2000SCMR1110 (PLP)

CH. MUHAMMAD ARIF, J.

We cannot do better than reproduce the Leave Grant Order 3-12-1996 which reads thus:-- "Petitioner joined service as Overseer in the year 1955. At the time of joining the service, his date of birth was recorded in the service book as 10-7-1936. In the year 1986, he requested the department to correct his date of birth in the service record which according to him was 3-8-1937. His request, it appears, was not accepted. and the department proceeded to notify his retirement with effect from 9-7-1996. Aggrieved of this action, petitioner invoked Constitutional jurisdiction of the High Court. The learned Judge in the High Court dismissed the writ petition in limine holding that "the claim of the petitioner appears to be an afterthought and is designed to secure illegal benefit of another year's service to which he is not entitled in law. Even otherwise, the change in date of birth and consequently the date of retirement is a condition of service and the petitioner ought to have moved the Service Tribunal.' This writ petition on this score is equally incompetent. It appears that after the dismissal of his writ petition, petitioner preferred an appeal before the Service Tribunal which too has been dismissed in limine with the observation that since the High Court itself held that the writ petition was not competent, there was no legal bar to the exercise of jurisdiction by the Tribunal but as the High Court has also made observations on merits, ' it would not be appropriate for this Tribunal to assume jurisdiction in such cases unless a direction was issued to this Tribunal by the learned Supreme Court to assume such jurisdiction'.

2. Learned counsel appearing in support of this petition has submitted that the High Court having held the writ petition to be incompetent should not have made observations on merits and in any case, the Tribunal having itself observed that there is no legal bar to its assuming jurisdiction should have proceeded to decide the petitioner's appeal on . merits notwithstanding the observations/findings of the High Court in that behalf. According to learned counsel, the learned Tribunal has failed to exercise jurisdiction vested in it.

3. Contentions raised by the learned counsel needs consideration. Leave to appeal is, therefore, granted. Appeal to be heard at an early date on the present record. No interim relief."

2. Mr. Malik Muhammad Azam Rasool, learned AC appearing on behalf of the appellant, has simply reiterated his plea noticed in the Leave Grant Order and submitted that the observations made by the High Court while disposing of appellant's Writ Petition No.10717 of 1996 on merits should not have been considered by the Punjab Service Tribunal, hereinafter referred to as the Tribunal, while dismissing the appeal in limine and that too with the observation that the Tribunal needs any direction from any quarters for assuming its jurisdiction under section 4 of the Punjab Service Tribunals Act (No.LXXI of) 1973, hereinafter referred to as 1973 Act.

3. We find that the judgment of the High Court in Writ Petition No.10717 of 1996 proceeded to decide that (1) it was not possessed of any jurisdiction to entertain the dispute raised therein regarding the change of date of birth of the appellant in his Service Book and that (2) the matter should have been taken by the appellant to the appropriate Service Tribunal. The above twin-reason is exclusively based upon the stand taken by the Department in their para-wise comments to the writ petition that the High Court's jurisdiction in relation to terms and conditions of service of a civil servant is barred. The observation made by the Tribunal in the judgment under appeal to the effect that it cannot proceed in the matter unless this Court directs it to do so, is wide off the mark. Moreso when the Tribunal had specifically taken note of para.7 of the judgment of the High Court to the effect even otherwise"... change in date of birth and consequently the date of retirement is a condition of service and the petitioner ought to have moved the Service Tribunal. This writ petition on this score is equally incompetent... " (Underlining is for emphasis).

4. Viewed in the above perspective, there is force in the contention being raised on behalf of the appellant that the Tribunal had declined to exercise jurisdiction vested in it under section 4 of the Act.

5. Resultantly, this appeal is allowed, the matter is remitted back to the Tribunal for fresh decision on merits uninfluenced by any observation made by the High Court in relation to the appellant in judgment dated 8-7-1996, in Writ Petition No. 10717 of 1996. There shall be no order as to costs. M.B.A./A-13/S Appeal allowed.