2000 PLP (C (PLC(CS))

(e) A Permanent Injunction restraining the defendants, their employees, servants, agents and all officials/functionaries, representatives and/or anybody whatsoever acting under them or for them or on their behalf from retiring the plaintiff from his service post on 1‑1‑1991 or on any date before 10‑11‑1994, which is the only legal and lawful date of his retirement. (f) All costs of the suit and (g) Any other relief deem fit and proper. The above suit was contested by the respondent but the learned Trial Court vide judgment 23‑12‑1993 and decree dated 4‑1‑1934 decreed the suit of the plaintiff to the following effect:‑‑ (a) That correct date of birth of the plaintiff is according to the Matriculation Certificate i.e. 10‑11‑1934. (b) All orders, Notifications, Memorandums, Reference etc. which have been issued in disregard to the date of birth as per Matric Certificate are illegal and of no consequence. (c) To reinstate the plaintiff with retrospective effect with all accrued benefits. " Being aggrieved of the aforesaid judgment and decree, the respondent filed Civil Appeal No. 20 of 1994 which was allowed by the learned VIIth Additional District Judge Karachi East, Karachi vide impugned Judgment dated 25‑5‑1995 whereby aforesaid judgment and decree passed by the learned Trial Court was set aside. Learned Advocate for the applicant submitted that in order to prove his case the applicant examined himself in the matter and also produced other witnesses, and applicant in this deposition stated that at the time of his employment with the respondent he had submitted an attested copy of his matriculation certificate; wherein his date of birth is shown as 6th Dai 1344 "Fasli", which date corresponds to 10th November, 1934 as per certificate issued by the Chairman Bahadur Yar Jung Academy, Karachi and has been produced as Exh. P/2. It is also submitted that in order to obtain passport the applicant had submitted an application dated 23‑8‑1962, wherein his date of birth has been shown as 2‑11‑1934. As to the difference of ages in different documents the applicant s explanation is non availability of the fromula of conversion of "Fasli" calander to Gregorian Calander untill March 1990 when in the year 1990 he had obtained a certificate (Exh.P/5) from Bahadur Yar Jung Academy, Karachi, confirming that the 6th Dai 1344 corresponded to 10th November 1934. His two other witnesses namely Mir Makhdoom Ali son of Mir Muhammad Ali and Syed Yousuf Ahmad son of Syed Muhammad Usman, who were also born and educated at Hyderabad Daccan have stated that their Educational Certificates also bear the dates per "Fasli Calander" which was in vogue in Hyderabad Daccan. It is the case of applicant that evidence, adduced by him could not be shattered during cross-examination. It is also the case of .the applicant that on behalf of respondent its Secretary, Mr. S. Aziz Ahmad son of Dr. Hafiz Ahmad was examined and in his cross‑examination he stated that the original file containing particulars of applicant has been lost in the office of respondent, hence it is impossible to produce the same. In his cross‑examination he also admitted that the date of birth is calculated on the basis of the matriculation certificate and in the case of applicant his date of birth is 6th Dai 1344 but he was unable to explain the difference between "Fasli Calander" and "Christian Calander". He did not dispute other evidence of applicant. He stated that no evidence has been led to show that the date of birth of applicant was 2‑1‑1931 and that it is not 10th November, 1934. It has been contended by the learned Advocate for the applicant that Exhs.P‑2, P‑5 and P‑6 i.e. Matriculation Certificate, Certificate of Bahadur Yar Jung Academy and application form for passport of applicant have gone unchallenged and also that for about 30 years the question of correct age of applicant was not disputed or raised by the respondent. It has further been submitted that according to Karachi Development Authority Employees Service Regulations, 1973 all employees at the time of appointment have to declare the date of his birth with confirmatory documentary evidence, such as Matriculation Certificate, a School Leaving Certificate, or Municipal Birth Certificate. In the absence of any such document his age shall be determined from the authorised Medical Officer. It is submitted by the learned Advocate for the applicant that the respondent never required the applicant to submit himself for medical examination for determining his age by some authorised Medical Officer. The learned Advocate for the applicant has also contended that the Lower Appellate Court has erred in considering the age of brother applicant who was not examined in the matter. It is also submitted that though the learned Trial Court had given detailed judgment discussing the issues framed in the matter but learned Lower Appellate Court has passed a cursory judgment without discussing the issues in the matter in their appropriate perspective. In support of his submissions the learned Advocate for the applicant has placed reliance on the reported cases of:‑‑

(1) Ch. Muhammad Lateef v University of Punjab 1997 CLC 262 and (2) Mst. Aisha v Mst. Fatima and others, 1991 CLC 1499. Case reported as 1997 CLC 262 is also with regard to the determination of age of the petitioner of the said case and in the said judgment it has been held that when the. petitioner adduces sufficient evidence and explains his date of birth and there is nothing in rebuttal then in such event the claim of the petitioner with regard to his date of birth has to be accepted as true and he entitles himself for the relief claimed. Case reported as 1991 CLC 1499 lays down that the judgment of the 1st Appellate Court has to set out points for determination, record the reasons for such determination and that it cannot run away from its onerous duty of recording the findings of fact and discussing the evidence. In the circumstances of the case and as discussed hereinabove I am of the opinion that the aforesaid two judgments squarely apply to the case of the applicant. On behalf of the respondents their learned Advocate, Mr. Muhammad Ikram Siddiqui, simply stated that he supports the impugned judgment of the learned lower Appellate Court but failed to show as to how the age of brother of applicant was considered by the learned lower appellate Court specially when he was not examined in the matter as a witness either of applicant or that of respondent. He also expressed his ignorance as to how the learned lower Appellate Court travelled beyond the record of the case in passing the impugned judgment. He was unable to cite any judgment or law in support of the case of the respondent in the matter. I am afraid to say that the impugned judgment of the learned lower Appellate Court is devoid of any reasoning and ' is based on mere assumptions. For the foregoing the impugned judgment dated 29‑5‑1996 passed by the learned lower Appellate Court is set aside and I uphold the judgment dated 23‑12‑1997 and decree dated 4‑1‑1994 passed by the learned IVth Senior Civil Judge East, Karachi and as a result this Revision is allowed; but with no order as to costs. H.B.T./F‑55/K Revision allowed.