' Miss Ghazala Roohi, respondent herein, moved an application dated 23-9-1989 to the Board of Intermediate and Secondary Education, Lahore seeking relief that her date of birth be accordingly corrected, inserted and substituted as 31-12-1957 instead of 11-8-1955. This application of the respondent was rejected by the Committee, which was constituted under the Regulation of the Board, vide its order dated 12-12-1989.
2. Mst. Ghazala Roohi, respondent, filed a suit seeking declaration in the Court of Civil Judge, Lahore on 11-2-1990 that her date of birth be corrected, inserted and substituted as 31-12-1957 instead of 11- 8-1955 and also prayed for setting aside the order dated 12-12-1989.
3. The suit was resisted by the Board and preliminary objections were raised regarding jurisdiction of the Civil Court to entertain and try the suit filed by the respondents-plaintiff and on merits it was stated that the plaintiff did not produce relevant record to authenticate her date of birth, and therefore, she has no cause of action for filing the suit.
4. From the divergent pleadings of the parties, following issues were framed by the trial Court:--
(1) Whether the Civil Court has got no jurisdiction to hear this suit? OPD
(2) Whether the actual date of birth of the plaintiff is 13-12-1957 and the date of birth given as 21-11- 1955 was incorrectly mentioned in the record?
(3) Relief.
5. The Civil Judge, Lahore while recording the finding on Issue No,1 against the petitioner-Board of Intermediate and Secondary Education held that the Civil Court had the jurisdiction to try the suit.
On Issue No,2 the learned Civil Judge relying on a school leaving certificate (Exh. P.1) recorded a finding in favour of the respondent and decreed the suit vide judgment and decree dated 16-6- 1991. The appeal of the petitioner Board was also dismissed by the learned Additional District Judge, Lahore on 19-4-1992.
' Hence this revision petition.
6. The learned counsel for the petitioner has argued that both the Courts have misinterpreted the provisions of sections 29 and 31 of the Punjab Boards of Intermediate and Secondary Education Act, 1976. He submits that independent of sections 29 and 31 of the Act, as amended uptodate, Article 212(2) of the Constitution of the Islamic Republic of Pakistan, 1973 barred the jurisdiction of the Civil Court to entertain and try the civil suit respecting correction of birth entry as it pertains to her terms and conditions of service. To substantiate his above contention, the learned counsel has placed reliance on the case reported as Rashid Ahmad v. WAPDA and others (1992 PLC (C.S.) 903), 1991 MLD 824 and case reported as Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst. Sobia Chand (1999 CLC 1166). Finally, he has argued that the finding of the domestic tribunal/committee constituted under the Regulations of the Board could have not been substituted by the Court. In this regard, he has cited:-- ' PLD 1973 Lahore 600 and PLD 1964 Lahore 260.
7. Conversely, the learned counsel for the respondent has argued that the orders,, which have not been passed within four corners of the provisions of the Act or law can always be struck down by the Civil Court by exercising jurisdiction being the Court of ultimate jurisdiction. In support of this contention, reliance has been placed on the case reported as Abdul Rauf v. Abdul Hameed Khan (PLD 1965 SC 671). As regards the objection of the learned counsel for the petitioner that the order of correction of the birth entry regarding a civil servant is relatable to the terms and conditions of the public servant and in view of the bar contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973, in reply the learned counsel for the respondent has placed reliance on Regional Commissioner of Income Tax etc. v Sufi Muhammad Baloch (1997 MLD 2801).
8. There are two questions, which need determination in this case, viz., firstly, whether in presence of sections 29 and 31 of the Punjab Boards of Intermediate and Secondary Education Act, 1976, as amended uptodate, Article 212(2) of the Constitution bars the jurisdiction of the Civil Court to entertain and try the civil suit in respect of correction of the birth entry, and secondly, whether there was any evidence available on the record on the basis of which the date of birth of Mst. Ghazala Roohi, respondent-plaintiff, be corrected, inserted and substituted as 31-12-1957 instead of 11-8- 1955 and the order dated 12-12-1989 of the Committee of the Board, constituted under the Regulations was illegal and Issue No,2 has been correctly decided by the two Courts below on the basis of certificate Exh. P.1.
8-A. Firstly I would deal with the first question raised by the parties regarding jurisdiction of the trial Court. In this regard provisions of sections 29 and 31 of the Punjab Boards of Intermediate and Secondary Education Act, 1976 are relevant, which are reproduced as under:-- "20. No act done, order made or proceeding taken by a Board in pursuance of the provisions of this Act shall be called in question in any Court.
' No suit for damages or other legal proceedings shall be instituted against the Government, the Controlling Authority, a Board, a Committee, a member of a Committee or an officer or employee of a Board in respect of anything done or purported to have been done in good faith in pursuance of the provisions of this Act and the Regulations and Rules made thereunder."
The criteria to, determine the jurisdiction of the Civil Court in regard to correction of the date of birth of the candidate in record of the Education Board, may be of two natures, i,e, (1) if any action had been taken in good faith, though the same might not have been done strictly in accordance with the relevant provisions of law, but only purported to be in accordance therewith, jurisdiction has been excluded under sections 29 and 31 of the Act (ibid), where, however, there was no allegation with regard to the main fides and lack of good faith on the part of the Bond's Committee, the jurisdiction of the Civil Court clearly stood ousted, But, where the Board's Committee has acted against the provisions of the Statute or there are allegations of mala fide against the Board regarding any act, the jurisdiction of the Civil Court may not be ousted in spite of provisions of sections 29 and 31 of the Act. In case reported as Muhammad Rafique v. Board of Intermediate and Secondary Education etc. (1983 SCMR 1024) the 'Hon'ble Supreme Court while interpreting sections 29 and 31 has observed: "Nothing to establish lack of good faith. Mere allegation that appeal against punishment was ultimately decided in wrong manner, held, would not confer jurisdiction on Civil Court."
' The question of jurisdiction under sections 29 and 31 of the Boards Act, 1976 came in consideration before this Court in case of Board of Intermediated and Secondary Education, Lahore through Secretary v. Mst. Sobia Chand (1999 CLC 1196) and it was held:-- "If any action had been taken in good faith though same might not have been done strictly in accordance with relevant provisions of law but only purported to be in accordance therewith, jurisdiction was excluded under provisions of section 31 of the Act."
' Admittedly the respondent was a civil servant and in her civil suit she sought a declaration against the petitioner Board and wanted to Get her date of birth changed. It was held in case of Government of Punjab through Secretary, Department of Education, Lahore v. Prof. Mst. Jamida Malik (1991 MLD 824) that no Court including High Court has jurisdiction in respect of terms and conditions of civil servants. The above view in case of Government of Punjab (supra) was reiterated by this Court in case reported as Rashed Ahmad v. WAPDA etc. (1992 PLC (C.S.) 903). The learned 'counsel for the respondent while relying on the judgment of Abdul Rauf v. Abdul Hameed Khan (PLD 1965 SC 671) has tried to make out a case that in spite of ouster of the jurisdiction by way of inserting sections 29 and 31 in the Act of 1976, the questions where act of executive or Administrative Officer, quasi-judicial or judicial tribunal are without jurisdiction and illegal were always considered to be the matter of civil nature to be decide& by Court. There is no cavil with the proposition that jurisdiction of the Civil Court is not ousted in any eventuality. Even in the case of Abdul Rauf (supra), referred to by the learned counsel, the Hon'ble Supreme Court has held that the matter of civil nature to be decided by the Civil Court unless such a jurisdiction taken away, In the present Me since the jurisdiction of the Court has been taken away by virtue of sections 29 and 31 of the Act and there are no allegations of male fides and bad faith on the part of the officials of the Board of Intermediate and Secondary Education, therefore, I am constrained to hold that the Civil Court had no jurisdiction to entertain the suit regarding the correction of the entries of the date of birth of the respondent.
' The learned counsel for the respondent also relied on the ease reported as Regional Commissioner of Income-tax, Karachi and 2 others v. Sufi Muhammad Baluch (1997 MLD 2801) which was decided in revisional jurisdiction arising out in a case for grant of temporary injunction under Order 39, rules 1 and 2, C.P.C. In the case of Regional Commissioner (supra) relied upon by the learned counsel, there was allegation made in the plaint which, according to the High Court, would show that the present respondent has alleged mala fides against the applicants. This question of jurisdiction was dealt with as under:-- "Now question that arises is as to whether this question with regard to determination of age can be determined by the Civil Court or only the Service Tribunal, as already referred to sections 3 and 13 of the Service Tribunals Act, 1973 and Civil Servants Act, such a Tribunals are established only for deciding the matters pertaining to the terms and conditions of service, whereas determination of age is subject which has not been provided for in or under any head of the said Chapter. Learned Standing Counsel has argued that this question is relevant to the question of retirement and, therefore, the same should be deemed to be within the jurisdiction of the Tribunal and not the Civil Court. The allegations made in the plaint would show that the present respondent has alleged mala fides against the applicants. The facts stated above would also show that the case of the present respondent had been pending with the applicant since the year 1966 but no clear-cut decision was taken by them with regard to determination of the age of the respondent, which as per the applicants' own record, is 5-5-1938. This obviously substantiates the allegations of mala fide raised by the respondent. In such a case it cannot be the Civil Court which is the Court of ultimate jurisdiction as provided under section 9 of the C.P.C. To determine such issues of civil nature."
From the resume of the above case-law, it is concluded that if the allegations of mala fides and bad faith and non-exercise of the jurisdiction illegally outside the purview of the provisions of the statute obviously the Civil Court has the jurisdiction to entertain and try the matter, but where there is no such allegation of mala fides, bad faith, or the action of the Department is within the parameters of the act and law the jurisdiction shall be ousted and no Civil Court will take cognizance of the matter.
' A perusal of the plaint in this case would show that there is .No allegation of mala fide or violation of any rule of law in the order passed by the Committee of the Board for not acceding to the request of the respondent to change her birth entry. Therefore, both the Courts below have decided the question of jurisdiction erroneously by misinterpreting the provisions of sections 29 and 31 of the Act and the law. Therefore, the findings of both the Courts on the question of jurisdiction are reversed.
9. The only evidence in support of the respondent's claim was the certificate Exh.P.1 produced by P.W.1 Masooda Butt, Headmistress, Primary School, Rana Town, District Sheikhupura. No record regarding Exh.P.1 was produced by the respondent or the P.W.1. The same plea was taken by the respondent Mst. Ghazala Roohi before the Committee constituted by the Board that the record has been spoiled in the flood. The Committee after scrutinizing the matter passed the order on 12-12- 1989 (Exh. P.4) which is as under:- ' The applicant appeared before the Committee. She has not been able to produce the record stating that the same has been spoiled in floods. Without the record this cannot be entertained.
Hence it is rejected."
' The finding recorded by the Committee in its order dated 12-12-1989 on the basis of non- production of record of Exh. P.1, cannot be substituted by the Civil Court in exercise of jurisdiction as held in the case of Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Muhammad Mushtaq Naseem (PLD 1973 Lah. 600) wherein this Court after perusing the rules contained in the Calendar of the Board of Intermediate and Secondary Education, Lahore observed:-- "The Board of Intermediate and Secondary Education, Lahore is in nature of mere domestic Tribunal constituted under the law and a dispute of this kind between the Board and the candidate admitted to the examination arranged by it is primarily domestic. Such a dispute can be more properly resolved in homely and domestic atmosphere of the Board and should not be ordinarily allowed to drag to the law Court."
' Another reason for not granting the declaration sought by the respondent in her favour is that she would be aged 3 years at the time of admission in her School according to the statement of P.W.1 namely Masooda Butt, Headmistress. She has clearly stated that the Government has fixed five years' age of the child to be admitted in the school and if it is considered that Mst. Ghazala Roohi was born on 31-12-1957 she got the admission at the age of 3 years, which is against the Regulations framed by the Board. There is no evidence on the record that respondent Mst. Ghazala Roohi's date of birth was 31-12-1957 instead of 11-8-1955. The findings of both the Courts below on Issue No,2 are the result of misreading of ,evidence.
Since the respondent had not come with clean hands and it was established that there has been miscarriage of justice on account of the fact that the Courts below had acted in exercise of their jurisdiction illegally, findings though concurrent, become amenable to revisional jurisdiction of the High Court as jurisdiction under section 115, C.P.C. Was primarily meant to correct errors in making orders and proceedings conducted by subordinate Court. See Samar Gul and others v. Muhabat Khan and others (2000 SCMR 974 at page 986).
' For what has been discussed above, this revision petition is accepted, judgments and decrees of both the Courts below are set aside and consequently the suit of Miss Ghazala Roohi, respondent, is dismissed. Parties are left to bear their own costs.
' The revision petition is accepted.
Revision .