2018 PLP (C (PLC(CS)N)

MOHAMMAD IBRAHIM KHAN, J.

The Government functionaries comprising the Deputy Director Works Chitral and 2 others Petitioners herein, are looking forward for acceptance of their Revision Petition, under prayer for setting aside the judgment and decree dated 09.12.2015 passed by the learned Senior Civil Judge/A'ala Illaqa Qazi Chitral followed by the findings contained in the judgment and decree dated 08.09.2016 rendered by the learned District Judge/Zila Qazi Chitral, whereby the decree for the correction of the date of birth from 01.01.1956 to 01.01.1959 was maintained.

2. Brief facts of the case are that Plaintiff (hereinafter called the Respondent) introduced his suit against the Defendants/Government functionaries (hereinafter called the Petitioners) seeking declaration that his correct date of birth is 01.01.1959 which has been wrongly entered by the Defendants/Petitioners in their record as 01.01.1956, thereby prayed for necessary correction accordingly. There is additional prayer for obtaining mandatory injunction to the effect that the Defendants (herein the Petitioners) be directed to enter his correct date of birth in their record as 01.01.1959 instead of 01.01.1956.

3. This claim was hotly resisted by the Defendants (herein the Petitioners) by filing their written statement raising various legal and factual objections. On the basis of averments taken in the pleadings of the parties, the learned Civil Court reduced the controversy in between parties by framing the following issues:

4. Then the parties were afforded fair opportunity to adduce evidence in respect of their stand points. The Plaintiff (herein the Respondent) appeared himself in the witness-box as PW-1, while on the other hand, the Defendants (herein the Petitioners) examined one Ijaz Ahmad as DW-1.

5. By the judgment dated 09.12.2015 in case No.64/1 of the year 2015, the learned Civil Court was pleased to grant a decree in favour of the Plaintiff (herein the Respondent). Feeling aggrieved, the matter was further taken up before the Court of learned District Judge/Zila Qazi Chitral by the Defendants (hereinbefore called the Appellants) through Civil Appeal No. 04/XIII of the year 2016, where too the wheel of fortune did not favour them and the appeal stood dismissed through the impugned judgment and decree dated 08.09.2016 by confirming the findings contained in the judgment and decree of learned trial Court.

6. This is a civil revision preferred under section 115 of the Code of Civil Procedure read with section 10 subsection (8) of Sharia Nizam-e-Adle Regulation, 2009 by the Defendants (herein the Petitioners) against the concurrent findings of both the learned Courts below, wherein the following prayer has been set:- "It is, therefore, humbly prayed that on acceptance of this Civil Revision the impugned judgment, Decree and Order dated 08.09.2016 passed by the learned District Judge/Zila Qazi Chitral and Judgment, Decree and Order dated 09.12.2015 passed by the learned Senior Civil Judge/A'ala Illaqa Qazi Chitral both may kindly be set aside and the suit filed by the Respondents/Plaintiff may graciously be dismissed with cost throughout."

7. Having heard arguments of learned counsel for the parties with vehemence, the available record delved deep into with their valuable assistance.

8. Learned counsel for the Petitioners referred to (2015 SCMR 456) "Ali Azhar Khan Baloch and others v. Province of Sindh and others", (2015 PLC (C.S.) 267) "Shahid Ahmed v. Oil and Gas Development Company" and (2014 SCMR 1723) "Dr. Muhammad Aslam Baloch v. Government of Balochistan".

9. It is evident from the available record that the Plaintiff (herein the Respondent) mainly based his claim on the strength of civil suit bearing No.64/1 of 2015 for declaration cum mandatory injunction to the effect that his correct date of birth is 01.01.1959, which has been wrongly incorporated by the Defendants/Petitioners in their record as 01.01.1956, thereby prayed for necessary correction with regard to his correct date of birth. This suit was hotly resisted by the other part and after framing of necessary issued the parties adduced their evidence. At first instance, the learned Civil Court in slipshod manner obliged the Plaintiff (herein the Respondent) with the grant of decree and even the learned appellate Court easily agreed with the findings of learned trial Court by not taking care and caution to evaluate the evidence with his own independent judicial and the appeal preferred by the Defendants/Petitioners was answered in negative.

10. It has been noticed by this Court that the Plaintiff (herein the Respondent) remained satisfied with regard to the entries in his service book, CNIC and other education credentials for several decades and awaken from deep slumber in the year 2015 when for the first time introduced his suit for correction of his date of birth. Now days it is a growing tendency specially amongst government employees to make an attempt to change his date of birth whenever come closer to the age of superannuation. Such kind of belated acts have been furiously discouraged by the Hon'ble Supreme Court of Pakistan that a person who being government employee must have conscious knowledge about his incorrect date of birth then it is incumbent him/her to agitate this issue at an earliest within the mandatory period of 2 years upon entry into service, rather waiting for his age of superannuation. In this case, the Plaintiff (herein the Respondent) neither impleaded the concerned principal of the school in respect of verification and correction of his educational credentials nor the NADRA authorities is find mentioned on the panel of Defendants in the plaint and so much so as per service rules after entry into government service his incorrect date of birth has not been rectified within the mandatory period of two years.

11. In this context the following verdicts of the Hon'ble Apex Court and Hon'ble High Court are relied upon:- i. 1994 SCMR 1633 (M.R. Khalid v. Chief Secretary, Punjab) "After hearing the learned counsel for the petitioner, we are not persuaded that any case for interference with the judgment of the learned Tribunal has been made out. Admittedly, while taking the competitive examination the petitioner had himself declared his date of birth to be 2.6.1930. He remained in service for about 35 years thereafter his name together with his declared date of birth appeared in the gradation lists periodically published by the Provincial Government. He did not object to the incorrect publication of his date of birth till a few years before his retirement. The mere fact that he was able to obtain a decree from the Additional District Judge did advance his case for government was not a party to the civil suit brought by him. Though the government has undoubtedly the power to correct an incorrectly recorded date of birth of a civil servant was such that he did not merit a favourable decision from the Government. We, therefore, unable to find any substance in this petition. ii. 1998 SCMR 801 (Haq Nawaz Kiani v. The Province of Punjab) "On thorough scrutiny, we have noticed that service rules regarding correction of age within two years from entry into service are apparently sound and logical. Government servant cannot be normally permitted to rise from deep slumber and dramatically announced change in the date of birth when about to retire. The Service Tribunal has properly considered all facts and aspects of the case and has assigned cogent reasons by declining the relief. In our opinion, legal position dismissed that conclusion drawn by the Service Tribunal for passing impugned judgment do not suffer from any defect illegality of impropriety. We wish to observe that latterly a tendency has developed whereby unwarranted claims attempting to show errors in date of birth are asserted towards retiring age by fabricating or manipulating documents in that behalf. Obviously, such practice must be discouraged and effectively curbed. Additional, the grievance agitated before us do not make out any substantial question of law having public importance. iii. 1998 SCMR 602 (Pakistan Broadcasting Corporation v. Subedar Major (Retd.) Abdul Razzaq) "Coming to the entry P-1 in the Birth Register, it is worthy to note that it was issued on 12.08.1935. The respondent sought declaration from civil court in respect of said entry in Birth Register in 1971. Said decree was obtained in a suit filed by the respondent against the public-at-large. At least the Authorities maintaining the Birth Register, should have been impleaded in the said suit as defendants. Said decree by no stretch of imagination, can be binding on anybody, much less on the appellant. There is no explanation as to why the respondent waited for a period of 36 years to obtain the decree. In this case deposition, the respondent appearing as PW-2 admitted that he was recruited in army in August, 1943 and that he had mentioned his age to be 16 years. He further stated that he had obtained the birth certificate in 1935. This would amount to saying that the respondent disowned copy of entry Exh. P-1, which was admittedly obtained on 12.08.1935 as per endorsement." iv. 1998 SCMR 1494 (Syed Iqbal Haider v. Federation of Pakistan) "12 We may also refer to the submission made by the learned Attorney General that in Government service an employee cannot make any application for change in the date of birth after two years. On analogy such rule should also be followed to judiciary, which otherwise would lead to serious complications and open a Pandora's Box. Similarly, authenticity of date of birth recorded in the documents cannot be challenged belatedly, specially beyond the above mentioned period." Similar view has further been affirmed in unreported judgment of this Court delivered in W.P. No. 2202-P of 2016 on 11.07.2016 by His Lordship Mr. Waqar Ahmad Seth. Even in this regard reference can be placed on (2015 SCMR 456) "Ali Azhar Khan Bloch and others v. Province of Sindh and others", wherein it has been held:- "(t) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 R. 12-A

Civil Servants

Date of birth, alteration

Scope

"Civil Servant could not seek alteration in his date of birth at the verge of his retirement."

12. In view of the ratio decidendi settled in the referred dictums of the Hon'ble Supreme Court of Pakistan, it is glaring fact on record that the findings contained in the judgments and decrees of learned Courts below in respect of correction of date of birth of the Plaintiff (herein the Respondent) are rendered in total violation of law and Supra verdicts of the Hon'ble apex Court as referred to above. Hence, on acceptance of this petition, the impugned judgments and decrees of the learned Courts below are set aside and as a consequence thereof suit of the Plaintiff (herein the Respondent) stands dismissed with no order as to costs. ZC/259/P Revision allowed.