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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO.157 OF 2009
WITH
CIVIL APPLICAITON NO.72 OF 2009
1. Akhil Bharatiya Vidyarthi Parishad )
)
2. Prof. Narendra Pathak, )
)
3. Prof. Shekhar Chandrate, )
President, Mumbai University )
And College Teachers Associates, ) ..Petitioners.
V/s.
1. State of Maharashtra, Department of )
School Education through its Secretary, )
)
2. Maharashtra State Secondary & Higher )
Secondary Education Board, Pune. ) ..Respondents.
Mr.R.S.Apte with Mr. N.G.Helekar i/b. Ms. A.N.Helekar for the Petitioners.
Mr.R.M.Kadam, Advocate General with Mr.S.R.Nargolkar, Assistant Government
Pleader for the State.
Ms. Deepa Chavan with Mr. K.J.Gandhi i/b. M/s. Little & Co. for the Respondent No.2.
CORAM:- SWATANTER KUMAR,CJ. AND
A.M.KHANWILKAR, J
RESERVED ON :- SEPTEMBER 16, 2009.
PRONOUNCED ON:- SEPTEMBER 24 , 2009.
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JUDGMENT:(PER A.M.Khanwilkar,J)
1. Rule. Rule made returnable forthwith by consent. Advocate for the
Respondents waive notice. Having regard to the nature of challenge
involved we decided to finally dispose of the matter at the admission stage
itself, by consent.
2. The Petitioner No. 1 is a Students organization registered under the
Societies Registration Act in the year 1949. The Petitioners 2 and 3 are the
office bearers of the Petitioner No. 1 organisation. By the present petition,
the Petitioners are challenging the decision of the Respondents to introduce
and implement the facility of ATKT (Allowed to Keep Terms) for the
students who have failed in one or two subjects in Secondary School
Certificate (SSC) examination and allowing such students to take admission
in 11th Standard or first year Junior College, Higher Secondary Certificate
(HSC) course for academic year 2009-2010. According to the Petitioners in
exercise of powers under Section 36 of the Maharashtra Secondary and
Higher Secondary Boards Act, 1965 (hereinafter referred to as the said Act),
the Respondent No. 2 Board has framed Regulation. The said Regulation is
known as the Maharashtra Secondary and Higher Secondary Boards
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Regulation, 1977. Regulation 79 thereof provides for eligibility criteria for
admission to junior college. It postulates that the eligibility criteria for the
students in 10 + 2 + 3 system for securing admission to junior college is
passing of SSC examination. As per the said provision, the students who
have successfully passed SSC examination alone would secure admission to
first year junior college or HSC course and while doing so could opt for one
of the branches out of Arts, commerce or Science. Besides, the students
who have passed SCC examination can also opt for different diploma
courses which provide for minimum qualification of having passed SSC
examination (10th Standard). On the other hand, if the student fails in SSC
examination (10th Standard), he is required to appear for the same
examination to be held in November of the same academic year or in the
next academic year so as to successfully complete his basic education till
10th Standard. It is stated that till recently the Board was conducting
supplementary examination for the failed students so as to facilitate them to
pass out in the failed subject(s) and could thereafter take admission in the
first year junior college/HSC course which is also known as 11th Standard in
the desired faculty/diploma of their choice.
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3. It is stated that the result of the SSC examination held for academic
year 2008-2009 was declared on 25th June, 2009 and the result for HSC for
academic year 2008-2009 was declared on 4th June, 2009. In the SSC
examination held in the month of March 2009 nearly 16 lakhs students had
appeared. Out of them, about 3 lakhs students failed. The number of
students failed in one subject is stated to be 1,37,000/- and the number of
students failed in two subjects is approximately 64,000. After the results of
SSC examination were declared,
ig on-line admission process for junior
college was commenced. According to the Petitioners while on-line
admission process for 11th Standard was still in progress, news item
appeared on 10th July, 2009 in newspaper 'Lokmat' followed by another
news item on 11th July, 2009 in newspaper 'Sakal' and 'Lokmat'
respectively and on 14th July, 2009 in newspaper 'Prahar' and 'Mumbai
Mitra'. The substance of the news item was that the Minster of School
Education of the State of Maharashtra made announcement regarding
supplementary examination and ATKT facility for the failed students in one
or two subjects by allowing them to take admission on provisional basis to
11th Standard. The news item reported that such decision was in
contemplation as it was noticed that the failed students loose one academic
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year and there were reported incidents of suicide and as also to address other
social problems. It was also reported that the Unit Test were likely to be
cancelled as the same occupies lot of time of teachers. The news item
further reported that about 1,50,000 additional seats will be required and the
students taking admission will have to spend about Rs. 15,000/-, as the fees
structure will be decided by each individual college. It was also reported
that the decision to offer ATKT facility to the failed students would be only
for the academic year 2009-2010 and the Respondent No. 2 will hold
supplementary examination for the academic year 2010-2011. Further, the
admission process for the students who want to opt for ATKT would
commence from 4th August, 2009 and that process was not by on-line
method but would be off-line admission process.
4. The Petitioners assert that after the said announcement, the issue was
discussed and some reactions were reported. Many people opined that
policy of giving ATKT to failed students should be eschewed as it would
create more social problems. It is stated that as per the Secondary School
Course, the School is expected to work for not less than 230 days and it
must do instructional work for not less than 195 days. Since the admission
process for failed students offering them ATKT was yet to be started, they
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would not be in a position to fulfill the said mandatory requirement and thus
not eligible to appear for the final examination. Moreover, the decision to
offer ATKT facility to failed students was abruptly declared on 10th July,
2009 without a notification or resolution passed till 20th July, 2009. The
Respondent No. 2 issued a circular only on 23rd July, 2009 and forwarded
the same to Schools and Junior Colleges throughout the State informing
about the decision of Respondent No. 1 dated 20th July, 2009 sanctioning the
policy of ATKT for students who have failed in 10 th Standard for admission
to 11th Standard. It is stated that the primary consideration for issuance
of circular dated 23rd July, 2009 by the Respondents No. 2 was that the
Board was not in a position to conduct supplementary examination for the
failed students and the option of ATKT was preferred so as to avoid loss of
academic year of such students. According to the Petitioners, the decision
though appears to have been taken in the interest of students is infact against
the welfare of the students as well as the Society for various reasons.
Firstly, it is against the provisions of Act of 1965 and Regulation of 1977
framed thereunder. Such change could not be brought about in absence of
the relevant provisions of Act and/or Regulation being amended, which
could be done only by issuing notification by the Government in the
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Official Gazette. No such steps were taken by the State Government or the
Board. According to the Petitioners, the decision to offer ATKT facility
was intended only for academic year 2009-2010 and to revert back to
supplementary examination from academic years 2010-2011 onwards. That
indicates that there was no consistent policy and the arrangement was only a
short term arrangement for one academic year essentially on account of the
inability of the Board to conduct supplementary examination. According to
the Petitioners, the ATKT is a concept relevant to University courses and
cannot be applied to a final year of the course study. In that, examination of
Standard 10th is final examination of Secondary School Education Course.
Similarly, HSC examination is final examination of Higher Secondary
Education course; whereas ATKT facility would be relevant for student
continuing in the same course upto the final examination of that course.
According to the Petitioners, the decision taken by the Respondents was in
haste, though a major policy decision. Moreover, the said decision was not
the result of a conscious decision keeping in mind the long term education
policy, but a decision passed on short term consideration to get popularity.
According to the Petitioners, the said decision is totally perverse, arbitrary
and unreasonable. Moreover, the same was not fair, rational and based on
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reasonable grounds. In as much as, the criteria of merit will be given a
complete go by and the students may develop tendency of not taking studies
seriously. It is further stated that the decision suffers from total non-
application of mind and absence of inconsistent policy in the field of
education. Significantly, when the students appeared for the examination of
10th Standard nor at the time of declaration of their results, the students
were made aware about such decision but it has come as a surprise to them.
There was absolutely no logic as to why the facility of ATKT was
introduced only for the current academic year. It is stated that there is a
possibility that the students will be lured to take admission in private
colleges by paying high fees without understanding the implications of their
decision having regard to the conditions on which facility is extended. The
Petitioners have also criticized the ground put forth by the Respondents that
by resorting to ATKT procedure, the work load and pressure on the students
would be reduced. On the other hand, according to the Petitioners, the
failed students would be put to more strain and would result in creating
additional work load and pressure on them. It is stated that large number of
students who fail in SSC examination come from weaker section of the
Society and many of them pursue their education in vernacular medium.
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Moreover, the decision if allowed to be implemented would result in
discrimination and arbitrariness as the facility will be extended only to
students who have appeared in March 2009 SSC examination with all
subjects and to none else. There was no intelligible differentia for carving
out only students who have appeared for SCC examination in March 2009
with all subjects at the same time. That would not serve the purpose of
introducing the said system which is expected to address the growing
demand of finding out ways and means to save one academic year of the
failed students and to dissuade them from dropping out of the education
system and to take extreme step of suicide and to address other social
problems. Besides, the decision has been taken at a belated stage after
completion of first phase of admission to 11th Standard and particularly
when necessary infrastructure to provide admission to the additional
students was not provided for. To aggravate the problem, the Respondents
were inclined to grant permission to start additional divisions if the colleges
were to apply for the same, which could not be done unless mandatory
compliance for allowing such additional divisions were to be observed.
Whereas, if the Respondents were to allow that to happen, it would raise
serious issues about the quality of education due to absence of necessary
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infrastructure like class rooms, adequate teaching and non-teaching staff,
adequate laboratory facilities etc. For the aforesaid reasons, the Petitioners
rushed to this Court by way of present Petition in the public interest praying
for declaration that the decision of the Respondent No. 1 dated 20th July,
2009 was arbitrary and illegal and to issue writ of mandamus directing
Respondent No. 1 to withdraw/cancel or to set aside the said decision as well
as the circular issued in furtherance thereof on 23rd July, 2009 Exhibit 'C'.
This Petition was filed on 4th August, 2009. The Petition was taken up for
admission on 6th August, 2009 when this Court felt that there was substance
in the grievance of the Petitioners amongst others that the proposed change
of introducing ATKT facility could not be given effect to in absence of
amendment of the Regulation by issuance of notification. As a result, the
Court passed the following order:-
" Notice. The learned counsel appearing for the respective respondents
put in appearance and pray for time to file reply. Reply affidavit be filed within
two weeks from today. Rejoinder within one week thereafter. Stand over to 27 th
August, 2009.
2. On the question of interim direction, we have heard the learned counsel
appearing for the parties. The contention raised before us is that
the letter dated 20th July, 2009 issued by the Department of School
Education & Sports, Mantralaya, Mumbai has been issued without ,
compliance to the statutory provisions of the Maharashtra Secondary and
Higher Secondary Board Act,1965 with particular reference to the provisions of
sections 34 and 37 of the Act. It is further contended that the decision is an
abrupt decision taken arbitrarily and that too at the nick of the time without any
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preparations and proper thinking. It is averred that nearly two lakh students who
have failed in one or two subjects of examination of 10th Standard would have to
be admitted as a result of issuance of this circular. It is also stated that there is no
infrastructure provided to admit these students in the education institutions as the
decision which has been made applicable for the current year only.
3. However, the learned Advocate General states that the proposal was mooted
and was accepted by the State Government and of course, the arguments are not
correct.
4. We have examined the matter and it appears to us that this decision has been
taken abruptly without any proper preparation. It may be noted that
approximately two lakh students are permitted to be admitted to the next
Standard without any proper infrastructure. Besides that, we are unable to
understand as to why this circular dated 20th July, 2009 has been implemented
only for the current year and as to how it is sought to be justified on the ground
that such concession will do away with immediate supplementary examination
which may be conducted later o. There is no dispute that the amendment/change
in the letter dated 20th July, 2009 has not been gazetted and therefore, has not
come into force in accordance with law as of now. In these circumstances, we
stay the operation of the impugned circular.
5. State is at liberty to proceed in accordance with law in completing the
process of notification if it so desires. Original records shall be produced in
court on the next date."
5. The Respondents thereafter filed reply affidavit. In the reply
affidavit of Respondent No. 1 filed by Anil Madhaorao Bhattalwar, Joint
Secretary to Government, School Education and Sports Department, it is
stated that communication dated 20th July, 2009 has been withdrawn and
cancelled by the State Government. Further, the State Government has now
issued notification on 17th August, 2009. Copy of the said notification is
appended to the said affidavit. The affidavit also gives the background in
which the decision was taken by the State Government to introduce ATKT
facility for academic year 2009-2010. According to Respondent No. 1, the
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decision was not an abrupt decision as suggested by the Petitioners but a
well considered and a conscious decision taken after due deliberations at
different levels. Firstly, the issue was examined by the Academic Council
of the Board who made the said recommendation which received approval of
the Executive Council and later on of the State Board. It is only thereafter,
the Government accorded approval to the proposal so as to introduce ATKT
facility from academic year 2009-2010. All matters relevant for taking the
said decision were deliberated upon by the authorities at different levels.
The affidavit also highlights the purpose for introducing such change which
would be beneficial to the students as well as the Board and the Society as a
whole. The affidavit discloses the figures of total number of students who
had appeared for the SSC examination in March 2009 to be 15,94,673.
12,78,562 students passed in all the subjects and 3,16,111 students failed in
one or several subjects. The details of students failed subject-wise are also
mentioned. Students failed in one subject are about 90,881, 2 subjects
about 56,809, 3 subjects about 39,230 and 4 or more subjects about 64,818.
The affidavit also discloses the statistics of sanctioned strength of divisions
for 11th and 12th Standards and the total intake capacity to admit students
in different faculties. As per the said statistics the sanctioned strength of
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divisions for 11th Standard is 14,596 and total intake capacity to admit
students is about 10,03,345. As against this, the total number of failed
students upto two subjects at the SSC examination was 1,47,690 and the
vacancies available in 11th Standard after regular admission was over is
1,85,091. This disclosure is made on the basis of report received from the
Director of Education. The affidavit asserts that the Court should not
interfere with the wisdom of the policy decision taken by the Respondents as
it cannot be said to be unreasonable or arbitrary in any manner as the same
has been arrived at after due consideration and deliberation on the basis of
relevant material and following the due process. There was no malafide
intention for taking the said policy decision. It is reiterated in the affidavit
that the scheme was for avoiding the loss of valuable academic year of
thousands of students who would be provisionally promoted and allowed to
keep terms in the 11th Standard or first year junior college. Another
affidavit sworn on 21st August, 2009, by Shahaji Haribau Dekhane, the
Joint Secretary of Respondent No. 2, has been filed to oppose the present
Petition. This affidavit refers to the background in which the decision
culminated with the notification dated 17th August, 2009 for introducing the
policy decision of extending ATKT facility to failed students upto two
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subjects from academic year 2009-2010. It is stated that the avowed object
kept in mind was that the students do not loose one year of their life in
successfully passing their first public examination. It is asserted that there
would be no violation of academic Standards by introduction of this
exemption/concession because the students will be required to pass the
examination in the subjects in which they have failed. It would only
provide an additional opportunity to the failed students to pass the subjects
without loosing an academic year.
ig It is also stated that the ATKT facility
is not compulsory but would be optional opportunity available to the failed
students to continue and remain in the education stream while ensuring
successful completion of SSC course by them, with provisional entry to the
College.
6. The Petitioners, in view of the changed situation, filed Civil
Application to allow them to amend the Petition so as to incorporate
additional averments by way of Paragraph 17A and 24A respectively and
further reliefs (c-1) (d-1) and (e-1). The Petitioners by the proposed
Paragraph 17A would assert that all the grounds mentioned in the present
Public Interest Litigation for challenging the order dated 20th July, 2009
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survive and are being raised for challenging the notification dated 17th
August, 2009 except the ground of Regulation was not amended. By way
of Paragraph 24A, the Petitioners assert that the impugned notification
appears to be self contradictory and discriminatory. In that, the students
who have appeared for 10th Standard examination in March 2009 only will
be eligible for ATKT in this academic year as well as in future whenever
they seek admission to Standard 11th /first year Junior College. The
Government has thus carved out a special category of students who have
appeared in Standard 10th examination in March 2009. This classification
is not based on intelligible criteria and is, therefore, violative of Article 14
of the Constitution of India. By way of further reliefs, the Petitioners pray
for notification dated 17th August, 2009 annexed to the affidavit of
Respondent No. 1 be quashed and set aside. This application was handed in
to the Court when the matter was listed for arguments. Counsel appearing
for the Respondents fairly agreed that the Court may proceed on the
assumption that the amendment as prayed for has already been granted and
may dispose of the application alongwith the Writ Petition on that basis.
Thus, arguments on merits continued. However, with reference to the
doubts expressed by the Court about the figures referred to in the reply
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affidavit, the Respondent No. 1 sought liberty to file additional affidavit.
Accordingly, additional affidavit dated 25th August, 2009 was filed. This
affidavit also gives the statistics about the level of drop out students for the
past few years. The arguments were then concluded on 25th August, 2009
and the matter was reserved for orders. The Respondent No. 1, however,
filed additional affidavit of Anil Madhaorao. Bhattalwar, Joint Secretary to
Government, School Education & Sports Department dated 1st September,
2009 to clarify the position that although the amended regulation 79(1A)
envisages that the change introduced regarding ATKT facility is applicable
only for one academic year, however, the policy is not a one time
experiment but will be consistently followed in the years to come. In view
of this affidavit, the matter was ordered to be listed on 2nd September, 2009
for directions. Later on, the matter was listed on 7/9/2009 when further
arguments were advanced by Counsel appearing for the parties. On 9th
September, 2009 liberty was sought by the Respondents to file additional
affidavit to furnish information amongst others regarding district-wise
vacancies available as of now. Pursuant to the said liberty, the Respondent
No. 1 has filed additional affidavit of Anil Madhaorao Bhattalwar sworn on
11th September, 2009. The same was made available to the Counsel for the
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Petitioner on 15th September, 2009, when he asked for time to examine the
same. Accordingly, the matter was listed for further arguments on 16th
September, 2009 on which date the arguments were finally concluded.
7. At the outset, the Counsel appearing for the Petitioners fairly
conceded that the relief as claimed in the original Petition would not survive
for consideration in view of the cancellation/withdrawal of the decision
dated 20th July, 2009 Exhibit 'B' as also the circular dated 23rd July, 2009
Exhibit 'C' to the Petition. However, the Counsel during the course of
arguments reiterated the points made out in the present Petition which are
already adverted to above to assail the impugned notification dated 17th
August, 2009. The challenge is principally three fold. Firstly, that the
policy decision has been taken in undue haste without reckoning the
relevant matters. Secondly, the amendment made to Regulation-79 would
result in ex facie discrimination and arbitrariness. In that, only students
who have failed in one or two subjects who had appeared in the SSC
examination conducted in March 2009 with all subjects alone would be
entitled to this facility. Thirdly, even if the policy of introducing ATKT
facility was valid, the same overlooks the lack of infrastructure for
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accommodating all the failed candidates and more so of ensuring quality
education and avoiding over burdening of the students. The Petitioners have
also found fault with the figures disclosed by the Respondents about the
vacancy of seats. The Petitioners also contended that the number of failed
students in one or two subjects(eligible for ATKT) is far more than the
vacant seats with reference to the affidavit of the Board and the affidavit of
the Government. According to the Petitioners, keeping in mind the total
intake capacity of the students and the students passed in all subjects, it was
obvious that the number of seats available were less than the students who
have passed in all subjects. This would indicate that infrastructure to
accommodate the failed students (eligible for ATKT) was not available. It
necessarily follows that the Respondents would then create additional seats
by procuring additional divisions in schools/colleges which would
compromise quality education. The Counsel for the Petitioners also
contended that the impugned decision if allowed to be implemented will
have retrospective operation which cannot be countenanced in the case of
delegated legislation.
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8. Per contra, the Respondents would contend that there was no
substance in the first grievance of the Petitioners that the decision was taken
in undue haste in as much as the same was arrived at after due deliberations
and following due process as the matter was considered first by the
Academic Council and the recommendation of the Academic Council was
then approved by the Executive Council as well as the State Board. It is
only thereafter the matter was brought before the State Government for
sanction. Even before grant of sanction, the matter was examined at the
highest level and after considering all relevant matters order were issued by
the State Government on 20th July, 2009. In furtherance of the said order,
the State Board issued circular on 23rd July, 2009. Later on the State
Government accorded sanction for modification of Regulation on 31st July,
2009. The amendment to Regulation 79 was culmination of due process
followed by the Respondents. It was a conscious decision taken at the
highest level as to why ATKT was preferred instead of supplementary
examination due to peculiar situation and more so to avoid loss of one
academic year of the failed students(eligible for ATKT). It was argued that
such procedure is followed even in other States. The new policy was
introduced so that the students will not miss out one academic year and if the
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same was found to be successful could be continued even for the future.
According to the Respondents, the Petitioners were not able to specifically
point out any short comings so as to question the wisdom of the policy
makers. According to the Respondents, the policy does not affect those
who have passed as also it does not discriminate between failed students. It
was not an ex facie arbitrary policy or provision. Even the apprehension of
the Petitioners that the time span available may not be sufficient to comply
with the mandatory academic Standards
ig was misplaced. In that, the
Respondents have already prepared an action plan as to how it can be made
good. The Respondents also argued that the apprehension of the Petitioners
that sufficient number of teachers may not be available and more so in view
of the impending Legislative Assembly Elections in the State was also
misplaced. In as much as, election duty is assigned to the teachers as per the
guidelines of the Election Commission. There would be no compromise
on teaching Standards or loss in teaching. On the other hand, there was
sufficient margin to make good the deficient instruction hours by prescribing
one extra hour everyday and also additionally during the vacations so as to
make good the loss of instruction hours. A chart explaining that position
has been handed in to the Court. Besides, by way of additional affidavit the
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Respondents have made it clear that the policy is not a one time experiment
but will be consistently followed in the years to come. That would take
away the grievance of the Petitioners that the policy results in
discrimination. Counsel for the Respondents have placed reliance on the
decisions of the Apex Court which according to them should be borne in
mind while considering the question of validity of the policy introduced by
the Respondents. Reliance is placed on the case of Shri Ram Krishna
Dalmia v/s. Shri Justice S.R.Tendolkar & Ors. reported in AIR 1958 SC
538, Maharashtra State Board of Secondary and Higher Secondary
Education and anr. v/s. Paritosh Bhupesh Kurmarsheth (AIR 1984 SC
1453), Bombay Dyeing and Manufacturing Company Ltd. (3) Vs.
Bombay Environmental Action Group[(2006) 3 SCC page 434] and
Bhavesh D. Parish & ors. v/s. Union of India & ors. [(2000) 5 SCC page
471].
9. Before analyzing the rival submissions it may be apposite to advert
to the relevant provisions. As per Section 36 of the Act of 1965, the State
Board has power to make Regulations. In exercise of the said power, the
State Board has framed Regulation of 1977. Regulation 79 thereof which is
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of some significance to our case, deals with the eligibility for admission to
junior college. Sub-clause (1) of Regulation 79 postulates that students who
have passed 10 year Secondary School Certificate (SSC) examination under
(10+2) education pattern of any statutory Board in India shall be admitted to
the first year of junior college if they have offered and passed in minimum
five subjects with English as one of the subjects. On plain reading of this
Provision, only a student who has passed 10 year Secondary School
Certificate Examination of any statutory Board in India in minimum five
subjects with English as one of the subject alone can be admitted to the first
year of junior college. In the face of this provision, the Respondents could
not have introduced the scheme of ATKT facility-so long as Regulation 79
remained unamended. Nevertheless, the Respondents proceeded to do so
by issuing order under the signature of Under Secretary-State of
Maharashtra dated 20th July, 2009 and the circular under the signature of
Secretary - State Board of Maharashtra State Secondary and Higher
Secondary Education Board dated 23rd July, 2009. Obviously, therefore,
this Court at the instance of the Petitioners intervened in the matter on 6th
August, 2009 and directed the Respondents to forbear from giving effect to
the said decision. However, the Respondents have now issued notification
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to amend Regulation 79 by introducing clause (1A). The said notification is
published in the Official Gazzette dated 17th August, 2009, which reads thus:
"SCHOOL EDUCATION AND SPORTS DEPARTMENT
Mantralaya(Annex), Mumbai 400 032,
dated the 17th August 2009
NOTIFICATION
MAHARASHTRA SECONDARY AND HIGHER SECONDARY
EDUCATION BOARDS ACT, 1956.
No.HSC-2009/(167/09)/hsc-2, date 17th August 2009.-In exercise
of the powers conferred by sub-section (2) of section 37 read with
section 36 of the Maharashtra Secondary and Higher Secondary
Education Boards Act, 1965 (Mah.XLI of 1965), the Government of
Maharashtra, after consultation with the Maharashtra State Board of
Secondary and Higher Secondary Education, is hereby pleased to amend
the Maharashtra Secondary and Higher Secondary Education
Regulations, 1977, as follows:-
In regulation 79 of the Maharashtra Secondary and Higher
Secondary Education Regulations, 1977, after sub-rule (1), the following
sub-rule shall be inserted, namely:-
"(1A) Notwithstanding anything contained in sub-rule (1), a
student who has appeared to the Secondary School Certificate
examination (Std.X) conducted by the Maharashtra State Board
of Secondary and Higher Secondary Education in March 2009,
with all subjects but failed in not more than two subjects, shall be
allowed to keep terms (ATKT) and shall be eligible to take
provisional admission to the first year of junior college or Higher
Secondary Schools, as the case may be, affiliated to the
Maharashtra State Board of Secondary and Higher Secondary
Education, Pune, from the current Academic Year. It shall be
compulsory for such student to appear for the October
examination to be held by the State Board in the respective
Academic Year with the subjects in which he has been given the
facility to keep terms (ATKT). If he fails in this final
examination, he will get last opportunity to clear the subjects in
the final examination of that Academic Year. The student who is
availing of the facility to keep terms (ATKT), shall not be
eligible for admission to Std. XI in Science stream of the junior
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college or Higher Secondary Schools, as the case may be, unless
he has secured more than 40% marks in Science subjects. At the
time of taking October Examination or the Annual Examination
of such student for the subjects in which he has failed, the State
Board shall arrange only written examination of such student and
marks of the earlier examination in practical and oral and
internal valuation in t he said subjects shall be taken into
consideration for passing of respective subjects. Such student
shall not be entitled to his result of Std.XI examination and shall
not be eligible for admission to Std. XII till he successfully
passes the said subjects in which he had failed at Secondary
School Certificate examination (Std.X)."
By Order and in the name of the Governor of
Maharashtra,
ig A.M.BHATTALWAR,
Joint Secretary to Government."
10. The Respondents have justified its policy decision which has
culminated with the above notification on the basis of the opinion of
the Academic Council which has been approved by the Executive
Council and the State Board. On the basis of the opinion of the
Academic Council, the Secretary of the State Board sent
communication dated 9th July, 2009 to the Secretary, Government of
Maharashtra, School Education and Sports Department. The office
translation of the said communication reads thus:-
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25
"Ex. A
Number S. B/Examination -6/4396
Pune - 411004.
Date : 9th July, 2009.
To,
The Secretary,
Government of Maharashtra,
School Education & Sports Department,
Mantralaya Extension Building,
Mumbai - 400032.
Subject:Regarding conducting supplementary Examination within
one month after declaring the results of February/ March
Examinations.
Sir,
As per the representations received from Punekar Vidyarthi Kriti Samiti,
Pune (Puneites Students Action Committee, Pune)/ Shivsena Shahar Pramukh,
Kolhapur and Samatavadi Chhatra Bharati (Maharashtra), through the Divisional
Boards, as regards Secondary School Certificate Examination (Standard 10th) and
Higher Secondary Certificate Examination (Standard 12th), following demands
have been received by the State Boards.
(1) Supplementary Examination may be conducted immediately after
declaring the results.
(2) Facility of re-valuation of answer sheets may be made available.
(3) If the students make requisition then a xerox copy of the answersheets
may be provided.
As per the news published in the various news-papers in the month of
June and July, similar kinds of demands are being made. The Hon'ble Minister in
this regard has declared positive role through the newspapers. Hence, in order to
make discussion - consideration on the aforesaid things and for deciding
procedure in that regard, in-depth discussion has been made in the meeting of
Academic Council, Executive Council and State Board on the dates 29th and 30th
June 2009. On account of Supplementary Examination of October, academic year
of the students is lost and which cause them loss and hence if this examination is
conducted within 10 days immediately after declaring the results, instead of
losing academic year of the students who failed in one or two subjects, such
students can take admission for further education (studies) in the same academic
year. For this purpose, the said scheme is most welcomed the Board should adopt
this. However, the Board does not have merely a responsibility of examination it
has other important responsibilities viz. Curriculum, textual development, text
books, evaluation and Teachers Training etc. Hence, it has been decided with the
consent of all that if such examination is conducted in the month of June,
immediately after the results of February/ March, then it is presently does not
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26
seem possible for the Board to take Supplementary examination again in the
October. In this regard, State Board Members, should immediately make a study
as to how the Supplementary Examination, being conducted in this manner, is
implemented in other States (especially Karnatak, Gujarat, Andhra Pradesh
States) and for that purpose, it has been decided that one Sub-committee should
be appointed and such Sub-committee should submit a report. A copy of the
resolution passed in the aforesaid meetings and copies of the order having formed
the Sub-committee and of issuing the orders to the concerned in that regard, are
submitted separately. Moreover, if such Supplementary examination is required
to be conducted within ensuing one month period in this academic year then how
would be it's time table, on this issue also the discussion was made. This
Examination can be conducted as early as in the first week of August month. The
said Time - Table can be prepared as early as mentioned hereinbelow :
(1) Actual Examination Period - 3 to 13 August 2009
(with Public Holidays)
(2) Answersheet Assessment - Upto 29th August
(3) Pre-result computerised Report
(4)
Checking (1 to 14 Reports)
Computerised Final Report Checking
- 7 September 2009
(Report No. 702, 703 & 704) - 10th September 2009
(5) Declaration of results - 11th September 2009
(6) Distribution of Mark-sheetto the students- 15th September 2009
(9) The result of the examination conducted in the first week of August can
be declared upto 15th September. However, the admission period for the
academic year is generally upto 31st July and the first term is generally gets over
on 20th October. Therefore, according to all the members the benefit of the
examination conducted in the month of August, 95 aforesaid, will not be availed
by the students for taking admission to the next class in the same academic year.
Moreover, if the Supplementary examination of the students, failed in two
subjects, is required to be conducted, then all the papers can not be kept on the
same day or even on two days. If the examination of all the subject are to be kept
(conducted) within 1 day, then students can appear for examination of only one
subject. Therefore, if the examination is to conducted for two or more subjects,
then the programme of examination for the entire period, as before, shall have to
be prepared, because, these subjects can, studentwise, be different. Therefore, for
supplementary examination, minimum 9 days actual period is necessary.
In the current year, as Diwali is during the period from 17th to 19th
October, 2009, it is proposed to conduct regular October examination, during the
period from 22nd September, 2009 to 10th October, 2009. Result of this
examination can be declared upto 20th November as per last year.
The aforesaid Supplementary examination is proposed with a view to
save academic year of the students of 10th Standard. However, as the process of
printing examination papers is not yet started in the current year, it would not be
possible to conduct the examination this year before the August. The application
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form for 10th and 12th Standard for October examination have received and the
October Supplementary examination of the 12th Standard is required to be
conducted again, immediately. For both these examinations, appointments of
Custodian, Examiner, Moderator, Centre Director (Head), Supervisor etc. shall
have to be made twice. As a result even the expenditure of their honorarium shall
become double. Moreover, for the work of paper checking of the October
examination, generally time is available owing to Diwali vacation, as a result
days of teaching (tuition) are wasted. However, if it is required to conduct
Supplementary examination now, then days of their teaching will be wasted. And
that would even become the subject of criticism. As the month of August is
monsoon season, the students, at District level, may find it difficult to reach at
Examination Centre, due to traffic and other problems. Taking this fact into
account at least one Examination Centre shall have to be given to each Taluka.
The aforesaid problems may arise even to reach at the Taluka place.
Regarding reaching Question papers on the concerned custodian Centre, by
internet -
In the action of sending question papers to the concerned custodian -
centre by internet, preparing copies thereof and sending the same to the
concerned centre, following things shall have to be taken into consideration.
The examination for Std. 10th is conducted in 8 mediums whereas
examination for 12th Science is conducted in 4 mediums and for other branches it
is conducted in 6 mediums. On each centre, the students of at least 3-4 mediums
are admitted. If volumn on question paper is considered to be 4 pages, the work
of assembling question papers and packing the same in centrewise packets shall
have to be done on the custodian - centre itself and considering the transportation
period required therefor, the question papers shall have to be sent to the custodian
centre at least three hours in advance. If minimum 350 students are expected at
each Taluka Centre, the work to prepare that much medium wise copies and
sealed packets thereof etc. shall have to be done within the period of three hours.
While carrying out these works, various types of irregularities like the question
papers being leaked from custodian - centre, the same being read, additional
unauthorised copies thereof being made, answers thereof being prepared and
supplied may occur on large scale.
In the existing distribution system, each custodian is provided with
centrewise sealed packets, therefore if any irregularity occurs it is possible to find
out the same. However, if this work is to be done by internet, the Board will not
have any control over the same and unnecessarily, the Board will be held
responsible in these irregularities and the Board is likely to be defamed as a result
thereof. Besides this, every custodian centre shall have to keep the internet
facility in permanent upto date working condition. Moreover, the schedule of
load shedding shall have to be kept similar all over the State. As the Mahavidyut
vitaran has rejected the request of school education department not to do load
shedding during the exam period of March 2009, even this time it will have to be
presumed that Schedule of load shedding will be irregular. As a result thereof, on
some occasion, even the question papers will have to sent to the custodian
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centres, one day in advance which is likely to cause breach of confidentiality as
regards question papers on large scale. Moreover, if the concerned custodian/
officer can not obtain the question papers on account of some technical reasons
then, the possibility can not be ruled out that exams of the students at such
centres will have to be postponed and the Board will have to make different
question paper available for such students. In such situation, the Board will have
to conduct the exams at such centres again as per the revised time table.
Therefore, since the vidyut Mahavitaran has informed that load shedding will be
continued upto 2012, at least till then, it does not seem to be possible that
distribution of question papers can be done by internet.
For October exams, on an average 2 thousand students are expected at
one custodian centre whereas, at the time of examination held in March, 6 to 25
thousand students are expected at one custodian centre. For the examination held
in March 2009, there were in all 485 custodian centres. Considering the centre/
medium/ subjectwise types and number of question papers on such a large scale
(For Std 10th - 59 subjects and number of question papers for different medium is
139 and for Std 12th - total no. of subjects - 143 and number of question papers is
390), it is opined that in order to maintain the confidentiality of examination, to
conduct examinations as per the scheduled time table and to see that students
shall get sufficient number of question papers of proper medium, the prevailing
packing system of Board shall be continued.
The State Board has appreciated the proposal of conducting
Supplementary examination in June. However, if this examination is to be
conducted in place of October examination, this decision being comprehensive, it
is necessary to provide information in respect thereof to each section of society,
in time. For this purpose, the State Board, by taking the information as regards
examination system followed in other States, shall submit thorough proposal to
the Government. The State Board has taken a decision to declare this
examination at the beginning of academic year itself. Moreover, considering the
fact that the students will not get benefit of avoiding loss of one academic year
by conducting this supplementary examination in this year itself and that even the
Board is not well prepared for this, a resolution has been passed that
implementation of this decision shall be considered from next academic year and
for this purpose it has also been decided in the State Board meeting that result of
Std. 12th shall have to be declared before 30th May and result of Std. 10th shall
have to be declared before 10th June and considering the period required for
printing of marksheets, the result shall be declared in advance on website so that
the students would get clear idea whether they have to appear for supplementary
exam or not.
In view of the aforesaid facts and difficulties likely to occur in
Supplementary examination. State Board has considered over the option of A. T.
K. T.
Regarding giving an opportunity of admission to 11th Standard to the students
who have failed in one subject :-
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In all 1594673 students appeared for Secondary School Certificate
Examination held in March, 2009. Of them, 1278562 students passed and 316111
students failed. The numerical details of the failed students are as follows :-
1) Number of students failed in one subject - 137761
(44.48%)
2) Number of students failed in two subjects - 67853
(21.91%)
3) Number of students failed in three subjects - 39230
(12.66%)
4) Number of students failed in four or more subjects - 64814
(20.95%)
The percentage of the results of Secondary School Certificate
Examinations held in October during last three years is as follows :-
October 2006
October 2007
-
–
17.21%
23.36%
October 2008 – 18.18%
(old Course – 21.43%)
From the aforesaid statistical data, it is seen that the total result of
October examination is less than the result of the students failed in one subject.
In other words, it appears that generally, the very students will be more benefited
in October. In order to see that academic year of the students is not wasted.
Supplementary examination is demanded from the society. Therefore, as an
alternative to Supplementary examination, a facility of admission to 11th Standard
can be given to the students who have failed in one subject on the line of
University’s A. T. K. T. (Allowed To Keep Terms) facility. However, 10th
Standard is a final step at secondary level and as the phase of Higher Secondary
education starts from 11th Standard, a policy decision thereon may be taken at the
Government level. If A. T. K. T. Scheme is to be implemented, then it would be
proper to take into account below mentioned things :-
1) A student, who has failed in any one subject from out of the subject in
respect of which examinations are conducted by the Board, may be treated as
eligible for admission to 11th Standard by giving A. T. K. T. facility. However,
for science faculty, the condition of minimum marks (minimum 40%) in science
subject may be kept intact.
2) Those students to whom A. T. K. T. facility is admissible, a clear entry to
that effect may be made in their mark-sheets. However, as mark-sheets of the
examination held in March, 2009 have been issued to the students by the Board,
as regards admissions of such students, separate orders may be given to the
Director (Secondary and Higher Secondary) from the Government level.
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However, from the examination of the year 2010, entry of A. T. K. T. facility can
be shown in the mark-sheets of the Board.
3) A. T. K. T. facility shall be applicable only to a student who will appear
for Secondary School Certificate examination by taking all subjects (excluding
Grade subjects) at a time (excluding Grade Improvement Scheme).
4) After such students takes admission to 11th Standard alongwith A. T. K.
T. facility, it may be made mandatory for them to pass the subject, for which A.
T. K. T. facility has been given, in October and March examinations in the
academic year of 11th Standard. By obtaining an Undertaking to that effect from
the students, they may be given temporary admission to 11th Standard. During the
said period, if the said students do not pass the said subject, then their temporary
admission to 11th Standard shall be cancelled.
5) The student shall have the option to accept or reject the A. T. K. T.
facility. The said A. T. K. T. facility shall be limited to taking temporary
admission to 11th Standard in the next immediate academic year for the students
who have failed in one subject of the Maharashtra State Secondary and Higher
Secondary Education Board Examination.
6) The facility of taking admission in 11th Standard along with A. T. K. T.
facility can be given in the Junior Colleges affiliated to the Maharashtra State
Secondary and Higher Secondary Board, Pune.
7) While conducting examination of the subject for which A. T. K. T.
facility is given within the aforesaid prescribed period, the Board should conduct
only written examination. However, as regards practical/ oral/ internal
assessment etc. the marks received in the original examination should be held
valid.
8) Due to aforesaid A. T. K. T. facility, the number of students taking
admission for 11th Standard will be increased and therefore, as regards number of
Divisions and enhanced number of teachers, a separate planning will have to be
made at the level of the Director, (Secondary and Higher Secondary).
9) If a Decision on A. T. K. T. is taken as aforesaid and if the same is to be
implemented from the students appeared for March 2009 examination, then a
separate planning for filing in Applications of such students for admission to 11th
Standard will have to be immediately made through the Director of Education,
(Secondary and Higher Secondary).
10) After Government Resolution in this regard is received, incidental
amendments will have to be made in connection with 11th Standard admissions in
S S Code and M E P S Rules (1981) and the action of making amendments in
necessary provisions of the Board in connection with 11th Standard Admissions
will be taken with the approval of the Competent Committee of the Board.
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Further, on the line of Standard 10th as aforesaid, if A. T. K. T. facility is
to be given to 12th Standard Students for further College admission, then it is
necessary to carry out correspondence with the Higher Education Department at
the Government level. However, if such decision is taken at Government level,
then it will be possible to make an entry viz. Received A. T. K. T. facility in the
mark-sheets given to 12th Standard students by the Board.
If A. T. K. T. facility is given, then there will be no need to conduct
Supplementary examination in July and as a result, the failed students can study
properly and appear for the examination.
After Government order in this regard is received, a proposal therefor
will be separately submitted to the Government with the approval of all the
Competent Committees (Examination Committee, Executive Council (Ad hoc);
State Board Meeting) of the Board.
Yours faithfully,
(Signature Illegible)
ig (T. N. Supe)
Secretary,
State Board, Pune.
Office Copy
(Signature Illegible)
9/7/9
True Copy
(Signature Illegible)
Advocate" (emphasis supplied)
11. We have reproduced the said communication in its entirety as the
justification to introduce policy of ATKT facility emanates from the opinion
of the Academic Council which has been deliberated upon at the highest
level before culminating in the impugned Notification dated 17th August,
2009. It is on the basis of the above said proposal submitted by the
Respondent No. 2, the Respondent No. 1 issued order on 20 th July, 2009 and
communicated the same to the Secretary of the Board. The Office
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translation of the said communication as furnished by the Petitioners read
thus:-
“Government of Maharashtra
No.HSC-2009/(167/09)/उ -2
Department of School Education & Sports
Mantralaya, Extension Building,
Mumbai-400032.
Date: 20th July 2009.
To,
Secretary,
Maharashtra State Board of Secondary
& Higher Secondary Education
Pune.
Sub:- With respect to giving facility of ATKT
(Allowed to keep term) to students failing in 10th
Standard for admission to 11th StandardRef:- Your letter no.रा.मं./ परीका/ 4396, dtd.9th July 2009
Please refer to the letter under reference.
2. Pursuant to the proposal submitted by you vide your aforesaid letter, the
Government Order is being issued under the provisions of S.34 of the
Maharashtra State Secondary and Higher Secondary Board Act, 1965 as
follows:-
In order that there should not be a loss of academic year of students who
have failed in 10th Standard examination held in February/March 2009 in
maximum 2 subject, the government hereby sanctions to give admission
to such students to 11th Standard in this academic year on the following
conditions –
(1) The facility of A.T.K.T. Shall be available for admission to 11th
Standard in the academic year 2009-2010 only to those students
who have appeared for S.S.C Examination (10th Standard) in
March 2009, held by Maharashtra State Secondary and Higher
Secondary Education Board and have failed in maximum two
subjects. For the admission in science stream the students opting
for the facility of A.T.K.T must secure more than 40% marks in
the subject of science.
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(2) The admission with facility of A.T.K.T. Will be
provisional/temporary. It will be compulsory for such students
to appear for the examination to be held by Board in October
2009 with the subjects in which he has been given the A.T.K.T..
If he fails in this, he will get last opportunity to clear the
examination in March 2010. If the students does not pass in the
subject in which he has got A.T.K.T. even at the last opportunity,
admission given to him to 11th Standard shall be cancelled. The
result of 11th Standard shall not be declared till he passes the
subjects in which he has got A.T.K.T. in the SSC examination,and the marksheet will not be given. Similarly, he shall not be
eligible for admission in 12th Standard.
(3) The facility of A.T.K.T. will be applicable only to those students
who have appeared for the SSC Examination in March 2009(10th
Standard) with all the subjects (except subject of grade) at the
same time (Except for improving the grade).
(4) The student will have option to accept or reject the facility of
A.T.K.T.
(5) Henceforth there will be mention in the marklists of such
students who have failed in 10th Standard examination in
maximum 2 subject, and wanting to take benefit of facility of
ATKT in said respect. The necessary instructions will be issued
to all Divisional Boards from State Board in this respect.
However, as the marklists are already distributed this year, the
students shown failed in 2 subjects in the marklist shall be
entitled to get benefit of facility of ATKT on the above
conditions.
(6) As there will be increase in number of students taking admission
to 11th Standard, separate arrangements will have to be made for
no. of divisions and additional teaching staff at the level of
Director(Secondary and Higher Secondary)
(7) Necessary instructions with respect to admissions to 11th
Standard for students getting facility of ATKT will be given by
Director(Secondary and Higher Secondary) to concerned office
of Divisional Deputy Director of Education and to all concerned.
(8) At the time of taking examination in October 2009 or March
2010 of the students who have been given A.T.K.T. facility, for
the subjects in which he was failed, the Board should arrange
only written examination and marks of the earlier examination
practical/oral/internal valuation in the said subject should be
taken into consideration.
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3. Necessary changes in respect of facility of ATKT should be made by the
concerned in S.S.Code and M.E.P.S.Rules (1981) and in Board
Regulations in respect of admissions to 11th Standard and such proposal
should be sent to Government.
(S.P.Khorgade)
Under Secretary, State of Maharashtra
Copy to-
1. Director(Secondary and Higher Secondary), State of Maharashtra.;”
(emphasis supplied)
12. On the basis of the above said order, the State Board issued circular
on 23rd July, 2009. Office translation of the said document as furnished by
the Petitioners would read thus:-
“STATE BOARD, PUNE
MAHARASHTRA STATE SECONDARY & HIGHER SECONDARY
EDUCATION BOARD, PUNE
CIRCULARSub: In respect of giving facility of A.T.K.T.
(Allowed to keep Term) to the students who
have failed in examination of 10th Standard
for admission in 11th Standard.
There was demand for holding supplementary examination in Order that
there should not be a loss of academic year of students who have failed in
Second School Examination held by Maharashtra Rajya Secondary and High
Secondary Education Board through 8 divisions boards namely
Pune/Nagpur/Aurangabad/Mumbai/Solapur/Amravati/ Nashik.Latur. However,
as there are many defects in arranging supplementary examination this year and
as the academic year of the students who have failed the SSC examination (10 th
Standard) held in February-march 2009 should not be wasted, the Government by
its Order dated 20.7.2009 has sanctioned to give facilities of A.T.K.T. on the
basis of Universities for taking admission in 11th Standard to the students who
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have failed in maximum two subjects in the current academic year subject to the
following conditions:
(1) The facility of A.T.K.T. shall be available for admission to 11th
Standard in the academic year 2009-2010 only to those students who
have appeared for S.S.C. Examination (10th Standard) in March 2009,
held by Maharashtra State Secondary and High Secondary Education
Board and have failed to maximum two subjects.
(2) For the admission in science stream the students opting for the
facility of A.T.K.T. must secure more than 40% marks in the subject of
science.
(3) The admission with facility of A.T.K.T. will be provisional/temporary.
It will be compulsory for such students to appear for the examination to
be held by Board in October 2009 with the subjects in which he has been
given the A.T.K.T.. If he fails in this, he will get last opportunity to clear
the examination in March 2010. If the students does not pass in the
subject in which he has got A.T.K.T. even at the last opportunity,
admission given to him to 11th Standard shall be cancelled. The result of
11th Standard shall not be declared till he passes the subjects in which he
has got A.T.K.T. in the SSC examination, and the marksheet will not be
given. Similarly, he shall not be eligible for admission in 12th Standard.
(4) The facility of A.T.K.T. will be applicable only to those students who
have appeared for the SSC Examination in March 2009(10th Standard)
with all the subjects (except subject of grade) at the same time (Except
for improve the grade).
(5) The student will have option to accept or reject the facility of A.T.K.T.
(6) The students who have been given A.T.K.T. facility will have to give
only written examination in which he has failed (one or two) in October
2009 or March 2010 and marks of the earlier examination
practical/oral/internal valuation in the said subject will be considered.
Sd/-
Pune 411004 Secretary
23.7.2009 State Board, Pune."(emphasis supplied)
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13. Indubitably, after the issuance of Notification dated 17th August, 2009
in the official gazette, challenge to the above said order issued by the
Respondent No. 1 dated 20th July, 2009 and the circular issued by the
Respondent No. 2 dated 23rd July, 2009 would not survive for consideration
to the extent that due process was not followed by the Respondents before
introducing the policy of extending ATKT facility to the failed students. To
that limited extent nothing survives for consideration in the present Petition.
14.
However, since the Petitioners by way of amendment have asserted
that the grounds for challenge to the aforesaid order and circular would still
continue and would be available to challenge the notification dated 17th
August, 2009, as a result the said aspects will have to be addressed by us.
Before doing so, it may be apposite to advert to the legal position enunciated
by the Apex Court which have been consistently adopted and applied in
subsequent cases to examine the argument regarding the invalidity of the
amended provision, Regulation-79. The Apex Court in the case of
Ramkrishna Dalmia (supra) after adverting to its earlier decisions and
other reported cases have culled out the principles to be borne in mind by the
Court to examine such controversy. The same can be discerned from
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Paragraph 11 of the said decision. The relevant extract thereof is
reproduced thus:-
“(11) The principal ground urged in support of the contention as to the
invalidity of the Act and/or the notification is founded on Art. 14 of theConstitution. In Budhan Choudhry v. The State of Bihar, 1955-1 SCR
1045: ((S) AIR 1955 SC 191) (A) a Constitution Bench of seven Judges
of this Court at pages 1048-49 (of SCR) : (at p.193 of AIR) explained the
true meaning and scope of Art. 14 as follows:
” The provisions of Article 14 of the Constitution have come up
for discussion before this court in a number of cases, namely, ChiranjitLal v. The Union of India 1950 SCR 869 : (AIR 1951 SC 41) (B) The
State of Bombay v. F. N.Balsara, 1951 SCR 652 : (AIR 1951 SC 318)(C),
State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 : (AIR 1952SC 75) (D), Kathi Raning Rawat v. The State of Saurashtra, 1952 SCR
435 : (AIR 1952 SC 123) (E), Lachmandas Kewalram v. The State Of
Bombay, 1952 SCR 710 : (AIR 1952 SC 235) (F), Qasim Razvi v. The
State of Hyderabad, 1953 SCR 589 : (AIR 1953 SC 156) (G) and Habeeb
Mohamad v. The State of Hyderabad , 1953 SCR 661 : (AIR 1953 SC
287) (H), it is, therefore, not necessary to enter upon any lengthy
discussion as to the meaning, scope and effect of the article in question.
It is now well established that while article 14 forbids class legislation, it
does not forbid reasonable classification for the purposes of
legislation. In order, however, to pass the test of permissible
classification two conditions must be fulfilled, filled namely, (i) that
the classification must be founded on an intelligible differentia whichdistinguishes persons or things that are grouped together from others
left out of the group and, (ii) that that differentia must have a rational
relation to the object sought to be achieved by the statute in question.
The classification may be founded on different basis, namely,
geographical, or according to objects or occupations or the like. What is
necessary is that there ‘Must be a nexus between the basis ofclassification and the object of the Act under consideration. It is
also well established by the decisions of this Court that article 14
condemns discrimination not only by a substantive law but also by a
law of procedure.”
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The principle enunciated above has been consistently adopted and applied
in subsequent cases. The decisions of this Court further establish-
(a) that a law may be constitutional even though it relates to a single
individual if, on account of some special circumstances or reasons
applicable to him and not applicable to others, that single
individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the
constitutionality of an enactment and the burden is upon him who attacks
it to show that there has been a clear transgression of the
constitutional principles;
(c) that it must be presumed that the legislature understands and
correctly appreciates the need of its own people, that its laws are
directed to problems made manifest by experience and that its
discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees of harm and may
confine its restrictions to those cases where the need is deemed to be the
clearest ;
(e) that in order to sustain the presumption of constitutionality
the court may take into consideration matters of common
knowledge, matters of common report, the history of the times
and may assume every state of facts which can be conceived existing at
the time of legislation; and
(f) that while good faith and knowledge of the existing conditions on
the part of a legislature are to be presumed, if there is nothing on the face
of the law or the surrounding circumstances brought to the notice of the
court on which the classification may reasonably be regarded as baised,
the presumption of constitutionality cannot be carried to the extent of
always holding that there must be some undisclosed and unknown reasons
for subjecting certain individuals or corporations to hostile or
discriminating legislation.
The above principles will have to be constantly borne in mind by the
court when it is called upon to adjudge the constitutionality
of any particular law attacked as discriminatory and -violative of
the equal protection of the laws.” (emphasis supplied)
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39
15. It will be useful to reproduce Paragraphs 12 of the same Judgment
which reads thus:-
“(12) A close perusal of the decisions of this Court in which the above
principles have been enunciated and applied by this Court will also show that a
statute which may come up for consideration on a question of its validityunder Art. 14 of the Constitution, may be placed in one or other of the
following five classes:-
(i) A statute may itself indicate the persons or things to whom its provisions are
intended to apply and the basis of the classification of such persons or thingsmay appear on the face of the statute or may be gathered from the
surrounding circumstances known to or brought to the notice of the court. In
determining the validity or otherwise of such a statute the court has toexamine whether such classification is or can be reasonably regarded as
based upon some differentia which distinguishes such persons or things
grouped together from those left out of the group and whether such differentia
has a reasonable relation to the object sought to be achieved by the statute,no matter whether the provisions of the statute are intended to apply only to a
particular person or thing or only to a certain class of persons or things. Where
the court finds that the classification satisfies the tests, the court will
uphold the validity of the law, as it did in Chiranjitlal v. The Union of India (B)
(supra), The State of Bombay v. F. N. Balsara (C) (supra), Kedar NathBajoria v. The State of West Bengal, 1954 SCR 30; (AIR 1953 SC 404) (1), V.
M. Syed Mohammad & Company v. The State of Andhra, 1954 SCR 1117; (AIR1954 SC 314) (J) and Budhan Choudhry v.
The State of Bihar (A) (supra).
(ii)A statute may direct its provisions against one individual person
or thing or to several individual persons or things but, no reasonable basis ofclassification may appear on the face of it or be deducible from the
surrounding circumstances, or matters of common knowledge. In such a case
the court will strike down the law as an instance of naked discrimination, as
it did in Ameerunnissa Begum v. Mahboob Begum, 1953 SCR 404 ; (AIR 1953
SC 91) (K) and Ramprasad Narain Sahi v. The State of Bihar, 1953 SCR 1129 ;
(AIR 1953 SC 215) (L).
(iii)A statute may not make any classification of the persons or things for
the purpose of applying its provisions but may -leave it to the discretion of the
Government to select and classify persons or things to whom its provisions are
to apply. In determining the question of the validity or otherwise of such
a statute the court will not strike down the law out of hand only because no
Classification appears on its face or because a discretion is given to the
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40and ascertain if the statute has laid down any principle or policy for the guidance
of the exercise of discretion by the Government in the matter of the selection orclassification. After such scrutiny the court will strike down the
statute if it does not lay down any principle or policy for guiding the
exercise of discretion by the Government in the matter of selection orclassification, on the ground that the statute provides for the delegation of
arbitrary and uncontrolled power to the Government so as to enable it to
discriminate between persons or things similarly situate and that, therefore, the
discrimination is inherent in the statute itself. In such a case the court will strike
down both the law as well as the executive action taken under such law, as it
did in State of West Bengal v. Anwar, Ali Sarkar (D) (supra), Dwarka PrasadLaxmi Narain v. The State of Uttar Pradesh, [1954] S.C.R. 803 : (AIR 1954 SC
224)(M) and DhirendraKumar Mandal v. The Superintendent and
Remembrancer of Legal Affairs, 1955-1 SCR 224 : (AIR 1954 SC 424) (N).
(iv) A statute may not make a classification of the persons or things for the
purpose of applying its provisions and may leave it to the discretion of the
Government to select and classify the persons or things to whom itsprovisions are to apply but may
in the matter of such selection
at the same time lay down a policy
or principle for the guidance of the exercise of discretion by the Government
or classification, the court
will uphold the law as constitutional, as it did in Kathi Raning Rawat v.
The State of Saurashtra (E) (supra).
(v) A statute may not make a classification of the persons or things to whom
their provisions are intended to apply and leave it to the discretion of the
Government to select or classify the persons or things for applying those
provisions according to the policy or the principle laid down by the statuteitself for guidance of the exercise of discretion by the Government in the
matter of such selection or classification. If the Government inmaking the selection or classification does not proceed on or follow such policy
or principle, it has been held by this Court, e. g., in Kathi Raning Rawat
v. The State of Saurashtra (E) (supra) that in such a case the executive action
but not the statute should be condemned as unconstitutional.
In the light of the foregoing discussions the question at once arises:In
what category does the Act or the notification impugned in these
appeals fall ?” (emphasis supplied)
16. In the case of Maharashtra State Board of Secondary and Higher
Secondary Board(supra), while examining the validity of Regulation 104,
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41
the Court more or less re-stated the legal principle in the following words.
The relevant extract of Paragraph 14 reads thus:-
“…. In our opinion, this approach made by the High Court was not correct or
proper because the question whether a particular piece of delegated legislation-
whether a rule or regulation or other type of statutory instrument-is inexcess of the power of subordinate legislation conferred on the delegate as
to be determined with reference only to the specific provisions contained in
the relevant statute conferring the power to make the rule, regulation, etc. and
also the object and purpose of the Act as can be gathered from the
various provisions of the enactment. It would be wholly wrong for the courtto substitute its own opinion for that of the legislature or its
delegate as to what principle or policy would best serve the objects and
purposes of the Act and to sit in judgment over the wisdom and effectivenessor otherwise of the policy laid down by the regulation-making body and declare
a regulation to be ultra vires merely on the ground that, in the view of the
Court, the impugned provisions will not help to serve the object and purpose
of the Act. So long as the body entrusted with the task of framing the rules orregulations acts within the scope of the authority conferred on it, in the sense
that the rules or regulations made by it have a rational nexus with
the object and purpose of the Statute, the court should not concern
itself with the wisdom or efficaciousness of such rules or regulations. It is
exclusively within the province of the legislature and its delegate todetermine, as a matter of policy, how the provisions of the Statute can best be
implemented and what measures, substantive as well as procedural wouldhave to be incorporated in the rules or regulations for the efficacious
achievement of the objects and purposes of the Act. It is not for the Court to
examine the merits or demerits of such a policy because its scrutiny has to be
limited to the question as to whether the impugned regulations fall within the
scope of the regulation-making power conferred on the delegate by the Statute…”
(emphasis supplied)
17. We may also usefully refer to the dictum of the Apex Court in the
case of Bombay Dyeing & Manufacturing Co. Ltd. (3) supra. In
Paragraph 204 to 208 of the said decision, the Apex Court observed thus:-
“204. For the purpose of striking down a legislation on the ground of infraction
of the Constitutional provisions, the court would not exercise its jurisdiction only::: Downloaded on – 09/06/2013 15:06:48 :::
42because the recommendations of the committees had not been accepted in toto
but would do so inter alia on the ground as to whether they otherwise violate theconstitutional principles.
205. Arbitrariness on the part of the legislature so as to make the legislation
violative of Article 14 of the Constitution should ordinarily be manifest
arbitrariness. What would be arbitrary exercise of legislative power would
depend upon the provisions of the statute vis-a-vis the purpose and object
thereof. [See Sharma Transport v. Government of Andhra Pradesh, (2002) 2
SCC 188, para 25, Khoday Distillery v. State of Karnataka, (1996) 10 SCC 304
and Otis Elevator Employees’ Union S. Reg. and Others v. Union of India and
Others, (2003) 12 SCC 68, para 17].
206. In Om Prakash and Others v. State of U.P. and Others, [(2004) 3 SCC
402], this Court has held that the test of reasonableness is nothing substantially
different from social engineering, balancing of interests or any other formulae
which modern sociological theories suggest as an answer to the problem of
judicial interference.
207.
In Cipla Ltd. (supra), this Court in relation to a legislation while
interpreting the statutory provisions on the touchstone of Article 14 of the
Constitution of India, was of the opinion: (SCC p.9, para 4.1)
“[T]he Government exercising its delegated legislative power should
make a real and earnest attempt to apply the criteria laid down by itself.
The delegated legislation that follows the policy formulation should be
broadly and substantially in conformity with that policy, otherwise it
would be vulnerable to attack on the ground of arbitrariness resulting in
violation of Article 14.”
It was further opined:(SCC p.10, para 4.3.)
“Broadly, the subordinate law-making authority is guided by the policy
and objectives of the primary legislation disclosed by the preamble and
other provisions. The delegated legislation need not be modelled on a set
pattern or prefixed guidelines. However, where the delegate goes a step
further, draws up and announces a rational policy in keeping with the
purposes of the enabling legislation and even lays down specific criteria
to promote the policy, the criteria so evolved become the guideposts for
its legislative action. In that sense, its freedom of classification will be
regulated by the self-evolved criteria and there should be demonstrable
justification for deviating therefrom.”
208. The amendment to DCR 58 was carried out 10 years after the original
DCR 58 was introduced. Before doing so, due consultative process as laid down
in Section 37 of the MRTP which involves suggestions and objections from
public and the concerned statutory authorities was taken recourse to.
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43
Consideration of the same by Dy. Director of Town Planning and thereafter
promulgation of the same in the form of direct regulation establishes that the
same is not ex facie arbitrary in nature, particularly when most of the suggestions
of the said Committees were accepted.”(emphasis supplied)
18. In the case of Bhavesh D. Parish & ors. (supra) in Paragraph 23, the
Apex Court has adverted to the exposition of its earlier decision in R.K.
Garg’s case reported in (1981) 4 SCC 675 which in turn refers to the
opinion of Holmes, J. that the legislature should be allowed some play in
the joints because it has to deal with the complex problems which do not
admit of solution through any doctrinaire or straight jacket formula. In the
case of legislation, where, having regard to the nature of problems required
to be dealt with, greater play in the joints has to be allowed to the legislature.
Reference is then made to the opinion of Frankfurter, J. wherein he has
observed about the judicial self restraint if not judicial deference to
legislative Judgment. It is observed that the legislature after all has the
affirmative responsibility. The courts have only the power to destroy, not to
reconstruct. The Apex Court then went on to observe that the Court must
always remember that legislation is directed to solve problems, that laws
are not abstract propositions and do not relate to abstract units and are not to
be measured by extract symmetry; that extract wisdom and nice adoption
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44
of remedy are not always possible and that Judgment is largely a prophency
based on meagre and uninterpreted experience. It is then observed that
every legislation is essentially empiric and it is based on experimentation or
what one may call trial and error method and therefore it cannot provide for
all possible situations or anticipate all possible abuses. Further, there may
be crudities and inequities in complicated experimentally economic
legislation but on that count alone it cannot be struck down as invalid.
19.
Applying the exposition of the Apex Court which has been adverted
to hitherto, the question that immediately arises for consideration is whether
the amendment to Regulation-79 lacks legislative competence. No such
grievance has been made by the Petitioners. The grievance however, is of
decision taken in undue haste and without being alive to the issues of
adequate infrastructure and possibility of compromising academic
Standards or quality of education and more importantly inadequate number
of vacancies to accommodate all the failed students (eligible for ATKT).
Moreover, the amended provision results in discrimination as it excludes all
other students except the students who have appeared for the SSC
examination in March 2009 with all subjects but failed in not more than two
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45
subjects. In so far as the former grievance is concerned, the same is
inviting the Court to question the wisdom of the delegated legislation. By
now it is well established position that the Court should not concern itself
with the wisdom or efficaciousness of such rules or regulations. For, it is
exclusively within the province of the legislature and its delegate to
determine, as a matter of policy, how the provisions of statute can best be
implemented and what measures, substantive as well as procedural would
have to be incorporated in ig the rules or regulations for the efficacious
achievement of the objects and purposes of the legislation. It is not for the
Courts to examine the merits or demerits of such a policy because its
scrutiny has to be limited to the question as to whether the impugned
Regulation falls within the scope of the regulation making power conferred
on the delegate by the Statute. It is well established that there is always a
presumption in favour of the constitutionality of the enactment and the
burden is upon the Petitioners to show that there has been a clear
transgression of the constitutional principles. There is always presumption
that the legislature understands and correctly appreciates the need of its own
people that its laws are directed to problems made manifest by experience
and its discriminations are based on adequate grounds.
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46
20. In the present case, it is noticed that the proposal originated from the
opinion of the Academic Council of the Board which was formalized in the
meeting held on 29thJune, 2009. The said proposal was then scrutinized by
the Executive Council and later on by the State Board. Even the said two
statutory bodies after due deliberation recommended to seek approval of the
State Government. It is only thereafter the matter was considered at the
highest level by the State Government and approval was accorded on the
basis of which order was issued by the State Government. It is not in
dispute that the authorities have now complied with the due process of
issuance of notification dated 17th August, 2009 in the Official Gazette.
With the issuance of such notification the provision in Regulation 79 would
stand amended. Assuming that it is open to the Court to examine as to how
the provision can best be implemented and what measures substantive as
well as procedural would have to be incorporated for the efficacious
achievement of the objects and purpose of the amendment. The same can
be considered on the basis of the modalities envisaged by the Respondents to
ensure that quality of education is not compromised. The Respondents have
demonstrated as to how the loss of instructional hours would be made good
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47
within the available days during the academic year. A chart indicating that
position which was placed on record before us deals with that aspect. The
same reads thus:-
” Days available in the year Total Actual Teaching Extra curricular
activities and
examinations
June 14
July 26
August 22
September 22
October 9
93 77 16
November 24
December 25
January 22
February 21
March 23
April 24
May 4 143 114 29
Total 236 191 45
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48
● instructional hours every week = 40 periods of 40 mins. = 1600 mins
————-= 26.40 hours
60 mins. Per week
● 195 days of instructions = 33 weeks for 5th to 10th Standard -period = 30 mins.
● Only 27 weeks necessary for 11th and 12th Standard because period = 40 mins.
● If ATKT students start attending college/school from 10th September – loss of
instructional hours (26.6 hours per week x 30 days of actual teaching) = 133 hours
● Instructional days available – Ist Semester = 21 days
IInd Semester = 114 days
——————————-
Total = 135 days
● Extra 1 hour every day = 135 hours in the year
●
●
Examination in 6 subjects can be held over a period of 6 days
Instructions end on 31st March of Academic year
● Usually examinations begin on 1st April.
● Term ends on 6th May of Academic year.
● This year examinations can be held from 10th April = 10 days instructions extra
● Diwali vacation of 21 days can be curtailed by 12 days = 12 days instructions extra”
21. The question is whether the projection made by the Respondents of
extra hours of work and additional working hours during the vacations to
make good the loss of instructional hours would not be an achievable target.
We find that it is only an apprehension of the Petitioners without any
concrete basis that the Respondents would not be able to achieve this
target. Indeed, the Petitioners argued that it would create additional burden
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49
on the students on account of extra instructional hours. But, that is a matter
of choice of the students who want to opt for the ATKT facility. The said
facility is not compulsory at all. A student who opts for the said facility is
expected to be aware and conscious of the position that he would be required
to comply with the academic norms. The counter argument of the
Petitioners is that the teachers may not volunteer for such additional work
and more so during the time when they would be expected to also attend to
election work during the same period on account of impending elections to
Maharashtra Legislative Assembly. This is obviously hypothetical
argument. Further, the Respondents have relied on the guidelines issued in
relation to drafting of services of teachers for the election work. The said
norms will have to be adhered to before requiring the concerned teacher to
attend to the election duty. The norms clearly provide that the services of
teacher would be availed only after the regular school work is discharged.
The validity of provision, however, cannot be decided on the basis of such
hypothesis. Even the apprehension of the Petitioners that the vacancies
were not adequate to accommodate all the failed students (eligible for
ATKT). This apprehension is misplaced. For, the Respondents have
demonstrated that out of the failed students (eligible for ATKT) is only
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50
about 1,47,960, as against the total number of vacancies available
throughout Maharashtra to the extent of 1,72,320. The district-wise, stream
wise and intake capacity and vacancies chart for 11th Standard admission for
the year 2009-2010 has been produced alongwith affidavit which reads
thus:-
DISTRICT WISE, STREAMWISE INTAKE CAPACITY AND VACANCIES
FOR XITH Standard ADMISSION – 2009-2010
Sr. District/ Intake Stream
capacity wise
vacancies
Arts Science Commerce Compo Total Arts Science Commerc Composi Total
site e te
1 Mumbai 50135 75031 147424 4590 277480 9805 6935 11076 0 27816
Division
2 Latur 17880 12680 3080 2520 36160 7227 1977 770 657 10631
3 Usmanabad 12240 6360 1920 720 21240 4829 350 90 50 5319
4 Nanded 22400 16040 1920 1920 42280 12532 1366 617 284 14799
5 Nashik 31400 14940 10920 1760 59120 2176 254 212 67 2709
6 Dhule 13520 7200 1200 1120 23040 2474 432 149 165 3220
7 Jalgaon 28760 12160 4280 1960 46960 1812 111 204 65 2192
8 Nandurbar 9200 5120 720 400 15440 1627 488 209 70 2394
9 Aurangabad 41920 9620 3200 880 55620 3618 1652 455 87 5812
10 Jalna 13440 3120 1760 80 18400 2886 1404 916 0 5206
11 Parbhani 14960 6880 1680 400 23920 200 250 210 130 790
12 Hingoli 6560 2720 400 160 9740 1598 622 55 0 2275
13 Beed 18960 10080 720 2320 32080 7874 2826 480 419 11599
14 Nagpur 37280 20720 14500 8320 80820 576 161 97 85 919
15 Chandrapur 20900 7180 2040 880 30760 3045 1230 770 150 5195
16 Gondia 13040 6040 560 840 20480 1523 1710 100 74 3407
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51
17 Bhandara 12680 4920 480 480 17560 1505 403 101 43 2052
18 Gadchiroli 11400 3520 680 0 15600 406 219 10 32 667
19 Wardha 9175 3440 650 1740 15005 951 636 317 11 1915
20 Pune 24165 28820 25460 3480 83610 1960 450 1500 0 3910
21 Solapur 26480 11400 4820 1640 44440 3310 0 0 0 3310
22 Ahmednagar 27400 21400 8000 1240 59280 4351 944 1992 24 7311
23 Amravati 15800 7300 900 3880 27880 2775 420 188 335 3718
24 Akola 10490 5760 1340 1220 18810 2243 746 110 156 3255
25 Yewatmal 14160 5340 960 1360 21820 5268 1238 280 228 7014
26 Buldhana 12860 6140 940 1440 21380 254 18 6 9 287
27 Vashim 7740 3100 240 1020 12100 291 10 10 9 320
28 Kolhapur 23600 13560 9280 3600 50040 7489 2494 1777 569 12329
29 Sangli 15160 10960 4880 2200
ig 33200 5705 1538 786 352 8381
30 Satara 17440 11640 6680 3280 39040 5384 846 1167 474 7871
31 Sindhudurg 3080 2040 1800 2520 9440 583 382 173 140 1278
32 Ratnagiri 6400 4640 4920 2120 18080 1919 1166 939 395 4419
Total 590625 359871 268654 60090 1279240 108196 33278 25766 5080 172320
The figures so furnished on affidavit have not been challenged. The
argument of the Petitioners, however, is that the total number of seats are
far less than the total number of passed students. That anamoly has been
answered by the Respondents on the argument that all the passed students do
not take admission only in XI Standard or Junior Colleges, but some of
them opt for other courses. As a result the seats in XI Standard or Junior
Colleges are still available to the extent of 1,72,320. There is no material
to doubt the correctness of this stand. In other words, although the
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52
admission process of the passed students is completed, there are still
1,72,320 vacant seats available in the Junior Colleges or XI Standard
against which all the failed students (eligible for ATKT) about 1,47,960 can
be easily accommodated.
22. A priori, the grievance of the Petitioners that there is possibility of
breach of academic Standards or quality of education or that of inadequate
vacancies and infrastructure cannot be countenanced.
ig Even if this Court
were to examine the steps taken by the Respondents for the efficacious
achievement of objects and purposes of the amendment, as observed by
the Apex Court, it is not for the Courts to examine the merits or demerits of
a policy because a scrutiny has to be limited to the question as to whether
the impugned Regulation falls within the scope of regulation making power
conferred on the delegate by the Statute. As aforesaid, no such contention
has been advanced by the Petitioners in the present case. The argument of
inadequate infrastructure and decision taken in haste is on the hypothesis
that of impossibility of efficacious achievement of the objects and purposes
of the amendment.
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53
23. That takes us to the question as to whether the amended provisions
would result in discrimination. That question will have to be answered on
the basis of amended provision introduced by way of notification dated 17th
August, 2009. We have already reproduced the said provision hereinbefore.
On the plain language of this provision, it is noticed that the same overrides
the eligibility criteria prescribed in sub-rule (1) of Regulation 79. In that, in
so far as the students who have appeared for the Secondary School
Certificate Examination (Standard X) conducted by the Board in March
2009 with all subjects but failed in not more than two subjects have been
made eligible to take provisional admission by allowing them to keep terms
(ATKT) to the first year of junior college or Higher Secondary Schools, as
the case may be, affiliated to the Board from the current academic year. It
then provides that such students would be obliged to appear for the October
examination to be held by the Board in the respective academic year with the
subjects in which he has been given the facility to keep terms (ATKT). That
compliance has been made compulsory. It then provides that if the said
student fails in that examination, he will get last opportunity to clear the
subject(s) in the final examination of that Academic Year. It also provides
that a student, who is availing of the facility to keep terms (ATKT), shall not
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54
be eligible for admission to Standard XI in Science stream of Junior college
or Higher Secondary Schools, as the case may, unless he has secured more
than 40% marks in Science subjects. It further postulates that at the time of
taking October examination or annual examination of such students for the
subjects in which he has failed, the State Board shall arrange only written
examination of such students and marks of the earlier examination practical
and oral and internal valuation of the said subject shall be taken into
consideration for passing of respective subjects. Lastly, such student shall
not be entitled to his result of Standard XI examination and shall not be
eligible for admission to Standard XII till he successfully passes the said
subjects in which he has failed in Secondary Certificate Examination
(Standard X).
24. We shall revert back to the argument about this provision being
discriminatory a little later. Before that we would first deal with the
argument canvassed on behalf of the Petitioners that the student who avails
of ATKT facility will not be eligible for admission to Standard XI in
Science stream of the junior college or Higher Secondary School unless he
has secured more than 40% marks in Science subject. Moreover, after
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55
securing admission to some other steam, if such student was to later on pass
the failed subjects would be denied opportunity of shifting to Science
stream. This argument does not commend to us. This argument clearly
overlooks the fact that the student would take admission on his own volition
and it is not a compulsory admission. If he has taken admission to any
other stream of his choice, he cannot later on be heard to make grievance
that he has been denied opportunity to shift to Science stream after having
passed all the subjects of SCC course. This provision by no Standards can
be said to be unreasonable-as it provides further minimum qualification of
specified class of students having secured more than 40% marks in Science
subjects as pre-condition for being eligible for admission to Standard XI in
Science stream of junior college or Higher Secondary Schools. In other
words, all similarly placed students who have secured less than 40% marks
in Science subjects have been considered as ineligible to get admission in
Science stream in Standard XI. The student has a choice to skip over the
facility of ATKT and appear in all subjects in the following SSC
examination if he wants to improve upon his marks in Science subjects or to
improve his prospects for admissions to Science stream. However, the fact
that he is denied opportunity to change the stream to Science stream of the
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56
junior college cannot be the basis to hold that the provision is discriminatory
as such. The right to be admitted to any course ought to be governed by the
Regulation in place. It is not open to the students to claim that irrespective
of the eligibility criteria, they should be admitted to course of their choice.
Suffice it to observe that there is no force in this argument of the
Petitioners.
25. The principal grievance regarding amendment being discriminatory
and unreasonable is in the context of the criteria applied in the first part of
the amended Regulation. It extends only to such students who have
appeared in the Secondary School Certificate Examination “in March 2009”
with all subjects but failed in not more than two subjects. In so far as this
grievance is concerned, the same will have to be considered in the context
of whether the classification carved out by this amendment is reasonable
classification in the context of the purpose of the legislation. To pass the
test of permissible classification, two conditions will have to be fulfilled.
Firstly, the classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped together from others
left out from the group. Secondly, that differentia must have a rational
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relation to the object sought to be achieved by the statute in question. The
question is whether there is nexus between the basis of classification and
the object of amendment under consideration. The object of the amendment
under consideration is highlighted in the documents relied by the
Respondents. It is founded on the underlying purpose of ensuring that the
students remain in the education stream and more so do not loose out their
one academic year. This is the laudable purpose for which the change has
been brought about. That purpose applies proprio vigore to the students
who are similarly placed(having appeared in the SSC examination with all
subjects but failed in not more than two subjects), but have had appeared in
the Secondary School Certificate Examination (Standard X) in exams
conducted other than in March 2009. Thus understood, there is no nexus
between the basis of classification and the object of the provision so as to
exclude the others. From the plain language of the amended provision it
does appear that it is intended to give one time benefit only to students who
have appeared in the SSC examination “in March 2009” with all subjects but
failed in not more than two subjects. There is no nexus for such
classification and carving out class of students, having regard to the object
sought to be achieved by the amendment. In our opinion, the classification
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is not founded on any intelligible differentia which distinguishes persons or
things that are placed together from others left out of the group except to
identify them in the context of having appeared in the examination
conducted by the Board in March 2009 with all subjects. That differentia
has no rational relation to the object sought to be achieved by the legislation
in question. Viewed thus, the first part of the amended provision results in
discrimination and is arbitrary and hit by Article 14 of the Constitution of
India.
26. A priori, the provision appearing in the first part of this amended
provision will have to be struck down as unconstitutional. The remaining
provision is however, only consequential and of application of the scheme to
the eligible students. For that reason, even the same would become
redundant. The question is instead of striking down the entire first part of
this amended provision as a whole, is it possible to preserve the provision by
severing the unreasonable part thereof. The unreasonable part is on account
of the scheme is made applicable only to students who have appeared in the
examination “in March 2009″ with all subjects but failed in not more than
two subjects. If the expression ” in March 2009″ is to be struck down from
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the first part of the amended provision, in that case the amendment would
become applicable to all students similarly placed-whether having appeared
for the examination in March 2009 or otherwise. That would efface the
discrimination and all students similarly placed would be treated as equals.
In that, irrespective of when the student has had appeared for the SSC
examination with all subjects but failed in not more than two subjects, he
would become eligible for being considered for ATKT facility and to take
provisional admission to the First Year Junior College or Higher Secondary
School as the case may be. In that case, the object of the amended
Regulation to facilitate the students to save their one academic year and to
dissuade them from dropping out of the education stream will be
accomplished even in respect of such students. Indeed, in this process the
students who have appeared in the examination with all subjects in anterior
point of time but failed in not more than two subjects and who were
otherwise ineligible till now to take provisional admission in the first year of
junior college or Higher Secondary Schools, as the case may be, would
become eligible to do so. However, their eligibility would be prospective
from the introduction of the amended provision from the current Academic
Year 2009-2010. That is permissible. Moreover, that would not affect the
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students who have passed and already secured admission. It would also not
discriminate between the failed students who are similarly situated. One of
the grievance made by the Petitioners is that the students eligible for ATKT
may have to secure admission in private colleges which are run on unaided
basis and will have to therefore pay high fees. As is noticed earlier, availing
of ATKT facility is not compulsory. It is plainly optional. If the student is
interested in getting admission, he does so by choice. More so, the claim
of the specified students shall have to be considered alongwith other
students similarly placed on inter se merit. Besides, in so far as the
apprehension of the Petitioners that the facility is available only as one time
measure also stands answered on the basis of the stand taken by the
Respondents, in particular in the affidavit of the Joint Secretary of the
Government dated 1st September, 2009, which states that the State
Government has taken a policy decision in order to maintain students in the
education stream and to obviate the high drop out rate. For which reason,
the State has decided to adopt the policy of having supplementary
examination and/or ATKT which is not a one time experiment but will be
consistently followed in the years to come. The affidavit, however, records
that from the next year the policy decision will be implemented on the basis
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of the report of the Expert Committee which is set up to consider the
supplementary examination pattern. Suffice it to observe that till any other
change is brought about by following due process, the eligible students
would be free to avail of ATKT facility. On this analysis, the amended
provision would not be a one time arrangement but a policy to be
consistently followed for the present (from Academic Year 2009-2010) as
well as for the future academic years till suitably altered by following due
process. Indeed, the authorities are free to consider the efficaciousness of
the policy of ATKT on the basis of their experience.
27. The grievance of the Petitioners that ATKT facility can be no
substitute for the supplementary examination though seem to be attractive,
does not take the matter any further. It is essentially a policy matter.
Indeed, the admission to junior college is of students converging from
different Boards, such as ICSE, CBSE, SSC etc. The change has presently
been introduced by way of amendment to Regulation of 1977 only, in
respect of students who have appeared for SSC examination. It is also true
that Standard X in SSC examination, which is the final examination of that
course; and the XI and XII Standard would be a different course of Higher
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Secondary School Certificate Examination. In other words, the two courses
are different. The stand of the State Government however, is that, it is one
course in two steps. Nevertheless, it is noticed that both the courses are
regulated under the umbrella of one State Board constituted under the
provisions of Act of 1965. As aforesaid, it is matter of policy providing for
eligibility for admission to Standard XI or junior colleges.
28. We are inclined to uphold the validity of amended provision subject to
striking down the offending part therein. It will be open to the Respondents
to commence the admission process of students eligible for ATKT facility
subject to ensuring that the same is purely on inter se merit and upon
fulfilling the essential academic norms. Indeed, the Regulation by itself
does not provide for the mechanism that will be adopted by the
Respondents to admit such students against the vacant seats. The break up
of vacant seats has been furnished to us, which is referred to earlier. It is
noticed that the vacant seats are spread out in different Schools and Junior
colleges within the districts. Since the admission process of passed
candidates is already completed, it is quite possible that in a given school all
the seats for XI Standard have already been exhausted by now. In case of
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such school, the eligible students for ATKT though from the same school
may not be in a position to get in-house admission. But he may have to be
content with taking admission to some other school or junior college where
vacant seats are available. The students cannot have any right to get
admission in the same School from where they have appeared for X
Standard examination if the seats of Standard XI of that school are already
filled up on the basis of merit by the passed students. Besides, the students
eligible for admission on account of ATKT facility cannot be heard to insist
for admission in the same school even though they have secured less marks
than the merit (passed) candidates. The Respondents shall ensure that the
seats available in all the schools or junior colleges should be first filled up
by the passed students in order of merit and only the left over seats if any
should be offered to the students seeking admission on ATKT facility. In
other words, the passed students shall get precedence of admission in the
schools or Junior colleges of their choice in order of merit. Notably, the
provision is only an enabling provision providing an opportunity or
concession to the specified students to avail of ATKT facility. The fact that
this change has been introduced after declaration of results, therefore, would
make no difference. The specified students would form a class by
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themselves and their admission will have to be governed on the basis of inter
se merit while ensuring that the academic norms are not compromised in
any manner.
29. We hope and trust that the Respondents before commencing the
admission process would first formulate proper guidelines in this behalf so
as to ensure that the students availing of ATKT facility are admitted on
interse merit. The Respondents may consider of evolving a transparent
mechanism for admission of students seeking admission on the basis of
ATKT facility, treating them as a separate class than the passed students
whose admission is governed by principle of merit. At the same time, the
Respondents will have to keep in mind that the norms regarding
maintenance of quality education are in no way compromised or relaxed
either with regard to the instructional hour or for that matter of opening of
new or additional division in a given school or junior college.
30. We direct the Respondents to ensure that admission to eligible
students availing ATKT facility is continued in future on the same lines as
for the current year 2009-2010-as that alone would efface the plea of
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discrimination, until any other change is introduced by following due
process. We also direct the Respondents to ensure creation of proper
infrastructure in the respective Schools/ Junior Colleges in conformity with
the mandatory norms in place before admissions are given, since around
1,50,000 students will become eligible to seek admissions as per the new
regime.
31. Taking over all view of the matter, therefore, we are of the considered
opinion that the amended Regulation 79(1A) is valid except the offending
part thereof. In other words, expression “in March, 2009” appearing in the
first part of the said provision is struck down being discriminatory and
unreasonable. Rest of the provision is valid and intra vires the Constitution
and the relevant Act and Regulation. We hope and trust that the
Respondents would commence the admission process of students eligible for
ATKT facility only after being satisfied that the norms to maintain quality of
education in respect of instruction hours or adequate staff pattern etc., in the
concerned school/junior college, where such students will be admitted, is in
place and in conformity with the prescribed Act, Rules and Regulation.
Further, the admission of eligible students for ATKT shall be strictly on the
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basis of inter se merit against the left over vacant seats by following a
transparent mechanism such as by periodical publication of updated
information with regard to the names of schools and junior colleges, district-
wise and stream-wise, of vacant seats available for admission therein-so as
to facilitate the eligible students to take an informed decision. The
information shall be displayed not only in the respective schools and junior
colleges but also in the offices of Department of School Education, State of
Maharashtra as well as of the Maharashtra State Secondary and Higher
Secondary Education Board, Pune respectively and at suitable locations to
give wide publicity thereof so as to disseminate the required information, in
addition to displaying the said information on their respective web-sites on
internet. We direct the Respondents to give wide publicity of the guidelines
to be formulated by them to govern the admission process of students
eligible for ATKT facility; and also notify the names and designation of
officers, who would be responsible to oversee not only transparency in the
admission process, but also oversee that the admissions are given by the
respective schools and Junior colleges strictly on the basis of inter se merit
of the eligible students.
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32. Accordingly, we pass the following order.
(1) This Public Interest Litigation partly succeeds.
We strike down only the offending words “in March 2009”
appearing in the first part of the amended Regulation 79(1A)
being arbitrary, unreasonable and unconstitutional. The rest of
the amended Regulation 79(1A) is declared valid and intra
vires.
(2)
The Respondents are directed to adhere to the
admission process governed by the amended provision as has
been upheld, keeping in mind the observations made by us in
this Judgment in Paragraphs 28 to 31 respectively.
(3) The Civil Application is allowed. Amendment be
carried out within one week from today.
(4) No order as to costs.
CHIEF JUSTICE
A.M.KHANWILKAR, J
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