Delhi District Court
Sh. Krishan Kumar vs ) The Director Of Examination on 21 January, 2013
IN THE COURT OF SHRI AMIT BANSAL, SCJ/RC(WEST)
TIS HAZARI COURTS, DELHI
Suit No. 632/2008
Sh. Krishan Kumar
S/o Shri Sadhu Ram
R/o Ward No.13, House No.60,
Mandi Harzi Ram,
Malout, Distt. Mukstar ....Plaintiff
Versus
1) The Director of Examination,
Northern Zonal Office,
Indian Institute of Bankers,
11A, Atmaram House,
1 Tolstoy Marg,
New Delhi.
2) Indian Institute of Bankers,
World Trade Centre,
Cuffe Parade,
Mumbai - 400005.
Through its Chairman .....Defendants
Date of institution of the Suit : 10.10.2008
Date of reserving Judgment : 15.01.2013
Date of Pronouncement : 21.01.2013
JUDGMENT
1. This judgment will dispose of the suit for mandatory injunction as filed by the plaintiff against the defendants.
2. Brief facts as mentioned in the plaint necessary to dispose of this suit are that the plaintiff is a bonafide member of defendant no.2 and an employee of Oriental Bank of Commerce. The plaintiff was enrolled S 632/2008 Page..... 1/18 with the defendant no.2 with membership number 7481245 for taking examination of Certified Associates of Indian Institute of Bankers (CAIIB). The defendant no.2 conducts various examinations in the field of banking including CAIIB which is conducted in two parts i.e. CAIIB Part-I and CAIIB Part-II. The said examinations are conducted twice a year. All employees of the banking industry are eligible for special one or two increments, consequent to passing CAIIB Part-I and CAIIB Part-II respectively. Besides the special increments, the employees are also eligible for promotion to officer cadre upon passing CAIIB Part-I / Part-II examinations. The defendant no.1 has been authorized by the defendant no.2 to take the said examinations for the bank employees working in the branches situated in North Zone of India. As per the scheme of the defendants, a candidate is allowed eight attempts to clear requisite number of papers jointly or severally to entitle him to a degree/certificate of having cleared the said examination. The plaintiff appeared for CAIIB Part-I examination conducted by defendant no.2 and passed the papers of Principles of Computer Science in August 1997, Business Communication in January 1998, Book Keeping in July 1998 and Principles of Management in December 1998. The defendant no.1 without any notice changed the pattern /syllabus of examination in 2002 and re- named CAIIB Part-I as JAIIB. All the members who had passed/qualified some papers of CAIIB Part-I under the previous S 632/2008 Page..... 2/18 scheme, were allowed credit transfer of the papers passed under the old pattern and were informed by the defendant institute that they would not have to appear in the corresponding papers in the new syllabus and would still be given their benefit even the under the new scheme. The plaintiff also requested for credit transfer of the papers already cleared and the defendant no.2 acceded to the request of the plaintiff vide letter number REP:NZ/CT/58/185/02 dated 13.12.2002. The plaintiff averred that the defendant no.2 vide the said letter enlightened the plaintiff that he would get further eight attempts under revised syllabus to pass remaining papers and, therefore, the plaintiff was required to pass only one remaining paper i.e. Indian Financial System & Commercial Banking in the next eight attempts to qualify the JAIIB examination. The defendant no.2 vide letter dated 21.05.2003 forwarded the ID-Card to be carried to the examination hall for appearing in the examination and the said card was valid for eight attempts. The plaintiff passed remaining paper of Indian Financial System & Commercial Banking in the examination held in December, 2003, the result of which was communicated vide mark sheet dated 02.04.2004, thus, making him eligible for the award of the certificate of JAIIB. The plaintiff averred that the defendant no.1 conducts JAIIB examination twice in a year and, therefore, eight attempts were to expire in December, 2006, whereas the plaintiff passed the remaining paper in December, 2003 i.e. much before the expiry of that period. S 632/2008 Page..... 3/18 The plaintiff averred that by virtue of passing the required papers of CAIIB Part-I /JAIIB, he is eligible for certificate of the defendant no.2 which would enable him to get one increment from Oriental Bank of Commerce besides the preference for promotion as per the scheme of the bank. The plaintiff submitted that despite various requests vide letters dated 08.04.2004, 28.04.2004, 22.05.2004, 09.06.2004 and 03.09.2007, the defendants failed to issue the certificate of JAIIB Part - I, resulting in monetary loss to the plaintiff in the shape of one increment besides loosing opportunities for promotion and the plaintiff thus suffered a loss of Rs.20,000/- towards the loss of increments, promotions and unnecessary expenditure of correspondence besides various visits to the defendants. The plaintiff instituted a suit before Ld. Civil Judge, Malout on 21.12.2004 for directions to the defendants for issuance of the said certificate but the suit was dismissed on 16.01.2007 due to lack of jurisdiction. The plaintiff thus prayed for a decree of mandatory injunction thereby directing the defendants to issue to him certificate of JAIIB in the proof of his having cleared all the examinations therein. The plaintiff has also prayed for the cost of the suit.
3. The defendants filed the written statement and mentioned that under CAIIB Part-I (old syllabus), a candidate had to pass six subjects i.e. (a) Practice & Law of Banking; (b) Business Economics; (c) Business Communication; (d) Book Keeping; (e) Principles of S 632/2008 Page..... 4/18 Computer Science; and (f) Principles of Management. In the year 1998, syllabus was changed and a revised syllabus was introduced pursuant to which some subjects were identified for credit transfer i.e. the candidate was not required to appear in the subject(s) under the revised syllabus, if he had passed certain subject(s) under old syllabus subject to passing the examination within the permitted number of eight consecutive attempts. The subjects identified for credit transfer were as under:-
CAIIB Part I that was renamed as JAIIB
Subjects under old Syllabus Subjects under revised syllabus
identified for credit transfer
Practice & Law of Banking Indian Financial System & Com.
Banking
Business Communication Business Com. & Customer
Relations
Book Keeping Basic Accountancy
Principles of Computer Science Introduction to Computers
The subjects introduced under the revised syllabus calling JAIIB were as under:-
(a) Indian Fin. System & Commercial Banking {Subject Code - 71}
(b) Business Com. & Customer Relations {Subject Code - 72}
(c) Special & Preferred Sector Finance {Subject Code - 73}
(d) Basic Accountancy {Subject Code - 74}
(e) Introduction to Computers {Subject Code - 75} The defendants submitted that out of the six subjects under the old syllabus of CAIIB Part-I, the plaintiff passed subjects of Business S 632/2008 Page..... 5/18 Communication, Book Keeping, Principles of Computer Science and Principles of Management only till May 1999. As per rules, the plaintiff had to exercise switch over option on or before completion of his eight attempts. The eight attempts of the plaintiff got over in June 2001, he was required to start the examination afresh and to pass all the subjects as prescribed in the syllabus. In these circumstances, there was no question of credit transfer after 2001 as the plaintiff appeared for examination in 2003 under revised syllabus and was covered by the said Rules. The defendant submitted that the letter dated 13.12.2002, on which the plaintiff is placing heavy reliance, is a reproduction of the announcement made in the Journal and speaks about the four subjects identified for credit transfer and the eligibility of the plaintiff for credit transfer of three subjects out of the four subjects. This information was contained in the Rules and syllabus booklet and it was also announced in the institute's quarterly Journal of April and June, 2001 issue which is also sent free to every member of the institute. The plaintiff had to exercise the option to switch over to the revised syllabus before 2001 or before completion his eight attempts. The attempts of the plaintiff commenced from 1997, got over in the year 2001 itself and he failed to pass all the subjects under the old syllabus within that stipulated time framed. As a result, the plaintiff was left with no option but to switch to the revised syllabus having five subjects and to pass them again in eight attempts. The plaintiff after paying the necessary fees applied S 632/2008 Page..... 6/18 under revised syllabus for June 2003 JAIIB examination and appeared in the subject code 71 but could not pass it. He remained absent in the remaining subjects bearing code no.72, 73, 74 & 75. In December, 2003 the plaintiff re-appeared in the subject code 71 i.e. Indian Financial System and Commercial Banking and passed the said subject. The plaintiff, however, needed to pass the remaining four subjects with subject code no.72, 73, 74 & 75. The defendants submitted that until and unless, the plaintiff passed remaining subjects his result for JAIIB could not be declared as pass. The plaintiff is not entitled for a certificate passing some subjects under old syllabus and some subjects under new syllabus. The scheme is subject to the Rules framed by the institute and binding on its members. The defendants submitted that after exhausting the time limit of eight consecutive attempts, there was no carry forward of passed subjects (irrespective of syllabus) and the candidate has to start the examination afresh. The defendants submitted that even assuming that such carry forward was permitted to the plaintiff, then also he had to pass two subjects under revised syllabus out of the five subjects i.e. Indian Financial System and Commercial Banking and Special and Preferred Sector Finance.
The plaintiff out of the said subjects has passed only Indian Financial System and Commercial Banking and, therefore, is not entitled for any decree directing the defendants to issue JAIIB certificate of his having cleared all the examinations therein. The defendants also submitted S 632/2008 Page..... 7/18 that the present suit is barred under The Limitation Act, 1963. The defendants submitted that the plaintiff has not come to the court with clean hands because he did not disclose that he did not exercise the option to switch over to the revised syllabus before completion of eight attempts in 2001 and, therefore, was not entitled for credit transfer of the subjects passed under the old syllabus. The defendants also submitted that assuming that credit transfer was given to the plaintiff, then also he had to pass two subjects under revised syllabus out of five subjects i.e. Indian Financial System and Commercial Banking and Special and Preferred Sector Finance. The defendants submitted that the plaintiff has not disclosed whether he appeared and passed the examination in Special and Preferred Sector Finance. The defendants further submitted that the present suit is barred under the Principles of Constructive Res-judicata as an earlier suit filed by the plaintiff on 21.12.2004 on the same cause of action had earlier been dismissed vide order dated 16.01.2007 by Ld. Civil Judge, Malaut on the ground of jurisdiction. The defendants submitted that after the introduction of revised syllabus in 1998, CAIIB Part-I was renamed as JAIIB and CAIIB Part-II was renamed as CAIIB. The defendants submitted that the plaintiff was required to pass the subjects in eight attempts as per list of subjects falling under the revised syllabus, identity card was sent to the plaintiff inter alia mentioning the same and the plaintiff could not combine the old with a new syllabus to claim advantage as the S 632/2008 Page..... 8/18 same is subject to the Rules.
4. From the pleadings of the parties following issues were framed in the Suit by ld. Predecessor of this Court on 20.01.2010:-
1) Whether the suit is barred by Limitation as claimed in preliminary objection no.10? OPD
2) Whether the plaintiff is entitled to the equitable relief of mandatory injunction, as prayed for? OPP
3) Relief.
5. Perusal of record shows that plaintiff has himself stepped into the witness box as PW-1 in support of his case and filed his evidence by way of affidavit which has been proved as Ex.PW-1/A. The plaintiff has primarily deposed the contents of the plaint in his evidence by way of affidavit. The mark sheet of the plaintiff issued by the Indian Institute of Bankers, Part-I paper August 1997 has been proved as Ex.P1 which shows that out of six subjects the plaintiff passed only the paper of Principles of Computer Science. The mark sheet of the plaintiff issued by the Indian Institute of Bankers, Part-I paper January, 1998 has been proved as Ex.P2 which shows that the plaintiff passed the paper of Business Communication. The mark sheet of the plaintiff issued by the Indian Institute of Bankers, Part-I paper July 1998 has been proved as Ex.P3 which shows that the plaintiff passed the paper of Book Keeping. The mark sheet of the plaintiff issued by the Indian Institute of Bankers, Part-I paper December 1998 has been proved as Ex.P4 which shows that the plaintiff passed the paper of Principles of S 632/2008 Page..... 9/18 Management. The letter dated 13.12.2002 as written by the officer of the Indian Institute of Bankers to the plaintiff has been proved as Ex.P5 (written as Ex.P7 on the document but be read as Ex.P5). The letter dated 21.05.2003, from the Indian Institute of the Bankers to the plaintiff regarding permanent Id-Card has been proved as Ex.P6. The mark sheet of the plaintiff issued by the Indian Institute of Bankers, JAIIB paper December 2003 has been proved as Ex.P7 which shows that the plaintiff passed the paper of Indian Financial System and Commercial Banking. The copy of letters dated 08.04.2004, 28.04.2004, 22.05.2004 and 09.06.2004 written by the plaintiff have been collectively proved as Ex.P8. The certified copy of order dated 16.01.2007 in civil suit no.552-01 as filed by the plaintiff on 21.12.2004 against the defendant no.1 of the court of Smt. Gurmeet Kaur, PCS, Ld. Addl. Civil Judge (Senior Division), Malout has been proved as Ex.P9 vide which the plaint was directed to be returned to the plaintiff to file it in the court of competent jurisdiction.
Perusal of record further shows that defendants have examined Shri Kavan Ramesh Shah as DW-1 in support of their case who has filed his evidence by way of affidavit which has been proved as Ex.D1. DW-1 has also primarily deposed the facts as mentioned in the written statement of the defendants. The authority letter dated 21.05.2012 issued by the CEO of Indian Institute of Banking and Finance in favour of DW-1 has been proved as Ex.DW-1/1. The JAIIB S 632/2008 Page..... 10/18 Rules and Syllabus 2003 issued by the Indian Institute of Bankers, Mumbai has been proved as Ex.DW-1/2.
6. I have heard the final arguments and perused the record.
7. My findings with respect to the above said issues as framed in the suit are as under : -
ISSUE No. 1
The onus of proof of this issue is on the defendants vide which the defendants have to prove that the present suit is barred by the Limitation as claimed in preliminary objection no.10 of the written statement.
The defendants have claimed in paragraph no.10 of the preliminary objections of their written statement that the present suit has not been filed within time and is barred under The Limitation Act, 1963. They have further mentioned that as per own admission of the plaintiff, the cause of action accrued in favour of the plaintiff on 02.04.2004 when despite passing examination in Indian Finance System and Commercial Banking, the defendants did not issue him the JAIIB certificate. The defendants have thus submitted in their written statement that cause of action, if any, arose to the plaintiff only on 02.04.2004, the plaintiff could have file the present suit on/before 01.04.2007 and as the present suit was filed on 10.10.2008, therefore, it is time barred. The defendants have further mentioned in their written statement that at the time of dismissal of the earlier suit at Malout, no S 632/2008 Page..... 11/18 leave was granted or obtained by the plaintiff to file a fresh suit. The plaintiff in the plaint has mentioned that he passed the paper of Indian Financial System and Commercial Banking in the examination held in December 2003, the result of which was communicated vide mark sheet dated 02.04.2004, thus making him eligible for award of certificate of JAIIB, however, despite various requests, the defendants failed to issue the certificate of JAIIB Part-I. The mark sheet Ex.P7 also shows that plaintiff passed the said paper of JAIIB vide mark sheet which was issued on 02.04.2004. Ex.P9 i.e. certified copy of order dated 16.01.2007 of Ld. Additional Civil Judge (Senior Devision), Malout shows that earlier suit filed by plaintiff against defendant no.1 for mandatory injunction was disposed of on 16.01.2007 in which it was ordered that the plaint be returned to the plaintiff to file in the court of competent jurisdiction. It is thus evident that contrary to the stand taken by the defendants, the said earlier suit of the plaintiff was not dismissed on merits but the plaint was only directed to be returned to be filed in the court of competent jurisdiction. As per Ex.P9, the said civil suit was filed on 21.12.2004 i.e. well within the limitation period and was only directed to be returned on 16.01.2007. The plaintiff filed the present suit on 10.10.2008. It is an admitted fact that in terms of Article 113 of The Limitation Act, 1963, the limitation period of filing of the present suit is three years from the period when the right to sue accrued. In terms of section 14(1) of The Limitation S 632/2008 Page..... 12/18 Act, 1963, the time during which the plaintiff was prosecuting with due diligence the previous suit filed by him at Malout which proceedings related to the same matter in issue and was being prosecuted in good faith, however, in the court which was unable to entertain it due to defect of prosecution, has to be excluded. After excluding that period i.e. from 21.12.2004 till 16.01.2007, it is evident that the present suit as filed by the plaintiff on 10.10.2008 is within limitation. In these circumstances and discussion, the defendants have failed to discharge the burden of proof of issue no.1 and it is held that the present suit has been filed within limitation period and is not barred by limitation.
8. ISSUE NO.2:-
The onus of proof of this issue is on the plaintiff vide which the plaintiff has to prove that he is entitled to equitable relief of mandatory injunction. The plaintiff has prayed that the defendants be directed to issue JAIIB certificate in proof of his having cleared all his examinations therein. The plaintiff has placed heavy reliance upon the document dated 13.12.2002 i.e. Ex.P5 which was written by the officer of the Indian Institute of Bankers to him. Upon first blush, it seems upon reading of Ex.P5 that the plaintiff was only required to pass the paper of Indian Financial System and Commercial Banking for passing the JAIIB, however, upon total reading of Ex.P5, it becomes evident that the said document is not happily worded. Whatsoever it may be, it has also inter alia been mentioned in Ex.P5 that the plaintiff was S 632/2008 Page..... 13/18 required to appear for the remaining subjects of JAIIB/CAIIB under revised syllabus to complete the same and has been asked to refer Entry form/syllabus. The JAIIB Rules and Syllabus 2003 has been proved as Ex.DW-1/2 in which the Rule no. 2.7 prescribes the time limit for passing the examination. It prescribes as under:-
" 2.7 TIME LIMIT FOR PASSING THE EXAMINATION:
Candidates for the JAIIB / CAIIB Examination are required to pass in all subjects of the respective examination in not more than 8 consecutive attempts. The counting of attempts will begin from the date of application for the examination and attempts will be counted irrespective of whether a candidate appears at any examination or otherwise Candidate who exhaust all the permissible 8 attempts and do not pass JAIIB or the CAIIB Examination/s, are permitted to re-register afresh for JAIIB or the CAIIB Examination/s as the case may be. However, NO CREDIT TRANSFER for the subject/s already cleared from the previous examinations will be allowed, while re-starting the examination."
This rule thus specifically provides that the candidates who exhaust all the permissible eight attempts and do not pass JAIIB or CAIIB examinations can register afresh for JAIIB or CAIIB examination, however, no credit transfer for the subjects already cleared from the previous examinations will be allowed while re- S 632/2008 Page..... 14/18 starting the examination. As discussed above in Ex.P5 also the reference was made to syllabus i.e. Ex.DW-1/2 and that the plaintiff was required to appear in the remaining subjects of JAIIB/CAIIB under the revised syllabus to complete the same. PW-1 (plaintiff) in his cross examination has also admitted that there is a maximum limit of attempting the examination in 8 consecutive attempts and was aware in 1997 that he had to clear examination in maximum eight consecutive attempts. PW-1 also admitted that he exhausted his eight attempts in June, 2001. He also admitted that if a candidate fails to clear in eight attempts then he has to seek afresh enrollment. Plaintiff/PW-1 did not know if the facility to take benefit of the previous examinations cleared was available only to the candidates who had not exhausted their limit of eight attempts and in the meanwhile there was change in the syllabus. He further admitted that he cleared only 4 papers up to year 2001. PW-1 admitted that vide letter Ex.P6, the defendant had sent him a fresh admit card.
It is thus an admitted fact by the plaintiff that he cleared only four papers up to year 2001 and he exhausted all his eight attempts in the year 2001. It is further an admitted fact that if a candidate fails to clear in eight attempts then he has to seek a fresh enrollment. The Rule 2.7 (as quoted above) provides that no credit transfer for the subjects already cleared from the previous examinations will be allowed while re-starting the examination. It is also an admitted fact that the plaintiff S 632/2008 Page..... 15/18 passed the paper of Indian Financial System and Commercial Banking in the examination held in December, 2003 of which the result was declared on 02.04.2004. It shows that the plaintiff who had exhausted all his attempts till the year 2001 could not have availed any credit transfer for the paper in which he was appearing in the year 2003 as in terms of the Rule 2.7 (as quoted above) he was to register himself afresh for the examination after exhausting all his permissible eight attempts and there could have be no credit transfer for the subjects already cleared by him. As far as the letter Ex.P5 is concerned it has already been discussed that it is not happily worded and after reading the said document as a whole, the intention was not to communicate to the plaintiff that he has to pass only one examination of Indian Financial System and Commercial Banking for JAIIB but he was required to appear for remaining subjects as per the syllabus. The plaintiff will thus not get any help from the said letter dated 13.12.2002 (Ex.P5) in this regard and moreover no letter can bind a department against its formulated rules.
Further, the cross examination of DW-1 shows that the DW-1 was not cross examined on any material aspect of his testimony as given in his evidence by way of affidavit i.e. Ex.D1 and therefore, the plaintiff shall be deemed to admit all the material facts as mentioned in Ex.D1 including the facts that the eight attempts of the plaintiff got over in June 2001, he was required to start the examination afresh to S 632/2008 Page..... 16/18 pass all the subjects as prescribed in the syllabus, therefore, there was no question of credit transfer after 2001. The plaintiff shall also be deemed to admit the testimony in Ex.D1 to the effect that there was no question of credit transfer after 2001 in as much the plaintiff appeared for the examination in the year 2003 under revised syllabus and was governed by the said rules. The plaintiff shall also be deemed to admit that he has concealed the fact that he did not exercise the option to switch over to the revised syllabus before completion of his eight attempts in the year 2001 and, therefore, he will not be entitled for credit transfer of the subjects passed under the old syllabus and assuming that credit transfer is given to the plaintiff then also he has to pass two subjects under the revised syllabus out of five subjects i.e. two subjects of 'Indian Financial System and Commercial Banking' and 'Special and Preferred Sector Finance' and the plaintiff has not disclosed whether he appeared and passed the examination in 'Special and Preferred Sector Finance'.
In view of the above said discussion, it is evident that the plaintiff cannot be declared to have passed the examination of JAIIB only after passing the examination of Indian Financial System and Commercial Banking in the year 2003-04 after the exhaustion of his eight permissible attempts in the year 2001 as he could not have availed the credit transfer after the exhaustion of all the eight permissible attempts in terms of Rules 2.7 of Ex.DW-1/2. S 632/2008 Page..... 17/18
It is thus held that the plaintiff has failed to discharge the burden of proof qua issue no.2 and issue no.2 is thus decided against the plaintiff. It is, therefore, held that the plaintiff is not entitled to the equitable relief of mandatory injunction, as prayed for by him in the plaint.
9. ISSUE No. 3.
Relief In view of my above said discussion and findings on the issue no.2, it is held that the plaintiff is not entitled to any relief as claimed in the plaint and the suit of the plaintiff is dismissed, however, with no order as to costs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court ( AMIT BANSAL)
on 21.01.2013 SCJ/RC(WEST)
THC, DELHI 21.01.2013
S 632/2008 Page..... 18/18