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Appeal No. 398(R)/85 of 1985, heard on 14th July, 1986.

‑‑‑S. 4 & 5‑‑Date of birth‑‑Employee, a discharged Military Serviceman, at verge of retirement after putting in 33 years service‑‑Date of birth of such employee was recorded as per Matric Certificate at time of recruitment but same was ordered to be changed to one recorded in Military Discharge Certificate which brought his date of superannuation nearer‑‑Appellant got no advantage of his previous service and he was not given any pension /gratuity at time of his discharge from Army nor his service counted towards his pension in civil service‑‑Date of birth allowed to be taken as recorded in Matric Certificate presented at time of his recruitment in establishment.

‑‑‑Rules‑‑All Rules and Regulations primarily act as a guide in decision making process‑‑Each case is to be analysed in light of its peculiar circumstances.

Appellant in person.

Muhammad Amir Akbar Khan for the State.

Date of hearing: 14th July, 1986.

‑‑The appellant Muhammad Anwar Malik, Principal Foreman PL. No. 92196, Technical Executive Coord. Pakistan Ordnance Factories, has appealed against the impugned orders vide C.A.0's letter No. 4119/4866/OF‑I/B, dated 19‑8‑1985 according to which his date of birth recorded at the time of his recruitment in P.O.Fs on the authority of the Matriculation Certificate i.e.. 28‑11‑1927 has been amended to read as 26‑9‑1926 as per his Military Discharge Certificate.

2. The facts of the case are that the appellant passed his Matric examination in 1944 in which his date of birth was recorded as 28‑11‑1927 and joined the Army on 26‑9‑1945 as Hav./Clk. He was discharged from the Pakistan Army, on 4‑4‑1951. The appellant was enrolled in P.O.Fs. on 12‑2‑1952 where he is still serving. The appellant in person submitted that he produced his Military Discharge Certificate at the time of recruitment and his date of birth was recorded as per Matric Certificate i.e. 28‑11‑1927 which was accepted by the competent authority since his recruitment i.e. in 1952. No objection was ever raised by anyone on the recording of his date of birth as mentioned above. In 1965 the Army Instructions Pakistan No. 41/65 was issued to scrutinise the cases of ex‑servicemen but no action was taken on that till late. The appellant, therefore, was fully satisfied that his date of birth as recorded at the time of recruitment in P.O.Fs had been accepted finally.

3. However, in 1984 after 33 years service in P.O.Fs, the appellant was informed by the Chief Administrative Officer, P.O.Fs to produce his Military Discharge Certificate once again in which his age had been declared as 24 years at the time of entertainment in the Army. The appellant was advised to get the correct date of birth endorsed by the concerned Record Officer. In the absence of any column for date of birth in the Military Discharge Certificate, the appellant through an application, dated 22‑2‑1985 got his correct age i.e. 23 years, 4 months and 7 days as, on 4‑4‑1951 recorded in the Military Discharge Certificate endorsed, vide Ordnance Record, Malir Cantt. letter, dated 7‑3‑1985. The C.A.O., however, did not accept this amended date of birth and informed instead that his date of birth had been finally changed to 26‑9‑1926 as against the initially recorded date i.e. 28‑11‑1927. According to the new date of birth, the appellant is going to retire on attaining the age of superannuation with effect from 25‑9‑1986 instead of about a year and two months later according to his original date of birth as per Matric Certificate i.e. 28‑11‑1927. The appellant appealed against this order of C.A.O. P.O.Fs to the Chairman, P.O.Fs Board who rejected the same vide his letter, dated 2‑12‑1985. Hence this appeal before the Tribunal.

4. The appellant in person contended that at the time of recruitment in Army in 1945, he was not informed the method of calculation of age although he produced the Matric Certificate. Most probably his age at the time of recruitment was entered in round figures. The appellant did not bother about this method of calculating his age at that time because by all known standards the date of birth recorded in the Matric Certificate always is considered correct and accepted by the competent authority. It was also argued that during war since most of the people recruited were either uneducated or under Matric, the recording authority may have devised a method to record an approximate age. It must be a lapse on the part of the recording authority or their laziness to get into the details that they entered his approximate age without informing the appellant. Otherwise, it does not stand to reason by any stretch of imagination that in the presence of a genuine Matric Certificate such a method should be adopted. It will, therefore, in the fitness of things and in the interest of fairplay and justice that the date of birth of the appellant should be considered the one given in the Matric Certificate and not as recorded approximately in the Military Discharge Certificate. Also, because the appellant did not get any benefit of his previous military service either in terms of pension /gratuity at the time of his retirement from the Army or to have it counted towards his pension at the end of his service in P.O.Fs, it is imperative that the appellant be given the benefit of serving according to his date of birth entered in his Matric Certificate and not as contended at a rather belated stage by the respondent‑department.

5. The learned counsel for the respondent‑department argued that according to para. 4 of the A.I.P. 41/65 which _is based on Chapter 6, paras. 116 and 117 of G.F.R. the date of birth of the ex‑servicemen is to be calculated as their declared age at the time of recruitment ill the Army and entered in the Military Discharge Certificate. According to para. 5 of the A.I.P. 41/65, no changes in the declared age as entered in the service documents of the person concerned at the time of his entertainment can be altered to the advantage of the individual without the previous orders of the competent authority which in this case, as given in para. 5(c) of A.I.P. 41/65 is Director concerned in consultation with D.C.P. in the case of non‑gazetted personnel. Since the amendment in his declared age which the appellant had it incorporated through the record office of the Ordnance, Malir Cantt. was not valid, therefore, his age as entered in the Military Discharge Certificate was considered correct. The concerned Record Officer was not authorised to make this amendment. In view of this, it is not possible at this stage that his age could be considered according to his Matric Certificate.

6. It was further contended that the discrepancy in the case of the appellant was discovered only two years ago and immediate action was taken to inform him about the circumstances of the case. Since the existing rules do not go in his favour, it was not possible to accede to his request and the case was rejected by the competent authority. His date of retirement on attaining the age of superannuation according to his recorded age is 25‑9‑1986. Because of shortage of time, he could also not be given option to proceed on L . P . R . or make request for encashment at the appropriate time. It was, therefore, contended that. according to the existing rules, the appellant's case could not be treated except the way it had been decided. He would stand‑ retired, on 25‑9‑1986. The appellant has about 33 years of service and he would get full pensionary benefits under the rules.

7. We have given this matter a very careful consideration but we cannot escape the conclusion that the circumstances as made out by the appellant are very genuine under which his age was recorded as declared age rather than according to his Matric Certificate. We have good reasons to believe that at the time of recruitment particularly recruitment in the Army both during war and peace as stated above, it is mostly the uneducated people who come without any school leaving certificate and are generally made to declare their ages. It will be quite fair to agree with the appellant's contention that even when he had presented his Matric Certificate at the time of recruitment the clerical staff might have, as a routine, entered his declared age in the documents. Moreover, the appellant matriculated quite sometime before his recruitment and not after his joining the Army. It is only in the case of those who would have passed their Matric examination after the recruitment that they could have manipulated their date of birth. In the case of the appellant his date of birth stands recorded in his Matric Certificate without any such manipulation. It may be possible, however, that the Matric Certificate may not have been straightaway available for some reason but the date of birth recorded in the Matric Certificate could not be got changed. Since the appellant has got no advantage of his previous service i.e. he has not been given any pension/ gratuity at the time of his discharge from the Army nor was his service counted towards his pension in the civil, we are of the opinion that the appellant deserves a fair deal. In his particular case, in the interest of fairplay and justice, we strongly feel that he should be allowed to serve according to his date of birth recorded in the Matric Certificate which was presented at the time of recruitment in the P.O.Fs and accepted ever‑since. It is a pity that the respondent department took almost 20 years to dig out his case and that too at the nick of time when he was due to proceed on retirement.

8. All rules and regulations primarily act as a guide in the decision' making process. Each case should be analysed in the light of its peculiar, circumstances. Therefore, in exercise of the powers conferred on the Tribunal under section 5(1) of the Service Tribunals Act, 1973, we accept his date of birth as entered as per his Matric Certificate presented at the time of his recruitment in the P.O.Fs as a special case and it is not to be quoted for universal application. The appellant should resultantly retire on attaining the age of superannuation i.e. on 27‑11‑1987 instead of 25‑9‑1986. As per existing rules, the appellant should also be asked to exercise his option to request or otherwise for encashment of six months' salary in lieu of L.P.R., if he so desires. Although he has not particularly made this request in his prayer for this relief, we waive the condition of making such a request 15 months prior to retirement which otherwise in this case may not be available at the time of announcement of this judgment.

9. The appeal is accepted to the extent indicated above and order accordingly.

10. No order as to costs.

M. Y. H.

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