^ COURT OF CHHATTISGARH AT BILABPUR Writ Petitioa (Cl N®.1447/2008 PETSTIONER RESPONDBNTS Nikhil Gurbani VBRSUS Ceiitral Board of SecondaiT Educatiou aiid otliers, O RD E R 0^_ POST ON l^ MARCH 2008 Sd/- DhirendraMishra Judge w ^^r HIGH COURT OP CHHATTSSGARH AT BILA8PUR S. B. HON'BLE SHRI DHIREHDRA MISHR^. J Writ PetitioniCi,No. 1447/2008 PBTITIONER Nikhil Gurbaiii son of Shi-i Inder Giirbaiiiy aged about. 19 yeai'Sy K/o behmd Nitin Tiles, Siiidhi coloiiy, Jai'habhata, Bilaspur (CG) ;K RE8PONDENT8 VERSUS 1. 2. 3. Ceutral Board of Secoiidarv Ediication (C.B.S.E.) tlirough- 'l'he Secretarv, 1, P. Exteiisiou Pat.pai'gaiij, New DcU.ii. Ceutral Board of Secondan7 Education (C.B.S.E.) Throzigh- tlie Kegional Uirector, Kegional Office at-TodaiTiial Mai'g^ Ajm.er. District A]mer (Ra]asthaa) Pno.cipal Maliarishi Vidya Maiidir-I Maiigla, Bilaspur, Uistrict Bilaspur (Chhattisgarh) Present:- Mr. Deve.sh Vemia, cozuisel for tlie petitioner. Mrs. Hamida Siddiqui, couusel for tlie respondeut No, 3, ORDER (Passed onl^as-ch 2008) The petitioner has filed tliis petition under Article 226 of the Coiistitution of India with flie pleadiiigs that he is the regular student of Class-XII m MaJiarishi Vidya Mandir-I, respondeiit No,3> However, he could atteiid the school m tlie moiith of October ancl November 2007 as he was szifferm.g froni Viral Hepatitis's E. PIe subniitted exaBiuiatiou form ia the £&QntliofNovember aiid paid due.examiiiatiou fee with the respondent No, 3. However, when he did not get the adniission card; he enquired froBi the office of respoiident No. 3 aad leamt tliat his adinissiou card has not beea received. On furtlier enquiiy he leanit that he has been debarred from. appearuig ia. the exaBiuiation on account of short of att.endance. He submitted a representation to the respondeiits tlirough Fax. However, the medicaJ certi&cate regardiiig his iUness was not considered by thc respondent No. 3, ¥7ho did not recommend the case of the petitioiier that he. desei^es special consideratioii iii accordaiice with Bye-laws -13 & 14 of the Exajnniation Bye-laws, 1995 (Updated upto December 2004} ofthe Central Board of SecondaiT Education, Dellii. 2. The matter was. lieard 011 4.3.2008, issuance .of notice was clirected to tlie respondents aii-d Ieame.cl coiuisel appearhig for respondent No, 3 sought time up to 7th Marc'h 2008 to seek uist.n.ictions ac.d this Court considermg that the exaiD.io.ation of tlie petitiDuer was scheduled on 10th March 2008/ dirccted' the respondeiits to permit tlie petitioner t.o a.ppear in. •the exaiD.uiation scheduled for 10th March 2008. 3, The respoudent No. 3 has filed its reply along with the docuBients of the iastitiition. The Central Board of SecondaiT ExaiRniatious (iii short "C,B.S.E.1 m'e conducted iii accordan.ee with the Examination Bye-laws, 1995 (Amiexzire R3/13). Rule 13 (i) ofthe Examiiiation Bye-laws, 1995 is beiiig rcprodiiced hereiiiunder; 1113. A Regular Cmtrse sf (i) The expression "a regiilar cou/^e ofsb^dy" refejred io in these Bye-laws jneafis ai least 75% of aitendance in the Classes held; c^unted from ihe day of commendrig teacfung ofClasses X/Xll lipto the 1st of the inonth preceding ihe rnonth in ivhich the exammation ofthe Board commenc^s, CandicSates taking up a subjeci(s) involving practicals shall also be recp.iired to have put in at least 75% of the total atiendance for practical work in the subject in ihe laboratGjy, Heads of InstimtiGns shali noi atloiv a candidate who has offered ^ubjectfs) irwolving practicals io take the practical exarninaiior^s) unless the candidate pMfils the aUendance recy.Airement as given in tlns Rule.}> Rule 14 deeJs with coudonation of shortage of atteiidaiices which is beiag reprodiiced as uiider; ' ^14. T@r 0f- ^fAttendmtccB (i) If a candidaie's aiiendance falls shori of ihe presaibed percen.ia.ge, ihe Head ofihe School may submit his name io ihe Board provisionalhi Ifihe a^ndidaie is siill shori ofthe reqiured percentage ofattendanc^ zmthin three iveek^i ofthe cwnjnenceinent of the examifyition, the Head of the In^titutiGn shaJl repori the case io ihe Regional Officer conc^med immeSiately. Ifin the opinion of the Head ofthe hzstitution, the candidaie deseives special corzsideraiiQn, he may submit his recommendation to the Regional Officer conc^med noi laier than three weeks before ihe c^mmenc^ment of the examinatiGn for cwzdonation of shoflage in attendmices by the Chairman, CBSE, ivho may issue orders as he niay deern proper, The Head of the School in his letter recfuesfmg for cx)ndonation qfshortage in attendance, should give the maximutn possibte atiendance by a student counted from the day of cx/rranencing teaching of Classes X/XII (beginning of the session) upto the 1st of the month preceding the mGnth in which the exarnirzation of the Board mmmences, attendance bij the candidate m question during the aforesaid period and i.he perceniage of cdtendanc.e by such a candida.te during ihe aforesaid period. . . •(i.i) Sho-fiage up io ~ 1-5% only may be condoned by ihe Chairrnan. Cases of c^ndidates zinth aitendanc^ beloiv 60% in class X or class X1L as the case may be, shall be consideredfor condonation ofshonage ofattendanc.e by ihe Chmnnan onnf in exc^ptwna} drcumstanc^s created on nzedical grounds, such as candidaie sufferi^ frorn serirjus diseases like cxinc^r, AIDS, TB or shrular serious diseases reqiMring long period of hospitalization, (m) The Principal shall refer a cnse ofshoriage wiihin the above prescribed lirrdt of condonation to ihe Boarci either ivith the ref^ornrnenda'tions or with vaUd reasons for not recormnerzdirzg the case, (iv.) Ti-ze follozmng may be cojisidered valicl reasons for rec^mmendmg the c^.ses qfthe c^andidates with attendance less than the prescribed perc^ntage: (a) protonged inness; (f^) toss of father/Tnoiher or sonie other such incideni ieading io his absenc^ from the school and meriting special consicierc^ion; and fcj any otherreason ofsijmlarserioiAS nature. fdj Aui.horized pa^iicipaiion in sponsored ioumatnenis and sporis m.eei.s Of not less than inter-schGol level and at NCC/NSS canips inchiding the days Of j^u^Tieys for such panic^pation shall be cGunied as fiitl attendan.ce: r' M: •^T 4. LeaiTiecl coiuisel for the petitioner arguecl that tlie petitio33.er regulaiiy atteiicled the classes, however, because ofiU health he could not a.ttend classes in the moiith of October and November 2007 and accordragly, subniitted medical certiflcate (Annexure P/3) with a3i appUcatiQn to pennit hini to appear in the exaiiiination, The respondent No. 3 did uot accept llis represeiitation for condonatiou of short of attendaiice and did not fon^ard the sanie with reconimeiidatioii to the respondent No. 2 to condone the short of atteB.dance ia accorclance with Rule 14 of the ExaBiio.ation Bye-laws, 1995. On account of above arbitraiy act of the respoiident No. 3/Iiistitution, the axlmission card ofthe petitioner wa.s iiot •sent by the respoiideiit No.l/C.B,S.E. aiid lle is not beiiig pci-mitted to appe.ar hi tlie aoiiueJ. exainiiiation, 5. On tlie other haiid, leaniecl counsel for the responclent No. 3 iii its reply has siibBiitted that the petitioner atteiided only 47.17% of classes duriiig the academic year whereas the muiiiiium. attend.ao.ee necessaiy for appeaiiag iii the aiinual examio.ation i% 75%. The petitioiier has filed false Biedical certificate. He lias claim.ed ui his petition that he reniained absent ouly ui tlie moiith of October aud November 2007 whereas the atteiidaiice record (Aniiexure R3/ 1) of the sch.bol gocs to show tliEit he was uiiiformly irregular throughout tlie a.cexlemic year aiid n.ot only 11.1 October aiid Noveinber 2007 as clamied. Copy of the attendance register for the Bioiith of October and November 2007 has also been filed. The petitioner has hiiaself submitted aii appMcatiou, whichwZiS diily signed by his father whereiii he admittecl his iTrcgularities iii atteiidiiig.tl-ie classes aiid proiaised t.o iiiake up in fiiture by behig regiilar ia the classes. The father of the petitioner was a.pprised by the uistitTition/school vide Annexure R- 3/10 tliat tlie petitioner would uot be aUowed to a.ttend the examination due to shortage ofat.teiidaD.ee. The requirement of 75% inuiioiUBi attendaiice is also Bientioned iii tlie Student Diary (Anuexure R-3/12) of the petitioner's mstitzitioii, which is isszied to eveiy student The petitiouer also did not appear iii four papers of Pre-Board Exaciiiiatioii and fajle.cl ia aU tlie papers, ui which he appeared ui the I aiid II termin.al examhia.ti.on except only oue paper of teniiiaal exainiiiation of Ply/sical Ediication vide Aiinexzire R-3/4. The kN» petitioner or his guanliaas did not approach the respQndeut No. 3 for coudonation of short atteudaB.ee ofthe petitioner for appeaiiiig hmi in •the eiiuual exaniiaation aj.id therefore, the cpaestion of reconim.eiidiiig b.is case to the C.B.S.E, does not adse. 6. I have heard leanied coiuisel for the parties aiid have penised the aiaterial available on rccord. 7. Riiles 13 & 14 of tlie Exaoiiiiation Bye-laws, 1995 clearly iiientioii tlial the students, \vho have attencled 75% classes in a acaclem.ie year, can. only be pemiitted to appear ni the exaiiiiiiation. The Head of tlie school may request for condonation of shortage of attendaiice aiid shortage up to 15% oiily Biay be condoned by tlie Chairaiaii, C.B,S.E. aiid condouation of atteiidaiice below 60% may .only be coiisidered- ia exceptional cases where tlie caiididate is sufferiiig from. serious disease lilce. .caiicer, AIDS, TB or sioiilar serious disease requirbig tong period ofhospitalization, 8. hi the Instaiit case, tlie petitioner has not filed'aii;y docuBient t.o show thal he was sufieriiig froia serious. a.ihixents or thal he was hospitalized iii couiiection with trea.tinent . of ajay serious disease. There is no evid.en^e ia. the form of applfcatbn siibmitted by the pe'titioner with th.e in.stitulion eifher for obtain.in.g leave from the classes 011 meclical ground or for coiidoiim.g his .short of atteiidaiice OIT medical grQund, On the contraiy, the petitioner has stated in. his petitioii t-hat h.e reinabied absejit only 'ic. the month of October and NoveBiber 2007. The above pleacliiig is also falsified froio. the attendaace record aad the attendao.ee register for • the month of October ajid November 2007 ofthe school, froBi which it is clear that tbe petitioner was luiifoi'Bity absent froni the classes throughout the academic years. Froni tlic records produced by the respondeiit No. 3/iiistitution it is evideiit tlia.t the petitioner has not come up with tnie facts l3efore this Court. In these ciTCtimstaiices, it would not be appropriate to exercise powers uiider Article 226 of the Constitution of India to dii-ect the respondents to allow the petitiouer to appear in the aiinual examiuation of Class-XII bv relaxia^ the Rules 13 & 14 ofthe Exainiuation Bye-laws, 1995 of C.B.S.E. From the Student Diaiy (Anuexure R-3/12) it is clear that in view ofCategoricaJ. aiid expMcit disclosures made in. the BuUetiii of all students, they have beeu made awsj'e of the histnictions contaiB.ed ia the stiide.nt diaaT that min.iBiuni 75% attend.an.ee is necessaiy for appeariiig ui the aiinual exaiiiiiiation, Siiice 110 mala&de has been aUeged agajnst the respoudeuts ni fhe writ petitiQii, it is iiot desira.ble to in.terfere witli the decisiou of the respoudesits in not aUowiiig the petitiouer to Ztppear ui the aiiniial ..exaiD.ination of Class-XII due. to 'shortage of attendaiice as per Exammation Bye-laws, 1995 ofC.B.S.E. 9. This Court 011 4,3.2008 had directed issuance of iiotice to respoudents No. 1 & 2, however, after pcrusiiig the reply of the respondeiit No. 3 aiid the documents aiinexed with the reply, I am satisfied that the iiistaiit petition has 110 force aiid it deserves to be clisi^iissed at tlie -admissiQii stage itsetf, 10. ' In tl]..e result, the iustant petition being without siibstan.ee isx liable to be disio.issed at th.e adHiissiDnstage itselfaiid is a^cordingly, dismissed. • '' I Sd/- Dhirendra Mishra Judge