1981 PLP (C (PLC(CS))

Date of birth‑Change of‑Instructions governing change of date of birth‑Deemed as rules under S. 23 (2) of Civil Servants Act, 1974

Date of birth recorded on basis of Medical examination at time of entry into service in 1936 sought to be changed on basis of school leaving certificate and birth certificate issued by District Health Officer‑Appli cation for rectification made in 1972‑Department, held, had discre tion to refuse or consider matter as belated having been agitated much after 2 years of entry into service‑Punjab Civil Servants Act (VIII of 1974), S. 23 (2) read with Punjab 'Government Circular Letters No. 20076 (H) Gaz. dated 4‑8‑1928, No. 4375‑54/Gaz. dated 30‑9‑1954 and No. SOR‑11 (S & GAD) 6‑4/75 dated 6‑4‑1975. In this appeal the appellant joined the Police Service as Police Constable on 6th January, 1936 in District Gujrat. The appellant was medically examined by the Medical Officer concerned and according to the certificate issued to him, his date of birth was shown as 6th of January, 1917. As per entries in the service book prepared in respect of the appellant, the date of birth was also the same. The service book contained, the signature of the appellant to authenticate the entries therein. It appears that somewhere in 1962 the appellant moved for the rectification of his date of birth as 16th of September 1917 instead of 6‑1‑1917. The appellant also sought to support the above rectification on the basis of the school leaving certificate and the birth certificate issued by the District Health Officer, Jhelum according to which his date of birth appeared to be 17th of October, 1917. The departmental authorities,, however, relying upon the Circular Letters No. 20076 (H) Gaz. dated 4th August, 1928, and No. 4375‑54/Gaz., dated 30th September 1954 and finally the Punjab Government Circular Letter No. SOR‑II/(S & GAD) 6‑4/75. dated 6th April, 1975 and also the Inspector‑General of Police Punjab, Lahore Letter No. 21612‑23/E‑IV, dated 25th October, 1972, informed the appellant that the entry made in the service record cannot be corrected at this stage. It may be pointed out that according to the above circular letters, a Government Servant interested to seek such rectification was required to move the Government within two years of his initial entry into service. The appellant approached higher authorities but failed to get any favourable decision. Ultimately, he filed this appeal before us. The learned, counsel for the appellant Mr. Javed Hashmi firstly contended that the aforesaid instructions as relied upon by the Departmental Authorities were violative of the provisions of section 12 of the Civil Servants Act according to which every Civil servant was entitled to continue in service till the age of 58 years. Since the appellant has been retired before acquiring the age of 58, on the strength of these instructions therefore the same were unenforcible. He also submitted that section 23 of the Civil Servants Act which provided for treating such instructions the rules framed under the Civil Servants Act, were subject to the condition that such instructions if inconsistent with the Act, which according to him, were so to section 12, could not be treated as Rules. He also argued that the School Leaving Certificate in any case should have been accepted in preference to the certificate of the Medical Officer, which by no means could be considered as conclusive. We have heard the learned counsel for the appellant at length, but we regret that we could not find substance in any of contentions advanced by him. In the first instance, we are clearly of the view that section 12 has no relevance to resolve the disputes as td the age of Civil Servants concerned. Section 12 simply laid down the terminus quo for retirement and presupposed that there was no dispute as to the factum of the age. It was completely silent and inapplicable in the matter of such controversies. In this view of the matter, the contention of the appellant appeared to be evidently misconceived. We also did not find any inconsistency in‑between the instructions issued by the Department from, time to time and section 12 of the Civil Servant Act. In fact both the provisions were mutually exclusive as the instructions referred to the determination of the age and prescribed the time limit within which the civil servant was required to move for the rectification; whereas section 12 related to the retirement of the Civil Servant on acquiring the age of 58 if not retired earlier after completing 25 years service qualifying for pension. Since the instructions in question do not contravene section 12 in any manner, the same have to be deemed as rules under the provisions contained in section 23 (2) of the Civil Servants Act which read as under: "Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and enforce immediately before the commence ment of this Act shall, is so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act." Since the appellant has failed to move, the Government for rectification within the prescribed period therefore the Department has the discretion to refuse to consider the matter as belated. It' is admitted, that the appellant joined the service is 1936 and according to appellant himself for the first time moved for the rectification in 1962 and according to Department in the year 1972. In this context the observations of the Departmental Authori ties that the Government servant was required to move for rectification within two years of his entry in service is evidently well‑founded and justified. We also do not find any force in the contention of the learned counsel that the Civil Servants Act having dome into sorce on 4th of Junk 1974 cannot be applied retrospectively inasmuch as the appellant even according to Department had moved for rectification in October, 1972 which should be deemed to be commencing point for reckoning the period of two years. This contention of the learned counsel for the appellant overlooks the point that the instructions relied upon by the Department were issued and were operative since 1928 and were reiterated in 1954 and 1975 and section 23 simply rectified the same as rules. Thus it was wrong to assume that the period of 2 years will commence to run from the date the appellant moved for the rectification of the age entry in 1972. As already pointed out according to instructions every civil servants was required to move for the correction of the age within a period of two years of his initial entry into service. In this view of the matter the contention of the appellant is also devoid of merit. No other point was pressed before us. In the result the appeal fails and is rejected in limine. Appeal dismissed.