2013 PLP (C (PLC(CS))

LAL JAN KHAN KHATTAK J.

This revision petition is directed against the judgment and decree dated 28-2-2013 of the learned District Judge Tank whereby appeal of the petitioners, against the judgment and decree dated 28-11-2012 of the learned Senior Civil Judge Tank, was dismissed.

2. Relevant facts of the case are that the respondent, Deputy Superintendent of Police, instituted a suit for mandatory injunction against the petitioners for correction of his date of birth in their official record. According to averments of the plaint actual date of birth of the respondent-plaintiff is 8-10-1955 which is correctly recorded in his secondary school certificate as well as in his service book but in the seniority list prepared by the department his date of birth has wrongly been recorded as 8-10-1954.

3. Petitioners-defendants contested the suit by filing their written statement pleading therein that date of birth of the respondent as 8-10-1954 has rightly been recorded in the record of department. They also raised preliminary objection as to the assumption of jurisdiction by the Court to entertain the suit. The learned trial court framed as many as 7 issues including the issue of jurisdiction. Parties to the suit produced evidence in support of their respective claims whereafter vide judgment dated 28-11-2012 suit of the respondent was decreed by the learned trial court. The petitioners filed appeal against such decree but their appeal was dismissed vide judgment and decree dated 28-2-2013 by the learned appellate court. Both the judgments and decrees of the courts below have now been assailed by the petitioners through the instant civil revision petition.

4. Learned Deputy Advocate-General contended that both the judgments and decrees of the courts below are liable to be set aside as by passing the impugned judgments and decrees the two courts below have assumed a jurisdiction which was not vested in them by law. According to the learned Deputy Advocate-General the issue brought by the respondent was within the exclusive jurisdiction of Service Tribunal as it pertained to the terms and condition of service.

5. As against the above, learned counsel for the respondent contended that the courts below were very much competent to adjudicate upon the issue before them as the respondent's only grievance was correction of seniority list wherein his date of birth was wrongly recorded. Learned counsel contended with vehemence that the respondent did not want any change in his date of birth which has correctly been recorded in his secondary school certificate and also in his service book but he only seeks correction of seniority list which contains wrong entry qua his date of birth.

6. I have heard learned counsel for the parties and perused the record of the case with their valuable assistance.

7. The pivotal point in this civil revision petition is whether a civil court can pass a decree directing a government department to correct date of birth of a civil servant in his seniority list or it is the domain of a tribunal established for this purpose. According to Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, administrative Courts and Tribunals have been established having exclusive jurisdiction in respect of the matters relating to the terms and conditions of persons who are in the service of Pakistan. Article 212(2) of the Constitution commands that no court or tribunal shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such court or tribunal extends. Accordingly to deal with the matters relating to the terms and conditions of service of civil servants, Khyber Pakhtunkhwa Service Tribunal Act, 1974 was enforced. In pursuance of the Service Tribunal Act ibid, the provincial government established a service tribunal to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of a civil servant. Section 3(2) of the Act ibid lays down that "Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servant".

8. Now adverting to the question whether correction of a date of birth in a seniority list is or is not a term and condition of service. According to Chapter-II of Khyber Pakhtunkhwa Civil Servant Act, 1973, the following are the terms and conditions of service, (1) tenure of office of civil servant, (2) appointment, (3) probation, (4) confirmation, (5) seniority, (6) promotion, (7) posting and transfer, (8) termination of service, (9) retirement, (10) disciplinary action, (11) pay, pension and gratuity.

9. Section 8 of the Act ibid lays down that; "For proper administration of a service, cadre or [post], the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or [post] to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or [post] as the case may be". (Emphasis supplied)

10. The very beginning of the above section shows that not only for the proper administration of service a seniority list is prepared but in the entire career of a civil servant his seniority plays a very important role as it is because of seniority position that a civil servant is promoted to the next higher grade, he is selected for advance courses on his being senior most in the department and lastly he is retired from service keeping in view his seniority position.

11. Reasons and findings of the two courts below that they had the jurisdiction to adjudicate upon the issue as the respondent is not seeking any correction in his date of birth but only seeks correction of seniority list showing his correct date of birth, are neither plausible, convincing or legal as the ensuing effect of the desired correction would not only be an extension in the service of the petitioner in his department but it will also have an effect on his pay and pension and will also lead to deprive other civil servants of their rights of promotion which are matters relating to the terms and conditions of service falling within the jurisdiction of service tribunal.

12. Both the courts below have fallen in error by assuming a jurisdiction to entertain and adjudicate upon the case of the respondent as they were not vested by law to assume such jurisdiction and the petitioners have rightly assailed such judgments and decrees in this revision petition. For the above discussion and reasons, I accept this civil revision petition and set aside both the judgments and decrees impugned through this petition and return the plaint to respondent for its presentation to the proper forum for the redressal of his grievance. JJK/425/P Revision accepted.