IN THE HIGH COURT OF SINDH AT KARACHI
Constitutional Petition No. D-1757 2009
Date Order with signature of Judge
Before: Mr. Justice Gulzar Ahmed
Mr. Justice Irfan Sadaat Khan
Date of hearing : 22nd February, 2010
Petitioner through : Ms. Rana Khan Advocate
Respondents through : Mr. Shafi Muhammad Memon, Addl:A.G. Sindh
GULZAR AHMED, J: In this petition the petitioner has made the following prayer:
a) to hold and direct that the order of Hon'ble Chief Justice dated 02.05.2008 which communicated to the respondents through separate orders/ letters is in accordance with law and the respondents were/are under obligations to implement the same;
b) to direct the respondent to immediately issue order of correction in the age of petitioner as 04.5.1953 instead of 04.05.1948 with allowing petitioner to enjoy/get benefit of the remaining period in the department with all consequential relieves/ promotions/ seniority and emoluments which connected thereto in accordance with law including service till date of superannuation i.e. 04.05.2003;
c) to direct the respondent to conduct their affairs in a manner calculated to a void occurrence of any act in future in respect of non-implementation of the judicial or executive order of the Hon'ble Chief Justice;
d) or may pass any other order/orders in favour of the petitioner against the respondents which may deem fit and proper under the circumstances of this case;
The petitioner has earlier filed C.P. No. D-580/2008 for the correction of his date of birth. Such petition of the petitioner through a short order dated 08.4.2008 was dismissed in limine and the reasons for the short order were written on 03.5.2008. Copy of which has been attached with the petition as annexure-C, the relevant portion of which is as follows:
"---Per rules applicable to the petitioner's case, the petitioner ought to have resorted to move within two years prescribed on the date on which his service book was opened for restriction of his date of birth. It will not be out of place to mention that after about 43 years of the passing of Matriculation Examination it was revealed to the petitioner that his date of birth was not correct in the record of respondent No.2. The petitioner slept for years together for assailing the appropriate remedy. So much so the birth certificate issued by District Municipal Corporation, East Karachi reflects that petitioner could not succeed in his designs, procured an order from High Court of Sindh dated 05.12.2007 for rectification/correction of his matriculation certificate, when the petitioner is at the verge of his retirement,would attain superannuation on 3.5.2008 per record maintained in the High Court of Sindh. The facts of the cited case reported in PLD 2005 SC 692 shall not be attracted to the facts of the present case as law provides a limitation for every action. In case a civil servant is not vigilant for seeking relief within the stipulated period provided under the statute, the relief could not be extended without adhering to the legal proposition of law therefore, relief in extra ordinary writ jurisdiction cannot be claimed on account of latches acquiescence attached to the petitioner's case.
For forgoing reasons, the petition was dismissed in limine along with listed applications by a short order dated 08.4.2008. These are the reasons for the same."
It seems that after the dismissal of this petition, the petitioner maneuvered and made an application dated 29.4.2008 to the Registrar of this Court for change of his date of birth suppressing the fact of dismissal of his Constitutional Petition No. D-580 of 2008. It further appears that on this application, the then Chief Justice namely Mr. Justice Muhammad Afzal Soomro made the following order on 2.5.2008:
“ Allowed ”
Rule 4 of the Sindh Judicial Service Rules, 1994 states the appointing authority to be the Government. The Government being the appointing authority, the matter regarding correction of date of birth of the petitioner in terms of the rule could only be decided by the Government. The Chief Justice of High Court apparently has no power of changing the date of birth of a judicial officer except that he may send his recommendations to the Government which apparently will become binding unless for some reason not brought to the knowledge of the Chief Justice, recommendations may not be accepted rather such aspect of the matter will have to be brought to the knowledge of Chief Justice for consideration. These are the proceedings which are of administrative nature and not of a judicial character. The decision of the Court given in a lis are judicial determination of a case whereby parties’ rights and obligations are decided by the Court. In terms of Article 201 of the Constitution, such decisions of the Court are binding on all the organs of the State including the Government and Government cannot take any steps contrary to judicial decision of the Court.
In this view of the matter, even if the order of the then Chief Justice is considered to be in nature of recommendation, in the face of the judicial order of the Court dated 8.4.2008 and it reason dated 3.5.2008 given in the Constitutional Petition No.D-580 of 2008 of the petitioner, it will be binding on the Government and petitioner will not be entitled to any benefit of the recommendation of the Chief Justice. The administrative orders are always subordinate to the judicial orders and by obtaining of administrative order merely that of recommendatory nature, the petitioner could not be allowed to over reach or nullify the decision in his own earlier petition. The petitioner has been seeking implementation of the order dated 2.5.2008 of the then Chief Justice knowing fully well that there exists already a judicial decision disallowing his request for changing his date of birth which decision apparently has not been challenged by the petitioner rather the petitioner has embarked upon a journey which was totally uncalled for and illegal. The petition is altogether frivolous which is dismissed with cost of Rs. 20,000/- (Rupees Twenty Thousand only) to be deposited by the petitioner with the Nazir of this Court within ten days. The cost so recovered be deposited in the benevolent fund of High Court employees.
Above are the reasons for the short order dated 22.2.2010 by which after hearing the learned counsel for the parties this petition was dismissed.
J U D G E
J U D G E