Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(Guj) 34

2008 (3) GCD 1888 (Guj)
Hon’ble Mr. Justice C.K. Buch
Misrikhan Dilavarkhan Pathan [Mehsana]
Versus
State of Gujrat Thro’ The Secretary & Ors.
Special Civil Application No. 12386 of 2007—Decided on 04-05/02/2008

Advocates Appeared:
Mr. R.J. Goswami, for the Petitioner No. 1.
Mr. Satyam Chhaya, Asst. Goverment Pleader, for the Respondent Nos. 1-3.
Rule Served by DS, for the Respondent No. 4.

Important Point :
Whether petition for correction of date of birth in School Leaving Certificate is maintainable?

Headnote:Registeration of Birth and Death Act, 1969 — Sections 13(3), 14, 15 and 30 — Gujarat Secondary Education Regulation, 1974 — Regulation 12(A)(6) —Gujarat Secondary Education Act, 1972 — Section 54 — Constitution of India, 1950 — Article 226 — Date of birth — School Leaving Certificate correction therein — On basis of original birth certificate — Scope of — In the case petitioner on direction of the Court approach Judicial Magistrate First Class (JMFC) for correction of his date of birth in School Register but same was rejected by JMFC holding that he has no jurisdiction to do so under Provision of Regulations, 1974 — Court observed that in the present case there was no dispute as to the genuineness of the date of birth in view of original certificate issued by Local Self Government, therefore on production of original certificate the JMFC ought to have complied with the direction given by Court or at least ought to have observed that there is no need to issue a formal direction — However, JMFC took a technical view and rejected the application — In fact in view of original certificate issued to petitioners by Local Self Government, there was no controversy to be decided by JMFC and he rightly refused to exercise its jurisdiction. The petitioner was, therefore, left with only remedy to seek relief through petition to the Court — Having considered the submissions advanced at Bar and the documents submitted with petition alongwith affidavit allowed the present petition with appropriate direction to concerned authorities for needful.
       Held :
       In the present case, there is no controversy before the Judicial Magistrate, First Class and 4th Additional Senior Judge, Patan qua the details mentioned in the birth certificate issued to the present petitioner. Therefore, the Judicial Magistrate, First Class and 4th Additional Senior Judge, Patan is not inclined to exercise its jurisdiction and on the strength of the observations made by the Letters Patent Bench, the Magistrate has rightly not exercised its jurisdiction in the present matter in absence of modalities and procedure provided under a statute or rules framed thereunder. [Para 14]
       The Gujarat Secondary Education Regulations, 1974 is in the form of guidelines framed under the Gujarat Secondary Education Act, 1972 exercising powers under Section 54 of the said Act. It appears that Advocates appearing in the Letters Patent Appeal had not assisted the Division Bench properly while putting the entire legal situation before the Letters Patent Bench, otherwise it was possible to make a detailed submission that in absence of any legal resolution in the relevant Regulations an aggrieved person can be sent to Civil Court for proper declaration and the High Court also can in exercise of powers vested with the Court under Article 226 of the Constitution of India which helps the petitioner. [Para 15]
       To avoid such inconsistency and conflict inter se, it would be in the fitness of thing that register of the primary school where the student was admitted for the first time is also to be corrected and it is not impossible for the State Government to decide the modalities and to resolve such inconsistency because it is the experience of the society that various authorities on different occasions demands both the certificates viz., the original birth certificate, as well as, one of the School Leaving Certificates where the student has studied, because such certificates contain relevant details of an individual. [Para 17.2]
       Petition Allowed

Judgment

C.K. Buch, J.—Leave to amend the relief clause, more particularly, the date of birth from 29.03.1983 to 29.02.1983, reflected in prayer Clause 12 (A) .

Necessary amendment shall be carried out forthwith.

2. The petitioner-Misrikhan Dilavarkhan Pathan has prayed for appropriate writ, order or direction to direct the respondents and more particularly to direct the Respondent No. 4 to issue School Leaving Certificate stating correct date of birth as 18.08.1982 instead of 29.02.1983.

3. It is submitted by the petitioner that when he was admitted in the primary school for the first time, somebody who had been to the school, mentioned the incorrect date of birth and the place of birth. The petitioner was born on 18.08.1992 at Bhartiya Arogyanidhi Hospital, Gorsheri, Patan, but as per the School Leaving Certificate, the date of birth is shown to be 29.02.1983 and the birth place is shown as village Dasaj of Tal. Siddhpur.

4. The birth date certificate of the petitioner is produced at Annexure-A and as such there is no controversy qua the contents mentioned in the birth date certificate issued by the Sub-Registrar, Birth and Death Registration, Patan Nagarpalika. It is relevant to note that the birth date certificate of the petitioner was issued on 20.08.1982, the date on which the birth of the petitioner was registered. So, it is possible to observe that there is no dispute as to the genuineness of the certificate and contents thereof.

4.1. The petitioner has attempted to see that his birth date in the school leaving register get corrected by the competent authority, but the date on which the petitioner approached the competent authority, he was not student. Not only that but the competent authority had entered the date of birth on the strength of the School Leaving Certificate issued by the school in which the petitioner was lastly studying. It is the say of the petitioner that difference as to the date of birth in the original birth certificate and School Leaving Certificate may result into serious prejudice and inconvenience to him and therefore he had approached the competent authority with the original birth certificate to see that competent authority gets correct mainly the date of birth in the school register.

4.2. As the petitioner could not succeed, the petitioner has approached this Court by filing a writ petition being Special Civil Application No. 6381 of 2004 invoking writ jurisdication of this Court under Article 226 of the Constitution of India. The Court after hearing the learned Advocate for the petitioner and learned Asst. Government Pleader for the respondent-State of Gujarat relegated the petitioner to approach the learned Judicial Magistrate First Class in view of the observations made by this Court while deciding Letters Patent Appeal No. 699 of 2003 filed by Minor Jagdishbhai Prabhatbhai Gohil through Father and Guardian on 11.08.2003.

5. This Court (Coram: K.S. Jhaveri, J.) while rejecting the earlier petition filed by the present petitioner being Special Civil Application No. 6381 of 2004 decided on 08.10.2004 ordered that in view of the above facts and circumstances, the appropriate remedy for the petitioner is to approach the Judicial Magistrate, First Class, for redressal of his grievance and this direction was given in the background of Paragraph 4 of the decision delivered by the Letters Patent Bench. The said Paragraph No. 4 is reproduced as under :

4. We have considered the submissions advanced at the Bar and the documents forming part of the petition. We have also heard Mr. M.R. Mengde, learned Assistant Government Pleader appearing for the respondents. From the record of the case, it is evident that the son of appellant has left Secondary School after passing examination of Standard 10. Therefore, in view of Regulation 12-A Gujarat Secondary Education Regulations, 1974 school record could not have been corrected after the son of appellant had left the school. The only remedy of the applicant

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2008 Supreme(Guj) 34

2008 (3) GCD 1888 (Guj)Hon’ble Mr. Justice C.K. BuchMisrikhan Dilavarkhan Pathan [Mehsana] VersusState of Gujrat Thro’ The Secretary & Ors.Special Civil Application No. 12386 of 2007—Decided on 04-05/02/2008

Important Point :Whether petition for correction of date of birth in School Leaving Certificate is maintainable?

2008 (3) GCD 1888 (Guj)
Hon’ble Mr. Justice C.K. Buch
Misrikhan Dilavarkhan Pathan [Mehsana]
Versus
State of Gujrat Thro’ The Secretary & Ors.
Special Civil Application No. 12386 of 2007—Decided on 04-05/02/2008

Important Point :
Whether petition for correction of date of birth in School Leaving Certificate is maintainable?