Dennis Mathew John v. The Chairman, ICSE & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 17TH DAY OF JANUARY 2019 / 27TH POUSHA, 1940** ## **WP(C).No. 8695 of 2017** ## **PETITIONER:** **DENNIS MATHEW JOHN S/O.JOHN P.M., AGED 24 YEARS, TC-X/1135, BENEDICT NAGAR, NALANCHIRA P.O., THIRUVANANTHAPURAM, PIN -695 015.** **BY ADV. SRI.NEMOM CHANDRA BABU** ## **RESPONDENTS:** - **1 THE CHAIRMAN, THE ICSE, P 35-36, SECTOR VI, PUSHP VIHAR, SAKET, NEW DELHI, DELHI 110 017.** - **2 THE PRINCIPAL, SARVODAYA VIDYALAYAM, THIRUVANANTHAPURAM.** - **3 THE SECRETARY THE BOARD OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM.** - **4 THE PRINCIPAL ST.THOMAS HIGHER SECONDARY SCHOOL, THIRUVANANTHAPURAM.** - **5 THE REGISTRAR SRM UNIVERSITY, KATTANKULATHUR, KANCHIPURAM DT, TAMIL NADU, PIN-603 203. (DELETED)** - ***5TH RESPONDENT DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 28/09/2018 IN IA.1/2018** **SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER FOR R3 SRI.R.V.SREEJITH FOR R4 SRI.S.SAJU** ## **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** ## **17.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ---------------------------------- ## W.P.(C)No.8695 of 2017 ---------------------------------Dated this the 17[th] day of January, 2019 ## J U D G M E N T The petitioner who has studied upto Standard X in the 2[nd] respondent School affiliated to the 1[st] respondent ICSE, is aggrieved by the inaction on the part of the respondents 1 and 2 for correction of his date of birth as shown in Ext.P-1 Pass Certificate issued by the 1[st] respondent ICSE so as to be in tune with the entry in Ext.P-4 statutory Birth Certificate. 2. The prayers in the above Writ Petition (Civil) are as follows:- “ - _i. Issue a writ of mandamus of any other writ, order or direction directing the respondents to correct the date of birth of the petitioner in his school and college records as 31.7.1993 in place of 31.7.1994 considering the Exhibit P3 birth certificate._ - _ii. Pass such other writ, order or direction as prayed for by the petitioner in due course which shall be just and proper._ - _iii. Award the cost of the petitioner. ”_ 3. Heard Sri.Nemon Chandra Babu, learned counsel appearing for the petitioner, Sri.R.V.Sreejith, learned counsel appearing for R-4 and Sri.Saigi Jacob Palatty, learned Senior W.P.(C).No.8695/2017 ..3.. Government Pleader appearing for R-3. 4. Though notice process has been duly completed on R-1 & R-2, there is no appearance for that parties. 5. According to the petitioner, his date of birth has been correctly shown in Ext.P-4 statutory Birth Certificate issued by the Registrar of Births & Deaths under the enabling provisions contained in the Registration of Births & Deaths Act, 1969 as 31.7.1993 and his birth has been so registered there by on 7.8.1993. But that mistake had occurred in entering his date of birth while admitting in the 2[nd] respondent School which is affiliated to the 1[st] respondent ICSE, and the said School records have erroneously noted his date of birth as 31.7.1994 and consequently the said mistake has been repeated in records of the 1[st] respondent ICSE like Ext.P-1 pass certificate issued in respect of the Indian Certificate of Secondary Education Examination, 2010. From a bare reading of Ext.P-4 statutory Birth Certificate, it can be seen that the date of birth of the petitioner so entered therein as 31.7.1993 and his birth has been registered on 7.8.1993. If as a W.P.(C).No.8695/2017 ..4.. matter of fact, the date of birth as shown in Ext.P-1 ICSE Certificate and the School records of the 2[nd] respondent as 31.7.1994 had been correct, then there is no question of registering the birth of the petitioner on 7.8.1993, which is prior to said date shown in Ext.P-1. That factual aspect itself would give full credence to the correctness of the entries in Ext.P-4 statutory Birth Certificate. Moreover, the entries in Ext.P-4 statutory Birth Certificate will have the force of statutory presumption about its correctness. This Court has dealt with series of cases of similar nature wherein directions have been issued for correction of school records and the records of the examination body and as well as the CBSE records in those cases where the students would have studied in schools affiliated to CBSE. 6. The matter in issue is no longer _res integra_ and is covered in favour of the petitioner as per the dictum laid down by this Court in _**Subin Mohammed v. Union of India,**_ reported in _**2016 (1) KLT 340**_ , in which it has also held in para 39 thereof that while considering a petition filed under Article 226 of the W.P.(C).No.8695/2017 **==> picture [18 x 9] intentionally omitted <==** Constitution of India seeking correction of date of birth in the CBSE records beyond the time period permitted by that authority, it has been held by this Court that it is always open for the Court exercising powers under Article 226 of the Constitution of India to pass appropriate orders taking into account the facts and circumstances of each case and also taking into consideration the extenuating aspects that future prospects of the candidates, who intend to study or to get employment abroad will be prejudicially affected, if the entry of the date of birth in the mark sheet does not tally with that in the birth certificate. Accordingly the Division Bench in **Subin Mohammed's** _case_ (supra) reported in _**2016 (1) KLT 340**_ has issued the following directions in paras 39 & 41, which read as follows: _“39. It is contended that the future prospects of the petitioners to study or get employment abroad, will be substantially affected if the entry of date of birth in the mark sheet does not tally with that in the birth certificate. Though a writ of mandamus cannot be issued in the strict sense, we are of the view that, failure to exercise jurisdiction may put the petitioners to serious hardship. Hence, to render justice, it is always open for the Court to pass appropriate orders, taking into account the facts and circumstances of each case. However, if disputed questions of fact arises, it will not be appropriate for this Court to entertain the matter._ _40. xxx xxx xxx_ W.P.(C).No.8695/2017 ..6.. _41. Hence, to meet the ends of justice, it will be appropriate for this Court to dispose the Writ Petitions with the following directions:_ _i) That C.B.S.E. shall correct the entries in the mark sheet of the petitioners with reference to their corresponding birth certificates issued by the statutory authority, if the request is found to be genuine._ _(ii) Genuineness of the birth certificate can be ascertained from the respective local/statutory authority/Head of the Institution or such other method, C.B.S.E. may deem it fit._ _(iii) C.B.S.E. can demand in advance a consolidated fee, including all expenses for processing such applications._ _(iv) Each of the petitioners shall pay Rs.5,000/- (Rupees Five thousand only) as cost to C.B.S.E. within a period of one month.”_ ## 7. Further, this Court in the judgment dated 29.8.2017 in W.P.(C).No.20661/2017 has issued the following directions in para ## 4 thereof, which reads as follows: _“4. Having regard to the facts and circumstances of the case, as also the submissions made by the learned counsel on either side, the writ petition is disposed of as follows:_ _(i) The concerned authority of the school in which the petitioner has studied shall correct the name of the petitioner entered in the school records based on her birth certificate and forward the copies of the corrected school records to the CBSE, within two weeks from the date of receipt of a copy of this judgment._ _(ii) The CBSE shall carry out the correction sought by the petitioner based on the birth certificate and the corrected school records, on payment of Rs.5000/-, within two months thereafter._ ” 8. The above said judgments have been followed in series of cases by this Court while entertaining applications under Article 226 of the Constitution of India for directions in the matter of W.P.(C).No.8695/2017 ..7.. correction of date of birth in the CBSE records. 8. Accordingly this Court is of considered view that the dictum laid down by the Division Bench of this Court in cases as in _'_ _**Subin Mohammed**_ s case supra _**(2016 (1) KLT 340)**_ and series of other cases dealt with by the Single Bench as in the judgment dated 29.8.2017 in WP(C).No.20667/2017, etc could be made applicable in the facts and circumstances of this case, even though the petitioner has studied in the 2[nd] respondent School which is affiliated to the 1[st] respondent ICSE. However it is seen that the petitioner has passed out his 10[th] Standard from Indian Certificate of Secondary Education Examination, 2010 as evident from Ext.P-1 pass certificate issued by the 1[st] respondent. Therefore evidently there is delay on the part of the petitioner in vindicate his claims. Hence it is ordered by this Court that the petitioner is liable to pay cost subject to which alone the directions will be issued. Accordingly the matter requires interdiction and the following directions and orders are passed. _(i) The petitioner will pay cost of Rs. 5,000/- (Rupees five thousand_ W.P.(C).No.8695/2017 ..8.. _only) by way of demand draft to the 1[st] respondent ICSE within two weeks and will produce the said demand draft along with an application seeking correction of the date of birth in the ICSE records based on the entry of date of birth in Ext.P-4 statutory Birth Certificate._ - _(ii) The petitioner shall file a separate application for correction of date of birth to the 2[nd] respondent along with supporting documents and a photocopy of the said demand draft evidencing payment of cost of Rs.5,000/-, should also be produced before the 2[nd] respondent._ - _(iii) Upon receipt of such application along with supporting documents as aforestated, the Principal of the 2[nd] respondent school will take necessary steps for correction of the date of birth in the school records so as to be in tune with the entry of date of birth in Ext.P-4 Birth Certificate and communicate the details of such correction in the school records to the 1[st] respondent ICSE._ - _(iv) After receipt of the abovesaid communication from the schools, the 1[st] respondent ICSE will take necessary steps for correction of date of birth in the ICSE records as in Ext.P-1 mark list so as to be in tune with the entry of date of birth in Ext.P-4 Birth Certificate._ - _(v) The entire process in this regard should be duly completed by the respondents 1 & 2 without much delay, preferably within a period of 2 months from the date of production of a certified copy of this judgment._ - _(vi) The abovesaid directions are subject to the specific condition that the petitioner should pay cost to the 1[st] respondent ICSE, as directed above, failing which the abovesaid directions will stand automatically vacated without any further orders from this Court._ W.P.(C).No.8695/2017 ..9.. 9. Sri.Nemon Chandran Babu, learned counsel appearing for the petitioner would submit that the petitioner has also yet another connected grievance in as much as, after passing out from Standard X in R-2 School affiliated to 1[st] respondent ICSE, he had thereafter proceeded his studies at the Plus Two level in the 4[th] respondent School, which is affiliated to the 3[rd] State Board of Higher Secondary Examination under the State Authorities concerned. The petitioner may file appropriate application before respondents 3 & 4 for correction of date of birth in the 4[th] respondent School records and Ext.P-2 Pass Certificate issued by the 3[rd ] respondent Board of Higher Secondary Education pointing out the facts and circumstances which led to the mistake and also about the aspects borne out from Ext.P-4 Birth Certificate etc. If such representation is filed, the 3[rd] respondent will consider the same and pass appropriate orders and may take further steps to redress the grievance of the petitioner in the light of the abovesaid judgments of this Court cited herein above. Necessary steps in this regard should be duly completed by respondents 3 and 4 without W.P.(C).No.8695/2017 **==> picture [24 x 7] intentionally omitted <==** much delay preferably within a period of 2 months from the date of submission of representation in that regard along with certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C).No.8695/2017 ..11.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE MARK LIST ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE MARK LIST OF THE BOARD OF HIGHER SECONDARY EDUCATION ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER** - **EXHIBIT P3 TRUE COPY OF THE PROVISIONAL CERTIFICATE ISSUED BY THE 3RD RESPONDENT UNIVERSITY** - **EXHIBIT P4 TRUE COPY OF THE BIRTH CERTIFICATE ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM** - **EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGE OF THE KERALA GAZETTE** **EXHIBIT P6 COPY OF THE PETITIONER'S PASSPORT**