IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 WP(C).No. 4855 of 2011(F) ------------------------- PETITIONER(S): --------------- CHERIAN KUNNACHADATHU VARKEY, S/O.ABRAHAM VARKEY, AGED 36 YEARS, KOLLARA KUNNACHADATHU HOUSE, CHATHENKARY P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.T.RAGHUNATH SMT.C.V.RAJALAKSHMI RESPONDENTS: --------------- 1. THE REGIONAL PASSPORT OFFICER, THIRUVANANTHAPURAM-695001. 2. UNION OF INDIA, REP. BY THE SECRETARY TO EXTERNAL AFFAIRS, NEW DELHI-110001. ADV. SMT.LALIZA. T.Y., C.G.C. FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P (C) No.4855 of 2011 -------------------------- Dated this the 7th March, 2011 J U D G M E N T The prayer sought in this writ petition is for a direction to the 1st respondent to receive the application made by the petitioner for renewal of his passport and to correct his date of birth in the passport. 2. According to the petitioner, he presently holds Passport No.J2109869, a copy of which is produced as Ext.P2. By Ext.P3 application, he sought renewal of the passport. It is stated that when the application was being prepared he realised that the date of birth was wrongly entered in the passport as 30.5.1971 instead of '30.5.1974'. It stated that thereupon he submitted Ext.P3 application for correction of the date of birth. 3. The allegation raised by the petitioner is that it is the 1st respondent, the passport issuing authority, who is competent to receive the application and make corrections and that the 1st respondent refused even to accept the application for correction of his date of birth. It W.P (C) No.4855 of 2011 2 is in this background that the petitioner has filed this writ petition praying for a direction to the 1st respondent to receive his application for renewal of the passport and correct the date of birth as entered therein. 4. Respondents 1 and 2 have filed a counter affidavit. According to the respondents, the petitioner has been holding a passport more than 10 years and that the passport was also renewed on different occasions. It is stated that he obtained the passport suppressing his date of birth for the reason that when he made the application he was a minor. It is stated that the mistake in the date of birth was noticed only at the time when the application for renewal was being prepared is incorrect. They are also relying on Ext. R1(c) and Ext.R1 (d) in order to contend that the Passport Issuing Authority can effect amendment in the date of birth without a declaratory court order only in case where a clerical mistake has been committed in entering the date of birth. It is further contended that such correction by the Passport Issuing Authority is punishable only in a case where the request W.P (C) No.4855 of 2011 3 made is for correction is only in months and not for more than two years. 5. I have considered the submissions made. The fact that the 1st respondent is the Passport Issuing Authority is not a matter of dispute. First respondent also accepts its competence to make correction in the passport is also accepted. However, the case of the 1st respondent is that it can effect necessary corrections only if the mistake has occurred on account of a clerical mistake and where such correction is only in months and not more than two years. This contention is sought to be justified on the basis of Exts R1 (c) and R1 (d). 6. As far as the requirement of production of a court order is concerned, the circumstances in which a court order can be demanded has already been indicated by this Court in the judgment in Aboo Vs. Regional Passport Officer [2008 (1) KLT 992]. A reading of this judgment shows that when an applicant makes a request for correction of date of birth in the passport, the Passport Issuing Authority is bound to accept the application and W.P (C) No.4855 of 2011 4 consider the same in accordance with the Passport Manual and pass an order in the matter. It is only in a case where the authority is unable to make corrections for valid reasons can an applicant be relegated to approach the Civil Court to obtain a declaratory decree. Therefore, the Passport Issuing Authority cannot in all cases require an applicant to produce court orders as a condition for entertaining the applications in the nature of the one which is sought to be made by the petitioner. 7. According to the respondents, the correction of date of birth is a matter which is governed by Ext. R1 (c) and R1 (d) which are the extracts of the Passport Manual 2010. Ext.R1 (c) to the extent relevant is extracted below for reference. 5.2 In the context of various High Court pronouncements and with a view to addressing genuine difficulties an applicant might face due to discrepancies in date of birth in passport and other documents of the passport holder/applicant, it has been decided as follows: a. Where an applicant claims a clerical/technical mistake in the entry relating to birth/place of birth in the passport and asks for rectification/correction: In all such cases the documents produced earlier as proof of date of birth place of birth at the time of issue of passport may be perused (if not already W.P (C) No.4855 of 2011 5 destroyed) by PIA. If it is a clerical mistake either by the applicant or the PIA, date/place of birth correction may be allowed by issue of fresh passport booklet; in the former case, by charging the fee for fresh passport and in the latter, 'gratis'. There is no need for declaratory court order in such cases. b. Where a competent authority which issued a birth certificate or an educational certificate issues any correction or amendment in date/place of birth, PIA may effect the necessary amendment in the passport without insisting on a court order provided the same document was produced earlier with the passport application. Fresh fees will be charged. c. Where files have already been destroyed, PIAs could use their discretion in correction of date of birth without a court order and where such correction is only in months (not more than two years) and applicants provide satisfactory explanation that the same documents(s) was provided at the time of initial passport application, DOB affidavit should not be accepted for change in date of birth. Fresh fees will be charged. d. Where the initial entry has been made on the basis of a supportive document issued by one competent authority, i.e., school/educational authority, and the applicant subsequently requests for a change on the basis of a certificate issued by another competent authority, i.e., Municipal authorities etc., resulting in conflicting documents for valid proof, the PIA should accept the BC as the correct date of birth. However, suspicious documents should be verified from the issuing authority. Since BC has been made compulsory under the Passport Rules only on or after 26-01-1989, the preference of BC over school certificate (as per the Punjab and Haryana High Court judgment quoted below) may be made effective from that date only. W.P (C) No.4855 of 2011 6 In case date of birth falls before this deadline either BC or school certificate may be accepted. e. For those born on or after 26-1-1989, birth certificate is the only approved document, as already prescribed. 8. In this case, it is the specific case of the respondents that the documents pertaining to the issuance of first passport to the petitioner are already destroyed. Therefore, such cases will have to be dealt with in terms of the provisions contained in clause 5.2C, extracted above. 9. In such cases, the correction of date of birth is permissible without a declaratory order of the court, only if the correction sought for is in months and not more than two years. The request of the petitioner is to correct the date of birth from 30.5.1971 to 30.5.1974 which is more than two years. It may be true that the Passport Manual is not statutory in nature. Even if it is so, in cases where statutory provisions or rules are absent, the authorities are entitled to regulate their conduct by issuing administrative instructions. So long as such instructions not against the provisions of the parent statute, the instructions are liable to be respected and followed. In this case, therefore the W.P (C) No.4855 of 2011 7 1st respondent can only act in terms of the clause 5.2C and if that be so, for any correction beyond the periods specified in clause 5.2C, such a request should be supported by a declaratory court order of the nature indicated by this Court in the judgment referred to above. 10. Therefore, this Court cannot, at this stage, direct the 1st respondent to accept the request of the petitioner for correction of his date of birth ignoring the clause 5.2 C of the Passport Manual 2010. The writ petition fails and it is accordingly dismissed. Sd/- ANTONY DOMINIC JUDGE ma /True copy/ P.A to Judge