Kusumam Mathew v. Central Board of Secondary Education (CBSE) & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940** ## **WP(C).No. 29398 of 2018** ## **PETITIONER/S:** **KUSUMAM MATHEW AGED 34 YEARS THEKKEDATH MURUKUMOOD, KAYAMKULAM** ## **BY ADV. JOHN K.GEORGE** ## **RESPONDENT/S:** **1 THE CENTRAL BOARD OF SECONDARY EDUCATION REPRESENTED BY ITS SECRETARY, CBSE HEAD OFFICE, SHIKSHA KENDRA,2 COMMUNITY CENTRE, PREET VIHAR, DELHI-110092. 2 THE PRINCIPAL HOLY MARY, RESIDENTIAL CENTRAL SCHOOL, KAKKANAD, KAYAMKULAM, ALAPPUZHA DISTRICT- 690 572. 3 ADDL.R3. THE REGIONAL OFFICER CENTRAL BOARD OF SECONDARY EDUCATION (CBSE), REGIONAL OFFICE, NEW NO.3, J.BLOCK, 16TH MAIN ROAD, ANNA NAGAR (WEST), CHENNAI - 600040. (ADDL.R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED 06.09.2018.)** ## **OTHER PRESENT:** **NIRMAL.S,SC,CBSE FOR R1 AND ADDL.R3** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 29398 of 2018 ================== Dated this the 6[th] day of September, 2018 ## **J U D G M E N T** Prayers in this Writ Petition (Civil) are as follows: - _“i) A writ of certiorari to quash Ext.P-5 decision rendered by the 1[st] respondent._ - _ii) A writ of mandamus directing the 1[st] respondent to reconsider Ext.P-4 representation afresh and to decide it on merits, expeditiously._ - _iii) And to issue any other writ, order or direction this Hon'ble Court deem fit in the nature and circumstances of the case.”_ 2. The petitioner is aggrieved by the impugned Ext.P-5 order dated 2.8.2018, whereby the 3[rd] respondent Regional Officer of the CBSE, Chennai, has rejected the request made by the petitioner for correction the date of birth in Exts.P-1 and P-2 CBSE records so as to be in consonance with the entry in Ext.P-3 statutory birth certificate on the ground that the plea in that regard has been made beyond the time limit prescribed for the same as per the CBSE norms. 3. Heard Sri.John K.George, learned counsel appearing for the petitioner and Sri.Nimal, learned Standing Counsel for the CBSE appearing for R-1 and R-3. In the nature of the order that is proposed to be passed in this petition, notice to R-2 school will stand dispensed with. W.P.(C)29398/18 - : 3 :- 4. According to the petitioner, her date of birth has been correctly entered in Ext.P-3 birth certificate issued under the provisions of the Registration of Births and Deaths Act and the rules framed thereunder, as 20.12.1983 and that said registration was effected on 31.12.1983. However, some mistake was committed while entering the date of birth in the school records, wherein it was wrongly shown as 20.12.1984 and consequently, the said mistake was also reflected in CBSE records like Ext.P-1 pass certificate, Ext.P-2 marklist,etc. On realising the said mistake, the petitioner was advised that necessary steps should be taken up with the respondents so as to ensure correction of the said date of birth in the school records and the CBSE records so as to make it consonance with Ext.P-3 birth certificate and in that regard, Ext.P-4 petition dated 19.6.2018 was submitted by the petitioner. Now the 3[rd] respondent Regional Officer, CBSE, Chennai, has rejected the said request in Ext.P-4 on the ground that the said plea is belated and has been submitted beyond the permitted time limit stipulated as per the CBSE norms for entertaining such submission. It is this order at Ext.P-5 that is under challenge this W.P.(C). 5. From a perusal of Ext.P-3 statutory birth certificate, it is seen that the birth of the petitioner has been registered on 31.12.1983 W.P.(C)29398/18 - : 4 :- and her date of birth has been entered in Ext.P3 as 20.12.1983, whereas the entry regarding the date of birth of the petitioner in Exts.P-1 pass certificate and Ext.P-2 mark list issued by the 3[rd] respondent, CBSE is 20.12.1984. The very fact that the birth of the petitioner has been registered with the statutory Registrar, Births & Deaths on 31.12.1983 showing her date of birth as 20.12.1983 will give _prima facie_ credence and reliability to that, for reasons more than one. If, as a matter of fact, the correct date of birth of the petitioner was 20.4.1984 as shown in Exts.P-1 pass certificate and P-2 marklist, then ordinarily it is not possible that the birth of the petitioner would have been registered on 31.12.1983, which is much prior to 20.4.1984. Moreover, Ext.P-3 is the birth certificate issued under the statutory provisions contained in the Registration of Births & Deaths Act and the Rules framed thereunder and therefore, it also has the force of statutory presumption about its correctness. In the light of these aspects, it is only to be held that the plea made by the petitioner is _bonafide_ . But, what stands in her way is essentially the time period stipulated by the 1[st] respondent CBSE in the matter of entertaining such request for correction and it is common ground that the said period permitted by the CBSE norms is over. 6. The Division Bench of this Court in the decision in _**Subin**_ W.P.(C)29398/18 - : 5 :- _**Mohammed**_ v. _**Union of India**_ , reported in 2016 (1) KLT 340 **,** has also held in para 39 thereof that while considering a petition filed under Article 226 of the Constitution of India seeking correction of date of birth in the CBSE records beyond the time period permitted by that authority, 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_ _41. Hence, to meet the ends of justice, it will be appropriate for this Court to dispose the Writ Petitions with the following directions:_ W.P.(C)29398/18 - : 6 :- _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.”_ 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.”_ 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 correction of date of birth in the CBSE records. 7. Accordingly, taking into account the directions issued by the Division Bench of this Court in _**Subin Mohammed's case**_ supra reported in 2016 (1) KLT 340 as well as the directions issued by W.P.(C)29398/18 - : 7 :- this Court in the judgment dated 29.8.2017 in W.P.(C).No. 20661/ 2017, it is ordered that the matter requires consideration afresh at the hands of the respondents. Accordingly, it is ordered that, for facilitating such remit, the impugned Ext.P5 proceedings will stand set aside. The petitioner may make an application to the respondents, which may be initially submitted to the 2[nd] respondent School authority seeking correction of her date of birth in the school records as well as in the CBSE records so as to be in consonance with Ext.P3 birth certificate. However, the consideration of the said plea will be subject to the condition that the petitioner should pay cost of Rs.5,000/- (Rupees five thousand only) by way of demand draft in favour of the competent authority of the CBSE, Regional Office, Chennai and the demand draft should be paid within two weeks from the date notified for receiving the certified copy of this judgment. The said demand draft should be sent to the 3[rd] respondent along with certified copy of the judgment and also the formal application of the petitioner seeking correction of date of birth in the CBSE records. The petitioner shall produce a photocopy of the said demand draft along with her application to the 2[nd] respondent School seeking correction of date of birth in the school records. Thereupon, the 2[nd] respondent school authority will ensure that the correction is effected W.P.(C)29398/18 - : 8 :- in the school records regarding the date of birth so as to be in consonance with Ext.P-3 birth certificate and thereafter, the intimation in that regard should be forwarded by the Principal of the 2[nd] respondent school to the competent authority of the 3[rd] respondent CBSE, Regional Office, Chennai, upon which the 3[rd] respondent will take necessary steps to ensure that the date of birth of the petitioner as shown in Ext.P-2 mark list and other CBSE records should be corrected so as to be in consonance with the entry in Ext.P3 birth certificate. Steps in that regard should be duly completed by the respondents within two months from the date of receipt of the application along with the demand draft. In case the petitioner does not pay the cost amount by way of demand draft to the 3[rd] respondent within the above said time limit, the above said directions will stand automatically vacated without any further orders from this Court. With these observations and directions, the above Writ Petition (Civil) will stand disposed of. Sd/- sdk+ **ALEXANDER THOMAS, JUDGE** W.P.(C)29398/18 - : 9 :- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE CERTIFICATE OF PASS ISSUED BY THE CBSE.** **EXHIBIT P2** **TRUE COPY OF THE MARKS STATEMENT ISSUED BY THE CBSE TO THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE BIRTH CERTIFICATE DATED 14/05/2018 RECEIVED BY THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION GIVEN TO THE 1ST RESPONDENT DATED 19/06/18.** **EXHIBIT P5** **TRUE COPY OF THE REPLY SENT BY THE 1ST RESPONDENT DATED 2/08/18.**