' SHAFIUR RAHMAN, J.---The Government of the Punjab through its Chief Secretary and the Health Department, seek leave to appeal against an order passed on an application for vacation of stay/allowing the present respondent to continue in service vide order dated 17-6-1991 passed in Writ Petition No, 4921 of 1991.
2. The factual background of the case was that the respondent was employed as Professor of Obstetrics and Gynaecology, Allama Iqbal Medical College, Lahore. Her matriculation certificate as well as her service record contained her date of birth as 19-6-1931. In one of the seniority lists of the year 1980, her date of birth was shown to be 19-6-1934.
3. She addressed an application directly to the Chief Minister on which Secretary to Chief Minister communicated the following order to the Chief Secretary, Secretary Services, Health Minister and Health Secretary:-- "On presentation of the enclosed report received from the Health Department on the representation filed by Dr. Shamim Waheed Sheikh, Professor of Obstetrics and Gynaecology, Allama Iqbal Medical College, Lahore regarding correction of her date of birth in her service record, the Chief Minister has been pleased to observe as under:-- `Since the date of birth of Dr. Shamim Waheed Sheikh has been recorded as 19-6-1934 in the seniority lists of Associate Professors and Professors of Medical Colleges duly circulated by the Health Department and published in the official Gazette and that Dr. Shamim Waheed has produced an attested copy of her birth certificate which also indicates her date of birth as 19-6- 1934 instead of 19-6-1931, as recorded in her matriculation certificate, I am, therefore inclined to accept her request for correcting her date of birth in her service record. Necessary notification should, therefore, be issued immediately since she is apprehending her retirement on the basis of the date of birth recorded in her matriculation certificate'."
' The first remark apparently recorded by the Chief Secretary thereon is as follows:-- "This I am afraid would not be possible. The Regulation Wing has been consistently recommending the rejection of all such cases. Please get their views and I think a change can only be allowed within 2 years of joining service. This would open a flood gate of similar requests."
4. The respondent invoked the Constitutional jurisdiction of the High Court praying as hereunder:-- "It is, therefore, prayed that the respondents be directed to implement the order dated 9-6-1991 passed by the Chief Minister Punjab directing them to correct the date of birth of the petitioner in official records and to issue a notification accordingly.
' It is further prayed that pending the disposal of the main writ petition, the respondents be directed not to act on the incorrect date of birth i.e, 19-6-1931 for any purpose to the prejudice of the petitioner's service."
' While admitting the Constitution petition and issuing notice, the High Court passed the following interim order:-- "Meanwhile on the basis of the order passed by the Chief Minister ordering correction of date of birth, the petitioner shall continue to perform her services in the Health Department till she attains the age of superannuation and Subject to other terms and conditions of her service. This is subject to notice for an early date.
' Rana Muhammad Arshad, learned Additional Advocate-General accepts notice on behalf of respondents."
5. The petitioners moved an application seeking vacation of the interim order giving the following reasons:-- "(i) That the petitioner declared her date of birth as 19-6-1931 with place of birth as Ferozepur in the application, on the prescribed form, made to the Punjab Public Service Commission, for entry into service as Assistant Professor, being consistent to the entry of her birth in the Matriculation Certificate. Further, on her application, relaxation of overage by 4-1/2 years was granted by the Governor on 20-3-1975.
(ii) That the petitioner herself had been giving the date of her birth as 19-6-1931 in each Annual Confidential Report since her entry into service from 1975 and never disputed her age at any stage prior to her superannuation which became conclusive after the expiry of two years' service as laid down in Rule 7.3, Annexure B, to Punjab Financial Rules, Vol. I. She having invoked the Constitutional jurisdiction of this Hon'ble Court, long after prescribed period of 2 years, has no legal right enforceable by law as held by the Supreme Court in the case cited as 1971 SCM R 325.
(iii) That the stay order allowing the petitioner to continue in service beyond superannuation is outside the scope of the jurisdiction of this Hon'ble Court as held by the Supreme Court in 1986 SCM R 1950, particularly by virtue of Article 212 of the Constitution of Pakistan, 1973 read with section 3 of the Punjab Service Tribunals Act, 1974, being a matter relating to the terms and conditions of her service as held by this Hon'ble Court in 1991 M LD 824.
(iv) That the birth certificate now produced by the petitioner for change in the date of her birth as 19-6-1934 is fictitious being contrary to her own declaration in respect of the place of her birth which is shown as Mozang, Lahore.
(v) That the order of the Chief Minister does not create any legal right enforceable by law until it is carried out by the Government through a notification for change in the date of her birth. The result of the probe with regard to the correctness or otherwise of the claim of the petitioner has been intimated by the respondent to the Chief Minister to rescind the earlier order in terms of Rule 10(4) of the Punjab Rules of Business, 1974, who is awaiting the decision of this Hon'ble Court to pass a final order in accordance with law on the merits of the case.
"(vi) That the balance of convenience is in favour of the respondent and it is in the interest of the petitioner to have a final decision of the departmental authority at the earliest."
' The grounds raised and the alteration in the interim order sought was disposed of by the following order:-- "The question raised in the application for vacation of stay is inter-linked with the points raised in the writ petition. Let the writ petition be listed for hearing within six months. With the above observation, the application is disposed of."
6. After hearing the learned Advocate-General for the petitioners and Mr. Abid Hassan Minto, Advocate, for the respondent, we have decided to convert this petition into an appeal and dispose it of.
7. In the first place, none of the grounds required to be examined for issuing an interim order has at all been examined and ensured. The very first question related to the jurisdiction of the Tribunal under Article 212 of the Constitution. If it was relatable to the terms and conditions of service, the matter stood excluded from the jurisdiction of the High Court. Similarly, it was not examined whether the respondent had a prima facie case and balance of convenience in her favour. We need not cite a number of authorities to show how a correction in date of birth has to take place according to law. Besides, the High Court omitted to notice that the respondent was in serious breach of service discipline in approaching the Chief Minister direct and this conduct deprived her of equitable interim relief. By denying her interim relief no irreparable loss was likely to be caused to her. She could be adequately compensated.
8. We find that the interim order continuing her in service beyond her recorded date of birth was under a misconception and such relief should not have been granted. Hence, after converting the petition into appeal, we allow it, set aside the interim order dated 17-6-1991 and the matter 'shall proceed a decision on merits without the interim order being available.