PLJ 2010 Peshawar 64
AYUB GUL--Petitioner
versus
CHAIRMAN BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, PESHAWAR and another--Respondents
C.R. No. 64 of 2009, decided on 10.4.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for declaration for correction of date of birth in Matric Certificate and National Identity Card--Dismissed by trial Court--Appeal also met the same fate--Revision petition--Estoppel--Held: On this alleged wrong date of birth, the petitioner joined service and completed his tenure of service while reaching the age of superannuation--He was awakened from a deep slumber and filed the instant suit in order to gain extention in service--Plaintiff/petitioner is legally estopped to challenge the said date of birth specially in the circumstances when he reached the age of superannuation, which cannot be corrected. [Pp. 65 & 66] A & B
1986 SCMR 1950 & MLD 1991 824, rel.
Constitution of Pakistan, 1973--
----Art. 212--Matter related to the terms and conditions of service which action can only be challenged before the service tribunal and no other Court has got jurisdiction to entertain such like pleas in view of bar contained under Art. 212 of the Constitution, 1973--Revision was dismissed. [P. 66] C
Mr. Gohar Zaman Kundi, Advocate for Petitioner.
Respondent in person.
Date of hearing: 10.4.2009.
Judgment
Ayub Gul, petitioner herein, has challenged the judgments and decrees of Additional District Judge-I and Civil Judge-VI Lakki Marwat dated 24.3.2009 and 12.3.2009 respectively whereby his suit was dismissed.
2. Briefly narrated facts of the case are that Ayub Gul had filed a suit for declaration to the effect that his correct date of birth is 11.4.1951 and the wrong entries with respect to the date of birth dated 11.4.1949 is cropped up from his Matric certificate and consequently the same was entered in National Identity Card which wrong entry is illegal, not binding on him and thus liable to be corrected.
3. The defendants/respondents were summoned who submitted detailed written statement. However, Defendant/Respondent No. 2, Faridullah Khan Head Master filed a cognovits admitting the claim of the plaintiff/petitioner. The learned trial Court in view of the pleadings of the parties framed five issues including the relief. The plaintiff/ petitioner then produced his evidence which he wished to adduce, while the defendant/respondent relied on the evidence recorded by the plaintiff/petitioner. The learned trial Court after scanning the record, taking the evidence into consideration and hearing the learned counsel for the parties dismissed the suit of the plaintiff/petitioner vide judgment and decree dated 12.3.2009 and his appeal before the learned Additional District Judge-I Lakki Marwat also met the same fate vide judgment and decree referred above, hence the instant revision petition.
4. It was submitted by the learned counsel for the petitioner that the date of birth of the petitioner has been incorrectly mentioned in the record which later on were incorporated in his educational certificates and National Identity Card. It was also submitted that the Defendant/Respondent No. 2 had filed cognovits in the case admitting the claim of the plaintiff/petitioner, thus, the wrong entries were admitted. It was next submitted that the Defendant/Respondent No. 1 had led no evidence, so there was no evidence in rebuttal against the claim of the petitioner. It was also submitted that the date of birth can be corrected during the service period of a civil servant in the view of the dictum handed down in the case of Administrative Committee of High Court of Sindh Through Registrar, High Court of Sindh Karachi and another Vs. Arjun Ram K. Talreja and another NLR 2008 Civil 532.
5. I have carefully gone through the record of the case and anxiously considered the arguments of the learned counsel for the petitioner as well as the learned Deputy Advocate General for the respondents.
6. Perusal of the record shows that the alleged wrong entry according to petitioner cropped up when he was a student of Primary School which was duly incorporated in various record of the Board as well as the University. On this alleged wrong date of birth, the petitioner joined service and completed his tenure of service while reaching the age of superannuation. He was awakened from a deep slumber and filed the instant suit in order to gain extension in service. The superannuation of sixty years was completed on 10.4.2009 and thus he got retired from service.
7. During the last long period of service he never objected to the date of birth and under this date of birth duly recorded in the testimonials, he joined service, remained in Public Health Engineering Department, secured promotions and reached to the post of Executive Engineer. The attorney for the plaintiff while being cross-examined as PW.2 categorically admitted in the cross-examination that during the entire service of the plaintiff/petitioner, he has never intimated this fact to his department, i.e. Public Health Engineering Department, nor ever applied for the alleged correction of his date of birth, so much so that he obtained the National Identity Card from NADRA and in filing the form thereto entered his date of birth as 11.4.1949. The attorney for the plaintiff was also confronted with the admission form Ex.PW-D-2/5, wherein the plaintiff appeared in Matric examination from Government High School Tank in the year 1966 under Roll Number 15648 wherein the date of birth was entered as 11.4.1949. Thus, the plaintiff/petitioner is legally estopped to challenge the said date of birth specially in the circumstances when he reached the age of superannuation on 10.4.2009 which cannot be corrected in view of the dicta handed down in the case of Sarfaraz Khan Vs. Federation of Pakistan, (1986 SCMR 1950), and Government of the Punjab Through Secretary Department of Education Lahore Vs. Prof: Mst. Jamida Malik and another (MLD 1991 page 824). Besides also, the matter related to the terms and conditions of service which action can only be challenged before the Services Tribunal and no other Court has got jurisdiction to entertain such like pleas in view of the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan 1973.
8. In view of the facts and circumstances of the case narrated above, there is no force in the instant revision petition, which is accordingly dismissed in limine.
(M.S.A.) Petition dismissed.
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