1993 PLP (C (PLC(CS))

SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).‑‑The present appeal is brought by the appellant Ghulam Jallani who was a Forest Guard in the Forests Department and was retired from service after having completed his age of superannuation by the DFO Keran Division under order No.3543‑50, dated 1‑3‑1990. Through this appeal the appellant has impugned the order of his retirement dated 1‑3‑1990 to be declared illegal and ineffective.

2. The relevant facts of the case as are contained in the memo. of appeal are that the appellant had joined service of the Forests Department as early as 28-9‑1951 and he was retired from service of the Department w.e.f. 15‑3‑1990 the date on which according to the Forests Department, the appellant had completed his age of superannuation. The grievance of the appellant is that his date of birth was wrongly recorded in his service book as 15‑3‑1930 whereas he had placed sufficient proof before the respondent No.5 that the date of birth according to school leaving certificate was 15‑4‑1932. But his request was not acceded to by the D.F.O. Keran Division respondent No.5. The appellant is also aggrieved by the fact that among the Forest Guards of the Division he was declared senior to be promoted against the next higher post of Forester but his due promotion was withheld and he was retired from service long before the due date of his superannuation. Feeling himself aggrieved by the aforesaid order of his retirement the appellant brought an appeal before the Chief Conservator of Forests Department but no decision was taken by him within the stipulated period. Hence the present appeal before this Tribunal.

3. It is prayed by the appellant that the impugned order of his retirement being illegal may be set aside and he may be allowed all the service benefits up to the date of his retirement viz. 15‑4‑1992.

4. By a short order of this Tribunal the above appeal was admitted in this Tribunal for regular hearing and the respondents were asked to file their objections if any as to the maintainability of the said appeal. The objections were filed and the Forests Department repudiated all the allegations brought against it by the appellant in his appeal. According to the Forests Department, the appellant entered in service as Forests Guard on 5‑11‑1954 and was retired from service after he had completed the age of his superannuation in accordance with his date of birth recorded in his `Ahmalnama'. The appellant has himself written his date of birth as 15‑3‑1930 in his forms of leave application which he had submitted earlier for leave before his immediate officer on 17‑12‑1960. The appellant has been showing his date of birth as 3‑1930 but for the first time it was noticed that his date of birth was recorded as 15‑4‑1932 when the appellant supplied a middle pass certificate issued by the Middle School Lawat. During his 33 years' service the appellant never applied to the Department for the correction of his date of birth and as such he was estopped under law to assert a new date of birth other than the date recorded in his `Ahmalnama'. Therefore, the appeal of the appellant was meriting dismissal.

5. We have carefully examined the personal record of the appellant and have also considered the arguments as were addressed by the learned counsel of each party. There should be, no doubt, about it that the preparation of service book and `Ahmalnama' is bounden duty of the office of which a citizen is employed in the service of the Department. Basically the onus of proving an entry of date of birth made in the service book to be correct and true is placed on the office concerned where such servant is employed and this argument is without any force that the employed civil servant should himself take care for the entry of all particulars relating to his service to be filled up in his service book at the proper time. There must not be any misgiving about it that a civil servant when asked by his Department to supply necessary proof of date of birth must immediately submit the requisite certificates quite at the earliest stage of service. But if appellant is not asked for service particulars the Department cannot be absolved of its responsibility of maintaining the record at the proper time.

6. In the instant case we have verified from the personal record of the ,Appellant that his date of birth was not recorded in the column provided for daring the period of first 8 years of his service. The service book of the appellant prepared in office .was duly signed by the appellant and Kh. Mohammad Usman, D.F.O. Keran Forest Division but no date is given alongwith the signature and it cannot be verified as to when these signatures were fixed by the appellant and his officer. But there is different entry with different ink by Mr. Muzahir‑ul‑Hiq, D.F.O. Keran Forest Division which was written and signed by him on 22‑2‑1960. This entry has been made after 8 years of service of the appellant and the signatures of the appellant has not been obtained afresh to show that it was made in his presence and the certificate referred to in support of the entry was correctly supplying the date of birth of the appellant. We have made thorough search in the personal file of the appellant as were maintained by the office of D.F.O. Keran but we have not come across with any such certificate that may be supplying the date of birth of the appellant as 15‑3‑1930. Instead of that a copy of school leaving certificate issued by the Headmaster, Government High School, Lawat on the file shows that the date of birth of the appellant according to the school leaving certificate issued by prim School Kutton is 15‑4‑1932. The Headmaster of the High School has also supplied a copy of the certificate issued by the Primary School Kutton from where the date of birth of the appellant was taken and recorded by the High School Lawat.

7. It is argued on behalf of the respondents that the entry of the date of birth on the first page of `Ahmalnama' is the conclusive proof of date of birth of a civil servant under Article 67 (ii) of Financial Code and as such the appellant was rightly retired from his service after he had completed the age of his superannuation on 15‑3‑1990. We quite agree with this argument that an entry of date of birth on the first page of `Ahmalnama' which is duly signed by the concerned civil servant and his immediate officer supplies conclusive proof of date of birth of the civil servant and change of that date at the retirement stage is absolutely not warranted by any rule of law, provided the entries on the first page of service book are not doubtful and they are made on the basis of cogent evidence. But in the instant case the position is quite different. We have examined the relevant entry of date of birth of the appellant. At the first instance the column provided for date of birth was left blank and this column was filled up by Mr. Muzahir‑ul‑Hiq, D.F.O. himself at a very belated stage on 22‑2‑1960 and the signatures of the appellant were never obtained on the file to show that the entry was made in his presence. The officer signing the entry of date of brith has relied upon a school leaving certificate dated 17‑4‑1946 purported to have been issued by the Headmaster, Primary School, Kutton but a copy of the school leaving certificate dated 17‑4‑1946 placed on the file is supporting the contentions of the appellant that his date of birth is 15‑4‑1932 and not 15‑3‑1930. The contention of the appellant further gets support from the fact that the same date viz. 15‑4‑1932 is also available recorded in the record of High School Lawat which issued middle pass certificate in favour of the appellant ‑on the basis of earlier copy of school leaving certificate issued by Primary School, Kutton. It shall be noted here that with a view to be more clear on the point we sent for the relevant record of Kutton Primary School and the same was produced before us. But unfortunately, the register produced was in a dilapidated condition and some of its leaves were also missing. However, the copy of the certificate issued by Primary School, Kutton and supplied by the High School, Lawat seems to be quite genuine and we have no reasons to differ with the arguments advanced on behalf of the appellant.

8. It is very true that the leave application forms duly signed by the appellant contained the entry of date of birth as 15‑3‑1930 as has been recorded in his `Ahmalnama' by Mr. Muzahir‑ul‑Hiq, D.F.O. Legally speaking a leave application forms containing an entry of date of birth does not itself supply a valid proof of date of birth of the applicant because such application forms are generally filled up by the office clerks and the signatures of the applicant are generally obtained by the clerks. Again the applicant must not be taken to have accepted the date of birth recorded in the leave application forms unless such an entry is corroborated by some cogent evidence produced by the applicant himself on the file. So the entry of date of birth recorded on leave application forms is not the authentic proof of date of birth of the appellant.

9. It may be a good argument that the appellant must have applied for correction of the entry of his date of birth at the earliest stage but he has brought such application one year and 3 months before the due date of his retirement according to the entry of date of birth in his `Ahmalnama'. But in view of the fact that the record of service is generally maintained by the officer and the appellant being posted away as Forest Guard in far flung areas might not have any approach to the office to know the actual facts happening in the office. Secondly it was the, duty of the office to prepare the service record of the appellant and ask him to furnish necessary proof in his possession about the date of birth. But while going through the file of the appellant we find that he was never asked by the office of D.F.O. for submitting some proof of his date of birth despite of the fact that he had submitted middle pass certificate containing his date of birth as 15‑4‑1932 in the year 1984. It may be. necessary to note here that by putting an application for correction of his date of birth long before the due date of his retirement, the appellant had provided sufficient time to his immediate officer for taking an earliest decision about the correct date of birth. It is apparent from the record that the D.F.O. Keran Division was not aware of his duties and he failed to take proper decision of the application before making the impugned order. The D.F.O. obtained an advice from the office of A.‑G. on the application of the appellant and accepted the advice of that office without making any personal approach to settle the dispute himself on the proof submitted to him by the appellant. He shut his own eyes and accepted the advice of A.‑G. as if he was directed by some senior officers of his own Department.

10. For the above reasons, we accept the appeal of the appellant and place it on the file that according to the best proof on the file the date of birth of the appellant was 15‑4‑1932 and premature retirement of the appellant recorded by D.F.O., Keran Division (respondent No. 5) is held illegal and improper. The appellant is held entitled to get all the service benefits due to him till the actual date of his retirement viz. 15‑4‑1992. A.A./166/Sr.A Appeal accepted.