Kunhimohamed Abdul Nazar v. Union of India and others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 14[TH]DAY OF FEBRUARY 2023 / 25TH MAGHA,1944 ``` ``` WP(C) NO. 36778 OF 2022 ``` ``` PETITIONER: ``` ``` KUNHIMOHAMED ABDUL NAZAR AGED 55 YEARS S/O KUNHIMOHAMED PANIKKAVEETTIL HOUSE, P.O.THRITHALLUR, VADANAPPILLY, THRISSUR DISTRICT-680619, PIN - 680619. BY ADVS. T.K.ASOKAN RASMI NAIR T. K.R.DALLY ``` ``` RESPONDENTS: ``` ``` 1UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, GOVERNMENT OF INDIA JAWAHARLAL NEHRU BHAWAN, 32-D, JANPATH, NEW DELHI, PIN 110011. 2THE REGIONAL PASSPORT OFFICER, REGIONAL PASSPORT OFFICE, PANAMPILLY NAGAR PO, COCHIN, KERALA 682036. 3THE CHIEF PASSPORT OFFICER, (JOINT SECRETARY (PSP)) MINISTRY OF EXTERNAL AFFAIRS PSP DIVISION, PATIALA HOUSE ANNEXE, TILAK MARG, NEW DELHI, 110001. BY ADV MANU S., DSG OF INDIA ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON14.02.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P.(C) No. 36778 of 2022 2 ## **JUDGMENT** The petitioner is the holder of an Indian passport bearing No.L3892325. According to the petitioner, though the actual date of birth of the petitioner is 10.01.1966, as is evident from Ext.P2 Birth Certificate, Ext.P3 SSLC certificate, and Ext.P4 Aadhar card, the Date of Birth was wrongly entered in his passport as 07.12.1962. The petitioner has approached this Court seeking directions, and pursuant to the directions issued by this Court, Ext P9 order has been issued on 28.09.2022, declining his request. It is in the above backdrop that this writ petition is filed seeking to set aside Exts.P7 and P10 and for reconsidering Ext.P5 application in the light of Exts.P2 to P4 and to correct the Date of Birth as 10.01.1966 instead of 07.12.1962. 2. A counter has been filed by respondents 1 to 3 wherein it is stated that the petitioner is the holder of passport No.L3892325 dated 24.02.2014, and the same is valid up to 23.02.2024. The same has been issued in the name of Kunhimohamed Abdul Nazar from the embassy of India and Doha in continuation of passport No.E9126929 dated 28.06.2004. W.P.(C) No. 36778 of 2022 3 The details of the previous passports held by the petitioner are given in a table, which is as under. |Sl.No.|Passport No.|Date of Issue|Date of Expiry|Place of Issue| |---|---|---|---|---| |1|W350166|10.07.1984|09.07.1994|Cochin| |2|S340945|20.07.1994|19.07.2004|Doha| |3|E9126929|28.06.2004|27.06.2014|Doha| |4|L3892325|24.02.2014|23.02.2024|Doha| 3. It is stated that the 1st passport was obtained in the year 1984, and using the said passport, he traveled abroad and thereafter obtained subsequent passports as detailed above. It is stated that for the past more than 38 years, the petitioner was using the passport with the Date of Birth as 7.12.1962. It is stated that while considering the appeal preferred by the petitioner, the appellate authority considered all the relevant aspects and has rejected the same. It is further stated that the correction in the Date of Birth cannot be likely interfered with, and that too when the correction is requested after several years. It is stated that any application for correction of Date of Birth entry in the passport after issuance can be considered only in terms of an original memorandum dated 22.09.2016, and no relaxation in the policy decision can be taken. W.P.(C) No. 36778 of 2022 4 4. Heard the learned counsel for the petitioner, who submitted that the order issued by the respondent is erroneous as Exts.P2 to P4 discloses the correct Date of Birth of the petitioner. 5. The learned DSGI has opposed the submissions. Reliance is placed on the observations of this court in **Jayakumar and others v. Regional Passport Officer, Tvm** [2015 (3) KHC 763] and that of a Hon’ble Division Bench of this Court in W.A.No.778 of 2020 [Neutral Citation No.2020/KER/24517] to bring home his point. 6. I have considered the submissions advanced. It would be appropriate to extract paragraphs Nos. 8 to 13 of the judgment rendered by a Hon’ble Division of this Court in W.A.No.778/2020. The principles laid down therein would apply on all fours to the instant case as well. 8. On a reading of the provisions of the memorandums above, it is clear that no application for correction of date of birth can be entertained after 5 years from the date of issuance of the passport, which were issued revising the 2010 manual, and the sole exception is to a minor at the time of issuance of passport, for which separate procedure is prescribed. Anyhow the appellant has no case that he was a minor at the time of issuance of the passport. Evidently, the appellant has not challenged the office memorandums above issued by the Government of India, Ministry of External Affairs in that regard also. 9. Therefore, the sole question now comes up for consideration is whether the learned Single Judge was right in dismissing the writ petition upholding the act of the Passport Officer in returning the application for correction. In fact, the issue in question was considered by a learned Single Judge of this Court in Jayakumar and others v. Regional Passport Officer, Tvm W.P.(C) No. 36778 of 2022 5 (2015 (3) KHC 763), wherein it was held that the passport is a solemn document and the details entered therein cannot be lightly interfered with, that too after many years without any sustainable cause and without any explanation as to why initially such a wrong declaration was made and why now a change is sought for. Taking into account the provisions of the manual existing then, in the matter of correction of date of birth ranging from 5 years to 7 years and the submission of application after a long lapse, it was held that no writ can be issued for correction of date of birth in passports, having unexplained and undue delay. The case at hand is not different, since the delay of a long number of years is not explained at all. Even though the passport in question is seen issued for a period of ten years from 2014, it is evident that previously the writ petitioner was holding passport No. E8532073 dated 25.03.2004 issued at Dubai. This also means that the writ petitioner was holding a passport prior to the one specified above, may be for an earlier period of 10 years which was renewed at Dubai. Therefore, it is explicit that there is an unexplained delay of several years, and the writ petitioner himself knew that it cannot be explained, which may be the reason for not specifying the date of original issue of passport, a mandatory requirement to consider an application as per the office memorandums supra. 10. In fact, the Government of India has issued the office memorandums subsequent to the judgment of the learned single Judge in Jayakumar (supra) and it was taken note of in the office memorandum that unless and until the delay is properly explained and that too within the period prescribed, applications cannot be considered by the Passport Issuing Authority. 11. Anyhow, the learned counsel for the appellant has invited our attention to the compendium of instructions/guidelines said to be issued during the year 2018, especially clause 6.2 dealing with the correction of date of birth or place of birth in the passport to contend that irrespective of any time line, the authority has to consider an application for correction of date of birth, which reads thus: ## **“6.2 Where an applicant claims clerical/technical mistake in the entry relating to birth/place of birth in the passport and seeks rectification** In all such cases, the documents produced earlier as proof of date of birth/place of birth at the time of issue of passport may be perused (if not already destroyed) by the issuing PIA. In case, it is a mistake either by the applicant or a clerical mistake by the issuing PIA, date/place of birth correction may be allowed by issue of fresh booklet without any limitation of time. In case of mistake by the applicant, fee W.P.(C) No. 36778 of 2022 6 for fresh passport to be charged and in case of mistake by the PIA staff, fresh passport to be issued on ‘gratis’ basis [as mentioned in Ministry’s circular No. VI/401/2/5/2001 dated 29/10/2007]. 6.3 If an applicant applies for correction of date of birth in the passport on the basis of a fresh or corrected birth certificate (the original BC was submitted earlier for issue of the first passport), the following procedure be followed: a) In case of furnishing of a new amended BC with the same date of issue and registration number of the old BC by the same authority, application for change in DOB be processed subject to physical verification of the new BC; b) In case of furnishing of a new BC by a different authority in replacement of old BC by another authority, the PIA shall insist on cancellation of the old BC and after physical verification of the cancellation certificate and the fresh BC from issuing authorities, application for change in DOB be processed; c)In case of furnishing of a new BC where the first passport was obtained using other documents like educational school certificates etc., application for change in DOB be processed subject to physical verification of the new BC and other supplementary documents (if required); 6.4 The PIA shall however reject cases where the old birth certificate or other DOB documents used to obtain the first passport, were issued even before the new date of birth claimed by the applicant. (Obviously, the old certificates were in existence before the new DOB of the applicant) 6.5 In case of DOB change applications based on fraudulent documents or /and suppression of material information or/and furnishing of wrong information, the Passport Authorities shall take appropriate steps for imposition of monetary penalty OR filing of criminal case against the offender applicant, as the case may be, in terms of the statutory provision of Section 12 of the Passports Act, 1967. 6.6 In no way, the PIA shall relegate the applicants to obtain a declaratory court order to carry out change in date of birth, as per earlier procedure.” 12. On an appreciation of the said provisions also, we are of the view that the procedure as above is prescribed on specific instances and going by the case projected by the appellant, we do not think that the appellant is entitled to get any benefit out of the same, since the appellant is not having a case that the application was submitted by the appellant based on any new W.P.(C) No. 36778 of 2022 7 or corrected birth certificate issued by the Authority under the Births and Deaths Act. On the other hand, clause 6.4 above makes it clear that the Passport Issuing Authority shall reject the case where the old birth certificate or the other date of birth documents which were used to obtain the first passport, were issued even before the new date of birth claimed by the applicant. As discussed above, the original entry in the birth certificate issued by the statutory authority shows the date of birth of the appellant as 20.12.1965 and therefore, even going by the procedure so prescribed, the appellant is not entitled to get any relief out of the same, since there is no correction of date of birth. Moreover the birth certificate issued by the statutory authority is the conclusive proof of the age and no manner of prejudice is caused to the appellant in that regard especially when the appellant had the advantage of securing any employment from an anterior date abroad by virtue of the date of birth in the passport. 13. So much so, as we have pointed out earlier, there is no challenge to the office memorandums extracted above, wherein peremptory stipulations are prescribed in the matter of entertainment of the application for correction of date of birth. Therefore, in our view, the stand taken by the Passport Issuing Authority, Kollam returning the application to the appellant cannot be said to be illegal or arbitrary, justifying interference by the writ court. A writ court need only endeavour to identify whether there was any gross illegality or arbitrariness on the part of the statutory authority in discharging his function by exercising his power and authority. Taking into account the points raised by the appellant/writ petitioner in the appeal, the office memorandums, and the judgments rendered by this Court discussed above, we are of the opinion that the appellant has not made out any case justifying interference in the judgment of the learned single Judge. 7. The petitioner was issued his first passport on 10.07.1984 with his Date of Birth as 07.12.1962. It is his case that he passed his SSLC in the year 1982, as is evident from Ext.P3. Records also reveal that the petitioner has traveled abroad on numerous occasions and had renewed the passport while in Doha on 20.07.1994, 28.06.2004, and 24.02.2014. Though the W.P.(C) No. 36778 of 2022 8 petitioner was well aware that his Date of Birth was erroneously entered in the passport, he has not taken any steps to correct the same. In view of the law laid down in the Division Bench judgment and the observations therein, I am of the opinion that Ext.P7 does not warrant any interference. The writ petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** ``` Sru ``` W.P.(C) No. 36778 of 2022 9 ## `APPENDIX OF WP(C) 36778/2022` ``` PETITIONER’S EXHIBITS ``` |`ExhibitP1`|`TRUE COPY OF THE PASSPORT OF THE PETITIONER`| |---|---| ||`DATED 24/02/2014.`| |`ExhibitP2`|`TRUE COPY OF THE BIRTH CERTIFICATE ISSUED BY`| ||`THE REGISTRAR OF BIRTH AND DEATH VADANAPPILLY`| ||`GRAMA PANCHAYATH DATED 12/12/2019.`| |`ExhibitP3`|`TRUE COPY OF THE SECONDARY SCHOOL LEAVING`| ||`CERTIFICATE ISSUED DEPARTMENT OF EDUCATION`| ||`KERALA STATE DATED 25/03/1982.`| |`ExhibitP4`|`TUE COPY OF AADHAR CARD ISSUED BY UNIQUE`| ||`IDENTIFICATION AUTHORITY OF INDIA, GOVERNMENT`| ||`OF INDIA.`| |`ExhibitP5`|`TRUE COPY OF APPLICATION FILED BEFORE THE`| ||`REGIONAL PASSPORT OFFICER DATED 17/01/2021.`| |`ExhibitP6`|`TRUE COPY OF THE ORDER OF THE HON'BLE HIGH`| ||`COURT OF KERALA IN WP(C) NO 505/2022 DATED`| ||`03/03/2022.`| |`ExhibitP7`|`TRUE COPY OF THE ORDER IN THE APPLICATION`| ||`FILED BEFORE THE REGIONAL PASSPORT OFFICER`| ||`2ND RESPONDENT DATED 28/02/2022.`| |`ExhibitP8`|`TRUE COPY OF THE ORDER OF THE HON'BLE HIGH`| ||`COURT OF KERALA IN WPC NO 17279/2022 DATED`| ||`30/05/2022.`| |`ExhibitP9`|`TRUE COPY OF THE ORDER IN APPEAL FILED BEFORE`| ||`THE 3RD RESPONDENT DATED 28/09/2022.`| |`RESPONDENTS`|`EXHIBITS : NIL`|