ORDER
C.M. Nayar,J.
1. The present petition is directed against the respondents for issuance of a writ of mandamus directing them to make the correction in the date of birth of the petitioner mentioned in the date of birth certificate issued by respondent No.1 which is filed as Annexure P-III to the writ petition. The date of birth in that certificate is indicated as 18th March, 1967.
2. The averments made in the writ petition are that the petitioner was born at Jeewan Hospital, New Rohtak Road, New Delhi on 13th August, 1967 and was admitted to J.D.Tytler School, New Rajinder Nagar, New Delhi in Nursery class on 3rd April, 1972. On June 20, 1984 the petitioner was issued the date of birth certificate by Central Board of Secondary Education (for short CBSE) respondent No.1, and it is alleged that by mistake the date of birth mentioned was 18th March, 1967 which in fact is the date of birth of another student also named as Rajesh Jain son of Shri Bhushan Jain and both the entries, it is stated, appear on the same page of the Admission and Withdrawal Register as maintained by the school. It is further stated that in August, 1997 the petitioner contacted the CBSE to get his date of birth corrected in the certificate issued by CBSE but the petitioner was informed that necessary correction could only be made on the advice of the School Authorities as the entries in the record of CBSE are on the basis of the particulars as furnished by the School Authorities. Thereafter the petitioner contacted the School and was surprised that his date of birth was recorded as 13th April, 1967. He was advised to produce evidence other than the Horoscope in support of his date of birth in order to get the same corrected. The petitioner procured his birth certificate from Municipal Corporation of Delhi as well as certificate from Jeewan Hospital where he was born. The principal of the school on being fully satisfied on March 31, 1998 made the necessary correction in the school record, such as, the Admission and Withdrawal Register and communicated the same to CBSE. The respondents 1 to 3, however, declined to correct the entry and issued a fresh certificate to the petitioner and maintained that no correction could be made as it did not relate to clerical or typographical error. The petitioner aggrieved by the action of the respondents has filed this petition for the relief of issuance of a writ of mandamus for showing the date of birth of the petitioner as 13th August,1967 instead of 18th March, 1967.
3. Notice of the petition was issued to the respondents to show cause and as a consequence thereto the respondents have filed counter affidavit on 12th March, 1999 where primarily the main plea which is taken is referred to in paragraph 5 which reads as follows:
'The writ petition involves disputed question of facts which may not be adjudicated by the Hon'ble Court in the present petition. The entries in the record of Central Board of Secondary Education are made on the basis of the entries made in the school register. In case there is any discrepancy between the entry already made in the school register at the time of admission and the entry sent to the Central Board of Secondary Education, discrepancy can be corrected as the `Correction' in the date of birth according to the rules and regulations of the Central Board of Secondary Education. However the entries made in the school register cannot be changed by the school and on the basis of changed entries the candidate is not entitled for change of date of birth in the record of Central Board of Secondary Education. The date of birth of the petitioner as recorded in the school as alleged by the petitioner is 13-4-1967 and in the circumstances the date of birth of the petitioner can not be corrected to 13-8-1967 as has been alleged by the petitioner. The school of the petitioner could not change the date of birth of the petitioner on the basis of alleged documents alleged by the petitioner. The case of the petitioner is not of correction of date of birth and he is not entitled for change of date of birth in the garb of correction of date of birth. The date of the birth of the petitioner cannot be changed in accordance with the examination bye laws of the Central Board of Secondary Education, which have been reproduced here for the sake of reference.
'69.2 Change/Correction in date of Birth:-
i. Correction in date of birth means removing typographical and other errors to make the certificate consistent with the school records. Change in date of birth means alteration, addition, deletion to make it different from the school records.
ii. Chairman may permit correction in Date of Birth of a candidate in case of genuine clerical errors, if it is proved that a wrong entry was made in the list of candidate/application form of the candidate for the examination.
iii. Request for correction in Date of Birth shall be forwarded by the Head of the Institution Along with :
(a) application for admission of the candidate to the school;
(b) portion of the page of admission and withdrawal register where entry in date of birth has been made;
(c) the school leaving certificate of the previous school submitted by the parents of the candidate at the time of admission.
iv. No change in date of birth shall be allowed after the application for examination of the candidate has been received in the Board's Office. ..... ...... .........'
4. The respondents reconsidered the representation of the petitioner and passed a reasoned order on April 9, 1999 and rejected the plea of the petitioner by basing reliance on Bye-law 69.2 as referred to above and reiterated that the change of date of birth does not amount to remove the typographical and other errors. thereforee, no change was required under the bye-laws and as a consequence declined to issue a fresh certificate by incorporating the amended date of birth.
5. The learned counsel for the petitioner has contended that there was a typographical and clerical error first in recording the date of birth of the petitioner in the school records as 13th April, 1967 instead of 13th August, 1967 and then indicating the same again erroneously as 18th March, 1967. This error has since been corrected by the school itself and the date of birth has since been revised to 13th August, 1967 as will be indicative from the letter of the Principal dated 31st March, 1998 to the Secretary, Central Board of Secondary Education, New Delhi which is filed as Annexure P-VI at page 21 of the writ petition. Reference is also made to the Admission Form as allegedly filled by Smt. Kanti Devi Jain mother of the petitioner on 3rd April, 1972 where the date of birth is shown as 13th August, 1967. Photostat copy of the same has been placed on record. In this background it is argued that the respondents should have corrected the date of birth from 18th March, 1967 to 13th August, 1967.
6. The learned counsel for the respondents, on the other hand, has vehemently argued that the only provision which provides for correction of date of birth is bye-law 69.2 which has earlier been referred to and that does not permit the change of date of birth of the petitioner as it does not amount to removal of typographical and other errors to make the certificate consistent with the school record. Reliance has been placed on the judgments reported as Jhandeshwar Prasad Dwivedi Vs . The Chief Engineer P.W.D. U.P. Lucknow and others : AIR1977All174 ; Union of India Vs . Harnam Singh : (1994)ILLJ318SC and Secretary and Commissioner, Home Department and others Vs . R. Kirubakaran : (1994)ILLJ673SC .
7. To determine the real controversy between the parties it was found necessary to issue notice to the School as well as to the Municipal Corporation of Delhi who are responsible for recording the dates of birth to produce the original record of the petitioner. The School has produced the original register where it is indicated that the date of birth of the petitioner has been corrected to 13th August, 1967 on 31st March, 1998. The Municipal Corporation of Delhi has also produced the Register of Births for the year 1967 wherein the entry in respect of birth of the petitioner is made at Seriall No. 620 indicating the date of birth as 13th August, 1967. The relevant page of the Register reads as follows:
SEX Where Born
Annual Monthly Date of Date of Name Male Female Born Natio- Door
Number No. Regist- Birth of alive nality no./
ration Child or Str-
caste eet
'618..........619. 54 14/8/67 13/8/67 - - F Yes H Tibbia College Hospital
620. 55 14/8/67 13/8/67 - M - Yes H Jeewan ospital
67/1,
Rohtak
Road.
621. 56 14/8/67 13/8/67 - - F Yes H Jeevan
Hospital
67/1,
Rohtak
Road.
622.......
Number of chil-
dren of this
mother includ-
ing this child
Father Mother
Name Age Occup- Address Name Age Occu- Total No.
ation pation No.
619. Dharam 30 Service 52/38, Parbati 26 H.W. 3 3
Dutt Anand Devi
Parbat
Gali No.16,
Delhi.
620. K.C.Jain 39 Business H.No.4493 Kanta 30 H.W. 5 5
Pahari
Dhiraj
Delhi.
621. Amelak 29 Service 10944/3 Sat Nam 26 H.W. 1 1
Singh Doriwalan Kaur
Delhi.............................'
The relevant page indicating the dates of birth of other children born on the dates as indicated will not leave any doubt that the petitioner was born on 13th August, 1967 and there can be no scope of manipulation as all entries relate to the year 1967.
8. The school record which has since been amended as well as the original Municipal record for the year 1967 clearly establish that the petitioner was born on 13th August, 1967 and the entry which is made in the certificate issued by the respondents is required to be corrected. The judgment of the Allahabad High Court in Jhandeshwar Prasad Dwivedi (supra) which has been cited by learned counsel for the respondents relates to the change of entry of wrong date in the certificate for the purposes of retirement where the petitioner had been superannuated. Reference is made to paragraphs 2 and 3 of this judgment which read as under:
'2. Learned counsel then urged that a mandamus be issued to the Board of High School and Intermediate Education to correct the date of birth in the High School Certificate because the Board had refused to entertain the matter on the ground that the matter was being raked up after the lapse of forty years. According to him, the entry of wrong date in the Certificate is due to a clerical error and can always be corrected. There is no doubt that a person who makes the mistake can correct the mistake. It is, however, not possible from the facts in the present case to infer that the mistake in the High School Certificate issued in the year 1935 occurred due to any mistake of the Board. There is no allegation in the petition that the petitioner had shown his date of birth in the application form for appearing in the Board's High School Examination as 5th May, 1919 and not as 5th May, 1917. In the absence of any such allegation, it cannot be said that the Certificate issued by the Board contains any clerical error or any error caused by the mistake of the Board.
3. On effect, the argument of the learned counsel is that the Board should, on the basis of the evidence, which the petitioner might produce before the Board, such as the entry in the scholar's register and the statements of his father and uncle made in some cases in Courts of law, give a finding that the petitioner was born in 1919 and not in 1917 and then correct the entry in the Certificate. If this is to be done, it will amount to adjudication and not correction of clerical error. No provision of law has been shown under which the Board has either such a power or such a duty. Even if it may be permissible for the Board to make the correction, unless a duty is cast by law on the Board to adjudicate and determine the correct date of birth of a person who takes up the examination no mandamus can issue to the Board to enter into an enquiry and correct the High School Certificate.'
The reading of the above paragraphs will show that the necessary action was initiated by the petitioner therein to impugn the date of superannuation after a lapse of 40 years and was based on the evidence as adduced.
9. The facts as referred to in the judgment of the Supreme Court as reported in Union of India v. Harnam Singh (supra) will also not support the contention of learned counsel for the respondents as the application for correction of date of birth entered in the service book was hopelessly belated and was moved to impugn the superannuation by correction of date of birth entered in the service book as far back as in the year 1956. The Court, thereforee, rejected the contention of the petitioner therein and allowed the appeal of the Union of India. Similarly the judgment reported as Secretary and Commissioner, Home Department and others (supra) also related to the correction of date of birth of a public servant. Paragraph 7 of the same reads as follows:
'7. An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months,after the date of superannuation. The court or the tribunal must, thereforee, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior.'
10. In the present case the petitioner was stated to be born on 13th April, 1967 by School Authorities which was recorded in error and subsequently the same was shown as 18th March, 1967 whereas it is contended that it is required to be corrected to 13th August, 1967. The school itself has corrected the same by holding that it was a typographical error. The Hospital record as well as the statutory record as maintained by the Municipal Corporation of Delhi also show the petitioner to be born on 13th August, 1967. The entry at Seriall No. 620 of the Municipal Register which is a public document obviously was made on 14th August, 1967 and cannot, in any manner, be held to be wrong. There are entries before this entry as well as after the entry and maintaining of the Register is a continuous process. The original record has been produced in Court which reiterates the averments of the petitioner.
11. In view of the above reasons it is established that the respondents are required to act under Bye-law 69.2 of the Examination Bye-laws as it will only amount to removing of typographical error which is permissible.
12. The present petition is, accordingly, allowed. Rule is made absolute and a writ of mandamus is issued to the respondents to issue a revised certificate to the petitioner indicating the date of birth as 13th August, 1967 instead of 18th March, 1967. There will be no order as to costs.
13. Let copy of the judgment be given to counsel for both the parties forthwith on payment of usual charges.