Delhi District Court
Ankit Kumar Jha vs Sh. Manish Arora on 21 January, 2020
IN THE COURT OF JSCCCUMASCJCUM GDN. JUDGE:
NORTH DISTRICT, ROHINI : DELHI
PRESIDING OFFICER: MS. AANCHAL, DJS
Suit No. 399/19
In the matter of:
Ankit Kumar Jha,
S/o Sh. Anjani Kumar Jha,
R/o Flat No. 199, Bagwan Apartment,
Sector28, Rohini, Delhi. ............. Plaintiff
Vs.
1. Sh. Manish Arora,
Chairman,
Mount Abu Public School,
PocketH, Sector18,
Rohini, Delhi.
2. Smt. Archana Arora,
Principal,
Mount Abu Public School,
PocketH, Sector18,
Rohini, Delhi.
3. The Chairman/Director of
National Institute of Open Schooling,
Regional Centre, Delhi
At: A31, Institutional Area,
Sector62, Distt. Gautam Budh Nagar,
NOIDA, U.P.
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4. The Secretary,
Ministry of H.R.D., Govt. of India,
CWing, Shastri Bhawan,
Dr. Rajendra Prasad Road,
New Raj Path Area, Central Secretariat,
New Delhi110001. ............. Defendants
Date of Institution of Suit : 01.04.2019
Date of reserving judgment : 07.01.2020
Date of announcement of Judgment : 21.01.2020
SUIT FOR OF MANDATORY INJUNCTION
JUDGMENT
1. Vide this judgment, this Court shall decide the suit filed by the plaintiff against the defendants seeking following reliefs:
(i) Decree of mandatory injunction thereby directing the defendants no. 1, 2 and 3 to provide the details of the practical marks of the plaintiff and to include the same in the Annual Examination Result of plaintiff.
(ii) Decree of mandatory injunction against defendant no. 4 thereby directing defendant no 4 to ensure and know the fault as to which defendant has committed wrong and to take appropriate legal action against the wrong doer/negligent defendants as per law.
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2. In the plaint, it is pleaded by the plaintiff that he being the student of National Institute of Open Schooling (CourseSenior Secondary) vide Enrollment No. 270425163049, appeared in the examination in April 2018 and had the centre for examination at the Mount Abu Public School, Sector18, Rohini, Delhi. It is pleaded that he appeared in the examination and filed the practical assessment of all the subjects on 02.02.2018 with the defendants no. 1 and 2 who are the Chairman and Principal of Mount Abu Public School as per the direction of defendant no. 3. The plaintiff's annual result was published in June 2018, but the numbers/marks of practical were not included in the annual result. He approached to defendant no. 3 and raised the query for noninclusion of the practical marks, but no satisfactory reply was given by defendant no. 3 and in fact he was suggested to approach to the defendants no. 1 and 2 and when he approached them, they informed that they have sent the marks to defendant no. 3 and also showed an email sent by them and since then, plaintiff kept on approaching to the defendants no. 1 to 3, but they shifted their liability from their shoulder to another and till date despite passing the long time after pronouncement of the result, the practical marks of plaintiff have not been shown and due to which plaintiff has suffered huge loss/time of education and golden period of one year has been ruined due to negligence of defendants no. 1, 2 and 3. Hence, this case.
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3. All the four defendants were served. Official of defendants no. 1 and 2 appeared in respect to summons issued on 16.04.2019 and submitted authority letter alongwith the copy of one letter regarding Tutor Marked Assessment (hereinafter mention as "TMA") of the plaintiff. But, thereafter, none for defendants no. 1 and 2 appeared and even written statement on their behalf has not been filed and only defendant no. 3 filed the written statement.
4. The suit of the plaintiff is prayed to be dismissed by the defendant no. 3 by filing the written statement wherein preliminary objection was taken that suit of the plaintiff is time barred as per rules and regulations and direction issued vide the Notification No. 219/2014 dated 11.07.2014 of National Institute of Open Schooling and plaintiff has concealed the material facts from the Hon'ble Court. On merits, it is admitted that plaintiff was the student of National Institute of Open Schooling and appeared for examination in April, 2018 and examination centre was Mount Abu Public School, but it is denied that plaintiff filed his practical assessment of all the subjects with the defendant no. 1 and 2 on 02.02.2018 as per the direction of defendant no. 3 and it is submitted that there is no provision of practical assessment marks for the subject opted by the plaintiff for Senior Secondary School Examination and as per Rules and Regulations, there is a provision for TMA for the subject opted by the plaintiff and every learner has to submit this by 31st January for the CS No.399/19 Ankit Kumar Jha Vs. Manish Arora and Ors. Page No. 4 of 16 April/May examination and by 31st July for October/November Examination and the plaintiff submitted the TMA, if any, after the due date of 31st January, 2017, hence the TMA could not be considered. It is also submitted that the plaintiff submitted the TMA, if any, after the due date of 31st January,2017, the TMA could not be included in the annual result of the plaintiff. It is also denied that the plaintiff approached the defendant no. 3 and raised the query for not inclusion of his marks and he was given nonsatisfactory reply and he was suggested to approach defendants no. 1 and 2. It is also stated that one email was received by defendant no. 3 on 12.04.2019, after the publication of result of Senior Secondary Examination in which the TMA was mentioned and that request of plaintiff to include the TMA cannot considered after publication of the result of examination as there is no inadvertent error on the part of defendant no. 3, but it is the result of his own fault of oversight of schedule of submitting TMA. It is denied that plaintiff was made to suffer loss of time and education or golden period was ruined due to negligence of defendant no. 3.
5. Replication to the written statement filed by the defendant no. 3 is filed by the plaintiff wherein it is submitted that plaintiff had submitted the assessment/TMA within the due date and school has accepted the same and submitted the marks to the defendant no. 3 and also entered the online TMA on 22.10.2018 to defendant no. 3. It is also stated that notification of the year 2018 has not been produced CS No.399/19 Ankit Kumar Jha Vs. Manish Arora and Ors. Page No. 5 of 16 and suit of the plaintiff is within the period of limitation. Further, all other submissions made by defendant no. 3 in the written statement are denied and averments as made by the plaintiff in the plaint are reiterated.
6. On the basis of pleadings, following issues were framed by the Ld. Predecessor of this Court vide order dated 01.06.2019:
1. Whether the plaintiff is entitled to the decree of mandatory injunction in his favour and against the defendant no. 1, 2 and 3 as prayed in para no. A of prayer clause? OPP
2. Whether the plaintiff is entitled to the decree of mandatory injunction in his favour and against the defendant no. 4, as prayed in para no. B of prayer clause? OPP
3. Whether the suit of the plaintiff is time barred as per Rules, Regulations and Directions vide Notification no. 219/2014 dated 11.07.2014 of National Institute of Open Schooling? OPD3
4. Whether the plaintiff has concealed the material facts from this Court? OPD3
5. Relief?
7. The plaintiff examined himself as PW1 as the only witness and he relied upon the following documents:
1. Icard of the plaintiff as Ex. PW1/1;
2. Mark Sheet, which does not bear the TMT marks as Ex. PW CS No.399/19 Ankit Kumar Jha Vs. Manish Arora and Ors. Page No. 6 of 16 1/2;
3. The provisional certificate as Ex. PW1/3;
4. The migration certificate as Ex. PW1/4; and
5. Adhar Card of the plaintiff as Ex. PW1/5 (All OSR).
8. The defendant no. 3 examined Sh. Banwari Lal working as Assistant at Regional Centre, Delhi with defendant no. 3 and is only witness as DW1 and he relied upon the following documents:
1. The copy of Notification No.219/2014 dt. 11.07.2014 as Ex.DW1/1 (total five pages, colly) (hereinafter called as 'notification' for sake of brevity).
2. The copy of Online Admission Form as Ex.DW1/2 (total two pages).
3. The copy of page No.30 of prospectus for the year 2016 -2017 as a additional evidence as Ex.DW1/3.
4. The copy of page No.31 of prospectus for the year 2017-2018 as a additional evidence as Ex.DW1/4.
5. The copy of the Resolution No. F.5/24/90 - Sch.3 dt.23.11.1989 notified by the Ministry of Human Resource. development (Department of Education) Govt. of India vide the Gazette of India, October 20, 1990 is Marked as Mark A.
9. Final arguments are heard and during the course of the arguments, it is submitted that it is inadvertently in plaint, date of CS No.399/19 Ankit Kumar Jha Vs. Manish Arora and Ors. Page No. 7 of 16 submission of the marks is typed as 02.02.2018 instead of 27.01.2018 whereas Ld. Counsel for defendant no. 3 submitted that he has no objection if the date as mentioned in the plaint be treated as 27.01.2018. Since even in that case defence of defendant no. 3 would be same and suffer no prejudice.
10. Now, this court proceeds to give the issuewise findings, but this Court is taking up the issues no. 3 and 4 at first since these two issues are overlapping and have bearing upon the issues no. 1 and 2.
11. Issues No. 3 and 4: "Whether the suit of the plaintiff is time barred as per Rules, Regulations and Directions vide Notification no. 219/2014 dated 11.07.2014 of National Institute of Open Schooling? OPD3"
AND "Whether the plaintiff has concealed the material facts from this Court? OPD3"
11.1 The onus to prove these two issues lies upon defendant no. 3 i.e. National Institute of Open Schooling, Regional Centre, Delhi.
11.2 In written statement, it is pleaded that suit of the plaintiff is barred since as per notification No. 219/2014 dated 11.07.2014, a learner can submit his TMA which are referred as " Practical marks"
by the plaintiff in the plaint by 31st January for AprilMarch examination and by 31st July for October/November examination every year but, CS No.399/19 Ankit Kumar Jha Vs. Manish Arora and Ors. Page No. 8 of 16 since plaintiff had submitted the same after 31st January, the suit of the plaintiff is barred by these provisions. In reply to the para no. 4 of the plaint, it is submitted by defendant no. 3 that "the plaintiff submitted the TMA, if any, after the due date of 31.01.2017, hence TMA could not be included in the annual result of the plaintiff". The same submission has been made in response to the para no. 5 of the plaint by the defendant no. 3 in his written statement. Further, it is also stated that (1) inclusion of TMA cannot be considered at this point of time when result of said examination has already been published (2) there is no inadvertent error/clerical mistake on part of defendant no. 3, but it is the result of his own default of oversight of schedule for submitting TMA.
11.3 Ld. Counsel for defendant no. 3 argued heavily that in fact having registered himself through online admission form in 2016, the plaintiff had to submit TMA before 31.01.2017 as per the notification of defendant no. 3 which is Ex. DW1/1. Attention is also drawn to the fact that even this suggestion was made during crossexamination of plaintiff on 02.08.2019 and that plaintiff has also admitted that he knows operation of computers and surfing of internet and he filled up registration/admission form online and thereafter, took printout, signed it and sent the same to defendant no. 3 and DW1 Sh. Banwari Lal had produced he online admission form Ex. DW1/2 which proves that he was registered before defendant no. 3 in August, 2016 though CS No.399/19 Ankit Kumar Jha Vs. Manish Arora and Ors. Page No. 9 of 16 he appeared in examinations in 2018. Therefore, upon reading Ex. DW3/1 i.e. the notification, it is proved that plaintiff had to submit TMA before 31.01.2017. On the other hand, Ld. Counsel for plaintiff stresses heavily that the date of submission of TMA is in reference to the year of examination rather than the year of admission.
11.4 This court has given thoughtful consideration to the contention made.
11.5 DW1 Sh. Banwari Lal has produced the online admission form of plaintiff i.e. Ex. DW1/2 and nothing to counter this has been produced by the plaintiff, therefore, it is proved that plaintiff had submitted online admission form in August, 2016. But, it is found that when crossexamined, it is admitted by this witness that plaintiff deposited the examination fees for the year 2018 and he had appeared in examination 2018 and he had not paid the examination fee for the year 2017. Therefore, it is proved that taking admission in National Institute of Open Schooling in August 2016, plaintiff applied for examination to be held in AprilMay, 2018. Ex. DW1/1 is the notification of defendant no. 3 which is prescribing the guidelines to be adopted/implemented for internal assessment in NIOS public examination. In its para no. 4 the schedule for submission of TMA is prescribed in tabular form as under: CS No.399/19 Ankit Kumar Jha Vs. Manish Arora and Ors. Page No. 10 of 16 "Submissions dates of TMA will be as follows: S. No Block By Feedback by Submission of awards Public learners facilitator to RC examinati on Online Hard Copy 1 BlockI 31st Jan 15th Feb 28th Feb 15th March April/May Admission 2 BlockII 31st July 15th August 30th 10th Sep Oct/Nov Admission August Thus, as per this, the learners taking admissions for public examination to be held in BlockI i.e. in the month of April/May, can submit the TMA by 31st January and the facilitators give feedback by 15th February and it should be followed by submission of awards to RC (Registered centre) online by 28th February and through hard copy by 15th March. The language of para no. 6 (vi) also shows that schedule dates for submission of marks are in respect of public examination rather than to the year of registration/admission in NIOS. Hence, the defence made by the defendant no. 3 is found to be mis conceived and without merits and it is held that having paid the fees for taking examination in April/May 2018, plaintiff was required to submit TMA only by 31.01.2018. Now, since Ld. Counsel for defendant no. 3 has raised no objection if the date of submission of TMA by plaintiff be treated/taken as 27.01.2018 in place of 02.02.2018, it is proved that plaintiff had submitted the TMA to defendants no. 1 and 2 on 27.01.2018 as required by defendant no. 3.
CS No.399/19 Ankit Kumar Jha Vs. Manish Arora and Ors. Page No. 11 of 16 11.6 Now, the question arises if the inclusion of TMA cannot be considered when result of examination has already been published. In his crossexamination, DW1 Banwari Lal has also stated that those candidates, who could not submit the TMA before the examination, he can submit the same after the declaration of result within one month after submitting the prescribed fee. Had it been the case, the objection to the inclusion of TMA merely on the ground that result has been published, is deemed frivolous and meritless.
11.7 It is specifically pleaded by plaintiff in his plaint and deposed by him in his affidavit that he had submitted assessment of all the subject with defendant no. 2. It is not even the case of defendant no. 3 that plaintiff had not submitted the assessment to defendants no. 1 and 2, though the date of submission is not specified. Admission of the submission of TMA by plaintiff before defendants no. 1 and 2 can also be inferred from the fact that defendant no. 3 has specifically stated in written statement that it has received the email on 12.04.2019. A letter signed by defendant no. 2 has also been submitted on record on 16.04.2019 wherein it is stated that TMA Marks of plaintiff were entered online on 22.10.2018 and the copy of the same is also filed on record. Notification dated 11.07.2014 i.e. Ex. DW1/1 produced on record by DW1 Banwari Lal also provides that study centre, AI had to submit the internal assessment marks to its respective Regional Centre (RC), thus, in the present CS No.399/19 Ankit Kumar Jha Vs. Manish Arora and Ors. Page No. 12 of 16 case, Mount Abu Public school had to submit internal assessment marks to defendant no. 3 and there has been only a inhouse process through which marks submitted are verified and then sent to defendant no. 3. Not only this, it is only the defendant no. 3 who could depute the academy facilitator, who can check the work of Internal Assessment and who can depute other experts and call the records for inspection and if need be, even marks in Internal Assessment could be moderated based on the theory marks as per para no. 8 of this notification. Therefore, it had been within the domain and reach of defendant no. 3 to produce the record of even defendant no. 1 and 2 to prove the fact that, in fact, plaintiff had not submitted the TMA before 31.01.2018 and there was no lapse on the part of Mount Abu Public School which is the study centre (AI). Further, though a letter on behalf of Mount Abu Public School submitted which is contrary to the pleadings of defendant no. 3 to the fact that email mentioning the TMA was received by defendant no. 3 on 12.04.2019 since the letter of Mount Abu Public School is stating that the marks were entered on 22.10.2018, nothing is produced on record by defendant no. 3 to show that defendant no. 3 ever called for the records of Mount Abu Public School through defendants no. 1 and 2 to ascertain the veracity of the letter given in Court or that they have been proceeded against it for disbursing information to harm its reputation or to falsify it. Hence, an adverse inference as per the illustration (g) of Section 114 of Indian Evidence Act, which provides as under, is drawn against defendant CS No.399/19 Ankit Kumar Jha Vs. Manish Arora and Ors. Page No. 13 of 16 no. 3: "That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it"
Hence, it is proved that though TMA was submitted by plaintiff to Mount Abu Public School, the marks against TMA of plaintiff were not included due to the fault of defendant no. 1 to 3 collectively.
11.8 Not only this, had it been the case that a learner had to submit the TMA as per the year of his registration before NIOS, study centre should not be made available interface to enter the data regarding the marks of the learners, who could not have submitted their TMA for inclusion of their marks. The submission of marks by study centre as allowed by defendant no. 3 is a conduct vide which it has projected that a learner can submit the assessment and marks would be allotted to him as per the schedule in reference to the year in which they are to take examination. Therefore, to the mind of this Court, the rule of Estoppel as per Section 115 of Indian Evidence Act which provides as under, allies against defendant no. 3: "When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
Hence, defendant no. 3 cannot be allowed to deny that schedule for submission of TMA is with reference to the year of CS No.399/19 Ankit Kumar Jha Vs. Manish Arora and Ors. Page No. 14 of 16 examination rather than year of his enrollment in NIOS.
11.9 Hence, in view of the above, it is held that the defendant has failed to prove that the suit of the plaintiff is time bared as per rules, regulations Ex. DW1/3 or he has concealed the material facts. Consequently, issues no. 3 and 4 are decided in favour of the plaintiff and against the defendant no. 3.
12. Issues No. 1 and 2: "Whether the plaintiff is entitled to the decree of mandatory injunction in his favour and against the defendant no. 1, 2 and 3 as prayed in para no. A of prayer clause? OPP"
AND "Whether the plaintiff is entitled to the decree of mandatory injunction in his favour and against the defendant no. 4, as prayed in para no. B of prayer clause? OPP"
In view of the findings given on issues no. 3 and 4 and the undisputed fact that it is the defendant no. 3 who is under duty to include marks regarding TMA while preparing the final markssheet for Senior Secondary Examination as opted by the plaintiff and declare result after including the same, plaintiff is held entitled for decree of mandatory injunction in his favour and the defendant no. 3 is directed to include the marks provided by defendants no. 1 and 2 towards TMA vide the email admittedly received by defendant no. 3 as per para no. 8 of notification in the annual examination result of plaintiff within one CS No.399/19 Ankit Kumar Jha Vs. Manish Arora and Ors. Page No. 15 of 16 month. Further, in view of para no. 6 of Ex. DW1/3, defendant no. 3 is also directed to call and inspect the record of Mount Abu Public School which is the study centre/AI under defendant no. 3 and to proceed as per law to enquire into the fault and person responsible.
Relief:
In view of above findings given in above issues, the suit of the plaintiff is hereby decreed with cost and mandatory injunctions are granted in favour of the plaintiff thereby defendant no. 3 is directed to include the marks provided by defendants no. 1 and 2 towards TMA vide the email admittedly received by defendant no. 3 on 12.04.2019 as per para no. 8 of notification in the annual examination result of plaintiff within one month and defendant no. 3 is also directed to call and inspect the record of Mount Abu Public School which is the study centre/AI under defendant no. 3 and to proceed as per law to enquire into the fault and person responsible.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court (AANCHAL)
on the 21st day of January, 2020 JSCCCUMASCJCUM GDN.
at 4:30 PM JUDGE: NORTH DISTRICT,
ROHINI COURTS: DELHI.
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