1997 PLP 2801 (MLD)

Against this order Miscellaneous Civil Appeal bearing No. 2 of 1996 was filed in the Court of District Judge, Karachi South which was dismissed by learned District Judge on 19‑3‑1996 mentioning as under:‑‑

"I am in agreement with lower Court that the plaintiff/respondent proved prima facie case for grant of interim injunction and he was entitled for the same. If the injunction which has been refused to him and he had been allowed to retire on the alleged date of superannuation he was liable to sustain irreparable loss. The balance of convenience would have been greater to the plaintiff/respondent then the defendants/appellants. The lower Court read the conclusion allowing application under Order 39, Rules 1 and 2, C.P.C. with justified an appealing reasons. I have no hesitation to share my views with the same. With the result I dismiss this appeal which is without any substance and maintain the order of the lower Court." This revision was dismissed in limine by my brother Judge Mr. Justice Abdul Majeed Khanzada (as he then was). Against the said judgment Civil Appeal No. 84 of 1997 was filed in the Supreme Court of Pakistan. Their Lordships of Supreme Court allowed the appeal and the relevant portion of the order is as under‑-‑ "After having been laid of the judgment was written and signed on 7‑7‑1996 on which date it was announced by another Judge and on that day Mr. Justice Abdul Majeed Khanzada was not Judge of the High Court. In such circumstances, we set aside the impugned judgment of the High Court in the revision and direct that the revision should be deemed to be pending which is to be disposed of within two weeks from today. The appeal is allowed in the terms stated above. Any observation in the leave granting order will not come in the way of the respondent " On 28‑4‑1997 the learned counsel of the parties addressed their arguments. The learned Advocate for the applicant submitted that the suit was time barred. In para. 4 of the plaint it is stated that the plaintiff came to know about the gradation list in the year 1991 and in this list the age of plaintiff was wrongly mentioned because of wrong entry about his date of birth. The learned counsel therefore submitted that plaintiff did not seek immediate remedy but waited for six years. The suit was time‑barred. It was a service matter, and therefore, there was bar of Article 212 of Constitution. He referred to para. 22 of the plaint wherein it is mentioned that the cause of action had arisen on 20‑2‑1991 and the suit wits filed in 1996 or in tile end of 1995. The learned counsel for applicant referred to para. 6 of counter‑affidavit filed by Malik Bashir Ahmed who in paragraph 6 had stated that the dispute in respect of age is finally determined by Controller of Examination, University of Sindh, Jamshoro vide letter dated 6‑12‑1995 which shows the date of birth to be 9‑1‑1936. This is, therefore, conclusive proof of age. On 8‑1‑1996 the notification of retirement of plaintiff was issued but on 10‑1‑1996 learned 1st Senior Civil Judge ordered that status quo as existed on the day when suit was filed be maintained‑ The learned Judge had relied cm decisions reported in 1987 CLC page

393. Mandatory injunction was issued and the learned Judge granted the relief which had not been requested. The facts of age reported in 1987 CLC 393 are different. In that case there was a prayer for status quo ante but in this case there is no such prayer. This case had been challenged and there was an appeal against this decision and judgment is reported in PLD 1988 Kar.

401. The learned counsel for applicant further submitted that suit was barred under Article 212 of Constitution and placed reliance on decisions reported in 1991 MLD Lah. page 824, 1993 MLD pages 2138 and 2158, PLD 1970 SC page 139, 1986 SCMR page 1950 and the relevant is on page 1953, 1994 SCMR page

163. The learned counsel for applicant, therefore, submitted that the suit was not maintainable injunction was wrongly granted status quo ante was wrongly granted. Suit was time‑barred set of documents had been filed which included copy of N.I.C. of plaintiff wherein his birth year is mentioned as 1936. This N.I.C. was issued in the year 1978. Mr. Farogh Naseem, Advocate for respondent Shafi Muhammad submitted that the question had been raised that the suit was barred under Article 212 of Constitution and the Civil Court had no jurisdiction. He submitted that this depends oil the nature of dispute. The terms and conditions of service are not in question. In this case the date of birth given by employee was 9‑1‑1938 but this was changed by department incorrectly. In such cases the Civil Court had the jurisdiction. Apart from this it is a case of discrimination as in similar cases the department changed the dates of birth of employees but similar relief was not granted although he had documentary evidence to prove that his (late of birth was 9‑1‑1938. The date of birth is mentioned in the service book as 9‑1‑1938 which confirms the date of birth. He placed reliance on decisions reported in 1993 MLD 2158 and 1991 MLD page

824. He referred to page 243 of the file which is order of his lordship Mr. Justice Abdul Rahim Qazi (as he then was) in Revision Application No. 29 of 1995 and submitted that similar question had arisen. He referred to para. 4 which is as under:‑-- "However, the point that requires consideration in the present matter would be the determination of age of a Government servant which would not be within the purview of the terms and conditions of the service of an employee. In the present matter the applicants have placed a number of document on record. In the first instance the very service book of the present respondent which is admittedly an official document and maintained by the applicant shows column No. V at page 3 that his date 'of birth is 5‑5‑1938. This service book has the first entry dated 4‑10-1957. This document is more than 30 years old." The learned Advocate for the respondent submitted that the original service book was available and it is an old entry which shows (late of birth of respondent to be 9‑1‑1938. The learned Advocate for respondent referred to pare 5 of the same order which is as under:‑

"Now the question that arises is as to whether this question with regard to determination of age can be determined by the Civil Court or only the Service Tribunal. As already referred to sections 3 and 13 of Civil Service Tribunal Act. 1973 and Civil Servants Act, such tribunals are established only for deciding the matters pertaining to terms and conditions‑of service whereas determination of age is a subject which has not been provided for in or under any heads of the said chapter. Learned standing counsel as argued that this question is relevant to the question of retirement and, therefore, the same should be deemed to be within the jurisdiction of the Tribunal and not the Civil Court. The allegations made in the plaint would show that the present respondent has alleged mala fides against the applicants. The facts stated above would also show that the case of the present respondent had been pending with the applicants since the year 1966 but no clear cut decision was taken both with regards to determination of the age of the respondent which as per the applicants own record is 5‑5‑1938. This obviously substantiated the allegations of mala fides raised by the respondent. In such case it would be Civil Court which is the Court of ultimate jurisdiction as provided under section 9 of Code of Civil Procedure to determine such issues of civil nature." The learned counsel for the respondent submitted that the Controller of Examination had wrongly mentioned the date and the respondent had been seeking the basis on which the certificate was issued and the letter of Controller of Examination at page 347 will show that record is not available and, therefore, in the absence of record the date was wrongly mentioned. He referred to relevant column of Service Book to show that the date of birth was 9‑1‑1938. He referred to documents at page 67 which is school leaving certificate, page 69 which is certificate issued by Municipal Committee Dadu, page 71 which is residence certificate, page 105 which is identity card. He submits that the entire record was consistent that the date of birth of respondent was 9‑1‑1938. The certificate of Controller of Examination was obtained behind back of respondent. This certificate is not issued by Registrar, The relevant documents at pages 121, 125, 127, 345 and 347 will show that the Controller had no record. The matriculation certificate is available at page 113 and it does not show date of birth of respondent. The applicants/defendants in their written statement had mentioned in para. 11 that 9‑1‑1936 is the correct date of birth on the basis of matriculation certificate and the certificate is available at page 113 but age is not mentioned in this certificate. He relied on decisions reported in PLD 1959 SC page 25, 45 and

48. He also placed reliance on decisions reported in 1985 SCMR page 1753, 1996 PLC page

552. He submitted that suit was within time and Article 120 of Limitation Act provided period of 5 years. He placed reliance on decision reported in PLD 1988 Lah. 658, PLD 1984 SC page

157. The question as to why he waited for so much time before filing suit is to be ignored. He also placed reliance on decision reported in 1992 ALD page 523(c). He referred to observation of Civil Judge on page 119 and placed reliance on decisions reported in 1993 MLD page 2158, 2160 (para 3). 1987 CLC page 393). Para 6 of PLD 1988 page 401, PLD 1978 SC page 220 and unreported decision of Revision Application No.l8 of 1996, 1993 SCMR page 1232 and 1266. He referred to letter of Section Officer Finance Division dated 22‑4‑1996 addressed, to C.B.R. in which it is mentioned that the factual position and proof provided thereof and upheld by the Court he accepted and the C.B.R. was directed to accept the plea of the incumbent regarding date of birth without further litigation. In spite of this direction from Finance Division the defendants/applicants are still contesting. On point of jurisdiction reliance is placed on decisions reported in 1986 SCMR 1950 and page 1953 para

9. He also submitted that bar of 212 will not apply in dispute of age. Reliance is placed on decisions reported in 1982 SCMR 738, 1992 CLC page 201(c) and 1988 CLC page 514(b). There were documents in support of case of respondent reliance is placed on decision reported in 1982 SCMR page

938. He submitted that it is a question of fact and evidence had already been considered by lower Court and no new facts can be introduced. Reliance is placed on decision reported in PLD 1977 Kar. page

101. Revision on does not lie reliance is placed on decision reported in 1984 SCMR 504 and 1983 PLD Lah. page 152(a), 1986 CLC 2671. He also placed reliance on decision reported in 1980 SCMR page 588, PLD 1983 Lah. page 365, 370 and 371(h) and 1994 SCMR page

973. This revision has been filed against the orders of District Judge and the Senior Civil Judge who had granted injunction ordering to maintain status quo ante. The only question for this Court is to examine whether the discretion was exercised by the lower Court in accordance with the established principle of law. In Revision this Court has limited jurisdiction. This Court will only interfere with the orders of lower Courts if (a) they have exercised jurisdiction not vested in it by law or (b) to have failed to exercise the jurisdiction so vested or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. None of these conditions are attracted which may ,justify interference by this Court. The establish principles for the grant of injunction are that the plaintiff should have a prima facie case. The balance of convenience is in his favour and he will suffer irreparable injury if injunction is refused. The lower Courts have followed these principles. The legal points raised on behalf of the applicant that the Civil Court had no jurisdiction and the dispute of age was to be decided by Service Tribunal and the suit was time‑barred. As regards arguments of learned Advocate for applicant that the suit was time‑barred the learned Advocate for respondent has relied on decision reported in PLD 1988 Lahore 658, the relevant is in paragraph 19 of this judgment and it is reproduced as under:‑-- "The period of limitation for filing the suit is admittedly regulated by article 120 of the first schedule of the Limitation Act, 1908 which prescribes six years period commencing from the time when the right to sue accrues. The right to sue would have accrued to the respondents and they were to have recourse to the Court of law when had acquired knowledge of their two dates of birth err when they bad failed aggrieved with the wrong entries touching dates of birth. The respondents suits, in view of the circumstances of the cases, were well within time and could not be said to be time‑barred. "' Thus, this objection of learned advocate for applicant stands answered. The suit is within time. His next objection is that suit was barred under Article 212 of the Constitution and he placed reliance on some decisions. One decision that he relied upon is reported in 1991 MLD

824. The relevant portion on page 832 is as under:‑‑ "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 Tribunal Act, 1974 but also Article 212 of the Constitution is a complete bar. Therefore, the plaint is liable to be rejected under Order 7, rule 11, C.P.C. to the extent of petitioner." There is contrary view also. This Court in Revision Application No.29 of 1995 had mentioned in para.5 of the order that the Tribunals are established for deciding the matters pertaining to terms and conditions of service whereas determination of age is a subject which has not been provided for in or under any beads of' the chapter in question. The learned advocate for the respondents has also placed reliance on decision reported in 1996 PLC 19 that bar of Article 212 will not operate if discrimination is alleged. The relevant portion on page 27 is as under:‑‑ "In this case there is order passed by any departmental authority which could be challenged by the petitioner by filing an appeal before the Service Tribunal under section 4 of Service Tribunals Act, 1974. The grievance of petitioners on the other hand is that the treatment being meted out is discriminatory and violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. In view of the rule laid down in I.A. Sherwani's case (supra) this petition is clearly maintainable.' There is also decision reported in 1993 MLD 2158, the relevant portion on page 2163 is as under:‑

"Even if the scope of a suit as filed by the respondent is extended to include possibility of fresh‑inquiry and recording of evidence regarding correctness or otherwise of entry relating to date of births in the service record, the suit to that extent at the most according to the judgments relied upon by the leaned counsel for the respondent could be held to be maintainable and a serious question was still to be decided whether the dispute regarding retirement of the respondent w.e.f. 24‑11‑1992 as provided in the notification dated 25‑11‑1991 was within the jurisdiction of the Civil Court or not. It may be mentioned here that in one of' the judgments relied upon by the respondent which have been referred i.e. PLD 1981 Lahore 433, it was held that the jurisdiction of the Civil . Court was limited only to the determination of the dispute regarding correctness or incorrectness of date of birth of civil servant as recorded in the service record." Therefore, the 2nd objection of the learned Advocate for applicant that the suit was barred under Article 212 cannot be accepted because contrary view, is also available that the dispute relating to entry in the service record relating to age does not come within definition of terms and conditions of service. Therefore, the Civil Court being Court of ultimate jurisdiction can entertain such suit. The legal remedy for aggrieved person should‑be certain and known. So,' that lie may approach correct forum. In this case the department did not correct the entry relating to his date of birth. He has quite a few documents to show that his date of birth was 9‑1‑1935 and this is also tic entry in the service book. The t department did not Correct it and there are two views as to whether such suit can; be entertained. He did not approach the Service Tribunal because terms and conditions of service do not include the dispute relating to entry of date of birth. The plaintiff/respondent has also made out a case of discrimination. Under these circumstances the lower Courts have not acted with material irregularity or illegally. None of the three conditions provided under section 115, C.P.C. is attracted. The Revision is, therefore, dismissed in limine. A.A./R‑29/K Revision dismissed.