ORDER SHEET

HIGH COURT OF SINDH, KARACHI

Suit No.416   of   2011

   Date                      Order with signature of Judge

1. For hearing of CMA No.3067/2011

2. For hearing of CMA No.4376/2011.

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Ghulam Nabi Shah          ……………..…………….Plaintiff

Versus

Pakistan International Airlines Corporation

& others                         ……….…………………Defendants

Date of hearing 13-09-2012

Mr.Muhammad Nawaz Shaikh, Advocate for the plaintiff.

Mr.Khalid Jawed, Advocate for the defendants.

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Muhammad Ali Mazhar, J: This common order will dispose of CMA No.3067/2011 filed by the plaintiff under Order 39 Rule 1 and 2 CPC and CMA No.4376/2011 filed by the defendants under Order 39 Rule 4 CPC.

2.     The plaintiff has filed this suit for declaration, damages and permanent injunction and prayed as under:-

(a)    Declare that the defendants are under legal obligation to implement the decision in terms of the judgment dated 24.02.2011 and decree dated 25.2.2011 passed by the competent court of law and allow the plaintiff to continue in the corporation service on the basis of the correction made in the date of birth as contained in letter/order dated 16.3.2011 issued/passed by the Board of Intermediate and Secondary Education, Hyderabad.

(b)    Direct the defendants to make necessary correction in the Service Record of the plaintiff maintained in the office of the defendant corporation as 07.04.2954 in place of 07.04.1951 and the date of superannuation may be notified accordingly.

(c)    Direct the defendants jointly and severally to pay  a sum of Rs.225,00,000/- (Two crores and twenty five lacs) as damages for causing mental shock, discomfort and injury.

(d)    Permanently restrain the defendants, their servants, subordinates, agents, employees and/or anybody else claiming through or under them from giving any effect to the order No.DGM-HR(M)R9/11 dated 19.01.2011 (annexure-D) and allow the plaintiff to continue according to the corrected date of birth as 7.4.1954 in terms of the judgment and decree passed by the court of IInd Senior Civil Judge, Hyderabad, and the order dated 16.3.2011 passed by the Board of Intermediate and Secondary Education, Hyderabad.

(e)    To award any other relief(s) which this hon’ble court may deem fit looking to the circumstances of the case.

(f)     Cost of the suit.

3.   The case of the plaintiff is that he was appointed Trainee Officer in Pakistan International Airlines Corporation (hereinafter referred to as PIAC) in the year 1975 and was being promoted from time to time and finally he reached to the position of Regional Manager North-Sindh in Pay Group-X and posted at PIAC sales office, Hyderabad. It was further averred that the plaintiff obtained primary education from Government Primary School District Badin, where his date of birth was recorded as  07.04.1954, however, due to some accidental error the plaintiff’s date of birth was recorded in his matriculation certificate as 07.04.1951. It was further stated that the plaintiff took up this issue with Board of Secondary and Intermediate Education, Hyderabad for necessary correction and also submitted various applications. At the time of appointment of plaintiff in PIAC the authorities recorded the age in view of same matriculation certificate containing the date of birth as 07.04.1951. Since the Board of Secondary and Intermediate Education, Hyderabad failed to correct the date of birth, the plaintiff filed a suit No.2 of 2011 for declaration and mandatory injunction against the Board of Intermediate and Secondary Education, Hyderabad in the court of  Civil Judge, Hyderabad. During the pendency of the suit the plaintiff received a letter from PIAC in which it was mentioned that the plaintiff will attain the superannuation age of 60 years on 6.4.2011 and will be retired from that date. The suit of the plaintiff was decreed on an application moved by the plaintiff  under Order 12 Rule 6 CPC, thereafter, he forwarded an application to the Managing Director, PIAC on 26.02.2011 in which it was requested that the office order dated 19.01.2011 intimating the date of retirement be recalled and the plaintiff may be allowed to continue his service till his age of superannuation on the basis of correction required to be made in the date of birth in view of the judgment and decree passed by civil court, Hyderabad.

4.   The General Manager (Human Resource Management) of PIAC filed counter affidavit in which he stated that the plaintiff is estopped to challenge his date of birth when he reached to the age of superannuation. The defendants took up date of birth, which was duly recorded in the plaintiff’s own testimonials including the matriculation certificate. The plaintiff wants the implementation and execution of decree passed by civil court in collusion with the officers of Board of Secondary and Intermediate Education, Hyderabad. It was further averred that at no point of time the institution of suit was brought into the knowledge of the defendants nor the defendants were impleaded in this suit, hence, the decree passed by the civil court is not binding upon the defendants. The defendants recorded the date of birth furnished by the plaintiff at the time of initial joining and till reaching the age of retirement neither he objected nor approached the defendants for any correction of his age, but first time he made a request when he secured collusive judgment and decree. The entire service record maintained by PIAC clearly shows the date of birth of the plaintiff is 07.04.1951 and he never challenged until the letter of his retirement was issued to him. The defendants denied the service of letter/notice dated 26.02.2011, which was allegedly sent by the plaintiff to the defendants along with the judgment and decree of civil court.

5.  Mr.Muhammad Nawaz Shaikh, learned counsel for the plaintiff argued that since the wrong date of birth was mentioned in the matriculation certificate, therefore, the plaintiff repeatedly sent letters to the Chairman, Board of Secondary and Intermediate Education, Latifabad, Hyderabad. Despite making requests in atleast five letters written from time to time, the Board of Secondary and Intermediate Education, Hyderabad failed to correct the date of birth, hence no option was left with the plaintiff but to file the suit for declaration and permanent injunction. Learned counsel further argued that since the date of birth was corrected in view of the judgment and decree, hence the same is binding on PIAC and they are duty bound to make necessary correction in their employment record. Learned counsel frankly conceded that PIAC was not party in the suit. It was further averred that on the basis of judgment and decree passed by the civil court, the Board of Secondary and Intermediate Education, Hyderabad issued a letter to Headmaster, Government High School Matli, through which the date of birth was corrected and recorded as 07.04.1954. Learned counsel argued that despite submitting application by the plaintiff on 26.2.2011, the defendant failed to correct the date of birth. Learned counsel further argued that after correction, the letter issued by defendants on 19.01.2011 has no legal sanctity. He further argued that due to action of the defendants, the plaintiff has suffered serious mental torture and agony as despite receiving the intimation of the judgment and decree passed by competent court the defendants have failed to withdraw their letter dated 19.01.2011, hence, plaintiff is also entitled for the damages as claimed in the suit.

6.     In support of his arguments learned counsel for the plaintiff relied upon the following case law:-

(1)    2008 SCMR 255 (Administrative Committee of High Court of Sindh v. Arjun Ram K. Talreja), in which it was held that date of birth recorded in service book of civil servant, change or alternation, not an absolute rule that such entry once made could not be altered or changed. It was further held once an entry of age or date of birth has been made in a service book, no alternation of the entry should afterwards be allowed, unless it is known that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error. Cases in which the correctness of the original entry is questioned on other grounds should be referred to a competent authority.

(2)    2010 PLC (C.S) 78 (Bibi Shahjahan v. Azad Government). In this case it was held that no doubt it was provided in sub-rule(2) of Rule 67 of Azad Jammu and Kashmir Financial Code that declaration of age, made at the time of or for the purpose of entry into the government service would be deemed, absolutely conclusive; as no revision of such a declaration should be allowed to be made at a later stage for any purpose, whatsoever, however, it was nowhere provided in said Rules that the Government was deprived of from making the necessary correction when a genuine claim was brought before it.

(3)    2008 CLJ 729 (Muhammad Arshad & another v. Mian Noor Ahmad & others). In this case the hon’ble Supreme Court held that the date of birth shown in birth certificate and national identity card would have no relevance when date of birth shown in matriculation certificates is different from date of birth shown in birth certification and national identity card. In such case, date of birth shown in matriculation certificate would prevail over date of birth shown in birth certificate and national identity card.

(4)    2002 PLC (C.S) 928 (Province of Sindh v. Malik Ghulam Hussain). In this case it was held that retirement from service on the basis of wrong entry of date of birth, the date of birth of civil servant as recorded in his service book was 1.3.1941, and on its basis date of superannuation was 28.2.2001. Departmental record showed his date of birth as 1.3.1939, thus, he was retired from service on 28.2.1999. Civil servant challenged notification of his retirement and claimed consequential benefits of promotion and revised pay/pension etc. by way of departmental appeal, but the same was dismissed. Service Tribunal accepted the appeal of civil servant, when Assistant Advocate General conceded that civil servant had been wrongly retired due to bona fide mistake and not due to any mala fide intention.

(5)    2004 CLC 1029 (Arif Majeed Malik & others v. Board of Governors Karachi, Grammar School).  In this case, the grant of relief under Section 42 of Specific Relief Act, 1877 and Power of Courts were considered and court held that one reason for the divergence of judicial opinion is that when Specific Relief Act, 1877, was enacted, concept of rights which could be enforced through Courts was largely confined to ‘status’ as understood in feudal social context or rights pertaining to property in laissez-faire economy. With the development of jurisdiction over more than a century, a large number of other rights which did not relate to status of an individual or deal with tangible property came to be recognized by law and some of them were in the form of guaranteed fundamental rights. Right of privacy, to carry on business of one’s choice, access to public information and large body of social and cultural rights neither relate to status in the traditional sense nor tangible property. Principle, “whenever there is a right there must be a remedy to enforce it” , persuaded courts not to remain bound within the technicalities of Section 42 of Specific Relief Act, 1877, for granting relief.

(6)    1997 PLC (C.S) 1122 (Regional Commissioner of Income-Tax, Karachi & 2 others v. Shafi Muhammad Baloch). It was held that dispute relating to entry in service record would not come within definition of terms and conditions of service, therefore, Civil Court being Court of ultimate jurisdiction could entertain such suit. Where Department concerned did not correct entry relating to date of birth and plaintiff had relevant documents to show that his date of birth was wrongly recorded in his service book, Civil Court would have jurisdiction to entertain suit for correction.

(7)    PLD 2004 Karachi 304 (Mrs.Zubaida v. CDGK). In this case it was held that for deciding fate of an application for grant of injunction under order 39 rule 1 and 2 CPC, in addition to examine question of irreparable loss and injury in case of refusal of injunction and balance of convenience, the court has to see only a prima facie case and not a indefeasible case in favour of a party seeking injunction.

(8)    2008 CLC 1462 (Islamic Republic of Pakistan v. General Traders and Ammunition Manufacturers Ltd.). It was held that for grant or refusal of injunction/stay application, three ingredients/essentials were to be considered. Plaintiff not necessarily must have a strong, good prima facie case, but an arguable case would be sufficient.

(9)    1990 MLD 2232 (The Karachi Catholic Cooperative Housing Society Ltd. v. Mrs.Daphne Mary Mendonca & 6 others). It was held that for grant or refusal of interlocutory injunction it is not necessary for court to find a case for the plaintiff which could entitle it relief at all events; but was quite sufficient if the court found that the case showed that there were substantial questions to be investigated and that the matter had to be preserved in status quo until the question could finally disposed of. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial, but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated.

(10)  PLD 1983 Karachi 387 (Muhammad Matin v. Mrs.Dino Manekji Chinoy & others). It was held in the case that grant of injunction of interlocutory stage of suit, plaintiff only to show that he has prima facie case, that balance of convenience between the parties as well as for avoidance of complications lie in favour of party seeking injunction and that plaintiff would suffer irreparable harm by refusal of injunction.

7.   Mr. Khalid Javed,  learned  counsel  for  the defendants   referred to various  documents  attached  with the counter affidavit. Annexure-D-1 is the synopview/information sheet of the plaintiff in which also the date of birth of the plaintiff is mentioned as 07.04.1951. The annexure D-2 is the matriculation certificate issued on 29.12.1970 by Board of Secondary and Intermediate Education, Hyderabad in which also the same date of birth of plaintiff is mentioned. Learned counsel argued that the plaintiff himself filled a vetting and verification Form of PIAC employees at  the time of his joining in which also same date of birth was mentioned  and the plaintiff had also signed the Form Annexure-D-5 which was required to be filled by the Trainee Officer in which also his date of birth was 7.4.1951. Form P-4 is also part of annexure D-5, which is Interrogation Form of the applicant required for verification of the entries against the items and for necessary correction in the antecedents. In this Form the particulars of the plaintiff are mentioned as an Officer Trainee and column No.6 relates to the date of birth, in which same date of birth was recorded. Annexure D-6 is appointment advice in which also the same date of birth of the plaintiff is mentioned. After referring these documents the learned counsel for the defendants referred to clause 35.02.08 of Chapter No.35 of Personnel Policies Manual of PIAC (annexure D-3). The said clause pertains to date of birth and in the sub-clause  (a) it is provided that the date of birth shown in the matriculation certificate or release certificate  received from ex-servicemen,  produced at the time of initial joining shall be recorded as the correct and final date of birth. Learned counsel argued that the plaintiff has no locus standi or legal character  to invoke the jurisdiction of this court for implementation or execution of decree of civil court. He argued that the plaintiff with mala fide intention avoided to implead the defendant No.1 in the civil suit. The plaintiff on his own volition and freewill filled all his credentials in various forms at the time of his initial appointment and joining and he throughout of his career, maintained complete silence and on the eve of his retirement, he filed suit in a civil court for the correction of his date of birth, while it was in his knowledge that as per rules the date of birth provided by him at the time of his initial appointment will only be taken into consideration. He further argued that the judgment of civil court in which PIAC was not a party is not a binding judgment. All relevant forms/proformas duly filled and signed by the plaintiff at the time of his employment are demonstrating that his actual date of birth is 07.04.1951. He further argued that annexure-H attached to the plaint was never served upon the defendants and neither it was delivered by hand nor any postal/courier receipt is attached to show that it was ever sent to the defendants. The matriculation certificate  issued on 29.12.1970 clearly shows that the actual date of birth of the  plaintiff. Learned counsel pointed out the affidavit in rejoinder filed by the plaintiff and argued that in paragraph 7 of the counter affidavit the defendants have clearly mentioned all the documents signed by the plaintiff at the time of his initial employment and also attached various documents, but in paragraph 11 of the rejoinder while replying paragraph 7 of the counter affidavit the plaintiff failed to controvert or deny the documents, but simply replied that there is no rigid and strict rule of law for getting the date of birth changed.

8.   In support of his arguments he relied upon the following case law:-    

(1).   PLD 1961 Supreme Court 531 (M/s. Malik and Haq and another v. Muhammad Shamsul Islam Chowdhry). It was held in this case that in absence of any statutory provision protecting the servant it is not possible in law to grant to him a decree against an unwilling master that he is still his servant. A servant cannot be forced upon his master. The master is always entitled to say that he is prepared to pay damages for breach of contract of service but will not accept the services of the servant. A contract for personal service as will appear from section 21(b) of the Specific Relief Act, 1877 cannot be specifically enforced. But it is not even necessary to invoke section 21 (b) for such a contract is unenforceable on account of section 21 (a) wherein it is provided that a contract for the non-performance of which compensation in money is adequate relief cannot be specifically enforced. In a case where there is a contract between a master and a servant the master agreeing to pay the salary and the servant agreeing to render personal service it is obvious that money compensation is full relief, for all that the servant was entitled to under the contract was his salary. A breach of contract can give rise to only two reliefs, damages or specific performance. If specific performance be barred the only relief available is damages. When a master, in breach of his contract, refused to employ the servant the only right that survives to the servant is the right to damages and a decree for damages is the only decree that can be granted to him.

(2)    1994 SCMR 1633 (M.R. Khalid v. Chief Secretary, Punjab and another). It was held that civil servant while taking competitive examination had himself declared his date of birth to be 2.6.1930 and thereafter remained in service for about 35 years. Civil Servant’s name together with his declared date of birth appeared in the gradation lists and civil lists periodically published by the Provincial Government but he did not object to the incorrect publication of his date of birth till a few years before his retirement. Mere fact that civil servant was able to obtain a decree from Civil Court for correct of date of birth, did not advance his case for the Government was not a party to that civil suit brought by him. Silence of civil servant over the major portion of his service was such that he did not merit a favourable decision from the Government relating to correction of his date of birth---Service Tribunal’s decision against civil servant did not warrant interference. Leave to appeal was refused in circumstances.

(3)    1998 SCMR 1494 (Syed Iqbal Haider v. Federation of Pakistan and another). In this case it was held that Government employee under the relevant Rules cannot make any application for change in his date of birth after two years of his joining the service. Authenticity of date of birth recorded in the documents, therefore, cannot be challenged belatedly specially beyond the period of two years. Supreme Court desired that such Rule with regard to correction of age should also be applied to judiciary.

(4).   SBLR 2009 Sindh 115 (Yasmin Abbasey v. Province of Sindh and others). In this case the learned division bench of this court referred to the judgment of apex court in the case of Qamaruddin v. Pakistan through Secretary, Establishment Divisions, Islamabad & another, reported in 2007 SCMR 66, in which hon’ble Supreme Court while considering the scope of Section 12-A of Service Tribunal Act, 1973, was pleased to observe that a tendency has developed whereby unwarranted claims, attempting to show error in “date of birth”. The view expressed by the Hon’ble Supreme Court, is that the correction in the date of birth of an employee may be considered within two years from the date of his induction in the service and the correction solely on the basis of the affidavit is not permissible and the developing tendency of agitating the incorrect date of birth in service record of government employee must be curbed and discouraged otherwise it will open a Pandora box.

(5).   1991 MLD (Lahore) 824 (Government of the Punjab through Secretary, Department of Education, Lahore v. Prof. Mst. Jamida Malik and another). It was held that adjudication of Civil Court on change of birth of plaintiff,  such decree being nullity in law was rightly ignored by concerned department, although decree of Civil Court could furnish a piece of evidence for change of date yet same would not be binding---Authorities would have to make their own determination about the date of birth of their employees and would be fully justified to ignore such adjudication by Civil Court.

(6).   2010 PLC (C.S.) 943 (Ayub Gul v. Chairman, Board of Intermediate and Secondary Education, Peshawar and another). In this case it was held that claim of plaintiff that his date of birth had been incorrectly mentioned in the record which later on was incorporated in his educational certificate and National Identity Card, which wrong entry was illegal, not binding on him and was liable to be corrected. Alleged wrong entry cropped up when the plaintiff was a student of Primary School which was duly incorporated in various record of the Board of Education as well as the University. On the alleged wrong date of birth, the plaintiff joined service and completed his tenure of service while reaching the age of superannuation, plaintiff was awakened from a deep slumber and filed present suit in order to gain extension in service. During his past long period of service, the plaintiff never objected to the date of birth and under that date of birth duly recorded in the testimonials, he joined service, remained in Public Health Engineering Department, secured promotion and reached the post of Executive Engineer. During the entire service the plaintiff had never intimated that fact to his department nor ever applied for the alleged correction to challenge the said date of birth, especially in the circumstances, when he reached the age of superannuation, which could not be corrected.

9.    Heard the arguments of the both the learned counsel. It is a matter of record that the plaintiff has filed a suit for declaration that the defendants are under legal obligation to implement the decision of the civil court. He has also prayed that the defendants be directed to correct office record in view of the civil court judgment. Besides claiming permanent injunction, the plaintiff has also claimed damages on account of mental shock, discomfort and injury. What plaintiff is asking is the execution and implementation of the civil court’s judgment and decree in which PIAC or any of the other defendants were not made party. There was no lawful justification to first obtain decree for correction in date of birth without impleading the employer then file a declaratory suit in this court for execution and implementation of the civil court’s judgment. Under section 42 of Specific Relief Act, discretion vests in court as to declaration of status or right. Any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character. Section 42 of the Specific Relief Act is meant for seeking declaration to any legal character against a person denying his title to such character but it nowhere allows a person to seek any execution or implementation of decree passed in any suit in which the person denying his title to such legal character or right was not made party.

10.   The record reflects that the plaintiff himself provided copy of his matriculation certificate dated 29.12.1970 in which his date of birth is 07.04.1951. He himself filled the employment forms in which he mentioned his same date of birth and on the basis of the same date of birth the defendants recorded his date of birth in his employment record. Even in the Appointment Advice Source dated 14.2.1976 the same date of birth is mentioned. It is not the case of the plaintiff that he did not fill the Forms with open eyes and with open mind or somebody forced or coerced him to fill the wrong date of birth. The plaintiff under his freewill and volition entered his date of birth and obtained the employment and it is not his case that somebody else on his behalf entered his wrong date of birth. According to the plaintiff he joined as Trainee Officer in the year 1975. He served for a long period, but never made any attempt for any correction in the date of birth and on the eve of his retirement he filed the suit in the civil court for correction knowingly  that he is going to be retired soon.  In the plaint the plaintiff has failed to mention any effort, which he took up with the defendants for the correction of his date of birth. First time he applied for the correction after obtaining the judgment and decree from the Civil Court, Hyderabad, which shows without any shadow of doubt that the plaintiff never approached the defendants for any correction of date of birth either in earlier days or even at the time of his retirement, except a letter dated 26.2.2011, which he allegedly communicated to the defendants along with copy of judgment and decree of Civil  Court.  Service of which letter has been vehemently refuted by the defendants. No postal or courier receipt is attached with the said annexure to show that this letter was ever dispatched to the defendants.

11.   The plaintiff vigorously urged that he wrote letters to Board of Secondary and Intermediate Education, Latifabad, Hyderabad from time to time and also attached copies of five letters written by him in the year 1979, 1980, 1991, 1998 and 2010. Though the photocopies of letter are attached with the plaint, but again there is no proof attached to this   application whether any such application was ever dispatched to the Board of Secondary and Intermediate Education, Latifabad, Hyderabad for any correction. The annexure “A” to the plaint is a School Leaving Certificate, which was issued in duplicate, but no date is mentioned when it was issued and no reason is mentioned as to why original school leaving  certificate was not filed. The plaintiff has filed copy of application under Order 12 Rule 6 CPC. In the supporting affidavit it is stated that the defendants almost admitted the pleas raised by the plaintiff in their written statement and they have specifically stated that if the civil court considers his prayer genuine, the defendants shall have no objection for the same. The plaintiff has not filed  copy of any written statement of Controller of Examinations, Board of Secondary and Intermediate Education, Latifabad, Hyderabad to see admission on their part, however, endorsement on the application shows that counsel for the defendants endorsed his no objection for allowing the application. The application was filed on 24.2.2011 and on the same day the judgment was passed on the basis of the admission while according to the supporting affidavit of the plaintiff, the defendants only stated in the written statement that if the court considers plaintiff’s prayer genuine they have no objection for the same.

12.   In the judgment reported in PLD 2010 S.C. 676  (PIAC v. Tanweer-ur-Rehman), the hon’ble Supreme Court held that if a corporation is discharging its functions in connection with affairs of the Federation, the aggrieved person can approach the High Court by invoking its constitutional jurisdiction. As far as the case of employees, regarding their individual grievances are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation to the statutory rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of the statutory rules, then the principle of Master and Servant would be applicable and such employee have to seek remedy permissible before the Court of competent jurisdiction. In the same judgment the apex court referred to case of Raziuddin v. Chariman, PIAC in reported in  PLD 1992 SC 531, in which it was held that the legal position obtaining in Pakistan as to the status of employees of the Corporation seems to be that the relationship between a Corporation and its employees is that of Master and Servant and that in case of wrongful  dismissal of an employee of the Corporation, the remedy is to claim damages and not the remedy of reinstatement. However, this rule is subject to a qualification, namely, if the relationship between a Corporation and its employees is regulated by statutory provisions and if there is any breach of such provisions, an employee of such a Corporation may maintain an action for reinstatement. It is further held that PIAC has the Regulations which have been framed by the Board of Directors, but such regulations cannot be treated as statutory rules of the nature which would bring the case of the PIAC employees to claim the relief of re-instatement on the ground of breach of the statutory provisions. The above quoted judgments of apex court have already decided that the relationship of employer and employees in the case in hand is of Master and Servant.

13.   Section 21 of the Specific Relief Act provides the nature of contracts, which are not specifically enforceable. Clauses (a) and (b) of Section 21 clearly stipulate  that  a contract of  personal service cannot be specifically enforced. It is clear from the conduct of the plaintiff that he filled his date of birth and remained silent for a long time, hence his conduct is also hit by the principle of estoppel, which is based on equity  and good conscience and the object is to prevent fraud and  secure justice between parties by promotion of honesty and good faith and by preventing them from approbating and reprobating at the same time. Under this principle of law a person who has made statement is estopped to make contradictory statement in the same matter subsequently. The foundation of the rule of estoppel is the equitable doctrine that it would be unjust, if a person who by his representation has induced another to act as he otherwise would not have done, is permitted to deny the truth of his former representation, to the detriment of the person who acted on it. Where a person inspite of having full knowledge of violation of his rights of personal nature, remained quiet for reasonably long time without raising any objection or protest, besides estoppel he would be deemed to have acquiesced in the offending act, waiver may be inferred  from the conduct and all other attending circumstances of the case.

“On equitable estoppel, Pomeroy has said that equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and equity, from asserting his rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.  Acquiescence is an important factor in determining equitable rights and remedies in obedience to the maxims, he who seeks equity must do equity and he who comes into equity must come with clean hands. Reference can be made to C M Row, Law of Injunctions, Page-385, (Eight Edition)”.

14.   Learned counsel for the plaintiff relied upon various case law relating to correction of date of birth and principle of granting injunction. So far as one case law relating to the correction of date of birth, it is case of civil servant in which it was held that there is no absolute rule that once the date of birth is recorded the same could not be altered or changed or its nowhere provided under the rules that the Government was deprived of from making necessary correction when a genuine claim was brought before it. In one case it was held that the date of birth shown in matriculation certificate would prevail over date of birth shown in birth certificate and national identity card. In another case civil servant was retired due to wrong entry of date of birth and he challenged notification of his retirement in the Service Tribunal, in which the Assistant Advocate General conceded that he was wrongly retired due to bonafide mistake and not due to any malafide intention. In one case it was held that the dispute relating to entry in the service record would not come within the definition of terms and conditions of service, therefore, civil court has ultimate jurisdiction to entertain the suit. In this case it was held that where the department did not correct entry relating to the date of birth and plaintiff had relevant documents to show that his date of birth was wrongly recorded in the service book civil court would have jurisdiction to entertain the suit for correct of date of birth and grant status quo in such matter. The case law referred to above is distinguishable to the facts and circumstances of this case particularly in the circumstances when the hon’ble Supreme Court has already held that the relationship between PIAC and its employees is of Master and Servant. So the case law relating to civil servants cannot be applied strictly in this case, however, the same may be taken into consideration only for the purpose of guidance, if attracted to the facts and circumstances of the case. In the case in hand, it is clear that before invoking jurisdiction of civil court, the plaintiff never applied for any correction nor placed any documentary evidence before the competent authority  for any change in the employment record. Even he failed to implead the defendants in the Civil Court. So far as the case law related to the injunction there is no cavil that object of interlocutory injunction is to protect the plaintiff against the injury by violation of his right for which he could not be adequately compensated for damages recoverable in the action if the uncertainty were resolved in his favour at the trial, but the plaintiff needs for such protection must be weighed against the corresponding need of the defendants to be protected against injury resulting from his having been prevented from exercise of his own legal right for which he could not be adequately compensated if the uncertainty would be resolved in the defendant’s favour at the trial. The court must weigh on need against another and determine where the balance of convenience lies.

15.  Learned counsel referred one more judgment which is within the scope of section 42 of the Specific Relief Act. No doubt that the development of jurisdiction over more than a century, a large number of other rights which did not relate to status of an individual or deal with tangible property came to be recognized by law and some of them were in the form of guaranteed fundamental rights. Right of privacy to carry on business of one’s choice, access to public information and large body of social and cultural rights neither relate to status in the traditional sense nor tangible property.  Principle whenever there is a right there must be a remedy to enforce it, persuaded courts not to remain bound within the technicalities of section 42 of Specific Relief Act, 1877 for granting relief. In my view, the acid test to apply is a clear legal right, which must flow and exist for deciding a legal character of a person, which does not exist in this case.

16.  Learned counsel for the defendants relied upon the case of (Malik and Haq) supra, which is related to the case of Master and Servant, in which the hon’ble Supreme Court held that in absence of any statutory provision protecting the servant it is not possible in law to grant him a decree against an unwilling master that he is still his servant. A servant cannot be forced upon his master and master is always entitled to say that he is prepared to pay damages for breach of contract, but will not accept the services of the servant. The contract for personal service as will appear from section 21(b) of the Specific Relief Act, cannot be specifically enforced, but it is not even necessary to invoke section 21(b) for such contract is unenforceable on account of section 21(a) wherein it is provided that a contract for the non-performance of which compensation in money is adequate relief cannot be specifically enforced.  In another case reported in 1991 MLD (Lahore) 824, it was held that adjudication of civil court on change of birth of plaintiff, such decree being nullity in law was rightly ignored by concerned department, although decree of civil court could furnish a piece of evidence for change of date, the authorities would have to make their own determination about the date of birth of their employees and would be fully justified to ignore such adjudication by civil court. Both case laws referred to above are quite helpful to the case of defendants. 

17.  At this juncture I would like to refer to 1993 MLD 2158 (Federation of Pakistan v. Dr.Nasir Mahmood Khan), in which in the similar circumstances the respondent, who was plaintiff in suit joined the service in year 1956 and himself informed that his date of birth was 25.11.1932, which was entered in the record and he never challenged this entry for a long time, but filed the suit to challenge the notification of his retirement in the year 1991 on the same ground without impleading University as party. The Lahore High Court in the civil revision held that delay in filing the suit for declaration and injunction was to be considered fatal to plaintiff’s case regarding issuance of temporary injunction. Courts below had not given due consideration to the fact that issuance of temporary injunction on the eve of retirement, restraining the department from discontinuing the service of plaintiff would have the effect of interference in the administration of the department concerned. Such order was to be sparingly passed in such like case where the loss which a plaintiff was to suffer in case of non-issuance of temporary injunction could be ascertained in terms of money.

18.   The plaintiff on the alleged wrong date of birth joined service, secured promotions and completed his tenure, while reaching the age of superannuation, he was awakened from a deep slumber and filed suit in order to gain extension in service and during his past long period of service, he never objected to the date of birth, hence at the belated stage he is not entitled to claim any discretionary relief.

19.   In the judgment reported in 2010 MLD 1267 (Sayyid Yousaf Hussain Shirazi v. Pakistan Defence Officers’ Housing Authority) authored by me. I have discussed in detail the essential conditions to be considered by the court while granting temporary injunction, which includes prima facie existence of right of the plaintiff and its infringement by the defendant or the existence of prima facie case in favour of plaintiff, an irreparable loss, damages or injuries which may occur to the plaintiff if the injunction is not granted, inconvenience which the plaintiff will undergo from withholding the injunction will be comparatively greater than that which is likely to raise from granting it or in other words the balance of inconvenience should be in favour of the plaintiff. All the three essential ingredients must be fulfilled and absence of anyone of such ingredients would not warrant grant of injunction. Relief of injunction is discretionary to be granted according to sound legal principles and ex debito justitiae. Existence of prima facie case is to be judged on the basis of material on record at the time of hearing of injunction application and such evidence should be of the nature that by considering the same, court ought to be of the view that the plaintiff applying for injunction was in all probability likely to succeed in the suit by having a decision in his favour. The plaintiff asks for injunction must satisfy the court that his own acts and dealings in the matter have been fair, honest and free from any taint or illegality and that if in dealing with the person against whom he seeks the relief, he has acted in an unfair or inequitable manner he cannot have this relief.

20.  After considering the entire facts, the bottom line of this discussion leads me to an irresistible conclusion that the plaintiff has failed to make out any prima facie case for injunction. The balance of convenience also does not lie in favour of the plaintiff. The plaintiff has also claimed damages in the main suit, therefore, the question of irreparable injury does not arise.

21. For the foregoing reasons, I am not inclined to confirm the interim orders passed earlier. Consequently, the injunction application is dismissed and the interim orders are recalled. Both the applications are disposed of accordingly.

Karachi.

Dated.7.12.2012                                                     Judge