# The Secretary, CBSE, New Delhi & Ors v. Kabir Jaiswal & Ors. 496 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 9 ILRA 495
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-06
- **Case number:** Special Appeal No. 107 of 2021
- **Bench:** Munishwar Nath Bhandari, A.C.J. Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-secretary-cbse-new-delhi-ors-v-kabir-jaiswal-ors-496-indian-law-reports-47438
- **Pages:** 12

## Headnote

A.S.G.I., Sri Ajay Singh, Sri Ram Sagar
Yadav

A. Education - Certificate issued by
CBSE - Change of name, sought for -
Proof, to be filed in support thereof -
Public document - Declaration by the
Court of law, when it is required - Held,
the application for change of name can
be supported by school record or public
document, in absence of it, declaration
of the Court of law has been mandated -
Declaration of the Court is sought when
an application is not supported by school
record or public document. (Para 20)
B. Education - CBSE Examination Byelaws - Change of name - Period of
limitation of 10 years - Date, from which
it will be counted - Date of result or
date of application - Determination -
Jigya Yadav's case relied upon - Held,
The period of limitation to make an
application would apply from the date of
declaration of result. (Para 25)
C. Interpretation of Statue - Statute and
bye-laws - Overriding effect -Bye-laws
provides for declaration by the Court of
law and publication but it cannot be
read against the statutory provision -
Bye-laws is to be read down to make it
consistent to the statutory provision -
Bye-laws are not statute though made
enforceable but cannot be read against
the statutory provisions, like the Indian
Evidence Act, 1872 - Presumption given
under the Act of 1872 cannot be brush
aside by the Bye-laws after publication
of Notification in Gazette. (Para 20, 21
and 22)
Appeal disposed of. (E-1)
Cases relied on :-

## Text

9 All The Secretary, CBSE, New Delhi & Ors. Vs. Kabir Jaiswal & Ors.
495
release of the property of the person from
whose possession it was attached. In any
other case the Court may make such order
as it thinks fit for the disposal of the
property by attachment, confiscation or
delivery to any person entitled to the
possession thereof, or otherwise.

18. Appeal. - The provisions of
Chapter XXIX of the Code shall, mutatis
mutandis, apply to an appeal against any
judgment on order of a Court passed under
the provisions of this Act.

11. The aforesaid provision has
clearly envisages that on receiving the
reference from the District Magistrate
under Section 16 (1) of the Act, the Court
shall fix date for inquiry and Court shall
hear the parties, receive evidence produced
by them, take such further evidence as it
considers necessary. In the case in hand,
Special Judge (Gangsters Act) came to hold
that the evidence of concerned parties and
interested witnesses is yet to be recorded to
reach final conclusion. Even the notice is
not served to them at this stage, so
releasing the aforesaid property is contrary
to the settled provisions under the Act. In
view of the matter, proceedings regarding
the determination of the claim of the parties
is still to be decided by the court concerned
after recording evidence of respective
parties.

12. Although in support of his
submission, learned counsel for petitioner
has relied upon a judgment of this Court in
the case of Rajbir Singh Vs. State of U.P.
passed in Criminal Misc. Writ Petition No.
17245 of 2009. but the fact of this case is
quite different from the facts of the present
case. In Rajbir Singh's case, the trial court
finally determined the rights of the
petitioner under Section 17 of the Gangster
Act. In the present case, no final order has
been passed by the competent gangster
court and enquiry proceedings is still
pending under Section 16 of the Gangster
Act.

13. The learned Special Judge
(Gangsters Act) has not arrived at any final
conclusion regarding release of alleged
property under Section 17 of the Gangster
Act. Since no final order was passed by the
court of Gangster Act, so at this stage, the
present writ petition is not maintainable. If
any grievance left to the petitioner after
arriving any conclusion by Gangster Court
under Section 17 of the Act then he may
file appeal under Section 18 of the
Gangster Act before this court.

14. In view of the aforesaid statutory
provisions of law, there is no ground to
entertain this petition. Accordingly, the
petition is disposed of. However, it is
desirable by the learned Special Judge
Gangster Act to conclude the inquiry and
pass the appropriate orders under Section
17
of
the
Gangsters
Act,
1986
expeditiously preferably within a period of
one month, if there is no legal impediment.
----------
(2021)09ILR A495
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Special Appeal No. 107 of 2021

The Secretary, CBSE, New Delhi & Ors.
 ...Appellants
Versus
Kabir Jaiswal & Ors. ...Respondents
496 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Hridai Narain Pandey, Sri Manish Goyal

Counsel for the Respondents:
A.S.G.I., Sri Ajay Singh, Sri Ram Sagar
Yadav

A. Education - Certificate issued by
CBSE - Change of name, sought for -
Proof, to be filed in support thereof -
Public document - Declaration by the
Court of law, when it is required - Held,
the application for change of name can
be supported by school record or public
document, in absence of it, declaration
of the Court of law has been mandated -
Declaration of the Court is sought when
an application is not supported by school
record or public document. (Para 20)
B. Education - CBSE Examination Byelaws - Change of name - Period of
limitation of 10 years - Date, from which
it will be counted - Date of result or
date of application - Determination -
Jigya Yadav's case relied upon - Held,
The period of limitation to make an
application would apply from the date of
declaration of result. (Para 25)
C. Interpretation of Statue - Statute and
bye-laws - Overriding effect -Bye-laws
provides for declaration by the Court of
law and publication but it cannot be
read against the statutory provision -
Bye-laws is to be read down to make it
consistent to the statutory provision -
Bye-laws are not statute though made
enforceable but cannot be read against
the statutory provisions, like the Indian
Evidence Act, 1872 - Presumption given
under the Act of 1872 cannot be brush
aside by the Bye-laws after publication
of Notification in Gazette. (Para 20, 21
and 22)
Appeal disposed of. (E-1)
Cases relied on :-
1. Jigya Yadav (minor) through Guardian/Father
Hari Singh Vs Central Board of Secondary
Education and others reported in 2021 SCC
OnLine SC 415
(Delivered by Hon'ble Munishwar Nath
Bhandari, A.C.J.
&
Hon'ble Subhash Chandra Sharma, J.)

1. By this appeal, a challenge is made
to the judgment dated 02.12.2020 by which
the writ petition preferred by the petitionernon appellant was allowed.

2. The writ petition was filed to seek a
direction
on
the
Central
Board
of
Secondary Education (C.B.S.E.) for change
of name of the petitioner-non appellant in
their record from Rishu Jaiswal to Kabir
Jaiswal and issue the certificate. The prayer
aforesaid was allowed by the learned
Single Judge.

3. It is after taking note of the fact that
on the application made by the petitionernon appellant to a competent authority, the
name was changed from Rishu Jaiswal to
Kabir
Jaiswal
with
publication
of
Notification in the Gazette of India, bearing
No. 44 New Delhi, Saturday, November 2-
November 8, 2019. Based on the Gazette
Notification, a prayer was made to the
C.B.S.E. to change the name of the nonappellant in their record and issue the
certificate.

4. The prayer aforesaid was not
exceeded to rather it was rejected vide
order dated 27.05.2020. It was mainly on
the ground that school records does not
support change of name, as sought by the
non-appellant. That was the only ground to
deny change of name in the record. The
learned Single Judge after relying on the
judgments of the High Court so as the
Apex Court and referring to the relevant
clauses of C.B.S.E. Bye-laws, found no
9 All The Secretary, CBSE, New Delhi & Ors. Vs. Kabir Jaiswal & Ors.
497
reason to deny change of name and
accordingly order impugned was set aside
with a direction to undertake exercise, as
directed therein within a period of two
months.

5. Learned Additional Advocate
General Sri Manish Goyal submits that the
impugned order has been passed holding
C.B.S.E. Bye-laws to be non statutory and
thereby ignoring the period within which
change of name can be sought, directions
have been given. It is also submitted that in
a recent judgment of the Apex Court in the
case of Jigya Yadav (minor) through
Guardian/Father Hari Singh Vs. Central
Board of Secondary Education and others
reported in 2021 SCC OnLine SC 415, the
C.B.S.E. Bye-laws were held enforceable.
The learned Single Judge held that the Byelaws are not having flavour of statute, thus,
period of three years to seek correction or
change in the name as per clause 69 of the
Bye-laws could not have been affected the
prayer. It is also submitted that period of
three years has been given to seek
correction or change in the name while
applicant is a student of C.B.S.E. and not
after passing of the examination of the
C.B.S.E.

6. Referring to the facts of this case, it
is
stated
that
non-appellant
cleared
C.B.S.E. Examination in the year 2013
while application for change in name was
given in the year 2019. It was admittedly
beyond the period of three years even if a
liberal construction of the Bye-laws is
taken to allow a student to seek change in
the
name
after
passing
C.B.S.E.
Examination. The application was beyond
three years even then.

7. Learned Senior Counsel further
submits that in case of change of name by
the candidate at his choice, a declaration by
the Court of law is required. In the instant
case, there was no declaration by the Court
of law and thereby the judgment of learned
Single Judge is even hit by the judgment of
the Apex Court in the case of Jigya Yadav
(supra) where it was made ncessary.

8. The prayer is to set aside the
judgment of learned Single Judge.

9. The appeal has been contested by
the learned counsel for non-appellant. He
submits that judgment in the case of Jigya
Yadav (supra) is not adverse to the nonappellant rather it supports him. In the case
of Jigya Yadav (supra), the Apex Court has
referred to the period for seeking correction
or change of the name but therein also, the
appeal was not dismissed by the Apex
Court on the ground of expiry of period
rather a favourable direction has been
given.

10. Accordingly, the judgment
aforesaid favours the non-appellant.

11. It is even in reference to the
request for change of name. In case of
change of name on choice of the candidate,
the certificate can be issued by the C.B.S.E.
when the application is supported by the
school record or the public document. In
absence of it only, there was a need to seek
declaration from the civil Court.

12. Learned A.A.G. has misconstrued
the direction of the Apex Court to urge that
in case of change of name, the declaration
from the Court of law is necessary in all
eventualities. This is going against the
judgment of the Apex Court in the case of
Jigya Yadav (supra). The prayer is
accordingly to dismiss the appeal more so
when the learned Single Judge has given
498 INDIAN LAW REPORTS ALLAHABAD SERIES
reference of the catena of judgments of the
Apex court holding C.B.S.E. Bye-laws to
be non-statutory and in a case even if the
matter is driven by the judgment of the
Apex Court in the case of Jigya Yadav
(supra), the finding recorded therein with
the direction are favourable to the nonappellant.

13. The application was otherwise
within the period given under the Bye-laws
for the reason that the non-appellant passed
out C.B.S.E. Examination in the year 2013
while
change
of
name
was
much
subsequent to it. A Notification in the
Gazette was published in the year 2019 to
notify the changed name and that was the
occasion for the non-appellant to seek
change in the name in the year 2019. The
application
aforesaid
was
made
immediately after issuance of the Gazette
Notification, thus, there was no delay on
part of the non-appellant to seek change in
the name. As per Bye-laws, it was of ten
years at the relevant time.

14.

We
have
considered
the
submission advanced by the parties and
perused the record.

15. The ground raised by the
appellant to assail the judgment of the
learned Single Judge is mainly in reference
to the judgment of the Apex Court in the
case of Jigya Yadav (supra).

16. The first argument is as to
whether change in the name can be sought
after passing C.B.S.E. Examination. The
learned Single Judge has referred to clause
69.1 of the Bye-laws. The issue aforesaid
would be discussed later but there is an
admission of the learned Senior Counsel
for the appellants that even the Apex Court
in the case of Jigya Yadav (supra) has
allowed correction or change in the name
of a student after passing out the C.B.S.E.
course. The first issue for our consideration
remains in reference to para 171 of the
judgment of the Apex Court in the case of
Jigya Yadav (supra). The said para is
quoted herein-:

"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
9 All The Secretary, CBSE, New Delhi & Ors. Vs. Kabir Jaiswal & Ors.
499
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 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."

17. Learned Senior Counsel has made
much emphasis in reference to sub-para (b)
of para 171. In the case of change in name
by choice, the student is required to seek a
declaration from the Court of law. In the
instant case, no such declaration was
sought, thus, the learned Single Judge
could not have directed the appellant to
undertake the exercise for issuance of
certificate in the changed name.

18. We have carefully gone through
para 171 of the judgment in the case of
Jigya Yadav (supra) and find that after a
detailed
discussion
on
the
issue,
appropriate directions were given by the
Apex Court in para 171. The first direction
is when change is sought in the C.B.S.E.
certificate inconsistent to the school record.
The aforesaid can be sought based on a
public document like birth certificate,
aadhar
card/electoral
card,
etc.
to
incorporate change in the C.B.S.E. record
consistent therewith.

19. The second contingency is for
change of name on acquisition of name by
choice. In that case, if the application is not
backed
by
school
record
or
public
document, then a declaration of Court of
law is necessary.

20. Sub-para (b) deals with the issue
in regard to change of name acquired by
the candidate by choice. There, the
application can be supported by school
record or public document, in absence of it,
declaration of the Court of law has been
mandated. The declaration of the Court is
sought
when
an
application
is
not
supported by school record or public
document. The Bye-laws provides for
declaration by the Court of law and
publication but it cannot be read against the
statutory provision. Notification in Gazette
is not only a public document but stand inrem with presumption under the Evidence
Act, 1872.

21. In view of the above, we are not
in agreement with the learned Senior
Counsel
that
in
all
eventualities,
a
500 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration is required to be sought from
the Court of law in case of change of name
by choice. The Bye-laws is to be read down
to make it consistent to the statutory
provision. A public document can be basis
to seek change in the name.

22. In the instant case, the nonappellant made an application to the
competent authority to seek change in the
name from Rishu Jaiswal to Kabir Jaiswal.
The
prayer
was
exceeded
too
and
accordingly on completion of the legal
formalities,
the
changed
name
was
published in the Gazette. The learned
Single Judge could not dispute that
Notification in the Gazette is a public
document rather it is to be read in-rem
against the rest of the word. The change in
the name was sought based on the Gazette
Notification i.e. a public document, thus, it
does not lie in the mouth of the appellant to
direct
the
non-applicant
to
seek
a
declaration from the Court of law for
change in the name rather based on the
public document, the application to seek
change in the name should have been
considered. The Bye-laws are not statute
though made enforceable but cannot be
read against the statutory provisions, like
the Indian Evidence Act, 1872. The
presumption given under the Act of 1872
cannot be brush aside by the Bye-laws after
publication of Notification in Gazette.

23. The other issue raised by learned
counsel for appellant is the nature of Byelaws. They are claiming it to be under
Article 19 (2) of the Constitution of India,
therefore, enforceable in law. Again much
is not required to be discussed as it has
already been dealt with by the Apex Court
in the case of Jigya Yadav (supra). The
Apex Court held C.B.S.E. Bye-laws to be
enforceable in law.

24. We are now touching the issue of
the period by which the application could
have been given by the candidate for
change of name. The Apex Court in the
case of Jigya Yadav (supra) has given
summary of development of examination
Bye-laws which was tabulated therein and
for ready reference, quoted herein-:
CBSE EXAMINATION BYELAWS

Cor
recti
on
in
cand
idat
e's
nam
e
Corre
ction
in
name
s of
candi
date's
father
/moth
er
Cha
nge
of
cand
idat
e's
nam
e
Cha
nge
in
nam
es of
cand
idat
e's
fath
er/m
othe
r
Cha
nge/
corr
ectio
n in
cand
idat
e's
date
of
birt
h
Time
perio
d
Be
for
e
20
07
A
me
nd
me
nt
Per
mitte
d to
mak
e
it
cons
isten
t
with
scho
ol
recor
d.
Permit
ted to
make
it
consis
tent
with
school
record
.
Alter
ation
/addi
tion/
delet
ion
perm
itted
to
mak
e
it
diffe
rent
from
scho
ol
recor
d
upon
fulfil
ment
of
two
Alter
ation
/addi
tion/
delet
ion
perm
itted
to
mak
e
it
diffe
rent
from
scho
ol
recor
d
upon
fulfil
ment
of
two
No
chan
ge in
date
of
birth
perm
itted.
Only
corre
ction
s
perm
itted
to
mak
e
it
cons
isten
t
with
scho
ol
For
corre
ction
in
name
No
limita
tion.

For
D.o.
B.-
withi
n
2
years
of
decla
ration
of
result
.
9 All The Secretary, CBSE, New Delhi & Ors. Vs. Kabir Jaiswal & Ors.
501
cond
ition
sperm
issio
n by
court
of
law
and
notif
icati
on in
gove
rnme
nt
gaze
tte.
cond
ition
s
-
perm
issio
n by
court
of
law
and
notif
icati
on in
gove
rnme
nt
gaze
tte.
recor
ds.
Po
st
20
07
A
me
nd
me
nt
Per
mitte
d to
mak
e
it
cons
isten
t
with
scho
ol
recor
d.
Permit
ted to
make
it
consis
tent
with
school
record
.
No
chan
ge in
nam
e/sur
nam
e
perm
itted.
No
chan
ge in
nam
e/sur
nam
e
perm
itted.
Sam
e as
befo
re.
For
name
-
withi
n 10
years
of
decla
ration
of
result
.

For
D.o.
B.-
same
as
befor
e
Po
st
20
11
A
me
Sam
e as
befo
re.
Same
as
before
.
Can
be
cons
idere
d on
writt
Can
be
cons
idere
d on
writt
Sam
e as
befo
re.
For
chan
ge of
name
-
withi
nd
me
nt
en
requ
est
of
cand
idate
/fath
er/m
other
duly
forw
arde
d by
Hea
d of
the
Instit
ution
.
en
requ
est
of
cand
idate
/fath
er/m
other
duly
forw
arde
d by
Hea
d of
the
Instit
ution
.
n 10
years
of
decla
ration
of
result
.
Po
st
20
15
A
me
nd
me
nt
Per
mitte
d to
mak
e
it
cons
isten
t
with
scho
ol
recor
d but
only
withi
n
one
year
of
resul
t.
Permit
ted to
make
it
consis
tent
with
school
record
but
only
within
one
year
of
result.
Can
be
cons
idere
d
upon
fulfil
ment
of
two
prior
cond
ition
s
befo
re
publ
icati
on
of
resul
t of
cand
idate
-
No
chan
ge in
nam
e of
fathe
r/mo
ther
of
cand
idate
perm
issib
le.
Sam
e as
befo
re.
Only
time
was
redu
ced
to
one
year
after
decl
arati
on
of
resul
t.
For
corre
ction
of
name
-
withi
n
1
year
of
decla
ration
of
result
.

For
D.o.
B.-
withi
n
1
year
of
decla
ration
502 INDIAN LAW REPORTS ALLAHABAD SERIES
perm
issio
n by
court
of
law
and
gaze
tte
notif
icati
on.
of
result
.
Po
st
20
18
A
me
nd
me
nt
Sam
e as
befo
re.
Tim
e
limit
chan
ged
to
five
year
s
after
decl
arati
on
of
resul
t.
Same
as
before
. Time
limit
chang
ed to
five
years
after
declar
ation
of
result.
Sam
e as
befo
re.
Capt
ion
mad
e
man
dator
y for
sho
wing
the
chan
ged
infor
mati
on in
certi
ficat
e.
Cha
nge
in
nam
e of
fathe
r/mo
ther
perm
itted
with
same
cond
ition
s as
appli
cabl
e in
case
of
chan
ge of
nam
e of
cand
idate
.
No
chan
ge in
date
of
birth
perm
itted.
Two
cate
gorie
s of
corre
ction
s
perm
itted
- as
per
scho
ol
recor
ds
and
as
per
court
orde
rs.
For
corre
ction
of
name
-
withi
n
5
years
of
decla
ration
of
result
.

For
D.o.
B.-
withi
n
5
years
of
decla
ration
of
result
.

25. The table quoted above shows
amendment in the Bye-laws from time to
time and as the non-appellant/petitioner
passed out C.B.S.E. Examination in the
year 2013, thus, the provision of Bye-laws,
as was existing in the year 2013, is to be
applied. The relevant Bye-laws is of the
year 2011, then existing in the year 2013.
The application was maintainable within 10
years
of
declaration
of
result.
The
declaration of result is in the year 2013 thus
period of 10 years was to expire in the year
2023 whereas the application for change of
name was made in the year 2019 i.e. within
the period of 10 years from the date of
declaration of result. The issue as to
whether period given under the Bye-laws
would apply from the date of declaration of
result or the date when application was
made has been clarified by the Apex Court
in the case of Jigya Yadav (supra). It is
with a finding that the period of limitation
to make an application would apply from
the date of declaration of result. The
relevant paras of the judgment are quoted
herein for ready reference-:

"123.
As
noted
above,
the
Byelaws permit change of name only if
permission from the Court has been
obtained prior to the publication of result. It
puts a clear embargo on any change of
name sans prior permission before the
publication. The provision is problematic
on certain counts. Firstly, it is not a mere
restriction on the right, it is a complete
embargo on the right post publication of
result of the candidate. It fails to take into
account the possibility of need for change
of name after the publication of result
including the uncertainty of timeline
required to obtain such declaration from the
Court of law due to law's delay and upon
which the candidate has no control
whatsoever. Whereas, while amending the
Byelaws in 2007, the CBSE itself had
noted that children are not of mature age
9 All The Secretary, CBSE, New Delhi & Ors. Vs. Kabir Jaiswal & Ors.
503
while passing school examinations and they
may not be in a position to decide
conclusively on issues concerning their
identity. The Byelaws completely overlook
this possibility when it ordains seeking
declaration from the Court prior to the
publication of results of the concerned
examination conducted by it.

124. The overriding state interest,
as per the Board, to retain this stringency is
nothing but efficiency of administration.
Administrative efficiency, despite being a
crucial concern, has not been and cannot be
elevated to a standard that it is used to
justify
non-performance
of
essential
functions by an instrumentality of the State.
To use administrative efficiency to make it
practically impossible for a student to alter
her identity in the Board certificates, no
matter how urgent and important it is,
would be highly disproportionate and can
in no manner be termed as a reasonable
restriction. Reasonableness would demand
a proper balance between a student's right
to be identified in the official (public)
records in manner of her choice and the
Board's
argument
of
administrative
efficiency. To sustain this balance, it would
be open to the Board to limit the number of
times such alterations could be permitted
including subject to availability of the old
records preserved by it as per the extant
regulations. But to say that post the
publication of examination results and
issuance of certificates, there can be no
way to alter the record would be a case of
total prohibition and not a reasonable
restraint.

125. The limitation as regards
maximum period upto which changes can
be permitted also requires a different
approach. Upon receiving the certificates,
the student would naturally be put to notice
of the particulars of certificates. Due to
young age and inadvertence including
being casual and indolent, a student may
fail to identify the errors or to understand
the probable impact of those errors and
accordingly, may not apply for rectification
immediately. It is also possible that a
student may not have to use the certificates
immediately after passing out and by the
time she uses them, the limitation period
for correction may elapse. Therefore, a
realistic time for permitting corrections is
very
important.
Indeed,
it
can
be
commensurate
with
the
statutory
or
mandatory period upto which CBSE is
obliged to preserve its old record.

126. However, we need not
explore upon the question as to whether the
exercise of a fundamental right can be
foreclosed by prescribing a rigid period of
limitation. In case of any ordinary civil
rights, it is important that the action for
enforcement of such rights is initiated in
prescribed
time
and
consistency
is
maintained, but is it permissible to say the
same about fundamental rights? The rights
which are recognised as fundamental under
the Constitution are "preferred or chosen
freedoms" and a very sensitive and realistic
approach has to be taken in such matters.
We wonder whether after the lapse of
prescribed time, let us say 3 years, there
could be no reasonable and legitimate
circumstances to warrant change of name.

130. One of the primary functions
of the Board is to grant certificates to its
students.
Effective
maintenance
and
regulation of standard of education would
include complete accountability of the
Board in grant of such certificates and its
duty does not get extinguished after
publication of examination results and issue
of certificates. Rather, it extends to taking
care
of
post-publication
concerns
of
students as and when they emerge, as
students seek to use their certificates for
purposes of higher education and career
504 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunities. A narrow reading of the
functions of the Board would leave glaring
gaps in the field of school education and
may jeopardize the welfare of students with
legitimate concerns.

147. The provision for "change"
of name is far more stringent and calls for a
thorough review to settle the correct
position. As per the present law, change of
name is permissible upon fulfilment of two
prior conditions - prior permission of the
Court of law and publication of the
proposed change in official gazette. These
conditions co-exist with another condition
predicating that both prior permission and
publication must be done before the
publication of result. What it effectively
means is that change of name would simply
be impermissible after the publication of
result of the candidate even if the same is
permitted by a Court of law and published
in official gazette. In other words, once the
examination result of the candidate has
been published, the Board would only
permit corrections in name mentioned in
the certificate. Further, changing the name
out of freewill is simply ruled out.

152. The Byelaws provide for a
two-tier mechanism for recording change
of name or other details (as indicated
above). One of them is prior permission or
declaration by a Court of law to be
obtained. As regards public documents like
Birth Certificate, Official Gazette, Aadhaar
Card, Election Card, etc., the same enjoy
legal presumption of its correctness in
terms of explicit provisions contained in
Chapter V of the 1872 Act. The 1872 Act
extends such presumption in terms of
Section 76 read with Sections 79 and 80 of
the 1872 Act and as in the case of Official
Gazette under Section 81 of the same Act.
Even other legislations concerning public
documents attach equal importance to the
authenticity of such documents including
while making changes in their certificates
to which we have alluded to in this
judgment. Understood thus, there is no
reason for the CBSE Board to not take
notice of the public documents relied upon
by the candidate and to record change on
that basis in the certificate issued by it, for
being consistent with the relied upon public
documents. It matters not if the information
furnished in the public documents is not
entirely consistent with the school records
of the incumbent. The CBSE while
accepting those documents as foundational
documents for effecting changes consistent
therewith
may
insist
for
additional
conditions and at the same time while
retaining the original entry make note in the
form of caption/annotation in the fresh
certificate to be issued by it while calling
upon the incumbent to surrender the
original certificate issued by it to avoid any
misuse thereof at a later point of time. It
would be permissible for the CBSE to insist
for a sworn affidavit to be given by the
incumbent making necessary declaration
and also to indemnify the CBSE. The fresh
certificate to be issued by the CBSE may
also contain disclaimer of the Board clearly
mentioning that change has been effected at
the behest of the incumbent in light of the
public documents relied upon by him. In
addition, the incumbent can be called upon
to notify about the change in the Official
Gazette and by giving public notice as
precondition for recording the change by
way of abundant precaution.

158.
As
noticed
in
the
submissions above, there is a conflict of
opinion amongst the High Courts as
regards the point of time which would
determine the applicability of Byelaws. The
frequent amendments carried out by the
CBSE had made it imperative for the courts
to
grapple
with
this
question.
The
immediate question is whether the date of
9 All The Secretary, CBSE, New Delhi & Ors. Vs. Kabir Jaiswal & Ors.
505
declaration of result or the date of
application
for
changes
would
be
determinative of the applicable Byelaws.
While addressing this question, the Delhi
High Court in Kalpana Thakur61 took the
view that the Byelaws existing on the date
of application would apply, irrespective of
amendment. This view can be discerned
from the following paragraphs of the
judgment:

"12.2 In my view, the submission
of Mr. Bansal that amended Bye-laws
69.1(i) would apply, is untenable, for a
simple reason that the amendment to the
said
bye-law
was
notified
only
on
25.06.2015; a date which falls beyond the
date on which the application for change of
name was preferred in the instant case. The
argument advanced in support of this
submission by Mr. Bansal that the Office
Order was in place prior to the date of the
application, in my view, will not sustain, as
the Office Order, is an internal document,
which could have no legal validity till the
position taken therein is put in public
realm. The very fact that a notification in
respect of the amended Bye-law was issued
by respondent no. 1/CBSE, would show,
that the decision to amend bye-law 69.1(i)
required a public notice.

12.3
Consequently,
all
applications for change of name which are
filed prior to notification dated 25.06.2015,
will be governed, in my view, by the
unamended Bye-law 69.1(i). Therefore,
quite logically, the petitioners, in my
opinion, would have to be given the reliefs
as sought in the writ petition."

Notably, the question before the
Court was slightly different. It was only
whether the unamended Byelaws would
continue to apply if the application was
preferred before the date of amendment.
Nevertheless, the Kerala High Court in
Vyshnav62 has taken a different view of
the matter and observed that the Byelaws
existing on the date of passing out would
apply. It observed thus:

"5. On an analysis of the said
rule and amended provision it is evident
that, the first respondent relied on an
incorrect provision in order to non-suit the
petitioner by rejecting the applications
submitted for change of name. Therefore,
Exts.P7 and P9 cannot be sustained under
law, since the same is violative of the rule
provided for the purpose. Petitioner has
passed out in the year 2013 and therefore,
the law as it stood then has to be taken in to
account, since there is no retrospective
operation to the amendment. Therefore, I
quash Exts.P7 and P9, and direct the first
respondent to re-consider the application
submitted by the petitioner based on Rule
69(1(i), as it stood before as is specified
above."

159. Considered in the context of
the Byelaws, the controversy is actually
simple in nature. The Byelaws consistently
provide that the period of limitation is to be
calculated from the date of declaration of
the result and issue of certificate. It means
that the period of limitation begins to run
against the student after declaration of
result and publication of certificates as the
student is put to notice of the contents of
the document, upon its issue. The student
can now be said to be in a position to verify
the correctness of the certificate(s). The
irresistible outcome of this legal position is
that the Byelaws existing on the date of
such declaration/publication of result and
issue of certificate would be relevant for
the purpose of effecting changes in the
certificates. The express language of the
Byelaws would be defeated if we say that
the law existing on the date of application
for recording change would be relevant.
That would negate the very importance of
506 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

26. In the light of the finding recorded
by the Apex Court in the paras quoted
above, it is a case where the application for
change of name was given within the time
frame provided under the Bye-laws.

27. In view of the above, we are
unable to accept the argument of learned
counsel for the appellant that application
for change of name was submitted after the
period of limitation.

28. At this stage, we may also clarify
that the Bye-laws existing in the year 2013
was permitting an application for change of
name within 10 years of declaration of
result,
thus,
the
argument
that
an
application
for
change
of
name
or
correction of the certificate could have
been given only by the candidate while
pursuing the C.B.S.E. studies is not
acceptable. When Bye-laws permits, an
application for change of name within 10
years from the date of declaration of result
then it would be applicable even for a
candidate
passed
out
the
C.B.S.E.
Examination. If there exists contradiction
in the Bye-laws, beneficial provision is to
be applied for the student.

29. In totality, we do not find any
reason
to
cause
interference
in
the
judgment of learned Single Judge. The
issue has now been decided by the Apex
Court in the case of Jigya Yadav (supra)
and we have recorded finding not only in
reference to the Bye-laws but judgment of
the Apex Court in the case of Jigya Yadav
(supra), thus find no reason to cause
interference to the directions given by the
learned Single Judge. The writ petition
would now be governed by this judgment.

30. With the aforesaid finding, the
appeal is disposed of.
----------

(2021)09ILR A506
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.08.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE SURESH KUMAR GUPTA, J.

Special Appeal No. 200 of 2020

State of U.P. & Ors. ...Appellants
Versus
Om Prakash Soni ...Respondent