^••-•^ PETITIONER RESPONDENTS HIGH COURT OF CHHATTISGARH : BILASPUR WRU' P_ETITIO_N N0. 412 OF 2006 Arun Kumar Pathak Versus Board of Secondary Education (Writ Petition underArticte 226/227 ofthe Constitution of India) Single Bench : Hon'bte Shri Satish K. Agnihotri, J. Present:- Shri Rakesh Pandey, Advocate for the petitioner. Shri R.S. Patel, Advocate for the respondent. ORDER (ORAU (Passed on this 27th day ofApril, 2010) 1. By this petition, the petitioner seeks a direction to the respondent authorities to correct hjs date of birth from 20.03.1975 to 04.08,1977 in the High School mark sheet. 2. Learned counsel appearing for the petitioner submits that the petitioner has passed 10+2 examination in the year 1991. In the mark sheet, the date of birth of the petitioner was mentioned as 20.03.1975 as is evident from Annexure P/1. Thereafter, the petitioner completed his graduation in the year 2005. According to the petitioner, he came to know that his date of birth has been wrongly recorded as 20.03.1975. In fact, his actual date of birth is 04.08.1977, as is evident from birth certificate i.e. Annexure P/3. The petitioner requested to the respondent for correction of his date of birth from 20.03.1975 to 04.08.1977 in the High School mark sheet, but till date no action has been taken. Leaned counsel appearing for the petitioner further submits that the date of birth of the petitioner recorded in the High School mark sheet is prima facie incorrect. Thus, this petition. 3. On the other hand, learned counsel appearing for the respondent submits that the petitioner has taken more than 14 years to raise this issue when the Board has decided not to entertain any application for correction of date of birth if the same is made after a period of three years. Accordingly, no amendment/correction can be made, as the application for correction of date of birth was made by the petitioner after a period of 13 years. ^',.;?'"S1<1 \ 6. 2 1 have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. On perusal of the pleadings, it is found that the petitioner has not offered any explanation for the inordinate delay caused by him in approaching the respondent authorities for correction of his date of birth. Further, the petitioner has filed this petition in the year 2006 for about more than 15 years seeking above stated reliefs. In Rajbali Singh v. Board of Secondary Education, Bhopal , learned Single Judge of the High Court of'Madhya Pradesh has observed as under: "7. On bare reading of the aforesaid Rules it is absolutely clear that certain stages are provided for correction or change in the date of birth. Rule 9 makes it categorically clear that no application in regard to date of birth shall be entertained either under Rule 7 or 8 after the form for the Board's examination at the end of secondary level of education has been sent to the Board or after the student has left the school, if the student has not pursued education upto the end of secondary standard. Thus, the school authorities have no power to rectify the mistake after the forms are sent to the Board. On a perusal of the Rules, it is graphically clear that there is no provision for correction of date of birth by the Board. In absence of any provision in the Rules the Board is entitled under law to provide guidelines for correction of date of birth. The Board has framed guidelines which have been brought on record as Annexure P-2. The said guidelines provide that on compliance of certain formalities there can be rectification of the date of birth. It has been laid down therein that the prayer for rectification or correction of date of birth would not be accepted after three years. Submission of Mr. Jain, learned Senior Counsel is that in absence of any limitation in the Rules the Board could not have provided a period of limitation in the guidelines. In my considered opinion as the Rules do not deal with the period of limitation the Board has the authority to stipulate a time limit for correction of the date of birth and 1 do not perceive any error in such a provision." After relying on the provisions of Rule 7, 8 and 9 of the Madhya Pradesh Date of Birth (Entries in the School Register) Rules, 1973, which have been adapted by the respondent also, in absence of complete information as to when the application was made, this petition cannot be entertained at this stage after about 15 years 1 2001 (2) MPLJ 276 8. 3 without any explanation for such an inordinate delay and laches on the part of the petitioner. Thus, 1 am in respectful agreement with the observations made by the learned Single Judge in Rajbali (supra). A Constitution Bench of the Supreme Court in Chandra Bhushan and another vs. The Deputy Director of Consolidation, Uttar Pradesh (Regional) Lucknow and Others , observed that "nonnally the question whether a petition under Art. 226 of the Constitution for the /ssue of a writ of certiorari had been presented without undue delay or laches is a question for the High Court to decide and this Court would not interfere with the exercise of the discretion of the High Court." Further, other Constitution Bench of the Supreme Court in Rabindranath Bose and Others vs. The Union of India and Others observed as under: "31. But in so far as the attack is based on the 1952 Seniority Rules, it must fail on another ground. The ground being that this petition under Article 32 of the Constitution has been brought about fifteen years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Learned counsel for the petitioners says that this Court has no discretion and cannot dismiss the petition under Article 32 on the ground that it has been brought after inordinate delay. We are unable to accept this contention..... 32. The learned counsel for the petitioners strongly urges that the decision of this Court in M/s. Tilokchand Motichand's case (supra) needs review. But after carefully considering the matter, we are of the view that no relief should be given to petitioners who, without any reasonable explanation, approach this Court under Article 32 of the Constitution after inordinate delay. The highest Court in this land has been given original jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay." 2 AIR 1967 SC 1272 3 (1970) 1 SCC 84 f/^ ^'JIV^\ 1 9. 10. 11 Later, a Constitution Bench of the Supreme Court in Ramchandra Shankar Deodhar and others vs. The State of Maharashtra and others (Bhagwati, J. in para 10) observed as under: "10......It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches and delay is that the rightswhich have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. This principle was stated in the following terms by Hidayatullah, C.J. in Tilok Chand vs. H.B. Munshi (supra): "The party claiming Fundamental Rights must move the Court before other rights come into existence. The action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court." In State ofM.P. vs. NandlaP, it was observed that that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactory explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was also observed that if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. The Supreme Court in U.P. Jal Nigam and another vs. Jashwant Singh and anotherQ, observed as under: "The question of delay and laches has been examined by this Court in a series of decisions and laches has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution." (1974) 1 SCC 317 AIR 1987 SC 251 (2006)11 SCC464_ ^,<?-g;%@r?~ 3 IIK;sSg^ | "%. ^~... sy .ff s^; Ss^-t1' .»•' ^Ssgsss^^ ' •'" 12. 13. In Yunus (Baboobhai) A Hamid Padvekar v. State of Maharashtra7, the Supreme Court observed as ynder: "Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers.In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party." The Supreme Court in Tridip Kumar Dingal and others Vs. State of 1/t/esf Bengal and othersS where the appellants took 559 days in approaching the Court, causing unexplained and inordinate delay, observed as under: "We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction underArticles 32, 226, 227 or 136 ofthe Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. Qne of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches. 57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of 1\4.P. v. Bhailal Bhai, Moon Mills Ltd. v. Industrial Court and Bhoop Singh v. Union of India). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi, Durga Prasad v. Chief Controller of Imports & Exports and Rabindranath Bose v. Union of India)." Further, "There is no upper limit and there is no lower limit as to when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and 7 (JT 2009 (3) SC 487) 8 (2009) 1 SCC 768) varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose". 14. This Court in Smt. Shashibala Gandhrala vs. State of Chhattisgarh& OthersQ on 3-1-2007 observed that "the cause of action arose on 6- 6-1995, when the communication was sent by the State Government to the authorities for grant of revised pay-scale. The petitioner has not taken any steps ever since till these petitions were filed in December, 2006 and remained tardy and indolent. This belated approach would certainly cause hardship and inconvenience to other side." 15. I am in full agreement with the view taken by the High Court of Madhya Pradesh in Rajbalj Singh (supra). Thus, no relief can be granted to the petitioner at this stage and the writ petition is accordingly dismissed. However, on the request of learned counsel appearing for the petitioner, liberty is reserved to the petitioner to take recourse to the competent civil jurisdiction, for declaration of his date of birth, if so advised. 16. There shall be no order asto costs. Arun Sd/- S.K. Agnihotri Judge