JIGYA YADAV (MINOR) (THROUGH GUARDIAN/FATHER HARI SINGH) versus C.B.S.E. (CENTRAL BOARD OF SECONDARY EDUCATION) & ORS
[2021] 4 S.C.R. 1100, Supreme Court of India, 2021
Outcome: Directions issued
Segment: Ratio
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date of application for recording change would be relevant. That would
negate the very importance of having a period of limitation for correction
of the certificates.
160. If the limitation of applicability of Byelaws was to be reckoned
from the date of application for correction/change and not the date of
result of the examination conducted by CBSE, we would be leaving
things to a state of uncertainty. For, a student who could possibly have
surpassed the limitation period under unamended Byelaws would regain
the right to change the certificates if the Byelaws existing on the date of
application permit so and provide for a longer period. Similarly, a student
who had ten years for carrying out changes under the unamended
Byelaws would lose her right if Byelaws are amended within the ten-
year period so as to provide for a much shorter, say two years, limitation
period. Certainty, consistency and predictability are the hallmarks of any
legal relationship and it is in the interest of public policy that legal
interpretation preserves and protects these hallmarks. This determination,
however, is only to state the legal position and may not have any immediate
bearing on the cases before us.
161. The CBSE also advanced an argument that no changes can
be permitted in its records as there is no fundamental right to claim that
changed records be operative since birth and any change must only be
prospective and not
retrospective. The crux of the argument can be
traced from paragraph 23 of Rayaan Chawla63 which has been relied
upon to buttress this submission. It reads thus:
“23. The legal position that would follow from the above conspectus
of the judgments noted and cited by the learned Counsel for the
parties is that normally a person would have a right to have his
name changed subject to fulfilment of appropriate formalities/
procedures to ensure that there is no misuse or confusion created
on account of the change in name. The change of name is
prospective. ...”
Though a well-meaning argument advanced to minimise the
possibility of misuse, we are not inclined to accept it as something that
could turn the case. The court, in Rayaan Chawla64, accepted that
expression of one’s name in the manner of their choice is indeed a
63 supra at Footnote No.8
64 supra at Footnote No.8
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fundamental right under Article 19(1)(a), but held that the right is
prospective and does not extend to permitting changes in the documents
already issued by the Board. It is pertinent to note that once changes are
permitted in the documents of CBSE, it does not ipso facto mean that
the changes are given a retrospective effect. The changes are indeed
prospective and to signify that a remedial measure is provided in the
Byelaws, as existing presently. They provide for the requirement of adding
a caption/annotation with the date of such change along with the changed
particulars so as to indicate within the certificate that the changes have
been made on a date subsequent to the date of publishing the certificates.
The requirement of caption/annotation is indeed a sufficient safeguard
to prevent the usage of subsequently altered documents as unchanged
original records.
Point No. 5
ISSUANCE OF MANDAMUS IN CONTRAVENTION OF
BYELAWS
162. The next issue for consideration is whether it is proper for
the High Courts to issue mandamus to the CBSE for correction of
certificates in complete contravention of the Byelaws, without examining
the validity of the Byelaws.  For issuing such directions, reliance has
been placed upon Subin Mohammed65, wherein the Court noted that
the case does not involve correction of a typographical nature, as
permissible in the Byelaws, but went on to uphold the right of the student
to apply for changes on the basis of statutory
certificate. It observed
thus:
“35. Therefore, we have to proceed on the basis that the bye law
of CBSE cannot be applied to the fact situation. But to reconcile
the date of birth entry in the mark sheet with that of the entry in
the statutory certificate, the candidates should not be left without
any remedy. Their right to approach the Court for redressing their
grievance cannot be ruled out.”
The court then delineated the principles for issuance of writ of
mandamus and noted that in the strict sense, a mandamus would not lie
but considering the damage that the student could face as regards his
career prospects, the permission was granted. In paragraph 39, it noted
thus:
65 supra at Footnote No.12
JIGYA YADAV (MINOR) (THROUGH GUARDIAN/FATHER
HARI SINGH) v. C.B.S.E. (CBSE) [A. M. KHANWILKAR, J.]
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“39. It is contended that the future prospects of the petitioners to
study or get employment abroad, will be substantially affected if
the entry of date of birth in the mark sheet does not tally with that
in the birth certificate. Though a writ of mandamus cannot be
issued in the strict sense, we are of the view that, failure to
exercise jurisdiction may put the petitioners to serious
hardship. Hence, to render justice, it is always open for the
Court to pass appropriate orders, taking into account the facts
and circumstances of each case. However, if disputed questions
of fact arises, it will not be appropriate for this Court to entertain
the matter.”
(emphasis supplied)
The law regarding the writ of mandamus is settled. The foremost
requirement for issuance of mandamus is the existence of a legal right
against a body which is either a public body or a non-public body
performing a public function. In Binny Ltd.66, this Court summed up the
principle thus:
“29. Thus, it can be seen that a writ of mandamus or the remedy
under Article 226 is pre-eminently a public law remedy and is not
generally available as a remedy against private wrongs. It is used
for enforcement of various rights of the public or to compel public/
statutory authorities to discharge their duties and to act within
their bounds. It may be used to do justice when there is wrongful
exercise of power or a refusal to perform duties. This writ is
admirably
equipped to serve as a judicial control over administrative
actions. This writ could also be issued against any private body or
person, specially in view of the words used in Article 226 of the
Constitution. However, the scope of mandamus is limited to
enforcement of public duty. The scope of mandamus is determined
by the nature of the duty to be enforced, rather than the identity
of the authority against whom it is sought. If the private body is
discharging a public function and the denial of any right is in
connection with the public duty imposed on such body, the public
law remedy can be enforced. The duty cast on the public body
may be either statutory or otherwise and the source of such power
is immaterial, but, nevertheless, there must be the public law
element in such action. Sometimes, it is difficult to distinguish
66 supra at Footnote No.32
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between public law and private law remedies. According to
Halsbury’s Laws of England, 3rd Edn., Vol. 30, p.682,
“1317. A public authority is a body, not necessarily a county
council, municipal corporation or other local authority, which
has public or statutory duties to perform and which perform
those duties and carries out its transactions for the benefit of
the public and not for private profit.”
There cannot be any general definition of public authority or public
action. The facts of each case decide the point.”
In the present case, the question is not whether CBSE was
amenable to writ of mandamus or not. For, we have already held the
Board being a public body is performing a public function. The question
is whether there was an enforceable legal right in favour of students to
seek such a direction and whether Byelaws have the force of law and
directions can be issued by the court only in conformity thereof.
163. The impugned judgments categorically note that the request
for changes could not be permitted as per the Byelaws. Thus, there was
no demonstration or inquiry to determine the existence of any legal right
in favour of students. Even if we assume that courts issued directions
purely on the basis of fundamental rights, there is no discussion or inquiry
in this regard. More so, there is no attempt to examine the vires of the
Byelaws in light of the breach of fundamental rights, as discussed in the
initial part of this judgment. Absent any such
adverse determination on
the validity of the applicable rules, the fundamental principle of rule of
law demands that such rules be given their intended effect. Even if a
constitutional Court feels that the case at hand is deserving of an
extraordinary remedy, it may do so using its wide powers under Article
226 but only upon specific appraisal of the facts of the case and after
duly demonstrating the extraordinary character of the case. Despite
holding that the prayers are impermissible under the Byelaws, the Courts
in the present set of cases went on to issue directions to the Board
without having any regard to the factual circumstances of the case or to
the nature of changes sought by the students, by mechanically relying
upon the dictum in Subin Mohammed67. We must note that Subin
Mohammed68 is not in challenge before us but must be now understood
67 supra at Footnote No.12
68 supra at Footnote No.12
JIGYA YADAV (MINOR) (THROUGH GUARDIAN/FATHER
HARI SINGH) v. C.B.S.E. (CBSE) [A. M. KHANWILKAR, J.]
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in terms of opinion recorded in this judgment. Our concern is with the
manner in which mechanical reliance has been placed upon the earlier
decision for deciding cases which involved an altogether different set of
changes.
164. Once a Court of law notes that the applicable rules do not
permit it to grant a particular relief and it still goes on to grant the relief
on sympathetic grounds, such decisions can in no way be treated as
precedents. We are constrained to note that following such decision as
precedent will be in utter disregard of the well-established principle of
“equity acts in personam” and, thus, courts cannot deploy equity in
“rem” by replicating the same order, disregarding the personal
characteristics of the case at hand. There can be no application of Subin
Mohammed69 to a different set of facts.
165. The High Courts, being constitutional Courts, are duly vested
with the power to review any law in light of Part-III. Despite being
called upon to do so, if they choose not to do it, the same cannot be
countenanced. There cannot be mechanical directions by way of
mandamus to a public authority without going into the veracity of the
claims and without sufficiently explaining why the case demands
extraordinary treatment.
166. In fact, in Md. Sarifuz Zaman70, a two-Judge Bench of this
Court noted that such exercise of power in itself would be arbitrary. It
observed thus:
“10. ...People, institutions and
government departments, etc.
— all attach a very high degree of reliability, near finality, to
the entries made in the certificates issued by the Board. The
frequent exercise of power to correct entries in certificates
and that too without any limitation on exercise of such power
would render the power itself arbitrary and may result in
eroding the credibility of certificates issued by the Board. We,
therefore, find it difficult to uphold the contention that the applicants
seeking correction of entries in such certificates have any such
right or vested right.”
(emphasis supplied)
69 supra at Footnote No.12
70 supra at Footnote No.16
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Thus, the Courts need to be extra cautious and alive to the
immediate factual position before permitting changes. No two requests
for change of name or change in date of birth can be viewed with the
same judicial eye. Sometimes, change of name could be a necessity,
sometimes it could be a pure exercise of freewill without any need. As
long as Byelaws or the applicable rules permit so, there is no occasion
for any court to deny such relief. But when Byelaws do not permit for
the same, the Court must be circumspect before issuing directions, that
too without commenting upon the validity of the Byelaws and without
demonstrating the rights which are at stake – constitutional or legal.
167. Before proceeding further, we must briefly note that the
dictum of this Court in Md. Sarifuz Zaman71 has been relied upon by
the Board to contend that it prohibits any change in contravention of the
Byelaws as it does not recognize any legal right to claim such changes
beyond the prescribed conditions. It has also been asserted that
Md. Sarifuz Zaman72 and Subin Mohammed73 contradict each other.
Whether the two judgments are in conflict with each other is an
examination that is not called for. For, we have not placed any reliance
upon Subin Mohammed74 for deciding this case and also because Md.
Sarifuz Zaman75 is a judgment of this Court as against Subin
Mohammed76 is a judgment of the Kerala High Court. It requires no
reiteration that even if a conflict exists, the
judgment of this Court must
prevail under all circumstances unless there is another judgment of larger
Bench of this Court which takes a different view.
168. Be that as it may, we must examine the dictum of this Court
in Md. Sarifuz Zaman77. The case involved a request for correction of
clerical nature in date of birth to bring it in conformity with the correct
school records. Paragraph 3 notes thus:
“3. One of the respondents, a student, having taken his education
in Government Boys Higher Secondary School, passed the
matriculation examination conducted by the Board of Secondary
Education, Assam, in the year 1991. Thereafter, he passed higher
71 supra at Footnote No.16
72 supra at Footnote No.16
73 supra at Footnote No.12
74 supra at Footnote No.12
75 supra at Footnote No.16
76 supra at Footnote No.12
77 supra at Footnote No.16
JIGYA YADAV (MINOR) (THROUGH GUARDIAN/FATHER
HARI SINGH) v. C.B.S.E. (CBSE) [A. M. KHANWILKAR, J.]
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secondary examination and then BSc examination in the year 1998.
When he filed the writ petition, he was undergoing a course of
study in computers. At that point of time, on 12-10-1999, he moved
an application to the Board complaining that his date of birth was
wrongly mentioned in the school records as 30-5-1974, while his
actual date of birth was 16-8-1975. The mistaken date of birth, as
forwarded by the school, had crept into the admit card issued by
the Board. The writ petitioner student pleaded that he did not
realise the importance of the correct date of birth being entered
into the school records, and therefore, he did not also realise the
implications thereof until he was prompted in moving the
application. The application moved by the respondent to the
Principal of the school, was forwarded by the latter to the Board.
The Principal indicated that the age of the respondent was entered
as 16-8-1975 in the admission register and other school records,
but it was by mistake that while filling the form of the Board
examination, the date of birth was wrongly entered as 30-5-1974.
The Principal described the mistake as “clerical” and recommended
for its correction. As the Board did not take any decision on the
application, the respondent filed a writ petition in the High Court.”
The Court was considering the Regulations framed under the
Assam Secondary Education Act, 1961 which provided for a three years’
period
post the declaration of result for effecting corrections in their
certificates. The student approached the Board after the expiry of three
years and thus, the primary question before the Court was only whether
the three years’ period would be enforced as per Regulations or any
relaxation could be given. The Court refused to give any relaxation stating
that expiry of limitation would extinguish the remedy. In paragraph 12, it
notes thus:
“12. Delay defeats discretion and loss of limitation destroys the
remedy itself. Delay amounting to laches results in benefit of
discretionary power being denied on principles of equity. Loss of
limitation resulting into depriving of the remedy, is a principle based
on public policy and utility and not equity alone. There ought to be
a limit of time by which human affairs stand settled and uncertainty
is lost. Regulation 8 confers a right on the applicant and a power
coupled with an obligation on the Board to make correction in the
date of birth subject to the ground of wrong calculation or clerical
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error being made out. A reasonable procedure has been prescribed
for processing the application through the Inspector of Schools
who would verify the school records and submit report to the
Board so as to exclude from consideration the claims other than
those permissible within the framework of Regulation 8. Power
to pass order for correction is vested on a high functionary like
Secretary of the Board. An inaccuracy creeping in at the stage of
writing the certificates only, though all other prior documents are
correct in all respects, is capable of being corrected within a period
of three years from the date of issuance of certificate.”
It, then, held the three years’ period to be a reasonable time as it
is sufficient time for a student to notice any error in her certificates.
Paragraph 13 notes thus:
“13. Three-year period provided by the Regulation, is a very
reasonable period. On the very date of issuance of the certificate,
the student concerned is put to notice as to the entries made in the
certificate. Everyone remembers his age and date of birth. The
student would realise within no time that the date of birth as entered
in the certificate is not correct, if that be so, once the certificate is
placed in his hands. Based on the certificate the applicant would
seek admission elsewhere in an educational institution or might
seek a job or career where he will have to mention his age and
date of birth. Even if he failed to notice the error on the date
of
issuance of the certificate, he would come to know the same
shortly thereafter. Thus, the period of three years, as prescribed
by Regulation 3, is quite reasonable. It is not something like
prescribing a period of limitation for filing a suit. The
prescription of three years is laying down of a dividing line
before which the power of the Board to make correction ought
to be invoked and beyond which it may not be invoked. Belated
applications, if allowed to be received, may open a Pandora’s
box. Records may not be available and evidence may have been
lost. Such evidence — even convenient evidence — may be
brought into existence as may defy scrutiny. The prescription of
three years’ bar takes care of all such situations. The provision is
neither illegal nor beyond the purview of Section 24 of the Act
and also cannot be called arbitrary or unreasonable. The applicants
seeking rectification within a period of three years form a class
JIGYA YADAV (MINOR) (THROUGH GUARDIAN/FATHER
HARI SINGH) v. C.B.S.E. (CBSE) [A. M. KHANWILKAR, J.]
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by themselves and such prescription has a reasonable nexus with
the purpose sought to be achieved. No fault can be found therewith
on the anvil of Article 14 of the Constitution.”
It can be noticed that apart from a wholly different factual matrix,
the Court in Md. Sarifuz Zaman78 was dealing with a very narrow
question of reasonability of the limitation period for correcting clerical
mistakes under the umbrella of a statutory law. The Court had no occasion
to deal with circumstances wherein a person would want to change her
name out of her freewill in exercise of her guaranteed fundamental rights
under the Constitution. The Court was looking at it as a purely civil
transaction and in fact, treated it like one while speaking of how the
expiry of limitation would entirely bar the remedy. As already observed
above, we reiterate that we see a difference between rights originating
under the civil laws and rights considered to be fundamental under the
Constitution and protected as such. The exercise of a fundamental right
can, at best, be regulated on reasonable grounds but not entirely foreclosed
without a strong and legitimate purpose. Except that the dictum in Md.
Sarifuz Zaman79 pertains to the specific facts of its case and also
because no prejudice was actually caused to the student in that case
(the changes were anyway permitted), we say no more.
CONCLUSION AND DIRECTIONS TO CBSE
169. Although we have discussed the
broad issues canvassed
before us, in the ultimate analysis the real dispute requiring resolution is
about the nature of correction or change, as the case may be, permissible
to be carried by the CBSE at the instance of the student including past
student. As noted earlier, broadly, two situations would arise.
170. The first is where the incumbent wants “correction” in the
certificate issued by the CBSE to be made consistent with the particulars
mentioned in the school records. As we have held there is no reason for
the CBSE to turn down such request or attach any precondition except
reasonable period of limitation and keeping in mind the period for which
the CBSE has to maintain its record under the extant regulations. While
doing so, it can certainly insist for compliance of other conditions by the
incumbent, such as, to file sworn affidavit making necessary declaration
and to indemnify the CBSE from any claim against it by third party
78 supra at Footnote No.16
79 supra at Footnote No.16
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because of such correction. The CBSE would be justified in insisting for
surrender/return of the original certificate (or duplicate original certificate,
as the case may be) issued by it for replacing it with the fresh certificate
to be issued after carrying out necessary corrections with caption/
annotation against the changes carried out and the date of such correction.
It may retain the original entries as it is except in respect of correction of
name effected in exercise of right to be forgotten. The fresh certificate
may also contain disclaimer that the CBSE cannot be held responsible
for the genuineness of the school records produced by the incumbent in
support of the request to record correction in the original CBSE
certificate. The CBSE can also insist for reasonable prescribed fees to
be paid by the incumbent in lieu of administrative expenses for issuing
fresh certificate. At the same time, the CBSE cannot impose precondition
of applying for correction consistent with the school records only before
publication of results. Such a condition, as we have held, would be
unreasonable and excessive. We repeat that if the application for
recording correction is based on the school records as it obtained at the
time of publication of results and issue of certificate by the CBSE, it will
be open to CBSE to provide for reasonable limitation period within which
the application for recording correction in certificate issued by it may be
entertained by it.
However, if the request for recording change is based
on changed school records post the publication of results and issue of
certificate by the CBSE, the candidate would be entitled to apply for
recording such a change within the reasonable limitation period prescribed
by the CBSE.  In this situation, the candidate cannot claim that she had
no knowledge about the change recorded in the school records because
such a change would occur obviously at her instance. If she makes such
application for correction of the school records, she is expected to apply
to the CBSE immediately after the school records are modified and
which ought to be done within a reasonable time. Indeed, it would be
open to the CBSE to reject the application in the event the period for
preservation of official records under the extant regulations had expired
and no record of the candidate concerned is traceable or can be
reconstructed. In the case of subsequent amendment of school records,
that may occur due to different reasons including because of choice
exercised by the candidate regarding change of name.  To put it differently,
request for recording of correction in the certificate issued by the CBSE
to bring it in line with the school records of the incumbent need not be
limited to application made prior to publication of examination results of
the CBSE.
JIGYA YADAV (MINOR) (THROUGH GUARDIAN/FATHER
HARI SINGH) v. C.B.S.E. (CBSE) [A. M. KHANWILKAR, J.]
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171. As regards request for “change” of particulars in the
certificate issued by the CBSE, it presupposes that the particulars intended
to be recorded in the CBSE certificate are not consistent with the school
records. Such a request could be made in two different situations. The
first is on the basis of public documents like Birth Certificate, Aadhaar
Card/Election Card, etc. and to incorporate change in the CBSE certificate
consistent therewith. The second possibility is when the request for
change is due to the acquired name by choice at a later point of time.
That change need not be backed by public documents pertaining to the
candidate.
(a) Reverting to the first category, as noted earlier, there is a
legal presumption in relation to the public documents as envisaged in the
1872 Act. Such public documents, therefore, cannot be ignored by the
CBSE. Taking note of those documents, the CBSE may entertain the
request for recording change in the certificate issued by it. This, however,
need not be unconditional, but subject to certain reasonable conditions to
be fulfilled by the applicant as may be prescribed by the CBSE, such as,
of furnishing sworn affidavit containing declaration and to indemnify the
CBSE and upon payment of prescribed fees in lieu of administrative
expenses. The CBSE may also insist for issuing Public Notice and
publication in the Official Gazette before recording the change in the
fresh
certificate to be issued by it upon surrender/return of the original
certificate (or duplicate original certificate, as the case may be) by the
applicant. The fresh certificate may contain disclaimer and caption/
annotation against the original entry (except in respect of change of
name effected in exercise of right to be forgotten) indicating the date on
which change has been recorded and the basis thereof. In other words,
the fresh certificate may retain original particulars while recording the
change along with caption/annotation referred to above (except in respect
of change of name effected in exercise of right to be forgotten).
(b) However, in the latter situation where the change is to be
effected on the basis of new acquired name without any supporting
school record or public document, that request may be entertained upon
insisting for prior permission/declaration by a Court of law in that regard
and publication in the Official Gazette including surrender/return of original
certificate (or duplicate original certificate, as the case may be) issued
by CBSE and upon payment of prescribed fees. The fresh certificate as
in other situations referred to above, retain the original entry (except in
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respect of change of name effected in exercise of right to be forgotten)
and to insert caption/annotation indicating the date on which it has been
recorded and other details including disclaimer of CBSE. This is so
because the CBSE is not required to adjudicate nor has the mechanism
to verify the correctness of the claim of the applicant.
172. In light of the above, in exercise of our plenary jurisdiction,
we direct the CBSE to process the applications for correction or change,
as the case may be, in the certificate issued by it in the respective cases
under consideration. Even other pending applications and future
applications for such request be processed on the same lines and in
particular the conclusion and directions recorded hitherto in paragraphs
170 and 171, as may be applicable, until amendment of relevant Byelaws.
Additionally, the CBSE shall take immediate steps to amend its relevant
Byelaws so as to incorporate the stated mechanism for recording
correction or change, as the case may be, in the certificates already
issued or to be issued by it.
173. Accordingly, we dispose of the cases before us with directions
to the CBSE as noted in paragraphs 170 to 172 above. No order as to
costs.
Devika Gujral
Directions issued.
JIGYA YADAV (MINOR) (THROUGH GUARDIAN/FATHER
HARI SINGH) v. C.B.S.E. (CBSE) [A. M. KHANWILKAR, J.]