upa 1 wp7126-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO. 7126 OF 2010 Sakshi d/o Sharad Gaikwad ).. Petitioner Versus The State of Maharashtra and others ).. Respondents Mr. M.S. Karnik for the Petitioner. Mr. for the Respondent Nos.1 to 4. Mr. R.V. Govilkar for Respondent No.6. Ms. Deepa Chavan for Respondent No.7. CORAM : MOHIT S. SHAH, C.J. AND DR. D.Y. CHANDRACHUD, J. THURSDAY, SEPTEMBER 23, 2010 P. C. : Leave to make correction in paragraph 5 of the petition granted. 2. Rule, returnable forthwith. By consent, Rule called out and heard. 3. The petitioner herein, Ms Sakshi Sharad Gaikwad, who is a minor, has filed this petition through her father and natural guardian Sharad Fakirrao Gaikwad for appropriate directions to the respondent authorities regarding correction of the date of birth in the school record upa 2 wp7126-10 and also to direct the respondents to consider the petitioner’s application for admission to the medical college for the academic year 2010-11 on the basis that the correct date of petitioner’s birth date is 21st March 1993 as mentioned in the birth certificate issued by the Chalisgaon Municipal Council at Exhibit “B” to the petition and not 21st January 1994 as mentioned in the school leaving certificate issued by Om Gurudev English Medium Gurukul, Kokamthan, Shirdi-Kopargaon Road, District Ahmednagad. 4. The admission rules to the first MBBS course to the medical colleges in the State of Maharashtra including unaided private medical colleges run by institutions which are members of respondent No.5 Association of Management of Unaided Private Medical & Dental Colleges require that the students should have completed 17 years of age at the time of admission to the first year MBBS course. According to the petitioner, her birth date is 21st March 1993 and accordingly she completed 17 years of age on 21st March 2010. In support of her case, the petitioner has relied on the birth certificate dated 24th May 2010 issued by the Chalisgaon Municipal Council, Chalisgaon. The difficulty in the petitioner getting admission to first year MBBS course is that, in the petitioner’s school leaving certificate issued by Om Gurudev English Medium Gurukul, her birth date is shown as 21st January 1994. The petitioner applied for correction of the birth date to the school authorities but the petitioner was informed that the Education Officer has declined to grant any permisision to make correction in the school record on the basis of Regulation 26.3 under which permission cannot be granted for change of birth date in the school record if the application for such change is made after the student leaves the school. The petitioner had, therefore, moved this Court in the last month by filing Writ Petition No. upa 3 wp7126-10 5493 of 2010. Another Division Bench of this Court disposed of the above writ petition by an order dated 9 August 2010 by directing the Education Officer to decide the petitioner’s application and in case the Education Officer is not a competent authority, the petitioner’s application be forwarded to the appropriate authority competent to decide the same. 5. The Education Officer has by the impugned order dated 23 August 2010 reiterated the same stand purporting to act on the basis of Regulation 26.3 of the Secondary School Code. Hence, this petition. 6. Mr.Karnik, learned counsel for the petitioner, has submitted that as between the school leaving certificate on the one hand and the birth certificate on the other hand, birth certificate issued by local authority like, Municipal Council, is a more authentic document and, therefore, the birth date mentioned in the birth certificate issued by the Chalisgaon Municipal Council should be taken as the correct date rather than mentioned in the school leaving certificate. 7. The learned Assistant Government Pleader submits that in view of Regulation 26.3 of the Secondary School Code, the Education Officer has discretion and, therefore, the application of the petitioner has rightly been rejected. 8. In response to the query made by the Court, the learned counsel appearing for Maharashtra University of Health Sciences, to which the private unaided medical colleges are affiliated, has produced relevant extract of a copy of the Circular No.Medical/01/2010 dated 8 September 2010 providing, inter alia, that the birth date as mentioned in upa 4 wp7126-10 the secondary school certificate or equivalent examination, the original birth certificate containing the name of the child or the school leaving certificate containing the birth date as indicated in the school leaving certificate shall be treated as valid proof of the birth date of the student. 9. It is true that the birth certificate at Exhibit “B” relied upon by the petitioner does not contain the petitioner’s name but just contain the names of the petitioner’s parents, being Sharad Fakirrao Gaikwad as father and Mrs.Rajashrii as the mother. The address mentioned in the birth certificate does tally with the address of the petitioner’s father and the hospital where the child is shown to have been born on 21 March 1993 as Shalyashobha Hospital. The petitioner has relied on the certificate dated 25 June 2010 issued by Shalyashobha Hospital Pvt. Ltd. which reads as under :- “ This is to certify that Mrs. Rajashri Sharad Gaikwad has delivered a female baby on 21/03/1993 at Shalyashobha. Sd/- Dr.Mukund D. Karambelkar Obsterician & Gynaecologist” 10. Since the petitioner herself is a minor, her natural guardian and father Sharad Fakirrao Gaikwad, who has verified the petition and affirmed the averments made in the petition, has stated that the petitioner’s correct date of birth is 21 March 1993 and not 21 January 1994 as mentioned in the school leaving certificate. 11. The learned counsel for the petitioner submits that since the petitioner has been given last opportunity to produce the appropriate upa 5 wp7126-10 orders by 28 September 2010 and the admissions are closing on 30 September 2010, the petitioner has been constrained to move this Court again as the authority has refused to exercise jurisdiction merely on the basis of Regulation 26.3. 12. The petitioner submits that Regulation 26.3 can only be invoked when the student makes an application for correcting the date of birth as mentioned in the school record without producing any other authentic document, such as, birth certificate issued by local authorities. However, when a student makes an application for correcting date of birth in the school record on the basis of birth certificate issued by local authorities, like, Municipal Council, the Education Officer cannot refuse to exercise jurisdiction vested in him as no other authority except the Education Officer can direct the school authority to correct the errors in the school record. 13, Having heard the learned counsel for the parties, we are of the view that since the petitioner had moved this Court earlier and the Education Officer has refused to exercise jurisdiction vested in him only on the ground that the petitioner had made the application for correcting the date of the birth after leaving the school, without considering the birth certificate issued by Chalisgaon Municipal Council, we are inclined to exercise our extra ordinary jurisdiction under Article 226 of the Constitution of India so that the petitioner is not left with any remedy and is not deprived admission for first year MBBS course which the petitioner is otherwise entitled to secure on the strength of her marks at the HSC examination where the petitioner obtained 86% marks and also 148 marks obtained by the petitioner at the Common Entrance Test. upa 6 wp7126-10 14. In view of the above discussion, we allow this petition, quash and set aside the impugned order dated 23 August 2010 and direct the Education Officer (Secondary) to direct the concerned school to make correction in the school record to show the petitioner’s birth date on the basis of the birth certificate issued by Chalisgaon Municipal Council so also the Secondary Education Board, Respondent No.7 herein, shall also act on the basis of the said birth certificate issued by Chalisgaon Municipal Council. 15. Since the implementation of the above directions is likely to take some time, in order to ensure that the petitioner is not denied admission, we direct respondent Nos.4, 5 and 6 to act on the basis of the petitioner’s birth date as indicated in the birth certificate issued by Chalisgaon Municipal Council being 21 March 1993. 16. Rule is made absolute in the above terms. No order as to costs. 17. Parties to act on authenticated copy of this order. CHIEF JUSTICE DR. D.Y.CHANDRACHUD, J.