WRIT PETITION NO.10830 OF 2010 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.10830 OF 2010 Swati Maroti Sontakke, Age 17 Years, Occ. Education, Being minor through her Brother Kamaji Maroti Sontakke R/o Hassapur, Post. Waghi, Tq. and Dist. Nanded. ..Petitioner VERSUS 1. The State of Maharashtra Through it's Principal Secretary in the Department of Secondary and Higher Secondary Education, Mantralaya, Mumbai. 2. The Director of Education, Pune. 3.The Education Officer, Secondary and Higher Secondary, Zilla Parishad, Nanded. 4. The Higher Secondary Certificate Board, Latur Region, Latur. 5. The Science College, Nanded through its principal, Nanded. 6. The Nanded Education Society, through its Secretary, Nanded. ..Respondents ... Shri Mane V.M., Advocate for Petitioner Shri Godbharale V.D., AGP for Respondents 1 to 3 Shri Sonwalkar Vilas R., Advocate for Respondent 4 Shri Natu Sharad V. Advocate for Respondents 5 & 6 ... WRIT PETITION NO.10830 OF 2010 2 CORAM : D B BHOSALE & S B DESHMUKH, JJ. Dated: July 28, 2011 ... ORAL JUDGMENT : (Per S.B.DESHMUKH,J.):- 1. Heard learned counsel for the respective parties. 2. Rule. By consent, Rule made returnable forthwith and the petition is taken up for final disposal. 3. The petitioner has passed her SSC examination in March 2009 with 42 per cent of marks. She took admission to XI Standard (Science Stream) at Science College, Nanded for the academic year 2009-10. She was to appear for XII Standard (HSC Examination) in February / March 2011. Accordingly she filled in the examination form. However, respondent 6 College vide letter dated 3.11.2010 communicated that her examination form has been rejected by respondent 4 Board on the ground that she has not secured 40 per cent marks in Science subject in SSC examination, which is mandatory for admission to HSC Science stream examination. Aggrieved thereby, the petitioner has filed the present writ petition seeking direction to respondents to accept and process the examination form the petitioner and further to allow her to appear for HSC (Science) examination scheduled in February / March 2011. WRIT PETITION NO.10830 OF 2010 3 This Court (Coram : Naresh H. Patil & S.V.Gangapurwala, JJ.) vide order dated 1.2.2011, granted ad-interim relief in terms of prayer clause (D) and directed the respondent to accept the examination form of the petitioner and further to allow her to appear for the HSC examination for the year February / March 2011, with a rider that her result shall not be declared until further orders. 4. In response to the notice issued by this Court, respondent 3 - Education Officer, respondent 4 - HSC Board through its Secretary and respondents 5 & 6 - Science College and Society filed their respective reply affidavits, justifying rejection of the petitioner's examination form. 5. Respondent 3 - Education Officer, in his reply affidavit (Page 26) specifically referring to Clause 70 (Twelve) (D) of the Secondary School Code has stated that for admission to XI Standard of Science stream, the student must have secured 40 per cent marks in Science subject of SSC examination. There is no dispute on this proposition of law. Respondents 4 and 5 & 6 have in their respective reply affidavits re-iterated the said provision and supported their action. 6. On behalf of the petitioner, it has been argued that the respondents ought to have taken due care and caution while admitting the petitioner in XI standard itself. Further according to learned counsel for the petitioner, admission of the petitioner ought to have been rejected at WRIT PETITION NO.10830 OF 2010 4 the bud itself and she, now, after completing her two years of education, cannot be denied opportunity to appear for the XII Standard / HSC examination. 7. Respondents 5 & 6 - College and Society in the reply affidavit have expressed their inability to ascertain the eligibility before issuing the prospectus as more than 3500 students approached the college for prospectus for the year 2009-10. According to the affiant, due intimation was given to all the students desirous of taking admission in their college by notifying the relevant Rules on the notice board and further, according to this affiant, in fact, the students themselves have to verify the eligibility before applying for the admission. 8. Learned Advocate for respondent 4 - Board has relied upon Regulation 79(16) as also Regulation 91 of Maharashtra Secondary and Higher Secondary Education Boards Regulation, 1977. The provisions read thus : "79. Eligibility for admission to junior colleges: (1) to (15) ................................................ (16) To be eligible for admission to Std.XI in science stream of a junior college, a candidate will have to secure minimum of 40% marks in science subject(s) at the Secondary Schools Certificate Examination of this Board or Equivalent WRIT PETITION NO.10830 OF 2010 5 examination. Explanation: Science Subject(s) will include "Science", "General Science", "Physics", "Chemistry", "Biology" and "Physiology and Hygiene" and other comparable Science subjects in which the Board concerned holds its own examination." 9. The petitioner has secured only 35 marks in Science subject in SSC examination out of 100 marks as is evident from the marks sheet annexed at Exhibit "A" (Page 15 of the petition paper book). Learned Advocate for respondent 4 - Board has also pointed out that by a circular dated 9.10.2009 (Exhibit "R-2") to all educational institutions. So far as powers to obstruct the student in midway of the examinations, learned Advocate for respondent 4 - Board has relied upon Regulation 91, relevant part of it reads as follows :- "91. Cancellation of admission to the Examination : 1) In any case, where it is found that the candidate’s admission to the Higher Secondary Certificate Examination has been affected by error, malpractice, fraud or improper conduct, or where his very admission to the Second Year of a Junior College is found to be irregular, the Divisional Board, on the recommendation of the Standing Committee, shall have the power to cancel the candidate's admission to the examination and to forfeit the examination fee, if any, paid by the candidate, notwithstanding the inclusion of the name of WRIT PETITION NO.10830 OF 2010 6 the candidate in the list of candidates registered for the examination, or ......." 10. By virtue of Clause (2) of the said Regulation, Divisional Chairman has powers to admit a candidate for examination provisionally where any inquiries in respect of eligibility for the admission is under inquiry. According to learned Advocate for respondent 4 - Board, petitioner's admission to XI standard is vitiated because she did not fulfill the eligibility criteria of having secured at least 40 per cent marks in the science subject and in cancelling her admission, respondent 4 has rightly exercised powers under Regulation 91. 11. When we refer to Regulation 91, it allows the Divisional Board on the basis of recommendations of Standing Committee to intervene and obstruct the educational pursuit of the child in two categories - (i) candidate’s admission to higher secondary certificate examination has been affected by error etc.... or (ii) where his very admission to the second year of a junior college is found to be irregular....... 12. In the case at hands, petitioner was admitted to Standard XI examination, in which she declared passed and thereafter, she came to be admitted to Standard XII. Though admission of petitioner for first year of junior college is found to be vitiated, we are afraid that Regulation 91 was not available for the Divisional Board and Standing Committee to be used WRIT PETITION NO.10830 OF 2010 7 against present petitioner. We shall stand fortified by observations of the Supreme Court in the matter of Shri Krishan V/s Kurukshetra University (AIR 1976 SC 376). This was a case of law student with shortage of percentage in attendance. In para 6, the Supreme Court observed thus: ".....Once the candidate is allowed to take the examination, rightly or wrongly, then the statute, which empowers the University to withdraw the candidature of the applicant has worked itself out and the candidate can not be refused admission subsequently for any infirmity, which should have been looked into before giving the candidate permission to appear....." 13. Having arrived at a conclusion that Regulation 91 was not available to the Divisional Board for intervention and drawing support from the observations of the Supreme Court, we are inclined to allow the writ petition 14. This Court (to which one of us was party) has allowed the Writ Petition No.1568 of 2008 (Ku. Kavya Vidyakant Ambesange Vs. The Maharashtra State Board) on 28.2.2008 on the same set of facts as available in the case on hand and observed that the petitioner could not have been denied admission. Said view has further been followed by another Division Bench (Coram : P.V. Hardas & A.V. Potdar, JJ.) in Writ Petition No.6307 of 2009 (Rishikesh Nagesh Vasudevane Vs. The Maharashtra State Board), on 12.10.2009. The facts of those two petitions WRIT PETITION NO.10830 OF 2010 8 and the present one are identical and therefore, similar view is possible. 15. The Writ Petition is allowed in terms of prayer clause (B). Respondent 4 is directed to declare the result of the petitioner's examination of XII Standard (Science stream) held in February / March 2011, pursuant to the interim relief granted by this Court on 1.2.2011. 16. Rule made absolute accordingly. No order as to costs. ( S B DESHMUKH, J. ) ( D B BHOSALE, J. ) ... akl