MUHAMMAD SAEED KHAN Versus I.-G. OF PAKISTAN RAILWAYS POLICE

A. O. RAZIUR RAHMAN (MEMBER).‑ The appellant was appointed, on 2‑11‑1944; as Assistant Inspector (Watch and Ward), in the East Indian Railway. At the time of independence, lie opted, for service in Pakistan and, on transfer to Pakistan he was absorbed in the North Western Railway, which was later named Pakistan Western Railway and, subsequently, Pakistan Railways According to the statement of the Appellant, the date of birth, as shown in the original record of the East Indian Railway, was 1‑7‑1925. The original record of the East Indian Railway was, however, not available with the department for production before the Tribunal at the: time of hearing or even subsequently and, although both the departmental representatives and the learned counsel for the department, were asked to clarify the position, they could not explain what happened to the original record, Their stand, however, was that the date of birth, as noted in the original service record with the East Indian Railway, was not 1‑7‑1925, but 2‑7‑1921 However, on 11‑1‑1978, a seniority list was published showing the date of birth of the appellant as 2‑7‑1925. On the basis of this, the appellant would hake been due for retirement on superannuation on 1‑7‑1985. Nevertheless, on 5‑4‑1981, a letter, bearing No. 8‑20/1‑PRP, was issued by the Inspector‑General, Railway Police, ordering his retirement on 2‑7‑1981, on attaining the age of superanuuation. On 2‑5‑1981, the appellant filed a suit in the Civil Court for declaration against the respondents that the actual and correct date of birth of the appellant was 1‑7‑1925, not 2‑7‑192 t, and, therefore, prayed for a mandatory injunction restraining the respondents from illegally retiring the appellant before 17‑1985. The civil Court held ill abeyance the retirement order passed by the respondents and admitted the suit for hearing.

2. After hearing the parties, the civil Court, holding that it had no jurisdiction in the matter, which was exclusively that of the Service Tribunal, directed that the suit be returned to the appellant, to be presented before the competent forum i.e. the Service Tribunal. On the dismissal of the suit on 28‑7‑1981, the appellant, who had been allowed to continue in service on account of the suit pending in the Civil Court, was made to hand over charge and formally retired from service on 29‑7‑1981. On 23‑8‑1981, he made a representation to the Chairman, Railway Board, against his retirement and also simultaneously filed an appeal before the Tribunal on 26‑8‑1981. By an order passed on 27‑1‑1982, the Tribunal admitted the appeal for hearing, which took place on two consecutive dates, i. e. 20‑9‑1982 and 31‑9‑1982, whereafter it is being disposed of by this order.

3. It has been claimed by the appellant that, at the time of his initial appointment in the East Indian Railway, he had submitted his Matriculation Certificate to the appointing authority and it became part of his service record. He has further claimed that the Matriculation Certificate showed the date of birth of the appellant as 1‑7‑1925 ; that entry to this effect was made by him at the time of initial appointment in his own handwriting, as required by the rules ; that subsequently, on 12‑4‑1956, he was required once again to complete the formality of making entry in the descriptive roll, which he did on the said date, vide descriptive roll bearing Serial No. 01144 of the North Western Railway ; that, in this descriptive roll, the entry regarding the date of birth in his own handwriting was "1‑7‑1925", in figures, and "First July Ninteenth Twenty‑Five", in words ; that subsequently, somebody, not known to him, made alteration in these entries and, after scoring through "1‑7‑1925", wrote "2‑7‑1921" and, in words, scored through "First" and worte "Second" ; that, in the personal file of the appellant the date of birth, signed by the Superintendent (Watch and Ward), is not.‑d as 2‑7‑1925 ; that B Card No. 1 ,contains details of increments etc. sanctioned from time to time, with effect from the date of his initial appointment, namely 2‑1 1‑1944, in which the date of his birth has been shown as 2‑7‑1925, but that, subsequent to this date, the B Card, prepared and completed by the department on 17‑2‑1957, and subsequent dates, shows his date of birth as 2‑7‑1921, which is a' clear manipulation by somebody who wanted to harm him by showing a wrong date of birth, involving retirement at an earlier date ; that in his leave record, maintained by the department with effect from 15‑11‑1947 when he joined duty on arrival in Pakistan, his date of birth has been shown as 2‑7‑1925 ; that in the seniority list, circulated by the Department on 11‑1‑1978, the appellant's date of birth was shown as 2‑7‑1925 ; that subsequently, this list was withdrawn on 18‑2‑1980, but no fresh list was published to replace it and yet, on 9‑6‑1980, he was informed that he was due for retirement on 1‑7‑1981 on the basis of his date of birth being 2‑7‑1981 ; and that he could apply for L. P. R., if he wished to avail the same ; that, in reply to this, he had declined to go on L. P. R., stating that he wanted to challenge the date of birth ; that, thereafter, he procured a copy of the Certificate of the High School Examination, from India, and supplied it to the respondents, from which it appears that his date of birth was 1st July, 1925 and not 2nd July, 1921 ; that he also obtained an attested copy of extract from the U P Gazette. Part IV, dated 14th June, 1981, page 1910, showing him as having passed the High School Examination in the third Division, in which the date of his birth has been shown as 1‑7‑1925. On the basis of these facts, the appellant claimed that he was entitled to continue in service up to 30th June, 1985 and could not be retired on 1st July, 1981.

4. We have heard the parties in great detail and perused whatever relevant documents were made available to us. Unfortunately, the original service record of the Appellant, which, admittedly, was received from India after Partition was reported missing without any explanation as to the circumstances in which it disappeared. We have, therefore, to rely on the documents prepared and maintained in Pakistan, subsequent to the arrival of the appellant in this country and his absorption in the North Western Railway. These documents contained changes and mutilations, and it was, obviously, not possible for us to make any comparison with the original documents to determine the correctness or otherwise of the changes and mutilations. We had, therefors, to rely on other evidence to determine whether the changes were valid and legally binding. In this connection, we put the following specific questions to the learned counsel for the res pondents and the departmental representatives :‑

(i) Who made the changes in the descriptive, roll ?

(ii) Who ordered these changes ?

(iii) On what date did he order?

(iv) What was the basis of the order ?

(v) Was the appellant afforded an opportunity for contesting the changes effected in the record by the Department ?

We regretfully noted that neither the learned counsel for the respondents nor the departmental representatives could provide us with any answer to these very important questions. It is also painful for us to place on record that although, in view of the very cryptic and unhelpful metro, of objections filed on behalf of the respondents, which failed to throw much light on the facts of the case, the respondents, on whose behalf their learned counsel had argued at great length, were asked to give in writing the main points which they wanted us to consider while deciding the matter in dispute they failed to do so and we had to finalize our judgment without the benefit of such a note, whereas so far as the appellant is concerned, a brief resume of the points made out by the learned counsel was furnished on his behalf, as required by us. It would, thus, be seen that while the appellant's side not only pursued the case rignorously but also helped us wholeheartedly in our efforts to understand the facts of the case and the issues involved, we were unable to get the same degree of assistance from the side of the respondents.

5. A preliminary objection was raised by the department to the effect that, in view of the ruling of the Lahore High Court, in the case of Malik Ghulam Haider v. Province of Punjab (P L D 1981 Lah. 433 ) that the question as to the determination of the age of a person was outside the juris diction of the Tribunal and that it was for the Civil Court to determine this issue, the appeal was liable to dismissal as incompetent. We have considered this point and are of the view that the objection raised by the respondents cannot be sustained, for two very important reasons : One is that the point for determination before us is not whether the date of birth of the appellant is 1‑7‑1925 or 1‑7‑1921, but whether, in view of the seniority list published by the department and not replaced before the issuance of the retirement order, the department was justified in order ing his retirement, without amending the seniority list after examining the question of the date of birth from all possible angles and giving a proper hearing to the appellant. Secondly, it is observed that, before coming in appeal before us, the appellant had agitated the matter in the civil Court; where the respondents contested the suit on the ground the said Court had no jurisdiction in the mater. This ground was accepted by the civil Court and the suit returned to the appellant for presentation before the competent forum, namely, the Service Tribunal. Having opposed the suit, for determination of the correct date of birth by the Civil Court, on the ground of incompetence, it is no longer open to the respondents to plead before us that the proper forum for the Appellant is the civil Court and not the Service Tribunal. For these reasons, we reject the preliminary objection raised by the respondents and proceed to decide the appeal on merits.

From the documents produced before us by the parties, it was clearly established, as already observed above, that the original service record (including the descriptive roll completed by the appellant, in his own handwriting, at the time of his initial appointment in the East Indian Railway on 2‑11‑1944) had been either deliberately removed by somebody or otherwise lost by the department. As also observed earlier, no explana tion was forthcoming from the department's side as to how the original record disappeared and who was responsible for that. Since the department were supposed to preserve the documents and they are unable to provide any explanation for their disappearing, the onus of proving their contention. that the change in the descriptive roll of the date of birth (originally noted as 1‑7‑1925 to 2‑7‑1921, was correctly made by order of the competent authority and that this corrected date has to be treated as the date of birth of the appellant, lies squarely on the respondents. It is also for them to prove that the date of birth, noted as 2‑7‑1925, in the record of leave maintained by the Department, since the arrival of the appellant in Pakistan, is incorrect and should have been 2‑7‑1921. The Department have failed to produce any evidence whatsoever to establish that the original entry in the descriptive roll was wrong and that the entry made in, the leave record, which was never altered or corrected, should not be relied upon. So far as the appellant is concerned, he has not only produced a certified copy of the original certificate issued by the Board of High School and Intermediate Education, United Provinces, in respect of the High School Examination held in 1941, according to which the date of birth of the appellant, Muhammad Saeed Khan, who appeared in the examination with Roll No. 16090, was 1st July, 1925, he has also produced an attested copy of the relevant extract from the Gazette Notification pertaining to the result of the High School Examination held in 1941, which also shows the date of birth of the appellant as 1‑7‑1925. It was contended on behalf of the respondents that the documents produced by the appellant could not be relied upon. We do not attach much importance to this objection raised by the respondents, for the simple reason, that the record maintained by the respondents themselves shows that the original date of birth of the Appellant was 1‑7‑1925 ; that this date was subsequently changed or altered by somebody ; that, in one of these very documents (record of leave), it still continues as originally recorded (i. e. 2‑7‑1925) ; that, till as late as 11‑1‑1978, the appellant's date of birth was accepted as 2‑7‑1925 ; and that it was only on 5‑4‑1981, that he was informed that, according to the department, the date of his birth was 2‑7‑1921 and not 1‑7‑1925 (or 2‑7‑1925). It was entirely for the department to establish that the correct date of birth of the appellant was 1‑7‑1921 and not 1‑7‑1925, as claimed by the appellant or 2‑7‑1925, as mentioned in the seniority list issued by the Department itself. We, therefore, feel no reason for accepting the plea of the respondents that certified copies of the High School Examina tion Certificate and the extract from the Gazete Notification, should not be treated as genuine and should be rejected on some technical ground or the other.

7. Since the custody of the service record is the responsibility of the Department and the original documents have disappeared from their custody, without any explanation forthcoming from their side and, since the documents subsequently prepared have also been tampered with, again without any clue forthcoming from them as to how and why this has happened, it was entirely the responsibility of the department to prove that they were justified in treating the appellant's date of birth as other than what had been originally noted. This they completely failed to do. As against this, the Appellant produced certified true copies of documents purporting to confirm the correctness of the date of birth, as originally noted in the descriptive roll, which, prima facie, appear to be genuine. It was up to the department to disprove the authenticity of these certified true copies. Having failed to do so, it was not open to them to demand further proof of the authenticity of these certified true copies, as was done by them, during the course of arguments.

8. The point was also raised, on behalf of the respondents, that, while the date of birth shown in the High School Examination Certificate and the Gaze, to Notification was 1‑7‑1925, the date shown in the seniority list, relied upon by the Appellant, was 2‑7‑1925 and also in the leave account and this date was not challenged by the appellant at any stage, which goes to show that his claim that his date of birth was 1‑7‑1925 was inconsistent with his acceptance of 2‑7‑1925 as the date of birth, and that being so, he should be disbelieved and 2‑7‑1921, should be treated as the actual date of his birth. We are unable to agree with this argument, for the simple reason that the entry of 2‑7‑1925, as the date of the appellant's birth, in documents prepared and kept by the respondents, does not make the appellant responsible for this entry, not does it establish that the correct entry should have been 1‑7‑1921. Why the dale of birth was noted as 2‑7‑1925 in the leave account, and, subsequently in the seniority list, was entirely for the Department to explain. So far as the appellant is concerned, his stand is that the entry in the descriptive roll, made in his own writing, was 1‑7‑1925, and this being consistent with the date shown in the true copies of the High School Examination Certificate and the Gazette Notifica tion there should be no difficulty in treating this as the official date of birth, which did not call for a change at such a late stage as 5‑4‑1981. It was further argued, on behalf of the appellant, that, if the date of birth claimed by him to be the correct date, namely, 1‑7‑1925, was a concoction and that the date 2‑7‑1925, shown in the leave record is a mutilation of the original entry, namely, 2‑7‑1921, it would have been more understandable for the appellant to have fabricated copies of the High School Examination Certificate and the Gazette Notification showing the date of birth as 2‑7‑1925 and not i‑7‑1925. Since both the certificate and the Gazette Notification show the date of birth as t‑7‑1925, the presence of 2‑7‑1925 as the date in the leave account, kept in the custody of the respondents, is entirely for the respondents to explain and not for the appellant.

9. During the course of arguments, the respondents drew our atten tion to an inter‑office communication. in which it was stated that the date of birth of the appellant was 2‑7‑1921 and not 1‑7‑1925 and they wanted us to infer therefrom that, since the appellant had made no protest against this decision, he was debarred from raising objection now at this stage. This document, which was shown to us during the hearing but not filed, in spite of instructions given to this effect to the counsel for the respondents, cannot be treated as evidence of the fact that the appellant was aware of its contents and that the date shown therein had been accepted by him as correct, for the simple, reason, that no copy of this inter‑office communica tion has been given to the Appellant at the time it was issued or even subsequently. The date shown in this communication is, therefore, not binding on the appellant and he is not barred from agitating against it at this stage We, therefore, do not attach any importance to this argument also of the respondents.

10. In a nut shell, we are satisfied that, while the date of birth of the appellant shown in the seniority list, dated 11‑1‑1978, was not altered after proper revision according to rules, he could not be retired from service on superannuation before reaching the age of 60 according to the age shown in the said list.

11. In the light of the above discussions, we uphold the appeal and order that the appellant shall continue in service till the date of his superannuation to be determined on the basis of the original entry of his date of birth in the descriptive roll.

12. No order as to costs.

13. Parties to be inform.

MUHAMMAD IRSHAD KHAN (MEMBER) ‑In my humble opinion, the matter is to be viewed from another angle. The question of jurisdiction of the Service Tribunal in the matter of date of birth in service matters came up for consideration before the Lahore High Court in the case of Ghulam Haider v. Province of Punjab and it was laid down in para. 10 of the judg ment as under :‑

"At any rate, the question as to who has the power to decide about the age of a person would not fall within the jurisdiction of the Tribunal The Civil Court does have the power to decide it as it is not one of the terms or conditions as such The date of birth, in service matters acquires a significance, only to determine the ultimate date of retirement and the Tribunal shall be entitled to go into the matter only in accordance with the record. Consequently, if a petitioner has a decree about his date of birth in his favour and has also informed the Government about it, then and only then a decree has not shall be followed it will thus appear that the jurisdiction of the Tribunal starts after the decree and not before."

2. Respectfully following the above dictum I hold that the instant appeal is not maintainable for want of jurisdiction and this Tribunal can go into the matter only in accordance with the service record of the appellant. In the relevant service record of the appellant his date of birth is recorded as 2‑7‑1921. The record shows that the appellant was fully aware of it and in fact he made an application for change of his date of birth as far back as 22‑7‑1966 but the relevant authorities did not accede to his request presumably for the reason that, according to the depart ment, the appellant himself had signed the entry of his service roll showing his date of birth to be 2‑7‑1921. In any event, no step was taken by the appellant in this regard unless he received the order of his retirement in 1981. In the circumstances the civil Court is only the competent forum for the appellant to obtain a relief sought for by him. In fact, it was contended by the learned counsel for the respondent‑Department and was admitted by the learned counsel for the appellant that a suit filed by the appellant for determination of the date of birth is pending before the civil Court at Lahore. I consider it most appropriate that the matter may be adjudicated by that Court more so because the evidentiary value and genuineness of the documents relied upon and produced by the appellant can be better determined by the civil Court.

3. In view of the foregoing, I am of the view that the appeal deserves to be dismissed as incompetent:

Appeal dismissed.