ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P. No.D-225 of 2016.

DATE ORDER WITH SIGNATURE OF JUDGE

For katcha peshi.

Mr. Justice Salahuddin Panhwar.

Mr. Justice Muhammad Saleem Jessar.

Date of hearing:- 13.10.2016.

Date of Order :- 10 .11.2016.

Mr. Sulleman Dahri Advocate for petitioner.

Mr. Ashfaque Nabi Qazi, Asstt. A.G for official respondent.

Mr. Shabir Hussain Hashmi, Advocate for respondents No.1 to 3.

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MUHAMMAD SALEEM JESSAR, J- By means of Instant petition, the petitioner has sought following relief:-

(a) Direct the respondents to issue Duplicate Pacca Certificate of SSC Examination to the petitioner forthwith.

(b) Direct the respondent No.2 to initiate inquiry against the responsible persons, who have delayed the process of issuance of Pacca Certificate of the Petitioner.

(c) Any other relief(s) which this Honourable Court deems fit, just and proper in favour of the Petitioner.

2. The case of the Petitioner is that in the year 1974 he, as a student of Government High School, Sehwan under Seat No.20246, had passed Matriculation Examination from the Board of Intermediate and Secondary Education, Hyderabad (hereinafter referred to be the Board), therefore, after announcement of the result, the Board had issued Pacca Certificate in his favour and as per his claim, his date of birth is 21.03.1959. He further submits that during super flood of 2010 the Pacca Certificate, issued by the Board in favour of the Petitioner, gone missed. The Petitioner, as per his averments, is serving as Deputy Director (HR) at Directorate of Colleges Education, Hyderabad in Education and Literacy Department, Government of Sindh. He further submits that for obtaining Pucca Matriculation Certificate, the Petitioner had submitted prescribed application form for issuance of duplicate pucca certificate along with required documents/certificates, as per form supported by his affidavit sworn in presence of First Class Magistrate along with challan of Rs.1500/- duly paid. He had also submitted all the documents including his CNIC alongwith undertaking showing his date of birth. In support of his contention, he has annexed Photostat copies of pay slip, seniority list and certificate of Gazetted Officer and challan together with the petition. On his application, the team constituted by the Board, visited Government High School, Sehwan and verified the record of the school concerned. He further submits that respondent No.3 sent a letter dated 22.10.2015 of Colleges to the Petitioner for submitting following documents:-

(i) Pages of Service Book.

(ii) Primary School Leaving Certificate.

(iii)Middle School Leaving Certificate.

(iv)High School Leaving Certificate.

3. In response to the above letter, the Petitioner has sent an application to the respondent No.3 clarifying that he was appointed as gezetted officer as Lecturer in (BPS-17), therefore, he does not possess service book and the documents issued by Head Masters, Pass Certificate and Leaving Certificates, issued by concerned, were also sent by him along with his statement. Inspite of his reply to letter dated 22.10.2015, the respondent No.3 again sent letter dated 17.12.2015 as reminder-I to letter dated 22.10.2015. In turn the Petitioner sent another application dated 28.12.2015 addressing to the respondent No.3 containing another set of required documents. It is further alleged that Petitioner has been approaching to the respondents since 20.8.2015 continuously, but the respondents No.1 to 3 have not redressed his grievance as yet. He has alleged that lower staff of the respondents No.1 to 3 is making demand of bribe amount from the Petitioner and Petitioner has refused to pay the same, resultantly his case has not been considered and the respondents are giving evasive reply instead of redressal of his grievance. He therefore, submits that such action for non-issuance of duplicate pucca certificate to the Petitioner is malafide, discrimination and is highhandedness of the Respondents, which require interference by this Court.

4. On the other hand, Mr. Ashfaque Nabi Qazi, learned Asstt. A.G for the official respondents has drawn our attention towards the comments filed by the respondents No.1 to 3 and has stated that on application of the Petitioner the Board has constituted a team for visiting the school concerned and on their visit towards Government High School, Sehwan and Government High School, Arazi, who after verifying the General Registers of the Schools had found that same were tempered by changing the date of birth, as the last letter of the year i.e. 1959 which is very clear in its original. He, therefore, prays that there is factual dispute and such controversy cannot be resolved through writ petition. In support of his contention, he has placed reliance upon the case of Ali Azhar Khan Baloch & others Vs. Province of Sindh & others reported as 2015 S C M R 456.

5. Whereas, Mr. Shabir Hussain Hashmi, Advocate for respondents No.1 to 3, as well interveners, has vehemently opposed the Petitioner’s claim: that actual date of birth of the petitioner, as per record, is 21.03.1956 and in order to give strength to his service tenure he has manipulated official record in connivance with the concerned officials and thereafter he is seeking issuance of duplicate pucca certificate by manipulating his date of birth viz. 21.03.1959 instead of 21.03.1956. He further submits that the Petitioner has also not come with clean hands, as he has to move such application through the institution where from he had passed the matriculation and then to proper channel through the education department viz-a-viz District Education Officer concerned after making publication in well circulated newspapers of the area showing his concern; that he, being government servant, was required to get correction in his date of birth within two years of his appointment and at the verge of retirement he is not permitted by law to get correction in date of birth through school registers; that it is a clear case of factual controversy, therefore, this Court has no jurisdiction to decide such disputed issue in its writ jurisdiction. In support of his contention, he has placed reliance on the case of Mst. Zubaida Khatoon Vs. Mrs. Tehmina Sajid Shaikh & others reported as 2011 S C M R 265.

6. We have heard arguments and perused the record minutely.

7. A petition, seeking issuance of writ of mandamus, can be filed competently but only where one legally bound to perform an act but avoids. Even in such a matter one has to prima facie establish co-existence of two ingredients i.e having no other efficacious remedy and a clear legal right. The earlier may in exceptional circumstances can be relaxed but not the later.

8. In the instant matter the petitioner seems to have been insisting for issuance of direction to respondents to issue him pucca certificate which too with specific date of birth. Since it is by now a well settled principle of law that when a thing is required to be done in a particular then the same has to be done in that manner or not at all. Since, mechanism for applying duplicate pucca certificate is core issue therefore, it would be proper to refer annexure-H, brought on record by interveners, being relevant. The perusal of said Appendix shows that after qualifying the examination, the candidates/students shall be supplied/issued the Pucca Certificate only once and in case of its lost/destroyed or stolen away he may be supplied with a duplicate copy of the certificate provided he satisfies to the Controller of Examination or any Officer of the Board appointed by the Board in this behalf. Thus, issuance of duplicate pucca certificate is entirely to satisfaction of Controller of Examination or any Officer of the Board and is not dependant upon mere request of the candidate / student.

Further, perusal of such appendix reveals that application for supply of duplicate copy of the certificate shall be submitted through Head of the Institution from which the candidate had appeared for the examination alongwith an affidavit affirming that original certificate is lost, stolen or destroyed and he is not in possession of the same. It will be essential to reproduce relevant paragraph of Appendix-“H” for just decision of the present petition:-

“The application for supply of a duplicate copy of certificate shall be submitted through the Head of the institution from which the candidate appeared for the examination along with an affidavit affirming that the original certificate is lost, stolen or destroyed and is not in possession of the candidate.”

In the instant matter, the petitioner though claims to have applied for issuance of duplicate pucca certificate from the Board concerned, but no where has placed documents showing his application to have been per dictates of procedure i.e forwarded from the institution from where he appeared in the examination or his application had been forwarded by the concerned department. Thus, it prima facie appears that the petitioner did not follow the procedure for applying duplicate pucca certificate.

9. Be as it may, the Petitioner further claims declaration of his date of birth to be 21.03.1959 instead of 21.03.1956 which is clear controversy and that controversy requires evidence, therefore, the jurisdiction of this Court is barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 because ultimate effect of such change in date of birth of petitioner (a civil servant) would be upon service of petitioner, as pointed out rather resisted by interveners which seems to be carrying weight as there appears no reason for duplicate pucca certificate to petitioner with specific date of birth at verge of his retirement. A Civil Servant is not legally entitled to have change of date of birth for getting extension in his service particularly at verge of his service. To make things rather easy for understanding and clarity, a reference to the Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, being material is made hereunder: -

12A. Alteration in the date of birth. --- The date of birth once recorded at the time of joining government service shall be final and thereafter no alteration in the date of birth of a civil servant shall be permissible.

One not entitled for a thing directly he cannot obtain the same indirectly therefore, the request of petitioner for issuance of Pucca Certificate with a disputed date of birth cannot be entertained while exercising Constitutional jurisdiction.

11. Further, the respondents in their comments have challenged tampering in educational record of petitioner towards his (petitioner’s) date of birth which alone is sufficient for dismissal of instant petition because the moment things becomes controversial / disputed , the lis goes beyond the scope of Constitutional Jurisdiction, sought for an individual right/ relief. The reference can well be made to the case of ANJUMAN FRUIT ARHTIAN and others Vs. DEPUTY COMMISSIONER, FAISALABAD and others (2011 S C M R 279) wherein it is held that:

6. It is worth mentioning that it is mandatory and obligatory for a party invoking the Constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy. In the light of alleged forgery and fraud as pointed out by learned Additional Advocate General, we are of the considered view that legal right and entitlement of the petitioners are controversial. It hardly needs any elaboration that disputed question of fact cannot be decided in constitutional jurisdiction.

We are also fortified with dictum laid down by apex Court in case of Ahmed Khan Dehpal Vs. OGDCL & others reported as 2013 S C M R 759. While dismissing the petition of Ahmed Khan Dehpal, the apex Court had quoted the para of the case of Khalil Ahmed Siddiqui Vs. Pakistan, through Secretary Interior, Islamabad & others reported as 2004 P L C (CS) 1044, held as under: -

“There is no cavil to the proposition that the above rule having no retrospective effect, would not apply to the cases in which the date of birth of the Government servant was corrected before its promulgation but the request of the petitioner in this behalf was turned down by the department having been found without any foundation and consequently the operation of the rule in question in the case of petitioner would not be excluded. Learned counsel for the petitioner while placing reliance on Government of Balochistan through Secretary S&GAD, Quetta v. Marjan Khan (2003 PLC (C.S.) 245 and Tarb Arif Fatimi v. President of Pakistan (PLD 1994 SC 562) has contended that the matter was not properly considered by the High Court in the light of law laid down by the superior Courts on the subject. We, in the above factual background of the case, do not feel it necessary to further dilate upon the question of applicability of rule 12-A ibid, or the claim of petitioner on the ratio of above referred judgments. The petitioner without producing any proof in support of his claim, sought correction of his date of birth only on the basis of oral assertion that his date of birth given in the Secondary School Certificate was not correct. We are afraid, the controversial question of fact cannot be adjudicated by the High Court in its Constitutional jurisdiction. The matter relating to the correctness or otherwise of the date of birth in the service record being purely question of fact, cannot be determined without recording of evidence and detailed scrutiny of facts and such exercise cannot be undertaken in writ jurisdiction. Further the learned counsel has not been able to convince us that the jurisdiction of the High Court in the matters connected with the terms and conditions of the service of a civil servant is not ousted under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. This petition having no substance is accordingly, dismissed. Leave is refused.”

12. The petitioner being Government servant working as Gazetted Officer was well aware of the situation but remained mum for a noticeable period and not voiced throughout the period of his service regarding change of his date of birth. The idea to have the date of birth altered appears to be an offshoot of an afterthought. It, as a matter of fact, has become common practice that the Civil Servants do file Civil Suits or the Petitions for correction of date of birth when they come to the verge of their retirement just to prolong their tenure for enjoying the perks and privileges for few more years at the cost of others which legally cannot be approved lightly as ultimate effect thereof shall prejudice the rights of those likely to be inducted.

13. We have carefully considered and have gone through the relevant-cum-particular provision of law, viz. Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which manifestly reveals that a date of birth, once recorded at the time of joining Government service, shall be final and, thereafter no alteration in the date shall be permissible.

14. The upshot of above discussion, it is quite obvious that petitioner has not been able to make out a clear legal right and failure of respondents (officials) in avoiding their bounden legal duty rather it appears that petitioner has attempted to obtain a relief (change in date of birth) which he cannot obtain within four corners of Constitutional Jurisdiction. Consequently, instant petition being devoid of merit is dismissed in limine.

JUDGE.

Dated: 10.11.2016.