- (1.) CYRIAC Joseph, C. J. The petitioner was a stu dent of Class-X in the children's Sen ior Academy School, Roorkee during the academic year 2003-04. Accord ing to the petitioner, owing to his ill ness, he could not secure the mini mum attendance required for appear ing in the Class-X examination con ducted by the Central Board of Sec ondary Education (CBSE ). Hence he applied for condonation of shortage of attendance through the Principal of the school. His application for condonation of shortage of attend ance was fop. Warded to the Regional Office of C. B. S. E. at Allahabad by the Principal along with similar appli cations of three other students as per his letter-dated 10-02-2004. Later, a separate letter dated 14-02-2004 was sent by the Principal to the Regional Office of CBSE at Allahabad annex ing necessary medical certificates and recommending condonation of short age of attendance. The said letter dated 14-02-2004 (the date was wrongly written as 14-02-2003) was in respect of the petitioner and an other student. The said letter dated 14-02-2004 was received in the Re gional Office of CBSE at Allahabad on 16-02-2004 and the receipt of the letter was duly acknowledged as seen from the seal and endorsement of the CBSE. It is seen from the letter dated 14-02-2004 that in the case of the petitioner, the Principal had written "his Medical Certificate is attached herewith from Government Hospital w. e. f. 13-11-2003 to 12-01-2004 along with his application. " The said letter also shows that all original applications and certificates were en closed with the letter. However, through Annexure-3 communication of the Principal, the petitioner was in formed that though his request for condonation of shortage of attend ance was recommended and fop. Warded to the CBSE as per letters dated 10-02- 2004 and 14-02-2004, the shortage of attendance was not condoned by the CBSE. Thereupon the petitioner filed this writ petition praying for quashing the order passed by the first respondent/chair man CBSE refusing to condone shortage of attendance and commu nicated to the petitioner through Annexure No. 3 undated letter of the Principal. He also prayed for direc tion to the respondents to allow him to appear in Class-X Examination of the year 2004.
(2.) ALONGWITH the writ petition, the petitioner filed an application for in terim direction to permit the peti tioner to appear in Class-X Examina tion of the year 2004 provisionally. As per interim order dated 2/-02-2004 passed by this Court, the petitioner was permitted to appear in the examination provisionally. Later, by another order dated 06-0/-2004, the respondents were directed to declare the result of the petitioner provision ally and subject to the decision of the writ petition. Accordingly, the result of the petitioner was declared and he was declared to have passed Class-X Examination. On the basis of the re sult so declared, the petitioner joined Class-XI and he is now studying in Class-XII and is preparing for the Class-XII Examination to be held in February-March, 2006. A counter affidavit was filed on behalf of Respondent Nos. 1 and 2. In the said counter affidavit, it is stated that the total attendance of the petitioner was less than 60% for the entire session and that as per Clause 14 of the Examination Byelaws of the C. B. S. E. , the Chairman is empow ered to condone only shortage o-f 15% attendance. It is also stated that a student having less than 60% at tendance is not entitled for any condonation. Clause 14 of the Examination Byelaws of the C. B. S. E. is quoted below : 14. Rules for Condonation of Shortage of Attendances (i) If a candidate's attendance falls short of the prescribed percentage, the Head of the School may submit his name to the Board provisionally. If the candidate is still short of the required percentage of attend ance within three weeks of the commencement of the exami nation, the Head of the Institu tion shall report the case to the Regional Officer concerned im mediately. If in the opinion of the Head of the Institution, the , candidate deserves special consideration, he may submit "' his recommendation to the Re gional Officer concerned not later than three weeks before the commencement of the ex amination for condonation of shortage in attendances by the Chairman, CBSE, who may is sue orders as he may deem proper. The Head of the School in his letter requesting for condonation of shortage in attendance, should give the maximum possible attendance by a student counted from the day of commencing teaching of Classes X / XII (beginning of the session) upto the 1st of the month preceding the month in which the examination of the Board commences, attendance by the candidate in question during the aforesaid period and the percentage of attend ance by such a candidate dur ing the aforesaid period. (ii) Shortage upto 15% only may be condoned by the Chairman. Cases of candidates with attend ance below 60% in Class-X or Class XII, as the case may be, shall be considered for condonation of shortage of at tendance by the Chairman only in exceptional circumstances cre ated on medical grounds, such as candidate suffering from seri ous diseases like Cancer, Aids, T. B. or any other disease or in jury requiring long period of hospitalisation. (iii) The Principal shall refer a case of shortage within the prescribed list of condonation to the Board, either with the recommendations or with valid reasons for not rec ommending the case. (iv) The following may be consid ered valid reasons for recom mending the cases of the candi dates with attendance less than the prescribed percentage : (a) Prolonged illness; (b) Loss of father/mother or some other such incident leading to his absence from the school and mer iting special consideration; and (c) Any other reason of simi lar serious nature (d) Authorized participation in sponsored tournaments and sports' meets of not less than inter-school level and at NCC/nss camps including the days of jour neys for such participation shall be counted as full at tendance. " From the above quoted Clause 14 of the Examination Byelaws, it is clear that shortage upto 15% only may be condoned by the Chairman and that cases of candidates with at tendance below 60% shall be consid ered for condonation of shortage of attendance by the Chairman only in exceptional circumstances created on medical grounds. Hence, it cannot be disputed that the Chairman has the power to condone shortage of attend ance in the case of students with at tendance below 60%. It implies that the Chairman has a corresponding duty to consider an application sub mitted by a student with attendance below 60%, though he has the discre tion to allow or to reject the applica tion.
(3.) SINCE the learned counsel for the petitioner contended that the Chairman, CBSE had not actually considered the application of the pe titioner in the light of Clause 14 of the Examination Byelaws, this Court had passed an order dated 02-08-2005 directing the petitioner to make available a copy of the medical cer tificate annexed to his application for condonation of shortage of attend ance and the respondents also were directed to make available a copy of the order passed by the Chairman, Central Board of Secondary Educa tion rejecting the petitioner's applica tion. In compliance with this Court's order dated 02-08-2005, a counter affidavit has been filed by the second respondent, Regional Officer, CBSE, Allahabad. In the said counter affida vit, the second respondent has stated that the respondent Board had re ceived only recommendation letters dated 14-02-2003 and 10-02-2004 from the Principal, Children's Senior Academy, but no medical certificate had been annexed to the recommen dation letters. It is also stated that the Competent Authority passed an order dated 17-02-2004 rejecting the re quest of the petitioner for condonation of shortage of attend ance, on the ground that no reason was mentioned in the recommenda tion letter of the Principal and no medical certificate was annexed as provided under Clause 14 of the Ex amination Byelaws of the CBSE. A true copy of the said order dated 17-02-2004 and a true copy of the infor mation letter dated 20-02-2004 are annexed to the counter affidavit as Annexures C. A. I and C. A. 2. Annexure C. A. I shows that one As sistant Secretary, Examination had passed the following order on 17-02-2004 : "shortage of attendance SI. No. 01 to 4 may not be condoned as the percentage of attendance is less than 60%". It is also seen that the following remark was written against the name of the petitioner and the other stu dents : "reason not mentioned". However, there is no mention in Annexure C. A.-1 that the application was not accompanied by any medi cal certificate. As per Annexure C. A. 2 letter dated 20-02-2004, the Assistant Secretary, Examination in the Re gional Office of CBSE at Allahabad informed the Principal of the school that the shortage of attendance in re spect of the petitioner and three other students had not been condoned and as such their admission cards should be detained and returned to the Re gional Office. In Annexure C. A. 2 also it was not stated that the petitioner's application was not accompanied by medical certificate. Hence, the aver ment in the counter affidavit that the request was rejected on the ground that no medical certificate was an nexed as provided under Clause-14 of the Examination Byelaws is not factually correct. In the counter affidavit filed by the second respondent, there is no averment that the request of the pe titioner for condonation of shortage of attendance was considered and re jected by the Chairman of the CBSE as required under Clause 14 of the Examination Byelaws of the CBSE. On the other hand, it is admitted that the petitioner's application for condonation of shortage of attend ance was considered and rejected by the Assistant Secretary, Examination in the Regional Office of the CBSE at Allahabad. Therefore, the contention of the learned counsel for the peti tioner that the petitioner's application for condonation of shortage of at tendance was not actually considered by the Chairman of the CBSE as re quired under Clause 14 of the Exami nation Byelaws of the CBSE is factu ally correct.;