{"id":218520,"date":"2008-08-25T00:00:00","date_gmt":"2008-08-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/fransisco-d-luis-vs-state-of-maharashtra-ors-on-25-august-2008"},"modified":"2018-03-29T09:11:44","modified_gmt":"2018-03-29T03:41:44","slug":"fransisco-d-luis-vs-state-of-maharashtra-ors-on-25-august-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/fransisco-d-luis-vs-state-of-maharashtra-ors-on-25-august-2008","title":{"rendered":"Fransisco D. Luis vs State Of Maharashtra & Ors on 25 August, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Fransisco D. Luis vs State Of Maharashtra & Ors on 25 August, 2008<\/div>\n
Bench: A.P. Deshpande<\/div>\n
                                               1\n\n                                          \n                   IN  THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                         \n                              CIVIL APPELLATE  JURISDICTION\n\n\n\n\n                                                                 \n                  PUBLIC INTEREST  LITIGATION  NO. 94 OF  2008\n                                 ALONGWITH\n                      CIVIL APPLICATION NO.  37 OF 2008.\n\n\n\n\n                                                                \n         Fransisco  D. Luis          ......     .......          Petitioner\n                   versus\n         State of Maharashtra & ors      ........ Respondants.\n\n\n\n\n                                                   \n         Mr.  P.M. Pradhan for  the  Petitioner.\n                                  \n         Mrs. Jyoti Pawar Addl.G.P. A\/w  Mrs. M.P. Thakur AGP for State.\n                                 \n         Ms. Rajani Iyer a\/w N. H. Seervai  and  Sharan Gajtiani i\/b M\/s.\n         Desai & Diwanji   for the Intervener.\n\n         Mr. T. N. Subramanium a\/w Mr. Naushad Engineer , Hemant\n           \n\n\n         Shah, Neeta Jain i\/b I.C. Legal for ISCE.\n        \n\n\n\n         Mr. Mihir Desai for applicant in C.A. 37\/08.\n\n                                           CORAM: SWATANTER  KUMAR, C.J., &\n\n\n\n\n\n                                                         A.P. DESHPANDE,  J.\n\n                                           DATED:      TH AUGUST  2008.\n\n\n\n\n\n         JUDGMENT ( Per A.P. DESHPANDE, J):\n<\/pre>\n
         1.           Legality and validity of a statistical formula described as
\n         “percentile”  introduced   by  the   State   Government  for   regulating<\/p>\n
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\n                                         2<\/span><\/p>\n
    admission of the students to 11th standard has been challenged by<\/p>\n
    this petition, filed in the pubic interest.   Students who pass the
\n    10th  standard   examination   from   various   Boards     such   as   SSC<\/p>\n
    Board,   ISCE   Board,   CBSE   Board     are   eligible   for   seeking
\n    admission to 11th standard\/1st year of the junior college in schools
\n    and   colleges   affiliated   to   the   SSC   Board.     Prior   to   the<\/p>\n
    commencement of   academic year 2008-09 students who passed
\n    10th standard examination from all the Boards were treated alike<\/p>\n
    and  their inter-se merit was judged on the basis of the percentage
\n    of   marks   secured   by   them   in   the   10th  standard   examination<\/p>\n
    conducted   by   the   respective   Boards.     By   introducing   the<\/p>\n
    “percentile” formula, the criteria for admissions prevailing prior to
\n    this   year   has   been   given   a   go-by   and   the   admissions   in   the
\n    academic   year   2008-09   are   regulated   by   the   “percentile   rank”\n<\/p>\n
    assigned to the students by application of the formula with which<\/p>\n
    we will be dealing with in the later part of the judgment.\n<\/p>\n
    Perception of the State Government.\n<\/p>\n
    2.          The   number   of   students   appearing   in   the   SSC,   ICSE,
\n    CBSE and other Boards vary drastically in as much as more than<\/p>\n
    15.5   lacs   students   appeared   for   10th  standard   examination
\n    conducted   by   SSC   Board,   whereas   about   15,000   students
\n    appeared from CBSE Board and  about 1200 students from ICSE
\n    Board.     The   different   boards     have   their   own   syllabus   and<\/p>\n
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\n                                           3<\/span><\/p>\n
    subjects, different pattern of examination and different standard<\/p>\n
    of   evaluation.   It   was   found   difficult   by   the   State   and   its
\n    authorities to compare the interse merit of the students passing<\/p>\n
    from   different   Boards,having   regard   to   the   disparities.   It   was
\n    perceived that some of the Boards evaluate the performance of
\n    the students at   the examination liberally and thus the students<\/p>\n
    from the said Board are   placed in an  advantageous  position as
\n    compared   to   the   other  Boards.   With   a   view   to   standardise     or<\/p>\n
    normalise the  percentage of marks secured by the students from
\n    different Boards, a need to evolve a formula was felt by the State.\n<\/p>\n
    It   is   not   in   dispute   that   the   examination   conducted   by   the<\/p>\n
    different   Boards   do   not   have   the   same   subjects   and   the   same
\n    option   in     relation   to   the   subjects.   The   total   number   of   marks
\n    allotted   by   the   Boards   as   well   defer.   The   syllabus   so   also   the<\/p>\n
    question papers are not the same.  Thus the State Government has<\/p>\n
    come   out   with   the   “percentile”   formula.   While   introducing   the
\n    formula the State Government assumed that the first ten students
\n    from   the   three   Boards   viz.   SSC,   ICSE   and   CBSE   are   equally<\/p>\n
    meritorious and hence issued a Government Circular on 27thJune
\n    2008 and introduced the formula.  Perusal of the  circular reveals
\n    that having regard to the difference in the pattern of examination,<\/p>\n
    subjects,scheme of marking and the strata of the class of students
\n    catarred by the different Boards, normalisation was felt necessary
\n    to   be   introduced.       Due   to   dis-similarity   in   the   pattern   of<\/p>\n
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\n                                                4<\/span><\/p>\n
    examination, the students from SSC Board suffer and do not get<\/p>\n
    admission   to  the  preferred colleges,  whereas   the  students from
\n    other Boards get admission in such colleges as their percentage is<\/p>\n
    higher. With a view to   facilitate securing of admissions for the
\n    students   passing   fromSSC   Boards   in   preferred   colleges,   the
\n    circular came to be issued introducing the “percentile” formula.\n<\/p>\n
    The percentile formula has been stated  in Schedule `A’
\n                                                           annexed
\n    to the circular.  Schedule A is reproduced herein below.\n<\/p>\n
                                 Annexure `A’
\n                          FORMULA OF PERCENTILE RANK<\/p>\n
    1   Average maximum marks of percentage of first 10          =A
\n         students passing through in various Divisional<\/p>\n
         Examination Boards.<\/p>\n
\n    2   The student whose  percentile rank is to be                     =M\n          obtained his actual marks (percentage)\n      \n\n    3   The  Percentile marks of that student                              =P\n                                                                                        =P=100x\n   \n\n\n\n    (M)\n                                                                                                (A)\n    Example :-\n<\/pre>\n
    ———————————————————————\n<\/p>\n
    1   Average maximum marks of percentage of first 10     =93.66%
\n         students passing through in various Divisional
\n         Wxamination Boards.<\/p>\n
\n    2   The student whose  percentile rank is to be                =90.16%\n\n\n\n\n\n          obtained his actual marks (percentage)\n    3   The  Percfentile marks of that student                              =P\n                                                                                  =P=100x\n    (90.16)\n                                                                                            (93.66)\n\n\n\n\n                                                                    ::: Downloaded on - 09\/06\/2013 13:43:38 :::<\/span>\n                                                             5<\/span>\n\n                                                                                = 96.26%\n\n\n\n\n                                                                                                              \n    BOARD                        S.S.C.               C.B.S.E.               I.C.S.E. \n    Average maximum       Actual               Actual                Actual\n\n\n\n\n                                                                                      \n    marks\/percentage     Percentile        Percentile         Percentile\n    obtained by first         94     100        97      100         96      100\n    10 students                (Topper)          (Topper)          (Topper)\n    Actual Marks of\n\n\n\n\n                                                                                     \n    percentage obtained\n    by a student those       89.3    95        92.15    95      91.2   95\n    who have applied \n    for admission\n\n\n\n\n                                                                  \n<\/pre>\n
    ———————————————————————————————–\n<\/p>\n
    3.<\/p>\n
                      It  will  be  thus    seen that  by applying the   percentile
\n    formula,   the   percentile   rank     is   arrived   at   in   respect   of   each<\/p>\n
    student   and   the   schools   and   colleges   have   been   instructed   to
\n    admit the students with reference to the percentile rank and not
\n    with   reference   to   the   percentage   of   marks   secured   in   the   10th<\/p>\n
    standard examination.   The percentile rank is thus notional and<\/p>\n
    would vary depending upon the percentage of marks secured by
\n    ten toppers from the respective Boards.\n<\/p>\n
    4.                According    to     the   State,   the   marking   system  in   the
\n    examination   of   10th  std.   from   ICSE     and   CBSE   Board   is   more
\n    objective   whereas   the   one   in   SSC   Board   is   comparatively<\/p>\n
    subjective.    The Under Secretary  for the  State  Government has
\n    placed on record the comparative information in regard to SSC,
\n    ICSE and CBSE Boards   relating to the conduct of 10th  standard<\/p>\n
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\n                                         6<\/span><\/p>\n
        examination,  which brings about differences in the examinations<\/p>\n
        conducted by the respective Boards. The same is as under:\n<\/p>\n
                              ANNEXTURE -1<\/p>\n
    MAHARASHTRA    STATE    BOARD   OF   SECONDARY   AND  HIGHER
\n    SECONDARY EDUCATION, PUNE<\/p>\n
                         S.S.C.,  I.C.S.E.  AND  C.B.S.E. <\/p>\n
\n                            \n                         SCHEME OF EXAMINATION\n           \n        \n\n\n\n\n\n                 COMPARATIVE           INFORMATION\n\n\n\n\n\n<\/pre>\n
           COMPARATIVE INFORMATION REGARDING SCHEME OF EXAMINATION
\n                              S.S.C.,  C.B.S.E.,  AND  I.C.S.E.,<\/p>\n
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\n                                                                 7<\/span><\/p>\n
    Compulsory
\n    Subjects.<\/p>\n
\n\n\n\n\n                                                                                                                     \n         Languages                 Three languages as               Any two languages English compulsory\n                                   per three language                    from thirty                        (80+20)\n                                    formula   80+20\n\n\n\n\n                                                                                          \n                                                                         languages\n                                  (Marathi, Hindi and                            (100)\n                                     English are\n                                    compulsory (300)\n\n\n\n\n                                                                                         \n     Other compulsory             Mathematics 120+30 Mathematics  100                             Group one English\n     subjects.                    Science and                     Science and                                    80+20\n                                  Technology  80+20               Technology  60=40\n                                                                           Second language\n\n\n\n\n                                                                       \n                                  Social Science80+20 Social science 80+20                80+20\n<\/pre>\n
                                  Total six subjects  Total Five subjects Social Science80+20<\/p>\n
                                  Total Marks  650                Total Marks  500                Environmental Edn.\n<\/p>\n
                                                                                                                  80+20<\/p>\n
                                                                                                  Group Two
\n                                                                                                  Any two or one
\n                                                                                                  subject from 600<\/p>\n
                                                                                                  Mathematics<\/p>\n
                                                                                                  Science and
\n                                                                                                  Technology
\n                                                                                                  Commerce
\n                                                                                                  Organisation of <\/p>\n
                                                                                                  commerce
\n                                                                                                  Engineering,
\n                                                                                                  ArticleForeign
\n                                                                                                  language.\n<\/p>\n
                                                                                                  Classical language.\n<\/p>\n
                                                                                                  Computer science.\n<\/p>\n
                                                                                                  Agricultural Science,
\n                                                                                                  EVS.\n<\/p>\n
                                                                                                      Group Three.\n<\/p>\n
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\n                                                       8<\/span><\/p>\n
                                                                               (only one subject
\n                                                                               from group two is<\/p>\n
                                                                               selected then one
\n                                                                               subject is
\n                                                                               compulsory)<\/p>\n
                                                                               Art. Music, Home
\n                                                                               Science Cookery
\n                                                                               Niddle  Work
\n                                                                               physical  edu.\n<\/p>\n
                                                                               Computer Appln<\/p>\n
                                                                               Financial Appln
\n                                                                               etc.(13 subjects)
\n                                                                               Total Marks =500<\/p>\n
        Additional subject        No  provision            One subject from          Seven subjects are
\n             subjects                   ig                     Note: 1 Three       compulsory. Three
\n                                                                                  language study upto
\n                                                           language formula is
\n                                                                                      std.VIII. Hindi
\n                                                          application upto std .\n<\/p>\n
                                                                                 compulsory for Indian
\n                                                            VIII is compulsory.<\/p>\n
\n                                      \n                                                                                   students. Supw and\n                                                          2. Hindi and Ebnglish    community service\n                                                           are compulsory upto       are compulsory.\n                                                               std. VIII and      Evaluation at school\n                                                           3. for std.X any two            level.\n              \n\n\n                                                               languages are\n                                                                compulsory.\n           \n\n\n\n    Other compulsory          Environmental       Work Education or\n                              Education  60+40    pre=vocational\n    subjects.\n                              Health and phy.Edu. Education 75+75\n\n\n\n\n\n                              25+25               Painting      100\n                              Personality              Music           25<\/span>\n                              Development 50           Home Science 75\n                                                       Introduction to IT 40\n\n\n\n\n\n                                                            \n    Optional subjects  Work Experience\n                                  (one from 36 subjects) 100\n                                     or\n                                     pre-vocational Education\n                                  Social Service N.C.C.\n\n\n\n\n                                                                            ::: Downloaded on - 09\/06\/2013 13:43:39 :::<\/span>\n                                                        9<\/span>\n\n                                  Scout Guid etc. (100)\n\n\n\n\n                                                                                                    \n                                                    \n\n\n\n\n                                                                            \n            ITEM                      S.S.C.                     C.B.S.E.                 I.C.S.E.\n    Passing scheme            35% for passing       33% for passing in            35% or passing\n                              Minimum C Grade each internal and                   candidate must pass\n\n\n\n\n                                                                           \n                                                    theory, practical etc.        in five  subjects and\n                              for other             (no combine                   passing in Engliosh\n                              schoolssubjects three passing)                      is compulsory.\n                              language group                                      Compulsory passing\n                              science and                                         in supw. And\n\n\n\n\n                                                            \n                              Mathematics                                         community service.\n                              combine passing\n                                        ig                                        Combined passing\n                              automatic                                           (theory and internal)\n                                                    No Automatic                  No automatic\n                              condonation is        condonation.                  condonation.\n                              applicable.\n                                      \n    Class Improvement         Scheme is available Scheme is available             No provision.\n                              for all subjects. (only for all subjects.\n                              once)                   (twice)\n             \n\n\n    Passing Certificate       Certificate is      Certificate is      Certificate is\n<\/pre>\n
                              awarded only passed awarded only passed awarded only passed<\/p>\n
                              students            students            students.<\/p>\n
\n    Availability of           No provision                15 minutes              15 minutes\n    question paper\n    reading time \n\n\n\n\n\n    School Attendance         75%.                        75%.                    75%.\n\n\n\n<\/pre>\n
    Reference:   Syllabi,   Maharashtra   State   Board   of   Secondary   and  <\/p>\n
                        Higher Secondary Education.\n<\/p>\n
                        CBSE and ICSE.\n<\/p>\n
                                                                          Secretary.\n<\/p>\n
                                                                          State Board, Pune\n<\/p>\n
    ———————————————————————————————\n<\/p>\n
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\n                                         10<\/span><\/p>\n
    Thus, according to the State Government, the  “percentile” formula<\/p>\n
    has been evolved to standardise  or normalise the marks obtained
\n    by the student from different Boards.   In the opinion of the State
\n    treating the students from different Boards equally as was   being<\/p>\n
    done earlier, was violating the equality clause as  unequals were
\n    being treated equally and thus the formula was evolved which has
\n    benefited the students passing 10th standard examination from SSC<\/p>\n
    Board.\n<\/p>\n
    5.          The   learned   counsel   for   ICSE   Board     has   applied   for<\/p>\n
    intervention   and   we   had   permitted   the   same.     Few   other
\n    associations of  teachers and parents  have also intervened in the<\/p>\n
    matter,   and their interventions are also allowed and all have been
\n    afforded an opportunity of hearing.   In the first place the learned<\/p>\n
    counsel appearing for ICSE, who is supporting the petitioner has
\n    raised   preliminary   objection   to     the   very   application   of   the<\/p>\n
    `percentile’
\n                to students from different Boards being misconceived
\n    and   wholly   in-appropriate.     In   his   submission   only   the   students
\n    who pass the same examination conducted by the same Board such<\/p>\n
    as   eight Divisions of the SSC Board could be subjected to   the
\n    percentile formula.   It is submitted that,   if the course   and the
\n    syllabus is different, if the question papers   are different and the
\n    performance   of   the   students   have   been  evaluated   at   a   different<\/p>\n
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\n                                           11<\/span><\/p>\n
    touch-stone,  with   a   different  pattern examination, it is not at<\/p>\n
    all   possible   to   apply   percentile   formula   for   normalisation   or
\n    standardisation of the marks.  He has placed on record  a print out<\/p>\n
    from   Wikipedia,   the   free   encyclopedia,     from   the   web   site   of
\n    http.\/\/en.wikipedia.org\/wiki\/Percentile_rank,   which   goes   to
\n    indicate that the percentile method can be applied when students<\/p>\n
    are similarly situate.  Barring the said document, no other material
\n    has   been   placed   on   record   to   substantiate   the   contention   that<\/p>\n
    percentile   method   cannot   be   applied     when   the   students   come
\n    from different streams, on passing   dis-similar examinations with<\/p>\n
    different evaluation  mechanism.   No authentic material and data<\/p>\n
    has   been   placed   on   record   to   enable   me   to   hold   that   the   State
\n    government could not have introduced the percentile formula for
\n    normalisation  of  the marks  secured  by  the students  passing  10th<\/p>\n
    standard examination from different Boards.   I am   conscious of<\/p>\n
    the fact that the court lack expertise in this area and thus choose to
\n    refrane   from   holding,     as   sought   by   the   ICSE   Board,     that   the
\n    percentile   formula   itself   could   not   have   been   applied   to   bring<\/p>\n
    about   normalisation   of   percentage   of   marks   secured   by   the
\n    students from different Boards.   This brings me to  consider other
\n    challenges   raised   by   the   petitioner       and     the     supporting<\/p>\n
    interveners to the percentile formula introduced   by   the   State.
\n    Briefly stated the challenges are thus:\n<\/p>\n
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\n                                          12<\/span><\/p>\n
                i)  The action of the State Government  contained in the<\/p>\n
    circular introducing the `percentile’
\n                                         formula runs counter to the
\n    principle of merit.  Merit alone need to  regulate the admissions to<\/p>\n
    11th  standarard.   Introduction   of   the   “percentile”   formula   upset
\n    the   merit   placement   of   the   students   and   goes   to   introduce
\n    notional   concept   by   which   a   hypothecal   percentile   rank   is<\/p>\n
    achieved and this percentile rank    forms  the basis  for granting
\n    admission to 11th standard.   According to the learned counsel, the<\/p>\n
    percentage   of   marks   secured   at   an   examination   has   been   all
\n    through out in the past, treated as the merit and admissions were<\/p>\n
    granted   on   that   basis.     Whereas     for   the   first   time   the   State<\/p>\n
    Government has, tinkered with the percentage of  marks and that
\n    too   on   the   verge   of   admissions   of   11th  standard.     The   State
\n    Government,   in   the   submission   of   the   learned   counsel   for   the<\/p>\n
    petitioner, did not take a considered decision after weighing the<\/p>\n
    pros and cons with due deliberations,  but has hurriedly reached
\n    the   decision   in   consultation   with   the   chosen   and   selected   few,
\n    which  operates  to the detriment  of the  interest  of the students<\/p>\n
    from other Boards such as ICSE and CBSE.\n<\/p>\n
                ii)    It is  next submitted that the decision to introduce<\/p>\n
    the `percentile’
\n                    formula is a pre-conceived decision and has been
\n    introduced   deliberately   to   benefit   the   students   from   the   SSC
\n    Board.      In   the   decision   making   process   other   Boards   were<\/p>\n
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\n                                           13<\/span><\/p>\n
    deliberately   kept   out   though   the   decision   was   to   prejudice   the<\/p>\n
    students from the said Boards.\n<\/p>\n
                 Iii)         It   is   also   submitted   that   the   formula
\n    introduced by  the  State  Government  is  arbitrary,  unfair,  unjust
\n    and unreasonable for the reason that it militates against merit and<\/p>\n
    thus violate Article 14 of the Constitution of India.\n<\/p>\n
                  iv)       Doctrine   of  Legitimate   expectation   is   also
\n                  pressed in service.\n<\/p>\n
    6.           Per contra  the learned  counsel appearing for the State
\n    has   submitted   that   the   decision   under   challenge   is   a   policy
\n    decision reached by the   State and while doing so the State was<\/p>\n
    not   obliged   to   adhere   to   the   principles   of   natural   justice   in  as<\/p>\n
    much  as   it   was   not   obliged   to   hear   the   other   Boards.     While
\n    reaching  a policy decision the principle of  Audi Alteram Parten
\n    stands excluded.\n<\/p>\n
    7.           It is next submitted that the correctness or otherwise of
\n    a policy decision cannot be subjected to judicial review.  It is only<\/p>\n
    the decision making process which can be scrutinised and not the
\n    decision.   In the submission of the learned counsel for the State,
\n    the   “percentile” formula is not in violation of Article 14 of the
\n    Constitution of India.  On the contrary it seeks to achieve equality.\n<\/p>\n
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\n                                        14<\/span><\/p>\n
    Prior  to the introduction of   the formula, unequals were treated<\/p>\n
    equally   and the said vice is sought to be removed by the new
\n    method which ensures equality.  The impugned decision seeks to<\/p>\n
    achieve  a larger public interest.  To buttress the said submission,
\n    it is pointed out that in the current   academic year the result of
\n    the SSC Board   was   comparatively strict   and thus the students<\/p>\n
    from   SSC   Board   have   derived   some   advantage   under   the
\n    percentile formula.   However, it is   possible that in the coming<\/p>\n
    academic years, if the toppers from SSC Board may secure higher
\n    percentage of marks in comparison to the marks secured by   the<\/p>\n
    toppers from other Boards, and in that situation the students from<\/p>\n
    other Boards  would  gain the  benefit   and  advantage.    Thus  the
\n    contention is that for all time to come, the SSC Board students
\n    alone would not be in an advantageous position but it could be<\/p>\n
    students from other  Boards as well.  Concluding  this submission,<\/p>\n
    it is contended that the impugned decision is reasonable, just and
\n    fair.\n<\/p>\n
    8.          Lastly,   it   is   emphatically   submitted   that   almost   all<\/p>\n
    students   have   secured   admissions   to   the   11th  Standard   on   the
\n    basis of the “percentile” rank and very few students remain to be
\n    admitted.   Hence even if this   Court holds that the “percentile”\n<\/p>\n
    formula is not sustainable, no interference   with the admissions
\n    already made be caused as otherwise the students  community as
\n    a whole would suffer irreparable loss, undue inconvenience  and<\/p>\n
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\n                                          15<\/span><\/p>\n
    hardships.   It   would   also result in derailment of the academic<\/p>\n
    session.     We   hasten    to   record   the   undisputed   factual   position
\n    about almost all the students having secured admissions  to the<\/p>\n
    11th standard.\n<\/p>\n
    9.          Let us first examine the manner in which the decision<\/p>\n
    to introduce the “percentile” formula was reached:\n<\/p>\n
    Decision making process:\n<\/p>\n
    10.<\/p>\n
                The    Deputy   Secretary   to     Government,   School
\n    Education and Sports Department, has filed an affidavit-in-reply<\/p>\n
    dated 15th  July 2008 which explains the circumstances in which
\n    the   alleged   problem   was   addressed   by   the   government.     It   is
\n    stated in para 2 of the affidavit  that :\n<\/p>\n
                      “I   say    and   submit   that   it   was   observed   by   the<\/p>\n
          authorities   that there was a comparative disparity between
\n          the   students   from   the     different   Boards   in   the     State   of<\/p>\n
          Maharashtra  from which students   pass their 10th  standard
\n          and apply for admissions to 11th standard of  the Maharashtra
\n          State Board of Secondary and Higher Secondary Education,
\n          Pune.     This   issue   was   also   discussed   in   he   House   of<\/p>\n
          Legislature and thereafter the procedure for bringing  parity
\n          amongst the students belonging to the different  Boards  was
\n          initiated.  In this regard the State Government had called for<\/p>\n
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\n                                          16<\/span><\/p>\n
          a proposal from the Maharashtra State Board of Secondary<\/p>\n
          and  Higher  Secondary   Education,   Pune  vide  a   letter  dated
\n          12th June 2008.  Hereto annexed and marked as Exhibit-A to<\/p>\n
          this Affidavit is a copy of the said letter dated 12th June 2008.
\n          Accordingly, a proposal was received on 20th June 2008 from
\n          the   Maharashtra   State   Board   of   Secondary   and   Higher<\/p>\n
          Secondary Education, Pune.  Hereto annexed and marked as
\n          Exhibit-B to this affidavit is a copy of the said proposal dated<\/p>\n
          20th June 2008.  I say  and  submit that on 26th June 2008,  a
\n          joint  meeting  of   the  Deputy  Secretary  of   School   Education<\/p>\n
          and   Sports   Department,   Deputy   Director   of   Education,<\/p>\n
          Greater Mumbai, all Education Inspectors of Greater Mumbai
\n          as   also   the   Principals   of   eminent   institutions   such   as   Ruia
\n          College,   Ruparel   College,   Mithibai   College   etc.   was   held.\n<\/p><\/blockquote>\n
          Annexed hereto and marked as Exhibit-C to this affidavit is a<\/p>\n
          copy of the minutes   of meeting held on 26th  June 2008.   I
\n          say   that   in   the   said   meeting,   a   consensus   was   reached
\n          between all concerned that a formula of  percentile would be<\/p>\n
          adopted   while   giving   admission   in   11th  standard     in   the
\n          Academic Year 2008-09″.\n<\/p><\/blockquote>\n
    11.          It is then stated that the proposal which is said to have
\n    been   reached   by   consensus,   was   accepted   and     came   to   be
\n    translated into a binding decision vide Government circular  dated<\/p>\n
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\n                                       17<\/span><\/p>\n
    27th  June 2008.   As pointed out above, it is re-iterated that the<\/p>\n
    disparity prevailing was removed and parity was restored.  It will
\n    not be out of place at this juncture to mention that the result of<\/p>\n
    the 10th  standard were declared on 26th  June 2008 and the pre-
\n    admission process commenced at 9 a.m. On 27th  June 2008 on
\n    which date the Government issued the   circular.   What is to be<\/p>\n
    seen is that the Government had directed the Maharashtra State
\n    Board of Secondary and Higher Secondary education which is one<\/p>\n
    of the concerned Boards, to submit a proposal.  The proposal  was
\n    received on 20th June 2008 by the Government.  In the  proposal<\/p>\n
    so forwarded it was suggested that the percentage of marks of 3<\/p>\n
    to   5  toppers    from   each   Board   be   averaged   out,   which   would
\n    denote   `A’.\n<\/p>\n
                  The   other  parameters   for   calculating   the   percentile
\n    were   same in the proposal submitted by the Board as has been<\/p>\n
    implemented by the Government.  Perusal of the  Minutes of the<\/p>\n
    Meeting held on 26th June 2008 reveal that instead of taking the
\n    average of the percentage of marks secured by first five students,
\n    the average of percentage of top five students from the Divisional<\/p>\n
    Boards   of   the   Secondary   and   Higher   Secondary   Board   of
\n    Education was to be considered.  It is thus clear that the proposal
\n    submitted   by  the   SSC  Board   was  modified   and   altered    to   the<\/p>\n
    above     extent   by   the   Committee   which   had   met   on   26th  June
\n    2008.     Whereas   the   Resolution\/Circular   dated   27th  June   2008
\n    seeks   to   introduce   the   percentile   formula   which   takes   into<\/p>\n
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\n                                         18<\/span><\/p>\n
    consideration the average of the percentage of marks secured by<\/p>\n
    first ten toppers from each Board. It is obvious that change in the
\n    number   of   the   toppers   from   the   Board   changes   the   percentile<\/p>\n
    rank.\n<\/p>\n
       Consideration of Merit.\n<\/p>\n
    12.         The   rival   sides   are   in   agreement   that   the   criteria   of
\n    merit should not   be  sacrificed.   But the key issue is how is the
\n    merit of the candidates interse to be judged.   According to the<\/p>\n
    petitioner   and   the   supporting   interveners,     merit   need   to   be<\/p>\n
    judged on the basis of the percentage of marks secured in the 10th
\n    standard   examination     conducted   by   the   respective   Boards.\n<\/p>\n
    Whereas   according to the State Government, merit need to be
\n    judged   on   the   basis   of   percentile     rank   obtained   after<\/p>\n
    normalisation of the percentage of marks of students of all the
\n    Boards.\n<\/p>\n
    13.         It is a matter of common knowledge that   every year<\/p>\n
    during   admission   season   lacs   of   students   undergo   immense
\n    suffering   and   harrasment   in   seeking   admission   to   professional
\n    courses     caused   by   uncertain   policies.     This   time   the   students<\/p>\n
    seeking admission to 11th  standard are made to suffer the same.
\n    There is a substantial scope   for improvement in the   admission
\n    process even within regulatory power  of the authority, provided
\n    the controversial issues are not dealt with on an emergency basis<\/p>\n
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\n                                        19<\/span><\/p>\n
    during   the   admission   season,   but   done   in   a   co-ordinated   and<\/p>\n
    comprehensive manner ahead of time.  Let us hope that the State
\n    would hereafter take crucial decision well ahead of time.\n<\/p>\n
    14.         The Supreme Court has repteadly emphasised the need
\n    for   merit   based   admission   more   particularly   in   professional<\/p>\n
    institutions of higher learning.  Dealing with the merit criteria the
\n    Supreme Court in the case of  Islamic Academy of Education and<\/p>\n
    another Vs.   State of Karnataka  and others reported in (2003) 6
\n    SCC 697 held :\n<\/p>\n
                       “For   the   purpose   of   achieving  excellence  in   a
\n           professional   institution,   merit   indisputably   should   be   a
\n           relevant     criterion.     Merit,   as   has   been   noticed   in   the
\n           judgment, may be determined in  various ways ( paragraph<\/p>\n<\/blockquote>\n
           59).     There   cannot   be   however,   any   foolproof   method
\n           whereby and whereunder the merit of a student at all times<\/p>\n
           to come may be judged.  Only, however,  because a student
\n           may fare  differently in a different situation and at different
\n           point of time by itself cannot be a ground to adopt different
\n           standards for judging   his merit at different points of time.\n<\/p><\/blockquote>\n
           Merit for any purpose and in particular, for the purpose of
\n           admission in a professional college should be judged  as far
\n           as  possible on the basis  of
\n                                           same or
\n                                                        similar
\n                                                                examination.  In<\/p>\n
           other words, inter se merit amongst the students similarly
\n           situated   should   be   judged   applying   the   same   norm   or<\/p>\n
           standard.  Different types  of examinations, different sets of
\n           questions,   different   ways   of   evaluating   the   answer   books
\n           may yield different results in the case of the same student”.\n<\/p><\/blockquote>\n
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\n                                       20<\/span><\/p>\n
                                               (emphasis supplied)”\n<\/p><\/blockquote>\n
    15.        It is obvious that if the merit of two students is sought
\n    to be judged, applying different norms or standards, the   same<\/p>\n
    would not result in ascertaining the true merit.    The concluding
\n    observations   made   by   the   Supreme   Court   reproduced  herein
\n    above operate with full force and vigour in the facts of the present<\/p>\n
    case.   The students come from three different streams i.e. SSC,
\n    CBDE   and   ICSE   having   different   curriculam,   different   question<\/p>\n
    papers valued  by applying different standards and norms.\n<\/p>\n
    16.        If     the   distinguishing   features   in   the   examination<\/p>\n
    conducted by the three different Boards are carefully perused, it<\/p>\n
    can be clearly seen that comparison of merit based on percentage
\n    of marks scored   will be illusory and not real.   Let us take for
\n    example the time alloted to the students for solving the question<\/p>\n
    papers.  The S.S.C.  Students are not allotted any time for reading<\/p>\n
    the question paper whereas students from the other two Boards
\n    are granted 15 minutes time to read the question papers.   In the
\n    first blush it may not  be noticed  that this factor taken singularly<\/p>\n
    could also have a substantial impact on the over all performance
\n    of a candidate at the examination and consequential  bearing  on
\n    the   percentage   of   marks   scored.   Those   students   who   get     15<\/p>\n
    minutes   time   to   read   the   question   paper   would   be   more
\n    composed, would have clear idea and approach and  could  plan
\n    better on choosing the questions and <\/p>\n
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\n                                        21<\/span><\/p>\n
    their sequence.  Such students would be more clear and confident<\/p>\n
    in their approach as compared to those who do not get any time
\n    to read the question papers.     Students who are not allotted any<\/p>\n
    time for reading the question papers would be required   to rush
\n    through the question papers by having a cursory glance at it. They
\n    would   be   required   to   solve   the   question   papers   in   some   hest<\/p>\n
    because   of   time   constrains.     Such   students   would   not   have
\n    sufficient   time   to   choose   questions   in   proper   preference   and<\/p>\n
    answer   them     in   a   proper   sequence,   having   regard   to   the
\n    preparation of the student touching different topics.  One cannot<\/p>\n
    lose sight of the fact that in these days of cut throat competition,<\/p>\n
    if I may say so, even fraction of mark here and there affects the
\n    ranking and chances of admission to premier colleges.  Seen from
\n    this angle even this time factor which appears insignificant makes<\/p>\n
    a   significant   different   in   the   ultimate   outcome   atleast   of   few<\/p>\n
    marks.   No further elaboration is required.   Only with a view to
\n    bring home the point that even apparent marginal differences in
\n    the   pattern   and   conduct   of   the   examination   could   result   in<\/p>\n
    significant difference  in the ultimate outcome.  I hasten to state
\n    that there is substantial difference   in the syllabus,   compulsory
\n    and optional subjects and the examination conducted by the three<\/p>\n
    Boards.   I do not propose to deal with all the differences in the
\n    curiculam,subjects and available options,     for it is obvious that
\n    these        differences     by    themselves    deny       the students,<\/p>\n
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\n                                          22<\/span><\/p>\n
    level playing field, making it   impossible to compare the interse<\/p>\n
    merit of the students.\n<\/p>\n
    17.         If   the   performance   of   students   who   are   subjected   to
\n    different examinations with different syllabus, different subjects,
\n    different   options   in   relation   to   the   subjects   and   with   different<\/p>\n
    pattern of examination is compared as  revealing  true merit, the
\n    same will violate Article 14 of the Constitution of India.  Unequals<\/p>\n
    if treated equally would violate the equality clause.\n<\/p>\n
    18.<\/p>\n
                The   comparatative   chart   of   the   differences   in   the<\/p>\n
    compulsory   subjects,   optional   subjects,   compulsory   languages,
\n    assignment of marks for the same, objective and subjective format
\n    and   the   allotment   of   time   or   denial   thereof   for   reading   the<\/p>\n
    question   papers     at   the   examination   taken   cumulatively,<\/p>\n
    substantially result in denying a level playing field.  At any rate, it
\n    can be safely assumed that the so called marks or percentage of
\n    marks scored at the three different examinations cannot and does<\/p>\n
    not indicate the true interse merit.\n<\/p>\n
    19.     Thus   it   is   clear   that   so   called   merit   reflected   from   the<\/p>\n
    percentage   of   marks,   secured   at   10th  standard   examination   by
\n    students from different Boards cannot form the basis or yardstick
\n    for measuring the  comparatative merit.  Seen from this angle, it<\/p>\n
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\n                                        23<\/span><\/p>\n
    appears   that the State Government was justified in evolving a<\/p>\n
    meahcanism   to   equalise   or   normalise   the   percentage   of   marks
\n    secured   by   the   students   from   the   different   Boards.     The<\/p>\n
    submission   made   by   the   learned   counsel   for   the     State,   that
\n    without introduction of the percentile formula, if the marks of the
\n    students from different Boards are taken to denote their inter-se<\/p>\n
    merit, the same would  tantamount  to treating unequals equally,
\n    has   a   merit.   About15.5   lacs   students   pass   10th  standard<\/p>\n
    examination from the schools affiliated to the State Board who
\n    come from the common strata of the society and can be described<\/p>\n
    as masses, whereas the students who partake education in schools<\/p>\n
    conducted   by     or   affiliated   to   ICSE   or   CBSE   Boards   are   the
\n    students coming from a previlaged class and the number of such
\n    students   passing   10th  standard   who   are   desirous   of   seeking<\/p>\n
    admission to 11th standard in schools or colleges affiliated to State<\/p>\n
    Board    constitute  only about  25 to 30 thousand.  The  State has
\n    assumed, while formulating the method of equalisation, that the
\n    first ten toppers from and out of the 15.5 lacs students from the<\/p>\n
    SSC Board are equally meritorious as that of first ten toppers from
\n    and out  of    about  25 to  30 thousand  students  from CBSE  and
\n    ICSE Board together.   It cannot be lost sight of the fact that the<\/p>\n
    State Government runs the State Board and the State Government
\n    is spending lot of money for imparting education at the level of
\n    10th and 11th standard by way of grants to aided institutions.  The<\/p>\n
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\n                                         24<\/span><\/p>\n
    whole exercise   made by the State in introducing the percentile<\/p>\n
    formula   at   the   most   could   be   said   to   be   an   attempt   to   make
\n    available   some   preference   to   the   students   passing   SSC   Board<\/p>\n
    examination of  10th  standard  so  that such  students could    take
\n    education in the schools and colleges affiliated to the State board
\n    for   prosecuting   their   studies   in   11th  and   12th  standard.     The<\/p>\n
    question is, if this be the object of State policy i.e. to some extent
\n    benefit  the students passing 10th standard examination from SSC<\/p>\n
    Board, is it so arbitrary and  so unreasonable so as to warrant its
\n    quashing,   being   allegedly   in   violation   of   Article   14   of   the
\n    Constitution of India.\n<\/p>\n
    20.         It is true that in this process, cases of hardships have
\n    arisen in the working of the Rule which is framed for selecting the<\/p>\n
    candidates for admission but that however would not render the<\/p>\n
    Rule unconstitutional.   It is bound to so happen in almost of all
\n    cases when a Rule is framed.     It is undoubtedly true that if the
\n    selection   for   grant   of   admission   is   based   on   a   common<\/p>\n
    examination for all, merit can be best judged.   However, if the
\n    same   is   not  possible  as  in   the  present   case,   and  students  from
\n    different   Boards   with   different   examination   patterns,   with<\/p>\n
    different   subjects,   and   different   evaluation   standard   compete,
\n    how the merit is to be judged.  In the wisdom of the  State unless
\n    and until the percentage of marks of the students from different<\/p>\n
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\n                                        25<\/span><\/p>\n
    Boards are normalised, selection cannot be made on the basis of<\/p>\n
    merit and thus it has introduced  the percential formula.\n<\/p>\n
    21.         In the case of  Dr. Pradeep Jain and others Vs. Union of
\n    India   and   others  reported   in  (1984)   3   SCC   654,  the   Supreme
\n    Court   had   an  occasion  to   deal   with   scheme   of   admission     to<\/p>\n
    medical   colleges.     While   dealing   with   the   same   the   Court   has
\n    considered   as   to   what   extent   departure   from   the   principle   of<\/p>\n
    selection based on merit is permissible.  The question  that fell for<\/p>\n
    consideration   was   whether  consistently     with   the   constitutional
\n    values the admissions to a medical college or any other institution<\/p>\n
    of higher learning   in a State can be confined to   those who have
\n    their  domicile   within   the   State   or   who  are   resident   within   the
\n    State for a specific number of years.     The Court concluded that<\/p>\n
    where it is necessary to do so for the purposes of bringing about<\/p>\n
    real   equality   of   opportunity   between   those   who   are   unequals
\n    departure from the principle of selection based on merit is also
\n    permissible.  The Apex Court also observed in para 13 thus:  “Now<\/p>\n
    the   concept   of   equality   under   the   constitution   is   a   dynamic
\n    concept.   It takes within its sweep every process of equalisation
\n    and   protective   discrimination”.         In   the   said   Judgment   the<\/p>\n
    Supreme Court also noticed  with approval on earlier judgment in
\n    the case of D.N. Chavchala reported in   1971 (2) SCC 293.  The
\n    reservation   impugned   in   the   said   case   was  university   wise<\/p>\n
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\n                                          26<\/span><\/p>\n
    reservation under which preference to the medical college were<\/p>\n
    given to the students who had passed PUC examination of that
\n    university and 20% of the seats were available to those passing<\/p>\n
    PUC examination of other  universities.   The court had held that
\n    university wise  distribution of seats was not discriminatory and
\n    there   was   no   constitutional   infirmity     involved   in   giving<\/p>\n
    preference to the students who had passed PUC examination of
\n    the   same   university.     The   following   reasons     in   support   of  the<\/p>\n
    conclusion are recorded by the Supreme Court.\n<\/p>\n
                      “The   three   universities   were   set   up   in   three
\n         different   places presumably for the purpose of catering to<\/p>\n
         the   educational   and   academic   needs   of   those   areas.<\/p><\/blockquote>\n
         Obviously   one   university   for   the   whole   of   the   State   could
\n         neither   have   been   adequate   nor   feasible   to   satisfy   those
\n         needs.  Since it would not be possible to admit all candidates<\/p>\n
         in the medical colleges run by Government, some basis for
\n         screening the candidates had to be set up.  There can be no<\/p>\n
         manner of  doubt, and it is now fairly well settled, that the
\n         Government, as also other private agencies, who found such
\n         centers for medical training, have the right to frame rules for<\/p>\n
         admission so long as those rules are not inconsistent with the
\n         university   statutes   and   regulations   and   do   not   suffer   from
\n         infirmities, constitutional or otherwise.  Since the universities
\n         are  set  up  for satisfying  the educational needs  of different
\n         areas   where   they   are   set   up   and   medical   colleges   are<\/p>\n
         established in those areas, it can safely   be presumed   that
\n         they   also   were   so   set   up   to   satisfy   the   needs   for   medical
\n         training of those attached to those universities.  In our view,
\n         there is nothing undesirable in ensuring that those attached
\n         to such universities have their ambitions to have training in<\/p>\n
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\n                                      27<\/span><\/p>\n
     specialised subjects, like medicine, satisfied through colleges
\n     affiliated to their own universities.  Such a basis for selection<\/p>\n
     has   not   the   disadvantage   of  district   wise  or  unit   wise
\n     selection as any student from any part of the State  can pass<\/p>\n
     the   qualifying   examination   in   any   of   three   universities
\n     irrespective of the place of  her  birth or residence.   Further,
\n     the rules confer a discretion on the selection committee to
\n     admit outsiders upto 20 percent of the total available seats in<\/p>\n
     any  one of these  colleges,   i.e.  Those  who have  passed  the
\n     equivalent examination held by any other university not only
\n     in   the   State   but   also   elsewhere   in   India.     It   is   therefor,
\n     impossible to say that the basis of selection adopted in these<\/p>\n
     rules   would   defeat   the   object   of   the   rules   as   was   said   in
\n     Rajendra   case   or   make   possible     less   meritorious   students<\/p>\n
     obtaining admission at the cost of the better candidates.  The
\n     fact   that   a   candidate   having   lesser   marks   might   obtain
\n     admission at the cost of another having higher marks from<\/p>\n
     another   university   does   not   necessarily   mean   that   a   less
\n     meritorious   candidate   gets   advantage   over   a   more
\n     meritorious   one.     As   is   well   known,   different   universities
\n     have different standards in the examinations held by them.\n<\/p>\n
     A   preference   to   one   attached   to   one   university   in   its   own
\n     institutions   for   post   graduate   or   technical   training   is   not<\/p>\n
     uncommon.   Rules giving such a preference  are to be found
\n     in various universities.  Such a system for that reason alone is
\n     not   to   be   condemned   as   discriminatory,   particularly   when<\/p>\n
     admission   to   such   a   university   by   passing   a   qualifying
\n     examination   held   by   it   is   not   precluded   by   any   restrictive
\n     qualifications, such as birth or residence, or any other similar
\n     restrictions.   In our view it is not possible to to equate the
\n     present basis for selection with those which were held invalid<\/p>\n
     in   the   aforesaid   two   decisions.     Further,   the   government
\n     which bears the financial burden of running the Government
\n     colleges is entitled to lay down criteria for admission in its
\n     own colleges and to decide the sources from which admission
\n     would be made, provided of course, such classification is not<\/p>\n
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\n                                    28<\/span><\/p>\n
     arbitrary   and   has   a   rational   basis   and   a  reasonable
\n     connection with the object of the rules.   So long as there is<\/p>\n
     no discrimination within  each of such course, the validity of
\n     the   rules   laying   down   such   sources   cannot   be   successfully<\/p>\n
     challenged ( see Chitra Ghosh V. Union of India).    IN our
\n     view  the   rules  lay  down  a  valid classification.     Candidates
\n     passing   through   the   qualifying   examination   held   by   a
\n     university form a class by themselves as distinguished from<\/p>\n
     those passing through such examination from the other two
\n     universities.     Such   a   classification   has   a   reasonable   nexus
\n     with the object of the rules, namely, to cater to the needs of
\n     candidates who would naturally look to their own university<\/p>\n
     to advance their training in technical studies, such as medical
\n     studies.   In our opinion, the rules cannot justly be  attached<\/p>\n
     on the ground of hostile discrimination or as being otherwise
\n     in breach of Article 14.     While approving the above line of
\n     reasoning the Supreme Court observed in Pradeep Jain’s                 case<\/p>\n
     thus:   University wise  distribution of seats was thus upheld
\n     by the Court as constitutionally valid even though it was not
\n     in conformity with the principle of selection based on merit
\n     and   marked   a   departure   from   it.     The   view   taken   by   the<\/p>\n
     Court was that  university wise  distribution of seats was not
\n     discriminatory because it was based on a rational principle.\n<\/p>\n
     There   was   nothing   unreasonable   in   providing   that   in
\n     granting   admissions   to   medical   colleges   affiliated   to   a
\n     university, reservation shall be made in favour of candidates<\/p>\n
     who have passed PUC examination of that university, firstly,
\n     because   it   would  be  quite  legitimate   for   students   who   are
\n     attached to a university to entertain a desire to have training
\n     in   specialised   subjects,  like  medicine,   satisfied   through
\n     colleges affiliated to their own” university, since  that  would<\/p>\n
     promote institutional continuity which has its own value and
\n     secondly, because any student from any part of the country
\n     could   pass   the   qualifying   examination   of   that   university,
\n     irrespective of the place of his birth or residence.”\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:43:39 :::<\/span>
\n                                          29<\/span><\/p>\n
    22.         Let   me   now   consider   the   reasonablness   of   the   policy<\/p>\n
    decision introduced by the State in the form of percentile formula.
\n    I   have   an   advantage   of   understanding   the   impact   of   the<\/p>\n
    introduction of the formula as the State Government has placed
\n    on   record   a   comparatative   chart   of   admissions   given   to   the
\n    students from the respective  Boards,  in one of the most preferred<\/p>\n
    colleges in Mumbai by name D.G. Ruparel College of Arts, Science
\n    and Commerce.   Perusal of the said chart would indicate that in<\/p>\n
    the said college 510 students   from SSC Board are admitted in
\n    science faculty whereas   64 students from ICSE Board and   14<\/p>\n
    students from CBSE Board have been admitted.  Whereas  in the<\/p>\n
    previous year, most of the seats   were   bagged by the students
\n    from ICSE and CBSE Boards.  Having regard to the strength of the
\n    students passing 10th standard from the SSC Board in comparison<\/p>\n
    to   the   number   of   students   passing   10th  standard   from   other<\/p>\n
    Boards, it is crystal clear that even after implementation of the
\n    said   formula,   no   undue   advangage   has   been   gained   by   the
\n    students   from   SSC   Board.       They     are   only   getting   adequate<\/p>\n
    representation and not even proportionate representation.     The
\n    introduction of  formula  has not operated unreasonably and has
\n    achieved   reasonable distribution of the available seats hence it<\/p>\n
    cannot be said that the rule is unjust or unfair.\n<\/p>\n
    23.         Next I  proceed to consider as to whether the decision
\n    of   the   State   suffers   from   the   vice   of   arbitrariness.     Basic   and<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:43:39 :::<\/span>
\n                                          30<\/span><\/p>\n
    obvious test  to apply in cases wherein there is a challange  to  the<\/p>\n
    policy decision by the Government is  to see whether there is any
\n    descernible principle emerging from the impugned action and if<\/p>\n
    so, does it specify  and based on reasonableness.  Useful reference
\n    to   the   judgment   of   the   Supreme   Court   in   the   case   of  Bannari
\n    Amman Sugars Ltd. Vs. Commercial Tax Officer and others reported<\/p>\n
    in (2005)1 SCC 625 could be made.  Various issues were raised
\n    in   the   said   case,   on   account   of   withdrawal   of   benefits   by   the<\/p>\n
    Government   which     were   earlier     granted   to   the     Sugar   Mills<\/p>\n
    established   in   co-operative   and   public   sector.     In   the   said
\n    judgment the Supreme Court has held that while taking a policy<\/p>\n
    decision,   the  Government is  not  required  to hear the  persons,
\n    who   have   been   granted   the   benefit,   which   is   sought   to   be
\n    withdrawn.     While dealing with the question of arbitrariness in<\/p>\n
    the State action,  the Supreme Court has held thus:\n<\/p>\n
                     “While the discretion to change the   the policy in
\n         exercise of the executive power, when not trammeled by any<\/p>\n
         statute   or   rule   is   wide   enough,   what   is     imperative   and
\n         implicit it terms of Article 14 is that a change in policy must
\n         be made  fairly and should not give the impression that it was
\n         so   done   arbitrarily   or   by   any   ulterior   criteria.     The   wide
\n         sweep     of   article   14   and   the   requirement   of     every   State<\/p>\n
         action   qualifying   for   its   validity   on     this   touchstone
\n         irrespective of the field of activity of the State is an accepted
\n         tenet.    The  basic   requirement  of  Article 14    is fairness  in
\n         action   by   the   State   and   non-arbitrariness   in   essence   and
\n         substance is the heartbeat of fair play.   A question whether<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:43:39 :::<\/span>
\n                                           31<\/span><\/p>\n
           the impugned action is   arbitrary or not is to be ultimately
\n           answered on the facts and circumstances of a given case.  A<\/p>\n
           basic and obvious test to apply in such cases is to see whether
\n           there   is   any   discernible   principle   emerging   from   the<\/p>\n
           impugned  action and if so, does it really satisfy the test of<\/p>\n
           reasonableness”.\n<\/p><\/blockquote>\n
    24.          The   State   Government   has   introduced   a   definite<\/p>\n
    principle   rather   a   statistical   formula   aimed   at   equalisation   or
\n    normalisation of the percentage of marks, and the same operates<\/p>\n
    equally   to   all   the   students   in   all   situations   for   the   purpose   of
\n    securing admissions.  The percentile formula does satisfy the test<\/p>\n
    laid down by the Supreme Court  about existence of a discernible<\/p>\n
    principle   and   thus   the   same   cannot   be   said   to   be   arbitrary.
\n    Reverting back to the question of reasonableness of the principle,
\n    suffice it to point out   that till the year 2007, though only few<\/p>\n
    thousand students used to pass 10th  standard from other Boards<\/p>\n
    such as CBSE and ICSE, they could secure  majority of the seats in
\n    the admission to  11th standard in the preferred colleges, leaving
\n    the   students   from   SSC   Board   high   and   dry   while   securing<\/p>\n
    admissions to such colleges. After introducing the percentile, still
\n    the   students   passing   10th  standard   examination   from   ICSE   and
\n    CBSE Board get more seats in proportion to their number in the<\/p>\n
    preferred   colleges.     As   a   matter   of   fact   the   formula   has   not
\n    operated strikingly  to the detriment of the interest of the students
\n    from ICSE and CBSE Board.   They are getting more seats than<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:43:39 :::<\/span>
\n                                         32<\/span><\/p>\n
    their numerical proportion.\n<\/p>\n
    25.         Lastly I  deal with the submission made by the learned
\n    counsel for ICSE Board that introduction of the percentile formula<\/p>\n
    has resulted in violation of the principle of legitimate expectation.\n<\/p>\n
    26.         In the present case there was neither any representation
\n    nor promise made by the State at any time to the students from<\/p>\n
    CBSE or ICSE Boards which could be said to have induced the
\n    students to change their position  to claim legitimate expectation.\n<\/p>\n
    No doubt there   has been a consistent past practice to treat the
\n    students of the other Boards at par with the students of the SSC<\/p>\n
    Board   so   far   as   the   percentage   of   marks     secured   by   them   is<\/p>\n
    concerned.  It has been successfully demonstrated by the learned
\n    counsel for the State that in the  first place,  by introducing the
\n    percentile formula,  a level  playing field is  laid.   The  percentile<\/p>\n
    rank is determined after averaging out the percentage of marks<\/p>\n
    scored by ten toppers of the three Boards such as SSC, ICSW and
\n    CBSE, which is denoted by alphabet `A’
\n                                          in the formula.  Alphabet
\n    `M’
\n        denote   the  percentage  of  marks  of  the   students of     whose<\/p>\n
    percentile rank is to be obtained, whereas alphabet `P’
\n                                                           denote the
\n    percentile.   Thus the formula reads P=100(M)–A.   I proceed to
\n    re-state that even after  application of the said  formula the seats<\/p>\n
    secured   by   the   students   from   ICSE   and   CBSE   Boards   are
\n    proportionally more as compared to the students from SSC Board.
\n    Thus  the impact of the policy decision of the  Government is not<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:43:39 :::<\/span>
\n                                         33<\/span><\/p>\n
    harsh.  The formula thus  is not unreasonable.\n<\/p>\n
    27.         Having  found  that the  formula   is  reasonable  and  not
\n    arbitrary, it has to be held to be sustainable.  In the submission of<\/p>\n
    the   petitioner,   the   decision   to   introduce   the   percentile   formula
\n    was   a   pre-conceved   decision   and   was   aimed   at   favouring   the
\n    students from SSC Board at the costs of the meritorious students<\/p>\n
    from other Boards.   I am   afraid that the said submission lacks
\n    proper pleadings.  It is nowhere pleaded in the petition  that the<\/p>\n
    decision has been taken malafidely or is tainted with capris.  One
\n    page petition was filed as Public Interest Litigation,  and even in<\/p>\n
    the   affidavits   filed   there   are   no   particulars   in   regard   to   the<\/p>\n
    averments   touching   malafides.     The   said     submission   does   not
\n    merit any consideration in the absence of pleadings.  To conclude,
\n    a word of causion for the State that it   is expected of it to take<\/p>\n
    such   vital   decision   in   more   co-ordinated   and   comprehensive<\/p>\n
    manner much ahead of time.  The criticism of the decision taken
\n    by the State as having been taken in   haste is not devoid of any
\n    substance.     The   admission   process   could   have   been   better<\/p>\n
    streamlined provided the  ticklish  issues are not dealt with on an
\n    emergency   basis   without   due   deliberations   and   broad   based
\n    consultations .   It would have been more desirable  of the State<\/p>\n
    Government, to have sought participation of all the Boards after
\n    obtaining   the   entire   data   which   was   required   for   reaching   the
\n    decision.    However, this cannot be a ground to strike down the<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:43:39 :::<\/span>
\n                                         34<\/span><\/p>\n
    decision.\n<\/p>\n
    28.         Thus    I   hold     that   the   introduction   of   the  statistical
\n    formula   of   “percentile”   goes   to   achieve   normalisation   or<\/p>\n
    equalisation of percentage of marks secured by the students from
\n    the different Boards and hence is not violative of Article 14 of the
\n    Constitution   of   India.       I   also   hold   that   assuming   that   the<\/p>\n
    “percentile”   formula   extend   some   benefit   or  preference  to   the
\n    students from SSC Board the same is permissible and not illegal.\n<\/p>\n
    29.         In the result, the petition fails and is dismissed with no
\n    order as to costs.\n<\/p>\n
                                                      A.P. DESHPANDE, J.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 13:43:39 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Fransisco D. Luis vs State Of Maharashtra & Ors on 25 August, 2008 Bench: A.P. Deshpande 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO. 94 OF 2008 ALONGWITH CIVIL APPLICATION NO. 37 OF 2008. Fransisco D. Luis …… ……. Petitioner versus State of Maharashtra […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-218520","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nFransisco D. 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