The impugned order shows the Labour Officer of the Corporation having relied upon and produced various documents from the school records of the Petitioner as well as of her siblings in Primary Kanya Shala No. 3 of Panvel Nagar Parishad. These documents include the applications made at the time of the admission to the school for Petitioner and her sisters, the School Leaving Certificates of the Petitioner and her sisters, the admission register given by the Head Mistress of the School, a general register of the pupils of the school from old register indicating the date of birth record of the Petitioner etc. These documents are private documents. They carry no presumption in law. Certified copies of these documents are not admissible in evidence. These documents have to be proved by direct evidence as all private documents are required to be proved. It may be mentioned that the date of birth shown in the application for admission to the school are what the parents of the students state. They are not accompanied by documentary evidence to substantiate such dates of birth as correct. The school record would continue to show, until contrary is shown or proved, the date stated by the parents. The record of the school do not show that these dates have been verified from authenticated public documents such as the birth certificate or the record of birth maintained by the Municipal Authorities. Therefore the copies of the documents of the school cannot be taken as authentic.
13. It is common knowledge that to secure admission in the school earlier than at the age which the law permits, an incorrect date of birth may be shown. Unless verified from public records such date may remain in the record of the school. This cannot be verified except by production of public records. They, therefore, cannot be authentic dates as would make those documents admissible as evidence with probative value in law.
Equivalent Citation : 2008 (5)MhLj 147
IN THE HIGH COURT OF BOMBAY
Civil Writ Petition No. 6962 of 2006
Decided On: 17.04.2008
Smt. Vasudha Gorakhnath Mandvilkar Vs. The City and Industrial Development Corporation of Maharashtra Ltd.
Hon'ble Judges/Coram:
Ranjana Prakash Desai and R.S. Dalvi, JJ.
Ranjana Prakash Desai and R.S. Dalvi, JJ.
1. Rule returnable forthwith, as the affidavit of the Respondents is filed and the copies of documents relied upon by the Petitioner as well as the Respondents have been produced in Court.
2. The Petitioner's date of birth is an issue in this Petition. It is contended by her that she was born on 2nd October 1950. It is contended by the Respondents that she was born on 2nd October 1948. The Petitioner has produced and the Respondents have considered the documentary evidence with regard to this date. The Respondents have passed order dated 26th December 2007 with regard to her date of birth which has been impugned in this Petition.
3. The Petitioner joined the Respondents' service initially as a Clerk-cum-Typist on 18th January, 1971. She contends that she informed Respondent No.1 at the time of joining her service that she was born on 2nd October, 1950. She has filled up a form which is a part of her service record. That form shows her date of birth as 2nd October 1948 corrected to 2nd October 1950. The form is typewritten, correction is handwritten. It is by way of interpolation in the year. Both the parties have relied upon the same document in support of their respective contentions.
4. Consequent upon the said form filled by the Petitioner, which is a part of her service record, her gradation list, seniority list, retirement list etc came to be prepared. These documents would naturally have the same date.
5. It appears that due to the interpolation in the year, the first Respondents called upon the Petitioner to furnish true copies of the documents to show her date of birth. There has been some correspondence on this aspect, with which we are not concerned. The Petitioner has to prove her date of birth when called upon. She has to essentially prove this through public record. That is the record of births and deaths maintained by the Municipal Authority within the limits of whose jurisdiction the Petitioner was born i.e. Panvel Nagar Parishad in the case of the Petitioner. The Petitioner has obtained her birth certificate issued by Panvel Nagar Parishad. It shows her birth date as recorded in the register of births maintained by the Parishad as 2nd October 1950. The birth certificate is the certified copy of the extract of a public document under Section 77 of the Indian Evidence Act, 1872 (Evidence Act). Such certified copy can be produced in proof of the content s of the public document of which it purport s to be a copy. Consequently under Section 79 of the Evidence Act it carries a presumption as to its genuineness s and is accordingly admissible in evidence. Under Section 79, the Court is therefore, also required to presume that the Officer by whom such document is purported to be signed as certified held the official character which is claimed in the document.
6. It is, therefore, clear that for proof of the date of birth the certified copy of the birth certificate issued by the relevant Municipal Authority is the ultimate document. The presumption under the law would hold good until it is rebutted.
7. The party who seeks to rebut it has the onus to prove that such a document is not genuine. That is what is sought to be done in this case under the impugned order.
8. The Register of the Parishad shows an entry of the birth of the Petitioner to have been made on the date of her birth itself. It is reasoned in the impugned order that the handwriting in the register showing her date of birth on the same date that she was born is different from the handwriting showing her name. It is common knowledge that names of children are given after birth. Hence in the register despite the fact that an entry of birth is made, the name may be entered later. Such fact itself cannot rebut the legal presumption. In fact the challenge is to the original record itself. It is, therefore, not strictly in rebuttal of the legal presumption.
9. The Petitioner in this case has not only relied upon the birth certificate but also the birth record register in form specimen No.14 given by Panvel Nagar Parishad showing the record of her birth as well as the births of 2 other sisters Shashikala and Sunita, immediately preceding and succeeding her in birth. Consequently in this case it is seen that the certified copy of the public record tallies with the public records from which the extract is extracted. Hence, the presumption under Section 79 of the Evidence Act as to the genuineness of the certified copies is fortified by the actual public record.
10. The Petitioner has 7 siblings. The 8 children have been born between 1946 and 1964. The first 4, including the Petitioner, have been born at a distance of 2 years. The interpolation in the year of the Petitioner's birth in a form which she submitted at the time she was appointed in service has a bearing on the birth dates of the 2 sisters preceding and succeeding the Petitioner.
11. It is an admitted position that the first sister Shashikala is shown to have been born on 25th January, 1946. The Petitioner is the 2nd child. The 3rd sister Sunita is stated to be born on 2nd June 1950. The 4th sister Shailaja is born on 5th October 1952. We are not concerned with the births of the later children.
12. The impugned order shows the Labour Officer of the Corporation having relied upon and produced various documents from the school records of the Petitioner as well as of her siblings in Primary Kanya Shala No. 3 of Panvel Nagar Parishad. These documents include the applications made at the time of the admission to the school for Petitioner and her sisters, the School Leaving Certificates of the Petitioner and her sisters, the admission register given by the Head Mistress of the School, a general register of the pupils of the school from old register indicating the date of birth record of the Petitioner etc. These documents are private documents. They carry no presumption in law. Certified copies of these documents are not admissible in evidence. These documents have to be proved by direct evidence as all private documents are required to be proved. It may be mentioned that the date of birth shown in the application for admission to the school are what the parents of the students state. They are not accompanied by documentary evidence to substantiate such dates of birth as correct. The school record would continue to show, until contrary is shown or proved, the date stated by the parents. The record of the school do not show that these dates have been verified from authenticated public documents such as the birth certificate or the record of birth maintained by the Municipal Authorities. Therefore the copies of the documents of the school cannot be taken as authentic.
13. It is common knowledge that to secure admission in the school earlier than at the age which the law permits, an incorrect date of birth may be shown. Unless verified from public records such date may remain in the record of the school. This cannot be verified except by production of public records. They, therefore, cannot be authentic dates as would make those documents admissible as evidence with probative value in law.
14. Consequently whenever there is a variance between an unproved private document or its copy and a certified extract of a public record, the latter must prevail as it has more probative value, carrying the presumption as it does under Section 79 of the Evidence Act. This presumption would continue to hold until it is rebutted. It can be rebutted only by production of the original public record from which the extract is made out and certified to be true by the relevant authority. Only if it is so rebutted, such certified copy issued by a public authority would stand nullified.
15. The contents of private documents can be proved by primary or secondary evidence under Sections 61 to 65 in Chapter V of the Evidence Act. The proof of the contents of public documents can be by production of their certified copies under Section 77 in Chapter VI of the Evidence Act. Since the certified copies carry a presumption as to their genuineness under Section 79 of the Evidence Act, they need not be proved in evidence.
16. It is in this light that the extent of proof of the documents relied upon by the Petitioner and those relied upon by the Respondents in the detailed impugned order would have to be seen. The birth certificate of the Petitioner raises the presumption as to its correctness. That is not rebutted. It is in fact reflected in the record of the Parishad which is the Public Body which gives the extract in the birth certificate from its own records. The copies of the documents of the school being private documents were required to be proved by direct evidence. That would be primary or secondary evidence as the certification merited. That has not been done. The impugned order has simpliciter considered the copies of the documents relied upon by the Labour Officer of the Respondents. These copies are themselves not admissible in evidence. They require to be proved by direct evidence. They, per se, do not have the probative value.
17. The School records therefore, cannot override the public records.
18. In the case of Ravinder Singh Gorkhi v. State of U.P. MANU/SC/8161/2006 : 2006CriLJ2791 the proof as well as probative value of the birth certificate and a school leaving certificate have been considered. That was the case of the accused claiming juvenility under the Juvenile Justice Act. It was for him to prove his age. He sought to prove it by a copy of his school leaving certificate. It was sought to be proved through the Headmaster of the school who issued it. The certificate was not issued in the ordinary course of business of the school. It was a copy issued after 26 years of the student leaving the school. The Headmaster who issued it gave evidence that he had no personal knowledge regarding the date of birth of the student since he was not in school when the student was admitted. The Headmaster did not depose that it was a true copy of the original certificate also. The register maintained by the school, from which the certificate could have been issued after 26 years of the student leaving school, was not produced. It was held that the accused could not rely upon such a document to prove his juvenility or his date of birth.
19. It may be mentioned that the copy of this certificate, which is produced and sought to be relied upon or sought to be proved, is by secondary evidence. For a copy of a document to be relied upon, evidence about how the copy was made from the original or how it was compared with the original must be shown as stated in Section 63(2) and (3) of the Evidence Act. Evidence about why the original is not produced must further be led.
20. If a school leaving certificate is produced, evidence must be led as to how the contents of the certificate came to be incorporated by the person issuing the certificate. This can be extracted only from the original record maintained by the school. Such record, therefore, would have to be produced before the Court to show how the copies of the certificates were made from the original under Section 63(3) of the Evidence Act. Unless the original record (of such private document) is produced, a certificate is of no probative value. The judgment in the case of Gorkhi (supra) held that a school leaving certificate purported to have been issued by the school authorities is a relevant fact under Section 35 of the Evidence Act. The Supreme Court considered the evidence of the Headmaster with regard to the production of the school leaving certificate. As in all such cases, his evidence was that the date of birth of the student might have been disclosed by him at the time of the admission. He did not have any personal knowledge with regard to date. No inquiry was made as regards to the age of the student at the time of his admission. The witness admitted that it was quite possible that the age disclosed by the guardian may be more or less. The student was admitted in 1967. His name was struck off the Roll of the institution in 1972. The school leaving certificate was issued in 1998. That was, therefore, not in the ordinary course of business of the school, further there was nothing to show that the date of birth recorded in the register was in terms of the requirement under Section 35 of the Evidence Act. No proof with regard to the date of birth given to the school at the time of admission was submitted to the school. Even before the entries were made in the certificate, the age was not verified. In that case even the register maintained by the school which would have been in the regular course of business of the school was not produced. All these observations with regard to those facts have been made in paragraphs 16 and 17 of the judgment (supra). Of course in that case the second copy of the school leaving certificate was produced without showing the date of its issue and the fact that the Headmaster who issued it did not certify it to be a true copy and did not produce the register of admission, which created grave doubt and suspicion as to its contents. In this case the impugned order shows that copies of the records maintained by the school including a "very old register" were relied upon by the Respondents in the inquiry with regard to the date of birth of the Petitioner resulting in the impugned order passed by the Manager (Labour Officer) of the respondents. Nevertheless the fact remains that these private documents have not been proved as required under the Evidence Act.
21. We may go a little further assuming that the dates of births of Petitioner and her siblings in the school records were indeed as is stated in the impugned order. Yet, there is nothing to show that those dates of birth were verified by the school authorities before they came to be so maintained. The verification could have been only from the records of the Parishad. Consequently it can be seen that it is only those public records which are municipal records maintained in the normal course of the conduct of the Municipality. (In this case the Parishad) that would ultimately determine the correct date of birth of a given applicant. Consequently whenever there is a dichotomy or difference between the dates of births of an individual, the date of birth reflected in the public records, which is the municipal records, would be the strongest possible evidence of such date. School records, which are not verified, and which are maintained upon what is stated by the student and/or the guardian cannot over ride what is stated in the public records.
22. We may mention that in this case there are as many as 8 children of the parents who have sought admission from time to time in the Municipal School. From its very number s, an error in their dates of birth cannot be ruled out. A further reason to admit the children earlier than required by law must also be considered for giving erroneous birth dates in the school records which would remain for the future. The impugned order has exceedingly well considered the various changes in the dates and the interpolations in the records. The impugned order has considered in great detail certain anomalies in the dates of birth of the other sister/sisters of the Petitioner also. The order shows that in respect of several siblings of the Petitioner there is a discrepancy in the dates of birth shown in the birth register and in the school register. However, once these anomalies are noticed, it is only the date mentioned in the public records that must prevail.
23. The impugned order takes exception to the fact that the register maintained by the public authority shows different handwritings in the date of the birth and the name of the child born. This shows not only that the public record is maintained in the normal course, but that it is produced and seen by the officer of the Respondent passing the impugned order. That difference in the handwriting can be explained as stated hereinabove. That does not make the record, suspicious or fabricated.
24. The impugned order has further considered the age of the Petitioner and her siblings at the time of admission to the school. The admission of student in 1st standard, the age of child is required to be of 5 years or more. The Petitioner's date of admission is not shown at page 15 of the order which deals with her siblings' date of admission. That may have clinched the issue further. However, since there is discrepancy in the dates of other sisters who precede and succeed the Petitioner it is sought to be shown that since the year of date of birth recorded of another sister is incorrect, the Petitioner's year of birth does not fall place since 2 sisters cannot be born in one single year. We may mention that such exercise is not required to be carried out to determine and accept the date of birth of an individual; more so when the Municipal records can be produced or is produced as in this case. We may also mention that rejection of public records on the ground of it having different handwritings in the dates and names, is incorrect. The presumption of the certified copy of such public record cannot be rebutted by such conjunctures. The presumption that the father would have mentioned the correct dates of birth in school records is neither seen to be factually in accordance with the course of human conduct, nor drawn under the law of Evidence. Such presumption cannot be drawn and if drawn cannot be accepted by the Court. Further the conclusion that the school records cannot be wrong in the face of the public records produced by the Petitioner also cannot be accepted as a correct conclusion.
25. It appears that the Petitioner has relied upon a circular dated 3rd March, 1998 of the General Administration Department of the Government of Maharashtra stating that whenever there is a variance in the date of birth and the school leaving certificate or the S.S.C. certificate of an individual, the date of birth recorded in birth-death record must be accepted. It is contended on behalf of the Respondents that, that circular is not applicable to them. Even if the circular is not applicable, the circular merely recites the correct position in law as aforesaid. It is merely clarificatory. It would remove doubts and can be used as a matter of convenience. It enunciates the correct position for law. It is not contrary to the position in law under the Evidence Act with regard to the proof of public and private documents and the legal presumptions which are available only to public documents.
26. Though therefore, the impugned order is a very detailed and reasoned order, the noteworthy effort that has gone into impugned order is seen to be not correct with regard to the law relating to the documents that are considered in the order.
27. In the result the Petition succeeds. The letter dated 4th October 2006 Exhibit- H to the Petition and the impugned order dated 26th December, 2007 Exhibit- J to the Petition are set aside. The Petitioner's date of birth for all purposes is declared to be the date shown in her birth certificate which is 2nd October 1950. This date alone shall be considered for all purposes including the Petitioner's retiral benefits.
28. Rule made absolute accordingly.
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