1999 PLP (C (PLC(CS))

4. I have heard the learned counsel for the parties and perused the record. It was vehemently contended by Mr. M. Tabassum Aftab Alvi, the learned counsel appearing on behalf of Sardar Muhammad Latif Khan and others, that the judgment of Supreme Court dated 10‑10‑1994, was passed on an appeal filed by respondent Ch. Muhammad Latif and the observations made therein by the Supreme Court have nothing to do with the present petitions. According to the learned counsel the previous judgment of the Supreme Court was a judgment in personal as the petitioners were not party of the said judgment. The learned counsel submitted that the High Court committed an error by observing that since the dispute relates to the terms and conditions of service therefore the same was beyond the jurisdictional competence of the High Court. The learned counsel for the petitioners contended that the writ petitions filed by them were writ of quo warranto for issuing directions against the answering respondent that after 28‑4‑1996, the age of superannuation of respondent, under what authority of law he was holding the post of Secretary, Services and General Administration. The learned counsel also pressed into service the submission that in a writ of quo waranto mere delay is not final as occupation of the post of Secretary after 28‑4‑1996, by the respondent tantamounts to a continuous wrong.

5. The learned counsel in support of his contentions relied on reported cases titled Mst. Surayya Naseem v. District Health Officer, Sheikhupura and 2 others (1983 PLC (C.S.) 277), Prof. Zulfiqar Ali Shah v. Secretary to Government of Punjab, Education Department, Lahore and 2 others (1986 PLC (C.S.) 274), Raja Muhammad Sadiq v. Principal, Comprehensive High School, Dhok Kashmirian, Rawalpindi (1987 PLC (C.S.) 894), Ghulam Jallani v. Azad Government of the State of Jammu and Kashmir and 4 others (1993 PLC (C.S.) 71), Fazal‑ur‑Rehman Abbasi v. Azad Government of the State of Jammu and Kashmir (1993 PLC (C.S.) 663), Messrs Imam and Imam v. The Karachi Municipal Corporation, Karachi (1981 CLC 744), Azad Jammu and Kashmir Government and another v. Syed Zaman Ali Shah and 3 others (PLD 1991 SC (AJ&K) 57) and Azad Government and others v. Sahibzada Ishaque Zafar and others 1994 MLD 2382.

6. Sardar Rafique Mahmood Khan, the learned counsel for Sardar Muhammad Khurshid Khan, supported the contentions raised by Mr. M. Tabassum Aftab Alvi and submitted that in Sahibzada Ishaque Zafar's case, referred to above, it was held that mere delay is not fatal in filing a writ of quo warranto.

7. Mr. Ghulam Mustafa Mughal, the learned counsel for answering respondent, fully defended the judgment passed by the High Court and submitted that the High Court committed no error in dismissing the writ petitions filed by the petitioners. The learned counsel submitted that in the writ petitions the dispute related to terms and conditions of service which was exclusively within the jurisdiction of Service Tribunal on account of bar provided by section 47 of the Interim Constitution Act, 1974, (hereinafter to be referred as the Constitution). According to the learned counsel the High Court had to issue a declaration as to whether the age of the answering respondent was correct in accordance with the Matriculation Certificate or that which entered in the service book or which was later on determined by the Government through a notification. 'These matters purely relate to the determination of the age of the civil servant for the purpose of his retirement from service as such the judgment of the High Court suffered from no such infirmity or illegality as was pointed out by the learned counsel for the petitioners. The learned counsel also submitted that the writ petitions filed by the petitioners were hit by the principle of laches as the same were filed after about two and a half years without furnishing any reasonable explanation for the delay. The mere delay itself may not be fatal for dismissing the writ of quo warranto, however, when the same is coupled with malice or motivation or personal grudge, the laches become important and the party against whom the laches are alleged has to explain the same satisfactorily. The learned counsel in support of his contentions relied on a reported case titled Syed Manzoor Hussain Gilani v. Sain Mullah, Advocate and 2 others (PLD 1993 SC (AJK) 12) and an unreported case titled Raja Bashir Ahmed Khan v. Azad Jammu and Kashmir Council and others (Civil Appeal No. 40 of 1997, decided on 20‑1‑1998 by this Court).

8. After hearing the respective contentions of the learned counsel for the parties and perusing the record including the impugned judgment, it may be stated that the answering respondent had filed a previous petition in the High Court for a writ of prohibition restraining the Government from withdrawing a notification dated 7‑2‑1994, whereby his date of birth was fixed as 28‑4‑1941, which was dismissed by the High Court. On appeal before the Supreme Court against the above order, the Supreme Court was pleased to accept the appeal and make the following observations: "In our view the dispute raised in the writ petition related clearly to the terms and conditions of service and the writ petition was not maintainable. According to the scheme of the Azad Jammu and Kashmir Civil Servants Act of 1976, retirement from service is a part of terms and conditions of civil servants. Under clause (iii) of section 12 a civil servant who is not retired on an earlier date in exercise of powers under sub‑clauses (i) and (ii) of the same section, stands automatically retired on the completion of sixtieth year of his age. The dispute raised by the appellant in the writ petition was about the date on which he was to complete sixtieth year of his age. It clearly follows that the dispute related to the date on which the appellant has to retire. Thus the dispute essentially relates to terms and conditions of service. In Azad Jammu and Kashmir a Service Tribunal stands duly constituted to deal with the service matters. It is provided in section 47 of the Azad Jammu and Kashmir Interim Constitution Act that when a Service Tribunal is established no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends. The prayer made by the present appellant was that:‑‑ "It is, therefore; prayed that a writ of prohibition as envisaged in section 44 of the Interim Constitution Act, 1974, may kindly be issued against the respondents by issuing a prohibitory direction not to withdraw the notification dated 7‑2‑1994. Any other relief admissible under taw may also be granted.' It clearly amounted to seeking a declaration about the date of retirement of the appellant. Since retirement is one of the terms and conditions of service the High Court had no jurisdiction to entertain such a prayer. This aspect of the matter does not find any mention in the judgment of the High Court. The learned Advocate‑General; also did not raise this point. However, since it is a question of jurisdiction we took suo motu notice of it and asked the learned counsel for the parties to assist us in this regard. After hearing the learned counsel we have formed the view which has been recorded above. Since the judgment of the High Court is without jurisdiction it is made clear that views expressed in it shall not be brought into consideration at any subsequent stage of the dispute about the correct age of the appellant, if such dispute continues. In light of the foregoing we accept the appeal and set aside the order passed by the High Court. Since the appellant himself approached the High Court, he is not entitled to costs of the same."

9. From the above observations it becomes clear that it was categorically observed by this Court that the dispute raised by the appellant (Muhammad Latif) wash about the date on which he was to complete his sixtieth year of age. It clearly follows that they dispute relates to the date on which the appellant has to retire. Thus; the dispute essentially relates to terms and conditions of service. It was also observed in the judgment of Supreme Court that it is made clear that views expresses in the judgment shall not be brought into consideration at any subsequent stage of the dispute about the correct age of the appellant if such dispute continues.

10. I am unable to agree with the proposition propounded by Mr. M. Tabassum Aftab Alvi, the learned counsel for the petitioners, that the judgment passed by the Supreme Court was a judgment in personam. The Supreme Court has positively observed that the dispute which relates to e retirement of a civil servant falls within the terms and conditions of a civil servant and the same is within the exclusive jurisdiction of the Service Tribunal. Thus, the jurisdiction of High Court stands ousted. Not only the High Court is bound by the judgment of the Supreme Court but I, as a Single Judge, am also bound by the dictum laid down by the Division Bench of the apex Court. In my view if the observations recorded by the apex Court are over‑looked or bypassed that will amount to violation of the Constitution and the Supreme Court Rules

11. In a case cited by Mr. M. Tabassum Aftab Alvi titled Mst. Surayya Naseem v. District Health Officer, Sheikhupura and 2 others (1983 PLC (C.S.) 277), it was observed that "medical certificate based on opinion cannot be given preference over entry in school leaving certificate". In another case titled Prof. Zulfiqar Ali Shah v. Secretary to Government of Punjab, Education Department, Lahore and 2 others (1986 PLC (C.S.) 274), it was observed that "date of birth as recorded in Army service book in circumstances had rightly not been relied as against that in Matriculation certificate in absence of any additional evidence in form of birth certificate, primary school certificate or medical certificate". In another case titled Raja Muhammad Sadiq v. Principal, Comprehensive High School, Dhok Kashmirian. Rawalpindi (1987 PLC (C.S.) 894), it was observed that "entrry of date of birth in service book allegedly tampered with wos unreliable and order passed by competent Authority was upheld". Similarly in case titled Ghulam Jallani v. Azad Government of the State of Jammu and Kashmir and 4 others (1993 PLC (C.S.) 71), it was observed in the following manner:‑‑ "We quite agree with this argument that an entry of date of birth on the first page of 'Ahmalnama' which is duly signed by the concerned civil servant and his immediate officer supplies conclusive proof of date of birth of the civil servant and change of that date at the retirement stage is absolutely not warranted by any rule of law, provided the entries on the first page of service book are not doubtful and they are made on the basis of cogent evidence." In another case reported as Azad Jammu and Kashmir Government and another v. Syed Zaman Ali Shah and 3 others (PLD 1991 SC (AJ&K) 57), it was observed at page 61 of the report in a following manner:‑‑ "It is apparent from the portions of the judgment as reproduced above that the High Court reached a definite conclusion that the order impugned was an order of promotion. We have already seen that promotion is one of the terms and conditions of service and is in the exclusive jurisdiction of the Service Tribunal. This leads us to the conclusion that the High Court has exercised jurisdiction which is vested in the Service Tribunal which means that there is complete ouster of jurisdiction of the High Court in this matter."

12. The case‑law cited by the learned counsel for the petitioners shows that in all the above referred cases the question of determination of age for the purpose of retirement was resolved by the Service Tribunal; in some cases on the basis of entry in the school certificate and in some cases on the basis of entry in the service book. This also lends support to the proposition that the matter of determination of age for the purpose of retirement of a civil servant is one of the terms and conditions of service and as such the jurisdiction of High Court is totally ousted.

13. Without adverting to the merits of the case and irrespective of the question of ]aches in writ of quo warranto it may be pointed out that in the present case the material questions before the High Court were whether the date of birth of answering respondent is 284‑1941, or 1‑7‑1940, as the case may be, or 28th April, 1936, which is entered in the service book of the answering respondent. The High Court in view of the observations of the Supreme Court could not bring into consideration the age of answering respondent for a declaration about his age of retirement. In my view the writ petitions filed by the petitioners, though, ostensibly couched as writs of quo warranto but as a matter of fact the basis on which the writs of quo warranto were sought were for seeking a declaration for cancellations of the notification of Government, fixing the age of respondent contrary to the Matriculation certificate and first entry in his service book, determining about his correct date of birth and second. his date of retirement. This essentially amounts to determining the terms and conditions of service as the retirement is one of the terms and conditions of service, as such, the High Court had no jurisdiction to entertain the writ petitions in view of bar provided in section 47 of the Constitution and the observations made in the judgment of Supreme Court, referred to above.

14. In addition to the other factors, it may also be pointed out that in writ petition titled Sardar Muhammad Latif v. Ch. Muhammad Latif in clauses (b), (c) and (d) of para. 15 after reading in between the lines it becomes clear that the petitioners sought a relief that the Notification dated 5‑3‑1996, is void ab initio and inoperative on the rights of the petitioners. A declaration was also sought that the Government was not competent to fix the date of birth of any civil servant or extend the age limit as postulated under section 12 of the Civil Servants Act. The above facts further suggest that without giving a declaratory relief to the petitioners which was not within the competence of the High Court the ultimate relief of quo warranto based on the above declaration could not have been granted.

15. In the light of what has been stated above, the petitioners have failed to make out a case for grant of leave in both the petitions and the High Court, thus, committed no illegality in dismissing the writ petitions in limine. The leave petitions therefore, stand refused in the circumstances of the case. A.A./335/SC(AJ&K) Leave refused.