V.A. Mohta, J.
1. Petitioner Ashish Sharma, a lad aged 16 years, prosecuted his studies of 10th Standard in St. Francis De'Sales High School, Sadar, Nagpur, of which second respondent is Head Master. He joined that class on 9th August, 1984 with a view to appear for the 10th Standard Examination to be conducted at the end of academic session 1984-85 consisting of two terms. Total working days for the first term came to 87 and that of second term to 79. He attended the school for 47 days and 70 days respectively. Percentage of attendance in the first term comes to 54.02 and that for the second term comes to 96.2. Some time in November 1984, he paid the examination fees to enable him to appear at the March/April, 1985 Secondary School Certificate Examination to be held by the Higher Secondary Education Board, respondent No. 1. The Board entered the name of the petitioner in the list of candidates registered for examination and allotted to him Roll No. J 077112. On the basis of the entries in the register, Admission Cards are usually prepared and sent to the Heads of the respective institutions even before the term is over. One such card was sent even for the petitioner to the second respondent who did not hand over the same to the petitioner and communicated on 1st March, 1985 to the petitioner's father that the petitioner will not be allowed to appear for the examination because of shortage of attendance in the first term below 60%. Petitioner's father contacted respondent No. 2 who showed his helplessness in the matter. Communication was also addressed to the Chairman of the first respondent to condone the deficit in the attendance. The Divisional Chairman also expressed his helplessness in the matter as it was beyond his powers. The action of the respondents not permitting the petitioner to appear at the examination is challenged in this petition.
2. That percentage of attendance of the petitioner was below 60% in the first term is an undisputed position. It is also not disputed before us that the percentage has to be counted term-wise and the percentages in the two terms cannot be clubbed. It is fairly not disputed before us that even respondent No. 1 does not have the power of condonation of attendance below 60%. What is seriously canvassed before us is that having despatched an admission card to respondent No. 2 for being handed over to the petitioner, respondent No. 1 had no power to cancel the candidate's admission to the examination in view of Rule 44(1) of the Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977 framed under the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965, except on recommendation of the Standing Committee which, in the present case, does not exist. The relevant rule read thus :
'44. CANCELLATION OF ADMISSION TO THE EXAMINATION
(1) In any case where it is found that the candidate's admission to the examination has been affected by error, malpractice, fraud or improper conduct, or where his very admission to the top Standard is found to be irregular, the Divisional Board, on the recommendation of the Standing Committee, shall have the power to cancel the candidate's admission to the examination and to forfeit the examination fee, if any, paid by the candidate, notwithstanding the inclusion of the name of the candidate in the list of candidates registered for the examination, or the candidate's actual appearance at the examination, in one or more subjects and also to debar the candidate from appearing for the examination for such further period as the Divisional Board may determine in each case.
(2) It shall be competent for the Divisional Chairman to admit a candidate to the examination provisionally, where any enquiries in respect of his eligibility for admission to the examination are in progress or contemplated and in the light of the final decision regarding his eligibility, to deal further with his case as per the provisions of these Regulations.
The answer to the point depends upon the meaning that is attached to the terminology 'the candidate's admission to the examination' used in Rule 44. We find it difficult to hold that mere despatch of an admission card by the Board for the Head of the School-an event which takes place much earlier than actual examination commences is tantamount to candidate's admission to the examination. Now Rule 41 deals with the eligibility of regular candidates. Rule 41(1)(a) prescribes that in the case of March/April Examination, a candidate has to attend the final standard of one of the recognised schools for not less than 75 per cent of the working days, separately in two different parts, viz. in the first part from the opening day of the academic year to the 15th of October and in the second part from 16th of October to the 15th of February. Rule 41(1)(b) empowers the Divisional Chairman to condone the deficiency in the percentage of attendance upto 15 per cent for special reasons or circumstances beyond the control of the candidate. Rule 46 deals with the applications for the examination. They are to be submitted in a prescribed forms through Head of the School to reach the office of the Board on or before such date as may be fixed for the purpose which is communicated to the schools well in advance. In given circumstances delay upto 10 days, can be condoned on payment of late fees under Rule 46(2). Sub-rule (8) provides that all applications for permission to withdraw forms of applications for admission are to be submitted by the head of the school so as to reach the Board's office on or before the 25th February in the case of summer examination. Rule 41(1)(c) provides that withdrawal under Rule 6(8) shall be made on or before the date prescribed therein unless the deficiency in attendance is condoned by the Divisional Chairman in cases referred to him by the head of the school on or before 20th February. It is the contention of the Board that since examinations are held soon after the expiry of the second term, the process of preparation of list of candidates which is huge in number starts well in advance. List of admission forms received is prepared, roll numbers are allotted and admission cards which are mechanically prepared on the basis of that list are sent to the heads of the school in advance in anticipation of the candidate filing up the necessary attendance. In view of this position according to the Board mere allotment of a roll number and despatch of an admission card to the school does not ipso facto entitlement to appear for the examination to a candidate who is otherwise not eligible.
3. It is contended on behalf of the petitioner that as Rule 44(1) refers not merely the contingency of actual appearance at the examination but also 'the inclusion of the name of the candidate in the list of candidates registered for the examination', the terminology 'candidate's admission to the examination' must be so construed as to include both. Having regard to the general scheme and purpose of the Regulations, it is difficult to hold that mere inclusion of the name in the list of candidates registered for the examination and despatch of admission card to the head of the school attracts Rule 44. It cannot be disputed that there is good reason for preparing the list of the candidates and to allot the roll numbers quite in advance and even before the last date prescribed for attendance, Cards are despatched on the basis of certain presumptions and if they are found to be incorrect, the Board can prevent a student from appearing at the examination any time before it actually starts. There must exist such a power. To hold otherwise would lead to anomalous results. Even if a candidate does not attend the school afterwards and falls short of the minimum percentage in attendance, the Board would be helpless in the matter.
4. Our attention was invited by Shri Bhangde, the learned Counsel for the petitioner, to the case of Shri Krishan v. The Kurukshetra University, Kurukshetra, : AIR1976SC376 laying down a principle that once the candidate is allowed to take the examination, rightly or wrongly, the power of withdrawal exhausts itself and the candidate can not be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear. It seems to us that the ratio of that case has no application to the present matter. It was a case of a candidate who had already appeared at the examination and the cancellation was thereafter. Moreover the said case deals with different set of Regulations. In the present case, even the admission card was not handed over by the second respondent to the petitioner. As rightly held by the Division Bench of this Court in the case of Rajashri Choudhari v. Head Master, Manibhai Gujarathi Junior College, Amravati, Writ Petition No. 436 of 1984 decided on 29th June, 1984 to which our attention was drawn by Shri Aney, the learned Counsel for respondent No. 1 in the matter of handing over of the admission cards. Head of the school acts merely as an agent of the Board.
5. In the present case, the short fall was such that neither respondent No. 2 nor respondent No. 1 could condone it even if they so desired. In this background, it is unnecessary to go into the reason for short-fall in the attendance. Assuming that in writ jurisdiction condonation is possible, there exists no justification whatsoever for the same. On 5th May, 1984 the petitioner went to New York and it is his case that he could not get confirmation of his Open Air Ticket for his return to India until the first week of August, 1984 in view of heavy rush on account of Olympic Games held in the month of April and August, 1984 at Los Angeles. Barring the bare statement on affidavit, there is nothing to substantiate the statement which even otherwise appears quite difficult to accept. In no case, this could be said to be a circumstance beyond the imagination and control of the candidate or his guardian.
6. Thus in our view Rule 44 is not attracted in this matter and the cancellation of admission to examination does not become bad for want of recommendation of the Standing Committee. The petition has no merit and has to be rejected as such. Needless to mention that the first respondent is not obliged to declare the result of the petitioner in the examination in which he was permitted to appear by virtue of an interim order passed by this Court in this matter on 8th March, 1985.
7. Petition dismissed. Rule discharged. No order as to costs.