Gujarat High Court
Kiranbhai vs State on 16 April, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
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SCA/3910/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3910 of 2010
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KIRANBHAI
BALENDRABHAI PATEL
Versus
STATE
OF GUJARAT & ANR
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Appearance :
MR
GAJENDRA P BAGHEL for Petitioner
MS MANISHA NARSINGHANI, AGP for
Respondent No.1
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CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 16/04/2010
ORAL
ORDER
1 The petitioner has filed this petition under Article 226 of the Constitution of India praying for direction to the respondents to correct the date of birth in the School Leaving Certificate on the basis of Birth Certificate duly issued by the competent authority.
2 It is the case of the petitioner that the petitioner was born on 10.12.1960 at village Gutal, Taluka Nadiad and the date of birth of the petitioner came to be registered with the Birth Register maintained by the authority. The birth certificate came to be issued by the competent authority of the village, wherein the correct date of birth of the petitioner is mentioned as 10.12.1960. The School Leaving Certificate came to be issued by the V.B. Multi-Purpose High School, Sunav, wherein the date of birth of the petitioner has been mentioned as 06.12.1960. The petitioner has been issued a Passport wherein the date of birth of the petitioner is mentioned as 06.12.1960. Therefore, the petitioner had approached the learned JMFC for correction of the date of birth in the School Leaving Certificate. However, the said application was withdrawn by the petitioner and thereafter the petitioner made representation to the respondent No.1 for correction of date of birth in passport. However, till date, the same has not been done. The petitioner therefore, filed a Special Civil Application No.12525 of 2009 for correction of date of birth in the School Leaving Certificate. The said petition was withdrawn, qua, the correction of date of birth in the School Leaving Certificate with liberty to file separate petition. Subsequently, the petitioner has filed the present petition.
3 Mr. G.P. Baghel, learned Advocate, appearing for the petitioner, has submitted that the petitioner is doing agricultural activities and he is not going to take any advantage of the correction in date of birth in School Leaving Certificate as well as in Passport as the petitioner is not employed any where in government organization so he will not be able to take extra benefits of retirement due to correction in date of birth. He has further submitted that the petitioner is seeking nominal correction in the date only mentioned in School Leaving Certificate on the basis of the certificate of date of birth. The date of birth mentioned in the Birth Certificate is correct and true and the same is the best evidence for correction date of birth and, hence, date of birth is required to be corrected in the School Leaving Certificate. He further submitted that there is no scheme or modalities which confers jurisdiction on learned JMFC to decide such application if preferred by the student and it is required to be appreciated that as per Regulation 12-A of the Gujarat Secondary Education Regulations, 1974, school record could not have been corrected when the student has left the school. He, therefore, submitted that the prayer made in the present petition is required to be granted.
4 In support of his submission, he relied on a decision of this Court in the case of Misrikhan Dilavarkhan Pathan vs. The State of Gujarat Thro' the Secretary and Ors., as reported in 2008(1) GLH 683, wherein it is held that a plain reading of the proviso is nothing but the guidelines to a student or parent who intends to change the date of birth in the school leaving certificate. As such there is no scheme or modalities which confers the jurisdiction on J.M.F.C. to decide such application, if preferred by the student. The court further held that in absence of any legal resolution in the relevant Regulations an aggrieved person can be sent to Civil Court for proper declaration and the High Court also can in exercise of powers vested with the Court under Article 226 of the Constitution of India helps the petitioner.
5 Ms. Manisha Narsinghani, learned AGP, appearing for the respondent on the other hand has submitted that there is discrepancy in two certificates, namely, School Leaving Certificate as well as the Birth Certificate. As per the Birth Certificate, the petitioner's birth date is 10.12.1960 whereas as per the School Leaving Certificate, the petitioner's birth date is 06.12.1960. The petitioner wants to get changed his birth date in the School Leaving Certificate, mentioning the date of birth as 10.12.1960 in place of 06.12.1960. The petitioner has earlier moved to the learned JMFC. However, without obtaining any order, the said proceedings were withdrawn and thereafter the present petition is filed. She has further submitted that as per the decision of this Court in the case of Thakore Nilesh Shishirbhai vs. Gujarat Secondary Education Board, as reported in 2007 (3) 48 GLR 2276, after considering Clause (6) of Regulation 12(A) of the Gujarat Secondary Education Regulations, 1974, this Court held that once the pupil left the school, no change can be made in the record of the School as per Clause (6) of this Regulations. The exception is only with regard to the date which can be changed on the basis of the certificate issued by the learned Judicial Magistrate of First Class. Clause (6) of Regulations 12(A) states that if a student actually left the school, no change can be effected in the record of the school. However, if the change is to be made with regard to the birth date, it can only be done by producing before the learned concerned Magistrate all the necessary evidence, who upon scrutiny, can issue certificate with regard to the real birth date and only upon production of such certificate, before the concerned authority, the correct birth date could be mentioned in the school record. Based on this judgment, Ms. Manisha Narsinghani submitted that the petitioner should approach to the learned Judicial Magistrate, First Class and get the certificate from him, on the basis of which, the correct birth date could be mentioned in the school record.
6 Ms. Manisha Narsinghani, learned AGP has further relied on the decision of the Division Bench of this Court in the case of Regional Passport Officer vs. Kokilaben, W/o Jaswantlal Panchal and Ors., as reported in 2009 (2) 50 GLH 1246, wherein it is held that Passport Authorities are not expected to make their own independent inquiry when there is a dispute or difference with regard to the date of birth, place of birth or name entered in the passport, especially when entries were once made on the basis of records produced by the passport holder. If there is any mistake on the records already produced, based on which entries were already made, then it is for the party who seeks correction to produce documents after carrying out necessary correction by the concerned statutory authorities, Judicial Magistrate or the Civil Court, as the case may be. Passport Authorities are always competent to direct the parties to produce relevant documents either from the authorities functioning under the Births and Deaths register or from the Judicial Magistrate or from the Civil Court, as the case may be. On production of corrected documents, Passport Authorities will immediately carry out necessary correction in the passport.
7 In view the settled legal position, Ms. Manisha Narsinghani, learned AGP has submitted that no indulgence be shown by the Court in this petition and the petitoner may be relegated either to the learned Magistrate or to the Civil Court for appropriate correction in the School Leaving Certificate.
8 Having heard learned Advocates appearing for the parties and having considered the rival submissions, the Court is of the view that the petitioner has to follow the procedure laid down in Clause (6) of Regulations 12(A) of the Gujarat Secondary Regulations, 1974. As per the Regulations, he has to approach the learned Judicial Magistrate, First Class, who can make necessary inquiry in the matter and issue certificate of correct birth date. Based on this certificate, the School record can be corrected and fresh School Leaving Certificate may be issued. The decision relied upon by the petitioner's Advocate in the case of Misrikhan Dilavarkhan Pathan (supra) is not applicable to the facts of the present case as in that case the petitioner has approached the learned JMFC, Nadiad, who refused to make necessary correction in the birth date. The said Order was challenged before this Court by way of filing Special Civil Application No. 12525 of 2009. This Court has made an observation that while exercising power under Article 226 of the Constitution of India, the Court can issue necessary directions with regard to correction in the birth date. Even as per the decision of the Division Bench of this Court in the case of Regional Passport Officer vs. Kokilaben, W/o Jaswantlal Panchal and Ors. (Supra), the petitioner has to obtain an order from the Judicial Magistrate or from the Civil Court for correction in the birth date in school leaving certificate. Based on such certificate and production of the corrected school leaving certificate, the passport authorities shall carry out the necessary correction in the passport.
9 In the above view of the matter and considering the settled legal position, the petitioner does not get any relief from this Court in the present petition as the petitioner will have to move either before the learned Judicial Magistrate, First Class or to the Civil Court and obtain necessary certificate for correction of the birth date in the School Leaving Certificate. If the petitioner's grievance is not redressed by the competent court, it is open for the petitioner to challenge such decision before this Court and this Court would after considering the merits of the matter, pass an appropriate order. Since this course is not adopted by the petitioner and he straightaway approached this Court, the petitioner could not succeed.
10 Subject to the above observations and keeping the petitioner's right to approach the learned JMFC or to the Civil Court open, this petition is accordingly dismissed with no order as to costs.
(K. A. PUJ, J.) pnnair Top