IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 791 of 2008 (M/S) Smt. Munni Joshi, W/o R.K. Joshi, R/82/44 A Pant Nagar Colony Khuram Nagar, Lucknow and another. …… Petitioner. Versus Don Bosco Public School, Dogaon, District Nainital through its Principal and others. .….. Respondents. Sri Subhash Upadhyay, learned counsel for the petitioners. Sri S. Dhulia, Senior Advocate with Ms. Puja Banga, learned counsel for the respondent Nos. 1 and 2. Sri Gopal Narain, learned counsel for the respondent No.3. Hon’ble B.S.Verma, J. Heard Sri Subhash Upadhyay, learned counsel for the petitioners, Sri S. Dhulia, Senior Advocate with Ms. Puja Banga, learned counsel for the respondent Nos. 1 and 2 and Sri Gopal Narain, learned counsel for the respondent No.3. The present writ petition has been filed by the petitioners for issue a writ, order or direction in the nature of certiorari calling for the records and quashing the order dated 28-2-2008 passed by the respondent No.3 whereby the application for condonation of delay was rejected. It was further prayed by the petitioners for issue a writ, order or direction in the nature of mandamus directing the respondent No.3 to reconsider the case of the petitioner No.2 for condonation of shortage of attendance, calling for the entire records from the respondent Nos. 1 and 2 on sympathetic ground. Brief facts of the case are that the petitioner No.2 was admitted in the Don Bosco Public School, Nainital and she passed her Class-IX examination in 2007 from Don 2 Bosco Public School. The said school is recognized and affiliated to the Central Board of Secondary Education, New Delhi and is a co-education school. On 19-2-2008, the Joint Secretary of the Central Board of Secondary Education wrote a letter to the respondent No.1 by which she was asked to take back the petitioner No.2 in the strength of the school and it was further advise that her case regarding condoation in shortage of attendance may be sent to the Board for consideration. It is contended that in pursuance of the letter of the Joint Secretary of the Central Board of Secondary Education, the petitioner was not permitted to appear in the Board Examination then the petitioner preferred a writ petition No.378 of 2008 (M/S) and this court on 28-2-2008 directed the respondents to provisionally allow the petitioner no.2 to sit in the Class-X examination. The petitioners have further stated in paragraph No.14 of the writ petition that on 27-2-2008 a letter was sent by the respondent Nos. 1 and 2 to the respondent No.3 by which in reference to the telephonic conversion it was submitted that the attendance of the petitioner No.2 is 154 out of 262 (58.8%). In the same letter a remark was made against the petitioner no.2 that she is the most indiscipline student throughout the year and she did not attend the practical examination held in February 2008. Information was also submitted that the petitioner No.2 should not be allowed to appear in the Board examination. It is further stated in paragraph no.14 of the writ petition that the respondent No.2 had earlier wrote a letter on 7-1-2008 and while writing the said letter to the Regional Officer of the CBSE Board, it was stated that the attendance 3 of the petitioner No. 2 is 154 out of 222. The copy of the letter dated 7-1-2008 has been annexed as Annexure No.10 to the writ petition. As such the learned counsel for the petitioner has submitted that the respondent No.2 is bias against the petitioner No.2. Learned counsel for the petitioners has further contended that the Bye Laws of the CBSE Board Examination. Rule 13.1(i) provided that:- “Rule 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 IX/X/XI/XII as the case may be upto the 1st of the month preceding the month in which the examination of the School/Board commences. Candidates taking up a subject(s) involving practicals 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 fulfills the attendance requirements as given in this Rule.” In the counter affidavit stand has been taken by the respondent No.3 in paragraph Nos. 7 and 10 that the attendance of the petitioner No.2 is below 60% which was calculated on the basis of recommendation sent by the respondent Nos. 1 and 2 on 27-2-2008 mentioning the attendance of the petitioner No.2, which was 154 out of 262(58.8%) school days of Session. In the rejoinder affidavit, the petitioners have also annexed the counter affidavit filed by the respondent Nos. 1 4 and 2 in earlier writ petition No.378 of 2008 (MS) wherein it is stated in paragraph No. 10 of the counter affidavit that the regular session of the school closed on 10-12-2007 and as per the CBSE norms school has to send the names of those candidates whose attendance were short. Therefore, according to the school himself, the attendance was sent to the CBSE on 7-1-2008. Sri S. Dhulia, Senior Advocate has contended that the writ petition is not maintainable against the private institution i.e. respondent No.1.The arguments of the learned counsel for the respondent Nos. 1 and 2 cannot be accepted because the condonation of shortage of attendance can only be condone by the respondent No.3-Central Board of Secondary Education and the writ petition is very well maintainable against the respondent No.3 and no prayer was made in the writ petition by the petitioner against the institution. Having heard the learned counsel for the petitioner as well as the learned counsel for the respondents and by a perusal of Rule 13.1 (I) and the paragraph Nos.10 of the counter affidavit, it comes out the relevant date was 7-1- 2008 to send the shortage attendance of the petitioner No.2 for condonation to the CBSE Board. So far as the 2nd letter is concerned, it was written by the respondent No.2 on behalf of the respondent No.1 that the letter dated 27-2-2008 is not relevant for condoning the shortage of attendance. The CBSE Board has rejected the representation of the petitioner for condonation of delay on the subsequent letter. In view of the discussion in for going paragraphs and facts and circumstances of the case the writ petition is disposed of finally. The rejection order dated 28-2-2008 is 5 hereby quashed (Annexure No.8 to the writ petition), and the respondent No.3 is directed to reconsider the representation of the petitioner on the basis of the letter dated 7-1-2008 ignoring the 2nd letter dated 27-2-2008 of respondent Nos. 1 and 2 preferably within a period of two weeks from the date of production of certified copy of this order In case, if the Board come to the conclusion that the petitioner No.2 is entitled for condonation of shortage of attendance then the result of the petitioner No.2 may be declared. All pending applications stands disposed of. (B.S.Verma, J.) 01-08-2008. M.K.