2015 PLP (C (PLC(CS))

GHULAM MUSTAFA MUGHAL, C.J.

Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, Notification No.S&GAD/A-1(36)2014 (Gazetted-I) dated 27-2-2014 has been challenged for having been issued without lawful authority. Facts forming the background of the captioned petition are that petitioner, herein, was serving in the Local Government and Rural Development Department as Section Officer BPS-17. His retirement notification was issued 27-2-2014. The case of the petitioner is that his date of birth according to the record is 1-1-1958, whereas, in the Matriculate Certificate and National Identity Card the same has wrongly been entered. It is claimed that he filed a suit for correction of date of birth in the Court of Senior Civil Judge, Muzaffarabad on 9-12-2013. After necessary proceedings, the learned Senior Civil Judge granted declaration for correction in the date of birth vide judgment and decree dated 3-1-2014, whereby, it was resolved that correct date of birth of the petitioner is 1-1-1958. It is submitted that without considering the aforesaid decree of the Court notification dated 27-2-2014 has been issued which is illegal and without lawful authority. A pre-admission notice was issued to the respondents for filing comments. In the comments filed on behalf of respondents Nos.1 to 3, it is stated that the date of birth of the petitioner has been entered in the official record as 13-4-1954 and he has himself entered the date of birth in the National ID card which is not correct. It averred that till 2011, petitioner has been entering his date of birth in A.C.R. form and other record as 13-4-1954. It is stated that date of birth entered in the record at the time of entry in the service is final and if any correction is required then the same can be applied within a period of 2 years. It is submitted that an ex parte decree has been obtained by the petitioner, therefore; the same is not binding on the respondents. The other paras of the writ petition have also been refuted. Mr. Shaukat Hussain Abbasi, the learned Advocate appearing for the petitioner, vehemently argued that correct date of birth of the petitioner is 1-1-1958 and the same has been declared by the Senior Civil Judge, Muzaffarabad vide judgment and decree dated 3-1-2014, therefore, retirement of the petitioner on an earlier date is mala fide and without lawful authority. The learned Advocate contended that notification dated 27-2-2014 is mala fide and without lawful authority and has been issued without providing the right of hearing to the petitioner, therefore, the same may be declared as such. Ch. Shaukat Aziz, the learned Additional Advocate-General while reiterating the grounds taken in the comments, submitted that the date of birth entered in the service record at the time of entry in the service is final and no change can be made after a period of 2 years, therefore, the petitioner has rightly been retired by the competent authority, who has attained the age of superannuation. The learned Advocate submitted that even otherwise this Court has got no jurisdiction to entertain the petition relating to the terms and conditions of service of the petitioner. I have heard the learned Advocates for the parties and gone through the record of the case. A perusal of the record reveals that vide Notification No.S&GAD/A-1(36)2014 (Gazetted-I) dated 27-2-2014, the petitioner has been retired from the service of Local Government and Rural Development Department w.e.f. 12-4-2014. He was serving there as Section Officer. The contention of the learned Advocate that his date of birth has wrongly been entered by the petitioner in the service record is devoid of any force. The petitioner has himself entered the date of birth in his matriculate certificate and subsequently in all his service record as 13-4-1954. This entry has been repeated by him till 2011 as per record of the respondents. He filed a suit for declaration and perpetual injunction on 9-12-2013 in the Court of Senior Civil Judge, Muzaffarabad who has granted the decree on 3-1-2014. A perusal of the decree reveals that the Government who is employer is not impleaded as party, therefore, it had not been provided an opportunity to refute the stand taken in the suit by the petitioner, herein. Such an ex parte decree is not binding on Government/employer, who was not party. Moreover, decree which has been obtained without impleading a necessary party is a nullity in the eye of law and the same is liable to be ignored as has been held in the following case-laws:

1. Habibullah v. Mahmood, 1984 CLC 309

2. Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir and 13 others, [PLD 1985 SC (AJK) 102], and

3. Union of India v. Rama Swamy, [AIR 1997 SC 2055]; In Habibullah's case, in para 19 of the report, the apex Court of Azad Jammu and Kashmir while placing reliance on PLD 1964 SC 97, observed as under:

"Therefore if a decree is a nullity, absence of an appeal, suit or cross-objections to avoid such a decree is no bar and such a decree ought to be ignored wherever and whenever it is pressed in service. Such a decree or order is considered as to have been never passed. In case cited as 'Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies' (PLD 1964 SC 97), the learned Court observed at page 101:

"It should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it. If it be held that the taking up of a case not on the date fixed, but on any other day, renders the proceedings totally void, the result would be that even the Court of a 3rd Class Civil Judge could hold that the High Court or the Supreme Court in taking up a case on a particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity. The Civil Judge will be bound to go into this question because under section 44 of the Evidence Act the parties are entitled to show that a judgment or decree was passed without jurisdiction." The learned Additional Advocate-General has rightly relied upon the Financial Code. Vol-1, wherein, it is stated as under:

67(2); The date of birth of appointment to present post and of promotion to present pay, of each person should be entered in the appropriate column. The date of birth English year should be given, and if the exact date is not known the approximate date or year should be stated. The declaration of age made at the time of or for the purpose of entry into Government service should be deemed absolutely conclusive and no revision of such a declaration should be allowed to be made at a later period for any purpose whatsoever. (Underlining is mine) An identical proposition was also considered by this Court in Khurshid Hussain's case, 2012 PLC (C.S.)

429. In para. 13 of the report, it was observed as under:

"The petitioner was inducted in service of Police Department, as Head Constable on 20-4-1971, who was promoted up to the rank of Deputy Inspector General of Police. The petitioner never solicited relief for correction of his date of birth which was written in his own service book as 15-1-1952, therefore, writ petition is attracted by laches extended over decades. According to judicial consensus, a civil servant should solicit correction of his date of birth within two years." In this case reliance was placed on a case titled "Alamdar Hussain v. Inspector General of Police, Punjab and others," [2003 SCMR 1105], wherein at page 1107 of the report it was observed as under:

"It may be seen that if we were to accept the stand of petitioner that record of his service containing the date of birth which he is pointing out i.e. 4-10-1941 was missing because he came from East Pakistan in 1974. But surprisingly he never launched any proceeding for correction of his date of birth. It is for the first time that in the year 1998 it occurred to him to get correct his date of birth in the service record. This move of the petitioner militates against the law laid down by this Court in the case of Iqbal Haider v. Federation of Pakistan (1998 SCMR 1494) wherein it has been held that a Government employee under the relevant rules cannot make prayer for correction of his date of birth after two years of joining service. Therefore, if at all the petitioner has a valid claim he should have instituted proceedings for correction of his date of birth within the period of two years after coming back from East Pakistan and if it was not possible then at least he should have agitated for correction of his date of birth within reasonable time which according to him has been wrongly recorded in the service record. In view of such circumstances we believe that petitioner himself was satisfied with his date of birth i.e. 4-10-1939 because he did not challenge the same at earliest stage. Besides he has full knowledge about such entry in his service record because as per the impugned judgment petitioner's date of birth has been mentioned in ACR's. But despite acquiring knowledge he did not agitate against such entry as such by his own conduct he cannot be allowed to change his stance after a considerable long period." There is an additional reason for dismissal of the petition that the petitioner is a civil servant and he has been retired from service, therefore, the proper course for him to approach the Service Tribunal for redressal of his grievance because retirement is a part of terms and condition of service. The upshot of the above discussion is that finding no force in this petition, the same is dismissed in limine. ZC/40/HC(AJ&K) Petition dismissed.