Gujarat High Court
Atul vs State on 20 October, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/9393/2010 37/ 39 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9393 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD Sd/-
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
Yes
2
To be
referred to the Reporter or not ? Yes
3
Whether
their Lordships wish to see the fair copy of the judgment ?
Yes
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ?
No
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ATUL
KESHUBHAI CHAUHAN - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
KIRIT R PATEL for
Petitioner(s) : 1,
MR ANAND SHARMA, AGP for Respondent(s) : 1,
3.
MR AD OZA for Respondent(s) : 2,
NOTICE UNSERVED for
Respondent(s) :
4,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 20/10/2010
ORAL
JUDGMENT
1. Heard learned advocates appearing on behalf of respective parties. Though notice issued by this Court is not received back from respondent No.4, because, respondent No.4 is a Principal, J.N. Mehta High School, Khambha, District Amreli, but, relevant and necessary parties are Respondent Nos.2 and 3 who have been served and learned AGP Mr. Sharma is appearing on behalf of respondent Nos.1 and 3 State Authorities and learned advocate Mr. Oza is appearing on behalf of respondent Gujarat Higher Secondary Education Board.
2. RULE.
Learned advocate Mr.Oza waives service of notice of rule on behalf of respondent No.2 Board and learned AGP Mr. Sharma waives service of notice of rule on behalf of respondent No.1 and 3 State Authorities.
3. With consent of all learned advocates, matter is taken up for hearing and final disposal today.
4. The brief facts of present petition are that; petitioner was borne on 29th December 1979 at Kodinar, District Junagadh (Earlier, it was in District Amreli). The name of father of petitioner is Keshubhai Chauhan and name of mother is Gangaben Chahuan. The date of birth of petitioner was registered in birth register on 09.01.1980 and accordingly, certificate of birth was issued by competent authority that is on Page 17 issued by Kodinar Nagar Palika, District Junagadh. The birth registration of petitioner is issued being a true copy of birth registration on 8th June 2000,. The date of birth of petitioner is recorded in birth register as 29th December 1979 in the school viz., Khambha Kumar Shala, thereafter, when the petitioner passed standard 4th, he got admission in standard 5th in Udani School, wherein, by mistake of school authority, the date of birth was recorded as 29th February 1979 instead of 29th December 1979. Thus, said birth date has been carried out till the petitioner completed his schooling. However, correct date of birth of petitioner is one which is recorded in birth register 29th December 1979. Therefore, according to petitioner, lastly, he studied in respondent No.4 School and appeared in standard 10th examination conducted by respondent No.2 Board and successfully cleared the same. Respondent No.4 School issued a school leaving certificate dated 25th May 1998, however, in said school leave certificate, birth date of petitioner has been incorrectly recorded as 29th February 1979 instead of 29th December 1979. Therefore, Regular Civil Suit No.6 of 2004 filed before additional Civil Judge at Dhari declaration and permanent injunction thereby praying for correcting his date of birth in the school leaving certificate as 29th December 1979 instead of 29th February 1979. The learned Additional Civil Judge after taking into consideration the pros and cons of the matter and evidence produced on record and after hearing the respective parties, has been pleased to decree the suit by directing all defendant School Authorities to correct date of birth of petitioner as 29th December 1979 instead of 29th February 1979. In pursuance of decree passed by learned Additional Civil Judge, Dhari, father of petitioner made representation dated 25th September 2009 to respondent No.4 School along with copy of judgment and order passed by Additional Civil Judge, Dhari with a prayer to correct date of birth recorded in school leaving certificate as per order passed by Additional Civil Judge, Dhari. The petitioner has also made an application in prescribed Form No.6 to respondent No.2 Board at Page 53. Respondent No.3 District Education Officer addressed a letter dated 12th October 2009 to respondent No.4 in clear terms directed to respondent No.4 to do needful at their end in accordance with law. But, according to petitioner, respondent No.4 has failed to do so, therefore, petitioner is having no other option except to approach this Hon ble Court with a prayer to direct other side to correct date of birth recorded in school leaving certificate as 29th February 1979 to 29th December 1979.
5. Against this, affidavit in reply is filed by respondent No.2 raising contentions in Paras 4 to 6, which are quoted as under :
4. At the outset, I say and submit that this and such type of petition is not maintainable in the eyes of law since no legal right much less any fundamental right of the petitioner has been violated by the respondent- Gujarat Secondary and Higher Secondary Education Board (hereinafter referred to as 'the Board'). By way of this petition, the petitioner has prayed for the reliefs as prayed for in paragraph No.18 of the petition inter alia praying for issuance of direction to the respondents to correct the date of birth as 29.12.1979 instead of 29.2.1979 in school record including the school leaving certificate and issue fresh school leaving certificate with corrected date of birth. I say and submit that looking to the school leaving certificate produced at Annexure-B Page No.18, it is clear that the same was issued on 19.5.1997 by Kamani Forward High School, Amreli with regard to Std.,XII and as per the said school leaving certificate, the date of birth of the petitioner is 29.2.1979 and in the said certificate it has been certified that the information reflected in the same is in consonance with the school record. In fact, so far as Std.X is concerned the petitioner passed the same in March, 1995. Thus from the aforesaid it is clear that the petitioner was knowing his birth date being reflected in the school leaving certificate as 29.2.1979 since 1995 and had approached this Hon'ble Court by way of filing the present petition in 2010 after great delay and latches. Therefore also, on the ground of delay and latches only the petition deserves to be dismissed. I further say and submit that so far as the order dated 3.9.2009 passed by Ld. Additional Civil Judge, Dhari in Regular Civil Suit No.6/2004 is concerned, the Board is not a party to the said proceeding.
5. I say and submit that the Regulation 12(A) of the Gujarat Secondary Education Regulations, 1974 provides for correction in the record of school viz., date of birth, name, place of birth, etc. I say and submit that the District Education Officer is empowered to carry out such corrections provided the student has not left the school. I say and submit that once a student leaves the school, the only remedy available with the student is to approach the learned Magistrate as is prescribed in Regulation 12(A)(6) and therefore also, present petition is required to be rejected.
6. I say and submit that the wrong mentioning of date of birth is not attributable to the answering respondent. I say and submit that the Board has noted down the entry in the marks-sheet as well as the relevant certificate pursuant to the information being supplied by the student by filling the examination sent through the school to the Board and the Board cannot be faulted for the same. I say and submit that the Board is in receipt of the prescribed form for change in the birth date of the petitioner in the marks-sheet and certificate but the same is not decided and correction is not carried in view of the aforesaid Regulation 12-A more particularly Regulation 12-A(6). I say and submit that the petition is misconceived and is required to be rejected by this Hon'ble Court at the threshold. I say and submit that as per the provision 12-A(6) of the Regulations, no change in the school record shall be made once the student leaves the school.
In view of this, even the District Education officer is not having power to change the school record, once the student leaves the school. I say and submit that as per the provisions of the Gujarat Secondary Education Regulation, 1974, the petitioner is having remedy of approaching the learned magistrate with appropriate application having jurisdiction to entertain the application for seeking correction in the school record. I say and submit that the petitioner has admittedly left the school way back. I further say and submit that even this Hon'ble Court in various judgments viz., in the decision in case of Minor Jagdishbhai Prabhatbhai Gohit Thro., Father and Guardian v. State of Gujarat and others, passed in Letters Patent Appeal No.699 of 2003 in Special Civil Application No.8122 of 2003 with Civil Application No.5096 of 2003, decided on 11.08.2003, has held that in view of Regulation 12-A of the Regulations, the school record cannot be corrected after student has left the school. Even in the judgment case of Regional Passport Officer versus Kokilaben wife of Jaswantlal Panchal reported in 2009 (2) GLR 1246, the Hon'ble Division Bench in Para 10 and 11 has observed as under :-
10. Reference may also be made to the order passed by the Division Bench of this Court in Letters Patent Appeal No. 699 of 2003 in Special Civil Application No. 8122 of 2003, decided on 11.8.2003 (unreported). In Minor Jagdishbhai Prabhatbhai Gohil Vs. State of Gujarat and others, referring to Gujarat Secondary Education Regulation, this Court took the view that the only remedy available to the party with regard to correction of date of birth/place of birth is to approach the authority for redressal of his grievance as provided under Section 13 of the Act.
11. The above discussion would amply show that for carrying out correction of date of birth or place of birth or name, powers have been conferred under the Act on the Registrar as well as the Judicial Magistrate, as the case may be, and also Magistrate First Class when the correction is sought to be made in school record, which is governed by Gujarat Secondary Education Act, 1972 and Regulation framed thereunder.:
I crave leave to refer to and rely upon the aforesaid judgment and order and the regulation at the time of hearing of this petition.
In view of what is stated hereinabove, the petitioner is not entitled to any of the reliefs as prayed for in the petition and the petition is required to be rejected with costs.
6. The petitioner made prayer in present petition in Paras 18(B) to 18(D), which are quoted as under :
18(B) be pleased to issue a writ of mandamus and/ or a writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondents to correct the entire school record of the petitioner and further directing the respondents, more particularly, respondent Nos.3 and 4 to correct the school record of the petitioner, including School Leaving Certificate issued by the respondent No.4-School, by correcting his date of birth as 29.12.1979 instead of 29.2.1979 as per the representation dated 25.09.2009 made on behalf of the petitioner, AND further may be pleased to direct the respondent No.4 to issue a fresh School Leaving Certificate with corrected date of birth of the petitioner;
18(C) be pleased to issue a writ of mandamus and/ or a writ in the nature of mandamus and/or any other appropriate writ, order or direction, directing the respondent Nos.2 and 3 to direct the respondent No.4 to correct the school record of the petitioner, including School Leaving Certificate issued by the respondent No.4-School, by correcting his date of birth as 29.12.1979 instead of 29.2.1979 as per the representation dated 25.09.2009 made on behalf of the petitioner;
18(D) pending admission, hearing and final disposal of this petition, be pleased direct the respondents to correct the school record of the petitioner, including the School Leaving Certificate by correcting the date of birth of the petitioner as 29.12.1979 instead of 29.2.1979 ; AND further may be pleased to direct the respondent No.4 to issue a fresh School Leaving Certificate with corrected date of birth of the petitioner;
7. Looking to the record of present petition, where, documents are annexed by petitioner i.e. at Page 17, Annexure-A is a copy of birth register where date of birth of petitioner is mentioned as 29th December 1979 issued by Kodinar Nagar Palika, District Junagadh, Page 18 Annexure B is school leaving certificate issued by Kamani Forward School where date of birth is recorded as 29th February 1979. Annexure-C, Page 19 is a copy of plaint i.e. Regular Civili Suit No.6 of 2004 filed before Judicial Magistrate, First Class, Dhari. Page 26, Annexure-D, Ex.52 is a copy of judgment and order passed by Additional Civil Judge, Dhari in Regular Civil Suit No.6 of 2004 decided on 3rd September 2009. The Additional Civil Judge, Dhari has passed an order issued direction to respondent No.1 Principal of Khambha Kumar Shala at Khambha to correct date of birth of petitioner in school leaving certificate and also directed to respondent No.2 Principal of Lilivanti Liladhar Udani Primary School, Khambha to correct date of birth of petitioner from 29th February 1979 to 29th December 1979 and also direction has been issued against respondent No.3 that from General Register No.4850, date of birth of petitioner which has been recorded as 29th February 1979 is to be correct as 29th December 1979 in school leaving certificate and also similarly directed to respondent No.4 Principal, Kamani High School, Amreli to correct date of birth of petitioner in Genera Register No.7804 from 29th February 1979 to 29th December 1979. This judgment and order is passed by Additional Civil Judge on 3rd September 2009. Page 42, Annexure-E is a request made by father of petitioner to Principal, J.N. Mehta High School, Khambha on 25th September 2009. Page 47 is a letter dated 6th July 2010 addressed by Higher Secondary School, J.N. Mehta High School, Khambha to District Education Officer with a request to correct date of birth of petitioner on the basis of judgment and order passed by Additional Civil Judge. Copy thereof is sent to Secretary of respondent No.2 Board. The certificate has been issued by Kumar Shala, Page 48, that date of birth which has been recorded in Register after verifying General Register 3405/1/6 real date of birth of petitioner is 29th December 1979, but, by mistake, it has been recorded in school leaving certificate in General Register as 29th February 1979 which is required to be corrected as per aforesaid certificate which has been issued by Kumar Shala after verifying General Register No.3465/1/6. Thereafter, Secretary of respondent No.2 Board addressed a letter to J.N. Mehta High School calling certain details from District Education Officer as per GR which is required to be attached by school authority. Page 51, Annexure-F is a PAN Card and Page 52 is a Driving License. In both documents i.e. at Page 51 and at Page 52, date of birth of petitioner is recorded as 29th December 1979.
8. Thereafter, one application was made by petitioner to respondent Board, Page 52, Annexure-G, to correct date of birth of petitioner in school leaving certificate from 29th February 1979 to 29th December 1979. This application has been certified by school authority J.N. Mehta High School, Khambha that according to General Register, real date of birth of petitioner is 29th December 1979, not 29th February 1979, therefore, accordingly, correction is required while giving index number of school 52025. Page 55 is a Schedule-7 being a notification which is required to be filled up by school authority while giving details to respondent No.2 Board. Thereafter, Page 56 is a progress report which is also sent by school authority as per Schedule-8. Page 57 is a letter dated 12th October 2009 addressed to Principal, J.N. Mehta High School, Khambha that for correcting date of birth in respect of present petitioner on the basis of order passed by Additional Civil Judge, Dhari is required to be carried out by school authority and not by District Education Officer, because, petitioner has left the school after completion of study in standard 12th.
9. Learned advocate Mr. Patel submitted that in the month of February, 1979, there were 28 days only during the month, because, February, 1979 is not a Leap Year , therefore, there were no 29 days in February, 1979. It seems that this is a bonafide mistake made by school authority at the relevant point of time and therefore, it is required to be corrected. The mistake is in figure '12', it has mentioned only figure '2' and figure '1' is missing.
10. The objection which has been raised by respondent No.2-Board which are narrated in reply as referred above relied upon decision of Division Bench of this Court in Letters Patent Appeal No.699 of 2003 dated 11th August 2003 in case of Minor Jagdish P. Gohil through Father and Guardian V/s. State of Gujarat. While relying upon aforesaid decision, observations made by Division Bench of this Court in Para 4 is quoted as under :
4. We have considered the submissions advanced at the Bar and the documents forming part of the petition. We have also heard Mr.M.R.Mengde, learned Assistant Government Pleader appearing for the respondents. From the record of the case, it is evident that the son of appellant has left Secondary School after passing examination of Standard 10. Therefore, in view of Regulation 12-A Gujarat Secondary Education Regulations, 1974, school record could not have been corrected after the son of appellant had left the school. The only remedy of the appellant was to approach learned Magistrate, First Class, having jurisdiction in the matter for redressal of his grievance as provided under Section 13(3) of the Act. Therefore, the learned Single Judge was justified in concluding that the appellant has alternative remedy and that it was not necessary to entertain the petition filed under Article 226 of the Constitution. In our view, the learned counsel of the appellant has failed to point out any error in the orders which are impugned in the appeal and, therefore, the appeal is liable to be dismissed.
11. In view of aforesaid observations made by Division Bench of this Court in Para 4, considering Regulation 12A of Gujarat Secondary Education Regulation, 1974, school record could not have been corrected after son of appellant had left the school. The only remedy of appellant was to approach learned Magistrate, First Class, having jurisdiction in the matter for redressal of his grievance as provided under Section 13(3) of the Act. Therefore, decision given by learned Judge has been accepted by Division Bench of this Court.
12. Learned advocate Mr. Oza also relied upon one decision given by Division Bench of this Court in group of Special Civil Application Nos.4423 of 2001, 4430 of 2001, 2689 of 2001 and 6423 of 2001 dated 24th June 2009. The following observations have been made by Division Bench of this Court on being reference has been made by learned Single Judge on 17th September 2001, the answer has been given which is quoted as under :
These four petitions have been placed before us on a reference made on 17.09.2001 by a learned Single Judge in view of the conflicting views taken by two other Single Judges of this Court.
The question raised is `whether the School Registers maintained on the basis of applications made, shall be varied at the instance of the student after the student leaves the school'.
Regulations governing the secondary schools, i.e. Gujarat Secondary Education Regulations, 1974, do not permit such variation after a student leaves the school. This is the view that was taken by learned Single Judge, Hon'ble Ms. Justice Rekha Doshit. Contrary views were taken by Hon'ble Mr. Justice M.S. Shah in Special Civil Application No.7009 of 1999 and Hon'ble Mr. Justice Pradip Kumar Sarkar in Special Civil Application No. 1274 of 2001.
This issue has already been dealt with by a Division Bench of this Court in Letters Patent Appeal no.699 of 2003, vide order dated 11.08.2003. The Division Bench has taken the view that once a student leaves the school, correction in school records of a student can be carried out only by a Magistrate, First Class, having jurisdiction.
In these Special Civil Applications, corrections are sought for change of caste as well as change of names. In view of the aforesaid decision of the Division Bench dated 11.08.2003, such corrections can be carried out only by a Magistrate, First Class, having jurisdiction on the subject matter, and not by the school authorities.
We fully agree with the view expressed by the Division Bench in Letters Patent Appeal No.699 of 2003, and dispose of all these matters accordingly. All the same, the petitioners, who are desirous of carrying out necessary corrections, shall approach respective Magistrates, First Class, having jurisdiction.
With the above observations, all the Special Civil Applications stand disposed of.
Notice discharged.
13. In view of aforesaid observation made by Division Bench of this Court while giving answer to reference made by learned Single Judge that once student leaves the school, correction in school record of a student can be carried out only by order of learned Magistrate, First Class having jurisdiction and it cannot be corrected by school authority.
14. Learned advocate Mr. Oza also relied upon decision of Division Bench of this Court in case of Regional Pass Port Officer v. Kokilaben reported in 2009(2) GLR 1246. The relevant Para 9 to 12 are quoted as under :
9. We may indicate that Registration of Births and Deaths Act, 1969 was enacted to provide for births and deaths and matters connected therewith, which came into force with effect from 1.4.1970. Chapter 3 of the Act provides for registration of births and deaths and Section 13 is pertaining to delayed registration of births and deaths. Sub-section (3) of Section 13 empowers a Magistrate of the First Class to pass an order in case if birth or death is not registered within one year by its occurrence. Initial registration of births and deaths within a period of one year remain with the authority as provided under sub-section (1) and sub-section (2) of Section 13 of the Act. Section 15 of the Act deals with correction or cancellation of entries in the register of Births and Deaths.
Section 15 of the Act, read with Rule 11 of the Gujarat Registration of Births and Deaths Rules, 2004 provides for detailed procedure to be followed. It says where it is proved to the satisfaction of the registrar that any entry of a birth or death in any register kept by him under this Act is erroneous in form or substance, or has been fraudulently or improperly made, he may, subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be or cancel the entry by suitable entry in original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation. Thus, it is clear that if it is proved to the satisfaction of the Registrar that entry being erroneous in the register of births and deaths, and it has been fraudulently or improperly made, he can make a report giving necessary details to the officer authorized by the Chief Registrar by general or special order in this behalf under Section 25 of the Act and on hearing from him, take necessary action in the matter. Learned Single Judge of this Court in Nitaben Nareshbhai Patel Vs. State of Gujarat 2008 (1) G.L.R 884 elaborately considered the scope of above mentioned provisions, and the learned Single Judge also examined at length the provisions of Gujarat Secondary Education Act, 1972 and Gujarat Secondary Education Regulation, 1974. With regard to the change of date of birth entered in the school record, referring to Regulation 12(A), it was stated that if the student has actually left the school, no change can be effected in the record of the school. For making a change in the name, as provided under Regulation 12(5)(1), an application in prescribed proforma with certain documents as narrated in Regulation 5(1)(A) to (D) are required to be submitted. Regulation 12(6) deals with correction of date of birth, which is permissible only when student is studying in the school, and thereafter it can be corrected by the concerned Magistrate of First Class, upon proof of correct birth date.
10. Reference may also be made to the order passed by the Division Bench of this Court in Letters Patent Appeal No. 699 of 2003 in Special Civil Application No. 8122 of 2003, decided on 11.8.2003 (unreported). In Minor Jagdishbhai Prabhatbhai Gohil Vs. State of Gujarat and others, referring to Gujarat Secondary Education Regulation, this Court took the view that the only remedy available to the party with regard to correction of date of birth/place of birth is to approach the authority for redressal of his grievance as provided under Section 13 of the Act.
11. The above discussion would amply show that for carrying out correction of date of birth or place of birth or name, powers have been conferred under the Act on the Registrar as well as the Judicial Magistrate, as the case may be, and also Magistrate First Class when the correction is sought to be made in school record, which is governed by Gujarat Secondary Education Act, 1972 and Regulation framed thereunder.
12. We are therefore, clearly of the view that Passport Authorities are not expected to make their own independent enquiry when there is a dispute or difference with regard to the date of birth, place of birth or name entered in the Passport, especially when entries were once made on the basis of records produced by the Passport holder. If there is any mistake on the records already produced, based on which entries were already made, then it is for the party who seeks correction to produce documents after carrying out necessary correction by the concerned statutory authorities, Judicial Magistrate or the Civil Court, as the case may be. Passport Authorities are always competent to direct the parties to produce relevant documents either from the authorities functioning under the Births and Deaths Register or from the Judicial Magistrate or from the Civil Court, as the case may be. On production of corrected documents, Passport Authorities will immediately carry out necessary correction in the Passport.
15. This question has also been examined by this Court (Coram : Hon ble Mr. Justice Akshay H. Mehta, J.) in case of Thakor Nilesh Shishirbhai V/s. Gujarat Secondary Education Board reported in 2007(3) GLR 2276. The relevant Para 5 and 5/1 are quoted as under:
5. It may also be noted here that so far as the Registration of the Birth and Death Act is concerned, the Judicial Magistrate, First Class, is empowered to verify the correctness of the date of birth or death, on payment of prescribed fee under sub-section(3) of Section 13 of the Registration Act. When the pupil is still studying in the school, for correction of the birth date or name, it is sufficient for him to produce the affidavit sworn before the learned Judicial Magistrate.
Even Clause 6 of Regulation 12(A) permits correction in school record in respect of birth date even after the pupil had left the school on the basis of certificate issued by the Judicial Magistrate, First Class. The certificate can be issued by the Magistrate, only after making due scrutiny of the corroborative evidence and upon being convinced about the correctness of the birth date. Thus, it can be seen that certain powers have been conferred upon Judicial Magistrate, First Class by which he can make detailed scrutiny of the necessary evidence and issue certificate. In the instant case, the petitioner has prayed that his religion is wrongly mentioned in the school leaving certificate and though he is Christian, his caste is shown as Hindu Thakore. The petitioner initially approached the school authorities, but the school authorities failed to effect any change. He has, therefore, approached this Court. The entire issue is based on facts. Whether the petitioner is Christian or Hindu Thakore can be determined or decided or ascertained only upon detailed inquiry being made by some authority on the basis of various documents and if necessary, even by recording oral statement or the affidavit. This Court under Article 226 of the Constitution of India cannot make such inquiry. As already stated above, there is no provision in the Regulation to effect any change in the school leaving certificate except change relating to the birth date, after the pupil has left the school, but that should not make the genuine person suffer unnecessarily. Considering the provisions referred to above, this Court can always direct the sub-ordinate Court in the State to make necessary inquiry and issue proper certificate in accordance with the findings arrived at after the inquiry. In the background of the provisions stated above, it also appears that the learned Judicial Magistrate of the area can be the proper authority to make such inquiry and issue certificate to the concerned student. The procedure which is being followed for correction of the birth date in the school record after the pupil has left the school can be also be applied or followed in other matters such as change in the name, caste/religion, place of birth etc. 5.1 This Court can certainly exercise its power under writ jurisdiction, and direct the Magistrate to make inquiry, but it is desirable that the Government at its level, can suitably bring amendment to the Regulations and along with the birth date in Clause 6 of Regulation 12(A) include other incidental matters also.
16. Similarly, this aspect has also been examined by learned Single Judge of this Court (Coram : Hon ble Mr. Justice C.K. Buch, J.) in case of Misrikhan Dilavarkhan Pathan V/s. (The) State of Gujarat Thro' the secretary and Ors. reported in 2008(1) GLH 683. The relevant Paras 10, 15, 17 and 17/1 are quoted as under :
10. A plain reading of the proviso is nothing but the guidelines to a student or parent who intends to change the date of birth in the school leaving certificate. As such there is no scheme or modalities which confers the jurisdiction on J.M.F.C. to decide such application, if preferred, by the student.
15. The Gujarat Secondary Education Regulations, 1974 is in the form of guidelines framed under the Gujarat Secondary Education Act, 1972 exercising powers under Section 54 of the said Act. It appears that learned Advocates appearing in the Letters Patent Appeal had not assisted the Division Bench properly while putting the entire legal situation before the Letters Patent Bench, otherwise it was possible to make a detailed submission that in absence of any legal resolution in the relevant Regulations an aggrieved person can be sent to Civil Court for proper declaration and the High Court also can in exercise of powers vested with the Court under Article 226 of the Constitution of India which helps the petitioner.
17. As such there is no alternative remedy in the Births and Deaths Registration Act, 1969 to get the birth date changed in a school register. In that situation, two recourses are left with the petitioner. First is to approach the Civil Court seeking declaration to the effect that birth date mentioned in the school register wherever he has studied is incorrect and mandatory injunction against all such authorities including the competent authority is sought for to the effect that the date of birth in the relevant school registers be corrected in accordance with the birth certificate issued by the Local Self Government. Of course, the duty of the plaintiff would be that he is supposed to satisfy the Court that birth date mentioned in the birth certificate issued by the Local Self Government is otherwise genuine and is not a result of any fraud or misrepresentation.
17.1 The second recourse is to file a petition under Article 226 of the Constitution of India praying for appropriate writ, order or direction. If the petitioner is able to satisfy the Court that his grievance is genuine and the date of birth is to be corrected in the relevant school registers, then the High Court upon verifying the original birth certificate issued by the Local Self Government, issues direction to the competent authority to correct the date of birth in the school register where the student has studied lastly.
17. This aspect has been also examined by this Court (Coram : Hon ble Mr. Justice Anant Dave, J.) in case of Mitaben Nareshbhai Patel V/s. State of Gujarat & Ors. reported in 2008(1) GLR 884. The relevant Paras 19, 19/1, 20, 21 and 22 are quoted as under :
19. So far as the decisions relied on by learned advocate appearing for the Corporation etc. about correction of date of birth, name or place of birth under Gujarat Secondary Education Act, Rules and Regulations made thereunder in the school leaving certificate, the same field is being governed by different set of rules namely Gujarat Secondary Regulation Act, 1974 and Regulation 12 framed in exercise of power under Section 54 of the Act of the said regulations envisaged to the provisions as contained in Regulation 12-A (1) to (7).
19.1. As per Regulation 12(5) (1) provided for making a change in the name in a prescribed performa application with certain documents as narrated in Regulation 5(1) (A) to (D) and Regulation 12(6) is pertaining correction of date of birth can be permitted by the school authority only when the student is studying in the school and thereafter by the concerned Magistrate of First Class by furnishing necessary proof of correct birth date. That so far as Regulations 12(A) of Gujarat Secondary Education Regulation, 1974 is concerned there is an oral order dated 11.8.2003 passed in Letters Patent Appeal No.699/2003 in Special Civil Application No.8122/2003 in a case of Minor Jagdhishbhai Prabhatbhai Gohil v. State of Gujarat & Ors., the Division Bench while confirming the order of learned Single Judge held that only remedy to the appellant with regard to correction of date of birth is to approach learned Magistrate First Class, having jurisdiction in the matter for redressal of his grievance as provided under Section 13(3) of the Act. Therefore, the learned Single Judge was justified in concluding that the appellant has alternative remedy and that it was not necessary to entertain the petition filed under Article 226 of the Constitution .
Thus, the Division Bench in the above case also specifically and authoritatively did not pronounce about maintainability of the petition in such type of case under Article 226 of the Constitution of India but expressed desirability not to entertain the petition in view of the availability of the alternative remedy.
As earlier mentioned in this judgment, Section 13(3) of the Act of 1969 empowers Magistrate to exercise power in cases of delayed registration of births and deaths, which have not been registered within one year of its occurrence. So far as, correction or cancellation of entry in the register of births and deaths is concerned, it is governed by Section 15 of the Act of 1969 and Rule 11 of the State Rules, 2004.
20. In this type of cases again another decision dated 27/2/2007 of learned Single Judge (Coram: Mr. Justice D.A.Mehta) passed in Special Civil Application No.25312/2006 in the case of SOORAT JESSOMAL KHANCHANDANI V. GUJARAT SECONDARY AND HIGHER SECONDARY EDUCATION BOARD & 3, where prayer was made by the petitioner to issue a writ of mandamus or any other direction to correct name of the petitioner in the school record and in paragraph 6, learned Single Judge has observed as under and thereafter allowed the petition directing the concerned authority to pass appropriate order to exercise power under the Act.
6. In principle the stand of the respondent Board appears to be correct. However, one has also to bear in mind the requirement of enacting Regulation 12-A(6) of the Regulations. Once the said provision is meant for curbing malpractice and preventing unscrupulous persons from obtaining an advantage which such persons do not deserve, the respondent Board has also to take into consideration genuine cases wherein errors have occurred. One cannot lose sight of the fact that when human beings are involved in preparation and maintenance of records there is every likelihood that an error may occur by a slip of pen. Not only that, it is also not possible for a person to locate the error at a given point of time and such a lapse may occur for various reasons. However, for such a lapse a genuine bonafide case where an error has crept in the records cannot be thrown out only on the ground of technicalities. The respondent-Board must bear in mind that rules are meant to be of assistance and for the persons. The rules cannot override in all circumstances and in all fact situations. There has to be a distinguishing line, distinguishing between genuine and bonafide case and cases involving unscrupulous persons.
21. Another decision dated 27.4.2007 in the case of Thakore Nilesh Shishirbhai v. Gujarat Secondary Education Board & 4 passed in Special Civil Application No.21036/2006 (Coram: Mr.Justice Akshay H.Mehta) while considering the same provision of Regulation 12(6) which are framed in exercise of power conferred by section 54 of the Gujarat Secondary Education Act, 1972 and after producing various clauses paras 4 to 5.1 of the above judgment reads as under:
4. I have carefully considered the submissions of the learned advocates appearing for the parties. I have also closely perused the record of the petition and the necessary provisions of the Gujarat Secondary Education Regulations, 1974 [hereinafter referred to as the Regulations ] as also the provisions of the Registration of Births and Deaths Act, 1969 [hereinafter referred to as the Registration Act ]. The Regulations have been framed by respondent no. 1 in exercise of powers conferred by Section 54 of the Gujarat Secondary Education Act, 1972 [the Act for short]. They have come into force with effect from 16th March, 1974. The Regulations have been framed for the administration and Governance of secondary schools in the State. Chapter V of the Regulations contains provisions with regard to Admissions, Test, Examinations, Health and Discipline of Students. It includes Regulation !2(A). It pertains to change of the birth date, name, etc., in the school register.
* Clause 1 of Registration 12(A) states that without obtaining prior permission in writing, no change in relation to the entries made in the school register can be effected.
*Clause 2 states that except applications pertaining to the student actually attending the school, no application for change in the register shall be accepted.
* Clause 3 requires the guardian or the parent of the student to sign the application which should be certified as such by the Principal of the school.
* Clause 4 prescribes that for effecting the change in the birth date, certain documents such as (a)Extract of the birth register; (b) Certificate of the vaccination, (c) Certified copy of the certificate of Baptism, if the student was Christian, (d) Affidavit of the parents or the guardian, sworn before the learned Magistrate or any other authentic document can be accepted as corroborating proof.
* Clause 5 relates to change in the name. It also relates to the change in the surname, name of the father, and place of birth and lastly religion and caste. So far as the changes other than the name are concerned, they can be effected upon production of necessary documents such as certificate of the competent officer of Social Welfare, Certificate of Mamlatdar, affidavit sworn before the Magistrate or proof of its publication in the Government Gazette.
* Clause 6 of Regulation 12(A)is relevant for the purpose of this petition. It states that if the student has actually left the school, no change can be effected in the record of the school. However, if the change is to be made with regard to the birth date, it can only be done by producing before the learned concerned Magistrate, all the necessary evidence, who upon scrutiny of the same can issue certificate with regard to the real birth date and only upon production of such certificate, before the concerned authority, the correct birth date could be mentioned in the school record.
4.1. Thus, these Regulations appear to be dealing with two situations namely, when the student is actually studying in the school and secondly the student has left the school. Sub-section (d) of Clause 5 (1) of Regulation 12 (A) states that in case the student has passed public examination and he is permitted to change the name, he shall have to get it published in the Government Gazette. However, if the change was because of the marriage, it may not be published in the Gazette. The change with regard to religion or caste can be effected by production of the certificates of the authorities stated above. This provisions takes care of the student who are still studying in the school after passing the public examination of Standard X. But once the pupil leaves the school, no change can be made in the record of the school as per Clause 6 of this Regulation. The exception is only with regard to the birth date which can be changed on the basis of the certificate issued by the learned Judicial Magistrate of First Class.
4.2. It appears from the aforesaid provisions that the learned Magistrate is empowered to enquire into the details with regard to the birth of the students and ascertain correct birth date and then issue certificate accordingly. On the basis of the same, the change can be made in the record of the school. It further appears that there is no provision in the Regulation which can enable the pupil who has left the school to get the record changed in respect of any other matter except the birth date. A former student of school will, therefore, find it very difficult to get the correction made in the school leaving certificate and that may cause such student unnecessary harassment. This may create serious impediments for the student in the matters of obtaining job, passport or furnishing true personal information to statutory authorities or to make accurate entries in official documents. The consequence can be serious and may cause deprivation of fundamental right or non-fundamental or ordinary legal right. This Court under Article 226 of the Constitution of India can remedy such injustice since power has been conferred upon it not only for enforcement of fundamental right but even for other purpose.
5. It may also be noted here that so far as the Registration of the Birth and Death Act is concerned, the Judicial Magistrate, First Class, is empowered to verify the correctness of the date of birth or death, on payment of prescribed fee under sub-section(3) of Section 13 of the Registration Act. When the pupil is still studying in the school, for correction of the birth date or name, it is sufficient for him to produce the affidavit sworn before the learned Judicial Magistrate. Even Clause 6 of Regulation 12(A) permits correction in school record in respect of birth date even after the pupil had left the school on the basis of certificate issued by the Judicial Magistrate, First Class. The certificate can be issued by the Magistrate, only after making due scrutiny of the corroborative evidence and upon being convinced about the correctness of the birth date. Thus, it can be seen that certain powers have been conferred upon Judicial Magistrate, First Class by which he can make detailed scrutiny of the necessary evidence and issue certificate. In the instant case, the petitioner has prayed that his religion is wrongly mentioned in the school leaving certificate and though he is Christian, his caste is shown as Hindu Thakore. The petitioner initially approached the school authorities, but the school authorities failed to effect any change. He has, therefore, approached this Court. The entire issue is based on facts. Whether the petitioner is Christian or Hindu Thakore can be determined or decided or ascertained only upon detailed inquiry being made by some authority on the basis of various documents and if necessary, even by recording oral statement or the affidavit. This Court under Article 226 of the Constitution of India cannot make such inquiry. As already stated above, there is no provision in the Regulation to effect any change in the school leaving certificate except change relating to the birth date, after the pupil has left the school, but that should not make the genuine person suffer unnecessarily. Considering the provisions referred to above, this Court can always direct the sub-ordinate Court in the State to make necessary inquiry and issue proper certificate in accordance with the findings arrived at after the inquiry. In the background of the provisions stated above, it also appears that the learned Judicial Magistrate of the area can be the proper authority to make such inquiry and issue certificate to the concerned student. The procedure which is being followed for correction of the birth date in the school record after the pupil has left the school can be also be applied or followed in other matters such as change in the name, caste/religion, place of birth etc. 5.1. This Court can certainly exercise its power under writ jurisdiction, and direct the Magistrate to make inquiry, but it is desirable that the Government at its level, can suitably bring amendment to the Regulations and along with the birth date in Clause 6 of Regulation 12(A) include other incidental matters also.
22. Therefore, each and every case can be scrutinized on the facts and circumstances of each case and in a given case facts are highly disputed, in exercise of power under Article 226 of the Constitution of India, as held in the above decision of Thakore Nilesh Shishirbhai (supra), the Court can direct even the Judicial Magistrate to hold limited inquiry of factual aspects with regard to documentary evidence produced before him and appropriate order can be passed in a given case. Even otherwise also the Magistrate is empowered to hold inquiry and register entry in case of delayed registration as provided under Section 13(3) of the Act.
22.1. That reliance placed by the learned Judge of Section 13(3) of the Act of 1969 is pertaining to delayed registration and powers with regard to correction/cancellation of any erroneous entry remained with the authority under Section 15 of the Act and Rules of 2004. However, the view taken by the learned Single Judge in the above cases is in a larger interest as reflected in para 5 of the above decision, where a disputed question of fact arise, in a given case such disputed facts can be scrutinized by the learned Magistrate and in exercise of power under Article 226 of the Constitution of India appropriate directions can be given for remedial measures.
22.2. Therefore, so far as Regulation 12(A) is concerned, the above decisions govern the field for correction of date of birth and name in the school record.
18. In light of aforesaid law as referred and discussed by this Court is just to meet with objections raised by respondent No.2 Board. The objection raised by learned advocate Mr. Oza is that; (i) in Regular Civil Suit No.6 of 2004, respondent No.2 Board was not a party, therefore, decision given by Additional Civil Judge, Dhari is not binding to respondent Board and they are under no legal obligation to carry out the direction issued by Additional Civil Judge, Dhari in favour of petitioner. (ii) school leaving certificate was issued since 1995 and petition was preferred by petitioner in 2010, therefore, petition can be dismissed only on the ground of delay and laches (iii) under Gujarat Secondary Education Regulation, 1974, Regulation 12A(6) requires order to be passed by learned Magistrate and in this case, decree has been passed by Civil Judge who was not Magistrate , therefore, Regulation 12A(6) is not satisfied or complied with by petitioner, therefore, respondent No.2 cannot correct date of birth of petitioner from 29th February 1979 to 29th December 1979 in marks sheet issued in respect of 12th standard of petitioner.
19. The relevant Regulation 12A(6) of Gujarat Secondary Education Regulation, 1974 has made it clear that once the student has left the school, whatever record of the school, no change is required to be by any person or authority, but, in case of real date of birth supported by certificate issued by learned Magistrate, that can be considered to be a recognised proof of correct date of birth and for that, such certificate is required to be obtained from First Class Magistrate by such student for correcting his date of birth.
20. In view of aforesaid Regulation 12A(6), learned advocate Mr. Oza submitted that no certificate for real date of birth obtained by petitioner from Magistrate Court and produced before respondent No.2 Board and therefore, respondent No.2 is not duty bound to act according to Regulation 12A(6). In short, the submission made by learned advocate Mr. Oza is that in such cases, petitioner must have to obtain certificate from Magistrate.
21. In light of this background, it is clear from judgment and order passed by Additional Civil Judge, Dhari that respondent No.2-Board was not a party, but, one fact is very clear which has been examined by Additional Civil Judge, Dhari, scrutinized by it on the basis of documentary evidence which were produced by respective parties on record and thereafter, Additional Civil Judge, Dhari come to conclusion that real date of birth of petitioner is 29th December 1979, not 29th February 1979. According to Regulation 12A(6), it requires only certificate to be obtained from learned Magistrate Court by petitioner. In such case, according to my opinion, judgment and order which has been passed by Civil Judge who is also a Judicial Magistrate, First Class working at Dhari is more than certificate, because, it has been decided / adjudicated entire issue and find out correct date of birth of petitioner after scrutinizing original record and come to conclusion that real date of birth of petitioner is 29th December 1979, not 29th February 1979. Therefore, requirement of Regulation 12A(6) is well limited which requires merely certificate from learned Magistrate, but, in this case, petitioner has established his case more than that while producing judgment and order passed by Civil Judge who is also a Magistrate within the meaning of Section 11 of Code of Criminal Procedure, 1973.
22. Therefore, contentions raised by learned advocate Mr. Oza cannot be accepted because in substance and reality, according to my opinion, Regulation 12A(6) is substantially fully complied with by petitioner and therefore, it is directed to respondent No.2 Board to take all necessary steps for correcting date of birth of petitioner in school record as well as in record of Board including Marks Sheet of Standard 10th and Standard 12th within a period of three months from the date of receiving copy of present order.
23. Accordingly, rule is made absolute to the aforesaid extent. No order as to costs.
24. Direct service is permitted.
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[H.K. RATHOD, J.] #Dave Top