Bombay High Court
Fransisco D. Luis vs State Of Maharashtra & Ors on 25 August, 2008
Author: A.P. Deshpande
Bench: Swatanter Kumar, A.P. Deshpande
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 94 OF 2008
ALONGWITH
CIVIL APPLICATION NO. 37 OF 2008.
Fransisco D. Luis ...... ....... Petitioner
versus
State of Maharashtra & ors ........ Respondants.
Mr. P.M. Pradhan for the Petitioner.
Mrs. Jyoti Pawar Addl.G.P. A/w Mrs. M.P. Thakur AGP for State.
Ms. Rajani Iyer a/w N. H. Seervai and Sharan Gajtiani i/b M/s.
Desai & Diwanji for the Intervener.
Mr. T. N. Subramanium a/w Mr. Naushad Engineer , Hemant
Shah, Neeta Jain i/b I.C. Legal for ISCE.
Mr. Mihir Desai for applicant in C.A. 37/08.
CORAM: SWATANTER KUMAR, C.J., &
A.P. DESHPANDE, J.
DATED: TH AUGUST 2008.
JUDGMENT ( Per A.P. DESHPANDE, J):
1. Legality and validity of a statistical formula described as "percentile" introduced by the State Government for regulating ::: Downloaded on - 09/06/2013 13:43:38 ::: 2 admission of the students to 11th standard has been challenged by this petition, filed in the pubic interest. Students who pass the 10th standard examination from various Boards such as SSC Board, ISCE Board, CBSE Board are eligible for seeking admission to 11th standard/1st year of the junior college in schools and colleges affiliated to the SSC Board. Prior to the commencement of academic year 2008-09 students who passed 10th standard examination from all the Boards were treated alike and their inter-se merit was judged on the basis of the percentage of marks secured by them in the 10th standard examination conducted by the respective Boards. By introducing the "percentile" formula, the criteria for admissions prevailing prior to this year has been given a go-by and the admissions in the academic year 2008-09 are regulated by the "percentile rank"
assigned to the students by application of the formula with which we will be dealing with in the later part of the judgment.
Perception of the State Government.
2. The number of students appearing in the SSC, ICSE, CBSE and other Boards vary drastically in as much as more than 15.5 lacs students appeared for 10th standard examination conducted by SSC Board, whereas about 15,000 students appeared from CBSE Board and about 1200 students from ICSE Board. The different boards have their own syllabus and ::: Downloaded on - 09/06/2013 13:43:38 ::: 3 subjects, different pattern of examination and different standard of evaluation. It was found difficult by the State and its authorities to compare the interse merit of the students passing from different Boards,having regard to the disparities. It was perceived that some of the Boards evaluate the performance of the students at the examination liberally and thus the students from the said Board are placed in an advantageous position as compared to the other Boards. With a view to standardise or normalise the percentage of marks secured by the students from different Boards, a need to evolve a formula was felt by the State.
It is not in dispute that the examination conducted by the different Boards do not have the same subjects and the same option in relation to the subjects. The total number of marks allotted by the Boards as well defer. The syllabus so also the question papers are not the same. Thus the State Government has come out with the "percentile" formula. While introducing the formula the State Government assumed that the first ten students from the three Boards viz. SSC, ICSE and CBSE are equally meritorious and hence issued a Government Circular on 27thJune 2008 and introduced the formula. Perusal of the circular reveals that having regard to the difference in the pattern of examination, subjects,scheme of marking and the strata of the class of students catarred by the different Boards, normalisation was felt necessary to be introduced. Due to dis-similarity in the pattern of ::: Downloaded on - 09/06/2013 13:43:38 ::: 4 examination, the students from SSC Board suffer and do not get admission to the preferred colleges, whereas the students from other Boards get admission in such colleges as their percentage is higher. With a view to facilitate securing of admissions for the students passing fromSSC Boards in preferred colleges, the circular came to be issued introducing the "percentile" formula.
The percentile formula has been stated in Schedule `A' annexed to the circular. Schedule A is reproduced herein below.
Annexure `A' FORMULA OF PERCENTILE RANK 1 Average maximum marks of percentage of first 10 =A students passing through in various Divisional Examination Boards.
2 The student whose percentile rank is to be =M obtained his actual marks (percentage) 3 The Percentile marks of that student =P =P=100x (M) (A) Example :-
---------------------------------------------------------------------
1 Average maximum marks of percentage of first 10 =93.66% students passing through in various Divisional Wxamination Boards.
2 The student whose percentile rank is to be =90.16% obtained his actual marks (percentage) 3 The Percfentile marks of that student =P =P=100x (90.16) (93.66) ::: Downloaded on - 09/06/2013 13:43:38 ::: 5 = 96.26% BOARD S.S.C. C.B.S.E. I.C.S.E. Average maximum Actual Actual Actual marks/percentage Percentile Percentile Percentile obtained by first 94 100 97 100 96 100 10 students (Topper) (Topper) (Topper) Actual Marks of percentage obtained by a student those 89.3 95 92.15 95 91.2 95 who have applied for admission
-----------------------------------------------------------------------------------------------
3.
It will be thus seen that by applying the percentile formula, the percentile rank is arrived at in respect of each student and the schools and colleges have been instructed to admit the students with reference to the percentile rank and not with reference to the percentage of marks secured in the 10th standard examination. The percentile rank is thus notional and would vary depending upon the percentage of marks secured by ten toppers from the respective Boards.
4. According to the State, the marking system in the examination of 10th std. from ICSE and CBSE Board is more objective whereas the one in SSC Board is comparatively subjective. The Under Secretary for the State Government has placed on record the comparative information in regard to SSC, ICSE and CBSE Boards relating to the conduct of 10th standard ::: Downloaded on - 09/06/2013 13:43:38 ::: 6 examination, which brings about differences in the examinations conducted by the respective Boards. The same is as under:
ANNEXTURE -1 MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATION, PUNE S.S.C., I.C.S.E. AND C.B.S.E. SCHEME OF EXAMINATION COMPARATIVE INFORMATION COMPARATIVE INFORMATION REGARDING SCHEME OF EXAMINATION S.S.C., C.B.S.E., AND I.C.S.E., ::: Downloaded on - 09/06/2013 13:43:39 ::: 7 Compulsory Subjects.
Languages Three languages as Any two languages English compulsory
per three language from thirty (80+20)
formula 80+20
languages
(Marathi, Hindi and (100)
English are
compulsory (300)
Other compulsory Mathematics 120+30 Mathematics 100 Group one English
subjects. Science and Science and 80+20
Technology 80+20 Technology 60=40
Second language
Social Science80+20 Social science 80+20 80+20
Total six subjects Total Five subjects Social Science80+20 Total Marks 650 Total Marks 500 Environmental Edn.
80+20 Group Two Any two or one subject from 600 Mathematics Science and Technology Commerce Organisation of commerce Engineering, ArticleForeign language.
Classical language.
Computer science.
Agricultural Science, EVS.
Group Three.::: Downloaded on - 09/06/2013 13:43:39 ::: 8
(only one subject from group two is selected then one subject is compulsory) Art. Music, Home Science Cookery Niddle Work physical edu.
Computer Appln Financial Appln etc.(13 subjects) Total Marks =500 Additional subject No provision One subject from Seven subjects are subjects ig Note: 1 Three compulsory. Three language study upto language formula is std.VIII. Hindi application upto std .
compulsory for Indian VIII is compulsory.
students. Supw and
2. Hindi and Ebnglish community service are compulsory upto are compulsory.
std. VIII and Evaluation at school
3. for std.X any two level.
languages are
compulsory.
Other compulsory Environmental Work Education or
Education 60+40 pre=vocational
subjects.
Health and phy.Edu. Education 75+75
25+25 Painting 100
Personality Music 25
Development 50 Home Science 75
Introduction to IT 40
Optional subjects Work Experience
(one from 36 subjects) 100
or
pre-vocational Education
Social Service N.C.C.
::: Downloaded on - 09/06/2013 13:43:39 :::
9
Scout Guid etc. (100)
ITEM S.S.C. C.B.S.E. I.C.S.E.
Passing scheme 35% for passing 33% for passing in 35% or passing
Minimum C Grade each internal and candidate must pass
theory, practical etc. in five subjects and
for other (no combine passing in Engliosh
schoolssubjects three passing) is compulsory.
language group Compulsory passing
science and in supw. And
Mathematics community service.
combine passing
ig Combined passing
automatic (theory and internal)
No Automatic No automatic
condonation is condonation. condonation.
applicable.
Class Improvement Scheme is available Scheme is available No provision.
for all subjects. (only for all subjects.
once) (twice)
Passing Certificate Certificate is Certificate is Certificate is
awarded only passed awarded only passed awarded only passed students students students.
Availability of No provision 15 minutes 15 minutes question paper reading time School Attendance 75%. 75%. 75%.
Reference: Syllabi, Maharashtra State Board of Secondary and Higher Secondary Education.
CBSE and ICSE.
Secretary.
State Board, Pune
---------------------------------------------------------------------------------------------
::: Downloaded on - 09/06/2013 13:43:39 ::: 10Thus, according to the State Government, the "percentile" formula has been evolved to standardise or normalise the marks obtained by the student from different Boards. In the opinion of the State treating the students from different Boards equally as was being done earlier, was violating the equality clause as unequals were being treated equally and thus the formula was evolved which has benefited the students passing 10th standard examination from SSC Board.
5. The learned counsel for ICSE Board has applied for intervention and we had permitted the same. Few other associations of teachers and parents have also intervened in the matter, and their interventions are also allowed and all have been afforded an opportunity of hearing. In the first place the learned counsel appearing for ICSE, who is supporting the petitioner has raised preliminary objection to the very application of the `percentile' to students from different Boards being misconceived and wholly in-appropriate. In his submission only the students who pass the same examination conducted by the same Board such as eight Divisions of the SSC Board could be subjected to the percentile formula. It is submitted that, if the course and the syllabus is different, if the question papers are different and the performance of the students have been evaluated at a different ::: Downloaded on - 09/06/2013 13:43:39 ::: 11 touch-stone, with a different pattern examination, it is not at all possible to apply percentile formula for normalisation or standardisation of the marks. He has placed on record a print out from Wikipedia, the free encyclopedia, from the web site of http.//en.wikipedia.org/wiki/Percentile_rank, which goes to indicate that the percentile method can be applied when students are similarly situate. Barring the said document, no other material has been placed on record to substantiate the contention that percentile method cannot be applied when the students come from different streams, on passing dis-similar examinations with different evaluation mechanism. No authentic material and data has been placed on record to enable me to hold that the State government could not have introduced the percentile formula for normalisation of the marks secured by the students passing 10th standard examination from different Boards. I am conscious of the fact that the court lack expertise in this area and thus choose to refrane from holding, as sought by the ICSE Board, that the percentile formula itself could not have been applied to bring about normalisation of percentage of marks secured by the students from different Boards. This brings me to consider other challenges raised by the petitioner and the supporting interveners to the percentile formula introduced by the State. Briefly stated the challenges are thus:
::: Downloaded on - 09/06/2013 13:43:39 ::: 12i) The action of the State Government contained in the circular introducing the `percentile' formula runs counter to the principle of merit. Merit alone need to regulate the admissions to 11th standarard. Introduction of the "percentile" formula upset the merit placement of the students and goes to introduce notional concept by which a hypothecal percentile rank is achieved and this percentile rank forms the basis for granting admission to 11th standard. According to the learned counsel, the percentage of marks secured at an examination has been all through out in the past, treated as the merit and admissions were granted on that basis. Whereas for the first time the State Government has, tinkered with the percentage of marks and that too on the verge of admissions of 11th standard. The State Government, in the submission of the learned counsel for the petitioner, did not take a considered decision after weighing the pros and cons with due deliberations, but has hurriedly reached the decision in consultation with the chosen and selected few, which operates to the detriment of the interest of the students from other Boards such as ICSE and CBSE.
ii) It is next submitted that the decision to introduce the `percentile' formula is a pre-conceived decision and has been introduced deliberately to benefit the students from the SSC Board. In the decision making process other Boards were ::: Downloaded on - 09/06/2013 13:43:39 ::: 13 deliberately kept out though the decision was to prejudice the students from the said Boards.
Iii) It is also submitted that the formula introduced by the State Government is arbitrary, unfair, unjust and unreasonable for the reason that it militates against merit and thus violate Article 14 of the Constitution of India.
iv) Doctrine of Legitimate expectation is also pressed in service.
6. Per contra the learned counsel appearing for the State has submitted that the decision under challenge is a policy decision reached by the State and while doing so the State was not obliged to adhere to the principles of natural justice in as much as it was not obliged to hear the other Boards. While reaching a policy decision the principle of Audi Alteram Parten stands excluded.
7. It is next submitted that the correctness or otherwise of a policy decision cannot be subjected to judicial review. It is only the decision making process which can be scrutinised and not the decision. In the submission of the learned counsel for the State, the "percentile" formula is not in violation of Article 14 of the Constitution of India. On the contrary it seeks to achieve equality.
::: Downloaded on - 09/06/2013 13:43:39 ::: 14Prior to the introduction of the formula, unequals were treated equally and the said vice is sought to be removed by the new method which ensures equality. The impugned decision seeks to achieve a larger public interest. To buttress the said submission, it is pointed out that in the current academic year the result of the SSC Board was comparatively strict and thus the students from SSC Board have derived some advantage under the percentile formula. However, it is possible that in the coming academic years, if the toppers from SSC Board may secure higher percentage of marks in comparison to the marks secured by the toppers from other Boards, and in that situation the students from other Boards would gain the benefit and advantage. Thus the contention is that for all time to come, the SSC Board students alone would not be in an advantageous position but it could be students from other Boards as well. Concluding this submission, it is contended that the impugned decision is reasonable, just and fair.
8. Lastly, it is emphatically submitted that almost all students have secured admissions to the 11th Standard on the basis of the "percentile" rank and very few students remain to be admitted. Hence even if this Court holds that the "percentile"
formula is not sustainable, no interference with the admissions already made be caused as otherwise the students community as a whole would suffer irreparable loss, undue inconvenience and ::: Downloaded on - 09/06/2013 13:43:39 ::: 15 hardships. It would also result in derailment of the academic session. We hasten to record the undisputed factual position about almost all the students having secured admissions to the 11th standard.
9. Let us first examine the manner in which the decision to introduce the "percentile" formula was reached:
Decision making process:
10. The Deputy Secretary to Government, School Education and Sports Department, has filed an affidavit-in-reply dated 15th July 2008 which explains the circumstances in which the alleged problem was addressed by the government. It is stated in para 2 of the affidavit that :
"I say and submit that it was observed by the authorities that there was a comparative disparity between the students from the different Boards in the State of Maharashtra from which students pass their 10th standard and apply for admissions to 11th standard of the Maharashtra State Board of Secondary and Higher Secondary Education, Pune. This issue was also discussed in he House of Legislature and thereafter the procedure for bringing parity amongst the students belonging to the different Boards was initiated. In this regard the State Government had called for ::: Downloaded on - 09/06/2013 13:43:39 ::: 16 a proposal from the Maharashtra State Board of Secondary and Higher Secondary Education, Pune vide a letter dated 12th June 2008. Hereto annexed and marked as Exhibit-A to this Affidavit is a copy of the said letter dated 12th June 2008. Accordingly, a proposal was received on 20th June 2008 from the Maharashtra State Board of Secondary and Higher Secondary Education, Pune. Hereto annexed and marked as Exhibit-B to this affidavit is a copy of the said proposal dated 20th June 2008. I say and submit that on 26th June 2008, a joint meeting of the Deputy Secretary of School Education and Sports Department, Deputy Director of Education, Greater Mumbai, all Education Inspectors of Greater Mumbai as also the Principals of eminent institutions such as Ruia College, Ruparel College, Mithibai College etc. was held.
Annexed hereto and marked as Exhibit-C to this affidavit is a copy of the minutes of meeting held on 26th June 2008. I say that in the said meeting, a consensus was reached between all concerned that a formula of percentile would be adopted while giving admission in 11th standard in the Academic Year 2008-09".
11. It is then stated that the proposal which is said to have been reached by consensus, was accepted and came to be translated into a binding decision vide Government circular dated ::: Downloaded on - 09/06/2013 13:43:39 ::: 17 27th June 2008. As pointed out above, it is re-iterated that the disparity prevailing was removed and parity was restored. It will not be out of place at this juncture to mention that the result of the 10th standard were declared on 26th June 2008 and the pre- admission process commenced at 9 a.m. On 27th June 2008 on which date the Government issued the circular. What is to be seen is that the Government had directed the Maharashtra State Board of Secondary and Higher Secondary education which is one of the concerned Boards, to submit a proposal. The proposal was received on 20th June 2008 by the Government. In the proposal so forwarded it was suggested that the percentage of marks of 3 to 5 toppers from each Board be averaged out, which would denote `A'.
The other parameters for calculating the percentile were same in the proposal submitted by the Board as has been implemented by the Government. Perusal of the Minutes of the Meeting held on 26th June 2008 reveal that instead of taking the average of the percentage of marks secured by first five students, the average of percentage of top five students from the Divisional Boards of the Secondary and Higher Secondary Board of Education was to be considered. It is thus clear that the proposal submitted by the SSC Board was modified and altered to the above extent by the Committee which had met on 26th June 2008. Whereas the Resolution/Circular dated 27th June 2008 seeks to introduce the percentile formula which takes into ::: Downloaded on - 09/06/2013 13:43:39 ::: 18 consideration the average of the percentage of marks secured by first ten toppers from each Board. It is obvious that change in the number of the toppers from the Board changes the percentile rank.
Consideration of Merit.
12. The rival sides are in agreement that the criteria of merit should not be sacrificed. But the key issue is how is the merit of the candidates interse to be judged. According to the petitioner and the supporting interveners, merit need to be judged on the basis of the percentage of marks secured in the 10th standard examination conducted by the respective Boards.
Whereas according to the State Government, merit need to be judged on the basis of percentile rank obtained after normalisation of the percentage of marks of students of all the Boards.
13. It is a matter of common knowledge that every year during admission season lacs of students undergo immense suffering and harrasment in seeking admission to professional courses caused by uncertain policies. This time the students seeking admission to 11th standard are made to suffer the same. There is a substantial scope for improvement in the admission process even within regulatory power of the authority, provided the controversial issues are not dealt with on an emergency basis ::: Downloaded on - 09/06/2013 13:43:39 ::: 19 during the admission season, but done in a co-ordinated and comprehensive manner ahead of time. Let us hope that the State would hereafter take crucial decision well ahead of time.
14. The Supreme Court has repteadly emphasised the need for merit based admission more particularly in professional institutions of higher learning. Dealing with the merit criteria the Supreme Court in the case of Islamic Academy of Education and another Vs. State of Karnataka and others reported in (2003) 6 SCC 697 held :
"For the purpose of achieving excellence in a professional institution, merit indisputably should be a relevant criterion. Merit, as has been noticed in the judgment, may be determined in various ways ( paragraph
59). There cannot be however, any foolproof method whereby and whereunder the merit of a student at all times to come may be judged. Only, however, because a student may fare differently in a different situation and at different point of time by itself cannot be a ground to adopt different standards for judging his merit at different points of time.
Merit for any purpose and in particular, for the purpose of admission in a professional college should be judged as far as possible on the basis of same or similar examination. In other words, inter se merit amongst the students similarly situated should be judged applying the same norm or standard. Different types of examinations, different sets of questions, different ways of evaluating the answer books may yield different results in the case of the same student".
::: Downloaded on - 09/06/2013 13:43:39 ::: 20(emphasis supplied)"
15. It is obvious that if the merit of two students is sought to be judged, applying different norms or standards, the same would not result in ascertaining the true merit. The concluding observations made by the Supreme Court reproduced herein above operate with full force and vigour in the facts of the present case. The students come from three different streams i.e. SSC, CBDE and ICSE having different curriculam, different question papers valued by applying different standards and norms.
16. If the distinguishing features in the examination conducted by the three different Boards are carefully perused, it can be clearly seen that comparison of merit based on percentage of marks scored will be illusory and not real. Let us take for example the time alloted to the students for solving the question papers. The S.S.C. Students are not allotted any time for reading the question paper whereas students from the other two Boards are granted 15 minutes time to read the question papers. In the first blush it may not be noticed that this factor taken singularly could also have a substantial impact on the over all performance of a candidate at the examination and consequential bearing on the percentage of marks scored. Those students who get 15 minutes time to read the question paper would be more composed, would have clear idea and approach and could plan better on choosing the questions and ::: Downloaded on - 09/06/2013 13:43:39 ::: 21 their sequence. Such students would be more clear and confident in their approach as compared to those who do not get any time to read the question papers. Students who are not allotted any time for reading the question papers would be required to rush through the question papers by having a cursory glance at it. They would be required to solve the question papers in some hest because of time constrains. Such students would not have sufficient time to choose questions in proper preference and answer them in a proper sequence, having regard to the preparation of the student touching different topics. One cannot lose sight of the fact that in these days of cut throat competition, if I may say so, even fraction of mark here and there affects the ranking and chances of admission to premier colleges. Seen from this angle even this time factor which appears insignificant makes a significant different in the ultimate outcome atleast of few marks. No further elaboration is required. Only with a view to bring home the point that even apparent marginal differences in the pattern and conduct of the examination could result in significant difference in the ultimate outcome. I hasten to state that there is substantial difference in the syllabus, compulsory and optional subjects and the examination conducted by the three Boards. I do not propose to deal with all the differences in the curiculam,subjects and available options, for it is obvious that these differences by themselves deny the students, ::: Downloaded on - 09/06/2013 13:43:39 ::: 22 level playing field, making it impossible to compare the interse merit of the students.
17. If the performance of students who are subjected to different examinations with different syllabus, different subjects, different options in relation to the subjects and with different pattern of examination is compared as revealing true merit, the same will violate Article 14 of the Constitution of India. Unequals if treated equally would violate the equality clause.
18. The comparatative chart of the differences in the compulsory subjects, optional subjects, compulsory languages, assignment of marks for the same, objective and subjective format and the allotment of time or denial thereof for reading the question papers at the examination taken cumulatively, substantially result in denying a level playing field. At any rate, it can be safely assumed that the so called marks or percentage of marks scored at the three different examinations cannot and does not indicate the true interse merit.
19. Thus it is clear that so called merit reflected from the percentage of marks, secured at 10th standard examination by students from different Boards cannot form the basis or yardstick for measuring the comparatative merit. Seen from this angle, it ::: Downloaded on - 09/06/2013 13:43:39 ::: 23 appears that the State Government was justified in evolving a meahcanism to equalise or normalise the percentage of marks secured by the students from the different Boards. The submission made by the learned counsel for the State, that without introduction of the percentile formula, if the marks of the students from different Boards are taken to denote their inter-se merit, the same would tantamount to treating unequals equally, has a merit. About15.5 lacs students pass 10th standard examination from the schools affiliated to the State Board who come from the common strata of the society and can be described as masses, whereas the students who partake education in schools conducted by or affiliated to ICSE or CBSE Boards are the students coming from a previlaged class and the number of such students passing 10th standard who are desirous of seeking admission to 11th standard in schools or colleges affiliated to State Board constitute only about 25 to 30 thousand. The State has assumed, while formulating the method of equalisation, that the first ten toppers from and out of the 15.5 lacs students from the SSC Board are equally meritorious as that of first ten toppers from and out of about 25 to 30 thousand students from CBSE and ICSE Board together. It cannot be lost sight of the fact that the State Government runs the State Board and the State Government is spending lot of money for imparting education at the level of 10th and 11th standard by way of grants to aided institutions. The ::: Downloaded on - 09/06/2013 13:43:39 ::: 24 whole exercise made by the State in introducing the percentile formula at the most could be said to be an attempt to make available some preference to the students passing SSC Board examination of 10th standard so that such students could take education in the schools and colleges affiliated to the State board for prosecuting their studies in 11th and 12th standard. The question is, if this be the object of State policy i.e. to some extent benefit the students passing 10th standard examination from SSC Board, is it so arbitrary and so unreasonable so as to warrant its quashing, being allegedly in violation of Article 14 of the Constitution of India.
20. It is true that in this process, cases of hardships have arisen in the working of the Rule which is framed for selecting the candidates for admission but that however would not render the Rule unconstitutional. It is bound to so happen in almost of all cases when a Rule is framed. It is undoubtedly true that if the selection for grant of admission is based on a common examination for all, merit can be best judged. However, if the same is not possible as in the present case, and students from different Boards with different examination patterns, with different subjects, and different evaluation standard compete, how the merit is to be judged. In the wisdom of the State unless and until the percentage of marks of the students from different ::: Downloaded on - 09/06/2013 13:43:39 ::: 25 Boards are normalised, selection cannot be made on the basis of merit and thus it has introduced the percential formula.
21. In the case of Dr. Pradeep Jain and others Vs. Union of India and others reported in (1984) 3 SCC 654, the Supreme Court had an occasion to deal with scheme of admission to medical colleges. While dealing with the same the Court has considered as to what extent departure from the principle of selection based on merit is permissible. The question that fell for consideration was whether consistently with the constitutional values the admissions to a medical college or any other institution of higher learning in a State can be confined to those who have their domicile within the State or who are resident within the State for a specific number of years. The Court concluded that where it is necessary to do so for the purposes of bringing about real equality of opportunity between those who are unequals departure from the principle of selection based on merit is also permissible. The Apex Court also observed in para 13 thus: "Now the concept of equality under the constitution is a dynamic concept. It takes within its sweep every process of equalisation and protective discrimination". In the said Judgment the Supreme Court also noticed with approval on earlier judgment in the case of D.N. Chavchala reported in 1971 (2) SCC 293. The reservation impugned in the said case was university wise ::: Downloaded on - 09/06/2013 13:43:39 ::: 26 reservation under which preference to the medical college were given to the students who had passed PUC examination of that university and 20% of the seats were available to those passing PUC examination of other universities. The court had held that university wise distribution of seats was not discriminatory and there was no constitutional infirmity involved in giving preference to the students who had passed PUC examination of the same university. The following reasons in support of the conclusion are recorded by the Supreme Court.
"The three universities were set up in three different places presumably for the purpose of catering to the educational and academic needs of those areas. Obviously one university for the whole of the State could neither have been adequate nor feasible to satisfy those needs. Since it would not be possible to admit all candidates in the medical colleges run by Government, some basis for screening the candidates had to be set up. There can be no manner of doubt, and it is now fairly well settled, that the Government, as also other private agencies, who found such centers for medical training, have the right to frame rules for admission so long as those rules are not inconsistent with the university statutes and regulations and do not suffer from infirmities, constitutional or otherwise. Since the universities are set up for satisfying the educational needs of different areas where they are set up and medical colleges are established in those areas, it can safely be presumed that they also were so set up to satisfy the needs for medical training of those attached to those universities. In our view, there is nothing undesirable in ensuring that those attached to such universities have their ambitions to have training in ::: Downloaded on - 09/06/2013 13:43:39 ::: 27 specialised subjects, like medicine, satisfied through colleges affiliated to their own universities. Such a basis for selection has not the disadvantage of district wise or unit wise selection as any student from any part of the State can pass the qualifying examination in any of three universities irrespective of the place of her birth or residence. Further, the rules confer a discretion on the selection committee to admit outsiders upto 20 percent of the total available seats in any one of these colleges, i.e. Those who have passed the equivalent examination held by any other university not only in the State but also elsewhere in India. It is therefor, impossible to say that the basis of selection adopted in these rules would defeat the object of the rules as was said in Rajendra case or make possible less meritorious students obtaining admission at the cost of the better candidates. The fact that a candidate having lesser marks might obtain admission at the cost of another having higher marks from another university does not necessarily mean that a less meritorious candidate gets advantage over a more meritorious one. As is well known, different universities have different standards in the examinations held by them.
A preference to one attached to one university in its own institutions for post graduate or technical training is not uncommon. Rules giving such a preference are to be found in various universities. Such a system for that reason alone is not to be condemned as discriminatory, particularly when admission to such a university by passing a qualifying examination held by it is not precluded by any restrictive qualifications, such as birth or residence, or any other similar restrictions. In our view it is not possible to to equate the present basis for selection with those which were held invalid in the aforesaid two decisions. Further, the government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not ::: Downloaded on - 09/06/2013 13:43:39 ::: 28 arbitrary and has a rational basis and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such course, the validity of the rules laying down such sources cannot be successfully challenged ( see Chitra Ghosh V. Union of India). IN our view the rules lay down a valid classification. Candidates passing through the qualifying examination held by a university form a class by themselves as distinguished from those passing through such examination from the other two universities. Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies. In our opinion, the rules cannot justly be attached on the ground of hostile discrimination or as being otherwise in breach of Article 14. While approving the above line of reasoning the Supreme Court observed in Pradeep Jain's case thus: University wise distribution of seats was thus upheld by the Court as constitutionally valid even though it was not in conformity with the principle of selection based on merit and marked a departure from it. The view taken by the Court was that university wise distribution of seats was not discriminatory because it was based on a rational principle.
There was nothing unreasonable in providing that in granting admissions to medical colleges affiliated to a university, reservation shall be made in favour of candidates who have passed PUC examination of that university, firstly, because it would be quite legitimate for students who are attached to a university to entertain a desire to have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own" university, since that would promote institutional continuity which has its own value and secondly, because any student from any part of the country could pass the qualifying examination of that university, irrespective of the place of his birth or residence."::: Downloaded on - 09/06/2013 13:43:39 ::: 29
22. Let me now consider the reasonablness of the policy decision introduced by the State in the form of percentile formula. I have an advantage of understanding the impact of the introduction of the formula as the State Government has placed on record a comparatative chart of admissions given to the students from the respective Boards, in one of the most preferred colleges in Mumbai by name D.G. Ruparel College of Arts, Science and Commerce. Perusal of the said chart would indicate that in the said college 510 students from SSC Board are admitted in science faculty whereas 64 students from ICSE Board and 14 students from CBSE Board have been admitted. Whereas in the previous year, most of the seats were bagged by the students from ICSE and CBSE Boards. Having regard to the strength of the students passing 10th standard from the SSC Board in comparison to the number of students passing 10th standard from other Boards, it is crystal clear that even after implementation of the said formula, no undue advangage has been gained by the students from SSC Board. They are only getting adequate representation and not even proportionate representation. The introduction of formula has not operated unreasonably and has achieved reasonable distribution of the available seats hence it cannot be said that the rule is unjust or unfair.
23. Next I proceed to consider as to whether the decision of the State suffers from the vice of arbitrariness. Basic and ::: Downloaded on - 09/06/2013 13:43:39 ::: 30 obvious test to apply in cases wherein there is a challange to the policy decision by the Government is to see whether there is any descernible principle emerging from the impugned action and if so, does it specify and based on reasonableness. Useful reference to the judgment of the Supreme Court in the case of Bannari Amman Sugars Ltd. Vs. Commercial Tax Officer and others reported in (2005)1 SCC 625 could be made. Various issues were raised in the said case, on account of withdrawal of benefits by the Government which were earlier granted to the Sugar Mills established in co-operative and public sector. In the said judgment the Supreme Court has held that while taking a policy decision, the Government is not required to hear the persons, who have been granted the benefit, which is sought to be withdrawn. While dealing with the question of arbitrariness in the State action, the Supreme Court has held thus:
"While the discretion to change the the policy in exercise of the executive power, when not trammeled by any statute or rule is wide enough, what is imperative and implicit it terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State and non-arbitrariness in essence and substance is the heartbeat of fair play. A question whether ::: Downloaded on - 09/06/2013 13:43:39 ::: 31 the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness".
24. The State Government has introduced a definite principle rather a statistical formula aimed at equalisation or normalisation of the percentage of marks, and the same operates equally to all the students in all situations for the purpose of securing admissions. The percentile formula does satisfy the test laid down by the Supreme Court about existence of a discernible principle and thus the same cannot be said to be arbitrary. Reverting back to the question of reasonableness of the principle, suffice it to point out that till the year 2007, though only few thousand students used to pass 10th standard from other Boards such as CBSE and ICSE, they could secure majority of the seats in the admission to 11th standard in the preferred colleges, leaving the students from SSC Board high and dry while securing admissions to such colleges. After introducing the percentile, still the students passing 10th standard examination from ICSE and CBSE Board get more seats in proportion to their number in the preferred colleges. As a matter of fact the formula has not operated strikingly to the detriment of the interest of the students from ICSE and CBSE Board. They are getting more seats than ::: Downloaded on - 09/06/2013 13:43:39 ::: 32 their numerical proportion.
25. Lastly I deal with the submission made by the learned counsel for ICSE Board that introduction of the percentile formula has resulted in violation of the principle of legitimate expectation.
26. In the present case there was neither any representation nor promise made by the State at any time to the students from CBSE or ICSE Boards which could be said to have induced the students to change their position to claim legitimate expectation.
No doubt there has been a consistent past practice to treat the students of the other Boards at par with the students of the SSC Board so far as the percentage of marks secured by them is concerned. It has been successfully demonstrated by the learned counsel for the State that in the first place, by introducing the percentile formula, a level playing field is laid. The percentile rank is determined after averaging out the percentage of marks scored by ten toppers of the three Boards such as SSC, ICSW and CBSE, which is denoted by alphabet `A' in the formula. Alphabet `M' denote the percentage of marks of the students of whose percentile rank is to be obtained, whereas alphabet `P' denote the percentile. Thus the formula reads P=100(M)--A. I proceed to re-state that even after application of the said formula the seats secured by the students from ICSE and CBSE Boards are proportionally more as compared to the students from SSC Board. Thus the impact of the policy decision of the Government is not ::: Downloaded on - 09/06/2013 13:43:39 ::: 33 harsh. The formula thus is not unreasonable.
27. Having found that the formula is reasonable and not arbitrary, it has to be held to be sustainable. In the submission of the petitioner, the decision to introduce the percentile formula was a pre-conceved decision and was aimed at favouring the students from SSC Board at the costs of the meritorious students from other Boards. I am afraid that the said submission lacks proper pleadings. It is nowhere pleaded in the petition that the decision has been taken malafidely or is tainted with capris. One page petition was filed as Public Interest Litigation, and even in the affidavits filed there are no particulars in regard to the averments touching malafides. The said submission does not merit any consideration in the absence of pleadings. To conclude, a word of causion for the State that it is expected of it to take such vital decision in more co-ordinated and comprehensive manner much ahead of time. The criticism of the decision taken by the State as having been taken in haste is not devoid of any substance. The admission process could have been better streamlined provided the ticklish issues are not dealt with on an emergency basis without due deliberations and broad based consultations . It would have been more desirable of the State Government, to have sought participation of all the Boards after obtaining the entire data which was required for reaching the decision. However, this cannot be a ground to strike down the ::: Downloaded on - 09/06/2013 13:43:39 ::: 34 decision.
28. Thus I hold that the introduction of the statistical formula of "percentile" goes to achieve normalisation or equalisation of percentage of marks secured by the students from the different Boards and hence is not violative of Article 14 of the Constitution of India. I also hold that assuming that the "percentile" formula extend some benefit or preference to the students from SSC Board the same is permissible and not illegal.
29. In the result, the petition fails and is dismissed with no order as to costs.
A.P. DESHPANDE, J.
::: Downloaded on - 09/06/2013 13:43:39 :::