Heard Mr. Kharadi, learned advocate, for Mr. Malik, learned advocate for the petitioner, Mr. Rohan Yagnik, learned AGP for the respondent No.1 – State and Mr. Hemang Raval, learned advocate, for Mr. Oza, learned advocate for the respondent No.2. Though served, no one has appeared for the respondent No.3.
1.1 Having regard to the facts of the case and submissions made by learned counsel for the petitioner, the petition requires consideration hence, RULE, returnable forthwith.
1.2 At the request of learned advocate for the petitioner and with consent of learned advocates for the respondents, the petition is taken up for hearing and final decision today.
2. The facts involved in and leading to submission of present petition are that, the petitioner claims that her birth date is “2821986”, however, it is recorded as “2921986” in school record and in her School Leaving Certificate, which is incorrect and therefore, necessary correction should be made. The petitioner has also claimed that, at the relevant time, her birth date could not be registered with the concerned Gram Panchayat. It appears that when the petitioner was admitted to the school, some inadvertent mistake in recording her birth date in the school register occurred and instead of recording “2821986” as the date of her birth, “292 1986” was recorded as her birth date. It also emerges from the record that for long time the petitioner did not take any action for getting the error corrected. She completed her secondary examination from the respondent No.3 – school in the year 2004 and higher secondary examination in 2006. She also completed her further studies in faculty of Arts and thereafter she has completed the course of B.Ed. The petitioner has claimed that as of now, she is prosecuting her studies for Master's Decree in Arts Stream. The petitioner has further claimed that all along, i.e. since her admission in primary school until now, the record reflects her birth date as “2921986”. She has also claimed that such error was not noticed by her until now. It is claimed that the error is apparent inasmuch as 1986 is not a leap year and therefore, the month of February in 1986 will not consist 29 days and yet the record reflects her birth date as “2921986”.
2.1 In this background, the petitioner has claimed that recently when in response to an advertisement published for recruitment of teachers she tried to submit her application online, her application was not accepted on the ground that there was mismatch in date of birth and the calender and the details mentioned by her were incorrect. In view of rejection of her application on such ground, she verified the record and realized that all along, the date of her birth has been incorrectly recorded in the registers.
2.2 The petitioner has claimed that in this view of the matter, she approached the learned Judicial Magistrate First Class, Lunawada [hereinafter referred to as “JMFC”] by invoking the provisions of Birth & Death Act and requested that appropriate directions may be issued for correction of date of birth in the relevant records so as to reflect “2821986” as her birth date. She has also claimed that she had simultaneously made an application before the learned JMFC for modification of the date of birth in the School Leaving Certificate as well. The said application came to be rejected by the learned JMFC, Lunawada vide order dated 14.2.2012 on the ground that the Court of JMFC has no jurisdiction to direct such modification in the school records. Aggrieved by the rejection of application by learned JMFC, the petitioner has preferred present petition.
3. Mr. Kharadi, learned advocate, has appeared for the petitioner and submitted that there is apparent error in recording petitioner's birth date inasmuch as in the year 1986, there were only 28 days in month of February since the said year is not a leap year, however, in the record, the birth date is recorded as “2921986” and therefore, the record is required to be corrected. He also submitted that as per the decisions by this Court, it is held that the court of learned JMFC has jurisdiction to issue necessary and appropriate directions, however, the learned JMFC, Lunawada has erred in rejecting petitioner's application.
4. Mr. Raval, learned advocate, appearing for Mr. Oza, learned advocate for the respondent No.2, has also conceded to the fact that there is some genuine and bonafide and inadvertent mistake committed while recording the petitioner's date of birth, which is required to be corrected. However, once the School Leaving Certificate is issued, the school authorities do not have any power to make any correction in the record. He also submitted that so far as the secondary examination board and/or higher secondary examination board are concerned, the records are prepared on the basis of the information and details supplied by the school authorities and therefore, unless the school record is corrected, any correction cannot be made by the secondary examination board and/or the higher secondary examination board. He however, did not dispute the documents placed on record of present petition, including the birth certificate which reflects petitioner's birth date as “2821986”.
5. It is necessary to note at this stage that according to the learned advocate for the petitioner the date mentioned in the birth certificate is incorporated pursuant to the order passed by the court of learned Judicial Magistrate First Class.
6. Mr. Yagnik, learned AGP, has also not disputed the documents placed on record of present petition, including the birth certificate.
7. In this background, the impugned decision dated 14.2.2012 passed by the court of learned JMFC, Lunawada is required to be examined.
At this stage, it is necessary to note that the respondents have not disputed the claim of the petitioner so far as her birth date is concerned. The respondents have also not disputed the petitioner's submission that an error or inadvertent mistake has crept in while recording the petitioner's birth date at the time of her admission in the school.
7.1 So far as the impugned decision of the court of learned JMFC is concerned, it is necessary to take into account the decision dated 11.8.2003 in L.P.A.No.699 of 2003 by the Division Bench of this Court. In the said decision dated 11.8.2003, the Division Bench of this Court has observed that: “4. We have considered the submissions advanced at the Bar and the documents forming part of the petition. We have also heard Mr.M.R.Mengde, learned Assistant Government Pleader appearing for the respondents. From the record of the case, it is evident that the son of appellant has left Secondary School after passing examination of Standard 10. Therefore, in view of Regulation 12A Gujarat Secondary Education Regulations, 1974, school record could not have been corrected after the son of appellant had left the school. The only remedy of the appellant was to approach learned Magistrate, First Class, having jurisdiction in the matter for redressal of his grievance as provided under Section 13(3) of the Act. Therefore, the learned Single Judge was justified in concluding that the appellant has alternative remedy and that it was not necessary to entertain the petition filed under Article 226 of the Constitution. In our view, the learned counsel of the appellant has failed to point out any error in the orders which are impugned in the appeal and, therefore, the appeal is liable to be dismissed.”
(emphasis supplied)
7.2 Subsequently, the issue again considered by another Division Bench of this Court in June2009 while considering writ petitions being Special Civil Application Nos.4423 of 2001 and connected matters. The issue raised in the said group of petitions was referred to the Division by a reference dated 17.9.2001 made by the learned Single Judge. The learned Single Judge referred below mentioned issue to the Division Bench for consideration.
“The question raised is `whether the School Registers maintained on the basis of applications made, shall be varied at the instance of the student after the student leaves the school'.”
7.3 After considering the relevant rules and regulations and applicable provisions, the Division Bench in the order dated 24.6.2009 passed in Special Civil Application Nos. 4423 of 2001 and connected matters observed thus: “Regulations governing the secondary schools, i.e. Gujarat Secondary Education Regulations, 1974, do not permit such variation after a student leaves the school. ......
This issue has already been dealt with by a Division Bench of this Court in Letters Patent Appeal no.699 of 2003, vide order dated 11.08.2003. The Division Bench has taken the view that once a student leaves the school, correction in school records of a student can be carried out only by a Magistrate, First Class, having jurisdiction. In these Special Civil Applications, corrections are sought for change of caste as well as change of names. In view of the aforesaid decision of the Division Bench dated 11.08.2003, such corrections can be carried out only by a Magistrate, First Class, having jurisdiction on the subject matter, and not by the school authorities.
We fully agree with the view expressed by the Division Bench in Letters Patent Appeal No.699 of 2003, and dispose of all these matters accordingly. All the same, the petitioners, who are desirous of carrying out necessary corrections, shall approach respective Magistrates, First Class, having jurisdiction.”
(emphasis supplied)
7.4 Thus, according to the decision of Division Bench in the order dated 11.8.2003 in Letters Patent Appeal No.699 of 2003 and the order dated 24.6.2009 in Special Civil Application No.4423 of 2001 (and connected petitions), where the issue was related to correction is records maintained by the school and/or certificate (School Leaving Certificate) issued by the school on the basis of details recorded in its record, the court of learned Judicial Magistrate has the jurisdiction to redress the grievance by issuing appropriate direction and that once a student leaves the school, correction in the school record can be directed only by a Magistrate, First Class, having jurisdiction.
7.5 The issue once again came up for consideration before the Division Bench in LPA No.239 of 2011 which is decided on 24.11.2011. In the said case, the writ petitioner approached the Court by writ petition being Special Civil Application No.3406 of 2009 seeking below mentioned reliefs: “8(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to quash and set aside the impugned order dated 14/10/2007 (AnnexureE) issued by the District Education Officer, Panchmahal and be pleased to direct the respondents to change the birth date of the petitioner mentioned in the school leaving certificate by amending the same by way of changing the birth date as 25/12/1982 in place of 6/5/1978.
(BB) Your Lordships may be pleased to declare that the impugned regulation i.e. Regular 12A(5) as incorporated in AnnexureI is invalid, beyond the scope and authority conferred by Section 53 of Gujarat Secondary Education Act, unconstitutional void and inoperative.
(C) Pending hearing and final disposal of this petition, by way of interim relief, Your Lordships may be pleased to direct the respondents to make the change in the school leaving certificate of the petitioner as prayed in above mentioned para.
(D) Any other relief deemed just and proper may please be granted in the interest of justice.”
7.6 It is observed in the said order dated 24.11.2011 that relying on the observations made in order dated 11.8.2009 passed in Letters Patent Appeal No.699 of 2003, the learned Single Judge while considering the said Special Civil Application No.3406 of 2009 observed that it was open to the petitioner to approach the competent Magistrate seeking necessary declaration and if and when such application is filed, learned Magistrate should decide it in accordance with law on the basis of the material which the petitioner had produced and also being mindful of the observations made in the judgment and order dated 30.1.2009.
7.7 While deciding the Letters Patent Appeal No.239 of 2011, the Division Bench considered the decision in case of Misrikhan Dilavarkhan Pathan vs. State of Gujarat [2008 (2) GLR 1292] wherein the learned Single Judge 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 Division Bench took into consideration the decision dated 11.8.2003 passed in L.P.A.No.699 of 2003. While making reference of the said decision dated 11.8.2003 passed in L.P.A.No.699 of 2003, the Division Bench noticed that in the said matter, the dispute had arise in light of date of birth recorded in the certificate of birth issued by Gram Panchayat. The Division Bench observed in para5 of the order dated 24.11.2011 that, “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.”
7.8 The Division Bench then considered another decision dated 24.6.2009 in Special Civil Application No.4423 of 2001 where also the Court has observed that entries made in the school registers maintained by school can be corrected by an order from JMFC. The decision in case of Regional Passport Officer v. Kokilaben, w/o. Jaswantlal Panchal & Ors. [2009 (2) CLR 1246] has also been considered by the Division Bench while deciding the L.P.A. No.239 of 2011. In the said decision in case of Regional Passport Officer (supra), the Court observed that correction or change in date of birth or name, etc. in passport cannot be directed to be effected by Passport authorities and that has to be by JMFC or by Civil Court or statutory authority.
7.9 After considering the abovementioned judgments, the Division Bench in the said decision dated 24.11.2011 in L.P.A.No.239 of 2011 observed, inter alia, that: “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.”
7.10 The Division Bench also considered the provisions contained under Regulation No.12(A)6 of the Gujarat Secondary Education Regulations, 1974 and observed that: “In case of a student leaving the school forever, no changes in the entries of the school register shall be made thereafter. Ofcourse, 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.”
7.11 After making reference of said regulation, the Division Bench observed that : “The abovereferred 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.”
7.12 The Division Bench then observed thus: “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.
(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 firstclass 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 petitionerappellant, 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.”
8. So far as the facts of present case are concerned, the petitioner seeks correction in the School Leaving Certificate and the record maintained by the respondent No.3 – school.
8.1 In this view of the matter, this Court also, like in L.P.A.No.239 of 2011, is left with two alternatives, first being to relegate the petitioner to alternative remedy for pursuing her case, and second instead of relegating the petitioner to alternative remedy, exercise jurisdiction under Article 226 of the Constitution of India and to issue directions to the authorities to make necessary corrections. This Court also, like in L.P.A.No.239 of 2011, is of the view that instead of relegating the petitioner to run from one forum or other and from one authority to another, it is appropriate to opt for the second alternative. In the decision in L.P.A.No.239 of 2011 dated 24.11.2011, the Division Bench has observed, inter alia, that: “11. ....... 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.”
9. This Court also would respectfully follow the same course of action, as duty bound, and opt for exercising jurisdiction under Article 226 of the Constitution of India instead of relegating the petitioner to alternative remedy.
9.1 In the aforesaid view of the matter and having regard to the submissions made by learned advocate for the petitioner as well as the decisions by the Division Bench in L.P.A.No. 699 of 2003 and L.P.A.No.239 of 2011 and Special Civil Application Nos.4423 of 2001 and connected matters and in light of the fact that the respondents have not raised any dispute with regard to the details mentioned in the birth certificate or its genuineness and also having regard to the fact that there appears to be apparent error in recording the petitioner's birth date since month of February in the year 1986 did not consist 29 days (1986 not being leap year), it appears appropriate to direct the School authorities to make necessary correction in the School Leaving Certificate and other relevant records so as to reflect petitioner's birth date as “2821986”, i.e. to bring it in consonance with the birth date recorded in the petitioner's birth certificate, and to issue fresh School Leaving Certificate with such corrected birth date.
10. Thus, for the aforesaid purpose, the impugned decision dated 14.2.2012 declining to issue appropriate directions is set aside, however, instead of relegating the petitioner to appropriate alternative remedy, following order is passed:
10.1 In view of the foregoing discussion, particularly in light of the birth certificate which records the date of petitioner's birth in respect of which any dispute is not raised by the respondents, the school authorities i.e. the respondent No.3 is directed to take into account the details mentioned in petitioner's birth certificate, particularly the petitioner's birth date mentioned in birth certificate and to make necessary changes / corrections in its record in light of and on the basis of the details mentioned in the birth certificate and also to make necessary changes accordingly in the School Leaving Certificate of the petitioner (so far as it relates to the petitioner's birth date) so as to change it from “2921986” to “2821986”.
With the aforesaid observations, clarifications and direction, present petition is allowed. Rule is made absolute to the extent aforesaid. In the facts of the case, there shall be no order as to costs. The petition stands disposed of accordingly.
(K.M.Thaker, J.) kdc