' NABI BUKHSH BHATTI (MEMBER).---The brief facts of the Appeal as per appellant are that the appellant was employed in the Respondent Establishment in October, 1964 and while serving as Senior Vice-President, the appellant tiled a suit for declaration with mandatory injunction bearing No,711/1, dated 22-10-1996 on the ground that two years earlier, it revealed to the appellant from his cousin sister when she was got married on 21-7-1942. The appellant was born, and the correct date of birth of the appellant was 21-7-1942 rather than 6-6-1938, recorded in the service record of the appellant at the time of appointment and thus the appellant got rectified the same in the National Identity Card as well as in the Matriculation Certificate but the respondent denied to accept the same for which the appellant obtained a Declaratory Decree from the Senior Civil Judge dated 14- 4-1997 Annexed. B with the appeal. With further direction for the redressal of the grievance of the appellant in regard to effecting his superannuation retirement on the basis of the date of birth as 21-7-1942 rather than 6-6-1938. The learned counsel for the appellant further submitted that the order of the learned Civil Judge was assailed by the respondent in appeal before the District Judge which was modified to the effect of upholding the so declared date of birth, but without any further direction to the respondents vide judgment dated 5-6-1997 and the appellant, thereafter filed a Revision Petition Civil Revision No,1080-D of 1997 before the Honourable Lahore High Court.
Contending that the learned Additional District Judge was not justified to modify the decree dated 14-4-1997, and prayed for direction to the respondent-Bank to implement upon the decree of the learned Civil Court and to let the appellant continue in service, keeping in view the so declared date of birth. The said revision petition of the appellant was dismissed on 22-4-1998 by. The Honourable Lahore High Court declining any interference in the modified decree passed by the learned Additional District Judge. However, during pendency of the case with the Honourable Lahore High Court, in the meanwhile the respondent-Bank vide Impugned Order dated 5-6-1997 had already got relieved the appellant to be proceeded on Leave Preparatory to Retirement (LPR) effective from 6-6-1997 to 5-6-1998 and ultimately ordered the retirement of the appellant under impugned order dated 5-6-1998 on attaining the age of superrannuation,' on the basis of the earlier recorded date of birth 6-6-1938. Through instant appeal, the appellant assailed the impugned orders dated 5-6-1997 and 5-6-1998 with the prayer for setting aside the same, declaring it to be illegal and mala fide seeking direction to the respondents, to allow the appellant continue his employment till 20-7-2002 on the basis of the decreed date of birth as 21-7-1942.
2. The learned counsel for the appellant vehemently contended that in accordance with date of birth declared by 'the Competent Court of jurisdiction, the appellant is entitled to continue his employment till the age of supernnuation which falls on 20-7-2002. But the respondent passed the impugned order of premature retirement of the appellant acting mala fide and deliberately violated the orders of the Court of competent jurisdiction in regard to declaration of the actual date of birth, of the. Appellant. The learned counsel for the appellant further argued that there existed no direction by the Pakistan Banking Council for getting. The date of birth be corrected in the Bank service record of the employees of the Bk within two years and even otherwise the Pakistan Banking Council is not vested with such powers under the Banking Nationlization Act, 1974, and the appellant is entitled to get his date of birth corrected in his service record within two years from the date of knowledge. The learned counsel for the appellant relying upon the judgment of Lahore High Court placed in 1995 PLC (C.S.) 1041 as well as of Honourable Supreme Court of Pakistan in 1986 SCMR 1950, forcibly contended that the learned Civil Court passed the. Order of declaration of the actual date of birth of the appellant competently, acting within its jurisdiction and the respondents were legally obliged to comply with the orders of the learned Civil Court and the Impugned Order of premature retirement of the appellant being, against law and facts liable to be set aside by this Tribunal with further direction to the respondents, to allow the appellant continue his employment till 20-7-2002, the date of actual retirement of the appellant on the basis of the declared date of birth of the appellant by the learned Civil Court.
3. On the other hand, the learned counsel for the respondents at the very outset objected the maintainability of the Appeal of the appellant on the ground of limitation as well as for having no cause of action as required under the provisions of Service Tribunals Act, 1973. The learned counsel for the respondents contended that the appellant is estopped to agitate his retirement by his own words and conduct and had accepted the order of retirement by tendering his representations for full and final settlement of G.P. Fund as well as of outstanding liabilities. The learned counsel for the respondents argued that at the time of appointment, the appellant got recorded his date of birth as 6-6-1938, on the basis of testimonials/certificates and the orders of retirement of the appellant dated 5-6-1998 have been passed by the competent Authority, rightly on attaining the age of superannuation by the appellant. The learned counsel further submitted that the declaratory decree dated 14-4-1997 in regard to the date of birth of the appellant have nothing to do with the orders of retirement, as the learned. District Judge vide order dated 5-6-1997 modified the Decree of the learned Civil Judge to the effect of setting aside the direction of learned Civil Court for allowing the appellant to continue his employment on the basis of the decretal date of birth and the Honourable Lahore High Court vide Judgment dated 22-4-1998 in civil revision also dismissed revision petition of the appellant, upholding the orders of the learned District Judge and no direction as prayed by the appellant even given by the Court of competent jurisdiction in favour of the appellant. The learned counsel for the respondents relying upon the judgments placed in 1991 PLC (C.S.) 1202, 1991 MLD 824 and 1993 PLC 33, vehemently contended that in accordance with the policy advised by the Pakistan Banking Counsel, it was clearly intimated to the appellant in the year 1996 that the date of birth in the service record could only be corrected within 2 years of joining the service and on the eve of retirement, no, such change could be allowed to the appellant. Furthermore, neither the appellant ever moved before the Court of competent jurisdiction for the execution of the decree as claimed nor did any Court of competent jurisdiction directed the respondents for the execution of the decree claimed by the appellant and under Federal Service Tribunal Act, 1973, the jurisdiction of this Tribunal is limited only within the parameters laid under section 4 of the Act and no terms and conditions of services of the appellant have ever been violated by the respondents and the Service Tribunal cannot assume the authority under Civil Procedure Code for the execution of the decree of the Civil Court. The learned counsel for the respondents prayed for the dismissal of the appeal asserting it to be not maintainable under law and facts.
4. We have heard the learned Counsel for the parties at length, perused the record, and have given our anxious consideration to the pross and coins of the pleadings of the parties, it revealed that when the appellant was got employed in the establishment of the respondents in October, 1964, obviously, he got recorded his date of birth as 6-6-1938 and thereafter uptil 1996, the appellant remained indolent for effecting any change in the earlier recorded date of birth. However, firstly by obtaining the revised National Identity Card and a revised Matriculation Certificate with the new date of birth as 21-7-1942, the appellant obtained a declaratory decree dated 14-4-1997 from the learned Civil Judge to the effect of the declaration of his date of birth as 21-7-1942 and also direction to the respondents for the fruit of the decretal date of birth for the purposes of prolonging his superannuation retirement till July 2002. But the learned District Judge vide judgment dated 5- 6-1997 modified the decree of the learned Civil Judge to the extent of only upholding the declaration of the date of birth of the appellant, against., which the appellant himself filed a revision petition before the Honourable Lahore High Court, which was dismissed by the Honourable High Court on 22-4-1998 declaring any interference in the order of the learned District Judge. It also appeared that even before the orders of the Honourable High Court, the appellant was in fact proceeded on Leave Preparatory to Retirement (L.P.R.) by the Impugned Order dated 5-6-1997 and was got relieved, against which the appellant never moved before any forum and resultantly, was ordered to be retired vide Impugned Order dated 5-6-1998, to which the appellant assailed before this Tribunal on the sole ground of the existence of a declaratory decree with the appellant to the effect of his date of birth as 21-7-1942. Under section 4 of the Federal Service Tribunals Act, an appeal can be preferred against an order passed by the authorities in violation of the settled terms and conditions of service of a Civil Servant. As per terms and conditions of service of the appellant and as per service record of the appellant available with the respondent-Bank, as per earlier recorded date of birth 6-6-1938, the appellant was liable to be retired on 6-6-1998. However, before his actual retirement the appellant obtained the decree of the learned Civil Judge with the declaration of his date of birth as 21-7-1942 which was also upheld by the learned District Judge as well as by the Honourable Lahore High Court to which the respondents continuously remained reluctant of complying with. Under the Civil Procedure Code (Act V of 1908) law for the enforcement and execution of a decree or order of the Courts of competent jurisdiction is clearly laid down and the procedure for the same is also available in the said enactment and a decree-holder can derive benefits of the judgment of the relevant Court by pressing into the law available with the enactment and through execution proceedings, a decree may be enforced, either by the Court which pass it or by the Court to which it is sent for execution and in this regard vast powers and authority is available under law to the concerned Courts. This Tribunal regret to observe that right from the passing of the declaratory decree by the learned Civil Court in favour of the appellant in regard to his date of birth till this day, the appellant never moved before the concerned Court of competent jurisdiction for the enforcement and execution of the same, but on the basis of the decree of the learned Civil Court has invoked the jurisdiction of this Tribunal under section 4 of the Federal Service Tribunals Act. Under the provisions of the Service Tribunals Act, the jurisdiction of this Tribunal is limited within the parameter laid down under the law and we are afraid, this Tribunal cannot clutch the jurisdiction which is not vested with it under the statute and cannot assume the powers for the execution of the decree or orders passed by the learned Civil Court or by the learned District Judge in favour of the appellant. In case of any non-compliance by the respondents, regarding the so declared date of birth of the appellant by the learned Civil Court, the appellant may press into service the provisions of law provided under the Civil Procedure Code and this Tribunal is of the considered view that the appeal is not maintainable under law and facts.
5. Upshot of the above discussion is that the Appeal under consideration is dismissed with no order as to costs.
6. Parties be informed accordingly.