JUDGMENT A.K. Yog, J.
1. Heard learned counsel for the parties and perused the record.
2. Facts of the case, required for the decision of the present second appeal, are as under :
The defendant-petitioner, Reserve Bank of India, Kanpur Nagar, (called the Bank) issued an advertisement, dated 12.10.1980, inviting applications from eligible desirous candidates in order to select and appoint best available candidates on the post of English typist.
Relevant extract of the advertisement, regarding educational qualification, is reproduced ;
"Educational qualifications.--Candidates must :
(i) have passed (securing at least 45% marks in English) either Matriculation or an equivalent examination or Intermediate Pre University Pre-degree course or an equivalent examination of a recognised Board or University or any higher examination below Graduation, AND
(ii) Possess a minimum speed of 40 words per minute in English typing."
3. Apart from other candidates, plaintiff also applied in pursuance to the above advertisement. He was called to participate in the selection comprising of written examination, typing test and interview. Plaintiff contends, inter alia, amongst others, that he secured 55% marks in English in the Intermediate Examination as per mark-sheet (Duplicate) issued by the U. P. Board.
4. The plaintiff, admittedly, appeared in the written examination and typing test. Candidates were called for interview on the basis of result of written and typing test. Plaintiff was, however, not called for interview. According to the defendant-bank (Reserve Bank of India), the plaintiff did not fulfil requisite qualification of 45% in Intermediate Examination and the duplicate mark-sheet of the plaintiff, (procured by forgery and interpolation) did not indicate correct marks. Bank had referred this matter to U. P. Board to ascertain correctness of the 'duplicate mark-sheet'. U. P. Board held an enquiry and came to the conclusion that duplicate mark sheet was as a result of tampering in the record and consequently, the U. P. Board/Madhyamik Shiksha Parishad U. P. issued a Gazette Notification dated 31.12.1982 (part of evidence on record cancelling the duplicate mark-sheet).
5. On the basis of said information from the U. P. Board, the Bank declined to call the plaintiff for interview on the ground that he did not possess requisite marks in English in Intermediate Examination.
6. Being aggrieved, plaintiff filed Original Suit No. 1683 of 1982 (Iqbal Ahmad v. Reserve Bank of India, Kanpur) and claimed following reliefs :
"(a) That the defendant be directed through a mandatory injunction to call the plaintiff for the interview as the other candidates were asked by the defendant to appear in the interview of the disputed post of the typist and until the result of plaintiff be not declared by the defendant, no one may be appointed on the said disputed post of typist,
(b) ......................................
(c) Any other relief may also be granted to the plaintiff which the Court deems fit and proper at the circumstances of the case."
7. The plaintiff filed application under Order I, Rule 10 (2) Code of Civil Procedure with the prayer to implead Madliyamik Shiksha Parishad, U. P. Allahabad (representing U. P. Board) on the ground that real dispute, as subsequently revealed to the plaintiff.
was with respect to the said Parishad In view of the above referred notification dated 31.12.1982.
8. By means of the said amendment application dated 16.1.1984, plaintiff prayed for impleading 'Madhyamik Shiksha Parishad, Allahabad through Sachiv' as Defendant No. 2 and to incorporate of two paras 20A and 20B, in the plaint, which are quoted for ready reference.
"20A. That during the pendency of the suit it has transpired that a notification dated 31.12.1982 has been issued by the Sachiv, Madhyamik Shiksha Parishad, U. P. Allahabad, cancelling the mark sheet of the plaintiff the said notification as illegal and mala fide and liable to be declared as such.
20B That Madhyamik Shiksha Parishad, U. P. Allahabad has no jurisdiction to issue such a notification under the rules and the allegations made by the Parishad are wholly incorrect."
9. The plaintiff also claimed new reliefs to be inserted as below :
"(A) that by a decree of the Court it be declared that the Notification No. 717/81-84 4610 dated 31.12.2002 issued by Madhyamik Shiksha Parishad, U. P. Allahabad is null and void and cannot be enforced."
10. Original relief (A) in the plaint, was prayed to be substituted as relief (B) Original relief 'A' in plaint is reproduced :
"That the defendant be directed through a mandatory injunction to call the plaintiff for the Interview as the other candidates were asked by the defendant to appear in the interview of the disputed post of the typist and until the result of plaintiff be not declared by the defendant, no one may be appointed on the said disputed post of typist."
11. The said amendment application was allowed. The plaint was accordingly amended on 19.11.1986.
12. Parties led evidence as they desired.
13. Perusal of the original record shows that U. P. Madhyamik Shiksha Parishad was impleaded as Defendant No. 2, it appeared before the Court below and given due opportunity to contest the proceedings.
14. It is to be noted that during the pendency of the suit, there was an interim order directing the Bank to keep one post reserved for the plaintiff.
15. The said suit was, however, dismissed on May 31, 1986 by the IIIrd Additional Munsif, Kanpur Nagar. The plaintiff filed. Civil Appeal No. 80 of 1986, Iqbal Ahmad v. Reserve Bank of India and Anr. During pendency of the appeal, plaintiff filed an amendment application dated 24.11.1987 praying for deleting original paras 19 and 20 and substituting paras 19 and 20, which are reproduced, below :
"19. That since the plaintiff succeeded in the written test and got IInd position in the merit list, hence he is entitled for the interview and appointment on the post of typist which was held as stated above.
20. That since the Defendant No. 1 failed to appoint the plaintiff on the said post hence the plaintiff is also entitled, to all the benefits, seniority, etc. which the candidate who has been appointed under the said test."
Plaintiff also sought addition of the relief 'B' (deleting relief 'B' in the plaint) as follows :
"That a decree for mandatory injunction be passed in favour of the plaintiff directing the said defendant their servants, agents to appoint the plaintiff on the post of typist under the test held on 26th July, 1981 with all benefit throughout."
16. Defendant Bank filed objections dated December 8, 1987 which were rejected and the Court allowed aforequoted amendments on July 30, 1990.
17. The said appeal was allowed vide judgment and decree dated March 15, 1991 by the 1st Additional Chief Metropolitan Magistrate/ Additional Civil Judge, Kanpur Nagar on the ground that trial court failed to frame additional issues in view of the amendments in the pleadings and it ought to have given reasonable opportunity to lead additional evidence to the parties before deciding the suit. Case was remanded back to the trial court for decision afresh.
18. Consequently, trial court heard and decided the case afresh as per directions on the remand vide judgment and order dated April 13, 1993 passed by VIth Additional Chief Metropolitan Magistrate, Kanpur.
19. The plaintiff being dissatisfied with the dismissal of the suit, filed Regular Civil Appeal No. 119 of 1993 which has been allowed by the XIIth Additional District Judge, Kanpur Nagar vide judgment and decree dated 12.5.1998.
20. Lower Appellate Court, held that the advertisement in question did not require a candidate to possess 45% marks in English in case he possessed qualification higher than Matriculation (i.e. in Intermediate/ B.A.J ; the plaintiff was eligible and possessed requisite qualification as per advertisement ; the plaintiff was given no opportunity while U. P. Board, issued notification dated 31.12.1982 and said notification was nonest/null and void ; the defendant Bank could not ignore the 'duplicate mark sheet' which was valid till relevant dates ; there was no material on record to show that the authority under which U. P. Board has cancelled the mark-sheet of the plaintiff (which was once duly issued to him by the said Board) and that there was no proof of forgery or misconduct against plaintiff/ appellant.
21. The lower appellate court on the aforesaid findings of facts, passed following Judgment and decree :
"Appeal is partly allowed. Judgment and decree dated 13.4.1993, passed by VIth Additional Chief Metropolitan Magistrate, Kanpur Nagar is hereby set aside. It is declared that notification dated 31.12.1982 issued by defendant-respondent No. 2, the Board of High School and Intermediate Examination, U. P. Allahabad is null and void and has no force. Accordingly defendant-respondent No. 1, Reserve Bank of India, is hereby directed to take interview of the plaintiff appellant against the post, reserve/kept vacant under the orders of the Court, and after taking his interview, if the total marks obtained by the plaintiff appellant in the typing test and interview is more than the last candidate selected or at par with the last candidate selected, then to appoint the plaintiff-appellant on the post in question according to rules. It is hereby made clear that the plaintiff-appellant shall be interviewed without being prejudiced by this suit and appeal. The suit of the plaintiff-appellant is hereby partly decreed. Cost on parties."
22. Against aforesaid lower appellate court judgment and decree dated 12.5.1998, Defendant No. 1, Reserve Bank of India filed present second appeal. While admitting the second appeal the Court passed following order :
.............................................
Admit Issue notice.
advertisement for the post of typist has misconstrued and misinterpreted the basic requirement and, whether in this behalf, it has gone against not merely the established canons of interpretation but beyond the pleadings and evidence of the parties?
24. Sri Yashwant Verma, Advocate, learned counsel for the Bank made following submissions :
(i) Qualifications mentioned in the advertisement in question, requiring minimum 45% marks in English in either of the examination namely High School, Intermediate, B.A. and, according to the appellant, the Court below misinterpreted the qualification clause by holding that 45% marks in English subject were required only in High School and not in a case where a candidate has passed the examination higher than High School, namely, Intermediate and B.A. etc.
(ii) Duplicate mark-sheet of the Intermediate Examination relied upon by the plaintiff, according to the trial court finding, was a fictitious mark-sheet showing 55% marks in English was filed by the plaintiff which was cancelled by the Board/Defendant No. 2 was not set aside or upset in , any manner.
(iii) The lower appellate court, while arriving on Its conclusion that no opportunity was given to the plaintiff before notification dated 31.12.1982 was Issued by the U. P. Board cancelling his subsequent mark-sheet (relied upon by the plaintiff) showing 55% marks in English in Intermediate Examination, taking to be correct, the lower appellate court could not have passed the decree and should have remanded the case to the trial court for deciding afresh.
(iv) This Court, in excess of its Jurisdiction under Section 100 Code of Civil Procedure, cannot take recourse to Order XLI, Rule 33, Code of Civil Procedure in the facts and circumstances of the instant case, inasmuch as, the plaintiff has not filed the appeal and lower appellate court decree can be varied or modified only in a contingency where second appellate court entertained to decide the appeal on merit in favour of the appellant and not otherwise.
25. Sri H. R. Mishra, Advocate, appearing on behalf of the plaintiff respondent No. 1, on the other hand, submitted that interpretation of the advertisement, adjudicated by the lower appellate court requires no interference inasmuch as interpretation of the qualification clause in the advertisement, adopted by the lower appellate court is the most rationale and reasonable interpretation. According to him, word 'or' used second time In the educational qualification clause, followed after the words 'or an equivalent examination' is disjunctive and the earlier clause 'securing at least 45% marks in English' cannot be correlated with the expression 'Intermediate . Examination/ Pre-University/Pre-Degree Course or an equivalent examination of a recognized Board' used in the advertisement. According to him the condition that a candidate should have passed, secured at least 45% marks in English, is a condition referable to 'matriculation or an equivalent examination' only inasmuch as the said expression follows immediately after the expression 'securing at least 45% marks in English.'
26. The lower appellate court, after considering respective contentions of the contesting parties, held :
"The defendant-respondent No. 1 in its written statement in Para 23 has stated that the defendant made advertisement for the post of English Typist and the minimum qualification was that the candidate must have secured 45% marks in English either in Matriculation or in equivalent examination. There is no dispute about the qualification of speed of 40 words per minute in English typing. So it is clear from the admission of the defendant-respondent No. 1 made in written statement that 45% marks was required qualification either for the candidates 'who have passed Matriculation or equivalent examination. It was not required qualification for the candidates who have either passed Intermediate or an equivalent examination below graduation. Admittedly, the plaintiff has passed Intermediate Examination and therefore, 45% marks in English is not essential qualification for him. The plaintiff appellant has wrongly been discarded from the interview. In view of above discussion. Point No. 1 for determination is decided in favour of the plaintiff-appellant."
27. The plaintiff had, admittedly, passed Intermediate Examination vide Duplicate Mark Sheet (Ext. 1) with 55 marks in English.
28. Lower appellate court, while discussing second point, after considering the evidence of the parties, came to the conclusion that there was nothing on record to show that under which provision or under what authority, the defendant Board cancelled plaintiffs duplicate mark-sheet which was earlier duly issued by the Board. On this basis, the lower appellate court held that mark sheet of the plaintiff was not legally cancelled vide notification dated 31.12.1982 and hence declared the said notification to be null and void.
29. Very significant and conspicuous circumstance, in the instant case, is that the impugned judgment and decree passed by the lower appellate court declaring U. P. Board notification null and void has not been challenged by the U. P. Board by filing second appeal before this Court, the said decree against U. P. Board defendant No. 2/Madhyamik Shiksha Parishad has become final.
30. On the other hand, on behalf of the Bank, no attempt was made by urging and pressing the grounds regarding cancellation of mark-sheet and notification revoking duplicate mark-sheet. In fact, appellant miserably failed to press and made no submission to this aspect. Mere framing of grounds in the second appeal is not enough in the eyes of law.
31. From the perusal of the record as well as the pleadings of the defendant-bank, it is clear that the bank relied solely on the fact that duplicate mark-sheet of the plaintiff was the basis of alleged forgery, the plaintiff had not secured 45% marks in English in intermediate and hence, he was not eligible according to the advertisement. The defendant bank in support of its case relied upon the notification dated 31.12.1982 issued by the Board declaring issuance of the mark-sheet in favour of the plaintiff ineffective/inoperative and plaintiff was not entitled to rely upon the same for any purpose. The said notification having been declared null and void and defendant No. 2/Madhyamik Shiksha Parishad not having challenged the same, the defendant appellant (Reserve Bank of India) cannot rely upon said Parishad notification dated 31.12.1982 and at least, it cannot rely upon the said notification, challenge the decree of the lower appellate court to be bad in this respect unless the same has been declared so by this Court. It is no case of the bank that apart from Parishad notification dated 31.12.1982, it did take steps to reject the application of the plaintiff on the basis of forged mark sheet independently and the proceedings conducted by the Parishad culminating with the aforementioned notification.
32. The argument of the learned counsel for the appellant that the trial court finding regarding mark-sheet being forged has not been upsetted, In my considered opinion, not borne out from the lower appellate court judgment. The trial court on this Issue recorded categorical finding to the effect that plaintiff was given no opportunity by the Board before action was taken and that the notification of the Board dated 31.12.1982 was null and void. Nothing has been placed before this Court to demonstrate that finding of the courts below on the issue is perverse.
33. Finding, on the issue of 'notification' has not been assailed probably for the reason that it is not possible or otherwise feasible for the defendant bank to demonstrate that enquiry was held or not conferring jurisdiction upon the U. P. Board for issuing notification dated 31.12.1982 the plaintiff was afforded opportunity to the concerned candidate or not.
34. In view of the above, it cannot be said that the plaintiff-respondent did not secure 45% marks in Intermediate Examination and, if that be so, the contention of the defendant-appellant (Reserve Bank of India) that he did not possess qualification as per advertisement, cannot be accepted.
35. It will be appreciated that the decree declaring U. P. Board's notification dated 13.12.1982 as null and void stands, (since it has not been challenged by the U. P. Board), the same cannot be ignored and the plaintiff cannot be denied benefit of the duplicate 'mark sheet' submitted to the bank. So long as the said duplicate mark-sheet is in existence, it cannot be ignored in view of the civil court decree and it must be respected by all concerned.
36. Sri Yashvant Verma, advocate, learned counsel appearing on behalf of the defendant-appellant (Reserve Bank of India) argued that this Court has no jurisdiction to amend/vary decree on any ground under Order XII, Rule 33. He has placed reliance on the following decisions :
(i) Smt. Dayali Devi v. Captain J. M. Mitra and another, AIR 1973 All 249 paras 11 and 12.
(ii) Mohan Singh v. Chandrika Bari and Anr., 1979 ALJ 1187.
37. Sri H. R. Mishra, advocate, learned counsel for the contesting plaintiff-respondents, submitted that the plaintiff admittedly secured second position in the merit list prepared on the basis of marks obtained in the written examination and typing test. According to him, the said fact has been categorically pleaded in the paras 19 and 20 of the said plaint but the same has not been denied. Original record, which is before this Court, shows that the said fact has not been denied by the appellant Bank.
38. In this context, the petitioner's counsel referred to second amendment application dated 24.11.1987 (Annexure-13 to the affidavit-filed in support of the stay application of the appellant bank in present second appeal). It Is not disputed by the appellant bank's counsel that the said amendment was allowed and Para 20 (C) was incorporated in the plaint. After amendments (in pursuance to the aforesaid amendment application/ Annexure-13 to the affidavit In stay application) were incorporated, plaintiff filed additional written statement and the facts mentioned in Para 20 (C) of the plaint have not been denied.
39. Sri H. R. Mishra, advocate, however, submits that the decree passed by the lower appellate court may be suitably modified to make it realistic and practicable, inasmuch as, according to him, the observations made by the lower appellate court that the defendant bank shall interview the plaintiff without being prejudiced by any court of law. According to him, even if it is possible for the defendant bank to do so, the plaintiff shall always, in case of rejection, harbour a bona fide impression/grudge against the defendant bank for not having acted bona fide and without prejudice and it shall be next to Impossible for the plaintiff-respondent to prove state of mind of the concerned bank officers in case of his rejection.
40. Sri H. R. Mishra, advocate submitted that in view of the second place in the merit (of written and typing test alone), the plaintiff cannot be denied appointment even if get zero in interview as plaintiffs marks (without interview) are higher than the candidates selected (as per written, typing and interview also). In this context, he placed reliance upon following decisions in :
(i) District Board, Muzaffarnagar v. Upper India Sugar Mills Limited, Khatauli, AIR 1957 All 527 (DB).
(ii) Bhonreylal v. Ram Singh and Ors., AIR 1956 Raj 49.
(iii) Chajju Lal and Anr. v. Dr. Ram Pal Singh, AIR 1968 All 79 para 12.
41. In the facts of the present case, court is not called upon, in the instant case, to go into the above question. The bank admits that plaintiff secured second position as per written test and typing test marks obtained by the plaintiff. This Court is not prepared to accept that bank authority shall not hold interview without being prejudiced as directed by the court below. This aspect of the matter need not withhold the Court long. With the passage of time, officers supposedly changed element of prejudice stands eliminated.
42. Considering the nature of the case and the fact that suit is 22 years old, I direct defendant decree holder (respondent bank) to hold interview expeditiously forthwith within one month of receipt of certified copy of this judgment and declare the result within another one month.
43. Second appeal fails and is, accordingly, dismissed.
44. Judgment and order dated 12.5.1998 passed by the lower appellate court is affirmed subject to above directions.
45. No order as to costs.