Bombay High Court
Kishor S/O Sukhdeo Walhekar vs The State Of Maharashtra on 7 January, 2009
Author: K.K. Tated
Bench: P.V. Hardas, K.K. Tated
(1)
WRIT PETITION NO.3319 OF 2005
Date of decision: 7TH JANUARY, 2009
For approval and signature.
THE HONOURABLE SHRI JUSTICE P.V. HARDAS
THE HONOURABLE SHRI JUSTICE K.K. TATED
1. Whether Reporters of Local Papers } Yes
may be allowed to see the Judgment? }
2.
To be referred to the Reporter or not } Yes/No
3. Whether Their Lordships wish to see } No
the fair copy of the Judgment? }
4. Whether this case involves a substantial }
question of law as to the interpretation } No
of the Constitution of India, 1950 or }
any Order made thereunder? }
5. Whether it is to be circulated to the } No
Civil Judges? }
6. Whether the case involves an important }
question of law and whether a copy of } No
the Judgment should be sent to Mumbai, }
Nagpur and Panaji offices? }
[A.S. Bhagwat)
Personal Assistant to
the Honourable Judge.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.3319 OF 2005
Kishor s/o Sukhdeo Walhekar,
Age-19 years, Occ: Student,
R/o-Kranti Nagar, Patoda,
Tq-Patoda, Dist-Beed.
.... PETITIONER.
VERSUS
1) The State of Maharashtra,
Through its Secretary,
School Education & Sports
Department, Mantralaya,
Mumbai,
2) The Divisional Secretary,
Secondary & Higher Secondary
Board, Aurangabad,
3) The Education Officer (Secondary),
Zilla Parishad, Beed,
Dist-Beed.
4) The Headmaster,
Zilla Parishad High School,
Patoda, Tq-Patoda,
Dist-Beed.
.... RESPONDENTS.
RESPONDENTS
...
Mr. N.L. Jadhav Advocate for the petitioner.
Mr.N.B. Patil,A.G.P. for Respondent Nos.1 to 3
Mr.T.B. Bhosale Advocate for Respondent No.4.
...
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2
CORAM: P.V. HARDAS
AND
K.K. TATED, JJ.
DATE : 7TH JANUARY, 2009.
ORAL JUDGMENT: (PER K.K. TATED, J.)
1. Rule. Rule made returnable forthwith.
With the consent of the learned counsel for the parties, this Petition is heard finally at the stage of admission.
2. The present Writ Petition filed by the Petitioner under Article 226 of the Constitution of India for directing the Respondents to decide his application dated 11th March, 2005 for correction of date of birth in the school records.
It is the case of the Petitioner that his birth date is wrongly recorded in the school records and therefore he applied to the Head Master and Education Officer for correction of date of birth.
He also submitted documentary evidence to support his case.
3. It is the case of the Petitioner that his ::: Downloaded on - 09/06/2013 14:13:07 ::: 3 birth date is recorded in school records as 10th January, 1984 whereas his correct birth date is 13th July, 1985. It is the case of the Petitioner that he belongs to the scheduled caste category i.e. Mang. His father is not highly qualified person and due to his less education, he has not taken any care to record the correct birth date in school. Petitioner says that he completed S.S.C. in the year 2000. At that time he was not aware about his wrong date of birth which was recorded in his school career.
ig Petitioner was interested
to participate in cricket team, therefore in
December, 2003 he appeared before the selection
committee at Beed. In December, 2003 he suspected
that his birth date is wrong, therefore the
Petitioner enquired with his mother and the mother informed the Petitioner that his birth date was recorded at Grampanchayat office Pithi.
Therefore, the Petitioner approached the Grampanchayat, Pithi and also Block Development Officer, Patoda who is having custody of old record of birth and death register of Grampanchayat Pithi. On his application, Grampanchayat issued a birth certificate dated 22/1/2004 in which his birth date is shown as 13th ::: Downloaded on - 09/06/2013 14:13:07 ::: 4 July, 1985. On the basis of the said birth certificate, the Petitioner applied by his application dated 14th March, 2005 to the Respondent No.4 Head Master, Zilla Parishad High School, Pithi, Taluka-Patoda, Dist-Beed for correcting his birth date in school records. The Petitioner also made application dated 11th March, 2005 to the Respondent No.3 Education Officer (Secondary), Zilla Parishad Beed for correcting his birth date on the basis of birth certificate issued by Grampanchayat. Though he applied to Respondent No.3 on 11th March, 2005 there was no response from Respondent No.3, therefore the Petitioner was constrained to file aforesaid Petition under Article 226 of the Constitution of India for direction to the Respondents to decide his application dated 11th March, 2005 for correction of date of birth in the school records.
4. Though the Respondents are duly served, except Respondent No.3 no one has filed their affidavit in reply in the above Petition. The Respondent no.3 filed affidavit in reply dated 28th September, 2005 opposing the Petition on the ground that as per clause 26/4 of Secondary School ::: Downloaded on - 09/06/2013 14:13:07 ::: 5 Code, once the entry is taken in the record, the said entry can be changed or modified if the application for change is received when candidate is taking admission in the school. Once the candidate has left the school, no change can be made in his surname, name, caste and birth date.
The procedure for application is given in Schedule IV of the Secondary School Code. Respondent No.3 further stated that the Petitioner already left the school after passing S.S.C. examination, therefore they ig have no authority to change the date of birth.
5. It is submitted by the learned counsel appearing on behalf of the Petitioner that from the Grampanchayat record it is crystal clear that the Petitioner's date of birth is 13th July, 1985, however in the school records it is wrongly mentioned as 10th January 1984. Learned counsel for the Petitioner further submitted that it is the duty of the Respondents to take the note of documentary evidence produced by the Petitioner for correcting his date of birth. He pointed out that Petitioner obtained birth date certificate dated 22nd January,2004 from Grampanchayat where ::: Downloaded on - 09/06/2013 14:13:07 ::: 6 the Petitioner's correct birth date was recorded.
It is submitted on behalf of the Petitioner that because of mistake on the part of his father wrong date was recorded in school records. Learned counsel appearing for the Petitioner further submitted that as per Secondary School Code, Respondents have power to change the birth date if relevant documents are produced before them. For this, learned counsel relied on unreported Judgment of this Court dated 15th March, 2005 delivered by Division Bench (Coram:
Coram: S.
Radhakrishnan & P.B. Gaikwad, JJ.) in the matter
of Vikas Bharat Ghodke vs. State of Maharashtra
in Writ Petition No.1347 of 2005. In this
Judgment, Division Bench of this Court held that
if the Petitioner produces relevant documents to
show that his birth date is wrongly recorded in
school records, then the authorities have power to correct the same as per the Secondary School Code.
6. It is desirable to quote Rule 26.3 and 26.4 of the Secondary School Code, 2002 and it is also necessary to consider relevant portion of Annexure 25 which reads as under:-
::: Downloaded on - 09/06/2013 14:13:07 ::: 726.3. No alteration in the date of birth or other entries in the General Register, including correction of spelling shall be allowed without the previous permission of the appropriate authority. No such alteration in the figure of Date of Birth shall, however be allowed even with such permission after the students has left secondary school. This shall not however preclude corrections of obvious mistakes, this is the date of a particular month which does not exist in the calendar. Before giving sanction to correct spelling or the obvious mistake in figures, the same shall be verified with the original evidence, if any, produced at the time of making the relevant entry. When such an alteration is made on the strength of the written order of the said authority an entry to that effect shall be made in the remarks column of the General Register by writing the number and date of the order of the said authority. The written order shall be preserved as permanent record.
26.4. Application for change or correction of date of birth, name, surname, case etc, as entered in the General Register shall be entertained from or on behalf of a pupil who is attending a school. Such application shall not be entertained from or on behalf of a pupil, who has left the school, as the same amounts not only to a change in the entries in the General Register but also to a change in the School Leaving Certificate. However, for the purposes like an admission to another educational institution the School Leaving Certificate is relied upon as an evidence for name, surname,caste,date of birth etc. and hence in bonafide cases where wrong spelling of a word or an obvious mistake of the type mentioned in sub-rule 3 above is noticed any time after issue of the School Leaving Certificate and the same is required to be corrected so as to be consistent with the corresponding entries in the General Register of the school or those in the School Leaving Certificate ::: Downloaded on - 09/06/2013 14:13:07 ::: 8 issued by the previous school, such applications shall be entertained. The procedure to be followed in such cases is laid down in Appendix Six.
Appendix six . With a view to securing uniformity in the procedure followed in dealing with applications received by the Department in connection with the changes in entries, in the record of schools such as names, surnames, caste/sub-caste, date of birth, etc.the following instructions are issued:
1) .................
2) .................
3) .................
4) .................
5) .................
Change in Date of Birth :
(6) The application shall be submitted in Form No.1 accompanying these rules. It should clearly explain how the wrong entry came to be made.
(7) In support of the change suggested, documentary evidence as specified below must be produced:
(1) (i) A certified extract from the Birth Register;
or
(ii) A certified copy of the Vaccination Certificate.
or
(iii) A certified copy of the Baptismal Certificate in the case of Christians.
And (2) An affidavit made before Stipendiary Magistrate by the parent or guardian declaring the pupil's correct Date of Birth;
::: Downloaded on - 09/06/2013 14:13:07 ::: 9And (3) Other documentary evidence, if any.
(8) No change in the date of birth in the case of a pupil studying in the school shall be sanctioned unless documentary evidence produced clearly identifies the child and the parent and is of such nature as to leave no doubt that a genuine mistake has been made. Reasons for sanctioning the change must be placed on record in writing by the sanctioning authority.
ANNEXURE (25) {Vide Rule 26} Change in the Date of Birth No permission to effect a change in the date of Birth in the General Register of the School shall be granted in case of a student who has left the school or a student has passed the Secondary School Certificate Examination once and has enrolled himself again for additional subjects. However, permission to correct spelling of a word or an obvious mistake in figure of the type mentioned in Rule 26-3 shall be granted.
(GR.No.Edu.Em-GAC/1083/89-SE-2 Dt.16.3.83)"
7. It is common knowledge that to secure admission in a school earlier than at the stage which the law permits, incorrect date of birth may be shown unless verified from the public record, such date may remain in the record of the School.
Such date cannot be verified except by production of a public record. Therefore, the dates mentioned in the School record without verifying ::: Downloaded on - 09/06/2013 14:13:07 ::: 10 the public document as birth certificate issued by a Municipal Corporation or a Gram Panchayat cannot be authenticated as it would make those documents admissible as evidence with probative value in law. Consequently, whenever there is a variation between an unproved private document or its copy and an extract of a public record, the latter must prevail as a probative value carrying presumption under Section 79 of the Evidence Act. This presumption would continue to hold untill it is rebutted.
It cannot be rebutted only by bringing a public record of which extract is made out and certified it to be correct by the relevant authority. For that purpose the authority have to consider and verify the original documents on the basis of which that entry is made. The contents of a private document can be proved by primary or secondary evidence under Sections 61 to 65 in Chapter V of the Evidence Act. The proof of the contents of the public documents can be by production of their certified copies under Section 77 in Chapter VI of the Evidence Act. Since the certified copies carry a presumption of genuiness under Section 79 of the Evidence Act, they need not be proved by production of original public ::: Downloaded on - 09/06/2013 14:13:07 ::: 11 documents. Keeping in mind these principles, we direct the authorities i.e. Respondent Nos.2,3 and 4 to consider the petitioner's application dated 11.3.2005 for change of his birth date.
8. Considering the Judgment in Writ Petition No.1347 of 2005 we are of the opinion that it is the duty of the Respondents to consider the Petitioner's application dated 11th March, 2005 for correction of date of birth in the school records.
In view of the above mentioned facts and circumstances we hereby allow the above mentioned Petition in terms of prayer clause (C) and direct the Respondent Nos. 2, 3 and 4 to consider the Petitioner's application dated 11th March, 2005 within reasonable period but in any case within three months from the date of receipt of copy of the present order. No order as to the costs.
. Rule is made absolute on the terms indicated above.
[K.K. TATED] [P.V. HARDAS]
JUDGE. JUDGE.
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12
asb/u/wp3319.05-
AUTHENTICATED COPY
(A.S. Bhagwat),
Personal Assistant to
the Honourable Judge.
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