^ AF^ HIGH COURT OF CHHAmSGARH AT BILASPUR WRIT PET1TION No. 1738 of2004 PETITIONER : Sudhir Ram Bhagat 8/0 Goctaa Ram Btaagat, Aged about 26 years, R/o Pandrapaath, Sasma^ Tahsil Baghicha, Dislrict Jashpumagar (C.G,) VER8U8 RE8PONDENTS : 1. Secretary, Madhyamik Shiksha Mandal, Raipur. Chhattisgarh. 2. Secretary, Madhyamik Shiksha Matidal, BhopaI.Madhya Pradesh. WRIT PET1TION LWDER ARTICLE 226/227 OFTHE CONSTnTJlTQNQFrNDIA SB: Hon'ble Shri Satish K. Asnihotri, J. Present: Sbri Amit Shamia. Advocate fbr the petNoner. Sliri Paiikaj Agrawai, Advocate forthe respoadcnt No. l. ORDER(ORAL) (Passed on 01st day of My, 2009) By this petition, the petitioner seeks a reliefthat a declaration may be made that the date of birth of the petitioner recorded m fhe mark-sheet of High School Certificate Examination (10+2) 1995, be declared as wrong and forther, the respondent authorities may be directed to correct the date of birth ofthe petitioner in mark-sheet as 13.04.1978. Thc facts, in nutshell, as projected by the petitioner is that fh©petitioner appeared in pre-secondary Board Examination m the year 1993. A mark- sheet wa^ issued by Sambhagiya Pur/a Madhyamik Pariksha, Bilaspw, recordmg the date ofbirth ofthe petitioner as 13.04.1978 (Annesaire P/2). The petitioner, thereafter appeared in the High Sdiool Certificate Exammation (10+2) in the year 1995. In the mark-slieet isaucd by the respondent No. 2, the date ofbirth was recorded as 13.041974 andthere was some mistake inthe name oftlie petitioner also. An application was made by the petitiooer for correction ofhis name. The name ofttie petitioner and his father was con'ected accordingly; as is evident from the mark-sheet (Aimexure P/3V However, no correction was made m the date of ii(^ ^ birfh. The petitioner, thereafter approached to fhe office ofthe respondents but no correction was made mfhe mark-sheet with regard to his date ofbirth. Shri Shaniia., leamed counsel appearing for the petitioner suteiits that the date ofbirth ofthe petitioner m primafacie incorrect as ifthe date ofbirth recorded in fhe mark-sheet (Annexure P/3) is eomidered to be correct, the petitioner would have been 29 years ofage on the date wlwn he passed 10+2 examxnation. Per confra. Shri Agrawal, leamed counsel appearing ior th^ respondent No. 1 submits that the petitioner has taken 7 years to raise thm issii^ when the Board has decided not to entertain any appfication fbr correction of date of birth if the same is made after a period of tihree years. Accordmgly, no am^Kisis^nt/correction can be made as ttie ^pplicati<m wa§ mwdb <rfter a period of7 years. In support ofhis coxitention, leamed counsel relies 011 a decision ofthe High Court of Madhya Pradesh, i.e, Ra/bah Singh v. Baard of Secondary Education, Bhopal. I have heard leamed counsel appearing for the parties, perused the pleadings and documents appended thereto. Ox pemsal ofthe pleading^ it is found that the petitioner has not mdicated any date as to when fhe petitioaer has made the application to the authorities after he received the mark-sheet (Amiex^re P/3). The petitioner has further not mdicated anythmg whether he has received any response from any authority at any point oftime. Further, the petitioner has filed ttus petition on 24.6.2004 after about 9 yeare sedkmgtlie above-stated reliefs. In Rajbali (supra), leamed Single Judge of the High C^urt of Madhya Pradesh has observed as under: "7. On bare reading ofthe aforesaid Rules it is absolutely clear that certam blages are pro'vided for correotioii or change m the date of birth. Rule 9 niakes it categoricaUy clear JthM xio application m regard to date ofbirtli shall be eiitertaiiied eitlier under Rule 7 or 8 after the fonn for the Board's examination at the end of secondarv level of education has been sent to fhe Board or after the student has left tlie school, ifthe stiuient has not pursued education upto the end of secondary stafriard. Tlius, the sehool aufhorities have no power to jrectify tlie mistake after the forms are sent to the Board. On a pemsal of tlie Ruks, it is grapliically dear feat fliere is no provisioii for conBectioyi of date of birth by tbe Board. In absexiee of any ! 2001 (2) MPLJ 276 7. >/ 8. "7 provision in tfae Rales ttie Board is entitled under law to provide guideliiies for correction of date of birtlt The Boai'd has framed giiidelines which have been brou^xt on record as Amiexure P-2. Tlie said guideliiies provide that 011 compiimice of certain formalities there can be rectification of the date of birth. It has been laid down therein that the prayer for rectificatio&i or coiTectioii of date of birth wouM not be accepted after three years. Submission of Mr. Jain, learaed Semor Couiisel is that iti absence of aiiy Imiitatioii m tlie Rules the Board could not have provided a period of lijiytatioii m the guidelmes. .Iti my considered opniioti as tlw Rules do tiot deat with the period of limitation the Board has the axithority to stipulate a time liiiiit for correctioii oftlie date ofbirth aiid I do not perceive any error in such a provisioii.^ After relying cn the provisions of Rule 7., 8 and 9 of the Madhya Pradeah Date ofBirth (Entries in fhe School Register) Rules, 1973, whioh have been adapted by the respondent No. 1 also, m absence ofcomplete isifomiation as to when the application was made, fhis petition cannot be efitertamed at this stage after about 9 years without any explanation for such an inordinate delay and laches on the part of the petitioner. llius, I am in respectful agreement with the observations made by the leamed Smgle Judge in case of Rajbali (supra). A Ccmstitation Bench of fhe Supreme Court m Char^ra Bfws^ian and another vs. The Deputy Director of Consolidation, Uttar Pradesh (Regional) Lucknow and Other/, observed that t<'normally the question whether a petition under Art 226 ofthe C^nstitutian far the issue ofa writ ofcertiorari had been presented mthout undue deky or laches is a qziesttonfor the High Court to decide and this Ccurt wouM not inter/we with the exercise ofthe discretion ofthe High Court^ Further, ofher Constitution Bench oflhe 8uprem@ Court m Rabindranath Bose and Others w. TheUnion oflndia and Others\ obser^ed as under: "31. But in so far as the attack is based on the 1952 Seaiority Rules, it must fail on anotfaer ground. The ground being tfaat this petition under Article 32 of the Constitution has been brou^ht about fifteea years after tlie 1952 Rules were promulgated and effect given to them in tfae Seniority List prq>ared oa Aagus>t 1, 1953. Uamed couasel for the petitioners says that this Court has no discretioti and eaimot disx'mss 'tlie petitioii ysider: Aiticle 32 on the gr'oimd tiiat it has. 'AIR 1967 SC 1272 31970(1)8cc 84 ,.fff?'^' r'SV."v!*, a 10. 11. 7 beai brought after inordmate delay. We are unable to accept thiscoiitention..... 32, The leamed counsel for the petition@rs strongfy urges that tlie deeisioa oftfais Court in M/'A'. Tilokc}tandMottGhand's case (supra) needs review. But afller carefolly considering the .matter, we are ofthe view that 110 relief should be given to petitioners who, without any reasoiiable explanation, approach this Court usider Article 32 ofthe Coiistitation after inordwate delay. The highest Court in this land has b^en given origmat jurisdictiosi to enfcertam petitions wider Ajrtide: 32 ' of, the Constitution. It could not have beea the ijnteation that this Court would go into stale demands after a lapse ofyears. It is said that Aiticle 32 is itsetf a guaraiiteed rig!it So it is, but tl does not fbllow froni tiiis that it was the mtenition of the Constitution makers that this Court should discard alt prmciples and grant reliefin petitions filed aftor inordinate delay.^ Later, a Constitution Benoh of the Supreme Court in Rdmchandm Shankar Deoclhar and others vs. The State of Maharashtra and ffther/ (Bhagwati, J. m para 10) observed as imder: "tl0...^.1t may also be noted that the principle oe which fee Court proceedg m refusmg reliefto the petitiosier on gro'aad of laches and delay is that the ri^its which have acemed to otliers by reasoa of ttie delay m filmg tfae petitioii .Bhoyldjiiiot fee allowed to be disturbed imless fhere is reasoiiable explaiiatioii for fhe delay. This principle was stated m the followmg temis by Hidayatullah, C.I m Tilok Chand w. H.B. Munshi (supra) : "The party claiming Fundameiital Righte must move the Court before otlier ri^ite come mto existeiice. ITie action ofcourts caanot harm iimocetit parties iftheir ri^its emCTge by reasoa of delay oa fee part cxf fhe person moving the Court/' In State ofM.P. vs. Nandlaf^ it was obsarved that ttiat the Higli Court m exercise of its discretion does not wdinarily assi^t the tardy and Ae indolent or tlie acquiescent aiid the lethargic. If (here is inordinate delay on fhe part offhe petitioner and such delay is not satisfactory explamed, the High Court may decline to mtervene and graxrt relief in exereise of its writ jurisdiotion. It was also observed that ifwrit jyrisdiction m exeircised after unreasonable delay, it may have the effect of inflicting not only hardship and mconvenience but also injustice on third parties. When writ jimsdiction m mvoked, unexplamed delay coupled with the creation of 4 (1974)1 SCC317 5(AiR1987SC251) 12. 13. third party rights in the meantime is an important fa<^or which also weigfas with tlhe High Court in decidiog whether or not to exercise svofo jurisdiction» The Supreme Court m 1/.P. Jal Nigam and another v^ Ja^hwant Smgh andanother\ observed as imder: 6VFh€ question of delay and lach^s has been examin^d by this Coart m a scries ofdecisiom aiid laches has beeii coogidered to be asi important factor m exercise of fhe discretioxiary rdief undar Article 226 ofthe Cojistihition." InYumis (Baboobhai) A Hamid Padv^car v. State ofMaharashtra7., the Supreme Court observed as under: "Delav or laches is one of fhe factors whidi fe to be bome m miiid by fhe High Coart whexi they exercise fheir discretioiiary powers. In aii appropriate case the High Court may reftise to invoke its extraordinary powers ifthere is sudi wglig^nee or omission on the part ofthe applicant to assert his right as taken m coiijujnctioii wlth tlw lapse oftioie and otlier circiimstaiices, causes prejudice to the opposite party." 14. The Supreme Court in Tridm Kumar Dingal and athers Vs. State ofWest Bengal and other/ where the appellants to^ok 559 days iti approaoMng the Court, causing unexplained and mordinate delay^ obsenred as undar: "We are unable to uphold tfae contention. It m ao doubt tme that there caii be no waiver of fundaiiiental righi But Niile exereising discretionary jurisdiction under Artides 32^ 226,227 or 136 ofthe Coinstitutioti, fhi^ Coart teke^ mto a^ooasit certaiti factors and one of such considerations is delay and laches on the part offlie applicaiit iii approachmg a writ court. It is wcll settled that power to issue a writ is discretionary. Qae ofthe gromids for refusmg reliefs mider Article 32 or226 ofthe- Constitution is thatthe petitioner is ginlty ofdelay aiad lacfees. 57. Ifthe petitioner wants to invokejurisdiction ofa writ court, he should come to fh^ court at tlie earliesfc reasonably poss&le opportumty. Inordmate delay in making the motion for awrit •will mdeed be a good gromid far refusmg.to exerefee.^such discretionary jurisdiction. Tlie iinderiymg object of this principle is not to encoyrag^ a^tation of stak claiiiB and exhume matters which have been dasposed of or settled or whcre the riglits offhird parties have accmed isi tfae iii^antmie (vide State of M.P. v. Bhailal Bhai, Moon Mill& Ltd. v. ladustrial Coml and Bhoop Sm^li v. Umon of Itidia). This principle applies GVCTI in case of aa a&m^m^ni of y (2006)-ilSCC 464 7 (JT 2009 (3) SC 487) 8 (2009) 1 SCC 768) lf-t$^-;p=» famiameirtal right (vide Tilokchmd MoticAiand v, H.B. Nhinshi, Durga Prasad v. Chief Controller of Iiiiports & Expoils aiid Rabindranath Bose v. Umon oflndia)/' Further, C4n[1iere is no upper limit and there m no lower limit as to when a person caii approach a court. The question is <Mie of disctetioii and has to be decided on the basis of facts before the court dq5endiNg on and varying from case to case. It will depend upon what the breach of fatidatiietital ri^it afid tii^ remedy claimed are and when and how ttie delay arose". 15, This Court in Smt Shashibala Gandkraki vs. State of Chhattisgarh (& Others on 3-1-2007 obsen^od that "the cause of action arose on 6-6- 1995, when the communicatton wa^ sent by the State Govemment to the authorities for grant ofrevised pcy-scale. The petitioner has not taken any steps ever since till these petitions ^erefiled m December, 2006 and remained tardy and indolent This belated approach ^<mld certainly cause hardship and mconvenience to other side^ 16» Thus, no relief can be granted to the petitioner at this stag©and ttie writ petition is accordingly dismissed. However, on fhe request oflearaed coumel appearing for the petitioner, liberty is reserved to the petitioner to take recourse to the competeiit cwil jurfediction, fbr declaration of tes date of birth, ifso advised. Sd/- Satish K. Agnihotri Judge .tedt 'WP(S)No.7222of2006