IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 972 OF 2011 with WRIT PETITION NO. 6729 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 1 Shankar S/o. Pandharinath Nagare, Age 22 years, Occ. Educatoin, R/o. At Post Pratappur, Taluka Sangamner, Dist. Ahmednagar. .. PETITIONER VERSUS 1] The State of Maharashtra through the Secretary Education Department Mantralaya, Mumbai – 32. 2]The Divisional Secretary Maharashtra State Board of Secondary and Higher Secondary Education, Pune. .. RESPONDENTS. --- Mr. A.K. Tiwari, Advocate holding for Mr. Girish B. Kadlag, Advocate for petitioner Mr. K.M. Suryawanshi, AGP for respondent No.1. Mr. D.V. Soman, Advocate for respondent No.2. WITH IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 972 OF 2011 with WRIT PETITION NO. 6729 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 2 2] WRIT PETITION NO. 6729 OF 2011 Yogesh s/o. Namdeo Lokhande, Age 20 years, Occupation Education R/o. Sangvi (Kh) (Lokhandewadi) Tq. Pathardi, Dist. Ahmednagar. ... PETITIONER. VERSUS 1] The State of Maharashtra through the Secretary. Department of Secondary Education, Mantralaya, Mumbai-32. 2] The Divisional Secretary Maharashtra State Board of Secondary and Higher Secondary Education, Pune 3] The Head Master, Shri Tilok Jain Secondary & Higher Secondary School, Pathardi, Dist. Ahmednagar. 4] The Education Officer (Secondary) Zilla Parishad, Ahmednagar. .. RESPONDENTS. --- Mr. S.G. Magre, Advocate i/b Mr. R.N. Kolekar, Advocate for petitioner. Mr. K.M. Suryawanshi, Assistant Govt. Pleader for respondent No.1. Mr. D.V. Soman, Advocate for respondent No.2. CORAM :- B.R. GAVAI & M.T. JOSHI, JJ. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 972 OF 2011 with WRIT PETITION NO. 6729 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 3 DATE :- 13th SEPTEMBER, 2011. ORAL JUDGMENT [ PER B.R. GAVAI,J.] :- 1] Leave to amend in W.P. No. 6729/2011 is granted. 2] Rule. Rule made returnable forthwith. Heard finally by consent of parties. Since a common question of law arises in these petitions, the same are being disposed by this common judgment. 3] By way of present petition, the petitioners have prayed for a direction to respondent No.2, to correct their respective date of birth. 4] The petitioner in W.P. No. 972/2011 had passed SSC examination in the year 2005. Subsequently, he has been selected in Army. After the selection, when the documents were verified by the Department of Personnel in the Army, it was noticed that the petitioner's date of birth in all the documents is 17.7.1988, except the SSC certificate, wherein his date of birth has been incorrectly recorded as 17.8.1988. The petitioner, therefore, applied to the SSC Board and requested for change in IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 972 OF 2011 with WRIT PETITION NO. 6729 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 4 the entry regarding date of birth. It is to be noted that the application of the petitioner was duly recommended by the School in which he was studying. However, the application was rejected since it was filed beyond a period of 3 years from the date of declaration of result. 5] In so far as W.P. No. 6729/20011 is concerned, the petitioner therein had appeared for SSC examination in the year 2007. In the SSC certificate, his date of birth is recorded as 5.3.1991, whereas, in all other documents, it is recorded as 29.6.1991. The petitioner has been admitted to the course of Diploma in Nautical Sciences conducted by the International Maritime Academy of Chennai. However, the said Academy, on noticing the discrepancy in the date of birth of the petitioner, vide, notice dated 6th August, 2011, directed him to make necessary corrections, failing which his admission was to be cancelled. The petitioner in this writ petition also applied to the respondent Board with due recommendation of the school. However, the said application for change in entry regarding date of birth has also been rejected on the ground that the application is filed beyond 3 years. 6] Shri Soman, larned counsel for the respondent Board relying on the judgment of the Apex Court, in the matter of “Board of Secondary Education of Assam Vs. Sarifuz Zaman” IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 972 OF 2011 with WRIT PETITION NO. 6729 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 5 reported in 2003-SCC-12-408. submits that the rule which requires an application for correcting the date of birth within a period of 3 years has been upheld by the Apex Court to be a reasonable one and, therefore, it is submitted that no error could be found with the decision of the Board in not entertaining the applications of the petitioners. 7] Learned counsel for respondent Board also relied on the judgment of the Apex Court in the matter of “ State of Haryana Vs. Satish Kumar Mittal and another” reported in 2011(1) Mh.L.J. 677, in support of the proposition that the application for change in date of birth has to be made within the period prescribed by the rules and if no such period is prescribed by the rules, then the same has to be made within years. 8] In so far as judgment in the matter of Board of Secondary Education Assam (supra), is concerned, in the said case, an application which was filed beyond 3 years was not entertained by the Assam Board. Accordingly, a petition was filed before the learned Single Judge of the Assam High Court, which was dismissed. However, the appeal preferred thereagainst, was allowed by the Division Bench of the High Court, and a Mandamus was issued to the Board, to issue the certificate as prayed. Being aggrieved thereby, the Board had approached the Apex Court. A statement was made before the Apex Court, that the Board was IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 972 OF 2011 with WRIT PETITION NO. 6729 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 6 not interested in upsetting the relief which was granted in favour of the petitioner therein. However, it was interested in contesting the correctness of the rules. Upon consideration of the rival submissions, the Apex Court was pleased to uphold the rules. 9] It appears that the respondent No.2 – Board, on the basis of the judgment of the Apex Court , in the aforesaid case, has amended the Rules. However, the said Rules have come into effect w.e.f. 8.9.2009. 10] In view of the judgment of the Apex Court (cited supra) no challenge can be entertained to the validity of the said Rules and the said Rules will have to be held to be valid. However, it is to be noted that the amendment to the said rules, has come into effect w.e.f. 8.9.2009. The rules which were in existence prior to 8.9.2009 did not lay down any outer limit for making an application for change in date of birth. Admittedly, both the petitioners have passed their SSC examination prior to 2009, i.e. in November, 2005 and March, 2007, respectively. Since the petitioners have passed their SSC examination prior to the said amendment i.e. before 8.9.2009, the amended rules would not be applicable to the petitioners. 11] It could be further seen that the Rules have been made applicable prospectively. In any case, the rules could not IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 972 OF 2011 with WRIT PETITION NO. 6729 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 7 have been made applicable retrospectively to the disadvantage of the petitioner. If the Correction as sought is not allowed, then the petitioner – Shankar Nagre would be deprived of his valid selection in the army, whereas, the petitioner – Yogesh Lokhande, would be deprived of undergoing of his course in Diploma in Nautical Sciences. 12] In so far as the judgment in the case of “ State of Haryana” (supra) is concerned, no doubt, the Apex Court has held that the application for correction of date of birth has to be made in the period prescribed or if no such period is prescribed by the rules, then it has to be made within a reasonable period from the date of entry into service. It is to be noted that the view taken is to avoid the applications filed by such employees at the fag end of their career so as to get advantage of higher age of superannuation. However, in both the cases that we are considering, such is not the situation. An inadvertent mistake committed by the Board came to the notice of the petitioners after it was pointed out to them by the Department of personnel in the Army and the institution in which the petitioner was admitted, respectively. We Find that particularly when there is no outer limit prescribed in the original rules which have been amended in 2009, the petitioners cannot be governed by the amended rules. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 972 OF 2011 with WRIT PETITION NO. 6729 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 8 13] It is further to be noted that in the case of petitioner - Shankar Nagre, all the documents, including the certificate of nationality issued by the SDO Sangamner, Tahsildar and Executive Magistrate Sangamner, Transfer Certificate issued by the Head Master, Zilla Parishad Primary School, Pratappur, School Leaving certificate issued by the Mahatma Fule School and Junior College, Attendance Register, show the petitioner's date of birth to be 17.7.1988. The case of the petitioner is duly recommended by the Head Master of the school where he was taking education. 14] In so far as petitioner - Yogesh Lokhande is concerned, in his case also, all the documents, including the birth certificate issued by the Gram Sevak, Gram Panchayat, Sangvi, Taluka Pathardi; School Leaving Certificate issued by the Zilla Parishad Primary School, Lokhande Wasti, Taluka Pathardi; School Leaving certificate issued by the Trilok Jain Secondary and Higher Secondary School, recommendation of the Head Master of the school i.e. Trilok Jain Vidyalaya, Pathrdi and the Education Officer, Zilla Parishad, Ahmednagar, show that the date of the birth of the petitioner is 29.6.1991. It is only the SSC certificate which records his date of birth as 5.3.1991. It is thus clear that the entry with respect to the date of birth in the SSC certificate has been erroneously recorded by the Board. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 972 OF 2011 with WRIT PETITION NO. 6729 OF 2011 Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 9 15] It is further to be noted that in W.P. No. 972/2011, as a matter of fact, the petitioner's date of birth in the SSC certificate is shown at a latter point of time and as such, there would be disadvantage of a month in his service career. In so far as petitioner in W.P. No. 6729/2011 is concerned, the difference is only of about 3 months. 16] Having regard to the peculiar facts and circumstances of the present case, we are of the considered opinion that the petitioners cannot be penalized for the error committed by the Board and deprived of getting the job/higher education. In that view of the matter, we are inclined to allow the writ petition. Hence, we pass the following order :- O R D E R I] Writ petitions are allowed. II] Respondent No.2 – Board is directed to change the date of birth of the petitioner in W.P. No. 972/2011 from 17.8.1988 to 17.7.1988 and that of the petitioner in W.P. No. 6729/2011 from 5.3.1991 to 29.6.1991. Necessary corrections be done forthwith and corrected SSC certificates be issued to the petitioners, within two weeks from today. Rule made absolute in above terms with no orders as to costs. grt/- [M.T. JOSHI,J.] [B.R. GAVAI, J.]