V.C. Daga, J.
1. Rule, returnable forthwith.
Heard finally by consent of parties.
This petition is at the instance of the students taking education in the second year in Two Years Diploma in Agriculture. The petitioners seek to challenge the communication dated 26th March, 2003, in the nature of order passed by respondent No. 3, holding that the petitioners are not eligible for the final examination in Diploma in Agriculture, commenced from 24th March 2003, as the petitioners appearing for the final examination should have attended the classes for not less than 85% of the working days during the academic year. The petitioners have also sought directions to respondent Nos. 3 and 4 to supply examination forms of the second year Diploma in Agriculture for academic year 2002-2003, after accepting requisite charges on the contention that the petitioners were regular in attending their classes and for extraneous reasons they were sought to be detained for want of 85% attendance.
2. This Court vide order dated 17th April 2003, by way of interim arrangement, allowed the petitioners to appear provisionally for the aforesaid examination subject to the condition that their performance shall not be declared and shall be kept in a sealed cover until further orders of this Court.
3. When this matter came up for hearing on admission, considering the case involved and the career of the students, this Court thought it fit to hear this petition, finally, at the stage of admission. Accordingly, parties were directed to complete their pleadings and thereafter the matter was taken up for final disposal at the stage of admission.
4. The petitioners contended that they have taken admission to the Two Years Diploma Course in Agriculture in the academic year 2001-2002 and have successfully passed the first year of the said course. The petitioners contended that they were sincere in attending their classes and they did not remain absent from the school, it is further contended that at no point of time they were informed by the school management about inadequacy of their attendance. Petitioners submitted that they appeared in the final examination conducted from 4th March, 2003 to 6th March, 2003. The roll number allotted to the first petitioner was ’20’, whereas roll number allotted to the second petitioner was ‘5’. The petitioners also contended that they were permitted to appear for practical classes and their practical books were also examined and certified by the Class Teacher. The copies of the certificates issued by the Class Teacher are filed on record. The petitioners contended that had their attendance been inadequate they would not have been permitted to attend the practical classes and their practical books would not have been examined and/or certified by the Class Teacher. The petitioners have also made certain wild allegations with regard to demand of illegal gratification and tried to contend that the students who were extremely irregular were shown to have attendance of more than 85%. Since the petitioners refused to concede to the illegal demand, the examination forms were refused to them on false and frivolous reason of absenteeism.
5. On being noticed, respondent Nos. 1 and 2 filed their written submissions to oppose this petition and contended that the petitioners used to remain absent from the classes and their attendance is much below 70%, as such the petitioners were not entitled to claim right to appear for the examination. So far as the practical examination in the practical subjects is concerned, it is contended that the petitioners were inadvertently permitted to appear for the practical examination and by mistake their practical books were examined. It was also contended that the action has been taken against the teacher, who allowed these students to appear for the practical examination. In support of the submission made and in order to demonstrate that the attendance was inadequate, the monthly attendance register for the period June, 2002 to March, 2003 was produced for our perusal.
6. Learned counsel appearing for the petitioners, in rejoinder, sought to contend that the attendance register produced is a new brand register and perusal thereof would show that the said register was prepared and filled in one sitting. It was also sought to be contended that had this register been handled for a complete academic year, the register would not have been in such excellent condition. It was also sought to be pointed out that the handwriting and the ink used would demonstrate that the said register has not been maintained in the usual course of teaching. In order to bring home his submission, learned counsel for the petitioners had prayed that the similar attendance register maintained by the other class teacher be summoned and compared with the attendance register with which the present petitioners are concerned. The contention raised by the learned counsel for the petitioners found favour with us. Accordingly, attendance register maintained by other class teacher was summoned. Respondent Nos. 1 and 2 produced attendance register meant for the first year Diploma Course. After having perused the attendance register produced by respondent Nos. 1 and 2 with that of the attendance register with which the petitioners are concerned, we are prima facie of the opinion that the contention raised by learned counsel for the petitioners cannot be said to be wholly unjustified. However, we do not propose to go in to all these disputed questions.
7. Be that as it may, the undisputed fact remains that the petitioners were allowed to appear for the practical examination. If that be so, in our opinion, they cannot be denied right to appear for the written examination. The petitioners cannot be allowed to suffer for the mistake on the part of the teachers. Had the attendance of the petitioners been short, they would not have been permitted to attend their practical examination. The fact that they were allowed to appear for practical examination goes to suggest that their attendance was found adequate.
8. The High Court of Madhya Pradesh had occasion to deal with a similar situation and there is a plethora of precedents on the subject. The case of Purushottamdas Dulichand Zargar v. Board of Secondary Education, Wright Town, Jabalpur, , related to a student who was allowed to appear for the practical examination on the basis of the Admission Card issued by the Board which was cancelled before theory examination on the ground that the Board had noticed on examination of his application that he was deficient in attendance, which deficiency was neither condoned nor was condonable under the new Regulations that applied. Same practical difficulty about inability to examine admission forms before commencement of examination was raised by the M.P. Board in that case also. The Court ruled :
“The fact that the applicant was allowed to appear for practical examination and was allotted a roll number must be taken as having the necessary implication that the deficiency in the petitioner’s attendance was such which could be condoned and was condoned under the regulations which were applicable to him. Therefore, if the new regulations applied to him, then it must be taken that the deficiency in the applicant’s attendance was such which was within the power of the Chairman to condone.
For all these reasons, we are of the opinion that the opponents were under an obligation to permit the petitioner to take theory examination when they had allowed him to appear for the practical examination in Physics and Chemistry and when he had been allotted a roll number.” The above decision was followed by the said High Court in the case of Permji Bhai Ganesh Bhai Kshatriya v. Vice Chancellor, Ravishankar University, Raipur, .
9. The Apex Court had an occasion to deal with similar situation in the case of Shri Krishan v. The Kurukshetra University, Kurukshetra, . That was a case inter alia of shortage of requisite percentage of attendance in the LL.B. Part I course. It was neither a case of suggestion falsi nor of suppressio veri by a student. He was allowed to participate in LL.B. Part I examination and so also in the subsequent examination but his result was withheld on the ground that he had failed to attend the prescribed course of lectures and was, therefore, not qualified to appear for LL.B. Part I examination. The Apex Court held that once the student was allowed to appear at the examination the Board had no jurisdiction to cancel the candidature for that examination. The following observations are to point:
“It is, therefore, manifest that once the appellant was 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 applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear.”
In that case the Apex Court approved the view taken by the Madhya Pradesh High Court in the case of Premji Bhai (supra).
10. Once again the Apex Court had an occasion to deal with the situation of this type in the case of Sanatan Gauda v. Berhampur University and Ors., . In that case the student was allowed to appear for LL.B. examination but his result was withheld on the ground that he was not qualified to be admitted to the LL.B. course in view of his securing less than required 40% aggregate in the Degree Examination. Orissa High Court had upheld the decision of the Board. The Apex Court set aside the said judgment holding, firstly, that since the student was a Post Graduate, the rule of aggregate of 40% in the Degree course did not apply and even if it applied, the University was estopped from refusing to declare the result of the examination, having permitted him to appear in the examination in the background and the fact that the student had disclosed his aggregate marks along with the application for admission to the college, and was not guilty of any fraud or misrepresentation. It is observed :
“It was bounden duty of the University to have, scrutinised the matter thoroughly before permitting the appellant to appear at the examination and not having done so it cannot refuse to publish his results.”
11. In pursuance of the order of this Court the results of the petitioners, who were allowed to appear for the final examination; by way of interim order, were produced before us in a sealed cover. Having opened the sealed cover, we found that both the students are successful in second year examination. In this view of the matter, to prevent loss of academic year, considering the educational career of the students and keeping in view the settled law, we quash and set aside the impugned order detaining the petitioners for want of sufficient attendance.
12. In the result, petition is allowed. The respondents are directed to declare the results of the petitioners.
Accordingly, rule is made absolute with no order as to costs.