:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION (L) NO.430 OF 2008 PETITION (L) NO.430 OF 2008 PETITION (L) NO.430 OF 2008 Krunal Vishwanath Yelwande ..Petitioner V/s State of Maharashtra & Anr. ..Respondents Mr. J.M.Puranik for the petitioner Mrs. Geeta Shastri, AGP for respondent No.1 Mrs. Deepa Chavan i/b Little & Co. for respondent No.2. CORAM CORAM CORAM : : : SRI R.M.S. KHANDEPARKAR AND SRI R.M.S. KHANDEPARKAR AND SRI R.M.S. KHANDEPARKAR AND SRI SRI SRI A.A. SAYED, JJ. A.A. SAYED, JJ. A.A. SAYED, JJ. DATE DATE DATE : 18TH JULY, 2008 : 18TH JULY, 2008 : 18TH JULY, 2008 P.C. 1. Heard. 2. Rule. Rule made returnable forthwith by consent. Mrs. Geeta Shastri, learned AGP waives service on behalf of respondent No.1 and Mrs. Deepa Chavan learned advocate waves service on behalf of respondent No.2. 3. By the present petition, the petitioner is seeking direction to the respondents to grant him an opportunity to appear for the remaining one subject :2: of 2nd year D.Ed examination, which is now scheduled in October, 2008. 4. Undisputed facts are that the petitioner is a physically handicapped person and the physical disability is in the form of deformity in Bilateral Smt Loss to the extent of 48%. This is also revealed from the medical certificate produced on record. The petitioner passed H.S.C. examination in February, 2004 conducted by Maharashtra State Board, Amravati Division by securing 67.71% marks. The petitioner thereafter got admission to the Sarswati Adhyapak Vidyalaya Bhandup for D.Ed. Course on the basis of Government merit list prepared by the Government and in April, 2006 the petitioner cleared 1st year D.Ed. and the petitioner appeared for 2nd year D.Ed. examination in October, 2006. However, while clearing three subjects, he failed in three other subjects. The petitioner again appeared for second year D.Ed. examination in April, 2007. However, he could clear two subjects and failed in one subject. Though for the examination which was scheduled to be held in October, 2007 the petitioner was granted the hall ticket, he could not answer the examination as :3: he fell ill. On 24th November, 2007 the petitioner addressed a letter to the respondent No.1 seeking permission to appear again for the examination for the remaining subject. The request was again repeated under the letter dated 3rd December, 2007. However, there had been no favourable response from the respondents on the ground that only three attempts are permissible for D.Ed. examination and if the candidate fails to clear all the subjects in three attempts he is not entitled to appear again for the said examination. 5. There is no controversy about the Rule pointed out on behalf of the respondents that only three attempts are permissible for 2nd year D.Ed. examination. The fact remains that it is not disputed that for the 3rd attempt the petitioner could not answer the papers on account of the circumstances beyond his control, as he was suffering from high malarial fever and in those circumstances he was not able to answer the examination in October, 2007. In such circumstances, merely because the petitioner’s request for allowing to appear for October, 2007 examination was accepted by the :4: Competent Authority and even the hall ticket was issued that would not amount to have exhausted the 3rd attempt for said examination. The fact that the petitioner was suffering from High Malarial fever is also established by medical evidence on record. Even otherwise from the fact that the petitioner was unable to answer the examination on account of circumstances beyond his control, he should be allowed to answer the remaining subject at ensuing examination to be held in October, 2008. 6. As rightly pointed out by the learned advocate for the petitioner in similar situation, this Court in Writ Petition No. 4459/2007 in the matter of Arvind Arvind Arvind S/o Parshuram Jadhav V/s State of Maharashtra S/o Parshuram Jadhav V/s State of Maharashtra S/o Parshuram Jadhav V/s State of Maharashtra decided on 9th August, 2007 (Aurangabad Bench) had permitted the student to answer the examination. Applying the same rule, and in peculiar facts and circumstances of this case, we direct the respondent to allow the petitioner to appear for the remaining one subject for the 2nd year examination which is scheduled to be held in the month of October/November, 2008. :5: 7. It should not be construed that we are laying down any law in this regard and the decision in the matter in hand has been passed in peculiar facts and circumstances of the case. 8. Rule made absolute accordingly with no order as to costs. (R.M.S. (R.M.S. (R.M.S. KHANDEPARKAR, J.) KHANDEPARKAR, J.) KHANDEPARKAR, J.) ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)