( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Letters Patent Appeal No. 159 of 2009 (Against the order dated 22-1-2009 in Writ Petition No. 5410 of 2008 ) Ravan s/o. Shrimant Suslade, Age : 43 years, Occupation : Service (Presently Nil), .. Appellant R/o. Nandurga, Post Karajkheda, (Original Taluka and District : Osmanabad. petitioner) versus 1. The State of Maharashtra, School Education Department, Mantralaya, Mumbai-32. 2. Savitribai Phule Educational Institute, Ujjani, Taluka : Ausa, District : Latur, Through its Chairman. 3. Savitribai Phule Kanya Prathmik Shala, Ujjani, Taluka : Ausa, District : Latur, Through its Headmaster. 4. The Education Officer (Primary), Zilla Parishad, Latur. 5. The Maharashtra State Examination Council, .. Respondents Dr. Ambedkar Road, Pune, (Original Through its Commissioner. respondents) ....................... ( 2 ) Mr. Santosh S. Jadhavar, Advocate, for the appellant. Mr. S.K. Kadam, Assistant Government Pleader, for respondent no.1. Smt. S.S. Jadhav, Advocate, for respondent nos.2 and 3. Mr. A.R. Nikam, Advocate, for respondent no.5. ........................ CORAM : A.P. DESHPANDE & N.D. DESHPANDE, JJ. DATE : 8TH MARCH 2010 COURT'S ORDER (Per A.P. Deshpande, J.) : 1. The appellant was initially appointed as an Assistant Teacher in the year 1993 in the respondent no.3 / school. At the time of initial appointment, the appellant was an untrained teacher. The State Government introduced a scheme known as Postal D.Ed. scheme, with a view to provide opportunity to the untrained teachers to acquire training qualifications. Under the scheme, the untrained teachers were expected to complete the Postal D.Ed. course at their own costs, within a period of three years and in three attempts. The Postal D.Ed. course is of two years duration i.e. first year and second year. ( 3 ) 2. The present appellant appeared for the first year D.Ed. examination in December 2002 and passed the same in the first attempt. The appellant appeared for the second year D.Ed. examination in April 2003. The appellant had indulged in an unfair practice at the examination and having been found guilty of indulging in malpractice, his performance for April 2003 examination was cancelled and he was also debarred for two more examinations. Thereafter, the appellant appeared in November 2004, however, failed in the examination. It so happened that the appellant was thereafter even permitted to appear in April 2005 and came to be declared as successful. The school management, being of the view that the appellant has not passed the D.Ed. examination within the stipulated time frame, and in permissible attempts, it proceeded to terminate the service of the appellant in July 2005. 3. Aggrieved by the termination of service, the present appellant filed an appeal before the School Tribunal and submitted that the period, for which the appellant was debarred from appearing at the examination, cannot be counted as attempt as it was beyond the control of the appellant to appear at the said examination. The School Tribunal counted as first attempt when the appellant appeared for first year, the second attempt when the appellant's performance at an examination ( 4 ) was cancelled, the third being of November 2004 and the fourth being of April 2005. Even by so counting, the conclusion was reached that the appellant has exhausted attempts before he was lastly permitted to appear at an examination and had passed therein. 4. Aggrieved by the judgment and order of the School Tribunal, a Writ Petition came to be filed. The learned Single Judge, concurring with the view taken by the School Tribunal, dismissed the petition. Aggrieved thereby, the present Letters Patent Appeal is preferred by the appellant. 5. The rules defining an "attempt" or dealing with an "attempt", if any, is not placed on record till date. Reliance is placed by the appellant on a communication received from respondent no.5, Maharashtra State Examination Council, Pune, to contend that the period, for which the appellant was debarred from appearing at the examination, cannot be counted as an "attempt". The opinion of the respondent no.5 expressed in the communication does not appear to be based on any rule, as there is no reference to any rule made therein. 6. Reading of the Government Resolution dated 2nd June 2000 does not indicate that candidates are permitted to avail three attempts to clear each examination of the D.Ed. ( 5 ) course. The resolution postulates clearing of Postal D.Ed. course within three years and in three attempts. Thus, the view taken by the School Tribunal, so also, the learned Single Judge, on the plain reading of the Government Resolution, cannot be faulted. On the contrary, we are of the view that if a candidate indulges in an unfair practice at an examination or is guilty of malpractice and his performance is cancelled and if he is debarred for a given number of examinations, the said examinations would also constitute an "attempt". It is not a case that the candidate is put to any disadvantageous position on account of something which is beyond his control. In the situation like the present one, if the candidate's performance of examination is cancelled and if he is debarred for two examinations, in the absence of any rule providing for a different contingency, the examinations for which a candidate is debarred will have to be counted as "attempts". 7. The learned Counsel appearing for the appellant has relied upon a judgment of the Apex Court in the case of Principal, Patna College, Patna and others Vs. Kalyan Srinivas Raman (AIR 1966 SC 707) which goes to hold that in interpreting University Regulations, if two interpretations are possible, the interpretation of the educational authority should be honoured. It is reiterated, that in the present case, no rule is placed on record which requires to be interpreted. Without ( 6 ) making any mention of any rule, the respondent no.5 has opined on the point in favour of the appellant. That is not a situation which is commented upon by the Apex Court in the judgment cited supra. 8. The learned Counsel appearing for the appellant has further placed reliance on the judgments of the Apex Court, in the case of Thapar Institute of Engineering and Technology and another Vs. Gagandeep Sharma and another (AIR 2001 SC 3676), and in the case of Sanjay Kumar Manjul Vs. Chairman, U.P.S.C. and others (AIR 2007 SC 254), which goes to lay down that the scope of judicial review is very limited in academic matters which fall within the domain of the authorities of the University. There cannot be any quarrel with the proposition of law laid down in the said judgments. However, the judgments are not applicable in the facts of the present case and, in any manner, do not advance the case of the appellant any further. 9. Though we have dealt with the matter on merit herein above, we are pained to point out that the appellant has been strenuously contending before the learned Single Judge, so also, before this court, that his rustication from examinations was on account of mass copying and that he as an individual is not responsible. It is only when the respondent / school ( 7 ) management placed on record clinching material to demonstrate that there was no mass copying at the centre / hall when the appellant was debarred, that the appellant has filed an affidavit in rejoinder today. In the affidavit in rejoinder, the appellant has admitted the fact that the appellant in the company of other few students was found to have indulged in copying and hence the performance of the appellant at the examination was cancelled besides debarring him from appearing for next two examinations. Be that as it may, without dealing with this aspect any further, we proceed to dismiss the appeal. 10. For the reasons recorded herein above, the Letters Patent Appeal is dismissed. ( N.D. DESHPANDE ) ( A.P. DESHPANDE ) JUDGE JUDGE ......................... bgp/lpa159