' This judgment will also dispose of W.P. No, 11154/92 as common questions of law and facts are involved in both of them.
2. This revision petition raises question of validity of order dated t0-3-1993 passed by the learned Additional District Judge, Lahore through which the appeal filed by the petitioners against the order dated 19-11-1992 passed by the trial Court by which application for issuance of temporary injunction to the respondent during the pendency of his suit for declaration was accepted has been dismissed.
3. The facts giving rise to this revision petition shortly stated are that the respondent joined service with the petitioners in the year 1956. His date of birth entered in his service record on the basis of information supplied by him when he joined service was recorded as 25-11-1932. According to this entry the date of his retirement on attaining the age of superannuation was to fall on 24-11-1992.
According to the policy decision taken by the Finance Department, decision/notification regarding retirement of a civil servant was to be issued well before the actual date of retirement so that all the formalities regarding preparation of papers for the purpose of pension etc. could be completed before the retiring officer leaves the charge, the petitioners on 25-11-1991 issued a notification in which the names of officers were mentioned with their dates of birth as recorded in the service record and the date of retirement in which the name of the respondent has been mentioned with date of retirement as 24-11-1992. Prior to that on 2-4-1991 the respondent made an application to the Chairman/Secretary, Ministry of Railways requesting him that he should be promoted to Grade-21 in his own cadre. It was also stated by him that he was to retire in November 1992.
4. It appears that after the notification dated 25-11-1991 was issued the respondent filed a suit for declaration againt the University of Punjab and General Public for correction of his date of birth as recorded in the record of the University. In this suit admittedly neither the present petitioners were made party nor legality or correctness of the notification dated 25-11-1991 was challenged nor any prayer was made for grant of decree for correction of his entries in the Revenue Record as regards his date of birth in consequence of decree which he prayed for against the University though prima facie this cause of action had arisen at that relevant time. In this suit a decree was passed in favour of the respondent on 3-11-1992 against the University regarding correction of entry relating to his date of birth in the University record. He approached the petitioners on 4-11-1992 requesting that his date of birth in the service record be corrected on the basis of correction regarding his date of birth made in the record of Punjab University in pursuance of the said decree dated 3-11- 1992 which was not accepted. He then filed the present suit out of which this revision petition has arisen.
5. In the suit the prayer made by the respondent was as under:--- "It is, therefore, prayed that a decree for declaration with permanent injunction restraining the defendants to treat the date of birth as 25-11-1932 in the service record of the plaintiff be passed and they be directed to issue requisite notification.
' It is further prayed that during the pendency of the suit defendants be restrained from retiring/discontinuing plaintiff's service in any manner whatsoever and plaintiff be allowed to continue his service till the decision of the case/till date of retirement according to the correct date of birth of the plaintiff.
' Any other appropriate relief which the plaintiff be found entitled may also be granted."
6. Alongwith the suit he filed an application for issuance of temporary injunction to restrain the petitioners from retiring him from service w.e.f, 24-11-1992 and from discontinuing his service. This application was accepted by the trial Court through order, dated 19-11-1992. Against this order the petitioners filed appeal before the lower appellate Court which has been dismissed through order dated 20-3-1993.
7. It may be mentioned here that since the petitioners allegedly were not being supplied copy of the impugned order and delay was being allegedly made they filed W.P. No,11154 of 1992 before this Court under Article 203 of the Constitution in which interim orders were passed for suspending the order passed by the trial Court during the pendency of their appeal before the lower appellate Court.
8. The main burden of argument presented by the learned counsel for the petitioners in support of this revision petition was that the dispute raised by the respondent is primarily related to the terms and conditions of service of a civil servant, therefore, the jurisdiction of all the Courts under Article 212 of the Constitution was barred excepting the Service Tribunal established under the Service Tribunals Act, 1973 and the remedy of the respondent was to approach the said Tribunal through appeal as provided under the law. He further maintained that even if the suit is held to be maintainable with regard to the question regarding the entry relating to date of birth of the respondent, no temporary injunction could be issued as regards continuation or discontinuation of respondent's service because as regards this part of the relief or the dispute raised in the suit the jurisdiction exclusively vested in the Service Tribunal. He lastly argued that it was not a case where the respondent could be held to have succeeded in establishing that there existed prima fade case in his favour, the balance of convenience was also in his favour and that he would have suffered irreparable loss in case temporary injunction was not issued whereas on the other hand the issuance of temporary injunction restraining the petitioners from discontinuing and retiring him from service amounted to interference in the administration of the Government which according to well-established law was not permissible. In elaborating his argument he submitted that in case of respondent's ultimate success in the suit he would have been entitled to the emoluments and other monetary benefits which were ascertainable in terms of money, therefore, no irreparable loss would have been caused to him in case of refusal to issue temporary injunction.
9. The arguments advanced by the learned counsel for the petitioners prima facie have considerable force. The delay in which the respondent moved in the matter has engaged my serious consideration. He joined service in the year 1956 and himself supplied information to the Department that his date of birth was 25-11-1932 which was entered in the record and remained unchallenged for a long time till he filed a suit against the University. In this suit he did not implead the petitioners as party though he knew that prior to the institution of the said suit Notification dated 25-11-1991 had already been issued indicating his date of retirement based on the entry regarding his date of birth in the service record. as 25-11-1932. He in his application seeking promotion, as observed above, had himself stated that he would be retiring in November, 1992. In the suit filed against the University in which decree dated 3-11-1992 was passed, in addition to prayer for correction of the entries as regards his date of birth in service record should also be made, for, at relevant time where he can maintain the present suit in view of he having omitted from claiming this part of relief in the said suit (sic). The two Courts below while determining the question of existence of prima facie case in favour of the respondent altogether ignored this material aspect of the case. It is firmly settled law that the delay in such a suit for declaration and injunction, is always considered fatal to the plaintiffs case regarding issuance of temporary injunction.
10. Additionally it may also be observed that the two Courts below have also not given due consideration to the fact that the issuance of temporary injunction at this stage restraining the petitioners from discontinuing the service of the respondent would have the effect of interference in the administration of the Department of the Government and such an order was to be sparingly passed according to the well-settled law and in case such an order was not passed the respondent could have been ultimately compensated in terms of money in case of his success in the suit. In such a case where the loss which a plaintiff was to suffer in case of non-issuance of temporary injunction could be ascertained in terms of money the order for issuance of temporary injunction in my view was not justified under the law.
11. Learned counsel for the respondent when asked as to how in these circumstances the respondent could be held to have prima facie case in his favour and that he would have suffered irreparable loss, as such, balance of convenience was in his favour if temporary injunction was not issued coupled with the fact that a serious question regarding jurisdiction of the Civil Court to grant the main relief prayed for in the suit against retirement, maintained that according to principles laid down by the superior Courts in a number of judgments the Civil Court was vested with jurisdiction to resolve the dispute regarding correctness or otherwise of date of birth cif a civil servant as recorded in the service record. He referred to judgments passed in C.P.S.LA. No,K-49 of 1%9, Appeal No,72 of 1972, C.P.S.LA. No,K-40 of 1974, Appeal No,350(R) of 1974, C.P.S.LA. No,197-R/76, C.R. No,19 of 1987, C.P.S.LA. No,181 of 1987 and Appeal No,160(L) of 1990.
12. I have examined these judgments. All the judgments are based on the judgment passed in Civil Petition for Special Leave to Appeal No,K-49 of 1969. The said petition was filed against the judgment of the High Court passed in Constitutional petition in which question of correctness or otherwise of date of birth of a civil servant in the service record was raised which the High Court declined to determine as the same required factual inquiry. It was keeping in view this aspect of the case that it was observed by the Supreme Court that the remedy of the said civil servant to get his grievance regarding determination of dispute about his date of birth as recorded in the service record, redressed was to file civil suit as it required recording of evidence. In this case the question about the retirement had not been raised. It may be observed here that in this suit the respondent has not directly prayed for a decree for correction of his date of birth as recorded in the service record whereas he has sought a decree directly for restraining the respondent to treat 25-11-1932 as his date of birth, as recorded in the service record assuming that no further determination in this regard was required as he had already obtained a decree against the University for correction of this date of birth as recorded in the University record and that the entry in the University record as corrected was to determine the question of correctness or otherwise of entry in the service record.
Even if the scope of the suit as filed by the respondent is extended to include the possibility of fresh inquiry and recording of evidence regarding correctness or otherwise of entry relating to date of birth in the service record, the suit to that extent at the most according to the judgments relied upon by the learned 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, 2441-1992 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 above i.e. PLD 1981 Lah. 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 a civil servant as recorded in the service record. It was, however, observed that the question of date of retirement even after the decree of the Court regarding correction of the date of birth, had to be resolved by the Service Tribunal in appeal in case the Government had refused to act upon the date of birth as corrected by the decree.
13. In a similar case where a civil servant sought a declaratory decree from the Civil 'Court regarding entries in the service record relating to his date of birth it was held in a case reported as Sarfraz Khan v. Federation of Pakistan 1986 SCMR 1950 that the plaintiff's prayer that he should be allowed to continue service up to November, 1992 was outside the purview of jurisdiction of the Civil Court. It has also been held in this judgment that where the Courts below while deciding a case did not take into consideration important documents the same was fit one interference under section 115, C.P.C.
14. The two Courts below in this case not only ignored important documents as mentioned above i.e. notification dated 25-11-1991 issued by the petitioners mentioning date of retirement of the respondent, and his application dated 4-11-1991 mentioning that he would retire in November, 1992 according to the date of birth in the service record as also another material aspect of the case i.e. non-impleadment of the petitioners in the previous suit filed by the respondent against the University coupled with the principles laid down by the superior Courts regarding issuance of temporary injunction while determining the question of existence of prima facie case, balance of convenience and irreparable loss, therefore, they have committed material irregularity and illegality in exercise of discretionary jurisdiction vested in them under the law.
15. For the foregoing reasons this revision petition is accepted. Orders dated 19-11-1992 and 20-3- 1993 passed by both the Courts below are set aside and the application made by the respondent for issuance of temporary injunction is hereby dismissed. W.P. No,11154 of 1992 in view of this judgment has become infructuous.
16. Before parting with this judgment it may be observed that the observations and findings recorded in this judgment are tentative in nature and have been made for deciding the question of issuance of temporary injunction during the pendency of suit and the trial Court shall decide all the questions including the question of jurisdiction, uninfluenced by these observations after recording evidence in accordance with law. There will be no order as to costs.