HIGH COURT OF SINDH AT
KARACHI
Suit No.1468 of 2020
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Date Order with signature
of Judge
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1. For hearing of
CMA No.10244/2020
2. For hearing of
CMA No.12096/2020
Date
of hearing 05.03.2021.
M/s. Malik Naeem Iqbal and
Khurram Memon, advocates for the plaintiff.
Mr. Jawad
A. Sarwarna advocate for defendants No.2 to 5.
Mr. Masoor
Ahmed Alvi, advocate for defendant No.6.
Mr. Muhammad Ahmer, Assistant Attorney General.
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SYED HASAN AZHAR
RIZVI J: By this order I
intend to dispose of following CMAs:-
(1) CMA No.10244/2020
filed by the plaintiff under Order 39 Rule 1 and 2 read with Section 151 CPC to
restrain the defendants, their officers, attorneys, representatives or anybody
acting on their behalf from taking any adverse action against the plaintiff on
the basis of alleged charge of tempering / bogus Matric Certificate, till final
adjudication of this suit.
(2) CMA No.12096/2020
filed by the plaintiff under Section 151 CPC to pass order for the forensic examination
of the original matric certificate of the plaintiff in order to ascertain the
alleged tempering in the year of birth.
2. Plaintiff
was inducted as Apprentice Mechanic in defendant No.2
pursuant to an advertisement published in various leading newspapers in May /
June, 1989. Photocopy of publication is enclosed at page-31 with the plaint. As
per advertisement maximum age limit for induction was 25 years whereas at the
time of applying for aforementioned post the plaintiff was about 19 years and
03 months. After completing 03 years apprenticeship, the plaintiff was inducted
as Technician with the defendant No.2 vide appointment
letter dated 30.09.1993. Copy of the same is enclosed at page-29 with the
plaint. Plaintiff had to join his service from 05.08.1993 and almost served 27
years for the PIA / respondent No.2
and presently serving as Deputy Chief Engineer, Engine Overhaul Planning with
the defendant No.2. Learned counsel for the plaintiff
states that plaintiff is well known, among his contemporaries for his
competence, professionalism, integrity and honesty. Plaintiff at the time of
induction in service submitted his educational documents including his Matric
Certificate to the defendant. After about 23 years of the plaintiff’s service
with the defendant No.2, the defendant No.4 issued a letter dated 18.04.2016 to the plaintiff.
Copy thereof is enclosed at page-35 with the plaint. Plaintiff appeared alongwith
his original Matric Certificate, that was seen and
returned on 27.04.2016. However, on 14.06.2016 plaintiff was served with the
show cause notice by the defendant No.4 containing allegation
that Board of Secondary Education, Karachi has certified that the date of birth
of the plaintiff in his Matric Certificate was found tempered. Learned counsel
for the plaintiff urged that the plaintiff before submitting his reply to the show
cause notice sought verification of his Matric Certificate from the Board of
Secondary Education, Karachi by filing an application dated 16.06.2016 (copy
thereof is enclosed at page-41 with the plaint). Matriculation Certificate of
the plaintiff was verified by the Board of Secondary Education, Karachi through
a letter dated 17.06.2016. Copy thereof is enclosed at page-43 with the plaint.
It is specifically stated in that said letter of the Board of Secondary
Education, Karachi that “After seeing the
original Certificate, the same was not found with any tempering on it”. Plaintiff filed Suit No.1951/2016
for declaration and permanent injunction against the defendants in this Court.
Coy of the same is enclosed as annexure “G” at page-69 with the plaint. This
Court was pleased to grant interim restraining order against the defendants.
Plaintiff replied the show cause notice on 21.06.2016 issued for personal hearing
was issued by the defendants to the plaintiff. Copy thereof is enclosed at
page-91 with the plaint. Subsequent thereof on 24.02.2017 the defendant No.4 issued a letter to the plaintiff directing him to
withdraw Suit No.1951/2016 unconditionally thereafter,
the Management of the defendant will decide to consider withdrawal of the show cause notice dated 14.06.2016 issued to the plaintiff. Copy
of that letter is enclosed at page-93 with the plaint. Learned counsel for the
plaintiff states that plaintiff withdrew aforesaid suit. Photocopy of the
certified copy of the order dated 08.03.2017 is enclosed at page-99 with the
plaint. Defendant No.4 issued letter dated 25.05.2017
whereby the plaintiff was exonerated from the charges. Copy of the said letter
is enclosed as annexure “G/5” at page-101 with the plaint. On 07.02.2019 the
plaintiff was promoted to the post of the Deputy Chief Engineer as per letter
enclosed as annexure “H” at page-103.
3. Present
suit was filed when leave application of the plaintiff was rejected on or about
24.09.2020 for the reason that his Matric Certificate again found tempered
without any new evidence. Copy of that letter is enclosed as annexure “H/3” at
page-121 with the plaint. Plaintiff filed present suit against the defendants
and has obtained interim injunctive order on 12.10.2020, which is still holding
field. Learned counsel for the plaintiff submits that the defendants No.2 to 5 did not file written statement or any counter
affidavit to the injunction application bearing CMA No.10244/2020
but a separate statement alongwith certain documents including photocopy of show
cause notice dated 11.11.2020. Defendant No.6 Board
of Secondary Education, Karachi filed counter affidavit to the injunction
application whereby admitted contents of letter No.BSE/CERT/VER/6876/2016, dated 12.05.2016 (enclosed at page-39 with
the plaint) and letter No.BSE/CERT/VER/6876/2016, dated 17.06.2016 (enclosed at page-43 with
the plaint). Both letters were issued by the Board of Secondary Education,
Karachi confirming therein that there is no tempering in the Matric Certificate
of the plaintiff. The only issue was that in the tabulation register maintained
by the defendant No.6 date of birth of the plaintiff
is mentioned as 18.03.1971 instead of 18.03.1970. Learned counsel for the
plaintiff has placed reliance upon 2020 PLC (CS) 483 and 2016 PLC 335. Learned
counsel for the plaintiff further submits that the plaintiff has a good prima
facie case and balance of convenience also lies in his favour
as the defendants No.2 to 5 after about 27 years are
challenging genuineness of the Matric Certificate of the plaintiff whereas in
2017 the genuineness of the same Matric Certificate was verified from the Board
of Secondary Education, Karachi and on the basis of the reports / letters issued
by the defendant No.6 the plaintiff was exonerated
from the charges, referred to above and was promoted to the post of Deputy Chief
Engineer in 2019.
4. Learned
counsel for the defendants No.2 to 5 did not file any
counter affidavit to the pending applications and even no written statement has
been filed by the defendants No.2 to 5 till this
date. However, on perusal of the record it appears that statement in writing
was filed on 24.11.2020. Pursuant to the order dated 09.11.2020 certain
documents were enclosed with the defendant No.2’s
statement including the correspondence in between the plaintiff and defendants No.2 to 5. All such documents are showing that date of
birth of the plaintiff as mentioned in the register of birth maintained by the
Municipal Corporation, Multan is 18.03.1970. Copy of the same is enclosed at
page-53 with the statement of the defendant No.2. Form
“B” issued on 14.07.1976 by the Ministry of Interior under Registration Act,
1972 (available at page-55) is also showing same date of birth of the plaintiff
i.e. 18.03.1970. Same date of birth of the plaintiff is also mentioned in the
Passport (available at page-61) and CNIC (available
at page-65) as well as Domicile (available at page-69) of the plaintiff. Letter
dated 12.05.2016 of the Board of Secondary Education, Karachi enclosed at
page-73 with the statement of the defendant No.2
whereby it is certified that particulars / details mentioned in the Matric
Certificate of the plaintiff were found as per record and the date of birth of
the plaintiff was mentioned in that letter as 18.03.1971. A very important document
is letter of the defendant No.6 the Board of
Secondary Education, Karachi dated 16.06.2016 enclosed as annexure “F” at
page-81 with the statement of the defendant No.2
wherein it is mentioned that “After seeing
the original Certificate, the same was not found with any tempering on it”.
5. Learned counsel for the defendants No.2 to 5 while emphasizes on the contents of the show
cause notice issued to the plaintiff and the reply of the plaintiff, it is
submitted that the reply of the plaintiff was found satisfactory to the
management and no interference of the Court is required. He has relied upon the
following case laws:-
1. Muhammad Yousaf Khan v. Habib Bank Limited and others 2004 SCMR
149.
2. Khalid Mahmood Ch. And
others v. Government of the Punjab, 2002 SCMR 805.
3. Saeed Ahmad and others v. Chairman O.G.D.C.L.
and others, 2019 PLC 277 (SB).
4. Saadullah v. Albaraka Bank, 2019 PLC
(CS) 940.
5. M/s. Serwat Aziz v. Sindh
Bank Limited, 2019 PLC (CS) 975.
6. Premier Financial Services Pvt
Ltd. v. SECP, 2015 CLD
1852.
7. Naweed Akhtar Cheema
v. Chairperson, TEVETA and others, 2011 PLC (CS) 803
(SB).
8. Naveed Alam Zubairi v. Federation of Pakistan, 2019 PLC (CS) Note 34(b)
(SB).
9. Saed Liaquat Naqvi
v. Azad Government of Jammu and Kashmir, 2018 PLC (CS)N
152.
10. Amir Shahbaz v. Government
of N.W.F.P. and others, 2004 SCMR
492 (SC).
11. Deputy District Officer (Revenue), Kasur
and another v. Muhammad Munir Sjid,
2013 SCMR 279.
12. Kaloo Khan and others v. O.G.D.C.L.
and others, 2019 PLC (CS) 519 (SB).
13. Habib Bank Limited v. Manzoor
Hussain 1994 PLC 373 High Court Lahore.
6. Defendant
No.6 filed written statement in this suit wherein
preliminary objections with regard to the maintainability of present suit has
been raised but the defendant No.6 did not challenge authenticity
and / or genuineness of the Matric Certificate issued to the plaintiff. Only
objection raised in the written statement of the defendant No.6
is that according to tabulation register of the Board of Secondary Education,
Karachi date of birth of the plaintiff is 18.03.1971. Learned counsel for the
defendant No.6 submitted that neither any inadvertent
error has been occurred nor any mistake has been admitted by the defendant
while entering the date of birth of the plaintiff in their record.
7. Heard
learned counsel for the parties, perused material available on record as well
as case laws with their assistance.
8. It
is undeniable fact that the plaintiff applied pursuant to the advertisement,
all the relevant documents / testimonials including Matric Certificate issued
by the Board of Secondary Education, Karachi provided by the plaintiff to the defendant
No.6 containing date of birth of the plaintiff as
18.03.1970. Plaintiff obtained Matric Certificate prior to applying for the job
and got his job of Technician with the defendant No.2.
All the documents relating to his date of birth maintained by the various
government functionaries like ‘Register of Birth’, maintained by the Municipal
Corporation, Multan, Form “B” issued on 14.07.1976 by the Ministry of Interior
under Registration Act, 1972, the Passport and CNIC of
the plaintiff as well as his Domicile,
referred to above, contained same date of birth of the plaintiff, which has
been shown in the Matric Certificate i.e. 18.03.1970. If there is any error in
the date of birth of the plaintiff, the same is on the part of the officials of
Board of Secondary Education, Karachi / defendant No.6.
For the sake of argument it is assumed that the date of birth of the plaintiff is
18.03.1971 then it will be beneficial for the plaintiff and he will get benefit
of one year more in his service. Mostly the employees challenged their date of
birth at the verge of their retirement on the ground that it was wrongly
mentioned in the official record but in the present case plaintiff has not challenged
his date of birth wrongly maintained by the defendant No.6
in the tabulation register, that appears to be a mistake / error committed by the
official of the defendant No.6, who noted wrong date
of birth of the plaintiff in the Tabulation Register, that record is contrary
to the record of the Board of Secondary Education, Karachi when the defendant No.6 itself issued Matric Certificate on 21st
September, 1986 to the plaintiff showing his date of birth as Eighteenth March,
one thousand nine hundred seventy (18.03.1970). For about twenty seven (27)
years no efforts were made by the defendant No.6 to
rectify the error if same was occurred in September, 1986 when the Martic Certificate was issued to the plaintiff.
9. Correspondence
made by the defendant No.6 with the defendants No.2 to 5 and the plaintiff is contrary and in conflict with
the record maintained by the defendant No.6 to the
extent of tabulation register. This fact for the first time
surfaced by the defendant No.6 in 2020 whereas the
plaintiff was issued Matric Certificate on 21.09.1986. Defendants No.2 to 5
have failed to rebut, deny or challenge the averments of the memo of plaint as
well as affidavits in support of the injunction application by filing any
counter affidavit / written statement in the present case. It is a settled
principle of law that if the averments / contents / facts are not denied,
controvert or challenged, the same shall be deemed to have been admitted. If
any authority is need the reference may be made to the case of Haji Abdul Sattar and others vs. Mst. Mehnaz and others (2020 MLD 896),
the case of Usman Khan vs. Mst.
Shehla Gul and others (2020
CLC 910) and Wajid Ali and another vs. The State and another (2020 YLR Note 113). Plaintiff has established a prima facie case
and balance of convenience is also lies in his favour
and he shall suffer irreparable loss if injunction application is not allowed.
10. In
view of above circumstances, injunction application bearing CMA No.10244/2020 is allowed. Interim order already passed is
hereby confirmed.
11. With
regard to the CMA No.12096/2020 is concerned there is
no need for any forensic examination of the original matric
certificate of the plaintiff as the defendant No.6
has not challenged the authenticity and genuineness of the same. Claim
of the defendant No.6 is only to the extent that the
date of birth of the plaintiff is mentioned in their tabulation register as
18.03.1971 instead of 18.03.1970. As such CMA No.12096/2020
is hereby dismissed accordingly.
Karachi
Dated : ____________ JUDGE