Kerala High Court
Shihabudeen Shibu vs Union Of India on 17 January, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 17TH DAY OF JANUARY 2024 / 27TH POUSHA, 1945
WP(C) NO. 2716 OF 2020
PETITIONER:
SHIHABUDEEN SHIBU,
AGED 50 YEARS,
S/O. SHAHABUDEEN, SHEEJA MANZIL, PAKALKURY (P.O),
THIRUVANANTHAPURAM-695 604.
BY ADVS.
M.DINESH
SRI.C.S.SATHEESH (PALLICKAL)
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF EXTERNAL AFFAIRS,
NEW DELHI - 110 001.
2 THE PASSPORT OFFICER,
74 BUILDING, MC VIII/1578/715A, SN TRUST COMPLEX,
NEAR KOLLAM MUNICIPAL CORPORATION OFFICE,
VELLAPPALLY NAGAR, VELLAPPALLY P.O., KOLLAM,
KERALA-691 320.
3 THE ASSISTANT PASSPORT OFFICER,
PASSPORT SEVA KENDRA, 74 BUILDING MC VIII/1578/715A,
SN TRUST COMPLEX, VELLAPPALLY NAGAR, VELLAPPALLY P.O.,
KARBALA, KOLLAM, KERALA, PIN - 691 320.
BY ADV SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI.S.MANU (DSGI)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 2716 OF 2020
2
JUDGMENT
The petitioner has approached this Court challenging the denial of correction of date of birth of the petitioner in the passport issued to the petitioner. It is not in dispute that the first passport issued to the petitioner was so issued on 06.01.1994 where the date of birth of the petitioner is shown as 25.05.1970.
It is the case of the petitioner with reference to Exts.P2 to P4 documents that the actual birth of the petitioner is 04.04.1977.
The application for correction of date of birth has been rejected / closed on the ground that it was filed beyond time and with an unreasonable delay. It is not disputed that the petitioner has been holding passports [which had been re-issued from time to time] from 06.01.1994 and the current passport of the petitioner bearing No.N4016060 is valid till 08.03.2026 and there also the date of birth of the petitioner is shown as 25.05.1970.
2. The learned Deputy Solicitor General of India appearing for 2nd respondent would submit that where the application for correction of date of birth is not made within a WP(C) NO. 2716 OF 2020 3 reasonable time, the application can only be rejected and this is settled by a Division Bench judgment of this Court in Vasu Sasi v. Union of India and Others [2020 SCC OnLine Kerala 2947], where it was held as follows:-
"8. On a reading of the provisions of the memorandums above, it is clear that no application for correction of date of birth can be entertained after 5 years from the date of issuance of the passport, which were issued revising the 2010 manual, and the sole exception is to a minor at the time of issuance of passport, for which separate procedure is prescribed. Anyhow the appellant has no case that he was a minor at the time of issuance of the passport. Evidently, the appellant has not challenged the office memorandums above issued by the Government of India, Ministry of External Affairs in that regard also.
9. Therefore, the sole question now comes up for consideration is whether the learned Single Judge was right in dismissing the writ petition upholding the act of the Passport Officer in returning the application for correction. In fact, the issue in question was considered by a learned Single Judge of this Court in Jayakumar and others v. Regional Passport Officer, Tvm (2015 (3) KHC 763), wherein it was held that the passport is a solemn document and the details entered therein cannot be lightly interfered with, that too after many years without any sustainable cause and without any explanation as to WP(C) NO. 2716 OF 2020 4 why initially such a wrong declaration was made and why now a change is sought for. Taking into account the provisions of the manual existing then, in the matter of correction of date of birth ranging from 5 years to 7 years and the submission of application after a long lapse, it was held that no writ can be issued for correction of date of birth in passports, having unexplained and undue delay. The case at hand is not different, since the delay of a long number of years is not explained at all. Even Though the passport in question is seen issued for a period of ten years from 2014, it is evident that previously the writ petitioner was holding passport No. E8532073 dated 25.03.2004 issued at Dubai. This also means that the writ petitioner was holding a passport prior to the one specified above, may be for an earlier period of 10 years which was renewed at Dubai. Therefore, it is explicit that there is an unexplained delay of several years, and the writ petitioner himself knew that it cannot be explained, which may be the reason for not specifying the date of original issue of passport, a mandatory requirement to consider an application as per the office memorandums supra.
10. In fact, the Government of India has issued the office memorandums subsequent to the judgment of the learned single Judge in Jayakumar (supra) and it was taken note of in the office memorandum that unless and until the delay is properly explained and that too within the period prescribed, applications cannot be considered by the Passport Issuing Authority.
WP(C) NO. 2716 OF 2020 5
11. Anyhow, the learned counsel for the appellant has invited our attention to the compendium of instructions/guidelines said to be issued during the year 2018, especially clause 6.2 dealing with the correction of date of birth or place of birth in the passport to contend that irrespective of any time line, the authority has to consider an application for correction of date of birth, which reads thus:
"6.2 Where an applicant claims clerical/technical mistake in the entry relating to birth/place of birth in the passport and seeks rectification In all such cases, the documents produced earlier as proof of date of birth/place of birth at the time of issue of passport may be perused (if not already destroyed) by the issuing PIA. In case, it is a mistake either by the applicant or a clerical mistake by the issuing PIA, date/place of birth correction may be allowed by issue of fresh booklet without any limitation of time. In case of mistake by the applicant, fee for fresh passport to be charged and in case of mistake by the PIA staff, fresh passport to be issued on 'gratis' basis [as mentioned in Ministry's circular No. VI/401/2/5/2001 dated 29/10/2007].
6.3 If an applicant applies for correction of date of birth in the passport on the basis of a fresh or corrected birth certificate (the original BC was submitted earlier for issue of the first WP(C) NO. 2716 OF 2020 6 passport), the following procedure be followed:
a) In case of furnishing of a new amended BC with the same date of issue and registration number of the old BC by the same authority, application for change in DOB be processed subject to physical verification of the new BC;
b) In case of furnishing of a new BC by a different authority in replacement of old BC by another authority, the PIA shall insist on cancellation of the old BC and after physical verification of the cancellation certificate and the fresh BC from issuing authorities, application for change in DOB be processed;
c)In case of furnishing of a new BC where the first passport was obtained using other documents like educational school certificates etc., application for change in DOB be processed subject to physical verification of the new BC and other supplementary documents (if required);
6.4 The PIA shall however reject cases where the old birth certificate or other DOB documents used to obtain the first passport, were issued even before the new date of birth claimed by the applicant. (Obviously, the old certificates were in existence before the new DOB of the applicant) 6.5 In case of DOB change applications based on fraudulent documents or /and suppression of material information or/and furnishing of WP(C) NO. 2716 OF 2020 7 wrong information, the Passport Authorities shall take appropriate steps for imposition of monetary penalty OR filing of criminal case against the offender applicant, as the case may be, in terms of the statutory provision of Section 12 of the Passports Act, 1967.
6.6 In no way, the PIA shall relegate the applicants to obtain a declaratory court order to carry out change in date of birth, as per earlier procedure."
12. On an appreciation of the said provisions also, we are of the view that the procedure as above is prescribed on specific instances and going by the case projected by the appellant, we do not think that the appellant is entitled to get any benefit out of the same, since the appellant is not having a case that the application was submitted by the appellant based on any new or corrected birth certificate issued by the Authority under the Births and Deaths Act. On the other hand, clause 6.4 above makes it clear that the Passport Issuing Authority shall reject the case where the old birth certificate or the other date of birth documents which were used to obtain the first passport, were issued even before the new date of birth claimed by the applicant. As discussed above, the original entry in the birth certificate issued by the statutory authority shows the date of birth of the appellant as 20.12.1965 and therefore, even going by the procedure so prescribed, the appellant is not entitled to get any relief out of the same, since there is no correction of date of birth. Moreover the birth WP(C) NO. 2716 OF 2020 8 certificate issued by the statutory authority is the conclusive proof of the age and no manner of prejudice is caused to the appellant in that regard especially when the appellant had the advantage of securing any employment from an anterior date abroad by virtue of the date of birth in the passport.
13. So much so, as we have pointed out earlier, there is no challenge to the office memorandums extracted above, wherein peremptory stipulations are prescribed in the matter of entertainment of the application for correction of date of birth. Therefore, in our view, the stand taken by the Passport Issuing Authority, Kollam returning the application to the appellant cannot be said to be illegal or arbitrary, justifying interference by the writ court. A writ court need only endeavour to identify whether there was any gross illegality or arbitrariness on the part of the statutory authority in discharging his function by exercising his power and authority. Taking into account the points raised by the appellant/writ petitioner in the appeal, the office memorandums, and the judgments rendered by this Court discussed above, we are of the opinion that the appellant has not made out any case justifying interference in the judgment of the learned single Judge."
In the light of the law laid down by a Division Bench of this Court in Vasu Sasi (supra), I am of the view that the petitioner is not entitled to any relief as the first application for correction of WP(C) NO. 2716 OF 2020 9 date of birth was filed only on 31.01.2019 though a passport showing the date of birth of the petitioner as 25.05.1970 was first issued on 06.01.1994.
The writ petition fails and it is accordingly dismissed.
Sd/-
GOPINATH P. JUDGE DK WP(C) NO. 2716 OF 2020 10 APPENDIX OF WP(C) 2716/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE RELEVANT EXRACT OF THE PASSPORT OF THE PETITIONER BEARING NO.N.4016060.
EXHIBIT P2 TRUE COPY OF BIRTH CERTIFICATE ISSUED FROM THE KALLUVATHUKKAL GRAMA PANCHAYATH DATED 6.3.2019.
EXHIBIT P3 TRUE COPY OF THE ELECTION IDENTITY CARD ISSUED TO THE PETITIONER.
EXHIBIT P4 TRUE COPY OF AADHAR CARD ISSUED TO THE PETITIONER.
EXHIBIT P5 TRUE COPY OF ONLINE APPLICATION SUBMITTED BY PETITIONER BEFORE THE MINISTRY OF EXTERNAL AFFAIRS, GOVERNMENT OF INDIA.
EXHIBIT-P6 TRUE COPY OF THE PASSPORT NO.R-
359044 ISSUED ON 6.1.1994 IN THE NAME OF PETITIONER EXHIBIT-P7 TRUE COPY OF THE PASSPORT NO.F-
4969801 ISSUED TO THE PETITIONER FROM CONSULATE GENERAL OF INDIA, JEDDAH ISSUED ON 19.11.2005