' This judgment will dispose of Civil Revision No,467/D of 1997 also. It arises out of the following circumstances.
2. On 16-4-1995. Respondent No,1 (hereinafter referred to as the respondent) filed a suit for declaration claiming that his date of birth was 11-5-1939 and not 2-1-1936 as recorded in the Matriculation Certificate and that the entries showing the date of birth of the respondent as 2-1- 1936 in the admission form for Matriculation Examination and the Matriculation Certificate were.
Illegal. Consequential relief of correction of the aforesaid record was also prayed for with a further prayer that the defendants be restrained from passing any adverse order against the respondent on the basis of the recorded date of birth i,e,. 2-1-1936.
3. According to the case set up in the plaint, the respondent started his carrier in the Local Government Service as Municipal Engineer Municipal Committee, then Lyallpur, on 25-10-1963 when the appointing authority was Commissioner Sargodha Division. His services were later Provincialized and he became an employee of the Local Government and Rural Development Department of the Government of the Punjab. It was also alleged that since 1964 he has been making efforts with the department as well as with the University of the Punjab for correction of his date of birth. The University of the Punjab has been deferring consideration of the request of the petitioner on the ground that a policy for correction of the date of birth in the University Record was under contemplation. In June, 1994 he was informed that his application will be decided in accordance with the new policy. In seeking correction of his date of birth, the birth entry was primarily relied upon.
4. Apart from the University of the Punjab, the Province of the Punjab through Secretary to Government of the Punjab Local Government and Rural Development Department was also party to the said suit. Separate written statements were filed by the defendants in the suit.
5. This suit was contested by both the defendants on a number of grounds including want of jurisdiction of the civil Court, section 48-A of the University of the Punjab Act and that it was barred by time. It was further contended that the plaintiff was estoppel to file the suit and had no cause of action. On facts it was alleged that the department had circulated the tentative and final seniority list of L. C. S. Engineers in 1971 and 1994 in which plaintiff's date of birth was recorded as 2-1-1936 but he never submitted any representation.
6. The parties produced evidence in support of their respective pleas. The learned trial Court found that the suit was not barred under section 48-A of the University of the Punjab Act. It was within time and the civil Court had the jurisdiction. However, while returning findings on issues 5, 6 and 7 the learned trial Court found that the correct date of birth of the plaintiff was 11-5-1939. It was, however, of the view that it was not a fit case for the grant of discretionary declaratory relief.
Accordingly, the suit filed by the plaintiff respondent was dismissed on 11-12-1995.
7. An appeal was taken by the plaintiff before the learned District Court which was allowed vide judgment and decree dated 5-11-1996 which is the subject-matter of this revision petition.
8. Revision Petition No,467/D of 1997 is by Mr. Muhammad Aslam Khokhar, an official of the department who had sought to become a party to the appeal before the learned District Court. His application was, however, dismissed. His grievance has been that correction of date of birth of the respondent will adversely affect his right to seniority.
9. The learned counsel for the petitioner has contended that since correction of date of birth had the effect of extending the date of retirement of the respondent the suit was hit by the bar of Article 212 of the Constitution because the respondent as a member of the Local Council Service stood declared as civil servant for the purpose of the Punjab Service Tribunal Act by virtue of section 44 of the Punjab Local Government Ordinance, 1979. He next contended that the plaintiff was aware of the wrong date of birth, according to his own showing when he entered the service of the Local Government in 1963 and, therefore, the suit brought on 16-4-1995, towards the end of his carrier, was patently barred by time and he was estopped to bring the suit. It was next contended that respondent was an employee of the Punjab Local Government Board, a body corporate who was a necessary party but the said Board was not impleaded and, therefore, the suit was liable to be dismissed for non-joinder of a necessary party. He next contended that no credence could be attached to the date of birth as the aforesaid entry was. Not signed by any official. Reliance was placed on Muhammad Siddique v. Yahya Khan (1994 CLC 1374) and Abdul Ghafoor Shaheen v.
Board of Intermediate and Secondary Education Lahore and another (1995 PLC (C.S.) 1154.
10. On the other hand, the learned counsel for the respondent has contended that revision petition is barred by time. It was initially filed on 2-2-1997 when one day was left. It was returned on 6-2- 1997 and was required to be filed upto 13-2-1997 as per the office direction but the said direction was not complied with, Instead, the revision petition was filed on 24-2-1997. Reliance was placed on Naheed Ahmad v. Asif Riaz and 3 others (PLD 1996 Lah.702).
11. As far as the revision petition of Muhammad Aslam Khokhar was concerned it was contended that he was not party to the suit or appeal. Therefore, his revision petition was not competent. It was further contended that even if the date of birth of the petitioner is assumed to be 11-5-1939, he would have stood superannuated on 10-5-1999 and, therefore, the decree does not in any manner adversely affect Mr. Muhammad Aslam Khokhar and fie is not a person aggrieved. On the merits of the case it was contended that the learned two Courts have concurrently found that the correct date of birth of the petitioner was 11-5-1939. This was a finding of fact duly arrived not liable to interference in revisional jurisdiction. He next contended that the respondent joined the service on 25-10-1963 when the Commissioner was the competent Authority and on 15-7-1964 he made an application to the Commissioner (Exh P6). The Commissioner Sargodha Division advised the petitioner to approach the Punjab University (Exh.P7) on which he made a written request to the.
University of the Punjab on 20-10-1964 (Exh.P8). He then filed objections to the tentative seniority list issued in 1971 on 15-2-1972 (Exh.P9). On 14-3-1972 he was compulsorily retired under Martial Law Regulation No,114 (Exh. P.10). He was, however, reinstated on 3-4-1978 (Exh.P.11). He then again filed objections to the seniority list seeking correction of his date of birth on 27-6-1982. On 13-1-1990 he was informed by the Assistant Registrar Punjab University that his application for correction of date of birth was under consideration (Exh.P-13). He reminded the Punjab University on 1-10-1991 (Exh.P- 14) and on 12-11-1991 (Exh.P15) he was informed that the matter was under consideration. He then made an application to the Registrar Punjab University on 25-2-1994 (Exh.P-16). Again on 5-6-1994 (Exh.P-17) he was informed that his Application was under consideration. These facts he highlighted to demonstrate that right from the start of his carrier the respondent has been making efforts with the department and the Punjab University for correction of his date of birth. Therefore, neither, the suit could be said to be barred by time nor the plea of estoppel raised against the respondent has any merit.
12. Controverting the contention of the learned counsel for the respondent regarding limitation in filing the revision petition, the learned counsel contends that the revision petition initially filed was within time. He further contended that in any case, the impugned judgment has been challenged in Revision Petition No,467/D of 1997 which is within time and since the impugned judgment is to be in any case examined in the said case the question of limitation does not stand in the way of the petitioner. Reliance was placed on Mehreen Zaibun Nisa v. Land Commissioner Multan and others (PLD 1975 SC 397). On the question of -limitation for the suit, he contended that merely by making applications to the Punjab University or the Department, limitation did not stand extended and the suit was clearly barred .By time.
13. I have considered the submissions made by the learned counsel for the parties: To my mind the following questions require determination in this case.
(i) Whether Revision Petition No,286/D of 1997 is within time?
(ii) Whether the suit is bad for non joinder of the Punjab Local Government Board, the Employer?.
(iii) Whether the suit was within time (issue No,2).
(iv) Whether the bar of Article 212 of the Constitution was attracted? (Issue No,3).
(v) Whether the plaintiff was estopped to file the suit (Issue No,5).
(vi) Whether the plaintiff is entitled to the decree prayed for (Issue No .7).
(vii) Competency of Civil Revision No,467/D of 1997.
14. As far as the question of limitation in relation to the Revision Petition No,286/D of 1997 is concerned, it was within time when originally filed. The office raised certain objections and the revision petition was ordered to be returned on 6-2-1997 with a direction to remove the objections within seven days. The objections were removed by the petitioner and it was refiled on 25-2-1997.
Meanwhile, it had become barred by time. On 27-1-2000, the petitioner moved an application under section 5 of the Limitation Act seeking condonation of delay. The averment therein is that only on 24-2-1997 the learned counsel came to know of the objection, it was immediately removed and the revision petition re-filed on 25-2-1997. This Court had called for a report from the office. It was reported that the revision petition was received by the learned counsel from the office on 24- 2-1997. It is so recorded in the order dated 6-5-1997 of this. Court. After perusing the said report, the revision petition was admitted to regular hearing. The delay, therefore, in refiling of the revision petition is condoned.
15. As far as the objection of the learned counsel for the petitioner that Punjab Local Government Board was a necessary party and, therefore, the suit was bad for non-joinder of the necessary party is concerned it has no merit. Firstly, because it was not raised in the written statement and secondly that no relief has been allowed to the respondent with reference to his prayer' in the suit that the defendants be permanently restrained from passing any adverse order against the plaintiff on the basis of the impugned entry of his date of birth i,e,. 2-1-1936. In fact, the object of the permanent injunction was to continue in service beyond the date of superannuation which was not granted. It may also be added that the Province of the Punjab was sued through the Secretary to Local Government and Rural Development Department/Chairman, Punjab Local Government Board, Lahore. It was therefore, at worst a case of misdescription because the Secretary is Ex- Officio Chairman of the Punjab Local Government Board. The objection is, therefore, repelled.
16. As far as the question of limitation in bringing the suit is concerned, the respondent made first application to the University of the Punjab on 20-10-1964 which remained pending with the University Authorities. On 5-6-1994 (Exh.P17) the University authorities informed the respondent that his application was under consideration. Limitation for such a suit was six years under Article 120 of the Limitation Act and the starting point is when the right to sue accrued. Since no decision was taken by the University of the Punjab on the applications submitted by the respondent, the suit could not be said to be barred by time and, this is the view taken by the two Courts.
17. The question whether the civil Court had the jurisdiction in the matter is not free from difficulty as there is difference of opinion in this Court. In the case of Malik Ghulam Haider v. Province of Punjab (PLD 1981 Lah. 433), the view taken was that the civil Court had the jurisdiction. It was observed as follows: "At any rate, the question was to who has the power to decide about the age of a person would not fall within the jurisdiction of the Tribunal. The Civil Court does have the power to decide it as it is not one of the terms of conditions as such. The date of birth, in service matters acquires a significance, only to determine the ultimate date of retirement and the Tribunal shall be entitled to go into the matter only in accordance with the record. Consequently, if a petitioner has a decree about his date of birth in his favour and has also informed the Government about it, then and only then a petitioner shall be entitled to file an appeal, to say that the decree has not been followed. It will; thus, appear that the jurisdiction of the Tribunal starts after the decree and not before."
18. However, in Government of the Punjab through Secretary, Department of Education, Lahore v.
Prof. Mst. Jamida Malik and another (1991 MLD 824), Muhammad Siddique v. Yahya Khan (1994 CLC 1374) and Mst. Nazir Begum v. Province of Punjab and others (1996 PLC (C.S.) 908), the view taken was that the Civil Court will not haw jurisdiction as it related to the terms and conditions of service.
In Abdul Ghafoor Shaheen v. Board of Intermediate and Secondary, Education, Lahore and another (1995 PLC (C. S.) 1154) relied upon by the learned counsel for the petitioner the case was remanded to the learned first appellate Court to consider the bar of jurisdiction under Article 212 of the Constitution.
19. In the instant case the plaintiff had prayed for two reliefs, correction of his date of birth and an injunction to restrain the defendants (which included the Province of the Punjab) from passing any adverse order against the plaintiff on the basis of the impugned entry of his date of birth i,e,. 2-1- 1936. Through the second prayer the respondent wanted to continue in service beyond the age of superannuation: This part of the plaint related to terms and conditions of service of the respondent and to this extent no relief was allowed to the respondent. Rightly so, to this extent the jurisdiction of the Civil Court was barred by virtue of Article 212 of the Constitution of Islamic Republic of Pakistan.
The question that attracted my attention was whether the plaint was liable to be rejected as a whole if the suit was partly barred. The answer, according to Feroze Din and another v. Master Muhammad Sher Khan (1979 CLC 742) is that the entire plaint was liable to be rejected. However, in a latter judgment in Mst. Iqbal Begum v. Farooq Inayat and others (PLD 1993 Lah. 183) the view taken was that the Court could try the suit in respect of cause of action which was within the jurisdiction of the Court. The judgment in the case of Feroze Din and another (supra) was considered in the said case and was distinguished. For the reasons to follow I am of the view that to the extent the respondent sought correction of date of birth in the University record, the Civil Court had the jurisdiction. In Sarfraz Khan v. Federation of Pakistan (1986 SCMR 1950) the following observations were made; "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 up to 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."
20. Some other cases may also be noted. In M.R. Khalid v. Chief Secretary, Punjab and another (1994 SCMR 1633) the civil servant sought correction of date of birth on the basis of the decree of the Civil Court to which the Provincial Government was not party. The learned Tribunal dismissed the appeal which was maintained by the Hon'ble Supreme Court. In Water and Power Development Authority through Chairman, Lahore and others v. Muhammad Nawaz Khan and others (1998 SCMR 640) on the basis of the decree of the Civil Court, the learned Service Tribunal directed correction of the date-of birth in the official record which was maintained by the. Hon'ble Supreme Court. In the Inspector-General, Pakistan Railway Police and others v. Muhammad Saeed Khan NLR 1985 Service 2 judgment of the learned Service Tribunal directing correction of date of birth was not interferred with by the Hon'ble Supreme Court but the issue as to the jurisdiction of the Tribunal was left undecided.
21. A perusal of Article 212 of the Constitution shows that the bar of jurisdiction contemplated therein is not absolute. It only applied in respect of a matter to which the jurisdiction of the learned Service Tribunal extends. Reference may usefully be made to Fazal Elahi Ejaz and 22 others v.
Government of the Punjab and 22 others (PLD 1981 SC 137). If, therefore, a matter cannot be agitated before the learned Service Tribunal the jurisdiction of the Civil Court Shall remain intact. It may be noted that under section 4 of the Service Tribunals Act, an appeal lies against an order passed by a Departmental Authority. Department Authority has been defined in the explanation to section 4 of the Punjab Service Tribunals Act (No,IX) 1974 as follows: "Explanation: In this section 'departmental authority' 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 servant."
' Undisputedly, the University of the Punjab in whose record the correction was sought, could not be said to be a departmental authority, in relation .To the terms and conditions Hof the service of the plaintiff-respondents and for this reason that University of the Punjab will not be amenable to the jurisdiction of the Punjab Service Tribunal. In this view "of the mater", I am fortified by the judgment of the Supreme. Court in Government of the Punjab and others v. Saleem Hussain Gardezi (1985 SCMR 443). Thus, to the extent the respondent sought correction of the date of birth in the University record the Civil Court had jurisdiction.
22. As far as the contention regarding estoppel is concerned, the plea was based on rule 7.3 of the Punjab Financial Rules Vol. I which provides that a civil servant could seek correction of the date of birth within two years of his entry into the Government service. In this case the plaintiff-- respondent had raised the issue both with his employer as well as with the University of the Punjab within two years of joining the service. Further, the position of the University of the Punjab would not be altered in any way if the date of birth was corrected in the University record.
23. This birth entry could not be relied upon for more than one reason. Admittedly, the respondent passed Matriculation Examination in 1951. If correct date of birth is taken to be 11-5-1939, he had passed the Matric examination when he was 12 years old which is not possible during the normal course of events. The respondent had claimed (in para. 2 of the plaint) that he was a brilliant student and had cleared two classes in a year. No evidence was produced in support of this assertion. The pleadings in one's favour, do not constitute evidence. At least the record of the primary school could have been produced in support of the plea. Further, P.W.1, Record Keeper of Municipal Committee Gujrat, stated that the entry in relation to the respondent was not signed by any vocal. The learned two Courts omitted to take it into consideration and also did not address themselves to the question whether one could pass matric examination at the age of twelve years.
The finding of the learned two Courts on Issue No,7 is therefore, reversed.
24. Coming to the last question, as to the competency of the Revision Petition No,467/D of 1997 filed by one of the colleagues of the respondent, I am of the view that none of his rights will be affected because the respondent would have retired on reaching the age of superannuation on 10-5-1999, even if he was allowed to continue in service up to the said date. This revision petition has, accordingly, become infructuous and is, accordingly, disposed of.
25. Resultantly, Revision Petition No,286/D of 1997 is allowed. The impugned judgment anu decree of the learned first appellate Court are set aside and the suit filed by respondent No,1 is dismissed. The parties are left to bear their own costs.