1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 94 OF 2008
ALONGWITH
CIVIL APPLICATION NO. 37 OF 2008.
Fransisco D. Luis ...... ....... Petitioner
versus
State of Maharashtra & ors ........ Respondants.
Mr. P.M. Pradhan for the Petitioner.
Mrs. Jyoti Pawar Addl.G.P. A/w Mrs. M.P. Thakur AGP for State.
Ms. Rajani Iyer a/w N. H. Seervai and Sharan Gajtiani i/b M/s.
Desai & Diwanji for the Intervener.
Mr. T. N. Subramanium a/w Mr. Naushad Engineer , Hemant
Shah, Neeta Jain i/b I.C. Legal for ISCE.
Mr. Mihir Desai for applicant in C.A. 37/08.
CORAM: SWATANTER KUMAR, C.J., &
A.P. DESHPANDE, J.
DATED: TH AUGUST 2008.
JUDGMENT ( Per A.P. DESHPANDE, J):
1. Legality and validity of a statistical formula described as
“percentile” introduced by the State Government for regulating
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admission of the students to 11th standard has been challenged by
this petition, filed in the pubic interest. Students who pass the
10th standard examination from various Boards such as SSC
Board, ISCE Board, CBSE Board are eligible for seeking
admission to 11th standard/1st year of the junior college in schools
and colleges affiliated to the SSC Board. Prior to the
commencement of academic year 2008-09 students who passed
10th standard examination from all the Boards were treated alike
and their inter-se merit was judged on the basis of the percentage
of marks secured by them in the 10th standard examination
conducted by the respective Boards. By introducing the
“percentile” formula, the criteria for admissions prevailing prior to
this year has been given a go-by and the admissions in the
academic year 2008-09 are regulated by the “percentile rank”
assigned to the students by application of the formula with which
we will be dealing with in the later part of the judgment.
Perception of the State Government.
2. The number of students appearing in the SSC, ICSE,
CBSE and other Boards vary drastically in as much as more than
15.5 lacs students appeared for 10th standard examination
conducted by SSC Board, whereas about 15,000 students
appeared from CBSE Board and about 1200 students from ICSE
Board. The different boards have their own syllabus and
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subjects, different pattern of examination and different standard
of evaluation. It was found difficult by the State and its
authorities to compare the interse merit of the students passing
from different Boards,having regard to the disparities. It was
perceived that some of the Boards evaluate the performance of
the students at the examination liberally and thus the students
from the said Board are placed in an advantageous position as
compared to the other Boards. With a view to standardise or
normalise the percentage of marks secured by the students from
different Boards, a need to evolve a formula was felt by the State.
It is not in dispute that the examination conducted by the
different Boards do not have the same subjects and the same
option in relation to the subjects. The total number of marks
allotted by the Boards as well defer. The syllabus so also the
question papers are not the same. Thus the State Government has
come out with the “percentile” formula. While introducing the
formula the State Government assumed that the first ten students
from the three Boards viz. SSC, ICSE and CBSE are equally
meritorious and hence issued a Government Circular on 27thJune
2008 and introduced the formula. Perusal of the circular reveals
that having regard to the difference in the pattern of examination,
subjects,scheme of marking and the strata of the class of students
catarred by the different Boards, normalisation was felt necessary
to be introduced. Due to dis-similarity in the pattern of
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examination, the students from SSC Board suffer and do not get
admission to the preferred colleges, whereas the students from
other Boards get admission in such colleges as their percentage is
higher. With a view to facilitate securing of admissions for the
students passing fromSSC Boards in preferred colleges, the
circular came to be issued introducing the “percentile” formula.
The percentile formula has been stated in Schedule `A’
annexed
to the circular. Schedule A is reproduced herein below.
Annexure `A’
FORMULA OF PERCENTILE RANK
1 Average maximum marks of percentage of first 10 =A
students passing through in various Divisional
Examination Boards.
2 The student whose percentile rank is to be =M
obtained his actual marks (percentage)
3 The Percentile marks of that student =P
=P=100x
(M)
(A)
Example :-
———————————————————————
1 Average maximum marks of percentage of first 10 =93.66%
students passing through in various Divisional
Wxamination Boards.
2 The student whose percentile rank is to be =90.16%
obtained his actual marks (percentage)
3 The Percfentile marks of that student =P
=P=100x
(90.16)
(93.66)
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= 96.26%
BOARD S.S.C. C.B.S.E. I.C.S.E.
Average maximum Actual Actual Actual
marks/percentage Percentile Percentile Percentile
obtained by first 94 100 97 100 96 100
10 students (Topper) (Topper) (Topper)
Actual Marks of
percentage obtained
by a student those 89.3 95 92.15 95 91.2 95
who have applied
for admission
———————————————————————————————–
3.
It will be thus seen that by applying the percentile
formula, the percentile rank is arrived at in respect of each
student and the schools and colleges have been instructed to
admit the students with reference to the percentile rank and not
with reference to the percentage of marks secured in the 10th
standard examination. The percentile rank is thus notional and
would vary depending upon the percentage of marks secured by
ten toppers from the respective Boards.
4. According to the State, the marking system in the
examination of 10th std. from ICSE and CBSE Board is more
objective whereas the one in SSC Board is comparatively
subjective. The Under Secretary for the State Government has
placed on record the comparative information in regard to SSC,
ICSE and CBSE Boards relating to the conduct of 10th standard
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examination, which brings about differences in the examinations
conducted by the respective Boards. The same is as under:
ANNEXTURE -1
MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER
SECONDARY EDUCATION, PUNE
S.S.C., I.C.S.E. AND C.B.S.E.
SCHEME OF EXAMINATION
COMPARATIVE INFORMATION
COMPARATIVE INFORMATION REGARDING SCHEME OF EXAMINATION
S.S.C., C.B.S.E., AND I.C.S.E.,
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Compulsory
Subjects.
Languages Three languages as Any two languages English compulsory
per three language from thirty (80+20)
formula 80+20
languages
(Marathi, Hindi and (100)
English are
compulsory (300)
Other compulsory Mathematics 120+30 Mathematics 100 Group one English
subjects. Science and Science and 80+20
Technology 80+20 Technology 60=40
Second language
Social Science80+20 Social science 80+20 80+20
Total six subjects Total Five subjects Social Science80+20
Total Marks 650 Total Marks 500 Environmental Edn.
80+20
Group Two
Any two or one
subject from 600
Mathematics
Science and
Technology
Commerce
Organisation of
commerce
Engineering,
ArticleForeign
language.
Classical language.
Computer science.
Agricultural Science,
EVS.
Group Three.
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(only one subject
from group two is
selected then one
subject is
compulsory)
Art. Music, Home
Science Cookery
Niddle Work
physical edu.
Computer Appln
Financial Appln
etc.(13 subjects)
Total Marks =500
Additional subject No provision One subject from Seven subjects are
subjects ig Note: 1 Three compulsory. Three
language study upto
language formula is
std.VIII. Hindi
application upto std .
compulsory for Indian
VIII is compulsory.
students. Supw and
2. Hindi and Ebnglish community service
are compulsory upto are compulsory.
std. VIII and Evaluation at school
3. for std.X any two level.
languages are
compulsory.
Other compulsory Environmental Work Education or
Education 60+40 pre=vocational
subjects.
Health and phy.Edu. Education 75+75
25+25 Painting 100
Personality Music 25
Development 50 Home Science 75
Introduction to IT 40
Optional subjects Work Experience
(one from 36 subjects) 100
or
pre-vocational Education
Social Service N.C.C.
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Scout Guid etc. (100)
ITEM S.S.C. C.B.S.E. I.C.S.E.
Passing scheme 35% for passing 33% for passing in 35% or passing
Minimum C Grade each internal and candidate must pass
theory, practical etc. in five subjects and
for other (no combine passing in Engliosh
schoolssubjects three passing) is compulsory.
language group Compulsory passing
science and in supw. And
Mathematics community service.
combine passing
ig Combined passing
automatic (theory and internal)
No Automatic No automatic
condonation is condonation. condonation.
applicable.
Class Improvement Scheme is available Scheme is available No provision.
for all subjects. (only for all subjects.
once) (twice)
Passing Certificate Certificate is Certificate is Certificate is
awarded only passed awarded only passed awarded only passed
students students students.
Availability of No provision 15 minutes 15 minutes
question paper
reading time
School Attendance 75%. 75%. 75%.
Reference: Syllabi, Maharashtra State Board of Secondary and
Higher Secondary Education.
CBSE and ICSE.
Secretary.
State Board, Pune
———————————————————————————————
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Thus, according to the State Government, the “percentile” formula
has been evolved to standardise or normalise the marks obtained
by the student from different Boards. In the opinion of the State
treating the students from different Boards equally as was being
done earlier, was violating the equality clause as unequals were
being treated equally and thus the formula was evolved which has
benefited the students passing 10th standard examination from SSC
Board.
5. The learned counsel for ICSE Board has applied for
intervention and we had permitted the same. Few other
associations of teachers and parents have also intervened in the
matter, and their interventions are also allowed and all have been
afforded an opportunity of hearing. In the first place the learned
counsel appearing for ICSE, who is supporting the petitioner has
raised preliminary objection to the very application of the
`percentile’
to students from different Boards being misconceived
and wholly in-appropriate. In his submission only the students
who pass the same examination conducted by the same Board such
as eight Divisions of the SSC Board could be subjected to the
percentile formula. It is submitted that, if the course and the
syllabus is different, if the question papers are different and the
performance of the students have been evaluated at a different
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touch-stone, with a different pattern examination, it is not at
all possible to apply percentile formula for normalisation or
standardisation of the marks. He has placed on record a print out
from Wikipedia, the free encyclopedia, from the web site of
http.//en.wikipedia.org/wiki/Percentile_rank, which goes to
indicate that the percentile method can be applied when students
are similarly situate. Barring the said document, no other material
has been placed on record to substantiate the contention that
percentile method cannot be applied when the students come
from different streams, on passing dis-similar examinations with
different evaluation mechanism. No authentic material and data
has been placed on record to enable me to hold that the State
government could not have introduced the percentile formula for
normalisation of the marks secured by the students passing 10th
standard examination from different Boards. I am conscious of
the fact that the court lack expertise in this area and thus choose to
refrane from holding, as sought by the ICSE Board, that the
percentile formula itself could not have been applied to bring
about normalisation of percentage of marks secured by the
students from different Boards. This brings me to consider other
challenges raised by the petitioner and the supporting
interveners to the percentile formula introduced by the State.
Briefly stated the challenges are thus:
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i) The action of the State Government contained in the
circular introducing the `percentile’
formula runs counter to the
principle of merit. Merit alone need to regulate the admissions to
11th standarard. Introduction of the “percentile” formula upset
the merit placement of the students and goes to introduce
notional concept by which a hypothecal percentile rank is
achieved and this percentile rank forms the basis for granting
admission to 11th standard. According to the learned counsel, the
percentage of marks secured at an examination has been all
through out in the past, treated as the merit and admissions were
granted on that basis. Whereas for the first time the State
Government has, tinkered with the percentage of marks and that
too on the verge of admissions of 11th standard. The State
Government, in the submission of the learned counsel for the
petitioner, did not take a considered decision after weighing the
pros and cons with due deliberations, but has hurriedly reached
the decision in consultation with the chosen and selected few,
which operates to the detriment of the interest of the students
from other Boards such as ICSE and CBSE.
ii) It is next submitted that the decision to introduce
the `percentile’
formula is a pre-conceived decision and has been
introduced deliberately to benefit the students from the SSC
Board. In the decision making process other Boards were
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deliberately kept out though the decision was to prejudice the
students from the said Boards.
Iii) It is also submitted that the formula
introduced by the State Government is arbitrary, unfair, unjust
and unreasonable for the reason that it militates against merit and
thus violate Article 14 of the Constitution of India.
iv) Doctrine of Legitimate expectation is also
pressed in service.
6. Per contra the learned counsel appearing for the State
has submitted that the decision under challenge is a policy
decision reached by the State and while doing so the State was
not obliged to adhere to the principles of natural justice in as
much as it was not obliged to hear the other Boards. While
reaching a policy decision the principle of Audi Alteram Parten
stands excluded.
7. It is next submitted that the correctness or otherwise of
a policy decision cannot be subjected to judicial review. It is only
the decision making process which can be scrutinised and not the
decision. In the submission of the learned counsel for the State,
the “percentile” formula is not in violation of Article 14 of the
Constitution of India. On the contrary it seeks to achieve equality.
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Prior to the introduction of the formula, unequals were treated
equally and the said vice is sought to be removed by the new
method which ensures equality. The impugned decision seeks to
achieve a larger public interest. To buttress the said submission,
it is pointed out that in the current academic year the result of
the SSC Board was comparatively strict and thus the students
from SSC Board have derived some advantage under the
percentile formula. However, it is possible that in the coming
academic years, if the toppers from SSC Board may secure higher
percentage of marks in comparison to the marks secured by the
toppers from other Boards, and in that situation the students from
other Boards would gain the benefit and advantage. Thus the
contention is that for all time to come, the SSC Board students
alone would not be in an advantageous position but it could be
students from other Boards as well. Concluding this submission,
it is contended that the impugned decision is reasonable, just and
fair.
8. Lastly, it is emphatically submitted that almost all
students have secured admissions to the 11th Standard on the
basis of the “percentile” rank and very few students remain to be
admitted. Hence even if this Court holds that the “percentile”
formula is not sustainable, no interference with the admissions
already made be caused as otherwise the students community as
a whole would suffer irreparable loss, undue inconvenience and
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hardships. It would also result in derailment of the academic
session. We hasten to record the undisputed factual position
about almost all the students having secured admissions to the
11th standard.
9. Let us first examine the manner in which the decision
to introduce the “percentile” formula was reached:
Decision making process:
10.
The Deputy Secretary to Government, School
Education and Sports Department, has filed an affidavit-in-reply
dated 15th July 2008 which explains the circumstances in which
the alleged problem was addressed by the government. It is
stated in para 2 of the affidavit that :
“I say and submit that it was observed by the
authorities that there was a comparative disparity between
the students from the different Boards in the State ofMaharashtra from which students pass their 10th standard
and apply for admissions to 11th standard of the Maharashtra
State Board of Secondary and Higher Secondary Education,
Pune. This issue was also discussed in he House ofLegislature and thereafter the procedure for bringing parity
amongst the students belonging to the different Boards was
initiated. In this regard the State Government had called for::: Downloaded on – 09/06/2013 13:43:39 :::
16a proposal from the Maharashtra State Board of Secondary
and Higher Secondary Education, Pune vide a letter dated
12th June 2008. Hereto annexed and marked as Exhibit-A tothis Affidavit is a copy of the said letter dated 12th June 2008.
Accordingly, a proposal was received on 20th June 2008 from
the Maharashtra State Board of Secondary and HigherSecondary Education, Pune. Hereto annexed and marked as
Exhibit-B to this affidavit is a copy of the said proposal dated20th June 2008. I say and submit that on 26th June 2008, a
joint meeting of the Deputy Secretary of School Educationand Sports Department, Deputy Director of Education,
Greater Mumbai, all Education Inspectors of Greater Mumbai
as also the Principals of eminent institutions such as Ruia
College, Ruparel College, Mithibai College etc. was held.
Annexed hereto and marked as Exhibit-C to this affidavit is a
copy of the minutes of meeting held on 26th June 2008. I
say that in the said meeting, a consensus was reached
between all concerned that a formula of percentile would beadopted while giving admission in 11th standard in the
Academic Year 2008-09″.
11. It is then stated that the proposal which is said to have
been reached by consensus, was accepted and came to be
translated into a binding decision vide Government circular dated
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27th June 2008. As pointed out above, it is re-iterated that the
disparity prevailing was removed and parity was restored. It will
not be out of place at this juncture to mention that the result of
the 10th standard were declared on 26th June 2008 and the pre-
admission process commenced at 9 a.m. On 27th June 2008 on
which date the Government issued the circular. What is to be
seen is that the Government had directed the Maharashtra State
Board of Secondary and Higher Secondary education which is one
of the concerned Boards, to submit a proposal. The proposal was
received on 20th June 2008 by the Government. In the proposal
so forwarded it was suggested that the percentage of marks of 3
to 5 toppers from each Board be averaged out, which would
denote `A’.
The other parameters for calculating the percentile
were same in the proposal submitted by the Board as has been
implemented by the Government. Perusal of the Minutes of the
Meeting held on 26th June 2008 reveal that instead of taking the
average of the percentage of marks secured by first five students,
the average of percentage of top five students from the Divisional
Boards of the Secondary and Higher Secondary Board of
Education was to be considered. It is thus clear that the proposal
submitted by the SSC Board was modified and altered to the
above extent by the Committee which had met on 26th June
2008. Whereas the Resolution/Circular dated 27th June 2008
seeks to introduce the percentile formula which takes into
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consideration the average of the percentage of marks secured by
first ten toppers from each Board. It is obvious that change in the
number of the toppers from the Board changes the percentile
rank.
Consideration of Merit.
12. The rival sides are in agreement that the criteria of
merit should not be sacrificed. But the key issue is how is the
merit of the candidates interse to be judged. According to the
petitioner and the supporting interveners, merit need to be
judged on the basis of the percentage of marks secured in the 10th
standard examination conducted by the respective Boards.
Whereas according to the State Government, merit need to be
judged on the basis of percentile rank obtained after
normalisation of the percentage of marks of students of all the
Boards.
13. It is a matter of common knowledge that every year
during admission season lacs of students undergo immense
suffering and harrasment in seeking admission to professional
courses caused by uncertain policies. This time the students
seeking admission to 11th standard are made to suffer the same.
There is a substantial scope for improvement in the admission
process even within regulatory power of the authority, provided
the controversial issues are not dealt with on an emergency basis
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during the admission season, but done in a co-ordinated and
comprehensive manner ahead of time. Let us hope that the State
would hereafter take crucial decision well ahead of time.
14. The Supreme Court has repteadly emphasised the need
for merit based admission more particularly in professional
institutions of higher learning. Dealing with the merit criteria the
Supreme Court in the case of Islamic Academy of Education and
another Vs. State of Karnataka and others reported in (2003) 6
SCC 697 held :
“For the purpose of achieving excellence in a
professional institution, merit indisputably should be a
relevant criterion. Merit, as has been noticed in the
judgment, may be determined in various ways ( paragraph
59). There cannot be however, any foolproof method
whereby and whereunder the merit of a student at all timesto come may be judged. Only, however, because a student
may fare differently in a different situation and at different
point of time by itself cannot be a ground to adopt different
standards for judging his merit at different points of time.
Merit for any purpose and in particular, for the purpose of
admission in a professional college should be judged as far
as possible on the basis of
same or
similar
examination. Inother words, inter se merit amongst the students similarly
situated should be judged applying the same norm orstandard. Different types of examinations, different sets of
questions, different ways of evaluating the answer books
may yield different results in the case of the same student”.
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(emphasis supplied)”
15. It is obvious that if the merit of two students is sought
to be judged, applying different norms or standards, the same
would not result in ascertaining the true merit. The concluding
observations made by the Supreme Court reproduced herein
above operate with full force and vigour in the facts of the present
case. The students come from three different streams i.e. SSC,
CBDE and ICSE having different curriculam, different question
papers valued by applying different standards and norms.
16. If the distinguishing features in the examination
conducted by the three different Boards are carefully perused, it
can be clearly seen that comparison of merit based on percentage
of marks scored will be illusory and not real. Let us take for
example the time alloted to the students for solving the question
papers. The S.S.C. Students are not allotted any time for reading
the question paper whereas students from the other two Boards
are granted 15 minutes time to read the question papers. In the
first blush it may not be noticed that this factor taken singularly
could also have a substantial impact on the over all performance
of a candidate at the examination and consequential bearing on
the percentage of marks scored. Those students who get 15
minutes time to read the question paper would be more
composed, would have clear idea and approach and could plan
better on choosing the questions and
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their sequence. Such students would be more clear and confident
in their approach as compared to those who do not get any time
to read the question papers. Students who are not allotted any
time for reading the question papers would be required to rush
through the question papers by having a cursory glance at it. They
would be required to solve the question papers in some hest
because of time constrains. Such students would not have
sufficient time to choose questions in proper preference and
answer them in a proper sequence, having regard to the
preparation of the student touching different topics. One cannot
lose sight of the fact that in these days of cut throat competition,
if I may say so, even fraction of mark here and there affects the
ranking and chances of admission to premier colleges. Seen from
this angle even this time factor which appears insignificant makes
a significant different in the ultimate outcome atleast of few
marks. No further elaboration is required. Only with a view to
bring home the point that even apparent marginal differences in
the pattern and conduct of the examination could result in
significant difference in the ultimate outcome. I hasten to state
that there is substantial difference in the syllabus, compulsory
and optional subjects and the examination conducted by the three
Boards. I do not propose to deal with all the differences in the
curiculam,subjects and available options, for it is obvious that
these differences by themselves deny the students,
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level playing field, making it impossible to compare the interse
merit of the students.
17. If the performance of students who are subjected to
different examinations with different syllabus, different subjects,
different options in relation to the subjects and with different
pattern of examination is compared as revealing true merit, the
same will violate Article 14 of the Constitution of India. Unequals
if treated equally would violate the equality clause.
18.
The comparatative chart of the differences in the
compulsory subjects, optional subjects, compulsory languages,
assignment of marks for the same, objective and subjective format
and the allotment of time or denial thereof for reading the
question papers at the examination taken cumulatively,
substantially result in denying a level playing field. At any rate, it
can be safely assumed that the so called marks or percentage of
marks scored at the three different examinations cannot and does
not indicate the true interse merit.
19. Thus it is clear that so called merit reflected from the
percentage of marks, secured at 10th standard examination by
students from different Boards cannot form the basis or yardstick
for measuring the comparatative merit. Seen from this angle, it
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appears that the State Government was justified in evolving a
meahcanism to equalise or normalise the percentage of marks
secured by the students from the different Boards. The
submission made by the learned counsel for the State, that
without introduction of the percentile formula, if the marks of the
students from different Boards are taken to denote their inter-se
merit, the same would tantamount to treating unequals equally,
has a merit. About15.5 lacs students pass 10th standard
examination from the schools affiliated to the State Board who
come from the common strata of the society and can be described
as masses, whereas the students who partake education in schools
conducted by or affiliated to ICSE or CBSE Boards are the
students coming from a previlaged class and the number of such
students passing 10th standard who are desirous of seeking
admission to 11th standard in schools or colleges affiliated to State
Board constitute only about 25 to 30 thousand. The State has
assumed, while formulating the method of equalisation, that the
first ten toppers from and out of the 15.5 lacs students from the
SSC Board are equally meritorious as that of first ten toppers from
and out of about 25 to 30 thousand students from CBSE and
ICSE Board together. It cannot be lost sight of the fact that the
State Government runs the State Board and the State Government
is spending lot of money for imparting education at the level of
10th and 11th standard by way of grants to aided institutions. The
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whole exercise made by the State in introducing the percentile
formula at the most could be said to be an attempt to make
available some preference to the students passing SSC Board
examination of 10th standard so that such students could take
education in the schools and colleges affiliated to the State board
for prosecuting their studies in 11th and 12th standard. The
question is, if this be the object of State policy i.e. to some extent
benefit the students passing 10th standard examination from SSC
Board, is it so arbitrary and so unreasonable so as to warrant its
quashing, being allegedly in violation of Article 14 of the
Constitution of India.
20. It is true that in this process, cases of hardships have
arisen in the working of the Rule which is framed for selecting the
candidates for admission but that however would not render the
Rule unconstitutional. It is bound to so happen in almost of all
cases when a Rule is framed. It is undoubtedly true that if the
selection for grant of admission is based on a common
examination for all, merit can be best judged. However, if the
same is not possible as in the present case, and students from
different Boards with different examination patterns, with
different subjects, and different evaluation standard compete,
how the merit is to be judged. In the wisdom of the State unless
and until the percentage of marks of the students from different
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Boards are normalised, selection cannot be made on the basis of
merit and thus it has introduced the percential formula.
21. In the case of Dr. Pradeep Jain and others Vs. Union of
India and others reported in (1984) 3 SCC 654, the Supreme
Court had an occasion to deal with scheme of admission to
medical colleges. While dealing with the same the Court has
considered as to what extent departure from the principle of
selection based on merit is permissible. The question that fell for
consideration was whether consistently with the constitutional
values the admissions to a medical college or any other institution
of higher learning in a State can be confined to those who have
their domicile within the State or who are resident within the
State for a specific number of years. The Court concluded that
where it is necessary to do so for the purposes of bringing about
real equality of opportunity between those who are unequals
departure from the principle of selection based on merit is also
permissible. The Apex Court also observed in para 13 thus: “Now
the concept of equality under the constitution is a dynamic
concept. It takes within its sweep every process of equalisation
and protective discrimination”. In the said Judgment the
Supreme Court also noticed with approval on earlier judgment in
the case of D.N. Chavchala reported in 1971 (2) SCC 293. The
reservation impugned in the said case was university wise
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26
reservation under which preference to the medical college were
given to the students who had passed PUC examination of that
university and 20% of the seats were available to those passing
PUC examination of other universities. The court had held that
university wise distribution of seats was not discriminatory and
there was no constitutional infirmity involved in giving
preference to the students who had passed PUC examination of
the same university. The following reasons in support of the
conclusion are recorded by the Supreme Court.
“The three universities were set up in three
different places presumably for the purpose of catering tothe educational and academic needs of those areas.
Obviously one university for the whole of the State could
neither have been adequate nor feasible to satisfy those
needs. Since it would not be possible to admit all candidates
in the medical colleges run by Government, some basis for
screening the candidates had to be set up. There can be no
manner of doubt, and it is now fairly well settled, that the
Government, as also other private agencies, who found such
centers for medical training, have the right to frame rules for
admission so long as those rules are not inconsistent with the
university statutes and regulations and do not suffer from
infirmities, constitutional or otherwise. Since the universities
are set up for satisfying the educational needs of different
areas where they are set up and medical colleges are
established in those areas, it can safely be presumed that
they also were so set up to satisfy the needs for medical
training of those attached to those universities. In our view,
there is nothing undesirable in ensuring that those attached
to such universities have their ambitions to have training in
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27
specialised subjects, like medicine, satisfied through colleges
affiliated to their own universities. Such a basis for selection
has not the disadvantage of district wise or unit wise
selection as any student from any part of the State can pass
the qualifying examination in any of three universities
irrespective of the place of her birth or residence. Further,
the rules confer a discretion on the selection committee to
admit outsiders upto 20 percent of the total available seats in
any one of these colleges, i.e. Those who have passed the
equivalent examination held by any other university not only
in the State but also elsewhere in India. It is therefor,
impossible to say that the basis of selection adopted in these
rules would defeat the object of the rules as was said in
Rajendra case or make possible less meritorious students
obtaining admission at the cost of the better candidates. The
fact that a candidate having lesser marks might obtain
admission at the cost of another having higher marks from
another university does not necessarily mean that a less
meritorious candidate gets advantage over a more
meritorious one. As is well known, different universities
have different standards in the examinations held by them.
A preference to one attached to one university in its own
institutions for post graduate or technical training is not
uncommon. Rules giving such a preference are to be found
in various universities. Such a system for that reason alone is
not to be condemned as discriminatory, particularly when
admission to such a university by passing a qualifying
examination held by it is not precluded by any restrictive
qualifications, such as birth or residence, or any other similar
restrictions. In our view it is not possible to to equate the
present basis for selection with those which were held invalid
in the aforesaid two decisions. Further, the government
which bears the financial burden of running the Government
colleges is entitled to lay down criteria for admission in its
own colleges and to decide the sources from which admission
would be made, provided of course, such classification is not
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arbitrary and has a rational basis and a reasonable
connection with the object of the rules. So long as there is
no discrimination within each of such course, the validity of
the rules laying down such sources cannot be successfully
challenged ( see Chitra Ghosh V. Union of India). IN our
view the rules lay down a valid classification. Candidates
passing through the qualifying examination held by a
university form a class by themselves as distinguished from
those passing through such examination from the other two
universities. Such a classification has a reasonable nexus
with the object of the rules, namely, to cater to the needs of
candidates who would naturally look to their own university
to advance their training in technical studies, such as medical
studies. In our opinion, the rules cannot justly be attached
on the ground of hostile discrimination or as being otherwise
in breach of Article 14. While approving the above line of
reasoning the Supreme Court observed in Pradeep Jain’s case
thus: University wise distribution of seats was thus upheld
by the Court as constitutionally valid even though it was not
in conformity with the principle of selection based on merit
and marked a departure from it. The view taken by the
Court was that university wise distribution of seats was not
discriminatory because it was based on a rational principle.
There was nothing unreasonable in providing that in
granting admissions to medical colleges affiliated to a
university, reservation shall be made in favour of candidates
who have passed PUC examination of that university, firstly,
because it would be quite legitimate for students who are
attached to a university to entertain a desire to have training
in specialised subjects, like medicine, satisfied through
colleges affiliated to their own” university, since that would
promote institutional continuity which has its own value and
secondly, because any student from any part of the country
could pass the qualifying examination of that university,
irrespective of the place of his birth or residence.”
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29
22. Let me now consider the reasonablness of the policy
decision introduced by the State in the form of percentile formula.
I have an advantage of understanding the impact of the
introduction of the formula as the State Government has placed
on record a comparatative chart of admissions given to the
students from the respective Boards, in one of the most preferred
colleges in Mumbai by name D.G. Ruparel College of Arts, Science
and Commerce. Perusal of the said chart would indicate that in
the said college 510 students from SSC Board are admitted in
science faculty whereas 64 students from ICSE Board and 14
students from CBSE Board have been admitted. Whereas in the
previous year, most of the seats were bagged by the students
from ICSE and CBSE Boards. Having regard to the strength of the
students passing 10th standard from the SSC Board in comparison
to the number of students passing 10th standard from other
Boards, it is crystal clear that even after implementation of the
said formula, no undue advangage has been gained by the
students from SSC Board. They are only getting adequate
representation and not even proportionate representation. The
introduction of formula has not operated unreasonably and has
achieved reasonable distribution of the available seats hence it
cannot be said that the rule is unjust or unfair.
23. Next I proceed to consider as to whether the decision
of the State suffers from the vice of arbitrariness. Basic and
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30
obvious test to apply in cases wherein there is a challange to the
policy decision by the Government is to see whether there is any
descernible principle emerging from the impugned action and if
so, does it specify and based on reasonableness. Useful reference
to the judgment of the Supreme Court in the case of Bannari
Amman Sugars Ltd. Vs. Commercial Tax Officer and others reported
in (2005)1 SCC 625 could be made. Various issues were raised
in the said case, on account of withdrawal of benefits by the
Government which were earlier granted to the Sugar Mills
established in co-operative and public sector. In the said
judgment the Supreme Court has held that while taking a policy
decision, the Government is not required to hear the persons,
who have been granted the benefit, which is sought to be
withdrawn. While dealing with the question of arbitrariness in
the State action, the Supreme Court has held thus:
“While the discretion to change the the policy in
exercise of the executive power, when not trammeled by anystatute or rule is wide enough, what is imperative and
implicit it terms of Article 14 is that a change in policy must
be made fairly and should not give the impression that it was
so done arbitrarily or by any ulterior criteria. The wide
sweep of article 14 and the requirement of every Stateaction qualifying for its validity on this touchstone
irrespective of the field of activity of the State is an accepted
tenet. The basic requirement of Article 14 is fairness in
action by the State and non-arbitrariness in essence and
substance is the heartbeat of fair play. A question whether::: Downloaded on – 09/06/2013 13:43:39 :::
31the impugned action is arbitrary or not is to be ultimately
answered on the facts and circumstances of a given case. Abasic and obvious test to apply in such cases is to see whether
there is any discernible principle emerging from theimpugned action and if so, does it really satisfy the test of
reasonableness”.
24. The State Government has introduced a definite
principle rather a statistical formula aimed at equalisation or
normalisation of the percentage of marks, and the same operates
equally to all the students in all situations for the purpose of
securing admissions. The percentile formula does satisfy the test
laid down by the Supreme Court about existence of a discernible
principle and thus the same cannot be said to be arbitrary.
Reverting back to the question of reasonableness of the principle,
suffice it to point out that till the year 2007, though only few
thousand students used to pass 10th standard from other Boards
such as CBSE and ICSE, they could secure majority of the seats in
the admission to 11th standard in the preferred colleges, leaving
the students from SSC Board high and dry while securing
admissions to such colleges. After introducing the percentile, still
the students passing 10th standard examination from ICSE and
CBSE Board get more seats in proportion to their number in the
preferred colleges. As a matter of fact the formula has not
operated strikingly to the detriment of the interest of the students
from ICSE and CBSE Board. They are getting more seats than
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32
their numerical proportion.
25. Lastly I deal with the submission made by the learned
counsel for ICSE Board that introduction of the percentile formula
has resulted in violation of the principle of legitimate expectation.
26. In the present case there was neither any representation
nor promise made by the State at any time to the students from
CBSE or ICSE Boards which could be said to have induced the
students to change their position to claim legitimate expectation.
No doubt there has been a consistent past practice to treat the
students of the other Boards at par with the students of the SSC
Board so far as the percentage of marks secured by them is
concerned. It has been successfully demonstrated by the learned
counsel for the State that in the first place, by introducing the
percentile formula, a level playing field is laid. The percentile
rank is determined after averaging out the percentage of marks
scored by ten toppers of the three Boards such as SSC, ICSW and
CBSE, which is denoted by alphabet `A’
in the formula. Alphabet
`M’
denote the percentage of marks of the students of whose
percentile rank is to be obtained, whereas alphabet `P’
denote the
percentile. Thus the formula reads P=100(M)–A. I proceed to
re-state that even after application of the said formula the seats
secured by the students from ICSE and CBSE Boards are
proportionally more as compared to the students from SSC Board.
Thus the impact of the policy decision of the Government is not
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33
harsh. The formula thus is not unreasonable.
27. Having found that the formula is reasonable and not
arbitrary, it has to be held to be sustainable. In the submission of
the petitioner, the decision to introduce the percentile formula
was a pre-conceved decision and was aimed at favouring the
students from SSC Board at the costs of the meritorious students
from other Boards. I am afraid that the said submission lacks
proper pleadings. It is nowhere pleaded in the petition that the
decision has been taken malafidely or is tainted with capris. One
page petition was filed as Public Interest Litigation, and even in
the affidavits filed there are no particulars in regard to the
averments touching malafides. The said submission does not
merit any consideration in the absence of pleadings. To conclude,
a word of causion for the State that it is expected of it to take
such vital decision in more co-ordinated and comprehensive
manner much ahead of time. The criticism of the decision taken
by the State as having been taken in haste is not devoid of any
substance. The admission process could have been better
streamlined provided the ticklish issues are not dealt with on an
emergency basis without due deliberations and broad based
consultations . It would have been more desirable of the State
Government, to have sought participation of all the Boards after
obtaining the entire data which was required for reaching the
decision. However, this cannot be a ground to strike down the
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34
decision.
28. Thus I hold that the introduction of the statistical
formula of “percentile” goes to achieve normalisation or
equalisation of percentage of marks secured by the students from
the different Boards and hence is not violative of Article 14 of the
Constitution of India. I also hold that assuming that the
“percentile” formula extend some benefit or preference to the
students from SSC Board the same is permissible and not illegal.
29. In the result, the petition fails and is dismissed with no
order as to costs.
A.P. DESHPANDE, J.
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