This revision petition filed in terms of Section 115 of the C.P.C. is directed against the judgment dated 29.4.2019 passed by learned Civil Judge, Minchana bad, whereby petitioner 's second suit for correction of his date of birth in record of NADRA stood dismissed and the judgment dated 25.10.2019 passed by learned Addl. Distt. Judge, Minchinabad Distt. Bahawalnagar whereby appeal of the appellant filed in terms of Section 96 C.P.C. was also dismissed, being against law and facts and as such not sustainable.
2. Contention heard.
3. Claim of the petitioner in his suit was that his actual year of birth is 1964 whereas the respondent has wrongly reflected the same as 1952 in his CNIC issued on 1 1.2.2006.
4. Learned counsel for the petitioner could not deny (which is also reflective from judgment of learned trial Court) that earlier suit of the petitioner regarding same cause of action stood dismissed by learned trial Court vide judgment and decree dated 6.10.2015 and even appeal filed against the said judgment was dismissed by learned Addl. Distt. Judge vide judgment and decree dated 4.5.2016, and as observed by learned courts below , said orders had not been assailed before any higher forum which consequently attained finality . After attaining finality of the controversy in first round of litigation, subsequent suit was not competent as the same was hit by provisions of Section 1 1 of the C.P .C. For ready reference said provision of law may be reproduced as under: "11. Res Judicata. - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
5. Learned counsel tried to justify filing of second suit with the contention that after dismissal of earlier suit, on medical examination version of the petitioner stood established that his correct date of birth was not incorporated in record of NADRA and with all bona fide the petitioner approached the learned civil court by filing suit for declaration. When asked as to whether option of getting verification of age through ossification test/Medical test was not available to the petitioner before or even during pendency of previous suit, learned counsel could not deny the fact. This contention, to my view, is therefore, devoid of force. Even if for the sake of arguments, this contention is acceded to, it might be a case for review but not a fresh cause to file the suit. If any party is allowed to file fresh suit on such causes then there will be no finality to the judgment/decree of Courts whereas object of Section 11 C.P.C. is to stop parties to re-agitate the issue(s) settled in earlier round of litigation. The Hon'ble Supreme Court of Pakistan in a case Mustafa Kamal and others v . Daud Khan and others ( PLD 2004 SC 178 ) observed as under: "5. ...We are conscious about the importance of judicial pronouncement between the parties as, it would be "in the interest of the public at large that a, finality should attach to the binding decisions pronounced by Courts of competent jurisdiction; and it is also in the public interest that individuals should not be vexed twice over with the same-kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Atricle 32. The binding character of judgments pronounced by Courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis." (emphasis supplied by me)
6. Another aspect of the case which could not be noticed by learned courts below is that the petitioner is an employee in Public Health Engineering Department, Sub-Division Minchinabad and is at the verge of retirement as per available record. Sub-Rule (3) of Rule 21-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 postulates that the date of birth once recorded at the time of joining government service shall be final and thereafter no alteration in the date of birth of a civil servant shall be permissible. The said Rule reads as under: "21-A(3). Alteration in the date of birth. The date of birth once recorded at the time of joining government service shall be final and thereafter no alteration in the date of birth of a civil servant shall be permissible.
Thus date of birth once recorded in service record at the time of joining governm ent service becomes final and issue of change of date of birth, if any, relates to terms and conditions of service and in such eventuality jurisdiction of civil Court is ousted. In recent case Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456 ) the Hon'ble Supreme Court observed as under: "146. Section 3(2) of the Service Tribunal Act provides that the Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants, including the disciplinary matters. In other words, the jurisdiction of all other Courts is barred by the provisions of the Sindh Service Tribunals Act, 1973, read with Article 212 of the Constitution.
147. Section 4 of the Service Tribunals Act provides Civil Servant with the right of filing an Appeal before the Tribunal, subject to the qualifications provided therein.
148. In this background, all the Civil Courts, including a Judge (in Chambers) of High Court of Sindh, exercising jurisdiction on the original side as a civil court under C.P.C. cannot entertain a civil suit of a civil Servant relating to the terms and conditions of his service."
In view of above, as per settled law, civil suit is not competent. In another case Muhammad Tariq v. University of Peshawar through Vice Chancellor and others (2004 PLC (C.S.) 1162) it has been held that Civil Servant could not make application for change in his date of birth after two years of joining servic e and that authenticity of date of birth recorded in documents, when civil servant joined service, could not be challenged belatedly . In alike circumstance in case reported as M. R. Khalid v. Chief Secretary , Punjab and another (1994 SCMR 1633 ) the Hon'ble Supreme Court of Pakistan observed as under: "Admittedly , while taking the Competitive Examination the petitioner had himself declared his date of birth to be 2.6.1930. He remained in service for about 35 years thereafter his name together with his declared date of birth appeared in the gradation list and civil lists periodically published by the Provincial Government. He did not object to the incorrect publication of his date of birth till a few years before his retirement. The mere fact that he was able to obtain a decree from the Addl. Distt. Judge did not advance his case for the Government was not a party to the civil suit brought by him. Though the Government has undoubtedly the power to correct an incorrectly recorded date of birth of a civil servant but the silence of the petitioner over the major portion of his service was such that he did not merit a favourable decision from the Government.
Reliance may also be placed on case Ghulam Haider v. The Director of Education, Lahore Region, Lahore and another (1971 SCMR 325). In case Professor Dr. Muhammad Aslam Baloch v. Government of Balochistan through Secretary Health Department and others ( 2014 SCMR 1723 ) it was observed as under: "7. The contention of the learned counsel for the petitioner that the case of the petitioner falls out- side the purview of Rule 11 is also misconceived. The language of Rue 11 of the Rules which deals with the alteration in the date of birth clearly suggests that the date of birth of a Civil Servant once recorded at the time of joining the Government Service shall be final and would not be altered except where a clear mistake occurs in recording the same in the service record. It further provides that the request of a Civil Servant for change of date of birth shall not be entertained after a period of two years from the date of such entry in his service record. The petitioner joined the service on 6.3.1991 and since then upto the year 2004 has never objected to the entry of his date of birth. The record reveals that the department issued seniority list at times in which the date of birth of the petitioner was mentioned as 16.11.1951. The material produced and examined by the Tribunal clearly suggests that the petitioner got altered/changed his date of birth when he was at the verge of his retirement in the year 2011. The original date of birth of the appellant, as per the material examined by the Tribunal was 16.11.1951 which was got altered by petitioner to 16.11.1954, by fabricated document. The Rules do not authorize the competent authority to entertain any representation for altering the date of birth of a Civil Servant beyond two years in the service record."
In the light of legal position discussed above, to my mind, remedy available to the petitioner does not lie before Civil Court, rather same touching terms and conditions of service, may be either before hierarchy in same department or before the learned Service Tribunal.
7. In view of what has been noticed and discussed above I do not find merit in this petition which is accordingly dismissed in limine.
8. The Registrar of this Court is directed to circulate copies of this order to the District Judges in the Province for information and guidance of Judicial Officers working under their respective supervision. It is expected that learned Civil Courts while receiving and processin g plaints in such like cases will examine contents of the same and if need be for this limited purpose, record better statement of the plaintif f and if prayer relates to correction of date of birth of civil servant/ government employee, then provisions of Order VII Rule 11 C.P.C. if attracted should be applied at inception of such suits to save precious time of the courts and the parties to the lis.