The dispute concerned correction of the date of birth in CBSE certificates on the basis of a birth certificate. The court dismissed the Board's appeal, followed the binding coordinate Bench decision, and left the correction directions undisturbed. No costs were awarded in the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 13TH DAY OF NOVEMBER 2020/22ND KARTHIKA, 1942
WA.No.1434 OF 2020
AGAINST THE JUDGMENT IN WP(C) 30151/2019(T) OF HIGH COURT OF KERALA DATED 22.11.2019
APPELLANTS/RESPONDENTS 2-4 IN WPC:
1 THE CENTRAL BOARD OF SECONDARY EDUCATION REPRESENTED BY ITS SECRETARY, 2 , COMMUNITY CENTRE, SHIKSHA KENDRA, CBSE HEADQUARTERS, PREET VIHAR, NEW DELHI, PIN-110 062.
2 THE REGIONAL OFFICER, CENTRAL BOARD OF SECONDARY EDUCATION, NEW NO.3, OLD NO. 1630 A, J BLOCK, 16TH MAIN ROAD, ANNA NAGAR WEST, CHENNAI, PIN-600 040
3 THE REGIONAL OFFICER, CENTRAL BOARD OF SECONDARY EDUCATION, BLOCK B, 2ND FLOOR, L.I.C. DIVISIONAL OFFICE CAMPUS, PATTOM P.O, THIRUVANANTHAPURAM, PIN-695004
BY ADV. SRI.NIRMAL S., SC, CBSE
RESPONDENTS/PETITIONER & RESPONDENTS 1 & 5 IN WPC:
1 ABDUL SHAHEEN.P AGED 27 YEARS, S/O. SHAFI, RESIDING AT PARA HOUSE, PATLA P.O, KUDLA (VIA), KASARAGOD DISTRICT-671 124
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3 THE APSARA PUBLIC SCHOOL, REPRESENTED BY ITS PRINCIPAL, APSARA NAGAR, PERUMBALA P.O, KALANAD (VIA), KASARAGOD-671 317
SRI JAWAHAR JOSE, FOR R1, SMT.S.KRISHNA,CGC FOR R2
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Dated this the 13th day of November, 2020
S. Manikumar, CJ.
Instant writ appeal is filed against the judgment made in W.P.(C) No.30151 of 2019 dated 22.11.2019, by which the writ court disposed of the writ petition by ordering thus:-
“4. Considering the facts and circumstances, the impugned order is set aside. The correction sought by the petitioner is allowed on payment of Rs.10,000/- (Rupees ten thousand only) towards costs. Accordingly following directions are issued:
The school authority shall forward the corrected records of the petitioner to the CBSE, within a period one month. The CBSE shall correct the records in tune with the school records as above, within a further period of two months. The petitioner shall pay a sum of Rs.10,000/(Rupees ten thousand only) towards costs to the CBSE.”
“Instant writ appeal is filed against the judgment of the learned single Judge directing the appellants to correct date of birth of
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the respondent's CBSE Certificates without considering the CBSE Bye-laws. The correction of date of birth, name of candidate, father's name, mother's name etc., are governed by the examination bye-laws of CBSE. The correction in date of birth is governed by Bye-law 69.2 as far as certificates issued prior to 2005 are concerned and by bye-law 69.3, birth certificate 2015 class IX/XII examinations onwards. As per the examination byelaw 69.2 and 69.3, the corrections that could be carried out are only to correct typographical and other errors, to make the certificates consistent with the school records. The appellants contended that the 1st respondent has, along with the writ petition, produced a birth certificate, issued on 27/05/1999 much after the date when the petitioner had passed her tenth Board Exam. The correction sought by the petitioner does not fit in the category of typographical error as there is considerable change in the date of birth. According to the appellants, the inordinate delay in approaching the Board is also not explained by the petitioner in the writ petition.”
“1. As per the examination bye-laws 69.2 and 69.3, the corrections that could be carried out are only to correct typographical and other errors, to make the certificates consistent with the school records. As per Clause 69.2, no change in the date of birth once recorded in the Board's records shall be made.
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Death, Oachira Grama Panchayat has issued Exhibit-P3 birth certificate, which is extracted hereunder:-
“FORM No.9
(See Rule 9)
GOVERNMENT OF KERALA
DEPARTMENT OF URBAN AFFAIRS
Name of Local body issuing certificate – Kasaragod Municipality
BIRTH CERTIFICATE
(Issued under Section 17 of the Registration of Births and Deaths Act, 1969 and Rule 13 of Kerala Registration of Births and Deaths Rules, 1999).
This is to certify that the following information has been taken from the original record of Birth which is the register for (Local Area/local body) Kasaragod Municipality of Tehsil Kasaragod of District Kasaragod of State Kerala.
| Name | : ABDUL SHAHEEN P. |
|---|---|
| Sex | : Male |
| Date of Birth |
: 13/03/1993(Thirteenth March Nineteen Ninety Three) |
| Place of Birth | : Fathima Hospital, Kasaragod |
| Registration No. | : 781/93 |
| Date of Registration | : 15.3.1993 |
| Name of Father/ Mother | : SHAFI/ SAIDA |
| Permanent address of Father/Mother |
: Para House, Patla P.O., Kudlu (Via), Kasaragod. |
Nationality of Father /Mother : Indian
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Date of Issue : 27.05.1999
Signature of the issuing authority/ : Sd/Address of the issuing Authority Registrar of Births & Deaths Kasaragod Municipality”
of this Court in Subin Mohammed S. v. Union of India and Others reported in 2016 (1) KLT 340, has considered the said contentions and rejected the same. Paragraphs 20 to 41 of the above said decision is extracted hereunder:-
“20. The first question to be considered in these batch of writ petitions is with reference to the authority of CBSE to reject an application for correction date of birth in the mark sheets on the ground of limitation.
“3. One of the respondents, a student, having taken his education in Government Boys Higher Secondary School, passed the matriculation examination conducted by the Board of Secondary Education, Assam, in the year 1991. Thereafter, he passed higher secondary examination and then BSc examination in the year 1998. When he filed the writ petition, he was undergoing a course of study in computers. At that point of time, on 1210-1999, he moved an application to the Board complaining that his date of birth was wrongly mentioned in the school records as 30-5-1974, while his actual date of birth was 16-8- 1975. The mistaken date of birth, as forwarded by the school, had crept into the admit card issued by the Board. The writ petitioner student pleaded that he did not realise the importance of the correct date of birth being entered into the school records, and therefore, he did not also realise the implications thereof
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until he was prompted in moving the application. The application moved by the respondent to the Principal of the school, was forwarded by the latter to the Board. The Principal indicated that the age of the respondent was entered as 16-8-1975 in the admission register and other school records, but it was by mistake that while filling the form of the Board examination, the date of birth was wrongly entered as 30-5-1974. The Principal described the mistake as “clerical” and recommended for its correction. As the Board did not take any decision on the application, the respondent filed a writ petition in the High Court.
Though the Supreme Court did not interfere with the decision to effect necessary correction as directed by the High Court, the question of law was decided as under:
“10. Nobody can claim a right to have an entry corrected in a certificate solemnly issued by an educational institution, that too the one enjoying the status of a statutory Board under the Act. The right of the applicant to have an error or mistake corrected is accompanied by a duty or obligation on the part of the Board to correct its records and the certificate issued by it. Not only it is a corresponding duty or obligation, it has also to be perceived as a power exercisable by the Board to correct an entry appearing in the certificate issued by it. People, institutions and government departments, etc. — all attach a very high degree of reliability, near finality, to the entries made
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in the certificates issued by the Board. The frequent exercise of power to correct entries in certificates and that too without any limitation on exercise of such power would render the power itself arbitrary and may result in eroding the credibility of certificates issued by the Board. We, therefore, find it difficult to uphold the contention that the applicants seeking correction of entries in such certificates have any such right or vested right.
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Even if he failed to notice the error on the date of issuance of the certificate, he would come to know the same shortly thereafter. Thus, the period of three years, as prescribed by Regulation 3, is quite reasonable. It is not something like prescribing a period of limitation for filing a suit. The prescription of three years is laying down of a dividing line before which the power of the Board to make correction ought to be invoked and beyond which it may not be invoked. Belated applications, if allowed to be received, may open a Pandora’s box. Records may not be available and evidence may have been lost. Such evidence — even convenient evidence — may be brought into existence as may defy scrutiny. The prescription of three years’ bar takes care of all such situations. The provision is neither illegal nor beyond the purview of Section 24 of the Act and also cannot be called arbitrary or unreasonable. The applicants seeking rectification within a period of three years form a class by themselves and such prescription has a reasonable nexus with the purpose sought to be achieved. No fault can be found therewith on the anvil of Article 14 of the Constitution.”
“69.2 No change in the date of birth once recorded in the Board's records shall be made. However, corrections to correct typographical and other errors to make the
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certificate consistent with the school records can be made provided that corrections in the school records should not have been made after the submission of application form for the admission to Examination to the Board.” (ii) Such correction in Date of birth of a candidate in case of genuine clerical error will be made under orders of the Chairman where it is established to the satisfaction of the Chairman that the wrong entry was made erroneously in the list of candidates/application form of the candidate for the examination.
(iii) Request for correction in Date of Birth shall be forwarded by the Head of the School along with attested Photostat copies of:
(a) Application for admission of the candidate to the School
(b) Portion of the page of admission and withdrawal register where entry in date of birth has been made along with attested copy of the certificate issued by the Municipal Authority, if available, as proof of Date of Birth submitted at the time of seeking admission; and
(c)The School Leaving Certificate of the previous school submitted at the time of admission.
iv) The application for correction in the date of birth duly forwarded by the Head of school along with documents mentioned in byelaws 69.2(iii) shall be entertained by the Board only within five years of the date of declaration of result. No correction whatsoever, shall be made on application submitted after the said period of five years.”
The period mentioned in sub clause (iv) has now been amended as under:
“The application for correction in date of birth duly forwarded by the Head of school along with documents mentioned in bye laws 69.2 (iii) shall be entertained by the Board only within one year of the date of declaration of result. No correction whatsoever, shall be made on application submitted after the said period of one year.”
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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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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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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 practised, 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 10th 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 CBSE. The only factor to be looked into is whether this Court can issue a mandamus to the CBSE to effect the correction de hors the restrictions imposed by them in their bye laws.
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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 CBSE and participates in CBSE Examinations. In such circumstances, CBSE is entitled to contend that they will not make any corrections after the period specified in the bye laws. CBSE 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 CBSE insists for birth certificate from statutory authority, before giving an admission to a candidate in CBSE 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 CBSE, all concerned are bound by the same.
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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 CBSE 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 CBSE to consider whether in a particular instance, a correction to the date of birth could be entertained or not.
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situation as envisaged, that is for reconciling the school records with the birth certificate from statutory authority, was not contemplated by CBSE in their bye laws.
“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,
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but to enforce one that 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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relied on by learned counsel for the petitioners therein, are as follows:
“When it is evident that a wrong date of birth is incorporated in the school register and mark sheet, it requires to be corrected, failing which the applicants will loose their opportunity for further studies abroad. They also relied upon the Division Bench judgment dated 5/8/2009 of this Court in WA No.1948/2008 (CBSE v. Rahul) and connected cases, Manoj Kumar v. Government of NCT of Delhi [(2010) 11 SCC 702], Arun v. Central Board of Secondary Education (2010 (1) KLT 960) and Sreeraj R.Nath v. Central Board of Secondary Education (2013 (2) KLT 430) to substantiate their contention that the CBSE can be directed to correct the date of birth in the mark sheet despite the limitation of time. Reference is also made to the judgment in Cidco v. Vasudha
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Gorakhnath Mandevlekar [(2009) 7 SCC 283], for the proposition that the Deaths and Births Register maintained by the statutory authorities raises a presumption of correctness which would prevail over an entry made in the school register especially when there is no evidence to show that the same was recorded at the instance of the guardian of the minor. Reliance is placed on Birad Mal Singhvi v. Anand Purohit (AIR 1988 SC 1796) for the proposition that the entry of date of birth in the school admission register is not conclusive. Further reference has been made to the judgment in Municipal Corporation of Delhi v. Gurnam Kaur [(1989) 1 SCC 101] and State of U.P. and another v. Synthetics and Chemicals Ltd. And another [(1991) 4 SCC 139], to contend that the judgment in Board of Secondary Education of Assam v. M.D. Sarifuz Zaman and others [(2003) 12 SCC 408], does not lay down a precedent to be followed.”
counsel for the Central Board of Secondary Education (CBSE), in Subin
Mohammed' s case supra, are extracted hereunder:
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Shah Nawaz v. State of U.P and another [(2011) 13 SCC 751]. In Ashwani Kumar Saxena (supra), the Supreme Court was considering the scope and effect of the statutory provisions under the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Rules framed thereunder. The issue had arisen in a case charge sheeted under Section 302 of the Penal Code, 1860 and certain provisions of the Arms Act, 1959. It was held that an age determination inquiry as contemplated under Section 7A of the Act read with Rule 12, enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates and only in the absence of matriculation or equivalent certificates, the Court needs to obtain the date of birth certificate from the school first attended. Further, it is held at paragraph 34 as under:
“34. Age determination inquiry contemplated under the JJ Act and the 2007 Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion, etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination.”
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“The Hon'ble Supreme Court has held that Judicial Comity is an integral part of judicial discipline and to maintain judicial discipline, corner stone of the judicial integrity requires that judgments of Coordinate Benches must be respected.
(I) In Lily Thomas vs. Union of India, reported in 2000 (6) SCC 244, the Hon'ble Supreme Court, reiterated the principle that rulings of Larger Bench should be followed and those of Coordinate Bench of equal strength not to be different from and most be followed.
(ii) In fact, the Hon'ble Supreme Court has criticised the decisions of Coordinate Benches, which have not followed the earlier judgments by another Coordinate Bench. Hon'ble Supreme Court in Official Liquidator v. Dayanand and others, reported in (2008) 10 SCC 1, wherein at paragraph Nos.90 and 91, held thus:-
"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave
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impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.
(iii)Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. (See Pradip Chandra Parija v. Pramod Chandra Patnaik, reported in
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2003 (7) SCC 01, SCC at paras 6 and 7; followed in Union of India v. Hansoli Devi, reported in 2002 (7) SCC 01, SCC at para 2.) But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores, reported in AIR 1966 SC 1686 and K.K. Narula, reported in AIR 1967 SC 1368, both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority.”
In the result, writ appeal is dismissed. No costs.
Sd/S. Manikumar, Chief Justice
Sd/Shaji P. Chaly, Judge
Shaji P. Chaly,
sou.
2 issues framed by the court
Should the direction to correct the date of birth in CBSE records be reversed on objections based on examination bye-laws and delay?
Was the coordinate Bench decision in Subin Mohammed binding on this Bench?
Colour shows how this judgement treated each authority
Subin Mohammed S. v. Union of India and OthersFollowed¶65
Subin Mohammed S. v. Union of India and Others reported in 2016 (1) KLT 340
Lily Thomas vs. Union of IndiaRelied on¶168
Lily Thomas vs. Union of India, reported in 2000 (6) SCC 244 · Who else cites this
Official Liquidator v. Dayanand and othersRelied on¶169
Official Liquidator v. Dayanand and others, reported in (2008) 10 SCC 1 · Who else cites this
Pradip Chandra Parija v. Pramod Chandra PatnaikRelied on¶175
2003 (7) SCC 01 · Who else cites this
Union of India v. Hansoli DeviRelied on¶178
Union of India v. Hansoli Devi, reported in 2002 (7) SCC 01 · Who else cites this
Kalyani StoresReferred¶178
Kalyani Stores, reported in AIR 1966 SC 1686 · Who else cites this
K.K. NarulaReferred¶178
K.K. Narula, reported in AIR 1967 SC 1368 · Who else cites this
THE CENTRAL BOARD OF SECONDARY EDUCATION
THE REGIONAL OFFICER, CENTRAL BOARD OF SECONDARY EDUCATION, CHENNAI
THE REGIONAL OFFICER, CENTRAL BOARD OF SECONDARY EDUCATION, THIRUVANANTHAPURAM
ABDUL SHAHEEN.P
THE UNION OF INDIA
THE APSARA PUBLIC SCHOOL
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
