1991 PLP 824 (MLD)

(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court shall abate on such establishment: Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal." The other relevant provisions are contained in sections 3(2) and 4 of the Service Tribunals Act, 1974 which read as under:- "3(2).- A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters."

4. Appeals to Tribunals.--(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal. Provided that: (a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973 (LXXI of 1973), or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; (b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; and (c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the Ist July, 1969. (2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred -- (a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale, or to lower stage in a time-scale, to a Tribunal referred to in subsection (3) of section 3; and (b) in any other case, to a Tribunal referred to in subsection (7) of that section. Explanation.

In this section, `departmental authority' means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants." The learned Additional Advocate-General submitted that the suit was only a technique adopted to hoodwink and postpone the date of retirement of the plaintiff. Therefore, the matter fell within the exclusive jurisdiction of the Punjab Service Tribunal.

11. On the other hand the learned counsel for the plaintiff argued that the plaintiff only wanted to get the date of birth changed and nothing more. A perusal of the plaint shows that the plaintiff has made the following prayer:-- "Under these circumstances it is respectfully prayed that a decree, declaring that the actual date of birth of the plaintiff is 17-12-1934 and not 6-7-1930, be passed in favour of the plaintiff and against the defendants. It is further prayed that by way of consequential relief, mandatory injunction be issued in favour of the plaintiff and against the defendants, thereby directing the defendant No.1 to make necessary correction in the plaintiffs certificate of Matriculation, and defendant No.2 to incorporate the date of birth of the plaintiff as 17-12-1934 instead of 6-7-1930 in all their relevant documents and records. It is further prayed that alongwith costs of the suit, any other relief, to which the humble plaintiff may be found entitled, be also granted to her:" In case the prayer pertaining to defendant No.2 is granted the net result would be that the date of retirement of the petitioner will be automatically postponed/changed from 6-7-1990 to 16-12-1994. This part of prayer, therefore, directly pertained to the terms and conditions of the plaintiff as civil servant. Now by this time law is absolutely clear on the point that the Court including this Court has no jurisdiction in respect of the terms and conditions of civil servants. Reference in this behalf can be made to Ghulam Haider v. Director of Education (supra). Relevant portion reads as under:-- "The same grounds are unged in support of the petition for leave to appeal from the order of the High Court. There are statutory rules relating to change of date of birth of a Government employee contained in the Punjab Financial Rules, Vol.

1. As the representation by the petitioner was made long after the prescribed period of two years, he had no legal right which the High Court could enforce by issuing a writ under Article 98." Reference can also be made to the case of Sarfraz Khan v. Federation of Pakistan 1986 S C M R 1950 the relevant portion of which reads as under:-- "

9. The learned Deputy Attorney-General also pointed out that the relief claimed in the plaint to the effect that the plaintiff be allowed to continue service up to 19th July, 1987 was completely outside the purview and jurisdiction of the learned trial Court and no such relief could have been granted. The learned counsel for the appellant was unable to meet this objection."

12. Now coming to the cause of action, the plaint has to be read as whole to find out the cause of action. It is clear from the perusal of the same that neither the plaintiff ever demanded anything nor solicited any order from the petitioner. The learned counsel submitted that after the decree she moved the petitioner for change of her date of birth. This also goes along way to show that there was no cause of action in favour of the plaintiff at the time of the institution of the suit. Before proceeding any further with, the matter it is worthwhile to refer to the provisions of Order VII, rule 11, C.P.C. The same reads as under:-- "

11. Rejection of plaint.-- The plaint shall be rejected in the following cases:-- (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law." Now when the present suit is considered in the light of the above provision that it is hit by clauses (a) and (b). It is clear from the plaint that no cause of action accrued in favour of the plaintiff to file the suit against the petitioner. The plaintiff only moved an application to respondent No. 2 for correction of her date of birth. That cannot give rise to cause of action against the petitioner also. The suit is also barred not only by law i.e., the Punjab Service Tribunals Act, 1974 but also Article 212 of the Constitution is a complete bar. Therefore, the plaint is liable to be rejected under Order VII, Rule 11, C.P.C. to the extent of the petitioner.

13. Now coming to respondent No.2, it is held that the suit was competent against the University and section 48-A is no bar. This matter stands concluded with, the judgment of the Hon'ble Supreme Court in C.R.S.LA. No.708 of 1988 wherein the decision of this 'Court in the case of University of Punjab v. Muhammad Aslam Bora (Supra) was upheld. The legal way for the plaintiff was to make an application to her department for change of date of birth and if the decision was unfavourable then after exhausting remedies available to her at the departmental level she should have filed an appeal before the Punjab Service Tribunal. It is made clear that no other forum is available to the civil servants because any such correction is bound to change the date of retirement, which is integral part of the terms and conditions of their service. The desire to hang on in service is so pressing in case of some of the civil servants that they adopt all sorts of factics for this purpose. This has to be discouraged.

14. The trial Court wrongly and illegally decided to take ex parte proceedings against the petitioner. This renders the ex parte decree illegal. Normally speaking the case should have been remanded to the learned trial Court for proceeding with the matter afresh but since it is concluded that the suit is barred by law and there is no cause of action in favour of the plaintiff against the petitioner, therefore, no useful purpose will be served by remanding the case to the trial Court. The provisions of Order VII, rule 11, C.P.C. are not exhaustive and in such matters the power should be exercised. Reference in this behalf can be made to Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others (PLD 1967 Dacca 190). The relevant portion reads as under:-- "The principles involved are two-fold: In the first place, it contemplates that a still born suit should be properly buried, at its inception, so that no further time is consumed on a fruitless litigation. Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that if permissible under law, he may found a properly constituted case. Order VII, rule 11 of the Code, as quoted above, enumerates certain categories under which the Court is called upon to reject a plaint, but, it is obvious that they are not exhaustive. It appears from the language of rule 11 of Order VII that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law."

15. The decree in the present case is nullity and the learned Additional Advocate-General argued that the petitioner stands retired with effect from 5th July, 1990. The department was, therefore, fully justified to ignore the decree. It is made clear that such a decree can furnish a piece of evidence for change of date but it is not binding. The authorities have to make their own determination and will be fully justified to ignore such adjudication by the Civil Courts.

16. The learned counsel for the plaintiff vehemently argued that it was proved to the hilt that the correct date of birth of his client is 17-12-1934 and not 6-10-1930. In this behalf he referred to the statement of Javed Anjum P.W.1 and submitted that the witness was not even cross-examined. Therefore, his statement will be deemed to have been accepted. Learned counsel in this behalf has referred to Muhammad Aslam v. Mst. Sardar Begum (supra). This is not relevant in view of the judgment proposed.

17. Now I take up the objection of the learned counsel for the plaintiff that the objection as to the jurisdiction and cause of action cannot be allowed to be argued. The objection is two-fold. It is submitted that these objections have not been urged, therefore, cannot be now allowed to be taken for the first time in revision in this Court. In the alternate it is submitted that since the learned counsel for the petitioner made a statement before the lower Appellate Court that he will press findings only on issues Nos.1, 2 and

5. Therefore, the remaining issues will be deemed to have been given up. The argument that the objections cannot be raised for the first time in civil revision is misconceived factually as well as legally. Factually speaking, the petitioner was not allowed an opportunity to defend itself. Therefore, there is no question of its pleading this legal ground. Legally speaking, these points are strictly questions of law and for that purpose only the plaint is to be referred. Therefore, the same can be raised for the first time in this Court. I am fortified by the view of the Hon'ble Supreme Court in the case M. Imam-ud-Din v. Thai Development Authority (PLD 1972 SC 123). The relevant portion reads as under:-- "It is, no doubt, true that parties to an arbitration agreement can also by consent modify an award, but this does not mean that they can waive the statutory requirements of the Limitation Act. There can be kind of estoppel against a statute, particularly where the question of limitation is involved, for section 3 of the Limitation Act clearly enjoins upon the Court that every suit, appeal or application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed `although limitation has not been set up as a defence'. The contention, therefore, that since the learned Advocate then appearing for the respondent-Authority had consented to the withdrawal of the application with permission to file a fresh application it amounted to an estoppel, has no force. The respondent Authority, even assuming that the learned Advocate then appearing for it had the necessary authority to do so, is not estopped by the consent of the learned counsel, so far as this question of law is concerned." The cases referred to by the learned counsel for the petitioner are of no avail to him as in those cases except Bodhan v. Bhundal Singh (supra) the legal questions were raised for the first time in the Supreme Court. I respectfully following the judgment of the Supreme Court in the case of M. Imam-ud-Din v. Thai Development Authority (supra) allow these points to be raised.

18. Now coming to the second aspect that the learned counsel for the petitioner only pressed issues Nos. 1, 2 and 5 and the rest of the points were given up, this argument is controverted by the petitioner by filing the affidavit of Muhammad Ajmal Khan, Assistant District Attorney, who argued the appeal before the lower Appellate Court. It is stated in the affidavit that he pressed all the points. This is not all. The perusal of the file shows that no statement to this effect was recorded by the learned Additional District Judge. It is vehemently argued that this observation is incorrect and mala ride. The object was to deprive the petitioner of strong points. It is not possible at this stage to decide the controversy without holding thorough inquiry. Suffice it to observe that it is the duty of the trial and lower Appellate Courts to record statement in this behalf. Otherwise, they expose themselves and invite criticism as to their conduct. The Appellate and Revisional Courts will be fully justified to ignore any such concession which is not backed by the statement of the learned counsel because possibility of giving undue benefit to a party by recording such observation cannot be ruled out.

19. The upshot of the above discussion is that the revision petition is accepted and the impugned judgments and decrees of the Courts below dated 1 -7-1990 and 9-5-1990 are hereby set aside with costs to the extent of the petitioner. The result is that the plaint is rejected under Order VII, Rule 11, C.P.C. to the extent of the petitioner. AA./G-400/L Revision accepted.