2014 P L C (C.S.) 1275
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar, J
REGISTRAR, HIGH COURT OF BALOCHISTAN, QUETTA
Versus
MAZAR KHAN and others
Civil Revision (suo motu) Nos.8 and 39 of 2014, decided on 11th July, 2014.
(a) Civil Procedure Code (V of 1908) ---
----S. 115---Revisional jurisdiction of High Court ---Suo motu powers, exercise of ---Limitation ---
Any revision petition filed under S.115, C.P.C., is subject to limitation but where High Court
exercises suo motu revisio nal jurisdiction under S.115 C.P.C., clog of limitation does not come
in the way of High Court in administration of justice ---Revisional power under S.115, C.P.C., is
supervisory jurisdiction of High Court over subordinate Courts and if limitation of 90 da ys is
made applicable in respect of exercise of supervisory jurisdiction of High Court, then such power
may drastically curtailed and as authority in supervising affairs of its subordinate Courts is
severely hampered.
Mst. Banori v. Jilani, PLD 2010 SC 1186 and Rehmdil v. Province of Balochistan 1999
SCMR 1060 rel.
(b) Civil Procedure Code (V of 1908) ---
----S. 115---Revisional jurisdiction ---Scope ---Revisional jurisdiction is very vast and
corresponds to remedy of "certiorari" which although discre tionary yet can be invoked suo motu
as well and Court can "make such order in the case as it thinks fit".
(c) Civil service ---
----Promotion--- Even if promotion is not considered to be a vested right of any civil servant, a
legitimate expectation of promotion to higher rank comes to reside in the minds of eligible
persons.
(d) Civil Procedure Code (V of 1908) ---
----S. 2(2) ---Decree- Applicability ---Scope---Decree is binding only on parties to suit and not on
a stranger ---Every person/authority not impleaded in the array of dependents is a stranger.
(e) Constitution of Pakistan ---
----Art. 212(2) ---Words "other court" ---Sc ope---Words "other courts" occurring in Art.212(2) of
the Constitution, include all subordinate Courts/High Courts ---No civil Court can exercise
jurisdiction where matter brought before it involves enforcement of terms and conditions of
service of civil servants.
Dr. Rehmat Ibad Khan v. Employees' Old- Age Benefits Institution 2002 SCMR 572 rel.
(f) Constitution of Pakistan ---
----Art. 199---Words "alternate remedy" ---Scope ---Adequacy of alternate remedy varies from
case to case depending upon nature of remedy provided by law and peculiar facts and
circumstances of each case.
(g) Constitution of Pakistan ---
----Art. 212---Service Tribunal, establishment of ---Object to establish Service Tribunals was to
provide special forum to civil servants for rectification of wrong done to them in connection with
any terms and conditions of their service.
(h) Administration of justice ---
----Legal remedy ---Indulgence ---Effect ---Where law provides a remedy by appeal to another
Tribunal fully competent to gi ve any relief, any indulgence to the contrary by any Civil Court
including High Court is bound to produce a sense of distrust in statutory Tribunals.
(i) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979---
----R. 12- A---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art. 212---Civil
Procedure Code (V of 1908), S.115---Alteration in date of birth --- Terms and conditions of
service---Civil Court, jurisdiction of ---Civil servants filed civil suits for declaration regarding
correction of their dates of births and sought amendment of their dates of births in official
record ---High Court, in exercise of suo motu powers invoked revisional jurisdiction under S.115,
C.P.C. against judgment and decre es passed in favour of civil servants ---Validity ---Civil servants
entered into government service in years, 1976 and 2005 respectively and if at all they had valid
claims, they should have instituted proceedings for correction of their dates of births within the
period of two years from dates of joining of government service and if it was not possible then at
least, they should have agitated for correction of their dates of births within a reasonable time,
which according to them was wrongly recorded in ser vice record ---Presumption would be that
civil servants were satisfied with dates of births mentioned in their service record and Annual
Confidential Reports because they did not challenge the same at an earlier stage ---Civil servants
had knowledge about th eir dates of births but kept silent at relevant time and slept over their
alleged rights and no request whatsoever was made to get it altered ---Civil servants woke up
from a deep slumber after about 36 and 5 years respectively and no explanation whatsoever had
been furnished regarding such silence, and the same had spoken volumes of their conduct and
genuineness of their claims ---At such belated stage, civil servants could not be allowed to change
their stance after a considerable long period in spite of the fact that they were in possession of all
relevant documents concerning to their dates of births ---Civil/Qazi Court was not vested with
jurisdiction to entertain suit of civil servant in respect of date of birth and its decree did not bind
government and therefore, government was not obliged to alter service record on the basis of
decree passed by Civil Court ---High Court directed to ensure scrutiny of record of government
servants/civil servants who had got altered their dates of births in service record on the basis of
decrees obtained by them from Civil/Qazi Courts without impleading Government of
Balochistan in the array of defendants ---High Court further directed that such civil servants, if
they were still in service, should be proceeded against after affording them a reasonable
opportunity of hearing in accordance with relevant law that could culminate in their dismissal or
retirement from service, besides recovery of excess amount paid to them on account of salary,
perks and emoluments etc.--- High Co urt also directed that if academic certificates or other
documents were found forged on the basis whereof dates of births were got altered in service
record, probability of instituting criminal cases should also be considered---High Court directed
that if any other public official was found to be guilty of connivance or negligence in such
respect, the government would take appropriate disciplinary action against him / her under the
relevant law ---High Court, in exercise of suo motu revisional jurisdiction, set aside judgments
and decrees passed in favour of civil servants altering their dates of births ---Revision was
allowed accordingly.
M.R. Khalid v. Chief Secretary, Punjab 1994 SCMR 1633; Niaz Akbar v. Pakistan
Atomic Energy Commission 2002 SCMR 992 a nd Khyber Tractors (Pvt.) Ltd v. Pakistan
through Ministry of Finance, PLD 2005 SC 842 ref.
(j) Civil Procedure Code (V of 1908) ---
----S. 2(2) ---Decree ---Court having no jurisdiction---Effect ---Decree passed by a Court without
jurisdiction is nullity and its invalidity can be set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of execution and in collateral proceedings.
Muhammad Saleem Baloch, Addl. A.- G., Abdul Latif Kakar and Shai Haq Baloch, Asstt.
A.G. for Petitioner.
Shah Muhammad Jatoi and Muhammad Akram Shah for Respondents.
Dates of hearing: 30th and 7th July, 2014.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. --- A note was put up by the Assistant
Registrar (Judicial) of this Court on 26th December 2013, which reads as under: ---
"It is submitted in the enquiry case of Mr. Gul Dad, the then Qazi Kalat and Mastung, the
Hon'ble Chief Justice while appointing Hon'ble Mr. Justice Ghulam Mustafa Mengal, as
Authorized Officer simultaneously ordered that re cord of following cases be called for and
where it is deemed that the case falls under clauses (a), (b) and/or (c) of section 115, C.P.C.,
Hon'ble Justice Muhammad Hashim Khan to exercise revisional powers in respect of such
case/s.
(1) Case No.16 of 2012 titled Hamidullah v. Chairman BBISE.
(2) Case No.15 of 2012 titled Abidullah v. Chairman BBISE.
(3) Case No.34 of 2012 titled Murad Bibi v. Registration Officer Mastung
(4) Case No.25 of 2012 titled Abdul Wahab v. NADRA
(5) Case No.28 of 2012 titled Mazar Khan v. Registration Officer Mastung.
(6) Case No.5 of 2013 titled Nisar Ahmed v. Chairman BBISE.
In compliance of the same, record of above cases are placed beneath for your honour's
kind examination and passing of ord ers as deemed appropriate."
2. After perusal of the record, while exercising the revisional powers under section 115 of
the Civil Procedure Code, 1908 (C.P.C.), notices were issued to the respondents.
3. In response to notices, the plaintiffs in the above noted suits, namely, Dr. Sadaf Sadia
daughter of Ghulam Haider and Mazar Khan appeared and the note of the Assistant Registrar
was converted into Civil Revisions Petitions Nos.8 and 39 of 2014, wherein the Registrar of the
High Court was arrayed as the petitioner and the above named plaintiffs as the respondents.
4. In Civil Revision Petition No.8 of 2014, respondent/plaintiff joined the government
service in the year 1976 and at the time of entry in service, he had shown his date of birth as
1954. He filed Civil Suit No.28 of 2012 in the Court of Qazi, Sarawan at Mastung on 4th, June
2012 against the Board of Intermediate and Secondary Education, Balochistan, for a declaration
to the effect that he was actually born in the year 1958 and his date of bi rth was wrongly
mentioned as 1954 in his service record. The suit was decreed by the learned Qazi and granted
him a declaration to the effect that his date of birth was 1958. Apparently, the Board did not care
to challenge the declaration granted to the respondent before the higher forum.
5. In Revision Petition No.39 of 2014, respondent No.1 joined government service in the
year 2005 as Lady Medical Officer. The date of birth then recorded at the time of her, joining the
service was 1st February, 1978, s upported by her matriculation certificate. She filed a civil suit
before the learned Qazi Kalat, which was decreed in her favour vide judgment dated 1st October,
2013.
6. Messrs Shah Muhammad Jatoi and Muhammad Akram Shah, learned counsel for the
respondents, objected to the maintainability of the instant revision petitions, on the ground that
the same are barred by time. It was next contended that this Court has no power to take suo motu
notice and that the concerned trial Courts were fully justified in decreeing the suits filed on
behalf of the respondents. They also submitted that since no appeal has been filed by the
concerned authorities, as such, this Court is barred from exercising jurisdiction under section 115
of the Civil Procedure Code, 1908 (C.P.C.). While concluding their arguments, they further
submitted that the judgments and decrees do not suffer from any illegality or material
irregularity; as such, the same are immune from interference by this Court in exercise of limited
revisional jurisd iction.
7. On the contrary, Mr. Abdul Latif Kakar, learned Assistant Advocate -General, appearing
on behalf of the petitioner, stated that the concerned trial Court had no jurisdiction to entertain a
suit for correction of date of birth in view of Article 212 of the Constitution of Islamic Republic
of Pakistan, 1973 (the "Constitution") and he also invited my attention towards the provisions as
enumerated in Rule 11 of the Balochistan Civil Servants (Appointment, Promotion and Transfer)
Rules, 2009 (the "R ules of 2009") which, inter alia, provides that the date of birth of a civil
servant recorded once at the time of joining government service cannot be changed and shall be
treated as final. He further submitted that the civil court decree is not binding on the government
as the tribunal constituted under the Balochistan Service Tribunal Act, 1974, alone has got
jurisdiction to decide the service disputes, including correction of date of birth in the service
record of government servant and, therefore, civil court judgment will not bind the government
in that regard.
8. I have carefully examined the respective contentions as agitated on behalf of the parties
in the light of relevant provisions of law and record of the cases. In so far as the question of
limitation is concerned, no doubt, any revision petition filed under section 115 of the C.P.C. will
be subject to limitation, but where the High Court exercises suo motu revisional jurisdiction
under section 115 of the C.P.C., the clog of limitation will not come in the way, of the High
Court in the administration of justice. The revisional power under section 115 of the C.P.C. is a
supervisory jurisdiction of the High Court over the subordinate Courts and if for the sake of
argument the limitation of 90 days is made applicable in respect of the exercise of supervisory
jurisdiction of the High Court, the High Court's power will be drastically curtailed and as
authority in supervising the affairs of its subordinate Courts will be severely hampered. The true
construction of section 115 of the C.P.C. indicates that the High Court may at any time call for
the record of any case from the subordinate Courts in order to determine as to whether the
subordinate Court has exercised jurisdiction not vested in it or has fai led to exercise jurisdiction
vested in it or has committed any illegality or material irregularity. Under section 115 of the
C.P.C., the High Court can either itself (suo motu) exercise jurisdiction or an application can be
submitted before it whereupon ac tion is taken. Section 115 of the C.P.C. provides as under: ---
"115. Revision.--- (1) The High Court may call for the record of any case which has been
decided by any court subordinate to such High Court and in which no appeal lies thereto, and if
such s ubordinate Court appears ---
(a) To have exercised a jurisdiction not vested in it by law, or
(b) To have failed to exercise a jurisdiction so vested, or
(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, the
High Court may make such order in the case as it thinks fit."
9. The bare reading of above provisions of law clearly postulate that the High Court may at
any time call for the record of any case from any subordinate court in order to determine as to
whether the subordinate court had exercised jurisdiction not vested in it or had failed to exercise
jurisdiction vested in it or had committed material irregularity in exercise of its jurisdiction. The
revisional jurisdiction is very vast and corresponds t o the remedy of "certiorari" which though
discretionary yet can be invoked suo motu as well and Court can "make such order in the case as
it thinks fit". Since in the language of section 115 of the C.P.C., this court can make such order
as may be needed in the circumstances of the case, thus, there is no ambiguity that during the
course of exercise of revisional jurisdiction, the court exercising it can pass any order needed in
the circumstances of the case. The revisional power conferred on this court is essentially a
supervisory power to correct jurisdictional errors, illegalities and irregularities in the decisions of
the subordinate courts. I am conscious of the fact that no party to the case has filed revision,
rather the matter was brought to the notic e of the Hon'ble Chief Justice by the Inspection Branch
of this Court, but, admittedly, as stated above, the powers under section 115 of the C.P.C. can be
exercised suo motu, therefore, no restriction whatsoever was placed therein on the sources from
which the information regarding any error, illegality or irregularity of the kind mentioned in
section 115 of the C.P.C. could reach the High Court. Reference can be made to a case of Mst.
Banori v. Jilani, PLD 2010 SC 1186 relevant portion whereof reads as fol lows: ---
"4. As has been mentioned above, the power under section 115 of the C.P.C. was basically a
power exercisable suo motu. Therefore, no restriction whatsoever was placed on the sources
from which the information regarding any error, illegality or i rregularity of the kind mentioned
in S.115, C.P.C. could reach the High Court. Resultantly, nothing stopped even the parties to a
lis from laying any such information before the High Court and this is then what permitted even
private persons from filing applications in the High Courts which gradually came to be known a
REVISION PETITION. And since no limitation of time regulated the said matter, therefore, such
a revision petition could, in theory, be filed even after months and years of a decision taken by a
subordinate court. The record of the proceedings in question would then be called by the High
Court and, not infrequently, when such revision petitions were filed with respect to decisions
relating to interlocutory matters, the proceedings in the main s uit also got stayed on account of
summoning of record resulting in inordinate though avoidable delays in dispensation of justice."
10. Similarly, in the case of Rehmdil v. Province of Balochistan, (1999 SCMR 1060), the
Hon'ble Supreme Court held that eve n if a revision petition filed by an aggrieved party is barred
by time the court, "still has a discretion to invoke its own suo motu revisional authority to
advance justice and to suppress mischief albeit only when a jurisdictional error, in contemplation
of the section is encountered."
11. It may be noted that civil servants seek correction of their date of birth by filing a civil
suit for declaration in civil courts/qazi courts. In most of such cases, the Provincial Government
is not impleaded as party and decree is obtained. They then approach the departmental
authorities and seek correction of their dates of birth in service record. Through this entire
exercise, they aim to remain in service beyond age of superannuation. It may be noted that such
undue extension in service results is causing adverse effects on the prospects of promotion of
other officers/officials, who are, otherwise, eligible. Needless to say that even if promotion is not
considered to be a vested right of any civil servant, a legitima te expectation of promotion to
higher rank comes to reside in the minds of eligible persons. It has been observed that the
departmental authorities are completely oblivious of the law in this regard and failed to take
notice of a simpler question that decr ee is binding only on the parties to suit and not on a
stranger. Every person/authority not impleaded in the array of dependents is a stranger. In this
respect, reference can be made to the case of M.R. Khalid v. Chief Secretary, Punjab, (1994
SCMR 1633), wherein it was held that:---
"Mere fact that civil servant was able to obtain a decree from Civil Court for correction
of date of birth, did not advance his case for the Government was not a party to that civil suit
brought by him."
The aforesaid view was reiterated by Hon'ble Supreme Court of Pakistan in the case of Niaz
Akbar v. Pakistan Atomic Energy Commission, (2002 SCMR 992), wherein Hon'ble Supreme
seized off the similar matter pertaining to binding nature of such decrees. The Hon'ble Court laid
down as follows: ---
"Employee after a period of 13 years of issuance of his matriculation certificate had filed
a declaratory decree which he had procured without impleading the commission as a party,
wherein he had taken a job on the basis of such doc ument. Sanctity would be given to the
employee 's date of birth given by him 13 years prior to the date of securing decree in this regard
at the time of his appointment in the Commission. According to R. 116 of General Financial
Rules of Central Government , only clerical error in birth certificate could be rectified. No right
could accrue to a party on the basis of an order passed in oblivion of the rules. Supreme Court
refused to grand leave to appeal and dismissed the petition in circumstances."
12. The moot questions; which crop up for consideration, would broadly be as to whether
correction of date of birth of civil servants involves a matter relating to terms and conditions of
their service? And whether jurisdiction of civil courts is completely ouste d in such matters? To
better appreciate the questions mooted above, it would be of relevance to give overview of the
provisions of the Constitution. A comparative study of Articles 175 and 212 read with Article
199 of the Constitution would be instructive in this respect. Article 175 says: ---
"175. Establishment and Jurisdiction of Courts.
(1) There shall be a Supreme Court of Pakistan, a High Court for each Province [and a High
Courts for the Islamabad Capital Territory] and such other Courts as may be established by law.
[Explanation.--- Unless the context otherwise requires, the words "High Court" wherever
occurring in the Constitution shall include "Islamabad High Court".]
(2) No court shall have any jurisdiction save as is or may be conferred on it by the
Constitution or by or under any law.
(3) .
(Emphasis supplied by me)
13. All Courts in Islamic Republic of Pakistan owe their creation to above mentioned Article
and words "No court shall have any jurisdiction" appearing in the above Ar ticle indicate the
legislative intent, and it provides negative mandatory command that courts would not have any
jurisdiction, save as is or may be conferred on them by the Constitution or by or under any law.
It must follow as a corollary that civil courts could not confer upon itself additional jurisdiction
not warranted by the Constitution or specifically ousted by the Constitution. It is a principle of
interpretation of statute well settled by superior courts that negative words used in a statutory
provision would normally make same absolutely mandatory in nature.
14. At this stage, it seems appropriate to mention that it is the duty of every court to first
determine its jurisdiction then proceed ahead, because any order passed without jurisdiction,
would be void ab- initio and nullity in the eye of law. An order without jurisdiction is void and
binds no body. Such order neither creates nor recognizes any right or liability and no legal
incidents attach to it. It is as if it was never made. In this respe ct, reference can be made to the
case of Khyber Tractors (Pvt.) Ltd v. Pakistan through Ministry of Finance, (PLD 2005 Supreme
Court 842): ---
"Question of jurisdiction of a forum is always considered to be very important and any
order passed by a court or a forum, having no jurisdiction, even if it is found to be correct on
merits, is not sustainable. Jurisdiction of a court lays down a foundation stone for a judicial or a
quasi -judicial functionary to exercise its powers/authority and no sooner the ques tion of
jurisdiction is determined in negative, the whole edifice, built on such defective proceedings, is
bound to crumble down."
15. In the context of the cases in hand, the mandate of constitutional provision must also be
kept in mind i.e. Article 212 of the Constitution, which reads as under: ---
212. Administrative Courts and Tribunals.--- (1) Notwithstanding anything hereinbefore
contained, the appropriate Legislature may by Act provide for the establishment of one or more
Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of ---
(a) matters relating to the terms and conditions of persons who are or have been in the
service of Pakistan, including disciplinary matter;
(a) matters relating to claims arising from tortio us acts of Government, or any person in the
service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess
and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is
deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or
Tribunal is established under clause (1), no other Court shall grant an injunction, make any order
or entertain any proceeding in respect of any matter to which the jurisdiction of such
Administrative Court or Tribunal extends and all proceedings in respect of any such matter
which may be pending before such other Court immediately before the establishment of the
Administrative Court or Tribunal other than an appeal pending before the Supreme Court shall
abate on such establishment:
Provided that the provisions of this clause shall not apply to an Admini strative Court or
Tribunal established under an Act of a Provincial Assembly unless, at the request of that
Assembly made in the form of a resolution, Majlis -e-Shoora (Parliament) by law extends the
provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an
Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case
involves a substantial question of law of public importance, grants leave to appeal." (emphasis
supplied by me)
16. The language used in Article 212 of the Constitution is such that it leaves no room for
doubt as to the intention of the legislature to oust the jurisdiction of all other courts in all
circumstances where matter involves ter ms and conditions of service of civil servants. The non -
obstante clause "notwithstanding anything herein before contained" twice occurring in clauses
(1) and (2) of the present Article clearly indicate that the Article stands on a higher pedestal.
Provisions of Article 212 of the Constitution having non- obstante clauses would have an
overriding effect. Any matter pertaining to the terms and conditions of service of a civil servant
or disciplinary matter cannot be entertained by any other court and the same falls within the
jurisdiction of appropriate Service Tribunal established under the same Article 212. On the
establishment of Service/Administrative Tribunals, jurisdiction of other courts including that of
High Courts under Article 199 of the Constitution has been ousted to the extent of jurisdiction
vested in such Tribunals under Article 212. The words "other court" occurring in clause (2) of
Article 212 include all Subordinate Courts/High Courts and lead me to irresistible conclusion
that no civil courts can exercise jurisdiction where matter brought before it involves enforcement
of terms and conditions of service of civil servants. By holding this view, I am fortified by a
judgment of Hon'ble Supreme Court of Pakistan in case of "Dr. Rehmat Ibad Khan v.
Employees' Old -Age Benefits Institution" (2002 SCMR 572).
17. Similarly, we have also to keep in mind the opening words employed in Article 199(1) of
the Constitution, which reads as under: ---
"199. Jurisdiction of High Court.--- (1) Subject to the Constitution, a High Court may, if it is
satisfied that no other adequate remedy is provided by law."
Aforesaid words have deliberately been used in the said Article and would be rendered redundant
if not given strict application thereof. It should be borne in mind firstly, the original
constitutional jurisdiction of High Court has been made subject to the Constitution, which
contains an Article 212 and secondly, that High Court can issue writ if no other adequate remedy
is provided by law. I do not intend to dilate upon the question of adequacy of alternate remedy,
which varies from case to case depending upon the nature of remedy provided by law and
peculiar facts and circumstances of the each case. But in the instant case, I have no doubt in my
mind that the alternate remedy of appeal to Service Tribunal provided by law to civil servants
cannot be said to be inadequate. At this juncture, it would be important to peruse Preamble and
section 4 of the Balochistan Tribunal Act, 1974 (Act V of 1974), which reads as under: ---
"Preamble. --- Whereas it is expedient to provide for the establishment of Administrative
Tribunals, to be called Service Tribunals, to exercise exclusive jurisdiction in respect of matters
relating to the terms and conditions of service of civil servants, and for matters connected
therewith or ancillary thereto."
"4. Appeals to Tribunals. Any civil servant aggrieved by any final order, whether original or
appellate, made by departmental authority in respect of any of the terms and conditi ons of his
service may, within thirty days of the communication of such order to him, prefer an appeal to
the Tribunal having jurisdiction in the matter:
Provided that ---
(a) where an appeal, review or representation to a departmental authority is pro vided under
any law or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved
civil servant has preferred an appeal or application for review or representation to such
departmental authority and a period of ninety days has elapsed from the date on which such
appeal, application or representation was so preferred; and
(b) No appeal shall lie to a Tribunal against an order or decision of a departmental authority
determining ---
(i) the fitness or otherwise of a person to be appointed to or hold a particular post or to be
promoted to a higher post or grade; or
(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result
of departmental inquiry, except where the penalty imposed his dismissal from service, removal
from service or compulsory retirement.
Explanation.--- In this section "departmental authority" means any authority other than a
Tribunal, which is competent to make an order in respect of any of the terms and conditions of
civil servants."
18. From the perusal of aforesaid provisions of law, it may be noted that the Service Tribunal
has been established in accordance with requirement and provision made in the Constitution. The
object to establish Service Tribunals was to provide special forum to civil servants for
rectification of the wrong done to them in connection with any terms and conditions of their
service. It may also be noted that Balochistan Service Tribunals Act, 1974 provides self -
contained machinery for the determina tion of questions arising from terms and conditions of
service of civil servants. Where law provides a remedy by appeal to another Tribunal fully
competent to give any relief, any indulgence to the contrary by any Civil Court including High
Court is bound to produce a sense of distrust in statutory Tribunals. Civil servant cannot be
allowed to bypass Service Tribunal on any ground whatsoever.
19. Now the situation is ripe to determine the question whether correction of date of birth is
part of terms and c onditions of service or otherwise? If the answer thereto is in affirmative, then
it would conclude the moot question of jurisdiction of civil courts in such matters. Under Article
240 of the Constitution, the conditions of service of persons in the service of Pakistan are
required to be determined in the case of the services of the federation, by or under Act of Majlis -
e-Shoora (Parliament) while in case of services of a province, by or under the Act of Provincial
Assembly. In this connection, the Provincia l Assembly of Balochistan promulgated the
Balochistan Civil Servants Act, 1974 (IX of 1974) and the same was published in the gazette of
Balochistan, extraordinary dated 20th July, 1974. While exercising the powers conferred by
subsection (1) of section 25 of the Balochistan Civil Servants Act, 1974, the Government of
Balochistan has made different rules of which Balochistan Civil Servants (Appointment,
Promotion and Transfer) Rules, 1979 are relevant in the instant case. In the said rules, a new
Rule 12- A was added vide Notification No.SOR -11(160)/ 98- S&GAD -5260- 5369 dated 11th
December 1988, which reads as under: ---
"12-A. Alteration in the date of birth.--- The date of birth once recorded of a civil servant at the
time of joining the Government service shall be final and no alteration in the date of birth of a
civil servant shall be permissible."
20, The aforesaid Rules of 1979 were repealed and replaced with Balochistan Civil Servants
(Appointment, Promotion and Transfer) Rules, 2009. Rule 11 of the s aid Rules deals with
correction of date of birth and the same reads as under: ---
"11. Alteration in date of birth. The date of birth of a civil servant once recorded at the time of
joining the Government service shall be final and no alteration therein s hall be permissible,
except, where a clerical mistake occurs in recording the date of birth in the Service record:
Provided that, no request of a civil servant on this ground shall be entertained after a
period of two years from the date of such entry i n his service record; and all such cases shall be
decided by the Appointing Authority, on the recommendation of an Enquiry Committee with the
following composition:
1, Senior Member, Board of Revenue Chairman
2. Secretary, S&GAD Member
3. Secretary, Law Department Member
4. Secretary of the concerned Co -opted Administrative
Department Member
21. The above quoted rule manifestly reveals that date of birth once recorded at the time of
joining government service shall be final and, thereafter, no alteration in the date of birth shall be
permissible. A government servant, after entry into service, acquires the right to continue till the
age of retirement, as fixed by the government in exercise of its powers regulating conditions of
service, unless t he services are dispensed with on other grounds contained in the relevant service
rules after following the procedure prescribed therein. The date of birth entered in the service
record of a civil servant is, thus, of utmost importance for the reason that the right to continue in
service stands decided by its entry in the service record. A government servant, who has declared
his age at the initial stage of employment, is of course not precluded from making a request letter
on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he
is in possession of irrefutable proof relating to his date of birth as different from the one earlier
recorded and even if there is no period of limitation prescribed for seeking corre ction of date of
birth, the government servant must do so without any unreasonable delay. The date of birth of
the government servant, once recorded in service book, cannot be corrected, except in the case of
a clerical error. The aforementioned rule clear ly provided that the date of birth/declaration of age
made at the time of entry into service shall be deemed to be conclusive as against the
government servant, unless he applies for correction of his age within two years from the date of
his entry into government service. According to respondents own showing, they entered into
government service in the years 1976 and 2005 respectively and if, at all, the respondents have
valid claims, they should have instituted proceedings for correction of their dates of birth within
the period of two years from the date of joining of government service and if it was not possible,
then, at least, they should have agitated for correction of their date of birth within a reasonable
time, which, according to them, have been w rongly recorded in the service record. It can easily
be presumed that the respondents were satisfied with the date of birth mentioned in their service
record and Annual Confidential Reports, because they did not challenge the same at an earlier
stage. They had the knowledge about their date of birth, but kept silent at the relevant time and
slept over their alleged rights and no request whatsoever was made to get it altered. They woke
up from a deep slumber after about 36 and 5 years respectively and no explanation whatsoever
has been furnished regarding this silence, which speaks volume of their conduct and genuineness
of their claims. At this belated stage, they cannot be allowed to change their stance after a
considerable long period in spite of the fact that they were in possession of all the relevant
documents concerning to their dates of birth.
22. Admittedly, the civil/qazi court was not vested with the jurisdiction to entertain the suit
of a civil servant in respect of date of birth and its decree d oes not bind the government and,
therefore, the government is not obliged to alter the service record on the basis of civil court's
decree. It is well established principle of law that a decree passed by a court without jurisdiction
is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of execution and in collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or territorial or whether it is in respect of s ubject matter of
the action, strikes at the very authority of the court to pass any decree, and such a defect cannot
be cured even by consent of parties, thus, the judgments and decrees, passed by the learned trial
courts were coram non judice.
23. There is another reason for holding that the judgments and decrees rendered by the
learned trial courts are not sustainable i.e. non -joining of the necessary parties in their respective
suits by the respondents. The ages of respondents have been reflected in al l educational
documents and they intended to make a change in the record of the school, college, University of
Balochistan, National Database and Registration Authority (NADRA) as well as Services and
General Administration Department (S&GAD), Government of Balochistan, but, surprisingly,
they did not array all the aforesaid institutions as defendants in their suits, thus, the suits were
bad for misjoinder and non- joinder of necessary parties. Be that as it may, even the courts below
were required for addin g the names of aforesaid institutions as defendants in the suits, who ought
to have been joined in the proceedings in order to settle and adjudicate upon all questions
involved in the suits completely and effectively. I am of the considered view that trial of the suit,
without necessary parties, is against the public policy and scheme of law. Court is obliged to
ensure that necessary and even proper parties are heard before a decree is rendered. Failure by
the respondents as well as the trial judges to implead the aforesaid institutions, who were
necessary parties to the suits, rendered the judgments and decrees unsustainable.
24. It may be observed that a tendency has developed, whereby unwarranted claims,
attempting to show error in the 'date of birth', are asserted towards retiring age by fabricating or
manipulating documents in that behalf. It has become a common practice with the civil servants
to file declaratory suits for correction of date of birth when they come to the verge of their
retirement jus t to prolong their tenure of service for enjoying the perks and privileges for a few
more years at the cost of other civil servants. Such tendency on the part of civil servants not only
requires serious consideration of provincial government, but it is als o need of the hour to
discourage and effectively curb such tendency. This court is seriously concerned with such kind
of practice, which if allowed, would not only affect the performance of the civil servants, but
would also lead to serious complications a nd open a Pandora box. As observed hereinabove,
after issuance of General Financial Rules 116 -117, decision of the Government circulated by the
S&GAD dated 27th July, 1994 and insertion of Rule 11 of the Balochistan Civil Servants
(Appointment, Promotion a nd Transfer) Rules, 2009, the Government, except in the cases of
clerical mistake, cannot change the date of birth of a civil servant, because a complete embargo
has been imposed on its power. Permitting government servants to change their dates of birth
after two years of joining government service or at the twilight of their career would amount to
permitting a civil servant to continue government service even after attaining the age of
superannuation. It would also be pertinent to add here that the mere f act that the civil servants
were able to obtain decrees from civil court, having no jurisdiction, did not advance their cases
for the reason that the government was not a party in such like cases brought by civil servants.
25. Keeping in view the importa nce of the issue under consideration, directions were issued
to Secretary S&GAD, Government of Balochistan, to furnish data of all those officials, who have
changed their dates of birth after two years of joining government service and in this respect
Depu ty Secretary; viz. Mr. Noor Hussain Baloch, appeared before this Court on number of
hearings of the instant revision petitions, but failed to furnish the complete requisite data. He
contended that in spite of hectic efforts, he could not collect the requir ed data from the concerned
Secretaries of the attached departments due to non -cooperation on their parts, which seems to be
an intentional act on the part of concerned officials just to save blue eyed chaps, who have
changed their dates of birth on the str ength of declaratory decrees, obtained from the civil/qazi
courts. In such circumstances, I am left with no option, but to issue the following directions to
the Chief Secretary, Government of Balochistan, for meticulous implementation thereof: ---
(1) Scrutiny of record of government servants/civil servants shall be ensured to unearth the
cases of those persons, who had got altered their dates of birth in service record on the basis of
decrees obtained by them from civil courts/qazi courts without impleading Government of
Balochistan in the array of defendants. Information may be sought by circulating copy of this
judgment among all Heads of the Departments.
(2) If any of the aforesaid government servants/civil servants are still in service, they/he/she
shall be proceeded against after affording them a reasonable opportunity of hearing in
accordance with the relevant law relating to Efficiency and Discipline that may culminate in their
dismissal or retirement from service. Besides, recovery of excess amoun t paid to them on
account of salary, perks and emoluments etc. shall be caused.
(3) If academic certificates or other documents are found forged on the basis whereof dates
of birth were got altered in service record, probability of instituting criminal c ases should also be
considered.
(4) If any other public official is found suspected to be guilty of connivance or negligence in
this respect, the government shall take appropriate disciplinary action against him/her under the
relevant law.
(5) Action t aken or proceedings initiated/conducted in aforesaid terms shall be completed
within a period of six months from the receipt of copy of this judgment under intimation to the
Registrar of High Court of Balochistan.
6) Needless to say that non -compliance o f aforesaid directions may expose the responsible
officials to the risk of penal action in accordance with the Constitution and laws.
(7) Recovery of excess amount shall be caused as arrears of land revenue.
In view of the above discussion, Civil Revi sion Petitions Nos.8 and 39 of 2014 are
allowed. The impugned judgment and decree 9th October 2010 passed by the learned Qazi, Kalat
in Civil Suit No.40 of 2010 and impugned judgment and decree dated 18th December 2012
passed by learned Qazi Sarawan at Mas tung in Civil Suit No.28 of 2012 are set aside. The
Registrar of this Court is directed to circulate the copies of this judgment among all the Civil
Judges/Qazis. No order as to cost.
MH/56/Bal Revision allowed.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,
let us know.