# State of U.P. & Ors v. Annu Verma & Anr

- **Citation:** (2022) 9 ILRA 191
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-06
- **Case number:** Special Appeal No. 277 of 2022
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-annu-verma-anr-48988
- **Pages:** 6

## Headnote

192 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Education Law - Correction of Date of
Birth - Limitation - Regulations framed
under the Uttar Pradesh Intermediate
Education Act, 1921 - Regulation 7 of
Chapter III - The Rule of Limitation would
not apply if the mistake is in the records
maintained by the Board as distinguished
from a mistake in the certificate of
passing. (Para 11)

In the present case, the petitioner's DOB has
been correctly recorded in all the school
records, including the one wherefrom she sat
the High School Examination leading to the
issue of the High School Certificate. It is also not
disputed that the petitioner filled her DOB in her
application form submitted to the Board for the
purpose of appearing in her High School
Examination
correctly
mentioning
it
as
07.07.1987. The mistake was made in the
records of the Board. It is not just a mistake
in the High School Certificate issued to the
petitioner so as to attract the Rule of
Limitation carried in Regulation 7 of
Chapter III of the Regulations.

The Rule of Limitation seeks to protect and
preserve the sanctity of DOB entered in the
High School Certificate against changes, where
some benefit from the change may be drawn by
the applicant. Invariably, the benefit may be
claimed for the purpose of eligibility in matters
of employment or assertion of a right or the
date when a person would superannuate, if in
government service. The change that is desired
will enhance the age of the first respondent by
about 12 years if the DOB is corrected from the
one mistakenly recorded by the Board in their
records. It does not ostensibly or otherwise
afford any kind of gain or advantage to the
petitioner-respondent no. 1. (Para 13)

Special appeal dismissed. (E-4)

Precedent followed:

## Text

9 All. State of U.P. & Ors. Vs. Annu Verma & Anr.
191
hold a person guilty of cheating it is
necessary to show that he had fraudulent or
dishonest intention at the time of making
the promise..."

Uma Shankar Gopalika (supra)

"6. Now the question to be
examined by us is as to whether on the
facts
disclosed
in
the
petition
of
complaint
any
criminal
offence
whatsoever is made out much less
offences under Sections 420/120-B IPC.
The only allegation in the complaint
petition against the accused persons is
that they assured the complainant that
when they receive the insurance claim
amounting to Rs 4,20,000, they would pay
a sum of Rs 2,60,000 to the complainant
out of that but the same has never been
paid. Apart from that there is no other
allegation in the petition of complaint. It
was pointed out on behalf of the
complainant
that
the
accused
fraudulently persuaded the complainant
to agree so that the accused persons may
take steps for moving the Consumer
Forum in relation to the claim of Rs
4,20,000. It is well settled that every
breach of contract would not give rise to
an offence of cheating and only in those
cases breach of contract would amount to
cheating where there was any deception
played at the very inception. If the
intention to cheat has developed later on,
the same cannot amount to cheating, hi
the present case it has nowhere been
stated that at the very inception there was
any intention on behalf of the accused
persons to cheat which is a condition
precedent for an offence under Section
420 IPC.

7. In our view petition of
complaint does not disclose any criminal
offence at all much less any offence either
under Section 420 or Section 120-B IPC
and the present case is a case of purely
civil dispute between the parties for
which remedy lies before a civil court by
filing a properly constituted suit. In our
opinion, in view of these facts allowing
the police investigation to continue would
amount to an abuse of the process of
court and to prevent the same it was just
and expedient for the High Court to
quash the same by exercising the powers
under Section 482 CrPC which it has
erroneously refused."

14. In the result, both the applications
are allowed. Entire criminal proceedings in
Criminal Case No. 2317 of 2017 (State vs.
Atul Saxena and others), arising out of
Case Crime No. 0726 of 2016, under
Sections 420, 467, 468, 471, 506 IPC,
Police Station Vrindaban, District Mathura
as well as the charge sheet dated
19.01.2017 and cognizance order dated
20.04.2017, are hereby quashed.

15. There shall be no order as to costs.
----------
(2022) 9 ILRA 191
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 277 of 2022

State of U.P. & Ors. ...Petitioners
Versus
Annu Verma & Anr. ...Respondents

Counsel for the Petitioners:
Sri Ramanand Pandey (Addl. C.S.C.), Sri
Ashish Pandey

Counsel for the Respondents:
Sri Ashish Tripathi
192 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Education Law - Correction of Date of
Birth - Limitation - Regulations framed
under the Uttar Pradesh Intermediate
Education Act, 1921 - Regulation 7 of
Chapter III - The Rule of Limitation would
not apply if the mistake is in the records
maintained by the Board as distinguished
from a mistake in the certificate of
passing. (Para 11)

In the present case, the petitioner's DOB has
been correctly recorded in all the school
records, including the one wherefrom she sat
the High School Examination leading to the
issue of the High School Certificate. It is also not
disputed that the petitioner filled her DOB in her
application form submitted to the Board for the
purpose of appearing in her High School
Examination
correctly
mentioning
it
as
07.07.1987. The mistake was made in the
records of the Board. It is not just a mistake
in the High School Certificate issued to the
petitioner so as to attract the Rule of
Limitation carried in Regulation 7 of
Chapter III of the Regulations.

The Rule of Limitation seeks to protect and
preserve the sanctity of DOB entered in the
High School Certificate against changes, where
some benefit from the change may be drawn by
the applicant. Invariably, the benefit may be
claimed for the purpose of eligibility in matters
of employment or assertion of a right or the
date when a person would superannuate, if in
government service. The change that is desired
will enhance the age of the first respondent by
about 12 years if the DOB is corrected from the
one mistakenly recorded by the Board in their
records. It does not ostensibly or otherwise
afford any kind of gain or advantage to the
petitioner-respondent no. 1. (Para 13)

Special appeal dismissed. (E-4)

Precedent followed:

1. Babu Ram Vs St. of U.P. & anr., 2010 SCC
OnLine All 1403 (Para 11)

2.
Ajay
Kumar
Vs
Secretary
Secondary
Education Board, U.P., Allahabad & ors., 2014(2)
AWC 1765 (Para 12)

3. Jigya Yadav (Minor) (Through Guardian/
Father Hari Singh) Vs Central Board of
Secondary Education & ors., (2021) 7 SCC 535
(Para 14)

Present special appeal assails judgment
and order dated 26.07.2021, passed by
learned Single Judge in Civil Misc. Writ
Petition No. 5412 of 2021.

(Delivered by Hon'ble Rajesh Bindal, C.J.
&
Hon'ble J.J. Munir, J.)

1. This is a respondents' appeal
arising out of the judgment and order dated
26.07.2021 passed by the learned Single
Judge, allowing Writ-C No. 5412 of 2021.

2. The writ petitioner, who is
respondent no. 1 to this appeal, passed her
High School Examination in the year 2014
from the Board of High School &
Intermediate Education, U.P. She was
issued with a certificate-cum-marks sheet
dated 30th May, 2014. Her High School
Certificate-cum-Mark Sheet indicates her
date of birth to be 20.07.1999. It is the
petitioner's case that she passed her
Primary Education (Class-V) from the
Primary Vidyalya, Saraiya-I, District Basti
on 20.07.1999 and her date of birth
recorded in her school records, including
the
School
Leaving
Certificate,
is
07.07.1987. She passed her Class-VIII
examination from Janta Laghu Uchchatar
Madhyamik Vidyalaya, Mahulani Bujurg
Bajar, Govindpara, Basti on 30.06.2002. In
the Scholar's Register and the Transfer
Certificate issued by the Institution last
mentioned, the petitioner's date of birth is
again recorded as 07.07.1987. She sought
admission to Class-IX in the Ramdas Uday
Pratap Audyogik Inter College, Bhatpurwa,
Chilma Bajar, Basti through an application
made for the purpose. In the said
9 All. State of U.P. & Ors. Vs. Annu Verma & Anr.
193
application form, jointly signed by the
petitioner-respondent
no.
1
and
her
guardian, her date of birth was accurately
mentioned as 07.07.1987.

3. It is the petitioner's further case that
while making her application to the Board
of High School & Intermediate Education
to appear in the High School Examination
of the year 2014, she correctly mentioned
her date of birth as 07.07.1987, which
accords with her recorded date of birth in
the different institutions that she has
attended.

4. Nevertheless, in her High School
Certificate issued, the Authorities of the
Board incorrectly recorded her date of birth
as 20.07.1999, instead of 07.07.1987. The
petitioner thereafter married. Her husband
was employed with the Medical Health
Department. The petitioner's husband's
employer demanded details of his family
members with their names, age and other
details. It was then that the petitioner
noticed that her date of birth has been
incorrectly mentioned in her High School
Certificate-cum-Mark Sheet.

5. The petitioner-respondent no. 1 filed
an application on the prescribed proforma,
seeking correction of her date of birth in the
month of August, 2020. The application
aforesaid was made to the Regional Secretary,
Board of High School & Intermediate
Education, Varanasi. It was duly supported by
an affidavit and other documents. Faced with
inaction, the petitioner submitted, through
registered post, a reminder dated 26.10.2020
and again one dated 02.11.2020, also
addressed to the Regional Secretary. The
Board of High School & Intermediate
Education, Varanasi took no action on the
petitioner's application for correction sought to
her date of birth. In the circumstances, the writ
petitioner-respondent no. 1 preferred Writ-C
No. 5412 of 2021, which has come to be
allowed by the learned Single Judge, ordering
the appellant-Board and the State of U.P. in the
appropriate
department
to
correct
the
petitioner's date of birth in her High School
Certificate-cum Mark Sheet by substituting the
date as 07.07.1987 for 20.07.1999. The
corrected certificate has been ordered to be
issued to the petitioner within one month of
the date of presentation of a copy of the
judgment passed by the learned Single Judge.

6. The appellant-Board and the State of
U.P. in the Department of Secondary
Education have challenged the aforesaid
judgment and order, seeking its reversal.

7. Heard Mr. Ramanand Pandey, learned
Additional Chief Standing Counsel for the
appellants and Mr. Ashish Pandey, learned
counsel appearing on behalf of petitionerrespondent no. 1.

8. The appellants assail the mandamus
issued by the learned Single Judge on the
sole ground that the writ petitioner had no
right to correction of her date of birth,
inasmuch as she filed application beyond
the period of two years of the date of issue
of her High School Certificate-cum-Marks
Sheet. The Rule of Limitation provided
under Regulation 7 of Chapter III of the
Regulations framed under the Uttar Pradesh
Intermediate Education Act, 1921 (for
short, 'the Act of 1921') bars the petitioner's
right to seek correction. The learned
Counsel for the appellants submits that the
Rule of Limitation cannot be circumvented
by falling back on considerations of any
kind of equity. It is urged that the Rule of
Limitation cannot be given a go-by.

9. On the other hand, learned Counsel
appearing for the petitioner-respondent
194 INDIAN LAW REPORTS ALLAHABAD SERIES
no.1 submitted that the prohibition carried
in Regulation 7 of Chapter III of the
Regulations framed under the Act of 1921
is confined to cases, where there is a
mistake in any ''Pass Certificate' issued by
the Board, and not where the mistake is in
the records maintained by the Board that is
reflected in the certificate.

10.

We
have
considered
the
submissions advanced at the Bar on behalf
of both parties, perused the record and the
judgment impugned.

11.

The
Rule
of
Limitation
postulated in Regulation 7 of Chapter III
of the Regulations has to be understood
for its true purpose and not applied to
every situation where correction is sought
to particulars mentioned in the certificatecum-statement of marks. A Division
Bench of this Court in Babu Ram v.
State of U.P. and another, 2010 SCC
OnLine All 1403 held that the Rule of
Limitation would not apply if the mistake
is in the records maintained by the Board
as distinguished from a mistake in the
certificate of passing. It was held in Babu
Ram (supra):

"In the instant case, we find that
Regulation 7, referred to above, refers to
correction in the certificate of passing.
There is no mistake in the certificate of
passing. The mistake is in the records
maintained by the Board. Therefore, the
said Regulation would not be applicable
so far as the case of the appellant is
concerned.
Once
the
respondents
themselves had issued the certificate
showing the Date of Birth of the appellant
as 1st September, 1949, the respondent
no.2 was bound to correct the clerical
mistake in the record of the Board."

12. This decision has been followed
by a learned Single Judge of this Court in
Ajay Kumar v. Secretary Secondary
Education Board, U.P., Allahabad and
others, 2014(2) AWC 1765. In Ajay
Kumar (supra), it was observed:

"6. From the records it is evident
that in all the previous certificates of the
petitioner, his date of birth is shown as
16.01.1994. Thus, the mistake appears to be
clerical one. It is not the case that the
petitioner wants to get his age reduced by
the correction, but his age would be
enhanced. Thus, the intention of the
petitioner does not appear to take undue
advantage by moving such application. The
application is evidently bona fide.

7. A Division Bench of this Court
had the occasion to deal with the similar
facts and also the Regulation-7 in Special
Appeal No. 1202 of 2010 (Babu Ram v.
State of U.P. and another), decided on 03rd
August, 2010. The Court has found that
Regulation-7 refers to correction in the
certificate of passing and if there is any
mistake in the record maintained by the
Board,
Regulation-7
would
not
be
applicable. For the sake of convenience, the
relevant part of the judgment of the
Division Bench is quoted below:

"Regulation 7 of Chapter III of
the Regulations, which is relevant for the
purpose, reads as under:-

"7. सगचव, पररषि िी ओर से सफल
उम्मीिवारों िो पररषि् िी परीक्षा में उत्तीर्त
होने िा प्रमार्-पत्र गवगहर् प्रपत्र में िेिा और
बाि में उसिी प्रगवगष्टयों में िोई शुखि िरेिा,
बशर्े गि प्रमार्-पत्र में गिसी ऐसी िलर् प्रगवगष्ट,
गिसी अवचाररर् गलगपिीय भ ल या लोप िे
िारर् या गिसी प्रेस गलगपिीय भ ल िे िारर्
िी िई हो जो असावधानी से पररषि िे स्तर िे
या उस संस्था िे, जहााँ से अखन्तम बार गशक्षा
9 All. State of U.P. & Ors. Vs. Annu Verma & Anr.
195
प्राप्त िी हो, स्तर पर अगभलेि में हो िई हो।
यह शुखि सगचव द्वारा उसी खस्थगर् में िी जा
सिेिी जबगि अभ्यथी ने सम्बखन्धर् परीक्षा िे
प्रमार्-पत्र िो पररषि द्वारा गनितमन िरने िी
गर्गथ से िो वषत िे अन्दर ही गलगपिीय त्रुगट िी
ओर ध्यान आिृष्ट िरर्े हुए सम्बखन्धर्
प्रधानाचायत/ िेन्द्र व्यवस्थापि िो त्रुगट िे
संशोधन हेर्ु प्राथतना-पत्र प्रस्तुर् िर गिया हो
और उसिी प्रगर् पंजीिृर् डाि से सगचव,
पररषि् िो भी प्रेगषर् िी हो।"

In the petition filed by the
appellant, that plea was also taken before
the learned Single Judge. However, the
learned Judge held that as the application
was filed beyond the time and was not
maintainable, and that the appellant herein
may file a civil suit for declaration of his
Date of Birth.

In the instant case, we find that
Regulation 7, referred to above, refers to
correction in the certificate of passing.
There is no mistake in the certificate of
passing. The mistake is in the records
maintained by the Board. Therefore, the
said Regulation would not be applicable so
far as the case of the appellant is
concerned.
Once
the
respondents
themselves had issued the certificate
showing the Date of Birth of the appellant
as 1st September, 1949, the respondent no.2
was bound to correct the clerical mistake in
the record of the Board."

8. Keeping in the mind the
aforesaid law it is evident in the present
case that the petitioner's date of birth has
been correctly mentioned in the School
Leaving Certificate of Class-V, School
Leaving Certificate of Class-VIII as well as
in the Transfer Certificate of Intermediate,
however, in the record of the Board an
incorrect date as 11.01.1996 has been
recorded.
Thus,
the
provisions
of
Regulation-7 is not attracted in the facts of
the present case."

13. Here too, the petitioner's date of
birth has been correctly recorded in all the
school
records,
including
the
one
wherefrom she sat the High School
Examination leading to the issue of the
High School Certificate. It is also not
disputed that the petitioner filled her date of
birth in her application form submitted to
the Board for the purpose of appearing in
her High School Examination correctly
mentioning it as 07.07.1987. The mistake
was made in the records of the Board. It is
not just a mistake in the High School
Certificate issued to the petitioner so as to
attract the Rule of Limitation carried in
Regulation 7 of Chapter III of the
Regulations. The principle adumbrated by
the Division Bench in Babu Ram's case
squarely applies here. Quite apart, the Rule
of Limitation seeks to protect and preserve
the sanctity of date of birth entered in the
High School Certificate against changes,
where some benefit from the change may
be drawn by the applicant. Invariably, the
benefit may be claimed for the purpose of
eligibility in matters of employment or
assertion of a right or the date when a
person
would
superannuate,
if
in
government service. Here, the petitioner is
a married woman, who avowedly seeks the
rectification to ensure that the particulars of
her husband's family members furnished to
his employers are accurate. More so, the
change that is desired will enhance the age
of the first respondent by about 12 years if
the date of birth is corrected from the one
mistakenly recorded by the Board in their
records. It does not ostensibly or otherwise
afford any kind of gain or advantage to the
petitioner-respondent no.1.
196 INDIAN LAW REPORTS ALLAHABAD SERIES

14. In the entirety of circumstances, in
our considered opinion, the appellants have
erred in resisting petitioner-respondent
no.1's claim to the rectification of the date
of birth in the records of the Board and her
High School Certificate-cum-Mark Sheet.
It may be noticed that no decision, contrary
to the view expressed by the Division
Bench in Babu Ram's case, has been
brought to our notice by the learned
Additional
Chief
Standing
Counsel
appearing for the appellants. Also, we are
supported in the view that we take on
broader principle by the holding of the
Supreme Court in Jigya Yadav (Minor)
(Through Guardian/ Father Hari Singh)
v.
Central
Board
of
Secondary
Education and others, (2021) 7 SCC 535.

15. In the circumstances, we do not
find any infirmity in the order impugned
passed by the learned Single Judge, which
we hereby affirm. The appeal is dismissed,
but without any order as to costs.
----------
(2022) 9 ILRA 196
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2022

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Writ A No. 2956 of 2022

State of U.P. & Anr. ...Petitioners
Versus
Dinesh Kumar Katiyar ...Respondent

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondent:

A. Service Law - Disciplinary Inquiry -
Punishment - Uttar Pradesh Government
Servant (Discipline and Appeal) Rules,
1999 - Rules 7, 8 & 9 - It is wellestablished principle of law that if manner
of doing a particular act is prescribed
under any statute then the act must be
done in that manner or not at all. An
Inquiry
Officer
is
a
quasi-judicial
authority. Therefore, he must perform his
functions fairly and reasonably which is
even otherwise the requirement of the
principles of natural justice. (Para 14, 16)

The prosecution has to prove the charges by
producing documents through witnesses and
placing such witnesses to be cross examined by
the charged Government servant. Even in the
absence of the charged Government servant,
the Inquiry Officer is obliged to examine the
evidence presented by the Department to see as
to whether the unrebutted evidence is sufficient
to hold that the charges are proved. In the
present case the aforesaid procedure has not
been observed. A perusal of the charge-sheet
would show that the charges are based on the
preliminary inquiry report dated 31.07.2012 of
the Joint Director. Since no oral evidence
has
been
examined,
the
preliminary
inquiry report dated 31.07.2012 has not
been proved, and could not have been
taken into consideration to conclude that
the charges have been proved against the
respondent.

Prejudice is evident in cases where the
Department has not even proved the
documents and evidence which has been
presented on its own behalf, and the
governing
rules
have
been
blatantly
violated. In the absence of any oral inquiry,
any amount of reasoning given by the Inquiry
Officer regarding each and every one of the
instance in the inquiry report is not going to
validate the proceeding. Merely because the
Respondent in his reply to the charges didn't
express his desire for any cross-examination or
examination of his witnesses as alleged, it would
not absolve the Inquiry Officer from holding an
oral inquiry against the Respondent. (Para 11)