IHSAN-UL-HAQ, CHAUDHARY J. The Provincial Government through this civil revision has impugned the judgments and decrees dated 1.7.1990 and 9.5.1990 of the to Courts below.
2. The relevant facts are that respondent No.1 joined Education Department on 14.1.1958 as Lecturer in Economics after obtaining her Master's Degree in the above subject. The trouble started when on 16.6.1988 the plaintiff submitted an application to the Punjab University, respondent No.1, to the effect that her actual date of birth is 17.12.1934 and not 6.7.1930 as recorded in her Matriculation Certificate and other academic certificates/degrees. Respondent No.1 in pursuance of section 48-A of the University of Punjab Act, 1973 had resolved as fur back as in the year 1961 that it shall not entertain any such application. This way the plaintiff was compelled to file the suit for declaration on 3.9.1989. Notices were issued to the defendants. The Punjab University appeared and contested the suit while the Province-petitioner failed to enter appearance and was proceeded parte. The learned trial Court framed issues, recorded evidence and after hearing the parlies decreed the suit vide judgment and decree dated 9.5.1990. The petitioner as well as the Punjab University filed a joint appeal against the decree which was dismissed by learned Additional District Judge, Multan, vide judgment and decree dated 1.7.1990. Hence the present revision petition by the Punjab Government.
3. The present revision petition was admitted to regular hearing and notices were issued to the respondents, who entered appearance through their learned counsel. The learned counsel for the petitioner in support of the petition argued that the respondent herself gave her date of birth as 6th March, 1930 at the the of her entry in service. It is added that even earlier she gave the same date in her to admission forms submitted for taking Matriculation Examination. Therefore, she was clearly estopped by her own conduct to refute the date and file the suit. In this behalf the learned counsel for the petitioner has referred to A.R. Khan WP.N. Boga (PLD 1987 S.C. 107) It is added that according to Rule 7.3 of the Punjab Financial Rules, Vol. 1, a Government Servant can move for the correction of his or her date of birth within to years of his/her entry into service. In this behalf the learned counsel for the petitioner has referred to Ghulam Haider v. Director of Education (1971 S.C.M.R. 325) and judgment of this Court in W.P.No. 8051 of 1989 'Sh. Mumtaz Ali v. Province of Punjab'. It is submitted that the present application was moved after more than 30 years. On merits, it was submitted that the story of correct date of birth was concocted to extend the period of service. The arguments were summed up with the submission that the suit was barred under Article 212 of the Constitution of the Islamic Republic of Pakistan and section 4 of the Punjab Service Tribunals Act, 1974.
4. On the other hand, the learned counsel for the plaintiff/respondent No.2, argued that the foremost question for determination is that what is the correct date of birth of his client? The learned counsel submitted that it was proved to the hilt through the birth certificate Ex. Pl and evidence of PW1 to PW4 that the correct date of birth of his client was 17.12.1934. It is added that on one hand this evidence remained unrebutted and on the other hand presumption of truth is attached to Ex.PL In this behalf the learned counsel has referred to Muhammad Aslam Vs. Mst.
Sardar Begum (PLD 1988 Lahore 398) and Habibullah Khan and others v. Saadat Khan and others (1990 MLD 355). This way it is an established fact that the correct date of birth of his client is 17.12.1934 and not 6.7.1930. It is argued that the learned counsel for the petitioner cannot be allowed to argue beyond issues Nos. 1,2 and 5 because the other issues were not pressed before the. Lower appellate Court. The learned counsel in this behalf referred to the cases reported as Ghulam Muhammad and another v. Malik Abdul Qadir Khan and others (PLD 1983 S.C. 68), Allah Yar Khan v.
Mst. Sardar Bibi and others (1986 SCMR 1957) and Muhammad Ishaq and others v. Shah Muhammad and others (1985 S.C.M.R. 799). It is added that section 48-A of the University of Punjab Act, 1973, is no bar to a suit while rule 7.3 of Financial Rules does not effect the period of limitation. It is argued that to claim benefit of estoppel, a party has to show that it accepting representation of the plaintiff adopted one position and now it is being asked to change that position to its detriment. It is submitted that (he University of the Punjab is not going to be affected by the decree in any manner, therefore, there is no question of estoppel. On the point of limitation it is submitted that Article 120 of the Limitation Act provide that the shall start running from the date of cause of action, which in the present case accrued with the submission of the application dated 16.6.1988.
The learned course in this behalf also referred to University of the Punjab v. Muhammad Aslant Bora (PLD 1988 Lah. 658) and added that this decision was upheld by the Hon'ble Supreme Court and placed an unattested copy of the judgment on the record. It was further added that the case of Ghulam Haider v. Director of Education (1971 S.C.M.R. 325) was discussed in this case and the same is not relevant to the present controversy.
5. The learned counsel for the respondent argued that the question of jurisdiction having not been raised by the petitioner it is to late in the day to raise this objection. The learned counsel in this behalf has relied on Bodhan v. Bhundal Singh (AIR 1965 All. 300), Nawab Khan and another v. Waris Iqbal and 5 others (PLD 1976 S.C. 394), Begum Wazir Ahmad Industrial Home v. Mst. Niaz Began (PLD 1976 S.C.214), Messrs Mian brothers and 3 others v. The Additional District and Sessions Judge, Multan and others (PLD 1965 Lah. 562) and Said Quresh and others v. Mst. Ghafia Began (1974 SCMR 528). It is submitted that the petitioner has only sought declaration and the same is not going to change the terms and conditions of the plaintiff, therefore, the arguments addressed on behalf of the petitioner are besides the point. The Civil Court had the jurisdiction to adjudicate and decide the suit.
6. The learned counsel has raised a preliminary objection to the effect that the revisional jurisdiction is not to be exercised in discretionary matters and more so when justice has been done.
The learned counsel has referred to Hari Singh v. Moin-ud-Din Khan (AIR 1944 Lah. 397), M/S Ghulam Farid Muhammad Latif v. Central Bank of India Ltd., Lahore (PLD 1954 Lah. 575), Habib Ullah v. Sakhi Muhammad (PLD 1986 Lah. 128), and Abdul Rashid v. Muhammad Shafi (1987 PSC 476). It is added that while exercising revisional jurisdiction this Court cannot interfere with the finding of fact recorded by the Courts below. It is submitted that the revisional jurisdiction is primarily intended for correcting jurisdictional errors made by subordinate Courts in exercise of their jurisdiction and decisions Which are based on no evidence or inadmissible evidence and not otherwise. The learned counsel referred to Muhammad Bakhsh v. Qadir Bakhsh (1986 SCMR 412), Haji Muhammad Zaman v. Zafar Ali Khan (PLD 1986 S.C. 88) and Kanwal Nain v. Fateh Khan (PLD 1983 S.C. 53).
7. The learned counsel for the University of Punjab argued that initially the University used to resist such moves for correction of date of birth but after the decision of C.P.S.LA. No. 708 of 1988 which confirmed the decision of this Court reported in University of Punjab v. Muhammad Aslant Bora (supra), it only contests a suit in the trial Court and also in appeal but thereafter gives up the chase. In this view of the matter the learned counsel submitted that he does not have any objection to the decree being maintained to the extent of the University of the Punjab. He added that even the University of the Punjab has issued duplicate certificate with date of birth as given in the decree of the Court.
8. The learned Additional Advocate General while replying to the arguments o( the learned counsel for the. Respondent submitted that the case University of Punjab v. Muhammad Aslant Bora (supra) relied by the learned counsel for the respondent No.1 is not relevant and in this behalf he referred to para I6. He further submitted that respondent No.1 has since been retired from service with effect from 5th July, 1990 and she handed over the charge on 10th October, 1990.
9. The files of the trial Court as well as the lower appellate Court were sent for primarily to check the circumstances under which the petitioner was proceeded ex parte by the learned trial Court and to find out whether except issues Nos. 1,2 and 5 no other issues were pressed in the appeal. The files have been received.
10. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the precedent cases referred to by them and provisions of law. In view of the order proposed there is no need to take up the arguments advanced on behalf of the petitioner with counter reference to the arguments of the plaintiff and other respondents. The pivotal point on which the decision of this revision hinges is whether there was any cause of action in favour of the plaintiff against the petitioner; secondly, whether the Civil Court has jurisdiction tc deal with the matters directly involving terms and condition's of civil servants? Before proceeding any further it is relevant to refer to Article 212 of the Constitution of the Islamic "Republic of Pakistan. The same reads as under:- "212. Administrative Courts and Tribunal:--
(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy and tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court to Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court shall abate on such establishment: Provided that the provisions of this clause, shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie ony if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."
(Underlining is mine).
The other relevant provisions are contained in sections 3(2) and 4 of the Service Tribunals Act, 1974, which read as under:- "3(2). A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters."
"4. Appeals to Tribunals: (1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or with six months of the establishments of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal.
Provided that:
(a) Where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973 (LXX1 of 1973), or any rules against any such order, no appeal that lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental. Authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was not preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any lime before the lst July, 1969.
(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penally on a civil servant, the appeal shall be preferred- a) ir the case of a penalty of dismissal from service removal from service, compulsory retirement or reduction to a lower post or the- sc lie, or to lower stage in a the scale of a Tribunal referred to in sub-section (3) of section 3; and b) in any other case, to a Tribunal referred to in sub-section (7) of that section. Explanation-. In this section, departmental authority I means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants."
The learned Additional Advocate General submitted that the suit was only a technique adopted to hoodwink and postpone the date of retirement of the plaintiff. Therefore, the matter fell within the exclusive jurisdiction of the Punjab Service Tribunal.
11. On the other hand the learned counsel for the plaintiff argued that the plaintiff only wanted tp get the date of birth changed and nothing more. A perusal of the plaint shows that the plaintiff has made the following prayer:- "Under these circumstances it is respectfully prayed that a decree, declaring that the actual date of birth of the plaintiff is 17.12.1934 and net 6.7.1930, be passed in favour of the plaintiff and against the defendants. It is further prayed that by way of consequential relief, mandatory injunction be issus in favour of the plaintiff and against the defendant thereby directing the defendants No.1 to make necessary correction in the plaintiffs certificate of Matriculation, and defendant No.2 to incorporate the date of birth of the plaintiff as 17.12.1934 instead od 6.7.1930, in all their relevant documents and records. It is further prayed that alongwith costs of the suit, any other relief, to which the humble plaintiff may be found entitled to, be also granted to her."
(Underlining is mine).
In case the prayer pertaining to defendant No.2 is granted the net result would be that the date of retirement of the petitioner will be automatically postponed/changed from 6.7.1990 to 16.12.1994.
This part of prayer, therefore, directly pertained to the terms and conditions of the plaintiff as civil servant. Now by this the law is absolutely clear on the point that the Court including this Court has no jurisdiction iq respect of the terms and conditions of civil servants. Reference in this behalf can be made to Ghulam Haider v. Director of Education (supra). Relevant portion reads as under:- "The same grounds are urged in support of the petition for leave to appeal from the order of the High Court. There are statutory rules relating to change of dale of birth of a Government employee contained in the Punjab Financial Rules, Vol. 1. As the representation by the petitioner was made long after the prescribed period of to years, he had no legal right which the High Court could enforce by issuing a writ under Article 98."
Reference can also be made to the case of Sarfraz Khan v. Federation of Pakistan (1985 SCMR 1950) the relevant portion of which reads as under:-- "9.-The learned Deputy Attorney-General also pointed out that the relief claimed in the plaint to the effect that the plaintiff be allowed to continue service upto 19th July 1987 was completely outside the purview and jurisdiction of the learned trial Court and no such relief could have been granted.
The learned counsel for the appellant was unable to meet this objection."
Now coming to the cause of action, the plaint has to be read as whole to find out the cause of action. It is clear from the perusal of the same that neither the plaintiff ever demanded anything nor solicited any order from the petitioner. The Learned counsel submitted that after the decree she moved the petitioner for change of her date of birth. This also goes a long way to show that these was no cause of action in favour of the plaintiff at the the of the institution of the suit. Before proceeding any further with the matter it is worthwhile to refer to the provisions of Order VII rule 11 C.P.C. The same reads as under:-- "11. Rejection of Plaint.- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a the to be Fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a the to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barree by any law."
Now when the present suit is considered in the light of the above provision that it is hit by clauses
(a) and (d). It is clear from the plaint that no cause of action accrued in favour of the plaintiff to file the suit against the petitioner. The plaintiff only moved an application to respondent No.2 for correction of her date of birth. Thai 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 Tribunals Act, 1974 but also Article 212 of the Constitution is a complete bar. Therefore, the plaint is liable to be rejected under Order VII rule 11 C.P.C, to the extent of the petitioner.
13. Now coming to respondent No.2, it is held that the suit was competent against the University and section 48-A is no bar. This matter stands concluded with the judgment of the Hon'ble Supreme Court in C.P.S.L.A. No.708 of 1988 wherein the decision of this Court in the case of University of Punjab v. Muhammad Aslant Bora (supra) was upheld. The legal way for the plaintiff was to make an application to her department for change of date of birth and if the decision was unfavourable then after exhausting remedies available to her at the departmental level she should have filed an appeal before the Punjab Service Tribunal. It is made clear that no other forum is available to the civil servants because any such correction is bound to change the date of retirement, which is integral part of the terms and conditions of their service. The desire to hang on in service is so pressing in case of some of the civil servants that they adopt all sorts of tactics for this purpose.
This has to be discouraged.
14. The trial Court wrongly and illegally decided to take ex parte proceeding against the petitioner.
This renders the. Ex parte decree illegal. Normally speaking the case should have been remanded to the learned trial Court for proceeding with the matter a fresh but since it is concluded that the suit is barred by law and there is no cause of action in favour of the plaintiff against the petitioner, therefore, no useful purpose will be served by remanding the case to the trial Court. The provisions of Order VII rule 11 C.P.C are not exhaustive and in such matters the power should be exercised.
Reference in this behalf can be made to Bunnah Eastern Ltd. v. Bunnah Eastern ^Employees' Union and others (PLD 1967 Dacca 190), The relevant portion reads as under:- "The principles involved are to-fold: In the first place, it contemplates that still born suit should be properly buried, at its inception, so that no further the is consumed on a fruitless litigation.
Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may found a properly constituted case.
"Order VII, rule 11 of the Code, as quoted above, enumerates certain categories under which the Court is called upon to reject a plaint, but, it is obvious that they are not exhaustive, it appears from the language of rule 11 of Order VII that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further the is wasted over what is bound to collapse as not being permitted by law."
15. The decree in the present case is nullity and the learned Additional Advocate General argued that the petitioner stands retired with effect from 5th July, 1990. The department was, therefore, fully justified to ignore the decree, it is made clear that such a decree can furnish a piece of evidence for change of date but it is not binding. The authorities have to make their own determination and will be fully justified to ignore such adjudication by the Civil Courts.
16. The learned counsel for the plaintiff vehemently argued that it was proved to the hill that the correct date of birth of his client is 17.12.1934 and not 6.10.1930. In this behalf he referred to the statement of Javeed Anjum PW1 and submitted that the witness was not even cross-examined.
Therefore, his statement will be deemed to have been accepted. Learned counsel in this behalf has referred to Muhammad Aslam v. Mst. Sardar Begum (supra). This is not relevant in view of the judgment proposed.
17. Now I take up the objection of the learned counsel few the plaintiff that the objection as to the jurisdiction and cause of action cannot be allowed to be argued. The objection is to-fold. It is submitted that these objections have not been urged, therefore, cannot be now allowed to be taken for the first the in revision in this Court. In the alternate it is submitted that the since the learned counsel for the petitioner made a statement before the lower appellate Court that he will press findings only on issues Nos. 1,2 and 5. Therefore, the remaining issues will be deemed to have been given up. The argument that the objections cannot be raised for the first the in civil revision is misconceived factually as well as legally. Factually speaking, the petitioner was not allowed an opportunity to defend itself. Therefore, there is no question of its pleading this legal ground. Legally speaking, these points are strictly questions of law and for that purpose only the plaint is to be referred. Therefore, the same can be raised for the first the in this Court. I am fortified by the view of the Hon'ble Supreme Court in the case M. Imam-ud-Din v. Thai Development Authority (PLD 1972 S.C. 123). The relevant portion reads as under:- it is, no doubt, true that parties to an arbitration agreement can also by consent modify an award, but this does not mean that they can waive the statutory requirements of the Limitation Act. There can be kind of estoppel against a statute, particularly where the question of limitation is involved, for section 3 of the Limitation Act clearly enjoins upon the Court that every suit, appeal or application made after the period of limitation prescribed therefore by the First Schedule shall be dismissed 'although limitation has not been sot up as a defence'. The contention, therefore, that since the learned Advocate then appearing for the respondent-Authority had consented/ to the withdrawal of the application with permission K> file a fresh application amounted to an estoppel, has no force. The respondent authority, even assuming that the learned Advocate then appearing for it had the necessary authority to do so, is not estopped by the consent of the learned counsel, so far as this question of law is concerned."
The cases referred to by the learned counsel for the petitioner are of no avail to him as in those cases except Bodhan v. Bhundal Singh (supra) the legal questions were raised for the first the in the Supreme Court. I respectfully following the judgment of the Supreme Court in the case of M.
Imam-ud-Din v. Thai Development Authority (supra) allow these points to be raised.
18. Now coming to the second aspect that the learned counsel for the petitioner only pressed issues Nos. 1,2 and 5 and the rest of the points were given up, this argument is controverted by the petitioner by filing the affidavit of Muhammad Amal Khan, Assistant District Attorney, who argued the appeal before the lower appellate Court. It is stated in the affidavit that he pressed all the points. This is not all. The perusal of the file shows that no statement to this effect was recorded by the learned Additional District Judge. It is vehemently argued that this observation is incorrect and mala fide. The object was to deprive the petitioner of strong points. It is not possible at this stage to decide the controversy without holding through inquiry. Suffice it to observe that it is the duty of the trial and lower appellate Courts to record statements in this behalf. Otherwise, they expose themselves and invite criticism as to their conduct. The appellate and revisional Courts will be fully justified to ignore any such concession which is not backed by the statement of the learned counsel because possibility of giving undue benefit to a party by recording such observation cannot be ruled out.
19. The upshot of the above discussion is that the revision petition is accepted and the impugned judgment decrees of the Courts below dated 1.7.1996 and 9.5.1990 are hereby set aside with costs to the extent of the petitioner. The result is that the plaint is rejected under Order VII rule 11 C.P.C, to the extent of the petitioner. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.