Jammu & Kashmir High Court - Srinagar Bench
Raja Munawar Saleem Khan vs State Of J&K And Others on 25 May, 2022
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP No. 272/2015
Reserved on : 25.04.2022
Pronounced on:25.05.2022
Raja Munawar Saleem Khan ...Appellant(s)/Petitioner(s)
Through:- Mr. Suhail Ishtiyaq, Advocate
v/s
State of J&K and others ...Respondent(s)
Through:- Mr. Mir Majid Bashir, Advocate
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
1. The petitioner in the instant petition filed under Article 226 of the Constitution of India craves the indulgence of this Court in granting the following reliefs :-
"i. By issuance of an appropriate writ or direction, including one, in the nature of Mandamus, directing the respondents to correct the parentage of the petitioner from "Mohammad Saleem Khan"
to "Mohammed Ayub Khan" and the date of birth of the petitioner from 03.12.1987 to 13.11.1991 in its records and issue corrected certificates in his favour.
ii. By issuance of an appropriate writ or direction, including one, in the nature of Certiorari, the impugned order dated 12.04.2010 passed by the respondent No. 3 be quashed."
2 OWP No. 272/2015
2. The background facts those stem out from the petition would reveal that the petitioner is born on 13.11.1991, got admitted in Public School Ganderbal having left the said school on 29.11.2001 after studying up to 5th Standard.
3. The petitioner states that he thereafter, got admitted in the Institute of respondent No. 5 and studied up to 8th Standard therein, and left the said institute in the Month of November, 2004, whereafter, states to have got admitted in the 9th Standard in the Institute of respondent No. 4 and passed the 10th Standard (Secondary School Examination) in the year 2006 under registration No. 05NKM-801612 from the said institute.
4. It is being next stated that on receiving the qualification certificate of the 10th Standard, the petitioner came to know about incorrect recording of his parentage and date of birth in the said qualification certificate dated 10.02.2007.
5. The petitioner further states that the incorrect date of birth and parentage had got incorporated wrongly by the Institute of respondent No. 5 at the time of seeking discharge from the said Institute and that the same incorrect particulars had got incorporated in the records of the Institute of respondent No. 4 in its admission register.
6. The petitioner next states that the respondent No. 4 had failed to verify the particulars of the petitioner at the time of his admission in its Institute and not only incorporated the said incorrect particulars in the 3 OWP No. 272/2015 admission record, but had also forwarded the same to respondent No. 2 for the registration. The respondent No. 2 is stated to have not verified the particulars of the petitioner as well.
7. The petitioner next states that upon coming to know about the incorporation of incorrect particulars about his parentage and date of birth, he approached the respondent No. 2 for seeking correction of the same and paid the requisite fee thereof vide receipt dated 12.03.2007, besides making the necessary publication in the newspaper on the same date upon a direction from the respondent No. 2.
8. It is being further stated that the petitioner approached the respondent No. 5 thereafter, who sent a communication bearing No. C.O.E.1/17/GBL dated 17.07.2007 to respondent No. 4, making him aware about the mistake having got incorporated in the school leaving certificate of the petitioner, besides forwarding a certificate with correct particulars to the respondent No. 4 for making necessary corrections.
9. The petitioner further states that the respondent No. 4, in turn, also sent a communication bearing No. BHSI/G 110 dated 18.07.2007 to the respondent No. 3, making him aware about the communication sent by the respondent No. 5 in this regard and the respondent No. 3 is stated to have taken cognizance of the said communication and is stated to have in turn sent a communication No. F1 (Correction-Certs) B/07 dated 16.08.2007 to Public School at Ganderbal, wherein the petitioner had initially got admitted/enrolled up to 5th Standard and also to the 4 OWP No. 272/2015 respondent No. 4 and 5 for production of record in original pertaining to the petitioner.
10. It is being next stated that in the meantime, the petitioner passed his Higher Secondary Part Two Examination and the certificate issued thereof again reflected the incorrect particulars about his parentage and date of birth.
11. The petitioner states to have kept approaching the respondents Nos. 2 and 3 for effecting necessary corrections in the records, who are stated to have taken no action in the matter. On account of their failure, the petitioner states to have instituted a suit for declaration and consequential relief before District Judge, Ganderbal against respondent Nos. 1, 2, 4 and 5, which suit is stated to have got dismissed as withdrawn in Mega Lok Adalat on 31.10.2009 in presence of respondent No. 5, who had agreed to rectify the mistake.
12. The petitioner further states that the respondent Nos. 2 and 3 failed to rectify the mistakes in question in the records, compelling the petitioner to institute again a suit before a civil court on 22.12.2009 against respondent Nos. 1, 2, 4 and 5, which suit, however, is stated to have got dismissed on account of res-judicata vide order dated 28.11.2014.
13. The petitioner next states that during the pendency of the second suit, the respondent Nos. 2 and 3 issued the impugned 5 OWP No. 272/2015 communication dated 12.04.2010, rejecting the claim of the petitioner for change in parentage and his date of birth.
14. The impugned communication is being assailed, inter-alia, on the grounds that the same has been issued by the respondent Nos. 2 and 3 without providing an opportunity of hearing to the petitioner and that the same is issued in most arbitrary manner, causing mental agony and harassment to the petitioner, besides violating his legal and constitutional rights, as the refusal to correct the parentage and date of birth of the petitioner has the effect of depriving the petitioner's future, inasmuch as, the right to livelihood rendering him unable to seek an employment.
15. Per-contra, respondent Nos. 2 and 3 have filed objections to the petition, wherein the maintainability of the petition is being questioned in view of the two suits filed earlier by the petitioner herein. Besides, it is being contended in the objections that the petitioner has raised disputed question of facts, which cannot be adjudicated upon in the instant petition. It is also contended in the objections that the petition is hopelessly time-barred and that the impugned communication came to be issued by the respondents after the case of the petitioner was considered and rejected by the duly constituted correction committee in terms of its decision dated 18th February, 17th March 2008 and 26.02.2010, resulting into issuance of impugned communication dated 12.04.2010.
16. Respondent No. 5 has also filed objections to the petition, wherein it is admitted that the petitioner was the student of the 6 OWP No. 272/2015 respondent-School having passed his 8th class examination in the year 2004 under Roll No. 3271 having got subsequently discharged and in the discharge certificate issued has been inadvertently got recorded his date of birth as 03.12.1987, which, in fact is date of birth of his brother, namely, Raja Anwar Saleem Khan and had been figuring in the serial no. 24 of the admission of the withdrawal register, wherein the petitioner had been figuring at serial no. 26 and in the said admission and withdrawal register of the school having been signed by the respondent-Principal and counter signed by the Deputy Chief Education Officer Srinagar, Headquarter Ganderbal.
17. It is admitted in the objections that the date of birth as well as the parentage of the petitioner had been wrongly recorded as 03.12.1987 due to oversight against the correct particulars of the petitioner being as follows :-
Name : Raja Munawar Saleem Khan
D.O.B : 13.11.1991
S/o : Mohmad Ayoub Khan
R/o : Buderkhund, Ganderbal
Heard learned counsel for the parties and perused the record.
18. Before adverting to the legality or otherwise of the impugned communication dated 12.04.2010, it would be appropriate to address in the first instance to the preliminary objections raised by the respondent Nos. 2 and 3 qua the maintainability of the petitioner. 7 OWP No. 272/2015
19. A bare perusal of the record admittedly tends to show that the first suit filed by the petitioner was dismissed as withdrawn in the Mega Lok Adalat, whereas the second suit had been dismissed on the principle of application of res-judicata in the case. Indisputably, none of the said suits had been decided on merits but merely on technical grounds. The Apex Court in case titled as, "Puran Singh vs. State of Punjab", reported as 1996 SCC (2) 205, AIR 1996 SC 1092], wherein it has been held that remedy in the nature of petition under Article 226 of the Constitution of India aims at securing a very speedy and efficacious remedy to a person, whose legal or constitutional right has been infringed. If all the elaborate and technical rules laid down in the Code of Civil Procedure are to be applied to writ proceedings, the very object and purpose of the extra-ordinary jurisdiction is likely to be defeated.
20. It is also a settled law that when substantial justice and technicalities are pitted against each other, cause of justice has to be preferred.
21. In view of the aforesaid principle of law and having referred to the facts that the earlier suits of the petitioner herein had got dismissed on technical grounds but not on merits, it is held that the dismissal of the said suits would not act as a bar to the petitioner in approaching this Court through the medium of the instant petition, moreso, when fresh cause of action had accrued to the petitioner upon issuance of impugned communication dated 12.04.2010 issued by respondent Nos. 2 and 3. The 8 OWP No. 272/2015 preliminary objections, thus, raised by the counsel for respondent Nos. 2 and 3, is turned down.
22. Reverting back to the merits of the case, perusal of the record manifestly demonstrates that the respondent Nos. 4 and 5 have admitted and conceded to have committed a mistake while recording the parentage and date of birth of the petitioner wrongly in the records and in presence of such an admission, the respondent Nos. 2 and 3 had no reason or occasion to decline to effect necessary corrections in this regard in their records upon asking of the petitioner.
23. The perusal of the impugned communication would reveal that the respondents have rejected the application of the petitioner by verily stating that the same had been rejected after due consideration having observed that the case does not come under the purview of the rules/regulations governing the case of corrections of date of birth. Neither convincing nor credible reason is spelt out in the impugned communication as to why the case of the petitioner does not fall within the said rules and regulations.
24. During the course of the hearing, the learned counsel for the petitioner invited the attention of this Court to the Regulation 15 stated to have been acted upon by the respondent Nos. 2 and 3 in the matter. The said position was admitted by the counsel for the respondents Nos. 2 and
3. A reference herein to the said Regulation 15, thus becomes imperative herein, which provides as under :-
9 OWP No. 272/2015
"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.
10 OWP No. 272/2015
(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."
A bare perusal of the aforesaid regulation would suggest that the same provides for the procedure to be followed in a case where corrections in name, parentage, date of birth, sub-caste, etc., is being sought by a candidate.
25. In para 12 of the petition, the petitioner states to have complied with the requirements and followed the procedure provided in Regulation 15 (supra) in so far it related to him and the same is not being denied by the respondent Nos. 2 and 3 in their reply.
26. The fact remains that the respondents while rejecting the case of the petitioner in terms of the impugned communication have not only overlooked the aforesaid compliance undertaken by the petitioner, but have also failed to take into account and consideration the communications addressed by the respondent Nos. 4 and 5, wherein the said respondents have in specific and explicit terms, acknowledged to have committed mistakes in recording the parentage and date of birth of the petitioner in their records. Even the existence and receipt of said communications have not been denied by the respondent Nos. 2 and 3 in their reply. The respondent Nos. 2 and 3, seemingly, have failed to perform their bounden duty envisaged under Regulation 15 (supra), but instead appeared to have adopted and followed a casual and callous approach in this regard. The rights and interests of the petitioner in the process admittedly have been breached with impunity by the respondent 11 OWP No. 272/2015 Nos. 2 and 3 and the petitioner has been made to suffer for none of his faults. The petitioner has been virtually made to change/loose his identity by the respondent Nos. 2 and 3 and has been compelled to be known not by his lineage through his parentage, particularly, through his father, but through a stranger. The said inaction of the respondent Nos. 2 and 3 by, no sense of imagination, can said to have any sanctity of law.
27. For what has been observed, considered and analyzed herein above, the petition succeeds and consequently by issuance of writ of Certiorari, the impugned communication/order dated 12.04.2010 is quashed and by issuance of writ of Mandamus, the respondent Nos. 2 and 3 are directed to effect necessary corrections in the relevant records qua the parentage and the date of birth, as sought by the petitioner within a period of 06 weeks from the date a copy of this order is made available to respondent Nos. 2 and 3. Having regard to the facts and circumstances of the case, a costs of Rs. 10,000/- is imposed upon respondent Nos. 2 and 3, to be paid to the petitioner within the aforesaid time.
28. The writ petition is, accordingly, disposed of.
(JAVED IQBAL WANI) JUDGE Jammu 25.05.2022.
SUNIL-I
Whether the order is speaking ? : Yes
Whether the order is reportable ? : Yes