ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI.
C. P .No. D-1064 of
2014
_______________________________________________________________
Dated Order
with signature of Judge.
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1.
For order on CMA
No.4930/14 (u/o 39)
2.
For Katcha-Peshi.
3.
For hearing on
CMA No.4994/14 (Stay)
(C/A filed as flagged)
19th May, 2014
Mr. S. Ghulam Shabbir
Shah, Advocate for the Petitioner.
Mr. Abdul Jalil Zubedi, A.A.G. along with Qazi Shahid Pervez,
Secretary Works & Services Department, Government of Sindh,
Karachi.
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Petitioner has challenged a
notification dated 28.02.2014, whereby he was intimated that he would retire
from government service w.e.f. 03.03.2014.
Learned counsel for the petitioner
argued that at the time of entering into services a wrong date of birth was
mentioned, in fact date of birth of the petitioner is 12.08.1956 and not as
04.03.1954. He has also attached a letter dated 17.04.2012, according to which
he approached to the Secretary Services, General Administration &
Coordination Department, Government of Sindh to
correct the date of birth as 12.08.1956. Learned counsel for the petitioner
also pointed out annexure ‘E’, which is the birth certificate
issued by NADRA on 28.02.2014, in which the date of birth of the petitioner is
mentioned as 12.08.1956. Learned counsel further argued that after issuing this
birth certificate by NADRA, petitioner approached the respondents to correct
the date of birth in their official record. However, it is admitted by the
learned counsel for the petitioner that in earlier CNIC the date of birth of
the petitioner was 04.03.1954. To a question raised by this Court as to how
this petition is maintainable in view of the bar contained under Article 212 of
the Constitution of the Islamic Republic of Pakistan, 1973. Learned counsel for
the petitioner argued that this petition is maintainable and this Court can
take a cognizance regarding the wrong date mentioned in the official record in
the writ jurisdiction.
Learned A.A.G. pointed out a
document attached with the comments i.e., Career Enhancement Programme, for which each employee was required to fill in
his particulars including date of birth. This document was submitted by the
petitioner under his own signature and in this document, petitioner has
mentioned his date of birth as 04.03.1954. Learned A.A.G. further argued that
on the basis of the same date of birth and seniority, the petitioner was given
promotion and his date of birth is same in his previous A.C.Rs. They have also
pointed out the Rule 12-A of the Sindh Civil Servants
(Appointment, Promotion and Transfer) Rules, 1974, in which it is provided that
the date of birth once recorded by a civil servant at the time of joining
Government service shall be final and no alteration thereafter shall be
permissible. Learned A.A.G. has also pointed out the order dated 08.05.2014
passed by the Honourable Supreme Court of Pakistan in
Civil Appeal No.263-K of 2013, in which the similar controversy was dilated
upon and Rule 171 of the Sindh Civil Services Rules,
was discussed which pertains to the service book. In that case also the
petition was dismissed by the High Court and thereafter appellant in that case
approached to the Services Tribunal and when the order of the Services Tribunal
was assailed before the apex Court the judgment of the Services Tribunal was set-aside.
Chapter – II of the Sindh Civil Servants Act, 1973 relates to the terms and
conditions of the services of the civil servants and section 13 pertains to the
retirement from services. There is no cavil to this proposition that the
retirement of the civil servant is one of the terms and conditions of the
service of a civil servant and since the issue in this petition relates to the
terms and conditions of the service, the appropriate remedy is to invoke the
jurisdiction of Services Tribunal and the petition is barred under Article 212
of the Constitution.
In view of the above, this petition
is dismissed in limini. Interim orders area
also recalled/vacated.
Judge
Judge