R.N. Misra, J. - (1.)PETITIONER was admitted into the Radhanath Training College at Cuttack for the Bachelor in Education Course of the Utkal University during the academic session of 1974 -75. He alleges that in the month of February, 1975, he submitted his application for being allowed to take the University Examination. He was declared eligible, paid the requisite fee for the examination and claims to have been assigned a roll number being 95. Under Regulation 3 of Chapter V. of the Utkal University Regulations, the courses of study extend over one academic year and comprise of five papers. Paper I to IV relate to theory while paper v. covers practical test in teaching, carrying total marks of 300. The practical examination began on 17th of March and continued till 24th of April, 1975. Examination in the theory papers was scheduled to begin on 5 -5 -1975. A notice was hung up on the notice board on 3 -5 -1975 to the effect that Petitioner was not entitled to take further examination, inasmuch as he had not the requisite attendance. It is not necessary to deal with further aspects of the matter as Mr. Das for the Petitioner at the hearing confined his argument to one point, namely that the Petitioner must be taken to have appeared at the examination held between March and May, 1975 and must be deemed to be a failed candidate so that he would be eligible to appear as a failed candidate of previous year in the 1977 examination.
(2.)TWO counter affidavits have been filed one by the Principal and the other by the University. As far as relevant for the contention of Mr. Das, the counter affidavits indicate that the Petitioner had shortage of attendance in some of the theory subjects. Though Petitioner's application for being permitted to take the examination had been forwarded by the principal in February, 1975, the Principal had not certified at that stage that the Petitioner had the requisite attendance. It is conceded that the Petitioner had taken examination in the practical paper which began on the 17th of March, 1975, but by then teaching for the sessions had not been completed and theory classes were held in March and April of 1975. On the basis of the total number of classes held during the year (taking into account the classes held in March and April, 1975), Petitioner fell short of the requisite percentage of attendance and, therefore, he was rightly debarred from sitting at the further examination which was scheduled to begin from 5th of May, 1975.
There is no dispute that Petitioner appeared in a part of the examination prescribed for the B. Ed. Course by the University. There is also no dispute that he had been assigned roll number 95 for the examination and under the said roll number he had taken the practical examination. When Petitioner applied for being admitted into the examination, his application was duly recommended by the Principal and the examination fees were collected from him. No importance can be attached to the stand of the Principal in his counter affidavit that even when Petitioner's application was being forwarded, he did not have the requisite attendance. Statute 226 prescribes the qualifications for admission to University examinations and the relevant qualifications are:

(1) Before being admitted to a University examination a candidate must have been registered therefore. A candidate shall be registered afresh on each occasion of presenting himself for an examination and he shall be registered on application, in the prescribed form, either to the Registrar direct or through his Principal, and paid the fee prescribed.

(2) Every candidate for an examination of the University shall produce evidence of having previously passed the qualifying examination, if any, prescribed by the law of the University.

(3) He shall also, unless exempted by special order of the Syndicate made either on the order of the Academic Councilor in accordance with the Regulations produced in the form prescribed by the Syndicate the certificate or certificates of attendance required by the Regulations.

(4) No candidate shall be permitted to sit for a University examination unless his term and annual certificate of attendance, certificate of conduct and progress or the order of exemption, if any granted to him, have been received by the Registrar before the commencement of the examination.

There is no dispute that while forwarding the application of the Petitioner to the University, the Principal had certified in the manner required by Statute 226 except clearly mentioning about the attendance of the Petitioner.

The additional classes held after March, 1975, were described as extra classes for completion of the course. The Principal in his counter affidavit has taken the stand that even after the applications from candidates are forwarded to the University, classes continue to be held and qualifying attendance in terms of Regulation 2(4) of Chapter v. calculated on the total number of lectures held up to the end of the session notwithstanding the fact that by then the applications are forwarded to the University. This seems to be not in keeping with the requirement of Statute 226. There is no indication in the Statute that the requisite certificates are to be supplied piece -meal to the University and on a true interpretation of the provisions of the Statute, we are inclined to agree with Mr. Das for the Petitioner that the qualification of a candidate to take the examination has to be determined on the basis of the situation existing at the time when the application is forwarded to the University. The Principal has accepted the position that such practice exists in respect of all other University examinations and we are prepared to take judicial notice of that position. In the absence of a provision making an exception in the case of examination in Bachelor of Education, we are not inclined to agree with the contention advanced at the hearing that a distinction is maintained and even after the application of a candidate is forwarded with approval of the Principal to the Registrar of the University, the application can be called back on the basis that the candidate is not qualified to take the examination.

After the study in the session is over and the Principal is in a position to satisfy himself that a candidate has complied with the requirements of the Statutes and the Regulations, he is to recommend to the University that the candidate be permitted to take the examination; the University accepts the application and assigns a roll number; in due course the admit card is to be issued. It is open to the College authorities to hold extra classes to complete the course which on account of exigencies of circumstances may not have been completed. But there is no warrant for the contention that the qualifying percentage has to be determined with reference to such extra classes and the situation of certainty would be made uncertain on the contingency of the number of lectures to be delivered thereafter. The stand of the opposite parties that the Petitioner did not have the requisite attendance is on the footing of the total lectures delivered after Petitioner's application was forwarded to the University and it has not been indicated in clear terms that by February, 1975, Petitioner was not duly qualified from the stand -point of attendance. In case he had not qualified, it was also not open to the Principal to recommend his application and the fact that the Principal has recommended the application and thereby represented to the Petitioner that he is qualified to take the examination and the further fact that on such representation Petitioner took the practical examination result in stopping the Principal from disputing the Petitioner's qualification to sit at the examination when he recommended his application. The Principal is, indeed, the agent of the University in holding the practical examination. The principle indicated by the Madras High Court in the case of Registrar, University of Madras v. Sundara Shetti and Ors., A.I.R. 1956 Mad. 300, well applies to this case. We would accordingly in the special facts of this case hold that the opposite parties are estopped from challenging Petitioner's eligibility to take the examination in the theory papers on the ground of his not having the requisite percentage of attendance. At any rate, it can no more be disputed that the Petitioner had been sent up for the Bachelor of Education examination a fact which has not been seriously challenged. Regulation 2(2) of Chapter v. of the Regulations runs thus:

A candidate, who has been sent -up for the Bachelor of Education Examination but who has either failed to present himself or to pass, may, on the recommendation of the Principal of the Training College at which he studied, be admitted to subsequent examinations.

Once we accept the position that the Petitioner had been sent -up for the examination and there is no dispute that he had failed to pass the examination, he would be entitled to admission to subsequent examination on the recommendation of the Principal. On the facts of the case, we would bold that Petitioner's case comes within the scope of the aforesaid provision and as such he is entitled to take the examination of 1977 as a failed candidate.

(3.)WE allow the writ application to the extent that the Petitioner is entitled to take the B. Ed. Examination of 1977 and we direct the Principal to recommend his case to the University in case he is satisfied about his suitability. But it is made clear that the Principal cannot withhold the Petitioner's application on the ground that he did not have the requisite percentage in attendance in the academic session of 1974 -75 when he was a regular student of the Training College. We also direct the University to consider the application of the Petitioner on the basis of the recommendation to be made by the Principal and the University shall not reject the application on the ground of shortage in attendance.