Delhi District Court
Hitesh vs Cbse Through Its Chairman on 24 December, 2022
IN THE COURT OF SH. SANTOSH KUMAR SINGH,
SENIOR CIVIL JUDGE, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CS No. 147/2022
CNR No.: DLST03-000240-2022
In the matter of:
HITESH
S/O SHRI KIRSHAN
H. NO. 8/138, DAKSHINPURI EXTN.,
DR. AMBEDKAR NAGAR,
NEW DELHI-110062
....PLAINTIFF
VERSUS
1. CBSE THROUGH ITS CHAIRMAN
PS, 1-Z, INSTITUTIONAL AREA,
I.P. EXTN., PATPARGANJ, DELHI-110092
2. YAG SARVODAYA BSSS
SECTOR-4, DR. AMBEDKAR NAGAR,
NEW DELHI-110062
SCHOOL CODE : 27281
....DEFENDANTS
SUIT FOR DECLARATION AND MANDATORY
INJUNCTION
Date of Institution : 07.02.2022
Date of reserving : 03.12.2022
Date of decision/judgment : 24.12.2022
JUDGMENT
1. This is a suit for declaration and mandatory injunction. As CS No. 147/22 Hitesh Vs. CBSE Page 1 of 15 per the case of the plaintiff, he is presently a student of XII Class and is studying in YAG Sarvodaya BSSS Sector 4, Dr. Ambedkar Nagar, New Delhi, School Code - 27281.
2. That the plaintiff is major and in apprehension that he would face hardship in his further studies and carrier which may be likely to be caused due to incorrect spelling in the name of his father recorded in his Xth class certificate-cum-marksheet issued by CBSE to him. It is stated that the correct name of plaintiff's father is SHRI KIRSHAN as per birth certificate and Aadhar Card of the plaintiff whereas it is erroneously recorded as KRISHAN in Xth Class Certificate-cum-Marksheet. The plaintiff in order to get the error corrected approached the defendant no. 1 through defendant no. 2 but instead he was suggested to get it corrected through the order/directions passed by the appropriate court of law.
3. In this regard, the plaintiff published public notice in the newspaper 'The Indian Express' dated 26.08.2021 and in the Gazzette of India on 04.09.2021 for changing the name of his father. The plaintiff also approached the defendant for change of his father's name in the certificate as well as marksheet of X th Class issued by CBSE but all in way. The cause of action arose in favour of the plaintiff when the certificate and marksheet of Xth class was issued with wrong spelling of name of his father. Secondly, the cause of action arose when the defendant refused to make correction in the Xth class certificate-cum-marksheet of the plaintiff on 27.09.2021 and hence, cause of action still subsists. The present suit is within the limitation.
CS No. 147/22 Hitesh Vs. CBSE Page 2 of 154. Aggrieved by the same, the plaintiff has filed the present suit for declaring the true and correct name of his father as SHRI KIRSHAN in instead of KRISHAN. The plaintiff also prays that a decree of mandatory injunction be also passed in his favour directing the defendants to correct the record whereby correcting name of plaintiff's father in the record of X th class and XIIth class also.
5. Summons were issued to the defendants. The defendant no. 1 was served on 08.03.2022 and defendant no. 2 was served on 14.03.2022. Defendant no. 1 appeared and filed his WS. The defendant no. 2 did not appear and, therefore, the defence of defendant no. 2 was struck off and he was proceeded ex-parte vide order dated 08.08.2022.
6. Defendant. no. 1 in his WS stated that CBSE has its rules, regulations and bye-laws regarding changes in the date of birth, change/correction in name of the candidate and/or parents, however, CBSE cannot go beyond its rules/bye-laws in any circumstances.
7. As per defendant, the instant suit of the plaintiff is not tenable in view of the Examination Bye-Laws of the CBSE. It is submitted that as per the Notification dated 01/02/2018 of the Bye-Laws, the change in the name or surname of the candidate/father's name/mother's name as per Rule 69.1(i) may be considered provided the changes have been accepted by the court of law and notified in the Govt Gazzete before the publication of the result of the candidate. As per Rule 69.1 (ii), correction in name to the extent of correction in spelling errors, CS No. 147/22 Hitesh Vs. CBSE Page 3 of 15 factual typographical errors in the candidate's name/surname, Father's name/mother's name or Guardian's name to make it consistent with what is given in the school record or list of candidates (LOC) submitted by the school may be made. Application for correction in name of candidate/father's/ mother's/guardian's name will be considered only within FIVE YEAR of the date of declaration of result provided the application of the candidate is forwarded by the head of institution with the following attested documents :
(a) True copy of admission form (s) filled in by the parents at the time of admission duly attested by the Head of the concerned institution ;
(b) True copy of the school leaving certificate of the previous school submitted by the parents of the candidate at the time of admission duly attested by the Head of the concerned institution.
(c) True copy of the portion of the page of admission and withdrawal register of the school where the entry has been made in respect of the candidate, duly attested by the Head of the concerned institution.
8. It is stated that the said Rule is applicable to all cases after Class Xth/XIIth 2015 examination onwards.
9. It is alleged that as per the particulars provided in the plaint, the plaintiff had passed his Xth class in the year of 2020, thus, above said Bye-laws will be applicable to the present case.
CS No. 147/22 Hitesh Vs. CBSE Page 4 of 1510. 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 record, such a request would be made in two different situations:
(i) Firstly on the basis of public documents like birth certificate, aadhar card, election card, etc. and to incorporate change in the CBSE certificate consistent therewith; and
(ii) The second possibility is when the request for change is due to the acquired name by choice at a later point of time, that change need not be backed by public documents pertaining to the candidate.
11. As per the defendant no.1, the suit of the plaintiff is without the cause of action. It is alleged that plaintiff has not given any cogent reason for his desire for correction in the name of his father from KRISHAN to SHRI KIRSHAN in the certificate and marksheet of Xth and XIIth class. Therefore, there is no cause of action in the present suit. It is alleged that plaintiff has not approached the court with clean hands and has suppressed material facts. It is alleged that the present suit is barred by limitation in terms of bye-laws. It is alleged that the plaintiff in order to take unlawful gain of his own wrongs/negligence who has miserably failed to give any material fact. Hence, the present suit is devoid of merit. It is alleged that the present suit is not maintainable as the change in name of plaintiff is not permissible under the bye-laws of CBSE. In view of the judgment titled as Jigya Yadav Vs. CBSE. Hence, the present suit is liable to be dismissed.
CS No. 147/22 Hitesh Vs. CBSE Page 5 of 1512. No replication was filed by the plaintiff to the written statement filed by defendant no.1.
ISSUES
13. Upon completion of pleadings, following issues were framed vide order dated 08.08.2022 as follows:
(i) Whether plaintiff is entitled to decree of declaration to the effect that correct name of plaintiff's father is 'Shri Kirshan' instead of 'Krishan', as prayed for in prayer clause no. (i)? OPP
(ii) Whether plaintiff is entitled to decree of mandatory injunction for directing the defendants to correct the record of the plaintiff's father's name in the record of class 10 th and 12th, as prayed for in prayer clause no. (ii) OPP
(iii) Relief.
14. In order to prove his case, the plaintiff got examined himself as PW1 and tendered his affidavit as PW1/A relying upon the following documents:
(a) Aadhar Card as Ex.PW1/1.
(b) Copy of birth certificate as Ex.PW1/2.
(c) Copy of 10th class marksheet cum certificate as
Ex.PW1/3.
(d) Copy of 12th class Admit Card as Ex.PW1/4.
(e) Copy of Aadhar Card of plaintiff's father as
Ex.PW1/5.
(f) Copy of identity card of Govt Job of plaintiff's
father as Ex.PW1/6.
(g) Copy of scheduled case certificate of plaintiff's
CS No. 147/22 Hitesh Vs. CBSE Page 6 of 15
father as Ex.PW1/7.
(h) Copy of Secondary School Certificate of plaintiff's
father as Ex.PW1/8.
(i) Copy of request letter for name correction through
mail via school to Chairman of CBSE as
Ex.PW1/9(colly).
(j) Copy of Gazette of India dated 04.09.2021 and
publication as Ex.PW1/10(colly).
(k) Copy of publication in Newspaper Indian the
Express India dated 26.08.2021 and publication as Ex.PW1/11.
15. PE was closed vide order dated 22.09.2022.
16. No evidence was led by the defendant no.1. Hence, opportunity to lead defence evidence was closed on 29.10.2022.
17. Final arguments were tendered by Sh. Hemant Sharma, Ld. Counsel for plaintiff and Sh. Sanjay Sharma, Ld. counsel for defendant no.1.
18. Issues no.1 and 2 are taken up together being inter- connected and the onus to prove these issues lies upon the plaintiff only.
19. Section 34 of Specific Relief Act deals with passing of declaratory decrees. It is reproduced below:-
"Section 34:- Discretion of court as to declaration of status or right-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, CS No. 147/22 Hitesh Vs. CBSE Page 7 of 15 and the plaintiff need not in such suit ask for any further relief. Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief then a mere declaration of title, omits to do so."
20. Therefore, declaration can be granted only when any legal character or right in the property is denied by the other party. In the present matter, plaintiff is seeking declaration to the effect that his father's name is SHRI KIRSHAN instead of KRISHAN which is required to be corrected/incorporated in his X th and XIIth class mark-sheets and certificates issued by CBSE. In the WS filed by defendant no.1/CBSE, it has denied that the said change cannot be corrected/incorporated.
21. In order to prove his (plaintiff's) case that his father's actual and correct name is SHRI KIRSHAN, the plaintiff has relied upon his birth certificate Ex.PW1/2, his Aadhar Card Ex.PW1/1, Aadhar card of his father PW1/5, publication in newspaper 'The Indian Express' Ex.PW1/11 and Gazette notification Ex.PW1/10 (colly).
22. In the birth certificate of the plaintiff and the above said Aadhar cards, the name of plaintiff's father is mentioned to be SHRI KIRSHAN whereas, in the marksheet and certificate of the Xth class, the copy of which is Ex.PW1/3, the name of plaintiff's father is mentioned as KRISHAN.
23. In this regard, it is the case of defendant that the name of the father of the plaintiff which is mentioned in the 10 th class marksheet and certificate is the same which is provided by the plaintiff in his school record. However, the plaintiff was not CS No. 147/22 Hitesh Vs. CBSE Page 8 of 15 cross-examined by the defendant no.1.
24. Thus, it is clear and evident that the name of plaintiff's father in the marksheet-cum-certificate of the Xth class Ex.PW1/3 is in conformity with the school record provided by the plaintiff and his father/parents.
25. Therefore, on perusal of the record, it is clear that the present case is not of correction of name but of change in name. Hence, Rule 69.1 (ii) of CBSE bye-laws will not be applicable, but, Rule 69.1 (i) of CBSE bye-laws will be applicable.
26. As the plaintiff appeared in the examination in 2020, therefore, the amended bye-laws of 2018 which were applicable for students who appeared in exams of X th and XIIth class in the year 2015 and onwards shall be applicable to the present case. In the present suit, the plaintiff has passed his X th class in 2020 and the present suit is filed on 07.02.2022. Thus, the plaintiff has approached the court within the limitation period as per amended bye-laws of 2018.
27. However, as per the Full Bench judgment of Hon'ble Supreme Court in case titled Jigya Yadav (Minor) (Through Guardian/Father Hari Singh) Vs C.B.S.E. (Central Board Of Secondary Education) & Ors in Civil Appeal No. 3905 Of 2011 decided on 03.06.2021, guidelines have been laid in respect to the cases where correction/change of name/parent's name or date of birth is sought by the candidate. It is relevant to mention herein paragraph no. 171, wherein Hon'ble Apex Court laid the CS No. 147/22 Hitesh Vs. CBSE Page 9 of 15 guideline in respect to change of name. The said paragraph is reproduced below:
171. As regards request for "change" of particulars in the certificate issued by the CBSE, it presupposes 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 documents like Birth Certificate, Aadhaar Card/Election Card, etc. and to incorporate change in the CBSE certificate consistent therewith. The second possibility is when the request for change is due to the acquired name by choice at a later point of time. That change need not be backed by public documents pertaining to the candidate. (a) Reverting to the first category, as noted earlier, there is a legal presumption in relation to the public documents as envisaged in the 1872 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. This, however, need not be unconditional, but subject to certain reasonable conditions to be fulfilled by the applicant as 129 may be prescribed by the CBSE, such as, of furnishing sworn affidavit containing declaration and to indemnify the CBSE and upon payment of prescribed fees in lieu of administrative expenses. The CBSE may also insist for issuing Public Notice and publication in the Official Gazette before recording the change in the fresh certificate to be issued by it upon surrender/return of the original certificate (or duplicate original certificate, as the case may be) by the applicant. The fresh certificate may contain disclaimer and caption/annotation against the original entry (except in respect of change of name effected in exercise of right to be forgotten) indicating the date on which change has been recorded and the basis thereof. In other words, the fresh certificate may retain original particulars while recording the change along with caption/annotation referred to above (except in respect of change of name effected in exercise of right to be forgotten).
XXXXXXX CS No. 147/22 Hitesh Vs. CBSE Page 10 of 15
28. In view of the above said guidelines, the present case is falling under the category where change in name can be allowed. This observation is made on the basis of copy of birth certificate of plaintiff, which is Ex.PW1/2, and copies of Aadhar cards of plaintiff and his father, which are Ex.PW1/1 and Ex.PW1/5 respectively, wherein the name of plaintiff's father is mentioned as SHRI KIRSHAN.
29. In respect to the said documents, it was argued by ld Counsel for defendant that the Aadhar cards of plaintiff and his father which are Ex.PW1/1 and Ex.PW1/5 respectively were got prepared by plaintiff after the declaration of the result, merely to obtain a favorable order and are not the documents prior in time to the mark-sheet/certificate in question.
30. In respect to the said argument there is substance in the version of Ld Counsel for defendant that the Aadhar cards of plaintiff and his father which are Ex.PW1/1 and Ex.PW1/5 respectively were got issued on 23.07.2021 and 19.08.2021 respectively, thus, the said documents are of a later in time then the mark-sheet in question. However, the Adhar card of father of plaintiff was got issued on 19.08.2021 which is later in time, however Ex.PW1/6 i.e. I-card of father and his caste certificate Ex.PW1/7 and 10th certificate of father of plaintiff which are of date prior in time of the said markseet/certificate. Moreover, it has already been held in the judgment of Jigya Yadav (Supra) that the documents such as birth certificate, Aadhar Card and Voter ID card are public documents which are admissible under Section Section 76 read with Sections 79 and 80 of Indian Evidence Act, 1872. in this respect it is held CS No. 147/22 Hitesh Vs. CBSE Page 11 of 15 "Point No. 3 ;
BINDING VALUE OF PUBLIC DOCUMENTS
151. Whether CBSE is obliged to effect changes in the certificates issued by it upon production of updated public documents (other than school records), is the next issue for consideration. According to the Board, it would not be permissible as it has no independent mechanism to verify the genuineness of the public documents. Even under the Byelaws, there is no requirement for the Board to verify the genuineness of the documents. It is simply not the job of the Board.
152. The Byelaws provide for a two tier mechanism for recording change of name or other details (as indicated above). One of them is prior permission or declaration by a Court of law to be obtained. As regards public documents like Birth Certificate, Official Gazette, Aadhaar Card, Election Card, etc., the same enjoy legal presumption of its correctness in terms of explicit provisions contained in Chapter V of the 1872 Act. The 1872 Act extends such presumption in terms of Section 76 read with Sections 79 and 80 of the 1872 Act and as in the case of Official Gazette under Section 81 of the same Act. Even other legislations concerning public documents attach equal importance to the authenticity of such documents including while making changes in their certificates to which we have alluded to in this judgment. Understood thus, there is no reason for the CBSE Board to not take notice of the public documents relied upon by the candidate and to record change on that basis in the certificate issued by it, for being consistent with the relied upon public documents. It matters not if the information furnished in the public documents is not entirely consistent with the school records of the incumbent. The CBSE while accepting those documents as foundational documents for effecting changes consistent therewith may insist for additional conditions and at the same time while retaining the original entry make note in the form of caption/annotation in the fresh certificate to be issued by it while calling upon the incumbent to surrender the original certificate issued by it to avoid any misuse thereof at a later point of time. It would be permissible for the CBSE to insist for a sworn affidavit to be given by the incumbent making necessary declaration and also to indemnify the CS No. 147/22 Hitesh Vs. CBSE Page 12 of 15 CBSE. The fresh certificate to be issued by the CBSE may also contain disclaimer of the Board clearly mentioning that change has been effected at the behest of the incumbent in light of the public documents relied upon by him. In addition, the incumbent can be called upon to notify about the change in the Official Gazette and by giving public notice as precondition for recording the change by way of abundant precaution.
153. This Court in CIDCO vs. Vasudha Gorakhnath Mandevlekar, 58 (2009) 7 SCC 283 has observed that the records maintained by statutory authorities have a presumption of correctness in their favour and they would prevail over any entry made in the school register. The Court observed thus: "18. The deaths and births register maintained by the statutory authorities raises a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Evidence Act. It would prevail over an entry made in the school register, particularly, in absence of any proof that same was recorded at the instance of the guardian of the respondent. (See Birad Mal Singhvi v. Anand Purohit59.)"
31. Thus, as legal sanctity has been granted to the said documents, the same can be considered by the present court. Moreover, the plaintiff has already got the desired change published in the Gazette of India dated 04.09.2021 and Ex.PW1/11 i.e. The Indian Express dated 26.08.2021. Hence, even the said requirement which has been put forward by Hon'ble Supreme Court in the above said judgment of Jigya Yadav (Supra) has been complied with.
32. Thus, by relying of the judgment of the Hon'ble Supreme Court in case titled Jigya Yadav (Supra), there is no delay in filing the present suit, hence, the same is within the limitation period and the plaintiff will be guided by the above said CS No. 147/22 Hitesh Vs. CBSE Page 13 of 15 guidelines.
33. Therefore, by incorporating the said change i.e. SHRI KIRSHAN from KRISHAN will not change the identity of plaintiff's father.
34. In view of the afore said discussion, it is clear that plaintiff has been able to discharge the onus upon his shoulders as per the guidelines framed by the Hon'ble Supreme Court of India in case titled Jigya Yadav (supra) wherein the bye-laws in respect of change in names have been opined to be very restrictive and strict and the defendant no.1 has been failed to put doubt upon the plaintiff's case.
35. Thus, issue no.1 and 2 are decided in favour of plaintiff and against defendants.
RELIEF
36. In view of the discussion on issue no. 1 and & 2, the suit of the plaintiff is decreed in his favour. The prayer sought by the plaintiff for declaring the correct name of his father as 'SHRI KIRSHAN' from KRISHAN is allowed. The defendant no.1/CBSE is directed to incorporate the necessary changes in the Xth and XIIth class mark-sheets-cum-certificates of the plaintiff by mentioning the name of plaintiff's father as 'SHRI KIRSHAN' from KRISHAN. Fresh mark-sheets-cum- certificates of Xth and XIIth Class be issued incorporating the necessary changes subject to the payment of administrative fees/ charges by the plaintiff. Defendant no.1/CBSE can also insist plaintiff to file an affidavit acknowledging the changes requested CS No. 147/22 Hitesh Vs. CBSE Page 14 of 15 for, if it deems fit to call for the same.
37. Parties to bear their own cost. Decree sheet be prepared accordingly.
38. File be consigned to record room after due compliance.
Announced in open Court (Santosh Kumar Singh)
on 24.12.2022 Senior Civil Judge(South)
Saket Courts, New Delhi
CS No. 147/22 Hitesh Vs. CBSE Page 15 of 15