IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 439 of 2008 Farha Anjum Ansari D/o Sri Ilyas Ahmad Ansari …………Petitioner. Versus Central Board of Secondary Education Through its Secretary, New Delhi and others. …………….Respondents. Sri T.A. Khan, Advocate for the Petitioner. Sri Gopal Narain, Advocate for the respondents no. 1 and 2. Sri J.C. Belwal, Advocate for the respondent no. 3. Hon’ble Prafulla C. Pant, J. By means of this writ petition, the petitioner has sought following reliefs:- a- To issue a writ order or directions in the nature of mandamus directing the respondents to permit the petitioner to participate Senior Secondary examinations of 2008 conducted by the respondent no. 1 on Roll No. 5749658. b- To issue a writ order of directions in the nature of certiorari, quashing the order passed by the respondent no. 2 Annexure No. 7 to this writ petition. bb- To issue a writ order or direction in the nature of certiorari, quashing the order dated 16/19- 5-2008, passed by the Chairman of the respondent no. 1 Annexure No. 9 to the writ petition). bbb- To issue a writ order or direction in the nature of mandamus directing the respondents to conduct the examination of the petitioner of first paper of Business Management which was fixed for 4-3-2008, and they further be directed to declare the result of the petitioner without showing the work compartment if she is declared passed in all the subjects. c- Any other relief with the Hon’ble Court deem fit, may kindly be granted in favour of the petitioner and the defendants. (2) Heard learned counsel for the parties. (3) Brief facts of the case are that petitioner is a student of Class XII in the institute, run by respondent no. 3. Earlier, she stood first in Class X and obtained 75% marks in the year 2006. However, in July 2007, when she was getting education in Class XII, she fell ill and remained under medical treatment. On diagnosis she was found to be suffering from Tuberculoses. She was advised one year’s medical treatment by the Doctors. Thereafter, she suffered with Jaundice and could not attend the school. Thereafter, she came into contact of viral fever (Dengue) and had to be admitted in Krishna Nursing Home, Haldwani. Her platelets count had gone down and she had to take medical treatment from the Doctors of Sushila Tiwari Hospital, Haldwani. Consequently, due to all aforesaid ailments the petitioner’s attendance got short in the institute run by respondent no. 3 and did not get admit card in time to appear for the examination. When she inquired about her admit card no satisfactory reply was given by the authorities and she made an application to respondents no. 1 and 3 seeking condonation of shortage of her attendance. She could receive fax message only on 4-3- 2008 at 6.02 p.m. that her admit card has been detained on account of shortage of her attendance. Petitioner’s case is that on account of the illnesses suffered by her, shortage of attendance should have been condoned by the authorities under Rule 14 of the Rules applicable for C.B.S.E. examination. It appears that during the pendency of this writ petition, under the interim order of this Court, the C.B.S.E. considered the representation of the petitioner and rejected the prayer for condonation of shortage of attendance on account of which amendments were made in the prayer of the writ petition and prayer no. (bb) and (bbb) were added in the writ petition. (4) Counter affidavit has been filed on behalf of respondent no. 2 in which it has been sated that representation made by the petitioner has been disposed of in accordance with Rule 14 of the bye laws applicable to C.B.S.E. examination. In another counter affidavit filed on behalf of respondent no. 2 it has been stated that there were no sufficient reasons for condoning the shortage of attendance in the present case as the petitioner remained absent for as many as 63 days out of 118 days and no reports about illness were produced by the petitioner in time. (5) In the counter affidavit filed on behalf of respondent no. 3 it has been stated that respondent no. 3 sent a request through letter dated 1.2.2008 for condonation of shortage of attendance to the authorities concerned, a copy of said request is annexure CA-1 to the counter affidavit of answering respondent. The medical certificates etc. submitted by the petitioner were also endorsed to the authorities concerned for their consideration. Till the petitioner’s shortage of attendance is condoned she was not entitled to appear in the examination. Only on 3.3.2008 at 5.00 p.m. respondent no. 3 got information on phone from Central Board of Secondary Education (for short C.B.S.E.) that the representation of the petitioner has been rejected. (6) Before further discussions, this Court thinks it just and proper to mention here the relevant provisions contained in Rules applicable to the present case. Rules 13 and 14 of the Rules contained in the bye laws of Central Board of Secondary of Education are quoted as under:- “Rule 13- ……….(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 1st of the 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 practical to take the practical examination(s) unless the candidate fulfills the attendance requirements as given in this rule…… Rule 14…….. (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 a 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 Officer concerned immediately. If in the opinion of the Head of 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 the 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 given the maximum possible attendance by a student counted from the date of commencing teaching of classes X/XII (beginning of the session) upto the 1st of the month preceding the month in which the examination of the Board commences, attendance by the candidate in question during the aforesaid period and the percentage of attendance by such a candidate during 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 be considered for condonation of shortage of attendance by the Chairman only in exceptional circumstances created on medical ground, such as candidate suffering from serious diseases like cancer, AIDS, TB or similar serious diseases requiring long period of hospitalization…. (7) Learned counsel for the petitioner submitted that due to inaction on the part of the respondents, the petitioner had to suffer in her academic career. However, on going through the papers on record this Court finds that the petitioner suffered not on account of the respondents’ inaction but on account of the unfortunate illnesses which the petitioner underwent one after another, when she was student of Class XII. Admittedly, she suffered from TB, which required one year’s medical treatment. It was also admitted to the petitioner that when she was undergoing treatment for TB, she suffered from jaundice and could not attend the school. It has also come on record that petitioner thereafter suffered from viral fever (dengue). As apparent from the counter affidavit, it is clear that petitioner’s attendance was less than 50% as she could attend only 63 days out of 118 days. No doubt, the Chairman of the respondent CBSE had power to condone shortage of attendance in exceptional cases but considering the period of absence which prevented the petitioner from attending the school and the fact that the medical certificates produced by the petitioner did not cover entire period of absence in the school it cannot be said that the said authority had committed any error of law in rejecting the representation / application of the petitioner for condonation of shortage of attendance. (8) Having considered the submissions of learned counsel for the parties and after going through the counter affidavit and annexures filed therewith, this Court finds that the petitioner is an unfortunate person whose studies got disrupted due to the illnesses she had to face during the academic year 2007-08 but in the circumstances and on the facts discussed above, the relief sought by the petitioner cannot be granted to her as no mandamus can be issued to the respondents directing them to permit the petitioner to participate in the Senior Secondary Examination 2008 (as said year is already over). The impugned order sought to be quashed by the petitioner also not found suffering from any illegality as such since no law has been violated nor any arbitrary approach has been adopted this Court is not inclined to issue writ quashing the orders rejecting the representation / application of the petitioner for condonation of shortage of attendance. Also, the prayer that the paper of Business Management be conducted afresh for the petitioner only, cannot be issued as it is impractical and would derail the entire system of examination adopted by C.B.S.C. (9) For the reasons discussed above, the writ petition is dismissed. (Prafulla C. Pant, J.) 07.01.2009 NS