Dismissed

Ali.K.K v. the Union of India

Kerala HC9 Mar 2017WP(C)/1281/2017

Case brief

AI extract

What is this about?

The petitioner sought a direction to correct an 8-year discrepancy in the date of birth recorded in his passport. The court held that the passport authority, bound by an Office Memorandum, was not required to entertain the application due to the long delay, lack of satisfactory explanation, and potential international consequences, and dismissed the petition.

What did the court decide?

The writ petition failing and the direction sought is accordingly dismissed.

Ali.K.K Vs the Union of India — Writ and Judicial Review | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 9TH DAY OF MARCH 2017/18TH PHALGUNA, 1938

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WP(C).No. 1281 of 2017 (I)

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PETITIONER :

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ALI.K.K., AGED 45, S/O. KOCHUBAVA, KARUPPAM VEETTIL HOUSE, THANISSERY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN-680 001

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BY ADV. SRI.N.L.BITTO

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RESPONDENT(S):

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1. THE UNION OF INDIA, REP. BY ITS SECRETARY TO THE GOVERNMENT, EXTERNAL AFFAIRS MINISTRY, NEW DELHI-110 001

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2. THE REGIONAL PASSPORT OFFICER, OFFICE OF THE REGIONAL PASSPORT OFFICE,

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COCHIN-682 017

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R1 & R2 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON 09-03-2017 DELIVERED THE FOLLOWING:

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sts

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WP(C).No. 1281 of 2017 (I)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1: A TRUE COPY OF THE RELEVANT PAGE OF THE PASSPORT NO.L8013565 OF THE PETITIONER ISSUED DATED 18.3.2014

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EXHIBIT P2: TRUE COPY OF ADMISSION EXTRACT ISSUED BY HEAD MASTER, NATIONAL HIGHER SECONDARY SCHOOL IRINJALAKUDA DATED NIL

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EXHIBIT P3: A TRUE COPY OF JUDGMENT IN WPC NO.32297 OF 2014 DATED 15.12.2014 OF THE HONORABLE HIGH COURT OF KERALA

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EXHIBIT P4: A TRUE COPY OF THE BIRTH CERTIFICATE OF THE PETITIONER ISSUED BY THE REGISTRAR, BIRTH AND DEATHS KARALAM PANCHAYATH DATED 25.4.2016

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

SHAJI P. CHALY, J.

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W.P.(C). No. 1281 of 2017

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----------------------------------------------Dated this the 9^th day of March, 2017

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JUDGMENT

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The reliefs sought for by the petitioner in this writ petition is a direction commanding the respondents to make necessary alterations in Ext.P1 passport by correcting the date of birth of the petitioner as 15.8.1969 within a stipulated time limit.

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Material facts for the disposal of the writ petition are as follows; according to the petitioner, actual date of birth of the petitioner is 15.8.1969. However, in Ext.P1 passport bearing No.8013565 the date of birth of the petitioner is recorded as 20.5.1961. It is submitted that, while applying for passport, somehow or other, year of birth of the petitioner is mistakenly entered in the passport. According to the petitioner, at that time the registration of birth was not mandatory. However, from Ext.P2 admission register extract from National Higher Secondary School, Irinjalakuda, it is clear that, the date of birth of the petitioner is recorded

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W.P.(C). No.1281 of 2017

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correctly as 15.8.1969. Petitioner has submitted an application to correct the date of birth in his passport. However, respondents are not accepting his application stating that, his application cannot be considered without a court order. Hence petitioner approached this court by filing W.P.(C) No.32297/2014 and secured Ext.P3 judgment dated 15.12.2014, whereby a direction was issued to consider the application of the petitioner and take a decision. Thereupon petitioner was directed by the passport authority to produce his birth certificate. But according to the petitioner, since the birth was not registered, subsequently petitioner has filed an application before the authorities under the provisions of law to register his birth and accordingly the same was registered on 25.4.2016, evident from Ext.P4. Therefore, it is the contention of the petitioner that, in accordance with Ext.P4 birth certificate necessary alteration can be made in the passport.

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Respondents 1 and 2 have filed a statement refuting

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W.P.(C). No.1281 of 2017

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the allegations and claims and demands raised by the petitioner. Apart from other submissions, it is stated that, documents produced by the petitioner for securing the initial passport are not available with the 2^nd respondent. However, in the passport, date of birth of the petitioner is shown as 20.5.1961. The date of birth now sought to be corrected is 8 years. Petitioner was holding the passport from 1984 i.e., for the last more than three decades he was using passport with date of birth as 20.05.1961. Hence petitioner cannot at this point of time say that, he was not aware that his date of birth was incorrectly entered in the passport. The Regional Passport Officer functioning under the guidelines of Ministry of External Affairs, which issues instructions from time to time on various aspects affecting the issue of passports to Indian citizens by invoking the powers conferred under the Passport Act. Accordingly Ministry of External affairs issued an Office Memorandum bearing No.VI/401/2/5/2001 dated 26.11.2015 pursuant to the observations made by this court

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W.P.(C). No.1281 of 2017

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in W.P.(C) No.9073/2015 and a batch of similar cases. In the said judgment, the learned Single Judge has held that, corrections in date of birth cannot be lightly interfered with and that too when it is requested after several years. There was a further direction issued to the authorities to introspect on the observations made in the judgment and to make suitable amendments to the earlier circular regarding date of birth correction.

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According to the respondents, numerous applications are being filed before the 2^nd respondent seeking correction of date of birth and the difference in age varies from 3 to 10 years from the date of birth shown in the passport and none of the applicants are able to clarify the authorities the circumstances under which they are seeking correction of date of birth, how wrong entry with regard to the date of birth occurred in the passport, what was the document produced by the applicant before the passport authorities while submitting application for passport at the first time etc. etc. In the

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W.P.(C). No.1281 of 2017

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absence of any genuine explanation, it has to be presumed that, the applicants had played fraud on the authorities while obtaining the passport initially. So such applicants do not deserve any lenient approach from the authorities. That apart it is submitted that, passport issued by the Central Government is considered as one of the documents of identity/prima facie evidence of nationality. The details furnished in the passport are acted upon by the agency/person of the outside country in which he/she travels and resides as the authenticated details of his existence as a citizen of his/her country of origin. Being so, after using the passport for a long period when a person seeks change of entry in the passport regarding his date of birth, that will affect the very sanctity of the passport. That apart it is stated that, any relaxation in the matter of change/correction of entries in the passport will affect the integrity of the Indian Passport Issuance system, undermining lower confidence on Indian passport system among foreign governments and force

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them to impose visa and stay restrictions on entire population of India.

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It is also submitted that, now-a-days the passport issuance by the Indian Government is in accordance with International Civil Aviation Agreement, 1944, to which Government of India is a signatory and in compliance with the regulations stipulated by International Civil Aviation Organisation (ICAO), Montreal. The said organisation's Traveler Identification Programme emphasizes integrity of civil registries that issue identity documents which are the basis for issue of passport and lack of strict compliance in issue of important documents such as birth certificates by the Indian Local authorities, would affect the integrity of Passport Issuance System. That apart as pointed out earlier, petitioner has travelled abroad using the passport with the date of birth, which is registered with the Foreign Government or Foreign employers. So any correction/change of entries in the passport will create uncertainty on the part of the Foreign

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W.P.(C). No.1281 of 2017

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Authority/employers about the veracity of the personal particulars of the applicant and may lead to denial of visa etc. etc. It is also submitted that, pursuant to the direction issued by this court in W.P.(C) No.9073/2015, the O.M. specified above was modified as per order dated 22.9.2016, whereby it is decided not to entertain any application seeking correction of date of birth, if the same is made beyond the period of 5 years from the date of issue. Therefore, it is submitted that petitioner is not entitled to get any reliefs as sought for in the writ petition.

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Heard learned counsel for petitioner, learned ASGI and perused the documents on record and the pleadings put forth by the respective parties.

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According to the learned counsel for petitioner, such a mistake is crept in the passport since there was no compulsory registration of birth during the year of birth of the petitioner. However, from Ext.P2 certificate issued by the School Authorities, it is clear that, the date of birth of the

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W.P.(C). No.1281 of 2017

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petitioner is 15.8.1969. Therefore, the 2^nd respondent ought to have received the application and should have considered the same taking note of the certificate issued by the statutory authority, is the prime contention advanced. Any how, thereafter petitioner has secured the birth certificate in accordance with law, evident from Ext.P4 recording the date of birth of the petitioner as 15.8.1969. Therefore, 2^nd respondent is duty bound to consider the same taking note of Ext.P4 birth certificate. Learned counsel has also invited my attention to a Division Bench judgment of this court in Union of India v. Sunil Kumar [ 2015(3) KLT 501] and contended that, petitioner is entitled to get the benefit of the law laid down by this court in the aforesaid judgment. However, learned ASGI submitted that, the said judgment is rendered prior to the modification of the O.M. specified above and the same has no probative value so far as the facts and circumstances of the present case is concerned. Learned ASGI submitted in terms of the statement filed before this

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W.P.(C). No.1281 of 2017

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court, which are discussed above in detail and basically contended that, the correction sought for by the petitioner is 8 years and the petitioner who has travelled abroad after securing passport, for the past more than three decades, can create unnecessary confusion in respect of his registered date of birth with the foreign employer as well as various foreign statutory authorities and it will cause havoc and problems to the Indian passport holders working abroad. Learned ASGI also brought to my notice the judgment rendered by this court in W.P.(C) No.20546/2016 dated 03.08.2016, whereby similar circumstances of correction of 7 years was sought for. After considering the pros and cons and the similar contentions put forth by the respondent, it is held that petitioner therein is not entitled to get any relief. Any how, I am of the considered opinion that, the facts and circumstances considered by this court in the said judgment is almost similar to the facts and circumstances of this case.

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Taking note of the respective submissions made across

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the Bar, I am of the considered opinion that, since there is an Office Memorandum issued by the Ministry of External Affairs, the 2^nd respondent is duty bound to carry out the instructions and stipulations contained therein. It is true, petitioner has secured birth certificate recently i.e. On 25.4.2016, three decades after securing the passport. I find force in the contention raised by the ASGI in respect of the adverse consequences that occur on the basis of the treaty entered into by the Government of India with other foreign nations. Petitioner has not made any satisfactory explanation in the writ petition also how the difference in the age shown in Ext.P1 is occurred. Even though petitioner is seeking a relief for consideration of the application of the petitioner in respect of the genuineness of his claim, no documents are forthcoming before this court to fortify correction and the delay in seeking correction enabling this court to issue necessary directions to the statutory authorities. Above all, the 2^nd respondent is duty bound to carry out the orders

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issued by the Ministry of External Affairs, under which he is functioning. Therefore, it cannot be said that, 2^nd respondent has indulged in any illegal activities so as to warrant interference of this court under Article 226 of the Constitution of India. Moreover, the O.M. specified above and the instructions and stipulations contained therein are not under challenge in this writ petition also. In that view of the matter, looking at any angle, petitioner has not made out any case so

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as to secure any direction as sought for in the writ petition.

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Writ petition fails and accordingly it is dismissed.

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Sd/- SHAJI P. CHALY JUDGE

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smv 07.03.2017

Ali.K.K v. the Union of India

Case brief

What is this about?

What did the court decide?

Ali.K.K v. the Union of India

Case brief

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