The rejection of condonation should have been done before the examination started, and serious illnesses not provided in the Bye-laws can also be considered for condoning lack of attendance.

Shekhar B. Saraf, J.

1. This is an application under Article 226 of the Constitution of India wherein the writ petitioner is a student of Kendriya Vidyalaya, Fort William, Kolkata. The writ petitioner had approached this Court by filing this writ petition being aggrieved by the action of the respondent authorities who had withdrawn his admit card subsequent to his having sat in one examination for the remainder of the examination. The same had been done on the ground that he did not have sufficient percentage of attendance. By an order dated March 16, 2017 and July 14, 2017 he had been allowed to sit in the remaining examination.

2. The facts giving rise to this writ petition are that the petitioner had been absent on several occasions and had only 52% attendance in the academic year 2016-17. The parent of the student had made a request to the Principal on February 9, 2017 explaining the reason for his lack of attendance and sought condonation of the same. The Principal in turn wrote to the Regional Officer, Central Board of School Education on February 10, 2017 recommending the condonation of shortage of attendance.

3. Subsequently, the petitioner had received the admit card and had taken the first test on March 8, 2017 in the subject of social science. Thereafter, abruptly without any explanation, the Board had sent a letter dated March 9, 2017 restraining the petitioner from appearing in the examination for the academic year.

4. The Board also by a letter dated March 10, 2017 had written to the Principal deprecating the fact that the admit card had been released to the petitioner without the approval of the Board.

5. Counsel on behalf of the writ petitioner placed reliance on judgment of the Calcutta High Court passed by His Lordship the Hon'ble Justice Biswanath Somadder in the case of Payel Sarkar v. Central Board of Secondary Education & Ors. AIR 2010 Cal 74 : (2010) 2 CHN 187 wherein His Lordship had considered the bye-law 14 of the Examination Bye-law 1995 and held that the Bye-law was merely indicative or illustrative and not exhaustive. The relevant paragraphs that include the said bye-law are provided below:-

"15. In the facts of the instant case, the learned advocate for the Board submits that the Principal of the school, vide letter dated 5th February, 2010, informed the Board that the case for condonation of shortage of attendance had not been recommended since the writ petitioner remained irregular throughout the session without any valid reason and that she was not suffering from any of the diseases mentioned in the C.B.S.E. Byelaws. The learned advocate for the Board further submits that since the Principal of the School did not consider the writ petitioner's case for condonation of shortage of attendance arid make a recommendation, the Chairman of the Board could not use his discretionary power and allow the writ petitioner to appear for the ensuing AISSCE-2010. In this regard, learned advocate refers to Rule 14 of the Examination Bye-laws, 1995, relating to condonation of shortage of attendances, which reads as under:-

"14. Rules for Condonation of Shortage of Attendance

(i) If a candidate's attendance falls short of the prescribed percentage, the Head of the School may submit his name to the Board provisionally. If the candidate is still short of the required percentage of attendance within three weeks of the commencement of the examination, the Head of the Institution shall report the case to the Regional Officer concerned immediately. If in the opinion of the Head of the Institution, the candidate deserves special consideration, he may submit his recommendation to the Regional Officer concerned not later than three Weeks before the commencement of the examination for condonation of shortage in attendances by the Chairman, CBSE, who may issue orders as he may deem proper. The Head of the School in his letter requesting for condonation of shortage in attendance, should give the maximum possible attendance