Bombay High Court
Master Kochikar Ketan Manohar And Ors. vs State Of Maharashtra And Ors. on 18 October, 1993
Equivalent citations: 1994(2)BOMCR641
JUDGMENT P.S. Patankar, J.
1. The factual background is as follows.
2. The 1st petitioner was born on 26th September, 1977 and has passed VIII Standard Examination in April 1991. It is alleged that he was compelled to leave the School due to domestic difficulties. On or about 10th July, 1992, he approached the Principal of a School and sought to submit his application form (No. 17-meant for private candidates and students) for appearing for S.S.C. Board Examination to be held in March, 1993. However, the School informed that he could not register as he has not completed 16 years of age on the date of registration (31st July of each year) and can only appear for Examination to be held in March, 1994. This was in view of Regulation 42(1)(d) as was prevailing at that time.
3. The 2nd petitioner passed his S.S.C. Board Examination in March, 1991. It is alleged that due to financial difficulties he could not join the Junior College. On or about 6th July, 1992, he approached one College with application form for H.S.C. Examination to be held in March, 1993 as a private candidate. However, the College informed that he cannot submit the form as there would be no gap of 3 years from the date of passing S.S.C. Examination and the date of the examination to be held for H.S.C. in 1993. He informed that he can appear only in March, 1994 in view of Regulation 89(1).
4. The 3rd petitioner passed S.S.C. Examination in March, 1990. He joined Junior College for XIth Standard, but failed in 1991. The College asked him to leave the same and thereafter he studied privately. He wanted to appear for March, 1993 H.S.C. Examination and, therefore, approached one College with the form on 5-7-1992. However, he was informed that he could only appear for March, 1993 Examination in view of Regulation 89(3)(i).
5. The 4th petitioner passed his 10th Standard Examination in March, 1991 and joined Junior College and passed XIth Standard in March, 1992. He has done this from a College in U.P. His father, who was working in Bombay, fell sick. His father called him in July, 1992 to Bombay. He wanted to study privately and appear for H.S.C. Examination to be held by Maharashtra H.S.C. Board in March, 1993. He, therefore, approached one College with form but he was informed that he can appear in March, 1994 Examination and his form for registration was not accepted. This was in view of Regulation 89(3)(ii).
6. There is another Writ Petition No. 531 of 1993. The same is not admitted. The grievance mainly voiced is in respect of Regulations 42(2) and 89(4) as there was failure/refusal to send their forms for the S.S.C/H.S.C. Examination for one reason or the other by the School/College. However, the same requires no admission in view of the discussion made and the conclusions reached hereafter.
7. The Regulations from the Maharashtra Secondary and Higher Secondary Education Board Regulations, 1977, which are under challenge are as follows :---
"42(1) Eligibility of private candidates---A person who has pursued the prescribed courses of study privately and has completed the practical course and the course of school subjects prescribed for standard X in a recognised secondary school will be admitted to the Secondary School Certificate examination as a private candidate subject to the following conditions :
(a) He has been resident in the State of Maharashtra for a period of not less than two years prior to the date of the commencement of the Secondary School Certificate examination at which he desires to appear. The Divisional Chairman may, in exceptional cases, condone a deficiency in the period of two years' residence in the State of Maharashtra.
(b) The applicant has passed at least standard IV of a recognised primary school and produces the necessary evidence to that effect;
(c) x x x
(d) He must have completed the age of 16 years at the time of registering his name with the concerned Divisional Board. Each applicant shall furnish satisfactory evidence in support of the correctness of his date of birth.
42(2) Each applicant will have to pay Rs. 10/- as enrolment fee alongwith the application to be submitted through the head of the secondary school last attended, for permission to appear for the Secondary School Certificate examination. If the said school does not exist or is derecognised or refused to forward the application the applicant shall submit the application through the head of any other recognised secondary school within the jurisdiction of the Divisional Board. The enrolment fee will not be refunded in any case.
42(9) Private candidates will not be eligible for the award of any of the prizes or scholarships at the Secondary School Certificate examination.
89. Eligibility of private candidates---
(1) A candidate who has passed the Secondary School Certificate Examination of the State Board or any other equivalent Public Examination of Boards outside the State can appear at the Higher Secondary Certificate Examination as a private candidate three years after his passing the Secondary School Certificate Examination.
(2) x x x (3) The abovementioned eligibility for appearing as a private candidate at the end of Second Year Junior College (Std. XII) is subject to the condition, that
(i) he was not on the roll of a Junior College in Maharashtra State during the last three academic years, or
(ii) if he has passed at the end of the first year of a recognised Junior College in Maharashtra State during the last two academic years preceding the date of the Higher Secondary Certificate examination at which he desires to appear.
Note : For the purposes of (i) and (ii) above for the March or April Higher Secondary Certificate Examination the academic year commencing from June in that academic year shall be counted as one academic year provided that ---
(a) x x x
(b) unless specially permitted by the Divisional Board to do so no Junior College shall forward more than 50 applications from persons other than its own bona fide past students, for permission to appear as private candidates at any other Higher Secondary Certificate Examination, provided further that it shall be competent for the Divisional Chairman to relax, on the merits of each case, the said limit and allow a Junior College to forward more than 50 applications at any one examination from bona fide private candidates other than its own past students".
(This is same as Regulation 42(d)(b).
"89(4) Each applicant will have to pay Rs. 10 as enrolment fee alongwith the application to be submitted through the head of the Junior College last attended, for permission to appear for the Higher Secondary Certificate Examination. If the said Junior College does not exist or is derecognised or refuses to forward the application, the applicant shall submit the application through the head of any other recognised Junior College within the jurisdiction of the Divisional Board. The enrolment fee will not be refunded in any case.
89(11) Private candidates will not be eligible for the award of any of the scholarships at the Higher Secondary Certificate examination."
8. The Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977 (hereafter referred to as the Regulations) are framed under section 36(1) and (2) of the Maharashtra Secondary and Higher Secondary Education Board Act, 1965 (hereafter called the Act). These Regulations were sanctioned by the State Government under sub-section (3) of section 36 of the Act and were published on 11th July, 1977, and are deemed to have come into force on 15th June, 1977. 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 Secondary and Higher Secondary Education". The powers and duties of the State Board have been enumerated in Clauses (a) to (w) of section 18 of the Act. Section 18(f) empowers the State Board, among other things, to prescribe the general conditions governing admission of regulation and private candidates to the final examination 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 such examination. Clause (a) of section 18 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 the Board has to discharge an important role in formulating policies on all matters relating to Secondary and Higher Secondary Education. Section 18(1) empowers the State Board to make regulations for the purpose of carrying into effect the provisions of the Act. Section 19 deals with the powers and duties of a Divisional Board. 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.
9. The apex Court in , Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth, etc. etc., has considered the nature of these Regulations and has laid down as follows:
"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 Chairman of the Divisional Boards, the Director of Technical Education of the State, the Director of 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 file 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 laying down the details of policy of working out the provisions of the Act are to be carried into effect."
It has also been laid down that these Regulations made by the Board under section 36 are in nature of statutory rules and they have the full vigour and force by subordinate legislation made by a delegate duly empowered in that behalf by the legislature.
10. The impugned Regulations are challenged on two grounds - (i) the Regulations are beyond the scope of the regulation-making power conferred by section 36 and (ii) the Regulations are violative of the Constitutional provisions as contained in Articles 14, 21, 41, 45 and 46 of the Constitution.
11. The first contention raised by the learned Advocate appearing for the petitioners is that the impugned regulations do not come within the ambit of section 36(2)(c) of the Act as only general conditions regarding governing admission of regular and private candidates for the final examination and the conditions regarding attendance and character, on the fulfillment of which a candidate shall have a right to be admitted to and to appear at such examination, can be prescribed. He contended that none of these regulations are for governing admissions for the final examination and so do not fall under section 36(2)(c). He further contended that the effect of the impugned Regulations is to delay or prolong the appearance of private candidates for the S.S.C. and H.S.C. Examination or to affect the future chances of the private candidates. It is not possible to accept this contention. First it is not possible to interpret section 36(2)(c) narrowly. All general conditions subject to which regular and private candidates shall be eligible to appear for final examination can be laid down. This is also clear from the second part which speaks about particular conditions regarding character and attendance. Second the State Board and Divisional Boards are established to regulate certain matters pertaining to Secondary and Higher Secondary Education in the State. This is made clear from the object of the Act. Similarly section 36(2)(m) empowers the State Board to make regulations in respect of any matter which is to be or may be prescribed under the Act. In fact, section 36(1) confers wide ranging power upon such Board to make regulations for the purpose of carrying into effect the provisions of the Act. Section 18(f) provides that the powers and duties of the State Board which are same as section 36(2)(c). Section 18(v) permits the Board to exercise such other powers and perform such other duties as may be conferred or imposed on it by or under the Act and section 18(w) permits to do all such acts and things as may be necessary to carry out the purposes of the Act. This is the residuary power. Thus wide and pervasive powers are conferred on the State Board for laying down the educational requirements and regulating education at the High School and Junior College level. Obviously, this has been done in view of the fact that the Board consists of eminent educationists having long experience in the field of education. This is also clear from the fact that lesser or restricted powers are conferred on the Divisional Boards under section 19. In our opinion, the power to regulate necessarily implies the power to prohibit or prevent. It implies authorising everything which could fairly and reasonably be regarded as incidental or consequential to the power itself. This is nothing but the other side of the coin. Useful reference may be made to the judgment of the apex Court in , Khargram Panchayat Samiti and anr. v. State of West Bengal and others. In the said case, local authority - Panchayat Samiti was vested with the power to grant a licence for the holding of a `hat' or fairs under the enactment. The question arose whether it had no consequential or incidental power to specify a day for holding such hat or fair. In that respect, the Apex Court observed as follows:
" The decision of the High Court runs counter to the well accepted principles. It overlooks that the statutory bodies like the Panchayat Samiti enjoy a wide `incidental power' i.e. they may do everything which is `calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions' and the doctrine of ultra vires is not to be applied narrowly."
The Apex Court further observed "De Smith in his celebrated work Judicial Review of Administrative Action, 4th Edn. at p.95 puts the law tersely in these words:
The House of Lords has laid down the principle that "whatever may fairly be regarded as incidental to, or consequent upon, those things which the legislature had authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires."
It was held that general administration of the local area vested in the Samiti which had power to grant licences to hold a fair or not under the Act necessarily carries with it the power to supervise, control and manage such hat or fair within territorial jurisdiction. It includes the power to make incidental or consequential order of specifying the date. Hence, in our opinion, considering the object of the enactment and the provisions thereof, there is no merit in this contention that the impugned Regulations are ultra vires or beyond the scope of the regulation-making power conferred upon the Board by the Act. The effect of these Regulations may be that in the case of private candidates there is some delay or prolonging of their appearance for examination. It is quite possible that their future chances might be affected. However, because of this, it cannot be said that these Regulations are ultra vires the provisions of the enactment. The enactment clearly confers powers on the State Board to do all acts and things to carry out the purposes of the Act. The impugned Regulations are, therefore, framed consequent upon the conferment of those powers. There is no express prohibition or inconsistency with any of the provisions of the enactment. They cannot be said to be ultra vires the powers conferred upon the Board. The reliance placed by learned Advocate for petitioners upon , Lalappa Lingappa and others v. Laxmi Vishnu Textile Mills Ltd., is of no help. Provisions of Payment of Gratuity Act, 1972 were for consideration and it came to be observed:
"In construing a social welfare legislation, the Court should adopt a beneficent rule of construction, if a section is capable of two constructions, that construction should be preferred which fulfils the policy of the Act, and is more beneficial to the persons in whose interest the Act has been passed. When, however, the language is plain and unambiguous, as here, we must give effect to it whatever may be the consequences, for, in that case, the words of the statute speak the intention of the legislature. When the language is explicit, its consequences are for the legislature and not for the Courts to consider....."
It is also not possible to accept that statute does not distinguish between private and regular candidates and therefore, there can be no such discrimination by rules. The provisions of section 18(8) and section 36(1)(c) as mentioned above do contemplate separate treatment.
12. The second contention or the ground of attack is that the impugned Regulations are violative of Constitutional provisions contained in Articles 14, 21, 41, 45 and 46 of the Constitution.
13. The learned Advocate for the petitioners laid great stress on the National Educational Policy in this respect. We shall consider the same first.
14. We shall presently show that the National Education Policy, 1986 and programme does not help the petitioners in any manner and on the contrary it supports the contention of the Board that students appearing privately are only given concession and they can be treated separately from regular students. In Webster's New World Dictionary of American Language (2nd College Edn.) the meaning of `Education' is given as follows:
"(1) process of training and developing the knowledge, mind, character, etc. specially by formal schooling, teaching, training;
(2) knowledge, ability etc. thus developed;
(a) formal schooling at an institution of learning;
(b) a stage of this - high school education;
(3) systematic studies of methods and theories of teaching and learning."
In Collins Combined English Language Dictionary, meaning of `Education' is given as (1) the system of teaching people usually at a school or college (2) the gradual process by which a person gains knowledge and understanding through learning (3) the knowledge or training that you have gained through formal and systematic study...." Similarly a `student' broadly means a person who is studying or training at a school or college etc. Further, in our opinion, as in the absence of any electronic invention, rule of probability is the alternative for finding of truth in the cause. Similarly in the absence of any other definite scientific instrument to measure merit, examination is the alternative, albeit may not be very sure. However, getting through the examination itself is not the object of education. The object of education is the development of the mind and personality of a human being so as to transform him into a useful citizen. Education is an alround enlightenment which seeks to build up personality of a student by assisting him in his physical, intellectual, moral and emotional development. The object is not narrow but wide.
15. The dictionary meaning of the word `education' shows that it is a regular process of training and developing knowledge, mind and character by teaching or training. In other words, there is interaction between the teacher and the taught in this process of education. The relevant provisions of the said National Policy are as follows:
"1.5 Since the adoption of the 1968 Policy, there has been considerable expansion in educational facilities all over the country at all levels. More than 90% of the country's rural habitations now have schooling facilities within a radius of one kilometer. There has been sizeable augmentation of facilities at other stages also.
3.2 The concept of a National System of Education implies that, upto a given level, all students, irrespective of caste, creed, location or sex, have access to education of a comparable quality. To achieve this, the Government will initiate appropriately funded programmes. Effective measures will be taken in the direction of the Common School System recommended in the 1968 Policy.
3.3 The National System of Education envisages a common educational structure. The 10+2+3 structure has now been accepted in all parts of the country. Regarding the further break-up of the first 10 years efforts will be made to move towards an elementary system comprising 5 years of primary education and 3 years of upper primary, followed by 2 years of High School."
Clause 4.12 deals with the mass literacy programme which would include, in addition to literacy, 2functional knowledge and skills and also awareness among learners about socio-economic reality and the possibility to change it. In that context, Clause 4.13 mentions that the programme of adult education will be implemented through various channels and ways including establishment of various centres, workers' education, post-secondary education institutions, libraries, etc. Clause 5.8 deals with non-formal education for school drop-outs, for children from habitations without schools, working children and girls who cannot attend whole-day schools. Clause 5.9 makes it clear that modern technological aids will be used to improve the learning environment of non-formal educational centres and all necessary measures will be taken to ensure that the quality of non-formal education is comparable with formal education. In our opinion, it has nothing to do with the regular candidates, and private candidates, appearing for the examination. Clause 5.13 states that secondary education begins to expose students to the differentiated roles of science, the humanities and social sciences and this is the stage to provide children with a sense of history and national perspective etc. Under the heading "The Teacher" Part IX, it is provided as follows:
"9.1 The status of the teacher reflects the socio-cultural ethos of a society. It is said that no people can rise above the level of its teachers. The Government and the community should endeavour to create conditions which will help motivate and inspire teachers on constructive and creative lines. Teachers should have the freedom to innovate, to devise appropriate methods of communication and activities relevant to the needs and capabilities of and the concerns of the community.
9.3 Teachers' associations must play a significant role in upholding professional integrity, enhancing the dignity of the teacher and in curbing professional misconduct. National level associations of teachers, could prepare a Code of Professional Ethics for Teachers and see to its observance.
9.4 Teacher education is a continuous process, and its pre-service and in-service components are inseparable. As the first step, the system of teacher education will be overhauled."
"The programme of action" provides how the said national policy shall be implemented. First this policy has no statutory force. It is a mere guideline. On that basis constitutional validity of impugned regulations cannot be tested. Further, it refers to formal and non-formal education. Non-formal education cannot be equated with private candidates contemplated by impugned regulations. The private candidates do self study without any institutional guidance - formal or non-formal. This is not so in the case of non-formal education under the National policy as it contemplates education under guidance of some instructions. It is not possible to accept that the emphasis of the National Policy is only on `learning' and not on `teaching' or that the pattern of education 10+2+3 must be adopted in all circumstances.
16. Further in this context, the learned Advocate for the petitioners relied upon the judgment of the Apex Court reported in Unni Krishnan J.P. and others v. State of Andhra Pradesh and others, . The larger Bench of the Apex Court was re-considering the ratio laid down in the case of Mohini Jain v. State of Karnataka, . Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987, Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 and similar such legislations passed by the other States were for consideration. Broadly they are in respect of running of private un-aided/aided/recognised/affiliated educational institutions conducting professional courses such as medical and engineering. The questions were relating to admissions and charging of capitation fees in such institutions and extent to which and subject to what conditions and regulations of the State this can be done. The Apex Court framed the scheme eliminating discretion of management to such institutions in admission in and fees payable and laid down guidelines in that regard (50% free seats and 50% payment seats etc.) and also substituted merit of the students as the sole criterion. The Apex Court considered various aspects of education and made certain observations which are in respect of Articles 21, 41, 45 and 46. In our opinion, there is nothing in the judgment from which it can be spelt out that regular candidates and private candidates appearing for the examination should be treated on par in every respect, or to suggest that regulations cannot be made so as to have proper control over the education. We shall make reference to this judgment later so as to point out what the Apex Court has to say regarding the right of education. It is suffice, at this stage, to point out that education implies where there is teaching-teacher and taught and end of education is not examination. It is just a test as no better method is available and which is necessary in actual practice to measure the achievement of a person. Similarly the learned Advocate for the Board sought to rely upon , The Sole Trustee Loka Shikshana Trust v. The Commissioner of Income Tax, Mysore. In the said case Apex Court considered the definition of word `education' contained in section 2(15) of the Income Tax Act, 1961. It was held that it was used in the sense of systematic instruction, schooling or training given to young in preparation for the whole of life and not in wide sense of acquisition of knowledge from any source. It was held that it connotes the process of training and developing the knowledge, skill, mind and character of students by formal schooling. However this may not be useful as far as our case is concerned. In , Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and others, it was observed as follows:
"13. In nation building activities, education is a powerful lever to uplift the poor. Education should, therefore, be co-related to the social, political or economic needs of our developing nation fostering secular values breaking the barriers of casteism, linguism, religious bigotry and it should act as an instrument of social change. Education system should be so devised as to meet these realities of life. Education nourishes intellectual advancement to develop dignity of person without which there is neither intellectual excellence nor pursuit of happiness. Education thus kindles its flames for pursuit of excellence, enables and ennobles the young mind to sharpen his/her intellect more with reasoning than blind faith to reach intellectual heights and inculcate in him or her to strive for social equality and dignity of person.
14. Teacher occupies pride of place next below the parents as he/she imparts education and disciplines the students. On receiving salary from public exchequer he/she owes social responsibility and accountability to discipline the students by total dedication and sincere teaching. It would appear that their fallen standards and rectitude is also a contributory factor to the indiscipline among the students. The students, too, instead of devoting his or her precious time to character building and to pursue courses of study studiously and diligently in the pursuit of knowledge and excellence, discipate their precious time and many indulge in mass copying at the final examinations or use unfair means. Some even do not hesitate to threaten the dutiful invigilators with dire consequences".
16-A. The Regulations provide for three types of candidates or students-(1) regular, (2) private and (3) repeaters or ex-students or failures. We are not here concerned with this third category. Regulation 41 provides for the eligibility of regular candidates and states that a candidate shall be eligible to appear for the secondary school certificate examination on fulfilling certain conditions inter alia that he has to attend classes in a recognised school for not less than 75% of the working days in two different semesters as provided therein. He has also to submit a character certificate issued by the head of the school regarding his fitness. In our opinion, Regulation 42 which permits private candidates to appear for the S.S.C. Examination (Regulation 89 permits private candidates for H.S.C. Examination) it is nothing but a concession given to those under privileged students who are not able to attend the school regularly due to one reason or the other i.e. they may be employed or unable to pay fees. They are permitted to appear for the examination provided they satisfy the conditions which are laid down in the said Regulation 42 which gives those conditions of eligibility. This class is recognised as an exception to the general class of students - regular who undergo regular course of studies and subject themselves to the different disciplines of education, where there is interaction between the teacher and the taught, where there are games, libraries and exposure to co-education.
17. We shall first consider the decisions of the Apex Court cited in support or in opposition of the said contentions though the principles or propositions are well settled and oft-repeated. The Advocates appearing for both sides in some cases relied upon head notes of the judgments or observations made by this Court in certain judgments while dealing with the challenge under Article 14 or Article 21 of the Constitution, without making reference to the facts. In some cases only few sentences from a para of the judgment were read or relied. We would make it clear that we are not going to burden our judgment by considering those judgments as, in our opinion, it is no use to rely upon such observations out of context while deciding the constitutionality of specific provisions. Further the broad content and interpretation of those Articles are well settled. In the light thereof we shall first consider each of the regulations separately to decide whether they are ultra vires Art. 14 of the Constitution. In other words, whether they are arbitrary or confer power upon authorities which can be used arbitrarily or unreasonable.
Article 14 & Regulations :
18. The first case relied upon is , D.P. Joshi v. State of Madhya Bharat & another. Certain rules relating to admission to Medical College at Indore were under challenge. It was contended that the rule requiring capitation fee to be paid by the students from non-Madhya Bharat was ultra vires the Article 14 of the Constitution. The said contention was negatived by majority. It was held that the said rule proceeded on a classification based on residence within the State, and the only point for decision is whether the ground of classification has a fair and substantial relation to the purpose of law or whether it is purely arbitrary and fanciful. It came to be held by majority that the classification was proper and having reasonable relation to the object of the legislation. Geographical classification came to be upheld on the ground that it was devised to reduce the financial burden on the bona fide resident students from Madhya Bharat joining medical course.
19. Then State of Mysore & another v. P. Narasinga Rao. It was a case where the cadre of tracers was recognised into two, one consisting of matriculate tracers with higher scale of pay and the other of non-matriculate in the lower scale. It was held that Articles 14 and 16 do not exclude laying down of selective test nor do they preclude the Government from laying down the qualifications for the post in question. Therefore, it was open to the Government to give preference to candidates having higher educational qualifications. It was observed "It is well settled that Article 14 forbids class legislation, and does not forbid reasonable classification for the purposes of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group; and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. In other words, there should be some rational nexus between the basis of classification and the object intended to be achieved by the statute or the rule."
20. Then 1978(1) S.S.C. 37 Ramnath Prasad v. State of Bihar. The apex Court considered Articles 14 and 16 and laid down that those who are similarly circumstanced are entitled to equal treatment. The question related to qualifications for the post of Executive Engineers. The appellant therein possessed particular degree in engineering which was not possessed by the respondents (writ petitioners in High Court). It was held that there was nothing wrong in promoting the appellant. It was held that the doctrine of equality before law and equal protection of laws and equality of opportunity in the matter of employment and promotion enshrined in Articles 14 and 16, which is intended to advance justice by awarding discrimination is directed only when equals are treated as unequals or where unequals are treated as equals. In the articles all those hostile discrimination is forbidden, reasonable classification is not forbidden and hence equality of opportunity in matters of promotion means equality as between members of the same class of employees and not equality between the members of separate and impendent classes.
21. Reliance is placed on , Excel Wear v. Union of India and others. In the said case, the Apex Court considered the question whether the right to carry on a business carried with it the right not to carry it on in the sense of closing it down. Validity of section 25-O and section 25-R of the Industrial Disputes Act were challenged. In that context, it was held that reasonableness has got to be tested both from the procedural and substantive aspects of law. Nobody has got a right to carry on the business if he cannot pay even the minimum wages.
22. Reliance is placed on . (In Re : The Special Courts Bill, 1978)12, the Apex Court laid down the different shades of Article 14 of the Constitution. It came to be observed that propositions applicable to cases arising under Article 14 have been repeated so many times during the past few years. Due to avalanche of cases, the propositions have become more platitudinous. The material propositions for our purposes are :
"2. The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.
3. The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
4. The principle underlying the guarantee of Article 14 is so that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same.
6. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.
7. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act.
10. Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.
11. Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determine the matter of constitutionality."
23. Then , Om Prakash Sud etc. v. State of J. & K. and others. In the said case it came to be held that allotment of Resin contrary to the industrial policy, to some allottees violated Article 14 of the Constitution of India. It was observed as follows:
"8. "Equality before the Law" or "equal protection of the laws" within the meaning of Article 14 of the Constitution of India means absence of any arbitrary discrimination by the law or in their administration. No undue favour to one or hostile discrimination to another should be shown. A classification is reasonable when it is not an arbitrary selection but rests on differences pertinent to the subject in respect of which the classification is made. The classification permissible must be based on some real and substantial distinction, a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis...See State of West Bengal v. Anwar Ali, . The classification must not be arbitrary but be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out. Those qualities or characteristics must have a reasonable relation to the object of the law. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped from others, and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. .
We are not unaware that the rule of equality does not mean mathematical equality and that it permits of practical inequalities. But what is needed is that the selection of the quota seekers as in the case in hand should have a rational relation to the object sought to be achieved in the industrial policy decision of the State. If the selection or differentiation is arbitrary and lacs a rational basis it offends Article 14."
24. Then D.S. Nakara and others v. Union of India. In the said case, Rule 39 of the Central Civil/ Services (Pension) Rules, 1972 under which a superannuation or retired pension was received by the pensioners. A Memoranda dated 25-5-79 came to be issued by the Ministry of Finance and another dated 28-9-1979 by the Ministry of Defence. By those memorandas, pensions came to be revised upward payable to the Central Civil and Military Servants. The effect was given from 31-3-79 i.e. those servants who were retiring on 31-3-1979 or thereafter were entitled to get the said revised pension. Those memoranda came to be challenged on the ground that the classification made in the memoranda between those who retired before, and those who retired after, the specified date was invalid and violated Article 14. The Government only gave reply that the date of effect in the impugned orders has been selected on the basis of relevant and valid considerations. It was held that the said classification violated Article 14 of the Constitution. The Reports of Commissions which preceded the grant of the revised pension recongnised that there was rise in the cost of living which made the existing pensions inadequate by the passage of time and the fall in the value of Rupee. Since the object of revising the increased pension was to meet this inadequacy, no rational reason could be suggested why those who retired before a particular date should be denied the benefit of the increased pensions as all were affected similarly. While dealing with this, one of the questions adverted to was on whom did the burden of proof lie in such a case. As in the said case discrimination was patent and since the object of revising the increased pension was to meet the inadequacy and as no rational reason was suggested for selecting the said date, it was observed that the burden to prove was on the State and it has failed to discharge it. In fact, there are number of decisions in which the Apex Court has held that the burden of proof to establish that Article 14 has been violated is on the person who asserts it. See A.I.R. 1986 S.C. 1155. In view of this, it is not possible to accept the contention of the learned Advocate for the petitioners that the burden to prove that the Regulations were not violative of Article 14 was upon the Board and the Board has failed to discharge the same.
25. Then (Dr. (Mrs.) Sushma Sharma etc. etc. v. State of Rajasthan and others). This was again a case where the choice of date was questioned. 25th June, 1975 was chosen as a relevant date for giving benefit under section 3 of the Rajasthan Universities Teachers and Officers (Special Conditions of Service) Act, 1974 - for absorption of temporary lecturers who were appointed on or before that date. It was held that choice of date as a basis for classification cannot always be dubbed as arbitrary unless it is shown to be a capricious or whimsical in the circumstances. In the said case it was held that selection of date was not arbitrary.
26. In Central Inland Water Transport Corporation Ltd. and another v. Brajo Nath Ganguly and another, Central Inland Water Transport Corporation Ltd. Service Discipline and Appeal Rules, 1979 were for consideration. Rule 9(i) empowers the Corporation to terminate services of permanent employees without giving any reason or any show cause notice or hearing and so it was dubbed "the Henry VIII Clause" as it conferred absolute and arbitrary power on the Corporation.
27. Reliance is placed on , Prabhakaran Nair etc. etc. v. State of Tamil Nadu and others. In the said case, Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was for consideration which contained no provision for re-induction of tenant after re-construction of the building. Such a provision was present in similar Rent Acts in other States. Therefore, it was challenged on the ground of Article 14 and the Supreme Court held that Article 14 does not authorise striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory.
28. Reliance is also placed on the observations made by the apex Court in , Indian Express Newspapers (Bombay) Pvt. Ltd. and others etc. etc. v. Union of India. The observations are as follows:
"A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary."
This question arose in connection with the notification which was issued under section 25 of the Customs Act, 1962 by which certain exemptions from duty were modified or withdrawn.
29. It has been generally contended that there is common syllabus, common pattern of studies, common books, common papers, common examination and common assessment in the case of all students - private and regular. Therefore, there was absolutely no reason to discriminate between the two groups, no basis for classification and, in any case, there is no nexus with the object to be achieved by such classification. It has been submitted on behalf of the Board that these two streams of students are totally different. In the case of regular students they have to satisfy mainly the condition regarding attendance as mentioned above. They can appear for examination on satisfying that condition. There is no such condition for the private students. Therefore, it is only a concession given to them. It was contended that there is a basis for the classification and reasonable nexus to be achieved by each of the regulations.
Regulation 42(1)(a)
30. It has been contended that in the case of private students 2 years `domicile' is required prior to the commencement of examination which is not the requirement in the case of the regular students. Private candidates are only singled out and there is no reason to discriminate and it has not been founded upon rational nexus. It has been contended by the Board in the replies filed that there is no question of the domicile for the regular candidates as the record of the regular candidates are available to the Board through schools. This requirement has been provided to avoid manipulations by candidates from other States and failures in public examinations elsewhere to appear at the S.S.C. Examination conducted by the Board. This was in order to avoid possibility of their appearing surreptitiously as examinations at the S.S.C. level in the different States of the country are conducted at different times. A student who apprehends failure in some other State may come here and attempt and try to overcome his failure here. It has also been pointed out that Regulations 30 and 38 provide for syllabus and subjects and the requirement of 2 years residence ensures that the private students can absorb or acquaint with the syllabus as different States are having different syllabus. They can prepare properly as the eligibility is only passing Standard IV for private candidates. The time prescribed is quite reasonable and not arbitrary. It is uniformly applied.
31. It has been contended that the requirement is not of `domicile' but of residence i.e. physical residence in the State of Maharashtra only. It will be necessary to note that `domicile' and `residence' are two distinct concepts. The apex Court has made this clear in , Dr. Yogesh Bhardwaj v. State of U.P. and others, while considering the provisions of U.P. State Universities Act, 1974 it was held `residence is a physical fact. No volition is needed to establish it. Unlike in the case of a domicile of choice, animus manendi is not an essential requirement of residence'. Under the present regulation residence or physical presence for 2 years in Maharashtra is needed.
32. It has been first contended that there is no basis whatsoever to say that 2 years are required for absorbing the syllabus. It is not possible to accept as it has been pointed out that these Regulations are framed by those who are experts in education and they have comprehended on the basis of their experience that such time is required. Therefore, it is not necessary that there should have been some other report of the expert committee to support this.
33. It has been next pointed out that if two students after passing IX Standard come from say Gujarat and one wants to be a private candidate then he is required to spend 2 years - residence. If the other candidate joins the school for Xth Standard, then he can appear in that year itself. Therefore, it is discriminatory. It is not possible to accept this, since the student who joins the school undergoes the regular attendance etc. and he is benefited by the instructions which are given by the teachers, availability of the library and other means. Therefore, obviously, he would not require the same time which is required for the private candidate. The past record of such student is also available to the school authority for scrutiny. This checks the abuse. So apparently it is not discriminatory.
34. Further in this context, we can very well say that the Divisional Chairman is given power to condone some deficiency considering the circumstances in the period and 2 years residence in the State of Maharashtra in exceptional cases. Residency power vests in him. We can also not ignore the fact that examinations of this level are held in different States in different times and it is possible for the student who is likely to fail in other State may overcome the same by coming in this State and appearing for the examination. The possibility of manipulation cannot be ruled out unless it is made compulsory that he should have some fixed time residence in the State of Maharashtra. Even in the case of private student he is required to spend one whole year - residence - in the school and under the supervision of teachers. In the face of this, if two years' residence is required for a private candidate, in our opinion, there is nothing wrong and no discrimination. The learned Advocate for the Board has further pointed out from the affidavit that not a single petitioner has been debarred on ground of non-fulfilment of Regulation 42(1)(a) and, therefore, the challenge is academic.
35. The learned Advocate for the petitioners drew our attention to note 2(i) of Regulation 42(1). He pointed out that if a student is coming from London then there is no such requirement of two years residence, while such a requirement is there when a student comes from Gujarat or any other State. Therefore, it is discriminatory. This cannot be accepted. Under the said note, a regular student who is a citizen of India and was a regular student of a secondary school overseas and has completed the course of studies which is equivalent to the Secondary School Certificate Examination (Senior Cambridge) is permitted to appear as a private candidate. This is only applicable in the case of those who are regular students and completed the course of studies equivalent in nature. This is not so in the case of private students who are coming from other States. Therefore, it cannot be said to be having any discriminatory effect. Then the learned Advocate tried to rely upon note 2. This is applicable in the case of those students who were regular students and as such have undergone the prescribed course of studies and prescribed minimum attendance at a recognised institution but failed at the corresponding examination. Such students who have not joined the secondary school since they are failures are permitted to appear. This has no comparison whatsoever with a private candidate who form a class by themselves.
36. It has also been contended that the stand of the Board is inconsistent i.e. (1) to prevent abuse and (2) to absorb syllabus. We do not find any inconsistency in it. It is also not necessary that syllabi of other States should be `drastically' different from Maharashtra as to provide this requirement. Further an outside student who joins here as a regular student has to spend one year in a school under the supervision of teachers and undergo the compulsory attendance etc. The case is totally different and cannot be compared.
37. Hence, in our opinion, Regulation 42(1)(a) is not at all discriminatory or violative of Article 14 of the Constitution. There is good basis for it and objective to be achieved by it as mentioned by the Board Regulation 42(2) is same as Regulation 89(4). Similarly Regulation 42(2)(d)(b) is the same as Regulation 89(3)(i)(b).
38. They can be dealt with together. It has been contended that as the forms for the S.S.C. and H.S.C. Examinations are required to be submitted to the Board only through recognised school or recognised junior college it has become very difficult or nearly impossible for private students as the forms are invariably refused to be sent by such schools or colleges. The rules do not impose any obligation upon such schools or colleges to send the forms. Further, there is also limitation of 50 forms which can be sent by each of such institutions. Many a times such institutions flatly refuse as they can get only Rs. 2/- for scrutinising and sending each form and which amount cannot even cover the postage. Further the Principals are over-burdened with work and so decline to accept the forms of private candidates as they are required to be scrutinised. This has the effect of depriving the private candidates from appearing for the examination. This would not happen in the case of regular candidates. It is, therefore, contended that the Regulations are discriminatory and the Board should be made to accept the forms directly. In the reply, the Board pointed out that the Regulation is designed to check malpractices by the private students and to find out whether a private candidate satisfies the eligibility criteria or not. It is necessary to scrutinise the forms and certificates - birth certificate, character certificate, etc. and it is impossible for the Board to do so in the case of thousands of students if submitted directly. After checking only the eligibility can be found out. The record in that respect is either available with the school which a candidate has last attended or can be checked by the recognised school where he is required to complete his practical course as required by Regulation 42(1). If the students are permitted to submit the form directly to the Board, then it would create chaos. It has no independent machinery to check the forms or to find out the eligibility. Further, identity of students can best be recognised if forms are sent through the schools. If this is not done then there is a possibility someone else may appear for the examination by passing off as the real candidate. Therefore, the procedure evolved by the Board is fair, just and reasonable. It has also been pointed out that a school or college is in a position to send about 50 forms of bona fide private students and so that limit is provided. But with the permission of the Board, more than 50 forms can be sent. The Government in its affidavit has also supported the stand of the Board. In our opinion, the Regulations are quite reasonable and not arbitrary. No doubt, the petitioners have pointed out various difficulties faced by the students in sending the forms. The same may be true. The petitioners have given instances how some of the private candidates are required to run from pillar to post and how the recognised institutions demand donations for sending forms. However, merely because there are difficulties the Regulations cannot be said to be ultra vires or violative of Article 14. In addition, the Board has pointed out that when the difficulties faced by the students were brought to the notice of the Board, it has issued a circular dated 12-9-1992 making it compulsory for the schools/colleges to send the forms of their past students. It has been also pointed out that on 22-6-1993 (Ex. 2 to the affidavit dated 28-7-1993 filed by the Board), the Board has submitted a draft Regulation to the Government for amendment which is awaiting sanction of the Government. That makes obligatory to send forms of past students and if the school does not exist or is de-recognised then a student can submit his form through the head of any other recognised school. We accept and trust the word of the learned Advocate for the Board that every effort shall be made to see that no difficulties are faced by the private students in sending the forms. We have also seen the proposed draft amendment and find that the same will meet the demand of the petitioners and would remove the obstacles and there shall be no difficulty or discouragement for them. In addition, we may suggest to the Board and the State that the following words may be added in paras 2 and 3 of the proposed amendment :
"Or otherwise cannot send the form."
In our opinion, this would cover all the types of students and set at rest the apprehension of petitioners. However, we make it clear that because there are difficulties, the Regulations cannot be said to be discriminatory or arbitrary or unreasonable or having no nexus with the object to be achieved. They do not violate Article 14.
Regulation 42(9) is same as Regulation 89(11).
39. They can be dealt with together as they are similar. Former deals with S.S.C. and the latter H.S.C. students. It has been submitted that the same are palpably discriminatory and unfair to the private students as they deny the prizes and scholarship to them after they have prepared so hard and despite great difficulties. It has been replied by the Board by saying that it would be wrong to presume that private candidates are necessarily those who are working and if prizes and scholarships are kept open for both regular and private candidates then it would be unfair for regular candidates as they have less time to study due to the school activities vis-a-vis such private students. It has also been contended that object of granting prizes is to recognise the achievement of a student, who, after the course of study in school or college attains special proficiency. Further, it is contended that all this is academic as none of the petitioners is eligible for any prize or scholarship. In the affidavit filed on behalf of the State, it has been contended that regular students have better claim to prizes as they achieve academic distinction by regular and time testing method of study while the success of a private candidate may be fortuitous and momentary. In our opinion, none of the contentions raised on behalf of the Board or the State hold any water. The regular and private candidates study for the same course and appear for the same examination with same subjects. They are on the same footing or level. There is no reason or basis to discriminate them thereafter. In fact, such discrimination shall be harmful or injurious to the private students. We can very well visualise that a private student receiving prizes shall be encouraged to achieve further distinction or such a student receiving a scholarship may be able to join as a regular student and be liable to gain more knowledge and laurels. There is no basis to say that private candidates have more time to study compared with the regular students or the achievement of regular student is only after consistent good record or study and that of the private candidate fortuitous and momentary. In fact, private candidates are required, in majority of cases, to work and earn, and therefore, they are having less time to study. Further, a regular student who has studied at fag end may receive a prize or scholarship and can have fortuitous or momentary success. The position of both classes of students - regular and private - is the same in this regard. The classification is neither reasonable nor having nexus to the object which is sought to be achieved by it. The Regulations, in our opinion, are arbitrary and unreasonable and offend the provisions of Article 14.
Regulation 42(1)(d)
40. Originally, the said Regulation required that on the date of registration a private candidate should have completed the age of 16. However, the same is amended and brought down to 15. The said amendment is effective from 11-2-1993.
41. It has been contended by the petitioners that the said Regulation is totally unreasonable and discriminatory and there should be no such limitation. It is pointed out on behalf of the Board that in its absence the effect would be a private candidate aged 11 years or so would be appearing for the S.S.C. Examination or a candidate of the age of 13 years to appear for H.S.C. and while in teens knocking the doors for becoming a doctor, lawyer or engineer and this would be having the effect of reverse discrimination. It is pointed out that a private candidate has to pass only IVth standard as required by Regulation 42(1)(b). Further, in view of the Bombay Primary Education Act, 1947 a student can join the 1st standard after completing the 5 years of age. Therefore, he may be completing the IVth standard when he completes 9 years of age and thereafter if he is held to be eligible for appearing at the S.S.C. Examination then he will be eligible to appear at such tender age for S.S.C. or H.S.C. Considering this, the learned Advocate for the petitioners departed from this contention raised in the petition and toned it down. He submitted that a private candidate should complete 15 years of age on the date of examination and not on the date of registration or 14 years on the date of registration. The registration takes place in July and the date of registration is accepted as 31st July. The examination takes place in the next year sometime in March. We shall examine this toned down submission.
42. It has been submitted that in the case of regular student he completes IXth standard when he is about 14 years and enters Xth standard at that time. This is because, as mentioned above, under the Bombay Primary Education Act, 1947, a student has to complete his age of 5 for joining the 1st standard. Thereby at the time of entering Xth standard (in July), he is around 14 years and at the time of appearing for S.S.C. 15 years. The learned Advocate for the petitioners submitted that while in July (at the time of registration) a private candidate has to complete 15 years and this is discriminatory and there should be no discrimination. It is unfair and unjust and therefore, requires to be read down. It is contended that it is having effect of delaying the career of private students who are unable to pay the fees and join the school. There is no rational behind it to delay the education by one year as there is no additional syllabus or subjects for the private students. It has been pointed out on behalf of the Board that a regular candidate attends and passes in a regular recognised school. The passing of the aforesaid examination every year is a test of a candidate having acquired sufficient knowledge and experience in the subjects offered. The mental and intellectual development of a regular student takes place in the school. Further even a regular candidate is around 15 years when he joins 10th standard. Therefore, the requirement of age as prescribed for the private candidate on the date of registration is quite proper. A private candidate requires an extension of one year as he has no sufficient time of access to formal education as in the case of regular student. He is not having facilities of a school and of formal instructions therein. Therefore, he is required to undergo an extended period of self study. Further, in order that the coaching classes should not misuse this facility and that the students should not choose to be private candidates by forgoing school/college education, this is necessary. Similarly they should not attend the coaching classes instead of going through the regimentation of formal schooling, it is necessary to have such difference. It has also been pointed out that genuinely poor and deserving students commence education later in life. This provision does not cause any prejudice to good private students and on the contrary, it acts as a check on the unfortunate practice of students, backed by coaching classes, opting to appear as private students only because they do not wish to subject themselves to the discipline of schools and colleges. The Regulation is having a very good object to be achieved. The State in its reply has supported the Board. The petitioners in the rejoinder have submitted that there is nothing except the assessment of the so called experts that private students are required to devote a longer period of study to acquire the minimum knowledge for passing the examination. There is nothing to show that the development of mind requires a longer time or an additional year for the private students to spend. Further, there is no reason whatsoever to choose the date of registration. There is no method of monitoring of the progress of the regular students who have joined the institutions. The private and regular candidates are on the same footing. It has been further submitted that merely because schools and colleges permit conditions for interaction between students and teachers and thereby encourage the development of personality and character of students, that cannot be a reason to ask the private students to spend one additional year outside the institution. There is no relation between formal schooling having advantages or that regular students are required to participate in extra curricular activities with the capacity of the private students to appear for the examination. It has also been contended that there is nothing to show that coaching classes are having any hand in misusing such Regulation and removal of this discrimination cannot assist the coaching classes in any manner.
43. It is not possible to accept any of the submissions of the petitioners. Experts have visualised that the private students are not having the benefit of formal schooling. They are not having the advantage of student-teacher interaction or institutional support in respect of education or library and, therefore, for the proper acquisition of knowledge or the development of mind, an additional year of self study is required. There is nothing wrong in this. It is not necessary that there should have been some report of experts on this subject to guide those who frame the Regulations. Those who framed regulations themselves are experts. Further, this is not intended to delay or prolong the education of private candidates. But considering the fact that such students are employed and/or having less time to study, it is found that an additional year is required for self study so that they can come on par with regular students. The progress of a regular student is monitored every year apart from the fact that he has to attend 75% of lectures each term. The student undergoes the course, examination and assessment every year. In our opinion, this regulation is designed to serve the interest of education and for proper development of private candidates. It cannot be said to be arbitrary or discriminatory or unreasonable. There is a definite rational behind it.
44. It has also been contended that the date of registration is arbitrarily selected and the learned Advocate for petitioner relied upon D.S. Nakara's case, (mentioned above). It is not possible to accept this for more than one reason. First the said date is taken as a basis as on that date a private candidate comes in contact with the S.S.C. Board. Secondly, some date has to be taken as basis in the case of private candidates. The reliance on D.S. Nakara's case is totally misplaced and has no application. The validity cannot be tested by pointing out that it will be discriminatory in the case of a student whose birth date is a few days after 31st July. If it is prior, he can appear as he may complete 15 on 31st July. But this will be the position in the case of any date. Even for joining a school in 1st standard a boy has to complete 5 years under law. The date of joining is taken. A boy completing 5 years later than the date of joining date in a particular year cannot join. Hence, we reject this contention.
45. It is also not possible for us to ignore the menace of coaching classes. If this is not provided then a student would like to offer himself as a private student instead of being a regular one. He would not wish to subject himself to the rigours and discipline of the school training. He would very well like to be away from the regimentation of formal schooling and to join the coaching classes to get through the examination somehow or the other or by hook or crook. This may lead to the collapse of formal education system which is already facing downward trend. It is not possible for us to forget such disasterous effect on the system of education. Therefore, it is in the larger interest to have such regulation. It cannot be said to be violative of Article 14.
46. It has been sought to be contended that earlier the requirement was of 16 years on the date of registration. However, it has been brought down to 15 years. It is contended that this itself shows that this can be further brought down to 14. However, it has been contended on behalf of the Board that as the various technological developments and availability of technical gadgets or aids provide an opportunity to a private candidate to acquire the knowledge a little earlier, the age has been reduced to 15. In our opinion, there should be no difficulty in accepting the submission of the Board in this respect. Merely because this has been brought down cannot follow that there was nothing before the experts while proposing the amendment to the regulation. In fact, the very experts have considered the present technical developments, innovative methods of teaching and have reduced the age. This shows they are alive to the situation and the circumstances and have acted properly. This cannot enable the petitioners to contend that the Regulation is arbitrary or discriminatory.
Regulation 89(1) :
47. This Regulation requires 3 years period for enabling a private candidate to appear for H.S.C. Examination after passing the S.S.C. Examination. A regular student requires 2 years. Therefore, it has been contended that this is discriminatory. It has been contended that the pattern of education is 10+2+3 and it is not necessary to have the gap of 3 years after the S.S.C. Examination. After S.S.C. all the students are brought on par and there is no object to be achieved by providing such a gap. There is no reason or rational behind this. It has also been contended that in other States there is no such requirement for a private candidate to spend additional year. It is further contended that National Open School, Delhi conducts Senior Secondary Course Examination at Bombay and Private candidate can appear for the same after 2 years of S.S.C. and the same is recognised by the Bombay University as equivalent of H.S.C. It has been contended that the National Educational Policy lays down the pattern as 10+2+3. Private students in Maharashtra cannot be discriminated and treated differently. It has been contended by the Board that the reasons which are for the Regulation 42(1)(d) hold good in this respect also. The Regulation is not arbitrary or discriminatory. A regular candidate who joins Jr. College can appear for the examination at the end of 2 years, while a private candidate requires longer period for self study and this has been perceived by the educationists as 3 years. It is their value judgment based on experience. The National Educational Policy does not contemplate purely private candidates but some formal education. It has been pointed out that the letter (Exhibit `D-2') relied upon by the petitioners in respect of the National Open School Delhi does not make mention regarding the private candidates. It has been further contended that there is nothing to show that in other States the Private candidates can appear for the H.S.C. Examination after 2 years and, in any case, it has nothing to do with these Regulations. It has also been contended that the extended period of study is required by private candidates as regular students pursue the full course of study in a junior college. They are also required to satisfy the condition of attendance as prescribed by Regulation 88. A private student can overcome the handicap of not having the benefit of formal education, by some additional self study which requires one more year. The requirement of additional one year is founded on the view that unlike regular students, private students have no benefit of sustained study, monitoring, evaluation and interaction in a junior college. The Government has also supported the Board and pointed out that longer period is required for the intellectual maturity and achieving academic level for a private candidate. This is sought to be disputed by the petitioners by their rejoinder and contended that the submission of extended period of study is wholly untenable for the very reasons which are set out in respect of Regulation 42(1)(d). It has been once more contended that regular and private students should be treated equally as both have the same examination, at the same time and place and with the same syllabus and with the same set of questions. We have already indicated the reasons why Regulation 42(1)(d) is valid. Those reasons hold good in this case also. Further, there is nothing to show that in other States private candidates can appear after 2 years and in any case that cannot lead us to the conclusion that this Regulation is arbitrary or violative of Article 14 of the Constitution. The judgment of the Apex Court , mentioned above, supports this. Similarly, it is not possible to accept on the basis of Ex. D-2 that National Open School, Delhi private students can appear after 2 years and they are accepted here. Reliance of the petitioners on certain advertisements in newspapers to substantiate this cannot be accepted. The petitioners have not produced the Regulations regarding the said School or in respect of other States. Even the advertisements which are relied upon regarding the said National Open School show that certain type of training is a must and they cannot be equated entirely with the private candidate. Therefore, in our opinion, the said Regulation is valid.
Regulation 89(3)(i) & (ii) :
48. Regulation 89(3)(ii) provides for a student who has passed his S.S.C., joined junior college and passed XIth Standard while Regulation 89(3)(i), by implication, speaks about a student who has passed the S.S.C., joined XIth and failed in it. This position is also accepted on behalf of the Board. Various permutations and combinations are shown to us by the learned Advocate for the petitioners to support his contention that the same are unreasonable. It is also contended that they are arbitrary or discriminatory in effect. This is denied by the Board. It has been contended that constitutional validity of Regulations cannot be tested by such permutations and combinations of dates. The learned Advocate for petitioners contended that a student who has failed XIth Std. has again to wait for 3 more years in view of Regulation 89(3)(i) and this means he has to spend 4 years after the S.S.C. Examination. This is contrary to Regulation 89(1) which requires 3 years only. However, it is not possible for us to accept this. A student who gets through S.S.C. and wants to be a private student is presumed to do self study. However, a student who has joined XIth and failed shows that he has not studied and, therefore, he is required to be brought back to square one. Therefore, if such a student wants to be a private candidate he has to spend 3 years as provided by Regulation 89(1). There is nothing wrong or arbitrary in it. He is not spending an additional year or he cannot be said to be punished for his failure. Similarly, a student who has passed XIth as a regular student and thereafter wants to be a private one, he has to spend 2 years in view of Regulation 89(1). Thus he has to spend an additional year so as to compensate for the loss of regular attendance and studies. Thus in effect he has to spend 3 years from the date of passing the S.S.C. Examination. There is no wrong in this. It is not possible to reduce this period from 2 years to 11/2 years. If it is brought down to one year, the position would be the same as in the case of regular students who spend 2 years in junior college. Therefore, it has to be 2 years only. Further, this also acts as a discouragement for a student to be a private one at the crucial year of his life - XII year or H.S.C. Examination.
49. The learned Advocate for the petitioners tried to point out that if a student joins for a period of one month XIth Class and leaves and say this happens in July 1991 then he cannot appear for H.S.C. Examination in 1994 or if he joins XII class for one month and leaves and say this happens in July 1992 then he cannot appear for H.S.C. Exam. in 1993. This is highly unreasonable and offends Article 14. However, Dr. Chandrachud, appearing for the Board, made it clear that in such a case a student would be treated as if he has not joined the college at all and would be eligible to appear either after 3 years of passing the S.S.C. Examination under Regulation 89(i) or after 2 years of passing the XIth Standard as contemplated by Regulation 89(3)(i). His joining for one month and leaving would not make him to lose one year and Regulations shall not be interpreted to create disadvantage in such a situation.
50. The learned Advocate for the petitioners then contended that a private student may not be able to appear due to illness or some other difficulty or might have failed because of the same. According to him, this does not mean that he has not studied and, therefore, such cases should have been treated separately and given benefit of that year. However, it is not possible to go into individual cases for deciding vires of a Regulation. A failure may be due to any reason but it is as good as a student who has not studied at all. Hence, in our opinion, this Regulation is valid and not arbitrary.
51. Considering these Regulations on the touchstone of the various propositions laid down by the Apex Court, it cannot be said that any of them except 42(9) & 89(ii) are violative of Article 14 or arbitrary or unreasonable. It cannot be said that the classification is not based on intelligible differentia or that it has no rational nexus to the objects sought to be achieved. It can also be said that the body of experts has drawn on their experience and recognised the degree of evil or harm and laid down the requirements to avert the same in the interest of education in particular and public in general. None of them can be dubbed as creating discrimination or conferring unreasonable or arbitrary power on the concerned authorities. If seen in correct perspective, as contended by the State, they are neither discriminatory nor they enable the concerned authorities to give discriminatory treatment.
Articles 14, 21, 41, 45 and 46 & Regulations :
52. It has been contended by the learned Advocate for the petitioners that the Regulations in effect create various obstacles for the private candidates and discourage them from taking education instead of encouraging. This defeats the very object of providing for education. This deprives private candidates to have good future and to lead good life. Further it delays or makes more difficult or prolongs or prohibits them from taking education and to enter the job market etc. They may be required to forego the chances for appearing for competitive examinations. However, it is not possible for us to accept. Reliance is placed on some paras of the judgment of Apex Court , to support the contention that the Regulations are violative of Articles 21, 41, 45 and 46 of the Constitution of India. The said judgment is summarised already. It was held that though the right to education is not stated expressly as a fundamental right, it is implicit in and flows from the right to life guaranteed under Article 21, having regard to the broad and expensive interpretation given by the Court. The right to education has been treated as one of transcendental importance. It is fundamental significance to the life of an individual and nation and that without education being provided to the citizens of this country, the objects set forth in the Preamble to the Constitution cannot be achieved. The fact that the right to education occurs in as many as 3 Articles in Part IV i.e. Articles 41, 45 and 46 shows the importance attached to it by the founding fathers. It was held that the effect of holding that right to education is implicit in the right to life is that the State cannot deprive the citizen of his right to education except in accordance with the procedure prescribed by law. It was further held that the right to education which flows from Article 21 is not an absolute right. It must be construed in the light of the Directive Principles. A true democracy is one where education is universally given, where people understand what is good for them and the nation and know how to govern themselves. Articles 41, 45 and 46 are designed to achieve the said goal among others. It is in the light of these Articles the parameters of the right to education have to be determined. Right to education, understood in the context of Articles 45 and 41, means that every child/citizen of this country has a right to free education until (a) he completes the age of 14 years and (b) after the child/citizen completes 14 years, his right to education is circumscribed by the limits of economic capacity of the State and its development. Under the Heading Ground Reality para 193 it came to be mentioned that only 3% of the Gross National Product is spent on education and 75 to 80% goes in paying the salaries of the teachers and other connected staff, and then it was observed as follows :
"... Even so, on account of lack of proper supervision, lack of self-discipline and commitment, the quality and standard of instruction in most of the Government schools and colleges - except the professional colleges - is woeful."
Then reliance is placed on para 48 of the judgment of the Apex Court reported in Union of India v. Surya Phosphate, . The question relating to giving of differential treatment for reserved seats in State Assembly for Sikkim was for consideration. Considering the historical origin, it was held to be valid.
"As explained by the Preamble the quality of democracy envisaged by the Constitution does not only secure the equality of opportunity but of status as well, to all the citizens. This equality principle is clearly brought out in several Articles in the different parts of the Constitution, including Part III dealing with Fundamental Rights, Part IV laying down the Directive Principles of State Policy and Part XVI having special provisions relating to certain classes."
In the light of what the Apex Court has said above, it is impossible to infer that the Regulations are guilty of violating any of the Articles 21, 41, 45 and 46. The ratio of these judgments cannot be applied in the present case. The reliance is misplaced and they are of no help to the petitioners and all the observations relied upon cannot support their submissions. It cannot be said that by the impugned Regulations the petitioners are deprived of their right to education. They also do not discourage them from taking education. At the most, they have the effect to cause delay in taking the education and entering the job market. First, this is not the direct result of Regulations. Second, this is because the Regulations are designed in the best interest of private students and education. These are only concessions given to private candidates which can be restricted or regulated reasonably so as to avoid mischief or to serve the interest of education and society properly. It is not possible for us to forget the ideals of education. The Regulations do not defeat the efforts of private candidates to take education or deny them education. Therefore, they cannot be said to be violative of Articles 21, 41, 45 and 46. Further merely because the educational facilities, particularly higher education, are inadequate in the country or are not good, do not lead us to the conclusion that the impugned Regulations are invalid or ultra vires Articles 21, 41, 45 and 46. The Regulations themselves do not deny or deprive any candidate from taking education. Similarly they cannot be said to be unreasonable on that ground. Hence, we hold that none of the impugned Regulations are ultra vires Articles 21, 41, 45 and 46 of the Constitution.
53. The Regulations which are selected for attack create a lurking doubt in our mind that the coaching classes are behind this petition. In fact this has been pleaded very strongly by the Board. However, nothing substantial is placed on record by the Board in support of the said contention that the real petitioners are coaching classes or that the coaching classes are behind this petition and not the genuine working students. We are refraining from examining this contention in detail though this has been vehemently urged and pleaded by giving certain instances by the Board. However, there is some apprehension created in our mind as the petitioner No. 1, though eligible to appear for October, 1993 S.S.C. Examination, has admittedly not filled in the form. This indicates to what extent he is personally interested in education. A strange argument is advanced by learned Advocate for petitioners that because the petition is pending and the relief was likely to be granted, he has not filled in the form. We cannot accede to this. To our mind, the student is really not interested but somebody else. But it is not possible to say conclusively who is really interested or behind this. However, it is clear that the attempt of the petitioners is to obliterate all the differences between the regular and the private students by seeking to strike down the impugned Regulations. We have no doubt that if this happens then the net effect would be to aid destruction of formal education and to help coaching classes to boost their coffers. We feel that there is some respect, some discipline and reverence for teachers and formal education is in existence mainly because of the difference maintained in the two streams. If the same vanishes, we can visualise that no child, even from affluent and good family, would like to attend the school and undergo rigorous discipline but would like to be outside the school/college premises and join the cult of violence and easy life. He may just try to get through the examination by hook or crook. It is, therefore, necessary to maintain the difference between the two types of students or making this classification and it has been well perceived by the provisions of the Act and the Regulations. The experts in education are behind this. They considered all the aspects of regular studies and the circumstances etc. of private students and laid down the requirements which are quite reasonable.
54. It is also impossible for us to accept that the Court is not concerned with ideals of formal education, since the end of education is not examination but to create informed, reformed, cultured human beings and enlightened society. This is also clear from the meaning of education quoted above and what the Apex Court has said. Consequently for better and progressive society, everybody is intimately connected with. So the ideals of education are must. There is also already downward trend and we fear it will be rapid in the absence of these Regulations. Formal education system of school and college level may be destroyed. Majority of the coaching classes are a menance to the society. They make students examination-oriented instead of imparting knowledge to them. They take away their initiative to study and may be mainly responsible for manipulations and tricks so that their students get through somehow or the other. In our opinion, these Regulations are having salutary effect to curb their malpractices at least to some extent. They are constitutionally valid in all respects except Regulation 49(9) and Regulation 89(11) as indicated above.
55. Though we have come to the conclusion that Regulations 42(9) and 89(11) are discriminatory and ultra vires Article 14, it is not necessary to strike them down in this petition for two reasons - (i) they are not live issues as there is no petitioner who has come forward in this case that he has scored the highest marks and inspite of that he is deprived of getting a certain prize or scholarship. At this stage, it is only in the realm of conjecture that such a case may arise in future. (ii) The learned Advocate appearing for respondent No. 3 has made a statement in the Court that he has made recommendation to the Board to delete them and to make necessary changes. He pointed out that under the Rules an ex-student or repeater is not entitled for such prize or scholarship. Therefore, Regulations 42(9) and 89(11) are required to be amended properly considering the said aspect.
56. The learned Advocate appearing for the Board-Respondent No. 3, has also made a statement that the words appearing in Regulation 42(2) and Regulation 89(4) "or refuses to forward the application" shall be deleted and suitable amendment shall be made so as to see that difficulties of the students are eliminated. He has also pointed out that necessary directions in that respect have already been given by the Board to the heads of various institutions and in addition to that the necessary amendment shall be carried out. In fact proposed amendment is annexed at Ex. 2 (dated 22-6-1993) to the affidavit of Mrs. V.S. Potdar dated 28-7-1993. We may suggest that it would be proper to add further "or otherwise cannot send the form". This would remove all the difficulties. The Board and State may consider this seriously. In our opinion, there is no reason in not accepting the above and we have no doubt that the Board shall act upon the recommendations made by the learned Advocate and the Government shall accept the same which is in the interest of students and for eliminating the difficulties facted by them in submitting their applications. We trust the learned Advocates for the Board and the State in this respect and hope that the necessary amendments to the concerned Regulations shall be made shortly.
57. In the result, Rule in Writ Petition No. 2591 of 1992 is discharged. In the facts and circumstances of the case, there shall be no order as to costs.