Delhi District Court
Mohd Mohid vs Cbse on 31 January, 2022
IN THE COURT OF MS. NITI PHUTELA
SENIOR CIVIL JUDGE (SOUTH DISTRICT)
SAKET COURTS, NEW DELHI
Suit No. 405/18
Mohd Mohid
S/o Mohd Yunus
R/o Near Rehmaniya Masjid,
K1451, Street no. 17A,
Road no. 19, Sangam Vihar
New Delhi110062.
..........Plaintiff
Versus
CBSE
Shiksha Kendra, 2 Community Centre,
Preet Vihar, New Delhi ...........Defendant
SUIT FOR DECLARATION
Date of Institution of the case : 04.05.2018
Date on which order was reserved : 19.01.2022
Date of decision : 31.01.2022
JUDGMENT
1. As per the case of Plaintiff, he was the student of KSK Academy situated at H117, Ratiya Marg, Sangam Vihar. In the year 2014, he appeared in 10th class examination vide roll no. 8202800 and passed the same.
2. At the time when he received his 10 th class marksheet, it came to the notice of the plaintiff that his name and his father's name was wrongly CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.1 of 14 mentioned as 'Mo Mohid Khan S/o Mo Yunus' instead of 'Mohd Mohid S/o Mohd Yunus'.
3. In this regard, plaintiff published a public notice in the newspaper 'Jan Satta' dtd 28.02.2018 and in the Gazette of India dtd 1723 March 2017. Plaintiff also approached the defendant for change of his name and of his father's name from time to time but in vain.
4. Hence, aggrieved by the same, plaintiff has filed the present suit for declaring the true and correct name of the plaintiff and his father as Mohd. Mohid S/o Mohd Yunus and issue direction to defendant to do necessary action.
5. Summons of the suit were issued to the defendant. Defendant appeared in the court and filed its WS.
WRITTEN STATEMENT OF DEFENDANT
6. Defendant in its WS stated that CBSE has its rules, regulations and byeLaws regarding changes in the date of birth, change/correction in name of the candidate and/or parents, however, CBSE cannot go beyond its rules/ByeLaws in any circumstances.
7. As per defendant, the instant suit of the plaintiff is not tenable in view of the Examination ByeLaws of the CBSE. It is submitted that as per the Notification dated 01/02/2018 of the ByeLaws, 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, factual typographical errors in the candidate's name / surname, Father's name / CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.2 of 14 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 X / XII 2015 examination onwards.
9. It is alleged that as per the particulars provided in the plaint, plaintiff had passed his 10th class in the year of 2014, thus, above said Bye laws will not be applicable to case in hand. As per defendant, in the present case, the previous ByeLaws would be applicable.
10. The Previous Rule ByeLaws applicable in the present case is reproduced below:
Correction in name to the extent of correction in spelling errors, 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 CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.3 of 14 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 ONE YEAR of the date of declaration of result provided the application of the candidate is forwarded by the head of the 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.
11. As per defendant, suit of the Plaintiff is without any cause of action. It is alleged that Plaintiff has not given any cogent reason for his desire for correction in his name from "MO MOHID KHAN" to "MOHD MOHID" and his father's name from "MO YUNUS" to "MOHD YUNUS" in the certificate of class 10 th as existing at present, thus, there is a no cause of action in the present suit. It is also alleged that the Plaintiff has not approached this Hon'ble Court with clean hands and has suppressed material facts from this Hon'ble Court, therefore, the suit is liable to be dismissed.
12. In reply on merits, defendant denied all the allegations leveled by plaintiff. It is stated therein that as per the record of LOC filled by the candidate, the name is mentioned as 'MO MOHID KHAN' and not 'MOHD MOHID'. The name of parent is also mentioned to be same in the LOC as is mentioned in the marksheet. It is also stated that the said LOC is duly signed by the plaintiff. Hence, in this background, CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.4 of 14 defendant prayed the suit is liable to be dismissed.
Replication
13. The plaintiff filed the replication wherein, he denied the averments of defendant alleged in the WS and reasserted and reiterated the facts alleged by plaintiff in the plaint.
Issues
14. Upon completion of pleadings, following issues were framed by Ld Predecessor Judge vide order dtd 14.12.2018.
(1) Whether the plaintiff is entitled to relief of declaration as prayed for ?OPP (2) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for ?OPP (3) Whether the suit of plaintiff is barred by byelaws of CBSE? OPD (4) Relief.
Plaintiff Evidence
15. In order to prove his case, plaintiff got examined himself as PW1. He entered the witness box and tendered his affidavit as Ex.PW1/A. He relied upon documents i.e. copy of his birth certificate which is Ex.PW1/1 (OSR), copy of Aadhaar Card which is Ex.PW1/2 (OSR), copy of Aadhaar Card of his father which is MarkPW1/3, copy of 10th class certificate which is Ex.PW1/4 (OSR), newspaper 'Jan Sata' dated 28.02.2018 in respect of publication which is Ex.PW1/5, copy of Gazette of India which is Ex.PW1/6 and copy of receipt No. 35958 dated 01.03.2018 of publication which is Ex.PW1/7 (OSR). He was crossexamined by Ld Counsel for defendant and was discharged.
CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.5 of 14
16. Plaintiff also examined PW2 Dr Om Pal Singh, Principal of KSK Academy, Senior Secondary School, Sangam Vihar, who was a summoned witness. He brought copy of Admission Form along with documents which are Ex.PW2/A (Colly). He was crossexamined by Ld Counsel for defendant and was discharged.
17. PE was closed vide order dated 21.10.2021. Defence Evidence
18. No evidence was led by defendant. Hence, opportunity to defendant to lead evidence was closed vide order dtd 08.12.2021.
Final Arguments
19. Final arguments advanced on behalf of Ld Counsel for defendant. Heard. Record perused.
Findings
20. All the issues are taken up together being interconnected (1) Whether the plaintiff is entitled to relief of declaration as prayed for ?OPP (2) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for ?OPP (3) Whether the suit of plaintiff is barred by byelaws of CBSE? OPD
21. The onus to prove the issue no. 1 & 2 was upon plaintiff and that of issue no. 3 was upon defendant.
22. 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 rightAny person entitled to any legal character, or to any right CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.6 of 14 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, 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."
23. Therefore, declaration can be granted only when any legal character or right in the property is denied by the other party. In the case in hand plaintiff is seeking declaration to the effect that his name is Mohd Mohid S/o Mohd Yunus which is required to be incorporated in his 10 th class marksheet issued by CBSE. In the WS filed by CBSE, it has denied that the said change cannot be incorporated.
24. In order to prove his case that his actual name is Mohd Mohid and his father's name is Mohd Yunus, plaintiff relied upon copy of his birth certificate Ex.PW1/1, his Adhar Card Ex.PW1/2, Adhar card of his father Mark PW1/3, publication in newspaper 'Jan Satta' Ex.PW1/5 and Gazette notification Ex.PW1/6.
25. In the birth certificate and the above said Aadhar cards the name of plaintiff is mentioned to be Mohd Mohid and that of his father is mentioned to be Mohd Yunus, whereas, in the marksheet of the 10 th class the copy of which is Ex.PW1/4, the name of plaintiff is mentioned to be Mo Mohid Khan and that of his father is mentioned to be Mo Yunus.
26. In this regard, it is the case of defendant that the names which are mentioned in the marksheet Ex.PW1/4, were the same names which were provided by plaintiff in the list of candidates (LOC). Plaintiff on CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.7 of 14 being crossexamined as PW1 was confronted with the copy of LOC which is Ex.PW1/D1. Plaintiff admitted his signatures in the said document at point A.
27. Thus, it is clear and evident that the particulars in the marksheet Ex.PW1/4 are in conformity with the particulars which were provided by plaintiff and his parents in the LOC which is Ex.PW1/D1.
28. In this regard, it is also relevant to mention that Principal Dr Om Pal Singh, Principal of the School where plaintiff was studying, entered the witness box as PW2. He filed on record the copy of admission form which is Ex.PW2/A, admitted on 04.04.2012. He deposed that in the said admission form, the name which was provided by the father of plaintiff was Mo Mohid Khan and the correction which was made in the said form by mentioning 'Mohd' was mentioned subsequently at his oral request. On perusal of the said document, it is also clear that the name of father of plaintiff was mentioned as Mo Yunus but later on in different handwriting 'Mo' has been converted into 'Mohd'. The said admission form is also accompanied with copy of a document titled 'Admission and Withdrawal register'. On perusal of the said document it is clear that the name of plaintiff is mentioned as 'Mohd Mohid Khan' and that of his father is mentioned as 'Mohd Yunus'.
29. The said witness i.e. PW2 also deposed that as no written application was filed by the candidate/ his father seeking change in the name and as no document supporting the change was filed, therefore, LOC was sent with the particulars which were mentioned in the admission form to the CBSE without incorporating the changes which were orally CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.8 of 14 requested.
30. On perusal of all the above said documents, it is clear that the present case is not of correction of the name but of change in name. Hence, Rule 69.1 (ii) of CBSE byelaws will not be applicable but Rule 69.1 (i) of CBSE byelaws will be applicable.
31. As the plaintiff appeared in the examination in the year 2014, therefore, the amended byelaws of 2018 which were applicable for the students, who appeared in exams of classes 10th / 12th in the year 2015 and onwards shall not be applicable to the present case. Hence, as per the previous byelaws, the plaintiff was required to approach the court for change in name within one year of declaration of the result. However, plaintiff filed the present suit on 04.05.2018. His result was declared on 20.05.2014. Thus, he has approached the court beyond the limitation period of one year.
32. However, as per the judgment of Hon'ble Supreme Court of Full Bench 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 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.
CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.9 of 14 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
33. 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.PW1/1 and Aadhar cards of plaintiff and his father which are Ex.PW1/2 and MarkPW1/3, wherein the name of plaintiff is mentioned as 'Mohd Mohid' and that of his father is mentioned as CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.10 of 14 'Mohd Yunus'.
34. In respect to the said documents, it was argued by ld Counsel for defendant that the said documents 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 marksheet in question.
35. In respect to the said argument there is substance in the version of Ld Counsel for defendant that the birth certificate was got issued on 03.09.2016 and the Aadhar Card of plaintiff was got issued on 22.11.2017, thus, the said documents are of a later in time then the marksheet in question. However, the Adhar card of father of plaintiff was got issued on 25.11.2011 which is a date prior in time of the said marksheet. 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 "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 CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.11 of 14 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 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.)"
CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.12 of 14
36. 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 dtd 17.03.2018. 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.
37. Thus, by relying of the judgment of the Hon'ble Supreme Court in case titled Jigya Yadav (Supra), the delay in filing the suit beyond the limitation period of one year will not come in the way of plaintiff and he will be guided by the above said guidelines.
38. Moreover, it is matter of common practice that the suffix Mohammad can be written in short form as "Mohd", "Md" or as "Mo". Thus, by incorporating the said change as such it will not change the identity of plaintiff or his father.
39. In view of the afore said discussion, it is clear that plaintiff has been able to shed the onus upon his shoulders. As far as the onus which was upon defendant in respect to issue no.3 is not shed in the light of the guidelines framed by Hon'ble Supreme Court in case titled Jigya Yadav (Supra), wherein the byelaws in respect to change in name have been opined to be very restrictive and strict.
40. Thus, issue no 1, 2 & 3 are decided in favour of plaintiff and against defendant.
RELIEF
41. In view of the discussion on issue no. 1, 2 & 3, the suit of the plaintiff is decreed in favour of plaintiff. The prayer sought by the CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.13 of 14 plaintiff, declaring his name as 'Mohd Mohid S/o Mohd Yunus' is allowed. The defendant i.e. CBSE is directed to incorporate the necessary changes in the 10th class marksheet of the plaintiff by mentioning the name of plaintiff as 'Mohd Mohid S/o Mohd Yunus'. Fresh marksheet be issued incorporating the necessary changes subject to the payment of administrative fees/ charges by the plaintiff. CBSE can also insist plaintiff to file an affidavit acknowledging the changes requested for, if it deems fit to call for the same.
42. Parties to bear their own cost. Decree sheet be prepared accordingly.
43. File be consigned to record room after due compliance.
Digitally
signed by
NITI
NITI PHUTELA
PHUTELA Date:
2022.02.01
12:24:34
+0530
Announced through video ( NITI PHUTELA)
conferencing on 31.01.2022 SCJ Judge (South)
Saket Courts, Delhi.
CS SCJ 405/18 MOHD. MOHID Vs. CBSE Page no.14 of 14