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Petitioner: ABDUL HALEEM CHAUDHRY VS Respondent: SECRETARY TO GOVERNMENT OF THE PUNJAB, IRRIGATION AND POWER DEVELOPMENT, LAHORE
1997 P L C (C
1997 P L C (C.S.) 325
[Supreme Court of Pakistan]
Present: Zia Mahmood Mirza and Mukhtar Ahmed Junejo, JJ
ABDUL HALEEM CHAUDHRY
versus
SECRETARY TO GOVERNMENT OF THE PUNJAB, IRRIGATION AND POWER DEVELOPMENT, LAHORE and another
Civil Petition No. 1651‑L of 1996, decided on 3rd December, 1996.
(On appeal from the judgment/order dated 21‑7‑1996, passed by Punjab Service Tribunal in Appeal No. 686/96).
Punjab Service Tribunals Act (IX of 1974)‑‑‑
‑‑‑‑S. 4‑‑Constitution of Pakistan (1973), Arts. 199 & 212(3)‑‑‑Change in date of birth‑‑‑Jurisdiction‑‑‑Appropriate forum‑‑‑High Court found that it had no jurisdiction and that Constitutional petition was not competent‑‑‑High Court while holding that there was no legal bar to exercise of jurisdiction by Service Tribunal, had also made observations on merits‑‑‑Service Tribunal, in view of High Court's observation on merits found that it would not be appropriate for Service Tribunal to assume jurisdiction in such case unless direction was issued to Service Tribunal by Supreme Court to assume such jurisdiction‑‑‑Validity‑‑‑Petitioner's contention was that High Court having found that Constitutional petition was incompetent should not have made observations on merits and in any case, Service Tribunal having itself observed that there was no legal bar to its assuming jurisdiction should have proceeded to decide petitioner's appeal on merits notwithstanding observations/findings of High Court in that behalf; and that Service Tribunal had failed to exercise jurisdiction vested in it‑‑‑Contentions raised require examination‑‑‑Leave to appeal was granted in circumstances.
Malik Muhammad Azam Rasool, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner.
Iftikhar Hussain, Deputy Secretary, I & P Department for Respondents.
Date of hearing: 3rd December, 1996.
ORDER
ZIA MAHMOOD MIRZA, J.‑‑‑Petitioner joined service as Overseer in the year 1955. At the time 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 too 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.
A.A./A‑1432/S Leave granted.