter and no plausible explanation is offered for meeting out different treatment to persons placed in identical circumstances, we do not consider it a fit case for decision by this Court on the point of law on which leave has been granted. The order granting leave is accordingly, withdrawn and petition/appeal is dismissed with no order as to costs. A.A./W‑8/S Appeal dismissed.