{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6307 OF 2009 Rishikesh s/o Nagesh Vasudevane, Age-17 years, Occ-Student, Minor through his father Nagesh s/o Someshwarrao Vasudevane, Age-53 years, Occ-Service, R/o Near Nagure Mangal Karyalaya, Nai Abadi, Udgir, Tq-Udgir, Dist-Latur PETITIONER VERSUS 1. The Maharashtra State Board of Secondary & Higher Secondary Education, Pune Divisional Board, at Latur, Through its Divisional Secretary, 2. The Principal, Maharashtra Udayagiri College, Udgir, Dist-Latur 3. The Principal Mahadev Higher Secondary School, Dhanegaon, Tq-Deoni Dist-Latur RESPONDENTS ....... Mr.P.G.Rodge, Advocate for petitioner, Mrs.Asha Rasal, Advocate for respondent No.1. Mr.V.G.Sakolkar, Advocate for respondents No.2 ....... [CORAM : P.V.HARDAS, {2} and A.V.POTDAR, J.J.] DATE: 12th October 2009 ORAL JUDGMENT (PER P.V.HARDAS, J.) : 1. Rule. Rule returnable forthwith. With the consent of learned counsel for the parties this petition is heard finally at the stage of admission. 2. This petition, under Article 226 of the Constitution of India, filed by the petitioner, prays for quashing and setting aside the order dated 18.08.2009 canceling admission of the petitioner and also prays for issuance of a writ directing the respondents to accept form for 12 th Standard Science examination to be held in February 2010 and to issue hall ticket to the petitioner. 3. Such of the facts, as are necessary for decision of this petition may briefly be stated thus- The petitioner successfully passed 10 th Standard examination and sought admission in 11 th Standard in respondent No.2 institute. The precondition for grant of admission to a candidate in science stream was that the candidate should secure minimum of 40 % marks. Undisputedly, the petitioner had secured only 36 % marks and, therefore, on the face of it, was ineligible. Respondent No.2 has filed affidavit in reply stating that the {3} petitioner had not secured requisite percentage of marks, however inadvertently, admission came to be granted to the petitioner. In the affidavit in reply it is also stated, at para 2, that there was no specific column in the admission form regarding marks obtained in 10th standard examination in science and accordingly no specific scrutiny had been undertaken by respondent No.2 and inadvertently respondent No.2 was admitted in the 11th standard. The petitioner passed 11th standard and thereafter obtained admission in respondent No.3 institute in the 12th standard. Learned counsel for petitioner states that pursuant to the admission granted to the petitioner, the petitioner has appeared in the practical examination and was, therefore, vying for appearing in the final examination scheduled to commence from February 2010. The petitioner meanwhile, received the impugned communication dated 18.08.2009 informing the petitioner that since he had not secured requisite percentage of marks in the 10 th standard examination, the admission of the petitioner in the 11 th standard stands canceled. 4. Learned counsel for respondent Board has invited our attention to the Regulations 79 particularly clause 16 of the said Regulations, which mandates that in order to secure admission in science stream, it is necessary for a candidate to obtain 40% marks in the said subject. It is stated that since the petitioner had not obtained the requisite percentage of marks, admission of the petitioner stands canceled. Our attention has been invited by the {4} learned counsel for the petitioner to the judgment of the Supreme Court in “Shri Krishan V/s The Kurukshetra Univeristy, Kurukshetra” AIR 1976 SC 376. The Supreme Court in the aforesaid judgment has held that “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 cannot be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear.” In the present case, the petitioner had not suppressed the marks, which the petitioner had obtained in the science stream. It is a different matter that respondent No.2 had notified in its prospects that it is essential for a candidate to obtain 40% marks before applying for admission. The petitioner, even if, he was aware of the aforesaid stipulation had submitted his application. It was for respondent No.2 to have scrutinized the said application and if the petitioner was ineligible, ought to have refused admission to the petitioner. Respondent No.2 not having done so and having admitted the petitioner, now cannot claim that the admission of the petitioner is contrary to the provisions of law and the petitioner was ineligible to have obtained admission. Subsequent to the admission in the 11th standard, the petitioner has obtained admission in the 12th standard and has also appeared in the practical examination. The petitioner has not practiced any fraud in the process of securing admission in the 11th standard. In that light of the matter, therefore, according to us, the ratio laid down by the Division {5} Bench of this Court in Writ Petition No.1568/2008 in “Kum.Kavya d/o Didyakant Ambesange V/s The Maharashtra State Board of Secondary & Higher Secondary Education” dated 28.02.2008 correctly concludes that the petitioner therein could not have been denied admission. The facts in the aforesaid decided case and the facts in the present case are virtually similar. 5. In the light of what has been held by us above, we allow this petition. Accordingly, this petition is allowed in terms of prayer clause “B” and “C” to the petition. We direct respondent No. 3 to forward the examination form of the petitioner to respondent No.1 Board and further direct respondent No.1 Board to scrutinize the form and proceed further in accordance with law and if the petitioner is otherwise eligible, except what has been held by the Board against the petitioner. Necessary hall ticket be issued to the petitioner. 6. Rule is thus made absolute on the above terms with no order as to costs. Copy of this order, duly authenticated by the Court Shirastedar, be provided to the learned counsel for the parties to act upon. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/wp6307-09