Allahabad High Court
Central Board Of Secondary Education, ... vs Kapil Kumar And Others on 21 January, 2010
Author: Sanjay Misra
Bench: Sanjay Misra
Court No. - 19 Case :- FIRST APPEAL FROM ORDER No. - 466 of 2006 Petitioner :- Central Board Of Secondary Education, New Delhi And Another Respondent :- Kapil Kumar And Others Petitioner Counsel :- H.N. Pandey Hon'ble Sanjay Misra,J.
Heard Sri H.N. Pandey learned counsel for the appellant which is the Central Board of Secondary Education.
This is a First Appeal From Order directed against the judgment and order dated 31.10.2005 passed by the Additional District and Sessions Judge, Court no. 12, Bulandshahar in Civil Appeal no. 21 of 2002 Kapil Kumar Vs Principal, Kendriya Vidyala and others whereby the judgment and decree dated 25.1.2002 passed by the Civil Judge (Junior Division) Court no. 1, District Bulandshahar was set aside and the matter was remanded to Trial Court for fresh disposal of the suit.
The submission of Sri Pandey is mainly that the Central Board of Secondary Education has no power or authority to change the date of birth of a candidate as filled in the examination form for such examination and that the Board has been made a party in the proceedings and is compelled to contest the same thereby causing huge financial burden and waste of time of their employees for contesting the suit. His other submission is that in so far as the merit of the claim of plaintiff is concerned he has not claimed for declaration regarding his relief but has only claimed change in the date of birth and as such the relief cannot be granted to him. Sri Pandey has specifically referred to the registration form for admission to Class VII submitted by the plaintiff and Clause 69.2 of the examination bye laws 1995 issued by the Board in support of his aforesaid submission.
Having considered the submission of learned counsel for the appellant and perused the judgment of the Trial Court as also that of the first appellate court it appears that the Trial Court had dismissed the suit of the plaintiff and the first appellate court found that such dismissal by the Trial Court in a summary manner by even not believing documents filed by the plaintiff to prove his date of birth and issued under various statutory provisions was not in accordance with law and further that when under Clause 69.2 of the 1995 bye laws the correction/change in the date of birth was made permissible on the satisfaction of the Chairman of the Board there was no reason why the Trial court did not require the Principal of the institution in question for forwarding the application of the plaintiff for consideration by the Board under Clause 69.2. The first appellate court, therefore, carved out a fresh issue which was neither framed nor decided by the Trial Court and remanded the matter to the Trial Court for re-decision after the decision of the Chairman of the Board has been obtained.
It is here that Sri Pandey has submitted that such a remand was not permissible in view of Rule 23-A of Order 41 of Code of Civil Procedure and hence according to him the remand order is liable to be set aside.
In so far as the aforesaid submission is concerned it will be seen that the judgment in question does not come within the purview where all the evidence has been led between the parties or that there was requirement of additional evidence under Order 41 Rule 27 CPC where the appellate court could have decided the factual controversy without making an order of remand. The impugned judgment clearly indicates that the Trial Court had omitted to frame an issue which was clearly a material proposition of fact affirmed by the plaintiff and denied by the Board. Consequently there was no other option left to the first appellate court but to remand the matter under Order 41 Rule 25 CPC.
Apart from the aforesaid circumstance a perusal of the registration form for admission to Class VII (filed as Annexure 5 along with affidavit in support of stay application) also indicates that in column no. 2 the date of bir6h written in figures has an overwriting over the year 80 and a bare perusal indicates that there was another figure under the 0 which has been over written. Consequently when the correction was required to be considered in light of the powers of the Chairman of the Board there was no error committed by the first appellate court in requiring the Trial Court to consider the provisions of Clause 69.2 and direct the Principal of the institution to take proceedings in accordance with law.
There is no direction by the appellate court to the Chairman of the Board and, therefore, the contention of Sri Pandey that the Board would be compelled to expend finances and waste valuable hours of its employees in contesting the proceedings before the Trial Court cannot be appreciated and such submission amounts to trying to scuttle the rights of a litigant from litigating his grievance before the court of law. Clause 69.2 of the Examination bye- laws 1995 is quoted here under:-
Change/Correction in Date of Birth
(i) No change in the date of birth once recorded in the Board's records shall be made. However, corrections to correct typographical and other errors to make the certificate consistent with the school records can be made provided that corrections in the school records should not have been made after the submission of application form for admission to Examination to the Board.
(ii) Such correction in Date of Birth of a candidate in case of genuine clerical errors will be made under orders of the Chairman where it is established to the satisfaction of the Chairman that the wrong entry was made erroneously in the list of candidates/application form of the candidate for the examination.
(iii) Request for correct in Date of Birth shall be forwarded by the Head of the School alongwith attested Photostat copies of:-
(a) Application for admission of the candidates to the School.
(b) Portion of the page of admission and withdrawal register where entry in date of birth has been made.
(c) The School Leaving Certificate of the previous school submitted at the time of admission.
(iv) The application for correction in date of birth duly forwarded by the Head of School alongwith documents mentioned in bye law 69.2 (iii) shall be entertained by the Board only within two years of the date of declaration of result of Class X examination. No correction whatsoever shall be made on application submitted after the said period of two years. This will be effective from the examination to be held in March, 1995.
Since the decision of the Chairman of the Board under Clause 69.2 has not come as yet the evidence for trial of the dispute in the suit was not sufficient and therefore also the first appellate court could not consider and decide the appeal finally even upon additional evidence being filed as contemplated under Rule 27 of Order 41 CPC because none of the three ingredients of Rule 27 Order 41 CPC are available in the present proceedings.
For the aforesaid reason no error can be found in the impugned judgment. This appeal is without merit and it is accordingly dismissed.
No order is passed as to costs.
Order Date :- 21.1.2010 Pravin