Rahul Sakharam Naik, Through His ... vs Divisional Secretary, ...
2003 Latest Caselaw 680 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule. Mr. P.P. Chavan learned advocate appears and waives service of notice of Rule on behalf of Respondent No. 1. Mr. M.P. Rao learned advocate, appears and waives service of notice of rule on behalf of respondent No. 2. In the facts and circumstances, the matter is taken for final hearing.

2. This petition is filed by the petitioners for an appropriate writ, direction or order quashing and setting aside decision of respondent No. 1 Divisional Secretary, Maharashtra State Board of Secondary and Higher Secondary Education, Mumbai Divisional Board, Mumbai and directing him to declare the result of the petitioners who had appeared in the Higher Secondary Certificate Examination held in March, 2003.

3. The case of the petitioners is that they completed their Secondary School Certificate Examination (Xth Standard) in 2001 and they secured admission in XIth Standard. Sometime, in July, 2001, the first term of the standard XIth i.e. First Year Junior College started. The petitioners attended classes and also completed practicals. The then Principal, M.v. & L.U.College of Arts, Science and Commerce, however, illegally published a list of ninety students who alleged to have had shortfall in attendance. Hence, they could not appear at the Examination. It was, however, stated that out of them, fifty five students were thereafter allowed to appear in the Examination but remaining thirty five students were declared "defaulters". It was also alleged by the petitioners that several irregularities and illegalities were committed by the then Principal and she was placed under suspension. Inquiry was instituted against her. In or about March, 2002, the College authorities found that there was no fault of the students who were not allowed to appear in the Examinations of XIth standard and hence, re-examination was held. In the said reexamination, the petitioners also appeared along with other students and were declared successful. The petitioners, accordingly, proceeded with further education in XIIth Standard. They appeared in XIIth Standard Examination held in March, 2003. Since their results were not declared, they have approached this Court.

4. We have heard the learned counsel for the parties. The learned counsel for the petitioners submitted that in the light of peculiar facts and circumstances, the petitioners are entitled to the reliefs prayed by them. It was submitted that there was illegality on the part of the then Principal, who is now under suspension and is facing inquiry. Initially, illegal action was taken and ninety students were not allowed to appear in the Examination of Standard XIth. But then again, showing some favour to fifty five students, re-examination was held and no action was taken against them though, according to the petitioners, the allegation a to shortfall in attendance was also made against those students. Injustice was meted out to thirty five students. The next Principal considered their cases sympathetically and arranged re-examination of those students. The petitioners appeared at the Examination and cleared XIth Standard Examination. It was thereafter neither open to the College authorities nor to the Board not to allow them to appear at the XIIth Standard Examination or to withhold their results. The petitioners were no doubt allowed to appear in the XIIth Standard Examination, however, their results have been withheld. The said action is clearly illegal and contrary to law.

5. In this connection, our attention was invited by the learned counsel for the petitioners to Regulation 88 of the Maharashtra Secondary and Higher Secondary education Boards Regulations, 1977, framed in exercise of powers under the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965 (hereinafter referred to "the Regulations"). Regulation 88 lays down eligibility of regular candidates who can appear at the XIIth Standard Examination. Clause 1(b) is relevant and reads as under:

"88.(1)(a) ... ... ...

(b) The Divisional Chairman, may for special reasons or circumstances beyond the control of the candidate as certified by the Head of the Institution, or suo motu, condone a deficiency in the percentage of attendance prescribed under Clause (a) above, upto 15 per cent. The Divisional Chairman may on the merit of the case condone such deficiency either in the part I or in part II or in both the parts separately.

Provided that, the Divisional Chairman on recommendation of the Head of the Junior College concerned may condone deficiency in attendance beyond 15 per cent, in respect of a student who represents India or Maharashtra state in any international, National or Inter-State Sports or games held in India or abroad to the extent the student is required to remain absent from the Junior College for such participation.

Provided further that, in the case of a candidate who is admitted late in a recognised Junior College on account of the transfer of his guardian from other States, the Divisional Chairman on examining the merits of each case, may condone deficiency in attendance beyond fifteen percent after satisfying himself that candidates late admission was on genuine ground. If such a candidate has attended Junior College for not less than 75 per cent of the working days counted from the date of his actual admission in Junior College.

Provided also that the Chairman, State Board on recommendation of the Chairman of the concerned Divisional Board and the Head of the Junior College concerned, may condone the deficiency in attendance beyond 15% in respect of a student who could not fulfil the requirement of minimum attendance of 75% either in the first term or the second term or in both terms, for any of the following reasons, namely:

(a) prolonged illness of the candidate.

(b) sudden demise of parents of the candidate.

(c) unforeseen reasons which compel the candidate to go outstation or abroad for a long period.

(d) natural calamities, and

(e) any other reasons which are genuine in their nature.

Attendance of at least 50% in either of the terms separately or in exceptional cases in both terms taken together shall be necessary for such students and attendance less than 50% in both the terms taken together shall not be condoned under any circumstances".

(Emphasis supplied)

. . . . . . . . .

6. The above provision has been relied upon by both sides, i.e. the learned counsel for the petitioners as well as learned counsel for the Board. So far as the learned counsel for the petitioners is concerned, it was submitted that attendance of at least 50% in either of term separately or in exceptional cases in both the terms together, shall be necessary. Relying on Clause (e) ("any other reasons which are genuine in their nature"), the counsel submitted that in the instant case after re-examination of Standard XI, the petitioners were allowed to attend the classes in XIIth Standard from October, 2002. In the circumstances, it was practically impossible for those students to get attendance of 50% in each term separately. The learned counsel for the petitioners is right in making the aid submission. If only after re-examination and clearance of XIth Standard, the petitioners were allowed to attend classes in XIIth Standard, there would naturally be a shortfall in attendance in the first term inasmuch as, on or about, 15th October, the 1st term was almost over. In the light of said fat, in our opinion, the case was required to be considered by invoking Clause (e) of Regulation 88(1)(b) of the Regulations. A direction, therefore, can be issued to the respondents to consider Clause (e) of Regulation 88(1)(b) of the Regulations and to pass an appropriate order.

7. The learned counsel for the Board also relied upon Regulation 88(1)(b) and submitted that there should be 50% attendance in both the terms separately. Relying on affidavit in reply filed on behalf of respondent No. 1, the counsel submitted that notice though advocate was sent by the suspended Principal that the action of the respondent No. 2 in allowing the petitioners to appear at the examination was illegal and an inquiry should be held. It was also stated by the deponent (Assistant Secretary of the Maharashtra State Secondary and High Secondary Education Board) that inquiry was accordingly held and the Deputy Director of Education, Greater Mumbai considered entire matter. Vide his letter dated 12th March, 2003, he forwarded his report. In the said report, it was stated that the petitioners could not have been allowed to appear in the XIIth Standard Examination and the action taken by Board in not declaring the result of those students was, therefore, legal and lawful.

8. It is, however, necessary to point out at this stage that the Respondent-Board ought to have considered the letter-cum-communication of the Principal presently working with respondent No. 2-College. From the relevant file, which was produced at the time of hearing before this Court, it is clear that on 7th May, 2003, the present Principal addressed a letter to the Divisional Secretary, Maharashtra Secondary and High Secondary Education Board, wherein it was mentioned that looking to the facts in their entirety, thee did not appear any fault of the petitioners. They could not attend the classes due to circumstances beyond their control and there was shortfall in attendance. It was, therefore, submitted by the Principal that those factors be considered sympathetically in favour of the students. It was no doubt urged by the learned counsel for the first respondent Board that re-examination even of Standard XI could not have been held in September, 2002. We express no opinion.

9. In our opinion, the letter of the Principal is self-explanatory. In the light of above facts, let the respondent No. 1 reconsider the matter afresh. If the respondent No. 1 holds that there was sufficient attendance in aggregate as by taking both the terms together as required by Regulation 88(1)(b), the 1st respondent shall exercise the power in peculiar facts of the case and shall take appropriate decision.

10. Our attention was no doubt invited by the learned counsel for the Board to a decision of the Division Bench of this Court in Prafull Moreshwar Wagh v. Amravati Divisional Secondary and Higher Secondary Education Board, Amravati and Ors., (2001) 4 MhLJ 346 and it was submitted that the students in that case were not allowed to appear in the examination. It may, however, be stated that in that case, the Court did not believe the case put forward by the students and it was observed that the case was not covered by Regulation 88 of the Regulations. In the instant case, looking to the facts and circumstances, in our considered opinion. Regulation 88 of the Regulations is attracted and, hence, the ratio laid down in Prafulla Moreshwar Wagh would not apply to the facts of the case on hand.

Petition is accordingly allowed. Rule is made absolute to the extent indicated above. In the facts and circumstances, however, there shall be no order as to costs.

Since the question relates to declaration of result of XIIth Standard, 1st Respondent-Board is directed to take appropriate decision expeditiously preferably within two weeks from today.

Parties be given copies of this order duly authenticated by Sheristedar/Personal Secretary of this Court.