Muhammad P. v. Regional Passport Officer, Kochi and The Secretary, Ministry of External Affairs

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938** ## **WP(C).No. 36718 of 2016 (L)** **------------------------------------------** **PETITIONER(S) : --------------------------** **MUHAMMAD P., AGED 50 YEARS, S/O. ALAVIKUTTY, POTTANPULAN HOUSE, PANNIYUR ANAKKARA, PALAKKAD, KERALA-679 551.** **BY ADV. SRI.A.C.DEVY** **RESPONDENT(S) :** - **----------------------------** **1. REGIONAL PASSPORT OFFICER, KOCHI, ERNAKULAM DISTRICT, KERALA, PIN-682 036.** **2. THE SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, SOUTH BLOCK, GOVT OF INDIA, NEW DELHI-110 001.** **BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 36718 of 2016 (L)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT OF THE PETITIONER BEARING NUMBER K2026555.** **EXHIBIT P2: TRUE COPY OF THE CERTIFICATE ISSUED BY THE PRINCIPAL D.I.E.T PALAKKAD.** **EXHIBIT P3: TRUE COPY OF THE AADHAAR CARD OF THE PETITIONER.** **EXHIBIT P4: TRUE COPY OF THE PAN CARD OF THE PETITIONER.** **EXHIBIT P5: A TRUE COPY OF THE CIRCULAR DATED 29.10.2007 ISSUED BY THE SECOND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.36718 of 2016 ----------------------------------------------Dated this the 28[th] day of November, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking direction to the 1[st] respondent to accept the application for correction of date of birth in his Passport and consequential direction to correct the entry in respect of the date of birth, taking note of Ext.P2 school records. Material facts for the disposal of the writ petition are as follows: 2. Petitioner is the holder of Indian Passport bearing No.K2026555 dated 23.01.2012, evident from Ext.P1. According to the petitioner, the date of birth of the petitioner is wrongly entered in Ext.P1 Passport as 10.03.1960, instead of 31.05.1966. The Passport was taken by the petitioner with the help of an agent after submitting all required documents. Petitioner did not realize the mistake committed in the entry of his date of birth. Petitioner has secured Ext.P1 Passport for securing a job abroad and is using the same for the purposes in India and abroad. Presently, petitioner is working abroad. Petitioner has submitted his school records along with Passport **W.P.(C) No.36718 of 2016** 2 application stating correct date of birth and the same was not noted by the 1[st] respondent correctly, while issuing the Passport to him. The school records, evident from Ext.P2, shows that the date of birth of the petitioner is 31.05.1966. The date of birth is correctly stated in the Aadhaar Card bearing No. 7391 1331 7461 and also in the PAN card, evident from Exts.P3 and P4. 3. Petitioner has submitted an application before the 1[st] respondent for correcting the date of birth in his Passport, while noting the mistake committed by the Passport authority. The said application for correction was not accepted by the 1[st] respondent, and it is told by them to the petitioner that for effecting correction of date of birth in the Passport, a court order is to be submitted along with the application. According to the petitioner, if the date of birth is not corrected in terms of Ext.P2, his job prospects abroad will be affected and six years will be lost in employment. Therefore, it is contended, the action on the part of the respondents in refusing to accept the application from the petitioner is highhanded and amounts to dereliction of duty cast upon the respondents. It is also stated, as per Ext.P5 circular, the school certificate issued from 3 **W.P.(C) No.36718 of 2016** a statutory body is admissible as sufficient proof of the date of birth. These are the background facts under which the writ petition is filed. 4. Respondents 1 and 2 have filed a joint statement refuting the allegations and claims and demands made by the petitioner. That apart, it is stated, petitioner has secured the present Passport from Consulate General of India, Abu Dhabi in continuation of Passport No. E 1651503, dated 26.04.2002, issued from Regional Passport Office, Kozhikode. The documents produced by the petitioner for securing initial Passport show the date of birth of the applicant as 10.03.1960. Now the applicant seeks to change his date of birth as 31.05.1966. It is also contended, petitioner is holding Passport for more than two decades and hence the petitioner cannot say that he was not aware of the wrong entry in the date of birth. After about 24 years of using the Passport, petitioner has now turned up with his School Certificate with date of birth as 31.05.1966. According to the respondents, if it was a clerical mistake, petitioner could have got it corrected while applying for re-issue during 1992. As the petitioner could not produce the document furnished for obtaining the **W.P.(C) No.36718 of 2016** 4 initial Passport, it is to be presumed that he had obtained the said Passport by defrauding the authorities with fake documents. 5. It is also contended by the respondents, the Regional Passport Office functions under the guidelines of Ministry of External Affairs, who issues instructions from time to time on various aspects affecting the issue of Passports to Indian citizens. As per clause (iii) of para 4 of O.M.No.VI/401/2/5/2001 dated 26.11.2015, the Regional Passport office cannot entertain the petitioner's request for date of birth correction. The Office Memorandum was issued pursuant to the observations made by this Court in W.P.(C) No.9073 of 2015 and a batch of similar cases. There was also a direction to the authorities to introspect on the observations made in the judgment and to make suitable amendments to the earlier Circular regarding date of birth corrections. It was accordingly only, the Ministry issued O.M. dated 26.11.2015, which prohibits Passport Issuing Authorities from entertaining any application for correction of date of birth, if same is requested 5 years after the date of issue of the Passport. Hence the case of the petitioner could not be entertained. **W.P.(C) No.36718 of 2016** 5 6. Apart from the said contentions, various other aspects in respect of the correction of date of birth in the Passport is pointed out by the respondents in international scenario as well as in the national scenario, and the problems and difficulties faced consequent to making such applications with huge delay. It is also contended by the respondents that, if the petitioner had the proof of S.S.L.C book at the time of taking the Passport initially, the mistake would not have occurred, which thus means, petitioner had used some fake documents to secure Passport at that point of time. That apart, it is stated, any application for correction of date of birth carried in the Passport after issuance can be considered only in terms of the modification made to the aforesaid O.M. dated 22.09.2016, and no relaxation in the policy decision taken by the Central Government is warranted in the aforesaid facts and circumstances. Therefore, respondents submitted that petitioner has not made out any case warranting interference of this Court. 7. Heard learned counsel for the petitioner and the learned Assistant Solicitor General, and perused the documents on record and the pleadings put forth by the 6 **W.P.(C) No.36718 of 2016** petitioner. 8. Learned counsel for the petitioner reiterated the contentions raised in the writ petition. Learned ASGI invited my attention to the judgment rendered by this Court in ' _**Jayakumar v. Regional Passport Officer**_ ' [2015 (3) KLT 158]. On an evaluation of the fact situations in the aforesaid judgment, what I could understand is that similar facts and circumstances were existing there, and in paragraphs 11 and 12, it was observed as follows: _“11. At the outset, it is to be noticed that all the petitioners were holding the said Passports for more than twenty years. Despite a specific query as to the date on which the Passport was originally issued, all the petitioners feigned ignorance. Neither is a date referred to in the Writ Petitions. The P.I.A., of course, would not maintain their records for so many years, especially since all the petitioners have in the past twenty years regularly renewed the Passports. There is absolutely no reason as to why the petitioners did not seek for a correction at an earlier point of time, in all these years. The petitioners do not have a case that they had declared a different date of birth at the time of issuance on the basis of any specific document; but assert a mistake often alleged on the agent._ **W.P.(C) No.36718 of 2016** 7 _12. The date of birth as disclosed in the valid Passport held now, undoubtedly is the date of birth declared at the time of issuance. The petitioners were holding the said Passports for very number of years and as stated earlier, had been regularly using the same. At no point in the past very many years did the petitioners claim for a correction before the PIA; not even at the time of renewal. The petitioners are dis-entitled to make such a claim, differing substantially from the declaration made earlier for reason only of their having accepted and acquiesced to the date of birth as disclosed in the valid Passport now held by them, which had been used by them in their travels and residence abroad. The documents now referred to by them being Secondary School Leaving Certificate, etc., were also available with them at the time of issuance of the said Passports and no reason is stated as to the presumably false declaration made”._ 9. After evaluating the entire fact situations, the writ petition was dismissed. So also, learned ASGI has invited my attention to the judgment in ' _**Rojo George v. Union of India and others'**_ [W.P.(C) No.599 of 2016], wherein also this Court had occasion to consider almost a similar issue. According to the learned ASGI, it was based on the directives issued by this Court alone, the O.M. aforesaid was amended by incorporating necessary directives so as to entertain the 8 **W.P.(C) No.36718 of 2016** applications. 10. Taking note of the respective submissions made across the Bar, the question to be considered is whether the relief sought for by the petitioner is allowable under law. The judgment in ' _**Jayakumar**_ ' _supra_ was rendered on 23.06.2015. True, it was with respect to the same circular. However, after the said judgment, and after the judgment of ' _**Rojo George**_ ' made mention of _supra_ , dated 09.03.2016, the notification was modified as per the order of the Ministry of External Affairs dated 22.09.2016, wherein, as per clause 2(i), it is stated as follows: “The Passport Issuing Authority shall consider the explanation of each applicant seeking change in the Date of Birth to find the genuineness of the claim even though more than five years have elapsed after the issue of the passport”. Sub-clause (ii) thereunder reads as follows: “The PIA need not entertain any application in a routine manner for correction of DOB unless such application is filed along with a genuine explanation explaining the delay in approaching Passport Issuing Authority. If such an application is filed, the Issuing Authority shall consider the same and take appropriate decision as per the instructions contained in the circulars dated 9 **W.P.(C) No.36718 of 2016** 26.11.2015 and 13.01.2016”. 11. Therefore, on a totality of the circumstances, it can be seen that, as per the amendment carried out to the notification dated 22.09.2016, the Issuing Authority is entitled to entertain applications and consider the genuineness of the claim. In that view of the matter, I think the 1[st] respondent is bound to receive the application from the petitioner and consider the same in accordance with law. 12. Therefore, there will be a direction to the 1[st] respondent to receive application from the petitioner along with an explanation for the delay occurred in submitting the application for correction of date of birth and other aspects and consider the same in accordance with law, at the earliest and at any rate, within a month from the date of receipt of a copy of this judgment. I make it clear, I have not expressed any opinion on the merits of the matter. The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/29.11.2016