Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (Lucknow Bench): The Division Bench of Justice Umesh Chandra Srivastava, Member (J) and Vice Admiral Abhay Raghunath Karve, Member (A) held that a defence person cannot be permitted to change the name of his wife twice in service records.

“Name of wife of the applicant has already been changed from Malhouthi Devi to Samalti Singh on the basis of affidavit given by the applicant in the year 1973. If there was any clerical mistake, the applicant should have reported the matter to concerned officer within few days.”

The applicant was enrolled in the Army on 13-11-1963. On being discharged from service on 21-11-1980, he had been granted service pension from vide PPO dated 02-03-1981. Later on, he joined the Directorate General of Quality Assurance (DGQA) and got retired on 31-01-2005. Therefore, he was getting a 2nd pension vide PPO dated 18-02-2005.

The grievance of the applicant was that he had represented his case for change of name and date of birth of his wife in his army service documents which was denied by the respondents-Union of India. The Government noted that there was a mismatch in the date of birth and name of the applicant’s wife mentioned in the service records and appendix containing change and suggested the applicant to forward a few documents for change of name and date of birth.

Ultimately, the Government rejected the request to introduce afore-mentioned change on the following grounds:

  • “Policy allows only change in surname/maidan name.

  • Applicant had already changed the name from Malhouthi Devi to Samalti Singh.

  • No provision to change of name of wife except surname or maiden name and date of birth except typographical/clerical errors and in applicant’s case no such error is found.”

The Government contended that the applicant had already changed his wife’s name from Malhouthi Devi to Samalti Singh during the year 1973 and policy does not allow change of name second time. Similarly, owing to the difference of more than four (4) years in the date of birth as recorded in service and the proposed date of birth the government denied accepting any changes in the date of birth as well.

The Tribunal noted that earlier the applicant had applied for change of name of his wife in the year 1973, which was changed but at that time he had chosen to remain silent regarding the change of date of birth. Similarly, in the year 2001, he again gave another affidavit requesting to change the name of his wife but nothing was mentioned regarding change of date of birth. It was in the year 2019 after about 56 years from the date of entry in army service documents, the applicant applied for change of date of birth. Thus, the Tribunal held that the applicant’s attempt to change the date of birth of his wife at a belated stage was not justified. The Tribunal stated,

“If the date of birth of the wife of applicant was recorded wrong, then applicant should have consulted the competent authority within few months for correction of date of birth of his wife.”

With regard to change in name of the applicant’s wife, the Tribunal observed the following:

  • First affidavit was given while applicant was serving in the army in the year 1973 for change of name of his wife from Malhouthi Devi to Samalti Singh in army service documents.

  • Second affidavit was given by the applicant in the year 2001 while he was serving in DGQA Kanpur for change of name of his wife from Samanti Singh to Shyam Lata Singh in DGQA service documents.

  • Third affidavit was given by the applicant in the year 2019 for change of name and date of birth of his wife in PPO of army service.

Therefore, the Tribunal opined that it is doubtful for someone to give affidavit three times for change of name of spouse. Further, as per policy on the subject, name of spouse can be changed only one time. Hence, observing that the name of the applicant’s wife had already been changed from Malhouthi Devi to Samalti Singh in the year 1973 the Tribunal held that if there was any clerical mistake, as alleged by the applicant, he should have reported the matter to the officer concerned within few days.

In view of the above, the instant application was dismissed.

[Ram Naresh Singh v. Union of India, 2022 SCC OnLine AFT 835, decided on 27-01-2022]


Advocates who appeared in this case :

Shailendra Kumar Singh and Ravi Kumar Yadav, Advocates, for the Applicant;

Namit Sharma, Central Government Counsel, for the Union of India.


*Kamini Sharma, Editorial Assistant has reported the brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ has held that the right to control one’s identity is a fundamental right and the Central Board of Secondary Education cannot deny such right by refusing to allow a person to change their name in the Certificates without giving them reasonable opportunity.

Issue

Whether an individual’s control over such cardinal element of identity could be denied to him/her by the Central Board of Secondary Education on the specious ground that its Examination Byelaws of 2007 must prevail over the claim of the candidate, which are merely intended to regulate such a claim and to delineate the procedure for correction/change in the contents of certificate(s) issued by it including regarding maintenance of its office records?

Analysis

Do you have the right to change your identity?

“What’s in a name? that which we call a rose by any other name would smell as sweet”, said Juliet. This quote from William Shakespeare’s “Romeo and Juliet” is unarguably one of the most iconic dialogues in classical literature.  It conveys that the natural characteristics of an individual are more important than his/her artificial/acquired characteristics.  A poetic statement as it certainly is, it does not go in tune with the significance of a name in marking the identity of an individual in his/her societal transactions. To put it differently, name is an intrinsic element of identity.”

Identity is an amalgam of various internal and external including acquired characteristics of an individual and name can be regarded as one of the foremost indicators of identity. And therefore, an individual must be in complete control of her name and law must enable her to retain as well as to exercise such control freely “for all times”. Such control would inevitably include the aspiration of an individual to be recognized by a different name for a just cause.

Any change in identity of an individual has to go through multiple steps and it cannot be regarded as complete without proper fulfilment of those steps. An individual may self¬identify oneself with any title or epithet at any point of time. But the change of identity would not be regarded as formally or legally complete until and unless the State and its agencies take note thereof in their records. Afterall, in social sphere, an individual is not only recognized by how an individual identifies oneself but also by how his/her official records identify him/her. For, in every public transaction of an individual, official records introduce the person by his/her name and other relevant particulars.

However, going by the very nature of rights under Article 19, the right to get changed name recorded in the official (public) records cannot be an absolute right and as a matter of public policy and larger public interest calls for certain reasonable restrictions to observe consistency and obviate confusion and deceptive attempt.

Byelaws violative of fundamental right to change one’s identity?

The concerned Byelaw has been framed on the assumption that there can be no situation wherein a legitimate need for change of name could arise for a student after publication of results. It is presumed that only typographical/factual errors could come in the certificates and they can be corrected using the provision for corrections.

“The presumption, we must note, is erroneous, absurd and distances itself from the social realities.”

There can be numerous circumstances wherein change of name could be a legitimate requirement and keeping the ultimate goal of preserving the standard of education in mind, the Board must provide for a reasonable opportunity to effect such changes.

Further, the balance of convenience would tilt in favour of students.  For, they stand to lose more due to inaccuracies in their certificates than the Board whose sole worry is increasing administrative burden.

“The obligation of Board to take additional administrative burden is no doubt onerous but the propensity of a student losing career opportunities due to inaccurate certificate is unparalleled.”

A Board dealing with maintenance of educational standards cannot arrogate to itself the power to impact identity of students who enrol with it. The right to control one’s identity must remain with the individual, subject, of course, to reasonable restrictions.

What kind of requests can be made?

Where the incumbent wants “correction” in the certificate issued by the CBSE:

  • 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, would be unreasonable and excessive.
  • If the application for recording correction is based on the school records as it 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.

“Change” of particulars in the certificate issued by the CBSE:

The request for “change” of particulars in the certificate issued by the CBSE,  presupposes that the particulars intended to be recorded in the CBSE certificate are not consistent with the school records.

When are such requests made?

(a) on the basis of public documents like Birth Certificate, Aadhaar Card/Election Card, etc. and to incorporate change in the CBSE certificate consistent therewith.

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 change of name effected in exercise of right to be forgotten).”

(b) due to the acquired name by choice at a later point of time which need not be backed by public documents pertaining to the candidate:

Such a 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 may 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.

Directions

  • 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 lines of the decision of the Court in the present case, 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.

[Jigya Yadav v. CBSE, 2021 SCC OnLine SC 415, decided on 03.06.2021]


Judgment by: Justice AM Khanwilkar 

Know Thy Judge| Justice AM Khanwilkar

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of S. Ravindra Bhat and A.K. Chawla, JJ., allowed a letters patent appeal against the dismissal of a writ petition (hereinafter ‘subject petition’) seeking corrections/amendments to her and her parents’ names in the appellant’s class X grade sheet issued on 28.05.2016.

The case of the appellant was that her name Ms. Arya Kariyatil Chendakera, her father’s name, Sh. Kariyatil Chendakera Deleep Kumar and her mother’s name, Smt. Kavitha Deleep were recorded as Arya K C, K C Dilip and Kavitha Dilip respectively in the school records due to inadvertence which resulted in the class X grade sheet being issued with the same typographical errors. The appellant asserted that the correct names of her parents were so recorded in their respective Aadhar cards and passports, and that the mismatching of names in the said documents would lead to unnecessary hardships.

The subject petition was dismissed on grounds that it was ‘change in name’ as envisaged under Bye-Law 69.1(i) of the Examination Bye-laws 1995 and that the change itself was being sought beyond one year after the declaration of the result. The appellant contended that the relief being sought was that of ‘correction in name’ under the amended Bye-law 69.1(ii) and not 69.1(i). The appellant relied on Khushbu Kaushik v. CBSE, 2017 SCC OnLine Del 8492 to substantiate her claim.

The Court noted, upon bare perusal of the amended Bye-laws of 2015, that the provisions provide for separate dealing with ‘changes in name’ and ‘correction in name’, and hence, any application such as the present one has to be proceeded upon after inferring whether it is for ‘changes in name’ or ‘correction in name’. Moving on, the Court took a careful look at the names appearing in the class X grade card and came to the conclusion that the appellant sought merely to furnish her and her parents’ full names and correction in the spelling of the surname. Further, identities of the appellant or her parents were never in question. Noting a delay of 4 days in filing the subject petition and condoning the delay, the Court directed CBSE to carry out the necessary corrections in the names in their records and to issue a corrected grade sheet to the appellant within four weeks. Appeal allowed. [Arya Kariyatil Chendakera v. CBSE, 2018 SCC OnLine Del 8402, decided on 16.04.2018]