Sh. MUMTAZ ALI alias MUMTAZ ALAM vs GOVERNMENT OF THE PUNJAB

ORDER

' Sheikh Mumtaz Ali alias Mumtaz Alam, a confirmed Additional District and Sessions Judge, who is presently working as Presiding Officer, Lahore Court No, 7, Gujranwala, has filed this Constitution petition praying that the respondent-Government be directed to give effect to the decree of the Civil Court by correcting the petitioner's date of birth in his service record as 16-10-1931 instead of 1- 1-1930 and the respondent-Government be further directed not to direct retirement of the petitioner on superannuation on 31-12-1989. The aforesaid directions have been sought on the averments that the petitioner filed a suit against the University of the Punjab and its officers in the Civil Court seeking a declaration as to the date of birth which was 16-10-1931 but it was erroneously recorded in the Matriculation Certificate as 1-1-1930. The suit was decreed ex parte vide judgment and decree dated 31-3-1987. The University of the Punjab moved an application for setting aside the ex parte decree on the ground that the summons of the suit were not served on them but the said application was also rejected by the learned trial Judge vide order dated 29-9-1988. It is asserted that the respondent-Government was moved through a representation to correct the date of birth as recorded in the service record in view of the ex parte decree obtained. Another representation was submitted on 24-10-1989 to the Chief Minister and revised Matriculation Certificate incorporating the date of birth as 16-10-1931 was also submitted but the respondents have not given effect to the ex parte decree and have not till date issued the order correcting the date of birth in the service record and so it appears that the petitioner is going to be retired prematurely on 31-12-1989. It is added that the petitioner is being discriminated, as on the basis of the decree of the Civil Court obtained by Mr. Jacob Issac, District and Sessions Judge who is now working as Special Judge Central, Faisalabad. Notification dated 26-2-1989 correcting the date of birth as given in the decree was issued by the Government though the said Officer had joined the service in 1974 and the suit was filed by him in 1983 after about nine years of service and that in another case of Mr. Muhammad Nawaz Khan, District and Sessions Judge, date of birth was also corrected from 5-1-1929 to 25-8-1931.

3.I have heard the learned counsel in support of the petition. The Government i,e, the respondents are admittedly not a party to the ex parte decree obtained by the petitioner and as such the decree is not binding on them. It is also not denied that according to the Government instructions a Government servant can seek correction of service record as to the date of birth within two years of the entry into service. The petitioner admittedly joined the Government service initially in the year 1962 and then was appointed as Additional District and Sessions Judge in 1983. It was explained that no such move to have the date of birth corrected was made in all these years as the fact that the actual date of birth of the petitioner was 16-10-1931 came to his knowledge only in January, 1987 and then he rushed to file the suit. It has, however, not been explained how and in B what manner the alleged actual date of birth came to the knowledge of the petitioner. The plea that in January, 1987 the petitioner came to know of the mistake, is also incorrect as in the suit, the letter dated 31- 12-1986 of the University of the Punjab refusing to correct the date of birth as demanded was challenged. It is apparent that the move to have the University record corrected was made earlier to January, 1987. Obviously, it was incorrectly asserted before me that the mistake came to the notice of the petitioner only in January, 1987. Even otherwise the decree was obtained ex parte and the application for setting aside the ex parte decree was rejected despite the fact that it was shown that the summons in the suit were not admittedly served on any of the defendants in the suit. It was noted by the learned Civil Judge in the order dated 29-9-1988 that as per report of the process-server, the concerned clerk after going through the summons, returned the same as the copy of the plaint was not attached therewith. It was observed that the notices issued were received and as such the defendants in the suit are to be posted with the knowledge of the filing of the suit. Learned trial Judge further observed that though the summons was returned as it did not accompany the plaint yet such a service shall be deemed to be sufficient service in the eyes of law and the concerned clerk was bound to inform the University authorities about the pendency of suit and they could obtain the copy of the plaint after putting in appearance. If the summons contained the endorsement that it accompanies a copy of the plaint, then the clerk concerned was fully justified to return the summons as the same were incomplete. In any case showing of some laxity to the opposite party by the trial Judge would have been more appropriate as the suit filed was that of a senior officer of the subordinate judiciary. Moreover, in the circumstances it did not behove a senior Judicial Officer to resist the application for setting aside the ex parte decree and thus not to allow the University authorities, the defendants in the suit, to contest his claim on merits.

Be that as it may, learned counsel for the petitioner was unable to show as to how the petitioner had a cause of action as against the University authorities as these were firstly not concerned with the correction of his service record and secondly, they had entered that very date of birth which the petitioner himself got recorded in the Admission Form submitted while taking the Matriculation Examination. This very date of birth which he then gave was entered in the Matriculation Certificate ultimately issued to him. Incidentally, the same is the date which was got recorded while admitting the petitioner in the school. Moreover, the recent trend of the Judicial Officers to obtain ex parte decrees for correction of date of birth towards the fag-end of their service career, must be I c deprecated.

4. The plea of the petitioner that he is being discriminated is also without merit. The petitioner has not given the basis of the reasons due to which the entry of date of birth of Mr. Muhammad Nawaz Khan, District and Sessions Judge was corrected. In view of above, the said correction cannot be referred to in support of the aforesaid plea. The instance of correction of entry of date of birth in the service record of Mr. Jacob Issac, District and Sessions Judge cannot be pressed into service as the judgment and decree obtained by Mr. Jacob Issac have not been placed on the file and as such nothing can be said either about the circumstances under which the said decree was obtained or about the reasons on account of which the Government ordered correction of the service record.

5. For the reasons given above, there is no merit in this petition and the same is hereby dismissed in limine.

6. Before parting with the judgment, I may add that after five minutes of the announcement of the order, the learned counsel for the petitioner made a request to the effect that the petitioner be allowed to withdraw the petition. This request as was belated one, was refused.