Undisputed facts are that in the records of the respondent Board, the date of birth of the petitioner is mentioned as 1-4-1972. This date was furnished by the petitioner himself to the Board at the time of registration as also at the time of forwarding examination forms for Matriculation Examination, which the petitioner cleared on 1989 under Roll No.19912. After about six years, in 1995, the petitioner applied to the Board for correction of this date of birth in the records of the Board as 28-2-1976. The Birth Committee of the Board, after examining the original record of the Town Committee of Jandiala Sher Khan District Sheikhupura rejected the application by following order.
"Heard in person. The name is inserted at Serial No. 134 by tempering the record of Jandiala Sher Khan. It seems fraud, therefore, case is rejected. " '
The petitioner felt aggrieved and filed a civil suit on 18-5-1995 for declaration as to correct date of birth and for consequential mandatory injunction. The respondent Board contested the suit which was, however, decreed on 5-6-1996. Against the decree, the appeal of the Respondent Board was also dismissed. The Board filed Civil Revision No. 1208 of 1997 in this Court. Vide judgment dated 21- 1-1998, this Court by a consent order directed the Board to reconsider the question and pass a final order within a period of two months. The relevant part reads:-- "After some arguments, it is agreed that by completely ignoring the effect of the judgments of two learned Courts below, the petitioner would pass a fresh order in the matter of correction of date of birth of the respondent, and while doing so the respondent would be given full opportunity of proving his stance by production/submitting of necessary oral and/or documentary evidence."
Pursuant to the above order, the matter was reconsidered by the Board in its relevant Committee and after hearing the petitioner and considering the material produced by him, to its earlier decision and refused to change the date of birth. Hence this Constitutional petition with the prayer that the order passed by the Respondent Board dated 30-3-1998, Annexure "F", be declared to have been passed without lawful authority and further prayer made is that by a writ of mandamus, the Respondent Board be directed to correct the Matriculation Certificate issued on 20-9-1995 so as to bring the date of birth in accord with the certificate of Town Committee, Jandiala Sher Khan, District Sheikhupura.
2. The Board has contested this petition by filing report and parawise comments along with the relevant documents. The main plea of the respondent Board is that the matter is in the discretion of the Board and as it is not satisfied with the genuineness/authenticity of the entry made in the certificate issued by the Town Committee, its refusal is with legal authority and otherwise justified.
3. Mr. S.M. Masud, Advocate, appearing in support of the petition, has argued that the maintenance of register of births is done by Urban Local Councils under a statute viz Punjab Local Government Ordinance, 1979 read with Rules framed thereunder and entries made by the Local Councils in the relevant registers, therefore, have a statutory force and other functionaries including the Board have no authority in law to decline to act in accordance with such entries. It is explained that basic function of the Board is not to keep records of the births or the date of births of the students but to provide for education and hold examinations at the Secondary and the Higher Secondary School level. It is contended that the Board has no authority to scrutinize the entry made by a Local Council under the statute or in any manner sit over judgment as to the correctness of the same.
Reliance is placed on the cases of B. Ramamurthy, minor by next friend and father B.S. Chetty v.
Director of Public Instruction, Madras AIR (31) 1944 Mad. 187 and Board of Intermediate and Secondary Education, Lahore, etc. v. Sultan Khan NLR 1980 AC 339, a Single Bench judgment of this Court.
4. Mr. Shahid Waheed, Advocate, appearing for respondent Board, on the other hand, has contended that under the relevant Regulation No.5 which has been competently and validly framed by the Board, the procedure for change in the dates of births has been laid down and the Board has acted strictly according to the said provisions. It is further contended that in law, in certain circumstances, the Board can refuse to accept the correctness and validity of the certificate issued by a Local Council. By inviting attention to Annexure "R/8" it is emphasized that in this case the entry per se shows that it is of a doubtful nature inasmuch as it has been inserted at the end of the page of the register where even relevant space under Entry No.133 has ended. It is further argued that one of the conditions for claiming correction of date of birth from the Board is that the Schools Records are also corrected in the same manner and for this purpose reliance is placed on proviso (3) to Regulation No.5 of the Calendar of the Board of Intermediate and Secondary Education, Lahore.
5. It is correct that under the relevant law viz section 56 of the Local Government Ordinance, 1979 it is the compulsory function of an Urban Local Council to maintain register of births and deaths. The respondent Board is not the agency created by statute for-such a purpose. In fact, the Respondent Board acts only on the strength of information provided to it by a student or his school, at the time of registration of the student or at the time when the relevant examination forms are forwarded for enabling the student to appear in Secondary/Higher School Examination conducted by the Board.
The Board accepts the particulars given by the student/School and incorporates the same in its records. It is equally true that just as in case of other human activity, honest and bona fide mistake may occur in furnishing particulars like actual date of birth at the relevant time, therefore, the provision made by the Board for correction/change of the entries.
6. While Mr. S.M. Masud, Advocate, did argue that the records of the Local Council is conclusive and the Board cannot refuse to act in accordance with the same, he failed to pin point any provision in either Punjab Local Government Ordinance, 1979 read with relevant Rules made thereunder or any other law, in support of this argument. Like all other public records, the record and entries made thereunder by a Local Council in performance of its statutory duties has an initial presumption of correctness. This presumption is a rebuttable presumption. Even in the case of B. Ramamurthy (Supra) relied on by Mr. S.M. Masud, Advocate, it has not been laid down as a matter of law that in all cases the entry made by the public authority must be accepted. I may add, with respect, that the judgment in that case proceeds on its own peculiar facts and the then instructions issued by the Government on the subject. In the other judgment, this Court on review of evidence held that "4-4-1949 seems to have been wrongly entered in the School Register at the time of admission of Sultan Khan to that School and there is nothing extraordinary." It was on that finding that the judgment and decree passed by the Lower Court was upheld by this Court. It will be seen that even this judgment does not lay down the statement of law which Mr. S.M. Masud, Advocate, wants to be laid down in this case.
7. In my view, there is a good reason for not making the date of entry recorded in a birth certificate issued by the Local Council as binding on the Board/University/other statutory functionaries in the State. The public interest can be very well catered to by holding that such entries only raised a rebuttable presumption. This will eliminate the possibility of fraud etc. Occurring in the records on one statutory functionary being transferred to the records of the other functionaries. It need be emphasized that the Board only records that date of birth which is furnished by students/candidates and if a student or a candidate wants to have that changed or wriggle out of it, he must give good reason to the Board and leave the matter to be decided as per its satisfaction which of course should not be arbitrary and should be in accord with the Regulation. .8. The next question for me to examine is whether the Board has rightly acted in this matter? The respondent Board is a creation of the Punjab Boards of Intermediate and Secondary Education Act, 1976, Punjab Act No.XII1 of 1976. Under section 20 a Board, subject to approval of the Government, can frame regulations not inconsistent with the provision of the Act, to carry out the purposes of the Act. Section 32 of this Act provides that "notwithstanding anything to the contrary contained in this Act, the regulations set out in the Schedule shall be deemed to be the first regulations framed by the Board under section 20 of this Act." Chapter 3 of the Schedule contains General Regulations.
Under Regulation No.3(5), the Board has the power to make regulation on the subject of "Changes in dates of Birth". Regulation No.5 is the Regulation directly in question and the same is reproduced below:-- "The date of birth of a candidate who has either applied for appearing in the Secondary School Examination or has already passed the examination, may be corrected provided that:--
(1) The application is made within 2 years from the declaration of the result of Secondary School Examination on payment of Rs.150 or from 2 to 5 years on payment of Rs.250 or from five to ten years on payment of Rs.350 or after ten years on payment of Rs.1,000 as a special fee provided further that the fee once received shall not be refunded.
(2) The Board is satisfied after enquiry and inspection of school records pertaining to the first admission of a particular candidate in a recognized school that the mistake was due to a clerical error in transferring the date of birth from one record, register or document to another record, register or document. or If the entry of the date of birth on first joining a recognized school is not available or is reported to be incorrect then the birth certificate containing all entries pertaining to his name in the Municipal birth register be supplied/provided that the name of the candidate and the name of the father of the candidate are clearly mentioned in these entries. or If the entry of the date of birth of son/daughter of a military personnel on first joining a recognized school is available but reported to be incorrect, then the Casualty Report (Birth Certificate) containing all entries pertaining to the name in the Central Officer's Record Officer (GHQ)
Rawalpindi, and in the relevant regimental centres for others ranks be supplied provided that the name of the candidate and the name of the father of the candidate are clearly. Mentioned in these entries. or If the entry of the date of birth of son/daughter of Air Force/Naval personnel on first joining a recognized school is available but reported to be incorrect, then the Casualty Report (Birth Certificate) containing all entries pertain to the name in the P.A.F. Record Office, Maripur, Karachi and the Naval Headquarters, Karachi be supplied provided that the name of the candidate and the name of the father of the candidate are clearly mentioned in these entries.
(3) The school records are corrected in the same manner as the records in the office of the Board.
(4) Notwithstanding anything contained this regulation, the Chairman may accept a certificate of a school duly attested by the foreign mission of Pakistan in a foreign country."
9. It will be seen that nowhere in the above regulation an entry in a Municipal Birth Register has been made binding on the Board. Under proviso (2) the Board has to be satisfied after enquiry and inspection of school records pertaining to first admission of a particular candidate in a recognized school that mistake was due to clerical error in transferring the date of birth from our record, register or document to another record, register or document, before it can correct the record. It is the alternative, the Board can refer to the Municipal Birth Certificate, if entry of the date of birth on first joining a recognized school was not available or is reported to be incorrect for the same yurnose. Under proviso (3) the entry can be corrected only if The school records are corrected in the same manner as the records in the office of the Board".
10. In this case the petitioner has not attempted to show to the Board that a mistake in the school records had occurred and that it was a clerical mistake nor, in the alternative, he has tried to establish that at the time of his joining in a recognized school, the entry of the date of birth was not available or it has been discovered to be incorrect and what are those circumstances in which such a discovery has been made. There is force in the submission of Mr. Shahid Waheed, Advocate, that the petitioner ought to have first got the school records corrected before approaching the Board to do so. It is clear that the petitioner is not fulfilling the conditions laid down in Regulation No.5 above reproduced. The petitioner, therefore, has to fail: Besides, there is the finding of the Board that the entry in the relevant certificate is ex facie fraudulent as it is not contained in the relevant column and it seems clear that Entry No. 134 in respect of petitioner has been "inserted" after Entry No. 133.
11. There is no need for me to either agree or disagree with such opinion of the Board as I am holding that the petitioner is not fulfilling the requirements of Regulation No.5. Suffice it to say that this opinion of the Board cannot be said to be altogether perverse or illogical. It may also be noted that if the petitioner claimed date of birth viz 28-2-1976, is correct then the petitioner will have passed his Matriculation Examination at the age of 13 years only, a rarity indeed, if not an impossibility.
12. For all the reasons given above, the action of the Board in refusing the claim of the petitioner for correction of date of birth cannot be said to be illegal. This petition is dismissed with no order as to costs.