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2022 DIGILAW 322 (JK)

J&K Board of School Education, Srinagar v. Mohd. Hanief Wani

2022-07-07

VINOD CHATTERJI KOUL

body2022
JUDGMENT : 1. This Civil Second Appeal is directed against judgement and decree dated 11th September 2020 passed by 2nd Additional District Jude, Srinagar (for brevity "1st Appellate Court") in Civil First Appeal titled Mohammad Hanief Wani v. J&K State Board of School Education, and for setting aside the same. 2. Heard and considered. 3. Respondent filed a suit for declaration and injunction before Sub Judge (Chief Judicial Magistrate) Srinagar (for short "Trial Court") seeking correction of his date of birth, showing it as 26th November 1971 instead of 26th May 1971. Written statement was filed by defendant/appellant. In view of pleadings of the parties, the Trial Court vide order dated 28th March 2014, framed following issues for adjudication: i) Whether suit of the plaintiff is not correct under rules and regulations governing correction of date of birth? OPD ii) Whether suit of the plaintiff is time barred? OPD iii) Whether actual date of birth of plaintiff is 26.11.1971 which has been wrongly recorded in Secondary School Certificate issued by defendants as 26.05.1971? OPP iv) Whether application moved by plaintiff for correction of date of birth along with school records was rejected by defendants? OPP v) Relief. OP Parties 4. The witnesses were adduced by parties in support of their respective contention. The Trial Court, while deciding Issue no.1, held that plaintiff was within his rights to file the suit. The Trial Court decided Issue no. 2 in favour of defendants/respondents and against plaintiff/appellant and, consequently, decided Issue nos.3&4 aswell against plaintiff/appellant, and dismissed the suit. 5. Against Trial Court judgement and decree dated 30th January 2019, respondent filed an Appeal. The 1st Appellate Court after comprehensive discussion, allowed the appeal, set-aside the Trial Court judgement and decree, and directed appellant-Board to correct the date of birth of plaintiff/respondent. This is how the instant civil second appeal has been filed by appellant-Board seeking setting-aside of the judgement of 1st Appellate Court. 6. Learned counsel for appellant-Board has stated that impugned judgement and decree is against the facts and circumstances of the case as respondent obtained matriculation certificate as a regular student way back in the year 1987 and therefore, he was having knowledge about the date of birth. 6. Learned counsel for appellant-Board has stated that impugned judgement and decree is against the facts and circumstances of the case as respondent obtained matriculation certificate as a regular student way back in the year 1987 and therefore, he was having knowledge about the date of birth. According to him the Trial Court while appreciating this position rightly observed that approaching appellant-Board at belated stage for correction of date of birth cannot be accepted in view of Art. 67 of Limitation Act, in terms whereof initiation at relevant time limitation was only one year and accordingly the suit was dismissed as time barred. He also contends that the 1st Appellate Court has not considered the conclusion arrived by the Trial Court in its right perspective after having examined record and also considering the evidence produced by the parties. It is also stated that respondent has suppressed the material facts as he has not disclosed his service particulars nor he arrayed the department as party respondent either in the main suit or in the appeal. 7. Learned counsel for appellant has proposed following issues which according to him are substantial questions of law: (a) Whether the civil suit filed by the plaintiff (respondent herein) seeking correction in his recorded date of birth was maintainable because the suit was filed at a belated stage, which cannot be accepted in view of Art. 67 of the Limitation Act, in terms of which at the relevant time, limitation was only one year whereas the suit was filed in the year 2019, i.e., after a gap of more than two decades? (b) Whether the civil suit of the appellant was maintainable because actually the respondent had admittedly obtained matriculation certificate under Roll No. 11620 as a regular student way back in the year 1987, as such, was having the complete knowledge about his date of birth recorded as 26.05.1971? (c) Whether the suit is maintainable as per Business Rules and the Regulations of the JKBOSE, ordinarily no correction in the date of birth can be made in the records of the J&K State Board of School Education? (c) Whether the suit is maintainable as per Business Rules and the Regulations of the JKBOSE, ordinarily no correction in the date of birth can be made in the records of the J&K State Board of School Education? (d) Whether the civil suit filed by the respondent was maintainable as the respondent had resorted to suppression of the material facts; he had not disclosed the service particulars, neither had he arrayed the school authorities as party nor the department wherein he has been working as a government employee either in the main suit or the appeal; since there was suppression of material facts, the respondent had not approached with clean hands before the court of law? (e) Whether the appellant JKBOSE can carry out rectification/correction in the matriculation certificate of the respondent when the respondent had failed to seek such rectification/correction in the date of birth in his matriculation certificate through the proper channel viz. school education department as well as the department wherein he has been working? 8. The first issue raised in the instant appeal that according to learned counsel for appellant is a substantial question of law is, in essence and core, is factual issue as institution of suit for correction of date of birth and application of Limitation Act has been comprehensively discussed by the 1st Appellate Court. Perusal of impugned judgement on the subject of limitation reveals that the 1st Appellate Court has discussed a number of judgements, by which it has been held that though there is a limitation for a candidate seeking rectification in a certificate, yet there is no limitation for the Board to exercise its inherent power to correct the certificate issued by it and in order to put its record straight, the Board is under an obligation to correct all certificates issued by it irrespective of limitation and the Board cannot press into service the law of limitation for exercising its inherent powers as it would defeat the right of a candidate to have his incorrect date of birth recorded in the certificate rectified. It is also gatherable from perusal of impugned judgement that in OWP no. It is also gatherable from perusal of impugned judgement that in OWP no. 1501 of 2011 titled Latief Ahmad and another v. State, 2014 (1) JKJ 431 [HC] it has been held by this Court that it is duty of the Board authorities, being custodian of records, to maintain the correct record and when it is shown to the satisfaction of concerned authorities that incorrect/wrong record has been maintained, then they are duty bound to correct their records as the correct records, which are to be maintained by the Board authorities, do have impact on the whole life of a person. 9. Insofar as second issue, proposed by counsel for appellant, is concerned, the same, as said above, relates to limitation and has been in detail dealt with and set at rest by the 1st Appellate Court. 10. As regards third issue, respondent-Board has inherent powers to rectify errors in the certificates issued by it, including date of birth. 11. Fourth issue, on the face of it, relates to factual issue, which has been discussed and decided by the 1st Appellate Court and cannot be said as substantial question of law. 12. Fifth issue has also been dealt with and decided by the 1st Appellate Court in impugned judgement. 13. A civil suit for declaration and injunction was filed by respondent before the Trial Court. He sought setting aside of the conclusion of Correction Committee meeting held on 15th May 2009, declaring his date of birth recorded in the certificate as erroneous and a direction to appellant-Board to record the date of birth of respondent/plaintiff as 26th November 1971 and issue date of birth certificate afresh. It had been the case of plaintiff/respondent that in Provisional Certificate his correct date of birth was shown as 26th November 1971 whereas later on the secondary school certificate issued by appellant-Board showed error in date of birth. There is no dispute as regards the fact that plaintiff/respondent approached appellant-Board. His application vide communication no. F/397(Certs-Corr-I)B/2009/Item No. 84 dated 27th May 2009 was considered and he was conveyed that after due consideration, it was observed that was no variation between the school and board records and therefore, the case did not come under the purview of rules/regulations governing the case of correction in date of birth. His application vide communication no. F/397(Certs-Corr-I)B/2009/Item No. 84 dated 27th May 2009 was considered and he was conveyed that after due consideration, it was observed that was no variation between the school and board records and therefore, the case did not come under the purview of rules/regulations governing the case of correction in date of birth. It would be appropriate to reproduce relevant portion of the communication dated 27th May 2009, addressed to respondent/plaintiff hereunder: "He is hereby informed that his case for correction has been considered by duly constituted correction committee at its meetings held on 15th May 2009. After due consideration, it was observed that there is no variation between the school & board records, accordingly the case does not come under the purview of rules/regulations governing the cases of correction in D.O.B. In view of the above, the case stands considered, disposed off & consigned to records." 14. The 1st Appellate Court on the factual aspect with reference to mentioning of date of birth has gone through the record summoned by it. In this regard it would be apt to reproduce relevant portion of impugned judgement at page 11 & 12 hereunder: "Moreover the record which was summoned by the Ld. Trial court in the shape of form duly filled up by the school authorities was also showing the correct date of birth recorded in numbers as well as words as being relied upon by the appellant herein. The documentary evidence is sufficient on record to show that the form filled up by the school authorities incorporating date of birth and the date of birth recorded by the board authorities are different and the communication showing that the committee found no variance in the board records is against the factual position on record..." 15. Thus, from the above quoted relevant portion of the impugned judgement, it is evident that all the factual aspects of the matter have been dealt with and discussed by 1st Appellate Court which throws light on whole case and sets at rest the whole controversy. In such circumstances, all the issues raised by appellant-Board that according to learned counsel are substantial questions of law, have been comprehensively, lucidly and elaborately discussed and decided by the 1st Appellate Court and as a consequence of which this appeal is liable to be dismissed. 16. In such circumstances, all the issues raised by appellant-Board that according to learned counsel are substantial questions of law, have been comprehensively, lucidly and elaborately discussed and decided by the 1st Appellate Court and as a consequence of which this appeal is liable to be dismissed. 16. For the reasons discussed above, the instant appeal is devoid of any merit and is, accordingly, dismissed with connected CM(s). Interim direction, if any, shall stand vacated. The judgement and decree dated 11th September 2020 passed by 2nd Additional District Jude, Srinagar in Civil First Appeal titled Mohammad Hanief Wani v. J&K State Board of School Education, is upheld. 17. Registry to prepare the decree sheet in view of above. 18. Copy be sent down along with record.