Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. D – 65 of 2018

Before :

Mr. Justice Muhammad Shafi Siddiqui

Mr. Justice Khadim Hussain Tunio

Date of hearing: 11.10.2018.

Mr. Ghulam Mujtaba Jakhar, Advocate for the petitioner.

Mr. Zulfiqar Ali Naich, Assistant Advocate General Sindh along with Shafi Muhammad Junejo, District Accounts Officer, Khairpur and Javed Ahmed, DSP.

O R D E R

MUHAMMAD SHAFI SIDDIQUI, J. – Petitioner in this petition has prayed for the release of salary from the month of June 2017 till 14.10.2017, which he disclosed to be his date of retirement. Notices of this petition were issued and respondent No.3 filed comments.

2. We have heard the learned counsel and perused the record.

3. The perusal of the record shows that the service record of the petitioner was tempered as far as his date of birth is concerned. The pay slips of the petitioner disclosed his date of birth as 01.01.1957, which is also disclosed in the “service book”. The date of birth claims to have been corrected on the basis of some medical reports and certificates. When enquired from respondent No.3, who appeared in person, as to under what authority the service record, in particular, the date of birth was rectified. He relied upon Section 11 of the Sindh Civil Services Rules (Volume-I), which provides for a medical certificate of fitness for government service in the prescribed form. The said provision is not applicable as far as present controversy is concerned.

4. Learned AAG relied upon Rule 171 of the aforesaid rules, which is reproduced as under:

“ 171. In the service book every step in a Government servant’s official _ including temporary and officiating promotions of all kinds, increments and transfer, and leave of absence taken, should be regularly and concurrently recorded, each entry being duly verified with reference to departmental orders, pay bills, and leave statements, and attested by the head of the office. If the Government servant is himself the head of an office, the attestation should be made by his immediate superior, officiating and temporary service and leave taken prior to first substantive appointment to a permanent post should also be recorded in the service book and duly attested after verification. The date of birth should be verified with reference to documentary evidence and a certificate recorded to that effect stating the nature of the document relied on :

Provided that in the case of inferior Government servants, if documentary evidence is not available, the age should be determined by the appointing authority with reference to the statements of respectable persons, medical opinion, etc., and any other evidence he may think proper to take. ”

5. The proviso to this rule provides that if the documentary evidence is not available, the age should be determined by the appointing authority with reference to the statement of the respectable person, medical opinion, etc., and any other evidence he may think proper to take. Here, it may well be added that the date of birth in service record (service book) does operate as a limit in service therefore, importance whereof cannot be denied. Normally, every civil servant receives his monthly salary under pay-slip which does contain the date of birth of such civil servant therefore, plea of ignorance normally would not be available to the petitioner to such effect. This has been the reason that Hon’ble apex Court in case titled as Iqbal Hyder v. Federation of Pakistan (1998 SCMR 1494) has held that a Government employee under the relevant rules cannot make prayer for correction of his date of birth after two years of joining service. This principle was further elaborated by honourable Apex Court in the case of Dr. Muhammad Aslam Baloch v. Government of Balochistan 2014 SCMR 1723 wherein it has been held as:-

“7. ….. the date of birth of a Civil Servant once recorded at the time of joining the Government Service shall be final and would not be altered except where a clerical mistake occurs in recording the same in the service record. It further provides that the request of a Civil Servant for change of date of birth shall not be entertained after a period of two years from the date of such entry in his service record.

In another case of Al Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 (Rel. P-574) it has categorically been held as:-

“238. …The mode of correction in the date of birth of a Civil Servant is provided under Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 , which is part of terms and conditions of service of a Civil Servant and cannot be resorted to through the Civil Suit. It has also been established by now that a Civil Servant cannot seek alteration in his date of birth at the verge of his retirement or otherwise in a suit and…..

In the instant matter, it has never been the case that when he was appointed, he did not disclose his date of birth as 01.01.1957 or that he was ignorant of such fact rather it is an undeniable factual position that he was receiving his salary against pay slips which also disclosed his date of birth as 01.01.1957. Therefore, such plea is entirely misconceived.

6. The primary question is as to why there was a need to re‑determine the age at the twilight of his career. This rectification / correction under the garb of these rules is nothing but perjury. The tenure of his service was extended by a considerable period of nine (09) months, and was also allegedly benefited in the forthcoming budget of June 2017 for financial year 2017-18. The tempering of record under the garb of correction was admitted. The original date of birth in the service record is disclosed as 01.01.1957, which is tempered to 15.10.1957. There is no need for any inquiry as the delinquent officer himself, who appeared in person, has admitted that they have rectified such date.

7. We are not in agreement with the contention of the learned AAG or for that matter respondent No.3, that such record could be altered as they have desired. The comments filed by respondents No.3 and 4 accompanied with the recommendation of the Government of Sindh, Finance Department with reference to Rule 171 of the Sindh Civil Services Rules that there shall be no change in the date of birth which shall lead to the advantage to the Government servant concerned and unless an application in that behalf is made by the Government servant concerned within two (02) years of the date on which his service book was opened under Rule 167 of the Sindh Civil Services Rules. His service book apparently was opened in the year 1988 by Superintendent District Jail, Dadu, and an attempt has been made to alter it in the year 2017 and that too on the basis of irrelevant factor on account of medical certificate which otherwise, never permit such correction. It may well be added that things, if are done, in deviation to specific law and procedure, shall always be considered as nullity hence no benefit could be claimed in consequence thereof.

8. Surprisingly, this alteration was done by respondent No.3 who was neither the appointing authority nor was competent in terms of Rule 171 ibid. Thus, it is a clear-cut case of perjury which seems to have been with no other object but to gain undue benefits at cost of disadvantage to the Government. Such a prima facie act , if is allowed to go un-noticed, may result in encouraging such attempts in future, therefore, it would be in all fairness to refer it to proper forum for initiating legal action. We, by a short order, dismissed the petition, however, we direct the Chairman Anti-Corruption Establishment, Karachi to initiate the inquiry against the petitioner and respondent No.3 i.e. District Accounts Officer Khairpur Shafi Muhammad Junejo, and lodge the FIR as per law under intimation to this Court.

9. These are the reasons for the short order announced today i.e. 11.10.2018.

J U D G E

J U D G E

Abdul Basit