Bombay High Court
Thakur Village vs The State Of Maharashtra on 6 July, 2009
Author: S.C. Dharmadhikari
Bench: Swatanter Kumar, S.C. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1086 OF 2009
ALONG WITH
WRIT PETITION (LODGING) NOS. 1203 OF 2009, 1204 OF 2009,
1206 OF 2009, 1208 OF 2009, 1211 OF 2009 AND WRIT
PETITION NO.5391 OF 2009 (A.S.)
WRIT PETITION NO. 1086 OF 2009
Viraj Maniar, age 42 years
of Mumbai, Indian Inhabitant
)
)
residing at D-805, Cosmos, Valley of Flower )
Thakur Village, Kandivali (East) )
Mumbai 400 101. )..Petitioner
Versus
1) The State of Maharashtra )
Summons/Notice/s to be served on )
learned Government Pleader appearing )
for the State of Maharashtra under )
Order XXVIII, Rule 4 of the Code of )
Civil Procedure, 1908. )
2) The Minister of Education )
State of Maharashtra, Mantralaya )
Mumbai 400 032. )
3) The Department of Education )
State of Maharashtra through the )
Secretary, Mantralaya, Mumbai 400 032. )
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4) The Maharashtra State Board of )
Secondary and High Secondary Education )
Shivaji Nagar, Pune 411 005. )..Respondents
Mr. Iqbal Chagla, Senior Advocate, a/w Mr. Janak Dwarkadas,
Senior Advocate, Mr. Prateek Sakseria Mr. A.A. Joshi, Mr. Snehal
Shah and Mr. Lynn Pereira i/by Mr. Nivit Srivastava, for the
Petitioner.
Mr. K.K. Singhvi, Special Counsel, Mr. A.Y. Sakhare, Special Counsel
with Mr. D.A. Nalawade, Government Pleader and Mr. G.W. Mattos,
Assistant Govenment Pleader for the State.
Mr. S.H. Aney, Senior Advocate, a/w Mr. Y.S. Jahagirdar, Senior
Advocate, Mr. A.A. Khumbhakoni, Mr. Mihir Desai, Mr. Deepak Salvi,
Mr. S.S. Kantekar and Ms.Bhagyashree Joshi for the
Intervenors/Applicants in the Chamber Summons.
ALONG WITH
WRIT PETITION (LODGING) NO. 1203 OF 2009
1) The Association of ICSE Schools of )
Maharashtra having its registered address )
at Green Lawns High School, Bomanji )
Petit Road, Mumbai 400 026. )
2) Mrs. Kiran Bajaj, Principal of Green Lawns )
High School having its address at 1, )
Bomanji Petit Road, Mumbai 400 026. )
3) Alipt Abhay Doshi through his legal )
guardian Mr. Abhay Doshi )
3rd Floor, "Echjay House", 31-A )
Carmichael Road, Mumbai 400 026. )..Petitioners
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Versus
1) State of Maharashtra through the )
Department of Education and Sports )
Annex Building, Mantralaya, )
Mumbai 400 032. )
2) Director, Board of Secondary & Higher )
Secondary Education, Maharashtra having )
his office at Shivajinagar, Pune 411 005 )
Maharashtra through Department of )
Education and Sports, Annex Building
ig )
Mantralaya, Mumbai 400 032. )
3) Council for the Indian School Certificate )
Examinations, Pragati House, 3rd Floor )
47-48, Nehru Place, New Delhi 110 505. )
4) Central Board of Secondary Education )
PS-1-2, Institutional Area, I.P. Extn., )
Patparganj, Delhi 110 092. )..Respondents
Mr. N.H. Seervai, Senior Advocate, a/w Mr. S.H. Mehta,
Mr.Sharan Jagtiani and Mr. Mohit Arora i/b. Desai & Diwanji for the
Petitioners.
Mr. T.N. Subramaniam with Mr. Naushad Engineer for the ICSE
Board.
Mr. K.K. Singhvi, Special Counsel, Mr. A.Y. Sakhare, Special Counsel
with Mr. D.A. Nalawade, Government Pleader and Mr. G.W. Mattos,
Assistant Govenment Pleader for the State.
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ALONG WITH
WRIT PETITION (LODGING) NO. 1204 OF 2009
1) Nimoy Sanjay Kher, Age 15, Minor )
through Mr. Sanjay Kher being natural )
guardian of minor, residing at 79, Patrakar )
Colony, M. Kelkar Marg, Bandra (East) )
Mumbai 400 051. )
2) Aakash Bipin Gandhi, Age 15, Minor )
through Kalpana Bipin Gandhi being )
natural guardian of minor, residing at )
407, Rajneelam 'B', Dr. Rajabali Patel )
Road, Breach Candy, Mumbai 400 026. )
3)
Urvakhsha Rayomand Tavadia
Age 15, Minor, through Mehernaz
)
)
Rayomand Tavadia being natural guardian )
of minor, residing at Sir Ratan Tata )
Building No.11, B Block, Room 9, Sir C.J. )
Colony, Tardeo, Mumbai 400 034. )
4) Jamshir Goorabian, Age 15, Minor )
through Shehernaz Goorabian being )
natural guardian of minor, residing at )
Q/9, Godrej Baug, Off. Napean Sea Road )
Mumbai 400 036. )
5) Meherzad Zubin Mogrelia, Age 15, Minor )
through Khushnaaz Zubin Mogrelia being )
natural guardian of minor, residing at )
Q/27, Godrej Baug, Off. Napean Sea Road )
Mumbai 400 036. )
6) Stuthi Vasudevan, Age 15, Minor )
through Ms. Usha Vasudevan being )
natural guardian of minor, residing at )
4, Rajmayur, 19th Road, Khar (West) )
Mumbai 400 052. )
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7) Saachi Nitin Jayawant, Age 15, Minor )
through Nitin Jayawant being natural )
guardian of minor, residing at 12, Sea )
Breeze, Bullock Road, Band Stand, )
Bandra, Mumbai 400 050. )
8) Pranay Lalit Gianchandani, Age 14 Minor )
through Lalit Gianchandani being natural )
guardian of minor, residing at 101, Blue )
Diamond, Perry Cross Road, Bandra (West) )
Mumbai 400 050. )
9) Aditi Rajesh Ahuja, Age 15, Minor )
through Mr Rajesh Ahuja being natural
ig )
guardian of minor, residing at 1102/B )
Tirupati Apartments, Opp. Mahalaxmi )
Temple, B.D. Road, Mumbai 400 026. )
10) Jash Bangdiwala, Age 15, Minor, )
through Ms. Ketki Bangdiwala being )
natural guardian of minor, residing at )
E3, Mutual Society, Mughal Lane, Mahim )
Mumbai 400 016. )
11) Gayatri Vora, Age 15, Minor, )
through Chandrika Vora being natural )
guardian of minor, residing at 276, Ganesh )
Bhuvan, Telang Road, Matunga, )
Mumbai 400 019. )
12) Yash Rajyaguru, Age 15, Minor, )
through Atul Chandulal Rajyaguru being )
natural guardian of minor residing at B/12 )
Sai Niketan, Saibaba Complex, Mohan )
Gokhale Road, Goregaon (East), )
Mumbai 400 063. )
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13) Pranav Pathak, Age 15, Minor, )
through Paresh Pankaj Pathak being )
natural guardian of minor, residing at )
204, Building No.A.-44, Bodhi Niwas CHS )
Ltd., Gokuldham, Goregaon (East) )
Mumbai 400 063. )
14) Akshay Amit Gupta, Age 15, Minor, )
through Vaishali Amit Gupta being natural )
guardian of minor, residing at Jolly Makers )
Apartment No.1, Tower B Flat No.23 )
Mumbai 400 005. )
15) Bhavik Nikhil Merchant, Age 15, Minor )
through Panna Nikhil Merchant being
ig )
natural guardian of minor, residing at 52, )
Marble Arch, Peddar Road, Mumbai 400001)
16) Mihir Janak Sheth, Age 15, Minor )
through Janak Sheth being natural guardian)
of minor, residing at 802, Nepean House )
Nepean Sea Road, Mumbai 400 006. )
17) Sahil Amit Mehta, Age 15, Minor )
through Amit Mehta being natural guardian )
of minor, residing at 501, Mangal Kunj )
No.2, Mt. Pleasant Road, Malabar Hill )
Mumbai 400 006. )
18) Anant Shishir Goyal, Age 15, Minor )
through Shishir Goyal being natural )
guardian of minor, residing at 201, )
Nepean Sea Road, Mumbai 400 006. )
19) Zarir Noshir Marfatia, Age 15, Minor )
through Meher Marfatia being natural )
guardian of minor, residing at 33, Peacock )
Palace, 69 Bhulabhai Desai Road, )
Mumbai 400 026. )
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20) Manan Avani Shah, Age 15 Minor )
through Dr.Avani Shah being natural )
guardian of minor, residing at 1A, Nalanda )
62, Peddar Road, Mumbai 400 026. )
21) Mirant Raju Shah, Age 15, Minor, )
through Mrs. Chetna Shah being natural )
guardian of minor, residing at B-2/44 )
Technocrat, Twin Tower Lane, Opp. )
Siddhivinayak Temple, Prabhadevi )
Mumbai 400 025. )
22) Kunal Vinayak Gawande, Age 15, Minor )
through Dr. Madhuri Gawande being
ig )
natural guardian of minor, residing at E-6 )
Prathamesh, Twin Tower Lane, Opp. )
Siddhivinayak Temple, Prabhadevi )
Mumbai 400 025. )
23) Shraddha Sanjay Shah, Age 15, Minor, )
through Sanjay Shah being natural guardian)
of minor, residing at 401, Rajesh Park )
RB Mehta Marg, Ghatkopar (East) )
Mumbai 400 077. )
24) Vidhi Mehta, Age 16, Minor, through )
Falguni Mehta being natural guardian of )
minor, residing at 904, Kalindi, Nelkanth )
Valley, Rajawadi, Ghatkopar (East) )
Mumbai 400 077. )
25) Siddharth Mehta, Age 16, Minor, )
through Manisha Mehta being natural )
guardian of minor, residing at 45, Shakti )
Praja Co-op. Hsg. Soc., Rajawadi )
Ghatkopar (E), Mumbai 400 077. )
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26) Jugal Shah, Age 15, Minor, through )
Jagruti Shah being natural guardian of )
minor, residing at A-5, Mahavir Villa )
Plot No.119, Garodia Nagar, )
Ghatkopar (East), Mumbai 400 077. )
27) Niti Doshi, Age 15, Minor, through )
Nikunj Doshi being natural guardian of )
minor, residing at 12, Nand Smruti, )
Vallabh Baug Lane, Ghatkopar (East) )
Mumbai 400 077. )
28)
Krishi Shah, Age 15, Minor, through
Jiten Shah being natural guardian of minor
)
)
residing at 6, Vidya Villa, Joshi Lane )
Ghatkopar (East), Mumbai 400 077. )
29) Dhvani Shah, Age 16, Minor, through )
Priti Shah being natural guardian of minor )
residing at 11, Rekha Bldg., 2nd Floor, Opp. )
Balaji Mandir, Tilak Road, Ghatkopar (East))
Mumbai 400 077. )
30) Zeal Ganatra, Age 15, Minor, through )
Urvashi Ganatra being natural guardian of )
minor, residing at A 802, Presidential )
Towers, LBS Marg, Ghatkopar (East) )
Mumbai 400 086. )
31) Snigdha A Asher, Age 16, Minor, through )
Anjan M Asher being natural guardian of )
minor, residing at 2-3, Rambha Apartments )
Khokhani Lane, Ghatkopar (East) )
Mumbai 400 007. )
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32) Priyanka Bharat Pandya, Age 15, Minor )
through Bharat K Pandya being natural )
guardian of minor, residing at A-2, 403 )
Tirupati Apts., CS Road No.5, Dahisar )
(East), Mumbai 400 068. )
33) Devanshi Mohit Shah, Age 15, Minor )
through Mohit N. Shah being natural )
guardian of minor, residing at A-802 )
Gurukul Towers, Jaywant Sawant Road )
Dahisar (West), Mumbai 400 068. )
34) Krimika Pramod Parekh, Age 15, Minor )
through Pramod Parekh being natural
ig )
guardian of minor, residing at 101, Yogesh )
Tower, Chikuwadi, Simpoli Village )
Borivali (West), Mumbai 400 092. )
35) Anmol Virani, Age 15, Minor, through )
Anju Virani being natural guardian of )
minor, residing at 32, Anupam, 3rd Floor )
11 Manav Mandir Road, Malabar Hill )
Mumbai 400 006. )
36) Labdhi Turakhia, Age 15, Minor, through )
Paru S. Turakhia being natural guardian )
of minor, residing at 202, Anurag, )
9 Banganga Cross Lane, Walkeshwar )
Mumbai 400 006. )
37) Saloni Doshi, Age 15, Minor, through )
Sushma P Doshi being natural guardian of )
minor, residing at 301, Rajul Apartment )
'A' Wing, J.M. Mehta Marg, )
Mumbai 400 006. )
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38) Dhruvi Vijaykumar Narsaria, Age 15 )
Minor, through Vijaykumar Omprakash )
Narsaria, being natural guardian of minor )
residing at 122A, Karachi CHS, Juhu )
Versova Link Road, Mumbai. )
39) Pranav Dedhia, Age 15, Minor, through )
Mrs. Mukta Dedhia residing at 601, )
Siddharudh Bhuvan, 12th Road, Khar )
(West), Mumbai 400 052. )
40) Sahil Satyan Purohit, Age 15, Minor, )
through Satyen Purohit being natural )
guardian of minor, residing at 2/2, Dinath )
Court, 71 Sir Pochkanwala Road, Worli
ig )
Mumbai 400 030. )
41) Vijit Nanda, Age 15, Minor, through )
Ritu Nanda, being natural guardian of )
minor, residing at 12A, Lands End )
Doongarsi Road, Mumbai 400 006. )
42) Vivek Merchant, Age 15, Minor, through )
Parool Merchant being natural guardian )
of minor, residing at A/5, Sneha Sadan )
Gamadia Road, Mumbai 400 026. )
43) Nihal Dharmendra Mehta, Age 15, Minor )
through Dharmendra Mehta being natural )
guardian of minor, residing at 603, Saket )
Tower No.3, K.K. Marg Extention )
Thane (West) 400 601. )
44) Anushi Shah, Age 15, Minor, through )
Monali Shah being natural guardian of )
minor, residing at 27/28, Giriraj Building )
7th Floor, 201 Walkeshwar Road )
Mumbai 400 006. )
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45) Kruti Shah, Age 15, Minor, through )
Alpa Shah being natural guardian of minor )
residing at 209, Chandralok A, 97 Nepean )
Sea Road, Mumbai 400 006. )
46) Jagruti Bhagat, Age 16, Minor, through )
Kanan Bhagat being natural guardian of )
minor, residing at 23, Hughes Road, Hill )
View, 1st Floor, Mumbai 400 007. )
47) Mayuri Tawde, Age 15, Minor, through )
Mr. Mahendra Tawde, being natural )
guardian of minor, residing at C-63 )
Punarvasu, Sector 3, Srishti Complex )
Mira Road (East), Thane.
ig )
48) Aarushi Oberoi, Age 15, Minor, through )
Mrs. Suresh Oberoi being natural guardian )
of minor, residing at 403, Bldg. No.7 )
Shree Shashwat, Mira Bhayander Road )
Thane 401 107. )
49) Shreyas Sudhindra Kulkarni, Age 15 Minor )
through Mr. Sudhindra Kulkarni being )
natural guardian of minor residing at A-24 )
Kanya, Sector 5, Srishti Complex, Mira )
Road (East), Thane. )
50) Pratham Girish Shah, Age 15, Minor, )
through Mrs. Dipti Shah being natural )
guardian of minor, residing at B-72 )
Yamuna, Sector 3, Srishti Complex )
Mira Road (East), Thane. )
51) Vivek Rai, Age 15, Minor, through )
Mrs. R.T. Rai, being natural guardian of )
of minor, residing at Flat No.63, Paravat )
Sector 3, Srishti Complex, Mira Road East )
Thane. )
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52) Mohit Vasanta Nair, Age 15, Minor )
through Mr Vasanta Nair being natural )
guardian of minor, residing at B-41 )
Ashlesha, Sector 3, Srishti Complex )
Mira Road (East), Thane 401107. )
53) Shruthy George, Age 15, Minor, through )
Mrs. Shirly George, being natural guardian )
of minor, residing at A-14, Ashmant )
Sector 3, Srishti Complex, Mira Road East )
Thane 401107. )
54) Akanksha Desai, Age 15, Minor, through
ig )
Mrs. Namitha Desai being natural guardian )
of minor residing at B-12, Mira, Sector 3 )
Srishti Complex, Mira Road (East) )
Thane 401107. )
55) Karishma Shetty, Age 15, Minor, through )
Mrs. Malti Shetty being natural guardian )
of minor, residing at A-11, Punarvasu )
Sector 3, Srishti Complex, Mira Road East )
Thane 401107. )
56) Mohak Manish Poddar, Age 15, Minor )
through Manish Poddar being natural )
guardian of minor, residing at 25, Shreyas )
4th Floor, Opposite Air India, Nariman )
Point, Mumbai 400 020. )
57) Simran Ketan Sanghvi, Age 15, Minor )
through Ketan Sanghvi being natural )
guardian of minor, residing at 1701, )
Avarsekar Heights, 130, Dr. Annie Besant )
Road, Worli, Mumbai 400 018. )
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58) Simran Yogendra Khanna, Age 13, Minor )
through Yogendra Khanna being natural )
guardian of minor, residing at 2002 )
Shubada Building, Pochkhanawala Road )
Road, Worli, Mumbai 400 030. )
59) Niriksha Nandini Mehta, Age 15, Minor )
through Nandini Mehta being natural )
guardian of minor, residing at 1001, )
Midtown Apartments, B.G. Kher Marg )
Worli, Mumbai 400 018. )
60) Ms Meenakshi Chirawawala residing at )
801-B, Tirupati Apartments, B, Desai Road )
Mumbai 400 026.
ig )
61) Mrs. Kamal Navroze Pantaki )
residing at Beach View, 93 B. Desai Road )
Mumbai 400 026. )
62) Pheroze Adi Dhanbhoora )
residing at 16-D, Ismail Building )
381, Dr. D.N. Road, Fort, Mumbai 400001 )..Petitioners
Versus
1) The State of Maharashtra )
through the Department of Education )
and Sports, having its office at Annex )
Building, Mantralaya, Mumbai 400 020. )
2) Director of Board of Secondary and Higher )
Education, Maharashtra, having its office )
at Shivaji Nagar, Pune 411 005 )
Maharashtra through the Department of )
Education and Sports, Annex Building )
Mantralaya, Mumbai 400 020. )
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3) Council for the Indian School Certificate )
Examinations, Pragati House, 3rd Floor )
47-48, Nehru Place, New Delhi 110 505. )
4) Central Board of Secondary Education )
PS-1-2, Institutional Area, I.P. Extn. )
Patpargang, Delhi 110 092. )..Respondents
Mr. Janak Dwarkadas, Senior Advocate with Mr. Milind Sathe,
Senior Advocate, Ms.Rajani Iyer, Mr.M.S. Doctor, Mr.Nimay Dave,
Mr. R.R. Shetty, Mr. Parag Patil, Ms. Viloma Shah i/by M/s. Hariani
& Co. for the Petitioners.
Mr. Shyam Divan, Senior Advocate with Ms. Deepa Chavan, Mr. K.J.
Gandhi, Ms. Rohini Karol i/by M/s. Little & Co. for SSC Board.
Mr. K.K. Singhvi, Special Counsel a/w Mr.A.Y. Sakhare, Special
Counsel, Mr. D.A. Nalawade, Government Pleader and Mr. G.W.
Mattos, Assistant Government Pleader for the State.
ALONG WITH
WRIT PETITION (LODGING) NO. 1206 OF 2009
1) Vibgyor High School, a private unaided )
school situated at Motilal Nagar-1 )
Shrirang Sabde Marg, Goregaon West )
Mumbai 400 104. )
2) St. John's Universal School )
a private unaided school situated at )
S.V. Road, Goregaon West )
Mumbai 400 104. )..Petitioners
Versus
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1) The State of Maharashtra )
High Court, Bombay. )
2) The Minister of Education )
State of Maharashtra, Mantralaya )
Mumbai 400 032. )
3) The Department of Education
State of Maharashtra, through the )
Secretary, Mantralaya, Mumbai 400 032. )..Respondents
Mr. Iqbal Chagla, Senior Advocate, with Mr. Pratik Sakseria and Mr.
I.S. Nankani i/by M/s. Nankani & Associates for the Petitioners.
Mr. K.K. Singhvi, Special Counsel, Mr.A.Y. Sakhare, Special Counsel,
Mr. D.A. Nalawade, Government Pleader and Mr. G.W. Mattos,
Assistant Government Pleader for the State.
ALONG WITH
WRIT PETITION (LODGING) NO. 1208 OF 2009
Devanshi Jaiswal through Ashish Bhakta )
being the guardian of the minor of Mumbai )
Indian Inhabitant, residing at 4, Sagar )
Villa, 38, Bhulabhai Desai Road )
Mumbai 400 026. )..Petitioner
Versus
1) The State of Maharashtra )
Summons/Notice/s to be served on )
Learned Government Pleader )
appearing for the State of )
Maharashtra under Order XXVIII )
Rule 4 of the Code of Civil )
Procedure, 1908. )
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2) The Minister of Education )
State of Maharashtra )
Mantralaya, Mumbai 400 032. )
3) The Department of Education )
State of Maharashtra through the )
Secretary, Mantralaya )
Mumbai 400 032. )..Respondents
Mr. Aditya Thakkar with Mr. S. Mulani i/by M/s. Mulani & Co. for
the Petitioner.
Mr. K.K. Singhvi, Special Counsel, Mr. A.Y. Sakhare, Special Counsel,
with Mr. D.A. Nalawade, Government Pleader and Mr. G.W. Mattos,
Assistant Government Pleader for the State.
ALONG WITH
WRIT PETITION (LODGING) NO. 1211 OF 2009
1) Jainish M Chhajed, Age 16, Minor )
through Mr Motilal Chhajed being )
natural guardian of minor, residing )
at B-707, Hiradham, Sundervan )
Complex, Lokhandwala, Andheri (W) )
Mumbai 400 058. )
2) Utkarsh Deepak Arora, Age 16, Minor )
through Mr Deepak Arora being natural )
guardian of minor, residing at 405-B )
Tranquicity, Shastri Nagar, Andheri (West) )
Mumbai 400 053. )
3) Upasana Ravi Arora, Age 16, Minor, )
through Mr Ravi Arora being natural )
guardian of minor, residing at 105 )
Cumballa Crest, 42, Peddar Road )
Mumbai 400 026. )
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4) Chintan Jaypal Gupta, Age 15, Minor )
through Mr Jaypal Gupta being natural )
guardian of minor, residing at Ram Kunj )
Vallabhbhai Patel Road, Santacruz (West) )
Mumbai 400 054. )
5) Kretikka Sanjay Sabharwal, Age 16, Minor )
through Mr Sanjay Sabharwal being natural )
guardian of minor, residing at 21, Venus )
Apartments, A Soares Road, Chembur )
Mumbai 400 076. )
6) Akshita Vinay Chopra, Age 15, Minor )
through Mr Vinay Chopra being natural )
guardian of minor, residing at D/12
ig )
Evershine No.2 J.P. Road, Andheri (West) )
Mumbai 400 053. )
7) Nishika D'Silva, Age 16, Minor, through )
Ms Sangita D'Silva being natural guardian )
of minor, residing at Plot 502, Clare Villa )
7th Floor, Road No.13, Chembur )
Mumbai 400 071. )
8) Chistina Bird, Age 15, Minor, through Mrs. )
Pranoti Kumar Bird being natural guardian )
of minor, residing at B-702 Gaurav Regency )
Beverly Park, Mira Road (East), Thane. )
9) Riddhima Rajiv Beri, Age 16, Minor through)
Mr Rajiv Beri being natural guardian of )
minor, residing at 501, Gold Crown, J.P. )
Road,Versova,Andheri (W) Mumbai 400061)
10) Shrinivas Chintamani Sane, Age 16, Minor )
through Mr Chintamani Sane being natural )
guardian of minor, residing at 5/3, Shah )
Building, T.H. Kataria Marg, Bhagat Lane )
Mahim, Mumbai 400 016. )
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11) Shardula Sanjay Gawankar, Age 16, Minor )
through Mr Sanjay Gawankar being natural )
guardian of minor, residing at D/6, Shree )
Balgovind CHS Ltd., Bhagat Lane, Mahim )
Mumbai 400 016. )
12) Shloka Sandeep Shirali, Age 16, Minor )
through Dr. Sandeep Shirali being natural )
guardian of minor, residing at 12-A )
Silverine, G-1, S.V. Savarkar Marg )
Dadar (West), Mumbai 400 028. )
13) Shraddha Chittaranjan Bhave, Age 16 )
Minor, through Dr. Chittaranja Bhave being )
natural guardian of minor, residing at )
787/D-80, M.I.G. Colony, Bandra (East)
ig )
Mumbai 400 051. )
14) Chinmay Hemant Bawdhankar, Age 16 )
Minor, through Mr Hemant Bawdhankar )
being natural guardian of minor, residing )
at Tulsi Building, 4th Floor, 122, Khetwadi )
Back Road, Mumbai 400 004. )
15) Vidur Chhabra, Age 15, Minor, through )
Ms. Sukanya Chhabra being natural )
guardian of minor, residing at 701/A )
Deepali, St. Cyril Road, Bandra (West) )
Mumbai 400 050. )
16) Nishita Vora, Age 15, Minor, through Mrs. )
Kiran S. Vora being natural guardian of )
minor, residing at 7/53, Om Dariya Mahal )
No.3, 80, NepeanSea Road Mumbai400 006.)
17) Janavi Higesh Soni, Age 15, Minor )
through Mrs. Hetal Soni being natural )
guardian of minor, residing at Burjor )
Building, 1st Floor, R.No.21, 4th Wadia )
Street, Tardeo, Mumbai 400 034. )
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19
18) Kosha Ketan Amin, Age 15, Minor )
through Mr Ketan Amin being natural )
guardian of minor, residing at 91/L )
Banganga, Walkeshwar, Mumbai 400 006. )
19) Dhwani Paresh Doshi, Age 15, Minor )
through Mrs. Neela P. Doshi being natural )
guardian of minor, residing at Maniyar )
Building, A/1, 63, 6th Floor, Tardeo Road )
Mumbai 400 034. )
20) Poojan Kashmiri, Age 16, Minor, through )
Kavita Kashmiri being natural guardian of )
minor, residing at 25/26, Prem Milan Bldg.
ig )
3rd Floor, N.S.Road, Mumbai 400 006. )
21) Trishla Kothari, Age 15, Minor, )
through Mrs. Rakhi Kothari being natural )
guardian of minor, residing at 208/B )
Shantinagar, Nepeansea Road )
Mumbai 400 006. )
22) Aashna P. Shah, Age 16, Minor through )
Mrs. Sonali Shah being natural guardian )
of minor, residing at 32-A, Prem-Milan )
87-B, Nepeansea Road, Mumbai 400 006. )
23) Pankti K. Shah, Age 15, Minor, through )
Mrs. Shaila K. Shah being natural guardian )
of minor, residing at 2/25, Shivsagar Bldg. )
106, Walkeshwar Road, Mumbai 400 006. )
24) Prachi K. Shah, Age 15, Minor through )
Mrs. Shaila K. Shah being natural guardian )
of minor, residing at 2/25, Shivsagar )
Building, 106, Walkeshwar Road, )
Mumbai 400 006. )
::: Downloaded on - 09/06/2013 14:44:51 :::
20
25) Kineree Sujeet Shah, Age 15, Minor )
through Mrs. Bharati S. Shah being natural )
guardian of minor, residing at 274/90 )
SVP Road, 1/10, Laheri Building, 5th )
Khetwadi Road, Mumbai 400 004. )
26) Saachi Mehta, Age 15, Minor, through )
Mrs. Sarika Mehta being natural guardian )
of minor, residing at 101, Ashoka )
Apartments, 10th Floor, 68, Nepeansea )
Road, Mumbai 400 006. )
27) Rajvi J. Shah, age 15, minor, through )
Mrs. Sonan J. Shah being natural guardian )
of minor, residing at C/40, Om Dariya
ig )
Mahal, 80, Nepeansea Road, )
Mumbai 400 006. )
28) Pragnya Bala Murukesan, Age 15, minor )
through Mrs. Sudha Bala Kurukesan being )
natural guardian of minor, residing at )
D-303, Shimla House, Nepeansea Road )
Mumbai 400 006. )
29) Hetali R. Shah, Age 15, minor through )
Mrs. Preeti R. Shah being natural guardian )
of minor, residing at 5/29, Shri N Ketan )
Building, Chowpati Bandstand )
Mumbai 400 006. )
30) Nidhi G. Jogani, Age 15, minor through )
Mrs. Leena Jogani being natural guardian )
of minor, residing at 2/201, Spenta Tower )
Gowalia Tank, Mumbai 400 036. )..Petitioners
Versus
::: Downloaded on - 09/06/2013 14:44:51 :::
21
1) The State of Maharashtra through the )
Department of Education and Sports )
having its office at Annex Building )
Mantralaya, Mumbai 400 020. )
2) Director of Board of Secondary and Higher )
Education, Maharashtra having its office )
at Shivaji Nagar, Pune 411 005,Maharashtra)
through the Department of Education and )
Sports, Annex Building, Mantralaya )
Mumbai 400 020. )
3) Council for the Indian School Certificate )
Examinations, Pragati House, 3rd Floor
ig )
47-48, Nehru Place, New Delhi 110 505. )
4) Central Board of Secondary Education )
PS-1-2, Institutional Area, I.P. Extn. )
Patparganj, Delhi 110 092. )..Respondents
Mr. Milind Sathe, Senior Advocate, Ms.Rajani Iyer, Mr.M.S. Doctor,
Mr.Nimay Dave, Mr. R.R. Shetty, Mr. Parag Patil and Ms.Viloma
Shah i/b Hariani & Co. for the Petitioners.
Mr. K.K. Singhvi, Special Counsel, Mr. A.Y. Sakhare, Special Counsel,
with Mr. D.A. Nalawade, Government Pleader and Mr. G.W. Mattos,
Assistant Government Pleader for the State.
ALONG WITH
WRIT PETITION NO.5391 OF 2009 (APPELLATE SIDE)
1) Dr. Dilip Baburao Walke, Age 48 years )
Occupation : Doctor, residing at E 1003 )
Rohan Nilay No. 1, Nr. Spicer College )
Aundh, Pune 411 007. )
::: Downloaded on - 09/06/2013 14:44:51 :::
22
2) Ms. Mayuri Dilip Walke, Age 16 years )
Occupation : Student, residing at E 1003 )
Rohan Nilay No.1, Nr. Spicer College )
Aundh, Pune 411 007. )..Petitioners
Versus
1) State of Maharashtra )
Government Pleader, High Court, )
Mumbai. )
2) Union of India )
Aykar Bhavan, Mumbai. )..Respondents
Mr. Jimmy Pochhkhanwala i/by Mr. Amit Karkhanis for the
Petitioners.
Mr. K.K. Singhvi and Mr. A.Y. Sakhare, Special Counsel with Mr. V.S.
Masurkar, Government Pleader and Mr. S.R. Nargolkar, Assistant
Government Pleader, for the State.
Smt. S.V. Bharucha for Respondent No.2.
Mr.J.K. Mistry i/b Mr. Kedar Dighe and Vishal Khanavkar for the
Applicant in Civil Application No.1534 of 2009.
CORAM : SWATANTER KUMAR, C.J. AND
S.C. DHARMADHIKARI, J.
DATED : 6TH JULY 2009
JUDGMENT (PER S.C. DHARMADHIKARI, J.)
Rule. All Writ Petitions are admitted and by consent of parties were heard finally at admission stage. Respondents waive service.
::: Downloaded on - 09/06/2013 14:44:51 ::: 232. By our Order dated 6th July 2009, we had allowed these Writ Petitions. We had recorded our conclusions and set out the reliefs that are granted. We had indicated that detailed reasons will follow. We are now setting out the detailed reasons for our conclusions that are recorded and the reliefs granted by us.
3. In a judgment reported in AIR 1980 SC 820, Dr. Jagdish Saran and others vs Union of India and others, the Hon'ble Supreme Court was considering the challenge to a decision where a rule was prescribed reserving 70% of the seats at Post Graduate level for Delhi Graduates. The remaining 30% was open to all including Graduates of Delhi. This rule was made in April 1978 in modification of the earlier reservation of 48%. The increase compelled the Petitioners to approach the Hon'ble Supreme Court, as Delhi Graduates got favourable treatment. The Supreme Court while considering the challenge of the Petitioners on the ground that considerable reservation or virtual for the Delhi Graduates is ultra vires Article 14 of the Constitution of India. While considering this challenge, the Supreme Court observed thus :
::: Downloaded on - 09/06/2013 14:44:51 ::: 24"17, ....While recognizing, even reverencing, the role of soul force in quickening the callous conscience of authorities to grave injury and used for urgent remedy, we cannot uphold the Delhi University's `reservation' strategy merely because Government was faced with student `fasts' and ministers desired a compromise formula and the University bodies simply said `Amen'. The constitutionality of institutional reservation must be founded on facts of educational life and the social dynamics of equal opportunity. Political panic does not ipso facto, make constitutional logic.
xxxxx xxxxx xxxxx
22. A caveat or two may be sounded even in this approach lest exception should consume the rule. The first caution is that reservation must be kept in check by the demands of competence. You cannot extend the shelter of reservation where minimum qualifications are absent. Similarly, all the best talent cannot be completely excluded by wholesale reservation. So, a certain percentage, which may be available, must be kept open for meritorious performance regardless of university, State and the like. Complete exclusion of the rest of the country for the sake of a province, wholesale banishment of proven ability to open up, hopefully, some dalit talent, total sacrifice of excellence at the altar of equalization - when the Constitution mandates for everyone equality before and equal protection of the law - may be fatal folly, self-defeating educational technology and anti- national if made a routine rule of State policy. A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit - such is the dynamics of social justice which animates the three egalitarian articles of the Constitution.
xxxxx xxxxx xxxxx ::: Downloaded on - 09/06/2013 14:44:51 ::: 25
39. If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like post-graduate courses. After all, top technological expertise in any vital field like medicine is a nation's human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social inconsequences, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporize with the country's development in the vital areas of professional expertise. In science and technology and other specialized fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent lying latent can produce. If the best potential in these fields is cold-shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves.
Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to weed out the worthless."
4. It is contended on behalf of the Petitioners that the State of Maharashtra has not learnt any lessons despite strong indictment ::: Downloaded on - 09/06/2013 14:44:51 ::: 26 of such policies by the Hon'ble Supreme Court of India. Since in matters of admissions to educational institutions, some haphazard, ad-hoc and half hearted decisions are taken which do not meet the constitutional guarantee of equality, students and their parents/guardians are required to approach Courts of law praying that the injustice be removed and the grievances be redressed. It is urged that students have now become innocent victims of decisions which are taken more in political interest rather than academic. It is unfortunate that two groups of students with contrary stands battle it out in Court as a result of the last minute interference by the State in academic matters for the reasons best known to it. After the students approach the Courts of law and substantiate their challenge, often it is said that State's decision in the academic field is interfered by Courts in their writ jurisdiction. State wants to safeguard interests of students, but the Courts are throttling the path. Thus the Courts are blamed for gaining cheap popularity. It is urged that students are suffering in the entire process as they cannot plan their career. Their career is at stake when experiments are carried out by the State in academic field. Students should not be made subject of such experiments like guinea pigs is the submission. It is then urged that ::: Downloaded on - 09/06/2013 14:44:51 ::: 27 the reasons that compel the Courts to interfere are often lost sight of and ignored. It is seriously contended that the decisions of a Court are made subject matter of criticism and some times ridiculed forgetting that it is the duty of the Court to enforce rule of law and in our Constitutional scheme Courts alone can discharge this obligation and duty. If the Constitutional obligation and duty is discharged by Court of law to restore equality, then, one fails to understand as to how it can be said that the Court acts contrary to academic interests.
This is one more example of how the State's last minute shift in policy has led to number of Petitions being filed challenging the State action, is the submission. We say nothing and leave the matter for all concerned to consider.
5. We have already reproduced the Government Resolution which is under challenge in our Order dated 6th July 2009. Each of these Writ Petitions challenge this Government Resolution as being ultra vires Articles 14 and 21 of the Constitution so also violating the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965 and the Regulations framed thereunder.
::: Downloaded on - 09/06/2013 14:44:51 ::: 286. The facts from the lead Writ Petition are enough to appreciate the challenge raised before us. The Petitioner is the father of a minor daughter Ms.Isha V. Maniar who appeared for her X standard/Grade examination conducted by Indian Council for Secondary Education ("ICSE" for short) from Thakur Public School, Mumbai. She secured 76.71% marks. The Petitioner's daughter was desirous of pursuing her studies in the 10+2+3 pattern prevailing in the State of Maharashtra. Therefore, she sought admission to XI standard/First Year Junior College. While she appeared for her examination and even prior to that, there were no restrictions or prohibition in her applying for admission to any Junior Colleges in the State of Maharashtra and more particularly in Mumbai. There was no policy much less of setting apart or reserving any number of seats for students appearing for the same examination (Xth standard) but from a different Educational Board, namely, the Maharashtra Secondary and Higher Secondary Education Board ("SSC" for short).
The Petitioner's daughter was, therefore under genuine and bona fide belief that she would be able to apply for admission to any college of her choice and considering her percentage she would get a preferred ::: Downloaded on - 09/06/2013 14:44:51 ::: 29 college. The averments in the Petition are that after the results were declared, the State announced that it would formulate a policy so that students from all Boards can participate in the admission process. The process was to be On-line Admission process. There was no restriction inasmuch as student passing X standard examination and belonging to any educational Board can apply for admission to colleges of his/her choice. Normally, there is a rush for admission to some preferred or preferential colleges on account of the facilities that are offered, the faculty, the infra-structure, the extra-
curricular activites and the academic atmosphere so also proximity in terms of location. However, the Petitioner and all other parents whose sons and daughters appeared for 10th standard examination from ICSE and CBSE Boards were in for a shock when they came across the Government Resolution. It is alleged that apart from the fact that this decision was taken hastily it also violates the mandate of Article 14 of the Constitution of India. It is contended that there is no distinction made in so far as admission to XI standard and XII (Junior College) in the State of Maharashtra. The State Board and the other Boards who are conducting X standard course within the State of Maharashtra have never been discriminated and students from all ::: Downloaded on - 09/06/2013 14:44:51 ::: 30 Boards were treated equally as far as admission to Junior College is concerned. There was never any reservation or preference to the State Board's students in admission and the process of admission was completed on merit. For the first time an attempt was made to bifurcate the students and the student lot came to be divided Boardwise.
7. In the last year, similar attempt was made by allotting marks to the State Board students but that attempt was struck down by this Court in the case of Francis D Luis v State of Maharashtra (PIL No. 94 of 2008), 2008 (5) Bom. C.R. 569 (hereinafter referred to as "Percentile" case) Therefore, the impugned Government Resolution is bad in law as it reserves 90% of the total number of seats for students of the State Board. It is stated that setting apart and reserving 90% seats amounts to wholesale reservation of the seats and such decision goes contrary to the principle of merit-cum-
preference. For all these reasons, the impugned Government Resolution be struck down.
::: Downloaded on - 09/06/2013 14:44:51 ::: 318. The lead arguments in this case are by Mr.I.M. Chagla, the learned Senior Counsel appearing for the Petitioner in Writ Petition No.1086 of 2009. Mr. Janak Dwarkadas, learned Senior Counsel, appeared for one of the Petitioners in Writ Petition (Lodging) No.1204 of 2009. Similarly, Mr. N.H. Seervai, learned Senior Counsel appeared for the Petitioners in Writ Petition (Lodging) No. 1203 of 2009 wherein even the Management of ICSE Schools joined in the challenge. Mr. T.N. Subramaniam, learned Senior Counsel appeared for the ICSE Board.
9. The State was represented by Mr. K.K. Singhvi, learned Senior Counsel who was appointed as Special Counsel. The Maharashtra State Secondary and Higher Secondary Board was represented by Mr. S.A. Diwan, learned Senior Advocate, whereas there were arguments canvassed by Intervenors in support of the Government Resolution.
10. Mr. Chagla, learned Senior Counsel appearing for the Petitioner, contended that the attempt made by the State Government earlier of percentile system has been struck down by this Court. The ::: Downloaded on - 09/06/2013 14:44:51 ::: 32 State Government has introduced a similar method and this time the State Government has reserved 90% seats for State Board students.
Mr. Chagla submits that there is now no level playing field. This is a wholesale reservation for SSC students. It is wholly unconstitutional so also illegal. Mr. Chagla was very critical of the State action inasmuch as he submits that State Government has acted contrary to several judgments of the Hon'ble Supreme Court which lay down the principle that all admissions even at secondary level should be strictly on merits and there is no scope for any reservation other than the Constitutional reservation. The principle of merit-cum-preference must hold the field. He contended that rule of law has been subverted resorting to vote bank politics. Further, by an executive fiat the Government has made the impugned reservation which is impermissible in law inasmuch as Article 162 of the Constitution cannot be resorted to to make inroads into an existing law on the subject. Once there is a State law on the subject, then, resorting to Article 162 to defeat or act contrary to the State law holding the field is impermissible and illegal. He submits that once Constitution abhors reservation in un-aided educational institutions, then, the present action of the State destroys merit completely.
::: Downloaded on - 09/06/2013 14:44:51 ::: 3311. Mr. Chagla submits that the impugned Government Resolution has been issued on the basis that there exists a classification. He submits that Article 14 permits reasonable classification but prohibits class legislation. Further, the classification has to be not only reasonable but must have a reasonable rationale to the object sought to be achieved. In the present case, there is no basis for the differentiation made by the State inasmuch as every single student has passed the same qualifying examination, namely, 10th standard. This is not a case where the source of the students to be admitted is different. There is a single and common source for admission to Junior College and that is passing of the qualifying, namely, 10th standard examination. Merely because the said examinations are conducted by different Boards, all such educational Boards are functioning and operating admittedly in the State of Maharashtra for decades together. Mr. Chagla vehemently contended that from 1993 till 2009 all students, irrespective of the Boards to which they belong, are eligible for admission to Junior College. If such is the policy that is consistently followed, then, no differentiation or distinction can be made. It is a differentiation and ::: Downloaded on - 09/06/2013 14:44:52 ::: 34 distinction created for the purpose of the impugned Government Resolution. This distinction has no basis. The assumption of the State Government as reflected in the affidavit is not supported by any data or figures. He invites our attention to paragraph 3 on page 81 (affidavit in reply of the State Government) and contends that there is no data available to support the charge of grabbing of seats by students of other Boards. The data far from supporting the Government highlights the defects in the SSC Board. He submits that excellence in education cannot be ignored at the cost of expediency.
If there is complete freedom to set up educational institutions, even by non-minority sections of the society and all admissions have to be on merit, then, on what basis this Government Resolution is issued is not clear at all. Mr. Chagla has invited our attention to the compilation of documents which would demonstrate that the functioning of the State Board leaves much to be desired. Its curriculum, its syllabi, its pattern of education, conducting examinations has not come upto the accepted standards. The State Board requires review and re-look of its functioning. Instead of improving the affairs of the State Board, the Government has contrary to the law in the field, imposed upon even the State Board and the ::: Downloaded on - 09/06/2013 14:44:52 ::: 35 students as a whole, a reservation which is totally unsupportable in law. Therefore, the Government Resolution be struck down.
12. Mr. Chagla has relied upon the following decisions in support of the above contentions :-
(a) T.M.A. Pai Foundation and others v State of Karnataka and others, (2002) 8 SCC 481.
(b) Francisco D. Luis v State of Maharashtra and others, 2008 (5) Bom. C.R. 569.
13. Mr. Chagla's contentions have been supported by Mr. Dwarkadas. Additionally, Mr. Dwarkadas invites our attention to the compilation of documents and contends that the decision to reserve 90% of the seats has been taken hastily and on the eve of the commencement of the admission process. Mr. Dwarkadas submits that the Government Resolution has been issued on 18th June 2009.
The results of the State Board were declared on 25th June 2009. The admission process was to begin on the same lines as prevailing earlier. However, suddenly on 17th June 2009 at 8.00 p.m in the night, some College Principals met and recommended to the ::: Downloaded on - 09/06/2013 14:44:52 ::: 36 Government that 90% seats should be reserved for the State Board students in admission to Junior College and the subject Government Resolution came to be issued on the very next day. He submits that the State Board is not a party to this decision. Very wide consultations were necessary before a crucial decision of this nature is taken.
Ultimately, it is the future of the students which is at stake. At no stage right from the primary, middle and higher educational level, were the students ever told that if they pursue studies in Institutions affiliated to any Education Board which is not set up by the State Government, they will be at a disadvantage. If right throughout the students from all Boards were treated equally, then, the least that was expected from the State Government was to hold consultation with all Boards, students, parents and experts in the field. However, it is clear that the decision was taken without any such process. Mr. Dwarkadas took us through the Minutes of the meeting held in April 2009 at the instance of the Director of Education of the State of Maharashtra. He submits that the agenda for the discussion was the functioning of the State Board. At no stage the participants were told that the State Government desires to carve out some seats for the SSC Board students. A Core Committee was set up of 42 persons and that ::: Downloaded on - 09/06/2013 14:44:52 ::: 37 was to meet before any decision was taken. In fact, this Court in its judgment in Percentile case had specifically observed that hasty, thoughtless and last minute decisions ruin the academic field. The students are frustrated with such last minutes changes. The Court had forewarned about effecting such changes in the educational pattern. Yet, ignoring the Court's observation and finding, the State Government without any consultative process and by-passing the State Board has taken a decision which has no basis or foundation in law. For this reason, the Government Resolution must be struck down.
14. Mr. Seervai, learned Senior Counsel appearing in Writ Petition No. 1203 of 2009, contended that the very object of the State Government in issuing the subject Government Resolution is to create a reservation or quota for SSC students. He submits that now the State Government has taken a stand in the written submission which is contrary to the affidavit and the Government Resolution itself. He submits that the word "Reservation" is a misnomer. He submits that a party cannot argue at the bar something which is contrary to the document and the avowed objects. He submits that if what the ::: Downloaded on - 09/06/2013 14:44:52 ::: 38 Government Resolution does is not to create a classification but reservation, even then, it is contrary to Article 14 of the Constitution of India. The only reservation permissible in law and envisaged by the Constitution is for Scheduled Castes and Scheduled Tribes [Articles 15(4) and 16(4) of the Constitution of India]. There are certain other reservations in the Constitution but any reservation other than these cannot be countenanced and supported. This Resolution to the extent it reserves 90% of the seats affects fundamental rights guaranteed by Article 19(1)(g) of the Constitution of India. He submits that right to set up and establish the educational institution is a right guaranteed by Article 19(1)(g) of the Constitution. The Supreme Court has recognized the same. Further, any reservation which violates this Constitutional mandate and guarantee, can be supported only if it is Reasonably Restriction within the meaning of Article 19(6) of the Constitution of India. Such restriction have to be placed by appropriate law and legislation and not by any executive fiat. The impugned Government Resolution is nothing but a executive fiat. It does not have a force of law. For all these reasons, he submits that the Government Resolution be struck down.
::: Downloaded on - 09/06/2013 14:44:52 ::: 3915. Mr.Seervai's alternate submission is that the Resolution in any event violates the mandate of Article 14 of the Constitution of India. Assuming that it is a reservation, yet, the Supreme Court has held that the limit of such reservation cannot be more than 50%. In the present case, it is nearly 100% and wholesale reservation.
Further, even the 50% reservation limit must have the sanction of law. He submits that in P.A. Inamdar and others vs State of Maharashtra and others, AIR 2005 SC 3226, the Hon'ble Supreme Court explained the concept of an educational institution being set up by minorities and non-minorities. There is unfettered and unhampered right to establish and administer an educational institution. Imposing such a quota on the Institutions is Constitutionally impermissible and bad in law. He submits that language of the Government Resolution is clear inasmuch as it is a reservation. Even the intent is of reservation. No explanation in the affidavit in reply contrary to the Government Resolution be accepted.
The Court should treat the impugned Government Resolution as a reservation and nothing else. He submits that if the Resolution is tested in the backdrop of the Constitutional scheme, then, it has to ::: Downloaded on - 09/06/2013 14:44:52 ::: 40 be held as unconstitutional. Assuming it is a classification, even then, it is bad in law because merit has been given a go-by. For the past more than fifteen years all students have been treated as equals.
It is one homogeneous unit. Entry to Class XI is from this homogeneous single unit. The syllabus for 10th standard is broadly the same. It is approved by National Council of Education Research and Training (NCERT). He also invites our attention to Regulation 79 of the Maharashtra Secondary and Higher Secondary Regulations, 1977. He submits that the impugned Government Resolution is contrary to Regulation 79. The Regulations are statutory in character and once the Regulations treat all students irrespective of the Board from which they appeared for X standard examination as eligible for admission to Class XI/Junior College, then, the State Government must point out and produce the relevant material to justify the classification. The burden is clearly upon the State and it has hopelessly failed to discharge the same. He submits that there is no material from which one can conclude that the classification is based on intelligible differentia having nexus with the object sought to be achieved. On the other hand, merit is now a casualty. For these reasons, the Government Resolution be struck down.
::: Downloaded on - 09/06/2013 14:44:52 ::: 4116. Mr. Seervai has relied upon the following decisions in support of his contention :
(a) AIIMS Students' Union v AIIMS and others, (2002) 1 SCC 428.
(b) Kailash Chand Sharma v State of Rajasthan and others, (2002) 6 SCC 562.
(c) The State of Rajasthan v Mukan Chand and others, AIR 1964 SC 1633 (V 51 C 219).
(d) State of Kerala v Kumari T.P. Roshana and another, (1979) 1 SCC 572.
(e) P.A. Inamdar and others v State of Maharashtra and others, (2005) 6 SCC 537.
(f) State of Bihar and others v Project Uchcha Vidya, Sikshak Sangh and others, (2006) 2 SCC 545.
(g) The U.P. State Electricity Board and another v Hari Shankar Jain and others, (1978) 4 SCC 16.
17. Mr.Seervai's contentions have been adopted by Mr.Poochkhanwala who appeared in Writ Petition No.5391 of 2009 for a student who comes from a reserved category who has passed the 10th standard examination with nearly 92% marks but not from the State Board. He submits that even a student from such a category is ::: Downloaded on - 09/06/2013 14:44:52 ::: 42 now not guaranteed admission in a preferred college in Mumbai and Pune. He submits that there can be students from the backward classes even in other education Boards. It is in such circumstances and when all are treated on par, there is no justification in reserving seats and that too to the extent of 90% for the State Board students.
The Government Resolution is thus unworkable and even unfair and unjust. If somebody with 92% marks does not get admission on merits in a college preferred by the student, then, something is basically wrong with the system.
18. Mr. Subramaniam appearing for the ICSE Board has apart from the contention that merit is the criteria, invited our attention to the judgment of the Hon'ble Mr. Justice Patel in Percentile case. He urged that the ICSE was never consulted before the impugned Government Resolution was issued. The impugned Government Resolution is issued on the basis of some public perception. This perception has no basis inasmuch as how SSC Board students are at a disadvantage is not clear at all. In these circumstances, he submits that the challenge to the Government Resolution must succeed and it be struck down.
::: Downloaded on - 09/06/2013 14:44:52 ::: 4319. On the other hand, Mr. K.K. Singhvi, learned Senior Counsel, as Special Counsel appearing for the State, contended that the presumption is that the Government Resolution is legal, constitutional, reasonable and fair. Presumption is that it is issued bona fide and after the necessary consultation by the State. He submits that one who alleges that the Government Resolution is unconstitutional and illegal, must lay the foundation for such challenge in the pleadings. If the plea is that the Government Resolution is arbitrary and discriminatory, then particulars must be set out specifically. In the instant case, in none of the Writ Petitions there is any pleading leave alone particulars about discrimination.
There are no details. There are no allegations but a bald statement that the Government Resolution is bad in law. In these circumstances, no issue arises for consideration much less an issue that the Government Resolution violates the mandate of Article 14 of the Constitution of India. Furthermore, the Government Resolution is a policy decision and any such decision cannot be challenged unless it is arbitrary. In the present case there is no arbitrariness. Reasons for the issuance of the Government Resolution are pointed out on affidavit. He submits that there is no comparison between students of ::: Downloaded on - 09/06/2013 14:44:52 ::: 44 the State Board and other Boards. These are different and distinct groups drawn from distinct sources. The admission process, the teaching standards and the syllabus of these Boards are not identical.
They are two defined separate groups. One is little disadvantaged.
Therefore, preference had to be given to them and precisely this is done by issuing the subject Government Resolution. Mr. Singhvi relied upon the judgment in Percentile case. He submits that the Petitioners in these Petitions argued before this Court in the Percentile case that all the three Boards are distinct and separate. There is nothing common in them. Now they are arguing that all the Boards and students in 10th appearing through them are similarly situated.
This is nothing but approbate and reprobate. Such a argument should not be accepted now. More so when reasons are set out in the affidavit in reply. Mr. Singhvi relied upon paragraph 2 of the affidavit in reply. He submits that the decision is taken to help the disadvantaged, it may be erroneous, however, that is no reason to set aside the same. Further, the approach or method may be faulty.
Even that is no ground to set aside the Government Resolution. A bona fide attempt is made to correct the imbalance so that SSC Board students get admissions to preferred colleges in metropolitan cities.
::: Downloaded on - 09/06/2013 14:44:52 ::: 45This is based upon a specific and clear data. The chart and figures are annexed to the affidavit of the State Education Board. The said information is based on the needs and requirements of the people. In a democratic process the State may err in taking a particular policy decision but that is no ground to set it aside. The policy decisions of the State Government, if not acceptable to the people have to be challenged elsewhere and not in a Court of law unless they are demonstrably arbitrary. In such circumstances, there is no basis for challenge to the Government Resolution and the Writ Petitions be dismissed.
20. Mr. Singhvi then contended that it is erroneous to argue that only reservation recognized by the Constitution is one under Articles 14 and 16 or 29 and 30 of the Constitution of India.
Reservation does not mean only Constitutional reservation. Other reservation is also permissible. Such reservations can be tested on the touch-stone of Article 14 of the Constitution of India. The Government Resolution is based on classification and quota for SSC students. Its object is to level merit and guarantee admission to all.
It is incorrect to urge that there is no power to issue the impugned ::: Downloaded on - 09/06/2013 14:44:52 ::: 46 Government Resolution. Apart from Article 162 of the Constitution, Sections 34, 36, Regulation 67(xiv) of the State Board Act and Regulations are the sources of the power to issue the impugned Government Resolution. Article 162 talks of quasi-legislative power.
It has the efficacy of a rule or law. In the instant case, as far as violation of Article 19 or violation of mandate of Article 19(1)(g) is concerned, once again, there is no pleading, no foundation and, therefore, no issue arises of that nature. He invites our attention to pages 14 and 15 and ground (i) in Writ Petition No.1203 of 2009.
21. Mr.Singhvi strongly contended that there is no law which provides for consultation with the State Board. He submits that Government can issue directions on the advice of the Board. A provision contemplating advise of the Board is not to be equated with consultation and therefore not on par with requirement of consultation. That apart, the power to issue directions is not restricted. All that is required is that it should be exercised reasonably. The same has been exercised reasonably and keeping in mind observations in the majority judgment in Percentile case. Even without consultation with the Board the Government Resolution ::: Downloaded on - 09/06/2013 14:44:52 ::: 47 could have been issued. Still, wide range consultations and discussions have taken place. The decision is not at all hasty. The Wednesbury principles of reasonableness are not attracted inasmuch as the Government Resolution cannot be struck down as unreasonable.
22. He submits that there is nothing like legitimate expectation of a student. There is no right much less fundamental of admission to a preferred or a particular college. There is nothing by which one can conclude that a student enrolled in a particular course and undergoing studies in schools affiliated to a particular educational Board can expect that upto the SSC level there will be no change in the educational patten or the number of seats cannot be reduced or increased. If doctrine of legitimate expectation of students is indeed applicable, then, admittedly the SSC students are more in number and even their expectations must receive attention and in appropriate cases priority. There is overwhelming public interest involved inasmuch as SSC students were at a disadvantage.
They were suffering in equalities and their expectations must outweigh those of the non-SSC Board students. In these ::: Downloaded on - 09/06/2013 14:44:52 ::: 48 circumstances, there is no substance in the argument of discrimination and inequality. Even on this ground the challenge to the impugned Government Resolution must fail. In Mr.Singhvi's submission, the Writ Petitions have no merit and they ought to be dismissed.
23. The learned Senior Advocate Mr.Diwan appearing for the State Board while adopting the arguments of Mr.Singhvi, contended that these are matters of education policy. The freedom to evolve and frame a policy includes the freedom to identify the source or stream which has to be accommodated or given any benefit. The freedom to evolve policy by necessary implication includes a power to classify. In the instant case, the policy adopts a classification and the intention is to equalize opportunities. It is merit oriented and there is an element of fairness. There is no departure from merit. He submits that sheer number of students appearing for State Board examination would justify carving out seats for them. In these circumstances, the decision taken cannot be said to be vitiated much less for want of consultation or lack of any advice from the Board.
::: Downloaded on - 09/06/2013 14:44:52 ::: 4924. The arguments in rejoinder were made by Mr.Dwarkadas and Mr.Seervai. Apart from reiterating their earlier pleas and arguments, it is contended that the interpretation placed by the State Government on Regulation 79 is erroneous. If Regulation 79 is held to be permitting issuance of such a Government Resolution, then, it would mean that the Regulation is subordinate to or subversive of executive fiat. The Regulations have the force of a statute or atleast a rule under the statute. The Government Resolution is not a rule of Education Department. Rule is a subordinate legislation whereas Government Resolution is an executive fiat. An executive fiat cannot alter or go contrary to the Rule.
25. Mr.Dwarkadas pointed out that the judgment in Percentile case really covers the controversy. It is binding on all the Respondents. Unfair treatment is meted out to the students of other Boards and there is no justification as to why students who have been treated equally from 1993 till date are suddenly segregated. It means that the segregation is intended to whittle down or dilute the sole criteria of merit-cum-preference for admission in Junior College.
::: Downloaded on - 09/06/2013 14:44:52 ::: 50Ultimately, excellence in education is the hall-mark. The pursuit is of excellence. Even the Government Resolution talks of merit. In such circumstances, whether reservation or classification, the Government Resolution is Constitutionally bad inasmuch as a quota is carved out or made for SSC students without any basis. The distinction is wholly artificial. There is no material much less any relevant criteria warranting and necessitating the classification. There is no basis for the conclusion that the SSC students are a disadvantaged lot. Our attention is invited to the Report (pages 120/121 of the compilation) and particularly to pages 129 and 130 thereof wherein it is observed that no Board is superior or inferior. The SSC Board students are more in number but others are not less meritorious or less important.
In these circumstances, all decisions cited by Mr. Singhvi and the Intervenors are distinguishable.
26. At this stage, it may be noted that Mr. S.G. Aney and Mr. Y.S. Jahagirdar, learned Senior Counsel appearing for Intervenors, State Board students/Students Organization affiliated to Shiv Sena supported the State Government's action. They supported the Government Resolution on various grounds. Both of them have given ::: Downloaded on - 09/06/2013 14:44:52 ::: 51 written note of their submissions. We must also record that other Counsel have also handed in their written arguments.
27. We have given our anxious consideration to the rival contentions. With the assistance of the learned Counsel appearing for both sides, we have gone through the Writ Petitions, their Annexures including the impugned Government Resolution and compilation of documents and Written Submissions. With their able assistance we have perused the Decisions brought to our notice and relied upon by parties.
28. For properly appreciating the rival contentions, it would be firstly necessary to refer to the Maharashtra State Secondary and Higher Secondary Education Boards Act, 1965 (hereinafter referred to as "the Act"). The Act enacted in 1965 was amended in 1977.
The Statement of Objects and Reasons of the Amendment Act of 1977 read thus :-
::: Downloaded on - 09/06/2013 14:44:52 ::: 52" STATEMENT OF OBJECTS AND REASONS With the introduction of the higher secondary course (+2 junior college stage) after the secondary education stage, throughout the State, with effect from the academic year 1975-76, and the consequent vesting of all control over academic matters pertaining to the higher secondary course in the Maharashtra State Board of Secondary Education, it is considered necessary to suitably reconstitute the State Board and the Divisional Boards and to redefine their duties and functions under the Maharashtra Secondary Education Boards Act, 1965. It is also considered necessary to make certain other incidental and consequential amendments in the Act. The following notes on clauses explain the important provisions of the Bill:-
(a) Clause 5 - It is proposed to define the expressions "higher secondary education" and "junior college", and to amend certain other definitions in section 2 of the Act, so as to bring the higher secondary education and the teachers and institutions connected therewith; within the ambit of the Act.
(b) Clause 6 - In view of the introduction of the higher secondary education and vesting the control thereof in the State Board, it is proposed to change the name of that Board to "the Maharashtra State Board of Secondary and Higher Secondary Education".
(c) Clause 7 - Section 5 of the Act, which provides for the composition of the State Board, is proposed to be amended to provide representation on the State Board to teachers, heads and managing bodies of junior colleges and to make certain other consequential changes.
(d) Clause 8 - Consequent upon the introduction of an uniform 10-year secondary education ::: Downloaded on - 09/06/2013 14:44:53 ::: 53 course followed by a 2-year higher secondary education course throughout the State, the academic control of which is now vested in the State Board, certain existing members of the Divisional Boards are now considered unnecessary. It is, however, considered necessary to give representation to teachers, heads and managing bodies, of the junior colleges on those Boards.
(e) Clause 11 - It is noticed that the powers of the State Government under section 15 of the Act to remove a member of the State Board, a Divisional Board or any committee thereof are insufficient. It is, therefore, proposed to amplify the provisions of that section and to confer on the State Government powers to remove suo motu any such member whose activities are, in the opinion of the State Government, detrimental or obstructive to the proper functioning of any such Board or any Committee thereof. Such action will be taken only after a reasonable opportunity of showing cause has been given to the member concerned.
(f) Clauses 13 and 14 - Section 18 of the Act which provides for powers and duties of the State Board is proposed to be amplified so as to include therein references to higher secondary education and junior colleges. The powers and duties of the Divisional Boards under section 19 of the Act which relate to preparation of syllabi and financial statements are proposed to be omitted.
(g) Clause 15 - It is proposed to retain only the Standing Committee and the Examination Committee of a Divisional Board and to do away with the Academic, Finance and Recognition Committees of the Divisional Boards which are now considered unnecessary. The amendment of section 23 is intended to secure this object.
(h) Clause 16 - It is proposed to suitably streamline the financial relationship between the State ::: Downloaded on - 09/06/2013 14:44:53 ::: 54 Board and the three Divisional Boards by requiring the State Board to pay to the Divisional Boards from time to time such sums as the State Board may deem appropriate, to enable the Divisional Boards to discharge their legitimate duties, functions and schemes. Revised section 30 is intended to achieve this object.
(i) Clause 20 - It is considered expedient to confer powers on the State Government also to make regulations whenever necessary in respect of matters on which the State Board has been empowered to make regulations under section 36 and to modify or repeal any regulations already made. New sub-section (2) of section 37 provides for this.
Nagpur:
Dated the 4th December N.M. TIDKE 1976. Minister of Legislative Affairs"
29. Perusal of the same would indicate that the introduction of 10+2 educational pattern in the State from the academic year stated in the Statement of Objects and Reasons led to the Act being amended. The Act as amended, introduced certain definitions and it would be worthwhile referring to some of them. The definition of the term "Board" in Section 2(b) means the State Board or a Divisional Board, as the case may be. The term "higher secondary education"
has been defined in Section 2(h-1) and it means general, technical, vocational or special education (including any combined course ::: Downloaded on - 09/06/2013 14:44:53 ::: 55 thereof) which follows immediately the secondary education and precedes immediately the education controlled by Universities established by law in the State. The term "junior college" is defined in Section 2(i-1) to mean an institution which imparts education in the first year or the second year or both of the higher secondary education course. The term "State Board" is defined in Section 2(p) and means the Maharashtra State Board of Secondary and Higher Secondary Education established under this Act. The constitution of the State Board is set out in Section 5 and a perusal thereof would show that it is a comprehensive body headed by a Chairman appointed by the State Government and the members enlisted in Section 5. The Divisional Boards are constituted under Section 6.
Section 7 speaks of terms of office and conditions of service of the Chairman and Sections 9 to 15 deal with qualification, disqualification and filling up of vacancies. Section 18 of the Act is somewhat relevant for our purpose and reads thus :-
"18. Subject to the provisions of the Act, the powers and duties of the State Board shall be as follows, namely :
(a) to advise the State Government on matters of policy relating to secondary or higher secondary ::: Downloaded on - 09/06/2013 14:44:53 ::: 56 education in general, and on the following matters in particular :-
(i) ensuring a uniform pattern of secondary or higher secondary education;
(ii) maintenance of uniform standard of education in secondary schools and junior colleges;
(iii) co-ordination between national policies and State policies in secondary or higher secondary education;
(iv) co-ordination between secondary or higher secondary education, university education and primary education;
(b) to lay down guiding principles for determining curricula and syllabi and also to prepare the detailed syllabi for all standards of secondary and higher secondary education;
(c) * * * * *
(d) to prescribe standard requirements in respect of staff, buildings, furniture, equipment, stationery and other things required for secondary schools and junior colleges;
(e) to prescribe any books as text-books, or to prepare or cause to be prepared any books and prescribe them as text-books, for all standards including the final standard of secondary and higher secondary education;
(f) to prescribe the general conditions governing admission of regular and private candidates to the final examinations, and to specify the conditions regarding attendance and character, on the fulfilment of which a candidate shall have a right to be admitted to and to appear at any such examination;::: Downloaded on - 09/06/2013 14:44:53 ::: 57
(g) to award certificates to candidates passing the final examination;
(h) to institute and award scholarships, stipends, medals, prizes and other rewards, and to prescribe conditions therefor;
(i) to receive bequests, donations, endowments, trusts and other transfer of any property, or interest therein, or right thereto;
(j) to hold any property, interest or right referred to in clause (i) above, and to manage and deal with the same;
(k) to demand and receive such fees as may be prescribed, from secondary schools and junior colleges recognised by the Divisional Boards;
(l) to call for special reports and information from the Director of Education or other officers of the Education Department, and any information from any secondary school or junior college recognised by a Divisional Board to ensure maintenance of academic standards in secondary and higher secondary education;
(m) to recommend measures to promote physical, moral and social welfare of students in institutions recognised by the Divisional Boards, and to prescribe conditions of their residence and discipline;
(n) to appoint officers and servants of the State Board (other than the Chairman, Secretary, Joint Secretary or Assistant Secretary) in its office and in the offices of the Divisional Boards, and to regulate the terms and conditions of their service;::: Downloaded on - 09/06/2013 14:44:53 ::: 58
(o) to constitute provident fund for the benefit of the officers and servants of the State Board;
(p) to approve the annual financial statements pertaining to the State Board and the Divisional Boards and to recommend to the State Government for sanction, the annual budget;
(q) to inspect and supervise generally the working of the Divisional Boards and to inspect periodically the accounts thereof;
(r) to conduct statistical and other research for the purpose of evaluation and reform of the curricula, instruction and examination system;
(r-l) to conduct correspondence and other non-
formal courses leading to final examinations through variety of media including open school courses;
(s) to appoint such Committees as it may think necessary for the efficient discharge of its functions under this Act;
(t) to make regulations for the purpose of carrying into effect the provisions of this Act;
(u) to make by-laws relating to matters such as procedure to be followed by the State Board and the Divisional Board, their Committees * * * * * and any other matter solely concerning the State Board and Divisional Boards and their Committees that are not provided for by this Act and the regulations made thereunder;
(v) to exercise such other powers and perform such other duties as may be conferred or imposed on it by or under this Act;
::: Downloaded on - 09/06/2013 14:44:53 ::: 59(w) to do all such acts and things as may be necessary to carry out the purposes of this Act."
30. Subject to the provisions of this Act, the powers and duties of the State Board enumerated in Section 18 thus ensure a uniform pattern of secondary or higher secondary education, maintenance of uniform standard of education in secondary schools and junior colleges, co-ordinating the national and State policies in secondary or higher secondary education and to lay down guiding principles for determining curricula and syllabi and to prepare syllabi for all standards of secondary and higher secondary education coupled with prescribing general conditions governing admission to regular and private candidates. These are the matters enumerated as duties of the Board and the Board has been conferred with the necessary powers to fulfil them. In other words, the powers conferred upon the State Board are coupled with a duty. These are also the powers and duties of a Divisional Board as is clear from Section 19.
::: Downloaded on - 09/06/2013 14:44:53 ::: 6031. The other provisions, namely, Sections 24 to 31 are to enable the Board to discharge the aforesaid functions, perform the duties and exercise the powers in that behalf. Sections 34 and 36 of the Act read thus :
"34. (1) The State Government shall have the power, after considering the advice (if any) tendered by the State Board, to issue to that Board or a Divisional Board such directions as it may consider necessary in regard to all or any of the matters specified in clause (a) of Section
18. The Board concerned shall comply with such directions.
(2) The State Government shall have also the right to address the State Board or any Divisional Board with reference to anything it has conducted or done, or is conducting or doing, or intends to conduct to do, and to communicate to the Board concerned its views in the matter.
(3) The Board concerned shall report to the State Government such action, if any, as it proposes to take or has taken upon the communication, and shall furnish an explanation if it fails to take action.
(4) If such Board does not within a reasonable time take action to the satisfaction of the State Government, State Government may, after considering any explanation furnished or representation made by the Board, issue such directions consistent with this Act as it may think fit, and the Board shall comply with such directions.::: Downloaded on - 09/06/2013 14:44:53 ::: 61
(5) In an emergency which, in the opinion of the State Government, requires that immediate action should be taken, the State Government may take such action consistent with this Act as it deems necessary without previous consultation with the Board concerned and shall forthwith inform it of the action taken.
(6) The State Government may, by order in writing, specifying the reasons thereof suspend the execution of any resolution or order of any Board and prohibit the doing of the action ordered to be or purporting to be ordered to be done by such Board if the State Government is of the opinion that such resolution, order or act is in excess of the powers conferred by or under this Act upon such Board.
(7) When, under this section or either of the last two preceding sections, any direction, order or other communication is issued by the State Government to a Divisional Board, or any report, explanation or other communication is submitted by a Divisional Board to the State Government, a copy thereof shall be sent to the State Board."
xxxxx xxxxx xxxxx "36. (1) The State Board may make regulations for the purpose of carrying into effect the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely :-
(a) the constitution, powers and duties of the Committees, appointed under Section 23;::: Downloaded on - 09/06/2013 14:44:53 ::: 62
(b) the subjects and curricula for the final examination;
(c) the general conditions governing admission of regular and private candidates for the final examinations, and any particular conditions regarding attendance and character, on the fulfilment of which a candidate shall have a right to be admitted to and to appear at any such examination ;
(d) the marks required for passing in any subject and the final examination as a whole, and for exemption, credit and distinction in any subject;
(e) the fees for admission to the final examinations and other fees and charges payable in respect of other matters connected with those examinations;
(f) the arrangements for the conduct of final examinations by the Divisional Boards and publication of results ;
(g) the appointment of examiners, their powers and duties in relation to the final examinations and their remuneration;
(h) the qualifications and disqualifications of examiners;
(i) the award of certificates;
(j) the appointment of officers and servants of the State Board in its own office and in the offices of the Divisional Boards and the conditions of their service;
(k) the constitution of provident fund for the benefit of the said officers and servants of the State Board;::: Downloaded on - 09/06/2013 14:44:53 ::: 63
(I) the control, administration, safe custody and management in all respect of the finances of the State Board;
(m) the date before which and the manner in which the 2[State Board] shall prepare 2[its] budget estimates;
(m-1) the compensatory allowance which may be drawn by members of the Boards and the Committees appointed by them ;
(n) any other matter which is to be or may be prescribed under this Act.
(3) No regulation made under this section shall have effect until the same has been sanctioned by the State Government."
32. A bare perusal of these provisions would make it clear that the power of the State Government to issue to the State Board or a Divisional Board such directions as it may consider necessary in regard to all or any of the matters specified in clause (a) to Section 18, is to be exercised after considering the advice (if any) tendered by the State Board. Sub-section (2) of Section 34 gives a right to the State Government to address the State Board or any Divisional Board and the Government can exercise that right with reference to anything that it has conducted or done or is conducting or doing or ::: Downloaded on - 09/06/2013 14:44:53 ::: 64 intends to conduct or do and to communicate to the Board concerned its view in the matter. The Board has to report to the Government the action taken and Section 34(4) provides that if the Board does not within a reasonable time take action to the satisfaction of the State Government, the State Government may, after considering any explanation furnished or representation made by the Board, issue such directions consistent with the Act as it may think fit and the Board shall comply with such directions. Sub-section (5) of Section 34 carve out the emergent provisions and the words crucial therein are "without previous consultation with the Board concerned".
In Maharashtra State Board of Secondary and Higher
33. Secondary Education v Paritosh Bhupesh Kumar Sheth etc, AIR 1984 SC 1543, the Hon'ble Supreme Court with regard to the status of the State Board observed as under :-
"4. The Maharashtra Secondary and Higher Secondary Boards Act, 1965 (for short, "the Act") has been passed to provide for the establishment of a State Board and Divisional Boards to regulate certain matters pertaining to secondary and higher secondary education in the State. Section 3 (1) provides that the State Government shall, by notification in the official gazette, establish a Board for the whole State by the name 'Maharashtra State Board of ::: Downloaded on - 09/06/2013 14:44:53 ::: 65 Secondary and Higher Secondary Education'. By sub- section (2) of the same Section, it is further provided that the State Government shall, likewise, establish a Board for each of the three divisions under such name as may be specified in the notification. The appellant Board is the State Board constituted under sub-section (1) of Section 3.
5. The powers and duties of the State Board have been enumerated in clauses (a) to (r) of Section 18 of the Act. Clause (a) states that it shall be the duty of the Board to advise the State Government on matters of policy relating to Secondary or Higher Secondary education in general. Thus under the scheme of the Act, the Board is to discharge an important role in formulating policies on all matters relating to Secondary and Higher Secondary education. Clause (f) empowers the Board to prescribe the general conditions governing admission of regular and private candidates to the final examination and to specify the conditions regarding the attendance and character on the fulfillment of which a candidate shall have a right to be admitted to and to appear at any such examination.
6. Section 19 deals with the powers and duties of a Divisional Board. Under clause (f) it is the duty of the Divisional Board to conduct in the area of its jurisdiction the final examination on behalf of the State Board. Clause (g) empowers the Divisional Board to appoint paper setters, translators, examiners, moderators, supervisors and other necessary personnel for conducting the final examination in the area of its jurisdiction, for evaluation of candidates' performance and for compiling and release of the results in accordance with such instructions as the State Board may from time to time issue. Under clause (h) it is within the power of the Divisional Board to admit candidates for the final examination according to the regulations made by the State Board in this behalf.::: Downloaded on - 09/06/2013 14:44:54 ::: 66
Clause (m) vests the Divisional Board with power to generally evaluate the performance of students in all examinations in secondary schools and junior colleges including the final examination and make necessary recommendations to the State Board in that behalf.
7. Section 36 (1) of the Act empowers the State Board to make 'regulations' for the purpose of carrying into effect the provisions of the Act. Sub-section (2) states that, without prejudice to generality of the foregoing power, such regulations may provide for any of the matters enumerated in clauses (a) to (n) thereof. Clauses (c), (d), (f) and (g) which alone are relevant for our present purpose are reproduced below:-
"(c) the general conditions governing,
admission of regular and private candidates
for the final examinations, and any
particular conditions regarding attendance and character, on the fulfillment of which a candidate shall have a right to be admitted to and to appear at any such examination;"
"(d) the marks required for passing in any subject and the final examination as a whole, and for exemption, credit and distinction in any subject;"
"(f) the arrangements for the conduct of final examinations by the Divisional Boards and publication of results;"
"(g) the appointment of examiners, their powers and duties in relation to the final examinations and their remuneration;"
Sub-section (3) lays down that no regulation made under this section shall ::: Downloaded on - 09/06/2013 14:44:54 ::: 67 have effect until the same has been sanctioned by the State Government.
8. Section 38 has conferred on the State Board a distinct power to make 'bye-laws' consistent with the Act and the regulations made thereunder. Such bye- laws are to provide for the procedure to be followed at the meetings of the Board and the Divisional Boards and the Committee appointed by any of them and the numbers of members required to form a quorum at such meetings and any other matters solely concerning the Boards and their Committees not provided for by the Act and the regulations made thereunder.
9. Three Divisional Boards have been set up in Maharashtra by the State Government in exercise of the power conferred by Section 3 and these Boards are in charge of the Poona Division, Aurangabad Division and Vidharbha Division respectively. These three Divisional Boards conduct two public examinations, namely, the Higher Secondary Certificate examination-"H.S.C. Examination"- which is conducted at the end of the higher secondary education course and the Secondary School Certificate examination- "S.S.C. examination"-
conducted at the end of the secondary school
education course.
xxxxx xxxxx xxxxx
17. It is also relevant to notice in this context the nature and composition of the body on which the regulation-making power has been conferred by the Act. The composition of the State Board is set out in Section 5. It will be seen therefrom that the Board is to have as ex-officio members the Director of Education of the State Government, the Director of Higher Education of the State Government, the Chairmen of the Divisional Boards, the director of Technical Education of the State, the Director of ::: Downloaded on - 09/06/2013 14:44:54 ::: 68 Agriculture, the Director of the State Institute of Education. Then there is a class of elected members consisting of one representative from each University in the State elected by the Academic Council of the University, two members elected by the Maharashtra Legislative Assembly from amongst its members and one member elected by the Maharashtra Legislative Council from amongst its members. Next comes the category of nominated members belonging to five different categories described in clauses (i) to (v) under class (C) in the Section, aggregating 21 in all. It will be seen from these clauses that these nominated members are to be drawn from amongst Principals, Headmasters, Headmistresses, teachers of Junior Colleges and Secondary Schools, representatives of managing bodies of secondary schools and junior colleges, persons having special knowledge or practical experience in matters connected with primary, secondary or higher secondary education. The State Board is thus comprised of members who can be reasonably expected to possess intimate knowledge, practical know-how, expertise and experience in all matters pertaining to the field of education-school and collegiate-and it is to such a highly responsible body of professional men that the legislature has entrusted the task of framing regulations laving down the details of policy of working out the provisions of the Act are to be carried into effect. Section 37(i) lays down that the first regulations shall be made by the State Government and they shall continue to be in force until the new regulations are made by the Board under section 36. There is also the further safeguard provided in sub-section (3) of Section 36 that no regulation made under that Section shall have the effect until the same has been sanctioned by the State Government. Even more significant is the provision contained in sub- section (2) of Section 37 conferring a concurrent power on the State Government to make any new regulations in respect of any of the matters referred to in Section ::: Downloaded on - 09/06/2013 14:44:54 ::: 69 36 and thereby modify or repeal either wholly or in part the regulations made by the State Board. The said sub-section is in the following terms :
"37. (2) If it shall at any time appear to the State Government that it is expedient to make any new regulations in respect of any of the matters referred to in Section 36 or that any regulations referred to in sub-section (i) or made by the State Board under section 36 need to be modified or repealed, either wholly or in part, the State Government may after consultation with the State Board and by notification in the official Gazette, make such regulations, or modify or repeal any such regulations, either wholly or in part.
The regulations so made, modified or repealed shall take effect from such date as the State Government may in such notification specify or if no such date is specified, from the date of publication of the said notification in the Official Gazette, except as respects anything done or omitted to be done before such date."
In our opinion, there cannot be a clearer indication of the intention of the legislature regarding the true character of the regulations which are to be made either under Section 36 or under the provisions of either sub-section (1) or sub-section (2) of the Section 37, namely, that they are in the nature of subordinate legislation having the force of rule framed under a Statute amplifying and supplementing its provisions by laying down how the legislative policy is to be carried into effect with respect to different situations that may arise in the implementation of the object and purposes of Statute. Viewed in this setting, we are unhesitatingly of the opinion that the regulations made ::: Downloaded on - 09/06/2013 14:44:54 ::: 70 by the Board under Section 36 are in the nature of statutory rules and they have the full vigour and force of subordinate legislation made by a delegate duly empowered in that behalf by the legislature. In support of its conclusion that the Regulations framed under Section 36 are only in the nature of byelaws, the Division Bench of the High Court has strongly relied on an earlier ruling of the same court in Sophy Kelly v. The State,(1) where another Division Bench has expressed the view that the earlier set of regulations framed under Section 36 of the Act are only in the nature of bye-laws. In arriving at the said conclusion, the Court is not seen to have adverted to most of the crucial aspects pointed out by us in the preceding paragraphs. We are unable to accept the said decision as laying down correct law."
34. The power to make Regulations is for carrying into effect the provisions of the Act. Once the Board makes the Regulations under Section 36 for any or all of the matters enumerated therein, then, such Regulations made would be effective and in force and the first Regulations made under Section 37(1) would cease to operate.
Once Regulations made by the Board and sanctioned by the Government are in place, then, the power to modify the whole or any of them or even repeal them can be exercised by the State Government only after consultation with the State Board [See Section 37(2)]. The power to make bye-laws is with the State Board and that power is provided in Section 38 of the Act.
::: Downloaded on - 09/06/2013 14:44:54 ::: 7135. In our view, the requirement of consultation is in consonance with the object and purpose of the enactment inasmuch Section 34(4), Section 34(5) and Section 37(2) advisedly incorporate the words "prior consultation". Therefore, the argument of the learned Special Counsel appearing for the State that the Government is not obliged to consult the Board is not accurate. Section 34(1) uses the words `advice (if any) tendered by the State Board', sub-section (2) of Section 34 speaks of right to address the State Board and communicate to the Board its views in the matter where after the Board concerned shall report to the State Government such action, if any, it proposes to take on receipt of communication or has already taken after the receipt of communication and furnishing of explanation if it fails to take action, but all this would not dilute the requirement of consulting the Board. Ultimately if the status of the Board is taken into consideration and the duties so also powers that are conferred upon it, then, in our view, it is not possible to hold that consultation with the Board is not contemplated. More so, in matters such as issuing the impugned Government Resolution. What the State Government can do is it can exercise emergent powers without previous consultation of the Board. Therefore, in emergent cases, the ::: Downloaded on - 09/06/2013 14:44:54 ::: 72 requirement of previous consultation is dispensed with. However, that does not dispense with the requirement of taking advice or consultation with the Board all together. If that was the intent of the Legislature, it would not have placed restrictions on the powers of the State Government to issue directions or modify or repeal the Regulations framed by the Board. Since these are academic matters and the State Board is a comprehensive and complete body in so far as secondary and higher secondary education is concerned, then, the Legislature intended that it must be consulted, its advice considered and this requirement can be dispensed with only in exceptional and emergent cases. Certainly, the Board cannot be bypassed. The requirement of consultation is not an empty formality. It contemplates an effective, meaningful and purposeful exercise by which one seeks advice from or invites anyone to forward his views on any given subject.
36. We have elaborated this aspect in great details because the Petitioners seriously contended before us that there is no power with the State Government to issue the subject Government ::: Downloaded on - 09/06/2013 14:44:54 ::: 73 Resolution. On the other hand, the argument on behalf of the State Government is that the powers conferred by the Maharashtra Act, 1965 as amended in 1977 so also Article 162 of the Constitution of India permit the State Government to issue directions and also make Rules. In our view, a perusal of Article 162 of the Constitution of India would leave us in no manner of doubt that the State Government cannot issue the subject Government Resolution in exercise of the powers conferred by this Article if there is already a law in the field. The Petitioners urge that there is already a law in the field dealing with admission to junior colleges. They would urge that the power to frame Regulations under Section 36 of the Maharashtra Act means the State Board has discretion to make Regulations for providing general conditions governing admission to Junior Colleges of regular and private candidates. It is nobody's argument that the State Board cannot make any Regulations regarding admission to Junior Colleges. Further, neither side has urged that the Regulations that are framed by the State Board do not provide for eligibility criteria for admission to Junior Colleges. In other words, the power and duty of the State Board to prescribe general conditions governing admission of regular and private ::: Downloaded on - 09/06/2013 14:44:54 ::: 74 candidates coupled with the provisions of Section 36(1) and (2) of the Act enable the Board to frame Regulations and therefore the Regulations in question are relied upon to urge that they would empower the State to issue the said Government Resolution. Thus, the submission of Mr. Singhvi is that the Regulations framed by the State Board are the source of the power to issue the impugned Government Resolution.
37. For considering this submission we have carefully perused the Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977, (hereinafter referred to as "HSC Boards Regulations"). Regulation 67 appearing in Part III has been relied upon by Mr. Singhvi. Regulations 66 to 112 are in Part III of the HSC Boards Regulations. Regulation 66 sets out procedure for recognition of Junior Colleges and from a perusal thereof it is apparent that it deals with recognition of a Junior College by the Divisional Board.
Regulation 67 provides for conditions of recognition and so far as it is relevant, reads thus :-
::: Downloaded on - 09/06/2013 14:44:54 ::: 75"67. CONDITIONS OF RECOGNITION A junior college may be recognised or continued to be recognised by a Divisional Board if it fulfils, to the satisfaction of the Board, the following conditions :
xxxxx xxxxx xxxxx
(ix) Admissions made in the first and the second year classes are according to the Regulations and instructions issued from time to time by the Board and the rules of the Education Department;"
38. This Regulation, in our opinion, is in furtherance of the power conferred to grant recognition and while granting recognition, the Divisional Board can impose reasonable conditions and one of the condition appearing in clause (ix) is that admissions made in the first and second year classes should be according to the Regulations and Instructions issued from time to time by the Board and the rules of the Education Department. This Regulation must be seen in its context and if recognition is sought, a Junior College must comply with the conditions imposed and one of them will be grant admissions as per the Regulations and instructions of the Board and rules of the Education Department. Regulations 66 to 70 deals with this aspect and more particularly that of recognition. Regulations 71 ::: Downloaded on - 09/06/2013 14:44:54 ::: 76 to 78 provide for examinations, paper setting, the authorities in that behalf and their qualifications. Then comes Regulation 79 which reads as under :-
"79. ELIGlBILlTY FOR ADMISSION TO JUNIOR COLLEGES (1) Students who have passed 10 year Secondary School Certificate examination (under 10+2 education pattern) of any statutory Board in India shall be admitted to the first year of a junior college if they have offered and passed in English as one of the subjects.
(2) Students who have passed the old 10 year Secondary School Certificate examination in Vidarbha and Marathwada with English shall be admitted to the first year of the junior college with effect from June, 1976.
(3) Students who have passed old 11 year Secondary School Certificate examination in Western Maharashtra with English as a subject shall be held eligible for being admitted to the first year of a junior college from the session beginning from June, 1977.
(4) Students who fail in P. U. C./P. D./F. Y. of any University in Maharashtra shall be admitted from 1976-77 in Marathwada and Vidarbha and from 1977-78 session in Western Maharashtra in the first year of a junior college.
(5) A student who has passed the Xth class school examination (in an integrated IX--X-XI Stds. Course) shall be admitted to first year of a junior college subject to his agreeing to appear at the 10 year Secondary School Certificate supplementary examination. He shall ::: Downloaded on - 09/06/2013 14:44:54 ::: 77 not be held eligible to appear for the examination of first year of a junior college until he passes the 10 year Secondary School Certificate examination.
(6) Students who have passed the Indian Certificate of Secondary Education (I.C.S.E.) examination shall be held eligible for admission to first year of junior college.
(7) Students who have passed Xl Std. examination in the new pattern of 10+2+3 adopted by different recognised All India or State Bodies from any other State or Union Territory will be held eligible for admission to the second year of a junior college if It is the public examination. If examination at the end of Std. XI is not a public examination, the candidates should be admitted to second year of junior college (Std. XII) on reciprocal basis. The Transfer Certificate of such students should however be countersigned by the Educational Inspectors or the equivalent authority of the District concerned in that State or Union Territory.
(8) Students who have passed Government Commercial Diploma examination besides passing Secondary School Certificate or its equivalent examination will be held eligible for admission to the second year of the Arts or Commerce stream in a junior college.
Note-Government Commercial Certificate examination should not be taken into consideration for this purpose.
(9) Students who have passed Indian School Certificate examination (11 Years old Courses) of the Council, New Delhi for the Indian School Certificate will be admitted to the second year of a junior college from June, 1977 onwards.
(10) Students who have passed Higher Secondary 11th Class examination of the Central Board of Secondary Education, New Delhi will be admitted to the second year of a junior college from June, 1977 onwards.
::: Downloaded on - 09/06/2013 14:44:54 ::: 78(11) Students failing in Intermediate or first year examination, will be allowed to appear for the examination of the second year of a junior college from October, 1978 externally. They will not be required to keep prescribed attendance as laid down under clause (1) of regulation 88.
(12) (a) Students who are regular candidates of first year Science of the three year degree course in an institution in Maharashtra affiliated to any University in the State shall be permitted to appear for Std. XII Higher Secondary Examination of any of the Divisional Boards of the Maharashtra State Board of Secondary and Higher Secondary Education in Physics, Chemistry, Biology or Mathematics on the payment of Rs. 10/- per subject and Rs. 10/- per practical examination.
(b) Regular students of Std. XII of Indian School Certificate Higher Secondary course from a secondary school located in Maharashtra will also be permitted to appear for Std. XlI Higher Secondary examination of any of the Divisional Boards of the Maharashtra State Board of Secondary and Higher Secondary Education in Physics, Chemistry, Biology or Mathematics on payment of fees mentioned in clause (a) above.
(13) Students passing pre-University or pre-Degree or equivalent examination held by the Universities in the State of Maharashtra shall be held eligible for admission in the second year of a junior college (Std. XII), and those who fail in the said examination shall be held eligible for admission to the first year of a junior college from June, 1977 onwards.
(14) Students failing in intermediate or first year (under three years degree course) or equivalent examination held by the Universities in Maharashtra shall be held eligible for admission to the second year of a junior college from June, 1977 onwards.
::: Downloaded on - 09/06/2013 14:44:54 ::: 79(15) Admission to the junior college classes to students not covered by clause (1) to (14) above may be given as per decision of the State Board from time to time.
(16) To be eligible for admission to Std XI in science stream of the junior college, a candidate will have to secure minimum of 40% marks in science subject(s) at the Secondary School Certificate examination of this Board or equivalent examination.
Explanation :- Science subject(s) will include "Science ", "General Science ", "Physics", Chemistry", "Biology" and "Physiology and Hygiene" and other comparable Science subjects in which the Board concerned holds its own examination."
39. If Regulation 67 upon which reliance is placed is seen in the backdrop of Regulation 79, it is more than apparent to us that Regulation 67 deals with recognition or continued recognition of a Junior College and the conditions that can be imposed for recognition. Apart from the fact that Regulation 67(ix) cannot be relied upon to support the issuance of the impugned Government Resolution, we also find substance in the arguments of Mr.Seervai that the Government Resolution cannot be said to be a Rule of the Education Department. There is a clear distinction in law between a subordinate Legislation, which is what a Rule is and a Government ::: Downloaded on - 09/06/2013 14:44:54 ::: 80 Resolution which is traceable to Article 162 of the Constitution of India. As observed above, it enables the Government to exercise its executive power, when, specific Legislation on the subject is not there in the field.
40. In the case of State of Madhya Pradesh v Nivedita Jain, AIR 1981 SC 2045, the Hon'ble Supreme Court, while dealing with the ambit and scope of this Article observed thus :-
"22. In the case of State of Andhra Pradesh v Lavu Narendranath, (1971) 3 SCR 699 : (AIR 1971 SC 2560) the Court held at p. 709 of (SCR) : (At p. 2566 of AIR) - "the executive have a power to make any regulation which should have the effect of a law so long as it does not contravene any legislation already covering the field........"
23. Under Art. 162 of the Constitution the executive power of a State, therefore, extends to the matter with regard to which the legislature of a State has power to make laws. As there is no legislation covering the field of selection of candidates for admission to medical colleges, the State Government would, undoubtedly, be competent to pass executive orders in this regard."
41. Thus, the executive power of a State shall extend to the matters with respect to which the Legislature has the power to make laws but it is well settled that the administrative Rules or orders ::: Downloaded on - 09/06/2013 14:44:54 ::: 81 become inoperative when a law made by the Legislature occupies the filed.
42. There is a distinction made, in law, also between statutory Rules and administrative orders. The Rule under a statute being enacted in pursuance of the power conferred in that behalf, stands on a different and higher footing than an administrative order.
43. We do not wish to enter into any larger controversy but to us it is clear that Regulation 67(ix) cannot be said to be the source of the power to issue the impugned Government Resolution. The said Government Resolution cannot be said to be a Rule of the Education Department. The concept of "Rule" in Regulation 67(ix) cannot include something which travels beyond the 1965 Act or the HSC Boards Regulations. The HSC Board being the authority in charge to grant recognition to Junior Colleges so also prescribe eligibility criteria for admissions and appearance at the examination, prescribe syllabi and curriculum, its authority and power cannot be whittled down or diluted by holding that the instant Government Resolution is allegedly Rule of the Education Department and therefore stands on a ::: Downloaded on - 09/06/2013 14:44:54 ::: 82 higher footing or is equivalent to the powers conferred by the 1965 Act to issue directions or modify the Regulations. The State Government can only act in two ways in so far as the power conferred upon it by the 1965 Act. It can issue directions subject to what is stated in Section 34 of the 1965 Act or it can repeal or modify the existing Regulations framed by the Board subject to compliance with Section 37(2) thereof. There is nothing other than this which would enable the State Government to modify or repeal the Regulations or also issue directions to the Board under Section 34 of the Act. That power under Section 34 is also not absolute as held by us above.
That being the case, we are unable to accept the contention of Mr. Singhvi that Regulation 67(ix) is the source of power to issue the impugned Government Resolution. Apart from the fact that we are of the view that Regulation 67 deals with definite matter of recognition to a Junior College, additionally, assuming it could be a source of the power, yet, the instant Government Resolution cannot be said to be a Rule of the Education Department.
44. As already observed by us, Regulation 67 of the HSC Boards Regulations deals with condition of recognition, whereas the ::: Downloaded on - 09/06/2013 14:44:54 ::: 83 eligibility for admission to Junior Colleges is a distinct aspect and matter and it is dealt with and covered by Regulation 79. There is nothing in Regulation 79 which would enable the State Government to issue the subject Government Resolution. On the other hand, the said Regulations enable the Board to prescribe the eligibility criteria for admission to Junior Colleges. Reading all these Regulations together and harmoniously and the afore-mentioned statutory provisions, we are of the clear view that the State of Maharashtra could not have issued the impugned Government Resolution in the teeth of the Maharashtra Act of 1965 and Regulations framed thereunder which are occupying the field. In such circumstances there is merit in the contention of Mr. Seervai that the Government of Maharashtra has no power to issue the impugned Government Resolution. It is wholly illegal and must be struck down on this ground alone.
45. The power to issue directions that is available in this case to the State Government under Section 34 of the Maharashtra Act of 1965 does not empower it to do something contrary to the Act and defeat it all together. The power to issue directions is in furtherance ::: Downloaded on - 09/06/2013 14:44:54 ::: 84 of the Act and such power is utilised for effective and proper implementation of the Act. The authorities under the statutory enactments could be directed by the State Government, under its general powers to issue directions, from time to time to take such steps as are necessary and expedient to ensure effective and proper implementation of the Act. In this context, a reference can usefully be made to a judgment of the Hon'ble Supreme Court reported in Bangalore Medical Trust v B. S. Muddappa and others, AIR 1991 SC 1902, wherein in the context of a similar provision in a Town Planning law, this is what the Supreme Court observed :-
"20. Section 65 empowers the Government to give such directions to the BDA as are, in its opinion, necessary or expedient for carrying out the purposes of the Act. It is the duty of the BDA to comply with such directions. It is contended that the BDA is bound by all directions of the Government, irrespective of the nature or purpose of the directions. We do not agree that the power of the Government under Section 65 is unrestricted. The object of the directions must be to carry out the object of the Act and not contrary to it. Only such directions as are reasonably necessary or expedient for carrying out the object of the enactment are contemplated by Section 65. If a direction were to be issued by the Government to lease out to private parties areas reserved in the scheme for public parks and playgrounds, such a direction would not have the sanctity of Section 65. Any such diversion of the user of ::: Downloaded on - 09/06/2013 14:44:55 ::: 85 the land would be opposed to the statute as well as the object in constituting the BDA to promote the healthy development of the city and improve the quality of life. Any repository of power - be it the Government or the BDA - must act reasonably and rationally and in accordance with law and with due regard to the legislative intent."
"52. Section 65 the over-all power reserved in Government to give such directions to the Authority as it considers expedient for carrying out any purpose of the Act was another provision relied to support an order which is otherwise unsupportable. An exercise of power which is ultra vires the provisions in the Statute cannot be attempted to be resuscitated on general powers reserved in a Statute for its proper and effective implementation. The Section authorities the Government to issue directions to ensure that the provisions of law are obeyed and not to empower it itself to proceed contrary to law. What is not permitted by the Act to be done by the Authority cannot be assumed to be done by State Government to render it legal. An illegality cannot be cured only because it was undertaken by the Government. The Section authorises the Government to issue directions to carry out purposes of the Act. That is the legislative mandate should be carried out. And not that the provision of law can be disregarded and ignored because what was done was being done by State Government and not the Authority. An illegality or any action contrary to law does not become in accordance with law because it is done at the behest of the Chief Executive of the State. No one is above law. In a democracy what prevails is law and rule and not the height of the person exercising the power."::: Downloaded on - 09/06/2013 14:44:55 ::: 86
46. Applying the aforesaid principles to the facts of the present case, we are of the view that far from acting in furtherance of the Act and ensuring its effective and proper implementation, the Government has acted in a manner so as to defeat and frustrate the very purpose and object of the Maharashtra Act of 1965. The State cannot act in such a manner so as to render a statutory authority ineffective and meaningless. If the statutory body created by an Act of Legislature of the State is in-charge of Secondary and Higher Secondary education in the State and is an independent academic authority, then, the Government cannot use its power of issuing directions to such authorities to nullify their existence. It is well settled that what the Authority like the Board permits and does not prohibits cannot be prevented by the State in its power to issue directions as that will mean what is not permissible directly can be achieved indirectly. That such is equally the settled principle. The authority is not expected to act as per the whims and fancies of those in power. The State Board is an independent statutory authority and must act in accordance with the Maharashtra Act of 1965 and the Regulations framed under it. We are constrained to observe that the Board in this case has surrendered its authority to the State ::: Downloaded on - 09/06/2013 14:44:55 ::: 87 Government. There is nothing in the affidavit of the State Board which would enable us to conclude that its advice was ever taken or it was consulted before the impugned Government Resolution was issued. The Board's nor the State's affidavit spell out anything by which one can conclude that the power in this case is exercised in the manner set out in Sections 34 and 37(2) of the Maharashtra Act of 1965. The Board does not refer to any advice given by it in its affidavit nor does it places anything on record by which it can be held that it was consulted by the State Government. As has been observed by us in our conclusions and reliefs, no representative or officer leave alone Chairman and Member of the State Board was present at the meeting held on 17th June 2009. Even the earlier meetings which have been referred to by the State in its affidavit do not show that the Board was consulted or its advice taken so as to make any provision for carving out seats for the students appearing for X standard examination through the State Board. In fact, the Board was aware of Regulation 79 and as long as that was holding the field even the Board could not have recommended issuance of the impugned Government Resolution. In such circumstances, the Government has clearly by-passed a statutory Board and authority while issuing the ::: Downloaded on - 09/06/2013 14:44:55 ::: 88 subject Government Resolution. Apart from the fact that the State had no such power, additionally, we find that the State usurped the power of the Board and issued a direction contrary to the Maharashtra Act of 1965.
47. Ordinarily, once, it is held that the impugned Government Resolution is issued without any authority or power to do so, then, each of these Writ Petitions succeed only on this point.
However, since it was argued that assuming the State has any power to issue the subject Government Resolution, yet, the exercise of that power is vitiated by arbitrariness and unreasonableness so also the State action being wholly discriminatory and ultra vires Article 14 of the Constitution of India, we feel obliged to go into the said issue as well.
48. In this behalf, what we find from the record is that the Government Resolution is issued on 18th June 2009 by the Department of School Education and Sports. The Government Resolution proceeds to state that in the State of Maharashtra, examination of standard X is conducted by the State Board (SSC ::: Downloaded on - 09/06/2013 14:44:55 ::: 89 Board), Central Board of Secondary Education and International Curriculum of Secondary Education, namely, CBSE and ICSE and other Education Boards. The examination pattern or subject pattern, scheme of marking and class of students of all Boards differ to a great extent. Considering this aspect, by resorting to percentile of the marks of the students who have passed X standard examination from different examination Boards and thereby making the process of admission in Junior College easier, a formula was evolved. The formula of percentile of the percentage of marks with the help of actual marks was followed by the Government Circular. However, a PIL was filed against the same before this Court and on account of the order passed, the formula had been struck down.
49. The Government Resolution then states that after considering number of schools of SSC and HSC Board, CBSE, ICSE and other Boards, number of students passing from these Boards, percentage of their marks, number of seats for admission, number of seats available in the schools of CBSE, ICSE Boards for XI and XII standards, students seeking admission to the Junior Colleges from other Boards, it is noticed that in comparison to the number of ::: Downloaded on - 09/06/2013 14:44:55 ::: 90 students passing X standard examination from SSC Board to the students passing this examination from other Boards, injustice is caused to SSC Board students seeking admissions to Junior Colleges in Metropolitan cities. In order to give equal opportunity to students of all Boards seeking admissions and keeping in mind the directions in the judgment delivered by this Court in Percentile matters, so also to ensure streamlining of the admissions and without compromising merit, the Government is of the opinion that there is a distinction and difference in so far as the examination to X standard conducted by SSC Board and other Boards. The examination system, the subjects, scheme of marking and number of students so also the syllabus, is different. Hence, a comprehensive policy is framed for admission to XI standard course. Therefore, 90% of the seats shall be reserved for the SSC Board students whereas 10% of the seats shall be reserved for students passing X standard examination from other Boards. This decision will be implemented for the current academic year 2009-10.
Similarly, the Government Resolution clarifies that the social and other reservations shall remain unaffected and the orders and directions in that behalf will have to be followed. Thus, the reservation of seats for the XI standard (first year of Junior College) ::: Downloaded on - 09/06/2013 14:44:55 ::: 91 shall be implemented without in any manner affecting the other reservations for admissions to this course.
50. The argument on behalf of the Petitioners is that the State has treated all students appearing and clearing the X standard examination, irrespective of the Education Boards from which they appear for such examinations, as equals. On the other hand, the State Government argues that they are coming from two different sources inasmuch as students of SSC Board have always been treated distinctly than that of the other Boards. These are two distinct sources from which the students become eligible for admission to XI standard course.
51. To appreciate this argument a reference will have to be made to the fact as to whether the State has at all treated these students distinctly. All the Petitioners have raised a specific plea and contention that from 1993 till 2009, i.e. for a period of 16 years atleast, the students have been treated equally. The State was aware of the existence of other Boards and that these Boards are conducting examinations for educational institutions affiliated to them within the ::: Downloaded on - 09/06/2013 14:44:55 ::: 92 State of Maharashtra. Rather, it has recognised and accepted this fact.
It is pertinent to note that there is no denial of this factual assertion.
Once it is asserted as a matter of fact and in each of the Writ Petitions, the Petitioners have raised this plea, then, we cannot hold that the pleadings are inadequate or insufficient as contended by Mr.Singhvi. The Petitioners have in addition to urging as above, invited the attention of the Court to the judgment delivered in Percentile case. They have specifically argued that the plea raised to the above effect has been considered in the Percentile judgment and specifically turned down. Thus, that all Boards were functional in the State, that all Boards were conducting standard X examination in the State, that all Boards were enrolling students in the Educational Institutions affiliated to them within the State of Maharashtra, that such examinations were conducted by all Boards in the State of Maharashtra, is undisputed. The State has not denied this fact so also the SSC Board. In such circumstances, how could the State charge the Petitioners of not furnishing enough particulars or not discharging the burden cast on them in law is not clear to us at all.
Hence, before proceeding further, we clear the ground and over-rule the objection of Mr.Singhvi that the pleadings in this case are ::: Downloaded on - 09/06/2013 14:44:55 ::: 93 inadequate to decide the issue raised with regard to the Government Resolution being unconstitutional and violative of the mandate of Articles 14 and 21 of the Constitution of India. We are of the view that the initial burden has been discharged by the Petitioners.
Ultimately, there is a specific plea of arbitrariness, inequality, discrimination, unreasonableness and unfairness of the Government action raised in each of these Writ Petitions. There is a reference to the Percentile case and basic facts are also set out. Hence, with this material, Petitioners have discharged their initial burden and it was for the State to support the impugned action/Government Resolution.
52. We, therefore, over-rule the preliminary objections.
Then, we will have to consider as to whether the students of all Boards have been treated equally in the State of Maharashtra or not.
In this behalf, a reference can be made to the Regulations of the State Board. Regulation 79 has been reproduced by us. The said Regulation read as a whole makes it clear that the SSC Board is aware of the existence of other Education Boards in India. Further, it is aware that such Boards are conducting X year secondary school certificate examination. It is aware of the fact that X standard school ::: Downloaded on - 09/06/2013 14:44:55 ::: 94 examination is the qualifying examination. It is aware that both CBSE and ICSE Boards are functioning within the State of Maharashtra. In such circumstances, it has therefore provided in Regulation 79 that students who have passed Secondary School Certificate examination from other Board shall also be eligible for admission to first year junior college. Similarly, it is aware of the existence of CBSE course as well. It therefore provided that all such students are eligible for being enrolled in a junior college provided the subjects offered by them are those which are prescribed by the Regulations. That is how Regulation 79(16) reads. The words "equivalent examination" appearing therein must be seen in the backdrop of the sub-Regulations in Regulation 79 and the existence of the other Boards conducting the examinations for Xth standard. In such circumstances and when both the CBSE and ICSE Boards being in existence atleast from 1959 and 1963 so also their students being treated equally atleast from 1993 by the State of Maharashtra is something which would falsify the case of the State now put forward that there are different sources from which these students appear for Xth standard examination. The State has treated them as equally eligible. The State and the SSC Board has not made any distinction ::: Downloaded on - 09/06/2013 14:44:55 ::: 95 between them and the Education Boards to which their educational institutions within the State, are affiliated. Further, all these students had appeared for the examinations in the State of Maharashtra. In this view of the matter, we are of the view that the arguments that there are two different sources of admissions to Junior Colleges is untenable and cannot be accepted.
53. Next we come to the plea raised that the controversy stands concluded by the judgment in Percentile case. The argument that the students are not drawn from different sources but belong to the same class is supported by this judgment, according to the Petitioners.
54. For appreciating this submission the facts in the said decision would have to be noticed. The percentile system proceeded on the basis that the students who have passed the Xth standard examination from different Boards are eligible for seeking admission to XIth standard/First Year of the Junior College in schools and ::: Downloaded on - 09/06/2013 14:44:55 ::: 96 colleges affiliated to the SSC Board. The judgment proceeds on the basis that prior to the commencement of the academic year 2008-09, students who have passed the Xth standard examinations from all the Boards were treated alike and their inter se merit was computed on the basis of the percentage of marks secured by them in the Xth standard examination conducted by the respective Boards. By introducing the percentile formula, the criteria for admissions prevailing prior to this academic year was given a go-bye and the admissions were sought to be regulated by the "percentile rank"
assigned to the students by application of a formula. That formula was set out in Annexure "A" to the Writ Petition which was treated as a Public Interest Litigation being Public Interest Litigation No.94 of 2008. The details of the said formula need not detain us because the argument was that by this percentile formula the State Government has bypassed the criteria of merit. Introduction of the formula upset the merit placement of the students and goes to introduce notional concept by which a hypothetical percentile rank is achieved and this percentile rank forms the basis for granting admission to the XIth standard. The percentage of marks secured at an examination all throughout was treated in the past as the criteria for merit and ::: Downloaded on - 09/06/2013 14:44:55 ::: 97 admissions were granted on that basis. Now, the Government tinkered with this settled practice by introducing the percentile formula. It was the specific contention that this decision was taken deliberately to benefit the students of SSC Board and other students have been therefore discriminated. The next argument was that the formula introduced is arbitrary, unfair, unjust and unreasonable.
55. On the other hand, the State Government justified this by contending that it was a policy decision and such a policy decision is not violative of the mandate of Article 14 of the Constitution of India because prior to introduction of the formula, unequals were treated equally and the said vice is now removed by the new method which ensures equality. The decision is taken in larger public interest.
Further, the formula was sought to be justified by contending that the students from SSC Board are at a disadvantage because in that particular year the evaluation was strict but in the coming years the SSC Board students may secure higher percentage of marks than other students and in that situation students from other Boards would gain benefit and advantage. The students from SSC Board therefore would not be in an advantageous position for all times to come.
::: Downloaded on - 09/06/2013 14:44:55 ::: 9856. It was this controversy which was before a Division Bench of this Court consisting of one of us (Hon'ble the Chief Justice) and Hon'ble Mr. Justice A.P. Deshpande. The Bench was in agreement that criteria of merit should not be sacrificed. Hon'lbe Mr. Justice Deshpande proceeded on the basis that key issue is how the merit of the candidates inter se is to be judged. He held that there are certain distinguishing features in the examination conducted by the three different Boards and therefore the comparison of marks based on percentage of marks scored is illusory and not real.
According to the learned Judge, so called merit reflecting from the percentage secured by Xth standard students from different Boards cannot form the basis or yardstick for measuring the comparative merit. The State Government therefore was justified in evolving a mechanism to equalize or normalize the percentage of marks secured by the students from the different Boards. In such situation, he held that the policy decision is not so unreasonable or arbitrary so as to warrant interference under Article 226 of the Constitution of India although some hardship may be caused to the students from other Boards. Hon'ble Mr. Justice A.P. Deshpande therefore undertook a comparative analysis and held that there is a discernible principle and ::: Downloaded on - 09/06/2013 14:44:55 ::: 99 therefore the decision is not arbitrary. Concluding thus, His Lordship Mr. Justice A.P. Deshpande dismissed the Petition.
57. The Hon'ble the Chief Justice disagreed with Justice A.P. Deshpande and in his separate dissenting judgment considered the matter thus :-
"42. As is clear from the affidavits filed on behalf of the State, they have proceeded on the assumption that the academic standard, syllabus, marking and courses of all the three Boards are different. An additional argument which was advanced with some vehemence on the basis of the affidavit filed by the State that there is liberal marking in the two other Boards CBSE and ICSE which is the basis for introduction of concept of normalization of marks. It was also argued that the students of these two Boards are privileged students and, therefore there is need for applying percentile formula. If this basis for the sake of argument is taken to be correct, then the State cannot adopt a policy of applying percentile formula uniformly to the students of three Boards.
43. The percentile formula as understood in the common parlance and in its appropriate and scientific approach as well presumes that the class to which this formula is being applied is that of all persons who are similarly, if not identically placed, in that group. It will be a misnomer and misapplication to apply percentile formula to candidates falling under different and distinct categories. It was vehemently argued by the learned Counsel appearing for the Petitioner/Intervenor that percentile rank of a score is the percentage of score in its frequency and distribution which are lower. Percentile ::: Downloaded on - 09/06/2013 14:44:55 ::: 100 ranks are normally distributed and bellshapedwhile normal curve equivalents are uniform and rectangular in shape. Wikipedia, an online encyclopedia, describes `percentile rank' as under :
"Percentile ranks are commonly used to clarify the interpretation of scores on standardized tests. For the test theory, the percentile rank of a raw score is interpreted as the percentages of examinees in the norm group who scored below the score of interest. The mathematical formula is Cf1 + .5(fi)N X 100% Where cf1 is the cumulative frequency for all scores lower than the score of interest, fi is the frequency of the score of interest, and N is the number of examinees in the sample. If the distribution is normally distributed, the percentile rank can be inferred from the standard score."
44. Pearson Educational Measurement Group website (w.w.w.Pearson edmeasurement.com) describes `percentile rank' as under :
"Percentile rank identifies the percentage of a student's peer group (e.g., grade level) that a student's score surpassed. Percentile rank is useful in comparing an individual student's performance with those of other students within a defined group."
45. Applying these settled principles to the methodology of percentile formula, its application by the Respondent to the facts of the present case would apparently sound erroneous. Their affidavits of treating ::: Downloaded on - 09/06/2013 14:44:55 ::: 101 these three groups differently and distinctly make these three Boards as differently `defined groups and, therefore, the application of percentile system would hardly be permissible. Thus, there is apparent and basic contradiction in the approach, the application and results flowing from such acts of the State and its Departments.
46. Furthermore, there is contradiction in the affidavits filed on behalf of the State inasmuch as in one affidavit the stand is that SCC Board students are required to be given benefit as in the opinion of the State they were being deprived of admission to preferential colleges, while in the other affidavit, the stand taken is that policy is being implemented to ensure that no injustice is done to any student seeking admission to 11th standard from any Board in the State. This is a contradiction in terms of the statement calling the students from CBSE and ICSE as privileged students and that SSC Board students as not privileged or under privileged. In my humble opinion, this is hardly an appropriate expression to be used by the might of the State. It is a matter of common knowledge that number of students from the State Boards are obtaining much higher marks and pursue better academic courses than many of the students from other Boards. This is hardly in fact and in law a step for bringing uniformity between the students of different Boards. The arbitrariness and unfairness in framing and applying this percentile formula can even be illustratively demonstrated. "
58. The Hon'ble the Chief Justice in paragraph 49 declared the decision to be unconstitutional in the following terms :::: Downloaded on - 09/06/2013 14:44:55 ::: 102
"49. This itself shows that the action of the Government in issuing and implementing this Government Resolution dated 27th/30th June 2008 is arbitrary and in fact defeats the very golden rule of merit-cum-preference. In the present times, where the competition to academic courses is so high that even a fraction of one mark can make difference in order of merit by 50s if not by 100. It will be totally unfair to apply a method for altering the position of merit between different classes and even between the same class. The entire emphasis is on attaining higher merit and with the principle object of getting admission to a preferential Institution, School or College. If despite attaining such merit, the students have to be subjected to such competition for determining a rank which shall prejudicially affect the very basic concept of merit, such method would be to, say the least, unjust, unfair and even unconstitutional."
59. Reliance has been placed upon these observations of the Hon'ble the Chief Justice and also on the following observations in paragraphs 56 and 58 which read thus :
"56. Thus, the onus to show to the Court that the decision taken by the State wherein an existing practice is changed by some kind of a thought process is on the State by placing on record its database to show atleast that its decision is free of arbitrariness. It can hardly be justified that the State has decided to give preference or adopt some method to give advantage to the students who have passed their examination from different Boards in the State of Maharashtra itself. This will suffer patently from the vice of arbitrariness and discrimination. The adverse effects of this decision can be seen from an example that two students who are studying and residing in the same area but studying in ::: Downloaded on - 09/06/2013 14:44:56 ::: 103 two different Schools controlled by two different Boards within the city of Mumbai and obtain the same percentage of marks, one would be reduced in rank, while the other would be upgraded just by application of this invented formula by the State without any reasoning and without any justification. This, ex facie, is abuse of executive powers. The methodology adopted by the State thus suffers from the vice of arbitrariness and cannot sustain the essential test of rule of law."
"58. In the present case as well, except a bald allegation by the State that they are different Boards, no material has been placed on record to establish markable distinction between courses, marking, syllabus and process of teaching even. Students from all the Boards study more or less the common subjects and languages, compulsory subjects are the same, the syllabus is more or less identical. In any case, this is not the ground of challenge raised by the Petitioner. Thus, I do not see any reason to discuss in greater detail, but the presumption raised by the Respondents that there was differentiation in marking system certainly is based on no material whatsoever."
60. In conclusion, on account of the divergent views expressed, the matter was directed to be placed before a third Hon'ble Judge.
61. The third Judge was His Lordship Mr. Justice J.N. Patel before whom similar contentions were raised and His Lordship Mr. ::: Downloaded on - 09/06/2013 14:44:56 ::: 104 Justice J.N. Patel referred to the Full Bench decision of this Court in Writ Petition No. 8843 of 2007 decided on 22nd August 2008 (Mahatma Gandhi Missions Institute v The State of Maharashtra and others reported in 2008 (5) Bom. C.R. 569) and in paragraph 77 of his judgment, he noted that the percentile decision was taken in undue haste, at eleventh hour without any proper study, data and without appropriate consultation with other Boards which were operating at a national level. In paragraphs 81 and 83 of the judgment of His Lordship Mr. Justice J.N. Patel, it was held thus :
"81. In my opinion, the contentions of the learned counsel appearing in support of the petition are right in claiming that in respect of the two Boards ICSE and CBSE the least expected from the State before taking a decision to issue the impugned circular as a matter of policy ought to have heard the two Boards as from last several years it has been a consistent practice to admit students to 11th standard conducted by HSC Board in various streams on the basis of their percentage of marks obtained as the impugned circular has resulted in distablishing the criteria for admission which has adversely affected the interest of the students passing from 10th standard from these two Boards which is amply demonstrated in the judgment delivered by Hon'ble the Chief Justice particularly in paragraph 18 as a consequent of which the students of higher merit passing from the Board other than the SSC Board are unable to get admission to the senior schools/junior colleges of their choice. When the case of the petitioner ::: Downloaded on - 09/06/2013 14:44:56 ::: 105 was considered it was found that the students who are below the petitioner's percentage marks by 2.61%, all have placed above the Petitioner who is at Serial No. 181 in ICSE and even the students who have secured the same percentage of marks have been placed at rank No. 69 above the Petitioner. This fallacy of applying the percentile system is also demonstrated by Mrs. Iyer which is referred in her submissions by way of illustration while assailing the introduction of percentile system. Therefore, it cannot be said that the impugned circular being a policy decision taken by the Authority need not hear the persons who are likely to be affected as contended by the learned Government Pleader by placing reliance on Bannari Amman Sugars Ltd.
ig xxxxx xxxxx xxxxx
83. It is well accepted principle that when wide powers are given to the State then it is obligatory on the part of such authority to clearly record its record in the order itself for exercising such power. Applicability of mind of such authority at that point of time could only be revealed when the order records its reasons. It cannot be supplanted later on when the decision is challenged on the basis of the material which, according to the State, was taken into consideration at the time decision was taken or justified by the results of the decision having been fair to show that the State acted bona fide. Therefore, such decision as tried to be put forth before the Court in the two affidavits filed by the Deputy Secretary of Education is nothing but an afterthought for the reason that the State proceeded to apply the method of normalization by introducing percentile system only to favour the students of SSC Board, who, according to the State, get less marks compared to the students passing their 10th standard examination from other Boards which was based on ::: Downloaded on - 09/06/2013 14:44:56 ::: 106 sentiment prevailing in the society. This itself is sufficient to conclude that the impugned circular suffers from the vice of arbitrariness and unreasonableness and amounts to impermissible discrimination as the impugned circular has been issued with the sole object of promoting the cause of SSC students who have passed from the said Board. Therefore, it will have to be held to be illegal and unconstitutional."
62. In conclusion, the learned Judge agreed with the Hon'ble the Chief Justice and proceeded to hold that the Percentile formula deserves to be quashed and set aside.
63. Strong reliance has been placed on the decision in Percentile case by the learned Counsel appearing for the Petitioners before us and in our opinion their argument that the controversy before us stands concluded by this judgment, is well founded. The majority opinion in the Percentile case relied upon the settled principles laid down in the Supreme Court decisions to which detailed reference has been made. Somewhat identical contentions were raised before the Supreme Court in the case of Saurabh Chaudhri (supra) and the settled rule that merit-cum-preference is the only criteria was restated in this judgment. If merit has to be sacrificed for ::: Downloaded on - 09/06/2013 14:44:56 ::: 107 local preference, there has to be some justification and that justification must stand the scrutiny of the test of fairness and reasonableness in State action. If the decisions are impugned as arbitrary and unconstitutional, then, material has to be placed before the Court by which the Court can conclude that the decision is not a class legislation but reasonable classification having nexus with the object sought to be achieved. For the classification to be termed as reasonable, there must be some basis on which the action is taken.
There must appear to be not just a distinction but intelligible differentia by which those who have been left out from the group can be distinguished. If there is no such differentia in existence and placed on record, then all such decisions, whether they be policy decisions, are vulnerable.
64. However, the argument of the learned Counsel appearing for the State before us is that in Percentile case there was no question involved of any carving of seats for the students of SSC Board whereas here there is a classification which has been done on the basis of which the seats are carved out for them. According to him, in Percentile case the formula was only with regard to the marks, but in ::: Downloaded on - 09/06/2013 14:44:56 ::: 108 the instant case, seats are being reserved and ear-marked for SSC Board students. Therefore the principle laid down in Percentile case has no bearing or relevancy in so far as the subject Government Resolution is concerned.
65. We are afraid that we cannot uphold this contention.
First of all, the Percentile decision has been rendered after this Court was called upon to decide as to whether the classification between the students of SSC Board and other Boards is reasonable and whether there is any real basis for the same. If the classification was artificial and without any basis, then no formula could be evolved for granting any benefit to the SSC Board students. It is in that context that this Court was called upon to decide as to whether it can be said that SSC Board students and non-SSC Board students, both of whom, are appearing for the Xth standard qualifying examination, can be said to be situated identically or there is any difference. After scanning the entire material placed before the Court, two learned Judges, which consists the majority view of this Court, held that there is really no distinction between the students. The distinction as made was completely irrational and without any reasonable basis.
::: Downloaded on - 09/06/2013 14:44:56 ::: 10966. We wonder as to how after this authoritative pronouncement and when the State Government has accepted the verdict of this Court that it could have taken the decision to issue the subject Government Resolution. The Government Resolution proceeds on the basis that in Percentile case the very same issue indeed was before this Court. However, overlooking the majority view and taking the observations of Hon'ble Mr Justice A.P. Deshpande alone, in the preamble to the subject Government Resolution, an attempt is made to urge that "percentile was a distinct controversy". If the controversy in that Petition and the present one was indeed distinct and not identical, then, we fail to understand as to how repeatedly a reference has been made by the State itself to the decision of this Court in Percentile case. Aware as the State is that the controversy was identical, it proceeded to brush aside and ignore the judgment in Percentile case and therefore there is justification in the Petitioners' complaint that the State Government did not learn any lesson from this verdict. Having accepted it, it was the plain duty of the State to abide by it and not to brush it aside. The impugned Government Resolution is therefore clearly contrary to the binding judgment of this Court in Percentile case. It is immaterial what the ::: Downloaded on - 09/06/2013 14:44:56 ::: 110 non-SSC Board students argued in that case. Their shifting stand does not mean the Judgment of this Court striking down the formula and the classification is not binding on the State.
67. Assuming that the controversy in Percentile case and the present case is not identical, let us see as to how the State Government substantiates its decision to issue the subject Government Resolution on affidavit. In the instant case on affidavit the State Government has stated thus :
"2. I say the compelling reasons that necessitated the issuance of the impugned GR dated 18th June, 2009 are stated by me hereinunder. I say that a mere perusal of the syllabi followed by the State Boards conducting SSC examination and the Board exams conducted by the ICSE ipso facto reveal the differences therein. For the sake of brevity the said Boards shall be hereinafter be referred as ICSE. The comparative information regarding the scheme of examination is more particularly reflected in the chart, a copy whereof is hereto annexed and marked as EXHIBIT `I'. It is pertinent to note that students appearing for SSC examinations have to answer 3 languages and it is compulsory for the students to appear for the Marathi, Hindi and English papers. As far as the ICSE students are concerned, they have to appear for any 2 languages, out of which English is a compulsory subject. For ICSE, the overall weightage which languages have in the final results of students is as under :-::: Downloaded on - 09/06/2013 14:44:56 ::: 111
Sr.No. Board Marks to be scored in languages
out of the total marks
1. SSC Board 300 out of 650
2. CBSC Board 200 out of 600
3. ICSE Board 200 out of 700
A mere perusal of the of the aforesaid position reveals the fact that for an SSC student, out of 600 marks, 300 marks, that is 46% are allotted to languages, whereas for an ICSE student out of 700 marks, 200 marks, that is 28% of the total marks are allotted to languages. The said position is also clear from the Regulations adopted by the ICSE Board in respect of the combination of subjects that are available to its students.
I crave leave to refer to and rely upon the relevant Regulations pertaining to the subjects offered by the ICSE students as and when produced. Moreover, the SSC student has to clear all the seven subjects, whereas the students of ICSE has to clear only 5 out of 6 subjects. Further, in the case of ICSE student best of the 5 subjects are considered for calculating the percentage of marks.
Whereas, in the case of SSC students marks of all the subjects are considered for percentage of marks.
3. I say that 16,03,144 students appeared for the SSC examinations in 2008-2009 in Maharashtra, whereas, only 15,608 students appeared for the Xth Grade Examination in the said year. From the aforesaid, it is clear that the number of students passing out through the SSC Boards is far too higher when compared to the number of students who appear through the other Boards. I say that majority of seats in premier educational institutions are cornered by students from other Boards and not from the SSC Boards, though as a matter of right and since the colleges conducting XI and XII standards are primarily meant for the SSC Boards, they should have had the said benefit. This fact is revealed from the chart, a copy whereof is hereto ::: Downloaded on - 09/06/2013 14:44:56 ::: 112 annexed and marked as EXHIBIT - `2' . By reason of liberal marking, the ICSE students tend to score a higher percentage of marks and consequently the ICSE students grab seats in preferred colleges, whereas, equally meritorious students get lesser seats in the preferred colleges. In order to remove this injustice quota has been fixed so that meritorious students are also enabled to get seats in preferred colleges.
xxxxx xxxxx xxxxx
5. I say that according to the State Government, allotment of such quota will allow both the groups to secure reasonable of seats in preferred colleges.
According to the State Government all the students whether from the SSC Board or other Board will get admission in one of the other college. In the submission of the State, what is guaranteed to a student is his admission to a college but not in a particular college.
According to the State Government this is a policy decision which will do justice to the students coming from both the streams. According to the State Government, a student passing from the SSC Board and those passing from other Board are 2 different groups and are unequals. To give equal opportunity to seek admission to 2 unequals will result in gross discrimination. By reason of the above, the students from ICSE and SSC Boards are 2 different streams merging in one ocean. They are unequals, and giving same opportunity to unequals will obviously lead to discrimination. In order to avoid this discrimination, quota has been fixed by the State Government so that both, the groups are enabled to get seats in preferred colleges. Since the number of students who appeared in SSC examination in Maharashtra is 16,03,144 and number of students in other Boards is 15,608 and taking into consideration all the aforesaid facts and also interest of stake holders, the Government thought it fit to allot 90% of the seats in colleges to SSC students and 10% to students from other Boards."::: Downloaded on - 09/06/2013 14:44:56 ::: 113
68. If the Government Resolution is carefully perused then one thing is apparent and that is that what led the State Government to take the instant decision is the so-called rush to seek admissions in preferred colleges in the Metropolitan cities. In the view of the State Government, there were very few preferred colleges in such cities and there was a clamour for seeking admission therein. Such preferred colleges had distinct academic standards of their own, their extra curricular activities, their faculty and the general teaching and academic environment therein attracts large number of students to such colleges and particularly to the Junior College course conducted therein. Now, there is no definition of the term "preferred college".
There is no basis of the concept "Metropolitan cities". If in the opinion of the State Government Pune and Mumbai are the Metropolitan cities having such preferred colleges, then, it was incumbent upon it to have placed material including number of seats, the admissions therein of the SSC Board and non-SSC Board students, the comparison which would show that SSC students are at disadvantage, etc. Barring the statements in the affidavit there is no such material placed save and except annexing therewith a ::: Downloaded on - 09/06/2013 14:44:56 ::: 114 comparative chart i.e. on the scheme of admissions. However, at page 96 year-wise and merit-wise details of first 100 students admitted in four Junior Colleges in the city in various academic years have been set out. It is stated that few SSC students have been admitted whereas other Board students admitted are far more in number. As far as this chart is concerned, that is annexed to justify the statement on affidavit that majority of seats in premier educational institutions are cornered by students of other Boards and not from SSC Boards, though as a matter of right and since the colleges conducting XIth and XIIth standards are primarily meant for SSC Board students, they should have had the said benefit. It is then stated that by reason of liberal marking ICSE students tend to score higher percentage of marks and consequently these students grab seats in preferred colleges. In order to remove this injustice, quota has been fixed so that meritorious students also get seats in preferred colleges.
69. On the other hand what the Petitioners have pointed out is that the burden was on the State Government to justify its stand.
However, this very basis was there in the Percentile case and the terms ::: Downloaded on - 09/06/2013 14:44:56 ::: 115 "liberal marking" and "privileged students" were also used during the course of arguments therein. This is an argument more of frustration rather than of any proper justification. The SSC Board has filed an affidavit of its Chairman and has annexed thereto chart showing number of candidates enrolled in some institutions in Mumbai from ISCE and CBSE Boards for Academic years 2006-07, 2007-08, 2008-09. We repeatedly asked Mr. Singhvi and Mr. Diwan as to how from these charts can it be said that considering the intake capacity of the colleges in Mumbai Metropolitan region which is 2,48,411, excluding colleges at Alibaug, Pen, Kharghar, Karjat and Uran, the tabular sheet Annexure A-IV could be said to be supporting the plea of the State Board and the State Government. Barring inviting our attention to some figures, Mr.Singhvi and Mr. Diwan could not throw any light on this aspect of the matter. The respective officials were present in Court. Firstly, the classification as made must have a basis which must be on the record before such a vital decision is taken.
There is substance in the argument that this Government Resolution speaks of reservation whereas the State Government is arguing on the basis of classification. Secondly, there is also merit in the argument that if the decision does not speak for itself and reasons have to be ::: Downloaded on - 09/06/2013 14:44:56 ::: 116 placed on affidavit to justify the same, then, that is enough to strike down the same as it is well settled that reasons must be apparent in such cases either in the decision itself or in the record but it cannot be justified on the basis of some statements made in the affidavit, when the decision is impugned in a Court of law.
70. We have carefully perused these charts and what we find is that in preferred colleges which are set out in Annexure A-V page 43, the ISCE and CBSE Board students have not cornered or grabbed seats in any of the academic years under reference. Far from supporting the stand taken by the State and the SSC Board on affidavits, these figures would militate against the same. All this really means that the decision is taken bearing in mind some few colleges and premier institutions in Mumbai. That such a vital decision has been taken on the basis that the students of SSC Board are suffering and are at a disadvantage in the State of Maharashtra but ultimately reliance is placed only on the figures of admissions of some few colleges in the city of Mumbai, then, one fails to understand as to how the State Government concludes that SSC Board students are a distinct group and they have been at a disadvantage all these ::: Downloaded on - 09/06/2013 14:44:57 ::: 117 years. As is apparent from the conclusions recorded by this Court in Percentile case and even by us, there is nothing on record which would indicate that the State was right in concluding that SSC Board students are a distinct class than the students from other Boards. The SSC Board Regulations do not make any such distinction but treats students from all Boards as eligible for admission to Junior College provided they have passed Xth standard examination of their respective Boards with the subjects enumerated in Regulation 79(xiv) of the Regulations. Therefore, the highest academic body in the State as far as Secondary and Higher Secondary education is concerned, does not hold the view that its students and other students must be treated differently. It is the presumption of the State Government alone that SSC Board students are a distinct class. Having found that there is no reasonable basis for such a conclusion, an attempt is made to justify the impugned Government Resolution on the ground that the SSC Board students suffer disadvantage in getting admissions to preferred colleges in the city. If SSC Board students cannot be treated differently for admission to XIth standard Junior College, then, we really do not see how the State can justify the impugned Government Resolution on the basis of the alleged disadvantage to them.
::: Downloaded on - 09/06/2013 14:44:57 ::: 118However, from whatever material has been produced during the course of arguments, we find that there is no disadvantage.
71. During the course of arguments, one chart was given to us which would show that there are enough number of seats in the Junior Colleges in the State of Maharashtra and students from all Boards can be accommodated. Mr.Singhvi after seeking instructions made a categorical statement before us that no student who has cleared Xth standard examination will be deprived of admission to Junior College in this academic year and the State Government and more particularly the Education Department has made arrangements so that each one of them gets admitted. It was stated across the bar by Mr. Singhvi upon instructions that the State Government had devised an admission process based on the availability of seats in the current academic year which would ensure that all students are duly admitted and would not be deprived of an opportunity to pursue Junior College education. The following figures, included in a chart, were placed before us by Mr. Singhvi himself :
::: Downloaded on - 09/06/2013 14:44:57 ::: 119Total Intake capacity Mumbai, Thane & Raigad (MUMBAI REGION) Passed Non- Total Intake Sr. No. District Miniority Students miniority Capacity Mumbai, Thane & 1 275506 116721 160759 277480 Raigad (Mumbai Region) Other SSC Board Students Status than Total (90%) SSC Board Sr. No. (10%) 1 Miniority (50%) 0 0 58361 Miniority Management 2 0 0 5836 (5%) ig Seats availble from 3 47273 5252 52525 miniority Jr. College (45%) Seats available from 4 0 0 83595 Non-
miniority Jr. College (52%) Seats available from 5 7232 803 8035 Non-
miniority Jr. College (5%) Seats available from 6 62216 6912 69128 Non-
miniority Jr. 'College
(43%)
Total Intake capacity 116720 12967 277480
Out of 275506 SSC pass students (Oct.2008 & March2009), around 20% students prefer to go Diploma & other courses.
::: Downloaded on - 09/06/2013 14:44:57 ::: 120Total Intake capacity of 11th admission Maharashtra State Passed Non- Total Intake Sr. No. State Miniority Students miniority Capacity Maharashtra 1 1263991 146351 1145520 1291871 State Total Intake Capacity of 11 th admission Maharashtra State SSC Board Other than Total Students (90%) SSC Sr. No. Status Board (10%) 1 Miniority (50%) 0 0 73176 Miniority 2 Management ig 0 0 7318 (5%) Seats availble 3 59271 6586 65857 from miniority Jr. College (45%) Seats available 4 0 0 595670 from Non-
miniority Jr. College (52%) Seats available 5 51548 5728 57276 from Non-
miniority Jr. College (5%) Seats available 6 443317 49587 492574 from Non-
miniority Jr.
College (43%)
Total Intake
554136 61901 1291871
capacity
Out of 1263991 SSC pass students (Oct.2008 & March2009), around 20% students prefer to go Diploma & other courses.
::: Downloaded on - 09/06/2013 14:44:57 ::: 121If these figures are considered, then, there is absolutely no basis for the conclusion that the SSC Board students were at a disadvantage and suffer injustice. This is a complaint made by the Intervenors SSC Board students without considering any of the charts placed by the State itself. Their complaint has no substance whatsoever. Once their grievance is not based on any such material, then, we really need not consider it.
72. The affidavit of the State Government also makes a reference to the inputs received from certain academic quarters including the Maharashtra Divisional Educational Board. In paragraphs 7 and 8 of the affidavit this is what is stated :-
"7. I say that the State had wide consultation prior to arriving at the decision it had taken vide the impugned Resolution dated 18th June, 2009, as is reflected from the following instances :
i) The Government had directed the Mumbai Divisional Education Board to compile a report on the differences in the educational pattern followed by the other Boards as well as State Boards. In view thereof, a workshop was conducted by the Mumbai Divisional Board on 9th and 10th September, 2008 on the basis whereof a report was prepared by it and submitted to the Government. At the said workshop, an endeavour ::: Downloaded on - 09/06/2013 14:44:57 ::: 122 was made to understand the educational pattern adopted by the various Boards and the deliberations of the said workshop were compiled in the report. I crave leave to refer to and rely upon the said report as and when produced.
ii) On 1st April, 2009, the Government held a meeting of the concerned departments inter alia, with the Online Admission process for Standard XI students from the academic year 2009-2010. At the said meeting, it was decided that 90% of the seats in the Junior Colleges be reserved for those students appearing through the SSC Boards and the remaining 10% be reserved for the other Boards. I crave leave to refer to and rely upon minutes of the said meeting as and when produced.
iii) On 15th April, 2009, a meeting was held with the Principals of Schools situate in Mumbai. Similarly, a meeting was also held on 16th April, 2009 in Thane with the Principals of Schools of other Boards situate in Thane and Raigad Districts. I crave leave to refer to and rely upon the Minutes of the said meeting as and when produced.
iv) On 27th April, 2009, a meeting was held of the concerned Departments, inter alia in connection with the issue pertaining to the admissions to XIth standard. It was decided to thereat to have a meeting with the concerned officials of the other Boards. I crave leave to refer to and rely upon minutes of the said meeting as and when produced.
8. I say that the impugned Resolution dated 18th June, 2009 makes a reference inter alia to the scheme of examination pattern, scheme of subjects, allocation of marks, syllabus etc., which necessitated the passing thereof for the benefit of a majority of students. The impugned Resolution came to be issued by the Government and after taking necessary steps in the ::: Downloaded on - 09/06/2013 14:44:57 ::: 123 matter and after having confabulations and consultations with all those concerned. For the said purpose, a meeting of the officials of the other Boards along with Sate Board officials was convened on 26th May, 2009 by the Government. The said meeting was attended by the representatives of the other Boards too whereat the issue pertaining to reservation of seats was discussed.
However, the representatives of other Boards expressed concern about the said reservations. A copy of the minutes of the said meeting dated26th May, 2009 is hereto annexed and marked as EXHIBIT '"3". I say that prior to taking a decision for On-line Admission for Std. XI students for the academic year 2009-2010, a meeting of all the School Principals was called for by the Government. At the said meeting, a Core Group comprising of 6 Principals of various Colleges in Mumbai was formed, inter alia to look into the issues and/or matters incidental to Admissions for Std. XI. A meeting of the said Core Group was also called upon to inter alia advice on the issues relating to admissions to Std. XI for the academic year 2009-10. The Core Group at its meeting held on 17th June, 2009 unanimously suggested that the Government distribute the seats for the Std. XI between the Board and the student from other Boards in the ratio of 90 : 10. Hereto annexed and marked as EXHIBIT - "4" is a copy of the said meeting held on 17th June, 2009. Thereafter, the Government issued the impugned Resolution on 18th June 2009."
73. A faint attempt is made to justify the impugned Government Resolution by urging that the State Board was of the opinion throughout that its students are at a distinct disadvantage in comparison to the students from ICSE and CBSE Boards. It was urged ::: Downloaded on - 09/06/2013 14:44:57 ::: 124 that 16,03,144 students appeared from the SSC Board in 2008-09, whereas only 15,608 students appeared for the Xth standard from another Board. Such vast number of students from one single Board alone would justify a decision to reserve seats for them in preferred colleges is the basis for this argument. The argument is without any substance and merit inasmuch as the chart produced by the State Government would indicate that despite such large number of students appearing for the SSC examination and possibly clearing them, has not resulted in their not getting seats in preferred colleges inasmuch as even in preferred colleges barring a few cases here and there, SSC Board students have got admissions. That is the experience even in this academic year. It would be interesting to see as to what the SSC Board has to say about this aspect. It has urged that there are major differences in the syllabus, the examinations conducted and marking pattern of each of these Boards and some data was placed before us as an annexure to the affidavit of the Board. However, the entire affidavit of the Board barring stating that the impugned Government Resolution prescribes a quota for admissions of the students prosecuting their duties from institutions affiliated to the State Board considering their number, nothing has ::: Downloaded on - 09/06/2013 14:44:57 ::: 125 been said with regard to the alleged injustice or disadvantage. We feel that the State Board was the best and possibly the only authority which could have demonstrated the disadvantage or injustice, if it was really there. The Board has stated nothing of this kind. Yet, the State Government persists with its stand that the State Board was consulted and only after such consultations and advise that the decision to issue the impugned Government Resolution was taken.
The Chairman of the Board has filed an affidavit before us and in the entire affidavit there is nothing which would indicate that the State Government was advised by the Board to issue the subject Government Resolution. The affidavit is conspicuously silent about any consultation either.
74. The Petitioners' Counsel in fact placed before us a comparison which would demonstrate that far from consulting the Board what took place in the academic year 2008-09 is that on 27th June 2008 the opinion of the third Judge (Hon'ble Mr. Justice J.N. Patel) was delivered. Thereafter, the State Government decided to convene a meeting of the experts in the academic field to explore the possibility of finding a proper solution to the problems of admissions ::: Downloaded on - 09/06/2013 14:44:58 ::: 126 to Junior Colleges. However, at a meeting that was convened of all Boards and the academic experts, the agenda was not admissions to Junior Colleges for the ensuing academic year. The only agenda was to discuss the problems faced by SSC Board. The working of the State Board came under some scrutiny and criticism in the meeting and in fact a consensus was reached that the Board must upgrade its standards if it really has to compete with the other Boards. The defects and deficiencies in the education pattern pursued by the Board, the general academic standards in the institutions affiliated to the Board, the handicap faced in the form of inadequate infra-
structure and proper teaching personnel led to a conclusion that if all this is improved then alone the State Board can in the longer run compete with the other Boards. The State Board needs to take decisions urgently so that it moves with the time. How does such a meeting mean consultation with the Board and seek its advice for issuance of the subject Government Resolution is not clear to us at all.
We repeatedly sought explanation from the learned Counsel appearing for the State Government and the Board as to how convening of a meeting to discuss problems of the Board could be said to be consultation with the Board and seek its advice for issuance ::: Downloaded on - 09/06/2013 14:44:58 ::: 127 of the subject Government Resolution, beyond pointing out the statements on affidavit of the respective clients, the learned Counsel were unable to give us any assistance. What is indeed startling is that the State Government decided to constitute a Committee named as Core Committee of academicians and experts in the field of education. This Committee consisted of 42 members. No meeting of this Committee was ever held. What was held was a meeting and that too on 17th June 2009 at which certain Principals were present and they took a decision to recommend to the State Government to issue the impugned Government Resolution. These are college Principals. No representative from the State Education Board was present at the meeting. There is nothing in the record to indicate that the issue was deliberated and discussed earlier. All the meetings that are referred to in paragraph 7 of the State Government affidavit have nothing to do with the issuance of the subject Government Resolution. The general problems as to how the admission process is to be initiated and completed for the academic year 2009-10 was the only matter discussed. It is not necessary to refer to or reproduce the Minutes of the meeting convened after the decision in Percentile case till the issuance of the subject Government Resolution. Suffice ::: Downloaded on - 09/06/2013 14:44:58 ::: 128 it to state that in none of these meetings was there any consultation or discussion or deliberation with regard to carving out or reserving seats for SSC students and the repercussions or consequences thereof.
It appears to us that a crucial decision affecting the academic standards in the State has been reached without any consultation or application of mind by the State Government. The policy decision in Percentile case was held to be vitiated on this ground and heavily criticized as well but the State has not taken any clue from the same.
Far from improving the affairs of the State Board, the State Government took a decision which has far-reaching effect on the students, mechanically, casually and contrary to the academic interests. Academic interest and public interest demanded that wide ranging consultations and discussions ought to have preceded such an important step. The State Government has to uphold the Constitution and the rule of law.
75. The State Government lost sight of the fact that the Indian Constitution has guaranteed right to equality and equal protection of laws to all persons. Further, the Indian Constitution has fundamental rights, directive principles and fundamental duties. The ::: Downloaded on - 09/06/2013 14:44:58 ::: 129 directive principles of State policy are fundamental to the governance and it is the duty of the State to apply these principles in making laws. Article 38 states that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life. Article 38(2) states that the State shall, in particular, strive to minimize the inequality in income and endeavor to eliminate inequality in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. If the State really wanted to secure a social order it would have taken care to discuss this subject at the relevant fora throughout the academic year. It should have held meetings and discussions of wide ranging nature with all affected individuals and authorities before taking a decision so vital to the career of the students. The State was aware that Junior College is a stepping stone to College and University Education of the students. Primary, secondary and higher secondary education are the Educational milestones, which the child reaches as soon as he joins a school. All children, of whatever religion, caste, sex, creed and irrespective of ::: Downloaded on - 09/06/2013 14:44:58 ::: 130 their place of birth, are treated and must be treated equally. Nothing should pollute their mind and more so seeds of Inequality and Injustice, be not sown, when there is none. The student community should not be divided on caste, communal and regional lines and they must feel one with this Nation. Article 39(a) of the Constitution of India provides that the policy of the State should secure to the citizens, men and women equally, the right to adequate means of livelihood. Article 39(f) provides that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Similarly, Article 41 provides for right to work, to education and public assistance. The State is thus obliged to frame and promote a policy ensuring fulfillment of the above directive principles. Instead, it has by an artificial differentiation unnecessarily and unjustifiably created an atmosphere in which students and children of tender age are fighting and battling with one another. An impression is created by the State action that the SSC Board students are looked down upon and discriminated in comparison to the students from other Boards, who hail from wealthy families and with ::: Downloaded on - 09/06/2013 14:44:58 ::: 131 elitist standards. In one of the Writ Petition before us from Pune, the Petitioner student belongs to a backward class and yet pursuing studies not through State Board but another Education Board.
Ultimately, education must encourage spirit of brotherhood and fraternity amongst students. They must not go at each other in such a manner that they are enemies and not friends. The fundamental duties enshrined in the Constitution of India state that it is the duty of every citizen of India to develop scientific temper, humanism and spirit of inquiry and reform. Further it is the duty of every citizen to strive for excellence in all spheres of individual and collective activity so that the nation constantly rises to higher level of endeavor and achievement. The atmosphere in educational institutions and in academic bodies must be such that everybody including children feel that they are citizens of India and by their excellence they are assisting the Nation to rise to higher levels. Ultimately, individual achievements must be for National good. That is what the fundamental duties teach us. The State should create such an atmosphere by which each citizen, whether he be a student or otherwise, strives for national excellence and achievement. He must feel that his individual duties and acts helps the Nation to progress ::: Downloaded on - 09/06/2013 14:44:58 ::: 132 and prosper. How can the students and citizens act in this way and in this manner unless the State creates the right atmosphere. The least the State must do is to divide the students on sectarian lines. Even the students from national Boards of Education are residing and staying in Maharashtra. They have appeared along with State students for the same examination (Xth standard) from educational institutions and schools in the State of Maharashtra. Our Constitution gives a right to every citizen to reside and settle in any part of India.
Therefore, there is place for every Board, whether Regional or National, in every State. Education encourages merit and excellence for national and public good. The State therefore must not vitiate and pollute the academic and social atmosphere so that the students and the nation as a whole is divided on narrow and parochial lines.
This precisely is the consequence of the impugned Government Resolution. Neither the State Board has been consulted nor its advice has been taken leave alone taking into confidence the other Boards before the subject Government Resolution was issued.
76. In these circumstances, we have no alternative but to hold that the issuance of the subject Government Resolution is ::: Downloaded on - 09/06/2013 14:44:58 ::: 133 nothing but an arbitrary and discriminatory action of the State. Thus impugned Government Resolution is grossly unfair, unjust, unreasonable and wholly arbitrary. It violates the mandate of Article 14 of the Constitution of India.
77. Once we have reached the conclusion that the Government Resolution cannot be sustained as there is no power to issue it and assuming that there is any power, the Government Resolution itself is violative of the mandate of Article 14 of the Constitution of India, then, what remains is to refer to some decisions brought to our notice. Suffice it to state that all decisions need not be referred. More so, the decisions brought to our notice by Mr. Seervai.
We have already clarified that we are not touching the issue of Government Resolution violating the mandate of Article 19(1)(g) of the Constitution of India. The right of the non-minority and minority educational institutions to set up, establish and administer educational institutions of their choice and the issue whether the Government Resolution has made inroads into that right or freedom, is something which need not be gone into in the facts of this case and we leave that controversy open for decision in an appropriate case.
::: Downloaded on - 09/06/2013 14:44:58 ::: 134Suffice it to state that minor students are before us together with their parents and their grievances and complaints alone are projected before us. Therefore, they alone are subject matter of our decision.
78. In these circumstances, only few decisions need to be referred to. Mr. Chagla and Mr. Dwarkadas have placed reliance upon the decision reported in (2002) 8 SCC 481. That is a decision in T.M.A. Pai Foundation and others vs State of Karnataka and others.
The decision no doubt is on the rights of the minority Institutions but that controversy is left open by us. Mr.Seervai and Mr. Chagla emphasized that private unaided non-minority educational institutions have a right to establish and administer educational institutions and which right includes the right to admit students. One need not touch upon this aspect. However, what needs to be noted is the emphasis of the Supreme Court even in this and other decisions, on liberal education. "All education is expected to be liberal. It should free us from the shackles of ignorance, prejudice and unfounded belief. If we are incapable of achieving the good life, it is due to faults in our inward being, to the darkness in us. The process of education is the slow conquering of this darkness. To lead us from ::: Downloaded on - 09/06/2013 14:44:58 ::: 135 darkness to light, to free us from every kind of domination except that of reason, is the aim of education." These are the observations and recommendations in a Report of a Commission known as University Education Commission which was chaired by none other than the eminent educationalist Dr. S. Radhakrishnan, Former President of India.
79. The other judgments emphasise that the rule is of merit-
cum-preference in admissions to educational institutions. They have been noticed in the Percentile case and more particularly in the majority opinion. We need not refer to them again. Suffice it to state that in Saurabh Chaudri and others vs Union of India and others, (2003) 11 SCC 146, the Hon'ble Supreme Court held thus :
"38. The third question that arises for our consideration is, whether the reservation by institutional preference is valid? India is one country and all its citizens should equally be treated. The essence of equality is enshrined in Article 14 of the Constitution of India. But does it mean that equality clause must be applied to all citizens to all situations? It is true that the country should strive to achieve a goal of excellence which in turn would mean that meritorious students should not be denied pursuit of higher studies. This itself brings us the question, who is to judge the merit and ::: Downloaded on - 09/06/2013 14:44:58 ::: 136 what are the standards therefor? It is extremely difficult to lay down a fool- proof criteria. Success or failure of a candidate in one examination or the other may not lead to infallible conclusion as regard the merit of a candidate so as to achieve excellence. The larger question, therefore, would be how to and to what extent balance should be struck.
39. Ideal situation, although it might have been to see that only meritorious students irrespective of caste, creed, sex, place of birth, domicile/residence are treated equally but history is replete with situations to show that India is not ready therefore. Sociological condition prevailing in India compelled the makers of the Constitution to bring in Articles 15 and 16 in the Constitution. The said Articles for all intent and purport are species of Article 14 which is the genies in a sense that they provide for exception to the equality clause also. Preference to a class of persons whether based on caste, creed, religion, place of birth, domicile or residence is embedded in- cur constitutional scheme. Whereas larger interest of the country must be perceived, the law makers cannot shut their eyes to the local needs also. Such local needs must receive due consideration keeping in view the duties of the State contained in Articles 41 and 47 of the Constitution of India." (Emphasis ours)
80. Mr.Seervai has taken us through the decisions of the Supreme Court on reservations, educational or otherwise, and specially emphasized the observations in paragraphs 42 to 44 of the ::: Downloaded on - 09/06/2013 14:44:58 ::: 137 decision of the Supreme Court reported in (2002) 1 SCC 428 (AIIMS Students Union vs AIIMS and others). The same principles have been applied by us. The decision in Roshana's case (supra) relied upon, has already been noted, so also the other decisions which have been relied upon by the learned Counsel for the Petitioners. All have been noted in the Percentile case. The Supreme Court has in State of Bihar and others v Project Uchcha Vidya, Sikshak Sangh and others, reported in (2006) 2 SCC 545 has held that imparting of education is a sovereign function. The State framed the scheme in question having constitutional goal in mind. Imparting education is the primary duty of the State and education is held to be a human right.
81. With regard to the status of the Regulations of the State SSC Board, we do not find it necessary to refer to the settled principles inasmuch as none dispute that the Regulations in the instant case have a statutory flavour. They are framed by the State Board in exercise of their powers conferred by the Act and we have already discussed the relevant provisions in the earlier part of this judgment.
::: Downloaded on - 09/06/2013 14:44:58 ::: 13882. In so far as the decisions which have been relied upon by Mr.Singhvi, what we find is that his reliance is on M/s. Dwarkadas Marfatia and Sons v Board of Trustees of Port of Bombay, AIR 1989 SC 1642 and more particularly paragraph 28 thereof, in support of his submission that every governmental action is presumed to be reasonable and in public interest. It is for the party challenging its validity to show that the action is unreasonable, arbitrary or contrary to professed norms or not informed by public interest. He submits that the burden is heavy and must be discharged in a manner laid down in this decision. We are of the opinion that the burden is duly discharged by the Petitioners inasmuch as they have rebutted the presumption with regard to the impugned action/Government Resolution by pointing out not only the judgment in Percentile case but urging and proving that the basis upon which the decision is taken is wholly arbitrary. Once they so urge and demonstrate, then, the decision must be struck down as violative of the mandate of Article 14 of the Constitution of India. The State has failed to show that the classification between students is reasonable and has a rational nexus with the object sought to be achieved. If the object ::: Downloaded on - 09/06/2013 14:44:58 ::: 139 sought to be achieved is excellence and by giving opportunity to all meritorious students in admission to Junior College, then, that object is not achieved at all. The classification itself is without any foundation or basis.
83. Mr.Singhvi has relied upon some portion of the judgment of Hon'ble Justice J.N. Patel in Percentile case. But far from assisting the State these observations militate against its stand in the present case.
84. Then comes the decision reported in Damodar Shantaram Nadkarni v S.E. Sukhtankar, Vol. 75 (1973) BLR Page 538, Mr.Singhvi placed reliance upon this decision in support of his contention that circulars, orders, directions and instructions issued by the Commissioner in exercise of his statutory powers under Clause 64 read with Section 83 of the Bombay Municipal Corporation Act have binding effect as they are statutory rules or orders. The controversy before the Division Bench of this Court was that the ::: Downloaded on - 09/06/2013 14:44:58 ::: 140 Petitioner/Appellant was employed as a Tutor in Chemical Pathology in the Department of Pathology and Bacteriology of the Topiwala National Medical College. He worked in that capacity until he was dismissed from service in October 1964. Certain irregularities were suspected and investigation was carried out in July 1963. Certain statements were recorded including that of the Petitioner. After completion of a preliminary inquiry, an Inquiry Officer was appointed to hold a departmental inquiry. The Petitioner/Appellant was suspended; a charge-sheet was served; inquiry was held and at the conclusion of which report came to be submitted. The Deputy Municipal Commissioner (Labour) served a notice (show cause notice) calling upon the Petitioner/Appellant to show cause as to why he should not be dismissed from Municipal service as the charges were held to be proved. A copy of the report was given. The Petitioner submitted his final explanation and an approval was given by the Municipal Commissioner to the draft letter of termination/dismissal which was later on signed by the Deputy Municipal Commissioner (Labour), pursuant to which he was dismissed. An Appeal was preferred by the Petitioner/Appellant against the order of dismissal which came to be rejected by the ::: Downloaded on - 09/06/2013 14:44:58 ::: 141 Municipal Commissioner. Even before receiving a copy of the appellate order, a Writ Petition was filed by him challenging validity of the entire proceedings and the Single Judge dismissed the Writ Petition. Thereafter the matter was carried in Appeal. During the course of arguments in the Appeal, it was contended that having regard to the provisions of the Bombay Municipal Corporation Act, Municipal Commissioner is the only competent authority to dismiss the Petitioner but he has not done so and the order of dismissal passed by Deputy Municipal Commissioner (Labour) was by an incompetent officer/authority and during the course of that argument and considering that and other arguments that the observations relied upon by Mr.Singhvi have been made. We do not see how they assist Mr.Singhvi inasmuch as it is well settled that the impugned Government Resolution is issued by taking recourse to Article 162 of the Constitution but if there was already a Act in the field dealing with secondary and higher secondary education and a Board was constituted thereunder who ought to have been consulted and whose advice should have been taken, then, issuing a Government Resolution by resorting to Article 162 of the Constitution of India is not permissible, is our conclusion. In the decision relied upon by ::: Downloaded on - 09/06/2013 14:44:58 ::: 142 Mr.Singhvi, the controversy was not whether there was any power to issue the circulars, orders and instructions, the argument was what is their status and that has been answered by relying upon several statutory provisions. This decision is of no assistance to Mr.Singhvi.
85. The other decisions relied upon by him were to support his argument that there are no pleadings and that no foundation is laid, but in our view the pleadings are adequate and sufficient. It is their substance which is crucial in this case and all facts are already set out. No further particulars are necessary to answer the constitutional challenge. Even otherwise when all the relevant material is placed on record, in our view the technical arguments based on burden of proof must loose its efficacy. Moreso in a case wherein the question of young students' academic life is at stake.
86. As has been rightly urged, the entire Government Resolution is based upon the the ruling of the Supreme Court in the case of K. Duraisamy v State of Tamil Nadu, (2001) 2 SCC 538.
::: Downloaded on - 09/06/2013 14:44:59 ::: 143Reliance is placed by Mr.Singhvi on paragraphs 8 and 12 of this decision. We do not see how these observations assist Mr.Singhvi.
There is no doubt whatsoever that the Government possesses the right and authority to decide from what source the admission in educational institutions or to what discipline or course therein have to be made and that too in what proportion. Further, reservations under the Constitution is something which is not in dispute. Further, the word "reservation" by itself does not mean that constitutional provisions and reservations therein are in issue. Reliance on paragraph 15 is to support the argument that there is no real distinction between the words "classification" and "reservation".
There cannot be any dispute in this regard inasmuch as in the instant case we have tested the matter on the basis that it is a classification of students of SSC Board and whether the grievance in that behalf is valid. We have not rendered our decision only by accepting the arguments of the Petitioners that there is a wholesale reservation of seats in favour of the SSC Board students but we have tested its legality and validity in law so also on the touchstone of Article 14 of the Constitution of India.
::: Downloaded on - 09/06/2013 14:44:59 ::: 14487. Reliance by Mr.Singhvi on the decisions with regard to the sources from which the Government can fill up seats in its service is also not accurate inasmuch as if really the stream and the source are distinct, then, there cannot be any violation of Article 14 of the Constitution of India. However, if there are no different sources or streams but the Constitutional guarantee of equality has been breached by treating unequals equally or equals unequally, then, there is no alternative but to strike down such an act or decision.
88. His reliance on some observations in Sarva Shramik Sanghatana (KV) Mumbai v State of Maharashtra, a decision reported in (2008) 1 SCC 494, is to the extent that a decision of a Court should not be read like a statute. A little difference in facts or additional facts may make a lot of difference in precedential evaluation of the decision. About this principle also there is no dispute. However, we are of the view that identical controversy was in issue before this Court in Percentile case and, therefore, the judgment in that case could not have been brushed aside by the State.
::: Downloaded on - 09/06/2013 14:44:59 ::: 14589. The reservations in educational institutions and the extent of the same are subject matter of decisions rendered by the Supreme Court and although they have been brought to our notice by Mr.Singhvi, we do not feel it necessary to refer to each one of them inasmuch as none say that merit-cum- preference should not be the criteria and it is that principle which we have applied. Finally, Mr.Singhvi relied upon the case in G.B. Mahajan and others v Jalgaon Municipal Council and others reported in (1991) 3 SCC 91, wherein the principle that a policy decision cannot be challenged has been reiterated. However, there are exceptions which have been indicated in this very case on which even a policy decision can be tested in judicial review. We have gone by the very exceptions and principles and in our power of judicial review scrutinized the instant Government Resolution.
90. Mr.Singhvi had also brought to our notice Minutes of several meetings of Principals of Schools and other Boards in Thane and Raigad Districts but each one of them pertains to the On-line admission process and not reservation of seats for State Board ::: Downloaded on - 09/06/2013 14:44:59 ::: 146 students. We have already considered these resolutions and their effect and found that they fall short of requirement laid down in the Maharashtra Secondary and Higher Secondary Education Act, 1965.
91. Mr.Aney and Mr.Jahagirdar, learned Senior Counsel appearing for the Intervenors, had in their oral arguments and written submissions contended that the principles which have been laid down in the Supreme Court decisions with regard to equality in matters of admission and merit-cum-preference rule must be seen in the backdrop of the admissions to the professional courses in Medical and Engineering colleges. It is their contention that the principle will have no application to the admissions to higher secondary education courses. These arguments are merely stated to be rejected inasmuch as the principle laid down that the Rule must be of merit-cum-
preference is of universal application and must apply to admission at every level. The Supreme Court decisions cannot be brushed aside or distinguished by urging that the facts before the Supreme Court must be seen before the principle is applied. The Supreme Court was concerned with admissions may be at a higher level but when it ::: Downloaded on - 09/06/2013 14:44:59 ::: 147 emphasises and restates the principle that merit-cum-preference should be the governing and relevant rule, then, we cannot ignore the same as that would mean going contrary to and disobeying the binding precedents.
92. The judgment of a learned Single Judge of Gujarat High Court has been relied upon by Mr.Aney but the basis of the decision of the Single Judge must be seen and that is in paragraph 6. There were different sources through which the students passed their qualifying examinations and sought admissions in various professional courses. The argument was that State must conduct compulsory common entrance test to prepare a common merit list from amongst all the students seeking such admissions. It is while considering that request and noting that students appearing through the schools affiliated to Central Board and Gujarat Board have seats earmarked for them in professional courses and a common entrance test for the academic year in question was held for the first time by the Gujarat State, despite the common entrance test, the Rules prescribed that a certain percentage of seats will be reserved for the ::: Downloaded on - 09/06/2013 14:44:59 ::: 148 Gujarat Board students. This was the basic challenge and the peculiar Rules were noted. It is in that context and considering that in service candidates have a reservation or a quota that the observations relied upon by Mr.Aney have been made. That reservation for in service candidates can be made and that is an intelligible differentia having nexus to the object sought to be achieved is accepted in the Supreme Court decisions itself. Following that, the learned Single Judge rejected the Petition. We do not see how the observations in this judgment are of any assistance to Mr.Aney.
93. It is settled principle that the State can prescribe the sources from which the candidates are declared eligible for admission but if the same is one and the selection is made on the basis of the same, then, further reservation in favour of one category, is arbitrary.
This principle is reiterated and if any reference is needed, then, suffice it to refer to paras 38, 49 to 51 of the Supreme Court decision reported in AIR 1972 SC 1375 (State of U.P. v U.S.V. Balaram).
::: Downloaded on - 09/06/2013 14:44:59 ::: 14994. While rendering our conclusions, we had relied upon a decision of a Division Bench of this Court reported in 1984 Mh.L.J. 633 (Bhangre Purshotam and others v State of Maharashtra and others). Prior to our reliance on this decision, we had indicated to the parties our inclination to follow the principle laid down therein. It is clear from a perusal of the said decision that somewhat identical controversy was before this Court. The 35 students who had been admitted to XIth standard of a College at Ulhasnagar but denied admission to the Government Technical School at Ulhasnagar for the Workshop Technical Training facility, challenged an order of the said Technical High School dated 17th June 1982 and the order dated 22nd July 1982 so also sought a writ of mandamus or any other appropriate directions to admit them to the XIth standard in the technical subjects on the basis of merit amongst all the students seeking admission in that school.
95. Their argument was that they had passed Xth standard examination (SSC) in the examination held in March/April 1982, having secured 50% or more marks and are eligible to admission in ::: Downloaded on - 09/06/2013 14:44:59 ::: 150 XIth in a high school which is permitted by the Board who have XIth standard or First Year Junior College. Several such students including the Petitioners who have offered workshop technology who have been admitted to Xth standard in the said Ulhasnagar College, were denied admissions to the Government Technical High School at Ulhasnagar, although merit was the basis for admission. They contended that merit should alone govern such admissions. The argument on behalf of the State was that a group of 20 students was fixed for each of the three Junior Colleges including the Ulhasnagar College and based upon the same a decision was taken to grant admissions to 20 students from Ulhasnagar College. The College Principal took up the case of the students like the Petitioners by urging that the admission should be made on the basis of merit ignoring the quota system. The Principal reasoned that the source from which these students have come is common, namely, Xth and XIth standard and if they are meritorious and otherwise eligible for admission, they cannot be denied the same only because a quota was determined by the State.
The determination of quota (20 students from respective Junior Colleges) was challenged as violative of the mandate of equality enshrined in the Constitution of India. The Government Resolution ::: Downloaded on - 09/06/2013 14:44:59 ::: 151 has been referred to in paragraph 10 of the Division Bench decision, in paragraph 9 the challenge is outlined. Thereafter, the relevant Rules have been referred and the Division Bench concludes that there is no intelligible differentia for sustaining the classification/quota and just because first 60 out of an integrated merit list would consist of students from one college is no ground to carve out a quota is the conclusion reached and that is on the basis that merit alone should be the criteria for admission. While reiterating this principle, the Division Bench referred to the decisions in the field and the mandate flowing from Article 14 of the Constitution of India. We are of the view that this decision is on all fours and must be held to be applicable to the controversy before us. We are of the view that the arguments that the same has no application to the facts of the present case is without any substance.
96. The aforesaid are our reasons for which we conclude that the Government Resolution dated 18th June 2009 cannot be sustained and is liable to be struck down. We therefore allow the Writ Petitions by making the Rule absolute in terms of our operative order pronounced on 6th July 2009 which reads thus :-
::: Downloaded on - 09/06/2013 14:44:59 ::: 152Arguments concluded.
On 18th June 2009, School Education and Sports Department, Government of Maharashtra, issued a Government Resolution No.HSC-1079 (287/09)HSCI directing that 90% seats would be reserved for the students passing through 10th standard examination from Maharashtra State Secondary Board and Higher Secondary Education Board, Pune and 10% seats for students passing from other Boards. More appropriately, the Government Resolution can be reproduced at this stage itself. The same reads as under :
"Reservation of 90:10 seats in XI Std.
admission for the students passed out X Std. from SSC and other boards.
GOVERNMENT OF MAHARASHTRA Department of School Education and Sports Government Decision No.HSC 1709/(287/09)/Umashi-1 Mantralaya Vistar Bhavan Mumbai 400 032 Date : 18th June 2009 Read.: (1) Govt. Circular, Department of School Education and Sports No.HSC 2008/ (180/08)/Umashi-2, dated 27th June 2008.::: Downloaded on - 09/06/2013 14:44:59 ::: 153
Introduction : In the State, the examination of Std. X is conducted by Maharashtra State Board of Secondary and Higher Secondary Education, Pune (S.S.C. Board), Central Board of Secondary Education, Delhi (C.B.S.E.), International Curriculum of Secondary Education, Delhi (I.C.S.E.) and other Examination Boards. The examination pattern, subject pattern, scheme of marking and student class of all Boards differs to the great extent. Considering this aspect, by doing percentile of the marks of the students who have passed out standard X examination from the different examination Boards and thereby to make the process of admission in junior college more easier, a formula of percentile of the percentage of the marks with the help of actual marks was followed by Government Circular. However, PIL was filed against the same before the Hon'ble High Court and as per the order passed by the Hon'ble High Court the said formula has been set aside. After considering number of schools of SSC Board, HSC Board, CBSE, ICSE and other boards, number of students passed out from these boards, percentage of their marks, number of seats for admission, number of seats available in the schools of CBSE, ICSE Boards for XI and XII standard, students seeking admission in these colleges for last 3-4 years, number and percentage of students clearing their X examination from other boards, it has been noticed that for the benefit of the SSC Board students in the Metropolitan City, to give equal opportunity to the students of all Boards seeking admission and also keeping in view the directions given in last year by the Hon'ble High Court in its decision in the matter of percentile and to regularize and equalize the admission of XI standard for students from the SSC, CBSE, ICSE and other Boards as well as not to compromise with justice and merits, the government has taken the following decision.
Government Decision : In the State, the examination of Std. X is conducted by Maharashtra State Board of ::: Downloaded on - 09/06/2013 14:44:59 ::: 154 Secondary and Higher Secondary Education, C.B.S.E., I.C.S.E and other examination Boards. The examination pattern, subject pattern, scheme of marking and student class of all Boards differs to the great extent. Taking an all-inclusive/omnibus view for XI std admissions, 90% seats have been reserved for SSC board students and 10% seats have been reserved for the students from ICSE, CBSE and other Boards. The said Government decision shall be brought in to effect from the academic year 2009-10. Similarly, social and other reservation orders of the government passed from time to time with regard to the admissions for XI standard shall remain applicable.
This Government Circular is available on Government of Maharashtra website No. www.maharashtra.gov.in and its Computer Code No. is 20090618212604001".
By Order and in the name of Governor, State of Maharashtra, Sd/-
(A.M. Mattalvar) Addl. Secretary of Government To, Director of Education, Maharashtra State, Pune. Secretary to Governor, Raj Bhavan, Mumbai.
Chief Secretary to Hon'ble Chief Minister.
Secretary to Hon'ble Deputy Chief Minister.
Secretary to Maharashtra Legislative Assembly, Secretariat, Mumbai.
Secretary to Maharashtra State Council, Secretariat, Mumbai.
Chief Secretary to all Universities."
::: Downloaded on - 09/06/2013 14:45:00 ::: 155The Constitutional validity, legality and correctness of the above Government Resolution has been challenged in the above mentioned various Writ Petitions, inter alia, on the following grounds :-
(a) The reservation introduced in the Government Resolution is unconstitutional and is not permissible in law as it is not creation of any principal or subordinate Legislation. On the contrary, it is out of political compulsion.
(b) The Government has grabbed the powers of the Board and has acted in an arbitrary manner as the Resolution in question is not supported by any valid reasoning.
(c) Golden rule of merit-cum-preference has been defeated in its entirety. It is the right of the Petitioners to seek admission to preferential colleges on the basis of their merit. As such providing such reservation is erosion of the protection available to them in law.::: Downloaded on - 09/06/2013 14:45:00 ::: 156
(d) The Government has no authority in law to regulate and control the admissions to unaided and/or minority unaided, aided Institutions. The field is squarely covered by the law enunciated in T.M.A. Pai Foundation and others vs State of Karnataka and others, (2002) 8 SCC 481 and P.A. Inamdar and others vs State of Maharashtra and others, AIR 2005 SC 3226 which has been violated by the Respondents. The excellence in education is sought to be destroyed because of the Government Resolution as 90% reservation tantamounts to practically excluding the students from all other Boards from getting admission on the basis of merit. There is no application of mind by the competent authorities. They have acted in undue haste, without any proper records and without consultation. The decision taken is contrary to all the principles stated and directions given in Francis D Luis vs State of Maharashtra and others ("Percentile" case).
(e) The Respondents have created artificial classification and termed it as a quota. This classification is based on no proper ::: Downloaded on - 09/06/2013 14:45:00 ::: 157 data, record or criteria and has no "intelligible differentia". In fact, the object stated in the Government Resolution is contrary to the very spirit of the Government Resolution.
(f) The entire action of the Respondents in issuing the Government Resolution makes inroads into principle of equality in terms of Article 14 of the Constitution of India and that too by an executive action which is not in accordance with law. The State Government has no authority or jurisdiction to issue such a Government Resolution. On the contrary, the Board has failed to discharge its statutory obligations in terms of the provisions of the Act and the Regulations framed thereunder and in fact has permitted the Government to transgress into the jurisdiction of the Board that too without any proper authority in law.
(g) The Respondents have not framed any proper, reasonable and acceptable method of determination of merit for admission to the Junior Colleges and has practically repeated the performance of the previous year.::: Downloaded on - 09/06/2013 14:45:00 ::: 158
It is not necessary for us to notice in greater detail the facts giving rise to all the above Writ Petitions. Reference can be made to the facts appearing in Writ Petition No.1086 of 2009 and Writ Petition (Lodging) No. 1204 of 2009.
The Petitioner in Writ Petition No.1086 of 2009 is the father of minor, Isha Maniar, who passed her 10th standard examination from Indian Council for Secondary Examination (ICSE) securing 76.71%. According to the Petitioner, it is the duty of the State of Maharashtra to set up schools to provide primary and secondary education in the State of Maharashtra but because of its inability number of private aided and unaided schools and colleges have come up in the State of Maharashtra. There are different schools which are affiliated with one or other Boards being, ICSE, CBSE, IGCSE, IB in addition to the State Board - The Maharashtra State Board of Secondary and Higher Secondary Education, Pune. State of Maharashtra is alleged to have not running the schools properly and is not imparting education to the student as per required standards and in accordance with the curriculum. Various articles are stated to have appeared in the newspapers in that regard. On 27th June 2008, ::: Downloaded on - 09/06/2013 14:45:00 ::: 159 the Respondents had introduced a percentile system for calculating marks for all the students who had given examination through different Boards with a view to give preferential treatment to students having given examination through SSC Board. Correctness of this resolution was challenged in a Public Interest Litigation No.94 of 2008 and the Division Bench of this Court vide its judgment dated 25th September 2008 had struck down the Government Resolution and this judgment attained finality. The meritorious candidates have a right to get seat in a college of their preference and in matters of admissions there has to be fairness, transparency and adherence to the rule of merit. The Respondents are stated to have again made an attempt to achieve its political agenda at the eleventh hour and on the eve of starting of process of admissions to standard eleventh, which were to commence from 25th June 2009, it issued the Government Resolution whereby all Junior Colleges in the State of Maharashtra have been notified and directed to reserve 90% of the total number of seats exclusively for SSC Board students and leaving 10% for students of all other Boards. This Resolution of the State is challenged on various grounds as already noticed.
::: Downloaded on - 09/06/2013 14:45:00 ::: 160Similarly, in Writ Petition (Lodging) No. 1204 of 2009, nearly 62 students from different Boards who have passed their 10 th standard examination have challenged the same Resolution. All these students have studied in the schools affiliated to ICSE/CBSE Boards. These Petitioners claim that on 9th June 2009 they were shocked to read in various newspapers that the State Education Minister had announced at a Press Conference held on 8th June 2009 that Government was planning to introduce 90% reservation in Junior Colleges for students from SSC Boards. Later on it was said that the matter was being examined by the Chief Minister and other senior officials in the Government. However, finally on 18th June 2009 the Government decided to go ahead with such reservation which is challenged in the Writ Petition.
It may be noticed that a Writ Petition has already been instituted by Association of ICSE School of Maharashtra where they have challenged the legality of this Resolution even on the ground that they being minority or other unaided private Institutions, Government has exceeded its authority and jurisdiction in issuing ::: Downloaded on - 09/06/2013 14:45:00 ::: 161 such a direction containing the reservation in the garb of classification.
During the pendency of these Writ Petitions, number of Applications were filed and the Applicants wanted to intervene in the matter. These included some Teacher Parent Association which were opposing the Petitions contending that the action of the Government was fully justified and was in accordance with law. While the other Applicants wanted to intervene to support the case of the Petitioners and pray for quashing of the Government Resolution dated 18th June 2009. All the intervening applications were allowed to the extent that all parties concerned were heard and the case was argued by eleven Senior Advocates of this Court over a reasonable span of time.
The Respondents have taken the stand that it is not a reservation but it is merely a classification and/or providing of a quota on rational and reasonable basis. It is averred in the reply affidavit that this decision of 90% seats being exclusively given to SSC students is based upon the records. The Workshop Report, the ::: Downloaded on - 09/06/2013 14:45:00 ::: 162 deliberations and consultation that has taken place between the Principals of different colleges and the authorities concerned formed the basis for passing the Government Resolution. It is denied that the decision is taken in undue haste and has been made at the eleventh hour. It is submitted that the action taken by the Respondents in issuance of the Government Resolution dated 18th June 2009 is well within the authority and power of the Government. It is averred that a meeting was convened on 26th May 2009 of the officials of the other Boards along with State Board officials and the issue with regard to reservation of seats was discussed. Representatives of the Boards had expressed concern about this reservation. It was also agreed to create a Core Group. However, subsequently, six Principals of various Colleges in Mumbai formed another Core Group and they called a meeting on 17th June 2009 and unanimously suggested that the Government should distribute the seats by providing 90% reservation to SSC Board students. This meeting was held on 17th June 2009 and the Government Resolution was issued on 18th June 2009. It is specifically denied in the reply affidavit that the Resolution dated 18th June 2009 in any manner whatsoever impinge upon the golden rule of merit-cum-preference and more particularly when there are two ::: Downloaded on - 09/06/2013 14:45:00 ::: 163 distinct and different classes of students and they can reasonably be classified by providing distinct representation/reservation.
According to the Board, from 1973 till 1993, the students graduating from ICSE and CBSE school Boards were awarded weightage of 5% marks relative to those graduating from State Board schools. However, in the year 1993, this policy was modified and weightage was discontinued. A strong historical justification is provided for treating students differently and separately passing from these two Boards. In Mumbai Region itself, there are 2,48,411 seats available in the Junior Colleges and nearly 24,800 seats will be available under 10% reservation. Thus, according to the Board, no prejudice has been caused to the students passing from other Boards.
Number of Senior Advocates have raised varied and rival contentions in these Writ Petitions. They have raised serious questions of law as well as referred to the factual matrix of the case in some detail. Written Submissions have also been filed on behalf of various parties to the Writ Petitions as well as the ::: Downloaded on - 09/06/2013 14:45:00 ::: 164 Intervenors. The complete judgment is bound to take considerable time. Therefore, at this stage, we propose to deal with the matter some what differently. After considering the rival contentions raised in the present Writ Petitions including the questions of law, we have decided to record our conclusions and reliefs which the Petitioners may be entitled to, for the reasons to be recorded subsequently. Such an approach we have adopted keeping in view the interest of all the parties to the Writ Petitions and particularly the interest of the students of either Board whose future is at stake. Further, that the students should get timely admission and their academic courses should start as per declared Schedule.
CONCLUSIONS AND RELIEFS I) The Government Resolution dated 18th June 2009 violates the law and principles stated by majority view of this Court in the case of Francis D Luis v State of Maharashtra (PIL No. 94 of 2008), 2008 (5) Bom. C.R. 569, judgment dated 25th August 2008 ::: Downloaded on - 09/06/2013 14:45:00 ::: 165 and 26th September 2008 (decided by J.N.Patel, J.) hereinafter referred to as "Percentile" case which has been accepted by the State and has attained finality. Despite this, the judgment and the directives contained therein have been followed by the State only in its breach by repeating the same illegalities and irregularities.
In that case, the Court had set aside the percentile method adopted for allocation of seats, resulting in inequality between the students passing through SSC Board on the one hand and other Boards on the other. The plea taken by the Respondents that injustice was being done to the students of the SSC Board was specifically rejected. So was the distinction of privileged and underprivileged students belonging to different Boards and it was held that the steps taken by the Respondents was hardly an appropriate exercise of the might of the State and this hardly in fact and in law was a step for bringing uniformity between the students of different Boards. The Court held as under :-
"83 .....Therefore, such decision as tried to be put forth before the Court in the two affidavits filed by the Deputy Secretary of Education is nothing but an afterthought for ::: Downloaded on - 09/06/2013 14:45:00 ::: 166 the reason that the State proceeded to apply the method of normalization by introducing percentile system only to favour the students of SSC Boards, who, according to the State, get less marks compared to the students passing their 10th standard examination from other Boards which was based on sentiment prevailing in the society......"
and finally held that the formula was illegal and unconstitutional.
Except on the question of parity of courses and fine distinction between standard of education of the stated Boards, even the Division Bench was unanimous and directed that the State should take such decisions well in advance and not at eleventh hour as it is bound to prejudice the interest of all concern.
The learned Third Judge while commenting upon powers exercised by the State observed that wide powers were given to the State but it is obligatory on the part of the State authority to clearly record its reasons while exercising such powers.
Applying the same principles to the Government Resolution, it can be observed that the present decision of the State ::: Downloaded on - 09/06/2013 14:45:00 ::: 167 Government is also arbitrary, without any data and basis and without proper application of mind.
In the present case, all these infirmities are patent on the record and the impugned Government Resolution has been issued only for achieving political ambitions and to favour students belonging to the SSC Board.
II) The golden rule of merit-cum-preference which is the only logical and acceptable principle for allotment of seats has been flagrantly violated in its spirit and substance.
The effect of 90% reservation for the SSC Board students would leave only 10% seats for students of all other Boards in the entire State of Maharashtra in the preferential colleges in Metropolitan cities which every candidate of higher merit intends to join on the strength of his hard work and merit. It is material to note that the Court in Percentile case held as under :-
::: Downloaded on - 09/06/2013 14:45:00 ::: 168"... It will be totally unfair to apply a method for altering the position of merit between different classes and even between the same class. The entire emphasis is on attaining higher merit and with the principle object of getting admission to a preferential Institution, School or College. If despite attaining such merit, the students have to be subjected to such competition for determining a rank which shall prejudicially affect the very basic concept of merit, such method would be to, say the least, unjust, unfair and even unconstitutional."
Stricto senso principle of "legitimate expectancy" may not be applicable but it must be applied as a useful guide in determination of a policy decision. May be there is no 'absolute legal right' to claim a seat in a particular college but with reference to the golden rule of merit-cum-preference, the meritorious candidates can hardly be ignored. The decision of the State should be founded on fair play, equality and should be in consonance with known norms applicable to the field in which the policy decision is taken. The rule of equality would also attract fair competition, particularly, when there are limited seats in the preferential Institutions. The doctrine of fair competition would demand that admissions are given on any rational and prudent basis which will be acceptable in law and which even otherwise are within the four corners of the norms applicable to ::: Downloaded on - 09/06/2013 14:45:00 ::: 169 such Institution. In other words, denying fair competition itself would be an instance of arbitrariness.
To deal with this aspect illustratively, the effect would be that a candidate of higher merit from other Boards and who has attained more than even 90% marks, may not be able to get admission to Junior College or Institution of his/her own preference and not even to the preferential Institutions, while a student of the SSC Board acquiring even 75% or 80% marks may in all probability will get admission of his/her choice and even in any preferential Institution of repute in Mumbai. This per se defeats the rule of merit, equality and fairness.
In a case where 60 students were to be trained in the Government Technical Training School and College decided to take students from a particular College ignoring merit, a Division Bench of this Court in the case of Bhangre Purshotam and others vs State of Maharashtra and others, 1984 Mh.L.J. 633, held as under :
::: Downloaded on - 09/06/2013 14:45:00 ::: 170"16. In the present case too, among the students similarly placed certain students are preferred ignoring merit only because they hail from a particular college and not the other. The criteria sought to be made applicable to students of different colleges of the same State, in our view, is invidious, hostile and arbitrary discrimination and denies equal opportunity to students similarly placed. There is no intelligible differentia to sustain this classification. It does not bear any nexus to the object sought to be achieved namely, training 60 students at the Government Technical Training School, Ulhasnagar.
17. One of the grounds mentioned is that if the first 60 out of an integrated merit list are granted admission, there is a possibility of all the 60 seats or at least more than 20 seats being allotted to one college, with the result that other colleges may be allotted less than 20 seats or may be none at all. We do not see, why each of the 3 colleges should necessarily be allotted 20 seats, if thereby less meritorious students are admitted and more meritorious are denied. There does not appear to be any rational basis for adopting this principle. After all, it is not the colleges that are granted admission, it is the students. If admission of students to the respective participating colleges is to be on the basis of merit, there is no reason why that system should not be adopted for admission to the training course which is part of the curriculum fixed for the XIth and XIIth Standards of Junior College. If the object sought to be achieved is to impart training in technical courses to meritorious students and that is the basis on which the respective colleges are required under the Government Resolution to admit students, for imparting technical training to such students, that criteria cannot be given a go-by and a different criteria of allotting 20 seats to each of the participating colleges adopted. That would result in denying admission to meritorious students for no fault of theirs, unless joining a reputed college itself is held to ::: Downloaded on - 09/06/2013 14:45:00 ::: 171 be a fault. In fact, as per Government Resolution dated 27.6.1975, no participating college can legally deny admission to a student, if he is entitled to admission on the basis of marks secured by him. It is common knowledge that certain institutions acquire a reputation for excellence in imparting instruction in particular subjects. Students may apply for admission to a particular college for a variety of other reasons as well, like transport facility, proximity of situation and the like.
If merit is not made the basis for admission to the Government Technical Training School also, a meritorious student would pay the penalty of having joined a good college only because a more meritorious student has also taken admission in that college. The further anomalous situation would be that he would get admission if only he joins the other participating college where the other students are less meritorious. A system of admission to the technical course which gives a go-by to the merit and makes it dependent upon the fortuitous circumstances of a particular student being from one participating institution and not the other, cannot but be termed irrational and arbitrary. The Government Technical Training Centre provided the training facility, being a 'state' within the meaning of Article 13, cannot adopt an arbitrary method of selecting candidates for admission to its facility. All students who have joined any of the three participating colleges for availing the facility at this centre must be treated equally before law.
That can be assured only by granting admission on the basis of merit among the students applying for being admitted to this facility. Any method of allotting quota to each of the colleges, would result in granting admission to less meritorious students and denying admission to more meritorious students, only because they come from a particular college and area. Any such basis for admission cannot be deemed "fair, social or equitable". That, as laid down by the Supreme Court, is illegal and arbitrary and violative of Article14 of the Constitution."::: Downloaded on - 09/06/2013 14:45:00 ::: 172
We feel that this case squarely applies to the impugned Government Resolution as well. The State in consultation or upon the advise of the Board could well have introduced proper merit determinative process like Entrance Test or any other similar methodology or criteria, if it felt that the students coming from different Boards needed different treatment, so that merit of all the students could be judged by providing for a common platform for the purposes of admission and without hurting the rule of merit. For the reasons best known to it, the State has not adopted any such criteria.
III) Artificial Classification The Respondents have created an artificial classification when in reality, there is no distinction between the students coming from different streams of the Boards. When no real distinction exists in fact and in law and the classification is based on imaginative distinction made by the authorities concerned, this itself may support the plea of discrimination. This classification is a mere misnomer and has inbuilt adverse effect on the rule of merit. In the majority ::: Downloaded on - 09/06/2013 14:45:00 ::: 173 judgment of this court in Percentile case, which has already attained finality, the court had not accepted the plea of distinct and different class of the two streams of students. The observations made in the majority view of Division Bench judgment, rejecting the contention of the contesting respondents that percentile formula was applied to the students not because they were from one class but only to ensure that S.S.C. students also get more seats may be on preference to the students from the other Boards, as then alone there would be justice between them, apply to this case as well. There, the court held that the very concept of percentile was applicable to different classes and not to the same class. That view we reiterate and observe that there is no reasonable classification as there is no real marked difference between the subjects, syllabi, standard and marking system of education in the Boards so as to bring about such drastic reservation.
Whatever name it be called, reservation or classification or a quota, the impugned Government Resolution can hardly be covered under any known canons of protective discrimination. Therefore, the plea of classification for preference ex facie is arbitrary and is not substantiated by any appropriate data on record.
::: Downloaded on - 09/06/2013 14:45:00 ::: 174The distinction stated in the affidavit with regard to forming the basis of classification is hardly realistic and this view had already been taken by the majority in the case of Percentile for which we have no reason to differ with.
The students from both sources in fact and in law form a homogeneous class and were so treated for last fifteen years. There appears to be no compulsive or rational basis for altering that practice. The findings of the Court in the Percentile case as well as our above conclusions are fortified by the Report of the Workshop which is the entire basis of the State's case and the relevant part of the conclusion of that Report (at page 124) read as under :-
"We have realized one thing for sure i.e. all the Boards of Educations are equally good in their respective ways and that no body can boast of their curriculum being the best."
The Government Resolution dated 18th June, 2009 even if treated as a reasonable classification and, thus, providing for preferential reservation for the students coming from SSC Board, ::: Downloaded on - 09/06/2013 14:45:00 ::: 175 even then it does not satisfy the twin test of "classification being based on intelligible differentia" and having "rational nexus to the object" sought to be achieved. There is no difference between the students grouped together and others left out and the "differentia"
has no rational nexus to the object sought to be achieved by the Government Resolution.
The bare reading of the Government Resolution shows that the State took note of the earlier judgment of the High Court where the Court had struck down the percentile formula put forward by the State on the ground that earlier system was causing injustice to the students from the SSC Board, but still the State in the Government Resolution has taken the alleged ground of injustice caused to SSC Board students. The Resolution was passed intending to bring uniformity and to provide equal opportunity in the admission of XI standard so that the admission process is just and fair and without compromising merit, is the reasoning of the Government Resolution which is not only self-contradictory but is self-destructive as well. The merit is being defeated as 90% seats are reserved for students passing from SSC Board keeping 10% seats for other Boards ::: Downloaded on - 09/06/2013 14:45:01 ::: 176 and also keeping this reservation in addition to the other reservation existing as on the date of issuance of the Government Resolution.
Thus, the Government Resolution does not achieve the object of bringing uniformity and equality. It declares that it is passed to bring equal opportunity without compromising the merit but in fact it not only defeats the merit but frustrates the very golden rule of merit and preference in allocation of seats. In light of the judgment of the Supreme Court in the case of Deepak Sibal vs Punjab University, (1989) 2 SCC 145, the reservation/classification brought in by the Government Resolution cannot be held to be constitutional. Further, this decision of the Government like the decision in the percentile case is without cogent reasoning and is not based on any data or study. On the contrary it is opposed to the report relied upon by the Respondents in their affidavit and the entire matter suffers from non application of mind. It is worthwhile to quote what the Court in Percentile case held :
".... this entire exercise taken out by the respondent State is without any data, cogent reasoning and even proper hearing, much less after appropriately consulting other two Boards whose meritorious candidates are bound to be affected prejudicially as a result of application of this arbitrary formula..."::: Downloaded on - 09/06/2013 14:45:01 ::: 177
The Respondents have heavily relied upon the report of the workshop which was held somewhere on 9th/10th September, 2008 to show that an overall view of the different Boards of Education was taken. The bare reading of the Report shows that it has no relevancy or bearing on the reservation of seats in regard to grant of admission. On the contrary, it requires certain improvements to be carried out in SSC Board. Suggestions in that regard were made in the report for improvement of curriculum, better quality of text books, appointment of Principals on merit, academic inspection and supervision, malpractices existing and more so promoted by the teacher parents nexus and how to correct these defects. The Respondents are totally silent whether any of these steps have been taken or not. How this report is of any help to the Respondent is beyond comprehension.
The workshop report heavily relied by the Respondents in their reply affidavit makes no substantial distinction between the two Boards to justify any reasonable classification. In fact, it only indicates the "differentia" being quality teaching and greater transparency in working of those Boards and finally suggests need for ::: Downloaded on - 09/06/2013 14:45:01 ::: 178 improvement in the functioning of the schools under SSC Board.
The myth of wide consultation is exposed by the documents placed by the State itself on record. No record indicates that matter of such great significance was ever dealt with by the statutory Board constituted under Section 5 of the Act. Furthermore, after discussion with local colleges, Government Departments and some Principals, a decision was taken to constitute a Core Group to examine the matter in depth. The suggestion of constituting this Core Group remained un-executed. Suddenly, on the evening of 17th June 2009 instead of 42 persons, which probably included the members of the statutory Boards, six Principals got together in absence of any appropriate authority from the Government to discuss the issues relating to admissions. The representatives of the State Board or even the Chairman were absent in the meeting as noticed in the minutes.
These six Principals from local schools thus decided to make the reservations of 90% seats in favour of the SSC Board students which resulted in the issuance of the impugned Government Resolution.
This apparently is an act of undue haste by an incompetent body and in violation of the statutory provisions.
::: Downloaded on - 09/06/2013 14:45:01 ::: 179The affidavit filed on behalf of the Government and the view taken by the non-statutory bodies during the course of discussion was to bring parity by making reservation of seats.
However, on 17th June 2009, the Core Committee (which was not the Core Committee constituted by the authorities earlier) expressed the view, "this might bring parity in the admission system and would help reducing the social and emotional problems faced by the students of Maharashtra State Board". This besides being contradictory, would be impermissible in law as decision on emotions can hardly substitute the statutory provisions and the basic rule of law.
This is in utter violation to the directions contained in the judgment of all the Three Judges in the Percentile case. There was no proper consultation though the affidavits have been filed stating that there was prior consultation and the minutes have even been properly recorded. Thus, the decision again is not based on any appropriate study and is taken in undue haste which is not permissible and the Government Resolution would be liable to be quashed on that ground alone.
::: Downloaded on - 09/06/2013 14:45:01 ::: 180(IV) The doctrine of equality flows from the constitutional mandate of Article 14 of the Constitution of India. Equality and arbitrariness in law are sworn enemies. One belongs to the rule of law in a republic while the other to the whim or caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law.
(Reference : Paradise Printers and others v Union Territory of Chandigarh and others, AIR 1988 SC 354).
It has been noticed that the Government Resolution though attempts to create equality, in fact it is entirely founded on principle of inequality, patent discrimination and arbitrariness.
Reservation of 90% seats essentially has the effect of ousting the other Board students from seeking admission in preferential colleges as per their merits. Excellence in education is a matter of paramount consideration. Any classification therefore must be in conformity with the principle of equality and rule of law. Any inroads into the doctrine of equality is impermissible except by a legislation which otherwise should be constitutional and free from the vice of ::: Downloaded on - 09/06/2013 14:45:01 ::: 181 arbitrariness. This least could be done by an executive action which itself is contrary to law. Therefore the classification made amounts to erosion of the constitutional protection of equality available to the students of all the Boards.
(V) Another aspect which was not examined in the earlier judgment of the Court in Percentile's case is that the Government Resolution is ultra vires the Regulations framed by the Board under sub-Sections (1) and (2) and sanctioned by the State of Maharashtra in exercise of the powers conferred under sub-Section (3) of Section 36 of Maharashtra Secondary and Higher Secondary Education Boards Act, 1965. Regulation 79 lays down the statutory eligibility for admission to Junior Colleges which imposes no such restriction as contemplated under the Government Resolution. On the contrary, it makes it mandatory that the students who have passed 10 year Secondary School Certificate Examination of any statutory Board in India, shall be admitted to the first year of Junior College if they have offered and passed in minimum five subjects with English as one of the subjects. In so far as this provision stays on the statute book, any contrary executive Circular can hardly be issued . The power is ::: Downloaded on - 09/06/2013 14:45:01 ::: 182 further vested in the State Board to decide and provide admission to Junior College to students who are not covered under Clauses (1) to (14) of Regulation 79. The impugned Government Resolution has the effect of rendering students ineligible for admission to Colleges on their own merit, who but for such resolution would be eligible in terms of Regulation 79. The impact of the Government Resolution, therefore, is to render statutory provisions ineffective. In substance, it is in patent conflict with the Regulations and, therefore, unsustainable.
(VI) Another important facet of this case and question ancillary to the above would be "what is the source of the power of the Government to issue such Government Resolution". As per the provisions of the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965, and the Regulations framed thereunder, the State Board is the only competent authority to regulate affairs in regard to recognition, continuation thereof and process to be adopted for admission to Junior Colleges. The only power vested in the State Government is in terms of Section 34(1) of the Act wherein the Government has the power to issue such direction as it may consider ::: Downloaded on - 09/06/2013 14:45:01 ::: 183 necessary in regard to all or any of the matters specified in Clause (a) of Section 18 of the Act and that too only after taking advice, if any, tendered by the State Board. The Government is also empowered in an emergency and when in the opinion of the Government immediate action is required to be taken, to take action consistent with the provisions of the Act by passing Resolution or Order. Further, the State Government has power to make new Regulations or to modify or repeal the existing Regulations, after consultation with the Board.
Except these provisions, the Board is the competent and statutory authority to deal with all matters including admission under the Act.
These powers of the Board, which is a statutory body constituted under the enactment having control over academic matters in terms of the provisions of the Act, would stare the Government in face, least to say that the Government could not issue resolution in exercise of its executive power contrary to the provisions of the Act and that too arbitrarily. The act of the State may amount to usurption of legislative power and even would fall beyond the ambit and scope of Article 162 of the Constitution of India. The executive power of the State is equivalent to the 'competence to legislate', but where the enacted law is in force, the invocation of executive power even with the aid of ::: Downloaded on - 09/06/2013 14:45:01 ::: 184 Article 162 to issue contra-directions may not be permissible.
The Legislature has constituted a statutory Board to regulate and maintain the standard of education and proper administration of education related matters. The Board is vested with the power to frame regulations and take all other steps to implement the provisions of the Act as well as to control and regulate conducting of examination and recommend criteria and eligibility for admission to the schools in the State of Maharashtra. The learned Counsel appearing for the Board very fairly agreed that in this entire process of reservation, method of admission and directive to various schools in the State of Maharashtra, the Board has no effective participation.
Neither any decision nor opinion or advise of the Board or any regulation framed in that regard by the Board with the approval of the Government or otherwise has been placed on record. In the meetings culminating in the issuance of the impugned Government Resolution the Board was not a constituent. None of the regulations or bye laws framed by the Board are the foundation to the issuance of the Resolution.
To us, it appears that leaving apart all its statutory ::: Downloaded on - 09/06/2013 14:45:01 ::: 185 functions and obligations, the statutory Board has practically slipped into the hands of the Government functionaries. Statutory bodies are not expected to act on the will of an authority particularly in relation to the matters of such importance which will have great impact not only on the future of the students but on the education system of the State itself.
(VII) Even if all other contentions of the Petitioners are rejected and without prejudice to the above observations, the 90% reservation for one section of students is entirely excessive and impermissible. Firstly, all constitutional and State reservations otherwise provided had been kept intact by the Government Resolution itself. These seats would be unavailable to the candidates who seek admissions purely on merit in view of prescribed reservation. Out of the remaining seats, 90% seats are reserved for students clearing their 10th class from SSC Board and only 10% seats are available to all the students coming from other Boards. This reservation is unsustainable and excessive. Maximum reservation that could have been provided, if at all otherwise permissible, could not exceed 50% of the seats (even that would have to be examined on ::: Downloaded on - 09/06/2013 14:45:01 ::: 186 its own merits in law). The legal dicta settled by the Supreme Court clearly prohibits such excessive reservation particularly without any rational and intelligible differentia or criteria. [Reference : (1) M.R. Balaji vs State of Mysore, AIR 1963 SC 649; (2) AIIMS Students Union vs AIIMS (2002) 1 SCC 428 and (3) Saurabh Chaudri vs Union of India, (2003) 11 SCC 146].
Statistical figures produced before the Court show that there are 1291871 (State) and 277480 (Mumbai Region) seats available and which are in excess of the students all over the State who would apply for admission to the course in 11th standard. If that be so, everybody will get a seat, then it will be epitome of unfairness that the students of the higher merit could not be permitted to seek admission to the colleges of their choice. We are unable to accept that it will serve principle of equality if the candidates, may be from SSC Board with lower marks are granted admissions in preferential Institutions over and above the students of higher merit from other Boards.
(VIII) It has been vehemently argued before us on the strength ::: Downloaded on - 09/06/2013 14:45:01 ::: 187 of the judgments of the Supreme Court in T.M.A. Pai Foundation and others vs State of Karnataka and others, [(2002) 8 SCC 481] and P.A. Inamdar and others vs State of Maharashtra and others, [AIR 2005 SC 3226] that the State Government has no jurisdiction to provide any reservation of seats in unaided and/or minority unaided Institutions.
The field and methodology for providing admission to the seats in those Institutions is beyond the executive or any other control by the State. In fact 90% reservation is impermissible in law in relation to these Institutions. The expression "classification" is primarily a camouflage to cover the reservation which only could be provided by enactment of proper law. The ostensible object of the Government is to achieve equality but in fact the decision creates inequality and it encroaches with the internal management of the unaided or unaided minority schools and casualty is only the merit. Thus, the Government Resolution is unenforceable, ineffective, inapplicable and illegal being in violation of the dicta of the Supreme Court.
In view of our conclusions on Points I to VIII, we do not feel the need to go into this larger question and would leave this open ::: Downloaded on - 09/06/2013 14:45:01 ::: 188 to be examined in an appropriate case.
For the reasons afore-stated, Rule in all the Writ Petitions is made absolute. Writ Petitions are allowed in the above terms with a further direction to the State to publish the merit list and grant admission to the students following the golden rule of merit-cum-preference.
It is brought to our notice that some applications were not accepted On-Line by the colleges. This is not admitted by the learned Counsel appearing for the State as well as the Board and other Respondents. Let this matter be looked into by the Education Department. If some students have not been permitted to submit applications On-Line, they may do so by 5.00 p.m. tomorrow i.e. 7 th July 2009 or deliver it personally. But it is made clear that no application which has already been received by the Department On-
Line or otherwise would be permitted to be duplicated subsequently.
There is a request for grant of stay. In the facts and circumstances of the case and particularly in view of our earlier ::: Downloaded on - 09/06/2013 14:45:01 ::: 189 interim order, we see no reason to stay our order. Request declined.
After the corrections are made in the order and it is signed by the Bench, authenticated copy thereof be furnished to the learned Counsel appearing for the parties.
ig CHIEF JUSTICE
S.C. DHARMADHIKARI, J.
uday/judgments9/scd-wp1086-final
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