- (1.) VINEET Saran-The petitioner is a student of Class-XII. He was to appear in the Intermediate Examination conducted by the respondent No. 1-C.B.S.E. for the session 2007-08 but due to shortage of attendance, his examination form was not accepted. He thus filled the form for appearing in the Intermediate Examination for the session 2008-09 as a private candidate showing himself as failed in the examination. However, since his admit card was not issued, he filed this writ petition. At the time of the filing of the writ petition, Sri H. N. Pandey, learned counsel for the respondent-Board, who had received instructions, made a statement that the application form of the petitioner was not accepted because the petitioner had wrongly mentioned that he had failed in the examination. However, on 2.3.2009, this Court had passed the following interim order : "Heard counsel for the petitioner and Sri H. N. Pandey for respondents. Contention of the counsel for the petitioner is that petitioner could not appear in Intermediate Examination conducted by C.B.S.E. for session 2007-08 due to shortage of attendance. Thereafter, he has filled examination form for the session 2008-09 showing himself to be a candidate who has failed in the examination but admit card has not been issued to him. It is submitted by the counsel for the petitioner that though examinations have commenced but petitioner's first paper examination would fall on 3.3.2009, hence a direction may be issued by the Court in the facts and circumstances of the case to the respondents to direct for issuance of admit card to the petitioner and he may also be permitted to appear in the examination. Sri H. N. Pandey, counsel for the respondents states that he has received instructions in this matter and submits that petitioner in his form had wrongly mentioned that he had failed in Intermediate Examination and therefore he could not have filled up the form as a private candidate in view of Rule 18 of the relevant Rules. Prima facie the contention of the counsel for respondent does not appear to be sound for the reason that in Board examinations a candidate either would succeed or would fail. According to the Legal Glossary, fail means to fall short in performance or attainment. Once he was not permitted to appear in the examination on the ground of shortage of attendance, then it would mean that he had failed as he has to repeat the class. Therefore, he has rightly filled up examination form showing himself as "ANUTEERN". Moreover, on such technicalities, the Court is not inclined to let the Board waste one year time of the student on the ground that his examination form according to it was not correctly filled up as he had shown himself to be a failed student. Had the petitioner written "UTTIRN" or pass, then in my opinion, it would not have been the correct information. The case of the petitioner would thus fall in second category that he has failed and therefore, aforesaid Rule 18 would not apply. As regards the academic question as to what would be the status of the student who has not been allowed to appear in the Board examination on the ground of shortage of attendance, shall be decided after exchange of counter and rejoinder-affidavit. As prayed, three weeks time is allowed to Sri Pandey for filing counter-affidavit. Rejoinder-affidavit may be filed within one week thereafter. List this matter on 13.4.2009. In the meantime, the respondent-C.B.S.E., Regional Office, Allahabad is directed to issue admit card to the petitioner today itself and permit him to appear in the examination. Let a copy of this order be issued to the counsel for petitioner on payment of usual charges today forthwith."
(2.) IN pursuance of the aforesaid interim order granted by this Court, the petitioner has been permitted to appear in the INtermediate Examination but his result has not been declared as yet. I have heard Sri R. B. Singh, learned counsel for the petitioner as well as Sri H. N. Pandey, learned counsel for the contesting respondent No. 1-C.B.S.E. and have perused the record. Pleadings between the parties have been exchanged and with consent of learned counsel for the parties, this writ petition is being disposed of finally at this stage. The submission of the learned counsel for the petitioner is that the petitioner had not given any wrong information at the time of filling of the form as a private candidate. It has also been submitted that at no stage the form of the petitioner had been rejected by the respondent-Board. It is further submitted that the petitioner was entitled to appear in the Intermediate Examination, 2008-09 conducted by the respondent-Board, which had been allowed by the interim order granted by this Court on 2.3.2009 and the result of the same ought to have been declared by the respondent-Board.
(3.) SRI H. N. Pandey, learned counsel for the contesting respondent No. 1-Board however submits that the petitioner was not eligible to appear as a private candidate. He relies on Clause 16 of the Examination Bye-laws, which defines a private candidate as who is not a regular candidate. He has also placed reliance on Clause 18, which provides that a candidate who has failed at the All India Senior School Certificate Examination of the Board would be eligible to reappear at a subsequent examination as a private candidate. SRI H. N. Pandey has however placed reliance on the notification dated 16.10.2007 which has amended Clause 18 to include such candidates, who had been given admit cards and allotted the roll numbers but could not appear because of medical grounds in the previous year, could also appear as a private candidate. As far as the contention of Sri H. N. Pandey, learned counsel for the respondent-Board that the petitioner had given wrong information that he failed in the examination and thus could not be permitted to appear as a private candidate, the same has been fully explained in the interim order dated 2.3.2009 and for the reasons given therein, the form of the petitioner could not have been rejected for such reason. The petitioner cannot be said to have given wrong information. Since the petitioner had not passed the Intermediate Examination earlier and had actually failed to appear in the said examination, he cannot be said to have misinformed by mentioning that he had failed in the earlier examination.;