In this Constitutional petition the legality of order dated 27-9-1990 for the retirement of the petitioner with effect from 1-7-1988 has been called in question.
2. The petitioner was (he employee of the respondents. According to his service book his date of birth recorded therein was 1-7-1933. According to this, the petitioner was to attain the age of superannuation on 1-7-1993 on which date he was to retire from service. The petitioner was however retired with effect from 1-7-1988 through order dated 27-9-1990. According to the respondents his date of birth was in fact 1-7-1.928.
3. The petitioner in support of his case has placed on the record a copy of letter dated 12-10-1988 written by the treasurer, University of the Engineering and Technology, Lahore to the General Manager, State Life Insurance Corporation of Pakistan with which list of employees of the University was appended in which the name of the petitioner was also mentioned and his date of birth was shown as 1-7-1933. This list was provided to the Insurance Company for the purpose of Group Insurance. According to the entries in the service book of the petitioner a copy of which has been placed on the record by the respondents Annexure 11 against column No. 5 relating to date of birth of the petitioner it has been shown as 1-7-1933. Learned counsel for the respondents when questioned stated that this page of service book had been interpolated. I have seen the photostat copy placed on the record from which there is no indication that any entry had been later on interpolated or changed in any manner because neither there is any overwriting' nor any entry has been erased and overwritten. Learned counsel for respondents when faced with this situation argued that the competent officer had not signed these entries. I am afraid, for this reason, the petitioner could be prejudiced in any manner for if the concerned officer had not put his signatures in authentication of the service book of the petitioner which was in possession of the authority and failed to perform his functions, the petitioner cannot be punished for that. Learned counsel for the respondents relied upon a school leaving certificate which according to it relates to the petitioner to show that in the same, his date of birth was shown as 28-3-1933. The petitioner has denied having produced the said certificate or that he procured the same. The only entry about the date of birth of the petitioner being 1-7-1928 relied upon by the respondents is provisional seniority list issued in 1983. When questioned respondents counsel could not point out to any document so far placed on the record as to on the basis of what material the date of birth was shown as 1-7-1928 in this seniority list relating to the petitioner whereas as already observed in his service book it was recorded as 1-7-1933 and the same was communicated to the Insurance Company on 12-10-1988.
This document was written much after the said provisional seniority list had been issued in 1983. No material has been placed on the record that this seniority list was delivered to the petitioner at any point of time to bring to his notice that his date of birth had been changed to 1-7-1928.
4. Learned counsel for the respondents when asked as to whether there is any other documentary evidence on the record to show that the petitioner's date of birth was 1-7-1928, submitted that he was medically examined after his joining the service but, the said medical certificate was not available in the record. He submitted that the same had been removed by the petitioner. I am afraid, the petitioner who was a petty employee could have access to the record in such a manner that he was in a position to remove any document and change the record. The plea, which is being raised appears to be afterthought. Apart from this, the petitioner was allowed to continue in service even upto 27-9-1990 though according to respondents he would have stood retired on 1-7-1988.
This conduct of the respondents also furnishes strong evidence that petitioner's date of birth had always been treated and taken as 1-7-1933, as correct.
5. Learned counsel for the respondents submitted that the writ petition is not maintainable because relationship between the petitioner and respondents/University is that of Master and Servant. This argument in the facts and circumstances of this case is not tenable. Admittedly the petitioner's service was governed and regulated by the Rules and Regulations framed by the University under the statute to which University owes its creation. According to these rules an employee is to continue in service unless removed in accordance with the disciplinary proceedings retire on attaining the age of superannuation, which is 60 years. One of the criteria for determining whether relationship between the employer and the employee is that of Master and Servant, is whether the Master was vested with absolute and uncontrolled power to relieve the employee from his duties at his whim which is not the case here. Since petitioner's service was governed by the rules and regulations, therefore, he was entitled to continue in service till the attainment of age of superannuation i.e. 1-7-1993, his date of birth being 1-7-1933 as such the argument has no force.
6. For the foregoing reasons the impugned order dated 27-9-1990 for the retirement of the petitioner from service of the respondents is not sustainable. This writ petition is accepted. The said order is hereby declared to have been passed without lawful authority and of no legal effect and quashed. In the result the petitioner shall be deemed to be still in service as if he had never been retired and removed therefrom. The respondents are directed to take him on duty and pay him all the benefits, which he would have received had he not been retired through the impugned order dated 27-9-1990. The parties are left to bear their own costs. 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.