Orissa High Court
Satyasiva Sundar Nayak vs Secretary on 13 May, 2019
Author: A.K.Rath
Bench: K.S.Jhaveri, A.K.Rath
IN THE HIGH COURT OF ORISSA: CUTTACK
FULL BENCH
WPC No.1896 of 2005
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Satyasiva Sundar Nayak .... Petitioner
Versus
Secretary, Board of Secondary
Education, Orissa and others .... Opp. Parties
For Petitioner ... Mr.Gautam Mishra, Adv.
Amicus Curiae
For Opp. Parties ... Mr.S.S. Rao, Adv.
JUDGMENT
PRESENT:
THE HONOURABLE CHIEF JUSTICE MR. K.S.JHAVERI AND THE HON'BLE DR. JUSTICE A.K.RATH AND THE HONOURABLE MR. JUSTICE BISWAJIT MOHANTY Date of hearing: 26.04.2019 : Date of judgment: 13.05.2019 Dr. A.K.Rath, J The following question of law has been referred to the Full Bench:
"Whether the change of the name or surname of father and mother of a candidate who had already appeared at the High School Certificate Examination and obtained the Board Certificate (H.S.C.) incorporating the names of the parents is permissible on the basis of a correction in the school record made subsequent to that date."
2. The reasons set forth in the point of reference are:
2The Regulation of the Board of Secondary Education, Orissa ('Board') has been framed under Sec.21 of the Orissa Secondary Education Act ('Act'). There is no provision in the Board's Regulation for correction of the father's name of a candidate, who had appeared in the High School Certificate Examination ('HSC Examination') and had been issued with the Board certificate. In the absence of any such provision, change of name or surname of parents in whatever circumstances, except of course for clerical or printing mistake is not permissible in law and as such, no direction can be given to the Board to make such changes.
2.1. The Division Bench entertained a doubt about the ratio laid down by another Division Bench of this Court in the case of Ranjit Kumar Mallick v. Director of Secondary Education, Orissa and others, 83 (1997) CLT 74. Placing reliance on the decision of another Division Bench in the case of Dipti Baliar Singh v. Board of Secondary Education, Orissa, AIR 1999 Orissa 166, it referred the matter to the larger Bench.
3. We have heard Mr. Gautam Mishra, learned amicus curiae and Mr. S.S Rao, learned counsel for the Board.
4. Mr. Mishra, learned amicus curiae submitted that Ranjit Kumar Mallick's case has been correctly decided by the Division Bench of this Court. After Ranjit Kumar Mallick, the Board has issued a form for correction of original pass certificate. Clause (iii) of the form deals with correction of original pass certificate with regard to parents' name. In Central Board of Secondary Education (CBSE) and Indian Certificate of Secondary Education (ICSE), provisions are there for change/correction in the name of parents.3
The future of a student will be bleak in the event the mistake creeps in the certificate. He cannot be compelled to institute the suit, which is not an efficacious remedy. The Board has ancillary power to correct the father's/mother's name in the certificate. In the absence of any provision in the Board's regulation, the circular dated 26.11.1988 issued by the Directorate of Education, Orissa can be relied upon. Where a student's career may be affected and a minor change may not affect the property rights of any of the parties, particularly when a change is sought for pursuing academic goals, relegating a party to the common law forum may not be an alternative efficacious remedy. In appropriate cases, the claim of the student may be entertained in a writ petition in case the Board/Directorate refuses to correct a genuine mistake. But then, when such claims are for the purpose of establishing property rights, the appropriate remedy may be the common law forum. Each case has to be examined keeping in mind the background facts of that particular case. To err is human. To buttress the submission, he placed reliance on the decision of the apex Court in the case of State of M.P v. Pradeep Kumar (2000) 7 SCC 372.
5. Per contra, Mr. Rao, learned counsel for the Board submitted that the Board is an autonomous body and has a set of regulations framed under Section 21 of the 'Act'. Section 21 of the 'Act' provides that any amendment can be only with approval of the State Government. The regulations are statutory. There is no provision in the regulation for correction of change of father's/mother's name. A candidate who appears in the HSC examination usually is a minor. Mistake at the instance of the 4 guardian is likely to occur. Correction of a mistake, clerical or otherwise cannot be equated with change of father's name, which requires factual adjudication. The Board has no power to adjudicate the same. By change of father's/mother's name several legal complications involving property rights, adoptions, securing of some benefit by changing of caste, overcoming the rigors of election law, which restricts number of children to contest may arise. It is open to the aggrieved party to approach the common law forum. He placed reliance on the decisions in the case of Rai Brij Raj Krishna v. Messrs. S.K. Shaw and Brothers AIR 1951 SC 115, Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331, Maharashtra State Board of Secondary Education and Higher Secondary Education v. Paritosh Bhupesh Kurmarsheth, AIR 1984 SC 1543, Benudhar Dalai v. State of Orissa, AIR 1958 Orissa 197, Secy., W.B. Council of Higher Secondary Education v. Ayan Das (2008) 105 CLT (SC) and Subash Chandra Mishra v. State of Orissa 2012 (2) ILR Cut. 444.
6. In Ranjit Kumar Mallick, the petitioner filed a writ petition before this Court praying, inter alia, for a direction to the Board to correct his father's name in the certificate issued by the Board. It was pleaded that his father was an employee in the Insurance Company and posted at Calcutta at the time of his admission into the primary school. His maternal grandfather Upendranath Mallick acted as the guardian of the petitioner and admitted him into the primary school signing in the admission register as his guardian. In the records of the primary school, the name of Upendranath Mallick was inadvertently recorded as the father instead of guardian of the petitioner. The mistake was 5 detected at the time of filling up of the form of the HSC Examination. The Headmaster of the school advised to make an application through him to the Inspector of Schools with necessary documents. The petitioner's natural father affirmed the affidavit. His maternal grandfather also affirmed the affidavit testifying that he is the son of Nityananda Mallick and submitted the same to the Headmaster for onward transmission to the Director of Secondary Education through Inspector of Schools, Cuttack. The Headmaster of the school sent the proposal with necessary documents to the Inspector of Schools, Cuttack III Circle for necessary action. On the basis of such application, the Director of Secondary Education, Orissa accorded permission to the petitioner to have his father's name changed from Upendranath Mallick to Nityananda Mallick. The order of the Director was forwarded to different authorities including the Headmaster of the concerned school and the Secretary, Board of Secondary Education, Orissa. Thereafter, necessary correction was incorporated in the admission register of the school duly counter-signed by the Inspector of Schools. However, in the meantime the Board had issued the certificate to the petitioner describing him as the son of Upendranath Mallick on the basis of the entry made in the form submitted by him. After obtaining the permission from the Director of Secondary Education, he approached the Board to make necessary correction in the certificate. But then, the Board refused to make necessary correction. With this factual scenario, he filed the writ petition. 6.1. The Board entered contest and filed a counter affidavit stating, inter alia, that it has no power or authority to make any 6 correction in the certificate in view of Regulation 40 of the Board's Regulation.
6.2. Taking a cue from the circular dated 26.11.1988 issued by the Directorate of Education, Orissa with regard to change of name, surname and father's name of students of different schools, this Court held that there is no regulation of the Board dealing with the question of correction of father's name. Regulation 40 of the Regulation deals with change of name and surname. Although Board has no such regulation, the authorities of the Education Directorate have laid down a clear and uniform procedure for dealing with the proposal for correction of father's name and have conferred the said authority upon the Director of Secondary Education. There is no conflict between any regulation of the Board and the order or circulars of the Directorate of Secondary Education. Where there is no statutory provision or statutory rule, administrative orders or circular can operate in the field. The plea and stand of the Board that it has no power or authority to correct father's name after a certificate has been issued appears to be absolutely unreasonable, illogical and irrational. There may be many genuine and bona fide cases of mistake in father's name of candidates in the certificate issued by the Board. If case of such bona fide mistake is proved, there is no reason for the Board to refuse to make such correction. The authorities issuing a document have the inherent power of making necessary corrections, if they are satisfied about any incorrectness. In the absence of any regulation governing the field, the Board is not powerless to make correction in the certificate issued by it. Such power is inherent. In the appropriate cases, the Board is obliged to exercise such power 7 and to make necessary correction upon production of relevant documents.
6.3. The State Government has conferred the necessary power and authority upon the Director of Secondary Education to consider proposals for correction of father's name and has prescribed a procedure for it. There being no specific regulation by the Board dealing with such cases, the decision of the Director of Secondary Education is to be followed by the Board. The Board so long as it does not frame its own regulation dealing with such claims, is bound to follow the decision of the Director of Secondary Education, Orissa and to make necessary correction in the records including the certificate issued by it. If the Board's contention that it is not bound to follow the decision of the Director is accepted, an anomalous situation will arise. In the school records, the petitioner's father's name will be one and in the certificate issued by the Board there will be a different name. The Board cannot take such view which will lead to an absurd situation likely to spoil a student's entire career. The Board also cannot assume the role of appellate authority over the Director's decision. However, it is open to the Board to frame regulation to deal with proposals for correction of father's name.
6.4. There cannot be anything under the sun where mistake cannot creep in. What is necessary to be determined is whether there is really a genuine mistake or not ? Therefore, it does not augur well for a statutory authority like the Board dealing with the cases of students to take a stand that it will not make any correction unless it is so directed by a civil court in a suit. If in every case a suit is required to be filed by the students, it is not 8 clear how and on what basis, the Board will contest such suits. The stand taken by the Board appears to be a thoughtless one inasmuch as such a stand will not only cause injustice to the students with genuine cases of mistake, but will also involve the Board in hundreds of litigation in civil court without having any effective say or defence in the matter. Held so, it allowed the writ petition.
7. The Board filed SLP(C) No.016661 of 1996 before the apex Court. The same was eventually dismissed on 2.9.1996. The matter has thus attained finality.
8. When a minor is admitted in the primary school, the school admission register is maintained by the concerned teacher of that school. If any bona fide mistake occurs in the school admission register, then the same cannot continue. At the time of filling up of the form to appear at the HSC Examination or after issuance of HSC certificate if mistake is detected, the Board can rectify the same. The Division Bench rightly held that the authorities issuing a document have the power of making necessary corrections, if they are satisfied about any incorrectness. Such power is ancillary.
9. The matter may be examined from another angle. The Directorate of Education, Orissa had issued a circular on 26.11.1988 and circulated to different High Schools within the Cuttack III Circle by the Inspector of Schools, Cuttack III Circle dated 7.3.1989. The same was quoted in extenso in Ranjit Kumar Mallick and is reproduced below:
"Proposals for change of name, surname & father's name of students of different schools are coming to this Directorate, for approval. No provision exists in the Orissa Education Code retarding (sic.) the procedure to 9 be adopted in allowing such changes. No inform (sic) procedure is followed in submitting the prescribed documents in the matter. A circular appears to have been issued from the Director of Public Instruction (Schools) Orissa in the long past.
This has caused considerable difficulties in disposing of all the case (sic). In order to obviate the difficulties it has been decided that proposals for change of name, surname of (sic) Father's name of the students should be accompanied with the documents specified below, duly examined by the concerned D.I. of Schools.
(1) to (3) xxx xxx xxx (4) Wrong entry on father's name or the clerical error, if any.
(i) Original affidavit from the natural father mentioning sufficient reasons for wrong entry.
(ii) Original affidavit from the person whose name has been recorded wrongly in the school register mentioning the full justification of wrong entry.
(iii) The abstract of Primary School admission register where the boy was first admitted.
(iv) Abstract of the school admission register, where the student is continuing the study.
(v) A copy of the Treasury Challan of Government fee of Rs.1/- only...."
10. Till and until the Board frames appropriate regulation, the future of the students cannot be pushed into uncertainty. Furthermore, the Board has issued a form for correction of original pass certificate. The same reads as follows:
"(iii) Code to be used under NATURE OF DEFECT Candidates Name - CN Mother's name - MN Father's name - FN Date of Birth - DB School name with Location - SN"
11. Since website of the Board has a form which allows for correction of father's name, the Board cannot take a stand that in the absence of regulation governing the field, no correction can be made. It is apt to state that the CBSE and ICSE have provisions for change/correction in the name including that of the parents.
1012. In Ranjit Kumar Mallick's case there is no time stipulation for making an application for correction of father's/mother's name. Regulation 39 provides for change of date of birth of the candidate. It provides that the application should be made through Headmaster of the concerned High School within three years of the passing of the HSC Examination.
13. We hasten to add that the application for correction of name of the father/mother shall be made within three years of the passing of HSC Examination so that authorities are not put to any difficulty. The application has to be made through the concerned Headmaster of the High School.
14. We are unable to accept the view of the reference court that the circular of the Directorate of Education, Orissa with regard to correction of the records of the school in respect of parents' name and surname is applicable when a student continues in the school and is not yet sent up for filling up the forms to appear the Board examination and not thereafter. Allowing this at a later stage may encourage unnecessary complication in cases like adoption. The apprehension is unfounded.
15. We are conscious of the socio economic conditions of students admitted into the Government Primary Schools of the State. Some of the students belong to the lower rung of the society. The Board authorities must realise the ground reality. They cannot denude the just claim of a student on jejune grounds.
16. Ubi Jus Ibi Remedium - for every wrong, the law provides a remedy. The same is a fundamental principle of equity jurisprudence.
1117. When the question of adoption arises, the Board in appropriate cases may reject the same. But when a father's/mother's name has been wrongly entered into the school admission register, the same cannot be allowed to continue.
18. There is no apparent conflict between Ranjit Kumar Mallick and Dipti Baliar Singh. In Dipti Baliar Singh, the petitioner sought to change his name as well as his father's name. The matter pertained to property right involving the change of caste. In the facts of the said case, a Division Bench of this Court held that the question whether there was a valid adoption cannot be adjudicated in a writ petition. Held so, it dismissed the writ petition.
19. The decisions cited by Mr. Rao are distinguishable on facts. In Sukhdev Singh, the Constitution Bench of the apex Court had the occasion to deal with the question whether Oil and Natural Gas Commission, Life Insurance Corporation and Industrial Finance Corporation are the State within the meaning and ambit of Article 12 of the Constitution.
20. In Rai Brij Raj Krishna, the matter pertains to Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 vis-à-vis the jurisdiction of the civil court.
21. In Benudhar Dalai, the matter pertains to Orissa Estates Abolition Act.
22. In Subash Chandra Mishra, a Division Bench of this Court had the occasion to deal with the appointment/promotion to the post of Headmaster of High School.
1223. In Ayan Das and Paritosh Bhupesh Kurmarsheth, the matters pertain to evaluation of the answer scripts by the writ court.
24. In view of the discussions made in the preceding paragraphs, we are in consensus ad idem that the ratio laid down in Ranjit Kumar Mallick is the correct enunciation of law. We do not find any valid reason to look into the matter afresh. The reference is answered accordingly.
25. Before parting with the case, we must place on record our deep appreciation of the sincere efforts made by Mr.Gautam Mishra, Advocate. He has rendered valuable assistance to the Court. Registry is directed to place the matter before the assigned Bench.
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Dr. A.K.Rath, J.
Chief Justice : I agree.
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Chief Justice Mr. Justice Biswajit Mohanty : I agree.
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Mr. Biswajit Mohanty, J.
Orissa High Court, Cuttack.
Dated 13th May, 2019/PKS