The Controller Of Examinations vs Neeraja J on 3 November, 2021

[Cites 5, Cited by 0]

Kerala High Court

The Controller Of Examinations vs Neeraja J on 3 November, 2021

This appeal is against the judgment of the learned Single Judge, directing the additional 4 th respondent to carry out necessary correction in the name of the father and mother of the petitioner/ the 1st respondent herein, in accordance with Ext.P1 Birth Certificate, at the earliest and at any rate within six weeks from the date of receipt of a copy of the application.

2. The appellants seem to be labouring under a misconception that the directions issued would go contrary to the judgment of the Hon'ble Supreme Court in Jigya Yadav v. C.B.S.E. [2021 (3) KLT 711 SC)]. It is also pointed out that the learned Single Judge has followed Subin Mohammed v. Union of India (2016 (1) KLT 340), which has been overruled by the Hon'ble Supreme Court in Jigya Yadav (supra). It is contended that the CBSE can only make corrections to the Date of Birth in accordance with school records. It is also pointed out that another W.A.No.926 of 2020 3 Division Bench of this Court in Writ Appeal No.1184 of 2021, dated 27.09.2021, has directed such applications to be considered in accordance with Jigya Yadav (supra).

3. We are unable to agree with the contention of the appellants that the directions run contrary to Jigya Yadav (supra) and that in the facts arising in this case, no such direction can be issued. We also do not see any difficulty created by the Division Bench judgment placed before us which only directed consideration in accordance with Jigya Yadav (supra).

4. On the reversal of Subin Mohammed (supra), it is to be noted that the Hon'ble Supreme Court was considering requests for multifarious corrections in certificates and the procedure was stream lined in Jigya Yadav (supra). Para 163 & 164 reads as follows:-

"163. The impugned judgments categorically note that the request for changes could not be permitted as per the Byelaws. Thus, there was no demonstration or inquiry to determine the existence of any legal right in favour of students. Even if we assume that courts issued directions purely on the basis of fundamental rights, there is no discussion or inquiry in this regard. More so, there is no attempt to examine the vires of the Byelaws in light of the breach of fundamental rights, as discussed in the initial part of this judgment. Absent any such adverse determination on the validity of the applicable rules, the fundamental principle of rule of law demands that such rules be given their intended effect. Even if a W.A.No.926 of 2020 4 constitutional Court feels that the case at hand is deserving of an extraordinary remedy, it may do so using its wide powers under Article 226 but only upon specific appraisal of the facts of the case and after duly demonstrating the extraordinary character of the case. Despite holding that the prayers are impermissible under the Byelaws, the Courts in the present set of cases went on to issue directions to the Board without having any regard to the factual circumstances of the case or to the nature of changes sought by the students, by mechanically relying upon the dictum in Subin Mohammed (supra). We must note that Subin Mohammed (supra) is not challenged before us but must be now understood in terms of opinion recorded in this judgment. Our concern is with the manner in which mechanical reliance has been placed upon the earlier decision for deciding cases which involved an altogether different set of changes.

164. Once a court of law notes that the applicable rules do not permit it to grant a particular relief and it still goes on to grant the relief on sympathetic grounds, such decisions can in no way be treated as precedents. We are constrained to note that following such decision as precedent will be in utter disregard of the well established principle of "equity acts in personam"

and, thus, courts cannot deploy equity in "rem" by replicating the same order, disregarding the personal characteristics of the case at hand. There can be no application of Subin Mohammed (supra) to a different set of facts".

5. There was no reversal of Subin Mohammed (supra), but the caution expressed by the Hon'ble Supreme Court was that when the Byelaws do not permit request for changes, then necessarily, there should be an enquiry made by the Court, with W.A.No.926 of 2020 5 reference to the legal right in favour of students. It was also held that, even if it was assumed that the Courts could issue directions purely on the basis of fundamental rights, there should be an enquiry into the facts and a discussion as to why the extraordinary powers under Article 226 of the Constitution of India is to be invoked. The Hon'ble Supreme Court deprecated the practice of noticing the prayers to be impermissible under the Byelaw and still mechanically relying upon the dictum in Subin Mohammed (supra), without having any regard to the factual circumstances of the case or to the nature of changes sought by the students. Subin Mohammed (supra) was said to be on its own facts, also to be understood in terms of the opinion expressed by the Hon'ble Supreme Court in Jigya Yadav (supra). Subin Mohammed (supra) has not been overruled.

6. The conclusions and directions of the Hon'ble Supreme Court in Jigya Yadav (supra) reads as such:

"170. The first is where the incumbent wants "correction" in the certificate issued by the CBSE to be made consistent with the particulars mentioned in the school records. As we have held there is no reason for the CBSE to turn down such request or attach any precondition except reasonable period of limitation and keeping in mind the period for which the CBSE has to maintain its record under the extant regulations. While doing so, it can certainly insist for compliance of other conditions by the incumbent, such as, to file sworn affidavit making necessary declaration and to indemnify W.A.No.926 of 2020 6 the CBSE from any claim against it by third party because of such correction. The CBSE would be justified in insisting for surrender/return of the original certificate (or duplicate original certificate, as the case may be) issued by it for replacing it with the fresh certificate to be issued after carrying out necessary corrections with caption/ annotation against the changes carried out and the date of such correction. It may retain the original entries as it is except in respect of correction of name effected in exercise of right to be forgotten. The fresh certificate may also contain disclaimer that the CBSE cannot be held responsible for the genuineness of the school records produced by the incumbent in support of the request to record correction in the original CBSE certificate. The CBSE can also insist for reasonable prescribed fees to be paid by the incumbent in lieu of administrative expenses for issuing fresh certificate. At the same time, the CBSE cannot impose precondition of applying for correction consistent with the school records only before publication of results. Such a condition, as we have held, would be unreasonable and excessive. We repeat that if the application for recording correction is based on the school records as it obtained at the time of publication of results and issue of certificate by the CBSE, it will be open to CBSE to provide for reasonable limitation period within which the application for recording correction in certificate issued by it may be entertained by it. However, if the request for recording change is based on changed school records post the publication of results and issue of certificate by the CBSE, the candidate would be entitled to apply for recording such a change within the reasonable limitation period prescribed by the CBSE. In this situation, the candidate cannot claim that she had no knowledge about the change recorded in the school records because such a change would occur obviously at her instance. If she makes such application for correction of the school records, she is expected to apply to the CBSE immediately after the school records are modified and which ought to be done within a reasonable time. Indeed, it would be open to the CBSE to reject the application in the event the period for preservation of official records under the extant regulations had expired W.A.No.926 of 2020 7 and no record of the candidate concerned is traceable or can be reconstructed. In the case of subsequent amendment of school records, that may occur due to different reasons including because of choice exercised by the candidate regarding change of name. To put it differently, request for recording of correction in the certificate issued by the CBSE to bring it in line with the school records of the incumbent need not be limited to application made prior to publication of examination results of the CBSE.

171. As regards request for "change" of particulars in the certificate issued by the CBSE, it presupposes that the particulars intended to be recorded in the CBSE certificate are not consistent with the school records. Such a request could be made in two different situations. The first is on the basis of public documents like Birth Certificate, Aadhaar Card/Election Card, etc. and to incorporate change in the CBSE certificate consistent therewith. The second possibility is when the request for change is due to the acquired name by choice at a later point of time. That change need not be backed by public documents pertaining to the candidate.

(a) Reverting to the first category, as noted earlier, there is a legal presumption in relation to the public documents as envisaged in the 1872 Act. Such public documents, therefore, cannot be ignored by the CBSE. Taking note of those documents, the CBSE may entertain the request for recording change in the certificate issued by it. This, however, need not be unconditional, but subject to certain reasonable conditions to be fulfilled by the applicant as may be prescribed by the CBSE, such as, of furnishing sworn affidavit containing declaration and to indemnify the CBSE and upon payment of prescribed fees in lieu of administrative expenses. The CBSE may also insist for issuing Public Notice and publication in the Official Gazette before recording the change in the fresh certificate to be issued by it upon surrender/return of the original certificate (or duplicate original certificate, as the case may be) by the applicant. The fresh certificate may contain disclaimer and caption/annotation against the original entry (except in respect of change of name effected in exercise of right to W.A.No.926 of 2020 8 be forgotten) indicating the date on which change has been recorded and the basis thereof. In other words, the fresh certificate may retain original particulars while recording the change along with caption/annotation referred to above (except in respect of change of name effected in exercise of right to be forgotten).

(b) However, in the latter situation where the change is to be effected on the basis of new acquired name without any supporting school record or public document, that request may be entertained upon insisting for prior permission/declaration by a Court of law in that regard and publication in the Official Gazette including surrender/ return of original certificate (or duplicate original certificate, as the case may be) issued by CBSE and upon payment of prescribed fees. The fresh certificate as in other situations referred to above, retain the original entry (except in respect of change of name effected in exercise of right to be forgotten) and to insert caption/annotation indicating the date on which it has been recorded and other details including disclaimer of CBSE. This is so because the CBSE is not required to adjudicate nor has the mechanism to verify the correctness of the claim of the applicant".

7. This particular case has to be examined on the basis of the 1st category of cases referred to by the Hon'ble Supreme Court in para 171 with specific reference to the 'change of particulars in the certificate issued by CBSE' which are sought for by the petitioner. The Hon'ble Supreme Court specifically notices that when a request is made on the basis of public documents like Birth Certificate, Aadhar Card, Election Card etc., to incorporate change in the CBSE certificate consistent therewith, then such public documents cannot be ignored by the CBSE, which has a special W.A.No.926 of 2020 9 sanctity by virtue of the Evidence Act, 1872. It is true that the right is not unconditional, but, subject to certain reasonable conditions to be fulfilled by the applicant as may be prescribed by the CBSE; which as enumerated by the Hon'ble Supreme Court are: furnishing of sworn affidavit containing declaration to indemnify the CBSE, payment of prescribed fees in lieu of administrative expenses, issuance of public notice and publication in the Official Gazette, if warranted, before recording the change in the fresh certificate to be issued; upon surrender or return of the original certificate. The fresh certificate can also contain a disclaimer and caption or annotation against the original certificate indicating the date on which change has been recorded.

8. In the present case, we see that the petitioner relies on the Birth Certificate, issued by the Local Self Government Institution, whose Secretary is the Registrar of Births and Deaths. The registration as indicated in Ext.P1 is dated 15.06.1998 and the principle of ante litem motam applies squarely. There can be no prior motive alleged for distorting the facts, before the controversy originated. The change sought by the petitioner is only with respect to the names of her parents which differ from that recorded in the Birth Certificate. It is definitely due to some inadvertent omission of the parent or the person who first W.A.No.926 of 2020 10 admitted the petitioner to the School, not strictly attributable to the petitioner. The change has been necessitated only on the petitioner attempting to go abroad. The difference in the name of the parents as seen from Ext.P1 was noticed only when the petitioner applied for a Birth Certificate to facilitate the foreign travel. Obviously, different names in the Birth Certificate and the School Certificate would put the petitioner's credibility into question in a foreign university. This is an extraordinary circumstance, under which this Court could invoke Article 226 of the Constitution of India. As we noticed, the Hon'ble Supreme Court in Jigya Yadav (supra) specifically, spoke of the situations, when Article 226 of the Constitution of India could be invoked and a direction be issued. We do not find any different dictum having been laid down by another Division Bench in Writ Appeal No.1184 of 2021 nor could that be made, when the Hon'ble Supreme Court has spoken on the issue under Article 141 of the Constitution of India. The Register of Births And Deaths maintained by the Registrar of Births and Deaths, constituted by statute is a public document and the certificate issued by the Registrar is acceptable evidence under the Evidence Act.

In such circumstances, we find no reason to entertain the appeal and we dismiss the appeal, directing the CBSE to W.A.No.926 of 2020 11 comply with the directions in the judgment, however, with the condition of payment of fees and any other condition required by the CBSE, as noticed in Jigya Yadav (supra). The writ appeal is dismissed without any order on costs.

Sd/-

K.VINOD CHANDRAN JUDGE Sd/-

C.JAYACHANDRAN JUDGE NR/03/11/2021

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Kerala High Court