High Court
Case Details
WP(C) 695/2011 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL)
Legal Reasoning
Heard Mr. B.C. Pathak, learned counsel for the petitioner. Also heard Mr. T.C. C hutia, learned Standing Counsel, SEBA. 2. By means of this writ petition, the petitioner has prayed for a directio n to the respondents to correct his date of birth recorded in the HSLC certifica te as 28.11.1986 instead of 1.1.1985. The petitioner has also challenged the com munication dated 12.6.2009 (Annexure-J) made to the father of the petitioner by the Assistant Controller of Examination, SEBA conveying the decision not to cons ider the request for change of date of birth on the ground of being time barred. 3. The petitioner was a student of Chhaygaon H.S. School, from which he app eared in the HSLC examination in 2001 and passed the same securing second divisi on. In the HSLC certificate dated 19.6.2001, his date of birth was recorded as 1 .1.1985. Referring to the Annexure-C, D and E documents, it is the case of the p etitioner that he was born on 28.11.1986 and accordingly his date of birth could not have shown as 1.1.1985 in the HSLC certificate. It is the further case of t he petitioner that because of clerical mistake, date of birth of the petitioner was wrongly recorded in the HSLC certificate as 1.1.1985 instead of 28.11.1986. The father of the petitioner had made a representation to the SEBA and the autho rity in the SEBA vide its Annexure-F letter dated 12.8.2004 informed the father of the petitioner that his application could not be considered on the following grounds: 1. 2. 3. 4. By the said communication, the applicant was required to meet the objections on or before 25.8.2004. Proposal should come through the H.O.I. Proposal should be counter signed by the I/S concerned. Original documents to be submitted. Admission register to be submitted.
Decision
4. The petitioner could not meet the objections. As per the averments made in paragraph-5 of the writ petition, the Headmaster of the school did not entert ain the request made by the applicant and consequently could not meet the object ions raised by the SEBA. Four years thereafter, the petitioner once again approa ched the SEBA authority vide Annexure-H representation dated 10.9.2008 and the a pplication having been rejected on the ground of time barred vide the Annexure-J communication dated 12.6.2009, the petitioner has approached this Court by fili ng the instant writ petition. 5. In the counter affidavit filed by the respondents NO. 2 and 3, it has be en stated that since the petitioner did not follow the information as was commun icated vide the aforesaid letter dated 12.8.2004, nothing could be done in the m atter and thereafter when the petitioner once again approached in 2008, the same could not be entertained being time barred. Referring to the rules holding the field, it has been contended that any request for correction of date of birth sh ould be within three years from the date of commencement of the HSLC examination . 6. Mr. Chutia, learned Standing Counsel, SEBA has also drawn my attention t o the regulation for conducting of Boards examination approved by Board in its m eeting held on 5.10.1993, in terms of which, no candidate shall be allowed to ap pear in the HSLC examination of the Board as regular candidate unless he has com pleted 15 years of age on the 1st day of March of the year of examination. He su bmits that if the request of the petitioner is accepted, in that case, he would have been ineligible to appear in the HSLC examination, in which, he appeared in the year 2001 being under aged. 7. Mr. Pathak, learned counsel for the petitioner on the other hand submits that if any mistake was there due to clerical errors, the same should be correc ted instead of rejecting the same on technicalities. He also submits that becaus e of the mistake, even if any, committed by the parents of the petitioner, the p etitioner himself shall not be made to suffer. In this connection, he has referr ed the decision of the then Bombay High Court reported in 1988 (2) Bom CR 146 (A parna Vs. Shivaji University & Ors.). 8. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and have also considered the entire materials on re cord. 9. If we go by the aforesaid regulation of the SEBA, a candidate is not eli gible to appear in the HSLC examination unless he/she has completed 15 years of age on the 1st of March of the year of examination. If the date of birth of the petitioner as claimed by him is taken to be 28.11.1986 then he would have been 1 4 years 3 months 3 days on the date of HSLC examination held in 2001. However, i f his date of birth is taken into account as 1.1.1985, he was eligible to appear in the HSLC examination held in March, 2001. Normally, the date of birth is recorded in the HSLC certificate on the b 10. asis of school documents/entries. If in the admission register, a particular dat e of birth was recorded and the same was forwarded to the SEBA authority at the time filling up form etc. for the HLSC 2001 examination, the SEBA authority was guided by such entries and it was on that basis, the date of birth of the petiti oner was recorded in the HSLC certificate dated 19.6.2001. 11. Above apart, when the petitioner’s father was requested to meet the requ irements by letter dated 12.8.2004 (Annexure-F) on or before 25.8.2004, it was i ncumbent on his part to do the needful, but instead he kept on waiting for long 4 years and thereafter once again approached the SEBA authority vide the Annexur e-H representation dated 10.9.2008, by which time, the request was time barred. In terms of the notification dated 29.9.1975 followed by notification dated 26.1 2.1990 any request for change of date of birth is to be made within three years of commencement of HSLC examination. This provision has been upheld by the Apex Court in Board of Secondary Education of Assam Vs. Md. Sarifuz Zaman & Ors. repo rted in (2003) 12 SCC 408. In State of U.P. Vs. Shiv Narain Upadhyaya reported i n (2005) 6 SCC 49, it has been held by the Apex Court that date of birth as reco rded in service book should be decisive and the correction thereof can be sought only in accordance with procedure prescribed and within the time limit fixed un der the rules. 12. From the above, what has transpired is that the petitioner is not entitl ed to get correction of date of birth on two counts. Firstly, if the date of bir th as has been claimed in the writ petition i.e. 28.11.1986 is accepted then he was ineligible to appear in the HSLC examination, 2001 being under aged. Secondl y, the claim made was also time barred inasmuch as after initial approach in 200 4 and failing to meet the requirements, the petitioner’s father once again appro ached the SEBA authority only in 2008, by which time, the claim was time barred as per the aforesaid provision upheld by the Apex Court. 13. The decision on which Mr. Pathak, learned counsel for the petitioner has placed reliance has no application to the fact situation of the instant case. F urther a decision is an authority for what it actually decides and the ratio of a decision will have to be understood in the back ground of fact situation of ea ch case. In the said case, the applicant was 17 years of age on 31.12.1985 and t hus was eligible for appearing in the 1st year BHM&S examination. Partly on acco unt of negligence and partly on account of absence of astuteness on the part of her parents, her date of birth in the school register was shown to be 1.6.1969 w ith the resultant effect of lowering her age less than 17 years on 13.12.1985 de claring her ineligible to appear in the particular examination. It was in such c ircumstances, correction of date of birth was allowed. 14. ion and accordingly, it is dismissed, without, however, any order as to costs. For all the aforesaid reasons, I do not find any merit in the writ petit