Gujarat High Court
Pathan Nadeemkhan Valibahadur vs State Of Gujarat on 14 June, 2021
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/4890/2021 ORDER DATED: 14/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4890 of 2021
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PATHAN NADEEMKHAN VALIBAHADUR
Versus
STATE OF GUJARAT
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Appearance:
MRS NASRIN N SHAIKH(2451) for the Petitioner(s) No. 1
MR PUNAM G GADHVI(3724) for the Respondent(s) No. 3
MS KEYA D PATEL(11258) for the Respondent(s) No. 3
MR MANRAJ BAROT AGP for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 14/06/2021
ORAL ORDER
By way of this petition under Article 226 of the Constitution of India, the petitioner has invoked an extraordinary jurisdiction of this Court for seeking following reliefs :-
"[A] To issue a writ, order or direction quashing and setting aside the Reply of the District Education Officer, Ahmedabad dated 10/11/2020 being "Annexure-B" to the petition.
[B] To issue a writ of mandamus or any other appropriate writ, order or direction directing the Respondent Authority to effect the change of Month of Birth from 22/08/2003 to 22/09/2003 and also correct the petitioner name mentioned in the Leaving Certificate and be further pleased to direct the respondent authority to issue fresh Leaving Certificate showing his real Month of Birth and the real name of the petitioner.
[C] During pendency of the petition ad interim relief in terms of para (B) may please be granted.
Page 1 of 12 Downloaded on : Thu Jun 17 20:39:54 IST 2021 C/SCA/4890/2021 ORDER DATED: 14/06/2021 [D] Your Lordships may be pleased to
grant such other and further relief/s as may be deem just and proper."
2. The case of the petitioner is that the petitioner is a citizen of India. The son of the petitioner was born on 22.09.2003 at Chhipa Welfare General Hospital, Ahmedabad and on 10.11.2003, the competent authority registered the birth date of son of the petitioner. However, the birth date of son of the petitioner was inaccurately recorded in the school leaving certificate of the respondent school as 22.08.2003 instead of 22.09.2003. In addition thereto, even in the school leaving certificate, the name of the petitioner was erroneously recorded as Nadeem instead of Nadeemkhan. It is the case of the petitioner that the son of the petitioner is named as Shahidkhan. He is studying in Western India Institute of Aeronautics Private Limited and wants to apply for computer number from Directorate General of Civil Aviation (DGCA), but in view of aforesaid wrongly written date of birth and name of the petitioner, the petitioner's request had not been considered which has constrained the petitioner to prefer a representation before the authority, however, by a brief order without applying the mind, a decision is taken rejecting the request of the petitioner vide communication dated 10.11.2020 reflecting on page 10 of the petition compilation. Hence, the petitioner, aggrieved by the same, has approached this Court by way of present petition.
3. Originally, the petition came up before Coordinate Bench. Then, the same came up before the Coordinate Bench of this Court wherein vide order dated 23.03.2021, notice was issued making it returnable on 15.04.2021 and since the matter pertained to change of birth date, the same was ordered to be placed on Page 2 of 12 Downloaded on : Thu Jun 17 20:39:54 IST 2021 C/SCA/4890/2021 ORDER DATED: 14/06/2021 07.06.2021 vide order dated 27.04.2021. Lastly, when the matter was taken up before this Court on 07.06.2021, Ms. Nasrin N. Shaikh produced a copy of order passed by the Coordinate Bench of this Court and asserted that the issue is squarely covered by the said decision and thereby, requested for some time and pursuant to the aforesaid order having been passed by this Court, the matter has come up for consideration before this Court where upon learned advocates for the respective parties have been heard.
4. Learned advocate Ms. Nasrin N. Shaikh appearing on behalf of the petitioner has submitted that the petitioner has made a request before the authority time and again precisely before respondent No.2 authority who is District Education Officer and it was expected on part of the said authority at least to examine the material and make necessary changes so far as a school leaving certificate is concerned. According to Ms. Shaikh, it is the District Education Officer who is an appropriate authority to make necessary changes and since respondent No.3 is functioning under the pervasive control of the State authority, the institution on its own cannot correct and this aspect ought not to have been overlooked by the authority who issued the impugned communication on 10.11.2020. Learned advocate Ms. Shaikh has canvassed the submission that Rule 12(A) of the Gujarat Secondary Education Regulations, 1974 is interpreted and examined by the Coordinate Bench of this Court and in almost similar circumstance, a direction was given to correct the date of birth of the concerned petitioner. It has been submitted by learned advocate Ms. Shaikh that this order was shown to the authority at a time when the request was made, but there is no whisper reflecting in the impugned communication. According to her, may be, there may not be the authority invested in the District Education Officer under Page 3 of 12 Downloaded on : Thu Jun 17 20:39:54 IST 2021 C/SCA/4890/2021 ORDER DATED: 14/06/2021 the regulations, but the decision delivered by this Court has clearly suggested that the said authority - District Education Officer can examine and make necessary changes. Learned advocate Ms. Shaikh has then relied upon the decision delivered by the Coordinate Bench of this Court in Special Civil Application No. 4630 of 2018 dated 05.12.2018 and has submitted that appropriate direction on the similar lines be issued against the respondent authority so as to correct the mistake which has been committed. It has been further submitted that the said decision which has been delivered by the Coordinate Bench, as referred to above, has relied upon the decision of Division Bench of this Court in Letters Patent Appeal No. 239 of 2011 dated 24.11.2011 and therefore, according to her, keeping the aforesaid decision in mind, since the authorities are having appropriate powers for making corrections, the present petition deserves to be allowed.
4.1 Learned advocate Ms. Shaikh for the petitioner has submitted that the certificate which is relied upon by the petitioner is the certificate issued by the competent authority in exercise of statutory power under Sections 12 and 17 of the Registration of Birth and Death Act, 1969 and therefore, the said certificate is the statutory certificate. Additionally, learned advocate has also submitted that there is a Adhar Card issued by the Government of India in which also, not only the correct date of birth of the son of the petitioner is recorded, but even the petitioner's name is appropriately recorded and since these documents are having statutory effect, the same ought not have been ignored by respondent No.2 while issuing the impugned communication. That being the position, learned advocate Ms. Shaikh has requested the Court to grant the reliefs as prayed for in the petition.
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5. As against this, learned advocate Ms. Keya D. Patel appearing for respondent No.3 has submitted that the school authority is not competent at all and such necessary corrections are to be effected by respondent No.2. It has been candidly admitted that recording of incorrect date of birth and the name in the school leaving certificate is quite in conflict with the certificate issued by the competent authority under the provisions of Birth and Death Registration Act. Hence, leaned advocate Ms. Patel has expressly offered his consent to correct the said necessary errors.
6. As against this, even learned Assistant Government Mr. Manraj Barot appearing on behalf of the respondent authority has also candidly given his consent to make necessary corrections by issuing necessary direction upon respondent No.2 precisely in view of the fact that this very issue has been dealt with by the Coordinate Bench of this Court as indicated above and the said decision was also based upon the observations made by the Division Bench in the Letters Patent Appeal and as such, has expressed his stand that there shall be no objection if appropriate direction is issued for making necessary changes as prayed for by the petitioner.
7. Having heard learned advocates appearing for the respective parties and having gone through the aforesaid submissions coupled with the observations made by the Coordinate Bench of this Court based upon the Division Bench judgment, this Court is of the opinion that since learned advocates have confirmed the proposition and accepted the same having offered no objection, no further exercise need be in peculiar background of these facts and as such, following are the circumstances which are not possible to be unnoticed by this Court :-
Page 5 of 12 Downloaded on : Thu Jun 17 20:39:54 IST 2021C/SCA/4890/2021 ORDER DATED: 14/06/2021 7.1 The name of the petitioner who is Nadeemkhan appears to have been incorporated in the school leaving certificate as merely "Nadeem" and the word "Khan" is not attached to his name as is reflecting on page 9. In addition thereto, the date of birth of son of the petitioner, which is recorded in the school leaving certificate is 22.08.2003 which is apparently not in conformity with the certificate issued by the competent authority under the provisions of the Birth and Death Registration Act, 1969 as well as in the Adhar Card and therefore, apparently, the entry made in the school leaving certificate is in contrast, erroneous and hence, the case is made out by the petitioner that some inadvertence might have taken place in recording the name of the petitioner as well as date of birth of son of the petitioner. In the aforesaid peculiar background of facts, no doubt, the District Education Officer has refused to correct merely on the ground that there is no authority to make such changes vide communication dated 10.11.2020, but the aforesaid material appears to have not been apparently considered by the authority. It further appears that the decision delivered by the Coordinate Bench of this Court has also not been considered as is clearly visible from the impugned communication and as such, when learned Assistant Government Pleader representing the authority as well as learned advocate appearing for the school authority have specifically no objection to make aforesaid correction, this Court is left with no other circumstance except to consider the request of the petitioner.
8. At this stage, it appears that in respect of school leaving certificate itself, the issue has been dealt with by the Coordinate Bench of this Court in Special Civil Application No. 4630 of 2018 and while disposing of the same vide order dated 05.12.2018, the Court made certain observations which this Court would like to incorporate hereunder :-Page 6 of 12 Downloaded on : Thu Jun 17 20:39:54 IST 2021
C/SCA/4890/2021 ORDER DATED: 14/06/2021
"8. At this stage, this Court would like to refer the observations made by the learned Single Judge of this Court in the order dated 09.10.2006 passed in Special Civil Application No.4337 of 2006, especially, Paragraph9 thereof, which reads as under:
"Para9. Looking to the facts and circumstances of the case and, the Certificate issued under section 12 and 17 of The Registration of Birth and Death Act,1969 the prayer as prayed for is required to be granted since the documents at Annexure 'A' is a statutory Certificate, which has very high evidentiary value. So far as the facts, which are mentioned in the said Certificate at Annexure "A" reveal the date of birth of the petitioner as 28.08.1982. The details given in the Certificate have been recorded as per the statutory provision under the Act,1969. The date of birth mentioned in C/SCA/4630/2018 JUDGMENT Annexure "A" ought to have been reflected in Certificate at Annexure "B" issued by the respondent No.2. The contention raised by the learned counsel appearing on behalf of the respondents that in pursuance of the Rule 12 of Gujarat Secondary Education Rules 1974, such amendment in the school leaving certificate is not permissible, once the student, present petitioner has left the school. This contention is not accepted by this Court mainly for the reason that errors are required to be corrected.
The respondents are not error proof authorities. If the error has been accepted by the respondents denial of corrections of the documents is an arbitrary action. The only question, which is now left out is mandamus operandi for carrying out the corrections in school leaving certificate. There can be several methods of corrections of school leaving certificate like direct correction in the school leaving certificate itself or by keeping the certified copy of birth registration certificate issued by the State of Gujarat under Sections 12 and 17 of the Registration of Birth and Death Act 1969, by the Page 7 of 12 Downloaded on : Thu Jun 17 20:39:54 IST 2021 C/SCA/4890/2021 ORDER DATED: 14/06/2021 concerned school in their register and amended copy of school leaving certificate can be given to the petitioner or by putting notes in margin that this amendment in the birth date is carried out as per the certificate issued by the State Government, but, total denial by the concerned respondents that they shall not amend the school leaving certificate, despite the certificate of birth issued by the State of Gujarat tantamounts to violation of public duty and hence, writ of mandamus is issued upon the concerned respondents to carry out necessary amendment in school leaving certificate on the basis of document issued by the State of Gujarat namely the Birth Certificate issued under the Act, 1969. It is for the concerned respondent school to keep and preserve a certified/original of Annexure "A" in the school register and thereafter, they can issue the corrected copy of school leaving certificate by putting necessary notes in the margin. But the error has to be C/SCA/4630/2018 JUDGMENT corrected by the concerned respondents authorities. There can not be any error, which can not be corrected. Rule made absolute to the aforesaid extent with no order as to costs."
9. Similar observations were also made in Paragraph8 of the order dated 13.02.2007 passed by the learned Single Judge in Special Civil Application No.3259 of 2007, which reads as under:
"Para8. Looking to the facts and circumstances of the case and the Certificate issued under Sections 12 and 17 of the Act, the prayer as prayed for is required to be granted since the document at Annexure 'A' is a statutory Certificate, which has very high evidentiary value. So far as the facts, which are mentioned in the said Certificate at Annexure "A" reveals the date of birth of the petitioner is 1212 1976. The details given in the Certificate have been recorded as per the statutory provision under the Act. The date of birth mentioned in Annexure 'A' ought to have been reflected in Certificate at Annexure "B" issued by the respondent No.4. The contention raised by the learned counsel appearing on behalf Page 8 of 12 Downloaded on : Thu Jun 17 20:39:54 IST 2021 C/SCA/4890/2021 ORDER DATED: 14/06/2021 of the respondents that in pursuance of the Rule 12 of the Gujarat Secondary Education Rules, 1974, such amendment in the School Leaving Certificate is not permissible, once the student, present petitioner has left the school. This contention is not accepted by this Court mainly for the reason that errors are required to be corrected. The respondents are not error proof authorities.
If the error has been accepted by the respondents, denial of corrections of the documents is an arbitrary action. The only question which is now left out is mandamus operandi for carrying out the corrections in the School Leaving Certificate. There can be several methods of corrections of School School C/SCA/4630/2018 JUDGMENT Certificate like direct corrections in the School Leaving Certificate itself or by keeping the certified copy of birth registration certificate issued by the State of Gujarat under Sections 12 and 17 of the Act, by the concerned School in their register and amended copy of School Leaving Certificate can be given to the petitioner or by putting notes in margin that this amendment in the birth date is carried out as per the certificate issued by the State Government, but, total denial by the concerned respondents that they shall not amend the School Leaving Certificate, despite the certificate of birth issued by the State of Gujarat tantamounts to violation of public duty and hence, writ of mandamus is issued upon the concerned respondents to carry out necessary amendment in School Leaving certificate on the basis of documents issued by the State of Gujarat, namely, the Birth Certificate issued under the Act. It is for the concerned respondent school to keep and preserve a certified/original of Annexure A in the School Register and thereafter, they can issue the corrected copy of School Leaving Certificate by putting necessary notes in the margin. But the error has to be corrected by the concerned respondents authorities. There cannot be any error, which can not be corrected."
10. Similarly, in the another petition being Special Civil Application No.8236 of 2006, vide order dated 05.05.2006, this Court disposed of the Page 9 of 12 Downloaded on : Thu Jun 17 20:39:54 IST 2021 C/SCA/4890/2021 ORDER DATED: 14/06/2021 said petition, while giving directions to the concerned authority in Paragraphs8 and 9, which read as under:
"Para8. Looking to the facts and circumstances of the case and, the Certificate issued under C/SCA/4630/2018 JUDGMENT section 12 and 17 of The Registration of Birth and Death Act,1969 the prayer is given required to be granted since the docuemtns at Annexure 'A' is a statutory Certificate, which has very high evidentiary value. So far as the facts, which are mentioned in the said Certificate at Annexure "A" reveals the date of birth of the petitioner is 20.11.1981. The details given in the Certificate have been recorded as per the statutory provision under the Act,1969. The date of birth mentioned in Annexure "A" ought to have been reflected in Certificate at Annexure "B" issued by the respondent No.2.
Para9. Accordingly the respondent Nos. 2 is directed to make necessary changes in their records and Certificate, as stated hereinabove showing the correct date of birth of petitioner as 20.11.1981 instead of 20.11.1979. This exercise shall be done on before 19.05.2006. D.S. Permitted. Rule made absolute to the aforesaid extent."
11. The Division Bench of this Court in the order dated 24.11.2011 passed in Letters Patent Appeal No.239 of 2011, even after considering the provisions of alternative remedy under the concerned regulation, observed in Paragraph11 as under:
"Para11. This Court is, therefore, left with two alternatives, first being that to relegate the appellant to the Civil Court for pursuing his cause while setting aside the order impugned and secondly, to set aside the order impugned and, instead of insisting the appellant to pursue alternative remedy, exercise its extraordinary jurisdiction under Article 226 of the Constitution of India and to issue a direction to the school authorities for making C/SCA/4630/2018 JUDGMENT necessary correction, particularly Page 10 of 12 Downloaded on : Thu Jun 17 20:39:54 IST 2021 C/SCA/4890/2021 ORDER DATED: 14/06/2021 when there is no dispute about the genuineness of the certificate of birth and the date of birth indicated therein. In our view, a citizen need not be made to run from pillar to post for such a genuine and petty cause and we deem it proper to opt for the second alternative in the peculiar facts of this case."
12. Keeping in view of the aforesaid orders passed by this Court from time to time, if the facts of the present case are considered, it can be said that the Birth Certificate issued by the competent authority under the provisions of the Act of 1969 is a statutory certificate, which has very high evidentiary value and respondent No.4 has to consider the said aspect while correcting the date of birth in the School Leaving Certificate.
13. Thus, in the facts and circumstances of the present case, the relief prayed for by the petitioner is required to be granted. Respondent No.3 is hereby directed to make necessary changes in their record and Certificate, as observed hereinabove, showing the correct date of birth of the petitioner as 09.09.1975 in place of 28.08.1975."
9. In view of the aforesaid proposition which has been pronounced by the Coordinate Bench of this Court, which is again based upon the observations made by other decisions including the observations made by the Division Bench of this Court in Letters Patent Appeal No. 239 of 2011, as a part of judicial discipline, this Court is of the opinion that appropriate direction deserves to be issued in the context of request made by the petitioner which would meet the ends of justice. Instead of dragging the petitioner from pillar to post, in this peculiar background of facts when learned advocates for respondents have no objection to relief being granted, the Court is convinced to issue appropriate direction by setting aside the impugned communication. Accordingly, the petition stands disposed of on following lines which would meet the Page 11 of 12 Downloaded on : Thu Jun 17 20:39:54 IST 2021 C/SCA/4890/2021 ORDER DATED: 14/06/2021 ends of justice :-
9.1 The impugned communication dated 10.11.2020 is hereby quashed and set aside with a consequential direction that as and when the petitioner approaches the authority i. e.
respondent No.2 along with appropriate material including the decision delivered by the Coordinate Bench of this Court, as referred to above, respondent No.2 authority shall examine the same independently and make necessary correction if found to be well supported by the certificates which are attached to the petition compilation.
9.2 The aforesaid exercise shall be undertaken by the respondent authority within a period of three weeks from the date of approach and request of the petitioner and while passing the fresh order, the authority shall take into consideration the aforesaid observations as recorded in the present order.
10. With the above observations and direction, the petition stands disposed of.
Direct service is permitted.
(ASHUTOSH J. SHASTRI, J) cmk Page 12 of 12 Downloaded on : Thu Jun 17 20:39:54 IST 2021