Km. Para vs Director, Central Board Of ...
2004 Latest Caselaw 452 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The writ petition raises the issue of the right of the petitioner to get her date of birth altered after initiating proceedings under the Registration of Births and Deaths Act, 1969 (hereinafter referred to as 'the said Act').

2. The date of birth of the petitioner with the respondent, Central Board of Secondary Education is 20.9.1988 while as per the school admission form it is 19.9.1988. The petitioner claims that her actual date of birth is 4.7.1987 and thus applied for the issuance of a certificate by the Municipal Corporation of Delhi under Sections 12 and 17 of the said Act. The petitioner claims that due to the aforesaid mistake, the petitioner was unable to apply for the medical entrance examination because the requisite age qualification for admission to the medical colleges is 17 years. The petitioner requested for the correction of her date of birth vide letter dated 4.9.2003 to her school and letter dated 15.10.2003 to the Regional Officer of the respondent. However, the request of the petitioner was rejected vide letter dated 12.11.2003 by the respondent in the aforesaid terms:

"With reference to your letter dated 10-11-2003 on the subject cited above, I am directed to inform you that no change in the Date of Birth once recorded in the Board's records shall be made. However, correction to correct typographical and other errors to make the certificate consistent with the school records can be made provided that corrections in the School Records should not have been made after the submission of application form for admission to examination to the Board.

Hence, this case has been rejected as per examination bye laws."

3. The certificate which has been issued to the petitioner in Form No.5 under Section 17 of the Act shows the date of registration as 25.8.2003. The father of the petitioner has filed an affidavit dated 27.11.2003 affirming that no certificate is available or issued in respect of the petitioner about her date of birth at the time when the birth took place.

4. The petitioner by the present writ petition has sought quashing of the letter issued by the respondent and for recording of her date of birth in the certificate of the respondent as 4.7.1987.

5. In the counter affidavit filed by the respondent, it is stated that the case of the petitioner is not one of correction of her date of birth and the date of birth is sought to be corrected much later in 2003 by applying under the Act only with the object of stating a younger age in order to enable the petitioner to take the examination of the pre-medical examination. It may be noticed that in terms of the interim order dated 19.11.2003, the respondent was directed to accept the form of the petitioner without prejudice to their rights and contentions in the petition.

6. The stand of the respondent is that the enquiry to be conducted by the Magistrate under the Act should be a proper enquiry and an order should not be passed mechanically merely on the basis of an affidavit filed by a party. It is stated that no such proper verification was apparently done in the case of the petitioner and no notice was ever issued to the respondent. Reliance has been placed on the rules of the respondent for correction of the date of birth.

7. In order to appreciate as to how the enquiry was made, the records from the Magistrate concerned were called for pursuant whereto the certificate had been issued to the petitioner. The records show that the application was filed for late registration of birth on 1.5.2003 and an enquiry was directed from the neighbour of the petitioner. The verification took place from Dr. S.P. Bansal and Ms. Alka Gupta. The application of the petitioner was supported by a Ration Card issued in 1996 where the year of birth of the petitioner has been recorded as 1987.

8. The question which thus arises for consideration is whether a proper enquiry was conducted before issuing the certificate of the petitioner and the validity of such a certificate issued under the Act for purposes of correction of date of birth by the respondent.

9. Learned counsel for the petitioner has referred to the judgment of the learned Single Judge of this court in Civil Writ Petition 5624/2002 Km. Meenu v. Director of CBSE & Anr. decided on 3.1.2003. The said judgment discusses the same regulations of the respondent as are sought to be relied upon in the present case which is as under:

"69.2 Change/Correction in Date of Birth

(i) No change in the date of birth once recorded in the Board's records shall be made. However, Correction to correct typographical and other errors to make the certificate consistent with the school records can be made provided that correction in the school records should not have been made after the submission of application form for admission to Examination to the Board.

(ii) Such correction in Date of Birth of a candidate in case of genuine clerical errors will be made under orders of the Chairman where it is established to the satisfaction of the Chairman that the wrong entry was made erroneously in the list of candidate/application form of the candidate for the examination.

(iii) Request for correction in Date of Birth shall be forwarded by the Head of the Institution along with attested photocopies of:-

(a) Application for admission of the candidate to the School;

(b) Portion of the page of admission and withdrawal register where entry in

date of birth has been made;

(c) The school leaving certificate of the previous school submitted at the time of admission.

(iv) The application for correction in date of birth duly forwarded by the Head of School along with documents mentioned in bye-law 69.2 (iii) shall be entertained by the Board only within two years of the date of declaration of the result of Class X examination. No correction whatsoever shall be made on application submitted after the said period of two years. This will be effective from the examination to be held in March, 1995."

10. The scope of the provisions of Section 12, 13(3) and 17(2) of the Act was also examined. The said Sections are as under:

"12. Extracts of registration entries to be given to informant.-- The Registrar shall, as soon as the registration of a birth or death has been completed give, free of charge, to the person who gives information under S.8 or section 9 as extract of the prescribed particulars under his hand from the register relating to such birth or death.

13. Delayed registration of births and deaths.--

xxx xxx xxx

(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.

17. Search of births and deaths register.--

xxx xxx xxx

(2) All extracts given under this section shall be certified by the Registrar or any other officer authorised by the State Government to give such extracts as provided in section 76 of the Indian Evidence Act, 1872, and shall be admissible in evidence for the purpose of proving the birth or death to which the entry relates."

11. The object of the introduction of the Act was to give legal status to the official machinery for registration of the births and deaths and in terms of Section 8 of the Act, a duty is cast on the persons to give information to the Registrar of such birth or death. Section 13 deals with delayed registration of births and deaths. In terms of Section 13(3), in case of non-registration within one year of the occurrence of the birth or death, the registration would take place only on an order made by the magistrate after verifying the correctness of the birth or death.

12. It is under the aforesaid provision of Section 13(3) that the petitioner has claimed registration and on the basis of the certificate issued, it has been contended that under Section 17(2) of the said Act, the same will be admissible in evidence for purposes of proving of birth or death.

13. In Km. Meenu's case (supra), it was held that in case of conflict between dates given in documents, the documents which are issued under the Act have to be given effect to. The present case is also one of similar nature where the age is sought to be increased.

14. The judgment of the Orissa High Court in Sk. Rahimuddin v. Ojifa Bibi & Ors., was also considered and in fact that is the judgment relied upon by the learned counsel for the respondent. It was held in the said case that an onerous duty was cast on the magistrate under Section 13(3) of the Act to verify the correctness of the birth or death and thereafter pass an order. Since such an entry confers a valuable right and when the entry was not contemporaneously made for some reason or the other, the order of the magistrate becomes mandatory. Thus, an enquiry was bound to be conducted by the magistrate in that behalf. It may however be noticed that the said case dealt with the issue of a landlord-tenant and the minority of the petitioner.

15. In my considered view, there can be no doubt about the proposition that a proper enquiry is liable to be conducted by the magistrate and the same has not to proceed in a mechanical manner. Thus, what is important is the manner of conducting of the enquiry in the present case. This is specially so since there is compliance of the Rule 69.2 of the respondent quoted above inasmuch as the representation of the petitioner is within two years of the declaration of her result of class X examination.

16. In so far as the scope of enquiry is concerned, learned counsel for the respondent also relied upon the judgment of the Gujarat High Court in Karimabibi v. Ankleshwar Municipality, . The said case was, however, one where the magistrate disposed of the application on the same date without any notice to the affected parties and the certificate issued was used to establish the claim to be the daughter of a person for claiming rights of succession. It was in that context that it was observed that it was incumbent upon the applicant to state the reasons/grounds as to why the earlier entry of death/birth registered could not be made and why he could not give the information regarding the same to the competent authority. The purpose for which he wants the entry should also be stated and the persons who are likely to be affected so that notice could be issued to the affected parties.

17. In the present case, there are no such issues involved as aforesaid and the limited purpose for which the certificate was applied for was to correct the date of birth in the records of the Central Board of Secondary Education.

18. In my considered view, no doubt that a more detailed enquiry should be conducted by the Magistrate than the one which is adopted including in the present case when the order was passed on 14.8.2003. Only statements of certain neighbours were recorded. In such a situation, a fresh enquiry could have been directed. However, what weighs in the present case in favor of the petitioner is that there is a document being the Ration Card which is of 1996. This document is not contemporaneous to the birth of the petitioner but is well before the application was made by the petitioner for correction of date of birth. If the date of birth had been correctly recorded in case of the petitioner in 2001-2002, there was no reason why the Ration Card of 1996 should be stating the year of the birth of the petitioner as 1987 instead of 1988. This, to my mind, is an important document.

19. It has also to be appreciated that the correction of the date of birth is not to be utilised for any purpose other than to record the date of birth correctly with the respondent. There were no affected parties in the sense that notice was required to be issued to them. No doubt, the petitioner herself had filled the date of birth for the class X certificate as different from what was the date of birth specified in the certificate obtained under the Act.

20. In the given facts and circumstances, I am of the considered view that there was sufficient material for the issuance of the birth certificate under Section 17 of the Act after the request was made under Section 13(3) of the Act specially when the object of Section 13(3) is to register belatedly a birth after proper enquiry.

21. A writ of mandamus is thus issued to the respondent to correct the date of birth of the petitioner in the CBSE's certificate as 4.7.1987 instead of 20.9.1988.

22. The rule is made absolute leaving the parties to bear their own costs.