' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court dated 25-1-1999, whereby the writ petition filed by the appellant, herein was dismissed while the appeal filed by respondents Nos.4 and 5 was accepted.
2 . The brief facts of the case are that Ch. Muhammad Din Kausar, appellant herein, and respondents Nes.4 and 5 are serving in the Agriculture Department of Azad Jammu and Kashmir.
According to the appellant, herein, his date of birth was 4-2-1939 whereas according to the respondents his date of birth was 4-2-1937. Before the retirement of the appellant, he filed a writ petition in the High Court that his date of birth was 4-2-1939 in the service record and he apprehended that the same was going to be illegally changed as 4-2-1937 so as to retire him from service. A cross writ petition was also filed by respondents Nos.4 and 5 seeking a writ of quo warranto against the appellant, herein. Both the writ petitions were consolidated by the High Court and were dismissed on the ground that as the matter pertained to terms and conditions of service of the appellant, the writ petitions were incompetent. According to the appellant, he was made to believe by the Government that his date of birth in the service record would not be altered and he would not be retired. However, he filed a declaratory suit in the Court of Sub-Judge, Samahani, against the Punjab University seeking 'a declaration that the actual date of birth is 4-2-1939 and one mentioned in the University record was incorrect. The learned Sub-Judge passed an ex parte decree in his favor. Respondents Nos.4 and 5 filed an appeal to the District Judge but the same was dismissed. Meanwhile, the appellant was retired from service by the Government treating his date of birth as 4-2-1937. Consequently, the appellant filed a writ petition in the High Court challenging his retirement order. The learned Judge in the High Court consolidated the appeal filed by respondents Nos.4 and 5 against the Civil Court's judgment and the writ petition and disposed of the same by the impugned judgment.
3. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellant, has contended that the High Court was not legally justified in dismissing the writ petition filed by the appellant, herein, and setting aside the decree passed by the Civil Court in the suit filed by the appellant. The learned counsel has argued that the date of birth in the service record of the appellant is entered as 4-2-1939 which is in consonance with his date of birth entered in the certificate issued by the Headmaster, Primary School. He has further contended that the said date of birth continued unchanged despite the fact that a dispute arose between the parties regarding their seniority in the service. He has further argued that once, at the instance of respondents Nos.4 and 5, an inquiry was held by the Minister of the department concerned who also expressed the view that the date of birth of the appellant entered in his service record as 4-2-1939 was correct. The learned counsel has argued that thereafter, the Government made the appellant to believe that he would not be retired but despite that, on the basis of a subsequent alleged probe, the appellant was retired assuming his date of birth to be 4-2-1937 which was derogatory to his service record. The learned counsel has also referred to a case reported as Syed Iqbal Haider v. Federation of Pakistan 1998 SCM R 1494, wherein it has been observed that according to the relevant rules in force in. Pakistan, an employee in the Government service can make an application for changing his date of birth within a period of two years of his joining service and not thereafter. Thus, according to the learned counsel for the appellant, the Government could not change the date of birth of the appellant, herein, and order his premature retirement,
4. In reply, Mr. Abdur Rashid Abbasi, Advocate, the learned counsel for respondents Nos.3 and 4, has controverted the arguments advanced on behalf of the appellant. The learned counsel has contended that the subsequent writ petition filed by the appellant, herein, is hit by the principle of res judicata. He has submitted that the previous writ petition filed by the appellant was dismissed not only as being incompetent but also on the ground that the dispute with regard to the correct date of birth of the appellant in the present case being a complicated question of fact cannot be resolved in exercise of writ petition. He has contended that the aforesaid judgment was not appealed against and, thus, the appellant was debarred to re-agitate the matter of his age by filing the subsequent writ. The learned counsel has also argued that in the civil suit filed in the Court of Sub-Judge, Samahni, it was specifically averred by the appellant that his date of birth in the - Matriculation certificate is entered as 4-2-1937 which was not correct and that his correct date of birth was 4-2-1939. However, in the present writ petition, he has alleged that in fact his date of birth in the Matriculation certificate is entered as 4-2-1939; he filed a 'duplicate' Matriculation certificate in support of his subsequent contention. The learned counsel has contended that it has never been the case of the appellant that his date of birth which is entered as 4-2-1937 in the initial record of the University was subsequently corrected by any authority and changed as 4-2-1939. He has submitted that it is evident from the record that in response to the query made by the Department of Services and General Administration, the University Authorities communicated that according to the University record, the correct date of birth of the appellant is 4-2-1937. Thus, the learned counsel has submitted that subsequent certificate is a forged document. According to the learned counsel for the respondents, as the appellant has not only taken contradictory stands in his civil suit and in the present writ petition but also relied upon a forged document, he was not entitled to any relief in exercise of writ jurisdiction. He has further submitted that according to the University gazette for the year 1952 and the certificate issued in the first instance, the date of birth of the appellant is 4-2-1937 and not as 4-2-1939. Thus, he has contended that in view of the dictum of this Court that a person who does not come with clean hands cannot be given any relief in exercise of writ jurisdiction. He has relied upon a case reported as Muhammad Mushtaq v. Muhammad Fiaz Abbasi 1993 CLC 432, wherein it has been held that as the petitioner did not come to the Court with clean hands, he could not be given the relief in writ jurisdiction.
5. We have given due consideration to the arguments raised at the Bar. It may be stated that there are two certificates which purport to have been issued by the Punjab University; in one of them, the date of birth of the appellant is recorded as 4-2-1937 while in the other the same is recorded as 4- 2-1939. The stand taken by the Punjab University is that according to its record, the correct date of birth of the appellant is 4-2-1937 and not as 4-2-1939. Obviously, the certificate subsequently issued in the year 1993 which, according to the appellant, is a 'duplicate' copy is of doubtful authenticity and cannot be relied upon. The perusal of the record shows that in his civil suit, the appellant admitted that in the Matriculation certificate, his date of birth is entered as 4-2-1937, which is incorrect but subsequently in the present writ petition , he has taken a divergent stand that according to the Matriculation certificate, his date of birth is 4-2-1939. This obviously is a contradictory stand which renders the subsequent certificate further doubtful. Thus, in these circumstances, we have no hesitation in holding that the appellant has not come to the Court with clean .Hands and his writ petition could have been dismissed on this sole ground. Even otherwise, the question of correct date of birth of the appellant is complicated in the circumstances listed above and cannot be resolved in writ jurisdiction.
6. So far as the contention of the learned counsel for the appellant that the date of birth of a Government servant could be changed within a period of two years of his joining the service is concerned, no such rule has been shown to be in force in Azad Kashmir. The authority relied upon by the learned counsel for the appellant, referred to above, merely says that 'a Government employee is debarred to seek the correction of his date of birth after the expiry of two years of joining his service'. Obviously, the aforesaid bar would apply to a civil servant or for that matter, in the instant case, to the appellant, herein, and not to the Government or respondents Nos.4 and 5 to question the correctness of the age of the appellant which was entered in his service record. So far as the decree of the Civil Court in favor of the appellant is concerned, the High Court has rightly held that the same was nullity because the Civil Courts of Azad Kashmir have no territorial jurisdiction to pass a decree against the Punjab University in the present case.
' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.