# Shweta Pathak v. U.O.I. & Ors

- **Citation:** (2022) 12 ILRA 282
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-14
- **Case number:** Writ C No. 29479 of 2021
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shweta-pathak-v-u-o-i-ors-48015
- **Pages:** 7

## Headnote

A.S.G.I., Sri Dhananjay Awasthi

A. Education - Correction in Spelling of
name in the education certificate -
Limitation of three years provided, but the
petitioner approached after eight years -
Effect - Jigaya Yadav's case relied upon -
Technicalities of delay in approaching the
authority concerned should not come in
the way of redressal of genuine grievance
of the petitioner - Held, the principle laid
down in the case of Jigya Yadav as well as
in the case Anand Singh basically aimed at
facilitating
such
corrections
and
the
direction is to the Board to amend its bye
laws as per the directions issued -
Direction for necessary correction was
issued. (Para 4, 6 and 8)
Writ petition disposed of. (E-1)
List of Cases cited:

## Text

282 INDIAN LAW REPORTS ALLAHABAD SERIES

12.

Learned
counsel
for
the
complainant, however, submitted that so far
as the jurisdiction under Section 27(2) of the
1947 Act for imposing the surcharge with the
District Magistrate had been questioned, the
question was no longer res intergra as now a
Division Bench of this Court in the case of
Ram Vilas vs. Commissioner Devi Patan
Mandal Gonda and others reported in 2022
(1) ADJ 1 had decided that the District
Magistrate could impose the surcharge.

13. Learned Standing Counsel though
was asked to place before the Court the
record of the Chief Audit officer by the
order of this Court dated 19.9.2022, a
counter affidavit has been filed in which he
had appended two Government Orders
dated 14.8.2019 and 8.6.2022. By the
Government Order dated 14.8.2019, he has
only brought on record the Government
Order by which the enquiry as per the U.P.
Panchayat Raj (Removal of Pradhans, UpPradhans and Members) Enquiry Rules,
1997, was to be conducted. With regard to
the Government Order dated 8.6.2022,
suffice it to say that the learned Standing
Counsel has brought on record the fact that
the District Magistrate had been made the
Prescribed Authority.

14. Still further the learned Standing
Counsel has brought to the notice of the
Court an order dated 26.9.2022 by which the
Chief Audit Officer had delegated his powers
to the District Audit Officers.

15. Having heard the learned counsel
for the parties, there is not an iota of doubt
that the enquiry which was conducted by the
Deputy Director (Agriculture), Basti, was an
enquiry which was without jurisdiction. In
fact, as per Rules 256 and 257 of the 1947
Rules, the enquiry ought to have been
conducted by the Chief Audit Officer and
now as per the order of delegation made by
the Chief Audit Officer by the District Audit
Officers.

16. Under such circumstances, the
impugned order dated 29.8.2022 passed by
the District Magistrate, Basti, is quashed and
is set aside.

17. However, the Court suggests that
the Law Commission may take up the matter
and as per the conditions prevailing now i.e.
as per the various powers which have been
bestowed upon the Panchayats after the
amendment of the Constitution of India by
the 73rd Amendment by which Articles
243(A) to 243 (O) have been added in the
Constitution of India and the Panchayats
have attained constitutional status, a body
which has powers to supervise the working
of the Pradhans and its officials should be
constituted for monitoring of the Panchayats
and for supervising the work which is being
done by them.

18. For the reasons stated above, the
writ petition stands allowed.

19. A copy of this order be sent by the
Registrar General of this Court to the State
Law Commission.
----------
(2022) 12 ILRA 282
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2022 &
30.05.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ C No. 29479 of 2021

Shweta Pathak ...Petitioner
Versus
U.O.I. & Ors. ...Respondents
12 All. Shweta Pathak Vs. U.O.I. & Ors.
283
Counsel for the Petitioner:
Sri Balram Jee Verma, Sri B.D. Pandey

Counsel for the Respondents:
A.S.G.I., Sri Dhananjay Awasthi

A. Education - Correction in Spelling of
name in the education certificate -
Limitation of three years provided, but the
petitioner approached after eight years -
Effect - Jigaya Yadav's case relied upon -
Technicalities of delay in approaching the
authority concerned should not come in
the way of redressal of genuine grievance
of the petitioner - Held, the principle laid
down in the case of Jigya Yadav as well as
in the case Anand Singh basically aimed at
facilitating
such
corrections
and
the
direction is to the Board to amend its bye
laws as per the directions issued -
Direction for necessary correction was
issued. (Para 4, 6 and 8)
Writ petition disposed of. (E-1)
List of Cases cited:
1. Jigaya Yadav Vs Central Board of Secondary
Examination & ors.; 2021 (7) SCC 535
2. Anand Singh Vs U.P. Board of Secondary
Education & ors.; 2014 3 ADJ 443
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri V.B. Pandey, learned
Advocate holding brief of Sri Balram Jee
Verma, learned counsel for the petitioner,
Sri Dhananjay Awasthi, learned counsel
appearing for respondent Nos. 2 and 3 and
perused the record.

2. The issue raised in the present writ
petition is with regard to correction in the
spelling
of
the
name
of
petitioner
mentioned in the intermediate marks-sheetcum-certificate issued by the National
Institute of Open Schooling, New Delhi
(hereinafter referred to as 'the N.I.O.S.).
From the pleadings of the petition as well
as the documents brought on record, it is
apparent that everywhere in the academic
record, the name of the petitioner has been
spelled as "Shweta Pathak" whereas in the
intermediate
marks-sheet-cum-certificate
issued by the N.I.O.S., it is shown as
"Sweta Pathak". The name of the mother
and that of the father of the petitioner are
correctly spelled as "Bindu Pathak and
Prabhat Kumar Pathak" in all the academic
records right from High School upto the
University and even in the intermediate
marks-sheet-cum-certificate issued by the
N.I.O.S., the name of the mother of the
petitioner is spelled as Bindu Pathak and
that of father as Prabhat Kumar Pathak.

3. In the counter affidavit, the stand
taken by the respondents is that the name of
the petitioner, even if, it is a spelling
mistake occurred in printing process,
cannot be corrected because the limitation
prescribed for applying for correction in the
marks-sheet-cum-certificate issued by the
N.I.O.S. is three years whereas the
petitioner has approached the N.I.O.S. for
necessary correction after eight years.

4. Learned counsel for the petitioner
has relied upon the judgment of the
Supreme Court in the case of Jigaya Yadav
vs.
Central
Board
of
Secondary
Examination and others; 2021 (7) SCC 535
and that of this Court in the case of Anand
Singh vs. U.P. Board of Secondary
Education and others; 2014 3 ADJ 443, and
submits that the technicalities of delay in
approaching the authority concerned should
not come in the way of redressal of genuine
grievance of the petitioner. He has drawn
the attention of the Court towards the
pleadings raised in the counter affidavit in
which nowhere it is stated that the
petitioner has come with uncleaned hands,
nor fraud or otherwise forgery is alleged to
have been committed at the end of
284 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner. He submits that it is true that the
petitioner ought to have approached the
institution well in time but such spelling
mistake often evades the eyes and at time it
is taken to be so nominal that students do
not get affected. He submits that the
petitioner had been admitted to higher
studies with the same marks-sheet and no
objection had been raised anywhere but the
question would be of employment to which
strict verification is done and there this
mistake may be prejudicial.

5. Having heard learned counsel for
the respective parties and the arguments
raised across the bar, I find that the
spellings of "Shweta" and "Sweta" are so
common that at times it may be pronounced
in such a manner that difference cannot be
noticed and letter 'H' becomes silent and so
it can evade the eyes so genuinely of those,
who have to check the relevant record
before final print is given and, therefore, it
could be genuinely attributed to a mistake
inadvertently
committed
by
the
respondents. This appears to be, so also,
because the names of the father and mother
are correctly printed and, therefore, it
cannot be said under any circumstances
that the petitioner delayed the matter for
any other extraneous consideration. So at
the best it is a case of correction only.

6. The principle laid down in the case
of Jigya Yadav (supra) as well as in the
case Anand Singh (supra) basically aimed
at facilitating such corrections and the
direction is to the Board to amend its bye
laws as per the directions issued and till
such amendment is carried out process the
pending applications and even future
applications, which may on the face of it
appear to be genuine. Vide paragraph nos.
170, 171 and 172 the Supreme Court has
held thus:-

"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 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
12 All. Shweta Pathak Vs. U.O.I. & Ors.
285
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.

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
286 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

7. In my view above law would be
equally applicable to the National Institute
of Open Schooling as well. The broad
principles qua correction at the instance of
students in the academic certificates are
fully attracted in rspect of all such statutory
bodies that perform public functions. The
principles of law laid in the aforesaid
judgment
is
aimed
at
removing
unnecessarily created fetters upon public
bodies in discharging their public functions
in larger public interest. Vide paragraphs
136, 137 and 139, the Supreme Court has
discussed law on the issue thus:-

"139. Law gives no recognition to
an act of shunning essential duties by an
entity of the State. There is a settled body of
cases which expounds that a body entrusted
with essential public functions cannot
unduly put fetters on its powers. In Indian
Aluminium Company51, this Court noted
the proposition thus:

"12. This case was followed by
Russell. J. in York Corporation v. Henry
Leetham & Sons Ltd.52. There, the plaintiff
corporation was entrusted by statute with
the control of navigation in part of the
rivers Ouse and Fose with power to charge
such tolls within limits, as the corporation
deemed necessary to carry on the two
navigations in which the public had an
interest.
The
corporation
made
two
contracts with the defendants under which
they agreed to accept, in consideration of
the right to navigate the Ouse, a regular
annual payment of £600 per annum in
place of the authorised tolls. The contract
in regard to navigation of the Fose was on
similar lines. It was held by Russell, J. that
the contracts were ultra vires and void
because under them the corporation had
disabled itself, whatever emergency might
arise, from exercising its statutory powers
to increase tolls as from time to time might
be necessary. The learned Judge, after
citing Ayr Harbour's case53 and another
12 All. Shweta Pathak Vs. U.O.I. & Ors.
287
case Straffordshire and 51 supra at
Footnote No.6 52 (1924) 1 Ch 557
53(1883) 8 App 623 Worcestershire Canal
Navigation
v.
Birmingham
Canal
Navigation54 observed:

The same principle underlies
many
other
cases
which
show
the
incapacity of a body charged with statutory
powers for public purposes to divest itself
of such powers or to fetter itself in the use
of such powers.

13. Finally Lord Parker, C.J. said
in SouthendonSea Corporation v. Hodgson
(Wickford) Ltd.55:

There is a long line of cases to
which we have not been specifically
referred which lay down that a public
authority cannot by contract fetter the
exercise of its discretion." (emphasis
supplied) Similar proposition is enunciated
in J.K. Aggarwal56 In the context of CBSE,
the Delhi High Court in Dhruva Parate57
noted how CBSE has created selfimposed
restrictions in its Byelaws by permitting no
change of name. The Court deprecated this
exercise of discretion and noted thus:

"8. The interests of efficiency of
an organization ordinarily determine the
guidelines that have to be administered;
yet when they constrain the authorities of
the organization, which is meant to subserve the general public, from doing
justice, in individual cases, the guidelines
become selfdefeating. In such cases, as in
the present one, the end result would mean
that the petitioner would be left with two
certificates with different names and a
whole
lifetime
spent
possibly
on
explaining
the
difference
-
hardly
conducive
to
him,
reflecting
the
inadequacy in the system." 541866 LR 1
HL 254 551961 2 All ER 46 56 supra at
Footnote No.7 57 supra at Footnote No.4
In light of the above discussion, we must
note that there are no restrictions on the
power of CBSE to permit change of name.
The
Constitution,
Resolution
and
Regulations are functional documents of
the Board and none of these documents
provide for any such fetters. Therefore, in
the exercise of its discretion, the Board
cannot put fetters on its duties so as to
cause grave prejudice to the students with
legitimate causes for changing their
certificates. The exercise of discretion in
this negative manner would be arbitrary
and unreasonable, at best"

8. In view of the above, the
respondents are, therefore, directed to
reconsider the matter. If the petitioner
submits
relevant
public
documents
including the high school and B.Sc.
marks-sheet-cum-certificates
within
a
period of four weeks from today before
the Regional Director, Allahabad, he shall
forward the requisite papers after due
verification within a week, to the higher
authorities to do the needful without
getting prejudiced by the decision already
taken by it. Necessary correction should
be carried out and corrected document
shall be issued within a period of six
weeks thereafter. The above directions are
issued looking to the special facts and
circumstances of the case.

9. With the above observations and
directions, the writ petition is disposed of.

In
Re:
Civil
Misc.
Correction
Application No.3 of 2022

Heard.

Allowed.

Name of Advocate holding brief of Sri
Balram Jee Verma occurring as 'V.B.
Pandey' in my order dated 14.03.2022 is
corrected as 'B.D. Pandey' and the same
may be read as such.
----------
288 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 12 ILRA 288
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ C No. 33577 of 2022

Sri Ganga Charan Aryawardhan Hospital,
Bareilly ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Udayan Nandan, Sri Ashok Kumar
Dwivedi, Sri Shashi Nandan (Sr. Counsel)

Counsel for the Respondents:
C.S.C., Sri Dharmendra Singh Chauhan

A. Civil Law - UP Urban Planning and
Development Act, 1973 - Sections 14 (2)
& 16 Compounding of illegal construction
- Residential building was converted into
a hospital - Petitioner failed to comply
with
the
condition
of
the
authority
regarding
demolition
of
the
noncompoundable part - The petitioner has
no sanctioned plan for running nursing
home in its premises - Effect - Held, the
petitioner cannot be permitted to continue
using the building as a hospital in
violation of the existing law, throwing all
principles of town planning to winds and
least concerned with the safety and
security of even those who are availing
medical services in the hospital, being
illegally run from the building in question.
(Para 9, 13 and 22)
Writ petition dismissed. (E-1)
(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Jayant Banerji, J.)

1. Counsel for the parties are
agreeable that the matter be heard and
decided at this stage itself without calling
for
affidavits
from
respondents.
Accordingly, the present writ petition is
being taken up for consideration.

2. Heard Shri Shashi Nandan, learned
Senior Counsel assisted by Shri Udayan
Nandan and Shri Ashok Kumar Dwivedi,
learned counsel for the petitioner and Shri
D.S. Chauhan, learned counsel appearing
for the respondent nos. 2 and 3. The Staterespondents, namely, respondent no. 1 and
4 are represented by learned Standing
Counsel.

BACKGROUND:

3. In the present writ petition, the
petitioner seeks to challenge an order dated
17.10.2022 passed by the Vice-Chairman of
Bareilly Development Authority1 rejecting
the proposal for compounding of the
nursing home of the petitioner. Further
under challenge are the orders/letters both
dated 22.10.2022 informing the petitioner,
respectively, that as per the approved
layout, on a residential plot, a nursing home
cannot
be
sanctioned,
therefore,
the
proposal for compounding of the nursing
home has been rejected by the ViceChairman on 17.10.2022, and, that within
15 days the admitted patients in the nursing
home be transferred to another nursing
home and the premises be vacated, failing
which, the premises of the nursing home
would be sealed. Further, mandamus has
been sought commanding the respondents
not to interfere in the peaceful running of
the nursing home in question and for
commanding respondents to decide the
application
of
the
petitioner
dated
3.10.2022 for change of land use.