ABDUL HALEEM CHAUDHRY vs SECRETARY TO GOVERNMENT OF THE PUNJAB, IRRIGATION AND POWER DEVELOPMENT, LAHORE And Another
This matter arises from a petition for leave to appeal against the dismissal of a service appeal and a constitutional petition concerning the correction of the petitioner's date of birth. The petitioner joined service in 1955 with his date of birth recorded as 10-7-1936, but later sought correction to 3-8-1937, which the department rejected before notifying his retirement. The High Court dismissed his writ petition in limine holding it incompetent and observing the claim was an afterthought, while the Service Tribunal subsequently dismissed his appeal in limine due to the High Court's observations on merits. The core legal question is whether the Service Tribunal erred in refusing to exercise jurisdiction on merits based on the High Court's observations after holding the writ petition incompetent. The Supreme Court granted leave to appeal, holding that the contentions raised need consideration and that the Tribunal ought to have examined the matter on merits.
- Whether the Service Tribunal can refuse to exercise jurisdiction on merits merely because the High Court made observations on merits while dismissing a writ petition as incompetent?
- Does a civil servant have the right to seek correction of their date of birth in service records near the time of retirement?
- Is a constitutional petition competent for the correction of a date of birth affecting the date of retirement?
ORDER
ZIA MAHMOOD MIRZA, J.---Petitioner joined service as Overseer in the year 1955. At the the of joining the service, his date of birth was recorded in the service book as 10-7-1936. In the year 1986, he requested the department to correct his date of birth in the service record which according to him was 3-8-1937. His request, it appears, was not accepted and the department proceeded to notify his retirement with effect from 9-7-1996. Aggrieved of this action, petitioner invoked, Constitutional jurisdiction of the High Court. The learned Judge in the High, Court dismissed the writ petition in limine holding that "The claim of the petitioner appears to be an afterthought and is designed to secure illegal benefit of another year's service to which he is not entitled in law. Even otherwise, the change in date of birth and consequently the date of retirement is a condition of service and the petitioner ought to have moved the Service Tribunal. This writ petition on this score is equally incompetent". It appears that aster the dismissal of his writ petition, petitioner preferred an appeal before the Service Tribunal which to has been dismissed in limine with the observation that since the High Court itself held that the writ petition was not competent, there was no legal bar to the exercise of jurisdiction by the Tribunal but as the High Court has also made observations on merits, "it would not be appropriate for this Tribunal to assume jurisdiction in such cases unless a direction was issued to this Tribunal by the learned Supreme Court to assume such jurisdiction".
2. Learned counsel appearing in support of this petition has submitted that the High Court having held the writ petition to be incompetent should not have trade observations on merits end in any case, the Tribunal having itself observed that there no legal bar to its assuming jurisdiction should have proceeded to decide the petitioner's appeal on merits notwithstanding the observations/findings of the High Court in that behalf. According to learned counsel, the learned Tribunal has failed to exercise jurisdiction vested in it.
3. Contentions raised by the learned counsel need consideration. Leave to appeal is, therefore, granted. Appeal to be heard at an early date on the present record. No interim relief.