2018 P L C (C.S.) 68
[Balochistan High Court]
Before Muhammad Noor Meskanzai, C.J. and Abdullah Baloch, J
NOOR -UD-DIN and others
Versus
NATIONAL DATABASE AND REGISTRATION AUTHORITY through Director
General NADRA and others
C.Ps.Nos.1043 to 1049 of 2016, decided on 29th December, 2016.
(a) Constitution of Pakistan ---
----Arts. 199 & 212 ---Constitutional petition ---Maintainability ---Civil service ---Correction of
date of birth---Scope--- Withdrawal of constitutional petition without permission to file f resh
one---Filing of fresh constitutional petition ---Effect ---Present matter was with regard to terms
and conditions of civil servants ---Petitioners/employees had adequate and efficacious remedy
before Service Tribunal ---Constitutional jurisdiction of High Court could only be invoked in
exceptional circumstances which lacked in the present case---Factual controversies with regard to actual date of birth was involved in the matter ---Petitioners/employees had
withdrawn their earlier constitutional petition un conditionally ---Fresh constitutional petition
was not competent which was dismissed .
Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 rel.
(b) Civil Procedure Code (V of 1908) ---
----O. XXIII, R. 1 ---Withdrawal of suit ---Filing of fresh suit ---Scope ---Once a suit was
withdrawn without permission to file fresh suit on the same cause of action, plaintiff could
not maintain a suit/petition before the same Court.
Abdul Ahad Kakar for Petitioners.
Zubair Naseem for Respondents.
Date of hearing: 8t h December, 2016.
JUDGMENT
ABDULLAH BALOCH, J. --- This common judgment disposes of Constitutional
Petitions Nos.1043, 1044, 1045, 1046, 1047, 1048 and 1049 of 2016 filed by the petitioners
for correction of their date of births in their Computerized National Identity Cards ("CNICs") being employed in Frontier Corps Balochistan. As per the contents of petition, the details of their actual date of births as well as the date of births wrongly recorded in their CNICs are as under: -
S.No. C.P. No. and name of P etitioner Actual Date of Birth Recorded in CNIC
1. C.P. No.1043/2016 (Noor -ud-Din) 01.01.1990 01.01.1982
2. C.P. No.1044/2016 (Sultan
Ahmed) 12.12.1992 12.12.1980
3. C.P. No.1045/2016 (Muhammad
Azeem) 09.07.1975 1964
4. C.P. No.1046/2016 (Abdullah
Khan) 01.06.1978 01.06.1979
5. C.P. No.1047/2016 (Muhammad
Azeem) 15.03.1984 29.12.1976
6. C.P. No.1048/2016 (Hameedullah) 05.11.1980 1980
7. C.P. No.1049/2016 (Muhammad
Hanif) 05.05.1980 02.01.1981
It is averred in the petition that the actual date of birth of the petitioners were recorded
in the School record and even in the official record and the NADRA for issuance of CNICs as
per their actual date of birth, but after issuance of CNICs to the petitioners, it appeared that
due to inadvertence the date of births of the petitioners have wrongly been mentioned in the CNICs. Hence, the petitioners approached the NADRA Authorities for rectifying the wrong done by them inadvertently, but astonishingly, the petitioners were directed to appr oach the
competent Court of law for redressal of their grievance. It appears from the record that earlier, some of the petitioners approached the Civil Judge Muslim Bagh by filing Civil Suits, but the same were rejected under Order VII, Rule 11, C.P.C. for want of jurisdiction, thus the
petitioners filed Constitutional Petitions before this Court, but the same were subsequently withdrawn with permission to seek remedy available to them before the competent forum. It is further averred that the petitioners f iled Service Appeals before the Balochistan Services
Tribunal, but the authorities concerned have refused to admit the case of the petitioners, hence the petitioners again approached this Court.
2. Learned counsel for the petitioners contended that they ha ve approached the
respondents for redressal of their grievances, but the respondents had flatly refused to do so;
that the petitioners had approached the learned Civil Judge Muslim Bagh, but their suit were rejected under Order VII, Rule 11, C.P.C. for want of jurisdiction; that some of the petitioners also filed Constitutional Petitions before this Court and this Hon'ble Court was pleased to direct the petitioners to approach the competent forum; that the petitioners approached the Balochistan Service Trib unal, but the appeals of the petitioners were not entertained/admitted
by the authorities concerned; that the valuable interest of the petitioners are involved in the matter and the petitioners have no alternate, adequate and efficacious remedy except this
Hon'ble Court.
3. Conversely, Mr. Zubair Naseem, Advocate for the respondents present in the Court,
waives notice and vehemently opposed the contentions of learned counsel for the petitioners and contended that the petitioners have not approached this Court with clean hand; that the
petitions are not competent as no case for change of date of birth in CNIC(s) does arise; that
the petitioners are civil servants, as such, there petitions are not maintainable before this
Court. Moreover the petitioners have w ithdrawn their petitions and the petitions are not
competent on account of bar contained in Order 23, C.P.C.
4. We have heard the counsel for the parties and perused the record with their valuable
assistance. The record reveals that out of seven petitioner s five petitioners are employees of
Frontier Crops Balochistan, while two petitioners are employees of Pakistan Army and
common question is involved in their petitions, that their original date of births were inadvertently written incorrect in their nation al identity cards as per their service records.
Perusal of record further reveals that as per petitioners claimed that they had approached the respondents i.e. NADRA Authority for changing and correction in their CNICs, but there is no such copies of appli cations available on record to ascertain the fact that the petitioners had
approached the respondent for rectification of their date of births. The record further reveals that initially most the petitioners approached the Civil Court and their suit were re jected
under Order VII, Rule 11, C.P.C. for want of jurisdiction, but the petitioners have failed either to challenge the aforesaid impugned order or to approach the competent forum. It is also admitted by the five petitioners that they had filed constitutional petitions before this court on the same subject, but the petitions were withdrawn with intend to approach the competent forum on this count alone without any fresh cause of action petitions are not maintainable. Order XXIII, C.P.C. is clear on the subject that once a suit is withdrawn without permission of filing of fresh suit on the same cause of action the petitioner/plaintiff cannot maintain a suit/petition before the same Court. The petitioners Noor -ud-Din, Sultan
Ahmed, Muhammad Azeem, and Abdull ah Khan had filed C.Ps. Nos.662/2016, 660/2016,
661/2016 and 659/2016 respectively, and they withdrawn their petitions vide order dated 19th October, 2016 which read as under: -
"After arguing the matter at some length, learned counsel for the petitioner do es not
press this petition and sought withdrawal of the same, as he contemplates to seek remedy available to the petitioner before the competent forum. Request is allowed
Petition is dismissed as not pressed."
For convenience the Order XXIII, Rules 1 and 2, C.P.C. is reproduced as under: -
"1. Withdrawal of suit or abandonment of part of claim --- (1) At any time
after the institution of the suit the plaintiff may as against all or any of the defendants, Withdraw his suit or abandon part of his claim.
(2). W here the court is satisfied
(a) That the suit must fail by reason of some formal defect; or
(b) That there are other sufficient grounds for allowing the plaintiff to institute a
fresh suit for the subject matter of the suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without
the permission referred to in sub- rule (2), he shall be liable for such costs as the court
may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such p art of the claim.
(4) Nothing in this rule shall be deemed to authorize the court to permit one of
several Plaintiffs to withdraw without the consent of the others."
2. Limitation law not affected by first suit .--- In any fresh suit instituted on
permissio n granted under the last preceding rule, the plaintiff shall be bound by the
law of limitation in the same manner as if the first suit had not been instituted."
5. Now diverting to the next contention of the learned counsel for the petitioners that
they ha d approached the Balochistan Service Tribunal, but their appeals were not entertained
by the authorities concerned. The perusal of record shows that no such applications are
available on record to ascertain that the same were filed before the Balochistan S ervice
Tribunal. Even Otherwise, the petitioners have approached the wrong forum because the services of the petitioners belongs to Federal Service and they should have to approach the Federal Service Tribunal instead of Provincial Service Tribunal. Even otherwise, aggrieved person of Balochistan Service Tribunal cannot approach this Court.
6. We are of the considered view that the matter concerning to terms and condition of
the civil servant, an adequate and efficacious remedy is available i.e. the Federal Service
Tribunal, constituted under Article 212 of Constitution of Pakistan and the petit ioners could
have approached for the redressal of any grievances qua terms and conditions of services.
The Constitutional jurisdiction of the High Court Under Article 199 of the Constitution can only be invoked in exceptional circumstances, which are lacki ng in this case. In this regard
reliance is placed in case of Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456 relevant portion whereof is reproduced as under: -
"----R.12A ---Service Tribunals Act (LXX of 1973), S.3(2) ---Civil service ---Date of
birth, alteration in ---forum ---Service Tribunal jurisdiction of ---Mode of correction in
the date of birth of a civil servant was provided under R.12A of the Civil Servants
(Appointment, Promotion and Transfer) Rules, 1973, which was part of the terms and condi tions of service of a civil servant ---Correction in date of birth by a civil servant
could not be done through a civil suit (in view of the bar contained under Art.212 of the Constitution) --- Civil servant had to approached the Service Tribunal for alterat ion
in his date of birth."
In view of above it is settled that this Court has no jurisdiction to dilate upon and to
decide such service matter.
7. Mr. Abdul Had Kakar, Advocate for the petitioners was when confronted with the
provision as enumerated under Article 212 of the Constitution, he could not furnish any
plausible justification for invoking of the constitution jurisdiction, except he stated that it is a case of hardship.
8. Without commenting on merits and demerits of the case we are of the considered
view that the date of births of Civil Servants is pivotal question regarding the terms and conditions of the service because it would determine the date of his retirement on the eve of superannuation. Since the factual controversies regarding the actual date of birth is involved in the matters as well as fact that grievance of petitioners are related to the terms and condition of their services and coupled with the fact that the petitioners have withdrawn their earlier petitions unconditionally, therefore, these petitions are not competent, as such, stand dismissed.
ZC/14/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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