KHALIL AHMAD SIDDIQUI vs PAKISTAN, through Secretary Interior, Islamabad

' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been directed against the judgment dated 11- 12-2002 passed by a learned Single Judge of Peshawar High Court, Peshawar, in a Constitution petition wherein petitioner had sought a direction to the respondents for rectification of his date of birth in the service record.

2. The relevant facts for disposal of this petition in the background are that the petitioner after joining customs department in the year 1965, moved successive applications for correction of his date of birth in his service record and also sought grant of No Objection Certificate for visiting his native place, Bajnore, in India to bring his birth certificate in support of the fact that his correct date of birth is 19-12-1944 and not 19-12-194r as recorded in his service record and thus asserted that his age of superannuation was to be necessarily determined after rectification of his date of birth. The respondents contested the writ petition firstly on the ground that the petitioner without taking any step for correction of his date of birth given in his Secondary School Certificate, which he himself supplied to the Secondary Board, he would be estopped to dispute the same at the end of his service career and secondly, the date of birth provided by him at the time of joining of service could not be subsequently altered in view of rule 12-A inserted in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 by virtue of notification dated 31-7-2000. It was further urged before the High Court that the question regarding correction of date of birth would relate to terms and conditions of service falling within the exclusive jurisdiction of the Service Tribunal and the High Court in exercise of its Constitutional jurisdiction could not interfere and adjudicate upon the matter. The learned counsel for the petitioner has contended before us that provisions of rule 12-A, ibid having no retrospective effect, would not be applicable to the case of petitioner and further representation of the petitioner for correction of his date of birth was rejected without providing him an opportunity of producing the birth certificate from his native place in India and in that he was condemned unheard. The provisions of rules 12-A of the ibid Rules, provide as under:- "12-A. 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."

3. 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 Tarab 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 a 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 substances is accordingly, dismissed.

Leave is refused.