Writ appeal by the CBSE against a single Judge's direction to correct a candidate's date of birth in its certificates on the strength of a municipal birth certificate. The Division Bench held the CBSE bye-laws on correction binding but found the earlier Division Bench decision in Subin Mohammed binding, and dismissed 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.1451 OF 2020
AGAINST THE JUDGMENT IN WP(C) 34953/2019(T) OF HIGH COURT OF KERALA DATED 19.12.2019
APPELLANTS/RESPONDENTS 1, 2 & ADDL 4TH RESPONDENT IN WPC:
2 THE REGIONAL OFFICER, CBSE REGIONAL OFFICE, BLOCK-B, 2ND FLOOR, LIC DIVISIONAL OFFICE CAMPUS, PATTOM, THIRUVANANTHAPURAM-695 004
3 REGIONAL OFFICER, CENTRAL BOARD OF SECONDARY EDUCATION, REGIONAL OFFICE, NEW PLOT NO.3, 16TH MAIN ROAD, J BLOCK, ANNA NAGAR (WEST) ANNA NAGAR P.O., CHENNAI-600 040, (WRONGLY SHOWN IN THE CAUSE TITLE AS “THE CBSE REGIONAL MANAGER, UNNANAGAR, CHENNAI”)
BY ADV. SRI.NIRMAL S., SC, CBSE
RESPONDENTS/PETITIONER & 3RD RESPONDENT IN WPC:
1 JUVIA.J.KOSHI AGED 28 YEARS, D/O.JOSE K.MATEW, THOTTATHIL KADAYIL KUZHIYAM, KOTTUKKAL MANJAPPARA, KOTTARAKKARA, KOLLAM-691 533
2 THE PRINCIPAL, SABARIGIRI SENIOR SECONDARY SCHOOL, THOLICODU, PUNLAUR, KOLLAM-691 305
R1 BY ADV. SRI. VINOY VARGHESE KALLUMOOTTIL
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.34953 of 2019 dated19.12.2019, by which the writ court issued the following directions:-
i. The school authority, based on the birth certificate issued by the local authority and on being satisfied with the genuineness of such certificate shall cause correction in the school records within one month and forward the school records to the CBSE without any delay.
ii. Thereafter, the CBSE shall act upon such records and cause correction of the CBSE certificate within a further period of two months.
iii. Needless to say, the school authority and the CBSE shall correct the date of birth, only on being satisfied with the genuineness of birth certificate produced by the petitioner.
iv. Considering the delay involved in the matter, the petitioner shall pay a sum of Rs.5,000/-(Rupees five thousand only) to the CBSE.”
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3. Shorts facts leading to the appeal are as under:
“Instant writ appeal is filed against the judgment of the learned single Judge directing the appellants to correct date of birth of 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 9.12.2013 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
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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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from the stipulated bye-laws and issue corrected mark list in compliance of court direction.”
“FORM No.5
(See Rule 8)
GOVERNMENT OF KERALA
DEPARTMENT OF URBAN AFFAIRS
Name of Local body issuing certificate - Thiruvananthapuram Corporation
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) Thiruvananthapuram Corporation of Thiruvananthapuram Taluk of Thiruvananthapuram District of State Kerala.
Name : JUVIA J KOSHY Sex : Female Date of Birth :06/01/1991(Six/January/One Thousand Nine Hundred and Ninety one)
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Place of Birth : S A T Hospital, Thiruvananthapuram Name of Mother : VALSA JOSE Name of Father : JOSE K. MATHEW
Address of the parents at the time of birth of child : *** Not available
Permanent address of parents : NAGAMALA ESTATE, KAZHUTHURUTHI P.O, Registration No. : 219/1991 Date of Registration : 09/01/1991 Remarks (if any) : *** The original recordS do not contain the column relating to the address of parents at the time of birth of the child. Date of Issue : 09.12.2013
Signature of the issuing authority/ : Sd/Address of the issuing Authority Registrar of Births & Deaths Corporation of Thiruvananthapuram”
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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 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.
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dismissal of the writ petition. A writ appeal was preferred by the respondent. The Division Bench has allowed the appeal, set aside the judgment of the learned Single Judge and allowed the relief sought for by the respondent by issuing a writ of mandamus to the Board. Feeling aggrieved, the Board has filed these appeals by special leave.”
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 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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stand settled and uncertainty is lost. Regulation 8 confers a right on the applicant and a power coupled with an obligation on the Board to make correction in the date of birth subject to the ground of wrong calculation or clerical error being made out. A reasonable procedure has been prescribed for processing the application through the Inspector of Schools who would verify the school records and submit report to the Board so as to exclude from consideration the claims other than those permissible within the framework of Regulation 8. Power to pass order for correction is vested on a high functionary like Secretary of the Board. An inaccuracy creeping in at the stage of writing the certificates only, though all other prior documents are correct in all respects, is capable of being corrected within a period of three years from the date of issuance of certificate.
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23. Rule 69.2, which is relevant, reads as under:
“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 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
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(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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Birth Certificate since that is the contemporaneous understanding all through the years in which the regulation has been in operation.
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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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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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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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students. The said judgment cannot be termed as a binding precedent to disable CBSE 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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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) 15 SCC 731)].The writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. [Food Corpn. 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) 5 SCC 470], it is held as under:
“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 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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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 formality, or when it is obvious that the opposite party would not consider the demand.”
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the birth certificate. That apart, the Apex Court was considering a statutory regulation.
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Institution or such other method, CBSE may deem it fit. iii) CBSE can demand in advance a consolidated fee, including all expenses for processing such applications. iv) Each of the petitioners shall pay Rs.5,000/- (Rupees Five thousand only) as cost to CBSE within a period of one month.”
7. In Subin Mohammed 's case (supra), some of the decisions
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 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
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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.”
“18. The learned counsel for CBSE, while supporting the stand taken by CBSE contended that none of these cases relate to a correction of date of birth in the mark sheet. In all these cases, the mark sheets reflected the date of birth as shown in the school registers, which were consciously given by the parents and the applicants had sufficient opportunity to seek correction at least before the Board Examinations, by giving genuine reasons. He also relied upon Ashwani Kumar Saxena v. State of Madhya Pradesh [(2012) 9 SCC 750] and 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
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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 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
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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 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
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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
sou.
1 issue framed by the court
Whether CBSE can be directed to correct the date of birth in a candidate's mark sheet on the basis of a birth certificate issued by the statutory authority, despite the limitation prescribed in its ex
Colour shows how this judgement treated each authority
Subin Mohammed S. v. Union of IndiaFollowed¶6
Subin Mohammed S. v. Union of India and Others reported in 2016 (1) KLT 340
2 provisions across 1 enactments
Central Board of Secondary Education rep. by its Secretary
The Regional Officer, CBSE Regional Office, Thiruvananthapuram
Regional Officer, Central Board of Secondary Education, Regional Office, Anna Nagar, Chennai
Juvia J. Koshi
The Principal, Sabarigiri Senior Secondary School
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
