Devi Dayal Srivastava & Another vs Union Of India Thru. Secy. Min. Of ...
2021 Latest Caselaw 8184 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 17
 

 
Case :- MISC. SINGLE No. - 4960 of 2021
 

 
Petitioner :- Devi Dayal Srivastava & Another
 
Respondent :- Union Of India Thru. Secy. Min. Of Human Resource & Ors.
 
Counsel for Petitioner :- Satya Prakash,Abhishek Vishwakarma
 
Counsel for Respondent :- A.S.G.,Devendra Mohan Shukla,Sandeep Srivastava,Shashank Bhasin,Shikhar Srivastava
 

 
Hon'ble Rajnish Kumar,J.

1. Heard, Shri Satya Prakash, learned counsel for the petitioner, Shri Devendra Mohan Shukla, learned, learned counsel for the respondent nos.2 and 3 and Shri Sikhar Srivastava, learned counsel for the respondents no.5 and 6. None is present for the other respondent no.1 even in the revised list. Considering the nature of order proposed to be passed in this writ petition, notice to respondent no.4 is dispensed with.

2. This petition has been filed challenging the order dated 07.01.2021 passed by the respondent no.3 by means of which it was informed to the Principle of the college of the petitioner namely Bhartiya Vidya Bhavan Vidyalaya, Lucknow that change in name or surname will be considered provided the changes have been admitted by Court of law and notified in Government Gazette before publication of result.

3. Submission of learned counsel for the petitioner is that the biological parents of the petitioner had died in the year 2003. The mother of the petitioner had died on 24.09.2003 and father on 28.09.2003. Therefore, the petitioner no.2; Ms. Isha Srivastava lived with the respondent no.5 and 6 and they had got admitted the petitioner in nursery in which the name of biological parents of the petitioner was recorded as late Smt. Seema Srivastava and late Shri Sudesh Kumar. Srivastava. The petitioner no.1 and the respondents no.5 and 6 had not informed to the petitioner no.2 about her biological parents therefore she had filled the name of the respondents no.5 and 6 in the examination form of the High School and also in the examination form of class-12 as her parents. Therefore, the certificate of High School and Intermediate was issued showing the name of the respondents no.5 and 6 as parents of the petitioner no.2. On coming to know about the mistake, the petitioner moved an application for correction in the certificate and the respondent no.4 had also recommended to the respondent no.2 for correction by means of the letter dated 11.02.2020 but the same has illegally not been considered.

4. He submitted that recently the Hon'ble Supreme Court, by means of judgment and order dated 03.06.2021 in Civil Appeal No.3905 of 2011; Jigya Yadav (minor) (through Gaurdian / Father Hari Singh) Vs. C.B.S.E. (Central Board of Secondary Education) and Others (2021 SCC OnLine SC 415), has issued certain directions to consider the correction applications in the light of the direction issued in the said judgment. The relevant paragraph nos.170, 171 and 172 are extracted below:-

170. The first is where the incumbent wants "correction" in the certificate issued by the CBSE to be made consistent with the particulars mentioned in the school records. As we have held there is no reason for the CBSE to turn down such request or attach any precondition except reasonable period of limitation and keeping in mind the period for which the CBSE has to maintain its record under the extant regulations. While doing so, it can certainly insist for compliance of other conditions by the incumbent, such as, to file sworn affidavit making necessary declaration and to indemnify the CBSE from any claim against it by third party because of such correction. The CBSE would be justified in insisting for surrender/return of the original certificate (or duplicate original certificate, as the case may be) issued by it for replacing it with the fresh certificate to be issued after carrying out necessary corrections with caption/annotation against the changes carried out and the date of such correction. It may retain the original entries as it is except in respect of correction of name effected in exercise of right to be forgotten. The fresh certificate may also contain disclaimer that the CBSE cannot be held responsible for the genuineness of the school records produced by the incumbent in support of the request to record correction in the original CBSE certificate. The CBSE can also insist for reasonable prescribed fees to be paid by the incumbent in lieu of administrative expenses for issuing fresh certificate. At the same time, the CBSE cannot impose precondition of applying for correction consistent with the school records only before publication of results. Such a condition, as we have held, would be unreasonable and excessive. We repeat that if the application for recording correction is based on the school records as it obtained at the time of publication of results and issue of certificate by the CBSE, it will be open to CBSE to provide for reasonable limitation period within which the application for recording correction in certificate issued by it may be entertained by it. However, if the request for recording change is based on changed school records post the publication of results and issue of certificate by the CBSE, the candidate would be entitled to apply for recording such a change within the reasonable limitation period prescribed by the CBSE. In this situation, the candidate cannot claim that she had no knowledge about the change recorded in the school records because such a change would occur obviously at her instance. If she makes such application for correction of the school records, she is expected to apply to the CBSE immediately after the school records are modified and which ought to be done within a reasonable time. Indeed, it would be open to the CBSE to reject the application in the event the period for preservation of official records under the extant regulations had expired and no record of the candidate concerned is traceable or can be reconstructed. In the case of subsequent amendment of school records, that may occur due to different reasons including because of choice exercised by the candidate regarding change of name. To put it differently, request for recording of correction in the certificate issued by the CBSE to bring it in line with the school records of the incumbent need not be limited to application made prior to publication of examination results of the CBSE.

171. As regards request for "change" of particulars in the certificate issued by the CBSE, it presupposes that the particulars intended to be recorded in the CBSE certificate are not consistent with the school records. Such a request could be made in two different situations. The first is on the basis of public documents like Birth Certificate, Aadhaar Card/Election Card, etc. and to incorporate change in the CBSE certificate consistent therewith. The second possibility is when the request for change is due to the acquired name by choice at a later point of time. That change need not be backed by public documents pertaining to the candidate.

(a) Reverting to the first category, as noted earlier, there is a legal presumption in relation to the public documents as envisaged in the 1872 Act. Such public documents, therefore, cannot be ignored by the CBSE. Taking note of those documents, the CBSE may entertain the request for recording change in the certificate issued by it. This, however, need not be unconditional, but subject to certain reasonable conditions to be fulfilled by the applicant as may be prescribed by the CBSE, such as, of furnishing sworn affidavit containing declaration and to indemnify the CBSE and upon payment of prescribed fees in lieu of administrative expenses. The CBSE may also insist for issuing Public Notice and publication in the Official Gazette before recording the change in the fresh certificate to be issued by it upon surrender/return of the original certificate (or duplicate original certificate, as the case may be) by the applicant. The fresh certificate may contain disclaimer and caption/annotation against the original entry (except in respect of change of name effected in exercise of right to be forgotten) indicating the date on which change has been recorded and the basis thereof. In other words, the fresh certificate may retain original particulars while recording the change along with caption/annotation referred to above (except in respect of change of name effected in exercise of right to be forgotten).

(b) However, in the latter situation where the change is to be effected on the basis of new acquired name without any supporting school record or public document, that request may be entertained upon insisting for prior permission/declaration by a Court of law in that regard and publication in the Official Gazette including surrender/return of original certificate (or duplicate original certificate, as the case may be) issued by CBSE and upon payment of prescribed fees. The fresh certificate as in other situations referred to above, retain the original entry (except in respect of change of name effected in exercise of right to be forgotten) and to insert caption/annotation indicating the date on which it has been recorded and other details including disclaimer of CBSE. This is so because the CBSE is not required to adjudicate nor has the mechanism to verify the correctness of the claim of the applicant.

172. In light of the above, in exercise of our plenary jurisdiction, we direct the CBSE to process the applications for correction or change, as the case may be, in the certificate issued by it in the respective cases under consideration. Even other pending applications and future applications for such request be processed on the same lines and in particular the conclusion and directions recorded hitherto in paragraphs 170 and 171, as may be applicable, until amendment of relevant Byelaws. Additionally, the CBSE shall take immediate steps to amend its relevant Byelaws so as to incorporate the stated mechanism for recording correction or change, as the case may be, in the certificates already issued or to be issued by it."

On the basis of above, learned counsel for the petitioner submitted that the case of the petitioner may be considered in the light of the direction issued by the Hon'ble Supreme Court.

5. Learned counsel for the respondents no.2 and 3, opposed the prayer and submitted that in admission form of class-9, the name of the respondents no.5 and 6 were mentioned. However he submitted that the competent authority of the respondents no.2 and 3 shall consider the application of the petitioner in the light of the direction issued by the Hon'ble Supreme Court in accordance with law within the time fixed by the Court. Learned counsel for the petitioner also submitted that the petitioner shall complete the required formalities in terms of the direction issued by the Hon'ble Supreme Court.

6. In view of above, with the consent of the learned counsel for the parties, the writ petition is disposed of with direction to the respondents no.2 and 3 to consider the case of the petitioner for correction of name of the father and mother of the petitioner no.2 in accordance with law in the light of the direction issued by the Hon'ble Supreme Court by the judgment and order dated 03.06.2021 (Supra) expeditiously, say within a period of four weeks from the date of production of certified copy of this order subject to cooperation by the petitioners.

.............................................................(Rajnish Kumar,J.)

Order Date :- 19.7.2021

Haseen U.