Allahabad High Court
Shweta Pathak vs Union Of India And 2 Others on 14 March, 2022
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 35 AFR Case :- WRIT - C No. - 29479 of 2021 Petitioner :- Shweta Pathak Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Balram Jee Verma Counsel for Respondent :- A.S.G.I.,Dhananjay Awasthi Hon'ble Ajit Kumar,J.
1. Heard Sri V.B. Pandey, learned Advocate holding brief of Sri Balram Jee Verma, learned counsel for the petitioner, Sri Dhananjay Awasthi, learned counsel appearing for respondent Nos. 2 and 3 and perused the record.
2. The issue raised in the present writ petition is with regard to correction in the spelling of the name of petitioner mentioned in the intermediate marks-sheet-cum-certificate issued by the National Institute of Open Schooling, New Delhi (hereinafter referred to as 'the N.I.O.S.). From the pleadings of the petition as well as the documents brought on record, it is apparent that everywhere in the academic record, the name of the petitioner has been spelled as "Shweta Pathak" whereas in the intermediate marks-sheet-cum-certificate issued by the N.I.O.S., it is shown as "Sweta Pathak". The name of the mother and that of the father of the petitioner are correctly spelled as "Bindu Pathak and Prabhat Kumar Pathak" in all the academic records right from High School upto the University and even in the intermediate marks-sheet-cum-certificate issued by the N.I.O.S., the name of the mother of the petitioner is spelled as Bindu Pathak and that of father as Prabhat Kumar Pathak.
3. In the counter affidavit, the stand taken by the respondents is that the name of the petitioner, even if, it is a spelling mistake occurred in printing process, cannot be corrected because the limitation prescribed for applying for correction in the marks-sheet-cum-certificate issued by the N.I.O.S. is three years whereas the petitioner has approached the N.I.O.S. for necessary correction after eight years.
4. Learned counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of Jigaya Yadav vs. Central Board of Secondary Examination and others; 2021 (7) SCC 535 and that of this Court in the case of Anand Singh vs. U.P. Board of Secondary Education and others; 2014 3 ADJ 443, and submits that the technicalities of delay in approaching the authority concerned should not come in the way of redressal of genuine grievance of the petitioner. He has drawn the attention of the Court towards the pleadings raised in the counter affidavit in which nowhere it is stated that the petitioner has come with uncleaned hands, nor fraud or otherwise forgery is alleged to have been committed at the end of petitioner. He submits that it is true that the petitioner ought to have approached the institution well in time but such spelling mistake often evades the eyes and at time it is taken to be so nominal that students do not get affected. He submits that the petitioner had been admitted to higher studies with the same marks-sheet and no objection had been raised anywhere but the question would be of employment to which strict verification is done and there this mistake may be prejudicial.
5. Having heard learned counsel for the respective parties and the arguments raised across the bar, I find that the spellings of "Shweta" and "Sweta" are so common that at times it may be pronounced in such a manner that difference cannot be noticed and letter 'H' becomes silent and so it can evade the eyes so genuinely of those, who have to check the relevant record before final print is given and, therefore, it could be genuinely attributed to a mistake inadvertently committed by the respondents. This appears to be, so also, because the names of the father and mother are correctly printed and, therefore, it cannot be said under any circumstances that the petitioner delayed the matter for any other extraneous consideration. So at the best it is a case of correction only.
6. The principle laid down in the case of Jigya Yadav (supra) as well as in the case Anand Singh (supra) basically aimed at facilitating such corrections and the direction is to the Board to amend its bye laws as per the directions issued and till such amendment is carried out process the pending applications and even future applications, which may on the face of it appear to be genuine. Vide paragraph nos. 170, 171 and 172 the Supreme Court has held thus:-
"170. The first is where the incumbent wants "correction" in the certificate issued by the CBSE to be made consistent with the particulars mentioned in the school records. As we have held there is no reason for the CBSE to turn down such request or attach any precondition except reasonable period of limitation and keeping in mind the period for which the CBSE has to maintain its record under the extant regulations. While doing so, it can certainly insist for compliance of other conditions by the incumbent, such as, to file sworn affidavit making necessary declaration and to indemnify the CBSE from any claim against it by third party because of such correction. The CBSE would be justified in insisting for surrender/return of the original certificate (or duplicate original certificate, as the case may be) issued by it for replacing it with the fresh certificate to be issued after carrying out necessary corrections with caption/annotation against the changes carried out and the date of such correction. It may retain the original entries as it is except in respect of correction of name effected in exercise of right to be forgotten. The fresh certificate may also contain disclaimer that the CBSE cannot be held responsible for the genuineness of the school records produced by the incumbent in support of the request to record correction in the original CBSE certificate. The CBSE can also insist for reasonable prescribed fees to be paid by the incumbent in lieu of administrative expenses for issuing fresh certificate. At the same time, the CBSE cannot impose precondition of applying for correction consistent with the school records only before publication of results. Such a condition, as we have held, would be unreasonable and excessive. We repeat that if the application for recording correction is based on the school records as it obtained at the time of publication of results and issue of certificate by the CBSE, it will be open to CBSE to provide for reasonable limitation period within which the application for recording correction in certificate issued by it may be entertained by it. However, if the request for recording change is based on changed school records post the publication of results and issue of certificate by the CBSE, the candidate would be entitled to apply for recording such a change within the reasonable limitation period prescribed by the CBSE. In this situation, the candidate cannot claim that she had no knowledge about the change recorded in the school records because such a change would occur obviously at her instance. If she makes such application for correction of the school records, she is expected to apply to the CBSE immediately after the school records are modified and which ought to be done within a reasonable time. Indeed, it would be open to the CBSE to reject the application in the event the period for preservation of official records under the extant regulations had expired and no record of the candidate concerned is traceable or can be reconstructed. In the case of subsequent amendment of school records, that may occur due to different reasons including because of choice exercised by the candidate regarding change of name. To put it differently, request for recording of correction in the certificate issued by the CBSE to bring it in line with the school records of the incumbent need not be limited to application made prior to publication of examination results of the CBSE.
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 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).
(b) However, in the latter situation where the change is to be effected on the basis of new acquired name without any supporting school record or public document, that request may be entertained upon insisting for prior permission/declaration by a Court of law in that regard and publication in the Official Gazette including surrender/return of original certificate (or duplicate original certificate, as the case may be) issued by CBSE and upon payment of prescribed fees. The fresh certificate as in other situations referred to above, retain the original entry (except in respect of change of name effected in exercise of right to be forgotten) and to insert caption/annotation indicating the date on which it has been recorded and other details including disclaimer of CBSE. This is so because the CBSE is not required to adjudicate nor has the mechanism to verify the correctness of the claim of the applicant.
172. In light of the above, in exercise of our plenary jurisdiction, we direct the CBSE to process the applications for correction or change, as the case may be, in the certificate issued by it in the respective cases under consideration. Even other pending applications and future applications for such request be processed on the same lines and in particular the conclusion and directions recorded hitherto in paragraphs 170 and 171, as may be applicable, until amendment of relevant Byelaws. Additionally, the CBSE shall take immediate steps to amend its relevant Byelaws so as to incorporate the stated mechanism for recording correction or change, as the case may be, in the certificates already issued or to be issued by it."
7. In my view above law would be equally applicable to the National Institute of Open Schooling as well. The broad principles qua correction at the instance of students in the academic certificates are fully attracted in rspect of all such statutory bodies that perform public functions. The principles of law laid in the aforesaid judgment is aimed at removing unnecessarily created fetters upon public bodies in discharging their public functions in larger public interest. Vide paragraphs 136, 137 and 139, the Supreme Court has discussed law on the issue thus:-
"139. Law gives no recognition to an act of shunning essential duties by an entity of the State. There is a settled body of cases which expounds that a body entrusted with essential public functions cannot unduly put fetters on its powers. In Indian Aluminium Company51, this Court noted the proposition thus:
"12. This case was followed by Russell. J. in York Corporation v. Henry Leetham & Sons Ltd.52. There, the plaintiff corporation was entrusted by statute with the control of navigation in part of the rivers Ouse and Fose with power to charge such tolls within limits, as the corporation deemed necessary to carry on the two navigations in which the public had an interest. The corporation made two contracts with the defendants under which they agreed to accept, in consideration of the right to navigate the Ouse, a regular annual payment of £600 per annum in place of the authorised tolls. The contract in regard to navigation of the Fose was on similar lines. It was held by Russell, J. that the contracts were ultra vires and void because under them the corporation had disabled itself, whatever emergency might arise, from exercising its statutory powers to increase tolls as from time to time might be necessary. The learned Judge, after citing Ayr Harbour's case53 and another case Straffordshire and 51 supra at Footnote No.6 52 (1924) 1 Ch 557 53(1883) 8 App 623 Worcestershire Canal Navigation v. Birmingham Canal Navigation54 observed:
The same principle underlies many other cases which show the incapacity of a body charged with statutory powers for public purposes to divest itself of such powers or to fetter itself in the use of such powers.
13. Finally Lord Parker, C.J. said in SouthendonSea Corporation v. Hodgson (Wickford) Ltd.55:
There is a long line of cases to which we have not been specifically referred which lay down that a public authority cannot by contract fetter the exercise of its discretion." (emphasis supplied) Similar proposition is enunciated in J.K. Aggarwal56 In the context of CBSE, the Delhi High Court in Dhruva Parate57 noted how CBSE has created selfimposed restrictions in its Byelaws by permitting no change of name. The Court deprecated this exercise of discretion and noted thus:
"8. The interests of efficiency of an organization ordinarily determine the guidelines that have to be administered; yet when they constrain the authorities of the organization, which is meant to subserve the general public, from doing justice, in individual cases, the guidelines become selfdefeating. In such cases, as in the present one, the end result would mean that the petitioner would be left with two certificates with different names and a whole lifetime spent possibly on explaining the difference - hardly conducive to him, reflecting the inadequacy in the system." 541866 LR 1 HL 254 551961 2 All ER 46 56 supra at Footnote No.7 57 supra at Footnote No.4 In light of the above discussion, we must note that there are no restrictions on the power of CBSE to permit change of name. The Constitution, Resolution and Regulations are functional documents of the Board and none of these documents provide for any such fetters. Therefore, in the exercise of its discretion, the Board cannot put fetters on its duties so as to cause grave prejudice to the students with legitimate causes for changing their certificates. The exercise of discretion in this negative manner would be arbitrary and unreasonable, at best"
8. In view of the above, the respondents are, therefore, directed to reconsider the matter. If the petitioner submits relevant public documents including the high school and B.Sc. marks-sheet-cum-certificates within a period of four weeks from today before the Regional Director, Allahabad, he shall forward the requisite papers after due verification within a week, to the higher authorities to do the needful without getting prejudiced by the decision already taken by it. Necessary correction should be carried out and corrected document shall be issued within a period of six weeks thereafter. The above directions are issued looking to the special facts and circumstances of the case.
9. With the above observations and directions, the writ petition is disposed of.
Order Date :- 14.3.2022 Shiraz