The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C ) NO.19503 of 2022 Mitrabhanu Panda …. Petitioner Mr. S. K. Mohanty, Adv. -versus- A. State of Odisha & … Opp. Parties Others Mr. S.S. Rao, Sr. Counsel with Mr. A. Mishra, Adv. (for Opp. Party Nos.2 to 4) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
Order No ORDER 05.03.2024 9. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order dt.02.05.2022 so passed by Opp. Party No.3 under Annexure-1. Vide the said order, claim of the Petitioner for change of his Date of Birth as recorded in the HSC pass certificate so issued by the Board of Secondary Education, Odisha (in short <Board=) under Annexure-2 was rejected only on the ground that the claim made by the Petitioner is not within the period of limitation as prescribed under Regulation 39 of the Board of Secondary Education Regulation. 4. Learned counsel appearing for the Petitioner contended that even though in the certificate of Birth issued by the competent authority, the date of birth of the Petitioner is reflected as 09.09.1999, but in the School Admission Register, it was wrongly recorded as 09.09.1997 which only came to the knowledge of the Petitioner after getting the certificate issued by the Board under Annexure- 2 on 30.04.2013. Petitioner immediately thereafter moved the authority seeking correction of his date of birth. When the same was not considered, Petitioner approached this Court in W.P.(C ) No.41019 of 2021. This Court vide order dt.09.02.2022 when directed the Board to consider the claim of the Petitioner with regard to change of his date of birth, the same was rejected vide the impugned order dt.02.05.2022 under Annexure-1 only on the ground that it is barred by time, in view of the Regulation prescribed by the Board. 4.1. Learned counsel appearing for the petitioner contended that since the claim of the petitioner is a genuine one, in view of date of birth so recorded in the certificate of birth under Annexure-3, claim of the Petitioner could not have been rejected on the ground indicated in Annexure-1 in view of the decision of the Hon’ble Apex Court in the case of Jigya Yadav Vs. Central Board of Secondary Education and Others, reported in (2021) 7 SCC 535. Hon’ble Apex Court in Para-192 to 194 of the said judgment has held as follows. 192. Although we have discussed the broad issues canvassed before us, in the ultimate analysis the real is about the nature of dispute requiring resolution correction or change, as the case may be, permissible to be carried by the CBSE at the instance of the student including past student. As noted earlier, broadly, two situations would arise. 193. The first is where the incumbent wants <correction= in the certificate issued by the CBSE to be made consistent with the particulars mentioned in the school records. 193.1.As we have held there is no reason for the CBSE to turn down such request or attach any precondition except reasonable period of limitation and keeping in mind the period for which the CBSE has to maintain its record under the extant regulations. While doing so, it can certainly insist for compliance of other conditions by the incumbent, such as, to file sworn affidavit making necessary declaration and to indemnify the CBSE from any claim against it by third party because of such correction. The CBSE would be justified in insisting for surrender/return of the original certificate (or duplicate original certificate, as the case may be) issued by it for Page 2 of 5 out necessary corrections replacing it with the fresh certificate to be issued after carrying with caption/annotation against the changes carried out and the date of such correction. It may retain the original entries as it is except in respect of correction of name effected in exercise of right to be forgotten. The fresh certificate may also contain disclaimer that the CBSE cannot be held responsible for the genuineness of the school records produced by the incumbent in support of the request to record correction in the original CBSE certificate. The CBSE can also insist for reasonable prescribed fees to be paid by the incumbent in lieu of administrative expenses for issuing fresh certificate. At the same time, the CBSE cannot impose precondition of applying for correction consistent with the school records only before publication of results. Such a condition, as we have held, would be unreasonable and excessive. We repeat that if the application for recording correction is based on the school records as it obtained at the time of publication of results and issue of certificate by the CBSE, it will be open to CBSE to provide for reasonable limitation period within which recording correction in certificate issued by it may be entertained by it. However, if the request for recording change is based on changed school records post the publication of results and issue of certificate by the CBSE, the candidate would be entitled to apply for recording such a change within the reasonable limitation period prescribed by the CBSE. In this situation, the candidate cannot claim that she had no knowledge about the change recorded in the school records because such a change would occur obviously at her instance. If she makes such application for correction of the school records, she is expected to apply to the CBSE immediately after the school records are modified and which ought to be done within a reasonable time. the application for In 193.2 Indeed, it would be open to the CBSE to reject the application in the event the period for preservation of official records under the extant regulations had expired and no record of the candidate concerned is traceable or can be reconstructed. the case of subsequent amendment of school records, that may occur due to different reasons including because of choice exercised by the candidate regarding change of name. To put it differently, request for recording of correction in the certificate issued by the CBSE to bring it in line with the school records of the incumbent need not be limited to application made prior to publication of examination results of the CBSE. 194. As regards request for <change= of particulars in the certificate issued by the CBSE, it presupposes that the particulars intended to be recorded in the CBSE certificate are not consistent with the school records. Such a request could be made in two different situations. The first is on the basis of public documents like Birth Certificate, Aadhaar Card/Election Card, etc. and to incorporate change in the CBSE certificate consistent therewith. The second possibility is when the request for change is due to the acquired name by choice at a later point of time. That change need not be backed by public documents pertaining to the candidate. 194.1 Reverting to the first category, as noted earlier, there is a legal presumption in relation to the public documents as envisaged in the 1872 Act. Such public documents, therefore, cannot be ignored by the CBSE. Taking note of those documents, the CBSE may entertain the request for recording change in the certificate issued by it. This, however, need not be unconditional, but Page 3 of 5 subject to certain reasonable conditions to be fulfilled by the applicant as may be prescribed by the CBSE, such as, of furnishing sworn affidavit containing declaration and to indemnify the CBSE and upon payment of prescribed fees in lieu of administrative expenses. The CBSE may also insist for issuing Public Notice and publication in the Official Gazette before recording the change in the fresh certificate to be issued by it upon surrender/return of the original certificate (or duplicate original certificate, as the case may be) by the applicant. The fresh certificate may contain disclaimer and caption/annotation against the original entry (except in respect of change of name effected in exercise of right to be forgotten) indicating the date on which change has been recorded and the basis thereof. In other words, the fresh certificate may retain original particulars while recording the change along with caption/annotation referred to above (except in respect of change of name effected in exercise of right to be forgotten). the Official Gazette 194.2 However, in the latter situation where the change is to be effected on the basis of new acquired name without any supporting school record or public document, that request may be entertained upon insisting for prior permission/declaration by a Court of law in that regard including and publication in surrender/return of original certificate (or duplicate original certificate, as the case may be) issued by CBSE and upon payment of prescribed fees. The fresh certificate as in other situations referred to above, retain the original entry (except in respect of change of name effected in exercise of insert caption/annotation indicating the date on which it has been recorded and other details including disclaimer of CBSE. This is so because the CBSE is not required to adjudicate nor has the the mechanism correctness of the claim of the applicant.= forgotten) and to verify to be right to 5. Mr. Mishra, learned counsel appearing on behalf of Mr. Rao for Opp. Party Nos.2 to 4 on the other hand contended that since the certificate under Annexure-2 was issued in favour of the Petitioner in the year 2013 and he made the claim only in the year 2021 by making the application under Annexure-4, in view of the provisions contained under Regulation 39 of the Boards’ Regulation, the same is not entertainable. Accordingly, placing reliance on the Regulation, claim of the Petitioner was rejected vide Annexure-1. It is contended that if the date of birth of the Petitioner will be taken as 09.09.1999, Petitioner at the age of 14 years could not have been permitted to appear the Annual H.S.C Examination, 2013. It is accordingly contended that no illegality or irregularity has been committed by Opp. Party No.3 in rejecting the Page 4 of 5 claim of the Petitioner in terms of the order passed by this Court in the earlier Writ Petition on 02.05.2022 under Annexure-1. 6. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that in the certificate of birth issued in favour of Petitioner under Annexure-3, the date of birth of the Petitioner was recorded as 09.09.1999. But in the HSC pass certificate issued in favour of the Petitioner under Annexure-2, the date of birth has been recorded as 09.09.1997. It is found that the discrepancy is only with regard to the year of birth. Placing reliance on the decision in the case of Jigya Yadav and the date of birth recorded in the certificate of birth issued under Annexure-3, this Court is of the view that the claim of the Petitioner comes under the category of <Exceptional Circumstances= as enumerated in the decision of the Hon’ble Apex Court as cited (supra). In view of the same, claim of the Petitioner could not have been rejected on the ground of delay. 6.1. Therefore, this Court is inclined to quash the order dt.02.05.2022 so issued under Annexure-1. While quashing the same, this Court directs Opp. Party No.3 to issue a fresh HSC pass certificate by recording the Date of Birth of the Petitioner as 09.09.1999 within a period of four (4) weeks from the date of receipt of this order. The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 11-Mar-2024 11:35:28 Page 5 of 5