MUHAMMAD NAEEM ANWAR, J.- Impugned through instant petition filed u/s 115 of the Code of Civil Procedure, 1908 (C.P.C) is the order of the learned District Judge/ Zila Qazi, Malakand at Batkhela dated 05.07.2023, whereby the appeal of petitioner against the order of the learned Civil Judge/Illaqa Qazi-I, Malakand at Batkhela dated 17.02.2023 dismissing his application under order VII rule 11 C.P.C for rejection of plaint of suit of respondent No.1, was dismissed.
2. Arguments heard and record perused.
3. It appears from record that respondent Mst. Haleema Bibi, who is serving as Class-IV in the Education Department, has approached to the civil Court through her suit No.5/1 of 2022 against the petitioner seeking declaration to the effect that her correct date of birth as per the entry of Computerized National Identity Card (CNIC) is 01.01.1973 whereas, in the record of petitioner (District Account Officer) her date of birth was incorrectly, wrongly and against the fact was recorded as 1965. The petitioner/ defendant resisted the suit through his detailed written statement, with a specific reference of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) in juxtaposition with the provisions of Civil Servants Act, 1974. He also questioned the jurisdiction of the civil Court in the matter on the ground that in his record, the date of birth of the respondent/ plaintiff has been mentioned as 1965 w.e.f. her entry into civil service. During proceedings, an application under order VII rule 11 C.P.C was filed by the petitioner in consonance with Article 212 (b) of the Constitution, which was resisted by the respondent/ plaintiff. Learned trial Court, after hearing the parties, vide its order dated 17.02.2022 dismissed the application on the ground that the suit has not been filed for employment and since the respondent is the resident of District Malakand, as such, civil Court has got jurisdiction in the matter. It was also held that without recording of evidence, the appropriate order pertaining to the controversy raised could not be made. Being aggrieved from the order of the learned trial Court, the present petitioner filed Civil Miscellaneous Appeal No.25/14 of 2023 but same was dismissed by the learned Appellate Court vide impugned order dated 05.07.2023 on the ground that the plaint discloses a cause of action, as such, the question so raised by the petitioner shall be decided after recording of evidence, with an addition that there is no illegality, irregularity or legal infirmity in the order of the learned trial Court.
It is pertinent to mention here that the learned District Judge, while deciding the appeal of the petitioner, has made a reference of the earlier suit instituted by the respondent/ plaintiff for correction of her date of birth, wherein the petitioner (District Accounts Officer, Malakand) was not arrayed as a party, thus, on preliminary hearing, the respondent was put on preadmission notice, with directions to the petitioner to submit attested copy of plaint of earlier suit No.231/1 of 2012 alongwith decision of the Court dated 17.10.2012.
4. C.M No.1870-M/2023: Through this application, the petitioner seeks to place on file attested copy of judgment and decree dated 17.10.2012 in suit No.231/1 of 2012, copies of order sheets, copy of plaint, copy of written statement, copy of issues, copy of list of witnesses, documents exhibited during proceedings of earlier suit No.231/1, attested copy of power of attorney in favour of Muhammad Akram Khan, age certificate and wakalatnama in favour of Muhammad Anwar Khan, Advocate. Since, all these documents are the attested copies of the earlier suit besides same were placed on file through this C.M in view of the directions of this Court, therefore, this application stands allowed and the documents annexed therewith are hereby read as part and parcel of the instant civil revision.
5. It appears that respondent Mst. Haleema Bibi had earlier filed civil suit No.231/1 of 2012 against (i)
District Registrar NADRA Mardan (ii) In-charge NADRA Mardan and (iii) Manager NADRA Takht Bhai, wherein she was seeking a declaration that her correct date of birth is 01.01.1973 whereas the defendants in their record have wrongly entered the same as 1965, which is ineffective upon her rights. Prayer for mandatory injunction was also sought that the defendants be directed to make the entry of her correct date of birth in their respective record. The earlier suit was filed on 25.04.2012 and was contested by the then defendants. One Muhammad Akram Khan, the special attorney for the respondent/ plaintiff appeared before the Court as PW-2 who deposed that plaintiff is his daughter whose date of birth has wrongly been mentioned in her CNIC (Ex.PW2/1) as 1965. He further deposed that he submitted an application (Ex.PW1/1) to the Secretary of Union Council for issuance of Birth Certificate and owing to the application, he requested the Executive District Officer (Health) for verification and assessment of correct date of birth of Ms. Haleema Bibi.
The matter was referred to radiologist for ossification test and the radiologist has issued certificate (Ex.PW1/3) that her date of birth is between 39 '/2 to 40 years on 08.10.2012. Secretory Union Council on the basis of an application (Ex.PW1/5) submitted by the father of plaintiff issued birth certificate with the date of birth as 01.01.1973 (Ex.PW1/4). The attorney in the cross examination admitted that plaintiff being civil servant performing her duties as class IV employee. All these documents were produced before the Court in the statement of the attorney of plaintiff and in the statement of secretory Union Council, on the basis whereof learned trial Court (Civil Judge-VII, Mardan) has granted decree vide judgment and decree dated 17.10.2012 in earlier suit No.231/1 of 2012. It appears from the record that after getting the decree, the respondent approached to the Principal Government Girls Higher Secondary School (GGHSS) Sakhakot, Malakand and accordingly entry pertaining to her date of birth as per the decision of suit No.231/1 of 2012 was made in her service record. Record also reflects that the respondent/ plaintiff was appointed as Behishti on contract basis by the Executive District Officer (Education) on 21.02.2005 and her services were regularized on 29.01.2008 in BPS-01. Neither the Executive District Officer nor anyone else from the Education Department was made as a party in the suit. More-so, the Principal of GGHSS Sakhakot, Malakand was also not made as a party in the earlier suit, however, the principal of said school on the basis of the decree of the Court has corrected her date of birth in her service record. In earlier round of litigation, the District Accounts Officer was also not arrayed as a party and as such when the respondent intended to get correct her date of birth in the official record of District Accounts Officer but he refused, which prompted the respondent/ plaintiff to file a fresh suit by impleading the present petitioner i.e., District Accounts Officer as sole defendant.
6. Before proceeding ahead it shall be determined as to whether Civil Court is competent to correct the date of birth of civil servant? The Government of Pakistan vide SRO No. 521(1)/2000, dated 31.07.2000, in view of the declaration made by the apex Court, issued notification and in consequence to which Rule 12-A was inserted in the civil servants (Appointment, Promotion and Transfer) Rules, 1973 (Federal) which reads as under: - "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."
The above reproduced rule and SRO has been practically adopted by the provincial government as well therefore, for all practical purposes the two years from the date of initial appointment, for the purpose of correction in date of birth, is applicable to the case of petitioner. This Court in W.P No. 2202-P of 2016 on 11.07.2016 has held that: Even otherwise, the decree so obtained by the petitioner from the civil court of law is not binding or applicable to the respondents / government department as firstly, petitioner has not arrayed the Education Department a party in the suit secondly; same is the job of civil court, in this respect. Petitioner suit was merely against NADRA for the correction of his date of birth in the CNIC. It is an admitted fact that at the time of institution of the earlier suit, the plaintiff was a civil servant and it also not denied that at the time of institution of the 2nd suit, she was also a civil servant. It is also an admitted fact that in earlier round of litigation, the District Education Officer and officials of education department were not party to the suit and same is the situation in the present suit. Thus, in view of the above, the respondent/ plaintiff was directed by this Court to appear in person before the Court and today her son Abdul Jalil appeared before the Court, who admitted all these facts at the bar. In the case of "Director-General, Pakistan Rankers Vs. Federation of Pakistan and 3 others" (2013 SCMR 887) it was held by the apex Court that: Admittedly, the petitioner is a civil servant and the matters regarding the change of date of birth could not be entertained by the Civil Court. It is highly amazing that petitioner remained satisfied with regard to his entries in the service book as well as CNIC for a considerable period of seven years since her appointment till institution of suit in the year 2012 but awoke from the deep slumber at belated stage by taking the matter to the civil court and that too, for correction of her date of birth in the CNIC and thereafter the instant suit haS been filed by her for said correction in her service record. This is growing tendency amongst government employees for making attempts to change their date of birth when nearing superannuation and in the matter in hand the suit was filed even after attaining the age of superannuation. This virus appears to be fast spreading and needs to be effectively checked and for that purpose the Hon'ble apex Court in different cases since long very consistently had depreciated such tendency.
Reliance may be placed on the case of "Mr. Khalid ,vs. Chief Secretary, Punjab (1994 SCMR 1633) wherein it was ruled by the apex Court that: "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 lists 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."
Likewise, in the case of "Haq Nawaz Kavani Vs. The Province of Punjab" (1998 SCMR 801), it was observed by the Hon'ble Supreme Court that: "We have noticed that service rules regarding correction of age within two years from entry into service are apparently sound and logical. Government servant cannot be normally permitted to rise from deep slumber and dramatically announce change in the date of birth; when about to retire. The Service Tribunal has properly considered all facts and aspects of the case and has assigned cogent reasons for declining the relief. In our opinion, legal position discussed and conclusion drawn by the Service Tribunal for passing impugned judgment do not suffer from any defect, illegality or impropriety. We wish to observe that lately a tendency has developed whereby unwarranted claims, attempting to show errors in "date of birth" are asserted towards retiring age by fabricating or manipulating documents in that behalf. Obviously, such practice must be discouraged and effectively curbed."
7. It is pertinent to mention that the respondent though was the employee of education department but she has not arrayed her department and that too without any explanation on the part of the respondent. Even otherwise, the suit filed before the civil Court was also not competent from its inception and even if any decree is granted that would not have binding effect on the department where she through the decree of Court intended to enhance the period of service. In the case of "Pakistan Broadcasting Corporation Vs. Subedar Major Redt.) Abdul Razzaq" (1998 SCMR 602) wherein the apex Court has held that: "The respondent sought declaration from Civil Court in respect of said entry in Birth Register, in 1971.
Said decree was obtained in a suit filed by the respondent against the public-at-large. At least the Authorities maintaining the Birth Register, should have been impleaded in said suit as defendants.
Said decree, by no stretch of imagination, can be binding on anybody, much less on the appellant, there is no explanation, as to why the respondent waited for a period of 36 years to obtain the decree. In his deposition, the respondent appearing as P.W. 2, admitted that he was recruited in army in August, 1943 and that he had mentioned his age to be 16 years."
8. Moreover, in the case of "Syed Iqbal Haider Vs. Federation of Pakistan" (1998 SCMR 1494), it was observed by the apex.Court that: "in Government service, an employee cannot make any application for change in his date of birth after two years. On analogy, such rule should also be followed in judiciary, which otherwise would lead to serious complications, and open a pandora's box. Similarly, authenticity of date of birth recorded in the documents cannot be challenged belatedly, specially beyond the abovementioned period." Ref: "Union of India and others v. Mrs. Saroj Bala (AIR 1996 SC 1000), where it was held that the plea with regard to correction of date of birth after remaining eighteen years in service merited no consideration. Learned counsel for the petitioner could not point out any factual or legal infirmity with the judgment of learned Judge in Chambers and two Courts below warranting our interference in the Constitutional jurisdiction of this Court. In an identical matter, the apex Court in the case of "Ali Azhar Khan Baloch and others Vs. Province of Sindh and others" (2015 SCMR 456) has held that: "The mode of correction in the date of birth of a Civil Servant is provided under Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which is part of terms and conditions of service of a Civil Servant and cannot be resorted to through the Civil Suit. It has also been well established by now that a Civil Servant cannot seek alteration in his date of birth at the verge of his retirement or otherwise in a suit."
The consistent view of the Supreme Court and of this Court is a well that the in the matter of the civil servants, the declaration could not be granted by the civil Court as the civil servants are required to get it correct within first two years of the service and the jurisdiction of Civil Court in such matters could not be invoked. In such like situation, the filing of application for rejection of the suit was also not required in accordance with the rule laid down in the case of "Raja Al Shan Vs. Messrs Essem Hotel Limited and others" (2007 SCMR 741).
9. Admittedly, in view of the earlier decree of the Civil Court in civil suit No. 231/1 of 2012 dated 17.10.2012 the date of birth of the respondent in CNIC and in her service book was modified/corrected whereas, in the record of Accounts Office, it is still as 1965 and there is an inconsistency in the record in two offices, in such circumstances, as per the date of birth the plaintiff will have to retire on the last day of 2024 whereas, as per her CNIC and the service book her date of retirement would be due at the end of 2032. And the question before this Court that when the earlier judgement & decree has been given effect and the education department was not the party to the suit as such the decree has never been assailed by anyone and when this Court upon examining the record could exercise the power under section 115 CPC without filing any application, for safe administration of justice qua the strict compliance of law? This aspect of the power of the Court under section 115 C.P.C has been discussed by the Hon'ble Supreme Court of Pakistan in the case of "Province of Punjab throuffh District Officer, Revenue Rawalpini and others Vs. Muhammad Sarwar" (2014 SCMR 1358) and has held that: "The revisional suo motu powers had earlier been discussed by this Court in Haji Rehmdil v. The Province of Balochistan (1999 SCMR 1060) wherein it was recognized that section 115(1),.C.P.C. confers two distinct kinds of jurisdiction; one the normal where the revisional powers are invoked by an aggrieved party -arid the other where the Court acts on its own motion. More recently in the case of Province of Punjab through Collector T.T. Singh and others v. Muhammad Faroog and others (PLD 2010 SC 582) after drawing the said distinction it was held:-- "It is a matter of commonsense and simple logic that if such power is vested in a High Court, it should not be restricted by any period of limitation. So, it does when section 115, C.P.C. was originally enacted. The controversy seems to have cropped up because of the amendment in the year 1992 when, through second proviso, a period of 90 days was fixed for filing a revision petition, A plain perusal of first and second proviso would indicate that a limitation of 90 days is relevant only when some Revision petition is filed by some person or party to the proceedings.
Such impediment is non-existent when Court itself exercises the power of Revision under subsection (1) of section 115, C.P.C."
It was also held by the apex Court in Para No.14 of the supra case that: "14. It follows from the above discussion that there are two situations in which the Court can exercise its revisional powers; on its own motion; or on the application by an aggrieved party.
The former is the general supervisory power and discretionary in nature where the Court is empowered to examine the record of any case decided by a Court subordinate to it to rectify any error or irregularity. Such power is exercisable where the Court itself finds any error of the nature provided in section 115, C.P.C. without there being any right in favour of a party aggrieved of an order or judgment of a subordinate Court. However, when the revisional jurisdiction is invoked by an aggrieved party, it is subject to the statutory provisions now incorporated in section 115, C.P.C. The second proviso thereto in unambiguous terms lays down the period of limitation for applying to the Court by mentioning that "provided that such application shall be made within ninety days". Like all other statutory provisions prescribing time period in which a matter is to be brought before the Court the second proviso to section 115(1), C.P.C. to be applied with the same vigour. Thus, where an aggrieved party seeks redressal against the Judgment or order through the revisional powers of the Court under section 115, C.P.C. he has ninety days to make the application, failing which the application is liable to be dismissed As per the ratio of the judgement the general jurisdiction of this Court under section 115 C.P.C, 1908 may be exercised by this Court to correct the error, illegality, or exercise of jurisdiction not so vested in the subordinate Court. Reliance may be placed on the case of "Banori vs. Jillani" (PLD 2010 SC 1186). The general powers under section 115 C.P.C have no nexus with limitation and cannot be curtailed or restricted by the limitation. Such power is exercisable where the Court itself found any error of the nature provided in section 115 C.P.C without there being any application by aggrieved person. By invoking suo motu jurisdiction u/s 115 C.P.C in view of the admitted facts to the extent that respondent was a civil servant at the time of decree in earlier suit and even today she is civil servant, performing her duties in a school, the suit filed by her was not entertainable by the civil Court and the Court could not grant a decree for correction of date of birth of civil servant.
10. Thus, in view of the dicta laid down by the apex Court and by this Court as well, there is no other opinion that a civil servant cannot file suit before the civil Court pertaining to change/correction of his date of birth and if any such suit has been filed and same has been decreed even then his date of birth could not be corrected in the record of service, thus, the institution of the earlier suit by the respondent/ plaintiff by not arraying the officials of the education department as party was based on mala fide as it appears from the conduct of the respondent/plaintiff. So much so in the instant suit, she has not arrayed any officials from the education department/employer as a party. More- so, in both the suits this fact was concealed from the Court that she was and still in service. A reference to this may be given from the statement of PW-2, who was special attorney/ father of the respondent/ plaintiff, and deposed that she remained in service only for two years on contract despite the fact that the petitioner was in service and her services were regularized and till date she is in service, thus, the institution of the earlier suit i.e., 231/1 of 2012 and decree granted in favour of respondent was based on mala fide. It appears that the suit was instituted with collusion of the secretary union council and the father of plaintiff. Be that as it may, since NADRA through its officials was the party to the suit and being based upon the decree of the civil Court had made corrections in their record. Had the officials of the education department or the employer been made as a party, her suit would have not been decreed in her favour. The concealment of fact and want of jurisdiction were the grounds, on the basis whereof, her earlier suit was decreed and entries pertaining to her date of birth in the service record and CNIC were made, but since the decree by the Civil Court was without jurisdiction and this Court, while exercising suo mote powers u/s 115 C.P.C irrespective of any application/ revision pertaining to the earlier decree granted in favor of the respondent, has got ultimate powers to set aside and to correct the error, illegality or irregularity, thus, the official respondents i.e., NADRA, officials of the education department and the principal of school where the respondent is performing her duties are directed to make entry of her date of birth of 1965 as it was in her CNIC at the time of entering into service.
11. Viewing the above in juxtaposition with the admission of the son of the respondent/ plaintiff before the Court that she is a civil servant, this petition stands allowed, the impugned orders of both the learned Courts below are hereby set aside, resultantly the plaint of the suit No.5/1 of 2022 is hereby rejected for want of jurisdiction. Similarly,, while exercising suo motu powers u/s 115 C.P.C, the judgment and decree of the learned Civil Judge-VII Mardan dated 17.10.2012 in earlier civil suit No.231/1 of 2012 is also set aside, said earlier suit is hereby dismissed for want of jurisdiction, consequently, the entries made by the officials of NADRA and education department etc. pertaining to the date of birth of the respondent/ plaintiff shall be reversed accordingly.