judgment - Tarkunde, J. (1) These two petitions have been filed under Article 226 of the Constitution. They relate to a matter of vital importance connected with the maintenance of educational standards in secondary schools and the preservation of their internal autonomy. The question raised by the petitioners is whether the Maharashtra State of Board of Secondary Education can lawfully compel heads of secondary schools to forward the applications of candidates wishing to appear for the Secondary School Certificate Examination (S.S.C. Examination) irrespective of whether in the opinion of their teachers the candidates have made adequate academic progress during the final year. (2) The petitioner in Special Civil application No. 131 of 1966 is the Principal and Proprietress of Hill Grange, High School Bombay. The second petition (Special Civil Application No. 132 of 1966) is a representative petition filed by the trustees of the Bharda New High School, Bombay, on behalf of the about 230 members of the Bombay Association of Heads of Secondary Schools, and also on behalf of other heads of Schools, in ""the Poona Division"". The Poona Division consists of Greater Bombay and the districts in the Maharashtra State which were formerly a part of the old Bombay State. In both the petitions the first respondents are the State of Maharashtra, the second respondents the Maharashtra State Board of Secondary Education, and the third respondents the Poona Division Board of Secondary Education. (3) The Maharashtra Secondary Education Boards Act, 1965 was brought into force on 1st January 1966. In former times an examination called the Matriculation examination used to be held by the Bombay university in the State of Bombay. There after a corresponding examination called the School Leaving Certificate Examination was held for some time by the Bombay Government. In 1948 the Bombay Legislature passed the Bombay Secondary School Certificate Examination Act, 1948, and the Board formed under that Act began to hold an examination called the Secondary School Certificate Examination (S.S.C. Examination). The Board under the said Act continued to hold the examination after the formation of the Maharashtra State in those areas which came to Maharashtra from the old Bombay State. The Board had made regulations under the Act of 1948, and out of those areas which came to Maharashtra from the old Bombay State. The Board under the said Act continued to hold the examination after the formation of the Maharashtra State in those areas which came to Maharashtra from the old Bombay State. The Board had made regulations under the Act of 1948, and out of those areas which came to Maharashtra from the old Bombay State. The Board had made regulations under the Act of 1948, and out of these regulation 27 related to the eligibility of candidates for the said examination. One of the conditions prescribed by that regulation was that the candidate should have a certificate from the head of the school that ""his progress, conduct and attendance at the school have been satisfactory"". The certificates as to progress used to be given by the heads of schools on the basis of the academic performance of the pupils. In some schools the academic performance of the pupils was judged on the basis of the results of the preliminary examination which was held in the schools prior to the S.S.C. Examination. In some schools the progress certificates used to be given on the basis of the pupils performance in the preliminary as well as the earlier examinations held during the final year in the school. In the Hill Grange High School it was the established practice to take a monthly test of the pupils in the final year (Standard XI), a terminal examination at the end of the first term, and a preliminary examination in the month of December every year. For the purpose of issuing progress certificates the academic performance of the pupils was judged by the Principal and the Head Master on the reports of all the teachers concerned submitted and discussed at a special staff meeting. There were some schools in the Poona Division, however, which used to send up all the pupils in the XI standard to the S.S.C. Examination by giving them progress certificates as a matter of course. It was averred by the petitioners, and was admitted by the learned Advocate General on behalf of the respondents, that the system of holding a preliminary examination and of detaining students who were not fit to pass it had prevailed for a period of nearly 100 years in the Bombay State and in the areas of the Bombay State which are now included in Maharashtra. (4) In the districts of Vidarbha which came to the Maharashtra State from the former State of Madhya Pradesh, secondary education was regulated prior to 1st January 1966 by the Madhya Pradesh Secondary Education Act, 1951 and by regulations made by a Board under that Act. That Act was more comprehensive in its cope than the said Bombay Act of 1948. The purpose of the Bombay Act of 1948, as stated in its preamble, was to establish a Board for the purpose of holding and conducting an examination at the end of the high school education stage and for prescribing course of studies for such examination. The purpose of the Madhya Pradesh Act of 1951, as stated in its preamble, was to establish a Board "" it regulate secondary education in Madhya Pradesh"". The regulations made by the Madhya Pradesh Board did not require that candidates desiring to appear for its examinations should secure a progress certificate from Head Masters. What is more, one of the regulations laid down that heads of schools shall not withhold the applications of candidates who have fulfilled the prescribed conditions for appearing at the examinations. At the same time, a method was provided in the regulations which enabled the heads of schools to assess the academic performance of pupils in the final year. In each subject taken by the pupil in the Boards examination, 20 per cent of the marks were given by the head of the school on the basis of an internal assessment made by him of the academic performance of the pupil during the final year and the remaining 80 per cent of the marks were assigned for the written examination conducted by the Board. This system had prevailed in the Vidharbha area for many years. (5) In the Marathwada districts, which came to the Maharashtra State from the old Hyderabad State, there was not statute regulating the holding of the final examination prior to 1st January 1966. There are final examination was held directly by the Government. Under the rules made by the Government in that behalf, candidates wishing to appear for the final examinations required a certificate of satisfactory academic performance from their heads of schools. (6) As stated above, the Maharashtra Secondary Education Boards Act of 1965 (hereafter referred to as the Act) came into force on 1st January 1966. Under the rules made by the Government in that behalf, candidates wishing to appear for the final examinations required a certificate of satisfactory academic performance from their heads of schools. (6) As stated above, the Maharashtra Secondary Education Boards Act of 1965 (hereafter referred to as the Act) came into force on 1st January 1966. It provided for the setting up of a State Board called the Maharashtra State Board of Secondary Education (hereafter referred to as the Board) and three Divisional Boards for the Poona Division, the Nagpur Division, and the Aurangabad Division respectively. The three Divisions comprised areas from the old Bombay State, the old Madhya Pradesh State and the Old Hyderabad State, as mentioned above. In the course of this judgment we will have to examine in some detail the scheme of the said Maharashtra Act of 1965. It would suffice at this stage to notice that section 36 conferred powers on the Board to make regulations for the purpose of carrying into effect the provisions of the Act, and that section 37 provided that the first regulations shall be made by the State Government and shall continue to be in force until new regulations are duly made by the Board under section 36. While bringing into force the said Act on 1st January 1966, the State Government also brought into force on the same day regulations made by them under section 37 of the Act. Regulation 42 of these regulations related to the eligibility of regular candidates for admission to the S.S.C. Examination to be conducted in the Poona Division by the Poona Divisional Board. Clause (1) of this regulation required that, in order to be eligible for the examination, the candidates should have from the head of his school a certificate as to his conduct and attendance at the school, and a certificate as to his character, but not a certificate regarding his academic progress. For the final examination in the Nagpur Division the regulations continued the old system which did not require any progress certificate as a condition of eligibility and under which the heads of schools were required to forward the applications of all eligible candidates, but which empowered the heads of schools to assign 20 per cent of the marks in each subject on an internal assessment of the performance of the candidates. As regards candidates wishing to appear for the final examination conducted by the Aurangabad Divisional Board the relevant regulation required that candidates should have from the heads of their schools a certificate that they had ""satisfactorily"" prosecuted a regular course of study prescribed for the examination. (7) Although these Regulations were brought into force along with the Act on 1st January 1966, they do not appear to have been known to the heads of secondary schools till after 17th January 1966. The preliminary examinations in the secondary schools comprised in the Poona Division were held, as usual, in the month of December 1965, and the heads of schools forwarded to the Poona Divisional Board on or about 10th January 1966 the applications of candidates who had received the requisite certificates including the progress certificates. Following the practice of previous years the heads of several schools did not forward the applications of candidates who in their opinion did not make adequate academic progress and who, therefore, had not received progress certificates. On 17th January 1966 the Secretary of the Poona Divisional Board sent a Circular to all the heads of secondary schools in the Poona Division and enclosed with that Circular an extract from the said regulation 42 framed under the new Act. by the said Circular he informed the heads of secondary schools ""that candidates who could not be sent up for the S.S.C. Examination of March 1966 merely on the ground of unsatisfactory progress may approach if they so desire, the heads of their respective schools and fill in the prescribed form of application."" It was further stated in the Circular, ""Application forms of all such candidates together with relevant accompaniments and fees should be forwarded by the Schools to the Divisional Secretary, Poona Divisional Board, Poona-10, not later than 31st January 1966."". The President of the Bombay Association of Heads of Secondary Schools, which consists of Head Masters of about 230 High Schools in Bombay and of which the petitioners in both the petitions are members sent a telegram on 19th January, 1966 to the Poona Divisional Board inquiring whether under the said Circular of 17th January 1966 it was obligatory upon the Head Master of a school to forward the applications of candidates irrespective of their progress. By its letter dated 21st January 1966, the Secretary of the Poona Divisional Board informed the petitioners that it was no longer necessary to certify the progress of a candidate and that a candidates application cannot be withheld for want of academic progress. The Bombay Association of Heads of Secondary Schools held a meeting on 22nd January 1966 and resolved unanimously to convey its protest against the new regulation on the ground that it was ""uneducational"". Representatives of the said Association interviewed the Minister for Education, but were informed that their request not to enforce the regulation could not be acceded to. Thereupon the present petitions were filed on 31st January 1966 for an appropriate writ or order quashing the said regulation 42(1), the said Circular dated 17th January 1966 and the said letter dated 21st January 1966, and for a director to the respondents to desist from enforcing them. On filing the petitions the petitioners prayed for and obtained an interim injunction restraining the respondents from implementing the said circular against the secondary schools in the Poona Division. (8) As the S.S.C. Examination was to be held in the month of March 1966 and the matters in issue were very urgent, the petitioners were ordered to be heard peremptorily on 7th February 1966. The petitions were accordingly heard between 7th and 11th February 1966 before a Bench consisting of Mr. Justice H.R. Gokhale and myself. During those arguments Mr. Palkhiwala appeared for the petitioners and the learned Advocate General for the respondents. (9) In view of what following it is desirable to record the substance of the main contentions which were advanced by Mr. Palkhiwala before that Bench. His argument was two-fold. He argued in the first place, that regulation 42(1), was not correctly interpreted in the said Circular letter dated 17th January 1966 and the said letter of 31st January 1966. Under regulation 42(1) a progress certificate from the Head Master of a school was no longer a condition of eligibility of a candidate desiring to appear for the examination. It was therefore, open to the Head Master to forward the application of a candidate to the Divisional Board even if the academic progress of the candidate in the opinion of the Head Master was not satisfactory. However, regulation 42(1) did not, according to Mr. It was therefore, open to the Head Master to forward the application of a candidate to the Divisional Board even if the academic progress of the candidate in the opinion of the Head Master was not satisfactory. However, regulation 42(1) did not, according to Mr. Palkhiwala, interfere with the right of the Head Master to withhold the applications of those pupils who have failed to make adequate academic progress operates as a check of indiscipline and promote habits of regular study on the part of the students. Abrogation of this right of the Head Master would amount to a serious encroachment on the internal autonomy of secondary schools. Regulation 42(1) could not, therefore, be interpreted, in the absence of express words to that effect, as casting an obligation on Head Masters to forward the applications of all candidates irrespective of their academic progress in the final year at the secondary schools. Mr. Palkhiwala contrasted the wording of regulation 42(1) which related to the eligibility of ""regular"" students with other Regulations which dealt with ex-students, failed students, etc. He also, pointed that Regulation 78(5), which applies to the Nagpur Division contains an express provision that the heads of secondary schools shall not withhold the applications of candidates who have fulfilled the prescribed conditions for appearing for the final year examination, and that no such express provision was found in the corresponding regulation (regulation 49) which related to secondary schools in the Poona Division. Mr. Palkhiwala accordingly contended that regulation 42(1) did not affect the Head Masters right in the Poona Division to withhold the applications of those pupils who did not make adequate academic progress in the final year. Mr. Palkhiwala argued in the second place that if it were held that regulation 42(1) was correctly interpreted in the said Circular and the said letter, and if it required the Head Master of a secondary school to forward the applications of candidates irrespective of their academic progress, the regulation was ultra vires the regulation - making powers granted under section 36 to the Board and section 37 to the State Government. According to Mr. Palkhiwala, no provision of the Act conferred any right on the Board of the Government to make such a regulation, and that the regulation was also bad because it was circulated to defeat the main purpose of the education in secondary schools. According to Mr. Palkhiwala, no provision of the Act conferred any right on the Board of the Government to make such a regulation, and that the regulation was also bad because it was circulated to defeat the main purpose of the education in secondary schools. Apart from these two main contentions, Mr. Palkhiwala also advanced a supplementary argument that regulation 42(1) was discriminatory because. It purported to take away from the Head Masters in the Poona Division the right, which the Head Masters in Aurangabad Division continued to have, of keeping back those students who did not make adequate academic progress. (10) Before the arguments were over the parties arrived at interim consent terms which were submitted to the Court on 11th February 1966. As the interim consent terms were suggested by the Court, the reasons why they were suggested may be noted. It was felt that those students who were kept back from appearing for the examination to be held in March 1966 had already received the advantages which were claimed by the petitioners for the previous regulations. Those students, like the other students whose applications had been forwarded to the Divisional Board, had assumed that they would not be ale to appear for the S.S.C. Examination unless their academic progress was found to be satisfactory by their Head Masters. Standards of study and discipline were not likely to be adversely affected if these students were allowed to appear for the S.S.C.Examination of March 1966 as desired by the respondents. On the other hand, it was admitted by the learned Advocate General that the Government had not consulted the opinion of educationists in making these regulations. Section 37 of the Act provided that the first regulations made by the State Government under that section were to continue in force until new regulations are duly made by the Board and sanctioned by the State Government under section 36. The learned Advocate General agreed that the newly formed Board would invite the views of educationalists and others, and make a fresh decision on the question in dispute without being influenced by the existing regulation 42(1). The learned Advocate General also felt that it was necessary to have greater uniformity in the regulations operating in the Poona, Nagpur and Aurangabad Divisions in regard to the matters in dispute. The learned Advocate General also felt that it was necessary to have greater uniformity in the regulations operating in the Poona, Nagpur and Aurangabad Divisions in regard to the matters in dispute. (11) Under the interim consent terms the respondents agreed that the Board will consider the question of the right claimed by the heads of secondary schools to withhold the applications of candidates for the final examination on the ground that their academic performance is not satisfactory. The Board agreed to decide this question without being influenced in any way by regulation 42 as interpreted by the respondents and after inviting the views of educationaists and other affected persons, and after hearing a deputation of the Bombay Association of Heads of Secondary Schools. The petitioners on their part agreed to present for the S.S.C. Examination to be held in March 1966 the pupils who had been kept back for want of academic progress. The petitioners agreed to do so without prejudice to their rights and contentions in the petitions. It was further agreed that in the event of the petitioners not being satisfied with the decision which might be taken by the Board, the petitions would proceed to a final hearing after such amendments therein as might be found to be necessary. As one of the petitions has been filed in a representative capacity, the Court certified that the terms of the proposed compromise were in the interest of all the heads of secondary schools represented by the petitioners in that petition and granted leave to the petitioners to agree to the interim consent terms. After recording the interim consent terms, the hearing of the petitions was adjourned. (12) The Board thereafter followed the procedure agreed upon, invited the views of educationists and others, heard a deputation of the Bombay Association of Heads of Secondary Schools, and passed on 29th June 1966 certain regulations which have been designated ""the Third Regulations"". These Third Regulations, instead of assuaging the grievance of the petitioners, augmented it. We will presently indicate the nature of these regulations, but will first notice the steps taken by the parties in pursuance of the interim consent terms. (13) After the consent terms were recorded and the hearing of the petitions was adjourned, the Board issued a questionnaire on some of the matters in dispute. We will presently indicate the nature of these regulations, but will first notice the steps taken by the parties in pursuance of the interim consent terms. (13) After the consent terms were recorded and the hearing of the petitions was adjourned, the Board issued a questionnaire on some of the matters in dispute. A questionnaire was also issued by the Bombay Association of Heads of Secondary Schools. The questionnaire of the Bombay Association was sent to various persons including Principals, Headmasters, parents etc. The replies received by the Bombay Association to its questionnaire were 1495. An analysis of those replies has been produced on behalf of the petitioners. On the question whether the candidates performance in the preliminary examination or the other tests conducted by the school should be an essential condition of eligibility for the S.S.C. examination, 1468 replies were in the affirmative and 22 replies in the negative. On another question 1464 persons as against 16 agreed that if pupils in the S.S.C. Examination class take it for granted that forms would be given to them as of right it would result in neglect of daily work, indifference towards school routine and consequent deterioration in the standard of education. The questionnaire issued by the Board was more detailed. The questions related to the criteria for deciding the eligibility of regular candidates for appearing at the final examination, with particular \reference to attendance at school and the requirement of a progress certificate. The questionnaire was sent to all Heads of the Secondary Schools in the State of Maharashtra, Federation and Head Masters Associations in Western Maharashtra President and Secretary of the Secondary Teachers association in Western Maharashtra and their Federation, all members of the Maharashtra State Board of Secondary Education and the three Divisional Bards of Poona, Nagpur and Aurangabad, all members of erstwhile Secondary School Certificate Examination Board, all members of the former Board of Secondary Education of Vidarbha, experts and members of the former S.S.C.Examination Board, and all Parishad Education Officers, Regional Deputy Directors of Education, , Inspectresses for Girls Schools in the State of Maharashtra and the Educational Inspector of Greater Bombay. Some of the questions were addressed to all those to whom the questionnaire was sent, but some questions were confined to the heads of those schools in the Poona and Aurangabad Divisions who had been following for a number of years the practice of sending up all the pupils in the final standard for the S.S.C. Examination, and some other questions were directed exclusively to heads of secondary schools in the Nagpur Division where no progress certificate was required and the Head Masters had no authority to detain pupils for want of academic progress. The Board received 629 replies prior to 25th April 1966, and an analysis of this set of replies was available to the members of the Board before they passed ""the Third Regulations"" on 29th June 1966. Between 26th April and 11th May 1966, 276 more replies were received by the Board to its questionnaire and a separate analysis of this set of replies has been filed by the Board in these petitions. Considerable reliance was placed before us on behalf of the petitioners on the analysis given by the Board to the two sets of replies received by it. on the question ""What in your opinion should be the criteria for deciding the eligibility of Regular candidates for appearing at the S.S.C. and H.S.S.C. Examinations"", 85.9 per cent of the replies in the first set and 92.8 per cent of the replies in the second set were in favour of the progress certificate being one of the criteria of eligibility. Again on the question ""Are you in favour of prescribing a certificate of the candidates satisfactory progress in school, to be issued by heads of secondary schools, as a condition for admission to the Boards examinations."" 79.2 per cent of the replies in the first set and 86.2 per cent of the replies in the second set were in the affirmative. Out of the questions which were addressed exclusively to those Heads of Secondary schools in the Poona and Aurangabad Divisions who had been following for a number of years the practice of sending up all the pupils in the final standard for the S.S.C. Examination one question was ""Do you find that students do not take to their studies or school examinations, during the final year, seriously in the absence of the fear of detention?"" To this question, 65.9 per cent of the replies in the first set and 68 per cent of the replies in the second set were in the affirmative. Another question addressed to the above Heads of Secondary Schools in the Poona and Aurangabad Divisions was ""Have the S.S.C. Examination results of your school been adversely affected on account of your practice of sending up all the pupils in the final standard for the S.S.C. Examination?"". On this question 61.8 per cent of the replies in the first set and 88.4 per cent of the replies in the second set were in the affirmative. Another question addressed to the same Heads of Secondary Schools was ""Are you, for any reasons, inclined to adopt the practice of detention of pupils in the final standard of your school?"". On this question 60.6 per cent of the replies in the first set and 63.6 per cent of the replies in the second set were in the affirmative. Turning to the question which were addressed exclusively to the Heads of Secondary Schools in the Nagpur Division where there was no practice of detaining pupils in the final standard, one such question was ""Do you think that the practice of sending up all the pupils in the final standard for the S.S.C./H.S.S.C. Examination has affected the general tone and discipline in the final standard in any way?"" To this question, 54.8 per cent of the replies in the first set and 53 per cent of the replies in the second set were in the affirmative. Another question in the same group was ""Has this practice resulted in any loss of seriousness among the pupils in respect of school work and examination?"". 42.3 per cent of the replies to this question in the first set and 55 per cent of the replies in the second set were in the affirmative. Another question in the same group was ""Has this practice resulted in any loss of seriousness among the pupils in respect of school work and examination?"". 42.3 per cent of the replies to this question in the first set and 55 per cent of the replies in the second set were in the affirmative. In assessing the value of the replies received from the heads of secondary schools in the Nagpur Division, it must be borne in mind that the Head Masters of those schools have the power of assigning 20 per cent of marks in each subject of the final examination on the basis of their internal assessment of the performance of each candidate during his final year at school. A noteworthy feature of the questionnaire issued by the Board was that it did not contain any direct question on whether the Heads of secondary schools in the Poona and Aurangabad Divisions should or should not be required to forward the applications of all candidates irrespective of their academic performance in the final standard. It seems to have been assumed by the Board, when they framed the questionnaire, that if the condition of the progress certificate was dispensed with the Head Masters would automatically lost the right of withholding the applications of their pupils on the ground of want of adequate progress. We will have an occasion to comment on this feature of the questionnaire at a later stage. (14) Prior to the meeting of the Board in which ""the Third Regulations"" were adopted the results of the S.S.C. Examination in the Poona Division had been declared on 4th June 1966. It was agreed before us on both sides that about 1,50,000 students appeared for the examination, and that about 44 per cent of them were declared successful. Out of these 1,50,000 students about 7,500 (5 per cent of the total) were students who had been initially kept back by their Head Masters for want of academic progress, and were subsequently sent up as a result of the Circular dated 17th January 1966 issued by the Divisional Board and the subsequent interim consent terms recorded in these petitions. These students will be referred to as the ""kept back"" students. Some of the results of the kept back students were available to the members of the Board before they adapted ""the Third Regulations"". These students will be referred to as the ""kept back"" students. Some of the results of the kept back students were available to the members of the Board before they adapted ""the Third Regulations"". The available results were from three urban areas - Bombay and Greater Bombay, Poona City and Camp, and Sangli City - and from one rural area. viz., Sangli district other than Sangli City. These results were of 2,960 students out of the 7,500 students who had been initially kept back. The result showed that about 20 per cent of the students from the urban areas (Bombay and Greater Bombay, Poona City and Camp and Sangli City) passed in the examination, whereas from the rural areas of the Sangli district only 3 out of the 111 kept back students succeeded in the examination. The Bombay Association of Heads of Secondary Schools had also collected the results of students from 101 schools in Greater Bombay. Their analysis showed that out of the students who had been sent up on progress certificates (i) examination who were not kept back) 75.9 per cent were successful, whereas the success of the kept back students was 16.4 per cent. (15) The meeting of the Board at which ""the Third Regulations"" were passed was held on the 27th, 28th and 19th of June 1966. The meeting heard a deputation of the Bombay Association of Heads of Secondary Schools and also heard their counsel in some of the points of law involved. By a majority of 26 in favour and 6 against, with 3 abstaining, the Board resolved that "" a certificate of satisfactory progress from the Head of the Secondary School should not be necessary and it should be made obligatory on the Head of the Secondary School to forward applications of all eligible candidates."" In pursuance of this and the other resolutions passed at the meeting the Board adopted on 29th June 1966 ""the Third Regulations"". For our purposes it is enough to notice some of the features of the new regulation 42 and the new regulation 49 comprised in the Third Regulations. For our purposes it is enough to notice some of the features of the new regulation 42 and the new regulation 49 comprised in the Third Regulations. Whereas the old regulation 42 (framed by the State Government under section 37 of the Act) had provided in a negative form that no candidate shall be admitted to the final examination unless he fulfilled the conditions mentioned in that regulation, the new regulation 42 (adopted by the Board as a part of the Third Regulations) provided that a candidate ""shall be eligible"" to appear for the S.S.C. Examination on fulfilling the conditions mentioned in that regulation. Both the old as well as the new regulation 42 did not prescribe a progress certificate from the head of a secondary school as a condition of eligibility of a candidate for appearing the S.S.C. Examination. A more material change was brought about by the Board in regulation 49 which related to the applications of candidates for the examination. In that regulation the Board incorporated a new clause being clause No. (8), to the following effect:- ""(8) Heads of Secondary Schools shall not withhold the applications of candidates who have fulfilled the conditions prescribed for appearing at the Examination, without previous sanction of the Divisional Chairman."" By this amendment the Board purported to negative the right claimed by the petitioners of withholding the applications of their pupil if they fail to show adequate progress during their final year at school. (16) After the result of the Board meeting was communicated to the petitioners they got the petitions amended so as to challenge the validity of ""the Third Regulation"". In the amended petitions the petitioners claimed that the percentage of success of the kept back students in the S.S.C. Examination held in March 1966 cannot offer any guidance on the likely impact of the ""Third Regulations"" on the pupils who will hereafter appear for the examinations of subsequent years. The petitioners averred that the kept back students who appeared for the March 1966 examination had prepared and appeared for all the school tests including the preliminary examination with the knowledge that their performance at the said tests and the preliminary examination would be taken into consideration by the heads of schools for their being sent up for the S.S.C. Examination. On the other hand, the pupil who would hereafter appear for the S.S.C. Examination would, the petitioners alleged, know from the beginning that they need not appear nor prepare for any of the tests conducted by the schools including the preliminary examination and that they would be able to appear for the S.S.C. Examination irrespective of their academic progress or performance. It was further claimed by the petitioners that the ""Third Regulations"" would remove the incentives which were hitherto available to the pupils in the final standard for regular and systematic work and would undermine the very basis of the Head Master's authority and his right to decide whether a pupil should be presented as the candidate of his school for the final examination. The relevant averments in the amended petitions were denied in an affidavit in the reply filed by the chairman of the Board. With his affidavit in reply he produced. Amongst other documents, the minutes of the Board meeting held on 27th, 28th and 29th June 1966, and a statement regarding the educational qualifications and other particulars of the members of the Board. (17) At the hearing of the petitions before us, Mr. Palkhiwala argued for the petitioners and the learned Advocate General for the respondents. At the end Mr. Sorabjee replied on behalf of the petitioners as Mr. Palkhiwala was not then available. As my learned brother was not present at the first hearing of the petitions, all the questions in dispute were argued again and at considerable length. Before dealing with the arguments from either side and in order to appreciate them, it is desirable to examine the general scheme and some of the specific provisions of the Act. (18) According to its preamble the object of the Act is ""to regulate certain matters pertaining to secondary education in the State of Maharashtra and for other purposes hereinafter appearing."" It will be noticed that on the one hand the object of the Act, is not confined, like that of the Bombay Secondary School Certificate Examination Act of 1948, to the holding and conducting of the S.S.C.Examination and prescribing courses of studies for the examination, and that on the other hand the object of the Act, is not so wide as that of the Madhya Pradesh Secondary Education Act of 1955 which was ""to establish a Board to regulate secondary education in Madhya Pradesh"". The present Act is designed to regulate ""certain matters"" pertaining to secondary education and not to regulate secondary education generally. Section 2(1) of the Act defines the term ""recognised by the Divisional Board"" with reference to a secondary school as meaning ""recognised by a Divisional Board for the purposes of admission to the privileges of that Board."" The term ""secondary education"" is defined in section 2(o) as meaning ""such general, technical, vocational or special education . . . . . . . . . which is designed to meet the needs of the period of adolescence and which follows immediately primary education and precedes immediately education controlled by Universities established by law in India."" Section 3 provides for the establishment of the State Board and the three Divisional Boards, and sections 4 to 17 define the con. Of these Boards, and provides for their mode of functioning. Of these sections, section 5 deals with Constitution of the State Board. it shows that the Board is to consist of 44 members, however, are nominees of the State Government. Out of the 44 members of the Board, 35 are nominated by the State Government and 9 are elected. 6 by each of the University in the State, 2 by the Legislative Council. Section 18 defines the powers and duties of the State Board. under section 18 (a) one of the functions of the Board is to advice the State Government on matters of policy relating to secondary education in general. Under section 18(b) the Board can lay down guiding principles for determining curricula and syllabi for the entire secondary course, and to determine the curricula and detailed syllabi for the final examination. Section 18 (c) relates to recommendation of text-books. Under section 18(d) the Board can prescribe standard requirements in respect of staff, buildings, furniture, equipment, stationary and other things required for secondary schools. Section 18 (f) is important for our present purpose. It empowers the Board ""to prescribe conditions for admission to the final examination, for regular and private candidates"". Under section 18 (1) the Board can call for any information from any secondary school recognised by a Divisional Board ""to ensure maintenance of academic standards in secondary education"". Section 18 (f) is important for our present purpose. It empowers the Board ""to prescribe conditions for admission to the final examination, for regular and private candidates"". Under section 18 (1) the Board can call for any information from any secondary school recognised by a Divisional Board ""to ensure maintenance of academic standards in secondary education"". Section 18(m) empowers the Board to recommend measures to promote physical, moral and social welfare of students in institutions recognised by the Divisional Boards, and to prescribe conditions of their residence and discipline. Section 18(t) empowers the Board ""to make regulations for the purpose of carrying into effect the provisions of this Act."" Under section 18(v) the Board can ""exercise such other powers and perform such other duties as may be conferred or imposed on it by or under this Act."" Under section 18(w) the Board can ""do all such acts and things as may be necessary to carry out the purposes of this Act."" Then section 19 defines the powers and duties of a Divisional Board. Under section 19(f) one of the functions of a Divisional Board is ""to conduct in the area of its jurisdiction the final examination on behalf of the State Board."" Under section 19(h) a Divisional Board admits candidates for the final examination ""according to the regulations made by the State Board in this behalf"". Section 19(m) empowers a Divisional Board ""to generally evaluate the performance of students in all examinations in secondary schools including the final examination and make necessary recommendations to the State Board in that behalf."" Under section 19(n) a Divisional Board has a power ""to grant recognition to secondary schools or withdraw the same in the prescribed manner."" Under section 19 (o) a Divisional Board can call for any information from a recognised secondary school ""to ensure maintenance of academic standard"", and to withdraw recognition of schools who failed to maintain ""the required academic standard"". Under S. 19(q) a Divisional Board is authorised "" to require institutions recognised by it and the Education Department to extend their co-operation in the conduct of the final examination."" Section 34 gives power to the State Government to issue to the State Board such directions consistent with the Act as it may think fit. Section 36 relates to the power of the State Board to make regulations. Section 36 relates to the power of the State Board to make regulations. Sub-section (1) of S. 36 lays down that the State Board may make regulations ""for the purposes of carrying into effect the provisions of this Act."" Sub-section (2) of section 36, enlists the particular topics on which such regulations may be made without prejudice to the generality of the power granted by sub-section (1). The topic mentioned under section 36(2) (c) is ""the admission of candidates to the final examinations and conditions governing such admission"". The topic under section 36(2) (f) is ""the arrangements for the conduct of final examinations by the Divisional Boards and publication of results."" Sub-section (3) of section 36 provides that no regulation made under this section shall have effect until the same has been sanctioned by the State Government. As already mentioned, section 37 lays down that the first regulations shall be made by the State Government and that they shall continue to be in force until new regulations are duly made and sanctioned under section 36. (19) Section 38 empowers the State Board to make bye-laws ""consistent with this Act and the regulations made thereunder"" for the purpose of providing for such matters as the procedure to be followed at the meeting of the State Board and the Divisional Boards, the compensatory allowance which may be drawn by members of the Boards and other matters solely concerning the Boards and their Committees. By section 40 the Bombay Act of 1948 and the Madhya Pradesh Act of 1951, which have been referred to above, were repealed. (20) The old regulation 42 framed by the State Government having been replaced by the new regulation 42 framed by the Board, the attack of Mr. Palkhiwala at the resumed hearing was directed towards clause (2) of the new regulation 42 which dispensed with the progress certificate as one of the conditions of eligibility of candidates for the S.S.C.Examinations and clause (8) of regulation 49 which purported to take away the right of heads of secondary schools to withhold the applications of candidates who have failed to make satisfactory academic progress in the final year. One of the arguments advanced by Mr. Palkhiwala in this behalf can be dealt with separately from the rest of his arguments. One of the arguments advanced by Mr. Palkhiwala in this behalf can be dealt with separately from the rest of his arguments. This argument was not pursued by him on the ground that it was unnecessary to do so, but was not formally given up. He argued that the powers which have been granted under the Act to the State Board and the Divisional Boards are powers of delegated legislation, and that therefore the regulations framed by the State Board cannot impose any obligations or interfere with any rights where such imposition or interference is not expressly provided for by the Act. the expression ""delegated administration"" used by Mr. Palkhiwala was perhaps not an appropriate one. The legislature being not an administrative body, the conforment of administrative powers under an enactment cannot be looked upon as an act of delegation. However, what Mr. Palkhiwala meant was that the regulations which the State Board was empowered to make under the Act are in the nature of administrative orders and cannot have the force of law. we do not find it possible to accept this argument. The regulations made under the Act are capable of being enforced by judicial means and this implies that the regulations have the force of law. for instance, one of the regulations is to the effect that a student who gets 35 per cent marks in each subject at the S.S.C. Examination is to be declared by the Divisional Board as having succeeded in the examination. There can be little doubt that if a student gets the requisite number of marks and is not shown to have succeeded in the examination, he or his guardian can adopt appropriate judicial means to require the Divisional Board to declare him as having succeeded in the examination. Instances of this type can be multiplied. We are accordingly of the view that the regulations made under the Act have the force of law. (21) The other arguments of Mr. Palkhiwala can be summarised under the following heads:- (a) the new regulations 42(2) and regulation 49(8) are ultra vires, because - (i) they are not covered by the regulation-making powers which the Act has granted to the Board, and because (ii) they are contrary to the main purpose of the Act which is the maintenance of standards of education in secondary schools. (b) that the said regulations are in the nature of bye-laws and not statutory rules, and are invalid, because they are - (i) unreasonable, and (ii) repugnant to the general law; (c) that the said regulations are discriminatory and bad under Article 14 of the Constitution as they introduce inequality between the Head Masters of secondary schools in the Poona Division and the Head Masters of secondary schools in the Nagpur Division. An additional point which was taken in the petition was that the impugned regulations amount to an unreasonable encroachment on the fundamental right of the petitioners to conduct and run the business or vocation of an educational institution efficiently and in the proper interest of the pupils and were therefore violative of Article 19(1)(g) of the Constitution. This contention was not pressed by Mr. Palkhiwala in view of the effect of Article 358 of the Constitution during the operation of the Proclamation of Emergency. (22) We pointed out to Mr. Palkhiwala at an early stage of his arguments that it would not be possible for the Court to grant any relief to the petitioners in respect of their grievance about the new regulation 42(2). It was within the competence of the Board to lay down the conditions of eligibility of candidates for the S.S.C. Examination. The mere fact that regulation 42 does not contain one of the conditions of eligibility (viz., the requirement of a progress certificate from the head of the school) which was founded in the corresponding regulation 27 made under the earlier Bombay Act of 1948 cannot afford any legitimate ground for holding that regulation 42 is either ultra vires or unreasonable or repugnant to the general law. Regulation 42 was a fresh regulation under the present Act, and cannot be looked upon as mere amendment of regulation 27 which was framed under the old Act. it is true that from the point of view of the petitioners the new regulation 42 had another objectionable feature. It stated in a positive form that a candidate ""shall be eligible to appear for the Secondary School Certificate Examination"" on fulfilling the conditions laid down in that section. it is true that from the point of view of the petitioners the new regulation 42 had another objectionable feature. It stated in a positive form that a candidate ""shall be eligible to appear for the Secondary School Certificate Examination"" on fulfilling the conditions laid down in that section. Such language was probably used by the Board in order to emphasise what was expressly stated in clause (8) of regulation 49 that the heads of secondary schools shall not be entitled to withhold the applications of candidates on any ground other than those mentioned in the new regulation 42. If, however, clause (8) of regulation 49 is found and declared to be invalid, the new regulation 42 cannot by itself f have the effect of depriving the heads of schools of the power claimed by them to withhold applications of candidates on the ground of inadequate academic progress. By itself and in the absence of clause (8) of regulation 49, the Divisional Boards shall admit all candidates whose applications have been forwarded and who are found to be eligible according to the conditions laid down in that regulation. Mr. Palkhiwala accepted this view and confined his attack under the above heads to clause (8) of regulation 49. (23) One of the questions canvassed before us was whether the regulations framed under the Act wherein the nature of statutory rules or bye-laws. This question is relevant in considering the second part of Mr. Palkhiwala's arguments, viz., that regulation 49(8) is bad because it is unreasonable and because it is repugnant to the general law. according the Mr. Palkhiwala, regulation 49(8) is ultra vires the powers of the Board irrespective of whether that regulation is looked upon as a statutory rule or a bye-law. the latter question will accordingly be considered while dealing with the second part of Mr. Palkhiwala's arguments. (24) In considering whether regulation 49(8) is ultra vires the powers of the Board, it is very important to know by what right the petitioners claim to be entitled to withhold the applications of candidates on the ground that their academic progress is unsatisfactory. It will be found that the vires of regulation 49(8) as well as its alleged unreasonableness depend on the existence of the above right claimed by the petitioners as heads of secondary schools. The nature of that right was explained by Mr. It will be found that the vires of regulation 49(8) as well as its alleged unreasonableness depend on the existence of the above right claimed by the petitioners as heads of secondary schools. The nature of that right was explained by Mr. Palkhiwala in the course of his arguments with reference to a passage from Halsbury which will be presently quoted. When the learned Advocate General commenced his reply, he on behalf of the respondents and Mr. Sorabjee on behalf of the petitioners agreed that the nature of the right claimed by the petitioners should be specified in the form of an amendment to the petitions. Paragraph 12 (aa) was accordingly added to the petitions by way of an amendment and a supplementary affidavit in reply was filed by the respondents. (25) According to the petitioners, the right claimed by them arises from the implied terms which the common law attaches to the contract to educate. These implied terms are the basis of the internal autonomy of educational institutions. In Halbury's Laws of England, in the volume dealing with Education, the following portion appears under the heading ""Common Law Right and Duties"" and the sub-heading ""The Contract to educate"" (Halsbury, Third Edition, Volume 13, page 590, paragraphs 1241 and 1242):- ""1241. Parents and school proprietors:- In schools which are not maintained by local education authorities the relations between the parent and the proprietor of the school are governed by the terms express or implied of the contract for the education of the child. Subject to the express terms of the contract, there is an implied term that the proprietor shall continue to be responsible for the education of the child so long as the child's conduct does not warrant his expulsion from the school. ""1242. Position of schoolmasters:- The authority of a school master is, while it exits, the same as that of a parent. A parent, when he leaves his child with a schoolmaster, delegates to him all his own authority, so far as is necessary for the welfare of the child, and so far as necessary to maintain discipline with regard to the child committed to the teacher's care. The delegation is revocable, and in case of conflict the authority of the parent must prevail and he may have a habeas corpus if the master detains the child against his wish. The delegation is revocable, and in case of conflict the authority of the parent must prevail and he may have a habeas corpus if the master detains the child against his wish. The parent undertakes that the master shall be at liberty to enforce with regard to the child the rules of the school, or at all event such rules as are known to him and to which he has expressly or impliedly agreed. The master is bound to take such care of his pupils as a careful father would take of his children."" Applying these principles to the case before us, it seems clear that when a parent gets his child admitted to a secondary school he undertake that the Head Master shall be at liberty to enforce with regard to the child such rules of the school as are reasonably designed to promote the education of the child and to maintain discipline in the school. The main purpose of education in secondary schools is to prepare pupils for the S.S.C. Examination. A few secondary schools in the State prepare some pupils for another examination called the Indian School Certificate Examination which has a higher standard than the S.S.C. Examination. It was however, common ground such before us that only those secondary schools who teach in the English medium, are allowed to prepare students for the Indian School Certificate Examination, and that even these schools usually have a section which prepares students for the S.S.C. Examination. Since the main purpose of education in the secondary school is to prepare pupils for the S.S.C. Examination, it schools that a parent who gets his child admitted to secondary school undertakes that the Head Master shall be at liberty to enforce with regard to the child such rules of discipline as are reasonably designed to prepare him for that examination. Under the implied terms of the contract the Head Master is entitled to withhold promotion of a pupil from one standard to the next, if the pupil does not show satisfactory academic progress. The same right is exercised by Head Master in respect of pupils in the final standard by refusing to grant them leave to appear for the S.S.C. Examination unless satisfactory progress is made by them. Such a rule is obviously designed to promote habits of regular and diligent study in the pupils. The same right is exercised by Head Master in respect of pupils in the final standard by refusing to grant them leave to appear for the S.S.C. Examination unless satisfactory progress is made by them. Such a rule is obviously designed to promote habits of regular and diligent study in the pupils. The Head Masters claim the right to judge the academic progress and performance of their pupils before presenting them for the S.S.C. Examination, but that right results from the more basic rule enforced in the school that only those students will be presented for the S.S.C. Examination who have studies regularly in the course of the year and made adequate academic progress. (26) It was averred by the petitioners and was not denied by the learned Advocate General, that in actual practice the Head Masters in the Bombay Province exercised the right for well-nigh 100 years of presenting for the final examination only such students as were found to be fit to pass the preliminary examinations held by the schools. We have no evidence whether this practice originated in a conscious recognition of the common law rights of educational authorities, but it does appear that the practice coincided with those rights. It seems, moreover, that the right was recognised, by the Bombay University in respect of the Matriculation Examination which used to be held by the University. A form of application for admission to that examination was required to be endorsed by the Head Master with a statement that the student had the ""permission"" of the Head Master to present himself or herself for the Matriculation Examination of the particular year. The right is still recognised by the University of Cambridge Local Examinations Syndicate which is responsible for the holding of the Indian School Certificate Examination in India and similar examinations in the other parts of the world. The candidates appearing for that examination are described as having been ""presented"" by affiliated schools and entry forms are prescribed for ""school candidates."" The settled practice which is followed in presenting candidates to the Indian School Certificate Examination has been described in an affidavit filed by the petitioners of Reverend G. Ridding, who is the Convenor of the Bombay Branch of the Council for the Indian School Certificate Examination and the Principal of the Cathedral and John Connon Boys' School in Bombay. He stated: ""In fact the Principles of the Schools are free to detain pupils who are not fit and whose academic progress was unsatisfactory and not to present them as candidates of their schools if in their bona fide judgment they so think fit and proper and are further free to withdraw even a listed candidate."" It appears from the rules that the Principals of schools are required to send the applications of candidates for the Indian School Certificate Examination such in advance of the end of the academic year. They are, however, entitled to withdraw the name of a listed candidated, if by the end of the academic year they find that his progress is not satisfactory. We find that this practice is recognised by the University of Cambridge Local Examination Syndicate itself. in the introductory notes to their Regulations of 1962 the Syndicate stated- ""Owing to the long interval between the date of entering and the examination if sometimes happens that a school withdraws a candidates who has been duly entered, on the ground that he has not yet reached the standard required."" Even in the present regulations framed under the Act, expressions have been used which indicate that the heads of secondary schools have the right to ""present"" candidates for the S.S.C. Examination. Regulation 19(6) for instance lays down that ""no secondary school which is not recognised by the Divisional Board concerned shall be permitted to present candidates for any final Examination conducted by it."" Such an expression is also used in regulation 47(1). It is safe to conclude that heads of schools have a common law right which has been recognised in practice of presenting only such of their pupils for the final examination as have shown adequate academic progress and of not presenting the others. (27) The learned Advocate General argued in this connection that the common law rights on which the petitioners rely are contractual rights, that the terms of the contract express or implied are only binding on the parties to the contract, and that those terms have no relevance for the public examination held by the Board. the learned Advocate General argued that the schools have no common law right to send up students for a public examination,. the learned Advocate General argued that the schools have no common law right to send up students for a public examination,. The right to send up students for a public examination depends upon the recognition of the school by the authority which conducts the examination and the right is subject to such rules as may be made by that authority. The learned Advocate General further argued that the right of withholding the applications of candidate on the ground of want of academic progress was granted by Head Masters by law, and what was granted by law could always be taken away by law. Hence the Head Masters cannot, according to the learned Advocate General, claim any right to withhold the applications of candidates for the S.S.C. Examination. (28) It appears to us that these arguments miss the point in dispute. It was not claimed on behalf of the petitioners that the implied terms of contract between the head of a school on the one hand and the pupil's guardian on the other bind any person other than the parties to the contract. the whole concept of the internal autonomy of education institutions arises from such implied terms which are not binding on third parties. As far as the S.S.C. Examination is concerned, the effect of the implied contractual terms is that a student is not entitled without the permission of his Head Master to appear for the examination, unless a right to that effect is validly conferred on him in suppression of the contractual terms. The point in dispute is whether the Board has been authorised by the legislature to grant such a right on the student in suppression of the implied contractual terms. It is not disputed that the legislature could itself have passed a law to that effect and it is also not disputed that the legislature could have authorised the Board to make a regulation to the same effect having the force of law. (29) In support of his argument the learned Advocate General relied on a decision of the Kerala High Court in Joseph Valamangalam v. State of Kerala, AIR 1958 Ker 290 . (29) In support of his argument the learned Advocate General relied on a decision of the Kerala High Court in Joseph Valamangalam v. State of Kerala, AIR 1958 Ker 290 . In that case the Court held inter alia that schools which had sought recognition and accepted aid from the State Government were bound by the extensive powers of control which the Government had given to themselves by rules made in the Travancore Education Code. That decision offers no assistance in the present case, because Travancore Education Code was body of executive instructions having no statutory limitations. It is obvious that in the absence of any statute relating to the powers of the Government to grant aid to schools, the Government can make any rules to control the management of schools which seek and accept Government aid provided those rules do not violate any fundamental right guaranteed by the Constitution. The learned Advocate-General also relied on certain passages from the opinion given by the Supreme Court in In Re, Kerala Education Bill, 1957, 1959 S. C.R. 995 ( AIR 1958 SC 956 ) and the decision of the Supreme Court in Prabhakar Ramkrishna Jodh v. A.L. Pande, (1965) 2 S. C. R. 713, to show that extensive interference in the right of management of educational institutions can be brought about by a legislative enactment or by rules validly made thereunder. That position however, is not disputed by the petitioners. (30) It was further argued by the learned Advocate General that the Head Master's authority under the implied terms of the contract to educate a pupil is revocable at the instance of the parent, and that the Head Master cannot therefore claim, on the basis of such authority, a right to disallow the pupil from appearing fro the final examination. We are unable to accept this argument also. In the context of the right claimed by the Head Masters in the present case, the parent can revoke the authority delegated by him to the Head Master only by withdrawing the pupil from the school. He cannot by exercising the powers of revocation compel the Head Master to forward the pupil's application for the S.S.C. Examination, just as he cannot in the exercise of that right compel the Head Master to promote the pupil from one standard to the next. He cannot by exercising the powers of revocation compel the Head Master to forward the pupil's application for the S.S.C. Examination, just as he cannot in the exercise of that right compel the Head Master to promote the pupil from one standard to the next. (31) We may accordingly conclude that the head of schools represented by the petitioners have a right, which is contractual in nature and which is binding on pupils and their guardians, of not permitting the pupils to appear for the S.S.C. Examination if the Head Masters find that the pupils have failed to make adequate progress, and that this right is capable of being overridden by a valid regulation. (32) That leads us to the question whether the Board in the present case, was authorised by the Act to make regulation 49 (8) so as to override the above right of the head of schools. Section 18 of the Act defines the powers of the Board and the only provision of that section which directly relates to this topic is contained in clause (f). Clause (f) of S. 18 empowers the Board ""to prescribe conditions for admissions to the final examination, for regular and private candidates."" It was claimed by the learned Advocate General that this provision enables the Board to confer on students the right to be admitted to the final examination, on their satisfying the conditions prescribed by the Board. now, it cannot be disputed that where a power if granted to a subordinate legislative body to impose conditions for the exercise of right and conditions in that behalf are imposed by that body, the right in question can as a matter of course be exercised if the conditions so imposed are fulfilled. It is, however, clear that the right itself does not arise from the power to impose conditions on its exercise. It follows that if the students in the final standards of the secondary schools had a right to appear for the S.S.C. Examination, then on their fulfilling the conditions prescribed by the Board under section 18(f) they would be entitled to appear for the examination. Their right to appear for the examination cannot, however be derived from the power given to the Board under section 18(f). The point involved can be brought out by an illustration. Their right to appear for the examination cannot, however be derived from the power given to the Board under section 18(f). The point involved can be brought out by an illustration. Municipalities are authorised by law to impose conditions on persons who want to start certain types of business in the area of their jurisdiction. In pursuance of that power a municipality may make a bye-law that no person can construct a theatre or start a hotel without obtaining a licence, which would be given if certain conditions are fulfilled. On fulfilling those conditions any person desiring to construct a theatre or to start a hotel is entitled to get a licence from the municipality. His right to construct a theatre or to start a business of a hotel is not, however, derived from the power granted by the Act to the municipality of prescribing conditions for the exercise of that right. His right arises independently of the power granted to the Municipality. We must accordingly hold that the power granted to the Board under section 18(f) to prescribe conditions for admission of students to the final examination does not by itself enable the Board to confer on students the right to appear for the examination, if that right has been already surrendered to the heads of schools under the implied terms of the contract of education. (33) Notice must be taken in this connection of another argument advanced by the learned Advocate General. He argued that the heads of schools represented by the petitioners claim in effect the power to decide the eligibility of candidates for the S.S.C. Examination, whereas the power to make that decision has been granted by the legislatu"