1. ' The applicant through this Revision Application has challenged the judgment dated 29-5-1995, passed by the learned VIIth Additional District Judge, East, Karachi, passed in the proceedings of Civil Appeal No, 20 of 1994, whereby the judgment dated 23-12-1997 and decree dated 4-1-1994, passed by the learned IVth Senior Civil Judge, East, Karachi, in the proceedings of Suit No, 1532 of 1991 between the parties was set aside.
2. ' The brief facts of the case are that the applicant, who was born and educated in Hyderabad Daccan (India), passed his Matriculation Examination from the Board of Secondary Education, Hyderabad Daccan, in the "Fasli Calander" year 1356 (as till September 1948 "Fasli Calander" was in vogue in Hyderabad Daccan) and correspond to the year 1947 AD. It is the case of the applicant that he had joined the service of respondent, Karachi Development Authority, on 22-8-1952 and had submitted attested copy of his matriculation certificate wherein his date of birth is shown as 6th day of Dai 1344 "Fasli" without mentioning or disclosing corresponding date of birth according to the Christian Calender. Further that during his employment with the respondent the applicant had an occasion to go abroad and as such he had applied for Pakistani Passport and for grant of such passport he had filed in a form wherein his date of birth is shown as 2-11-1934, therefore, the actual date of birth and age of the applicant could be ascertained either from his matriculation certificate or from the passport issued to him by the Government of Pakistan. Further that during 38 years of service, when he remained with the respondent, his age was never questioned untill 8-11- 1989, when the respondent informed him that since his date of birth is 2-11-1931 and not 2-11-1934, therefore, he was to retire from service w,e,f, 1-11-1991 as by that date he would attain the age of superannuation of 60 years.
3. ' It is the contention of the applicant that the respondent on 12-2-1990 called upon the applicant to produce either his Matriculation Certificate or birth certificate in testimony of his correct age failing which his authenticated date of birth would be treated as 2-11-1931. In compliance of the demand of the respondent the applicant submitted a certificate issued by the Chairman Bahadur Yar Jung Academy, Karachi verifying that as per applicant's matriculation certificate and taking into consideration the "Fasli Calander" of Hyderabad Daccan as compared to the Christian Calender and in view of Calender known as "Diglott Calendar" maintained by them as reference record in their Library the Actual Date of birth of applicant was 6th Dai 1344 "Fasli" which corresponds to 10th November, 1934 AD, but the respondent did not accept the said certificate, therefore, the applicant on 13-12-1990 filed in the Court of IVth Senior Civil Judge, Karachi East, Karachi Civil Suit No, 1532 of 1990 for declaration, mandatory and permanent injunction for the following reliefs:-- "(a) A declaration that the correct date of birth of the plaintiff is 6th Dai 1344 Fasli as mentioned in his Matriculation Certificate, which corresponds to 10th day of November, 1934 A.D. As authentically mentioned in Diglott calendar and the plaintiff is entitled to continue in his service till 9-11-1994 and office Memorandum No,4-66/ET52/1248 dated 1-11-1990 as ab initio illegal, unlawful and void.
(b) A declaration that the Secretariat Order No, 4-66/ET/52/1551, dated 7-12-1991 issued by the defendants during the pendency of the suit is arbitrary, mala fide, illegal, unlawful and equally ab inition void as being a super structure built on the illegal Order No,4-66/ET/52/1248, dated 1-11-1990.
(c) That in consequent of prayer at No, (b) above, a decree for a mandatory injunction directing the defendants, their employees, servants, agents, and all officials/finictionaries representatives of anybody whosoever he may be acting for them or on their behalf to withdraw their Secretariat Order No,4-66/ET/52/1551, dated 7-12-1991 and reinstate the plaintiff in service to the same post which he was holding prior to the issuance of the abovementioned Secretariat Order No, 4- 66/ET/52/1551, dated 7-12-1991 or to the next post fell due, therefor alongwith all the benefits thereto.
(d) (d) A Mandatory injunction directing the defendant, their employees, servants, agaents and all officials/functionaries, representatives or anybody whosoever he may be acting under them or for them or on \ their behalf to correct the date of birth of the plaintiff in their records to make and read it as 10-11-1934 as stated above according to Diglott Calendar instead of that incorrectly shown and treated mischievously by them.
(e) A Permanent Injunction restraining the defendants, their employees, servants, agents and all officials/functionaries, representatives and/or anybody whatsoever acting under them or for them or on their behalf from retiring the plaintiff from his service post on 1-1-1991 or on any date before 10-11-1994, which is the only legal and lawful date of his retirement.
(f) All costs 'of the suit. 'and
(g) Any other relief deem fit and proper."
4. ' The above suit was contested by the respondent but the learned Trial Court vide judgment 23-12- 1993 and decree dated 4-1-1934 decreed the suit of the plaintiff to the following effect:--
(a) That correct date of birth of the plaintiff is according to the Matriculation Certificate i,e, 10-11- 1934.
(b) All orders, Notifications, Memorandums, Reference etc. Which have been issued in disregard to the date of birth as per Matric Certificate are illegal and of no consequence.
(c) To reinstate the plaintiff with retrospective effect with all accrued benefits."
5. ' Being aggrieved of the aforesaid judgment and decree, the respondent filed Civil Appeal No, 20 of 1994 which was allowed by the learned VIIth Additional District Judge Karachi East, Karachi vide impugned Judgment dated 25-5-1995 wherbey aforesaid judgment and decree passed by the learned Trial Court was set aside. Learned Advocate for the applicant submitted that in order to prove his case the applicant examined himself in the matter and also produced other witnesses, and applicant in this deposition stated that at the time of his employment with the respondent he had submitted an attested copy of his matriculation certificate, wherein his date of birth is shown as 6th Dai 1344 "Fasli", which date corresponds to 10th November, 1934 as per certificate issued by the Chairman Bahadur Yar Jung Academy, Karachi and has been produced as Exh.P/2. It is also submitted that in order to obtain passport the applicant had submitted an application dated 23- 8-1962, wherein his date of birth has been shown as 2-11-1934. As to the difference of ages in different documents the applicatn's explanation is non availability of the fromula of conversion of "Fasli" calander to Gregorian Calander untill March 1990 when in the year 1990 he had obtained a certificate (Exh.P/5) from Bahadur Yar Jung Academy, Karachi, confirming that the 6th Dai 1344 corresponded to 10th November 1934. His two other witnesses namely Mir Makhdoom Ali son of Mir Muhammad Ali and Syed Yousuf Ahmad son of Syed Muhammad Usman, who were also born and educated at Hyderabad Daccan have stated that their Educational Certificates also bear the dates per "Fasli Calander" which was in vogue in Hyderabad Daccan. It is the case of applicant that evidence adduced by him could not be shattered during cross-examination. It is also the case of the applicant that on behalf of respondent its Secretary, Mr. S. Aziz Ahmad son of Dr. Hafiz Ahmad was examined and in his cross-exmination he stated that the original file containing particulars of applicant has been lost in the office of respondent, hence it is impossible to produce the same. In his cross-examination he also admitted that the date of birth is calculated on the basis of the matriculation certificate and in the case of applicant his date of birth is 6th Dai 1344 but he was unable to explain the difference between "Fasli Calander" and "Christian Calander". He did not dispute other evidence of applicant. He stated that no evidence has been led to show that the date of birth of applicant was 2-1-1931 and that it is not 10th November, 1934.
6. ' It has been contended by the learned Advocate for the applicant that Exhs.P-2, P-5 and P-6 i,e, Matriculation Certificate, Certificate of Bahadur Yar Jung Acadmy and application form for passport of applicant have gone unchallenged and also that for about 30 years the question of correct age of applicant was not disputed or raised by the respondent. It has further been submitted that according to Karachi Development Authority Employees Service Regulations, 1973 all employees at the time of appointment have to declare the date of his birth with confirmatory documentary evidence, such as Matriculation Certificate, a School Leaving Certificate, or Municipal Birth Certificate. In the absence of any such document his age shall be determined from the authorised Medical Officer. It is submitted by the learned Advocate for the applicant that the respondent never required the applicant to submit himself for medical examination for determining his age by some authorised Medical Officer. The learned Advocate for the applicant has also contended that the Lower Appellate Court has erred in considering the age of brotherapplicant who was not examined in the matter. It is also submitted that though the learned Trial Court had given detailed judgment discussing the issues framed in the matter but learned Lower Appellate Court has passed a cursory judgment without discussing the issues in the matter in their appropriate perspective.
7. ' In support of his submissions the learned Advocate for the applicant has placed reliance on the reported cases of:--
(1) Ch. Muhammad Lateef v University of Punjab 1997 CLC 262 and (2) Mst. Aisha v Mst. Fatima and others, 1991 CLC 1499.
8. ' Case reported as 1997 CLC 262 is also with regard to the determination of age of the petitioner of the said case and in the said judgment it has been held that when the petitioner adduces sufficient evidence and explains his date of birth and there is nothing in rebuttal then in such event the claim of the petitioner with regard to his date of birth has to be accepted as true and he entitles himself for the relief claimed.
9. ' Case reported as 1991 CLC 1499 lays down that the judgment of the Ist Appellate Court has to set out points for determination, record the reasons for such determination and that it cannot run away from its onerous duty of recording the findings of fact and discussing the evidence.
10. ' In the circumstances of the case and as discussed hereinabove I am of the opinion that the aforesaid two judgments squarely apply to the case of the applicant.
11. ' On behalf of the respondents their learned Advocate, Mr. Muhammad Ikram Siddiqui, simply stated that he supports the impugned judgment of the learned lower Appellate Court but failed to show as to how the age of brother of applicant was considered by the learned lower appellate Court specially when he was not examined in the matter as a witness either of applicant or that of respondent. He also expressed his ignorance as to how the learned lower Appellate Court travelled beyond the record of the case in passing the impugned judgment. He was unable to cite any judgment or law in support of the case of the respondent in the matter,I am afraid to say that the impugned judgment of the learned lower Appellate Court is devoid of any reasoning and is based on mere' assumptions.For the foregoing the impugned judgment dated 29-5-1996 passed by the learned lower Appellate Court is set aside and I uphold The judgment dated 23-12-1997 and decree dated 4-1-1994 passed by the learned IVth Senior Civil Judge East,. Karachi and as a result this Revision is allowed; but with no order as to costs.