Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3905 OF 2011
JIGYA YADAV (MINOR)
(THROUGH GUARDIAN/FATHER
HARI SINGH) ...APPELLANT
Versus
C.B.S.E. (CENTRAL BOARD OF
SECONDARY EDUCATION) & ORS. ...RESPONDENT(S)
with
CIVIL APPEAL NO. 3572 OF 2019
CIVIL APPEAL NO(S). 1822/2021
(ARISING OUT OF S.L.P. (C) NO(S). 7381 OF 2021)
(@ DIARY NO. 9445 of 2020)
CIVIL APPEAL NO(S). 1823/ 2021
(ARISING OUT OF S.L.P. (C) NO(S). 7382 OF 2021)
(@ DIARY NO. 9482 of 2020)
CIVIL APPEAL NO(S). 1824/ 2021
(ARISING OUT OF S.L.P. (C) NO(S). 7383 OF 2021)
(@ DIARY NO. 14737 of 2020)
Signature Not Verified
CIVIL APPEAL NO(S). 1825/ 2021
(ARISING OUT OF S.L.P. (C) NO(S). 7384 OF 2021)
Digitally signed by
DEEPAK SINGH
Date: 2021.06.03
14:11:43 IST
Reason:
(@ DIARY NO. 16291 of 2020)
1
CIVIL APPEAL NO. 1826/2021
(ARISING OUT OF S.L.P. (C) NO. 10927 OF 2020)
CIVIL APPEAL NO. 1827/2021
(ARISING OUT OF S.L.P. (C) NO. 10948 OF 2020)
CIVIL APPEAL NO(S). 1828/2021
(ARISING OUT OF S.L.P. (C) NO(S). 7385 OF 2021)
(@ DIARY NO. 18711 of 2020)
CIVIL APPEAL NO. 1829/2021
(ARISING OUT OF S.L.P. (C) NO. 10959 OF 2020)
CIVIL APPEAL NO. 1830/ 2021
(ARISING OUT OF S.L.P. (C) NO. 10801 OF 2020)
CIVIL APPEAL NO. 1831/ 2021
(ARISING OUT OF S.L.P. (C) NO. 10795 OF 2020)
CIVIL APPEAL NO. 1832/2021
(ARISING OUT OF S.L.P. (C) NO. 10796 OF 2020)
CIVIL APPEAL NO(S). 1833/2021
(ARISING OUT OF S.L.P. (C) NO(S). 7386 OF 2021
(@ DIARY NO. 19181 of 2020)
CIVIL APPEAL NO. 1834/ 2021
(ARISING OUT OF S.L.P. (C) NO. 11320 OF 2020)
CIVIL APPEAL NO. 1835/ 2021
(ARISING OUT OF S.L.P. (C) NO. 11558 OF 2020)
CIVIL APPEAL NO(S). 1836/ 2021
(ARISING OUT OF S.L.P. (C) NO(S). 7387 OF 2021)
(@ DIARY NO. 21923 of 2020)
2
CIVIL APPEAL NO(S). 1837/2021
(ARISING OUT OF S.L.P. (C) NO(S). 7388 OF 2021)
(@ DIARY NO. 25053 of 2020)
CIVIL APPEAL NO. 1838/2021
(ARISING OUT OF S.L.P. (C) NO. 15089 OF 2020)
CIVIL APPEAL NO. 1839/ 2021
(ARISING OUT OF S.L.P. (C) NO. 15124 OF 2020)
CIVIL APPEAL NO. 1840/2021
(ARISING OUT OF S.L.P. (C) NO. 15625 OF 2020)
AND
T.P. (C) NOS. 11391140 OF 2020
J U D G M E N T
A.M. Khanwilkar, J.
1. “ What's in a name? that which we call a rose by any other
name would smell as sweet ”, said Juliet. This quote from William
Shakespeare’s “Romeo and Juliet” is unarguably one of the most
iconic dialogues in classical literature. It conveys that the natural
characteristics of an individual are more important than his/her
artificial/acquired characteristics. A poetic statement as it certainly
is, it does not go in tune with the significance of a name in marking
3
the identity of an individual in his/her societal transactions. To put
it differently, name is an intrinsic element of identity.
2. The seminal issue in these cases is: whether an individual’s
control over such cardinal element of identity could be denied to
1
him/her by the Central Board of Secondary Education on the
2
specious ground that its Examination Byelaws of 2007 must
prevail over the claim of the candidate, which are merely intended
to regulate such a claim and to delineate the procedure for
correction/change in the contents of certificate(s) issued by it
including regarding maintenance of its office records?
3. The CBSE Examination Byelaws restrict, both qualitatively
and quantitatively, the corrections/changes that can be carried out
in the certificates issued by the Board. Various students with need
based requests approached different High Courts resulting into
inconsistent outcomes leading up to this batch of appeals. Apart
from the fact that the judgments have produced conflicting
outcomes, the petitions raise some peculiar questions on the
1 for short, “CBSE” or “Board”, as the case may be
2 for short, “Byelaws”
4
constitutional validity of CBSE Examination Byelaws (as amended
from time to time) and interpretation thereof.
4. The present case involves a batch of 22 petitions wherein
questions relating to correction/change in name/surname/date of
birth of candidates or their parents in the certificates issued by the
Board have been raised.
5. In order to identify the precise scope of challenge, we may now
delineate the factual matrix in individual petitions.
CIVIL APPEAL NO. 3905 OF 2011
6. The appellant in this case, Ms. Jigya Yadav, has assailed the
decision of the High Court of Delhi, dated 20.12.2010 in W.P. (C)
No. 3774/2010, wherein the High Court rejected the prayer for
direction to the Board to carry out correction of her parents’ name
in the marksheets issued by it. The appellant’s case was that the
name of her parents was incorrectly recorded as “Hari Singh Yadav”
instead of “Hari Singh” (as recorded in the identity documents of
father) and “Mamta Yadav” instead of “Mamta” (as recorded in the
5
identity documents of mother). Relying upon Byelaw 69.1 of the
CBSE Examination Byelaws, 2007, the High Court affirmed the
decision of the Board in refusing the desired corrections/changes.
The Court relied upon the nursery application form, school
admission form and stream allotment form for class XI filled by the
parents of the appellant to conclude that the errors were not
inadvertent, and they had consciously chosen and retained the said
th
names despite having opportunity to rectify before the X standard.
It observed thus:
“15. From the aforesaid, it is apparent that despite the
parents of the petitioner having mentioned their names as
“Hari Singh” and “Mamta” in the petitioner’s birth certificate,
they have consciously and consistently chosen to record their
names as “Hari Singh Yadav” and “Mamta Yadav” in the
school record. Consequently, we are of the opinion that this
Court in the present petition should not deal with the
challenge of constitutional validity as it is the petitioner’s
parents who are at fault and the error, if any, has been
repeated on a number of occasions by the petitioner’s parents
themselves. In fact, we are of the view that for the fault of the
petitioner’s parents, the impugned Byelaw of the respondent
no. 1 cannot be set aside ...”
The Court, however, made an avoidable observation that in a
country with castebased reservations, changes in name cannot be
permitted readily. It noted thus:
“17. We are also of the view that in a country where there is
reservation on caste and religious grounds, change of names
6
of parents or ward’s name cannot be allowed at the drop of
the hat.”
The Court then observed that Byelaw 69.1 permits CBSE to carry
out corrections only to the extent of bringing the record in
conformity with the school record. In paragraph 21, the Court
noted thus:
“21. Even if one were to apply the aforesaid test one finds that
the respondent no. 1 essentially records what has been
mentioned in the school records consistently and that too,
upto Class X, that means, for more than 10 years the child
and/or her parents have the liberty to rectify the record.
Consequently, we are of the opinion that the impugned Bye
law is perfectly reasonable.”
While concluding, the Court observed that the Courts must be wary
of interfering in academic matters and should refrain from giving an
expansive interpretation to statutory rules/byelaws as it may
render the system unworkable. It noted in paragraph 22:
“22. Moreover, we are of the view that the Court should be
extremely reluctant to substitute its own views as to what is
wise, prudent and proper in relation to academic matters in
preference to those formulated by professional men
possessing technical expertise and rich experience of actual
daytoday working of educational institutions and the
departments controlling them. It will be wholly wrong for the
Court to take a pedantic and purely idealistic approach to the
problems of this nature, isolated from the actual realities and
grass root problems involved in the working of the system and
unmindful of the consequences which would emanate if a
purely idealistic view as opposed to a pragmatic one were to
be propounded. It is equally important that the Court should
also, as far as possible, avoid any decision or interpretation of
7
a statutory provision, rule or byelaw which would bring about
the result of rendering the system unworkable in practice – as
contended by the respondent no. 1 in its counter affidavit.”
7. Assailing the decision, the appellant contends that Byelaw
69.1 (after 2007 amendment) is invalid as being unreasonable and
arbitrary, thereby violative of Article 14 of the Constitution, as it
puts a blanket embargo on corrections other than those which are
necessary for bringing the documents in conformity with the school
record. It is contended that the amended byelaw does not address
the possibility of error in the school record itself, and leaves the
student with no opportunity to correct the error committed by the
parents in the school records. To buttress this submission, the
appellant has submitted that the resultant hardship caused to her
is infringement of her right guaranteed in Article 19(1)(g), right to
freely express one’s identity as per Article 19(1)(a) and right to
dignity in Article 21 of the Constitution.
8. In the written submissions, the appellant has urged that
CBSE certificates are public records of the Board and they carry a
presumption of genuineness which must be respected by preserving
the accuracy of such certificates. It is further urged that the 2007
8
Byelaws place school records above public documents which carry
3
presumption of genuineness under the Indian Evidence Act, 1872 .
To buttress this submission, it is stated that it would be contrary to
the objectives of CBSE if it refuses to correct its documents despite
having verified the genuineness of the supporting public documents
(like Aadhar card, Passport, Birth Certificate etc.) and continues to
perpetuate the obvious errors in the school records.
9. The appellant has further submitted that by amending Byelaw
69.1 in this manner, CBSE has acted in violation of Regulation 10
and objectives of CBSE by rendering itself incapable of rectifying
errors in the certificates and issuing accurate certificates, which is
a basic function of the Board. The CBSE has, the appellant
submitted, exceeded its powers by effecting the said amendment as
it was never meant to exercise such authority of putting fetters on
its basic duties. Reliance has been placed upon
Dhruva Parate vs.
4
CBSE & Anr. , State of NCT of Delhi & Anr. vs. Sanjeev @
5
Bittoo , Indian Aluminium Company vs. Kerala State
3 For short, “1872 Act”
4 ILR 2009 V Delhi 371
5 2005 (5) SCC 181
9
6
Electricity Board and J.K. Aggarwal vs. Haryana Seeds
7
to urge that CBSE cannot
Development Corporation Ltd. & Ors.
circumscribe its own powers with a selfimposed limitation in this
manner.
10. The appellant has further submitted that the impugned
judgment erroneously connects the subject matter of the case with
castebased reservations which displays stereotype prejudice of the
Court towards her cause. The appellant also takes exception to the
observations regarding wrongful conduct of the appellant’s parents
th
in failing to get the records rectified before X standard. It is stated
that the impugned judgment overlooked the fact that the parents
th
had no choice of getting the application form corrected in XI
th
standard as it necessarily reflected the details of X standard
without offering a choice of alteration.
11. In response, the Board has relied upon Byelaw 69.1 to submit
that the appellant’s request for rectification was considered and the
certificates were found to be matching with the school records and
thus, no case for rectification was made out. It is submitted that
6 1975 (2) SCC 414
7 1991 (2) SCC 283
10
before amendment Byelaw 69.1 permitted a different procedure for
rectification – approval by Court of law and notification in the
gazette. Under this procedure, umpteen number of cases were filed,
even after more than ten years of declaration of result, for
rectification of name/surname and Courts were constantly
approached for seeking leave to get the rectification done. As a
result, objections were raised by various government authorities
questioning the power of the Board to carry out changes in the
identity of the students even after they have passed the
examinations conducted by the Board. It is submitted that various
Courts also expressed displeasure and suggested rephrasing of
Byelaw 69.1. Resultantly, the 2007 amendment was effected
permitting corrections only to the extent of bringing the certificates
in conformity with the school record.
12. To buttress the above submission, it is urged that CBSE,
being an autonomous society registered under the Societies
Registration Act, 1860, has the power to make, amend or delete its
Rules, Regulations and Byelaws. Accordingly, Byelaw 69.1 was
amended as the basic record of a student is kept by the school and
11
the Board has no option but to rely upon the school record. It is
further submitted that the parents of the appellant had ample
opportunity to correct the school record and they chose not to do
so. In fact, the respondent adds, they repeatedly filled the same
particulars of their names in all the school forms from time to time.
13. The Board has also filed elaborate written submissions to
support their case. It is submitted that the Examination Byelaws of
the Board are statutory in nature as they were framed in
furtherance of the powers granted to the Board as per Government
of India Resolution dated 1.7.1929 and deviation cannot be
permitted from the Byelaws. As regards the argument of violation
of fundamental rights, the Board has submitted that there may be a
fundamental right to be identified as per the choice of an individual,
but there can be no fundamental right to claim that the changed
identity must be operative since birth thereby compelling all
including statutory bodies to carry out changes in documents
issued by them. It is urged that any other view would amount to
misuse of liberty and cause serious confusion at different level.
12
Reliance has been placed upon Rayaan Chawla vs. University of
8
to support this position.
Delhi & Anr.
14. The Board has further submitted that the
restrictions/conditions for change of name and date of birth are
reasonable as all the details are supplied by the students/parents
at various stages of admissions which offers a prima facie guarantee
of genuineness. It is submitted that change of name and date of
birth in a reckless manner could have serious repercussions –
misuse for employment, manipulating age of the accused etc.
Reliance has been placed upon Sanjeev Kumar Gupta vs. State of
9
Uttar Pradesh & Anr. to illustrate this.
15. The written submissions also touch upon the question of
relevant date for the applicability of 2007 Byelaws. It is submitted
th
that the relevant date would be the date of passing X standard
examination and not the date of making application for changes.
Lastly, it is submitted that the remedy of writ petition may not be
appropriate for effecting changes in CBSE certificates as usually,
8 275 (2020) Delhi Law Times 314
9 (2019) 12 SCC 370
13
students come up with independent documents for supporting their
claim and the writ Courts are not expected to adjudicate disputed
facts concerning the relied upon documents. To buttress this
submission, it is stated that despite presumption in favour of
certified copies of public documents, they cannot be accepted at
face value without providing an opportunity to rebut them as per
Section 4 of the 1872 Act.
CIVIL APPEAL NO. 3572 OF 2019
In this appeal, the appellant (CBSE) has assailed the judgment
16.
dated 6.2.2019 passed by the High Court of Delhi in L.P.A. No.
128/2017, reversing the order of learned Single Judge in W.P. (C)
No. 6996/2016, wherein the prayer of the respondent (father of the
student) to change the mother’s name in the certificate was
rejected. The respondent had applied to CBSE for the change of
mother’s name from “Kiran Khan” to “Fakiha Khan” stating that
“Kiran Khan”, being the nickname of the mother, was inadvertently
recorded in the school record of the student at the time of her
admission in class I in 2005.
14
17. The Division Bench granted the prayer primarily on the
ground that the stated change was a mere correction of name and
not a change of name per se as per the language of Rules 69.1(i)
and 69.1(ii) of the Byelaws (as amended in 2015). To reach this
conclusion, the Court relied upon the birth certificate of the
student, educational certificates of mother, passport etc. which
revealed that the mother’s name was recorded as “Fakiha Khan” in
all these documents and it was nothing but an inadvertent error on
the part of parents to have used the nickname of the mother while
filling her school forms. The High Court noted that the case is
neither a change of name as per Rule 69.1(i) nor a correction of
typographical nature as per Rule 69.1(ii). It is relevant to reproduce
paragraph 4 of the impugned judgment, which reads thus:
“4. Having considered the diverse aspects and the admitted
factual conspectus on record, we find, the case in hand, is not
a case of any change of name, but, a mere correction in the
mother's name of the child Ms. Filza Khan. Apparently, an
inadvertent mistake in mentioning the mother's nickname
"Ms. Kiran Khan" in the admission form in the year 2005, got
transmitted by the respondent No.2 school to the respondent
No.1 Board. The application made by the petitioner was not
for any change of name, but, for correction of an inadvertent
mistake in mentioning the name of the mother in the
admission form as "Kiran Khan" instead of "Fakiha Khan",
which fact, undisputedly, finds support from the birth
certificate dated 17.12.02, copy whereof forms part of the
record as AnnexureP1. This birth certificate clearly mentions
15
that Ms. Filza Khan was born to the petitioner and Ms. Fakiha
Khan. The applicant has placed on record other documents,
such as the educational certificates of the mother Fakiha
Khan, her passport etc., which show that her name always
was Fakiha Khan. Thus, it is not a case of change of name of
the mother to Kiran Khan, from Fakiha Khan, post the filling
up of the examination form of the appellant's daughter.
Pertinently, even in the documents relating to the daughter of
the appellant Filza Khan, such as her Birth Certificate, the
name of the mother is recorded as “Fakiha Khan” and not
“Kiran Khan”. Thus, the case in hand is certainly not a case of
change of name as contemplated under Rule 69.1(i). It is also
not a case of correction in spelling errors and factual
typographical errors as contemplated under Rule 69.1(ii). The
case in hand is completely founded on the premise of an
inadvertent mistake in mentioning the name of the mother in
the admission form, which was filled way back in the year
2005 at the time of admission of the child in class I. …”
The Court, relying upon
Mazhar Saleem Chandroth (Minor) Thr.
Saleem Chandroth (father and natural guardian) vs. Central
10
, also observed that the
Board of Secondary Education
Examination Byelaws of the appellant (CBSE) are not of a statutory
nature. The Court, before parting, further noted that a restrictive
and strict approach is not warranted in matters involving correction
or change of name by the Board merely on ground of administrative
inconvenience. It noted thus:
“6. The adoption of a strict and restrictive approach in the
matter of change or correction of name of the candidate or
his/her parents, in the certificates issued by the respondent
No.1, cannot be justified on the foundation that such
changes, when made later, may be exploited to mislead all
10 LPA 315/2017
16
concerned about the identity of the candidate. Such a strict
and restrictive approach cannot be justified merely on the
ground of some administrative inconvenience. After all,
respondent No.1 charges the fee to cover its costs for
undertaking such an exercise. ...”
Observing that the subject change in the mother’s name would not
result into an alteration of identity of the student as the name
“Fakiha Khan” was a part of the documents all along, it noted thus:
“6. ...In the present case, there is no possibility of the identity
of the candidate Filza Khan being changed by permitting the
change of name of her mother from "Kiran Khan" to Fakiha
Khan", since the name of the child/candidate; the name of the
father; the date and place of birth, continue to remain the
same. Even the name of the mother – which is now sought to
be brought on record, is the real name of the mother which
has always remained so and the same name of the mother is
also reflected in the Birth Certificate of the child/candidate
Filza Khan. In fact, the nonamendment of the name of the
mother of the child/candidate from “Kiran Khan” to “Fakiha
Khan” would, in future, lead to confusion and may mar the
future prospects of the child/candidate while seeking
admissions to institutions of higher education, or
employment.”
18. The appellant (CBSE), in this appeal, has submitted that the
impugned judgment has incorrectly treated the subject change in
mother’s name as a mere correction born out of an inadvertent
error. It is submitted that the said change is a complete change of
name which was continuously retained in the school records for a
period of 11 years. It is urged that the impugned judgment has
failed to give effect to Rules 69.1(i) and 69.1(ii) of the Board as such
17
change of name without an order of the Court and followed by a
notification in the official gazette was outrightly prohibited.
Justifying the said Rules, it is submitted that the Board has no
power or independent sources to verify the identity of the students
and owing to the nature of its functioning, it has to rely upon the
school records to furnish certificates.
19. The appellant (CBSE) further submits that the records were
sent by the school in the academic year 20142015 when the
student filled the examination form for submission to the Board and
the said form not only recorded the mother’s name as “Kiran Khan”
but also carried the signature of the mother in the verification
portion of the form. To buttress this submission, it is urged that
the said mistake (if any) could not have been treated as inadvertent
as it was retained as such for a long period of 11 years. It is added
that parents themselves were the source of information regarding
the name and thus, there could be no reason to regard it as
inadvertent.
20. The appellant has further submitted that the impugned
judgment is in conflict with another judgment of a coordinate
18
11
bench of the High Court in Mazhar Saleem Chandroth wherein
the prayer for addition of word “Saleem” in the name was not held
to be a correction or typographical error and was rejected stating
that such change would be inconsistent with the school record and
thus, impermissible. It is added that in such a situation, the
Division bench ought to have sent the matter for consideration by a
larger bench.
CIVIL APPEAL NO(S) 1822/2021
(arising out of SLP (C) No(s) 7381/2021
(@ Diary No. 9445/2020)
21. In this appeal, the appellant (CBSE) has assailed the judgment
dated 5.11.2019 passed by the High Court of Kerala in W.A. No.
2225/2019 affirming the decision of learned Single Judge in W.P.
(C) No. 5287/2019 dated 28.2.2019. The respondent student had
approached the Board for correction of his father’s name in the
CBSE certificate from “P.P. Abdul Latheef” to Latheef P.A.”. The
said request was denied by the Board citing Byelaw 69.1 of the
2007 Byelaws, as applicable. The Board stated that the
respondent’s case does not meet the conditions stipulated in the
11 supra at Footnote No.10
19
said byelaw and thus, change in name cannot be permitted.
Aggrieved by this denial, the respondent moved the High Court.
The correction or change of name was then permitted by the High
Court upon payment of Rs. 5,000 by the student to the Board for
availing its service. The Board appealed against that decision.
Affirming the decision, the High Court observed that the decision is
in accordance with the decision of a coordinate bench of the same
12
High Court in Subin Mohammed vs. Union of India wherein a
change in date of birth of a student was permitted by the Court.
While recognising that the case at hand involved the change of
father’s name (and not date of birth), the Court noted the similarity
of grounds raised by the appellant before it, and relied upon Subin
13
to reject the same. It observed thus:
Mohammed
“6. Though the issue relates to correction of the petitioner's
father's name in the CBSE certificate, the grounds on which
the appellants had assailed the correctness of the judgment of
the writ court are more or less similar, based on the byelaw
of the CBSE and the delay in making the application for
correction. Except the above, there is no variance. Though Mr.
Nirmal S., learned counsel for the appellants, made
submissions on the grounds extracted supra assailing the
correctness of judgment of the writ court, we are not inclined
to accept the said contentions for the reason that a Hon'ble
Division Bench of this Court in Subin Mohammed S. v. Union
12 2016 (1) KLT 340
13 supra at Footnote No.12
20
of India and others reported in 2016 (1) KLT 340, has
considered the said contentions and rejected the same. ...”
22. The impugned judgment relied upon the respondent’s Birth
Certificate dated 25.7.2013 and his father’s Death certificate dated
12.8.2009 to conclude that the father’s name was indeed “Latheef
P.A.” in statutory records and there could be no objection in
permitting the said change.
23. In its challenge, the primary ground of the appellant is that
14
the reliance placed by the High Court upon is
Subin Mohammed
misplaced. For, the said judgment is inapplicable in the factual
15
matrix of the case. It is submitted that in Subin Mohammed , the
case involved a change in date of birth and the Court had recorded
a specific finding that CBSE Byelaws would not permit the said
change. It is further submitted that the Court failed to acknowledge
that CBSE Byelaws, though not strictly statutory, have a regulatory
colour and must bind those who have chosen to comply with them
while participating in the examinations conducted by the Board.
14 supra at Footnote No.12
15 supra at Footnote No.12
21
24. The appellant has further submitted that neither Byelaw
69.1(i) nor 69.1(ii) apply to the facts of the case. It is stated that
Byelaw 69.1(i) would apply only when change of name is approved
by a Court of law followed by a notification in the official gazette,
that too before the declaration of result by the Board. To buttress
this submission, it is added that the respondent obtained his birth
certificate in 2013, one year before the matriculation examination in
2014 and thus, there was no difficulty for the respondent in
applying for the said change as per Byelaw 69.1(i). According to the
appellant (CBSE), the conditions of the aforesaid Byelaws have not
been fulfilled by the respondent and in absence thereof, no such
changes can be permitted.
25. The appellant has also urged that the reliance upon Birth
Certificate and Death Certificate is unwarranted as both these
documents were not proved before any Court of law and there is no
material on record to establish that “P.P. Abdul Latheef” and
“Latheef P.A.” is the same person. The appellant has placed
reliance upon Board of Secondary Education of Assam vs. Md.
22
16
Sarifuz Zaman & Ors. to further argue that correction of entries
in a certificate duly issued by the Board cannot be claimed as a
matter of legal right and frequent corrections cannot be permitted
readily as it would have the effect of rendering this power arbitrary,
in addition to reducing the credibility of certificates issued by the
Board.
CIVIL APPEAL NO(S). 1823/2021
(arising out of SLP (C) No(s). 7382/2021
(@ Diary No. 9482/2020)
26. The challenge in this appeal is against the judgment dated
20.11.2019 of the Kerala High Court in W.A. No. 2354/2019
affirming the decision of learned Single Judge in W.P. No.
11876/2018, wherein the respondent student’s prayer for change in
date of birth was granted by the Court. The respondent passed her
matriculation examination in 2011. The concerned certificate
issued by the Board recorded her date of birth as 28.11.1995.
Thereafter, in 2013, the respondent applied for the issuance of
Birth Certificate which was issued on 28.6.2013 bearing her date of
birth as 21.11.1995.
16 (2003) 12 SCC 408
23
27. The respondent applied to the Board for change in date of
birth. It was rejected by the Board. The High Court allowed her
17
prayer after placing reliance on . The
Subin Mohammed
observations of the High Court are similar to those in civil appeal
arising from SLP (C) No(s). 7381/2021 (@Diary No. 9445/2020) and
are not being discussed again for brevity.
The appellant (CBSE) has assailed the decision on the ground
28.
that the respondent’s case does not fulfil the criteria/conditions for
change in date of birth under Byelaws 69.2 and 69.3 of the 2007
Byelaws, as applicable. It is submitted that as per Byelaw 69.2,
change in date of birth is permissible only before the same is
recorded in the record of the Board and despite having sufficient
time, the respondent did not approach the Board for any correction
on or before 2011. Afterwards, under Byelaw 69.3, corrections of
merely typographical or other similar errors are permissible to bring
the particulars in consonance with the school record. It is stated
that the respondent’s case does not fulfil any of these criteria.
17 supra at Footnote No.12
24
29. It is further submitted that the impugned judgment was
passed without granting an opportunity to the appellant for
ascertaining the genuineness of the request for change in date of
birth, which is a mandatory requirement as per
Subin
18
Mohammed . The appellant has raised a question on the
genuineness of the request by stating that even if the incorrect date
of birth is treated as an error, it is inconceivable that the appellant
or her parents could not notice the error for a period of 23 years.
30. The submissions regarding the inapplicability of the dictum in
19
are similar to those made in civil appeal
Subin Mohammed
arising from SLP (C) No(s). 7381/2021 (@ Diary No. 9445/2020)
and are not being repeated for brevity.
CIVIL APPEAL NO(S). 1824/2021
(arising out of SLP (C) No(s). 7383/2021
(@ Diary No. 14737/2020)
31. In this appeal, the appellant (CBSE) has assailed the judgment
dated 13.12.2019 passed by the High Court of Judicature for
Rajasthan in D.B. Civil Special Appeal (Writ) No. 838/2019
confirming the order of the learned Single Judge in S.B. Civil Writ
18 supra at Footnote No.12
19 supra at Footnote No.12
25
Petition No. 18013/2018 in terms of the Byelaws (as amended in
2015 and as applicable to the case).
32. The case involves a request for change of mother’s name of the
student in CBSE certificates from “Seema Manak” to “Sanyogeta
Manak”. The respondent participated in the matriculation
examination conducted by the Board in May, 2016. In October,
2016, the said request was made when the mother changed her
name. The Board denied the request for change of name citing their
inability under the Byelaws. Another request was made by the
respondent which was met with the same response from the Board.
The matter went to the High Court by way of a writ petition and the
Court granted the prayer for change of name by holding that the
Board failed to perform its duty in denying the request for change of
name. The Court took note of the birth certificate of the
respondent, copy of passport and copy of Aadhar card of the
mother, and also noted that the requirements of newspaper
publication and gazette notification were fulfilled. It then directed
the Board to effect the change. The Court observed that the CBSE
rules cannot prohibit an individual from having his/her identity
26
recognized through the parents and if they are applied for denying
such corrections, it would be ultra vires the rules as they are not
statutory in nature. It observed thus:
“In the opinion of this Court such rules framed by CBSE go
contrary to the basic principles laid down in the
circumstances regarding individual to have his identity
recognized from his/her parents, the CBSE cannot be allowed
to force any individual to have his mother’s name or his
father’s name different from what his/her mother’s name or
father’s name is known in the Society as well as in the
records. If such rules are applied for denying a candidate from
getting correction done in the mark sheet or certificates, the
same have to be declared as ultra vires to the rules since the
rules not statutory.”
33. In order to assail the above decision, the appellant has relied
upon Byelaws 69.1(i) and 69.1(ii) to contend that Byelaw 69.1(i)
provides for change of name of the student only and change of
name of parents is not envisaged in it. It is submitted that Byelaw
69.1(ii) provides for corrections and the present case is not one of
corrections, rather, it involves a material change of name. Similar
to the submissions advanced in previous appeals, it is submitted
that the Board cannot act in violation of their byelaws and permit
corrections when the same are not permitted under them. The
appellant has urged that they duly applied their mind to the request
27
of the respondent twice and there was no occasion for the Court to
pass an order in complete ignorance of the byelaws.
34. It is further submitted that the impugned judgment holds the
byelaws as ultra vires despite the fact that their validity was not
even in question before the Court. Reliance has been placed by the
20
appellant upon to urge that there is no
Md. Sarifuz Zaman
vested right to claim corrections in certificates at any point of time.
CIVIL APPEAL NO(S). 1825/2021
(arising out of SLP (C) No(s). 7384/2021
(@ Diary No. 16291/2020)
35. The challenge in this appeal is against the decision dated
20.11.2019 passed by the High Court of Kerala in W.A. No.
2340/2019 confirming the order passed by learned Single Judge in
W.P. (C) No. 8540/2019, wherein the High Court allowed the prayer
for change of the respondent student’s name from “Mohammed
Shafeek” to “Mohammed Shafeek S.” in terms of the 2007 Byelaws,
as applicable. The respondent passed matriculation examination in
2014. During school, the name of the respondent was recorded as
“Mohammed Shafeek” in accordance with the birth certificate
20 supra at Footnote No.16
28
issued in 2002. After passing matriculation, another birth
certificate was issued in 2017 wherein a different name i.e.,
“Mohammed Shafeek S.” was recorded. In accordance with the
second birth certificate, the respondent approached the Board for
change of name which was denied by the Board citing failure to
fulfil the conditions envisaged in the Byelaws. The High Court
granted the prayer by placing reliance upon the dictum in Subin
21
.
Mohammed
36. The reasoning adopted by the High Court is similar to that in
civil appeals arising from SLP (C) No(s). 7381/2021 (@ Diary No.
9445/2020) and SLP (C) No(s).7382/2021 (@ Diary No. 9482/2020),
and we are not reiterating the same.
37. Assailing the decision, the appellant’s submissions are largely
similar to those in previous appeals. Other than grounds already
urged before, the appellant has submitted that the Court failed to
consider the presence of two birth certificates and went on to grant
the prayer without weighing the genuineness of the certificates and
21 supra at Footnote No.12
29
without seeking an explanation from the respondent for bringing
two birth certificates on record.
38. It is submitted that in 2004, while taking admission in class I,
the respondent’s name was recorded as “Mohammed Shafeek”. The
same name was carried forward while filling the admission form
again in 2008 for a different school. It is further submitted that
even at the time of filling the form for class XI, the same name was
recorded and it was duly communicated by the school to the Board.
The name recorded in the certificate, therefore, is in complete
accordance with the school record. To buttress this submission, it
is urged that the record clearly shows that there is no possibility of
typographical error in the record of the respondent and a
subsequent substantial change of name cannot be permitted in the
certificates of the Board in this manner.
CIVIL APPEAL NO. 1826/2021
(arising out of SLP (C) No. 10927/2020)
39. The challenge in this appeal is against the judgment dated
24.8.2020 passed by the Delhi High Court in L.P.A. No. 219/2020
confirming the order of learned Single Judge in W.P. (C) No.
30
10841/2019 wherein the respondent student’s prayer for addition
of surname was granted in terms of the 2007 Byelaws, as
applicable. The respondent passed the examinations conducted by
the Board under the name “Jyoti”. The name was consistently
recorded as such in all her school records and accordingly, the
CBSE certificates carried the same name. Thereafter, she
completed her MBBS and applied for education in a foreign
institution. As a part of her application, she was asked to mention
her surname. Since none of her documents carried this
information, she applied to the Board for addition of surname and
change her name from “Jyoti” to “Jyoti Dalal” in the certificates.
The Board refused and the respondent approached the High Court.
40. The High Court considered the applicability of Byelaws 69.1(i)
and 69.1(ii) and ruled that the said byelaws are inapplicable to the
facts of the case as the respondent’s case is not one for change of
name but for incorporation of a surname which existed throughout
in the records of her parents and for which no ambiguity could be
alleged. It observed thus:
“8. Looking to the peculiar facts and circumstance of the
present case, we are of the opinion that the same does not fall
31
under the ambit of Clause 69(1)(i) of the Examination Bye
Laws as:
a) This is not a case of change of name, but of
incorporation of the surname of the person
concerned,
b) This is not a case where something which was
altogether omitted is to be added, as the parents’
names were available in full in the records of the
appellantBoard,
c) The respondent (original petitioner) in this case
carries the surname of the father and the mother
which she wanted to mention after her name. There
is no dispute about her identity or confusion about
the veracity of the name which she seeks to
incorporate.”
Before parting, the High Court specifically noted that its decision
must not be treated as a precedent and would operate on the
specific facts of the case.
41. The appellant has assailed the decision by contending that
any request for change of name is to be examined as per Byelaw
69.1(i) and not beyond it. If such change is not permissible under
the said byelaw, then it would be wholly improper for the Court to
direct such changes. It is contended that there was no challenge to
the validity of the byelaws, and until and unless the byelaws are
declared to be invalid, the Court cannot direct any action in
complete contravention thereof. As urged in previous cases, it is
added that the respondent’s case failed to fulfil the condition
32
precedent in the said byelaw – prior approval by a Court of law
followed by publication in gazette – and the impugned order had the
effect of diluting these conditions.
The appellant has submitted that the relief claimed by the
42.
respondent is highly delayed in time and in law, delay defeats
discretion. It is urged that the respondent was always aware of the
absence of surname in her records and she kept on sleeping on her
rights for a period of seven years and therefore, the loss of
limitation must bar any legal remedy for her. It is further submitted
that such changes cannot be permitted in a routine manner as the
credibility attached with CBSE certificates would be compromised
and subsequent changes would create anomalies in the record.
Reliance has been placed upon Abhishek Kumar @ Bal Kishan
22
to urge that subsequent issuance of
vs. Union of India & Ors.
revised certificates would create discrepancy in the record and
reflect status which did not even exist at the time of making
certificates.
22 (2014) 144 DRJ 8 (DB) : 2014 SCC OnLine Del 3459
33
43. The appellant has submitted that exercise of jurisdiction
under Article 226 of the Constitution in this manner is
unwarranted as it amounts to substitution of the views of the Court
in the place of byelaws formulated on the basis of technical advice.
It is urged that the Court must be reluctant to venture into
academic matters in this manner.
CIVIL APPEAL NO.1827/2021
(arising out of SLP (C) No. 10948/2020)
44. The challenge in this appeal is against the decision dated
13.7.2020 by the High Court of Kerala in W.A. No. 863/2020
confirming the order of the learned Single Judge in W.P. (C) No.
21357/2019, wherein the respondent student’s prayer for change in
date of birth was granted on the basis of the birth certificate in
terms of the 2007 Byelaws, as applicable. The observations of the
High Court are similar to those in civil appeals arising from SLP (C)
No(s).7381/2021 (@ Diary No. 9445/2020), SLP (C)
No(s).7382/2021 (@ Diary No. 9482/2020) and SLP (C)
34
No(s).7384/2021 (@ Diary No. 16291/2020). We are not reiterating
the same for the sake of brevity.
45. On perusal of the submissions, we find that the grounds urged
for assailing the decision are also similar to those taken in previous
appeals and we are not repeating the same.
46. In addition to grounds already advanced, the respondent has
filed elaborate written submissions and additional written
submissions to which we may make a brief reference. It is
submitted that as per Byelaw 7 of the Examination Byelaws, the
admission procedure upto class VIII is to be regulated by
rules/regulations/orders of the concerned State Government.
Accordingly, reference has been made to the Kerala Education Act,
1958 and ChapterVI of Rules framed thereunder which provides
that the primary source for determining date of birth is birth
certificate. It is submitted that even under the Right to Education
Act, the primary proof of age is the birth certificate and therefore,
primacy has to be accorded to birth certificate for determination of
correct date of birth and CBSE’s Byelaws must provide for bringing
their certificates in accord with such official or public documents.
35
47. In additional written submissions, the respondent has
answered this Court’s query as to what would be the relevant point
of time for determining the application of byelaws. It is submitted
that the relevant date would be the date of considering the
application i.e., the Byelaws in force at the time of considering the
application for recording correction/change. The date of
examination would be irrelevant for this purpose. Reliance has
been placed upon
Somdev Kapoor vs. State of West Bengal &
23
Ors. and State of Kerala & Ors. vs. Palakkad Heritage
24
to advance the legal proposition that rules standing on the
Hotels
date of final decision by the competent authority would be
applicable.
CIVIL APPEAL NO(S). 1828/2021
(arising out of SLP (C) No(s).7385/2021
(@ Diary No. 18711/2020)
48. The challenge in this appeal is against the judgment dated
19.11.2019 passed by the High Court of Kerala in W.A. No.
2328/2019 confirming the order of learned Single Judge in W.P. (C)
23 (2014) 14 SCC 486
24 (2017) 13 SCC 672
36
No. 8465/2019 wherein the respondent student’s request for
change in date of birth was allowed. The case of the respondent is
that his date of birth was recorded as 16.4.1994 instead of
16.4.1995 in the school records. On the basis of the birth
certificate and other supporting documents, the respondent applied
for change in date of birth which was rejected by the appellant
Board citing the 2007 Examination Byelaws.
49. The High Court allowed the change on grounds similar to
those in the previous appeals. We are not repeating the same.
The submissions of the appellant Board are also similar to
50.
those in previous appeals and there is no need to reiterate the
same.
CIVIL APPEAL NO. 1829/2021
(arising out of SLP (C) No. 10959/2020)
51. The appellant Board has assailed the decision dated 3.7.2020
passed by D.B. Special Appeal Writ No. 450/2020 confirming the
order of learned Single Judge in W.P. (C) No. 8808/2019 allowing
the respondent student’s prayer for change of her father’s and
37
mother’s names in the certificates issued by the CBSE. Citing it as
an error, a request was made by the respondent for change of name
of father from “Vinod Mittal” to “Vinod Kumar Jain” and mother
from “Meenakshi Mittal” to “Meenakshi Agarwal”.
The High Court did not consider the permissibility of this
52.
change under the applicable Byelaws (as amended in 2018) and
instead noted that no prejudice would be caused to the Board if the
said changes are allowed. It observed thus:
“It is noticed that in the writ petition, respondent seeks only
to amend the surname of her parents and not their names.
On a query by this Court from the counsel for the appellants
that on account of change of surname, what prejudice was
going to be caused to the appellants, he has failed to give any
response.”
53. The submissions advanced by the appellant are substantially
similar to those adopted in previous appeals. Nonapplicability of
Byelaws, absence of any typographical error, consonance between
school record and certificates, and lapse of substantial time despite
knowing the alleged errors are primary submissions which form the
basis of this challenge. We are not elaborating upon the same to
avoid repetition.
38
CIVIL APPEAL NO. 1830/2021
(arising out of SLP (C) No. 10801/2020
The challenge in this appeal is against the judgment dated
54.
4.6.2020 passed by the Kerala High Court in W.A. No. 697/2020
confirming the order of learned Single Judge in W.P. (C) No.
11791/2019, wherein the respondent student’s request for change
in date of birth was allowed in terms of the 2007 Byelaws, as
applicable. The respondent’s case was that her date of birth was
incorrectly recorded as 22.3.1990 instead of 21.6.1989. The High
Court allowed the prayer on grounds similar to those in appeals
arising from SLP (C) No(s). 7381/2021 (@ Diary No. 9445/2020),
SLP (C) No(s). 7382/2021 (@ Diary No. 9482/2020), SLP (C)
No(s). 7384/2021 (@ Diary No. 16291/2020) and SLP (C) No(s).
7385/2021 (@ Diary No. 18711/2020). We are not reiterating the
same.
Having gone through the appeal memo, we note that the
55.
submissions are similar to those in previous appeals and we are not
repeating them.
39
CIVIL APPEAL NO. 1831/2021
(arising out of SLP (C) No. 10795/2020)
In this appeal, the challenge is against the decision dated
56.
6.8.2020 passed by the High Court of Kerala in W.A. No. 987/2020
confirming the order of learned Single Judge in W.P.(C) No.
25663/2019, wherein the respondent student’s prayer for change of
name of his mother and father was allowed and accordingly, CBSE
was directed to modify the certificates.
Originally, the school records and CBSE certificates recorded
57.
the father’s name as “Shaji” and mother’s name as “Jijimol”. These
names were in also in accordance with the old birth certificate of
the respondent dated 27.10.2002. As stated by the respondent,
they noticed this mistake for the first time in 2018 after CBSE
released the respondent’s Secondary School Examination certificate
on 29.5.2018. Thereafter, the respondent applied for issuance of
fresh birth certificate wherein father’s name was changed from
“Shaji” to “Shaji P.” and mother’s name from “Jijimol” to “Jijimol
S.”. It was issued on 27.10.2018 and in furtherance thereof, the
respondent applied to the appellant Board for changing the
40
certificates in light of the changed names. The Board refused that
request citing the Byelaws (as amended in 2018) and the matter
reached the High Court.
The grounds that weighed upon the High Court while granting
58.
the prayer are substantially similar to those in civil appeals arising
from SLP (C) No(s). 7381/2021 (@ Diary No. 9445/2020), SLP (C)
No(s). 7382/2021 (@ Diary No. 9482/2020), SLP (C) No(s).
7384/2021 (@ Diary No. 16291/2020), SLP (C) No(s). 7385/2021 (@
Diary No. 18711/2020) and SLP (C) No. 10801/2020.
The grounds urged by the appellant are similar to those in
59.
previous appeals and we are not reiterating the same.
60. The respondent has filed written submissions to submit that
the present case does not involve any delay in applying for change
of name as they took prompt action upon receiving the CBSE
certificates and realizing the defect, and applied for a new birth
certificate so that changes could be made at the earliest. It is also
submitted that it is not a case of change of name or correcting a
mistake in name per se. Rather, it is a case of merely including
initials of mother and father in their respective names in
41
accordance with a duly modified birth certificate which leaves no
question as regards the genuineness of record.
CIVIL APPEAL NO. 1832/2021
(arising out of SLP (C) No. 10796/2020)
61. In this appeal, the appellant (Board) has challenged the
decision dated 19.12.2019 passed by the High Court of Kerala in
W.A. No. 2513/2019 confirming the decision of learned Single
Judge in W.P.(C) No. 14384/2019, wherein the respondent
student’s prayer for change of name from “Vaibhav R.” to “Vaibhav
D.” in certificates issued by the Board was allowed in terms of the
2007 Byelaws, as applicable.
The impugned judgment requires no discussion as it is
62.
reasoned in similar terms, as already delineated above.
63. The grounds urged by the appellant have already been urged
in previous appeals and we need not repeat them.
42
CIVIL APPEAL NO(S). 1833/2021
(arising out of SLP (C) No(s). 7386/2021
(@ Diary No. 19181/2020)
64. The appellant Board herein has impugned the decision dated
8.11.2019 passed by the High Court of Kerala in W.A. No.
2207/2019 confirming the order of learned Single Judge in W.P. (C)
No. 10410/2019, wherein the respondent student’s prayer for
change in his date of birth was allowed on the basis of the birth
certificate issued by the appropriate authority in terms of the 2007
Byelaws, as applicable.
65. The impugned judgment requires no elaboration as it is
reasoned in similar terms, as already delineated above.
66. The grounds urged by the appellant have already been urged
in previous appeals and we need not repeat them.
CIVIL APPEAL NO. 1834/2021
(arising out of SLP (C) No. 11320/2020)
67. The appellant (CBSE) has approached this Court for assailing
the decision dated 12.5.2020 passed by the High Court of Punjab &
Haryana at Chandigarh in R.S.A. No. 499/2020 declining to
43
interfere with the decision of the District Judge, Karnal who upheld
the decision of the Additional Civil Judge (Senior Judge), Assandh
in Civil Suit No. 204/2018 wherein, a declaratory relief was granted
in favour of the respondent student declaring his date of birth as
7.5.2004 instead of 15.2.2001, father’s name as “Joginder” instead
of “Joginder Singh” and mother’s name as “Darshan” instead of
“Darshan Devi” (as mentioned in the CBSE certificate). The
declaratory relief was coupled with a mandatory injunction
directing the appellant Board to effect necessary changes in the
certificates of the respondent.
The High Court referred to the birth certificate issued by the
68.
authorities under the Registration of Births and Deaths Act, 1969
and noted that correctness of the certificate is not under dispute
and thus, the information recorded in the certificate cannot be
questioned. It observed thus:
“As far as correctness of the certificate issued by the
authorities under the 1969 Act, identity of the plaintiff as
also correctness in the names of his parents are not
disputed.”
Noting thus, the High Court declined to interfere with the
concurrent findings of fact by the two Courts below.
44
69. In addition to the grounds already advanced by the Board in
light of the applicable Byelaws (as amended in 2018), it is
submitted that the relief of declaration and mandatory injunction
could not have been granted by the Court due to nonjoinder of
necessary parties in the case. It is submitted that Registrar of
Births and Deaths (owing to change in date of birth) and the
concerned school (owing to changes in their records) were necessary
parties in the case and ought to have been joined. It is urged that
the nonjoinder would be fatal.
It is further submitted that the respondent’s claim was barred
70.
by the principle of estoppel as he was mandatorily required to
submit his birth certificate in school at the time of admission as per
Byelaw 6 of the Examination Byelaws, 1995 so that the school
record could be in consonance with the birth certificate. Since the
respondent failed to produce the same at the time of admission, it is
urged, the school record carried the information voluntarily
supplied in the admission form and no change can be permitted at
this stage.
45
71. The respondent has further submitted that the relief of
mandatory injunction was barred due to Sections 41(g) and 41(i) of
the Specific Relief Act, 1963 which specifically provide that no such
relief could be provided if the plaintiff when he/she has acquiesced
of rights. In the instant case, it is stated, the respondent failed to
apply for change in date of birth for 15 years, despite there being a
long gap of three years between the recorded date and modified
date, and such conduct must bar any such relief.
CIVIL APPEAL NO. 1835/2021
(arising out of SLP (C) No. 11558/2020)
72. The appellant Board has approached this Court in appeal
against the judgment dated 29.7.2020 passed by the High Court of
Kerala in W.A. No. 724/2020 confirming the order of learned Single
Judge in W.P. No. 24214/2019, wherein the respondent student’s
prayer for change in date of birth from 30.5.1992 to 23.7.1991 was
granted and original record was held to have recorded an incorrect
date. For reaching this conclusion, reliance was placed by the High
Court upon a subsequently obtained birth certificate.
46
73. The impugned judgment requires no discussion as it is
reasoned in similar terms, as already delineated above.
The appellant has placed reliance upon the Byelaws (existing
74.
before 2007) to assail the decision. The grounds urged by the
appellant have already been urged in previous appeals and we need
not repeat them.
CIVIL APPEAL NO(S). 1836/2021
(arising out of SLP (C) No(s). 7387/2021
(@ Diary No. 21923/2020)
75. The present appeal involves a challenge against the judgment
dated 13.11.2019 passed by the High Court of Kerala in W.A. No.
2267/2019 confirming the order of learned Single Judge in W.P.(C)
No. 8034/2019, wherein the respondent student’s prayer for
change of name from “Ganga” to “Ganga S” and father’s name from
“Rajendran C” to “Rajendran Pillai C” was allowed in terms of the
Byelaws (as amended in 2018).
The impugned judgment requires no discussion as it is
76.
reasoned in similar terms, as already delineated above.
47
77. The grounds urged by the appellant have already been urged
in previous appeals and we need not repeat them.
CIVIL APPEAL NO(S). 1837/2021
(arising out of SLP (C) No(s). 7388/2021
(@ Diary No. 25053/2020)
78. In this appeal, the appellant (Board) has assailed the judgment
dated 26.11.2019 passed by the High Court of Judicature at
Madras in W.A. No. 4077/2019 affirming the order of learned Single
Judge with slight modification. The respondent student had prayed
for change of his father’s name from “Fazal Rehmaan” to “Shaik
Fazul Rahiman” which was permitted by the learned Single Judge.
In writ appeal before the High Court, the learned counsel for the
Board, citing the applicable Byelaws (as amended in 2018),
submitted that appropriate precautions ought to be taken while
issuing such directions for change of name as there is a possibility
of misuse. The High Court observed that such corrections must
not be permitted for ulterior or extraneous reasons. In order to
prevent such possibility, the Board was permitted to obtain an
affidavit in the nature of indemnity against any such exigency. It
observed thus:
48
“2. We find that the request made by the learned counsel to
that extent is appreciable, inasmuch as a person should not
be allowed to carry out corrections if the same is for any
ulterior motive or for any extraneous considerations that may
have itself roots either in any form of impersonation arising
out of any civil or criminal activity. In this regard, it will be
open to the appellant Board to obtain an affidavit from the
candidate in the nature of indemnity against any such
exigency as referred to above and correction be carried out
subject to such conditions as may be necessary.”
79. As regards cases wherein the request for change of name is
bona fide and there is no scope for prejudice, the decision of learned
Single Judge directing such changes was held to be correct. The
Court observed thus:
“3. On the other hand, we find that if correction has been
genuinely and bona fide sought and no prejudice is caused,
then in that event the conclusion arrived at by the learned
Single Judge cannot be said to suffer from any infirmity.”
80. The grounds urged by the appellant herein (CBSE) have since
been adverted to and require no reiteration.
CIVIL APPEAL NO. 1838/2021
(arising out of SLP (C) No. 15089/2020)
81. The challenge in this appeal is against the judgment dated
25.9.2020 passed in W.A. No. 1102/2020 affirming the order of
learned Single Judge wherein the respondent student’s prayer for
change in date of birth from 17.1.1992 to 17.1.1991 was allowed
49
upon payment of cost of Rs.1000 to the school authority and
Rs.5000 to the Board. Like previous cases, the prayer was granted
on the basis of a subsequently obtained birth certificate and in light
of the applicable 2007 Byelaws.
The impugned judgment requires no discussion as it is
82.
reasoned in similar terms, as already delineated above.
83. The grounds urged by the appellant have also been urged in
previous appeals and we need not repeat them.
CIVIL APPEAL NO. 1839/2021
(arising out of SLP (C) No. 15124/2020)
84. This appeal involves a challenge to the judgment dated
25.9.2020 passed by the High Court of Kerala in W.A. No.
1037/2020 affirming the order of learned Single Judge, wherein the
respondent student’s prayer for change in date of birth in the
certificates issued by the Board was allowed upon payment of
certain costs to the school and the Board. Reliance was again
placed upon a subsequently obtained birth certificate for ordering
the said changes and on the applicable 2007 Byelaws.
50
85. The impugned judgment requires no discussion as it is
reasoned in similar terms, as already delineated above.
The grounds urged by the appellant have also been urged in
86.
previous appeals and we need not repeat them.
CIVIL APPEAL NO.1840/2021
(arising out of SLP (C) No. 15625/2020)
The challenge in this appeal is against the judgment dated
87.
7.9.2020 passed by the High Court of Kerala in W.A. No.
1155/2020 confirming the order of learned Single Judge, wherein
the respondent student’s prayer for change of his father’s name
from “Hashim Abdulla” to “Hashim A.” and mother’s name from
“Shahina Duneera” to “Shahina Beegum D.S.” was allowed in terms
of the applicable Byelaws (as amended in 2018).
88. In the facts of the case, the respondent obtained the certificate
issued by the Board on 29.5.2018 after passing the Secondary
School Examination, 2018 wherein the names of his parents were
recorded in accordance with the school records and old birth
certificate. Contrary to the names in these documents, the names of
51
father and mother of the respondent were recorded as “Hashim A.”
and “Shahina Beegum D.S.” respectively in their school leaving
certificates. In light of this conflict, the respondent applied to the
Registering Authority for issue of a corrected birth certificate under
Section15 of the Registration of Births and Deaths Act, 1969 read
with Rule11 of the Kerala Registration of Births and Deaths Rules,
1999. The High Court permitted the changes in accordance with
this subsequently obtained birth certificate.
89. The impugned judgment requires no discussion as it is
reasoned in similar terms, as already delineated above.
90. The grounds urged by the appellant have also been urged in
previous appeals and we need not repeat them.
91. Apart from grounds already advanced in previous cases, the
respondents have advanced certain additional grounds in support
of the impugned decision. It is submitted that the CBSE has no
jurisdiction or power to deny correction of records belonging to a
student after due changes by competent public authorities and
acceptance of the same by school. It is further submitted that
CBSE is a society and its Byelaws cannot be treated as equivalent
52
to a law made by a competent legislature. Thus, they cannot be
invoked to deny the fundamental rights of the students much less
being reasonable restriction.
The respondents have further questioned the of the
92. vires
Byelaws on the ground that the government resolution providing for
the power to frame Byelaws does not permit the Board to impose
such conditions for denying corrections in certificates. Relying
upon Sections 76 and 77 of the 1872 Act, it is lastly submitted that
the certified copies of public records are duly admissible and the
Board ought to ensure that their certificates are corrected in light of
such updated public records.
T.P. (C) NOS. 11391140 OF 2020
The petitioner (CBSE) herein seeks a direction from this Court
93.
to withdraw before itself two proceedings, namely – W.P. (C) No.
5828/2016 pending before the Jharkhand High Court and L.P.A.
No. 423/2020 pending before the High Court of Punjab & Haryana
at Chandigarh, as similar questions are involved in these
proceedings.
53
94. The former proceeding before the Jharkhand High Court is for
change of name of the student from “Saddam Hussain” to “Sajid
Hussain” on the basis of changes effected in Official Gazette,
Passport, Aadhar card, Driving License and PAN card. The
proceeding before the High Court of Punjab & Haryana at
Chandigarh is against the decision of learned Single Judge in CWP
No. 21388/2018, wherein the student’s prayer for change of name
in the certificates issued by the Board from “Satish Kumar s/o
Rampal” to “Shrey s/0 Rampal” was allowed on the basis of public
notices in two local newspapers, official gazette notification
notifying change of name, Aadhar card and PAN card.
95. The Board submits that it is already contesting multiple cases
before this Court in which similar questions touching upon the
power of Courts to issue directions for changing particulars in
CBSE certificates is being examined, despite there being a clear
prohibition against the same in the Examination Byelaws. The
Board submits that identical arguments are required to be
advanced by it at multiple forums and it is causing grave harm to it
including in passing of conflicting directions.
54
96. Respondent No. 6 (Satish Kumar @Shrey) has filed “Note on
submissions” wherein various grounds have been advanced to
question the prohibitory Byelaws of the Board and support the case
for permitting genuine changes in certificates. It has been
submitted that the Byelaws are not statutory in nature and thus,
they cannot be made as “law” within the meaning of Article 19(2) of
the Constitution and cannot be the basis to deprive the students of
their fundamental right to express their identity under Article 19(1)
(a). Reliance has been placed upon
Kabir Jaiswal vs. Union of
25
India & Ors. to support this position.
It is then submitted that there is a conflict between
97. Kalpana
Thakur & Anr. vs. Central Board of Secondary Education &
26
and
Anr. Vyshnav @ Vishnu Viswam V. vs. Central Board of
27
Secondary Education & Ors. as regards the relevant point of
time for determining the applicability of Byelaws, as amended from
28
time to time. Supporting the view taken in , it is urged
Vyshnav
25 2020 SCC OnLine All 1488
26 2015 SCC OnLine Del 12156
27 2017 SCC OnLine Ker 39806
28 supra at Footnote No.27
55
that the relevant point of time ought to be the date of issuance of
certificate.
98. Having gone through the elaborate set of submissions and
documents on record in the respective matter, the following broad
points emerge for our consideration:
(i) Whether the CBSE Examination Byelaws have the force of
law?
(ii) Whether examination byelaws impose reasonable restrictions
on the exercise of rights under Article 19 of the Constitution
including fail the test of rationality for excessively restricting
the scope of permissible corrections/changes?
(iii) Whether the Board is obliged to carry out corrections/changes
in the certificates issued by it owing to correction/updation of
public records/documents which have statutory presumption
of genuineness?
(iv) Whether the examination byelaws in force on the date of
examination conducted by CBSE or the date of consideration
of the application for recording correction/change would be
56
relevant? And, whether the effect of correction or change, as
the case may be, will have retrospective effect from the date of
issue of the original certificate?
(v) Whether writ of mandamus issued for effecting corrections in
CBSE certificates can be in the teeth of explicit provisions in
the examination byelaws, without examining validity of the
byelaws?
Point No. 1
99. Indubitably, the CBSE Board came to be established vide
Government of India resolution dated 1.7.1929 with a view to
“enable it to play a useful role in the field of Secondary Education”
and “make the services of the Board available to various
educational institutions in the country”, as stated in the
29
Constitution of the Board. Article 9 of the said Constitution deals
with the “Powers and Functions of the Board”, which include to do
all such things as may be necessary for furthering the objectives of
29 “9. The Board shall have the following powers:
xxx xxx xxx
(xvi) To do all such or other things as may be necessary in order to further the
objectives of the Board as a body constituted for regulating and maintaining the
standard of secondary education.”
57
the Board. One of the functions or so to say power of the Board is
to make regulations for giving effect to the aforestated resolution as
30
predicated in Article 16 of the Constitution. Clause (2) thereof
envisages that the Regulation so framed may provide for conditions
for issuing certificates for examination conducted by the Board. We
31
may also take note of Article 18 of the Constitution of the Board,
which makes it amply clear that the byelaws to be framed by the
Board ought to be consistent with and subservient to the
Regulations and the Resolution establishing the Board. This Article
also indicates that byelaws may be made for the purposes referred
to in clauses (a) to (c) pertaining to procedural aspects.
Indisputably, the constitution/organisation or structure of CBSE is
30 “16.POWERS OF THE BOARD TO MAKE REGULATIONS
xxx xxx xxx
(2) In particular and without prejudice to any generality of the foregoing powers, the
Board may make Regulations for all or any of the following matters, namely:
…..
(f) The conditions for the award of certificates of the Board;”
31 “18. The Board and its Committees may make Byelaws, consistent with this
Resolution and the Regulations, for the following purposes, namely:
(a) Laying down the procedure to be observed at their meetings and the number of
members required to form a quorum;
(b) Providing for all matters which, consistent with this Resolution and the
Regulations, are to be prescribed by Byelaws; and
(c) Providing for all other matters solely concerning the Board and its Committees
and not provided for by the Resolution and the Regulations.”
58
not backed by a statute. It is, therefore, a misnomer to characterise
byelaws framed by the Board as statutory.
100. The real question is: whether byelaws so framed have the force
of law?
101. To have the force of law, it must qualify the test predicated in
Article 13 of the Constitution, else it would be mere contractual
terms of engagement. For the nature of activities undertaken by
the Board including the powers and functions of the Board, it can
be safely assumed that the Board is a State within the meaning of
Article 12 of the Constitution of India and as a corollary thereof, its
actions would be amenable to PartIII of the Constitution of India.
The fact that the Board can be treated as a State within the
meaning of Article 12 of the Constitution does not mean that the
byelaws framed by it would necessarily become law within the
meaning of Article 13 of the Constitution of India. Only a “law”
under Article 13 can be reckoned as a restriction in respect of rights
guaranteed under Article 19 of the Constitution.
102. Before we proceed to analyse any further, it would be apposite
to reproduce Article 13 of the Constitution of India to answer the
59
point under consideration. Article 13 of the Constitution reads
thus:
“13. Laws inconsistent with or in derogation of the
fundamental rights.— (1) All laws in force in the territory of
India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such
inconsistency, be void.
(2) The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in
contravention of this clause shall, to the extent of the
contravention, be void.
(3) In this article, unless the context otherwise requires, —
(a) “law” includes any Ordinance, order, byelaw, rule,
regulation, notification, custom or usage having in the
territory of India the force of law;
(b) “laws in force” includes laws passed or made by a
Legislature or other competent authority in the territory of
India before the commencement of this Constitution and
not previously repealed, notwithstanding that any such
law or any part thereof may not be then in operation either
at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this
Constitution made under article 368.”
(emphasis supplied)
The tenor of Article 13 clearly suggests that it was not enacted
103.
to restate the obvious proposition that all statutory laws are “laws”
in any legal system. For, it requires no restatement that laws
enacted by the legislature are “laws”. The underlying purpose of
60
defining “law” under Article 13 is to encompass a practical
administrative reality that there can be laws other than ordinary
statutory laws. It, therefore, takes within its sweep those matters
(declaration in the form of Byelaws in this case) as having the “force
of law” albeit not enacted by the legislature as such.
104. For, it defines “law” to include ordinances, orders, byelaws,
rule, regulation or notification issued/made by the State. The
precise meanings of these terms cannot be confined in the rigidity
of language and the same is neither desirable nor required in the
present case.
105. The examination revolves around the expression “ having in
irrespective of the
the territory of India the force of law”,
packaging in which the said provision is formally couched. The text
impels us to focus on the substance of the provision, and not its
form. Broadly speaking, law made by State refers to a body of rules
which shapes the rights and liabilities of persons in a universal
sense as opposed to a private transaction between parties. Such law
has the ability to bind people by providing for all prominent aspects
of their conduct as the subjects of law. Therefore, any
61
rule/notification/order/byelaw issued/made by the State or its
instrumentalities would have the force of law and bind all entities
subjected to it and operates as a code of conduct to regulate their
functioning. Yet another crucial characteristic would be
enforceability in a court of law. Needless to observe, we are not
talking about binding codes or set of rules decided by parties for
themselves as they fall under the realm of law of contract. We are
dealing with rules which flow from the instrumentality of the “State”
during the performance of essential public functions.
106. CBSE, despite being packaged as a registered society, is
performing an essential public function for the government since its
establishment in 1929. In Binny Ltd. & Anr. vs. V. Sadasivan &
32
, this Court laid down certain characteristics of public
Ors.
functions thus:
“11. ...It is difficult to draw a line between public functions
and private functions when they are being discharged by a
purely private authority. A body is performing a "public
function" when it seeks to achieve some collective benefit for
the public or a section of the public and is accepted by the
public or that section of the public as having authority to do
so. Bodies therefore exercise public functions when they
intervene or participate in social or economic affairs in the
public interest. In a book on Judicial Review of Administrative
32 (2005) 6 SCC 657
62
Action (5th Edn.) by de Smith, Woolf & Jowell in Chapter 3,
para 0.24, it is stated thus:
"A body is performing a ‘public function’ when it
seeks to achieve some collective benefit for the public
or a section of the public and is accepted by the
public or that section of the public as having
Bodies therefore exercise public
authority to do so.
functions when they intervene or participate in social or
economic affairs in the public interest. This may happen
in a wide variety of ways. For instance, a body is
performing a public function when it provides ‘public
goods’ or other collective services, such as health care,
education and personal social services, from funds raised
by taxation. A body may perform public functions in the
form of adjudicatory services (such as those of the
criminal and civil courts and tribunal system). They also
do so if they regulate commercial and professional
activities to ensure compliance with proper standards.
For all these purposes, a range of legal and administrative
techniques may be deployed, including rulemaking,
adjudication (and other forms of dispute resolution);
inspection; and licensing.
Public functions need not be the exclusive domain of
the State. Charities, selfregulatory organizations and
other nominally private institutions (such as universities,
the Stock Exchange, Lloyd's of London, churches) may in
reality also perform some types of public function. As Sir
John Donaldson, M.R. urged, it is important for the
courts to ‘recognise the realities of executive power’
and not allow ‘their vision to be clouded by the
subtlety and sometimes complexity of the way in
which it can be exerted’. Nongovernmental bodies such
as these are just as capable of abusing their powers as is
Government.””
(emphasis supplied)
The principles associated with a public function deducible from the
above analysis can be illustratively culled out as follows:
63
a. Extension of collective benefit to public by a public
authority;
b. Participation in social or economic affairs including
health, education, social services etc.;
c. Private bodies or charitable institutions performing
public functions could also be regulated in the same
manner as a public authority.
In the school education structure as we have it, there are state
government boards limited to respective states. There are central
boards having its area of operation throughout India, namely,
Council for the Indian School Certificate Examinations (ICSE), a
private board; International Baccalaureate (IB), formerly known as
International Baccalaureate Organization (IBO) a nonprofit
foundation/organization having headquarter in Geneva,
Switzerland; and CBSE.
107. CBSE is the only central body for conducting examinations in
the country created by a resolution of the Central Government. All
the bodies constituted at various levels are working in the direction
of just educational governance. Article 41 of the Constitution,
couched as a directive, is the source behind the basic functioning of
64
the CBSE Board as it secures nothing but right to education. It is
participating in educational affairs which form an intrinsic part of
social affairs. The CBSE Board is a public authority functioning in
public interest for the performance of a public function.
We may gainfully refer to the Constitution of the Board which
108.
reaffirms the public character of the Board as the ultimate control
over the functioning of the Board is exercised by the Ministry of
33
Education (now Ministry of Education & Social Welfare) . Article 1
states that:
“1. The Board shall conduct examinations at the secondary
stage of the education and such other examinations as it may
consider fit, subject to the approval of the Controlling
Authority or as it may be called upon to conduct by the
Government of India, Ministry of Education, (now Ministry of
Education & Social Welfare) and do such acts ancillary to the
objects as may be necessary.”
Article 4 further reads thus:
“4. The Secretary to the Government of India, Ministry of
Education (now Ministry of Education and Social Welfare)
shall continue to be the Controlling Authority of the Board.”
109. Reverting to the CBSE Examination Byelaws, the same are
couched in the form of a code. They provide for all essential
aspects relating to formal education of a student including
33 Now known as “Ministry of Human Resource Development”
65
admission, examination, migration, transfer, curriculum, fee for
various services, issuance of verified certificates, modifications in
certificates etc. This Byelaws, therefore, bind the parties and are
duly enforceable in a court of law, even by way of writ remedies as
we have seen in the present batch of petitions.
110. To put it differently, the Byelaws of the Board have the force of
law and must be regarded as such for all legal purposes. It would
serve no meaningful purpose to hold these authoritative set of rules
originating from an instrumentality of the State as mere contractual
terms despite there being overwhelming public interest in their just
application.
111. The argument that Byelaws of the Board are contractual
elements as CBSE is a registered society unbacked by a statute
cannot be accepted for at least four reasons – , CBSE is not a
first
private corporate body. It is a juristic person and a “State” within
the meaning of Article 12, which in itself warrants its amenability to
the courts including constitutional writ courts; second , the
functions performed by the CBSE Board are public functions and
not private functions; third , the test of “force of law” takes within its
66
sweep the nature of rule, its authoritative impact on the subjects,
nature of function performed by the rule making body, the origin of
the body, the binding value of the rules, existence of any competing
set of rules and , absence of statute does not automatically
fourth
render the rules to be contractual terms, as already observed.
112. As in the ultimate analysis, the Byelaws operate as law, the
scrutiny of this Court cannot be undermined by giving them an
artificial colour. For a student enrolled with the CBSE, there is no
other body of rules but the subject Byelaws for dealing with all
significant aspects of her education. By now it is an established
tenet that even body corporates, cooperative societies, registered
societies etc. can be declared as instrumentalities of the State, for
the only reason that the outer form of organization must not be
allowed to defeat the ultimate constitutional goal of protection of
fundamental rights as and when they suffer at the hands of the
State, directly or indirectly. The Court ought to intervene with
circumspection even when the public body derives its authority
from a government resolution.
67
113. We say so because there is an evolving body of jurisprudence
enunciating that the principle of presumption of constitutionality
attached with statutes ought not to be extended to subordinate
legislations with the same vigour. For, the legislature enjoys the
sacred backing of people’s will and naturally, every act of legislature
is presumed to be constitutional. In other words, the Courts
generally do not look upon duly enacted laws with suspicion at the
first glance as they enjoy legal presumption of its validity.
Nevertheless, circumspect intervention on the part of the Court is to
advance constitutional protection for guarantees under PartIII of
the Constitution.
114. Arguendo, the Examination Byelaws are not “law” under
Article 13, it would not affect the power of the Court to scrutinize
them in reference to PartIII of the Constitution of India as CBSE is
“State” within the meaning of Article 12 and all its actions are
consequently subject to PartIII.
68
Point No. 2
115. The question whether Byelaws under consideration impose
reasonable restrictions on the exercise of rights under Article 19 of
the Constitution of India, may have to be understood in the context
of enunciation of this Court that the core existence of an individual
is not exemplified by her outer characteristics but by her inner self
identification and also about the significance of the acquired
identity in the form of name. The identity of an individual is one of
the most closely guarded areas of the constitutional scheme in
India. The sanctity of identity has been recognized by this Court in
a plethora of cases including
National Legal Services Authority
34
vs. Union of India & Ors. , Navtej Singh Johar & Ors. vs.
Union of India through Secretary, Ministry of Law and
35
Justice and K.S. Puttaswamy and Anr. vs. Union of India &
36 37
Ors . In fact, in Navtej Singh Johar , the Court noted how the
core existence of an individual is not exemplified by her outer
characteristics but by her inner selfidentification. In the context of
34 (2014) 5 SCC 438
35 (2018) 10 SCC 1
36 (2017) 10 SCC 1
37 supra at Footnote No.35
69
natural identity of an individual, this Court in Navtej Singh
38
had noted that:
Johar
“5. The natural identity of an individual should be treated to
be absolutely essential to his being. What nature gives is
natural. That is called nature within. Thus, that part of the
personality of a person has to be respected and not despised
or looked down upon. The said inherent nature and the
associated natural impulses in that regard are to be accepted.
Nonacceptance of it by any societal norm or notion and
punishment by law on some obsolete idea and idealism affects
the kernel of the identity of an individual.
Destruction of
individual identity would tantamount to crushing of
intrinsic dignity that cumulatively encapsulates the
values of privacy, choice, freedom of speech and other
expressions. It can be viewed from another angle. An
individual in exercise of his choice may feel that he/she
should be left alone but no one, and we mean, no one, should
impose solitude on him/her.”
(emphasis supplied)
Identity, therefore, is an amalgam of various internal and
116.
external including acquired characteristics of an individual and
name can be regarded as one of the foremost indicators of identity.
And therefore, an individual must be in complete control of her
name and law must enable her to retain as well as to exercise such
control freely “for all times”. Such control would inevitably include
the aspiration of an individual to be recognized by a different name
for a just cause. Article 19(1)(a) of the Constitution provides for a
38 supra at Footnote No.35
70
guaranteed right to freedom of speech and expression. In light of
39
Navtej Singh Johar , this freedom would include the freedom to
lawfully express one’s identity in the manner of their liking. In other
words, expression of identity is a protected element of freedom of
expression under the Constitution.
117. Having recognized the existence of this right, the essential
question pertains to the rights that flow due to the change of name.
The question becomes vital because identity, as stated above, is a
40
combination of diverse set of elements. Navtej Singh Johar dealt
with “natural identity” and here we are dealing with name, which
can only be perceived as an ‘acquired identity’. Therefore, the
precise scope of right and extent of restrictions could only be
determined upon deeper examination.
118. To begin with, it is important to explain what we understand
by this right to change of name as a constituent element of freedom
of expression of identity. Any change in identity of an individual
has to go through multiple steps and it cannot be regarded as
complete without proper fulfilment of those steps. An individual
39 supra at Footnote No.35
40 supra at Footnote No.35
71
may selfidentify oneself with any title or epithet at any point of
time. But the change of identity would not be regarded as formally
or legally complete until and unless the State and its agencies take
note thereof in their records. Afterall, in social sphere, an
individual is not only recognized by how an individual identifies
oneself but also by how his/her official records identify him/her.
For, in every public transaction of an individual, official records
introduce the person by his/her name and other relevant
particulars.
119. Thus, the essential question is whether the aforesaid right to
alter name would mean that the State and its agencies are
unconditionally bound to reckon the changed identity of the
individual and give recognition to the same by altering its records,
whenever such request is made by him/her.
120. Going by the very nature of rights under Article 19, the right
to get changed name recorded in the official (public) records cannot
be an absolute right and as a matter of public policy and larger
public interest calls for certain reasonable restrictions to observe
consistency and obviate confusion and deceptive attempt.
72
121. We may now examine whether CBSE Byelaws are just and
reasonable restrictions in the context of rights guaranteed under
PartIII and in the interests of the general public.
122. The test of reasonableness requires that the impugned law is
intelligently crafted in such a manner that it is able to justify the
ultimate impact of the law on its subjects. If it restricts, it must
restrict on the basis of reason and if it permits, it must permit on
the basis of reason. Similarly, if a law draws a classification, it
must classify intelligently i.e., backed by reason. Reason is the
foundation of all laws and their validity is immensely dependent on
the availability of sound reason. Equally crucial is the availability
of a legitimate object. It is important to note that reasonableness is
adjudged in the specific context of the case and is not confined to
the words of a definition. In
Om Prakash & Ors. vs. State of U.P.
41
& Ors. , this Court noted thus:
“32. The concept of “reasonableness” defies definition.
Abstract definition like “choice of a course which reason
dictates” as propounded in the earliest case of this Court in
42
Chintamanrao is elastic. In the subsequent case of V.G.
43
Row therefore, this Court has observed that “no abstract
41 (2004) 3 SCC 402
42 Chintamanrao vs. State of M.P., AIR 1951 SC 118
43 The State of Madras vs. V.G. Row, AIR 1952 SC 196
73
standard or general pattern” of reasonableness can be laid
down as applicable to all cases. Legal author Friedmann in his
book Legal Theory, 4th Edn., at pp. 8385, comments that
reasonableness is an expression used to convey basically the
natural law ideal of “justice between man and man”. The
concept of “reasonable man” is also an application of the
principles of natural justice to the standard of behaviour
expected of the citizen. The functional and conceptual
implication of the term “reasonableness” is that it is
essentially another word used for public policy. It means the
application of the underlying principles of social policy and
morality to an individual case. Friedmann further observes
that the “test of reasonableness is nothing substantially
different from 'social engineering', 'balancing of interests', or
any of the other formulas which modern sociological theories
suggest as an answer to the problem of the judicial function”.”
44
In V.G. Row , the Court, noting that there can be no general
pattern of reasonableness, laid down certain factors to be kept in
mind while determining this question thus:
“(15) …It is important in this context to bear in mind that the
test of reasonableness, wherever prescribed, should be
applied to each individual statute impugned, and no abstract
standard, or general pattern of reasonableness can be laid
down as applicable to all cases. The nature of the right
alleged to have been infringed, the underlying purpose
of the restrictions imposed, the extent and urgency of
the evil sought to be remedied thereby, the disproportion
of the imposition, the prevailing conditions at the time,
should all enter into the judicial verdict. …”
(emphasis supplied)
123. As noted above, the Byelaws permit change of name only if
permission from the Court has been obtained prior to the
44 supra at Footnote No.43
74
publication of result. It puts a clear embargo on any change of
name sans prior permission before the publication. The provision
is problematic on certain counts. Firstly, it is not a mere restriction
on the right, it is a complete embargo on the right post publication
of result of the candidate. It fails to take into account the
possibility of need for change of name after the publication of result
including the uncertainty of timeline required to obtain such
declaration from the Court of law due to law’s delay and upon
which the candidate has no control whatsoever. Whereas, while
amending the Byelaws in 2007, the CBSE itself had noted that
children are not of mature age while passing school examinations
and they may not be in a position to decide conclusively on issues
concerning their identity. The Byelaws completely overlook this
possibility when it ordains seeking declaration from the Court prior
to the publication of results of the concerned examination
conducted by it.
124. The overriding state interest, as per the Board, to retain this
stringency is nothing but efficiency of administration.
Administrative efficiency, despite being a crucial concern, has not
75
been and cannot be elevated to a standard that it is used to justify
nonperformance of essential functions by an instrumentality of the
State. To use administrative efficiency to make it practically
impossible for a student to alter her identity in the Board
certificates, no matter how urgent and important it is, would be
highly disproportionate and can in no manner be termed as a
reasonable restriction. Reasonableness would demand a proper
balance between a student’s right to be identified in the official
(public) records in manner of her choice and the Board’s argument
of administrative efficiency. To sustain this balance, it would be
open to the Board to limit the number of times such alterations
could be permitted including subject to availability of the old
records preserved by it as per the extant regulations. But to say
that post the publication of examination results and issuance of
certificates, there can be no way to alter the record would be a case
of total prohibition and not a reasonable restraint.
The limitation as regards maximum period upto which
125.
changes can be permitted also requires a different approach. Upon
receiving the certificates, the student would naturally be put to
76
notice of the particulars of certificates. Due to young age and
inadvertence including being casual and indolent, a student may
fail to identify the errors or to understand the probable impact of
those errors and accordingly, may not apply for rectification
immediately. It is also possible that a student may not have to use
the certificates immediately after passing out and by the time she
uses them, the limitation period for correction may elapse.
Therefore, a realistic time for permitting corrections is very
important. Indeed, it can be commensurate with the statutory or
mandatory period upto which CBSE is obliged to preserve its old
record.
126. However, we need not explore upon the question as to whether
the exercise of a fundamental right can be foreclosed by prescribing
a rigid period of limitation. In case of any ordinary civil rights, it is
important that the action for enforcement of such rights is initiated
in prescribed time and consistency is maintained, but is it
permissible to say the same about fundamental rights? The rights
which are recognised as fundamental under the Constitution are
“preferred or chosen freedoms” and a very sensitive and realistic
77
approach has to be taken in such matters. We wonder whether
after the lapse of prescribed time, let us say 3 years, there could be
no reasonable and legitimate circumstances to warrant change of
name.
At the same time, there is merit in CBSE’s argument that
127.
frequent changes cannot be permitted as there is scope of abuse
and misuse, apart from administrative burden. This argument
cannot be lightly brushed aside. We deem it fit to observe that
same concerns could apply to other bodies as well, like Unique
45
Identification Authority of India and Passport Authority.
128. As regards the argument of misuse, no doubt, there are
instances of misuse of provisions that permit change of identity in
criminal matters. However, mere possibility of abuse cannot deter
the Board from fulfilling their essential functions. A possibility of
abuse cannot be used to deny legitimate rights to citizens. The
balance simply does not tilt in favour of such a proposition. The
course of law cannot choose to change its stream merely because
there are apprehensions of abuse on the way. The Board’s concern
45 for short, “UIDAI”
78
is only to regulate and maintain efficient educational standards. It
is not a penal authority. If any of the provisions of Byelaws are
subjected to misuse or abuse by anyone, the Board would be well
within its rights to approach the appropriate body for necessary
penal or civil action. As a nodal agency made for a specific public
purpose, CBSE can only use its means and resources to put proper
safeguards in place while performing its functions. More so, when
it is not even the job of the Board to verify anything, as changes are
made after grant of permission by a Court of law. There is
involvement of judicial application of mind. The Board only has to
give effect to the Court order granting permission, as and when it is
so pronounced irrespective of publication of examination results in
earlier point of time.
129. Administrative efficiency, we must note, cannot be the sole
concern of CBSE. Every institution desires efficiency in their
functioning. But it does not mean that efficiency is achieved by
curbing their basic functions. Article 9 of CBSE’s Constitution, in
point (xvi), instructively states that CBSE is a body constituted for
79
“regulating and maintaining” the standard of secondary education.
The same is reproduced again for ready reference:
“9. The Board shall have the following powers:
xxx xxx xxx
(xvi) To do all such or other things as may be necessary in
order to further the objectives of the Board as a
body
constituted for regulating and maintaining the standard
of secondary education .”
(emphasis supplied)
The terms “regulation” and “maintenance” are terms of very wide
import and signify that the functioning of the Board is not narrowed
down in any manner whatsoever. Regulation of standard of
education would empower the Board to take all necessary steps, as
permissible under the Resolution and Regulations, to control all
possible aspects of school education that may have a bearing on its
standard. Quality of curriculum, services extended to the students,
effective grievance redressal mechanism, oversight over affiliated
schools etc. are some of the essential elements touching upon the
standard of education. Maintenance of those standards would
demand constant upgradation of rules and services of the Board in
tune with changing needs of the students and the ultimate goal of
education.
80
130. One of the primary functions of the Board is to grant
certificates to its students. Effective maintenance and regulation of
standard of education would include complete accountability of the
Board in grant of such certificates and its duty does not get
extinguished after publication of examination results and issue of
certificates. Rather, it extends to taking care of postpublication
concerns of students as and when they emerge, as students seek to
use their certificates for purposes of higher education and career
opportunities. A narrow reading of the functions of the Board
would leave glaring gaps in the field of school education and may
jeopardize the welfare of students with legitimate concerns.
131. The concerned Byelaw has been framed on the assumption
that there can be no situation wherein a legitimate need for change
of name could arise for a student after publication of results. It is
presumed that only typographical/factual errors could come in the
certificates and they can be corrected using the provision for
corrections. The presumption, we must note, is erroneous, absurd
and distances itself from the social realities. There can be
numerous circumstances wherein change of name could be a
81
legitimate requirement and keeping the ultimate goal of preserving
the standard of education in mind, the Board must provide for a
reasonable opportunity to effect such changes.
It would not be out of place to note that the two parties here –
132.
the Board and students – are not in an equal position of impact. In
other words, the balance of convenience would tilt in favour of
students. For, they stand to lose more due to inaccuracies in their
certificates than the Board whose sole worry is increasing
administrative burden. The obligation of Board to take additional
administrative burden is no doubt onerous but the propensity of a
student losing career opportunities due to inaccurate certificate is
unparalleled. Illustratively, a juvenile accused of being in conflict
with the law or a victim of sexual abuse whose identity gets
compromised due to lapses by media or the investigative body,
despite there being complete legal protection for the same, may
consider changing the name to seek rehabilitation in the society in
exercise of her right to be forgotten. If the Board, in such a case,
refuses to change the name, the student would be compelled to live
with the scars of the past. We are compelled to wonder how it
82
would not be a grave and sustained violation of fundamental rights
of the student. In such circumstances, the avowed public interest
in securing rehabilitation of affected persons would overwhelm the
Board’s interest in securing administrative efficiency. In fact, it
would be against the human dignity of the student, the protection
whereof is the highest duty of all concerned. A Board dealing with
maintenance of educational standards cannot arrogate to itself the
power to impact identity of students who enrol with it. The right to
control one’s identity must remain with the individual, subject, of
course, to reasonable restrictions as observed above and as further
discussed later.
133. The utility of certificates issued by the Board is not confined to
educational purposes anymore. They serve a social purpose today
and are often used to cross verify particulars like name and date of
birth while applying for other government identity documents. They
assume immense relevance while applying for various jobs, both
public and private. Interestingly, CBSE itself has argued at length
on the importance and authoritative value of their certificates. In
such circumstances, an inaccuracy or denial of change could be
83
fatal to a student’s future prospects and all these concerns cannot
be brushed aside in the name of administrative exigencies.
134. Pertinently, the Parliament is also alive to the social realities
having bearing on identity documents. There are various statutory
enactments wherein detailed provisions are made for change of
identity. The UIDAI allows changes in the Aadhar card upon
fulfilment of required conditions. Section31 of Aadhaar (Targeted
Delivery of Financial and Other Subsidies, Benefits and Services)
Act, 2016 provides for changes in the records. The provision
permits both demographic and biometric changes. It reads thus:
“ 31. Alteration of demographic information or biometric
information. — (1) In case any demographic information of an
Aadhaar number holder is found incorrect or changes
subsequently, the Aadhaar number holder shall request the
Authority to alter such demographic information in his record
in the Central Identities Data Repository in such manner as
may be specified by regulations.
(2) In case any biometric information of Aadhaar number
holder is lost or changes subsequently for any reason, the
Aadhaar number holder shall request the Authority to make
necessary alteration in his record in the Central Identities
Data Repository in such manner as may be specified by
regulations.
(3) On receipt of any request under subsection (1) or sub
section (2), the Authority may, if it is satisfied, make such
alteration as may be required in the record relating to such
Aadhaar number holder and intimate such alteration to the
concerned Aadhaar number holder.
84
(4) No identity information in the Central Identities Data
Repository shall be altered except in the manner provided in
this Act or regulations made in this behalf.”
Schedule II attached with Aadhar (Enrolment and Update)
Regulations, 2016 provides for the list of documents acceptable for
the purpose of verification of identity when a request for changes is
made. Proof of Identity could be verified on the basis of following
46
documents :
a. Passport;
b. PAN Card;
c. Driving License;
d. Voter ID
47
For proof of date of birth, following documents are
acceptable:
a. Birth certificate;
b. Passport;
c. Certificate of date of birth issued by Group A
Gazetted Officer on letterhead.
The UIDAI website also notes why such changes could be required
and we feel it relevant to reproduce the same thus:
46 List is merely illustrative, not exhaustive.
47 List is merely illustrative, not exhaustive.
85
“Demographic data update, the need could arise from:
Changes in life events such as marriage may lead to
residents changing their basic demographic details such
as name and address. Address and mobile number could
also change due to migration to newer locations.
Residents may also want changes in their relative’s
details due to changes in life events such marriage, death
of a relative etc. In addition, residents could have other
personal reasons to change their mobile number, email
address etc.
Changes in various service delivery platforms may lead
residents to declaration request changes and to add mobile
number to CIDR etc.
Errors made during the enrolment process wherein the
resident’s demographic data may have been captured
incorrectly. Changes to “DoB/Age” and “Gender” fields are
expected primarily due to enrolment errors.
Since a resident can enrol anywhere in India, it may
happen that a native speaker of language "A" is enrolled by an
operator of language "B" and consequently the resident’s local
language of enrolment is "B". Later, the resident may want to
change the local language of enrolment to another that he/she
prefers. If so, then all the demographic information that is
printed on the Aadhaar letter will need to be updated in the
new local language.
UIDAI may also ascertain availability of POI, POA and
other documents collected at the time of enrolment/update and
its quality and decide to notify resident to update their
demographic information and submit the required document.”
(emphasis supplied)
Apart from changes required due to marriage, migration, death etc.,
the authority takes into account the need for permitting changes
due to “personal reasons”. The underlying idea is to ensure
86
accuracy of record whilst ensuring free exercise of control by an
individual over her identity.
135. Similarly, Section 24 of the Passports Act, 1967 read with the
Passport Rules, 1980 permit change of name and date of birth on
48
the basis of certain documents. The Ministry of External Affairs
permits change of name and other information, including signature,
of the passport holder as a part of its passport services. It allows
change of name under three categories:
“ Change of name may be allowed to the applicant in the
following events:
1. Following marriage, divorce or Remarriage or
2. Adding surname (childhood to adulthood) or
3. Change of complete name.”
It permits such changes on the basis of certain documents which
are listed as:
“ Documents required
(i) Prescribed Deed Poll
(ii) Original newspaper cutting announcing the change of
name published in two leading daily newspapers (in the areas
of residence & permanent residence) – in Indian & local
Newspaper
(iii) The applicant has to furnish a Sworn Affidavit(s) for the
purpose quoting the reason for name change.”
48 for short, “MoEA”
87
The Ministry also permits change in signature on the Passport upon
fulfilment of certain conditions which read thus:
“
Change of Signature
For changing signature in the passport, application for new
passport has to be made and the applicant must append his /
her old signature along with new signature on the second page
of the passport application form along with the following
documents.
Requirements:
1. Application form should be completely filled in and
signed.
2. 4 (four) passport size (35 mm x 45 mm) identical
photographs showing frontal view of full face with white
background.
3. The current passport having valid visa or residence
permit is required to be enclosed. In case the latest passport is
additional booklet(s) issued to the original passport, the
additional booklet(s) plus the original passport must be
furnished.”
Furthermore, the Ministry also permits change of appearance in its
records if it has changed significantly over time, thus:
“Change in appearance
If your appearance has changed significantly since your last
passport was made, you can apply for a fresh passport with a
recent photograph.”
136. What emerges from the above analysis is that the
government(s) is cognizant of its duty to upgrade its identity records
in tune with changing requirements of the citizens. From reasons
purely personal to reasons flowing from life events such as
88
marriage, death or migration, the authorities are responsive to the
changing needs of citizens. As per the nature of identity, changes
are permissible. In light of the clear dicta in
National Legal
49 50
Services Authority and K.S. Puttaswamy , it is bounden duty of
all state instrumentalities to play the role of enablers in the exercise
of rights by the citizens, including to correct their records owing to
purely personal choices of the citizens. For instance, “gender” is an
evolving concept which could warrant changes in identity
documents. In such cases, too much insistence on disclosure of
reasons could be invasive to privacy. Though, in an ultimate
analysis, this exercise of examining the reasons has to be left to the
court of law empowered to permit changes in a specific factual
scenario.
No doubt, it is true that CBSE certificates are not strictly
137.
meant to be considered as identity documents, however, the same
are being relied upon for corroborative purposes in all academic and
career related transactions as foundational document. In fact, the
CBSE itself has conceded to this fact that their certificates are
49 supra at Footnote No.34
50 supra at Footnote No.36
89
relied for all official purposes, as noted above. The date of birth in
matriculation certificate, in particular, is relied upon as primary
evidence of date of birth of a citizen. Therefore, as regards the
information contained in a CBSE certificate, the Board must afford
opportunity to the students to modify it subject to complying with
requisite formalities which are reasonable in nature. If all other
State agencies could allow it for the preservance of consistency and
accuracy, alongside being enablers in free exercise of rights by the
citizens, there is no reason for the CBSE to not uphold that right of
the students. More so, it would be in the interest of CBSE’s own
credibility that their records are regarded as accurate and latest
records of a student worthy of being relied upon for official
purposes. Therefore, this approach would serve twin purposes –
enabling free exercise of rights and preservance of accuracy.
138. We must, however, note that the justiciability of the requested
changes can of course be gone into. Every agency has its own
method of verification while accepting or rejecting changes in their
records. For instance, some agencies use sworn affidavits for
carrying out changes, some agencies require prior permission by a
90
court of law. The CBSE itself uses the same mechanism – prior
permission by court of law and publication in official gazette. We
may discuss the relevance of prior permission by court in deciding
the questions of justiciability and genuineness of requested changes
at a later stage.
139. Law gives no recognition to an act of shunning essential duties
by an entity of the State. There is a settled body of cases which
expounds that a body entrusted with essential public functions
cannot unduly put fetters on its powers. In
Indian Aluminium
51
Company , this Court noted the proposition thus:
“12. This case was followed by Russell. J. in York Corporation
52
v. Henry Leetham & Sons Ltd. . There, the plaintiff
corporation was entrusted by statute with the control of
navigation in part of the rivers Ouse and Fose with power to
charge such tolls within limits, as the corporation deemed
necessary to carry on the two navigations in which the public
had an interest. The corporation made two contracts with the
defendants under which they agreed to accept, in
consideration of the right to navigate the Ouse, a regular
annual payment of £600 per annum in place of the authorised
tolls. The contract in regard to navigation of the Fose was on
similar lines. It was held by Russell, J. that the contracts were
ultra vires and void because under them the corporation had
disabled itself, whatever emergency might arise, from
exercising its statutory powers to increase tolls as from time to
time might be necessary. The learned Judge, after citing Ayr
53
Harbour's case and another case Straffordshire and
51 supra at Footnote No.6
52 (1924) 1 Ch 557
53 (1883) 8 App 623
91
Worcestershire Canal Navigation v. Birmingham Canal
54
Navigation observed:
The same principle underlies many other cases
which show the incapacity of a body charged with
statutory powers for public purposes to divest itself
of such powers or to fetter itself in the use of such
powers.
13. Finally Lord Parker, C.J. said in SouthendonSea
55
Corporation v. Hodgson (Wickford) Ltd. :
There is a long line of cases to which we have not
been specifically referred which lay down that a
public authority cannot by contract fetter the
”
exercise of its discretion.
(emphasis supplied)
56
Similar proposition is enunciated in In the context
J.K. Aggarwal
57
of CBSE, the Delhi High Court in Dhruva Parate noted how
CBSE has created selfimposed restrictions in its Byelaws by
permitting no change of name. The Court deprecated this exercise
of discretion and noted thus:
“8. The interests of efficiency of an organization ordinarily
determine the guidelines that have to be administered; yet
when they constrain the authorities of the organization, which
is meant to subserve the general public, from doing justice, in
individual cases, the guidelines become selfdefeating. In such
cases, as in the present one, the end result would mean that
the petitioner would be left with two certificates with different
names and a whole lifetime spent possibly on explaining the
difference – hardly conducive to him, reflecting the inadequacy
in the system.”
54 1866 LR 1 HL 254
55 1961 2 All ER 46
56 supra at Footnote No.7
57 supra at Footnote No.4
92
In light of the above discussion, we must note that there are no
restrictions on the power of CBSE to permit change of name. The
Constitution, Resolution and Regulations are functional documents
of the Board and none of these documents provide for any such
fetters. Therefore, in the exercise of its discretion, the Board cannot
put fetters on its duties so as to cause grave prejudice to the
students with legitimate causes for changing their certificates. The
exercise of discretion in this negative manner would be arbitrary
and unreasonable, at best.
We, thus, hold that the provision regarding change of name
140.
“post publication of examination results” is excessively restrictive
and imposes unreasonable restrictions on the exercise of rights
under Article 19. We make it clear that the provision for change of
name is clearly severable from those for corrections in name/date of
birth and therefore, our determination shall not affect them except
as regards the condition of limitation period, in terms of the
aforesaid discussion and guidelines stated later.
93
141. Let us now understand the journey of examination byelaws
from 1995 to 2018, as they sailed through multiple amendments
over the course of time.
142. We may begin with Byelaws which were in force upto 2007 i.e.,
upto the 2007 amendment. Byelaw 69 dealt with “Changes in
Board’s Certificate” wherein Byelaw 69.1 covered “Changes and
Corrections in Name” and 69.2 covered “Change/Correction in Date
of Birth”. On an understanding of the language adopted in the
Byelaws, we must note at the very outset that the terms “correction”
and “change” are not used interchangeably in the Byelaws.
Whereas, the term “correction” denotes spelling errors, factual
errors or typographical errors and the term “change” denotes a
complete change of name. For ready reference, a summary of the
development of Examination Byelaws can be tabulated as follows:
| CBSE EXAMINATION BYELAWS | ||||||
|---|---|---|---|---|---|---|
| Correction in<br>candidate’s<br>name | Correction in<br>names of<br>candidate’s<br>father/mother | Change of<br>candidate’s<br>name | Change in<br>names of<br>candidate’s<br>father/mother | Change/correctio<br>n in candidate’s<br>date of birth | Time period | |
| Before 2007<br>Amendment | Permitted to<br>make it<br>consistent with<br>school record. | Permitted to<br>make it<br>consistent with<br>school record. | Alteration/addit<br>ion/deletion<br>permitted to<br>make it different<br>from school<br>record upon<br>fulfilment of two<br>conditions –<br>permission by<br>court of law and<br>notification in<br>government | Alteration/additio<br>n/deletion<br>permitted to<br>make it different<br>from school<br>record upon<br>fulfilment of two<br>conditions –<br>permission by<br>court of law and<br>notification in<br>government | No change in date<br>of birth permitted.<br>Only corrections<br>permitted to make<br>it consistent with<br>school records. | For correction in<br>name No<br>limitation.<br>For D.o.B. within<br>2 years of<br>declaration of<br>result. |
94
| gazette. | gazette. | |||||
|---|---|---|---|---|---|---|
| Post 2007<br>Amendment | Permitted to<br>make it<br>consistent with<br>school record. | Permitted to<br>make it<br>consistent with<br>school record. | No change in<br>name/surname<br>permitted. | No change in<br>name/surname<br>permitted. | Same as before. | For name within<br>10 years of<br>declaration of<br>result.<br>For D.o.B. same<br>as before. |
| Post 2011<br>Amendment | Same as<br>before. | Same as before. | Can be<br>considered on<br>written request<br>of<br>candidate/fathe<br>r/mother duly<br>forwarded by<br>Head of the<br>Institution. | Can be<br>considered on<br>written request of<br>candidate/father<br>/mother duly<br>forwarded by<br>Head of the<br>Institution. | Same as before. | For change of<br>name within 10<br>years of<br>declaration of<br>result. |
| Post 2015<br>Amendment | Permitted to<br>make it<br>consistent with<br>school record<br>but only within<br>one year of<br>result. | Permitted to<br>make it<br>consistent with<br>school record but<br>only within one<br>year of result. | Can be<br>considered upon<br>fulfilment of two<br>prior conditions<br>before<br>publication of<br>result of<br>candidate –<br>permission by<br>court of law and<br>gazette<br>notification. | No change in<br>name of<br>father/mother of<br>candidate<br>permissible. | Same as before.<br>Only time was<br>reduced to one<br>year after<br>declaration of<br>result. | For correction of<br>name within 1<br>year of declaration<br>of result.<br>For D.o.B. within<br>1 year of<br>declaration of<br>result. |
| Post 2018<br>Amendment | Same as before.<br>Time limit<br>changed to five<br>years after<br>declaration of<br>result. | Same as before.<br>Time limit<br>changed to five<br>years after<br>declaration of<br>result. | Same as before.<br>Caption made<br>mandatory for<br>showing the<br>changed<br>information in<br>certificate. | Change in name<br>of father/mother<br>permitted with<br>same conditions<br>as applicable in<br>case of change of<br>name of<br>candidate. | No change in date<br>of birth permitted.<br>Two categories of<br>corrections<br>permitted – as per<br>school records and<br>as per court<br>orders. | For correction of<br>name within 5<br>years of<br>declaration of<br>result.<br>For D.o.B. within<br>5 years of<br>declaration of<br>result. |
The aforesaid table depicts that there is hardly any
143.
consistency in the Examination Byelaws operating during the
relevant period, either in the scope of permissible changes or in the
timelines provided for effecting such changes. Presumably, drawing
upon experiences and judicial pronouncements, the Board had to
carry out frequent amendments in the Byelaws, sometimes to do a
95
somersault and go back to the earlier position. By and large, the
impression gathered from the above tabular analysis is that the
Board has been groping in the dark without having an allpurpose
long term objective policy in place as regards permissible changes.
EXAMINATION OF VALIDITY OF BYELAWS
144. At the outset, we note that there are certain characteristics of
changes that students usually apply for being recorded in their
certificates. Change of name of the student/father/mother,
correction in name of the student/father/mother and correction in
date of birth are the primary ones. All these changes cannot be
weighed with the same scale. Even in the Byelaws, all these
changes are not subjected to the same set of restrictions/conditions
and different changes are circumscribed by different conditions.
The conditions regarding “correction” in name or date of birth
145.
are not as stringent as conditions applicable to change thereof. For
correction in name, the 2018 Byelaws provide for a limitation period
of five years and permit such corrections that can be characterized
as typographical, factual or spelling mistake in comparison with
96
school records. Understandably, a correction would mean retention
of the original record with slight modification to make it consistent
with the school records. This requirement of modification could be
born out of various reasons, namely typographical mistake at the
time of publishing, spelling error or factual error i.e., an error of fact
as it existed at the time when the certificate was published. Thus,
correction in name is done to bring unanimity between the school
records (as they existed at the time of sending information to the
Board) and CBSE certificates. However, if school records are
altered afterwards and Board is called upon to alter its certificates
in light of the updated school records, the same cannot be termed
as correction per se but would be in the nature of recording change.
Therefore, substantially deviating from a “correction”, the Byelaws
provide for an option to “change” the name, which is subject to
different conditions.
146. Similar provision is available for “correction” in date of birth,
either on the basis of school records or on the basis of order of
court. The word “change” is not used for date of birth as, unlike
name, there can only be one date of birth and there can only be a
97
correction to make it consistent with school record or order of
Court. It cannot be changed to replace the former with a fresh date
of one’s choice. Be it noted, provisions relating to correction in
date of birth and name are just and reasonable and do not impose
any unreasonable restriction on permissibility of corrections. The
restriction regarding limitation period shall be examined later, along
with other provisions.
147. The provision for “change” of name is far more stringent and
calls for a thorough review to settle the correct position. As per the
present law, change of name is permissible upon fulfilment of two
prior conditions – prior permission of the Court of law and
publication of the proposed change in official gazette. These
conditions coexist with another condition predicating that both
prior permission and publication must be done
before the
publication of result . What it effectively means is that change of
name would simply be impermissible after the publication of result
of the candidate even if the same is permitted by a Court of law and
published in official gazette. In other words, once the examination
result of the candidate has been published, the Board would only
98
permit corrections in name mentioned in the certificate. Further,
changing the name out of freewill is simply ruled out.
148. Notably, the cases before us pertain to different periods. As
aforesaid, the CBSE byelaws which existed prior to 2007 were
different. The summary of the journey of the examination byelaws
from 2007 till 2018 has been tabulated hitherto. The distinction
between “correction” and “change” was always welldemarcated
including prior to 2007. As regards the correction which could
mean to carry out modification to make it consistent with school
record but when it came to request for change of name of the
candidate or his parents, that could be done only after complying
with the preconditions specified therefor. However, when it came
to change in the date of birth that was completely prohibited. Only
correction regarding date of birth was permitted to be made
consistent with the school record. And for which limitation of two
years from declaration of result was specified. The requirement of
two years cannot be considered as unreasonable restriction. The
candidate and his parents are expected to be vigilant and to take
remedial measures immediately after declaration of result of the
99
candidate. That too for being made consistent with school record.
The Board must follow the discipline of continuation of entries in
the school record as it is vital for pursuing further and higher
education including career opportunities by the candidate.
Significantly, the position as obtained prior to 2007 did not provide
for any time limit within which correction of candidate’s name or of
his parents was to be pursued. These restrictions are certainly
reasonable restrictions while recognising the enabling power of the
Board to alter its record in the form of certificates issued to the
candidate concerned to make it consistent with the school records
or otherwise.
149. Suffice it to observe that frequent amendments in the Byelaws
have been made providing for different dispensations for the
relevant period. For the nature of final directions that we propose
to issue, it may not be necessary to dilate on the validity of the
concerned Byelaw as amended from time to time. Broadly, it can be
noted that the Byelaw recognises two different dispensations. First
is to carry out modifications in the original certificate on request for
making it consistent with the school records of the incumbent. The
100
second is to incorporate particulars in the original certificate which
are different from the school records.
150. Indisputably, the candidate would pursue further education
and explore future career opportunities on the basis of school
records including the CBSE Board. The CBSE maintains its official
records in respect of candidate on the basis of foundational
documents being the school records. Therefore, the CBSE is
obliged to carry out all necessary corrections to ensure that CBSE
certificate is consistent with the relevant information furnished in
the school records as it existed at the relevant time and future
changes thereto including after the publication of results by the
CBSE. However, when it comes to recording any information in the
original certificate issued by the CBSE which is not consistent with
the school records, it is essential that the CBSE must insist for
supporting public document which has presumptive value and in
the given case declaration by a Court of law to incorporate such a
change. In that regard, the CBSE can insist for additional
conditions to reassure itself and safeguard its interest against any
claim by a third party/body because of changes incorporated by it
101
pursuant to application made by the candidate. In the concluding
paragraph, we intend to issue directions to the CBSE Board in light
of the discussion in this judgment. For the nature of uniform
directions that we propose to issue so as to obviate any inconsistent
approach in the cases under consideration including future cases to
be dealt with by the CBSE Board, it is not necessary for us to dilate
on the question of validity of the respective amendments in the
relevant Byelaws effected from time to time.
Point No. 3
BINDING VALUE OF PUBLIC DOCUMENTS
Whether CBSE is obliged to effect changes in the certificates
151.
issued by it upon production of updated public documents (other
than school records), is the next issue for consideration. According
to the Board, it would not be permissible as it has no independent
mechanism to verify the genuineness of the public documents.
Even under the Byelaws, there is no requirement for the Board to
verify the genuineness of the documents. It is simply not the job of
the Board.
102
152. The Byelaws provide for a twotier mechanism for recording
change of name or other details (as indicated above). One of them
is prior permission or declaration by a Court of law to be obtained.
As regards public documents like Birth Certificate, Official Gazette,
Aadhaar Card, Election Card, etc., the same enjoy legal
presumption of its correctness in terms of explicit provisions
contained in Chapter V of the 1872 Act. The 1872 Act extends such
presumption in terms of Section 76 read with Sections 79 and 80 of
the 1872 Act and as in the case of Official Gazette under Section 81
of the same Act. Even other legislations concerning public
documents attach equal importance to the authenticity of such
documents including while making changes in their certificates to
which we have alluded to in this judgment. Understood thus, there
is no reason for the CBSE Board to not take notice of the public
documents relied upon by the candidate and to record change on
that basis in the certificate issued by it, for being consistent with
the relied upon public documents. It matters not if the information
furnished in the public documents is not entirely consistent with
the school records of the incumbent. The CBSE while accepting
103
those documents as foundational documents for effecting changes
consistent therewith may insist for additional conditions and at the
same time while retaining the original entry make note in the form
of caption/annotation in the fresh certificate to be issued by it while
calling upon the incumbent to surrender the original certificate
issued by it to avoid any misuse thereof at a later point of time. It
would be permissible for the CBSE to insist for a sworn affidavit to
be given by the incumbent making necessary declaration and also
to indemnify the CBSE. The fresh certificate to be issued by the
CBSE may also contain disclaimer of the Board clearly mentioning
that change has been effected at the behest of the incumbent in
light of the public documents relied upon by him. In addition, the
incumbent can be called upon to notify about the change in the
Official Gazette and by giving public notice as precondition for
recording the change by way of abundant precaution.
153. This Court in CIDCO vs. Vasudha Gorakhnath
58
, has observed that the records maintained by
Mandevlekar
statutory authorities have a presumption of correctness in their
58 (2009) 7 SCC 283
104
favour and they would prevail over any entry made in the school
register. The Court observed thus:
“18. The deaths and births register maintained by the
statutory authorities raises a presumption of correctness.
Such entries made in the statutory registers are admissible in
evidence in terms of Section 35 of the Evidence Act. It would
prevail over an entry made in the school register, particularly,
in absence of any proof that same was recorded at the
instance of the guardian of the respondent. (See Birad Mal
59
Singhvi v. Anand Purohit .)”
The same position of law can be extended to the mandate laid down
in Right to Education Act and Chapter3 of the CBSE Byelaws
relating to admission of students. Byelaw 6.1 is instructive and
relevant extract thereof reads thus:
“6. Admission: General Conditions:
6.1 (a) A student seeking admission to any class in a ‘School’
will be eligible for admission to that Class only if he:
....
....
(iv) produces:
...
(c) For the purposes of admission to elementary
education, the age of a child shall be determined on the
basis of the birth certificate issued in accordance with the
provisions of the Births, Deaths and Marriages
Registration Act, 1886 or on the basis of such other
document, as may be prescribed, as stipulated in section
14(1) of THE RIGHT OF CHILDREN TO FREE AND
COMPULSORY EDUCATION ACT, 2009.
(d) No child shall be denied admission in a school for lack
of age proof, as stipulated in section 14(2) of THE RIGHT
OF CHILDREN TO FREE AND COMPULSORY
EDUCATION ACT, 2009.”
59 AIR 1988 SC 1796
105
Therefore, even at elementary education level, there is a clear
legislative intent to rely on statutory Birth Certificates for the
purpose of date of birth. The authoritative value of these certificates
is duly affirmed in this scheme.
154. There is no difficulty in correcting CBSE record to bring it in
conformity with the school record. The difficulty arises when a
statutory document is not consistent with the school record. As
observed earlier, the version supported by statutory documents
could be reckoned for the purpose of correction in CBSE certificate
to make it consistent with public documents.
155. Post 2018 amendment of Byelaws, even in case of date of
birth, corrections are permitted on two basis – to bring in
conformity with school records and in pursuance of court order.
The relevant provision reads thus:
“
A. “Correction as per the school records:
i. Corrections to correct typographical and other errors to
make the certificate consistent with the school records can be
made provided that corrections in the school records should
not have been made after the submission of application form
for admission to Examination to the Board.
...
...
106
B. Correction as per Court Orders.
Applications regarding correction in date of birth of candidates
will be considered provided the correction have been admitted
by the Court of law. In cases of correction in date of birth
in documents after the court orders caption will be
mentioned on the document “CORRECTION ALLOWED IN
DATE OF BIRTH FROM _______ TO ___ ON (DATED) ____ AS
”
PER COURT ORDER NO. ____ DATED ____.
156. When a student applies to a Court of law for prior permission
and/or declaration and produces public document(s), the Court
would enter upon an inquiry wherein the legal presumption would
operate in favour of the public document(s) and burden would shift
on the party opposing the change to rebut the presumption or
oppose the claim on any other ground. The question of
genuineness of the document including its contents would be
adjudicated in the same inquiry and the Court of law would permit
the desired change only upon verifying the official records and upon
being satisfied of its genuineness. At the same time, the question of
justiciability of the requested changes would be considered and only
upon being satisfied with the need demonstrated by the student,
the Court would grant its permission. The said permission can
then be placed before the Board along with copy of publication in
the official gazette and requisite (prescribed) fee (if any). The Board
107
would then have no locus to make further enquiry nor would be
required to enter upon any further verification exercise.
157. We may now advert to the dictum of the Kerala High Court in
60
. The same has been relied upon in most of
Subin Mohammed
the impugned judgments for permitting corrections. In that
decision, the Court discussed the inadequacies in the Byelaws and
issued directions to CBSE to correct date of birth with reference to
statutory Birth Certificates provided the request is found to be
genuine. The operative directions read thus:
“41. Hence, to meet the ends of justice, it will be appropriate
for this Court to dispose the Writ Petitions with the following
directions:
(i) That CBSE 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, CBSE may deem it fit.
(iii) CBSE can demand in advance a consolidated fee,
including all expenses for processing such applications.
| ₹ |
|---|
(emphasis supplied)
60 supra at Footnote No.12
108
Thus, the task of determining genuineness of the request was left to
the CBSE, which not only goes contrary to our discussion above but
also fails to take into account the limitations of CBSE as a body.
While considering requests for changes in certificates, CBSE cannot
act as a court and it cannot effectively consider any request over
and above those requests that merely require bringing the
certificates in conformity with the school records or public
documents, as the case may be.
Point No. 4
As noticed in the submissions above, there is a conflict of
158.
opinion amongst the High Courts as regards the point of time which
would determine the applicability of Byelaws. The frequent
amendments carried out by the CBSE had made it imperative for
the courts to grapple with this question. The immediate question is
whether the date of declaration of result or the date of application
for changes would be determinative of the applicable Byelaws. While
addressing this question, the Delhi High Court in Kalpana
109
61
Thakur took the view that the Byelaws existing on the date of
application would apply, irrespective of amendment. This view can
be discerned from the following paragraphs of the judgment:
“12.2 In my view, the submission of Mr. Bansal that amended
Byelaws 69.1(i) would apply, is untenable, for a simple reason
that the amendment to the said byelaw was notified only on
25.06.2015; a date which falls beyond the date on which the
application for change of name was preferred in the instant
case. The argument advanced in support of this submission
by Mr. Bansal that the Office Order was in place prior to the
date of the application, in my view, will not sustain, as the
Office Order, is an internal document, which could have no
legal validity till the position taken therein is put in public
realm. The very fact that a notification in respect of the
amended Byelaw was issued by respondent no. 1/CBSE,
would show, that the decision to amend byelaw 69.1(i)
required a public notice.
12.3 Consequently, all applications for change of name which
are filed prior to notification dated 25.06.2015, will be
governed, in my view, by the unamended Byelaw 69.1(i).
Therefore, quite logically, the petitioners, in my opinion, would
have to be given the reliefs as sought in the writ petition.”
Notably, the question before the Court was slightly different. It was
only whether the unamended Byelaws would continue to apply if
the application was preferred before the date of amendment.
62
Nevertheless, the Kerala High Court in Vyshnav has taken a
different view of the matter and observed that the Byelaws existing
on the date of passing out would apply. It observed thus:
61 supra at Footnote No. 26
62 supra at Footnote No. 27
110
“5. On an analysis of the said rule and amended provision it is
evident that, the first respondent relied on an incorrect
provision in order to nonsuit the petitioner by rejecting the
applications submitted for change of name. Therefore, Exts.P7
and P9 cannot be sustained under law, since the same is
violative of the rule provided for the purpose. Petitioner has
passed out in the year 2013 and therefore, the law as it stood
then has to be taken in to account, since there is no
retrospective operation to the amendment. Therefore, I quash
Exts.P7 and P9, and direct the first respondent to reconsider
the application submitted by the petitioner based on Rule
69(1(i), as it stood before as is specified above.”
159. Considered in the context of the Byelaws, the controversy is
actually simple in nature. The Byelaws consistently provide that
the period of limitation is to be calculated from the date of
declaration of the result and issue of certificate. It means that the
period of limitation begins to run against the student after
declaration of result and publication of certificates as the student is
put to notice of the contents of the document, upon its issue. The
student can now be said to be in a position to verify the correctness
of the certificate(s). The irresistible outcome of this legal position is
that the Byelaws existing on the date of such
declaration/publication of result and issue of certificate would be
relevant for the purpose of effecting changes in the certificates. The
express language of the Byelaws would be defeated if we say that
111
the law existing on the date of application for recording change
would be relevant. That would negate the very importance of
having a period of limitation for correction of the certificates.
If the limitation of applicability of Byelaws was to be reckoned
160.
from the date of application for correction/change and not the date
of result of the examination conducted by CBSE, we would be
leaving things to a state of uncertainty. For, a student who could
possibly have surpassed the limitation period under unamended
Byelaws would regain the right to change the certificates if the
Byelaws existing on the date of application permit so and provide
for a longer period. Similarly, a student who had ten years for
carrying out changes under the unamended Byelaws would lose her
right if Byelaws are amended within the tenyear period so as to
provide for a much shorter, say two years, limitation period.
Certainty, consistency and predictability are the hallmarks of any
legal relationship and it is in the interest of public policy that legal
interpretation preserves and protects these hallmarks. This
determination, however, is only to state the legal position and may
not have any immediate bearing on the cases before us.
112
161. The CBSE also advanced an argument that no changes can be
permitted in its records as there is no fundamental right to claim
that changed records be operative since birth and any change must
only be prospective and not retrospective. The crux of the
63
argument can be traced from paragraph 23 of Rayaan Chawla
which has been relied upon to buttress this submission. It reads
thus:
“23. The legal position that would follow from the above
conspectus of the judgments noted and cited by the learned
Counsel for the parties is that normally a person would have a
right to have his name changed subject to fulfilment of
appropriate formalities/procedures to ensure that there is no
misuse or confusion created on account of the change in
name. The change of name is prospective. ...”
Though a wellmeaning argument advanced to minimise the
possibility of misuse, we are not inclined to accept it as something
64
that could turn the case. The court, in Rayaan Chawla ,
accepted that expression of one’s name in the manner of their
choice is indeed a fundamental right under Article 19(1)(a), but held
that the right is prospective and does not extend to permitting
changes in the documents already issued by the Board. It is
pertinent to note that once changes are permitted in the documents
63 supra at Footnote No.8
64 supra at Footnote No.8
113
of CBSE, it does not ipso facto mean that the changes are given a
retrospective effect. The changes are indeed prospective and to
signify that a remedial measure is provided in the Byelaws, as
existing presently. They provide for the requirement of adding a
caption/annotation with the date of such change along with the
changed particulars so as to indicate within the certificate that the
changes have been made on a date subsequent to the date of
publishing the certificates. The requirement of caption/annotation
is indeed a sufficient safeguard to prevent the usage of
subsequently altered documents as unchanged original records.
Point No. 5
ISSUANCE OF MANDAMUS IN CONTRAVENTION OF BYELAWS
162. The next issue for consideration is whether it is proper for the
High Courts to issue mandamus to the CBSE for correction of
certificates in complete contravention of the Byelaws, without
examining the validity of the Byelaws. For issuing such directions,
65
reliance has been placed upon wherein the
Subin Mohammed ,
65 supra at Footnote No.12
114
Court noted that the case does not involve correction of a
typographical nature, as permissible in the Byelaws, but went on to
uphold the right of the student to apply for changes on the basis of
statutory certificate. It observed thus:
“35. Therefore, we have to proceed on the basis that the bye
law of CBSE cannot be applied to the fact situation. But to
reconcile the date of birth entry in the mark sheet with that of
the entry in the statutory certificate, the candidates should
not be left without any remedy. Their right to approach the
Court for redressing their grievance cannot be ruled out.”
The court then delineated the principles for issuance of writ of
mandamus and noted that in the strict sense, a mandamus would
not lie but considering the damage that the student could face as
regards his career prospects, the permission was granted. In
paragraph 39, it noted thus:
“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
However, if disputed questions of fact arises, it
of each case.
will not be appropriate for this Court to entertain the matter.”
(emphasis supplied)
115
The law regarding the writ of mandamus is settled. The foremost
requirement for issuance of mandamus is the existence of a legal
right against a body which is either a public body or a nonpublic
66
body performing a public function. In , this Court
Binny Ltd.
summed up the principle thus:
“29. Thus, it can be seen that a writ of mandamus or the
remedy under Article 226 is preeminently a public law
remedy and is not generally available as a remedy against
private wrongs. It is used for enforcement of various rights of
the public or to compel public/statutory authorities to
discharge their duties and to act within their bounds. It may
be used to do justice when there is wrongful exercise of power
or a refusal to perform duties. This writ is admirably equipped
to serve as a judicial control over administrative actions. This
writ could also be issued against any private body or person,
specially in view of the words used in Article 226 of the
Constitution. However, the scope of mandamus is limited to
enforcement of public duty. The scope of mandamus is
determined by the nature of the duty to be enforced, rather
than the identity of the authority against whom it is sought. If
the private body is discharging a public function and the
denial of any right is in connection with the public duty
imposed on such body, the public law remedy can be
enforced. The duty cast on the public body may be either
statutory or otherwise and the source of such power is
immaterial, but, nevertheless, there must be the public law
element in such action. Sometimes, it is difficult to distinguish
between public law and private law remedies. According to
Halsbury's Laws of England, 3rd Edn., Vol. 30, p.682,
“1317. A public authority is a body, not necessarily a
county council, municipal corporation or other local
authority, which has public or statutory duties to perform
and which perform those duties and carries out its
transactions for the benefit of the public and not for
private profit.”
66 supra at Footnote No.32
116
There cannot be any general definition of public authority or
public action. The facts of each case decide the point.”
In the present case, the question is not whether CBSE was
amenable to writ of mandamus or not. For, we have already held
the Board being a public body is performing a public function. The
question is whether there was an enforceable legal right in favour of
students to seek such a direction and whether Byelaws have the
force of law and directions can be issued by the court only in
conformity thereof.
163. The impugned judgments categorically note that the request
for changes could not be permitted as per the Byelaws. Thus, there
was no demonstration or inquiry to determine the existence of any
legal right in favour of students. Even if we assume that courts
issued directions purely on the basis of fundamental rights, there is
no discussion or inquiry in this regard. More so, there is no
attempt to examine the vires of the Byelaws in light of the breach of
fundamental rights, as discussed in the initial part of this
judgment. Absent any such adverse determination on the validity
of the applicable rules, the fundamental principle of rule of law
demands that such rules be given their intended effect. Even if a
117
constitutional Court feels that the case at hand is deserving of an
extraordinary remedy, it may do so using its wide powers under
Article 226 but only upon specific appraisal of the facts of the case
and after duly demonstrating the extraordinary character of the
case. Despite holding that the prayers are impermissible under the
Byelaws, the Courts in the present set of cases went on to issue
directions to the Board without having any regard to the factual
circumstances of the case or to the nature of changes sought by the
students, by mechanically relying upon the dictum in
Subin
67 68
Mohammed . We must note that Subin Mohammed is not in
challenge before us but must be now understood in terms of
opinion recorded in this judgment. Our concern is with the manner
in which mechanical reliance has been placed upon the earlier
decision for deciding cases which involved an altogether different
set of changes.
164. Once a Court of law notes that the applicable rules do not
permit it to grant a particular relief and it still goes on to grant the
relief on sympathetic grounds, such decisions can in no way be
67 supra at Footnote No.12
68 supra at Footnote No.12
118
treated as precedents. We are constrained to note that following
such decision as precedent will be in utter disregard of the well
established principle of “equity acts in personam” and, thus, courts
cannot deploy equity in “rem” by replicating the same order,
disregarding the personal characteristics of the case at hand. There
69
can be no application of Subin Mohammed to a different set of
facts.
165. The High Courts, being constitutional Courts, are duly vested
with the power to review any law in light of PartIII. Despite being
called upon to do so, if they choose not to do it, the same cannot be
countenanced. There cannot be mechanical directions by way of
mandamus to a public authority without going into the veracity of
the claims and without sufficiently explaining why the case
demands extraordinary treatment.
70
In fact, in , a twoJudge Bench of this
166. Md. Sarifuz Zaman
Court noted that such exercise of power in itself would be arbitrary.
It observed thus:
69 supra at Footnote No.12
70 supra at Footnote No.16
119
“10. ...
People, institutions and government departments,
etc. — all attach a very high degree of reliability, near
finality, to the entries made in the certificates issued by
the Board. The frequent exercise of power to correct
entries in certificates and that too without any
limitation on exercise of such power would render the
power itself arbitrary and may result in eroding the
credibility of certificates issued by the Board. We,
therefore, find it difficult to uphold the contention that the
applicants seeking correction of entries in such certificates
have any such right or vested right.”
(emphasis supplied)
Thus, the Courts need to be extra cautious and alive to the
immediate factual position before permitting changes. No two
requests for change of name or change in date of birth can be
viewed with the same judicial eye. Sometimes, change of name
could be a necessity, sometimes it could be a pure exercise of
freewill without any need. As long as Byelaws or the applicable
rules permit so, there is no occasion for any court to deny such
relief. But when Byelaws do not permit for the same, the Court
must be circumspect before issuing directions, that too without
commenting upon the validity of the Byelaws and without
demonstrating the rights which are at stake – constitutional or
legal.
120
167. Before proceeding further, we must briefly note that the
71
dictum of this Court in has been relied upon
Md. Sarifuz Zaman
by the Board to contend that it prohibits any change in
contravention of the Byelaws as it does not recognize any legal right
to claim such changes beyond the prescribed conditions. It has also
72 73
been asserted that and
Md. Sarifuz Zaman Subin Mohammed
contradict each other. Whether the two judgments are in conflict
with each other is an examination that is not called for. For, we
74
have not placed any reliance upon Subin Mohammed for deciding
75
this case and also because is a judgment of
Md. Sarifuz Zaman
76
this Court as against Subin Mohammed is a judgment of the
Kerala High Court. It requires no reiteration that even if a conflict
exists, the judgment of this Court must prevail under all
circumstances unless there is another judgment of larger Bench of
this Court which takes a different view.
71 supra at Footnote No.16
72 supra at Footnote No.16
73 supra at Footnote No.12
74 supra at Footnote No.12
75 supra at Footnote No.16
76 supra at Footnote No.12
121
168. Be that as it may, we must examine the dictum of this Court
77
in . The case involved a request for
Md. Sarifuz Zaman
correction of clerical nature in date of birth to bring it in conformity
with the correct school records. Paragraph 3 notes thus:
“3. One of the respondents, a student, having taken his
education in Government Boys Higher Secondary School,
passed the matriculation examination conducted by the Board
of Secondary Education, Assam, in the year 1991. Thereafter,
he passed higher secondary examination and then BSc
examination in the year 1998. When he filed the writ petition,
he was undergoing a course of study in computers. At that
point of time, on 12101999, he moved an application to the
Board complaining that his date of birth was wrongly
mentioned in the school records as 3051974, while his
actual date of birth was 1681975. The mistaken date of
birth, as forwarded by the school, had crept into the admit
card issued by the Board. The writ petitioner student pleaded
that he did not realise the importance of the correct date of
birth being entered into the school records, and therefore, he
did not also realise the implications thereof until he was
prompted in moving the application. The application moved by
the respondent to the Principal of the school, was forwarded
by the latter to the Board. The Principal indicated that the age
of the respondent was entered as 1681975 in the admission
register and other school records, but it was by mistake that
while filling the form of the Board examination, the date of
birth was wrongly entered as 3051974. The Principal
described the mistake as “clerical” and recommended for its
correction. As the Board did not take any decision on the
application, the respondent filed a writ petition in the High
Court.”
The Court was considering the Regulations framed under the
Assam Secondary Education Act, 1961 which provided for a three
77 supra at Footnote No.16
122
years’ period post the declaration of result for effecting corrections
in their certificates. The student approached the Board after the
expiry of three years and thus, the primary question before the
Court was only whether the three years’ period would be enforced
as per Regulations or any relaxation could be given. The Court
refused to give any relaxation stating that expiry of limitation would
extinguish the remedy. In paragraph 12, it notes thus:
“12. Delay defeats discretion and loss of limitation destroys
the remedy itself. Delay amounting to laches results in benefit
of discretionary power being denied on principles of equity.
Loss of limitation resulting into depriving of the remedy, is a
principle based on public policy and utility and not equity
alone. There ought to be a limit of time by which human
affairs stand settled and uncertainty is lost. Regulation 8
confers a right on the applicant and a power coupled with an
obligation on the Board to make correction in the date of birth
subject to the ground of wrong calculation or clerical error
being made out. A reasonable procedure has been prescribed
for processing the application through the Inspector of
Schools who would verify the school records and submit
report to the Board so as to exclude from consideration the
claims other than those permissible within the framework of
Regulation 8. Power to pass order for correction is vested on a
high functionary like Secretary of the Board. An inaccuracy
creeping in at the stage of writing the certificates only, though
all other prior documents are correct in all respects, is capable
of being corrected within a period of three years from the date
of issuance of certificate.”
It, then, held the three years’ period to be a reasonable time as it is
sufficient time for a student to notice any error in her certificates.
Paragraph 13 notes thus:
123
“13. Threeyear period provided by the Regulation, is a very
reasonable period. On the very date of issuance of the
certificate, the student concerned is put to notice as to the
entries made in the certificate. Everyone remembers his age
and date of birth. The student would realise within no time
that the date of birth as entered in the certificate is not
correct, if that be so, once the certificate is placed in his
hands. Based on the certificate the applicant would seek
admission elsewhere in an educational institution or might
seek a job or career where he will have to mention his age and
date of birth. Even if he failed to notice the error on the date of
issuance of the certificate, he would come to know the same
shortly thereafter.
Thus, the period of three years, as
prescribed by Regulation 3, is quite reasonable. It is not
something like prescribing a period of limitation for
filing a suit. The prescription of three years is laying
down of a dividing line before which the power of the
Board to make correction ought to be invoked and beyond
which it may not be invoked. Belated applications, if allowed
to be received, may open a Pandora's box. Records may not be
available and evidence may have been lost. Such evidence —
even convenient evidence — may be brought into existence as
may defy scrutiny. The prescription of three years' bar takes
care of all such situations. The provision is neither illegal nor
beyond the purview of Section 24 of the Act and also cannot be
called arbitrary or unreasonable. The applicants seeking
rectification within a period of three years form a class by
themselves and such prescription has a reasonable nexus with
the purpose sought to be achieved. No fault can be found
therewith on the anvil of Article 14 of the Constitution.”
It can be noticed that apart from a wholly different factual matrix,
78
the Court in Md. Sarifuz Zaman was dealing with a very narrow
question of reasonability of the limitation period for correcting
clerical mistakes under the umbrella of a statutory law. The Court
had no occasion to deal with circumstances wherein a person would
78 supra at Footnote No.16
124
want to change her name out of her freewill in exercise of her
guaranteed fundamental rights under the Constitution. The Court
was looking at it as a purely civil transaction and in fact, treated it
like one while speaking of how the expiry of limitation would
entirely bar the remedy. As already observed above, we reiterate
that we see a difference between rights originating under the civil
laws and rights considered to be fundamental under the
Constitution and protected as such. The exercise of a fundamental
right can, at best, be regulated on reasonable grounds but not
entirely foreclosed without a strong and legitimate purpose. Except
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that the dictum in pertains to the specific
Md. Sarifuz Zaman
facts of its case and also because no prejudice was actually caused
to the student in that case (the changes were anyway permitted), we
say no more.
CONCLUSION AND DIRECTIONS TO CBSE
79 supra at Footnote No.16
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169. Although we have discussed the broad issues canvassed
before us, in the ultimate analysis the real dispute requiring
resolution is about the nature of 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.
170. 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. 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 replacing it with the
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fresh certificate to be issued after carrying out necessary
corrections 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 the
application for recording correction in certificate issued by it may be
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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. 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. In 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
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records of the incumbent need not be limited to application made
prior to publication of examination results of the CBSE.
171. 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.
(a) 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 subject
to certain reasonable conditions to be fulfilled by the applicant as
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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).
(b) 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
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that regard and publication in the Official Gazette including
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 right to be forgotten) and to
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
mechanism to verify the correctness of the claim of the applicant.
172. In light of the above, in exercise of our plenary jurisdiction, we
direct the CBSE to process the applications for correction or
change, as the case may be, in the certificate issued by it in the
respective cases under consideration. Even other pending
applications and future applications for such request be processed
on the same lines and in particular the conclusion and directions
recorded hitherto in paragraphs 170 and 171, as may be applicable,
until amendment of relevant Byelaws. Additionally, the CBSE shall
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take immediate steps to amend its relevant Byelaws so as to
incorporate the stated mechanism for recording correction or
change, as the case may be, in the certificates already issued or to
be issued by it.
173. Accordingly, we dispose of the cases before us with directions
to the CBSE as noted in paragraphs 170 to 172 above. No order as
to costs.
..................................J.
(A.M. KHANWILKAR)
..................................J.
(B.R. GAVAI)
..................................J.
(KRISHNA MURARI)
New Delhi;
June 03, 2021.
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