1999 PLP (C (PLC(CS))

MUNIR A. SHEIKH, J.‑‑‑Leave to appeal is sought against the judgment, dated 14‑7‑1997 of the Lahore High Court through which R.S.A No. 1123 of 1970 filed by the petitioners against the judgment of the learned Additional District Judge, Lahore, dated 24‑3‑1970 through which their appeal against the judgment and decree of the trial Court, dated 30‑4‑1969 by which the suit filed by the respondent for declaration and permanent injunction was decreed, was upheld, has been dismissed.

2. The respondent No. l who had been employed as Clerk Grade‑II to the Department of the petitioners filed a suit for declaration that he was entitled to he confirmed against the said post with effect from the date when the permanent vacancy became available. Reliance was placed on Clause 12 of Memorandum of Settlement dated 26‑5‑1962 produced in evidence as Exh.P.1 which provided that "all the temporary or officiating staff who complete two years of satisfactory service shall be allowed all the benefits which accrue to confirmed staff from the date of such completion, provided that the confirmation has not been made only for reason of non‑availability of permanent posts".

3. Through Office Order No.632, dated 23‑‑12‑1962 (Exh.4), the respondent/plaintiff and 51 other Clerks Grade‑II were allowed the benefits which were admissible to the confirmed staff in terms of Staff Circular No. 1, dated 6‑9‑1962. As has been noticed above under Clause 12 of the Memorandum of Settlement reproduced above, such benefits were to be given to those temporary or officiating employees who had completed two years of satisfactory service, but could not be confirmed for want of permanent posts. Since the respondent/plaintiff was one of those employees who were given benefits of a confirmed employee under the above-mentioned Memorandum of Settlement with effect from 1‑5‑1962, therefore, the trial Court was right in raising presumption that his service was considered satisfactory. The petitioners relied upon Exhs. D.1 to D.3 to maintain that there were adverse entries existing in the service record of the respondent, therefore, he could not have been presumed to have completed two years' satisfactory service. The trial Court came to the conclusion that the entries related to period prior to 1‑5‑1962, therefore, the respondent could not be non‑suited. An attempt was made before us during the argument by the learned counsel for the petitioners that in his statement, when he appeared as his own witness, the respondent/plaintiff admitted that one of the adverse entries in his service record was made in September, 1962. We are afraid, if any benefit can be given to the petitioner in relations to this admission which appears to have been erroneously made as the documentary evidence EXhs.D.1 to D.3 produced by the petitioners according to concurrent findings established that the adverse entry related to period prior to 1‑5‑1962. It is well‑settled law that an admission may be relevant but not conclusive proof of the fact which may be proved to be incorrect or to have been erroneously made. As against the documentary evidence produced by the petitioners, it cannot be maintained that the said admission made by the respondent should be taken as conclusive proof of the fact admitted.

4. Through Office Order No.177, dated 29‑3‑1965, 22 persons were confirmed out of the persons listed in the Office Order No.632, dated 23‑12‑1962 which as indicated above also included the name of the plaintiff/respondent. The name of the plaintiff/respondent was dropped though juniors to him were confirmed through the said Office Order, therefore, the Courts below came to the conclusion that injustice was done to the respondent/plaintiff and he was entitled to be confirmed alongwith the said persons.

5. Learned counsel for the petitioners has not been able to persuade us that these findings of facts suffer from any illegality such as misreading or non‑consideration of any material pieces of evidence. Even if the admission of the respondent that there was some adverse entry in his service record allegedly made in September, 1962 is taken into consideration, the same would not adversely affect the findings of the Courts below and the relief granted inasmuch as two years prior to 29‑3‑1965, there was no adverse entry in his service record. Learned counsel for the petitioners argued that the Civil Court was not vested with the jurisdiction to entertain the suit and an objection was taken in this regard on which preliminary issue was framed and decided against the petitioners through separate and independent order prior to the framing of issues on merits which were challenged in the memo. of appeal before the High Court.

6. In the Judgment of the High Court, no mention has been made about; this argument having been raised and argued. It shall be presumed that the same was not argued as such. we are not inclined to allow the petitioners to argue this point at this stage particularly in view of the fact that admittedly the respondent/plaintiff has now retired from service and there is no live issue so far as the respondent is concerned.

7. For the foregoing reasons, this petition has no merits which is accordingly dismissed and leave refused. H.B.T./M‑298/S Petition dismissed.