Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 1647 (MAD)

S. Indumathi v. Chief Secretary to Government, Secretariat, Chennai

2019-06-13

S.VAIDYANATHAN

body2019
JUDGMENT : (Prayer: Petition is filed under Order 47 Rule 1 of CPC r/w Section 114 CPC, praying to review the order dated 11.07.2018 in W.P.No.16510 of 2018 and pass such further or other orders as this Hon'ble Court may deem fit and proper.) 1. This Review Application has been filed, seeking to review the order dated 11.07.2018 in W.P.No.16510 of 2018, in and by which, the Petitioner's request for alteration of date of birth as 17.07.1997 was negatived, by holding as under: “7. It may be true that the petitioner was born on 17.07.1997, but for the purpose of entry into the school, the parents would have given the Date of Birth of the petitioner as 17.05.1997. If the actual Date of Birth 17.07.1997 is taken into account, then the entire qualification obtained by the petitioner/candidate will have to go, as she could not have been admitted in I Std. based on the date of birth, namely, 17.07.1997. In order to admit the petitioner/student into the School, the Date of Birth has been corrected as 17.05.1997 and that the same continued till the completion of her XII Std. The student could not, later, on the ground that the parents have given the wrong Date of Birth and that needs to be altered, and that for the fault of the parents, the child/student should not be affected, cannot be accepted. If such a contention is going to be accepted, and that the petitioner wants alteration of the Date of Birth as 17.07.1997, as stated supra, the entire qualification itself vanishes, as the student has no locus-standi to enter I Std. based on the Date of Birth as 17.07.1997. 8. In view to the above, this Court cannot decide the issue even based on sympathy. If such contentions are accepted, then it will give a premium for everyone to knock at the doors of the Court to alter the Date of Birth. If for any reason the Date of Birth is altered from 17.05.1997 to 17.07.1997, then the entire qualification obtained by the petitioner is not valid in the eye of law, i.e. she is deemed to be not qualified at all.” 2. If for any reason the Date of Birth is altered from 17.05.1997 to 17.07.1997, then the entire qualification obtained by the petitioner is not valid in the eye of law, i.e. she is deemed to be not qualified at all.” 2. The case of the petitioner is that in terms of G.O.Ms.No.1906 dated 22.08.1977, the pupil, who has completed 14 years of age on the first day of the month in which the examination is to be conducted, is entitled to take up the public examination and that even if the date of birth of the Petitioner is taken to be either 17.07.1997 or 17.05.1997, she had completed 14 years of age as on the date of public examination that was conducted in the year April, 2012. According to the Petitioner, the correction in the date of birth will not make any difference insofar as the case of the petitioner is concerned and therefore, there is no harm in correcting her date of birth as 17.07.1997. The further case of the Petitioner is that certain vital documents (Corporation records), which were produced before the school authorities at the time of her admission into the school, showing her date of birth as 17.07.1997, had not been brought to the attention of this Court during advancement of argument in the main Writ Petition and therefore, the order dated 11.07.2018 needs to be reviewed based on the subsequent documents and her date of birth has to be declared as 17.07.1997. 3. Learned Government Advocate appearing for the respondents has strenuously opposed to the maintainability of the Review Application, as the facts narrated in this Review Application had already been canvassed by the Applicant at the of argument in the Writ Petition itself and she should not be permitted to re-agitate the same once again. She has contended that even assuming for the sake of argument that the date of birth of the Petitioner is 17.07.1997, the parents of the petitioner should have given a declaration to that effect by means of an affidavit at the time of admission into school and her parents, at no point of time, have evinced any interest in correction of her date of birth. She has also contended that on 06.06.2007, the mother of the petitioner had written a letter to the Headmistress of the 5th Respondent school, with a request to change the petitioner's name and at that stage also, her mother had not sought for any alternation in the date of birth of the petitioner. Hence, it is prayed that there is no substance and merit in the Review Application and the same has got to be dismissed. 4. Learned counsel for the petitioner, by relying upon Paragraph No.30 of the judgment of this Court dated 18.09.2012 in the case of S.Rajesh Kumar vs. The Secretary, Board of Higher Secondary Education, Department of Government Examinations, Madras-6 and others, has submitted that the date of birth can be corrected as per the Corporation records and the said Paragraph No.30 is extracted below: “30. As stated supra, as per the birth certificate issued by the Sub Registrar, Thiruvattar enclosed in the typed set of papers, the name of the child entered in the said certificate is S.Rajesh Kumar. The date of birth has been shown as 19.01.1975. When the statute provides for correction or cancellation of an entry in the register of births and deaths maintained by the Sub Registrar after coming into force of the Act, the said certificate can be relied on for making necessary changes in public records which includes the records maintained in the office of the Director of Government Examinations Chennai. The contention of the respondents that the said correction can be made only before the student leaves the school and not later, cannot be accepted for the reason that any entry in the birth certificate by virtue of registration or alteration or cancellation by the competent authority under the Registration of Births and Deaths Act, 1969, has to be given effect to otherwise, the purpose for registration or alteration or modification would be defeated. There cannot be different entries in the public records maintained by different authorities, one under the Registration of Births and Deaths Act, 1969 and the other by the educational authorities. The date of birth as entered in the birth extract has to be entered in all the public records uniformly, unless and until any statutory rules, restrict such entry, like in the case of a Government servant, governed by the Tamil Nadu State and Subordinate Services Rules. The date of birth as entered in the birth extract has to be entered in all the public records uniformly, unless and until any statutory rules, restrict such entry, like in the case of a Government servant, governed by the Tamil Nadu State and Subordinate Services Rules. In the light of the above discussion, this Court is not inclined to accept the objections of the educational authorities made on the basis of the Subsidiary rules framed before the introduction of the Central Act, 1969.” 5. In the judgment referred to supra, this Court had held that the date of birth as entered in the birth extract has to be entered in all the public records uniformly, unless and until any statutory rules restrict such entry, like in the case of a Government Servant, governed by the Tamil Nadu State and Subordinate Services Rules. In the present case on hand, a reading of Article 53-A of the Code of Regulations for Anglo-Indian Schools, Tamil Nadu would go to show that the date of birth could be altered before the month of March of the year concerned. However, throughout the schooling of the Petitioner, her Parents were not at all interested in correcting the date of birth of the petitioner and in fact, they had on earlier occasion not given any representation to that effect. In view of the same, the decision referred to by the petitioner is not applicable to the facts of this case. For the sake of convenience, Article 53-A of the Code of Regulations for Anglo-Indian Schools, Tamil Nadu reads is extracted below: “53A. The Headmaster/Headmistress of every Anglo-Indian School shall obtain a certificate from the parent or guardian of every pupil in standard IX as to the accuracy or otherwise of the age as entered in the register of admissions and withdrawals. This should be done by the month of March of the year concerned. If the age entered in the register is accepted as correct, the certificate should be filed in the school office and a report to the effect submitted to the Inspector of Anglo-Indian Schools by the first week of April of the year concerned. If parent or guardian does not accept the age entered in the register as correct, the date of birth shown in the register may be altered if and after valid evidence is produced. If parent or guardian does not accept the age entered in the register as correct, the date of birth shown in the register may be altered if and after valid evidence is produced. Such alteration shall only be done with the sanction of the Inspector of Anglo-India Schools and shall be effected before the pupil goes to standard X. Clearest possible evidence of the correct date of birth such as the Baptism certificate in the case of a Christian pupil or the extract from the register of births together with a declaration that the extract relates to the pupil in question and to no one else, should be insisted upon before alterations are permitted. Request for alteration of date of birth should not be entertained after a pupil completes High School education and his/her results are declared except when an obviously absurd entry has to be corrected or when a Civil Court directs correction in any individual case. In these cases, the corrections should be made only under the Director's orders and should be attested by the Inspector of Anglo-Indian Schools.” 6. In yet another case quoted by the learned counsel for the petitioner in S.Daisant Dollinie vs. The Headmistress, Holy Angels Anglo Indian Higher Secondary School, T.Nagar, Chennai-600 017 Chennai and others, reported in 2013 (1) CWC 39, this Court had held that if there is any error in the date of birth, the remedy open to the aggrieved party is to let in oral and documentary evidence in a Court of competent Civil jurisdiction and obtain a declaration in respect of change of date of birth and that alteration cannot be demanded as a matter of right. Moreover, in the said judgment, the request was confined only to the change of spelling of the name of the petitioner therein and not the date of birth (as sought for by the petitioner herein). 7. In this case, there is no reasonable explanation given by the petitioner with regard to her true date of birth and when a declaration was sought by the parents of the petitioner for change of her name, they should have taken earnest steps to alter the date of birth of the petitioner as well, which has not admittedly been done by them for the best reasons known to them. Above all, the 5th respondent school, being an Anglo Indian School, is governed by the Code of Regulations for Anglo-Indian Schools, Tamil Nadu, by which, there is a prohibition with regard to the correction in the date of birth. 8. Fortunately, the parents of the petitioner are not before this Court and had they been here, this Court would have rendered a finding that they have approached this Court with unclean hands, thereby resulting in imposition of heavy costs upon them for their act. It should be remembered that it is well settled that the scope of review is very minimal, as held by a Hon'ble Division Bench of this Court in the case of The Special Officer, Kallal Co-operative Primary Agricultural and Rural Development Bank Ltd., Karaikudi, Sivagangai District vs. R.M.Rajarathinam and others [Review Application (MD)No.82 of 2013] decided on 04.02.2015, by holding as under: “10. From the records, it is seen that the review applicant did not contest the claim of the first respondent on merits in the writ petition. On the other hand, the learned counsel for the review applicant admitted the contentions of the first respondent. Based on the said admission only, an order was passed in the writ petition. The review application and the writ appeal filed by the review applicant herein were dismissed as not maintainable. W.A.(MD) No.502 of 2009 filed against the order dated 26.07.2007 passed in W.P.(MD) No.4636 of 2004, was dismissed by a Division Bench of this Court, holding that the review applicant is not entitled to agitate the issue on merits. It is well settled that the scope of review is very limited. The review applicant cannot re-argue and he is not entitled for re-hearing on merits. 11. The scope of review was considered by the Hon'ble Apex Court in a judgment reported in 2000 (6) SCC 224 [Lilli Thomas and Others Vs. Union of India and Others], wherein, in paragraph 52, it was held as under: “52. The dictionary meaning of the word “review” is “the act of looking, offer something again with a view to correction or improvement”. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi Vs. Pradyumansinghji Arjunsinghji [ 1971 (3) SCC 844 : AIR 1970 SC 1273 ] held that the power of review is not an inherent power. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi Vs. Pradyumansinghji Arjunsinghji [ 1971 (3) SCC 844 : AIR 1970 SC 1273 ] held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error. .....”(emphasis supplied) 12. A Division Bench of this Court in a judgment reported in 2014 (3) TLNJ 245 (Civil) [M.Jai Kavitha Vs. The Authorised Officer, Syndicate Bank, Regional Office, Chennai - 1 and others], in which, one of us [V.DHANAPALAN, J.] is a party, has considered the scope of judicial review, wherein the decision of the Honourable Apex Court was noted with approval. Paragraph No.9 of the said Judgment reads as under: “9. The power of review under Order 47 Rule 1 of CPC can be exercised by a court of law, if the order in question comprises a mistake or an error apparent on the face of record. Once an order is pronounced, it should not be altered, unless there is an apparent error. Law is well settled that erroneous finding is not a ground for review, so also improper consideration for that matter. In review application, the court does not sit in appeal over its own judgment and the said application cannot be treated as an appeal. This position has been ruled by the Supreme Court in Lily Thomas Vs. Union of India [ 2000 (6) SCC 224 ]. In review application, the court does not sit in appeal over its own judgment and the said application cannot be treated as an appeal. This position has been ruled by the Supreme Court in Lily Thomas Vs. Union of India [ 2000 (6) SCC 224 ]. Therefore, in the absence of any error apparent on the face of record, we are not inclined to interfere with the order in question, except to the extent of deleting of the portions in paragraphs 14 and 15 of the impugned order, with which the applicant is concerned as to having an impact on the proceedings pending before the tribunal, as stated in the foregoing paragraph.” (emphasis supplied) 9. A circumspection of the entire facts and circumstances of the case discloses the fact that the due mention of the date of birth of the petitioner as 17.07.1997 by her parents is not out of ignorance, but is deliberate and wanton for the reasons known to them, which cannot be ordered to be corrected in the present Review Petition. Hence, I find no ground to review my earlier order dated 11.07.2018 passed in W.P.No.16510 of 2018. 10. In the result, the Review Petition stands dismissed as devoid of merits. No costs.