The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.312 of 2012 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Muralidhar Parida -versus- Board of Secondary Education, Odisha and others …. …. Appellant Respondents Appeared in this case:- For Appellant For Respondents : : Mr. P.R. Barik, P. Choudhury, T.R. Mohanty and S.R. Das, Advocate Mr. B. Dash, P.K. Mohanty, A.K. Pandey, Advocate (for the Respondent No.1) Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 06.10.2023 / date of judgment :10.11.2023 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. The appellant was the plaintiff in T.S. No.96 of 1995 and respondent no.1 in the 1st appeal vide T.A. No.53 of 1998. The respondents were the defendants in T.S. No.96 of 1995 and 2. Respondent Nos.2 to 4 in the 1st appeal vide T.A. No.53 of 1998. // 2 // 3.
Legal Reasoning
The suit of the plaintiff against the defendants was a suit for declaration and mandatory injunction. 4. As per the averments made in the plaint, he had born on 01.08.1955 in village Jamapara, which was previously in the undivided district of Cuttack, but at present, in the district of Kendrapara. The date of birth of the plaintiff at the beginning of his academic career was correctly entered as 01.08.1955 in his Primary School register at Jamapara Primary School. His horoscope was prepared a few days after his birth indicating his date of birth as 01.08.1955. He (plaintiff) was reading in Jamapara M.E. School after passing out from his Jamapara Upper Primary School since 1965 to 1967. In the school Admission Register of Jamapara M.E. School, his date of birth was also correctly recorded as 01.08.1955. He (plaintiff) passed M.E. School in the year 1967. Thereafter, he (plaintiff) took admission in Jamapara Boy’s High School in Class-VIII. He(plaintiff) appeared the High School Certificate examination in the month of March, 1971 through Jamapara Boy’s High School. But, when the certificate was issued by the Board of Secondary Education, Orissa in his favour, his date of birth was wrongly recoded as 05.07.1953 instead of his correct date of birth 01.08.1955. Thereafter, he(plaintiff) could able to detect such mistake on 01.05.1993 and after detecting that mistake about the wrong recording of his date birth in his High School Certificate, he (plaintiff) immediately approached to the Headmaster of Jamapara M.E. School on 05.07.1993 and requested him to issue a certificate in his favour indicating his date of birth 01.08.1955. Thereafter, he(plaintiff) approached to the Headmaster of Jamapara Boy’s High School on 31.01.1994 disclosing before him that his date of birth has been wrongly recorded in his High School Certificate issued by the Board of Secondary Education, Orissa, Cuttack as 05.07.1953 instead of 01.08.1955 and requested him to take steps for correction of his date // 3 // of birth in his Board Certificate from 05.07.1953 to 01.08.1955 stating that, in the Transfer Certificate of Jamapara M.E. School, his date of birth has been indicated correctly as 01.08.1955. He (plaintiff) also requested his appointing authority, i.e., the Principal, Sarala Maha Bidyalaya, Rahama(defendant no.4) on 18.08.1994 for correction of his date of birth in his service book from 05.07.1953 to 01.08.1955, but, the defendant no.4 expressed his inability to make such correction. Thereafter, he (plaintiff) approached to the defendant no.1(Board of Secondary Education, Odisha) through a representation on 26.08.1994 for correction of his date of birth in his High School Certificate from 05.07.1953 to 01.08.1955, but to which defendant no.1 did not pay any heed. Thereafter, he (plaintiff) approached the civil court by filing the suit vide T.S. No.96 of 1995 being the plaintiff arraying Board of Secondary Education, Odisha, Headmaster, Jamapara M.E. School, Headmaster of Jamapara Boys High School and Principal, Sarala Maha Bidyalaya, Rahama as defendants praying for a declaration that, his date of birth entered in his High School Certificate as 05.07.1953 is erroneous and his correct date of birth is 01.08.1955 and to issue mandatory injunction against the defendant no.4 (Principal, Sarala Maha Bidyalaya, Rahama) for correction of his date of birth in his service book from 05.07.1953 to 01.08.1955 along with other relief(s) to which, he (plaintiff) is entitled for. 5. Having been noticed in T.S. No.96 of 1995, the defendant no.1 (Board of Secondary Education, Odisha, Cuttack) contested the suit of the plaintiff by filing its written statement taking its stands therein that, the suit of the plaintiff is barred by limitation. The plaintiff has no cause of action to file the suit. According to the defendant no.1, the plaintiff was not borne on 01.08.1955. His date of birth indicated in his High School Certificate issued by the Board as 05.07.1953 is his correct date // 4 // of birth. The averments made by the plaintiff in his plaint that, on 01.05.1993, he came to know about the wrong recording of his date of birth in his High School Certificate as 05.07.1953 instead of 01.08.1955 is not correct. The Headmaster of Jamapara Boy’s High School has not in-correctly recorded his date of birth in the admission register. The specific plea of the defendant no.1 was that, as per the Regulation-9 of Chapter-X of Board’s Regulations, every candidate shall fill up his form for appearing the High School Certificate examination before the Board by his own best handwriting and when he (plaintiff) himself had filled up his form for appearing High School Certificate examination before the Board indicating his date of birth as 05.07.1953 and when his said duly filled up form was forwarded by the Headmaster of Boy’s High School, Jamapara on verification of the same with his school admission register to the Board, then, there is no scope for the plaintiff to state that, his date of birth indicated in his Board Certificate is wrong. So, the claim of the plaintiff regarding the wrong entry of his date of birth in his Board Certificate is hit by the principle of estoppel. Because, Board Certificate of the plaintiff has been prepared on the basis of recording of his date of birth in High School register and his duly filled up form by his own handwriting submitted through the Headmaster before the Board. For which, he (plaintiff) is bound by his own acts. Section 6 of the Regulation-39 of Chapter-X of Board’s Regulation further prescribes that, the date of birth entered in the Board’s record cannot be changed, unless it is in the nature of clerical error or printing mistake. An application for correction of date of birth can be entertainable only within three years after passing of High School Certificate examination. So, under the above guidelines of the Board of Secondary Education, Odisha, inserted in the regulation, the defendant no.1 cannot change the date of birth of the plaintiff in his High School Certificate, as there is no clerical // 5 // error or printing mistake. That too, when any application for correction of date of birth has not been made by the plaintiff within three years of passing his High School Certificate examination. Therefore, the suit of the plaintiff is liable to be dismissed. 6. The Defendant No.2 (Headmaster of Jamapara M.E. School) submitted his written statement in support of the case of the plaintiff by stating that, he (plaintiff) had studied in Jamapara M.E. School since from 1965 to 1967 and his date of birth was 01.08.1955 as per school record and the Headmaster of Jamapara M.E. School had rightly issued School Leaving Certificate indicating his date of birth as 01.08.1955. 7. The defendant nos.3 and 4, i.e., Headmaster of Jamapara Boys High School and the Principal, Sarala Maha Bidyalaya, Rahama were set ex parte. 8. Basing upon the aforesaid pleadings and matters in controversies between the plaintiff and the defendant no.1, altogether seven numbers of issues were framed by the trial court in T.S. No.96 of 1995 and the said issues are:- (i) Is the suit maintainable? (ii) Has the plaintiff any cause of action to file the suit? (iii) Is the suit hit by provisions of specific Relief Act and Principle of estoppel? (iv) Is the suit barred by law of limitation? (v) Has the plaintiff submitted his form writing his date of birth when he is a candidate for H.S.C. examination? // 6 // (vi) Did the headmaster Jamapara High School wrongly recorded the date of birth of the plaintiff? (vii) To what relief the plaintiffs is entitled? 9. In order to substantiate the aforesaid reliefs sought for by the plaintiff, he had examined two witnesses from his side including him as P.W.1 and relied upon a series of documents on his behalf vide Ext.1 to 10. But on the contrary, the defendant No.1 examined one witness on its behalf as D.W.1 without proving any document from its side. 10. After conclusion of hearing of the suit vide T.S. No.96 of 1995 and on perusal of the materials and evidence available in the record, the trial court answered all the issues in favour of the plaintiff and against the defendant no.1 and on the basis of the findings and observations made by the trial court in the issues in favour of the plaintiff passed the judgment and decree of the suit vide T.S. No.96 of 1995 on dated 29.11.1997 and 11.12.1997 respectively on contest against the defendant nos.1 and 2 and ex parte against the rest other defendants and declared the date of birth of the plaintiff as 01.08.1955 instead of 05.07.1953 and directed the defendant no.1 (Board of Secondary Education, Odisha, Cuttack) for correction of the date of birth of the plaintiff in his High School Board Certificate and after such correction to issue a fresh certificate and also directed to the defendant no.4 (Principal, Sarala Maha Bidyalaya, Rahama) for correction of his date birth in his service book from 05.07.1953 to 01.08.1955 giving observations in issue nos.5 and 6 that, as the D.W.1 has deposed in his cross-examination that, the application Form of the applicant has already been destroyed after statutory period of three years, so, in absence of the original application form, it is not possible to come to a conclusion that, the plaintiff had submitted his application form in his own handwriting indicating his date of birth // 7 // therein as 05.07.1953 instead of 01.08.1955 and as the admission of the plaintiff in the Jamapara High School is mostly on the basis of the School Leaving Certificate issued by the Headmaster of Jamapara M.E. School and as his date of birth in the school admission register at Jamapara M.E. School is 01.08.1955, for which, the suit of the plaintiff is decreed. 11. On being dissatisfied with the above judgment and decree passed in T.S. No.96 of 1995 in favour of the plaintiff, the defendant no.1 (Board of Secondary Education, Odisha, Cuttack) challenged the same by preferring 1st appeal vide T.A. No.53 of 1998 being the appellant against the plaintiff by arraying him (plaintiff) as Respondent No.1 and so also arraying the defendant nos.2, 3 and 4 as Respondent Nos.2, 3 and 4. 12. After hearing from both the sides, the 1st appellate court allowed the 1st appeal vide T.A. No.53 of 1998 preferred by the defendant no.1 on contest reversing the judgment and decree dated 29.11.1997 and 11.12.1997 respectively passed in T.A. No.96 of 1995 and dismissed the suit vide T.A. No.96 of 1995 of the plaintiff giving observations that, the plaintiff had taken admission in Jamapara M.E. School on the basis of the transfer certificate issued from Jamapara Primary School. As the plaintiff has not proved the primary evidence regarding the entry of his date of birth in the school admission register of his 1st school, i.e., Jamapara Primary School, for which, the plaintiff has failed to establish that, his date of birth was entered wrongly in his Board Certificate. 13. On being aggrieved with the aforesaid reversing judgment and decree passed by the 1st appellate court against the plaintiff, he (plaintiff) has preferred this 2nd appeal. // 8 // 14. The 2nd appeal was admitted by formulating the substantial question of law, i.e., whether the judgment of the lower appellate court is vitiated by non-consideration of materials on record? 15. I have already heard from the learned counsel for the appellant(plaintiff) and the learned counsel for the respondent no.1(defendant no.1). 16. It is the own case of the plaintiff that, he had appeared High School Certificate examination in the month of March, 1971 through Jamapara Boys High School and he had also passed High School Certificate examination in the year 1971. He had filed the suit on 24.02.1995 praying for declaration of his date of birth indicated in his High School Board Certificate(which was issued in the year 1971) as wrong and to direct his employer, i.e., Principal, Sarala Maha Bidyalaya, Rahama(defendant no.4) for correction of his date of birth in his service book from 05.07.1953 to 01.08.1955, which is 24 years after passing his High School Certificate examination. 17. It is also the own case of the plaintiff that, he had taken admission first in Jamapara Primary School and on the basis of Transfer Certificate issued from Jamapara Primary School, he had taken admission in Jamapara Upper Primary School and on the basis of transfer certificate issued from Jamapara Upper Primary School, It appears from the record that, he (plaintiff) has not proved the school admission register of Jamapara Primary School (wherein, he had taken admission first). 18. When the school admission register of Jamapara Upper Primary School, Jamapara M.E. School and Jamapara High School in respect of the entry of the date of birth of the plaintiff have been prepared on the // 9 // basis of the school admission register of Jamapara Primary School, wherein, he (plaintiff) had taken admission first, then, at this juncture, the school admission register of Jampara Primary School in respect of the entry of the date of birth of the plaintiff is the primary evidence. Therefore, the school admission register of Jamapara Upper Primary School, Jampara M.E. School and Jamapara Boy’s High School in respct of the entry of the date of birth of the plaintiff are secondary evidence. 19. The law regarding the evidentiary value of the entries of the date of birth of a student in the school admission registers of the next schools without proving the entry of the date of birth of the first school like this suit at hand and the law relating to the maintainability of a suit like this suit at hand for correction of date of birth in the Board Certificate has already been clarified by the Apex Court and Hon’ble Courts in the ratio of the following decisions :- (i) (2011) 48 OCR (S.C.) 546 and (2011) 2 SCC-385 : Alamelu and another vrs. State represented by Inspector of police (Para 38) & 2011(3) Crimes-136 (Chhatisgarh) : Ranjit Maitry and another vrs. State of Chhattisgarh; Evidence Act, 1872—Section 35—T.C.(Transfer Certificate), which issued by a Government School and duly signed by the Headmaster, is admissible in evidence under Section 35 of the Evidence Act, 1872— “However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in absence of the material, on the basis of which the age was recorded. Because, the entry in the school register, in which the candidate was admitted first is required to be proved and who had made that entry is to be examined.” // 10 // (ii) 108(2009) CLT-267—Anup Kumar Panda vrs. Board of Secondary Education & others—(para-5)— REGULATIONS OF BOARD OF SECONDARY EDUCATION, ORISSA—Chapter-X—Section VI—Clause- 39—“Correction of mistake in Matriculation Certificate—Error or printing mistake to be corrected within three years from the date of passing the examination, 1993—Correction sought for regarding birth certificate in 2006 knowingly the same date got reflected in the Admit Card, provisional certificate-cum- memorandum of marks of original pass certificate—No scope for correcting the certificate at a belated stage.” (iii) 2018(II) CLR-186 : Satyaban Behera vrs. State of Orissa and Others(Paras-11 and 12)—Board of Secondary Education Regulation, 1955—Regulation-39 read with limitation Act, 1963—Article-58—“Suit for correction of date of birth in H.S.C.—Plaintiff passed the H.S.C. Examination in 1976 and certificate was issued to him in the year 1976—No clerical error or printing mistake in the certificate—The application for correction of date of birth was not received through Head of the institution concerned by the Board authorities within three years of passing the Examination—Suit filed after lapse of 36 years—Not maintainable. 20. In view of the principles of law enunciated in the ratio of the aforesaid decisions of the Apex Court and the Hon’ble Courts, the admissibility of the school admission register of Jamapara M.E. School would be of no much evidentiary value to prove that, the date of birth of the plaintiff indicated in the Admission Register of Jamapara Boy’s High School, and in his Board Certificate issued by the Board and in his service book at Sarala Maha Bidyalaya, Rahama were wrong. Because, due to non-proving the entry of his date of birth in the school admission // 11 // register of Jamapara Primary School (wherein he had taken admission first) and due to non-examination of the teacher, who had 1st admitted him (plaintiff) in the Jamapara Primary School and due to non-raising of any objection by the plaintiff since last 25 (twenty-five) years after passing of the High School Certificate examination about any wrong entry of his date of birth in his certificate issued by the Board of Secondary Education, Odisha, Cuttack. 21. That apart, the plaintiff has not been able to prove any clerical or printing mistake on his certificate issued by the Board of Secondary Education, Odisha, Cuttack(defendant no.1) regarding the entry of his date of birth therein. 22. Therefore, the findings and observations made by the 1st appellate court in T.A. No.53 of 1998 reversing the judgment and decree of the trial court dismissing the suit of the plaintiff cannot be held as erroneous. 23. As per the discussions and observations made above, when it is held that, the reversing judgment passed by the 1st appellate court dismissing the suit of the plaintiff vide T.A. No.96 of 1995 is not erroneous, then at this juncture, the question of interfering with the same through this 2nd appeal filed by the appellant does not arise.
Decision
24. In the result, appeal filed by the appellant is dismissed on contest, but without cost. The judgment and decree passed by the 1st appellate court in T.A. No.53 of 1998 dismissing the suit vide T.S. No.96 of 1995 are hereby confirmed. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 13-Nov-2023 12:11:21 Judge Orissa High Court, Cuttack The 10th of November, 2023/ Jagabandhu, P.A. ( A.C. Behera )