IN THE HIGH COURT OF SINDH, KARACHI
Constitution Petition No.D-5393 of 2014
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Date Order with Signature(s) of Judge(s)
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Present:
Muhammad Ali Mazhar, J.
Abdul Maalik Gaddi, J.
Farid Muhammad …………… Petitioner
Versus
Federation of Pakistan
& 9 others ……………. Respondents
Date of hearing : 09.11.2016
Mr. Abdul Tauheed Khan Advocate alongwith the Petitioner.
Mr. Ainuddin Khan Advocate for the Respondents No.2 to 10.
Shaikh Liaquat Hussain, Standing Counsel.
J U D G M E N T
Abdul Maalik Gaddi, J. Through instant constitution petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has sought following relief(s):-
(i) Orders of respondent authority in Telex dated 29.05.2014 and letter dated 30.05.2014 are nullity in law and of no legal effect being ultra vires of Section 12-A Civil Servants (Appointment, Promotion and Transfer Rules, 1973 and CAA Service Regulation 3.16 and set-aside with effect from 01.06.2014;
(ii) Petitioner’s date of birth 02.08.1956 recorded in his Service Book on 16.06.1972 is final and no alteration in the date of birth of petitioner is permissible after 42 years;
(iii) Petitioner shall retire on attaining his age of superannuation on 02.08.2016;
(iv) Petitioner was unlawfully debarred from performing duty of this post w.e.f. 01.06.2014 and his period of forced debar from his duty declared in continuous employment of respondent authority with salary and service benefits;
(v) Any other relief which this Hon’ble Court may deem fit in the circumstances.
2. The brief facts leading to filing of instant constitution petition are that the petitioner was appointed as Chowkidar vide appointment order Ref. No.KAP/279-2/Admin dated 16.06.1972 in the then department of Civil Aviation (CAD). His services were subsequently transferred from CAD to CAA upon the creation of Civil Aviation Authority under Ordinance XXX of 1982. His date of birth as per Service Book is 02.08.1956 and, therefore, according to the petitioner, his date of superannuation is/was 02.08.2016, but on 30.05.2014, abruptly respondent No.9 without providing him any opportunity of hearing, informed the petitioner that after scrutiny of record of Head Quarter, CAA, his date of birth was 01.07.1952, as such, he shall stand retired from CAA Service w.e.f. 01.07.2012 on attaining the age of superannuation i.e. sixty (60) years with further information that his pay and allowances shall be stopped from the said date. It is averred that he had not altered/tampered his date of birth and had not concealed any fact and his recruitment was made under the then Employment Rule, 1965 and there existed no rules which could retired him retrospectively. It is also averred that the respondents had anti-dated his date of birth w.e.f. 01.07.1952 instead of 02.08.1956 is illegal and has been ascertained without any cogent material on record, therefore, impugned orders of the respondents are liable to be set-aside. He further averred in the petition that he filed appeal challenging the illegal and unlawful action of the respondents before the Director General, Civil Aviation Authority, Karachi in the month of June, 2014 but he has not responded, hence, this petition.
3. The respondents No.2 to 10 have filed their parawise comments, wherein they have denied the case and claim of the petitioner by stating that the petitioner, in terms and conditions of his service, is governed under Civil Aviation Authority Service Regulations, 2000, which are non-statutory in nature. Therefore, the present petition is not maintainable before this court. The respondents have also taken the plea that at the time of induction in service, the petitioner had filed photocopies of medical certificate dated 11.07.1972 and so also certificate issued by Head Master, Government Primary School, Family Line, Jacobabad dated 12.02.1971 showing his age at that time as eighteen (18) years, depending on the age as mentioned in the said certificates, the year of birth would be around as 01.07.1952 and the year of his superannuation would be 01.07.2012. It is also stated that the respondents have no other record or credible evidence available about the petitioner’s date of birth as 02.08.1956 recorded in the Service Book as the petitioner had not submitted his family data i.e. recorded date of birth of his family members duly supported by official documents (NIC etc.). As such, he cannot take the benefit of such documents as proof of date of birth, recorded well before issuance of these CNIC. It is also denied that the respondents while retiring the petitioner w.e.f. 01.07.2012 has committed any illegality or irregularity, therefore, this petition is liable to be dismissed.
4. Learned counsel for the petitioner during the course of his arguments has reiterated the facts and grounds of the petition and has contended that the petition is maintainable as the petitioner was inducted in service of the respondents on 16.06.1972 as Chowkidar after observing all legal and codal formalities and his date of birth recorded in his Service Book as 02.08.1956 but abruptly in the month of June, 2014 and after about forty two (42) years of his service in the department, he was informed that after scrutiny of record of HQ CAA, his date of birth at the time of appointment is/was 01.07.1952 and he shall stand retired from CAA services on 01.07.2012 retrospectively on attaining the age of superannuation i.e. sixty (60) years without providing him any opportunity of hearing. During the course of his arguments, he draws our attention towards the photocopies of Service Book, School Leaving Certificate issued by the Head Master, Government Primary School, Family Line, Jacobabad and CNIC issued by the NADRA available on record showing the date of birth of the petitioner as 02.08.1956 and according to this date of birth, the petitioner should have been retired on 02.08.2016 but the petitioner was unlawfully and illegally with malafide intention debarred from performing duty of his post by the respondents while altering his date of birth itself without any cogent reason w.e.f. 01.07.2012 retrospectively, which action has been challenged through this petition as the legitimate rights of the petitioner have been deprived by the illegal action of the respondents, which is a public authority having Civil Aviation Authority Service Regulations, 2000, which can be sued by invoking the writ jurisdiction for redressal of his grievances. Per learned counsel, the hon’ble Supreme Court in its recent judgment passed in the case of Muhammad Rafi and another v. Federation of Pakistan and others reported in 2016 SCMR 2146 and while relying the case of Pakistan Defence Officers Housing Authority v. Jawaid Ahmed (2013 SCMR 1707), and its para 8 has extended the writ jurisdiction of this court to those public authorities, their rules are non-statutory and violative thereof can be pressed into service in writ jurisdiction of this court. In support of his arguments, he has also relied upon the following cases, which is reproduced as under:-
(i) Syed Iqbal Haider v. Federation of Pakistan and another reported in 1998 SCMR 1494;
(ii) Union of India and others v. Mrs. Saroj Bala reported in AIR 1996 SC 1000;
(iii) Unreported judgment of hon’ble Supreme Court in Civil Petition No.215 & 2016 of 2011.
5. As against this, Mr. Ainuddin Khan, learned counsel for the respondents No.2 to 10, while opposing the case and claim of the petitioner, has relied upon the comments and documents already filed on behalf of the said respondents and contended that the Service Regulations of the Civil Aviation are non-statutory. He submits that under the Civil Aviation Authority Ordinance 1982, power is conferred on the Government to frame Civil Aviation Rules 1994 and the Rules framed by the Government (under Rule 4(2)(h)) confer powers on the Civil Aviation Authority to frame Regulations with the condition that such Service Regulations are subject to approval of the Federal Government. Per learned counsel, Civil Aviation Authority has framed Service Regulations in accordance with the Rules, but these Regulations are not approved by the Federal Government till date and therefore, they are non-statutory Regulations and cannot be enforced in constitutional jurisdiction as such, this petition is not maintainable. In support of his arguments, he has relied upon the case laws as mentioned in his parawise comments.
6. Shaikh Liaquat Hussain, learned Standing Counsel adopted the arguments of learned counsel for the respondents No.2 to 10.
7. We have heard the learned counsel for the parties at a considerable length and have perused the record.
8. It would not be out of place to highlight that under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, any person who is performing functions in connection with the affairs of the Federation, a province or a local authority may approach this Court for redressal of his grievances. Sub-clause (5) of the said Article describes that the expression ``person`` includes anybody politic or corporate, any authority of or under the control of the Federal Government or the Provincial Government. The inclusion of the expression (corporate) is referable only to corporate authority created by the Government to perform certain functions of a public nature either by statute or otherwise. The point in this regard has been aptly elaborated by the Apex Court in the cases of Salahuddin and 2 others v. Frontier Sugar Mills reported as PLD 1975 SC 244 and Pakistan Defence Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed [(2013 SCMR 1707) relevant para 50]. For the sake of convenience, it would be expedient to reproduce para 50 of DHA case as supra, which reads as under:-
“50. The principles of law which can be deduced from the foregoing survey of the precedent case-law can be summarized as under:-
(i) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction.
(ii) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of ‘Master and Servant’.
(iii) In all the public employments created by the Statutory bodies and governed by the Statutory Rules/Regulations and unless those appointments are purely contractual, the principles of natural justice cannot be dispensed with in disciplinary proceedings.
(iv) Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violative of the principles of natural justice, it can be interfered with in writ jurisdiction.
(v) That the Removal from Service (Special Powers) Ordinance, 2000 has an overriding effect and after its promulgation (27th of May, 2000), all the disciplinary proceedings which had been initiated under the said Ordinance and any order passed or action taken in disregard to the said law would be amenable to writ jurisdiction of the High Court under Article 199 of the Constitution.”
9. The Hon’ble Supreme Court of Pakistan in its another Judgment passed in the case of Civil Aviation Authority in Civil Appeal Nos.185-K and 186-K of 2015 reported as 2016 SCMR 2146 has further interpreted the scope of para 50 of the above said reported Judgment and its para 8 has extended the writ jurisdiction of this Court to those public authority their Rules are non-statutory and violation thereof can be pressed into service in writ jurisdiction. For the sake of convenience, it would be advantageous to reproduce as follows:-
“8. We, therefore, are of the considered view that issue in hand is fully covered by para 50 of the judgment referred to hereinabove, which provides that an aggrieved person can invoke the constitutional jurisdiction of the High Court against public authority if he satisfies that the act of the authority is violative of the service Regulations even if they are non-statutory.”
10. In view of the above, the question of the maintainability was raised in the case of Muhammad Rafi and another as supra and the Hon’ble Supreme Court allowed the appeals against the Civil Aviation Authority, therefore, the objection as raised by the respondents with regard to maintainability of this petition has no force and accordingly, this petition is maintainable.
11. The grievance of the petitioner is that his date of birth was recorded as 02.08.1956 in the Service Book and record of the respondents’ authority, but after several years/decades the same was altered by the authority itself, which resulted in, what petitioner submits, is his premature retirement. We have specifically asked learned counsel for the respondents as to whether before taking the action of changing of date of birth of the petitioner in a manner adverse to him, the authority had given him an opportunity of hearing. Learned counsel for the respondents did not reply satisfactory, however, he has relied upon the report of board of inquiry dated 27.08.2014, annexed with the parawise comments of the respondents, but this report also do not indicate that during the inquiry, the petitioner was ever heard or had been allowed to participate in the inquiry to place his point of view. This aspect of the case indicates that the petitioner had been condemned unheard and has been retired vide impugned order dated 30.05.2014 w.e.f. 01.07.2012 retrospectively. It is settled law that Maxim “audi alteram partem” is applicable to judicial as well as to non-judicial proceedings and at all time, read as part of every statute even such right has not been expressly provided therein. The respondent is a public authority and under the law, they are supposed to do function in accordance with law but here in this case, they have committed illegality by not providing any opportunity of personal hearing to the petitioner while altering his date of birth.
12. We have also perused the record with the assistance of learned counsel for the parties, which reveals that the respondents anti-dating the date of birth of the petitioner itself without any cogent reason twicely as 01.07.1954 and again 01.07.1952 instead of 02.08.1956 as recorded in his Service Book, which is against the Civil Aviation Authority Regulations No.3.16, which reads as under:-
“3.16. The date of birth declared at the time of entering the service of the Authority and accepted by the competent authority shall be final and shall not be changed at any subsequent stage during service. In case where no educational qualification is prescribed for the post and it is not possible to produce the birth certificate as well, the age of the employee shall be determined as follows:-
(a) If he is unable to state his exact date of birth but can state the year or year and month of birth, the first July and the 16th of the month respectively may be treated as the date of his birth.
(b) If he is only able to state his approximate age or is unable to give any information about his date of birth, his age shall be determined by the Medical Officer of the Authority at the time of his appointment.
(c) The date of birth so determined shall be final.”
13. It is an admitted position that the petitioner was appointed as Chowkidar with the respondents on 16.06.1972 and at the time of induction in service, the date of birth of the petitioner was recorded in his Service Book as 02.08.1956, and according to this date of birth, the petitioner was to be retired on 02.08.2016, but this date of birth has been disputed by the respondents in the parawise comments by stating that at the time of his induction in service, petitioner claimed eighteen (18) years old as per medical certificate and school leaving certificate, therefore, after scrutiny of record, the petitioner’s date of birth was declared as 01.07.1972, and as such, the petitioner was to be retired on 01.07.2012 and according to respondents the petitioner has been retired on the said date.
14. So far as reliance of respondents on medical certificate of the petitioner is concerned, perusal of the same shows that neither the same is based upon ossification test of the petitioner nor dental surgeon or radiologist opinion. The said certificate has also not been signed by any doctor, nor it has been stamped showing its authenticity. Nothing on record which suggests that on what basis, the date of birth of the petitioner was mentioned as eighteen (18) years in medical fitness certificate. Even otherwise, the said medical checkup was a routine checkup not especially constituted to determine the age of the petitioner. By merely stating in medical certificate that the petitioner was eighteen (18) years old cannot be considered as an authentic piece of evidence for determining the age of the petitioner. As far as, the reliance of the respondents on school certificate dated 12.02.1971 is concerned, neither the same has been signed by the head master nor it has been stamped or on school letter head and no date of birth has also been mentioned rather it is simply mentioned as eighteen (18) years old, however, in the present case, the petitioner has produced the photocopy of his Service Book showing his date of birth as 02.08.1956. The Service Book is always prepared by the department to maintain the record and the same is always used to verify yearly by the concerned department. Therefore, it cannot be said that the same was manipulated by the petitioner. Even otherwise, there is no allegation that the petitioner has manipulated/tampered his date of birth in the Service Book. The petitioner has also produced the School Leaving Certificate alongwith his counter reply to the parawise comments on behalf of the respondents showing his date of birth as 02.08.1956. This certificate contained all relevant entries with regard to the petitioner. This certificate has not been challenged by the respondents. Therefore, this certificate goes to be un-rebutted and the entries mentioned in the said certificate are to be taken as true. Not only this, “NADRA” has also issued CNIC of the petitioner, which is on record showing date of birth of the petitioner as 02.08.1956. In the given circumstances, there is no reason to discard the documentary evidence produced by the petitioner with regard to his date of birth as 02.08.1956. It is pertinent to mention here that the respondents have altered the date of birth of the petitioner in the month of February, 2014 after about forty two (42) years and near about the completion of the service of the petitioner itself without assigning any cogent and conclusive evidence. Nothing on record why the respondents remained mum for such a long time to alter/change the date of birth of the petitioner, particularly, when all the documents are with respondents, therefore, the principle of acquiescences and waiver will come into play against the respondents. Under the circumstances, no reliance can be placed on the stance of the respondents which is based upon irrational, arbitrary and illegal as well as surmises and conjectures.
15. For what has been discussed above, we are of the view that the date of birth of the petitioner is/was 02.08.1956 as recorded in his Service Book and he was entered in the service on 16.06.1972, as such, the petitioner shall be treated as retired from his service on 02.08.2016 upon attaining the age of superannuation i.e. sixty (60) years. Consequently, the impugned orders dated 29.05.2014 and 30.05.2014 issued by the respondents, whereby the petitioner was ordered to be retired w.e.f. 01.07.2012 retrospectively, are set-aside having no legal effect. Since the date of retirement of the petitioner i.e. 02.08.2016 has been passed away and the petitioner has attained the age of superannuation, therefore, no question for his reinstatement in service arises at this stage. However, the petitioner is entitled for his all salaries and service benefits of the intervening period, which shall be paid by the respondents No.2 to 10 within one month.
The petition is allowed in the above terms.
Karachi.
Dated:
JUDGE
JUDGE
Faizan A. Rathore/PA*