Pratap Kumar Ray, J. - (1.) :- In the instant case since the petitioner wanted early disposal or at least direction for publication of the result, the matter is taken up for hearing without giving any direction for exchange of affidavits. It appears that the writ application was moved ex parte, when on 26th February, 2003 Arun Kumar Mitra, J. allowed the petitioner's appearance to the final examination conducted by the Central Board of Secondary Education shortly named as C.B.S.E. by issuing appropriate Admit Card. In terms of the interim order the petitioner has appeared in the said examination. The petitioner's grievance is against the school authority for non-delivery of admit card, which was sent by the Board. This writ application has been opposed by the respondent nos. 1 and 2. None appears for the school authority. The learned Advocate for the said Board has placed different rules and regulations as well as the communication before this Court. Let the xerox copy of the documents as produced today before this Court be kept with the record. From the documents as placed before this Court by the respondents, it appears that a student is eligible to appear in the final examination conducted by C.B.S.E. on securing 75% attendance in the classes held. Rule 13 for admission to examination has been referred to this effect, which reads thus: "13. A Regular Course of Study 13.1(i) The expression "a regular course of study" referred to in these Bye-Laws means at least 75% of attendance in the classes held, counted from the day of commencing teaching of Classes X/XII upto the Ist of the month preceding the month in which the examination of the Board commences. Candidates taking up a subject(s) involving practical shall also be required to have put in at least 75% of the total attendance for practical work in the subject in the laboratory Heads of institutions shall not allow a candidate who has offered subject(s) involving practicals to take the practical examination(s) unless the candidate fulfils the attendance requirements as given in this Rules. (ii) The candidates who had failed in the same examination in the preceding year and who rejoins Classes X/XII shall be required to put in 75% of attendance calculated on the possible attendance from the 1st of the month following the publication of the results of that examination by the Board upto the Ist of the month preceding the month in which the examination of the Board commences. (iii) In the case of migration from other institutions, attendance at the institution/ school recognised by the Education Department of the State/Union Territory from which the candidate migrates will be taken into account in calculating the required percentage of attendance.": 13.2 Requirement of Attendances in Subjects of Internal Assessment. (i) No student for a School affiliated to the Board shall be eligible to take the examination unless he has completed 75% of attendance counted from the opening of class X/XII upto the 1st of the month preceding the month in which the examination commences in the subjects of internal assessment. (ii) Exemption for W.E./Art. Education/P & HE may be granted to a candidate on medical grounds provided the application is supported by a certificate given by a Registered Medical Officer of the rank not below that of Asstt. Surgeon and forwarded by the Head of the School with his recommendations. (iii) The Chairman shall have powers to condone shortage of attendances in subjects of internal assessment. The learned Advocate for the respondents has placed reliance to a letter dated 31st January, 2003 as written by the Principal of the school addressing the guardian of the concerned student whereby it was communicated that the concerned student was lacking eligible percentage of attendance for appearing in the C.B.S.E. Final Examination and the concerned guardian was directed to meet the Principal. This letter was served through the petitioner himself who accepted the letter on 31st January, 2003. Class teacher also reported that the petitioner only secured 68.6% of attendance in respect of classes held. After receipt of the said letter of the school authority since neither the student not the guardian filed any application praying condonation of such percentage of attendance, the school authority ultimately sent the name of the petitioner along with the another candidate who were not eligible to appear in the Board's examination by its communication dated 28th February, 2003. Under the Rules for condonation of shortage of attendance as placed by the learned Advocate for the respondent, Rule 14 is the guiding Rule, which reads thus : "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 attendance within three weeks of the commencement of the examination, the Head of the institution shall report the case to the Regional Office concerned immediately. If in the opinion of the Head of the institution, the candidate deserves special consideration, he may submit his recommendation to the Regional Officer concerned not later than three weeks before the commencement of the examination for condonation of shortage in attendances by the Chairman, CBSE, who may issue 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 question during the aforesaid period and the percentage of attendance by such a candidate during the aforesaid period. (ii) Shortage upto 15% only may be condoned by the Chairman. Cases of candidates with attendance below 60% in class X or class XII, as the case may be, shall not be considered. (iii) The Principal shall refer a case of shortage within the above prescribed limit of condonation to the Board, either with the recommendations or with valid reasons for not recommending the case. (iv) The following may be considered valid reasons for recommending the cases of the candidates 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 meriting special consideration; and (c) any other reason of similar serious nature. (d) Authorised participation in sponsored tournaments and sports' meets of not less than inter-school level and at NCC/NSS camps including the days of journeys for such participation shall be counted as full attendance." In terms of the aforesaid Rule, it appears that in the event the Regional Officer concerned is requested by recommendation of the Head of the Institution to treat the concerned student by applying special rule (sic) to condone the shortage of attendance, the Regional Officer concerned would sent the matter to the Chairman, C.B.S.E., who has authority to condone the lapses.
(2.) In the instant case it appears that school authority did not recommend the name of the petitioner for such special consideration. The school authority by its communication dated 28th February, 2003 addressed to the Regional Officer of the said Board had written to this effect : "These students have put in less than 75% due to irregularity in attending classes. These students frequently remained absent without any valid reason. Not a single information is received by the Vidyalaya regarding views of the students." From the foresaid communication it appears that the school authority got no answer with reference to the letter dated 31st January, 2003 addressed to the guardian of the student whereby the concerned guardian was directed to meet the Principal on 3rd February, 2003. In paragraph 6 of the writ application it has been directed by the petitioner that after the admit cards were issued to all the students concerned the petitioner enquired the matter. It is the case of the petitioner that on that time it was disclosed by the school authority that due to shortage of percentage in attendance admit card was not delivered. It is the further case that medical certificate was submitted by the petitioner. In the writ application nowhere the petitioner has disclosed about the particular of such medical certificate as well as the petitioner's illness by annexing the documents. Furthermore, nothing has been disclosed to whom such medical certificate was submitted. The petitioner has not disclosed in the writ application that on 31st January, 2003 the Principal already had informed the petitioner that he was lacking eligible percentage of attendance. It appears that the letter dated 31st January, 2003 was received by the petitioner himself as his signature is appearing in the said letter as has been produced before this Court. Since from the documents it is proved that long before issuance of the admit card the petitioner had the knowledge that he was not eligible to appear in the Board's examination due to shortage of attendance as per Rule and the petitioner did not pray for condonation of such as per the Rule and the school authority also did not recommend his case. In that view of the matter, this Court is not finding any illegality for non-issuing any admit card to the petitioner Since the petitioner has not submitted the real state of affairs in the writ application and further the petitioner has no case, the petitioner is not entitled to have the findings of interim order exparte.
(3.) The learned Advocate for the respondents Board had relied upon the two judgments of the Apex Court in the case of Central Board of Secondary Education v. Nikhil Gulati & Anr reported in (1998) S.C.C. 5 and C.B.S.E.and Another v. P. Sunil Kumar and Ors., reported in (1998) 55 S.C.C. 377 : [1998(4) SLR 378 (SC)] . wherein the Apex Court held that non-eligible candidates should not be allowed to appear in the Board's examination and further held that on sympathetic ground the High Court will not pass any order by directing to publish the result to those candidates who are not at all eligible to appear in the examination. Having regard to such and considering the fact that the authority concerned acted in accordance with Rule, refusal to allow the petitioner to appear in the examination cannot be said as illegal or arbitrary. The petitioner has no legal right to pray for writ of mandamus.;