Writ Petition No. 8085 of 2017

17th October 2019

Petitioner Counsel: Mr. SWAPNIL S. RATHI
Respondent Counsel: Mr. AMARJITSINGH B. GIRASE
Act Name: Secondary School Code, 2006

Section :
Cls. 26.3 Secondary School Code, 2006 Cls. 26.4 Secondary School Code, 2006

Cases Cited :
Paras 1, 31, 32, 33, 40: Swapnil s/o. Maroti Sonwale Vs. State of Maharashtra & ors., 2014(3) ALL MR 177 : 2013(6) Mh.L.J. 400
Paras 1, 4, 31, 32, 33, 40: Vilas s/o. Dattatraya Ransubhe Vs. State of Maharashtra and Ors., 2013(1) ALL MR 89 : 2013(1) Mh.L.J. 851
Paras 1, 4, 31, 33, 40: Arshad Khalid Jamal Vs. State of Maharashtra, 2012(4) ALL MR 117 : 2012(4) Mh.L.J. 646
Paras 1, 6, 34, 40: Captain Anil V. Bhat Vs. Divisional Secretary, SCA No.1048/1971, dt.5.4.1973 (Nag)
Paras 31, 32, 33: Shaikh Shafi Ahmed Khadarsab Vs. State of Maharashtra, 2012(7) ALL MR 437 : 2012(5) Mh.L.J. 364
Paras 5, 35: Nitaben Nareshbhai Patel Vs. State of Gujarat, (2008) 1 GLR 884
Paras 8, 12, 21: Sheela Sachchidanand Damle Vs. Deputy Director of Education, Amravati, 1981 ALLMR ONLINE 495 : 1982 Mh.L.J. 116
Paras 8, 12, 21: State of Maharashtra Vs. Lok Shikshan Sanstha, 1971 ALLMR ONLINE 407 (S.C.) : AIR 1973 SC 588
Paras 8, 12, 21: Vinayakrao Deshmukh High School Society Vs. Deputy Director of Education, (Nag) Div., 1980 ALLMR ONLINE 606 : 1981 Mh.L.J. 441
Paras 8, 30: Banarasi Das Vs. Cane Commissioner, U.P., 1962 ALLMR ONLINE 489 (S.C.) : AIR 1963 SC 1417
Paras 10, 37: Board of Secondary Education of Assam Vs. Md. Sarifuz Zaman and others, (2003) 12 SCC 408
Paras 10, 36: State of U.P. Vs. Shiv Narain Upadhyaya, (2005) 6 SCC 49
Paras 10, 36: P. & H. High Court Vs. Megh Raj Garg, (2010) 6 SCC 482
Paras 10, 37: Ranjana Lau Salakar Vs. State of Maharashtra, 2007(5) ALL MR 302 : 2007 SCC Online Bom. 533
Para 11: Atul Keshubhai Chavan Vs. State of Gujarat, dt.20.6.2010 (Guj.)
Paras 11, 12, 14, 16: Tika Ram Vs. Mundikota Shikshan Prasarak Mandal, 1984 ALLMR ONLINE 346 (S.C.) : AIR 1984 SC 1621
Paras 11, 12: Francis John Vs. The Director of Education, 1989 ALLMR ONLINE 700 (S.C.) : AIR 1990 SC 423
Paras 11, 13: Kobad Jehangir Bharda Vs. Farokh Sidhwa, 1990 ALLMR ONLINE 613 : 1990(3) BCR 123 : 1990 (2) Mh.L.J. 883
Paras 11, 30: Shri Balaji Nagar Residential Association Vs. State of Tamil Nadu, 2014(6) ALL MR 414 (S.C.) : 2015 (3) SCC 353
Paras 11, 37: Kanai Lal Sur Vs. Paramnidhi Sadhukhan, 1957 ALLMR ONLINE 209 (S.C.) : AIR 1957 SC 907
Paras 12, 21, 33: M.G. Pandke Vs. Municipal Council, Hinganghat, 1992 ALLMR ONLINE 1570 (S.C.) : AIR 1993 SC 142 : 1993 Supp. (1) SCC 708
Paras 14, 16: Gramvikas Shikshan Prasarak Mandal Vs. State of Maharashtra, 2001(1) Mh.L.J. 776
Para 15: Superstar Education Society Vs. State of Maharashtra, 2008 ALL SCR 1336 : 2008 (3) SCC 315
Paras 16, 17: Shikshan Prasarak Mandal, Pune Vs. State of Maharashtra, 2009(6) ALL MR 215 (F.B.) : 2009(5) Mh.L.J. 969 (F.B.)
Paras 18, 20, 22, 30, 33: Shikshan Mandal Vs. State of Maharashtra, 2012(3) ALL MR 609 (F.B.) : 2012(2) Mh.L.J. 948
Para 19: Laxmibai Shantaram Doke Samajvikas Pratisthan Vs. State of Maharashtra, 2012(6) ALL MR 287 : 2013 (1) BCR 568
Para 20: Mahadeo Pandurang More Vs. State of Maharashtra, 2014(5) ALL MR 1 : 2014(5) Mh.L.J. 877
Para 31: Azam Khan s/o Dagdu Khan Pathan, 2011(7) ALL MR 562 : 2011(5) Mh.L.J. 255
Para 36: State of Maharashtra Vs. Gorakhnath Sitaram Kamble, 2011 ALL SCR 443 : 2010 (14) SCC 423
Para 36: Secretary and Commissioner, Home Department Vs. R. Kribakaran, 1994 Supp. 1 SCC 155

JUDGEMENT

P. R. BORA, J.

1. This writ petition has been referred to the Full Bench by order dated 30th June, 2017 by the Division Bench (Coram : Dr. Manjula Chellur, C.J. and Mr. R.M. Borde, J.). The questions referred by the Division Bench read as under:
“(A) Whether an application seeking alteration, change or correction in the name, surname, date of birth, caste, or other entries entered in the General Register, including correction in spelling of name, surname, date of birth, caste, as recorded in the General Register, shall be entertained by or on behalf of the pupil who has left the school and the change in the aforesaid entries, is necessitated for the purposes like securing an admission to another educational institution and the School Leaving Certificate is relied upon as an evidence for name, surname, caste, date of birth, etc.
(B) Whether the view adopted by the Division Bench in the matters of (i) Swapnil s/o Maroti Sonwale Vs. State of Maharashtra & others, reported in 2013(6) Mh.L.J. 400 : [2014(3) ALL MR 177]; (ii) in the matter of Vilas s/o Dattatraya Ransubhe Vs. State of Maharashtra & others, reported in 2013(1) Mh.L.J. 851 : [2013(1) ALL MR 89]; and (iii) Arshad Khalid Jamal Vs. State of Maharashtra & others, reported in 2012(4) Mh.L.J. 646 : [2012(4) ALL MR 117], deserves to be upheld or whether the view adopted by the Division Bench at Nagpur in Special Civil Application No.1048 of 1971, decided on 5th April, 1973 (Captain Anil Vasantrao Bhat & another Vs. Divisional Secretary, Maharashtra State Board of Secondary Education, Nagpur Divisional Board, Nagpur & another), is a correct view.
(C) Whether the change, sought to be requested by the petitioner, is required to be consistent with Clauses 26.3 and 26.4 read with Appendix Six of the Secondary Schools Code, meaning thereby, bonafide cases where wrong spelling of a word or an obvious mistake of the type mentioned in Clause 26.3, can only be directed to be corrected.”

2. We have heard Mr. S.S. Rathi, learned Counsel for the petitioner as well as Mr. A.N. Sabnis, who has assisted this Court and Mr. A.B. Girase, learned Govt. Pleader.

3. Mr. S.S. Rathi, learned Counsel for the petitioner, has argued that the application, as mentioned in issue No.(A), enumerated above, can be entertained even after the pupil has left the school. He took us through the provisions of Clauses 26.3 & 26.4 of the Secondary Schools Code (‘S.S. Code’ for short), and specifically to the later part of Clauses 26.4 of the S.S. Code to buttress his submission that the language permitted entertaining of an application for change or correction as contemplated therein, even on behalf of a pupil, who has left the school and though Clause 26.4 contemplated that the same could be done for the purposes like an admission to another educational institution, that was only an indicature of the nature of the purposes, which could be several, and thus, could not be interpreted in a restrictive sense, so as to restrict the nature of purposes to only those as mentioned in Clause 26.4 of the S.S. Code. He further argued that Clauses 26.3 & 26.4 of the S.S. Code ought to be considered in a wider perspective and in a beneficial manner, for the benefits of the student/person applying for such a change as putting a restrictive meaning would result in genuine persons being denied their rightful claim.

4. Mr. Rathi, learned Counsel then invited our attention to the judgment of the Division Bench of this Court in the case of Shaikh Shafi Ahmed Khadarsab Vs. State of Maharashtra, 2012(5) Mh.L.J. 36 : [2012(7) ALL MR 437] and specifically to paragraphs No. 6 to 9 to contend that the learned Division Bench has held that the instructions contained in para 26.4 of the S.S. Code to be directory in nature and not mandatory, in light of which he contended that the application for change, as contemplated by Clause 26.3 could be made at any time, without any restriction as to a time frame whatsoever. He further contended that the judgment in the case of Vilas Dattatraya Ransubhe, 2013(1) Mh.L.J. 851 : [2013(1) ALL MR 89] followed the judgment in the case of Shaikh Shafi (supra). He further contended that the judgment in the case of Arshad Khalid Jamal Vs. State of Maharashtra and others, 2012(4) Mh.L.J. 646 : [2012(4) ALL MR 117] holding that Clause 26.4 enables even a student no longer studying to apply the concerned officer to make correction, laid down the correct proposition of law.

5. Mr. Rathi, learned Counsel for the petitioner further placed reliance upon the judgment in the case of Nitaben Nareshbhai Patel Vs. State of Gujarat (2008) 1 GLR 884 and specifically on paras 27 to 30 to contend that when human beings are involved in preparation and maintenance of record there is every likelihood that an error may occur by a slip of pen, and not only that, it is also not possible for a person to look at the error at the given point of time and such a lapse may occur for various reasons, however, for such a lapse a genuine bonafide case when any error has crept in record, cannot be thrown out only on the ground of technicalities, as rules are meant to be of assistance and cannot override in all circumstances and in all fact situation. There has to be a distinction between genuine and bonafide cases and cases involving unscrupulous persons.

6. Mr. S.S. Rathi, learned Counsel for the petitioner, then assailed the judgment in the case of Captain Anil V. Bhat Vs. Divisional Secretary dated 05/04/1973, passed in Special Civil Application No.1048 of 1971 urging us to hold that it was not a good law, as it did not take into consideration the leeway provided by the language of Clause 26.4 of the S.S. Code permitting a pupil to apply even after he had left school and had thus erred in holding that there was no provision authorizing the authorities to order such a change in the case of an ex-student, who was no longer attending any school. He further contended that the judgment in Captain Anil (supra) itself indicated that there were genuine documents available, however, the provisions were strictly construed, even to the extent of ignoring the language of Clause 26.4 of the S.S. Code inspite of which the Court in that case had itself held that it was open for the petitioner No.1 therein to approach his superior authorities for correcting his date of birth, which may be considered by the authorities. He, thus, contended that the view taken by the Division Bench in the case of Captain Anil (supra) could not be said to be, the correct view and, thus, was required to be held, as such.

7. Mr. S.S. Rathi, learned Counsel for the petitioner, further invited our attention to Clause 48(e) and 61(7)(b) of the Bombay Primary Education Rules, 1949, to contend that even under these Rules, it was permissible to make an alteration/change, which was not circumvented by any limitation.

8. Mr. A.N. Sabnis, learned Counsel, having expressed his desire to address the Full Bench, was permitted to do so. He supported the arguments of Mr. S.S. Rathi, learned Counsel for the petitioner. In addition to that, Mr. Sabnis urged that the Secondary Schools Code was known as a grant in the Code and was a compilation of instructions. He placed reliance upon the case of Sheela Sachchidanand Damle, 1982 Mh.L.J. 116 : [1981 ALLMR ONLINE 495] and specifically paras 9 & 10, wherein the judgment of the Hon’ble Apex Court in the case of State of Maharashtra Vs. Lok Shikshan Sanstha, AIR 1973 SC 588 : [1971 ALLMR ONLINE 407 (S.C.)] was relied upon to hold that the Clauses in the S.S. Code were merely executive instructions in the nature of administrative guidelines without any constitutional force. He further invited our attention to the case of Vinayakrao Deshmukh High School Society Vs. Deputy Director of Education, Nagpur Division, 1981 Mh.L.J. 441 : [1980 ALLMR ONLINE 606] to contend that the Division Bench in this case also held that the S.S. Code was devoid of statutory force and not following them, therefore, cannot give any right to the teacher as against the management or for that matter even against the Education Department which granted approval to such schools, which continued to be governed by the S.S. Code. He further placed reliance upon the case of Banarasi Das Vs. Cane Commissioner, U.P., AIR 1963 SC 1417 : [1962 ALLMR ONLINE 489 (S.C.)] and specifically to para 18 to contend that the general rule in the matter of interpretation is that the whole purpose and scope of the statute under consideration must be regarded and the general rule was that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if directory enactment be obeyed or fulfilled substantially. He, therefore, contended that if a statute is found to be directory, a penalty may be incurred for non-compliance but the act or thing done is regarded as good. He, therefore, submitted that in light of the above position, the S.S. Code may be considered as a set of instructions binding upon the management but did not have any statutory force and, therefore, restrictions contained in Clauses 26.3 & 26.4 of the S.S. Code had no force and, thus an application for correction could be made at any time without any restriction of time in that regard.

9. Mr. A.B. Girase, learned Government Pleader, vehemently opposed the submissions of learned Counsels Mr. Rathi and Mr. Sabnis. He contended that Clauses 26.3 & 26.4 of the S.S. Code were divided into four parts. The first sentence comprised the general principle, the second sentence the limitation, the third sentence was the exception and the rest of the part was the procedure. He, therefore, contended that once the pupil left the school, the Rules did not permit any change and the exception only permitted a limited correction, as the language used reflected, which was only for obvious mistakes, as indicated therein and not otherwise.

10. Learned Government Pleader Mr. Girase placed reliance on the case of Board of Secondary Education of Assam Vs. Md. Sarifuz Zaman and others, (2003) 12 SCC 408 to contend that applicant seeking correction of entries in the certificate did not have any right or vested right. He further relied upon the case of State of U.P. Vs. Shiv Narain Upadhyaya, (2005) (6) SCC 49 to contend that the correction of date of birth can be sought only in accordance with the procedure prescribed and within the time fixed under the Rules or Orders or within reasonable time in absence of any Rules or Orders. He further placed reliance on the case of P. & H. High Court Vs. Megh Raj Garg, (2010) 6 SCC 482 to contend that the application for correction has necessarily to be made within the time frame, as provided for by the Rules in that regard. He further invited our attention to the case of Ranjana Lau Salakar Vs. State of Maharashtra, 2007 SCC Online Bom. 533 : [2007(5) ALL MR 302] to submit that such an application cannot be entertained and a strict / narrow view has to be taken.

11. Mr. Girase, learned Govt. Pleader further placed reliance upon the judgment in the case of Atul Keshubhai Chavan Vs. State of Gujarat, decided by the learned Single Judge of the Gujarat High Court on 20/06/2010. He further placed reliance upon the judgments in the cases of Tika Ram Vs. Mundikota Shikshan Prasarak Mandal, AIR 1984 Supreme Court 1621 : [1984 ALLMR ONLINE 346 (S.C.)], Francis John Vs. The Director of Education, AIR 1990 Supreme Court 423 : [1989 ALLMR ONLINE 700 (S.C.)] and Kobad Jehangir Bharda Vs. Farokh Sidhwa, 1990 (3) BCR 123 : [1990 ALLMR ONLINE 613], to contend that the schools to which the S.S. Code applies, are subject to the Government control and, therefore, their actions are amenable to scrutiny under Article 226 of the Constitution and the S.S. Code thus on this count could not be considered as a mere set of instructions or guidelines and had due to its continuous use and enforcement, acquired a Statutory Flavour and thus were enforceable. Mr. Girase, learned Govt. Pleader further placed reliance upon the judgment in the case of Sree Balaji Nagar Residential Association Vs. State of Tamil Nadu, 2015 (3) SCC 353 : [2014(6) ALL MR 414 (S.C.)] to argue that where the words in a statute are plain and clear and do not create any ambiguity or conflict, in such a situation, the Court could not depart from the literal rule of interpretation. He further relied upon the judgment in the case of Kanai Lal Sur Vs. Paramnidhi Sadhukhan, AIR 1957 Supreme Court 907 : [1957 ALLMR ONLINE 209 (S.C.)] to contend that the primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction only, then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object or the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the latter construction.

12. Having considered the arguments advanced by the learned Counsel of both the sides, at the outset, we would like to state that the issues referred to this Full Bench do not include an issue regarding the statutory or non statutory nature of the S.S. Code, as canvassed by learned Counsel Mr. A.N. Sabnis, however, since an argument has been advanced, in this regard, the position of law, has to be culled out as any answer to the questions referred to, necessarily have to depend upon the enforceability of the provisions as contained in the S.S. Code. The view canvassed as to the absence of statutory genesis to the S.S. Code, as reflected from State Vs. Lokshikshan Sanstha [1971 ALLMR ONLINE 407 (S.C.)]; Sheela S. Damle Vs. Dy. Director of Education [1981 ALLMR ONLINE 495] and Vinayakrao Vs. Dy. Director of Education [1980 ALLMR ONLINE 606] (supra), has been diluted as reflected from the case of Tika Ram Vs. Mundikota Shikshan Prasarak Mandal [1984 ALLMR ONLINE 346 (S.C.)] (supra), in which giving the orders passed by the authorities under the S.S. Code, a character of enforceability, the Hon’ble Apex Court held that these directions were enforceable under Article 226 of the Constitution of India, though the S.S. Code was nonstatutory in character. In M.G. Pandke Vs. Municipal Council, Hinganghat, AIR 1993 SC 142 : [1992 ALLMR ONLINE 1570 (S.C.)], while considering the status of the S.S. Code, in light of the conflict between the bye-laws framed under the Maharashtra Municipalities Act, 1965 and the S.S. Code in the background of regulation 19(7) (xvi) of the Maharashtra Secondary Education Board Regulations, 1966, and the subsequent repeal of the Regulations, the Hon’ble Apex Court held that :
“The Code has been framed with the purpose of bringing security of service, uniformity, efficiency and discipline in the working of non-government high schools. It has to be applied uniformly to the schools run by various Municipal Councils in the State. It is no doubt correct that the Municipal Councils, have the power to frame bye-laws under the Maharashtra Municipalities Act, 1965 but if the field is already occupied under the mandate of statutory Maharashtra Regulations, the Municipal Council cannot frame bye-laws to the contrary rendering the mandate of the Maharashtra Regulations nugatory. We are of the view that the Municipal Council, Hinganghat has out-stepped its jurisdiction in framing bye-law 4 of the bye-laws. We, therefore, direct that the conditions of service of the appellants shall be governed by the Code as enforced by regulation 19(7)(xvi) of the Maharashtra Regulations.”
The position as enunciated in Tika Ram’s [1984 ALLMR ONLINE 346 (S.C.)] case (supra) was reiterated in Francis John, the Director of Education, AIR 1990 Supreme Court 423 : [1989 ALLMR ONLINE 700 (S.C.)] by the Hon’ble Supreme Court in the following words:
“Any private school which receives aid from the Government under the Grant-in-aid Code which is promulgated not merely for the benefits of the management but also for the benefit of the employees in the school for whose salary and allowances the Government was contributing from the public funds under the Grant-in-aid Code cannot escape from the consequences flowing from the breach of the Code and particularly, where the Director of Education, who is an instrumentality of the State is participating in the decision making process.”

13. The provisions of S.S. Code, came up for consideration before Division Bench of this Court in the case of Kobad Jehangir Bharda Vs. Farokh Sidhwa, 1990(2) Mh.L.J. 883 : [1990 ALLMR ONLINE 613], in which, while considering the nature of Clause 56.6 of S.S. Code, it was held as under :
“The Secondary Schools Code - the Code for brevity - which applies to the School defines a Secondary School as a School which provides a course in general education leading to the Secondary School Certificate examination at the end of Standard X, (Chapter I Definitions-Secondary Schools Code-Revised Edition 1979). The School by definition, is a Secondary School. The School is recognised by the Government. Therefore, the affairs of the School must conform to the Code. (Chapter II Section IRecognition, Organisation and Management of Schools). Elaborate, nearly exhaustive, provisions in regard to management, admissions and withdrawal of pupils, health of pupils and rules of discipline have been laid down. Different officers like Director of Education, Dy. Director of Education and Education Officer have been designated as Competent/ Appropriate Authority to exercise control over the School and ensure the obedience to the Code. (Appendix Twenty four and clause (15) of the Definitions). We are concerned with Section VIII of Chapter II of the Code titled. “Principles of discipline for pupils” which the School is in law bound to follow.
“We are aware of the fact that in Francis John Francis John v. The Director of Education, the School was recipient of financial aid from the Government. In the case before us, the School does not receive grant from the Government. But this fact does not take away the public law character of the Secondary Schools Code which admittedly governs the School. While the element of financial aid from the public exchequer is absent, there are other determinative factors which make the Secondary Schools Code, what the Supreme Court characterised as “a part of the public law of the land.
The Government’s recognition is dependent on the School conforming to the Code. (Rule I - Section I, Chapter II of the Code). Admissions to the School, promotions from standard to standard and conditions of service of employees shall be in accordance with the instructions of the Education Department of the Government, (Rule 3.2, Section I, Chapter II of the Code and Rule 67.1, Section II Chapter III of the Code).
The number of pupils in a class and reservation of seats for the backward classes etc are covered by the Code, (Rule 13.1, Section III, Chapter II of the Code). The measures required to be taken by the School for Health and well being of pupils are elaborately laid down, (Section V, Chapter II of the Code). The principles of discipline are subject to the control of the Director of Education appointed by the Government (Section VIII, Chapter II of the Code). An employee cannot be dismissed for misconduct without following the procedure for inquiry laid down by the Code, (Rule 77.3, Section III, Chapter III of the Code). The Deputy Director of Education exercises appellate authority in cases of dismissal, (Rule 77.3, Section III, Chapter III of the Code.
These are some of the factors which spell out in unmistakable terms, the Governmental control on recognised Schools. Since the recognition can be withdrawn for breach of any of the provisions of the Code, it follows that as long as the recognition lasts, the School is under a legal obligation to act in conformity with the Code. The constant continuous subjection to the provisions of the Code and the supervision and Control of the Director of Education, signifies the public character of the Code. Since the Code binds the School, and the School is obliged to obey its provisions, it is law of the land. The rights of the pupils against the Management of Schools are of a public character. It follows, therefore, that the Secondary Schools Code is, as the Grants-in Aid Code in the case of Francis John was a part of the public law of the land”.

14. The Division Bench of this Court in Gramvikas Shikshan Prasarak Mandal Vs. State of Maharashtra, 2001(1) Mh.L.J. 776 has observed as under :
“6. Before we deal with the scheme which has been formulated by the State Government, reference may be made to some of the existing provisions relating to the starting of new schools within the State. The provisions in that regard are contained in Chapter II of the Secondary School Code which is entitled “recognition, organisation and management of schools”. Section 1 of Chapter II has made provisions for (i) applications for starting new schools; ii) conditions of recognition; (iii) provisional and permanent recognition; iv) power to grant recognition; and (v) refusal of recognition (vi) withdrawal of recognition. Para 3.2 thereof lays down the conditions which a school seeking recognition of the education department of the State must fulfil in order to secure recognition. These conditions include: (i) a consideration of whether there is a need for a school in the locality, so as to prevent unhealthy competition between institutions of the same category in the neighbourhood; (ii) existence of competent, reliable and properly constituted management; (iii) financial stability of the management; (iv) existence of proper infrastructure for the purposes of running the school; (v) engagement of duly qualified teaching staff meeting the qualifications prescribed by the State; (vi) the teaching of a curriculum approved by the competent authority; (vii) grant of admission according to rules laid down by the concerned department of the State; (viii) implementation of the rates of fees for students and of pay scales, allowances and conditions of service of the staff prescribed by the State; (ix) maintenance of records as directed by the State; and (x) that the management shall not conduct or allow unrecognised schools or classes to be conducted in the premises of the school or elsewhere. The Code makes provision for provisional recognition from year to year for a period of five years and thereafter, the grant of recognition subject to satisfactory working of the institution. Provisions have also been made for refusal of recognition and the withdrawal of recognition subject to the remedy of an appeal”.

15. The Hon’ble Supreme Court in the case of Superstar Education Society Vs. State of Maharashtra, 2008 (3) SCC 315 : [2008 ALL SCR 1336], in the context of the S.S. Code has observed as under :
“11. Permission has been granted to 1495 new schools under the Order dated 16-5-2006 on permanent nogrant basis without any financial commitment or liability on the part of the State Government, even in future, and at the same time ensuring that the schools follow the parameters and conditions prescribed by the Education Code, reserving liberty to the authorities to take appropriate action, should there be any violation. The said Order does not contravene any provision of law.
13. We however make it clear that if any school is found to have flouted or not fulfilled the parameters prescribed by the Education Code or the conditions stipulated by the State Government in the Order dated 16-5-2006, the authorities of the State Government concerned will be at liberty to take appropriate action against the defaulting schools, including cancellation of the permission”.

16. Thereafter the purported divergence of opinion in respect of Clause 3.2 of the S.S. Code, as to whether another school would be permitted within a radius / distance of 5 kms from an existing school, between Gramvikas Shikshan Prasarak Mandal Vs. State, 2001(1) Mh.L.J. 776 and Shriram Kreeda and Shikshan Prasarak Mandal in Writ Petition No. 4172 of 2001 was referred to a Full Bench in S.P. Mandal, Pune Vs. State of Maharashtra [2009(6) ALL MR 215 (F.B.)]. The Full Bench while considering the purported divergence of opinion has duly noted in para 10 of its judgment the position of the S.S. Code in the following words :
“The Secondary School Code 2002, (hereinafter called as the “S.S. Code”) itself is not a statutory document but is in the nature of an executive directions or guidelines. The provisions of grant-in-aid in the S.S. Code are merely executive instructions and do not have force of law and are in the nature of administrative instructions without any statutory force of law. Such a view was taken by the Supreme Court in the State of Assam v. Ajitkumar Sharma, AIR 1965 SC 1196. This view was even expressed by the Supreme Court in the case of State of Maharashtra v. Lok Shikshan Sanstha, AIR 1973 SC 588. Giving the orders passed by the authorities under the S.S. Code, a character of enforceability, the Supreme Court held that these directions were enforceable under Article 226 of the Constitution of India though the S.S. Code is nonstatutory in character. Reference can be made to the decisions of the Supreme Court in the cases of Tikaram v. Mundikota Shikshan Prasarak Mandal, AIR 1984 SC 1621 and Francis John v. Director of Education, Goa, AIR 1990 SC 423. A Division Bench of this Court in Kobad Jahangir v. Farukh Sidheva, 1990 MhLJ 883, again took the view that the contravention of rule of the Code can be challenged before the High Court. But the provisions of the S.S. Code are always executive or administrative instructions which are non- statutory in character. The S.S. Code, Third Revised Edition - 2002, Chapter II deals with the Recognition, Organisation and Management of Schools. The conditions of recognition have been stated under Clause 3.2 of the said Chapter. The said Clause 3.2 provides that a school seeking recognition of the Department has to satisfy these criteria. None of these criteria contemplate any condition with regard to distance but empowers the Authorities concerned to take into consideration various aspects stated therein while granting or refusing to grant recognition to a school.
Holding that in its view, that there was no conflict in both the judgments of the Division Benches and they could hardly be said to be binding precedents, the Full Bench in para 14 held as under:
“For a precedent to be binding, there has to be a reference to the facts, controversy in issue, discussion on statutory provisions, reasoning for coming to a conclusion and clear statement of law and principles settled or answered by the judgment. These are the conditions which would have the effect of declaring the binding precedents for the Courts to follow”.
It thereafter in para 30 stated as under :
“It is expected of the authorities to evaluate every application in accordance with the Secondary Code, policy and the constitutional mandate”

17. It would material to state here, that the Full Bench in S.P. Shikshan Mandal, Pune [2009(6) ALL MR 215 (F.B.)] (supra), was not called upon to consider or decide the statutory or non statutory nature of the S.S. Code and thus in light of what is stated in Para 14 thereof, cannot be held to be a binding precedent, on the nature and character of the S.S. Code, inspite of having noted the position in that regard in para 10 of the Judgment.

18. The position then came up for consideration before the Full Bench of the Bombay High Court in the case of Shikshan Mandal Vs. State of Maharashtra, 2012(2) Mh.L.J. 948 : [2012(3) ALL MR 609 (F.B.)] where a specific question was framed in this regard as question No.1, which was as under:
“Question No.(I) Do the provisions of the Secondary Schools Code acquire statutory force because of reference made to those provisions in the regulations framed under the Maharashtra Secondary and Higher Secondary Boards Regulations, the M.E.P.S. Act and the judgment of the Supreme Court in the case of M.G. Pandke Vs. Municipal Council, Hinghanghat, 1992(2) Mh.L.J. (S.C.) 1648 = 1993 Supp.(1) SCC 708.
And the question has been answered in the affirmative, as is reflected from paras 3, 4, 5 & 6 of the report.

19. This position has been duly noted by the Division Bench in paras 7 & 9 in the case of Laxmibai Shantaram Doke Samajvikas Pratisthan Vs. State of Maharashtra, 2013 (1) BCR 568 : [2012(6) ALL MR 287], wherein in para 9 the Division Bench has observed thus :
“9. This Full Bench therefore expressly negates the contention that petitioner is free to start a secondary school at any place he chooses and permission of the State Government is not necessary for it. Law as laid down in M.A.G Pandke Vs. Municipal Council Hinganghat, 1993 (Supp.1) S.C.C. 708 has been relied upon to gather that provisions of the Secondary School Code have a statutory force. This finding is not even urged to be wrong before us”.

20. In Mahadeo Pandurang More Vs. State of Maharashtra, 2014(5) Mh.L.J. 877 : [2014(5) ALL MR 1] in which one of us (P.R. Bora, J.) was on the Bench, Shikshan Mandal [2012(3) ALL MR 609 (F.B.)] (supra) and the provisions of the S.S. Code were considered in para 29 as under :
“29. Whether State of Maharashtra can regulate service conditions like pay scale or salary of the staff of respondent unaided minority school? Respondent Management itself has relied upon the SOR of MEPS Act. SOR shows need felt by the State Legislature to give statutory basis to various executive orders regulating the service conditions. Hon’ble Apex Court in M.G. Pandke Vs. Municipal Council, Hinganghat, 1992 (2) Mh.L.J. (S.C.) 1684 = 1993 Suppl. (1) SCC 708 para7,8 and 13 observes as under :- “Secondary Schools Code not itself statutory but in nature of executive instructions”. Full Bench of this Court in 2012 (2) Mh.L.J. (F.B.) 948 = 2012 (3) ALL MR 609 (FB), Shikshan Mandal and Ors. Vs. State of Maharashtra in paras 3 and 4 has considered this judgment of Hon’ble Apex Court and then in para 5, the affidavit filed by principal secretary of State of Maharashtra which by placing reliance upon the said judgment stated that provisions in Secondary Schools Code have statutory status. In para 6, this Full Bench accepted this position and noted that even according to State of Maharashtra, said provisions have statutory status. In 2009 (5) Mh. L.J. 969 (FB), Shikshan Prasarak Mandal, Pune and Ors Vs. State of Maharashtra in paras 9 and 10 has noted that is not a statutory document but it is in the nature of executive directions or guidelines and non-statutory in character”.
Shikshan Mandal [2012(3) ALL MR 609 (F.B.)] (supra) has further been followed in Maharashtra Urdu Shala Sangharsh Samiti Vs. State, WP No.9967/2013, decided on 12.08.2016.

21. It is thus apparent, that the issue of the nature and Character of the S.S. Code, had been raised time and again, and inspite of the judgments in State Vs. Lokshikshan Sanstha [1971 ALLMR ONLINE 407 (S.C.)]; Sheela S. Damle Vs. Dy. Director of Education [1981 ALLMR ONLINE 495] and Vinayakrao Vs. Dy. Director of Education [1980 ALLMR ONLINE 606] (supra), considering the fact that a large number of schools imparting secondary education in the State, were being administered under the S.S. Code, the issues relating to the violation of the S.S. Code, as well as the rights and entitlements of the teachers of the Secondary Schools thereunder, were considered and entertained by the Courts by exercising the extra ordinary writ jurisdiction under Article 226 of the Constitution of India. The Judgment of the Apex Court in the case of M.G. Pandke Vs. Municipal Council, Hinganghat [1992 ALLMR ONLINE 1570 (S.C.)] (supra) has been made copious use of.

22. Thus, the position, as of present, rests with the judgment of the Full Bench in Shikshan Mandal [2012(3) ALL MR 609 (F.B.)] (supra). By the present reference, we have not been called upon to test the enunciation of law as made in Shikshan Mandal (supra) and, therefore, we consciously refrain from doing so. The above discussion was only to consider the arguments advanced by learned Counsel Mr. A.N. Sabnis and we feel that above position addresses it adequately.

23. We now come to the core issue in hand, namely :
“(A) Whether an application seeking alteration, change or correction in the name, surname, date of birth, caste, or other entries entered in the General Register, including correction in spelling of name, surname, date of birth, caste, as recorded in the General Register, shall be entertained by or on behalf of the pupil who has left the school and the change in the aforesaid entries, is necessitated for the purposes like securing an admission to another educational institution and the School Leaving Certificate is relied upon as an evidence for name, surname, caste, date of birth, etc.”
The consideration of this issue depends upon the language of Clause 26.3 and 26.4 of the S.S. Code, which read as under:
26.3 26.4
1 No alteration in the date of birth or other entries in the General Register, including correction of spelling shall be allowed the previous permission of the appropriate authority. (General principle)
Application for change or correction of date of birth, name, surname, caste etc. as entered in the General Register shall without be entertained from or on behalf of a pupil who is attending a school. (General Principle)
2 No such alteration in the figure of Date of Birth shall, however, be allowed even with such permission after the student has left secondary school. (Limitation)
Such application shall not be entertained from or on behalf of a pupil, who has left the school, as the same amounts not only to a change in the entries in the General Register but also to a change in the School Leaving Certificate. (Limitation)
3 This shall not however preclude corrections of obvious mistakes, that is the date of a particular month which does not exist in the calendar. (Exception)
However, for the purposes like an admission to another educational institution the School Leaving Certificate is relied upon as an evidence for name, surname, caste, date of birth etc., and hence in bonafide cases where wrong spelling of a word or an obvious mistake of the type mentioned in subrule 3 above is noticed any time after issue of the School Leaving Certificate and the same is required to be corrected so as to be consistent with the corresponding entries in the General Register of the school or those in the School Leaving Certificate issued by the previous school, such applications shall be entertained. (Exception)
4 Before giving sanction to correct spelling or the obvious mistake in figures,the same shall be verified with the original evidence, if any, produced at the time of making the relevant entry. When such an alteration is made on the strength of the written order of the said authority an entry to that effect shall be made in the remarks column of the General Register by writing the number and date of the order of the said authority. The written order shall be preserved as permanent record. (Procedure)
The procedure to be followed in such cases is laid down in Appendix Six.” (Procedure)

24. A look at the comparative table above, will demonstrate the marked differences between the language of Clauses 26.3 and 26.4 of the S.S. Code and will indicate that they overlap and also operate in different fields at the same time. While Clause 26.3, permits change of the entries in the General Register, it, at the same time restricts the time span and the nature of the change in respect of certain entries therein after a student/pupil has left school, which is indicated by the Third sentence of Clause 26.3. The restriction is demonstrated by the absolute embargo cast upon any change in the date of birth, except for the obvious error as indicated therein, after a student has left school, as is indicated by the second sentence in Clause 26.3. It would not be out of context to point out here that Clause 26.3, does not speak of the School Leaving certificate at all. In consonance with this the Second sentence of Clause 26.4, continues this prohibition, of not permitting any change at the behest of a pupil who has left school, as the same according to the language used not only amounts to a change in the entries in the General Register, but in the school leaving certificate also. The third sentence in Clause 26.4, however permits any change in the entries as recorded in the School Leaving Certificate, only so as to bring these entries in consonance with the existing entries in the General Register. Thus a conjoint reading of the various sentences in Clauses 26.3 and 26.4, with each other, leads us to the following conclusion :
(a) an application for alteration in the entries in the General Register is permissible, with the previous permission of the appropriate authority at any time when the pupil is attending the school.
(b) No application for alteration in the figure of date of birth is permissible, after the student has left secondary school, except correction in the nature of obvious mistakes as indicated in Clause 26.3 i.e. of a nature where the date of a particular month which does not exist in the calendar and likewise.
(c) An application for change in the spelling of the name, or for that matter in the name, surname or caste are errors which fall within the category of obvious mistakes, and thus can be made, even after the student has left school in light of the language of Clause 26.3.
(d) For the purposes like an admission to another educational institution, in cases of obvious mistakes as prescribed in Clause 26.4, a change/correction in the school leaving certificate, so as to make the entry consistent with the corresponding entries in the General Register of the School is permissible, which in fact is in consonance with (c) above.

25. This to us appears to be the position on a plain reading of the language of Clauses 26.3 & 26.4 of the S.S. Code. It is further apparent that any change as permissible as contemplated by Clause 26.4, is only for the purposes of securing admission to another educational institution, in which process, the School Leaving Certificate is relied upon as an evidence for the name, surname, caste, date of birth etc and not otherwise. This is so for the further reason that when a person secures employment, all of his particulars like, name, surname, caste and date of employment are entered in his service book which entries are at the instance of such person and thus a person cannot claim ignorance of such entries. Once these entries are made in his service book, the matter is then governed by the relevant Service Rules, which for a service in the employment of the State of Maharashtra are the Maharashtra Civil Services (General Conditions of Service) Rules 1981 and specifically Rule 38. Thus the provisions of Clauses 26.3 and 26.4, contemplate a limited change, to the extent indicated above.

26. The above view is supported by the language as employed in Appendix 6 and the forms thereunder, vide Clause 26.4 of the S.S. Code, which clearly contemplate that any change sought to be made, has to be supported by documentary evidence whose probative value has to be tested on the principles as laid down in the Evidence Act. Thus, a change, even though it falls within the scope of the expression “obvious mistake”, will have to be tested on the basis of the material available as well as the probative value of such material.

27. One cannot be oblivious to the fact that even as on date, the level of literacy in the villages is abysmal. The situation of literacy, even in the cities in so far as persons below the poverty level is concerned, is also not that good. In such situations when a child gets admission in a school, for the first time, the chance of errors occurring in the entries in the General Register of the School, due to improper understanding of the parents, of the importance of the entries in the General Register in the School cannot be ruled out.

28. The language of Clauses 26.3 & 26.4, therefore has left a little play in its meaning, for correction of such errors, and that play is reflected from the use of the words “obvious mistakes”, which is then illustrated by an example – of use of a particular date of a month which is not in the calendar at all. This clearly indicates that the intention is to maintain the entries in the General Register of a School, sacrosanct, inviolate and fixed, subject to the leeway permitted. Such a fixation is also necessary to maintain the sanctity of the entries in the School Register, as they accompany a person throughout his/her lifetime. On a plain reading of the language of Clause 26.3 and 26.4, we find that the limitation to this effect is contained in Clause 26.3 as well as in Clause 26.4 however, the scope of correction, due to occurrence of any mistake, has been duly built-in into the provision.

29. Mr. Girase, learned G.P., invited our attention to the provisions of Rule 48 (e) of the Bombay Primary Education Rules, 1949, which reads as under:
“48. Duties and functions of the Chairman – Subject to the provisions of the Act and these rules, the Chairman of a School Board shall -
(e) sanction, on the recommendation of the Administrative Officer, changes in the dates of birth and names and castes of pupils attending primary schools;”
Stress was laid on the use of the word ‘attending’, to contend that after a student goes out of the school, any change in the entries in the General Register of the School, is not permissible. However, the language of Clauses 26.3 and 26.4, of the S.S. Code is much wider than the language of Rule 48 of Bombay Primary Education Rules, 1949 and the plain reading thereof, clearly indicates a meaning otherwise than what is being contended. We are therefore unable to accept the contention of the Learned Government Pleader of reading a restrictive and narrow meaning, in the language of Clauses 26.3 and 26.4 of the S.S. Code, of prohibiting any change in the General register of the school, of whatsoever nature, as that is not discernible from a plain reading of the language thereof.

30. In light of the mandate in Shikshan Mandal [2012(3) ALL MR 609 (F.B.)] (supra), which holds that the provisions of the S.S. Code have a statutory status, the judgment in Banarasi Das Vs. Cane Commissioner, AIR 1963 SC 1417 : [1962 ALLMR ONLINE 489 (S.C.)] is of no assistance to the submissions as advanced by learned Counsel Mr. Sabnis. In fact the judgment in the case of Shri Balaji Nagar Residential Association [2014(6) ALL MR 414 (S.C.)] (supra), relied upon by Mr. Girase, learned G.P., which lays down that when plain wordings used by the legislature are clear and do not create any ambiguity and conflict, in such a situation the Court is not required to depart from the literal rule of interpretation, is clearly applicable in the present matter.

31. In so far as the judgments under reference are concerned, it is material to state the following position :
(i) The judgment in Swapnil Vs. State, 2013(6) Mh.L.J. 400 : [2014(3) ALL MR 177], which is decided on 04.07.2013, is in relation to change of caste from “Lingder”, as recorded in the school register, as against which, the correct caste certificates are stated to contain the entry “Wani190” which is recognized as OBC Category. The judgment in Swapnil fully relies upon the judgments in the cases of Shaikh Shafi Ahmed Vs. State, 2012(5) Mh.L.J. 35 : [2012(7) ALL MR 437], decided on 08.10.2012 and Vilas Ransube Vs. State, 2013(1) Mh.L.J. 851 : [2013(1) ALL MR 89] and considering that the issue is no longer res integra, directs the respondent No.2 therein, to decide the application of the petitioners as expeditiously as possible and preferably within a period of eight weeks from the date of appearance of the petitioners.
(ii) The judgment in the case of Vilas Dattatraya Ransube (Supra), was a case for changing the school record of the petitioner which recorded his caste as “Hindu Maratha”, to “Bhavsar Kashtriya” caste in which without going into the legality of the issue, by placing reliance upon Shaikh Shafi Ahmed Khader Sab (supra), the matter was remitted back to the Education Officer for decision in accordance with the provisions of the S.S. Code.
(iii) The judgment in the case of Arshad Khalid Vs. State of Maharashtra, 2012(4) Mh.L.J. 646 : [2012(4) ALL MR 117], in fact relies upon Clause 26.4 of the S.S. Code and the Appendix 6 below the said Clause and holds that the reliance placed by the Deputy Director of Education upon Clause 26.3 of S.S. Code in declining to entertain the prayer of the petitioner was improper and relegates the petitioner to the Deputy Director of Education, Mumbai for redressal of his grievance. The judgment of the Division Bench, in Azam Khan s/o Dagdu Khan Pathan, 2011(5) Mh. L.J. 255 : [2011(7) ALL MR 562], holding that correction in the first name of the petitioner, in the school record cannot be entertained once candidate has left the school, was distinguished on facts.

32. It would thus be apparent, that Swapnil Sonawale [2014(3) ALL MR 177] and Vilas Ransube [2013(1) ALL MR 89], without independently going into the legality of the issue, both rely upon Shaikh Shafi [2012(7) ALL MR 437] (supra). It would therefore be necessary to consider Shaikh Shafi Ahmed Khadersab Vs. State of Maharashtra, 2012(5) Mh.L.J. 36. This was the case in which, the petitioner who had joined respondent No.5/School conducted by Zilla Parishad, in December 1996 in the third Standard and passed out on passing Secondary School Certificate Examination in the year 2004, had applied for change in the entry in the school register of the petitioner’s caste from “Takankhar”, as recorded to “Tadvi”, vide an application dated 4th September 2006 which was refused. The Division Bench, holding that, the S.S. Code was neither a Statute nor a Rule framed under the Statute and contained only executive instructions, though of course, they are required to be followed by a school for being recognized by the Department of Education, as any breach of the S.S. Code can result in the withdrawal of the recognition of the school, observing that the S.S. Code did not have a statutory force, therefore came to the conclusion that the instructions as contained in para 26.4 of the S.S. Code, were directory and not mandatory and therefore, an application for change in the original entry in the general register of the school could be made any time and even after the student had left the school, in light of which the matter was remanded back to the respondent No.2 for consideration.

33. It would further be apparent, that Shaikh Shafi [2012(7) ALL MR 437] (supra), on which reliance is placed in the two judgments of Swapnil Sonwale [2014(3) ALL MR 177] and Vilas Ransube [2013(1) ALL MR 89] (supra) goes on a premise of the S.S. Code, not having any statutory force or binding effect. The law as enunciated by the Full Bench in Shikshan Mandal [2012(3) ALL MR 609 (F.B.)] (supra) was not considered in Shaikh Shafi (supra), as a result of which it can safely be said that in absence of such a consideration, Shaikh Shafi, and consequently Swapnil Sonawale and Vilas Ransube (supra), are rendered per incuriam, to that extent, as obviously the judgment in Shikshan Mandal, which was decided on 16.03.2012, was never brought to the notice of the Division Bench in Shaikh Shafi, Swapnil Sonawale and Vilas Ransube (supra). Nor do these judgments consider M.G. Pandke Vs. Municipal Council, Hinganghat, 1993 Supp. (1) SCC 708 : [1992 ALLMR ONLINE 1570 (S.C.)]. Same can also be said in respect of Arshad Khalid [2012(4) ALL MR 117] (supra). Shaikh Shafi (supra) which also considers the language of Clauses 26.3 and 26.4 of the S.S. Code, independently, as is reflected from the discussion as made in paras 9 & 10 of the judgment, and arrives at a conclusion that even considering the language, of Clauses 26.3 and 26.4 of the S.S. Code, the same is directory and not mandatory, which is not so, as it appears to us, for the language of Clauses 26.3 and 26.4 of the S.S. Code, has an in-built leeway for corrections, as already indicated above. Code. Thus, the view in the above judgments, of holding that a change in the entries in the General Register of the School, is permissible even after the student has left the school, is correct, however, not for the reasons stated therein, in light of the discussion as enumerated above, and the same is circumscribed by the meaning, scope and parameters of the expression “obvious mistake”, as a change sought cannot travel beyond an obvious mistake as contemplated by the expression occurring in Clause 26.3 of the S.S. Code to the extent as indicated above.

34. Mr Girase, Learned G.P. has placed heavy reliance on the case of Capt Anil Singh (supra), and contended that the Division Bench in that case has rightly appreciated the narrow compass of Clauses 26.3 and 26.4 of the S.S. Code. The Division Bench in the case of Capt Anil Bhat (supra), refused to issue a writ of mandamus on the ground that there was no obligation cast upon the education authorities to consider any such application for correction of the date of birth, in absence of which they could not be considered to be acting without authority of law and thus held that no writ of Mandamus could be issued. The Division Bench also found that the prohibition to correct the entry was placed in Clause 26.4 of the S.S. Code and inspite of finding that there existed documentary evidence to show that the entry of the date of birth in the Register was incorrectly recorded, refused to consider the matter holding that Clauses 26.3 and 26.4, did not permit such a change to be made. The Division Bench, however, did not consider, what was the scope and ambit of the expression ‘obvious mistake’, as occurring in the third sentence of Clause 26.3 of the S.S. Code. and this nonconsideration of the language of Clauses 26.3 and 26.4 of the S.S. Code, in its proper perspective, has thus led the Division Bench to take a narrow and restricted view, which was not permissible. The view of the Division Bench in Capt. Anil Bhat (supra) thus cannot be sustained, as doing so would end up with taking a view which would be contrary to what emerges from a plain reading of the third sentence of Clause 26.3 of the S.S. Code.

35. Mr. Rathi, Learned Counsel for the Petitioner, while canvassing that a change could be made any time, has relied upon the judgment of the learned Single Judge in the case of Nitaben N. Patel Vs. State of Gujrat, 2008 (1) GLR 884 to contend that there has to be a distinguishing line, distinguishing between genuine and bonafide case and cases involving unscrupulous persons and therefore, a restrictive view ought not to be taken, of clause 26.3 and 26.4 of the S.S. Code. The question of distinction between a bonafide and unscrupulous claim, is a question of fact depending upon the circumstances of each case, and no general parameters in that regard can be fixed. Whether a claim is genuine or bonafide, has to be determined by the Authority, before which such a claim/dispute is brought, depending upon the facts of each case, as discernible from the record based upon which the Authority, will have to exercise its discretion in determining the genuineness and bonafidey, or otherwise, of the nature of the claim.

36. It would not be out of context to point out that the issue of permitting a change in the records as referred to above, has been considered by the Courts in various judgments, most of which are in the realm of Service Laws and are based upon the language of the Service Laws governing them, and any change, sought to be effected, beyond the time as permitted in the service rules as applicable, has been deprecated as is reflected from State of U.P. Vs. Shiv Narayan Upadhyaya, (2005) 6 SCC 49; Punjab and Haryana High Court Vs. Megh Raj Garg, 2010 (6) SCC 482. The position has also been succinctly summed up by the Hon’ble Apex Court in State of Maharashtra Vs. Gorakhnath Sitaram Kamble, 2010 (14) SCC 423 : [2011 ALL SCR 443] wherein the Hon’ble Apex Court has approved the dictum as laid down in its earlier decision in the case of Secretary and Commissioner, Home Department Vs. R. Kribakaran, 1994 Supp. 1 SCC 155, as under:
“An application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion forever. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the Court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible and before any such direction is issued, the court must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within time fixed by any rule or order. The onus is on the applicant to prove about the wrong recording of his date of birth in his service book”,

37. The reliance by Mr. Girase, Learned G.P. in support of his contention of no change being permissible, on Board of Secondary Education of Assam/ Md. Sarifuz Zaman, (2003) 12 SCC 408, holding that an applicant seeking correction of entries in the Certificate did not have any right or vested right, is in the context and meaning of the language of Regulation 8 of the Assam Regulations for Conduct of Examinations by the Board as framed under the provisions of the Assam Secondary Education Act, 1961, which prescribed a period of 3 years for making such an application for correction of an entry and thus is substantially different from the language as used in Clauses 26.3 and 26.4 of the S.S. Code and does not further the argument as canvassed by him. Mr. Girase had further relied upon the decision in Atul /State of Gujarat decided on 20/10/2010, in support of his arguments, however, is based upon Regulation 12A(6) of Gujarat Secondary Education Regulation, 1974, which contemplates an enquiry by a Magistrate and issuance of a Certificate by him, which forms the basis of any decision whether to accept such change or not and also does not support his contentions. Similarly the judgment in the case of Ranjana Lau Salakar [2007(5) ALL MR 302] (supra) relied upon by Learned G.P. Mr. Girase, holding that no entry as to date of birth recorded in service records could be entertained after a period of 5 years, was based upon the language of Rule 38 of The Maharashtra Civil Services (General Conditions of Service) Rules 1981 and thus does not come to his assistance. Reliance placed by the Learned Government Pleader, on Kanai Lal Sur/Paramnidhi, AIR 1957 SC 907 : [1957 ALLMR ONLINE 209 (S.C.)], in fact supports the proposition that when the language is plain, the intention of he legislature has to be found in the words used by the legislature itself, in fact supports the view which we have taken.

38. Thus, any change which has to be effected in the school register, has to be done within the parameters as emerge from the language of Clauses 26.3 and 26.4 of the S.S. Code as indicated above.

39. This being the position, We answer Question Nos.(A) & (C) in the following terms :
(a) An application for alteration in the entries in the General Register is permissible, with the previous permission of the appropriate authority at any time when the pupil is attending the school.
(b) No application for alteration in the figure of date of birth is permissible, after the student has left secondary school, except correction in the nature of ‘obvious mistakes’ as indicated in Clause 26.3 i.e. of a nature where the date of a particular month which does not exist in the calendar and likewise.
(c) Thus, in light of the above, an application for change in the name, surname or caste, either due to reasons / cause unnoticed before or even occurring subsequently, being errors which fall within the category of ‘obvious mistakes’, can be made, even after the student has left school in light of the language of Clause 26.3 in the manner as indicated by Appendix Six in the forms as prescribed in the S.S. Code.
(d) For the purposes like admission to another educational institution, in cases of obvious mistakes as prescribed in Clause 26.4, a change/ correction in the school leaving certificate, so as to make the entry consistent with the corresponding entries in the General Register of the School is permissible, which in fact is in consonance with (c) above.

40. In so far as Question (B) is concerned, we are of the opinion that neither the judgments in Swapnil Sonawale [2014(3) ALL MR 177], Vilas Ransube [2013(1) ALL MR 89] and Arshad Khalid [2012(4) ALL MR 117] (supra) or judgment in Capt Anil Bhat (supra) correctly interpret the provisions of Clause 26.3 and 26.4 of the S.S. Code. While Swapnil Sonawale, Vilas Ransube and Arshad Khalid (supra) takes a very wide view, which is not indicated by the language of the Clauses 26.3 and 26.4, Capt Anil Bhatt takes a very narrow and restricted view, which again is contrary to the purport and intent of Clauses 26.3 and 26.4. This being the situation, we are of the opinion that the view adopted in neither Swapnil Sonawale, Vilas Ransube and Arshad Khalid (supra) nor in Capt Anil Bhatt is the correct view. The answer to Question (A), in our opinion is the correct view.

41. The matters be now placed before the Division Bench for appropriate decision.

42. Before parting, we would like to place on record the excellent assistance rendered to us by Shri Swapnil S. Rathi, Learned Counsel for the petitioner as well Shri Amarjitsingh B. Girase, Learned Government Pleader appearing for the respondents. We also appreciate the assistance rendered by Learned Counsel Shri A. N. Sabnis, who appeared suo motu and ably supported the view canvassed by the learned Counsel for the petitioner.

Decision : Reference answered accordingly.