1981 PLP (C (PLC(CS))

MUSHTAK ALI KAZI (CHAIRMAN).‑The appellant retired from Govern ment service with effect from 11‑11‑1979 while holding the post of Secretary of Government of Sind. Information Department. Karachi. It was the case of the appellant that the entry regarding his date of birth in his service record was incorrect as instead of 11‑11‑1920 his date of birth had been recorded as 11‑11‑1919 resulting in his premature retirement one year earlier from the date of superannuation. This mistake had been discovered by the appellant in August, 1979 and he had accordingly made an application data 14‑9‑:979 for amendment of the date on the evidence of birth date certificate frown the Headmaster. Primary School, Garhi Yasin and a certificate from the Principal, Sind Madrassah‑Tul‑Islam, Karachi showing his date of birth as 11‑11‑1920. This application had been addressed to the Chief Secretary, Government of Sind, Karachi. The appellant was then informed by letter dated 20‑10‑1979 that his request could not be acceded to, as it was time barred under rule 171 of Civil Service Rules Manual. Against this order the appellant preferred a departmental appeal to the Governor of Sind but the appellant was informed that his appeal had been considered and it was regretted that 'the same had not been acceded to. A notification was issued dated 11‑2‑1980 retiring the appellant with effect from 10th November, 1979. This was followed by another notification dated 20‑3‑1980 treating the period of over stay of the appellant from 11th November, 1979 to 11th February, 1980, as re‑employment. The appellant has accordingly preferred this appeal under section 4 of the Sind Services Tribunal Act, 1973. The respondents in their written statement contended that in spite of the fact that the date of birth of the appellant was shown as 11‑11‑1919 in the various Civil Lists published in the years 1957, 1959, 1961, 1966 and 1978 the appellant had got up from his slumber as late as 14-4-1979 when he was on the verge of retirement. The appellant had himself mentioned his date of birth as 11‑11‑1919 in his bio-data and letters addressed to the Government. He was, therefore, esto pped from questioning the correctness of that date. That under rule 171 of the Sind Civil Service Rules Manual, Volume I the appellant should have taken the necessary steps for correction of his date of birth at the appropriate time. That the decision of the respondent was based on the said rule. The questions which thus arise for consideration are: (i) Whether the date of birth as entered in the service record as 11‑11‑1919 is incorrect and the appellant's actual date is 11‑11‑1920 ; (ii) Whether rule 171 of the Sind Civil Services Rule Manual Volume I imposed a bar on the Government to consider the case of correct ing date of birth in service record after 2 years. (iii) Whether the correction could not be made at such late stage on the principles of equity such as estoppel, waiver or lashes. It is the case of the appellant that due to some error or mistake the appellant's date of birth in his service record appeared as 11‑11‑1919 instead of the correct date 11‑11‑1920. That he was unaware of this mistake because he had not paid any attention to it until his request for Rent and Recreation leave was refused in the month of August, 1979 and he was informed that he was about to retire with effect from 10-11‑1979. The appellant produced the available evidence of age before the Service and General Administration Department, namely Primary School Certificate of Garhi Yasin and a certi ficate from Principle Sind Madrassah‑Tul‑Islam, Karachi regarding entry in the School General Register of his date of birth as 11‑11‑1920. The case of the appellant was, however, not examined on merits and it was simply stated in the order rejecting his application that his request was "time barred under the instruction below rule 171 of Civil Service Rules Manual". When the case came up for consideration before the Tribunal, the Tribunal had to examine the question on merits since this had not been done by the department 'concerned. In the interest of justice it was found necessary to record additional evidence in respect of age of the appellant. The Principal, Sind Madrassah‑Tul‑Islam was summoned to produce the original General Register for the relevant years as mere certificate could not be considered as primary evidence of entry regarding age. This register was thoroughly examined and found to be genuine and authentic. It had been kept from the year 1926 and contained entries upto 1943. At Serial No. 4577 there was entry regarding appellant Mr. Ali Ahmed Karim Bux Brohi. His place of birth was shown as Garhi Yasin. His date of birth was mentioned in figures as well as in words as 11‑11‑1920. He had joined Sind Madressah‑Tul‑Islam on 30‑12‑1938 on transfer from Guru Nanik Academy, Garhi Yasin. He had been admitted in Class V A. His elder brother Ali Asghar Karim Bux Brohi had also studied in Sind Madrassah and his date of birth entered at Serial No. 3062 was 1‑4‑1919. These entries appeared to be neat and clean without any attempt at overwriting or interpolation. The entry in this record, therefore, appeared authentic and reliable. If the date of birth of the elder brother of the appellant had been recognized to be 1‑4‑1919 then the age of the younger brother could not be 11‑11‑1919, This entry in the service record of the appellant was, therefore obviously incorrect. The other relevant evidence of age could have been the Municipal Birth Certificate but the appellant was born at a small village called Garhi Yasin where there was no Municipality and where such record could not have been regularly maintained. It had however been the long established practice, to place full reliance on the Matriculation certificate as final and irrefutable proof of age in all service matters in Government Departments. The appellant was, therefore, asked to produce his original Matriculation certificate. He explain ed that he had initially joined Customs Department and he had filed his original Matriculation certificate in his service record in that Department. That he could not get it from the Customs as the said record pertaining to the year 1942 had since been destroyed. A certificate to that effect was produced signed by the Collector of the Customs. The hearing was accordingly adjourned to enable the Appellant to obtain the duplicate certificate from University of Bombay in India. Appellant succeeded in getting the certificate which is now part of this record. It is duly signed by the Registrar of the Bombay University. The appellant had passed Matriculation Examination in the year, 1911. His date of birth as entered in the certificate is also 11‑11‑1920. It is, therefore, evident that the entries in all the School Registers and Matriculation certificate are all uniform and they point out the date of birth of appellant as 11‑11‑1920. Therefore, the entry in the service record of the appellant as 11‑11‑1919 must be on account of some error or mistake somewhere. The order on the application of the appellant by the Services and General Administration Department dated 20th October, 1979, shows that the question regarding, the correct date of birth of appellant was not even examined on the ground that the request was tune barred under the instruc tions blow rule 171 of Civil Service Rules Manual. The said instruction reads as under: ‑ "Officers competent to alter dates of birth should‑ see that no change in the date of birth which will be to the advantage of the Government servant concerned is allowed unless an application in that behalf is made by the Government servant concerned within two years of the date on which his service book was opened under Sind Civil Services Rule

167. All cases in which applications are made after the period of two years referred to above should be submitted to Government for orders. The date of birth is to be verified with reference to docu mentary evidence and a certificate is to be recorded to that effect stating the nature of the document relied on as required under rule

171. A change in the date of birth should not, therefore, be allowed on the evidence which could be available to a Government servant when he entered Government service and his date of birth was recorded in the service book." The instruction is not an imperative or mandatory rule but is to bet regarded merely as a direction requiring substantial compliance as far as practicable. Such directions do not require to be complied with where under the circumstances of the case injustice or inconvenience would result. These provisions are to be regarded as being in the nature of mere instructions for guidance of those on whom the duty is imposed and not as mandatory provisions. As held in P L D 1963 S C 564 it is now established law, that even the administrative authorities have to act justly, fairly and reason ably, otherwise the decision taken by the departmental authorities would appear to be vitiated. A bare reading of the above instruction below Service rule 171 would show, that it is addressed to the `Officers' competent to alter dates of birth in `service books'. Under rule 167 a service book is opened for `Non- gazetted' Government Servants. The instructions are to the effect that where the Government Servants of subordinate ranks ask for such alteration after period of two years from date of appointment, the matter should not be decided by them but must be referred for orders of the Government. There is no bar of limitation on any such exercise of power by the Government. Ordinarily if the evidence requiring change was available with the Govern ment servant at the time the wrong entry was made and was not produced by the Government servant, then an inference could arise regarding the authenticity of such evidence produced at a late stage. In the present case, however, the Matriculation certificate, which is an authentic proof of age, was not in possession of the appellant when he was taken up in the Sind Govern ment service. It has been received from the University of Bombay in the course of this appeal. There could not, therefore, be any presumption of such evidence to be connected or got up evidence, even though produced a late stage. In the interest of justice, equity and good conscience, such evidence if authentic could be acted upon for the purpose of deciding the correct date: of birth of a Government official. Since the Services and General Administration Department did not examine the question on merits this function had to be performed by this Tribunal at the stage of this appeal. Lastly a plea has been taken in the written statement regarding the principles of Estoppel, waiver and laches for correction of the error in date of birth at a late stage. It may be mentioned in this connection that 'Estoppel' is not a bar to enforcement of rights but is simply a rule of evidence which under certain circumstances can be invoked by a party in a suit or proceed ing. Estoppel does not affect substantive right of a party. It can be pleaded only where all the conditions for its application are fulfilled. These conditions are (1) Representation or concealment of material facts ; (2) made with knowledge of real facts ; (3) to a party ignorant of the matter ; (4) with intention that the other party should act upon it ; (5) the other party must have been induced to act on such repre sentation ; (6) and must have acted to its detriment. In this case there is no evidence of any representation with full knowledge that it was false and with an intention to induce the Government to act upon it to its detriment. The plea of Estoppel is not, therefore, applicable in this case. No person can be precluded from pleading that certain orders passed against him are not legal orders or that they affect his legal right. Likewise `acquiescence or waiver' can also not be pleaded. Acquiescence is a matter of legal inference.. The mere inactivity of the person concerned for a number of years does not necessarily lead to the inference of acquiescence. Where a party relies upon an omission or inactivity of the other as depriving the latter of his legal rights, nothing short of conduct amounting to fraud can sustain a plea of acquiescence. Acquiescence is founded on conduct with knowledge of once own legal rights. The conduct must be such so as to amount to fraud. The silence must be of such a character that the intention to keep silence must be to commit fraud upon the other party. The learned Assistant Advocate‑General has in the end pleaded laches' for defeating the claim of the appellant. Mere delay however, cannot be a bar to proceedings unless it has altered the position of the opponent. As held in P L D 1949 Lah. 1 (2), it may be taken as the law both of Courts of Law and equity that mere laches short of period prescribed by statute of limitation, is no bar whatever to the enforcement of a right absolutely resting in the plaintiff at the time. These pleas can hardly be raised in cases of determination of correct age of superannuation in respect of Government official. The result is that the correct date of birth of the appellant for determin ing his age of supperannuation would be 11‑11‑1920 requiring the necessary correction to be effected in his service record, and consequential benefits to which he might be entitled. No order is made as to costs under the circumstances of the case. Appeal dismissed.