Full Judgment Text
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CASE NO.:
Appeal (civil) 6203 of 2000
PETITIONER:
Secretary, U.P. High School & Intermediate Education, Allahabad & Anr.
RESPONDENT:
H.K. LaL
DATE OF JUDGMENT: 11/01/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
JUDGMENT
Order
S.B. SINHA, J. :
The U.P. High School and Intermediate Education Board, Allahabad is before
us questioning a judgment and order dated 20.3.1999 passed by the Division
Bench of the Allahabad High Court dismissing the Special Appeal filed by
the appellants herein against a judgment and order dated 14.10.1998 passed
by the learned Single Judge of the Allahabad High Court in Civil Misc. Writ
Petition No. 33278 of 1998.
The respondent was Principal in a College known as C.N.I. Boys Inter
College, Dehradun. In his matriculation certificate granted by the
appellants his date of birth was recorded as 25.6.1938. In the year 1994 a
writ petition being writ petition No. 12027/1994 was filed praying for
issuance of a writ of or in the nature of Mandamus directing the appellants
to alter his date of birth to 17.8.1940. The said writ petition was
disposed of by a judgment and order dated 29.2.1996 directing the Board to
pass an appropriate order thereupon. Pursuant to and in furtherance of the
said direction, an application filed by the respondent herein for
alteration of his date of birth in the certificate granted by the Board,
was rejected. Another writ petition was filed by the respondent which was
also dismissed, inter alia, on the premise that his remedy lay in filing a
suit before a Civil Court. Thereafter, he filed a suit in the year 1997
before the Civil Judge, Dehradun. The said suit was decreed. An appeal was
preferred by the Board against the said judgment which was marked as appeal
No. 28/98. Allegedly, an order of stay was granted therein. However, the
said order of stay was later on vacated. Thereagainst a writ petition was
filed and the High Court set aside the said order and directed the District
Judge to recall the matter to his own court and dispose the matter himself
or transfer it to any court other than the court which had earlier passed
the order. At that stage the respondent filed a writ petition before the
Allahabad High Court which was marked as O.S. No. 761/1997.
The said writ petition was allowed by the learned Single Judge of the High
Court by order dated 14.10.1998 whereby and whereunder the Secretary, U.P.
High School and Intermediate Education, Allahabad was directed to comply
with the decree passed by the Civil Court on 18.4.1998. Against the
aforementioned judgment and decree, the Special appeal filed by the
appellant herein had been dismissed by reason the impugned judgment both on
the ground of delay as also on merit stating as under :
"...There is no occasion for the Court to condone the delay, even otherwise
the court finds that the judgment of the Hon’ble Judge in the writ petition
is based on facts and further on the circumstances that H.K. Lal had filed
a suit and had obtained a declaration. In the circumstances, the Hon’ble
Judge held that the Secretary, U.P. High School and Intermediate Education,
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Allahabad, was obliged to get the date of birth of the petitioner changed.
This court has no reason to take a different view than taken by the Hon’ble
Judge in Writ Petition No. 33278 of 1998."
From the records it is borne out that the question as to whether the
respondent has a legal right to alter his date of birth recorded in the
certificate granted by the Board was pending consideration before the
Appellate Court. The writ petition filed by the respondent should,
therefore, not have been entertained particularly in view of the fact that
the appeal thereagainst was pending. Writ jurisdiction is discretionary
jurisdiction and should not ordinarily be exercised if there is an
alternative remedy.
Learned counsel appearing on behalf of the appellant has addressed us on
merit of the matter urging that the horoscope cannot be made the basis for
alteration of the date of birth in support whereof a decision of this Court
in State of Punjab v. Mohinder Singh, [2005] 3 SCC 702 has been cited.
Learned counsel, however, on a query made by us states that the
aforementioned First Appeal preferred by the Committee of Management is
still pending in the Court of Additional District Judge, Dehradun.
In that view of the matter, we do not intend to express any opinion on the
merit of the matter. However, keeping in view the peculiar facts and
circumstances of this case, we are of the opinion that the writ petition
itself was not maintainable and the learned Single Judge, therefore, went
wrong in allowing the same and consequently the impugned judgment passed by
the Division Bench also suffers from manifest error. Even the delay in
filing the Special Appeal was such which should have been condoned by the
Division Bench.
The impugned judgment of the High Court is set aside. The appeal is
allowed. However, as in spite of service of notice none has appeared for
the respondent, there will be no order as to costs.