The Controller Of Examinations vs Neeraja J
2021 Latest Caselaw 21860 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                  THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                                        &

                  THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN

         WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943

                                WA NO. 926 OF 2020

AGAINST THE JUDGMENT DT.27/08/2019 IN W.P.(C) NO. 22005/2019 OF THE LEARNED

                                  SINGLE JUDGE

APPELLANTS/1,2 & ADDL.4TH RESPONDNETS IN W.P.C.:

     1       THE CONTROLLER OF EXAMINATIONS,
             CENTRAL BOARD OF EXAMINATION,
             SHIKSHA KENDRA, 2, COMMUNITY CENTRE,
             PREET VIHAR, NEW DELHI - 110 301.

     2       CENTRAL BOARD OF SECONDARY EDUCATION,
             REGIONAL OFFICE, NEW NO.3,
             OLD NO.1630-A, J BLOCK, 16TH MAIN ROAD, ANNA NAGAR (WEST),
             CHENNAI - 600 040.,
             REP. BY ITS REGIONAL MANAGER.

     3       CBSE
             REPRESENTED BY ITS REGIONAL OFFICER,
             BLOCK 2ND FLOOR,
             LIC DIVISIONAL OFFICE CAMPUS, PATTOM,
             THIRUVANANTHAPURAM - 695 004.

             BY ADV NIRMAL. S


RESPONDENTS/PETITIONER & 3RD RESPONDENT IN WPC:

     1       NEERAJA J.,
             AGED 21 YEARS,
             D/O. JAGATHISH KUMAR G.,
             RESIDING AT NEEHARI, KCRA - 36,
             TC-37/2016, KODUNGANOOR P. O.,
             VATTIYOORKKAVU, THIRUVANANTHAPURAM - 695 013.
     2       THE PRINCIPAL,
             BHARATIYA VIDYA BHAVAN SENIOR SECONDARY SCHOOL
             (CBSE DELHI REGION), KODUNGANOOR,
             VATTIYOORKAVU, THIRUVANANTHAPURAM - 695 013.

             BY ADV SRI.B.K.GOPALAKRISHNAN



      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.11.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.926 of 2020

                                   2




           K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
                   ---------------------------------------
                         W.A.No.926 of 2020
                   ---------------------------------------
             Dated this the 03rd day of November, 2021


                            JUDGMENT

K.Vinod Chandran, J.

This appeal is against the judgment of the learned

Single Judge, directing the additional 4 th respondent to carry out

necessary correction in the name of the father and mother of the

petitioner/ the 1st respondent herein, in accordance with Ext.P1

Birth Certificate, at the earliest and at any rate within six weeks

from the date of receipt of a copy of the application.

2. The appellants seem to be labouring under a

misconception that the directions issued would go contrary to the

judgment of the Hon'ble Supreme Court in Jigya Yadav v.

C.B.S.E. [2021 (3) KLT 711 SC)]. It is also pointed out that the

learned Single Judge has followed Subin Mohammed v. Union

of India (2016 (1) KLT 340), which has been overruled by the

Hon'ble Supreme Court in Jigya Yadav (supra). It is contended

that the CBSE can only make corrections to the Date of Birth in

accordance with school records. It is also pointed out that another W.A.No.926 of 2020

Division Bench of this Court in Writ Appeal No.1184 of 2021,

dated 27.09.2021, has directed such applications to be considered

in accordance with Jigya Yadav (supra).

3. We are unable to agree with the contention of the

appellants that the directions run contrary to Jigya Yadav (supra)

and that in the facts arising in this case, no such direction can be

issued. We also do not see any difficulty created by the Division

Bench judgment placed before us which only directed

consideration in accordance with Jigya Yadav (supra).

4. On the reversal of Subin Mohammed (supra), it is to

be noted that the Hon'ble Supreme Court was considering

requests for multifarious corrections in certificates and the

procedure was stream lined in Jigya Yadav (supra). Para 163 &

164 reads as follows:-

"163. The impugned judgments categorically note that the request for changes could not be permitted as per the Byelaws. Thus, there was no demonstration or inquiry to determine the existence of any legal right in favour of students.

Even if we assume that courts issued directions purely on the basis of fundamental rights, there is no discussion or inquiry in this regard. More so, there is no attempt to examine the vires of the Byelaws in light of the breach of fundamental rights, as discussed in the initial part of this judgment. Absent any such adverse determination on the validity of the applicable rules, the fundamental principle of rule of law demands that such rules be given their intended effect. Even if a W.A.No.926 of 2020

constitutional Court feels that the case at hand is deserving of an extraordinary remedy, it may do so using its wide powers under Article 226 but only upon specific appraisal of the facts of the case and after duly demonstrating the extraordinary character of the case. Despite holding that the prayers are impermissible under the Byelaws, the Courts in the present set of cases went on to issue directions to the Board without having any regard to the factual circumstances of the case or to the nature of changes sought by the students, by mechanically relying upon the dictum in Subin Mohammed (supra). We must note that Subin Mohammed (supra) is not challenged before us but must be now understood in terms of opinion recorded in this judgment. Our concern is with the manner in which mechanical reliance has been placed upon the earlier decision for deciding cases which involved an altogether different set of changes.

164. Once a court of law notes that the applicable rules do not permit it to grant a particular relief and it still goes on to grant the relief on sympathetic grounds, such decisions can in no way be treated as precedents. We are constrained to note that following such decision as precedent will be in utter disregard of the well established principle of "equity acts in personam" and, thus, courts cannot deploy equity in "rem" by replicating the same order, disregarding the personal characteristics of the case at hand. There can be no application of Subin Mohammed (supra) to a different set of facts".

5. There was no reversal of Subin Mohammed (supra),

but the caution expressed by the Hon'ble Supreme Court was that

when the Byelaws do not permit request for changes, then

necessarily, there should be an enquiry made by the Court, with W.A.No.926 of 2020

reference to the legal right in favour of students. It was also held

that, even if it was assumed that the Courts could issue directions

purely on the basis of fundamental rights, there should be an

enquiry into the facts and a discussion as to why the extraordinary

powers under Article 226 of the Constitution of India is to be

invoked. The Hon'ble Supreme Court deprecated the practice of

noticing the prayers to be impermissible under the Byelaw and

still mechanically relying upon the dictum in Subin Mohammed

(supra), without having any regard to the factual circumstances of

the case or to the nature of changes sought by the students.

Subin Mohammed (supra) was said to be on its own facts, also to

be understood in terms of the opinion expressed by the Hon'ble

Supreme Court in Jigya Yadav (supra). Subin Mohammed

(supra) has not been overruled.

6. The conclusions and directions of the Hon'ble Supreme

Court in Jigya Yadav (supra) reads as such:

"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 W.A.No.926 of 2020

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 W.A.No.926 of 2020

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 W.A.No.926 of 2020

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".

7. This particular case has to be examined on the basis of

the 1st category of cases referred to by the Hon'ble Supreme Court

in para 171 with specific reference to the 'change of particulars in

the certificate issued by CBSE' which are sought for by the

petitioner. The Hon'ble Supreme Court specifically notices that

when a request is made on the basis of public documents like Birth

Certificate, Aadhar Card, Election Card etc., to incorporate change

in the CBSE certificate consistent therewith, then such public

documents cannot be ignored by the CBSE, which has a special W.A.No.926 of 2020

sanctity by virtue of the Evidence Act, 1872. It is true that the

right is not unconditional, but, subject to certain reasonable

conditions to be fulfilled by the applicant as may be prescribed by

the CBSE; which as enumerated by the Hon'ble Supreme Court

are: furnishing of sworn affidavit containing declaration to

indemnify the CBSE, payment of prescribed fees in lieu of

administrative expenses, issuance of public notice and publication

in the Official Gazette, if warranted, before recording the change

in the fresh certificate to be issued; upon surrender or return of

the original certificate. The fresh certificate can also contain a

disclaimer and caption or annotation against the original

certificate indicating the date on which change has been recorded.

8. In the present case, we see that the petitioner relies on

the Birth Certificate, issued by the Local Self Government

Institution, whose Secretary is the Registrar of Births and Deaths.

The registration as indicated in Ext.P1 is dated 15.06.1998 and the

principle of ante litem motam applies squarely. There can be no

prior motive alleged for distorting the facts, before the

controversy originated. The change sought by the petitioner is

only with respect to the names of her parents which differ from

that recorded in the Birth Certificate. It is definitely due to some

inadvertent omission of the parent or the person who first W.A.No.926 of 2020

admitted the petitioner to the School, not strictly attributable to

the petitioner. The change has been necessitated only on the

petitioner attempting to go abroad. The difference in the name of

the parents as seen from Ext.P1 was noticed only when the

petitioner applied for a Birth Certificate to facilitate the foreign

travel. Obviously, different names in the Birth Certificate and the

School Certificate would put the petitioner's credibility into

question in a foreign university. This is an extraordinary

circumstance, under which this Court could invoke Article 226 of

the Constitution of India. As we noticed, the Hon'ble Supreme

Court in Jigya Yadav (supra) specifically, spoke of the situations,

when Article 226 of the Constitution of India could be invoked and

a direction be issued. We do not find any different dictum having

been laid down by another Division Bench in Writ Appeal No.1184

of 2021 nor could that be made, when the Hon'ble Supreme Court

has spoken on the issue under Article 141 of the Constitution of

India. The Register of Births And Deaths maintained by the

Registrar of Births and Deaths, constituted by statute is a public

document and the certificate issued by the Registrar is acceptable

evidence under the Evidence Act.

In such circumstances, we find no reason to entertain

the appeal and we dismiss the appeal, directing the CBSE to W.A.No.926 of 2020

comply with the directions in the judgment, however, with the

condition of payment of fees and any other condition required by

the CBSE, as noticed in Jigya Yadav (supra). The writ appeal is

dismissed without any order on costs.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

C.JAYACHANDRAN JUDGE

NR/03/11/2021