In this suit for declaration, permanent injunction and damages by the plaintiff employed as Bureau Chief in Associated Press of Pakistan impugning the date of birth as declared by him and subsequently changed in the records of A.P.P. has sought a declaration that his date of birth is 23- 9-1946 and not 7-3-1938. He also seeks a permanent injunction restraining the employer A.P.P. from retiring him before attaining the age of 60 years on the basis of new date as claimed to be the correct date of birth. In addition there is a prayer for damages in the sum of Rs,15,00,000 for causing mental torture to the plaintiff and his family members by reason of his wrongful dismissal from employment and his reinstatement by National Industrial Relations Commission, Lahore.
2. On an application for temporary injunction after hearing counsel for parties vide order, dated 5- 3-1998 I passed interim order restraining the defendant from retiring the plaintiff from employment with effect from 6-3-1998 as contemplated through the order dated December 3, 1997. At the stage of passing interim order, learned counsel for the defendant had raised a plea that the agency was owned and controlled by the Federation, therefore, the plaintiff shall be deemed to be a civil servant by virtue of recent amendment in the Service Tribunals Act, 1997 but I was not aware of any statute creating A.P.P. or its control and management administered by the Federation and since no document was placed before me to substantiate the contention, I had observed that this question may be raised and examined in the suit. Subsequently alongwith the parawise written statement defendant placed a photo copy of the Gazette of Pakistan published on June 15, 1961 by the Ministry of National Reconstruction and Information promulgating Order XX of 1961 captioned as Associated Press of Pakistan (taking over) Ordinance, 1961. Section 3 of this Ordinance which came into force at once lays down that the Central Government may, notwithstanding anything contained in any other law for the time being in force, or in any trust or wakf, or in any deed or other instrument, by notification in the official Gazette, take over the entire undertaking of the Associated Press on such date as may be specified in the notification. It is not disputed that such notification was duly issued and the control and the management of the agency has been taken over by the Central Government.
3. Through Act No, XVII of 1997, section 2-A was inserted in the Service Tribunals Act, 1973 providing that service under any authority, corporation, body or organisation established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organisation shall be deemed to be a civil servant for the purposes of this Act. It is in this context that the question of jurisdiction is vehemently agitated by the defendant pleading that the retirement of the plaintiff being one of the terms and conditions of his employment and he being deemed to be a civil servant remedy if any lays exclusively within the domain and jurisdiction of the Federal Service Tribunal constituted under Article-212 of the Constitution.
4. Learned counsel for the plaintiff was at pains to Persuade this Court that the question of declaration of date of birth being a legal right within the purview of section 42 of the Specific Relief Act can only be determined by a Civil Court. Suit as framed, thus, would be maintainable before this Court in the exercise of its original jurisdiction in as much as the plaintiff has been agitating the question of his correct date of birth before the defendant employer which was reflected in various seniority lists issued by the defendant. For this proposition he relied upon a case reported as Regional Commissioner of Income-Tax, Karachi v. Shafi Muhammad Baloch (PLJ 1996 Karachi 798) upholding the interim orders maintaining status quo by the Civil Court as well as District Court.
Inadvertently this judgment is reported as a D.B. case which in fact was heard by a Single Judge as Civil Revision under section 115, C.P.C. is ordinarily heard by a Single Bench in the High Court of Sindh. Although the suit in the reported case was filed after a threat to retire a civil servant from the employment of Income Tax Department, the pivotal question of jurisdiction was not agitated therein. Besides section 2-A inserted in the Service Tribunals Act with effect from 10-6-1997 could not be considered as the litigation commenced and was closed sometimes in July, 1996. Be that as it may, the case does not assist in the resolution of the question raised before this Court.
5. Similar question came up before me in the case reported as Noor Mustafa Khuhro v. Federation of Pakistan 1998 PLC (C.S.) 1263 being an employment under Pakistan State Oil and governed by the provisions of the recent amendment introduced in Service Tribunals Act involving the termination from employment of the plaintiffs. After referring to the cases reported as Abdul Bari v.
Government of Pakistan (PLD 1981 Kar. 290) and Islamic Republic of Pakistan v. Muhammad Zaman Khan (1997 SCMR 1514) and many other cases decided by different High Courts of the country, I held that the provisions of Article 212(2) of the Constitution did not envisage concurrent jurisdiction of the Civil Court and the Tribunal in regard to any matter on any ground. In respect of the terms and conditions of service I further observed that the situation contemplated in the said A provision is that the jurisdiction conferred on the Service Tribunal and the jurisdiction vested in Civil Court in respect of the terms and conditions of service of civil servant is mutually exclusive, so that the field covered by the jurisdiction of the Service Tribunal is totally outside the jurisdiction of the Civil Court including the High Court.
6. Since the plaintiff has essentially brought this suit in the wake of his termination of employment by reason of retirement on attaining the age of 60 years and raised the dispute with regard to the correct date of birth, I am of the considered view that essentially the question involved in this suit relates to one of the terms and conditions of his employment which can only be heard and determined by Federal Service Tribunal and no other authority including this Court. Contention that such question can only be determined by a Civil Court within the purview of section 42 of the Specific Relief Act has an element of attraction but this would be relevant only when it is isolated from the terms and conditions of employment and not as ancillary and incidental to an act governing the terms and conditions of employment of a civil servant. Indeed there was plenty of time at the disposal of the plaintiff to have obtained such declaration from the competent Court of law but no such issue was raised till the office order retiring him from his office was issued by the defendant in December, 1997. Since I have taken the view that the issue raised by the plaintiff is closely connected with the enforcement of the terms and conditions of his employment which has been declared to be service of Pakistan and all employees in corporations created by a Federal statute amenable to the jurisdiction of the Services Tribunal I am inclined to uphold the objection raised by the defendant. The question relating to the jurisdiction of Service Tribunal to determine correct date of birth of a civil servant was considered by Humble Supreme Court of Pakistan in Muhammad Boota v. WAPDA (1994 PLC (C.S.) 503). It was held that the question as to what was the petitioner's correct date of birth was a question of fact which could have been decided by the Tribunal.
7. C.M.A. as well as suit are accordingly disposed of with the observation that the jurisdiction to entertain the issue and decide it solely rests with the Service Tribunal, therefore, the plaintiff would be at liberty to invoke the jurisdiction of Service Tribunal in respect of his grievances if so advised.
However, since the plaintiff continues to enjoy his office by reason of interim order passed by this Court in this suit hopefully Service Tribunal will take into consideration the period spent through this bona fide litigation before this Court and defendant would also hopefully give reasonable time to the plaintiff to approach the Federal Service Tribunal and to obtain an interim order so that his relief is not rendered infructuous.