Sureshbhai Chunilal Shah vs Principal and Another

K.A. Puj, J.—RULE. Mr. Rashesh Rindani, learned AGP waives service of notice of rule on behalf of the respondent No. 2. On behalf of the respondent No. 1 - School, the Head Clerk of the School along with school record is present and he waives service of notice of rule.

At the joint request of the parties, the matter is taken up for final hearing, today.

The petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the impugned judgment and order dated 30th October, 2009 passed by the learned Judicial Magistrate, First Class, Himmantnagar in Criminal Misc. Application No. 143 of 2009. The petitioner has also prayed for direction to the respondent to issue new School Leaving Certificate, to the petitioner, with correct date of birth of the petitioner i.e. 18th May, 1955.

It is the case of the petitioner that the petitioner was born on 18th May, 1955 at 4.15 a.m. in Himmatnagar Government Civil Hospital i.e. at midnight of 17th May, 1955. Since the date got changed after 12.00 O''clock in the midnight, the date of birth of the petitioner in the Birth and Death Register maintained by the Nagarpalika Himmatnagar was correctly shown as 18th May, 1955 of the petitioner. The petitioner was admitted in Shri Himat High School by parents of the petitioner on 14th June, 1965 and due to some error of clerical mistake the birth date of the petitioner was mentioned as 7th May, 1955 in the school record. The petitioner gave an application to Himmatnagar Nagarpalika to get his Birth Certificate as he wanted to get passport and for that purpose while collecting, the birth certificate, the petitioner came to now that his birth date shown in the birth date certificate is 18th May, 1955 whereas, it was erroneously recorded as 7th May, 1955 in the respondent No. 1 - School''s record. The petitioner, therefore, filed Criminal Misc. Application No. 143 of 2009 before the learned Judicial Magistrate, First Class, Himmatnagar on 16th May, 2009 for correction of his birth date in the School Leaving Certificate. The learned Judicial Magistrate, First Class, Himmatnagar vide his order dated 30th October, 2009 has rejected the application of the petitioner.

It is this order which is under challenge in this petition.

Mr. Girish D. Bhatt, learned advocate appearing on behalf of the petitioner has submitted that the learned Magistrate has not correctly appreciated the facts of the present case. The school authority had not filed any written statement to the application of the petitioner. The petitioner was not cross-examined by or on behalf of the respondent No. 1 - School. The respondent No. 1 - School had not adduced any oral evidence controverting the say of the petitioner. The clerk of the respondent No. 1 - School namely Mr. Kunvarsinh Kalyansinh Solanki was examined by the petitioner in support of his the case and in any case the said witness has not controverted the say of the petitioner by producing any documentary evidence on record. Mr. Bhatt has further submitted that the learned Magistrate has not accepted the birth certificate produced by the petitioner only on the ground that the same has not been proved by the petitioner. However, in view of the provision contained in Section 35 of the Indian Evidence Act, the birth certificate maintained by the competent authority is admissible in evidence and was not required to be proved and that public record maintained by the public authority would be presumed to be maintained by a public servant in discharge of its official duty and that certified copy of the birth certificate of the petitioner maintained by the Himmatnagar Nagarpalika is a public document. In support of this contention, reliance was placed on the decision of this Court in case of Budhiyo Chhaganbhai Vaghri v. State of Gujarat reported in 1991 (2) GLR 1243. Mr. Bhatt has further submitted that there was no necessity to examine the staff of the Civil Hospital, Himmatnagar to prove that the petitioner was born in the Civil Hospital, Himmatnagar as the petitioner has produced on record the certified copy of the birth certificate of Himmatnagar Nagarpalika which shows the place of birth of the petitioner, which is admissible in evidence. Mr. Bhatt has further submitted that the learned Magistrate has clearly erred in observing that no explanation was offered by the petitioner in respect of mentioning of different dates of birth in different documents. The real dispute raised by the petitioner was only to the effect that the birth date mentioned in the school record is required to be corrected from 7th May, 1955 to 18th May, 1955. The birth date mentioned in other documents such as Driving Licence is only because of the fact that though the petitioner was born after midnight of 17th May, 1955, the date of birth in other documents was mentioned as 17th May, 1955. It was only due to the fact that the birth of the petitioner took place after midnight of 17th May, 1955. Mr. Bhatt has further submitted that the impugned judgment and order passed by the learned Judicial Magistrate, First Class is required to be quashed and set aside.

Mr. Rashesh Rindani, learned AGP appearing on behalf of the respondent No. 2, on the other hand, has submitted that the school record shows that the birth date of the petitioner as mentioned in the school record is not in consonance with the birth date of the petitioner as shown in the Birth Certificate issued by Himmatnagar Nagarpalika. It has not come on record that how the birth date of the petitioner is shown as 7th May, 1955 in the school record. However, such date should not be taken as the correct date and the date of birth in the school record is required to be corrected as 18th May, 1955.

Having heard learned advocates for the parties and having gone through the averments made in the petition and the documents produced along with the petition and having considered the impugned judgment and order passed by the learned Judicial Magistrate, First class, the Court is of the view that the learned Magistrate has proceeded altogether on different footing and has not correctly appreciated the issue. It appears that the learned Magistrate presumed that simply because the petitioner was an advocate he is not supposed to make any mistake and it is only because of that the impugned order is passed by the learned Magistrate. Be that as it may, as per the settled legal position, the birth date mentioned in the Register of Birth and Death is generally taken to be the correct date of birth. Nobody is doubting or disputing the birth date shown in the certificate issued by the Nagarpalika. Simply because any person from the hospital is not examined, the said date cannot be said to be incorrect. The order passed by the learned Magistrate is required to be quashed and set aside.

In the above view of the matter, the impugned judgment and order dated 30th October, 2009 passed by the learned Judicial Magistrate, First Class, Himmatnagar in Criminal Misc. Application No. 143 of 2009 is hereby quashed and set aside. As a result thereof, the school authority is directed to change the date of birth of the petitioner from 7th May, 1955 to 18th May, 1955 and issue fresh certificate to the petitioner, forthwith.

With these directions, this petition is accordingly, disposed of. Rule is made absolute to the aforesaid extent. No order as to costs.