Allowed

Ashlin Michael v. Central Board of Secondary Education

Kerala HC13 Nov 2020WA/1280/2020

Case brief

AI extract

What is this about?

The Court allowed the writ appeal, quashing the order rejecting the petitioner's application for date of birth correction. It directed CBSE to reconsider the application within one month, imposing a Rs. 5,000 fine, relying on Subin Mohammed for equitable discretion in reconciling statutory birth certificates with school records despite procedural delays.

What did the court decide?

Writ appeal allowed; Ext. P3 order quashed; Direction to CBSE to reconsider application within one month; Rs. 5,000 cost imposed on the appellant.

Ashlin Michael Vs Central Board of Secondary Education — Service and Employment | Kerala HC (2020)

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WA.No.1280 OF 2020 -1-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942

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WA.No.1280 OF 2020

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AGAINST THE JUDGMENT IN WP(C) 1194 OF 2020(Y) OF HIGH COURT OF KERALA

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APPELLANT/S:

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ASHLIN MICHAEL AGED 28 YEARS

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D/O. MICHAEL P.T, PULAYAMPARAMBILHOUSE, KAKKADOMPOIL P.O, THAMARASSERY, PIN-673 604

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BY ADV. SRI.R.ANILKUMAR

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RESPONDENT/S:

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1 CENTRAL BOARD OF SECONDARY EDUCATION REPRESENTED BY REGIONAL OFFICE, NEW NO. 3(OLDNO. 1630-A) J BLOCK 16, MAIN ROAD ANNA NAGAR, CHENNAI-600040

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2 PRINCIPAL

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ALPHONSA ENGLISH MEDIUM SCHOOL, (SENIOR SECONDARY),THAMARASSERY P.O, KOZHIKODE, PIN-673 573

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3 THIRUVAMBADI GRAMA PANCHAYAT, REPRESENTED BY REGISTRAR OF BIRTH AND DEATH, THIRUVAMBADI GRAMA PANCHAYAT, KOZHIKODE DIST. PIN-673 573

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R1 BY SRI.NIRMAL S., SC, CBSE R2 BY V. N. RAMESAN NAMBISAN R3 BY ADV. SRI.BRIJESH MOHAN R3 BY ADV. R. RAJ PRADEEP

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

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Dated this the 13^th day of November, 2020

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Shaji P. Chaly, J.

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Instant appeal is filed by the writ petitioner challenging the judgment of the learned Single Judge in W.P.(C) No. 1194 of 2020 dated 09.03.2020, whereby a learned Single Judge dismissed the writ petition holding that there is inordinate delay of more than ten years occasioned by the writ petitioner in approaching the Central Board of Secondary Education, hereinafter called, 'CBSE', seeking correction of date of birth in school records, which delay is not satisfactorily explained even in the writ petition, and therefore the petitioner is not entitled to get the reliefs prayed for.

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Appellant completed the Secondary School of Education from

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Alphonsa English Medium School, Thamarassery, Kozhikode and passed the examination in the year 2010. According to the appellant, there was an inadvertent mistake on the part of the grandfather of the appellant in furnishing the date of birth of the appellant as 08.03.1994 instead of 08.11.1992, due to mistake in converting the Malayalam Era to English year. The correct date of birth of the appellant as per the birth certificate issued by the Registrar of Births and Deaths of Thiruvambadi Grama Panchayat is

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08.11.1992. It is the case of the appellant that the appellant had applied for correction of date of birth through school as early as in 2015. As per order No. RO(M)/CORRN/REJECTION/DOB/2015/2429 dated 21.03.2015, the application for correction was rejected by the 1^st respondent. After completing the Higher Secondary Education, appellant joined B.V.Sc. Course and hence, she could not approach the High Court in time. These were the basic facts projected by the appellant in the writ petition.

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In the writ petition, a statement was filed by the CBSE basically contending that the correction of date of birth, name of candidate, father's name, mother's name etc. are governed by the examination bye-laws of the CBSE. The correction in date of birth is governed by clause 69.2 of the byelaw of the CBSE. As far as the certificate issued prior to 2015 are concerned, the amended bye-law 69.3 governs the field for correction of date of birth in certificates of class X/XII examinations – 2015 onwards. The amended byelaw 69.3 was brought in by notification dated 01.02.2018.

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It is also submitted that as per clauses 69.2 and 69.3, the corrections that could be carried out are only typographical and other errors to make the certificates consistent with the school records. Therefore, the correction sought for by the writ petitioner does not fit in the category of typographical error as there is considerable change in date of birth. It is further submitted

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that as per Rule 69.2 amended bye-law, no change in the date of birth once recorded in the Boards records shall be made. So also, it is stated that the birth certificate produced in the writ petition was issued on 10.12.2012, much after the petitioner had passed her tenth Board Exam and hence, the CBSE cannot be faulted for the negligence of the petitioner or her parents.

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We have heard learned counsel for appellant, Sri. R. Anilkumar and

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learned Standing Counsel for CBSE, Sri. S. Nirmal and perused the pleadings and documents on record.

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In fact, when the writ appeal came up for admission, an objection was raised by the learned Standing Counsel that even though the issues raised by the appellant is somewhat guided by the proposition of law laid down by a Division Bench of this Court in Subin Mohammed v. Union of India [2016 (1)KLT 340] , there was no proper explanation for the delay in the writ petitions filed by the appellants, and it was accordingly that the learned Single Judge dismissed the writ petition. Accordingly, we directed the appellant to place an affidavit in the appeal, explaining the delay occurred in submitting the application seeking correction.

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Appellant has, therefore, filed an affidavit stating that after getting the birth certificate on 10.12.2012, her father approached the school for

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correction of date of birth as entered in the birth certificate. As per communication No. RO(M)/CORRN/REJECTION/DOB/2015/ 2429 dated 21.03.2015, the application for correction was rejected. Appellant submitted that her father has only primary education and is engaged in agricultural works. When the father of the appellant contacted the Principal of the school, it was informed that they had forwarded another letter and it was rejected in 2015 and that the father of the appellant was under the impression that there was no other remedy and the appellant was away with her studies. Due to appellant's financial stringency, she was not in a position to contact a counsel. Later, a friend of the appellant suggested to contact a counsel to discuss the possibility of rectifying the mistake in the entry in the date of birth in the school certificate. It is also stated that the appellant is still unemployed and her family finds it very difficult to meet both ends. Appellant contends that there is no intentional delay in approaching this Court and that her future life will be in peril, unless the delay in approaching this Court is pardoned and excused. She further contended that there is no willful latches or negligence on her part in filing the writ petition and applying to the authorities within five years from passing the Secondary School Examination.

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Learned counsel for appellant submitted that in Subin Mohammed,

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the Division Bench of this Court has considered this question and has directed the CBSE to consider any application submitted for correction of date of birth, irrespective of the provisions of the bye-laws specified above, on realizing a cost of Rs.5,000/- from such applicants. However, learned Standing Counsel for CBSE has submitted that the judgment in Subin Mohammed was rendered by this Court on a reference from a learned Single Judge on four different points and one of them was that whether the period to determine the limitation of 5 years should commence from the date of attaining majority as per the birth certificate in terms of section 6 of the Limitation Act, 1963 which speaks the legal disability inter alia of a minor and provides for an institution or a school or other applicants within the same period as provided in the schedule after the disability has ceased. According to the learned Standing Counsel for CBSE, the application should have been submitted within three years from the date of attaining majority and which issue was not considered by the Division Bench in Subin Mohammed and therefore, the said issue need be considered by this Court taking into account Section 6 of the Limitation Act.

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The sum and substance of the contention advanced by the learned Standing Counsel is that, if the principles of Section 6 of the Limitation Act is applied, there is no legal reason for interfering with the judgment of the

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learned Single Judge, since the writ petition was dismissed on account of inordinate delay in making application for correction.

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We have considered the rival submissions made across the Bar. The paramount question for consideration is whether the judgment rendered by the Division Bench of this Court in Subin Mohammed applies to the facts and circumstances of the instant appeal ? It is true that the issue with respect to Section 6 of the Limitation Act was also a question referred for consideration by the learned Single Judge, however, the Division Bench in Subin Mohammed has arrived at the finding that the provisions of clauses 69.2 and 69.3 of the examination bye-laws of the CBSE deals only with correction of typographical and other errors to make the certificate consistent with the school records but found that justice demands to have consistency in the matter of correction of date of birth in the school certificate in tune with the statutory certificate certifying the date of birth issued by the authority under the Act, 1969.

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A reading of paragraphs 24 to 41 of the judgment in Subin Mohammed would make the situation clear and they are extracted

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hereunder:-

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It is rather clear from the arguments raised by the learned counsel for the petitioners and as rightly observed by the learned Single Judge

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that the discrepancy in the date of birth as revealed in the mark sheet and the birth certificate would result in a prejudice to the candidate concerned especially when employment is sought in India or abroad and especially so when abroad studies are undertaken by such candidates. In such an event, the foreign University or the foreign Embassy will verify the date of birth as available in the passport along with the mark sheet and other credentials of the candidate to identify the person. Under such circumstances, if there is any discrepancy in the date of birth as seen in the mark sheet and in the passport of the candidate, they may suffer substantial prejudice.

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Learned Single Judge has answered the issues as follows:

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“1. The correction referred to in the regulations and bye-laws would take in a change of date of birth based on the Birth Certificate since that is the contemporaneous understanding all through the years in which the regulation has been in operation.

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The amendment brought in now would only be applicable prospectively and the question of sustainability of such amendment would have to be decided in an appropriate challenge made.

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The period, to determine the limitation of five years, should commence from the date of attaining majority as per the birth certificate.

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The prescription of limitation of five years, commencing from the date of attaining majority has to be sustained.”

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The issue would be to what extent this Court will be justified in directing correction of date of birth in the mark sheet based on an extract of birth certificate. The condition imposed in the bye laws is not statutory in nature. But still, it is enforceable as the bye law conditions have to be observed by every candidate who undertakes the Board Examinations. Such conditions cannot be totally ignored or given a go by and every candidate will have to comply with such conditions.

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The evidentiary value of date of birth appearing in the mark sheet of a candidate is not disputed. In fact, even before the Registration of Births and Deaths Act, 1969 coming into force, the primary document relied upon for the purpose of understanding the date of birth of a candidate is the school records. It is either the extract of school admission register maintained by the school or the school leaving certificate, transfer certificate etc., which were relied upon as proof of age.

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Rules have been framed by the State Government under Section 30 of the Registration of Births and Deaths Act, 1969 in supersession of the Kerala Registration of Births and Deaths Rules, 1970 as the Kerala Registration of Births and Deaths Rules, 1999. By virtue of the 1969 Act, it was made obligatory to inform the Registrar about the birth and death in a household, in hospital, health centre, nursing home or the like institution and the Registrar was under obligation to maintain appropriate register with respect to the same. Necessary rules have also been framed by the State Government to give effect to the statutory provisions. No doubt, once an entry is made in the register maintained by competent authority in accordance with the statutory provision, it raises a presumption of correctness to the date of birth entry.

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But, in these batch of cases, we are not concerned with the correctness of the actual date of birth of the candidate. Here is an instance where while admitting the candidate to the school, the parents or guardian, as the case may be, had given a particular date of birth whereas in the register maintained by the statutory authority, the date of birth is different. This can arise under different circumstances. One may be a deliberate act, as the parent or guardian with full knowledge of the actual date of birth gives a different date of birth in the school for some advantage at the relevant time. Fraud may be practiced, or it can also be an instance of mistake or on account of negligence or carelessness. But it is relevant to note that when a student studies in a school upto 10^th standard or 10+2, the parent/guardian and even the student gets opportunity to verify the entry of date of birth in the school records. May be the child may not be aware of the actual date of birth in the register maintained by the competent authority during the relevant time or they may not have noticed the said fact at the relevant time. Therefore, it is apparent that two different date of births are available for a particular candidate, one in the register maintained by the school and second in the register maintained by the Registrar. For all practical purposes, there could only be one date of birth for a person and either of it would be the correct date of birth. But we are not concerned with an issue relating to the correctness of the date of birth and no such enquiry is being conducted by the school or C.B.S.E. The only factor to be looked into is whether this Court can issue a mandamus to the C.B.S.E. to effect the correction de hors the restrictions imposed by them in their bye laws.

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In Rahul (supra), the Division Bench of this Court did not decide any issue at all, whereas in Arun (supra), learned Single Judge of this Court held that the bye law condition is only directory. Even in Sreeraj

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R. Nath (supra), the validity of the bye law has not been considered. As already indicated, though the bye law has no statutory force, it is binding on the candidate concerned. In Sarifuz Zaman (supra), the Supreme Court was concerned with a regulation framed under a statute. The present bye law conditions is not framed under a particular statute nor any material has been produced to come to such a conclusion. Therefore, the said bye law condition can only be treated as a regulation to be followed by the parties who undertake the studies in institutions affiliated to C.B.S.E. and participates in C.B.S.E. Examinations. In such circumstances, C.B.S.E. is entitled to contend that they will not make any corrections after the period specified in the bye laws. C.B.S.E. is apparently not concerned with the correctness of the date of birth with reference to the birth certificate obtained from the local authority. In fact, such a provision has been made by way of an amendment which is reflected in the judgment in Rahul (supra). Therefore, with effect from the date on which such amendments had been made, it is apparent that C.B.S.E. insists for birth certificate from statutory authority, before giving an admission to a candidate in C.B.S.E. schools. That was not the position earlier when the petitioners have studied in those schools. But the fact remains that when a specified time limit has been prescribed by C.B.S.E., all concerned are bound by the same.

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It is pointed out that the applications cannot be considered as the bye law has been amended and the five year period has been reduced to one year. But the said amendment applies only prospectively. This issue has already been answered by the learned Single Judge and we do not think that a different view should be taken in the matter.

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Going by the bye law condition, corrections are permissible only to correct typographical and other errors to make the mark sheet consistent

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with the school records. That apart, genuine clerical error will be corrected under orders of the Chairman, if it is established that the wrong entry was made erroneously. In other words, there is no obligation on the part of C.B.S.E. to correct the date of birth of a candidate in the school records merely for the reason that a different date of birth is shown in the extract of birth certificate produced by them at a later stage. In the said circumstances, it is purely within the realm of jurisdiction of C.B.S.E. to consider whether in a particular instance, a correction to the date of birth could be entertained or not.

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In Rahul (supra), C.B.S.E. has only placed relevant materials before Court and had undertaken to consider the claim of students. The said judgment cannot be termed as a binding precedent to disable C.B.S.E. to frame their own norms, rules or regulations and even if a lesser period of limitation is prescribed, it remains binding unless a successful challenge is made in an appropriate proceedings.

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Now coming to the cases on hand, going by the bye law conditions, we do not think that any of these cases fall under the category of clerical or typographical error, in comparison with the school records. In W.P.(C) No.1362/2015, it appears to be a genuine mistake as the date of birth is entered as 3.2.1992 instead of 2.3.1992. As rightly contended by the learned counsel, this mistake would have happened in the process of translation from Arabic. In some cases, the date and month are correct, but the year differs. In other words, a situation as envisaged, that is for reconciling the school records with the birth certificate from statutory authority, was not contemplated by C.B.S.E. in their bye laws.

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Therefore, we have to proceed on the basis that the bye law of

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C.B.S.E. cannot be applied to the fact situation. But to reconcile the date of birth entry in the mark sheet with that of the entry in the statutory certificate, the candidates should not be left without any remedy. Their right to approach the Court for redressing their grievance cannot be ruled out.

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Next question is whether the Writ Court should exercise the power to direct correction of the entries in the mark sheet taking into account the entry in the birth certificate maintained by the statutory authority. It is a well settled principle of law that writ of mandamus can be issued only if an aggrieved party has an enforceable legal right under a statute or rule. A mandamus cannot be issued to an authority to do something. (Renu v. District & Sessions Judge, 2014 (2) KLT SN 41 (C.No.56) SC = (2014) 15 SCC 731)).The writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. (Food Corporation of India v. Ashis Kumar Ganguly, (2009) 7 SCC 734). Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ in the nature of mandamus. (State of M.P. v. Sanjay Kumar Pathak, (2008) 1 SCC 456). In Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013 (1) KLT Suppl. 68 (SC) = (2013) 5 SCC 470), it is held as under:

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“The primary purpose of a writ of mandamus is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justitiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to create or to establish a legal right, but to enforce one that

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is already established. While dealing with a Writ Petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal.

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Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for the issuance of the said writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the Writ Petition, whether there exist proper pleadings. In order to maintain the writ of mandamus, the first and foremost requirement is that the petition must not be frivolous, and must be filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to an officer having the requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct, are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when the same is manifest from the facts of the case, that is, when it is an empty

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formality, or when it is obvious that the opposite party would not consider the demand.”

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As held by the Apex Court in Cidco (supra), entry of date of birth in the statutory register raises a presumption of correctness and it prevails over an entry in the school register. Same is the position as well as registers maintained by the school are concerned as held in Sarifuz Zaman (supra), Ashwani Kumar (supra) and Shah Nawaz (supra). The presumption, of course, is always rebuttable and it depends on the facts of each case. No such controversy has arisen in these cases.

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In Sarifuz Zaman (supra), the request made was to correct the date of birth in the mark sheet, on the basis that at the time of admission a clerical error occurred in making an entry in the school records. Hence, this judgment cannot be applied to the facts of the present case. As held in Synthetics Ltd. (supra) and Gurnam Kaur (supra), for treating a judgment as a precedent, the facts on which the law has been laid down requires to be analysed. But, present are cases where the petitioners admit that their parents have given a wrong date of birth entry in the school records and seeks to reconcile it with the birth certificate. That apart, the Apex Court was considering a statutory regulation.

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It is contended that the future prospects of the petitioners to study or get employment abroad, will be substantially affected if the entry of date of birth in the mark sheet does not tally with that in the birth certificate. Though a writ of mandamus cannot be issued in the strict sense, we are of the view that, failure to exercise jurisdiction may put the petitioners to serious hardship. Hence, to render justice, it is always open for the Court to pass appropriate orders, taking into account the facts and circumstances of each case. However, if disputed questions of fact

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arises, it will not be appropriate for this Court to entertain the matter.

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In all these cases, there is delay on the part of the petitioners in approaching C.B.S.E., which cannot be lightly condoned. Taking cue from Sarifuz Zaman (supra), they have virtually slept over their rights. But failure to exercise jurisdiction will result in injustice to the petitioners. Such Writ Petitions can therefore be entertained only on imposing cost on the petitioners, which we fix at Rs.5,000/- .

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Hence, to meet the ends of justice, it will be appropriate for this Court to dispose the Writ Petitions with the following directions:

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i) That C.B.S.E. shall correct the entries in the mark sheet of the petitioners with reference to their corresponding birth certificates issued by the statutory authority, if the request is found to be genuine.

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(ii) Genuineness of the birth certificate can be ascertained from the respective local/statutory authority/Head of the Institution or such other method, C.B.S.E. may deem it fit.

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(iii) C.B.S.E. can demand in advance a consolidated fee, including all expenses for processing such applications.

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(iv) Each of the petitioners shall pay `5,000/- (Rupees Five thousand only) as cost to C.B.S.E. within a period of one month.”

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Therefore, on an analysis of the judgment of the Division Bench of

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this Court in Subin Mohammed , we are of the view that this Court has considered the issue with a broader approach of rendering justice to such

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students, who were finding difficulties due to the difference in the date of birth contained in the School Leaving Certificate and records, and the birth certificate issued by the statutory authority de hors the provisions of the examination bye-laws of CBSE. It is also clear that relevance and importance was given to the certificate issued by the Births Authority under Act, 1969, since it is a conclusive proof to establish the date of birth of a person, and was of the considered opinion that the certificates shall be corrected by the CBSE to match with the certificate issued by the statutory authority. It was also pointed out thereunder that a writ court exercising its discretion must exercise it on grounds of public policy, public interest and public good. It was also held that the writ is equitable in nature and thus, its issuance is governed by equitable principles and the prime consideration for the issuance of the writ is whether or not substantial justice will be promoted. It is true, in Subin Mohammed , it was held that there should be appropriate pleadings in the writ petitions explaining the delay in enabling a writ court to exercise its discretion.

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On appreciation of the pleadings in the writ petition, we have found that the learned Single Judge was right in holding that the inordinate delay occurred in submitting the application was not properly explained in the writ petition. However, on realizing that the contentions put forth by the appellant

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is substantially genuine and requires consideration, we directed the appellant to file an affidavit in the writ appeal. On going through the affidavit, we find that there is every reason to think that efforts were made to correct the date of birth in the pass certificate.

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In that view of the matter and taking into account the entire conspectus, we are of the view that the appellant has explained, though belatedly, the reasons for the delay in submitting the application for correction before the CBSE. That apart, on going through the examination bye-laws of the CBSE, relevant portion of which is extracted in the statement of the CBSE, it is clear that as per clause 69.B of the amended bye-laws, CBSE is vested with powers to carry out correction as per court orders, which specifies that application regarding correction in date of birth of candidates will be considered, provided, the corrections have been admitted by the court of law and in cases of correction in date of birth in documents after the court orders caption will be mentioned on the documents 'correction allowed in date of birth as per court order'. This issue was also considered in the judgment in WA 681/2020 dated 22-09-2020 and concurred with Subin Mohamed (supra).

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Thinking so, we are of the view that the stand adopted by the CBSE

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in dismissing the application on the ground of delay cannot be sustained. Therefore, in view of the developed circumstances in the appeal, we are of opinion that the writ appeal is to be allowed. Accordingly, the writ appeal is allowed and Ext. P3 order passed by the CBSE dated 21.03.2015 is quashed and there will be a direction to the Central Board of Secondary Education, Regional Office, Chennai to re-consider the application submitted by the appellant at the earliest and at any rate within a period of one month from the date of receipt of a copy of this judgment by applying the proposition of law laid down by this Court in Subin Mohammed supra and imposing a fine of Rs.5,000/-.

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Sd/-

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S. MANIKUMAR CHIEF JUSTICE

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Sd/-

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SHAJI P. CHALY JUDGE

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///TRUE COPY///

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