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C/SCA/15724/2018 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 15724 of 2018

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SAKIR GULAM JOGIYAT
Versus
STATE OF GUJARAT & 5 other(s)
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Appearance:
MR MM SAIYED(1806) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, ASST GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,3
MR SAMIR AFZAL KHAN(3733) for the Respondent(s) No. 4
NOTICE SERVED(4) for the Respondent(s) No. 2
SERVED BY AFFIX(N)(7) for the Respondent(s) No. 5,6
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

Date : 23/12/2019

ORAL JUDGMENT

1. Rule. Mr. Jayneel Parikh, learned Assistant Government


Pleader appearing for respondent nos. 1 & 3 and Mr. Samir
Khan, learned advocate for the respondent no. 4 waive service
of notice of Rule.

2. In this petition, under Article 226 of the Constitution of


India, the petitioner has prayed to direct the respondents no.
3 & 4 to delete the name of the petitioner from all the records
of respondent no. 5 maintained in their school and office
including School Leaving Certificate of respondent no. 5.

3. It is the case of the petitioner that he had married one


Fatima in the year 1999 and has four children out of the
wedlock. It is the case of the petitioner that respondent no. 6

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delivered a male child in the year 2002 at Abhishek Hospital,


Ankleshwar. The municipality at that point of time issued
relevant birth certificate and in the column of name of the
father of respondent no. 5 the name of the petitioner was
mentioned. Aggrieved by the entry of his name as the father
of respondent no. 5 in the birth certificate issued by the
municipality, he requested that since he had never married
respondent no. 6, his name as father of respondent no. 5 be
deleted. Such a request was rejected by the competent
authority. The petitioner therefore filed a petition before this
court being Special Civil Application No. 3598 of 2014. This
Court vide order dated 11.08.2016 allowed the petition and
held as under:

“5. I have heard learned advocate appearing for the


petitioner. As stated hereinabove, though served,
the respondent Nos.2 and 3 have chosen not to
appear before this Court.

6. I have considered the provisions of Registration


of Births and Deaths Act, 1969 as well as Gujarat
Births and Deaths Registration Rules, 2004. I have
also perused the impugned order passed by the
respondent No.2. Considering the provisions of
law, I am of the opinion that the respondent No.2
has committed an error in passing the impugned
order. Prima facie, it appears that the respondent
No.2 has not undertaken any enquiry and has
passed the impugned order. Hence, the present
petition requires consideration.

7. In the result, the present petition succeeds and


is allowed. The order dated 18.2.2014 passed by
the Registrar under the Births and Deaths Act and
Chief Officer of Ankleshwar Municipality
respondent No.2 herein is hereby quashed and set
aside. The respondent No.2 is hereby directed to
consider the application filed by the petitioner in
the month of November, 2013 afresh, after

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following the procedure prescribed under the


provisions of Registration of Births and Deaths Act,
1969 as well as Gujarat Births and Deaths
Registration Rule, 2004, as expeditiously as
possible, preferably within a period of three
months from the date of receipt of this order, after
giving opportunity of hearing to all concerned
including the petitioner. Rule is made absolute to
the above extent.”

3.1 According to the directions issued by this Court, a fresh


certificate of birth qua respondent no. 5 was issued on
16.01.2017 by which the petitioner’s name as father was
deleted.

3.2 Based on the above, the petitioner made an application


to the respondent no. 4 school to correct the school records
and delete the name of the petitioner as father of respondent
no. 5. It appears that the District Primary Education Officer,
Bharuch at the relevant time opined that since respondent no.
5 was in the secondary Section, the same could not be done
by the District Primary Education Officer. On a specific
request made, the same was rejected on the ground that since
respondent no. 5 had left the school, the request for
correction of records in the school could not be done.

4. Mr. M.M. Saiyed, learned advocate for the petitioner


would assail the order of refusing to delete the name of the
petitioner from the records of respondent no. 4 on the ground
of respondent no. 5 no more studying in the school. He has
placed reliance on a decision of this Court rendered in Special
Civil Application No. 25312 of 2006 wherein this Court after
considering the provisions of Regulation 12-A(6) of the Board
has held that such a regulation would not prevent the school

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from correcting the records on the basis that the birth


certificate now in fact does not bear the name of the
petitioner as the father of respondent no. 5 pursuant to the
directions of this Court in Special Civil Application No. 3598
of 2014.

5. Mr. Samir Khan, learned advocate for the respondent no.


4 school has invited my attention to the affidavit-in-reply filed
on behalf of the school and contended that the petition is not
maintainable. There is no right of the petitioner to seek
correction in School Leaving Certificate once the ward has
left the school. He submitted that because of the non-joinder
of the school where the respondent no. 5 was studying last
also, the petition would not be maintainable.

6. Mr. Jayneel Parikh, learned Assistant Government


Pleader submits that the petition is not maintainable in view
of the decision of this Court rendered in the case of Thakore
Nilesh Shishirbhai vs. Gujarat Secondary Education
Board and Others [2007(3) GLR 2276] and also in the
decision rendered in Special Civil Application No. 13887
of 2014. He submitted that in both these decisions this Court
has held that the petitioner should approach the concerned
Judicial Magistrate, First Class.

7. Having heard learned advocates appearing for the


respective parties and having gone through the records of the
case, this Court is of the view that the petitioner’s case
deserves consideration. This Court vide order dated
11.08.2016 passed in Special Civil Application No. 3598 of
2014 had directed to delete the name of the petitioner as

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father of respondent no. 5 in the birth certificate of


respondent no. 5 pursuant to which a fresh birth certificate
was issued in favour of respondent no. 5. This Court in the
said order had categorically relied on the decision of this
Court in the case of Mulla Faizal @ Fazilabanu Suleman
Ibrahim vs. State of Gujarat and others [2000(2) GLH 1]
wherein it is held that the authorities under the provisions of
Section 15 of the Registration of Births and Deaths Act, 1969
read with Rule 12 of the Gujarat Births and Deaths
Registration Rules, 2004 are duty bound in law to make
necessary inquiries before making changes in the birth
certificate and in absence of such inquiry the inclusion of the
name of the petitioner in the birth certificate is bad.
Accordingly, the municipality altered its record and issued a
fresh certificate on 16.01.2017 by which the petitioner’s name
was deleted.

8. Further in the decision rendered in Special Civil


Application No. 25312 of 2006, on the point of Regulation
12-A(6) preventing the school from changing the name once
the student has left the school, this court has specifically
opined that Regulation 12-A(6) is meant for curbing
malpractice and preventing unscrupulous persons from
obtaining advantage. The Court has held that for genuine and
bonafide lapses, the same cannot be thrown out on the ground
of technicalities.

9. In the facts of the present case, it is evident that this is


not a case of malpractice or malafide. This Court vide order
dated 11.08.2016 has already permitted the petitioner to have
his name deleted from the birth certificate of respondent no. 5

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and therefore based on the same, the petitioner deserves to


have his name deleted from the records of the school where
the respondent no. 5 was studying. Merely on the ground that
the ward has left the school, the authorities cannot reject the
request of the petitioner.

10. In the above view of the matter, respondents no. 3 & 4


are directed to delete the name of the petitioner from the
records of respondent no. 5 including the School Leaving
Certificate issued by the school. Petition is accordingly
allowed. Rule is made absolute.

(BIREN VAISHNAV, J)
DIVYA

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