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2017 DIGILAW 926 (CAL)

Shib Sankar Sahoo v. State of West Bengal

2017-11-28

SABYASACHI BHATTACHARYYA, SANJIB BANERJEE

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JUDGMENT : The reference has arisen on the following question as formulated by a single Bench in the order of December 8, 2014: “I. whether the time limit of 7 (seven) years to apply for correction of date of birth is rigid and inflexible, or is the West Bengal Board of Secondary Education empowered to effect such correction at any time on the application of an aggrieved party, provided exceptional circumstances are shown by the relevant authority and that the case is fit to be entertained?” 2. The question arose in connection with a writ petition filed upon the failure or refusal by the respondent authorities to correct the date of birth recorded in the admit card and pass certificate issued by the West Bengal Board of Secondary Education (the Board) to the petitioner. It is recorded in the order dated December 8, 2014 that the “petitioner had applied before the Board several times for effecting correction of his date of birth … but since no response had been received, this writ petition has been presented on November 25, 2014 seeking, inter alia, order on the Board to correct his date of birth …” 3. In course of the hearing on December 8, 2014, the Board relied on an unreported decision of a single Bench rendered on September 6, 2010 in WP 18467(W) of 2010 (Miss Krishna Basu @ Bose v. The State of West Bengal). Such judgment was cited for the proposition that after a particular point of time no correction could be effected and, as such, no mandamus could be issued in respect thereof. 4. The order of December 8, 2014 noticed the judgment in Krishna Basu and set out considerable portions thereof before interpreting the dictum in Krishna Basu to be that after a particular period of time, the date of birth of a candidate as recorded in the admit card or the certificate issued by the Board could not be corrected at all. It was observed in the order of December 8, 2014 that the decision in Krishna Basu “appears to have overlooked the next part of the guidelines empowering the administrative head to direct the relevant committee to correct errors at any time, subject to exceptional circumstances being set up and the case being one fit for being entertained.” 5. It was observed in the order of December 8, 2014 that the decision in Krishna Basu “appears to have overlooked the next part of the guidelines empowering the administrative head to direct the relevant committee to correct errors at any time, subject to exceptional circumstances being set up and the case being one fit for being entertained.” 5. Thus, since the dictum in Krishna Basu was read and understood to be that there was an inflexible period of limitation prescribed in the rules or circulars for receiving an application for correction of the date of birth, the reference was made as the circular of 1977 which would be applicable in the present case contained an express provision for a belated application to be received in exceptional circumstances and, in effect, there being no embargo, so to say, on the time scale. 6. It is necessary in this context to notice three paragraphs from the judgment in Krishna 4 Basu which have also been quoted in the order of reference of December 8, 2014: “The petitioner took the Higher Secondary Examination held in April 1975. Under the circumstances, the question of correction of her date of birth recorded in the admission register of Salkia Balika Vidyalaya O Shilpashram, the secondary school concerned, was to be decided, if at all, according to the provisions of the circular of the Board dated May 13, 1958. Under the circular the headmaster of the secondary school or the petitioner’s legal guardian through the headmaster could apply to the Board for necessary correction in the entry of her date of birth in the admission register of the school within seven years from 1975; and if applied, the Board would have incurred an obligation to examine the question of permitting alteration of her date of birth entered in the admission register of the secondary school. The admitted position is that until 2002 when the petitioner, of her own accord, applied to the Board seeking correction of her date of birth recorded in the pass certificate issued by the Board in 1975, no other person had ever applied to the Board seeking alteration of her date of birth entered in the admission register of the secondary school. No provision of the circular dated May 13, 1958 or the subsequent circular dated October 3,1977 or any other law entitled her to apply straight for alteration of the date of birth recorded in the certificate issued by the Board or empowered the Board to alter the date of birth recorded in the certificate.” 7. It may also be pointed out in the context of Krishna Basu that the single Bench decision was accepted by a Division Bench in an appeal arising from such order. In course of disposing of such appeal, the appellate court observed that “Such a belated claim cannot be entertained and possibly it is an afterthought story.” However, the operative part of the appellate order of August 1, 2013 passed in MAT 683 of 2011 (Miss Krishna Basu @ Bose v. The State of West Bengal) reads as follows: “Considering the conflicting claims no ground for interference by us in the impugned order passed by the Single Bench is made out. We are in agreement with the view of the Single Bench in rejecting the claim of the petitioner particularly the Circular No.14 of 1958 which has been relied upon by the Single Bench. No case has been made out for change of date of birth in the Higher Secondary School Certificate by the appellant. The appeal being devoid of merit is hereby dismissed with costs assessed at Rs.1,000/-.” 8. The circular of 1958 which has been referred to at both stages of the matter in Krishna Basu may no longer be relevant. However, for the completeness of the discussion embarked on herein, a passing reference to such circular may be unavoidable. 9. The relevant circular of May 13, 1958 provided for the procedure to be followed for recording the date of birth of a pupil in the Admission Register of a Secondary School and for alteration of the entry of date of birth. The circular also recorded that the instructions contained therein were to “supersede all previous instructions on the subject and take effect from the 1st of June, 1958.” 10. Clause 9(i) of the circular contemplated an application for correction being made within two years from the date on which the candidate sat for the School Final or Higher Secondary Examinations. The circular also recorded that the instructions contained therein were to “supersede all previous instructions on the subject and take effect from the 1st of June, 1958.” 10. Clause 9(i) of the circular contemplated an application for correction being made within two years from the date on which the candidate sat for the School Final or Higher Secondary Examinations. Clause 9(ii) of such circular permitted an application for correction to be received for another period of five years; thus, taking the combined time limit as indicated in the sub-clauses to seven years. It is such seven-year period that has been referred to in the judgment of Krishna Basu. 11. Clause 9(vii) of the circular emphasised on the embargo as to time in it stipulating that “No application for correction of clerical error shall be entertained after the expiry of the period mentioned in 9(ii) above.” 12. However, clause 11 of the 1958 circular made room for an application to be received beyond the time limit stipulated in clause 9(vii) thereof. Such clause may be seen: “11. In very exceptional circumstances, the Administrative Head of the Board of Secondary Education may at any time direct the Age Correction Committee to accept a case with the usual prescribe fee, provided, in his opinion, it is a fit case to be entertained.” 13. The circular now in vogue for correction of the date of birth is the one of October 3, 1977. Both at the head and at the tail of such circular of October 3, 1977 it is clearly indicated that such circular and the “instructions supersede all previous instructions on the subject and take effect from 1st January, 1978.” 14. The circular of 1977 is not much unlike the 1958 circular in the feature that is material for the present discussion. A period of two years is contemplated under clause 8(i) thereof; and a further period of five years in clause 8(ii) thereof. There is also a negative stipulation in clause 8(ii) implying that an application to correct the date of birth would not be received later than seven years from the date when the candidate sat for the Madhyamik examinations. 15. There is also clause 8(vii) in the 1977 circular that provides as follows: “vii. There is also a negative stipulation in clause 8(ii) implying that an application to correct the date of birth would not be received later than seven years from the date when the candidate sat for the Madhyamik examinations. 15. There is also clause 8(vii) in the 1977 circular that provides as follows: “vii. No application for correction of clerical error shall be entertained after the expiry of the period mentioned in 8(ii) above except under special circumstances on the recommendation of ACC.” (ACC implies the Age Correction Committee of the Board). 16. It is evident, therefore, that notwithstanding the clauses of restriction as to time contained in both the 1958 and the 1977 circulars, for exceptional cases there was, really, no time limit and if a fit case was carried to the appropriate authority with a suitable explanation, the correction of age could be effected several years and decades after the candidate took his Madhyamik or Higher Secondary examinations. 17. The judgment in Krishna Basu did not address the issue as to time, though the delay in applying for the correction of the date of birth was a factor in such case. As would be evident from the portion of the judgment quoted above, the single Bench emphasised on the procedure adopted by the candidate to apply for the correction of her date of birth. The petitioner in that case applied of her own accord and directly to the Board. The procedure under neither circular of 1958 or 1977 permitted such a direct approach. An application had to be made to the headmaster for the application to be forwarded to the Board and even if an application was made at a belated stage, beyond the period of seven years, it had to go before another authority for such authority to recommend the case for correction to the Board. The candidate could never have approached the Board directly for effecting correction in the candidate’s date of birth. That is the dictum in Krishna Basu. 18. It is an entirely different matter that in course of the appeal in Krishna Basu the appellate order dwelt more on the ground of delay. But the observation as to the ground of delay as quoted hereinabove from the appellate order of August 1, 2013 is not a part of the ratio decidendi of such appellate order. 18. It is an entirely different matter that in course of the appeal in Krishna Basu the appellate order dwelt more on the ground of delay. But the observation as to the ground of delay as quoted hereinabove from the appellate order of August 1, 2013 is not a part of the ratio decidendi of such appellate order. The operative part of the appellate order indicated that no interference was warranted with the view expressed by the single Bench. The view expressed by the single Bench in that case was that a direct application by a candidate to the Board for correction of the candidate’s date of birth could not be made as there was a procedure prescribed therefor. The single Bench decision in Krishna Basu did not hinge on the delay, but on the faulty procedure adopted by the candidate in making the application. 19. It is elementary that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found therein are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are found. A judgment is also an authority only for what it actually decides. The decision in the Division Bench order of August 1, 2013 was that the order impugned therein did not warrant any interference. There was a stray line earlier in the order of there being inordinate delay on the part of the writ petitioner in attempting to correct her date of birth; but such observation was not integral to the ultimate decision as reflected in the operative part of the order. 20. Viewed from such perspective, the dictum in Krishna Basu had no impact on the present case. However, since there was also a delay beyond seven years in Krishna Basu, such common feature may have prompted the reading of the dictum in Krishna Basu to be slightly tinged by the time factor than what the clear words of Krishna Basu warranted. 21. However, since there was also a delay beyond seven years in Krishna Basu, such common feature may have prompted the reading of the dictum in Krishna Basu to be slightly tinged by the time factor than what the clear words of Krishna Basu warranted. 21. Accordingly, the question posed in the reference is answered thus: There is a time limit of seven years for an application for correction of the date of birth to be made in terms of the circular of October 3, 1977, but such time limit is neither rigid nor inflexible in that clause 8(vii) thereof conceives of applications being entertained after the period of seven years but only under special circumstances on the recommendation of the Age Correction Committee of the Board. 22. The reference stands disposed of and the writ petition, being WP 31343(W) of 2014, should now be placed before the appropriate single Bench for its expeditious disposal in accordance with law.