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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.

"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.

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.