Delhi District Court
Prateek Gupta vs Central Board Of Secondary Education on 28 October, 2022
IN THE COURT OF SH. MANOJ KUMAR, SENIOR CIVIL JUDGE-
CUM-RENT CONTROLLER (EAST), KARKARDOOMA COURTS:
DELHI
CNR No. DLET03-000537-2020
CS No.: 305/20
Prateek Gupta
S/o Sh. Santosh Kumar Gupta,
R/oC-7/244, NavinNiketan,
S.D.A., New Delhi -110016
.........Plaintiff
Versus
Central Board of Secondary Education
Through its Chaiperson
"Shiksha Kendra", 2, Community Centre,
Preet Vihar, Delhi - 110092
......... Defendant
Date of Institution : 17.08.2020
Date of reserving of judgment : 28.10.2022.
Date of pronouncement of Judgment : 28.10.2022.
CS No.: 305/20 Page 1 of 12
Suit for Declaration and Mandatory Injunction
JUDGMENT
1. By this judgment, the court shall decide the present suit.
2. Succinctly stated, the case of the plaintiff is that plaintiff was born on 21.01.1997 in Shubhkamna Nursing Home at Varanasi. The mother of the plaintiff Late Ms. Reena Gupta was expired / passed away on 24.06.2003 at Varanasi. After the death of the mother of the plaintiff in 2003, the father of the plaintiff Sh. Santosh Kumar Gupta deserted the plaintiff and his sister and broke all relationship. It is further stated that plaintiff and his sister then minors at the time of death of her mother in 2003 and shifted to the home of maternal grandparents who incidentally lived in Varanasi and have been their custody since then. The maternal grandfather got him admitted in William Henry Smith Memorial School, Sigra, Varanasi in the year 2003. It is further stated that maternal grandfather of his own common sense recorded plaintiff date of birth as 21.01.1998 as the family had no concern with the child's father. Plaintiff completed his studies upto 5th Standard from William Henry Smith Memorial School, Sigra, Varansi and thereafter the maternal grandfather of the plaintiff admitted him in G.D. Birla Memorial School, CS No.: 305/20 Page 2 of 12 Ranikhet in 6th Standard. The maternal aunt got plaintiff admitted in Laxman Public School, Hauzkhas, New Delhi in year 2009 and recorded the date of birth of the plaintiff on the basis of school leaving certificate containing date of birth as 21.01.1998.
3. It is stated that sister of the plaintiff Ms. Pragya Gupta when applied for her new passport on 18.12.2019 came to know that her father Sh. Santosh Kumar Gupta already has passport issued in favour of plaintiff's sister, in the year 1999. Plaintiff and her sister with the help of some relatives contacted their father in December, 2019. The father of the plaintiff intimated the plaintiff that he got the passport issued for plaintiff in the year 1999 and also intimated that date of birth of the plaintiff is 21.01.1997 and not 21.01.1998 as recorded by the grandfather of the plaintiff.
4. It is stated that plaintiff approached the defendant/CBSE for correction of his date of birth in the certificates issued for 10 th and 12th standard. However, defendant refused to correct the same. The plaintiff was born on 21.01.1997 as per the birth certificate issued by Nagar Nigam, Varanasi whereas the date of birth in the school records of the defendant is 21.01.1998 which was indicated by the maternal grandfather on the basis of own memory.
CS No.: 305/20 Page 3 of 12
5. Thus, on the above stated grounds, plaintiff has prayed for a decree of declaration in favour of plaintiff and against the defendant thereby declaring the date of birth of plaintiff as "21.01.1997". Plaintiff also prayed for a decree of mandatory injunction in favour of plaintiff and against the defendant thereby directing the defendant for correction in date of birth of plaintiff as 21.01.1997 in the records and re-issue the corrected certificate to the plaintiff.
6. The defendants filed written statement (WS) to the plaint, interalia contending that the Central Board of Secondary Education is a Society which was created pursuant to Government Notification. It is stated that CBSE also known as CBSE is an autonomous society, which is fully self- financed. It is stated that C.B.S.E frames its own rules and is governed by them. C.B.S.E has its rules and regulations regarding change of name/candidate father name/candidate mother name. It is further stated that the suit of the plaintiff is not tenable in view of the amended Rule 69.2 (i) of the Examination By-Laws of the Central Board of Secondary Education. It is stated that no change in the date of birth once recorded in the board's record CS No.: 305/20 Page 4 of 12 shall be made. The application for correction in date of birth duly forwarded by the Head of School along-with documents mentioned in the bye-laws 69.3(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 the application submitted after the said period of five years. Ld. Counsel for the defendant relied upon the judgment of Hon'ble High Court of Delhi in "Paramjeet Kaur Vs. CBSE" WP(C) 3484/2008. It is further stated that plaintiff has filed the present suit without any cause of action and as such, the same is liable to be dismissed under Order VII Rule 11 CPC.
7. The plaintiff has not filed replication to the written statement filed by the defendant.
ISSUES
8. The following issues were framed in the present matter:-
1. Whether the present suit is liable to be rejected under Order VII Rule 11 CPC for not having any cause of action ? OPD
2. Whether the present suit is not maintainable under Rule 69.2 of the Examination Bye Laws of CBSE and is liable to be dismissed ? OPD
3. Whether plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP CS No.: 305/20 Page 5 of 12
4. Whether plaintiff is entitled to decree of declaration as prayed for ?
OPP
5. Relief, if any.
EVIDENCE:
9. In order to prove the case, Sh. Prateek Gupta examined as PW-1. He tendered his evidence by way of affidavit Ex.PW1/A. He replied upon the following documents :-
1. The copy of birth certificate and passport of witness is Ex.PW1/1 (OSR)and Ex.PW1/2 (OSR).
2. The copy of death certificate of mother of plaintiff Ex.PW1/3 is today de-exhibited and marked as Mark A.
3. The copy of 10th mark-sheet of witness is Ex.PW1/4 (OSR).
4. The copy of application in last attended school to change date of birth of plaintiff is Ex.PW1/5.
10. The plaintiff's evidence was closed on 21.12.2021. Defendant did not lead DE in his defence. So, DE was closed on 08.07.2022.
11. This Court has heard the final arguments advanced by the respective counsels for the plaintiff and the defendant and the entire record is carefully perused.
CS No.: 305/20 Page 6 of 12 APPRECIATION OF EVIDENCE AND LEGAL POSITION:
12. The Issue-wise findings are as under:-
Issue no.1 & 2
1. Whether the present suit is liable to be rejected under Order VII Rule 11 CPC for not having any cause of action ? OPD
2. Whether the present suit is not maintainable under Rule 69.2 of the Examination Bye Laws of CBSE and is liable to be dismissed ? OPD
13. Both these issues are interconnected, hence this Court shall discuss and decide them together. The onus to prove both these issues was upon the defendant. I am not satisfied with the argument of Ld. Counsel for the defendant that suit is liable to be rejected under Order VII Rule 11 CPC for not having any cause of action. As per 2018 amendment of the CBSE examination bye-laws, correction in date of birth is permitted as per school records and as per Court orders. The same is permitted within five years of declaration of result. In the present case, plaintiff passed the secondary school examination of CBSE in the year 2013. However, the Hon'ble Supreme Court of India in "Jigya Yadav (Minor) Vs. CBSE & Ors." Civil Appeal No.3905/2011 passed on 03.06.2021, directed the defendant/CBSE to CS No.: 305/20 Page 7 of 12 amend the examination bye-laws, however, same is not amended till date. So, there is cause of action against the defendant. So, both the issues are decided in favour of the plaintiff and against the defendant. Issue no.3 & 4
3. Whether plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP
4. Whether plaintiff is entitled to decree of declaration as prayed for ?
OPP
14. Both these issues are interconnected, hence this Court shall discuss and decide them together. The onus to prove both these issues was upon the plaintiff. Plaintiff deposed that he was born on 21.01.1997 in Subhkamna Nursing Home, Varanasi. He deposed that his mother got expired on 24.06.2003. He further deposed that after the death of his mother, his father deserted the plaintiff and his sister. He further deposed that thereafter, he and his sister shifted to the home of his maternal grand parents to live in Varanasi. The maternal grandfather got him admitted in William Henry Smith Memorial School, Sigra, Varanasi in the year 2003. However, his date of birth got CS No.: 305/20 Page 8 of 12 mentioned by his maternal grandfather as 21.01.1998. Thereafter, he got admission in G.D. Birla Memorial School, Ranikhet in 6 th standard. He further deposed that in the year 2009, he got shifted to Delhi to live with his maternal aunt Rashmi Gupta. His material aunt Rashmi Gupta got him admitted in Laxman Public School, Hauz Khas, Delhi in the year 2009. In that school, his date of birth got written as 21.01.1998. He cleared his 10 th standard in the year 2013 from CBSE. He cleared his 12 th standard in the year 2015 from U.P. Board. Plaintiff further deposed that in the year 2019, he came in contact with his father. His father told him that his real date of birth is 21.01.1997. His father also got the passport of the plaintiff issued in the year 1999. It is further deposed that after knowing his real date of birth, he applied for change of date of birth in his last attended school.
15. Plaintiff has proved his birth certificate and passport. These documents are exhibited as Ex.PW1/1 & Ex.PW1/2. Perusal of these documents shows his date of birth as 21.01.1997. Ex.PW1/1 was issued on 24.01.1997 i.e. after the birth of the plaintiff. Ex.PW1/2 got issued on 03.08.1999.
16. Defendant has not raised any doubt regarding the genuineness or authenticity of the above stated documents. So, there is no doubt regarding CS No.: 305/20 Page 9 of 12 the genuineness of these documents. Defendant has not raised any doubt that plaintiff is seeking change/correction in his date of birth due to some malafide or ulterior motive. Similarly, defendant failed to raise any doubt regarding the fact that plaintiff was not born in Varanasi and his mother got expired in the year 2003. The copy of death certificate of the mother of the plaintiff shows that his mother got expired on 24.06.2003 at Varanasi. Defendant has not filed any document or material which raises doubt that plaintiff has not studied in William Henry Smith Memorial School and G.D. Memorial School before getting admission in Laxman Public School, Delhi. Thus, plaintiff proved the circumstances due to which his wrong date of birth has been mentioned in the school records as well as in his class 10th certificate/CBSE.
17. However, even otherwise, the Hon'ble Supreme Court of India in the above stated judgment further laid down that "as regards, request for change of particulars in the certificate issued by the CBSE, it pre-supposes 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 document like birth certificate, Aadhar card/election card etc. and to incorporate change in the CBSE certificate consistent therewith......."
CS No.: 305/20 Page 10 of 12
"There is a legal presumption in relation to the public document in terms of section 35 of Indian Evidence 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."
18. Thus, in view of the decision of the Hon'ble Supreme Court of India, even if the stand of the defendant/CBSE is considered to be correct, still, the plaintiff is entitled for the change of his date of birth in the documents issued by the CBSE.
19. However, it is brought to the notice of this Court that despite the directions of the Hon'ble Supreme Court of India, the bye-laws have not been amended till date.
20. Under these circumstances, it is apparent that plaintiff is entitled for the relief claimed by him. Hence, relief is granted in favour of the plaintiff and against the defendant to the effect that date of birth of the plaintiff be rectified in the CBSE record as "21.01.1997". Thus, defendant is directed to correct the date of birth of the plaintiff as above said in all the documents issued by CBSE. So, both the issues are decided in favour of the plaintiff and against the defendant.
CS No.: 305/20 Page 11 of 12Relief
21. The suit of the plaintiff is decreed as to declaration and mandatory injunction in respect of correction in date of birth as "21.01.1997".
22. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Digitally
signed by
MANOJ
MANOJ KUMAR
KUMAR (Manoj Kumar)
Date:
2022.10.28
SCJ-cum-RC, East/KKD
16:16:24
+0530
Announced in the Court
today 28th of October, 2022
CS No.: 305/20 Page 12 of 12