Delhi High Court

Ms. Jigya Yadav (Minor) (Through ... vs Central Board Of Secondary ... on 20 December, 2010

Author: Manmohan

                                                                             #10
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) No. 3774/2010 & CM 7565/2010

MS. JIGYA YADAV (MINOR)
(THROUGH GUARDIAN/FATHER
MR. HARI SINGH)            ..... Petitioner
                  Through: Ms. Indira Unninayar, Advocate

                       versus

CENTRAL BOARD OF SECONDARY
EDUCATION AND ORS.        ..... Respondents
                 Through: Mr. Atul Kumar, Advocate
                          for R-1.
                          Mr. Manoj Kumar, Advocate
                          for R-3.

%                             Reserved on:       16th November, 2010.
                              Date of Decision : 20th December, 2010.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN

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


                                JUDGMENT

MANMOHAN, J

1. By the present writ petition filed under Article 226 of the

Constitution of India, the petitioner who is a minor, through her father,

challenges the constitutionality and legality of Bye-law 69.1(i) of

Central Board of Secondary Education Examination Bye-laws,

primarily on the ground that it does not permit any correction in name,

either of the candidate or his/her parents in the school certificate unless

such correction/alteration matches with the school records. The

impugned Bye-law 69.1 reads as under :-

"69.1 Changes and Corrections in Name

(i) No change in name/surname once recorded in the Board‟s records shall be made. However, correction in the name to the extent of correction in spelling errors, factual typographical errors in candidate's name/surname, father's name/mother's name or guardian‟s name to make it consistent with what is given in the school record or list of candidates (LOC) submitted by the school may be made.

Provided further that in no case, correction shall include alteration, addition, deletion to make it different (except as mentioned above) from the LOC or the school records.

(ii) Application for correction in name/surname will be considered only within ten years of the date of declaration of result provided the application of the candidate is forwarded with the following documents:

(a) Admission form(s) filled in by the parents at the time of admission.

(b) The School Leaving Certificate of the previous school submitted by the parents of the candidate at the time of admission.

(c) Portion of the page of admission and withdrawal register of the school where the entry has been made in respect of the candidate.

(iii) The Board may effect necessary corrections after verification of the Original records of the school and on payment of the prescribed fee."

2. It is the petitioner‟s case that her parents‟ names have been

incorrectly recorded as „Hari Singh Yadav‟ and „Mamta Yadav‟ instead

of „Hari Singh‟ and „Mamta‟ respectively. According to Ms. Indira

Unninayar, learned counsel for petitioner, an inadvertent error made by

oversight in school records is simply getting perpetuated because the

aforesaid Bye-law does not permit any correction in class X or XII

certificates as they do not tally with the school records. In this

connection, Ms. Indira draws our attention to the petitioner‟s birth

certificate wherein the parent‟s names have been mentioned as „Hari

Singh‟ and „Mamta‟.

3. Ms. Indira also contrasts the impugned Bye-law 69.1(i) with the

same Bye-law prior to amendment, which reads as under :-

"Correction in name means correction in spelling errors, factual errors, typographical errors in candidate‟s name/surname, father‟s name/mother‟s name to make it consistent with what is given in the school record.

Change in name also includes alteration, addition, deletion to make it different from the school records."

4. Ms. Indira submits that the impugned Bye-law leaves no recourse

to candidates for correction of names of their parents and, thus it is a

case of passing arbitrary bye-laws by respondent by not using relevant

considerations such as hardship caused to students and balance of

convenience, etc. According to Ms. Indira, even if an inadvertent error

has been made by petitioner, the petitioner is entitled to correct the

same instead of being forced to repeat the error. She further submits

that respondent no. 1 has illegally constrained/fettered its powers in the

limited interest of its own efficiency thereby sacrificing the cause of

justice in individual cases including that of the petitioner. In this

context, she relies upon judgments of the Supreme Court in Indian

Aluminium Company v. Kerala State Electricity Board, (1975) 2 SCC

414, J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd.

and others, (1991) 2 SCC 283 and judgment of this Court in W.P.(C)

3577/2008 titled as Dhruva Parate Vs. CBSE & Anr. decided on 23rd

March, 2009 wherein it has been held that an executive agency

operating within the field of its discretion, cannot unduly fetter or

circumscribe its own rights.

5. Ms. Indira further submits that if the petitioner is not permitted

to correct such an inadvertent error, it would result in enormous

confusion and would affect the petitioner‟s right in terms of education,

career, travel for higher education and would thus violate petitioner‟s

fundamental rights granted under Articles 14, 19(1)(g) and 21 of the

Constitution of India.

6. Ms. Indira also relies upon a judgment of Supreme Court in

Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi

and Anr., (1975) 3 SCR 619 wherein the Supreme Court relied upon

the test propounded by the English Court in Kruse v. Johnson, (1898) 2

Q.B. 91 to determine whether a bye-law is arbitrary or not. In Sukhdev

Singh and Ors (supra), the Supreme Court has held as under:-

"174. In Kruse v. Johnson (1898 2 QB 91) in regard to by- laws it was said:

"But first it seems necessary to consider what is a bye- law. A bye-law, of the class we are here considering, I take to be an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non-observance. It necessarily involves restriction of liberty of action by persons who come under its operation as to acts which, but for the bye-law, they would be free to do or not do as they pleased. Further, it involves this consequence that, if validly made, it has the force of law within the sphere of its legitimate operation."

175. In Halsbury's Laws of England (3rd ed., Vol. 9, p. 40) the law is set out thus:

"All regulations made by a corporation and intended to bind not only itself and its officers and servants, but members of the public who come within the sphere of their operation, may properly be called „bye-law‟, whether they are valid or invalid in point of law; but the term may also be applied to regulations binding only on the corporation, its officers and servants."

7. Per contra, Mr. Atul Kumar, learned counsel for Central Board of

Secondary Education (for short "CBSE") submits that a writ petition

against respondent no. 1 is not maintainable as it is not a State within

the meaning of Article 12 of the Constitution of India. He states that

CBSE is an autonomous society registered under the Societies

Registration Act, 1860 which is self-financed and is discharging

functions of conducting examinations, prescribing educational courses,

generally maintaining the standards of school education and advising

the Government of India when called upon to do so, on matters

pertaining to school education. He reiterates that CBSE is not created

under a statute and it is governed by its own rules and regulations.

Consequently, according to him, CBSE being an autonomous and

independent body is not amenable to writ jurisdiction.

8. Mr. Kumar also points out that the names of petitioner‟s parents,

as mentioned in the record of CBSE only reproduce the details which

have been mentioned in the records of the school where the petitioner is

studying.

9. Mr. Kumar lastly submits that CBSE has no power and resources

to independently verify the particulars of the candidates who appear in

the examinations conducted by CBSE. He reiterates that CBSE has to

rely upon the school record where the pupils are studying.

10. In rejoinder, Ms. Indira submits that respondent no. 1, CBSE is a

State under Article 12. She submits that the Apex Court has repeatedly

held that the test to determine whether a body is a State, is whether the

said body performs a public function or whether there is deep and

pervasive control exercised by the State or Central Government. In this

connection, she relies upon the judgments of Supreme Court in Ajay

Hasia and Ors. v. Khalid Mujib Sehravardi and Ors., (1981) 1 SCC

722 and Pradeep Kumar Biswas v. Indian Institute of Chemical

Biology and Ors., (2002) 5 SCC 111.

11. Having heard the parties, we are of the opinion that the

preliminary objection raised by the respondent no. 1 is misconceived on

facts and untenable in law. In fact, the relevant portion of Article 226

of the Constitution of India stipulates as under :-

"226. Power of High Courts to issue certain writs.-

(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose."

12. In our view, the expression "any person or authority" used in

Article 226 of the Constitution of India is not to be confined to statutory

authorities and instrumentalities of the State as defined in Article 12 of

the Constitution. The said expression covers "any person or body"

performing public duty (Andi Mukta Sadguru Shree Muktajee Vandas

Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors. vs. V.R.

Rudani & Ors., (1989) 2 SCC 691, para 20 at 700 and U.P. State

Cooperative Land Development Bank Ltd. Vs. Chandra Bhan Dubey

& Ors., AIR 1999 SC 753, paras 22, 23,24, 25 and 26).

13. In fact, the Supreme Court in Binny Ltd. and Anr. v. V.

Sadasivan and Ors., (2005) 6 SCC 657 has held that even private

bodies discharging public functions are amenable to writ jurisdiction

under Article 226. The relevant portion of the said judgment is

reproduced hereinbelow :-

"29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury‟s Laws of England, 3rd Edn., Vol. 30, p. 682, "1317. A public authority is a body, not necessarily a county council, municipal corporation or other local authority, which has public or statutory duties to perform and which perform those duties and carries

out its transactions for the benefit of the public and not for private profit."

There cannot be any general definition of public authority or public action. The facts of each case decide the point.

xxx xxx xxx

32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not "State" within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties."

14. However, upon a perusal of the records, in particular the school

records, we are of the opinion that there is no inadvertent error or mere

oversight by the petitioner‟s parents in entering their names in the

school records. In the Nursery application form, the school admission

form and the stream allotment form for Class XI, the petitioner‟s

parents have consistently filled/entered their names as "Hari Singh

Yadav" and "Mamta Yadav" as father and mother respectively. The

relevant extracts of the aforesaid three forms filled at different points of

time are reproduced hereinbelow :-

(i) NURSERY APPLICATION FORM :-

NURSERY APPLICATION FORM ONLY DELHI PUBLIC SCHOOL Mathura Road, P.O. Box 3042, New Delhi-11003 Application No 975019

The Principal Paste Latest Delhi Public School Passport size Mathura Road photograph New Delhi

I apply for the admission of my Son/Daughter for Nursery Class of 1997-98 session.

He/She is presently in Aster Public School, Mayur Vihar pre-Nursery School.

Child‟s Name : Master/Miss JIGYA YADAV

xxxx xxxx xxxx xxxx

6. Father's Name Hari Singh Yadav Annual Income 85 thousand If an Ex-student of DPS, Indicate Year

Academic Qualifications B.Sc., M.A. (Maths), B.Ed. Designation or exact nature of Business Sub-Inspt. in Delhi Police

7. Mother's Name Mamta Yadav If an Ex-student of DPS, Indicate Year Academic Qualifications M.Com., M.Phil Designation, if employed Lecturer in D.U. Annual Income 95 thousand

8. Residential Address C-7F, Delhi Police Society, Mayur Vihar, Phase-I, Delhi-91

Office Address: FRRO, Hans Bhawan, Delhi.......

xxxx xxxx xxxx xxxx

I certify that I am the father/mother of the child and the information furnished above is correct to the best of my knowledge and I have carefully read the information given overleaf.

       Dated 25 September, 1998                      Sd/-
                                            Signature of Father/Mother

                xxxx           xxxx           xxxx           xxxx

                                INFORMATION

5. The application form should be returned to the school office duly filled up latest by 27 SEPTEMBER, ‟96.

Sd/-

                                      Signature of Father/Mother
                                      Name in full Hari Singh Yadav

                xxxx           xxxx           xxxx           xxxx


(ii) SCHOOL ADMISSION FORM :

       DELHI PUBLIC SCHOOL                  Regd. No. & Date 975019
       MATHURA ROAD DELHI                   Admission No. 97250



                                               Admitted to Class NUR-F
                                              Session 97,98


       A       Particulars of the Pupil                        Paste
                                                               Latest
       1. Name in Full Master/Miss JIGYA YADAV                Passport
         (Block Letters)       First Middle Last                size
                                                             photograp
                                                                  h
                xxxx            xxxx            xxxx          xxxx

       4.

a) Mother Tongue HINDI 1. Mother's Name Mrs. Mamta Yadav

b) Home Town Rewari (Haryana) 2. Educational Qualifications. M.Com, M.Phil.

c)Nationality Indian 3. Designation & Office Lecturer, Address if Employed Bhim Rao Ambedkar College, Geeta Colony, Delhi University Annual Income Rs. 95,000/-

C Particulars of the Father/Legal Guardian

1. Father's/Legal Guardian's Name HARI SINGH YADAV (Block Letters) First Middle Last

2. Educational Qualifications M.A. (Maths, B.Ed.)

3. Profession/Designation or exact Sub-Inspector, Delhi Police Name of business and Annual Income xxxx xxxx xxxx xxxx

6. Specimen signature of the Father/Mother/Guardian which should be accepted by the school authorities.

       Specimen Signatures             Name and Relationship with the pupil
          Sd/-                         Hari Singh Yadav, Father

I, the undersigned hereby declare that I am the legal guardian of Master/Miss Jigya Yadav and that the information provided in this form is correct to the best of my knowledge. I have read the school rules given below and agree to abide by them.


       Dated 19/03/1997                   Signature __Sd/-________
                                          Name Hari Singh
                                          Relationship with the pupil Father
                xxxx            xxxx            xxxx           xxxx

3. I do understand that programming and philosophy or Education of DPS Mathura Road is to lay great deal of stress on sports & excursions, swimming and riding and other co-curricular activities which involve some amount of risk. I as a parent will fully co-operate with the school in this direction.

Sd/-

Signature of the parent/guardian Hari Singh Yadav (Name in full)

(iii) STREAM ALLOTMENT FORM FOR CLASS XI:

DELHI PUBLIC SCHOOL MATHURA ROAD, NEW DELHI-110003

STREAM ALLOTMENT FORM FOR CLASS-

       XI(10+2) STUDENTS


        Paste Latest     Paste Latest    Admn. No.                97250
                                         Session:                 2008-09
        Passport size    Passport size
                                         (Class X)
        photograph       photograph
                                         Section (Class X)        G
                                         House                    GANGA
                                         Day Scholar/Boarder      Day Scholar
                                         Stream Allotted in       Science
                                         Class XI
                                         (Final Allotment)        Science with
                                                                  Eco
                                         Section in XI

1. Name of the Student (in block letters) JIGYA YADAV

xxxx xxxx xxxx xxxx

8. FAMILY INFORMATION :

                            FATHER                         MOTHER
       Name (in bloc letters) HARI SINGH YADAV             MAMTA
                                                           YADAV
       Educational
       Qualification        LLM                            M.Phil, Ph.D.
       Qualification
       Occupation           Govt. Service                  Govt. Service
       Designation          Inspector                      Associate
                                                           Professor
       Name of the          DELHI POLICE                   Dr. B.R.
       organization                                        Ambedkar
                                                           College.
                xxxx          xxxx           xxxx           xxxx





                               CERTIFICATE

       1.     I/we,    Certify     that    I     am/we    are,   the

father/mother/guardian of the child and the information furnished above is correct to the best of my/our knowledge.

2. I/we also accept that the decision of the Principal/Admission committee regarding admission is .......... final and binding.

3. I/we further undertake to abide by the school rules.

Sd/-

Date: 02/06/2009 Signature of Parent/Guardian

13. I father/mother/guardian of JIGYA YADAV hereby undertake that I will not ask for any change for the allotment of the subject.

Signature of the Father/ Mother/Guardian: sd/-

14. Signature of the candidate JIGYA Name of the Father/ Mother/Guardian:

HARI SINGH YADAV

15. Date: 02/06/2009 Date: 02/06/2009"

(emphasis supplied)

15. From the aforesaid, it is apparent that despite the parents of the

petitioner having mentioned their names as „Hari Singh‟ and „Mamta‟

in the petitioner‟s birth certificate, they have consciously and

consistently chosen to record their names as „Hari Singh Yadav‟ and

„Mamta Yadav‟ in the school record. Consequently, we are of the

opinion that this Court in the present petition should not deal with the

challenge of constitutional validity as it is the petitioner‟s parents who

are at fault and the error, if any, has been repeated on a number of

occasions by the petitioner‟s parents themselves. In fact, we are of the

view that for the fault of the petitioner‟s parents, the impugned Bye-law

of the respondent no. 1 cannot be set aside. The Supreme Court in

Maharashtra State Board of Secondary and Higher Secondary

Education & Anr. v. Paritosh Bhupeshkumar Sheth & Ors., (1984) 4

SCC 27 has held as under:-

"28. As pointed out by a Constitution Bench of this Court in Fatehchand Himmatlal v. State of Maharashtra "the test of reasonableness is not applied in vacuum but in the context of life‟s realities". : (AIR 1977 SC 1825)."

16. Today, one finds that there is a growing tendency to file petitions

challenging the validity of statutes, rules and bye-laws on the ground of

being arbitrary and unreasonable even when the petitioner‟s conduct is

not free from blame. In Mrutunjay Pani & Anr. v. Narmada Bala

Sasmal & Anr., (1962) 1 SCR 290, the Supreme Court has also held as

under:-

"5..............This is only another illustration of the well settled principle that a trustee ought not to be permitted to make a profit out of the trust. The same principle is comprised in the latin maxim commodum ex injuria sua nemo habere debet, that is, convenience cannot accrue to a party from his own wrong. To put it in other words, no one can be allowed to benefit from his own wrongful act........."

17. We are also of the view that in a country where there is

reservation on caste and religious grounds, change of names of parents

or ward‟s name cannot be allowed at the drop of the hat.

18. Moreover, in our opinion, even if the Regulations permitted

change of names of parents, this is not a case where the change of name

should be allowed as the parents have repeatedly filled up the forms

themselves and they alone are liable for the error/mistake, if any.

19. In any event the test with regard to unreasonableness qua

delegated legislation has been laid down by the English Court in Kruse

v. Johnson (supra) wherein Lord Russel of Killowen while upholding

the validity of a municipal by-law banning singing within 50 yards of

dwelling houses observed as under:-

".....But, when the Court is called upon to consider the bye- laws of public representative bodies clothed with the ample authority which I have described, and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think the consideration of such bye-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, "benevolently" interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered. This involves the introduction of no new canons of construction. But, further, looking to the character of the body legislating under the delegated authority of Parliament, to the subject-matter of such legislation, and to the nature and extent of the authority given to deal with matters which concern them, and in the manner which to them shall seem meet, I think courts of justice ought to be slow to condemn as invalid any bye-law, so made under such conditions, on the ground of supposed unreasonableness......

"But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires". But it is in this sense, and in this sense only, as I conceive, that the question of reasonableness can properly be regarded. A bye-law is not unreasonable merely because particular Judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Surely it is not, too much to say that in matters which directly and mainly concern the people of the country, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges. Indeed, if the question of the validity of bye-laws were to be determined by the opinion of Judges as to what was reasonable in the narrow sense of that word, the cases in the books on this subject are no guide; for they reveal, as indeed

one would expect, a wide diversity of judicial opinion, and they lay down no principle of definite standard by which reasonableness or unreasonableness may be tested........."

(emphasis supplied)

20. The test laid down in Kruse Vs. Johnson (supra) has been

adopted by the Indian Supreme Court in the case of H.C. Suman &

Anr. Vs. Rehabilitation Ministry Employees' Cooperative House

Building Society Ltd., New Delhi & Ors,. (1991) 4 SCC 485 at page

499 wherein it has been held as under:-

"In Kruse v. Johnson it was held that in determining the validity of bye-laws made by public representative bodies, such as country councils, the court ought to be slow to hold that a bye-law is void for unreasonableness. A bye-law so made ought to be supported unless it is manifestly partial and unequal in its operation between different classes, or unjust, or made in bad faith, or clearly involving an unjustifiable interference with the liberty of those subject to it. In view of this legal position the Notification dated October 27, 1987 deserves to be upheld as, in our opinion, it does not fall within any of the exceptions referred to in the case of Kruse v. Johnson."

(emphasis supplied)

21. Even if one were to apply the aforesaid test one finds that the

respondent no. 1 essentially records what has been mentioned in the

school records consistently and that too, upto Class X, that means, for

more than 10 years the child and/or her parents have the liberty to

rectify the record. Consequently, we are of the opinion that the

impugned Bye-law is perfectly reasonable.

22. Moreover, we are of the view that the Court should be extremely

reluctant to substitute its own views as to what is wise, prudent and

proper in relation to academic matters in preference to those formulated

by professional men possessing technical expertise and rich experience

of actual day-to-day working of educational institutions and the

departments controlling them. It will be wholly wrong for the Court to

take a pedantic and purely idealistic approach to the problems of this

nature, isolated from the actual realities and grass root problems

involved in the working of the system and unmindful of the

consequences which would emanate if a purely idealistic view as

opposed to a pragmatic one were to be propounded. It is equally

important that the Court should also, as far as possible, avoid any