Holding

A writ petition is not maintainable when the same issue is pending before an appellate court, and the High Court erred in entertaining it.

Summary

The respondent, H.K. Lal, sought to have his date of birth altered in a matriculation certificate issued by the Uttar Pradesh High School and Intermediate Education Board. After a series of writ petitions and a civil suit that resulted in a decree ordering the alteration, the Board appealed the decree. While the appeal was pending, the High Court Single Judge entertained another writ petition and directed the Board to comply with the decree. The Supreme Court held that the writ petition was not maintainable because the same question was pending before the appellate court and an alternative remedy existed, and that the High Court erred in exercising its discretionary jurisdiction. It also observed that the delay in filing the special appeal should have been condoned. Consequently, the Supreme Court set aside the High Court’s judgment and allowed the appeal.

Issues considered

Whether a writ petition under Article 226 is maintainable when the same matter is pending before an appellate court.
Whether the High Court should entertain a writ petition when an alternative remedy (the appeal) is available.
Whether the delay in filing a special appeal can be condoned.

Legislation cited

Constitution of Indias. Article 226

Subjects

writ jurisdictionArticle 226maintainabilityspecial appealdelay condonationalteration of date of birthalternative remedySupreme Court

Judgment

A SECRETARY, U.P. HIGH SCHOOL & INTERMEDIATE EDUCATION,
ALLAHABAD & ANR. "-
..
v. F
H.K.LAL

JANUARY 11, 2007 1---
B ~
[S.B. SINHA AND MARKANDEY KATJU, JJ.]

~
Constitution of India, 1950:

c Article 226-Writ petition-Maintainability of pending appeal-
Appeal against judgment and decree passed in a suit for correction of date
of birth pending-Writ petition filed before High Court-High Court t
directing the authorities to comply with the decree in the suit-Held, the
question as to whether plaintiff has a legal right to alter his date of birth
recorded in certificate by Board was pending consideration before appellate tI-
D court-Therefore, writ petition was not maintainable and should not have
been entertained by Single Judge-Even the delay in filing the special
t- •+.
appeal was such which should have been condoned by the Division Bench
of the High Court-Delay.

E State of Punjab v. Mohinder Singh, [2005] 3 SCC 702, referred to.
t
I
q_VIL APPELLATE JURISDICTION: Civil Appeal No. 6203 of2000.
£:"

From the Judgment and final Order dated 20.5.1999 of the High Court
of Judicature at Allahabad in S.A. No 32/1999. ,..
F ...
\
Niranjanan Singh for the Appellants. -'i
:
The Order of the Court was delivered by

G 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 -\- •,....
H the Allahabad High Court in Civil Misc. Writ Petition No. 33278 of 1998. >

822

t
SECRY., U.P. HIGH SCHOOL & INTERMEDIATE EDU., ALLAHABAD v. H.K. LAL [SINHA, J.] 823

The respondent was Principal in a College known as C.N.I. Boys Inter A
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
B
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 c
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
D
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. 76I/I997.

The said writ petition was allowed by the learned Single Judge of the E
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 F
._ 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 G
circumstances, the Hon'ble Judge held that the Secretary, U.P. High
School and Intermediate Education, 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." H
824 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 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
B 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
C 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
D
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
E 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
F respondent, there will be no order as to costs.

RP. Appeal allowed.