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2022 DIGILAW 316 (GUJ)

Patel Ravibhai Bhimjibhai v. State of Gujarat

2022-02-21

VAIBHAVI D.NANAVATI

body2022
JUDGMENT : 1. By way of this writ-application, which is filed under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs :- "(A) To allow this Petition; (B) To pass an order 2021 quashing and setting aside the impugned order dated 23.4.2021 issued by the Respondent No.2 herein that has been annexed to this Petition and marked as Annexure-A and declare the same to be illegal and Unconstitutional; (C) To pass an order directing the Respondent No.2 herein to change the date of birth of the Petitioner from 17.04.1991 to his actual date of birth i.e. 17.04.1992 in all the 3 documents (Class 10 School leaving Certificate, Class 12 School leaving certificate and Class 10 report card) that have been annexed to this Petition and marked as Annexure-B (colly); (D) To dispense with the affidavit of the Petitioner and the typed copy of all annexures on account of the prevailing pandemic; (E) Any such other and further relief/s as the nature and circumstances of the case may require;" 2. The brief facts as stated by the writ-applicant for the adjudication of the present writ-application stated thus :- 2.1 The writ-applicant is an IT professional working as a freelancer with different Companies, who hire him as and when such Companies require his services. The writ-applicant holds a diploma in Telecom from the Gujarat Technical University and has worked with Companies like Idea cellular, Wipro Info etc in the past. 2.2 While applying for various competitive exams and while filing in the forms as part of the application process, it was noticed by the writ-applicant that the writ-applicant's date of birth was incorrectly mentioned in his Class 10 and 12 School leaving certificates along with his Class 10 mark-sheet as 17.04.1991' instead of 17.04.1992' which is his actual date of birth. 2.3 On noticed of such anomaly, the writ-applicant approached the Schools that had issued the aforesaid Certificates. The Schools though willing to help him stated that they could not carry out the necessary changes as the authority vested with the respondent No.2. 2.4 The writ-applicant herein approached the respondent No.2. The respondent No.2 informed the writ-applicant that the respondent No.2 has no powers to make the requisite changes and that they would make the changes only if an order is made available from the Court of law. 2.4 The writ-applicant herein approached the respondent No.2. The respondent No.2 informed the writ-applicant that the respondent No.2 has no powers to make the requisite changes and that they would make the changes only if an order is made available from the Court of law. The writ-applicant preferred representation to the respondent No.2 on 17.3.21 which the respondent No.2 declined to decide. The writ-applicant approached this Court by filing Special Civil Application No.5902 of 2021. This Court by order dated 31.3.21 passed in SCA 5902 of 2021 directed the respondent No.2 to decide said representation. The representation dated 17.3.2021 included the Aadhaar card, election card, pan card and passport and also the birth-certificate of the writ-applicant duly issued by the authority which reflect the age of the writ-applicant correctly as 17.4.1992. The respondent no.2 refused to make the necessary changes as requested by the writ-applicant herein and the representation of the writ-applicant 17.3.2021 by communication dated 23.4.2021. 3. Being aggrieved by the impugned communication dated 23.4.2021 rejecting the representation dated 17.3.2021 made by the writ-applicant, the writ-applicant is constrained to approach this Court. 4. Heard Mr. Ronit Joy, the learned advocate appearing for Mr. Subham Jhajharia, the learned advocate for the writ-applicant. Mr. Joy, the learned advocate candidly submitted that the date of birth of the writ-applicant was incorrectly mentioned in the Class 10 and Class 12 School leaving Certificate and the Mark-sheet of Class 10 as 17.4.1991 instead of 17.4.1992 as it was a mistake and the said mistake was not with ulterior motive. The writ-applicant had not committed any anomaly. However, it was a mistake committed by the parents of the writ-applicant while admitting the writ-applicant in the school while filling up the form. The mistake was purely by inadvertence. 4.1 Mr. Joy, the learned advocate submitted that the writ-applicant has duly produced all the documents before the respondent No.2 authority as referred to above. He submitted that in view of above, the prayers as prayed for by the writ-applicant be accepted and the writ-application be allowed. 5. Mr. A.D. Oza, the learned advocate appearing for the respondent No.2 relied on the affidavit-in-reply filed by the respondent No.2. Mr. He submitted that in view of above, the prayers as prayed for by the writ-applicant be accepted and the writ-application be allowed. 5. Mr. A.D. Oza, the learned advocate appearing for the respondent No.2 relied on the affidavit-in-reply filed by the respondent No.2. Mr. Oza, the learned advocate submitted that the writ-applicant was informed by letter dated 23.4.2021 by the respondent No.2 that the writ-applicant after following the procedure as envisaged in Regulation 12A of the Gujarat Secondary and Higher Secondary Education Regulation, 1974 and upon the necessary proposal by the school as in the prescribed form alongwith necessary details, evidence and necessary fees, the change will be effected in the mark-sheet of the writ-applicant. He submitted that in absence of such ingredients i.e. 'demand and refusal' the writ-application be dismissed. 5.1 Mr. Oza, the learned advocate submitted that there was no error much less any mistake on part of the respondent authority in recording the date of birth at the time of admission of the writ-applicant. In fact, it is accepted by the writ-applicant that it is the mistake committed by the parents of the writ-applicant in filling the application form. He submitted that the above ground estops the writ-applicant from claiming change of birth on the pretext of the mistake. He submitted that even otherwise the writ-applicant has approached this Court after gross delay of more than 14 years and the writ-applicant is seeking change in the birth date. He submitted that on the above ground of delay and latches alone the writ-application requires to be dismissed. 5.2 Mr. Oza, the learned advocate submitted that the writ-applicant has not approached this Court with clean hands and it was deliberately that the birth date i.e. 17.4.1991 was provided to the school authority to get an early admission in the school before the age of five years of the writ-applicant. He submitted that if the birth date of the writ-applicant would have shown as 17.4.1992 the writ-applicant could not have appeared in the March, 2006 10th Board Examination, since he would not have completed 15 years at the time of Board Examination. He submitted that on such ground the writ-application be dismissed. 5.3 He vehemently submitted that the writ-applicant may avail alternative remedy as per the provisions of Regulation 12A (6) of the Gujarat Secondary Regulation, 1974. Mr. He submitted that on such ground the writ-application be dismissed. 5.3 He vehemently submitted that the writ-applicant may avail alternative remedy as per the provisions of Regulation 12A (6) of the Gujarat Secondary Regulation, 1974. Mr. Oza, the learned advocate submitted that the Board permits the students to make application for correction of wrongly mentioned birth-date in the mark-sheet within 90 days from the date of declaration of the result. In the present case the has been sought for after a gross delay of 14 years and on such grounds the writ-application be dismissed. 6. Heard Mr. Ronit Joy, the learned advocate appearing for the writ-applicant and Mr. A.D. Oza, the learned advocate appearing for the respondent No.2. 7. The writ-applicant herein has sought for the change in the date of birth in the Class 10 and 12 School leaving Certificate, Mark-sheet of Class 10 as 17.4.1991' instead of 17.4.1992' which is actual date of birth. The writ-applicant came to know while filling the forms for competitive exams. As there was anomaly in the above referred certificates he approached the respondent No.2 for effecting the change in the said certificates. The respondent No.2 rejected the representation dated 17.3.2021 made by the writ-applicant by communication dated 23.4.2021 on the ground that the respondent authority has no jurisdiction/power to change the date of birth. The operative paragraph of the said communication reads thus :- "As per Regulation-12(A)(6) of the Gujarat Secondary Education Rules, 1974 If the student has actually left the school, no change can be affected in the entries of the records of the school' of course, the only way is to obtain certificate in support of correct date of birth by producing necessary evidence, which is valid as proof of correct date of birth for all purposes before any Judicial Magistrate First Class and assuring him for the same. Thus, you have passed examination of Standard-10 from Shree Ganesh Vidyalaya in the Year-2006. In order to correct the mistake regarding date of birth, after following the procedure as per Regulation-12(A)(6) of The Gujarat Secondary Education Regulations, 1974 and making proposal to this office through the school in the form appended herewith filled with complete details, all supporting documents and necessary fees, the certificate/mark-sheet of Standard-10 shall be corrected. In order to correct the mistake regarding date of birth, after following the procedure as per Regulation-12(A)(6) of The Gujarat Secondary Education Regulations, 1974 and making proposal to this office through the school in the form appended herewith filled with complete details, all supporting documents and necessary fees, the certificate/mark-sheet of Standard-10 shall be corrected. It is to inform you that in your case, the date of birth mentioned in the S.S.C. Certificate is same as mentioned in the School Leaving Certificate. Examination Secretary Gujarat Secondary and Higher Secondary Education Board, Gandhinagar" 7.1 The ratio as laid down by the Division Bench of this Court in the judgment and order dated 24.11.2018 in the Letters Patent Appeal No.239 of 2011 in paragraphs 3 to 11 read thus :- "3. It is not in dispute that Regulations governing the Secondary Schools, i.e. Gujarat Secondary Education Regulations, 1974, prohibit the variation in date of birth or name of the student in the school records once a student leaves the school. 3.1. It is also not in dispute that the petitioner's date of birth was registered with the competent authority at the time of his birth and his date of birth is registered as 25.12.1982. However, on account of some mistake on the part of someone, the school records indicate the date of birth of the petitioner to be 6.5.1978 and on the basis of the certificate of birth, which is considered to be a conclusive proof of the date of birth unless and until it is found to be fake or forged, the petitioner seeks correction in the school records, including the school leaving certificate. 4. Having heard learned advocate Mr. Vikram Thakor for the appellant, learned Assistant Government Pleader Mr. Pranav Dave for respondent Nos.1 and 2 and learned advocate Mr. A.D. Oza for respondent No.4, we find that the Registration of Births and Deaths Act, 1969 empowers a Judicial Magistrate First Class to make correction in the date of birth in given set of situation. It does not contemplate investing of similar powers in the Magistrate in respect of correction of the date of birth in a school leaving certificate or other school records nor does it empower the Magistrate to give direction to the school authorities to make necessary correction in their records in respect of the date of birth of a student who has left the school. 4.1. 4.1. Similar question had arisen before this Court in the case of Misrikhan Dilavarkhan Pathan v. State of Gujarat, reported in 2008 (2) GLR 1292 , and the learned Single Judge of this Court, after examining the relevant provisions held that Civil Court will have jurisdiction to direct the school authorities to make necessary correction in their records in respect of name or date of birth of a student who has left the school. The learned Single Judge, however, took a view that merely because remedy of civil suit is available, the petitioner need not be relegated to the Civil Court in all cases and the High Court can issue necessary direction for correction. 5. Our attention was drawn to the decision taken in Letters Patent Appeal No.699 of 2003 dated 11.8.2003, which is relied by learned Single Judge in the order impugned. A reference to the order in Letters Patent Appeal No.699 of 2003, would clearly indicate the dispute in respect of the correction in date of birth, as recorded in a certificate of birth issued by the Gram Panchayat, and not the school leaving certificate and therefore, it was observed that the date of birth can be rectified by a Judicial Magistrate First Class. Though it was laying down correct position of law, it will not apply to the facts of the present case. 5.1. Another order that is relied upon is in respect of Special Civil Application No.4423 of 2001 and allied matters dated 24.6.2009, where a view was expressed that entries made in the school registers maintained by school can be corrected by an order from Judicial Magistrate First Class. But, this order was based on the order passed in Letters Patent Appeal No.699 of 2003. 6. Learned advocate Mr. Oza also referred to a decision in the case of Regional Passport officer v. Kokilaben, W/o. Jaswantlal Panchal and Ors., reported in 2009 (2) CLR 1246, where the Division Bench observed that, correction or change in date of birth or name, etc. in passport cannot be directed to be effected by Passport authorities after making enquiry and that has to be by Judicial Magistrate First Class or by Civil Court or statutory authority, as the case may be. 7. in passport cannot be directed to be effected by Passport authorities after making enquiry and that has to be by Judicial Magistrate First Class or by Civil Court or statutory authority, as the case may be. 7. Having regard to the legal situation, stated above, it is clear that Judicial Magistrate First Class is not invested with power to make changes in the date of birth or names, as recorded in the school records or the school leaving certificate. The powers which are invested are in respect of making necessary correction in register of birth and death. 8. At this stage, it would also be appropriate to refer to the Gujarat Secondary Education Regulations, 1974, particularly, Regulation No.12(A)6, which reads as under:- "In case of a student leaving the school forever, no changes in the entries of the school register shall be made thereafter. Of-course, ultimately, only way is to present the required proof in support of the true birth date to the satisfaction of any First Class Magistrate and to obtain from him a certificate, which for all purposes, is accepted as admissible proof of true birth date." The above-referred Regulation, therefore, also does not invest the Magistrate with authority to direct making of correction in the records of the school, but it only prescribes a methodology whereby correction can be effected, viz. that if a student, who has left the school forever, wants some correction to be made in the records of school in respect of date of birth or name, he may approach the Magistrate with requisite proof of his true birth date and if the same is found to be satisfactory by the Magistrate, the Magistrate may issue a certificate to him indicating his true birth date and such certificate is held to be sufficient to enable the school authorities to make necessary changes in its records. 9. The decision in Letters Patent Appeal No.699 of 2003 was rendered on the basis of the provision contained in Section 13 of the Registration of Births and Deaths Act, 1969, which reads as under:- "13. Delayed registration of births and deaths.-(1) Any birth or death of which information is given to the Registrar after the expiry of the period specified therefor, but within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed. Delayed registration of births and deaths.-(1) Any birth or death of which information is given to the Registrar after the expiry of the period specified therefor, but within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed. (2) Any birth or death of which delayed information is given to the registrar after thirty days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority and on payment of the prescribed fee and the production of an affidavit made before a notary public or any other officer authorised in this behalf by the State Government. (3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first-class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee. (4) The provision of this section shall be without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefor and any such birth or death may be registered during the pendency of any such action." In view of the above, it appears that the said provision does not deal with the question of making correction in the school leaving certificate or the other school records. 10. The petitioner-appellant, therefore, was right when he approached the Civil Court for necessary declaration and the Civil Court erred in holding that it has no jurisdiction. However, the appellant accepting the said verdict approached this Court with the petition, where also, he has failed. Unfortunately, the petitioner appellant has not challenged the said order of the Civil Court by way of an appeal. 11. However, the appellant accepting the said verdict approached this Court with the petition, where also, he has failed. Unfortunately, the petitioner appellant has not challenged the said order of the Civil Court by way of an appeal. 11. This Court is, therefore, left with two alternatives, first being that to relegate the appellant to the Civil Court for pursuing his cause while setting aside the order impugned and secondly, to set aside the order impugned and, instead of insisting the appellant to pursue alternative remedy, exercise its extraordinary jurisdiction under Article 226 of the Constitution of India and to issue a direction to the school authorities for making necessary correction, particularly when there is no dispute about the genuineness of the certificate of birth and the date of birth indicated therein. In our view, a citizen need not be made to run from pillar to post for such a genuine and petty cause and we deem it proper to opt for the second alternative in the peculiar facts of this case." 7.2 In the Special Civil Application No.12386 of 2007 dated 4/5.2.2008 paragraphs 16 to 18 read thus :- "16. It is settled legal position that in all cases merely because Civil Suit also would lie, the party should not be relegated to the Civil Court in the interest of justice and to see that inconvenience or serious prejudice or any apprehension of such prejudice to be removed expeditiously so that the Court can grant equitable relief under the jurisdiction vested with the Court. 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. 17.2 To avoid such inconsistency and conflict inter se, it would be in the fitness of thing that register of the primary school where the student was admitted for the first time is also to be corrected and it is not impossible for the State Government to decide the modalities and to resolve such inconsistency because it is the experience of the society that various authorities on different occasions demands both the certificates viz., the original birth certificate, as well as, one of the school leaving certificate where the student has studied, because such certificates contain relevant details of an individual. 18. Having considered the submissions advanced at the Bar and the documents forming part of the present petition and the affidavit tendered by the petitioner, the present petition is hereby allowed. It is ordered that the competent authority now shall correct the date of birth of the petitioner in the school register from 29/02/1983 to 18/08/1982, as well as, the place of birth as Bhartiya Arogyanidhi, Gorsheri, Patan instead of Village Dasaj, Tal. Siddhpur. The respondents Nos.2 and 3 now shall issue necessary directions to the concerned school that the register of the school having date of birth be corrected by making necessary changes in the date of birth and place of birth; and on demand shall issue a fresh school leaving certificate with the correct date of birth and place of birth. Rule is made absolute in above terms. Rule is made absolute in above terms. Direct Service is permitted." 7.3 The provisions of law : Section 12A of the Gujarat Secondary and Higher Secondary Regulation 1974 more particularly Regulation 12A(6) reads thus :- "In case of a student leaving the school forever, no changes in the entries of the school register shall be made thereafter. of -course, ultimately, only way is to present the required proof in support of the true birth date to the satisfaction of any First Class Magistrate and to obtain from him a certificate, which for all purposes, is accepted as admissible proof of true birth date." The above referred regulation does not vest the Magistrate with the authority to direct the correction of school record. The above referred regulation merely provides methodology which can be adopted for giving effect whereby correction in the school record can be given effect to. Regulation 13 of the Registration of Birth and Death Act reads thus :- "13. Delayed registration of births and deaths.-(1) Any birth or death of which information is given to the Registrar after the expiry of the period specified therefor, but within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed. (2) Any birth or death of which delayed information is given to the registrar after thirty days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority and on payment of the prescribed fee and the production of an affidavit made before a notary public or any other officer authorised in this behalf by the State Government. (3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first-class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee. (4) The provision of this section shall be without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefor and any such birth or death may be registered during the pendency of any such action." Regulation 13 of the Registration of Birth and Death Act does not envisage changes in the school record. 7.4 In the facts of the present case the writ-applicant has produced the original Birth Certificate at page-35 on affidavit and has submitted that the said certificate is genuine. There is no reason for this Court to doubt the genuineness of the Birth Certificate and the date of birth. The say of the writ-applicant is that the date of birth mentioned in the school leaving certificate is incorrect in view of the mistake committed by his parents at the time of filling the form for admission in the school. The respondent authority has failed to point out any malafide intention on the part of the writ-applicant and the documents duly produced by the writ-applicant cannot be doubted. Clearly in view of the aforesaid provisions of law as discussed above the Judicial Magistrate First Class is not vested with the power to make changes in the school record. 7.5 In view of this Court it is apposite to exercise the discretion under Article 226 of the Constitution of India and direct the respondent authority to make necessary correction as prayed for by the writ-applicant in the present writ-application, more particularly when there is no doubt with regard to the genuineness of the date of birth as referred above. 7.6 Accordingly the writ-application stands allowed. The impugned order dated 23.4.2021 issued by the respondent No.2 is hereby quashed and set aside. It is ordered that the competent authority now shall correct the date of birth of the writ-application in the school register from 17.04.1991' instead of 17.04.1992'. The respondents No.2 now shall issue necessary directions to the concerned school that the register of the school having date of birth be corrected by making necessary changes in the date of birth and on demand shall issue a fresh school leaving certificate with the correct date of birth.