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Neutral Citation No. - 2025:AHC:20223-DB

Reserved on 29.11.2024

Delivered on 13.02.2025

AFR

Chief Justice's Court

Case :- SPECIAL APPEAL No. - 459 of 2023

Appellant :- State of U.P. and 2 others

Respondent :- Md. Sameer Rao and 3 others

Counsel for Appellant :- Kunal Ravi Singh,Rama Nand Pandey

Counsel for Respondent :- In Person,Shreyas Srivastava

Hon'ble Arun Bhansali,Chief Justice

Hon'ble Kshitij Shailendra,J.

1. State of U.P., U.P. Board of High School and Intermediate

Education (for short the ‘Board’) and its Regional Secretary are in

intra court appeal under Chapter VIII Rule 5 of the High Court Rules,

1952 assailing the validity of the judgment and order dated

25.05.2023 whereby the learned Single Judge, while allowing Writ-C

No. 3671 of 2022 (Md Sameer Rao Vs. State of U.P. and 2 others),

has set aside the order dated 24.12.2020 passed by the Regional

Secretary of the Board and has also issued a writ of mandamus

commanding the respondents of the writ petition to allow the

application of the writ petitioner to change his name from

“Shahnawaz” to “Md Sameer Rao” and, accordingly, issue fresh High

School and Intermediate Certificates incorporating the said change.

Learned Single Judge has also issued various other directions like

surrender of public documents of identity like Adhar card, Ration

card, Driving Licence, Passport, Voter I.D. card etc to the competent

authorities with a direction to them to register the change of name,

dispose off or destroy the earlier identity documents as per law and

issue fresh documents consistent with his changed name. Learned

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Single Judge has also issued a direction to the Secretary, Ministry of

Home, Government of India and the Chief Secretary, Government of

U.P., Lucknow to create appropriate legal and administrative

framework to ensure that both Governments work in concert to

achieve the end of making identity related identity documents

removing anomalies therein.

BRIEF FACTS OF THE CASE

2. Admittedly, the writ petitioner Md Sameer Rao was earlier

known as Shahnawaz. He appeared in and cleared the High School

and Intermediate Examinations conducted by the Board, respectively

in the year 2013 and 2015 by the same name. He had all identity cards

issued in his name as Shahnawaz. Copies of Adhar card and PAN card

were brought on record of the proceedings. In the year 2020, based

upon some newly issued Adhar card and PAN card in the name of

Md. Sameer Rao and also a gazette notification published in Gazette

of India bearing Gazette No. 39 New Delhi, Saturday, September 26 -

October 2, 2020 (Asvina 4, 1942) Part-IV, Page 1091, he approached

the Board to incorporate his new name in the High School and

Intermediate Certificates and issue new certificates having his name

printed as “Md. Sameer Rao”. The said application was rejected by

the Regional Secretary of the Board by order dated 24.12.2020 on the

ground that as the case fell with the category of “time barred matter”

and, as per Regulation 7 of Chapter III of the Regulations framed

under U.P. Intermediate Education Act, 1921 (for short the Act,

1921), request for change cannot be considered after a period of three

years. It is this order which was challenged by the writ petitioner and

has been set aside by the learned Single Judge and is impugned in the

instant appeal.

3. THE ORDER DATED 24.12.2020 IMPUGNED BEFORE

THE LEARNED SINGLE JUDGE

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“प्रेषक,

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24.12.20

महोदय/ महोदया,

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सम्र्भव नहीं है। अतः प्रमाण पत्र मूल रूप मे वापस प्रेमिषत।

GIST OF JUDGMENT OF LEARNED SINGLE JUDGE

4. The learned Single Judge has, with reference to some

traditional and literary books and dealing with Articles 19 and 21 of

the Constitution of India, held that intimacy of human life and

person’s name is undeniable, the right to keep a name of choice or

change the name according to personal preferences comes within the

mighty sweep of the right to life guaranteed under Article 21 and

restrictions contained in Regulation 40 of Chapter XII of the

Regulations framed under the Act, 1921 are disproportionate and fail

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the test of reasonable restrictions on fundamental rights under Article

19 (1)(a) and Articles 14 and 21 of the Constitution and the same are

arbitrary and infringe the fundamental rights to choose and change

own’s name. The learned Single Judge, by invoking the doctrine of

“reading down” read down Regulation 40(र्ग) observing that the

petitioner’s new name gives him a higher sense of self-worth.

ARGUMENTS OF APPELLANTS

5. Shri Rama Nand Pandey, learned Additional Chief Standing

Counsel, mainly made following submissions:-

(i) Fundamental freedoms guaranteed by the Constitution of

India are not absolute and the same are subject to reasonable

restrictions.

(ii) Change of name recorded in High School and

Intermediate Certificates issued by the Board is regulated by

Regulation 40 of Chapter XII of the Act, 1921 and the same is not

against any individual liberty.

(iii) Change of name after more than seven years cannot,

otherwise, be accepted in view of Regulation 7 of Chapter III of the

Regulations framed under the Act read with Regulations 40(b) and

40(c) of Chapter XII of the Regulations which are reasonable

restrictions in the matter.

(iv) Learned Single Judge has exceeded his power of

judicial review in policy matters and has transgressed the legislative

functions extending the directions to the State Government which

exclusively lie in the executive domain.

(v) The Supreme Court, in A.K. Gopalan Vs. State of

Madras: AIR 1950 SC 27, held that reasonable restrictions are

imposed on the enjoyment of fundamental right due to the fact that in

certain circumstances, individual liberty has to be subordinated to

certain other larger interest of the society.

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(vi) Changing name from Shahnawaz to Md. Sameer Rao, if

permitted, would create chaos and open a new pandora box with an

unending process.

(vii) Issuing directions to executive authorities of the Union

and State to create a legal framework amounts to violation of the

federal structure of the Constitution as such rights and powers are

vested with the Union Government and State Government as per the

constitutional provisions, particularly under Article 245 read with 7

th

Schedule providing legislative competence in various matters.

(viii) The Supreme Court, in Jigya Yadav (Minor)

(Through Guardian/Father Hari Singh) Vs. Central Board of

Secondary Education and others: (2021) 7 SCC 535, has laid down

broadly two categories under which change of name is permissible

and in case the writ petitioner wanted to get his name changed even

by choice, he could have first obtained declaration from civil court

and then get publication in official gazette and then approach the

Board within the prescribed period of limitation and only in that

event, a right for consideration of his claim on merits could arise. In

this regard, reliance was placed upon judgment of one of us (Kshitij

Shailendra, J.) sitting singly in Pooja Yadav Vs. State of U.P. and 3

others: 2023 (10) ADJ 176.

(ix) None of the regulations framed under the Act, 1921

being under challenge in the writ petition, or if challenged by

amendment, learned Single Judge was not competent to impliedly

strike down the same by applying the principle of “reading down a

provision” and, hence, the judgment impugned in the appeal is

without jurisdiction.

ARGUMENTS OF RESPONDENT

6. Per contra, Shri Shreyas Srivastava, learned counsel who

was appointed under the order of this Court by Legal Services

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Authority, made following submissions:-

(i) The case of the writ petitioner is fully covered by Jigya

Yadav (supra), para 171(b) (citing reference Manu/SC/0362/2021)

[equivalent paragraph nos.194, 194.1 and 194.2 of (2021) 7 SCC

535], inasmuch as the writ petitioner had changed his name ‘by

choice’ without any supporting school record but since he got few

public documents issued in his new name and a gazette notification,

the Board was under an obligation to allow the prayer for correcting/

changing the name in the High School and Intermediate Certificates

and issue the same to the writ petitioner.

(ii) There is no need to obtain a declaration from any court

as public documents and official gazette would suffice for grant of

prayer.

(iii) Regulation 40 has been rightly read down by the

learned Single Judge as it is in teeth of fundamental right guaranteed

under Article 21 of the Constitution of India to acquire a new name.

(iv) Learned Single Judge, pragmatically interpreting the

provisions of Regulation 40 of Chapter XII, Part II-B, of the

regulations framed under the Intermediate Education Act, 1921, has

read down the said regulation in a bid to save its constitutionality.

(v) Learned Single Judge was competent to read down the

provision as the educational matters were cognizable by Single Judge

Bench as per the roster designed by Chief Justice under High Court

Rules, 1952.

(vi) The right to change a name has been recognised as

being a fundamental right guaranteed under Article 19(1)(a) of the

Constitution of India.

(vii) The reasoning behind acknowledging the right to name

as a fundamental right flows from the fact that identity has been held

to be an amalgam of various internal and external characteristics

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which includes the name of an individual, which is the principal

expression of identity.

(viii) The Hon'ble Supreme Court in Paragraph No. 171(a)

of Jigya Yadav (supra) has held that the public documents have a

legal presumption operating in their favour and the CBSE cannot

ignore such documents. Though the observations were made with

regard to CBSE, the same apply with full vigour to the Board of High

School and Intermediate Education, U.P.

(ix) The Board has absolutely no jurisdiction in curtailing

the exercise of fundamental rights of an individual which have been

effected to in other public/statutory documents having a presumptive

value.

(x) Since no specific challenge had been made to the

constitutionality of abovesaid regulation, the matter was not required

to be placed before the Bench authorised to hear matters wherein

constitutionality of delegated legislation had been challenged as per

the roster formulated by Hon'ble The Chief Justice under Chapter 5

Rule 1 of the Allahabad High Court Rules.

DISCUSSION

7. The issue involved in the instant case is of quite

significance and wider implications. Interestingly, both sides have

placed reliance upon judgment of Supreme Court in Jigya Yadav

(supra). The case of Jigya Yadav (supra) had arisen from a situation

where the concerned candidate had applied before the Central Board

of Secondary Education to carry out correction of her parent’s name

in the mark-sheet. According to that petitioner, name of her father

Hari Singh was incorrectly recorded as Hari Singh Yadav and mother

as Mamta Yadav instead of Mamta. The claim was based upon certain

documents of identity of her parents. CBSE rejected the prayer and

writ petition filed against the said rejection was dismissed by Delhi

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High Court. The Supreme Court, while dealing with permissibility of

getting correction of names in educational certificates and dealing

with the constitutional provisions as well as certain Bye-laws/ Rules/

Regulations, observed as under:-

“Courts need to be extra cautious and alive to the

immediate factual position before permitting changes. No

two requests for change of name or change in date of

birth can be viewed with the same judicial eye.

Sometimes, change of name could be a necessity,

sometimes it could be a pure exercise of freewill without

any need. As long as Bye-laws or the applicable rules

permit so, there is no occasion for any court to deny such

relief. But when Bye-laws do not permit for the same, the

Court must be circumspect before issuing directions, that

too without commenting upon the validity of the Bye-laws

and without demonstrating the rights which are at stake –

constitutional or legal.”

8. The Hon’ble Court further observed as under:-

“162. The provision for “change” of name is far more

stringent and calls for a thorough review to settle the correct

position. As per the present law, change of name is

permissible upon fulfilment of two prior conditions –

prior permission of the Court of law and publication of

the proposed change in Official Gazette. These conditions

co−exist with another condition predicating that both

prior permission and publication must be done before the

publication of result. What it effectively means is that

change of name would simply be impermissible after the

publication of result of the candidate even if the same is

permitted by a Court of law and published in Official

Gazette. In other words, once the examination result of the

candidate has been published, the Board would only permit

corrections in name mentioned in the certificate. Further,

changing the name out of freewill is simply ruled out.”

9. Lastly, the Court classified such cases of seeking correction

in name or other details in two broad categories and held as under:-

“171. As regards request for “change” of particulars in the

certificate issued by the CBSE, it presupposes that the

particulars intended to be recorded in the CBSE certificate

are not consistent with the school records. Such a request

could be made in two different situations. The first is on

the basis of public documents like Birth Certificate,

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Aadhaar Card/Election Card, etc. and to incorporate

change in the CBSE certificate consistent therewith. The

second possibility is when the request for change is due to

the acquired name by choice at a later point of time. That

change need not be backed by public documents

pertaining to the candidate.

(a) Reverting to the first category, as noted earlier,

there is a legal presumption in relation to the public

documents as envisaged in the 1872 Act. Such

public documents, therefore, cannot be ignored by

the CBSE. Taking note of those documents, the

CBSE may entertain the request for recording

change in the certificate issued by it. This, however,

need not be unconditional, but subject to certain

reasonable conditions to be fulfilled by the applicant

as may be prescribed by the CBSE, such as, of

furnishing sworn affidavit containing declaration

and to indemnify the CBSE and upon payment of

prescribed fees in lieu of administrative expenses.

The CBSE may also insist for issuing Public Notice

and publication in the Official Gazette before

recording the change in the fresh certificate to be

issued by it upon surrender/return of the original

certificate (or duplicate original certificate, as the

case may be) by the applicant. The fresh certificate

may contain disclaimer and caption/annotation

against the original entry (except in respect of

change of name effected in exercise of right to be

forgotten) indicating the date on which change has

been recorded and the basis thereof. In other words,

the fresh certificate may retain original particulars

while recording the change along with

caption/annotation referred to above (except in

respect of change of name effected in exercise of

right to be forgotten).

(b) However, in the latter situation where the change

is to be effected on the basis of new acquired name

without any supporting school record or public

document, that request may be entertained upon

insisting for prior permission/declaration by a Court

of law in that regard and publication in the Official

Gazette including surrender/return of original

certificate (or duplicate original certificate, as the

case may be) issued by CBSE and upon payment of

prescribed fees. The fresh certificate as in other

situations referred to above, retain the original entry

(except in respect of change of name effected in

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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.”

10. The present case is not the one falling in first category, i.e.,

changing name from Shahnawaz to Md. Sameer Rao, which, in fact,

amounts to altogether acquiring a new name. The petitioner did not

approach the Board to correct his name based upon documents of

identity like Adhar Card/ Birth Certificate/ Voter I.D. Card etc. pre-

existing in his new name, i.e. Shahnawaz. The case falls in second

category where the change is to be effected on the basis of new

acquired name BY CHOICE without any supporting school record or

public document. Dealing with that category, the Supreme Court has

clearly observed that such a request may be entertained upon insisting

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) and upon payment of prescribed fees. The Supreme Court has also

observed that fresh certificate would retain the original entry and a

caption/ annotation inserted indicating the date on which it has been

recorded and other details because the Board is not required to

adjudicate nor has the mechanism to verify the correctness of the

claim of the applicant.

11. Once the Supreme Court has emphasized upon “insisting

for prior permission/ declaration by a court of law”, this Court

may deal with the said aspect of the matter with reference to the civil

law of the land. Section 9 of the Code of Civil Procedure, 1908

provides that the courts have jurisdiction to try all suits of a civil

nature except suits of which their cognizance is either expressly or

impliedly barred. Suits of different nature are provided under Specific

Relief Act, 1963, which is divided into different Chapters. Chapter-I

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contains provision for suits for recovering possession of property,

Chapter-II speaks of specific performance of contracts, Chapter-III

relates to rectification of instruments, Chapter-IV relates to rescission

of contracts, Chapter-V governs cancellation of instruments,

Chapters-VII and VIII speak of injunctions. However, in the instant

case, Chapter-VI of the Act of 1963 needs a mention. It contains only

two provisions, i.e. Section 34 and 35, which are quoted as under:-

“34. Discretion of court as to declaration of status or right.

— Any person entitled to any legal character, or to any right as

to any property, may institute a suit against any person

denying, or interested to deny, his title to such character or

right, and the court may in its discretion make therein a

declaration that he is so entitled, and the plaintiff need not in

such suit ask for any further relief:

Provided that no court shall make any such declaration where

the plaintiff, being able to seek further relief than a mere

declaration of title, omits to do so.

Explanation.—A trustee of property is a “person interested to

deny” a title adverse to the title of some one who is not in

existence, and for whom, if in existence, he would be a trustee.

35. Effect of declaration.- A declaration made under this

Chapter is binding only on the parties to the suit, persons

claiming through them respectively, and, where any of the

parties are trustees, on the persons for whom, if in existence at

the date of the declaration, such parties would be trustees.”

12. A perusal of Section 34 would show that a civil court is

competent to grant a declaration of status or right which includes a

legal character of any person. Acquiring a new name by choice is

covered by Chapter-VI of the Act in the sense that a person seeking to

acquire a new name, may obtain a decree of declaration from the civil

court to the effect that, henceforth, he would be known as a person by

his newly acquired name. In such event, the date of decree would be

relevant and would operate from the said date, prior whereto, the

plaintiff seeking declaration would be known by his previous name.

Though it is true that, as per Section 35, a declaration made under

Chapter-VI would be binding only on the parties to the suit, it does

not affect the validity of the decree qua acquiring a new name as, in

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such event, the decree would operate against the world at large as a

decree in rem, provided the plaintiff chooses his opponents in that

manner, like public in general, Union of India, State of U.P., the

Board or Department concerned etc. etc. The declaration so obtained

would, then, bind every department of Union and State and also the

public at large.

13. At this juncture, Section 41 of the Evidence Act, 1872 also

needs reference. The said section finds place in Chapter-III, titled as

“of the relevancy of facts” and reads as under:-

“41. Relevancy of certain judgments in probate, etc.,

jurisdiction.- A final judgment, order or decree of a

competent Court, in the exercise of probate, matrimonial,

admiralty or insolvency jurisdiction, which confers upon or

takes away from any person any legal character , or which

declares any person to be entitled to any such character, or to

be entitled to any specific thing, not as against any specified

person but absolutely, is relevant when the existence of any

such legal character, or the title of any such person to any

such thing, is relevant.

Such judgment, order or decree is conclusive proof -

that any legal character which it confers accrued at the

time when such judgment, order or decree came into

operation;

that any legal character, to which it declares any such

person to be entitled, accrued to that person at the time

when such judgment, [order or decree] declares it to have

accrued to that person;

………………………………...”

14. Words “which confers upon or takes away from any

person any legal character or which declares any person to be

entitled to any such character” used in section 41 are of much

significance and also of binding nature of such declaration made

against the world at large. The provision speaks of judgments in rem.

A judgment in rem is defined in English Law as "an adjudication

pronounced (as its name indeed denotes) by the status, some particular

subject matter by a tribunal having competent authority for that

purpose". It declares, defines or otherwise determines the status of a

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person or of a thing, that is to say, the jural relation of the person or

thing to the world generally.

15. We may also observe that one of us (Kshitij Shailendra, J.),

while referring to the aforesaid paragraphs of the Supreme Court

judgment in Jigya Yadav (supra) and Section 34 of the Specific

Relief Act, 1963, held in Pooja Yadav Vs. State of U.P. and 3

others: 2023 (10) ADJ 176 that obtaining a declaration from civil

court is a pre-requisite to acquiring a new name by choice and only

when such a decree is obtained and placed before the Board, request

can be entertained.

16. One may visualize a situation where a person is having

certain documents of identity, like Adhar card, Voter I.D. card, PAN

card etc. mentioning a particular name on which basis he appeared in

High School and Intermediate Examinations and got certificates. After

a certain number of years, the said person wants to acquire a new

name and again obtains new Adhar card, Voter I.D. card, PAN card,

etc. On that basis, even if, for one reason or the other, the Board issues

fresh educational testimonials incorporating his new name, then, if

after some time, that person wants to acquire a third name and again

obtains fresh documents of identity issued in that third new name and

again approaches the Board to issue fresh testimonials incorporating

his new name, such a recourse would become an endless process.

Such an obligation cannot be imposed on Board particularly when it is

contrary to statutory regulations.

17. We may, however, clarify that we are not examining

validity of Adhar card, PAN card or any other document subsequently

obtained by the writ petitioner in the name of Md. Sameer Rao,

inasmuch as the issue involved in the instant appeal is quite different.

We are focused on the obligation on the part of the Board to adhere to

or refuse the request of a candidate like the writ petitioner to change

his name in educational records or to get new testimonials issued in

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the new name. Therefore, any observation made in this judgment may

not be treated as validating/invalidating any document of identity

obtained by the writ petitioner at any point of time.

18. As far as gazette notification published in Gazette No. 9

New Delhi, Saturday, September 26 - October 2, 2020 (Asvina 4,

1942) Part-IV, Page 1091 is concerned, the Court may refer certain

important aspects in relation thereto. The gazette begins with a notice

in following words:-

“NO LEGAL RESPONSIBILITY IS ACCEPTED

FOR THE PUBLICATION OF

ADVERTISEMENTS/PUBLIC NOTICES IN THIS

PART OF THE GAZETTE OF INDIA. PERSONS

NOTIFYING THE ADVERTISEMENTS/PUBLIC

NOTICES WILL REMAIN SOLELY,

RESPONSIBLE FOR THE LEGAL

CONSEQUENCES AND ALSO FOR ANY OTHER

MISREPRESENTATION ETC.

BY ORDER

Controller of Publication”

19. The said gazette contains information of change of names of

various persons in identical language. As far as the petitioner is

concerned, following is the notice:-

“I hitherto known as SHAHNAWAZ son of

MAUVEEN HUSAIN, residing at village Mehloli,

Post Jalalpur Khas, Tehsil Bilari, Disstt.

Moradabad, Uttar Pradesh-244411, have changed

my name and shall hereafter be known as MD.

SAMEER RAO.

It is certified that I have complied with other legal

requirements in this connection.

SHAHNAWAZ

[Signature (in existing old name)]”

20. Words “it is certified that I have complied with other

legal requirements in this connection” written at the end of the

notice, do not amount to a certificate issued by Government of India,

rather it is the certification made by the candidate himself that he has

15

complied with other legal requirements. What are those ‘legal

requirements’ is nowhere mentioned in the gazette, rather, when read

with the notice quoted above, it would mean that the Government of

India itself has made a disclaimer saving itself from any legal

responsibility/ liability/ consequences or any other misrepresentation

etc, which may occur pursuant to notifying a new name in the gazette.

21. In India, a Gazette Notification and a civil court decree

serve different purposes and while they can complement each other,

they are not interchangeable. A Gazette Notification is an official

publication that announces a change in an individual's name. It is

typically published after the individual has followed the necessary

procedures, such as filing an affidavit and publishing the name change

in local newspapers. A civil court decree, on the other hand, is a

formal order passed by a court of law, which can provide a binding

declaration regarding an individual's name change. A Gazette

Notification primarily serves as public notice, while a civil court

decree provides a legally binding declaration, a Gazette Notification is

issued by the government, whereas a civil court decree is passed by a

judicial authority, a civil court decree is enforceable by law, whereas a

Gazette Notification, though official, might not be sufficient to

resolve disputes or establish rights. In general, a Gazette Notification

cannot replace a civil court decree. In situations where a binding

declaration or enforcement is required, a civil court decree is

essentially necessary.

22. In the opinion of the Court, gazette publication must be

preceded by fulfilment of some legal requirements and not by mere

filling up a form seeking publication of such an intimation/notice

regarding change of name. Such requirement can be only in the nature

of a decree obtained from civil court and in no other manner,

otherwise any person would get such a notice published in the official

gazette and would impress the Government departments to

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incorporate a newly acquired name changing all the records. Even if

there are certain provisions in the Evidence Act, 1872 attaching

presumption in favour of gazettes, the same are referable to only

admissibility of such gazettes in evidence but the contents of the

gazette, in absence of any legal sanctity attached to them, cannot be

treated as a conclusive proof of the very nature and character of such

publication.

23. It is not the case of the writ petitioner here that prior to

getting intimation of his changed name published in official gazette,

he had obtained any decree from a competent civil court and,

therefore, when words “that request may be entertained upon

insisting for prior permission/ declaration by a Court of law in

this regard and publication in the Official Gazette” used by the

Supreme Court in paragraph No.171 (b) of Jigya Yadav (supra), are

examined in depth and in factual matrix of the present case, we find

that in absence of decree from civil court even gazette publication

alone, as relied upon by the writ petitioner, would be of no

consequence.

24. Since learned Single Judge read down Regulation 40(c) of the

Regulations, the same first needs reproduction as under:-

“40. प्रमाण पत्र में नाम AH3n)Pf AH3uZ सफल B’.lDn-3b

Q-3- मिवमिहत N07 -fMC-3 आवेदन पत्र देने त5ा इस अध्याय के मिवमिनयम

22 (13) में 0f9-PH3) :MWt देने A3 प्रमाण पत्र में मिनम्नांमिकत प्रचितबन्धों

के अधीन नाम AH3n)Pf t3 सकती है--

(क) आवेदन पत्र उचित C-3gl Q-3- मिदया जायेर्गा त5ा जिजस nuP में

A3lr- ह

ुई

5ी. उसकी 31 .-oP से तीन nuP के (l)3 AH3uD के सचिव के

t- -PE में पह

ुँजाना

ामिहए। आवेदक को एक मिटकट लर्गे ह

ुए

कार्गज A3

:Aw-पत्र देना होर्गा, जो प्र5म श्रेणी के मजिजस्ट

्रेट

अ5वा f,h3l Q-3-

य5ामिवचिध प्रमाशिणत होना ामिहए. जिजसमें नाम में AH3n)Pf के वैध t-3g

मिदये होंर्गे त5ा जो एक 3-sA0a) zi9t-3l Q-3- य5ा मिवचिध प्रमाशिणत होर्गा

]3 A3lr-wx जहाँ वह मिनवास t3)- है, वहाँ के स्5ानीय दैमिनक पत्र की

तीन मिवशिर्भन्न चितशि5यों के Cm‘t3gb में अपने नाम के AH3n)Pf को मिवज्ञामिपत

t3e8-, इससे AFnP मिक उसे AH3n`)) नाम का नया प्रमाण-पत्र प्रा> हो ।

सम्बन्धिन्धत चितशि5यों के C.-o-3 पत्रों की प्रचितयाँ आवेदन पत्र के सा5

संलग्न t3f- z0fn- P है।

17

(ख) AH3uZ Q-3- नाम AH3n)Pf के आवेदन-पत्र मिनम्नलिललिखत को

c,dt3 अन्य मिकन्हीं t-3gb से ‘nlt-3 नहीं मिकये जायेंर्गे।

नाम में र्भद्दापन हो अ5वा नाम से zA:fD की ध्वमिन मिनकलती हो अ5वा

नाम असम्मान प्रतीत होता हो अ5वा अन्य ऐसी न्धिस्5चित होने A3L

(र्ग) A3lr-jw b Q-3- नाम के पहले या बाद में उपनाम जोड़ने 9.P अ5वा

जाचित सूक :fDb के जोड़ने अ5वा सम्मानजनक :fD या उपाचिध जोड़ने

जैसे मिकसी र्भी Nt-3 के आवेदन पत्रों को ‘nlt- P नहीं मिकया जायेर्गा।

इसी Nt-3 9.P अ5वा जाचित AH3n)Pf के y9-3 A3 अ5वा मिववामिहत

छात्र / छात्राओ

ं

के नाम में र्भी मिववाह के फलस्वरूप नाम AH3n`)) हो

जाने A3 AH3uD Q-3- नाम में AH3n)Pf नहीं मिकया जायेर्गा।"

25. What we find is that the order impugned in the writ petition

is referable to Regulation 7 of Chapter-III Part-II(b) of the

Regulations framed under the Act, 1921. The said regulation is

extracted as under:-

“मिवमिनयम -7 Cm:,i9) स्वरूप

सचिव AH3uD के i3 से सफल B’.lDn-3b को AH3uD की

A3lr- में BklgP होने का प्रमाण-पत्र मिवमिहत प्रपत्र में देर्गा ]3 बाद में

उसकी प्रमिवमिष्टयों में कोई :Miq t3e8-, I:)l की प्रमाण-पत्र में मिकसी ऐसी

र्गलत प्रमिवमिष्ट मिकसी z5(o-H3) लिलमिपमिकय र्भूल या लोप के t-3g या

मिकसी ऐसी लिलमिपमिकय र्भूल के t-3g की र्गयी हो, जो असावधानी से

AH3uD के ‘)3 के या उस संस्5ा के जहाँ से अन्धिन्तम I-3 5:r- प्रा> की

हों ‘)3 A3 अशिर्भलेख में हो र्गयी हों।

यह :Miq सचिव Q-3- उसी न्धिस्5चित में की जा सके र्गी, जबमिक

zm -wx"fe"C’IaT9)"A3lr-"te "N.-g-पत्र को AH3uD Q-3- 0f8P.f की

चितशि5 से तीन nuP की लिलमिपकीय त्रुमिट की i3 ध्यान आक

ृष्ट

t3)e ह

ुये

सम्बन्धिन्धत N9-f-o- P/znC-3g zi9t-3l के त्रुमिट के Cm:,9f N-wPf-

पत्र प्रस्तुत t3 मिदया र्गया हो। ]3 उसकी प्रचित पंजीक

ृत

Gाक से सचिव

AH3uD को र्भी प्रेमिषत की हों।

प्रचितबन्ध यह है मिक अभ्य5C के अंकपत्र त5ा प्रमाण-पत्र में

अभ्य5C के नाम, मिपता के नाम अ5वा माता के नाम में यमिद कोई n)Pfl

त्रुमिट है, तो अभ्यर्थि5यों Q-3- आवेदन t3fe A3 उसे AH3uD के सम्बन्धिन्धत

क्षेत्रीय t- -PE b के क्षेत्रीय सचिवों Q-3- पुमिष्टत एवं प्रमाशिणक साक्ष्यों के

y9-3 A3 तत्काल :Mq t3 मिदया जायेर्गा।"

26. As far as the limitation of 3 years provided under

Regulation 7 is concerned, reference to a Division Bench judgment of

this Court in Anand Singh Vs. U.P. Board of Secondary Education

18

and others: 2014 (3) ADJ 443 (DB) may be made. The Division

Bench, while dealing with the limitation of three years as regards

correction, held that rejection for correcting the name on the ground of

delay is unsustainable as the claim was found to be bona fide.

However, a careful examination of the said judgment would show that

the nature of correction in the light of Regulation 7 was examined by

this Court and the same are confined to some inadvertent clerical

error or omission in the name of the candidate or the name of his

parents. Same is altogether different from a situation where

completely new name is sought to be acquired and then request is

made for issuance of new certificate incorporating said name.

27. We may also observe that the writ petition contained two

prayers, one challenging the order dated 24.12.2020 passed by the

officer of the Board and the other in the nature of mandamus

commanding the Board to change the name of the petitioner from

Shahnawaz to Md. Sameer Rao in High School and Intermediate

records pertaining to years 2013 and 2015, respectively. There was no

initial challenge to any of the Regulations, however, later on, an order

was passed on 01.05.2023, permitting the amicus curiae to amend the

writ petition. Whether the petition was amended or not, is not clear as

the appeal is accompanied by a copy of the petition that does not

contain a challenge to any regulation. Even if we assume that the writ

petition was amended, the learned Single Judge was not justified in

declaring the Regulation 40(c) as unconstitutional or arbitrary by

reading down the provision. So long as the Regulations framed under

U.P. Intermediate Education Act, 1921 exist in the Statute book, the

same would be read as they exist and cannot be brushed aside while

examining a challenge based upon applicability of a Board

Regulation.

28. As far as the principle of “reading down” a provision as

utilized by the learned Single Judge is concerned, Supreme Court in

19

Subramanian Swamy and others Vs. Raju through Member,

Juvenile Justice Board and another: (2014) 8 SCC 390 held as

under:-

“Reading down the provisions of a statute

cannot be resorted to when the meaning thereof is plain

and unambiguous and the legislative intent is clear.

Courts must read the legislation literally in the first

instance. If on such reading and understanding the vice

of unconstitutionality is attracted, the courts must

explore whether there has been an unintended legislative

omission. If such an intendment can be reasonably

implied without undertaking what, unmistakably, would

be a legislative exercise, the Act may be read down to

save it from unconstitutionality.”

29. In D.T.C. vs. Mazdoor Congress, 1991 Supp (1) SCC

600, Supreme Court succinctly summed up the position as under:

“255. It is thus clear that the doctrine

of reading down or of recasting the statute can be

applied in limited situations. It is essentially used,

firstly, for saving a statute from being struck

down on account of its unconstitutionality. It is an

extension of the principle that when two

interpretations are possible - one rendering it

constitutional and the other making it

unconstitutional, the former should be preferred.

The unconstitutionality may spring from either the

incompetence of the legislature to enact the statute

or from its violation of any of the provisions of

the Constitution. The second situation which

summons its aid is where the provisions of the

statute are vague and ambiguous and it is possible

to gather the intentions of the legislature from the

object of the statute, the context in which the

provision occurs and the purpose for which it is

made. However, when the provision is cast in a

definite and unambiguous language and its

intention is clear, it is not permissible either to

mend or bend it even if such recasting is in accord

with good reason and conscience. In such

circumstances, it is not possible for the court to

remake the statute. Its only duty is to strike it

down and leave it to the legislature if it so desires,

to amend it. What is further, if the remaking of the

statute by the courts is to lead to its distortion that

course is to be scrupulously avoided. One of the

situations further where the doctrine can never be

20

called into play is where the statute requires

extensive additions and deletions. Not only is it no

part of the court’s duty to undertake such exercise,

but it is beyond its jurisdiction to do so.”

30. Further, the issue of jurisdiction also arises in the instant

matter. An administrative order of the Chief Justice passed on

01.08.2016 provides as under:-

“All cases where the vires of Central or State legislation is

challenged will be cognizable by the Division Bench.

Chief Justice

01.08.2016”

31. The learned Single Judge has held Regulation 40(c) as

arbitrary, unconstitutional and violative of fundamental right

guaranteed by the Constitution of India. Further, various other

directions have also been issued like surrender of public documents of

identity like Adhar card, Ration card, Driving Licence, Passport,

Voter I.D. card etc to the competent authorities with a direction to

them to register the change of name, dispose off or destroy the earlier

identity documents as per law and issue fresh documents consistent

with his changed name. Learned Single Judge has also issued a

direction to the Secretary, Ministry of Home, Government of India

and the Chief Secretary, Government of U.P., Lucknow to create

appropriate legal and administrative framework to ensure that both

Governments work in concert to achieve the end of making identity

related identity documents removing anomalies therein. In fact, these

are policy matters exclusively in legislative/ executive domain.

32. In view of specific administrative order, the jurisdiction to

read down or hold any regulation as arbitrary, unconstitutional and/ or

violative of fundamental right guaranteed by the Constitution only

vests with the Division Bench in appropriate cases.

33. Even otherwise, as observed hereinbefore on factual matrix

of the matter, the writ petitioner had no case on merits.

34. For all the aforesaid reasons, we are satisfied that the

21

judgment of the learned single judge cannot be sustained.

35. The special appeal stands allowed. The judgment and order

dated 25.05.2023 of the learned Single Judge passed in Writ-C No.

3671 of 2022 (Md Sameer Rao Vs. State of U.P. and 2 others) is set

aside. The writ petition stands dismissed.

Order Date :- 13.2.2025

AKShukla/-

(Kshitij Shailendra, J) (Arun Bhansali, CJ)