WPMS/150/2021 of REEBA KHAN Vs CENTRAL BOARD OF SECONDARY EDUCATION

HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 150 of 2021

Reeba Khan … Petitioner

Central Board of Secondary Education and another … Respondents Advocates : Mr. S.R.S. Gill, Advocate, for the petitioner Mr. Shashank Upadhyaya, Advocate, for the respondents

Hon’ble Sharad Kumar Sharma, J.

Brief facts of the case are that the petitioner who contends that she was the student of Junior High School, Thakurdwara, had taken her High School Examination, which was conducted by the CBSE Board, Dehradun, and prior to taking of her examination, parents of the petitioner had submitted an application form before the school concerned for the purposes of correction of her date of birth, as she was alleged to have born on 3rd January 2003, as per the date of birth certificate, which had been issued in her favour by the Department of Medical and Health, Government of Uttar Pradesh, as it then was.

2. The examination was conducted in 2020 and the petitioner contendsthat when she had received the mark sheet, it reflected for the first time, that her date of birth as to be 8[th] March 2005, which, according to her, it was wrong date of birth, which had been recorded, due to the mistakes of school authorities and due to the aforesaid inadvertence, the petitioner had filed an application on 17th August 2020, before the school concerned, which was later on forwarded by respondent No. 2 to respondent No. 1, for making

necessary rectification in the date of birth of the petitioner, recorded in the records of CBSE Board.

3. It is contended by the petitioner that by virtue of the impugned communication dated 9th September 2020, the proposal and the recommendation, as it was made by the institution for correction of date of birth of the petitioner, has been denied to be made by the CBSE Board, based on the implications of the bye laws as contained in clause 69.1/69.2 and hence present writ petition.

4. The learned counsel for the respondent had submitted that if the bye laws itself is taken into consideration, particularly, while referring to clause (9) of the bye laws, in fact, the changes, which were permissible therein, are only limited to change of ‘name’ or ‘surname’, of candidate, who had taken the high school examination from CBSE board, which is permissible to be taken and in that eventuality, the learned counsel for the respondent submits, that in fact under no set of circumstances the date of birth, which is fact which is always invariable for any individual could not be permitted to be corrected by filing an application before the institution for correcting the date of birth, recorded in the school records or for that matter even before the CBSE Board, because that would not be permissible even within the ambit of bye laws as enforced by the CBSE.

5. The learned counsel for the respondent had placed reliance on recent judgement, which had been rendered by the Hon’ble Apex Court on 3rd June 2021, in bunch of Civil Appeals with leading Civil Appeal No. 3905 of 2011,

Jigya Yadav (Minor) (through guardian/father Hari Singh) Vs. C.B.S.E (Central Board of Secondary Education & Others, particularly, the learned counsel for the respondent had drawn the attention of this Court to the contents of para 146 of the said judgement, wherein it has been observed that the change in correction of name or date of birth certificate, there has had to be stringent conditions, which are applicable and are required to be followed for changing the aforesaid two aspects. But considering the ratio laid down in para 146 of the said judgment which relates to the correction of date of birth, it had been laid down, that in fact the correction of date of birth as enforced by the Board, the word “change”, cannot be utilised and extended in its applicability for the purposes of correcting the date of birth, contrary to what has been already recorded in the school records and hence it was observed that the said correction could only be pardoned by the decision to be taken by the board or on the basis of the school record and it cannot be changed or replaced with fresh date on the basis of choice of person, who applies for the correction. Para 146 of the said judgement is extracted hereunder:-

“146. Similar provision is available for “correction” in date of birth, either on the basis of school records or on the basis of order of court. The word “change” is not used for date of birth as, unlike name, there can only be one date of birth and there can only be correction to make it consistent with school record or order of Court. It cannot be changed to replace the former with fresh date of one’s choice. Be it noted, provisions relating to correction in date of birth and

name are just and reasonable and do not impose any unreasonable restriction on permissibility of corrections. The restriction regarding limitation period shall be examined later, along with other provisions.”

6. The learned counsel for the respondent further has drawn the attention of this Court to the observations which had been made by the Hon’ble Apex Court in para 156, wherein it has been provided that though the bye laws might be silent with regards to the aspect permitting to the correction in date of birth, but silence of the bye laws on that aspect will not oust the jurisdiction of the competent Civil Courts to venture into that aspect and to arrive to judicial conclusion based on appreciation of evidence, as to what would be the actual date of birth, which could be determined only after appreciation of evidence and it's only after the decision of the regular Civil Court, when the judgement is rendered it will fall to be declaration within public domain based on which, the correction application could be placed before the Board to be considered. Para 156 of the said judgement is extracted hereunder:-

“156. When student applies to Court of law for prior permission and/or declaration and produces public document(s), the Court would enter upon an inquiry wherein the legal presumption would operate in favour of the public document(s) and burden would shift on the party opposing the change to rebut the presumption or oppose the claim on any other ground. The question of genuineness of the document including its contents would be adjudicated in the same inquiry and the Court of law would permit the desired change only upon verifying the official records and upon being satisfied of its genuineness. At the same time, the question of justiciability of the requested changes would be considered and only upon being satisfied with the need demonstrated by the student, the Court would grant its permission. The said permission can then be placed before the Board along with copy of publication in the official gazette and requisite (prescribed) fee (if any). The Board would then have no locusto make further enquiry nor would be required to enter upon any further verification exercise.”

7. Since the aforesaid judgement is directly applicable in the facts and circumstances of the present case, where, hereto the petitioner has sought correction in the date of birth which had been recorded in the school records, as well as recorded with the Board and since the judgement referred to above, related to the correction sought with regards to the records of the Board, the petitioner’s case would fall for consideration under parameters laid down in para 156 of the said judgment, and if the correction if at all could only be brought in, it could be brought in by way of Suit for declaration to be rendered by the regular Civil Court.

8. In that eventuality, this writ petition is being dismissed; with liberty left open for the petitioner to file regular Civil Suit for grant of decree of declaration of correcting date of birth, as envisaged by para 156 of the aforesaid judgement of the Hon’ble Apex Court, and then proceed accordingly, after the adjudication is made by the Court.

Mahinder/

(Sharad Kumar Sharma, J.) 06.04.2022