Vijaya Sharma & Mamta Sharma vs C.B.S.E. & Another
2009 Latest Caselaw 1464 Del

#26 & 27
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    W.P.(C) 3819/2008

                                  Date of decision: 18th April, 2009

      VIJAYA SHARMA                             ..... Petitioner
                        Through Mr. Rakesh Tiku, Advocate.
                  versus
      C.B.S.E. & ANR                            ..... Respondents
                        Through Ms. Manish Singh, Advocate with
                        Mr. Amit Bansal, Advocate for CBSE.
+     W.P.(C) 3820/2008
      MAMTA SHARMA                               ..... Petitioner
                        Through Mr. Rakesh Tiku, Advocate.
                  versus
      C.B.S.E. & ANR                            ..... Respondents
                        Through Ms. Manish Singh, Advocate with
                        Mr. Amit Bansal, Advocate for CBSE.
      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

      1. Whether Reporters of local papers may be
      allowed to see the judgment?
      2. To be referred to the Reporter or not ?
      3. Whether the judgment should be reported
      in the Digest ?
                         ORDER

%

1. This is second round of litigation by the two petitioners seeking

amendment and change in the date of births as recorded in the Class X

certificate issued by the Central Board of Secondary Education. As per

Class X certificates issued by Central Board of Secondary Education, date

of birth of Vijaya Sharma as recorded is 26.1.1967 and date of birth of

Mamta Sharma as recorded is 5.6.1970. The claim of the petitioners is

that these dates should be rectified and amended in the case of Vijaya

W.P. (C) Nos. 3819/2008 & 3820/2008 Page 1 Sharma as 26.1.1969 and in the case of Mamta Sharma as 5.6.1972.

2. Vijaya Sharma and Mamta Sharma had appeared in Class X

examination in the year 1982 and 1985 respectively. The date of births

mentioned in the said certificates issued by Central Board of Secondary

Education were as per the details given by the petitioners and as per the

record maintained by the school in which the two petitioners had studied.

3. It appears that in the year 2000, the two petitioners moved

applications before the Sub Divisional Magistrate for change of date of

births. The Sub Divisional Magistrate on the basis of affidavit filed by the

father of two petitioners passed an order recording the date of births of

Vijaya Sharma as 26.1.1969 and Mamta Sharma as 5.6.1972.

4. After the order passed by the Sub Divisional Magistrate, the two

petitioners approach Central Board of Secondary Education for recording

the change of date of births and issuance of fresh Class X certificates. The

request was rejected.

5. Thereupon, these two petitioners filed two writ petitions in this

court, which were allowed vide order dated 6.12.2004. The Central Board

of Secondary Education, however, preferred appeals in the case of both

petitioners. The appeals are allowed vide order dated 18.10.2005 in LPA

Nos. 439 and 428 of 2005. The Division Bench noticed the facts of the

case including the order passed by the Sub Divisional Magistrate. Relying

upon Judgment of Karnataka High Court in H. Subba Rao Vs. The Life

W.P. (C) Nos. 3819/2008 & 3820/2008 Page 2 Insurance Corporation of India and Another, reported in AIR 1979

Karnataka 231 and the Madras High Court in G. V. Vijarangan Vs. The

State Bank of India, reptd by the Chief General Manager, Ist Line Beach

Madras I and Another, 1987 Vol. I MLJ 82, the Division Bench set aside the

order of the Single Judge observing that the order of

Sub Divisional Magistrate is not conclusive piece of evidence on the basis

of which Central Board of Secondary Education can be compelled to

change the date of births. Learned Judges specifically recorded that they

agree with the decision of the Karnataka and Madras High Courts. Central

Board of Secondary Education was given a direction to pass a fresh order

preferably within two months in accordance with law by treating the Sub

Divisional Magistrate order as evidence though not conclusive. A review

application was filed by the petitioners was also dismissed by the Division

Bench vide order dated 9.5.2007.

6. Central Board of Secondary Education thereafter passed another

order dated 6/10.1.2006 and has rejected the request for change of date

of births in the case of the petitioners.

7. Learned counsel for the petitioner submitted that in addition to the

orders passed by the Sub Divisional Magistrate, the petitioners have filed

copy of the ration card and affidavit of the father in support of their claim

for change of date of births. It is accordingly submitted that there is

overwhelming evidence to show that the date of births as recorded in the

W.P. (C) Nos. 3819/2008 & 3820/2008 Page 3 Class X certificates issued by the Central Board of Secondary Education is

not correct. Learned counsel also relies upon the decision of a Single

Judge of this Court in W.P.(C) No. 6600/2006 titled Zunnoor Faisal Vs.

CBSE and Another.

8. The ration card relied upon by the petitioners before CBSE was

prepared/issued on 10.7.2000. The petitioners did not file the copy of the

earlier ration card or any other document or material in support of their

claim for change of date of births. It cannot be said that the Central Board

of Secondary Education has adopted a wrong approach or wrongly did not

place reliance on the said ration card. The orders passed by the Sub

Divisional Magistrate as held by the Division Bench is only a piece of

evidence though not conclusive. Other than this evidence, there is no

other evidence, which was produced by the petitioners to substantiate

their claim for change of date of births. It may be relevant to notice the

time gap between the class X examination in which the petitioners had

appeared in the years 1982 and 1985 and the date on which the

application was filed before the SDM, i.e., 2000. It is also not denied that

the petitioners or their parents did object to the date of births as

mentioned in the Class X certificate from 1982 and 1985 onwards till 2000.

The petitioners have not filed the document relating to the date of births

as per the records in the school, where the petitioners had studied. It

appears that school wants to wash away their hands by stating that the

W.P. (C) Nos. 3819/2008 & 3820/2008 Page 4 records pertaining to the said years have been destroyed in floods. The

factual position in the case of Zunnnoor Faisal (supra) is entirely different.

In the said case, the date of Birth as recorded in the certificate was

2.9.1990. The petitioner claimed that the correct date of birth was

1.3.1990. The petitioner had appeared in Class X examination in the year

2005 and had immediately thereafter filed the writ petition in the year

2006. The Court observed that the petitioner in the said case could not

have profited or benefited by declaring the date of birth as 1.3.1990

instead of 2.9.1990. The change of Date of Birth was of no consequence

or benefit to the petitioner therein and therefore bona fide request had

been made. In the present case, the petitioner Vijaya Sharma is working

as a Lecturer. The difference in the two date of births is substantial.

Further, in Zunnoor Faisal (supra), the birth as registered in the Sub

Registrar office and birth certificate was 1.3.1990 and this was an

undisputed fact. The error was apparent and therefore corrected.

In view of the above, I do not find any merit in the present writ

petitions and the same are dismissed.

SANJIV KHANNA, J.

      APRIL 18, 2009
      'b'




W.P. (C) Nos. 3819/2008 & 3820/2008                                     Page 5