Jammu & Kashmir High Court - Srinagar Bench
Latief Ahmad And Anr vs State And Ors on 16 July, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP No. 1501 of 2011 CMP No. 2380 of 2011 Latief Ahmad And Anr. Petitioners State and Ors. Respondents !Mr. Zahoor Jan, Advocate ^Mr. Javaid Iqbal, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 16/07/2013 : J U D G M E N T :
01. Order No. f (Legal-KD)/B/2011 dated 25th July, 2011 issued by Joint Secretary Legal/Cert. (KD) of the Jammu & Kashmir State Board of School Education, Bemina Campus, Srinagar is called in question in this writ petition, which is taken note of:
The Jammu and Kashmir State Board of School Education, Bemina Campus, Srinagar.
No:f (Legal-KD)/B/2011 Dated:25.07.2011 Sub:- Latief Ahmad Bhat and Ors.
Vs. State and Ors.
SWP.No:
CMP.No:
As per the directions of the Honble High Court of J&K at Srinagar, dated 27th December, 2010, to effect corrections in the caste on the basis of the available records. The case was considered by the authorities on its merits. The record and other material was perused and it was resolved that there was no variation between school record and Board record i.e. caste reflected in school record is reflected in the Board records without any error or omission. Further the case of the petitioner was hopelessly time barred.
It is pertinent to mention here that the above decisiokn of the committee was communicated to our standing counsel to appraise the Honble High Court accordingly.
Joint Secretary Legal/Cert.(KD) Public Information Officer (KD)
02. Respondent-Board Authorities have filed reply affidavit/objections.
03. The petitioners had earlier approached this Court by filing OWP.No. 478/2007, which petition was disposed of by the Court vide its Order dated 27th December, 2010. The operative part of the order is taken note of:
The petitioners will approach the School-respondents 4 and 5 for change of school records in respect of their caste from Shanda to Bhat. The school Authorities will consider the claim on its own merits /rules/Government order and take a decision thereon. In the event the School Authorities accept the claim of the petitioners and correct the school record by reflecting the caste of the petitioners as Bhat instead of Shanda, then the School-Authorities will submit the record to the Board-Authorities who will take decision thereon in accordance with rules governing the field.
04. The material placed on writ record would show that the School- Authorities corrected their records and the caste (sub-caste) of the petitioners was changed from Shindah to Bhat. The principal, SMD Dedicate High School, Soura, accordingly sent Communication dated 17th February, 2010 to the Joint Secretary, Jammu and Kashmir State Board of School Education, Srinagar, informing about the change effected in the school records in respect of the caste of the petitioners. The respondent-Board Authorities, after considering the matter, rejected the claim of the petitioners for change of caste on twin grounds viz:
i) There was no variation between the school records and Board records, inasmuch as, the caste reflected in the school records was reflected in the Board records without any error or omission;
ii) The case of the petitioners was stated to be hopelessly time barred.
05. Mr. Zahoor Jan, learned counsel for the petitioners, submitted that after the school records were corrected, it was the duty of the Board- Authorities to effect correction in their records and change the caste of the petitioners from Shindah to that of Bhat. Learned counsel submitted that without recording any lawful reason, the claim of the petitioners has been rejected.
06. Mr. Javaid Iqbal, learned counsel appearing for Board- Authorities, submitted that there is settled procedure prescribed for effecting change in the name, or in the name of father or guardian or sub-caste. Learned counsel invited the attention of the Court to paragraph-4 of the reply affidavit/objections, where the Regulation/Norm-15 has been reproduced. Learned counsel, more particularly referred to paragraph-(ii) and (iii) of the said Regulation and submitted that petitioners have not followed the procedure prescribed in Regulation-15 and have not applied within the prescribed period of one year from the date of issuance of Secondary School Examination qualification certificate for effecting correction in records, so are disentitled for seeking change of caste from Shindah to Bhat.
07. Regulation-15 as reproduced in the reply affidavit/objections, is taken note:
15. Correction in name, parentage, sub-caste, etc. Candidate who has been enrolled for any examination of the Board applying for change in his name, or in the name of his father or guardian or sub-caste is required to pay the prescribed fee and the following procedure shall be followed in this behalf:-
(i) An affidavit duly sworn before a 1st Class magistrate by the father or the guardian of the student, and advertisement in at least one local newspaper, will be necessary in all such cases where change in name or sub-case of the candidate is sought for purpose of proving identity.
(ii) Besides advertising the change in name, parentage or sub-
caste in any one local newspaper the proposed change shall be advertised in the Government Gazette.
(iii) No application shall be entertained unless ordinarily it comes through the Principal/Headmaster/Headmistress of the Higher Secondary/Secondary School last attended by him or her and is invariably accompanied by the Affidavit and the cutting from the Newspaper in which the advertisement is published within a period of one year from the date of issue of the Secondary School Education qualification certificate.
Provided that a candidate who has not been a regular student of any recognized school may apply direct to the Secretary of the Board.
(iv) Change in parentage may be made in the Board records only in cases where it is established by the filing of an Affidavit duly attested by a Magistrate of Class 1st , to the effect that the mistake was bonafide and due to clerical error. The above procedure will also be followed in the connection.
(v) Only one change either in the candidates name or sub- caste or in parentage should be made at a time.
(vi) All applications for change in name, parentage, or sub- caste or sub-caste by students who cannot produce the school record shall be considered by the Board on its merits...
08. The petitioners approached this Court seeking change of caste from Shindah to that of Bhat. Paragraph-5 of the Order dated 27th December, 2010, passed in OWP.No. 478/2007 is taken note of:
... Learned counsel for the respondent-Board submitted that the Board Authorities are duty bound to reflect the name/caste of the students in the Board records which is forwarded to it by the school authorities, where the person has studied. It is further submitted that there is no rule which would authorize the Board- Authorities to effect change unless the same is made in the school record in the first place. He also submitted that the petitioner have to get the school records corrected first in order to enable the Board-Authorities to consider their claim for correction of caste from Shanda to Bhat.
09. Learned counsel, appearing for respondent-Board, in the earlier writ petition, had taken specific stand before the Court that the Board- Authorities are duty bound to reflect the name/caste of the students in the Board records, which are forwarded to it by the School-Authorities where the person has studied. Stand was further taken that the petitioners have to get the school records corrected in the first place so as to enable the Board-Authorities to consider their claim for change of caste from Shindah to Bhat. It is in this backdrop, the writ petition was disposed of and petitioners were given liberty to approach the School- Authorities for change of school record in respect of their caste from Shindah to Bhat. The respondents were directed to consider their claim on the basis of merits/rules/Government orders. It was further provided that in the event the School Authorities accept the claim of the petitioners and correct the school record by reflecting the caste of the petitioners as Bhat instead of Shindah, then the School- Authorities would submit the record to the Board-Authorities who will take decision thereon in accordance with rules governing the field.
The claim of the petitioners for change of their caste from Shinda to Bhat has been rejected in terms of impugned Order dated 25th July, 2011, which is held to be illegal, and also suffers from non- application of mind for the following reasons:
a) The Board-Authorities have stated in the impugned order that there is no variance between school records and Board records, which stand taken in the impugned order is factually incorrect. The School-Authorities have corrected their records and changed the caste of the petitioners from Shindah to Bhat. Communication in this behalf has been sent to Joint Secretary, Jammu and Kashmir State Board of School Education, Srinagar on 17th February, 2010. In the impugned order, no reference is made to the communication of principal SMD Dedicate High School, Soura, Srinagar;
b) Regulation-15 has been pressed into services to show that the claim of the petitioners is time barred. Paragraph-(iii) of the Regulatuion-15 provides that no application shall be entertained unless ordinarily it comes through the Principal/Headmaster/Headmistress of the Higher Secondary/Secondary School last attended by him or her and is invariably accompanied by the Affidavit and the cutting from the Newspaper in which the advertisement is published within a period of one year from the date of issue of the Secondary School Education qualification certificate. The expression unless ordinarily does not make it mandatory that claim for seeking change in caste, has to be necessarily made within one year from the date of issuance of Secondary School Examination qualification certificate.
The expression unless ordinarily, appearing in paragraph-(iii) of Regulation-15, provides that in the normal course, the application shall be filed within a period of one year. The interpretation sought to be placed by learned counsel for the Board-Authorities that the application shall be necessarily filed within a period of one year from the date of issuance of Secondary School Examination qualification certificate, if accepted, is bound to have harsh and unjust consequences. There can be variety of reasons for not filing of applications within the period of one year from the date of issuance of Secondary School Examination qualification certificate. If the argument of learned counsel for the Board-Authorities is accepted, then a person would live and die with a caste which was wrongly recorded in the school and Board records. If the paragraph-(iii) of the Regulation-15 is held to be mandatory in nature in the matter of filing of applications for correction of records, as already stated, is bound to produce unjust results. An Unjust Rule can never be enforced by Court of law. However, paragraph-(iii) of the Regulation-15, as already stated, does not mandate that the application has to be filed within the period of one year from the date of issuance of Secondary School Examination qualification certificate.
c) Though it is inconsequential to get the proposed change in the sub-caste advertised in the Government Gazette, but the said proposed change has to be necessarily advertised in one of local Newspaper. The proposed change can be advertised in the Government Gazette at any point of time even after change is effected. This would be done only in order to keep the record straight, but it cannot become a ground for declining the claim of claimants for change of caste.
10. It is duty of the respondent-Board Authorities being custodian of the records to maintain the correct record and when it is shown to the satisfaction of the concerned Authorities that incorrect/wrong record has been maintained, then they are duty bound to correct their records. The correct records, which are to be maintained by the Board-Authorities, do have impact on the whole life of a person.
11. For the above stated reasons this writ alongwith connected CMP(s) is disposed of in the following manner:
a. By issuance of writ of Certiorari, the Order dated 25th July, 2011 is quashed;
b. The respondent-Board Authorities are directed to reconsider the whole issue and take all steps in accordance with the rules and in the light of observations made in this Judgment for changing the caste of petitioners from Shinda to that of Bhat; c. The respondent-Board Authorities to consider and pass necessary order for changing the caste of petitioners, preferably within period of eight weeks from the date copy of this order is served.
Disposed of.
(Muzaffar Hussain Attar) Judge SRINAGAR July 16, 2013 Shamim Ahmad