2018 PLP (C (PLC(CS)N)

AZHAR SALEEM BABAR, J.

The supra titled writ petition has been directed under section 44 of the AJ&K Interim Constitution Act, 1974, whereby the following remedy has been prayed for:- "In view of the above it is, therefore, most humbly prayed that this writ petition may kindly be allowed and the following writs may kindly be issued. i. That respondent No.1 may kindly be asked under what authority of law he is holding the office of Divisional Director Schools (Males) Mirpur. ii Respondent No.1 may also be directed to produce both the original certificates of matriculation. iii. That the respondent Ehtesab Bureau may kindly be directed to initiate criminal proceedings against respondent No.1 for having forged certificate and using the same for the purpose of obtaining job. iv. In alternative the respondent Azad Government may kindly be directed to issue the retirement order of the respondent No.1 on the basis of his school record i.e. 06.05.1957. v. Any other appropriate relief deemed fit may also be awarded in favour of the petitioner." Facts of the case shortly stated are that currently respondent No.1 is holding the Office of Divisional Director Schools (Males) Mirpur. Petitioners through the instant writ petition, claim that respondent No.1 is unlawfully occupying the post of Divisional Director Schools because he mentioned his date of birth as 06.05.1960 by placing the forged documents in his service record. It has been mentioned that in his educational credentials, specifically in the certificate of matriculation issued by Board of Intermediate and Secondary Education Lahore, the date of birth of the respondent has been mentioned as 06.05.1957 but later on he obtained duplicate certificate which mentions his date of birth as 06.05.1960. It is the stance of the petitioners that respondent No.1 has tempered his date of birth as 06.05.1957 instead of 06.05.1960 by committing fraud and fabrication. Petitioners being members of Central Bar Association Muzaffarabad/legal fraternity have challenged this act of respondent No.1 through the instant writ petition. I have heard learned counsel' for the parties and perused the available record. It has been argued on behalf of the respondents that petitioners are not aggrieved persons in the eye of law, so, they have no locus-standi to file the instant writ petition. Respondent No.1 is functioning as Divisional Director Schools at the moment. The petitioners are members of Central Bar Associate Muzaffarabad. It has been argued by learned counsel for the petitioners that petitioners being members of legal fraternity are supposed to uphold rule of law in the State. It has been emphasized that order of initial appointment of the respondent has been issued on forged documents, so, petitioners have a right to challenge his appointment and further promotions. On the other hand, learned counsel for the private respondent is of the view that no right of the petitioners has been affected by appointment of the respondent as teacher and his further promotion upto the level of Divisional Director. Learned counsel has referred to PLD 2002 SC (AJ&K) 1 and has contended that the petitioners are not aggrieved persons as per dictum laid down by the Supreme Court. In the cited judgment, Iqbal Rasheed Minhas Advocate Central Bar Association Muzaffarabad filed appeal before the Supreme Court of AJ&K against the order of appointment of justice retired Muhammad Siddique Farooqi as Chief Election Commissioner. Hon'ble Supreme Court of Azad Jammu and Kashmir observed as under:- "None of the learned counsel for the parties have cited any authority that any private person who though belongs to legal fraternity could either lodge a writ petition or could lodge an appeal in this court particularly when he was not a party before the High Court when his personal interests were not adversely affected. Therefore, the preliminary objection raised by Mr. Umar Mehmood Kasuri, the learned counsel for respondent No.1, has a substance that the appellant had no locus standi or any cause of action to file the appeal against the impugned judgment of the High Court. It may also be pointed out that there is a wide difference between a writ of certiorari and a writ of habeas corpus or a writ of quo warranto. Except the writ of habeas corpus and the writ of quo warranto which can be invoked by any person, the other writs can be prayed for only by an aggrieved person. It may be stated generally that an aggrieved party is one in a writ of prohibition whose rights are threatened, in writ of mandamus whose rights are being denied and in writ of certiorari whose rights have been affected by a decision. The word "right" is not used here in strict juristic sense. It is sufficient if the person alleging to be an aggrieved has a personal interest in the performance of a legal duty which if not performed would result in the loss of some personal advantage. A party who stands to lose or gain an advantage by observance or non-observance of law is an aggrieved party. A person aggrieved must be person who has suffered a legal grievance, a person against whom a decision has been pronounced which has, wrongly deprived him of something, or wrongfully refused him something or wrongfully affected his title to something. The petitioner being not falling in any of the categories, mentioned above, had no competence to lodge either the writ petition or an appeal in this Court against the impugned judgment of the High Court." The apex Court has decided that being an Advocate, it is not enough for challenging an order passed by a public functionary; rather a party who stands to lose or gain an advantage by observance or non-observance of law is an aggrieved party. Learned counsel for the petitioners has failed to convince the Court that in what manner, the petitioners have lost advantage by non-observance of law, if any, in the instant case. The petitioners are, therefore, not aggrieved persons, so, the instant writ petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 is not competent. Hon'ble Supreme Court of Azad Jammu and Kashmir in a recent judgment, titled "Muhammad Azeem Dat and others v. Raja Khadam Hussain and others" (2017 SCMR 577) has explained the term "aggrieved person". Learned counsel for respondent No.1 has further agitated that matter of determination of age for the purpose of retirement of a civil servant is one of terms and conditions of service, so, jurisdiction of High Court in the instant case is totally ousted. Learned counsel has referred 1999 PLC (C.S.)

69. Learned counsel has further contended that contention having a legal point can be raised at any time before the Court. He has relied on 1999 MLD 187 in this regard. A perusal of prayer clause shows that the petitioners have sought direction to Government of Azad Jammu and Kashmir to issue retirement order of respondent No.1 on the basis of his school record i.e. 06.05.1957. It is the claim of the petitioners that original date of birth of the petitioner is 06.05.1957 and he has manoeuvered to obtain a certificate from Board of Intermediate and Secondary Education Lahore by inserting date of birth as 06.05.1960. The petitioners have prayed to the Court for direction to the Govt. to issue order of retirement of the respondent on the basis of his school record which shows his date of birth as 06.05.1957. In the light of dictum laid down by the Supreme Court of Azad Jammu and Kashir in Muhammad Latif Khan and others' case (1999 PLC (C.S.) 69) jurisdiction of the High Court stands ousted as determination of age of a civil servant falls in terms and conditions which falls in the ambit of Services Tribunal. Another legal objection has been raised on behalf of respondent No.1 that the petitioners have alleged commission of fraud by respondent No.1 for obtaining a forged manic certificate. Learned counsel while relying on 1998 SCR 325 has argued that question of fraud cannot be resolved in exercise of writ jurisdiction. A perusal of writ petition reveals that in paragraph 5 of the memorandum, plea of forgery and fabrication of record has been raised. Writ petition for resolving question of fraud is, therefore, not maintainable in view of afore-cited judgment. The Court cannot over-see the fact that duplicate of secondary certificate examination in favour of respondent No.1 was issued on April, 1997. The petitioners have challenged this certificate in May, 2016 i.e. after a period of around 19 years. The writ petition is, therefore, hit by the principle of laches. The petitioners have nowhere explained that what kept them away from challenging the "forged certificate" for such a long period. Therefore, the instant writ petition is hit by the principle of laches. So far as merits of the case are concerned, it has been argued that according to school record of Government College Pallandri, date of birth of the petitioner has been registered as 06.05.1957. The petitioners have attached copies of register of admissions of Government College Pallandri Secondary section and Middle section. A perusal of these documents transpires that date of birth of the respondent in Government College Pallandri, Primary section has been registered under serial No.2413 as 06.05.1957 and the same date of birth has been registered in Middle section of the institution under serial No.3386. The copies of register of admissions are not certified. On the other hand, respondent has attached copies of registers of Primary section of Government College Pallandri as Annexures "RA" and "RA/1". These documents are certified by Headmaster Government Model Pilot High School Pallandri/Sudhnooti. Date of birth of the private respondent has been registered as 06.05.1960 in Primary section and Middle section on registers of admissions of the institution. Obviously, certified documents have to be given preference over the non-certified copies. It further transpires that Abdul Shakoor Siddique, respondent, passed his secondary school certificate examination in session 1973 under Roll No.36087. Date of both of the respondent in the certificate was registered as 06.05.1957. The respondent applied to Board of Intermediate and Secondary Education Lahore for correction of his date of birth whereupon a duplicate certificate was issued by the Board on 29.04.1997 and his date of birth was registered as 06.05.1960 in the duplicate certificate. Board of Intermediate and Secondary Education Lahore has been arrayed as respondent No.5 in the writ petition. Lahore Board has filed parawise comments and it has been mentioned in parawise comments that Abdul Shakoor Siddique submitted application form for his matric examination wherein he stated his date of birth as 06.05.1957 and the board issued a certificate in his favour under Roll No.36087. It has further been explained that respondent No.1 submitted an application for correction in his date of birth and the Board accepted his request and issued a duplicate certificate by correcting his date of birth as 06.05.1960. The Board has attached a copy of admission form submitted by the private respondent which has been attested by Deputy Controller (Records) Board of Intermediate and Secondary Education Lahore. The Board has further attached the Calendar wherein Act, Regulations and Rules have been mentioned. It has been explained that under Regulation No.5 of the Calendar, the Board has ample powers to entertain an application for correction in date of birth. A perusal of Regulation No.5(1) of the Board reveals that a candidate can apply for correction in the date of birth within specified period of 2 years for a payment of Rs.1,000/- as fee. It has further been laid down in the regulation that a candidate can apply for such correction within a period of 2 to 5 years on payment of Rs.2,000/- as fee. It has also been explained that if a candidate applies within 10 years of issuance of matriculation certificate, he has to pay a sum of Rs.3,000/- as fee and after 10 years on payment of Rs.4,000/- special fee. Lahore Board has, therefore, corrected the date of birth of the private respondent in his matric certificate after going through the prescribed procedure of law. It is worth mentioning that after issuance of a duplicate certificate in favour of private respondent, the department ought to have entered his date of birth as 06.05.1960 in the service record but the department did not bother to do the needful whereupon the respondent had to file a writ petition before the High Court for the purpose. The High Court of Azad Jammu and Kashmir issued a direction to the Govt. of Azad Jammu and Kashmir for induction of correct date of birth of the respondent in his service record and further directed that the needful may be done within couple of months. The Govt. of Azad Jammu and Kashmir issued a notification on 28.10.2008 whereby correct date of birth of the private respondent was registered in his service record. The petitioners have failed to point-out that at what stage of proceedings, a statutory law has been violated. The petitioners have filed the instant writ petition on the basis of non-certified copies of record of admission of Government High School Pallandri which has been rebutted by the private respondent by producing certified record. It is regretful that the petitioners have attributed forgery to the private respondent on the basis of non-certified record. It has already been discussed that the petitioners have failed to point-out that any provision of statutory law has been violated during process of correction of date of birth of the private respondent. So, element of mala fide on the part of petitioners cannot be ruled out. Upshot of the above discussion is that the instant writ petition, being frivolous and meritless, is hereby dismissed. ZC/57/HC(AJ&K) Petition dismissed.