Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2804 (ALL)

SHABANA KHATOON v. STATE OF U. P.

2014-09-10

VIJAY LAKSHMI, VINEET SARAN

body2014
JUDGMENT By the Court.—This appeal is directed against the judgment and order dated 6.12.2013 passed in Writ Petition No. 51782 of 2013. 2. In brief the dispute is with regard to the date of birth of the appellant Smt. Shabana Khatoon as recorded in the High School certificate issued to the appellant in the year 2003. As per the High School certificate, the date of birth of the appellant is 15.7.1986. After the issuance of the said certificate there was no dispute raised by the appellant until the year 2012 when an application was filed by the appellant for correction of her date of birth as 15.7.1975 instead of recorded date of birth as 15.7.1986. This was necessitated as she had contested the election of the Chairman of the Nagar Panchayat and as per Section 43 (AA) of the U.P. Municipalities Act, 1916 no person could contest the election of the President of the Nagar Panchayat until he/she had attained the age of 30 years. 3. The first representation of the appellant for correcting her date of birth was filed on 20.12.2012 before the Secretary of the U.P. High School and Intermediate Board (hereinafter referred to as the Board). Such representation was rejected by the Secretary of the Board vide its order dated 14.2.2013 on the ground that any application for correction of the date of birth could be filed only within two years from the date of issuance of the certificate and since, in the case of the appellant, the certificate was issued in June, 2003 and the application was filed in December, 2012 the same could not be entertained as per the provisions of Regulation 7 contained in Part 2-B of Chapter III of the U.P. Intermediate Education Act (hereinafter referred to as the Act). 4. Challenging the said order dated 14.2.2013 passed by the Secretary of the Board, the appellant filed a writ petition before the Lucknow Bench of this Court in which counter-affidavit was filed. However, during the pendency of the writ petition, the Examination Committee of the Board corrected the date of birth of the appellant from 15th July, 1986 to 15th July, 1975 and accordingly communication dated 30/31st August, 2013 was sent by the Assistant Secretary on behalf of the Regional Secretary of the Board at Varanasi to the Principal of the college. However, during the pendency of the writ petition, the Examination Committee of the Board corrected the date of birth of the appellant from 15th July, 1986 to 15th July, 1975 and accordingly communication dated 30/31st August, 2013 was sent by the Assistant Secretary on behalf of the Regional Secretary of the Board at Varanasi to the Principal of the college. Thereafter, the writ petition filed by the appellant was dismissed as not pressed. 5. Challenging the said order passed by the Regional Secretary of the Board at Varanasi Smt. Nabila Khatoon filed Writ Petition No. 51782 of 2013. It may be relevant to mention here that the writ petitioner Smt. Nabila Khatoon had contested the election against the appellant Smt. Shabana Khatoon and had lost the election. 6. The election of the appellant was set aside in the election petition on the ground that the appellant was underage. The writ petition challenging the order passed in the election petition filed by the appellant is pending before the Lucknow Bench of this Court. 7. By a detailed and reasoned judgment and order dated 6.12.2013, the writ petition has been allowed and the order relating to correction of the date of birth of the appellant Smt. Shabana Khatoon has been quashed. Besides that, certain directions have also been given to the Director of Education (Secondary) to hold an enquiry into the matter as to how the date of birth of the appellant has been corrected. 8. We have heard Sri P.N. Saxena, learned Senior Counsel assisted by Sri M.F. Ansari, learned counsel appearing for the appellant as well as learned Standing Counsel appearing for the State respondents and Sri R.K. Ojha, learned Senior Counsel assisted by Sri Mahendra Pratap Singh and Sri S.C. Tripathi, learned counsel appearing on behalf of the contesting respondent No. 5 and have perused the record. 9. Learned counsel for the parties do not dispute that the only provision for correction of date of birth or entries made in the certificate is Regulation 7 contained in Part 2-B of Chapter III of the U.P. Intermediate Education Act. For ready reference the said provision is reproduced below: “7. 9. Learned counsel for the parties do not dispute that the only provision for correction of date of birth or entries made in the certificate is Regulation 7 contained in Part 2-B of Chapter III of the U.P. Intermediate Education Act. For ready reference the said provision is reproduced below: “7. Secretary, on behalf of the Board shall give a certificate of passing the examination on prescribed proforma to successful candidates and later on correct the entries therein, if any, provided that any such wrong entry in the certificate has appeared due to any clerical mistake or omission which occurred due to carelessness in the records of the Board or in the records of institution where from the last education has been received. This correction may be made by Secretary only when the candidate within two years from the date of issuance of concerned certificate by the Board, has submitted an application for the rectification of mistake to the Principal/Central Manager concerned attracting his notice regarding clerical mistake and one of its copy has also been sent tot he Secretary through registered post.” (emphasis supplied) 10. It is also not disputed by the parties that the application dated 20.12.2012 filed by the appellant for correction of the date of birth in her High School certificate was rejected by the Secretary of the Board on 14.2.2013. From the plain reading of the aforesaid Regulation 7 it is clear that it is only the Secretary who can pass any orders relating to correction of entries (including the date of birth) in the certificate of passing the examination issued by the Board. Such entries could be corrected only if the same were due to any clerical mistake or omission which occurred due to carelessness in the record of the Board. It is also clearly prescribed that such correction could be made only within two years from the date of issuance of the certificate by the Board. In the present case, the application of the appellant filed in December, 2012 was rejected on the ground that it was filed beyond the period of two years. No provision for making any correction after two years of the issuance of the certificate has been brought on record by the appellant under which such correction could have been made. 11. In the present case, the application of the appellant filed in December, 2012 was rejected on the ground that it was filed beyond the period of two years. No provision for making any correction after two years of the issuance of the certificate has been brought on record by the appellant under which such correction could have been made. 11. Even otherwise, what is noticed and has been dealt with in detail by the learned Single Judge is that the Examination Committee or the Assistant Secretary or the Regional Secretary had no power or jurisdiction to pass any orders whatsoever with regard to correction of any entries made, which was in the exclusive domain of the Secretary of the Board and that too if any such application was filed within a period of two years. The subsequent order has been passed by the Examination Committee and communicated through the Regional Secretary of the Board Office at Varanasi on an application moved after more than ten years, and not by the Secretary of the Board. 12. The submission of Sri P.N. Saxena, learned Senior Counsel appearing for the appellant is that even if an officer of the Board passing the order relating to correction in the date of birth did not have jurisdiction to correct the date of birth on merits or after two years, and if the same has been done then the writ Court ought not to have interfered and set aside the order unless it had recorded a finding that the order passed or the finding recorded in the order was incorrect. In support of his submission, learned counsel for the appellant has placed reliance on two decisions of the Apex Court rendered in the cases of (i) Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, JT 1999 (8) SC 45; and (ii) M.P. Mittal v. State of Haryana, AIR 1984 SC 1888 . 13. We have carefully gone through the said decisions of the Apex Court and find that the ratio of the said judgments does not apply to the facts of the present case. 13. We have carefully gone through the said decisions of the Apex Court and find that the ratio of the said judgments does not apply to the facts of the present case. Learned Single Judge has recorded a finding with regard to the incorrectness of the date of birth subsequently recorded by the order impugned in the writ petition, which has been done so after perusal of the original record as had been produced before the writ Court and also the report of the Administrative Officer. It is not understood by this Court as to under which provision the Administrative Officer could proceed to enquire into the matter after nearly a decade of the issuance of the certificate by the Board and gone into factual disputes, particularly with regard to the entries made in the Family Register of the appellant, without ascertaining about the authenticity of the same. Under the Act or Regulation, no such power has been given to any officer of the Board to make such investigation. 14. Learned Single Judge has rightly recorded a finding that the officers of the Board have to act in accordance with the Regulations and under no such circumstances, the record of the Board should be changed by taking recourse to any correction in the record. 15. Besides having not been able to satisfy the Court that the finding recorded by order impugned in the writ petition was correct, even on jurisdiction point, the learned counsel for the appellant could not satisfy as to under what authority and under which provision the order was passed by the officer concerned (who was not the Secretary of the Board) correcting the date of birth of the appellant, which was impugned in the writ petition. 16. As such, we do not find any good ground to interfere with the detailed and well considered judgment passed by the writ Court wherein all the aspects relating to the matter have already been considered. 17. The appeal is, accordingly, dismissed. No order as to costs. —————