Madhya Pradesh High Court
Arooshi Budholia vs Union Of India on 9 September, 2022
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 9th OF SEPTEMBER, 2022
WRIT PETITION No. 19675 of 2022
BETWEEN:-
AROOSHI BUDHOLIA D/O SUNEETI TRIPATHI
BUDHOLIA, AGED ABOUT 17 YEARS,
OCCUPATION: TEACHER THROUGH NATURAL
GUARDIAN SUNEETI TRIPATHI BUDHOLIA W/O
SHRI RINKESH BUDHOLIA, R/O HIG-82 SECTOR-
E, AYODHYA NAGAR BHOPAL, DISTRICT
BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY MS. SWATI ASEEM GEORGE- ADVOCATE)
AND
1. UNION OF INDIA THROUGH ITS SECRETARY
MINISTRY OF EXTERNAL AFFAIRS (INDIA)
HEADQUARTERS SOUTH BLOCK, RAISEN HILL
NEW DELHI (DELHI)
2. REGIONAL PASSPORT OFFICER, I.S.B.T. MAIN
BUILDING MEZZANINE FLOOR, IN FRONT OF
SANCHI DUGDH SANGH, HOSANGABAD ROAD,
HABIBGANJ, BHOPAL (MADHYA PRADESH)
3. REGISTRAR (BIRTH AND DEATH) MUNICIPAL
CORPORATION, BHOPAL (MADHYA PRADESH)
4. ADDITIONAL REGISTRAR (BIRTH AND DEATH),
MUNICIPAL CORPORATION BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SANDEEP SHUKLA- ADVOCATE FOR RESPONDENT
NOS. 1 AND 2)
This petition coming on for admission this day, th e court passed the
following:
ORDER
2 Heard finally with the consent of both the parties. The petitioner has filed the present petition, under Article 226 of the Constitution of India and prays for following reliefs:-
(i) To direct the respondents to re-issue the petitioner's passport within specified time.
(ii) To direct the respondents to consider the E-
Birth Certificate which was issued on 25/08/2022 and to reissue petitioner's passport (P-05).
(iii) To direct the respondents to treat the date of birth of the petitioner is 11/07/2005.
(iv) To grant any other relief, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case including cost of the litigation in favour of the petitioner.
The brief facts leading to filing of the case are that petitioner had filed an application through her mother for re-issue of her passport on 05.07.2022 bearing Application No. 22-0006160242 and file bearing No. BP1076632388022 before respondent No. 2. Earlier, the Passport No. H4973728 was issued to the petitioner on 28.05.2009 in which her date of birth was mentioned as 21.09.2004. The respondent No. 2 raised an objection that in the old Passport No. H4973728 the different date of birth is mentioned. The petitioner approached the respondent Nos. 3 and 4 for correction of date of birth in the passport. Vide letter dated 05.07.2022, the birth certificate issued on 20.01.2005 was rejected stating that the date of birth of the petitioner is 11.07.2005 and also mentioned that her date of birth was recorded as 11.08.2005 in official record 3 of the Municipal Corporation. On 03.08.2022, respondent No. 2 issued a letter asking the petitioner to confirm the correct date of birth and also produce the cancellation certificate. The petitioner visited the office of respondent No. 3 and submitted all the original records. The respondent No. 3 issued E-Birth Certificate on 25.08.2022 in which the date of birth of the petitioner is mentioned as 11.07.2005. As per the birth certificate dated 10.02.2009 as well as E-Birth Certificate dated 25.08.2022, the petitioner's date of birth is 11.07.2005 and the same date of birth is also recorded in School Education Record, Aadhar Card etc. The petitioner appeared in the examination of Universal Clinical Aptitude Test i.e. UCAT which was conducted for medical student on 04.08.2022 and she has cleared the aforesaid exam. In view of the aforesaid, she is required to go abroad for further admission process before 15th of September, 2022.
This Court vide order dated 01.09.2022 had directed the Government Advocate to call for the report/original record of the year 2004 and 2005 from the Nivedita Nursing Home, Gautam Nagar, Bhopal.
Today, the learned Government Advocate has submitted a reported dated 05.09.2022 in which it is stated that under MCI Regulations, 2002 and the directives of Government of India, Ministry of Health and Family Welfare and Director General of Health Services, the medical records must be maintained for a period of three years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India. In the present case, the required information relates to more than 18 years back thus, the said information cannot be supplied by the hospital.
Learned counsel appearing for respondents No. 1 and 2 submits that 4 previous passport has been issued on the basis of the information which had been supplied in the earlier application and since false information had been given, the petitioner was liable to proceed under Section 12 as well as Section 10(3)(b) of the Passport Act, 1967. He, therefore, prays for dismissal of the writ petition.
Heard learned counsel for the parties.
The Ministry of External Affairs has issued an office memorandum dated 26.11.2015 (Annexure P-6) which contains guidelines for change/correction of dates of birth in the passport. The guidelines are reproduced as under:-
"OFFICE MEMORANDUM SUBJECT:- Guidelines with regard to change/correction of dates of birth entries in the passport of an applicant already held by him/her.
It may be mentioned that necessary provisions with regard to change/correction of dates of birth in the passports are contained in the Passport Manual, 2010 and from time to time number of circulars have been issued by the Ministry on this issue.
2. It is pertinent to mention that recently the High Court of Kerala while hearing the W.P. No. 9073 of 2015 (Jaya Kumar Vs. Union of India & others) has delivered a land-mark judgment on the issue of correction /change of entires regarding date/place of birth in the passport. During the course of arguments, the Court has elaborated upon the fact that the details 5 entered in the Passport cannot be lightly interfered with, that too after many years without any sustainable cause and without any explanation as to why initially such a wrong declaration was made and why now a change is sought that too based on a document which was available with the applicant when the original declaration was made.
The High Court has further observed that the difference in dates of birth whether two years or twenty years, the power should be to correct bonafide mistake and that too within a reasonable time. Even a civil court declaration after many number of years would lead to the applicant having possibly perpetrated a fraud on many other who acted upon the authenticated declaration of sovereign state as to the age status of its Citizen.
3. The Court, therefore , while dismissing the petition of the applicant petitioner has directed that the authorities would do well to introspect on the observation made herein to make suitable amendments to the circular. It has also been directed that there would be no scope for leaving any liberty on the petitioner to approach a civil court too on the reasoning adopted by this court and the delay occasioned in seeking the correction.
4. Hence, the core principle of the judgment of the 6 High Court of Kerala is that only the bonafide claims of the applicants for the change/correction of the date of birth in the passport should be accepted and that too if the same are submitted by them within a reasonable time limit after the issuance of passport. In pursuance of the directions of the High Court, it has been decided that henceforth, all the PIA shall follow the following instructions/ guidelines in order to consider the claims/request the applicant for the change/correction of entries regarding of date of birth in their passports:
(I) Where an applicant claims clerical/technical mistake in the entry relating to birth/place of birth in the passport and asks for rectification correction.
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 PIA. In case, it is a clerical mistake either by the applicant or the PIA, date/place of birth correction may be allowed by issue of fresh booklet; in the former case by charging fee for fresh passport and in the latter 'gratis' (same as mentioned in Ministry's Circular No. VI/401/2/S/2001, dated 29/10/2007).
(II) If an applicant applies for the change of 7 date of birth in the passport within reasonable period of time i.e. within a span of five (5) years from the date of issue of passport having the alleged wrong date of birth, with the birth certificate issued by the Registrar of Births and Deaths stating that date of birth recorded in the passport was based on the entries mentioned documents other than the Birth Certificate, the request of such applicant irrespective of difference in the dates of birth, may be considered by the Passport Issuing Authority. However, before the issuance of passport with changed date of birth, the Passport Authority shall also levy appropriate penalty on the applicant for obtaining passport on previous occasions by providing wrong information regarding his/her date of birth .
(III) The cases where the applicant comes to PIA for change/ correction with regard to date of birth in the Passport after a period of five years from the date of issue of passport with alleged wrong date of birth, no such request shall be entertained/accepted by the PIA and be rejected out rightly.
However, an exemption in this regard may be given to an applicant who was minor at the time when passport with alleged wrong date of 8 birth was issued to him. As and when such applicant after attaining the age of majority applies for the passport with request to change the date of birth in the passport issued to him when he was minor, the PIA irrespective of the duration of the issuance of passport may accept his case for consideration and if is satisfied with the claim and document(s) submitted by the applicant, may accept his request for change of date of birth in the passport without imposition of any penalty.
(iv) In no way, the Passport Authority will relegate the applicant to obtain the declaratory court order to carry out changes with regard to date of birth in the passport, as the Passport Authority subject to the condition that the case has been submitted by the applicant within the stipulated limit of 5 years from the date of issuance of passport (except the cases of minor passport holder as detailed in para 5(ii) above) would now be eligible to accept the genuine cases irrespective of the difference of dates of birth.
5. In view of the above, all Passport Issuing Authorities are hereby requested to follow the above guidelines scrupulously to consider the requests of applicants for change/correction of dates of birth 9 entries in the passports. Provisions contained in Chapter 4 and 8 of the Passport Manual, 2010 stand revised to the extent as stipulated above."€ These guidelines as well as both the above mentioned judgments came up for interpretation before the High Court of Delhi in WP(C) No. 10839 of 2015, Sunita Sawhney Versus Union of India and others , decided on 03.12.2015. After extensive review of case law, the High Court of Delhi held that the passport authorities cannot refuse to correct the date of birth on passport on production of Birth Certificate.
A Division Bench of P & H High Court in Resham Singh versus Union of India and others, 2008(1) RCR (Civil)131, had an occasion to consider the primacy of Birth Certificate vis-a-vis School Leaving Certificate. It was held as under:-
"13. A birth certificate is issued by a Registrar of Births and Deaths and reflects an entry extracted from the register maintained by the Registrar under the Registration of Births and Deaths Act, 1969. The aforementioned statute was enacted to provide for and regulate registration of Births and Deaths and for matters connected therewith. Section 7 thereof, requires a State Government to appoint a Registrar for each area comprising the area within the jurisdiction of a municipality/panchayat or the local authority or any other area or a combination of any two or more of them.10
Section 16 of the Act requires every Registrar to keep in the prescribed form a register of Births and Deaths for the registration of births and deaths in his area or any part thereof in relation to which, he exercises jurisdiction. A register of Births and Deaths is, thus, a public record of births and deaths that occur within the area assigned to a Registrar. The Register being a public record, presumption of truth attaches thereto and consequently to the birth certificate,reflecting an extract from the Births and Deaths register. A matriculation certificate, on the other hand, is primary evidence of the marks obtained by a candidate in a qualifying examination and the date of birth recorded as an ancillary measure. Primacy would, therefore, have to be accorded to the date of birth reflected in the birth certificate issued by the Registrar of Births and Deaths."
14. xxxx xxxx xxxx
15. Thus, taking into consideration the aforementioned judgements, the enunciation of law, as detailed herein above, we are of the considered opinion that the Passport Authority erred by relegating the petitioner to seek a declaration before a civil Court and refusing to entertain his plea for correction of his date of birth. We would like to once again emphasise that as and when an application is filed before a Passport authority and there appears to be a conflict between 11 entries in the birth certificate issued by the Registrar of Births and Deaths and the entry of birth in a school leaving certificate, the entry in the birth certificate issued by the Registrar of Births and Deaths would prevail and except where the certificate is unreliable, suspicious or appears to be procured or manipulated, parties should not be relegated to civil Courts in a mechanical manner."
In view of the above backdrop, when the facts of the present case are examined, it is clear that the case of the present petitioner falls under para 4(III) of the guidelines.
Accordingly, the respondent No. 2 is directed to consider the application of the petitioner for re-issuance of a fresh passport and correct her date of birth on the basis of the E-Birth Certificate issued on 25.08.2022 (Annexure-P/5) within a period of three working days from the date of receipt of certified copy of this order looking to the urgency in the matter.
Petition is disposed of with the aforesaid directions. Certified copy today.
(S. A. DHARMADHIKARI) JUDGE ashish Digitally signed by ASHISH KUMAR LILHARE Date: 2022.09.09 19:11:48 +05'30'