Judgment :- MISHRA, J. 1. A controversy generated over the publication of the XII Standard, 1992 results by the Central Board of Secondary Education (hereinafter referred to as ‘the CBSE’) reached the State Government in the shape of press reports and a number of representations by parents of the students of the Higher Secondary Course plus 2 examination (HSC) of the State Government. The State Government, it appears, took steps to verify the veracity of the complaints and in this process the Director of Government Examinations of the State Government met the Joint Secretary (Regional Officer) (CBSE) (Southern Region), Madras and requested particulars regarding the CBSE students from Tamil Nadu, viz., (1) Number of candidates who appeared through schools in CBSE pattern during 1992; (2) Number of persons who secured marks above 60%; (3) Number of persons who secured above 90% and (4) Number of persons who secured above 95%, and made a specific request to furnish the number of students who secured 95% and above subject-wise as well. This meeting was followed by a letter dated 3-6-1992 by the Director of Government Examinations, Madras to the Joint Secretary (Regional Officer) Madras, CBSE on the subject. The letter reiterated that there were reports published in the local daily newspapers of Madras saying that the CBSE has inflated through manipulation, the marks of Class XII candidates who appeared for the examination in March, 1992 from Tamil Nadu and this had put the candidates of State Board at a disadvantage. This letter, it appears, was replied to on 8th June, 1992 stating inter alia that CBSE policies were applicable to all the candidates who took the examination from its affiliated schools wherever they may be located, and “students from the Madras Region have shown a high degree of excellence in their performance in the Boards Examinations each year, with 1992 being no exception. Their achievement is the result of their own merit and not due to any favouritism from the CBSE. The Madras Region is a very big region “which, apart from Tamil Nadu, includes Karnataka, Andhra Pradesh, Kerala, Maharashtra, Pondicherry, Goa and Andaman & Nichobar Islands. Examination results are not processed state-wise in any of the five CBSE Regional Offices outside Delhi including Madras.” 2. The State Government, however, issued G.O.Ms. The Madras Region is a very big region “which, apart from Tamil Nadu, includes Karnataka, Andhra Pradesh, Kerala, Maharashtra, Pondicherry, Goa and Andaman & Nichobar Islands. Examination results are not processed state-wise in any of the five CBSE Regional Offices outside Delhi including Madras.” 2. The State Government, however, issued G.O.Ms. No. 555 Education Department dated 15th June, 1992, as extracted hereunder: Government of Tamil Nadu Abstract Professional Courses—Admission of students#1511992-Fixing up of number of seats among students of State Higher Secondary Education—Central Board of Secondary Education—Orders issued Education Department G.O.Ms. No. 555 Dated 15 June, 1992, ORDER 1— There have been Press Reports and a number of representations made by parents to the effect that the valuation of the Central Board of Secondary Education (CBSE) Plus-2 answer papers has been over liberal this year which will place the CBSE students at an unfair advantageous position and will be detrimental to the large number of students who have passed State Higher Secondary Course (H.S.C.) Plus-2 Examination under the State Board of Higher Secondary Examination. 2. Considering the serious nature of the complaint which will affect the career of a large number of students who have passed H.S.C. Plus-2 examination under the State Board of Higher Secondary Education, the Government verified the veracity of these representations by a standard sample check up of the marks obtained by students in the CBSE Plus-2 Examinations and the HSC Plus-2 Examinations from the applications received for the Tamil Nadu Professional Course Entrance Examination. The findings of the sample check are as follows: Percentage of candidates who have scored 190 and above out of 200 in Stream Maths Physics Chemistry Biology CBSE 27% 48% 48% 54% HSC 28% 12% 11% 7% 3. This was compared with the figures of the previous years when no such complaints of over liberalisation was received and was found as follows: Percentage of Candidates who scored more than 95 per cent in subjects. Maths Physics Chemistry Biology Year HSC CBSE HSC CBSE HSC CBSE HSC CBSE 1990 19 13 7 10 9 14 3 25 1991 17 24 5 31 9 20 6 14 4. Government after careful consideration of these facts, are convinced that an attempt has been made to overliberalise the valuation in CBSE Plus-2 Examination, particularly in science subjects, so as to give an unfair advantage to these students. Government after careful consideration of these facts, are convinced that an attempt has been made to overliberalise the valuation in CBSE Plus-2 Examination, particularly in science subjects, so as to give an unfair advantage to these students. This has raised a serious problem of comparability of two streams of students who have passed through two different systems of valuation. Government feel that this calls for corrective action to meet the ends of Justice. 5. Pending a permanent solution to such problems in future, Government after careful consideration, direct that ratio of seats to be allotted in all professional Colleges to CBSE and Indian School Certificates (ISC) students on the one hand and the State Board students on the other hand, will be arrived at with reference to the total number or students who appeared for the CBSE & ISC Examinations on the one hand and State Board Examination on the other hand. 6. The total number of students who appeared this year for the State Higher Secondary Course Examination are 2,37,607 and the number of students who appeared for the CBSE & ISC Examinations are 3,962. The seats for the CBSE and ISC students worked out on the above ratio will be 1.64%. In other words 1.64% of the seats in the Professional Colleges can be allotted to the CBSE & ISC students and 98.36% of the seats can be allotted to the students who took HSC Plus-2 State Board Examination & these figures can be rounded to 2% and 98% respectively. 7. So, the Government direct that 2% of the seats in all the Professional Colleges be set apart for CBSE & ISC students and 98% of the seats be made available to State HSC students. The allotting of the seats in the above manner will be subject to the other rules of reservation in force. This formula will also be made applicable to the admission for Arts and Science Colleges so that equity and justice are ensured in admission to these colleges also. (By order of the Governor), J.R. Ramanathan, Secretary to Government.” 3. In a writ petition (W.P. No. 7656 of 1992) and a batch of writ petitions being W.P. Nos. This formula will also be made applicable to the admission for Arts and Science Colleges so that equity and justice are ensured in admission to these colleges also. (By order of the Governor), J.R. Ramanathan, Secretary to Government.” 3. In a writ petition (W.P. No. 7656 of 1992) and a batch of writ petitions being W.P. Nos. 7862 to 7865 of 1992 and 8099 of 1992, and other petitions, this order dated 15th June, 1992, has been challenged, stating that reservation of 2% only for CBSE students for admission in the professional Colleges is violative of the principles of equity and non-arbitrariness, and offended Arts. 14, 15 and 30 of the Constitution, giving a complete blow to merit, is not based on intelligible differentia and therefore, it cannot be justified on any of the exceptions laid down under the Constitution, is hit by the principles of natural justice and promissory estoppel and is opposed to the catena of decisions of the Supreme Court and this Court. 4. Writ Petition No. 8477 of 1992 has been filed, however, for the relief inter alia in the nature of a writ of mandamus or any other writ or order or direction to the CBSE to deduct the extra marks awarded in favour of its candidates who appeared for the plus-2 examination for the year 1992 and to direct the State of Tamil Nadu to consider the claims of the students belonging to the CBSE only on the basis of such deducted marks. A further prayer has been made in this petition to direct the fourth respondent herein, viz., the Director General of Police, Madras, to take action against the first respondent-CBSE for fabricating the marksheets. 5. Several parties have entered the arena of litigation intervening either in favour of the petitioners questioning the validity of G.O.Ms. No. 555 Education Dept., dated 15-6-1992 or opposing it. 6. In their return, the respondent-State Government have justified the Government Order stating that after carefully studying and examining all the materials they came to the conclusion that there had been over liberalisation of the valuation in the CBSE Plus-2 Examination which has resulted in great hardship to the HSC students and in such circumstances, the State Government felt duty bound to protect the interests of the HSC students for which purpose they passed the impugned Government Order. 7. 7. The CBSE has stated that the schools affiliated with the CBSE, provide uniformity of Syllabus and the examination system throughout the country, as well as, cater to the needs of the students whose parents/guardians are subject to transfers in the Government of India offices abroad. It has prescribed strict affiliation Bye-laws and, ‘The clientele of the schools affiliated to the CBSE by and large consists of Independent schools, Kendriya Vidyalayas, Jawahar Navodaya Vidyalayas, Sainik Schools, Military Schools, Army Schools, Government Schools and a few schools affiliated with the Board abroad.” After giving some informations as to number of schools affiliated to CBSE, the Syllabi and Courses for Classes X and XII and other matters, it is stated in their counter, that since 1991 administrative machinery has been decentralised in accordance with the recommendations incorporated in the New Education policy and, ‘Today, CBSE has six Regional offices at Delhi, Madras, Ajmer, Chandigarh, Ranchi and Gauhati. Jurisdiction of Regional offices is detailed in the annexure annexed hereto as Annexture R-1. The powers of Regional offices detailed in the annexure annexed hereto as Annexture R-2. The Regional officers have been given no role in the formulation of the policy governing the conduct of examination. They are not the members of any such committee where results are discussed or reviewed. In fact all results are based on the award list prepared by the Coordinators/examiners. The awards of the candidates are processed by two different computing agencies working independently. No manipulation is possible in these awards through any collusion at any stage. By and large these Regional Offices have autonomy only in administrative work. However, all policy matters like administration of question papers, appointment of examiners, appointment of Secretary Officers, finalisation of spot Evaluation Centres and declaration of results are controlled by the Head Office. “The CBSE treats all its candidates uniformly. They are subject to the same syllabus, same rules and regulations, same examination schedules and the same system of evaluation.” 8. The counter-affidavit has made a specific reference to the Fixation of Examination Centers and thereafter the Evaluation system. It has particularly dealt with the declaration of results stating inter alia as follows: “The results of all the candidates are reviewed by the Results Committee functioning at the Headquarters. The Regional Officers as stated earlier are not the members of the Result Committee. It has particularly dealt with the declaration of results stating inter alia as follows: “The results of all the candidates are reviewed by the Results Committee functioning at the Headquarters. The Regional Officers as stated earlier are not the members of the Result Committee. This Committee reviews the results of all the regions and in case it decides to standardize (moderate) the results in view of the results shown by the regions in the previous year, it adopts a uniform policy for the candidates of all the region. No special policy is adopted for any region unless there are some special reasons for that as in the case of Delhi this year where the new scheme of multiple sets of question papers was introduced. This practice of awarding standardization marks in order to modulate the overall results is a practice common to most Boards of Secondary Examination, Universities, etc. The exact number of marks awarded for purpose of standardization in different subjects vary from year to year, including this year. This is a secret information which however can be revealed to the Honble Court in case the Honble Court so directs pursuant to a specific order.” “It is evident from the evaluation system described above that there is absolutely no possibility of any manipulation of marks in the results of the candidates of any region by anybody whosoever he may be. The system is extremely impersonated and has no room for collusion or infringement. It is in a word a scientific system. It is submitted that the assessment of overall performance and moderation (standardization) is done on objective scientific lines by the high level Results Committee, at New Delhi. For the year 1992, the Results Committee was composed of Chairman, CBSE; Controller of Examinations, CBSE (as Member Secretary); Director of Education (Delhi Administration); Commissioner, Kendriya Vidyala Sangathan; Joint Director, NCERT and one Professor of Statistics from the Delhi University. The Results Committee assesses on the All India performance level for each subject considering factors like the degree of difficulty noticed in question papers, change in curriculum for the year in question and the mean marks and the percentage of failures and passes in the country. The objective is to ensure that there is no unfairness to the students or disadvantage and to ensure that the overall failures and passes are reasonably nearer to the previous year. The objective is to ensure that there is no unfairness to the students or disadvantage and to ensure that the overall failures and passes are reasonably nearer to the previous year. The factors like degree of difficulty are assessed through feed back from the schools, Examiners and Head Examiners. Ultimately it is a decision of the Results Committee. I state that this Committee has no reasons to entertain or be influenced by any Regional or commdnal bias or any extraneous facis. Its decision applies to the entire country including students abroad. It is submitted that the moderation (standardization) also is not unique to this respondent. I deny as malicious any charge of mala ride attributed to this respondent.” “Even at the cost of compromising on modesty this respondent has to state that the concern for Educational students and qualities of this respondent are too well known. Affiliations to this Board are extremely on onerous terms with concern for infrastruers, availability of proper tools of Education and acceptance of curriculum set for high levels of Education. This respondents claim that the number of students who secured admission to examinations conducted by IIT, All India Medical Entrance Examinations and such Institute of higher learning on purely competitive examinations are a clear indication of the standards of teaching in the affiliated institutions. The statistical analysis on the number of students who have entered IIT from CBSE from the State of Tamil Nadu as against the State Board would be far disproportionate to the numbers who passed. If called for by this Honble Court this respondent would be furnishing particulars as directed.” “In the circumstances the allegation of manipulation being made at the behest of any individual in any region of the Board is without any basis. The Joint Secretary of CBSE could not and he has not directed the award of 10% marks after evaluation either for the students of the State of Tamil Nadu and/or for the Madras Region. In fact before the institution of present petition the CBSE did not have the separate data for the State of Tamil Nadu as no data on the basis of State is maintained. In fact before the institution of present petition the CBSE did not have the separate data for the State of Tamil Nadu as no data on the basis of State is maintained. The allegation that the respondent No. 1 has suo moto added more 10 marks to each students in certain subjects over and above what was seored by the students with an intention to facilitate the admission of students in the professional courses is baseless and an attempt to mislead this Honble Court. The allegation that the respondent No. 1 had indulged in fraudulent activity is utterly derogatory and defamatory and the answering respondent reserves its right to take appropriate action against the petitioners in the facts and circumstances. The award of marks for moderation is a secret information and could not be given. In any case the petitioners were not entitled for the said information in any manner. All the students who have appeared. In the Madras Region could not have applied to the Anna University and the alleged sample check is without any basis and no inference could be drawn by the same. The alleged sample test alleged to have been conducted by the Anna University is utterly arbitrary and no such inferences as has been drawn, could be inferred rationally and logically. The whole exercise is premotivated and an attempt to disgrace a community and a group of students without any basis and for nothing hut for narrow political ends. ..,” 9. In another affidavit by the Controller of Examinations of the CBSE there are some further informations which show that the question papers are moderated by a team of moderators who are eminent scholars to see their correctness and consistency of the curriculum; that for each subject there is a head examiner and for each region there is an additional head examiner for each subject and that in the year 1992, the CBSE Board conducted examinations of approximately 160 number of subjects in Standard XII. This affidavit further reveals as follows: ‘In this context I wish to state that in CBSE the question papers are aimed to assess students for (a) cognition (b) understanding (c) application of knowledge and skills, in particular to cover the entire prescribed syllabus. This affidavit further reveals as follows: ‘In this context I wish to state that in CBSE the question papers are aimed to assess students for (a) cognition (b) understanding (c) application of knowledge and skills, in particular to cover the entire prescribed syllabus. It is a further feature of CBSE examinations that the entire range of questions set in Mathematics, Physics, Chemistry and Biology subject to statutory exceptions have to be compulsorily answered. This may be contrasted with a few other Boards, including the State Board in Tamil Nadu, which does provide a wide range of options in the choice and answer of questions. Therefore the student response to the question papers vis-a-vis the key is assessed during the evaluation itself by various examiners, who themselves are practising teachers of experience. The adequacy of students to the challenge of question papers are assessed even during evaluation and examiners themselves are required to furnish their reports as to the observations during the evaluation. The head examiner gets feedbacks from affiliated institution heads as to student response, students difficulties, in the papers which are again duly collected. Responses are al so received from parents/academicians from different parts of the country in each zone who offer their criticism to the inadequacy to the papers set.” “There is a proforma prescribed by this Board’ i.e., CBSE CONF/14/86 which is “a report on student performance”. Typical ones are annexed to this affidavit. The report should indicate which area was handled satisfactorily and which area was not handled satisfactorily. There are also guidelines as to what kind of report has to be avoided. This report is filled up wherever necessary subject wise by the concerned examiner with suggestions, if any. Such reports are constantly flowing after evaluation, apart from reports from different headquarters, is already indicated. As far as reports from examiners, they get collected at the respective regional centre. The other reports from institutions are collected at the regional centre. The reports from acadamecianl or parents may reach either Delhi or regionay centres or even through institutions, Ultimately these reports are forwarded to Delhi for beins considered by the Results Committee. The composition of the Results Committee is as detailed hereunder: 1. Dr. (Mrs.) D.M. de Rebellor, I.A.S., Joint Secretary (Schools) Ministry of Human Res. Dev. & Chairman Central Board of Sec. Education M.A. (English Lit.)M.A. (Sociology)M.A. (Education)Ph.D. (Education) USA. 2. Dr. The composition of the Results Committee is as detailed hereunder: 1. Dr. (Mrs.) D.M. de Rebellor, I.A.S., Joint Secretary (Schools) Ministry of Human Res. Dev. & Chairman Central Board of Sec. Education M.A. (English Lit.)M.A. (Sociology)M.A. (Education)Ph.D. (Education) USA. 2. Dr. A.K Sharma, Former Professor in Chemistry and Former Principal, Reginal College of Education. Mysore, and currently Joint Director, NCERT., Sri Aurobindo Marg. New Delhi. M.S. (Chemistry) Ph.D. 3. Sh. D.S. Mukhooadhaya, IAS., Commissioner Kendriya Vidyalaya, Sangathan, JNU Campus, New Delhi aid Joint Secretary (Universities) Ministry of Human Resource Dev. Department of Education New Delhi. M.A. (Economics) 4. Sh. V.P. Suri, I.A.S., Director of Education, Delhi Administration, Delhi. M.A. (Economics) B.Ed. 5. Dr. Kanwar Sain, Professor in Statistics, and Former head of the Department in Statistics, University of Delhi, Delhi. Professor, Head, Ph.D. Statistical Inference. 6. Shri S.C. Gupta, Controller of Examinations, Central Board of Sec. Education, New Delhi. M.A. (Economics) Short term course in Evaluation Techniques and Management of Exams. University of London. Short Exams. Dept. U.K. I respectfully state “that the profile of each student is such as to ensure that the committee brings to bear objectivity to its deliberatioos excluding any degree of bias based on any consideration. The sole purpose of the meeting is to appropriately evaluate the response of the students to the question papers set and properly assess their proficiency. It is considered by this Committee that the evaluation of the student commences with the setting up of the question papers, proceeds through when examinations are conducted, answer books are corrected and when ultimately the feedback is examined from various independent sources and gradations and marks awarded. I therefore state, that moderation or standardisation is necessarily a part of the evaluation of the student performance. This practice has been in vogue for the past several years. A few of such feedback is indicated in the typed set.” It is submitted that the process of moderation as loosely stated or standarisation as internationally understood in academic circles is the process evaluating marks subject wise considering the various factors narrated in the foregoing and particularly keeping in mind the nature of question responses, difficulties experienced during examinations by the students. As already stated, the data is before the Committee to assess the degree of difficulties caused by these factors as evaluated by the examiners and reported besides other sources. As already stated, the data is before the Committee to assess the degree of difficulties caused by these factors as evaluated by the examiners and reported besides other sources. As an Educational Board, it has been noticed that several difficult factors influence the overall performances of the students touching the ill prepared, as well as the bright students in each region and across the country. In academic circles, it has been statistically assessed that performance is capable of being assessed as a stable factor reflecting the overall proficiency at various levels of accomplishment of the students. It is also considered safe to assume that handicaps noticed and assessed ought to have been a common factor to the students across the Board and when the Results Committee assesses the degree of difficulty, the evaluation is not confined to the levels of inadequacy but also the difficulties as assumed to exist at the level of average as well as students proficient. It is objectively considered by the Board that standardisation would be objective only if it just and fair at all levels of examinees. Therefore, while taking a decision on objective material before it, the degree of standardisation for particular subjects for which specific data is before the Committee is related to the standardisation factor, which is an index. Normally the prior year pass/fail data is a reasonable measure of the index and therefore taken while standardisation marks are given. Further it will be just and fair that this standardisation is applied throughout to all considering that the questions are without options. Any difficulty caused during answering the questions due to vagueness, incorrectness or capable of different performances, misinterpretation causing lack of reply, consumption of time for other questions or error is sought to be compensated. Accordingly in the deliberations held on 20th May, 1992, the following standardisation marks have been decided and awarded: Sl.No. Subject Marks 1. Mathematics 6 2. Physics 6 3. Chemistry 8 4. Biology 8 5. History 4 6. Political Science 5 7. Economics 8 8. Geography 6 As per the minutes recorded on 20-5-92 the standardisation marks were not to be awarded to exceed the second highest candidate on the concerned subject. No standardisation mark is given to a candidate who does not pass in the subject.” “The above is only subject wise standardisation marks. History 4 6. Political Science 5 7. Economics 8 8. Geography 6 As per the minutes recorded on 20-5-92 the standardisation marks were not to be awarded to exceed the second highest candidate on the concerned subject. No standardisation mark is given to a candidate who does not pass in the subject.” “The above is only subject wise standardisation marks. That is a part the Committee had resolved that there may be a few instances of border line cases in which the subject candidate might have missed passing by a few marks in the overall performances. Accordingly a total of 5 marks was permitted to be added cumulatively either for one or all subjects so that the total grace to the specific candidate will not exceed five in all subjects. I state that therefore this board keeps a distinction between grace marks and standardisation marks, consideration is being entirely different. This touches only the lower ring of students. I state that no standardisation marks were awarded this year for all India Secondary school examination Class X since no standardisation was called for on objective lines. Standardisation marks are never awarded as a matter of grace or routine or keeping in mind any other Board or institution or its performance pasts or future.” “I state that the system of moderation standardisation is a scientific methodology assessing student merits and this Board is following techniques of assessment as internationally laid down and recognised in advanced educational system.” 10. The dispute that appeared to be a lis between the students affected by the impugned Government Order on the one hand and the Government on the other hand, however, got enlarged into a conflict of interests between two sets of students one coming through the 12th examination conducted by the CBSE in the year 1992 and another conducted by the State Board. There is one more source of students entering in the field, i.e., Indian School Certificate (ISC) examination which source, it appears, contributes so less a number of students that it has been almost ignored by all concerned except that in the Government Order it is in the same bracket as the CBSE. There may be students coming from other Boards/authorities conducting qualifying examinations. There may be students coming from other Boards/authorities conducting qualifying examinations. They, however, do not appear to matter for the two competing groups, viz., HSC of the State Board and CBSE, who take the over-whelming majority of the seats in the colleges of the State of Tamil Nadu. The abstract in the Government Order, the facts in dispute and the thrust of the contentions are all directed to the professional courses and not to the admissions or seats in the non-professional colleges although, the impugned Government Order ends after working out the formula for the reservation of 2 per cent of the seats in all the professional colleges for CBSE and ISC students and 98 per cent of the seats for the HSC students, saying “This formula will also be made applicable to the admission for Arts and Science Colleges so that equity and justice are ensured in admission to these Colleges also” 11. Learned counsel appearing for the petitioners who questioned the reservation or quota of 2 per cent to the CBSE and ISC students and 98 per cent for the HSC students, however, have made a joint attack upon the order by maintaining that the Governments action in setting apart only 2 per cent of the seats in all the professional colleges for CBSE and ISC students is wrong as its premise that the evaluation of the Plus 2 answers by the CBSE has been over liberal which would place the CBSE students on an unfair advantageous position and would be detrimental to the large number of students who have passed the State Higher Secondary Course Plus-2 examination, itself is wrong and that the State Government has adopted a formula based on the total number of students who appeared for the State HSC examination and the number of students who appeared for the CBSE and ISC examination, which approach is irrational. They are however, divided in their approach to the constitutional validity of the method of selection based on qualifying marks in the subjects that are considered for admission in the professional courses. 12. Mr. They are however, divided in their approach to the constitutional validity of the method of selection based on qualifying marks in the subjects that are considered for admission in the professional courses. 12. Mr. Parasaran, learned counsel for the petitioner in W.P. No. 7656 of 992 has contended that CBSE and HSC examinations are not the same, since qualifying examination is not the same and it would be unjust, unfair and unreasonable to grant admissions to the students by assessing their merits with reference to the marks obtained by them in different qualifying examinations. It would be violative of Art. 14 of the Constitution. There would be no comparative standards of judging uniformly the merits of students by the marks obtained by them in the qualifying examinations; the standard of judging would be reasonably uniform only if merit is judged with reference to the marks obtained at the same examination. He has elaborated this by saying that to pass the test of reasonableness, admissions should be based on evaluation of relative merits through a common entrance examination which should be open to all candidates eligible to apply and who have applied for admission. Since for the admission in the professional courses of the State of Tamil Nadu, the Government of the State have also prescribed the entrance test examination, merit should be assessed with reference to the marks obtained in entrance examination alone. 13. Mr. R. Krishnamurthi, learned counsel appearing for the petitioners in W.P. Nos. 7862 to 7865 of 1992 and 8099 of 1992 has, however, insisted that keeping in view the circumstances in which in the State of Tamil Nadu the CBSE plus-2 examination HSC Plus 2 Examination and ISC examination are accepted as comparable in judging the merit of the candidates besides the merit in the entrance examination, the Court should examine not the method of selecting the candidates for admission to the professional courses by a combination of the marks obtained at the entrance test examination and the marks obtained in the qualifying subjects whether in the CBSE or HSC or ISC but declare the Governments action as invalid and thus restore the system that worked without any difficulty in the past. 14. 14. Before however, we advert to the contentions and specifically note what may be the reasonable approach, we may state that the professional courses in the State of Tamil Nadu have invariably created almost every year some problems for the Government of the State and when Government Orders have been issued, some problems for the Courts to resolve. It is, however, not in dispute that for the purposes of admittance to engineering courses the qualifying percentage of marks in Mathematics is reduced to 100 and that of Physics and Chemistry together to another 100 to which additional 50 marks in the entrance examination are added to a total of 250. Similarly, for the admission in the disciplines of medicine, the qualifying percentage of marks in Physics and Chemistry like engineering, are reduced to 100 and in Biology/Botany/Zoology to another 100 which is added to the entrance examination marks of 50 to make 250. In this process, marks obtained in the qualifying subjects like Mathematics, Physics and Chemistry for admission in engineering courses and Physics, Chemistry and Biology/Botany/Zoology in the disciplines of medicine create or deliver advantage to a candidate over the marks obtained in the entrance examination. Since students came from the sources as aforementioned, viz., CBSE/HSC/ISC students, who obtained higher marks in qualifying subjects, although found placed lower in the entrance examination results, go above in the merit list finally prepared for the purpose of selection of candidates for admission to professional courses. 15. It is on the record brought at the instance of the petitioner in W.P. No. 7656 of 1992 that the State Government had received some complaints about the standard of education in the State of Tamil Nadu in the year 1976. The States contribution to the Civil Services in the various competitive examinations in general, and the I.A.S. in particular recorded a steep fall. This caused considerable concern to the State Government. The subject was raised on the floor of the Legislature. The Government gave assurance and pursuant thereto, an Officer of the I.A.S. was asked to examine and report on the causes for the poor performance of Tamil Nadu students. A report accordingly was submitted by a senior I.A.S. Officer, who made a careful analysis of the factors responsible for the poor performance of the students of Tamil Nadu. The Government gave assurance and pursuant thereto, an Officer of the I.A.S. was asked to examine and report on the causes for the poor performance of Tamil Nadu students. A report accordingly was submitted by a senior I.A.S. Officer, who made a careful analysis of the factors responsible for the poor performance of the students of Tamil Nadu. Nothing, however, followed as a measure introduced to improve the quality of education in the State. Whole matter was, however, reviewed by the Government of the State in the year 1988. This was followed by a Government Order in G.O.Ms. No. 1470, Education dated 16-9-1988 constituting a High Level Committee to analyse the factors responsible for the poor performance of the students of Tamil Nadu. The Committee met on several occasions and finally made recommendations including a recommendation to give up the liberal valuation of answer papers in the HSC system and to create awareness amongst the students to prepare themselves for the competitive examinations. Pursuant to this, it is stated at the Bar on behalf of the State that as recommended by the Committee the syllabus has been revised and the well structured syllabus has been introduced in the higher secondary system of education in the State, that is to say, plus-2 examination and there is no more liberal valuation of answer papers of the students in the HSC course. 16. 16. In the additional counter-affidavit filed on behalf of the State Government it has been pointed out that in the year 1987-1988 2.55 per cent; in the year 1938-1989 5.83 per cent; in the year 1989-1990 3.07 per cent; in the year 1990-1991 3.84 per cent and in the year 1991-1992 3.88 per cent of CBSE students alone got entry in medicine and 2.21 per cent in the year 1988 in Anna University Engineering course; 3.35 per cent in DTE-Group I and 4.57 per cent in DTE-Group II course in the year 1988, 1.84 per cent in Anna University Engineering course; 2.62 per cent in DTE-Group I course and 2.70 per cent in DTE-Group II course in the year 1989; 1.84 per cent in Anna University Engineering course; 1.35 per cent in DTE-Group I course and 1.70% in DTE Group II in the year 1990 and 6.61 per cent in Anna University Engineering course; 5.39 per cent in DTE-Group I course and 5.49 per cent in DTE Group II course in the year 1991, of CBSE students got admission in engineering course. A glance of this shows that except in the year 1988-1989 CBSE students were 3 per cent plus or minus in the medical colleges of the State and except in the year 1991 their percentage in engineering on the average was around 2 per cent or less except in the year 1988. 17. We have been benefited by the cooperation extended by the learned Advocate General of the State of Tamil Nadu, learned counsel representing the CBSE and learned counsel appearing for Anna University, who pursnant to our order dated 7-7-1992 have furnished to the Court the following informations; “(1) a selection list prepared strictly in accordance with the merit in each category of usual reservation based on the position of each candidate in the merit list of the Entrance Test Examination showing against the name of each candidate the source (CBSE/HSC/ISC) and the marks obtained by each one of them in the Entrance Test Examination and CBSE/HSC/ISC examination and indicating the year of passing the qualifying examination; (2) a selection list prepared without enforcing G.O.Ms. No. 555 Education Department dated 15-6 1992 strictly in accordance with the usual reservation and selection based on merit in the entrance test as well as the qualifying examination and indicating the year of passing, namely, CBSE/HSC/ISC, indicating herein also the marks obtained by each one of them at the entrance examination as well as the qualifying examination, viz., CBSE/HSC/ISC and (3) a selection list prepared strictly in accordance with the usual reservation and G.O.Ms. No. 555, Education Department, dated 15-6-1992, in the same manner as mentioned in Cl. (2) above. (4) A copy of the result sheet of the students of CBSE of the Madras Region without moderation.” followed by selection list strictly in accordance with the merit in each category of usual reservation on the position of each candidate in the merit list of the Entrance Test examination without the help of moderated marks and on the basis of unmoderated marks of the CBSE, selection list without enforcing G.O.Ms. No. 555 in accordance with the usual reservation on the basis of the entrance test as well as unmoderated qualifying examination marks and selection list with the usual reservation and G.O.Ms. 555 with unmoderated marks, pursuant to our order dated 15-7-1992. 18. The abstract of the three categories of selection lists with moderated marks of CBSE students furnished for the benefit of the Court shows that in Engineering only 2.15 per cent of CBSE students qualified for admission in Anna University on the basis of merit in the entrance examination result and 1.79 per cent and 2.30 per cent of CBSE students qualified for DTE Group I and DTE Group II courses respectively. In medicine 1.46 per cent of CBSE students qualified for MBBS and 0.00 per cent (none) qualified for BDS from that source. In B.Ss. (Agri) 0.39 per cent of CBSE students qualified for admission, 0.00 per cent in B.Sc. (Horticulture); 0.00 per cent in B.Sc. (Forest) and 1.33 per cent in B.E. (Agri) of CBSE students alone qualified on the basis of the entrance examination result. None qualified for admission to B.V.Sc. (Veterinary (and B.F.Sc. (Vet.) from CBSE stream. 19. Without enforcing the Government Order (No. 555), the percentage of selection of CBSE students for Engineering, Medicine, Agriculture and Veterinary are as follows: “Engineering: In Anna University — 5.90% DTE-Gro. I — 4.11% DTE. Gr. None qualified for admission to B.V.Sc. (Veterinary (and B.F.Sc. (Vet.) from CBSE stream. 19. Without enforcing the Government Order (No. 555), the percentage of selection of CBSE students for Engineering, Medicine, Agriculture and Veterinary are as follows: “Engineering: In Anna University — 5.90% DTE-Gro. I — 4.11% DTE. Gr. II — 4.72% Medicine: M.B.B.S. — 10.03% BDS — 6.00% Agriculture: B.Sc. (Agri). — 2.73% B.Sc. (Horti) — 0.00% B.Sc. (Forest) — 0.00% B.E. (Agri) — 1.33% Veterinary: B.V.Sc. — 2.53% B.F.Sc. — 0.00% 20. When the Government Order (No. 555) is enforced and moderated marks of CBSE students are taken into account their percentage for various courses of studies stands as follows: “Engineering: AnnaUniversity— 1.91% DTE-Gr. I — 2.03% DTE. Gr. II — 2.00% Medicine: M.B.B.S. — 1.99% BDS — 2.00% Agriculture: B.Sc. (Agri). — 3.13% B.Sc. (Horti) — 2.56% B.Sc. (Forest) — 0.00% B.E. (Agri) — 1.33% Veterinary: B.V.Sc. — 3.16% B.F.Sc. — 0.00% The University has explained that the excess over the prescribed 2.0 per cent is due to the rounding-off the number in different reservation categories by the concerned admitting agencies. 21. The list prepared on the basis of unmoderated marks shows as follows: “By Entrance Examination only: (CBSE) “Engineering: AnnaUniversity— 1.67% DTE-Gr. I — 1.74% DTE. Gr. II — 2.25% Medicine: MBBS — 1.46% BDS — 0.00 per cent Agriculture: B.Sc. (Agri). — 0.39 per cent B.Sc. (Horti) — 0.00 per cent B.Sc. (Forest) — 0.00 per cent B.E. (Agri.) — 1.33 per cent Veterinary: B.V.Sc. — 0.00 per cent B.F.Sc. — 0.00 per cent Without enforcing the G.O. — “Engineering: AnnaUniversity— 0.48 per cent DTE-Group. I — 1.39 per cent DTE. Gr. II — 2.08 per cent Medicine: MBBS — 3.34 per cent BDS — 2.00 per cent Agriculture: B.Sc. (Agri.) — 0.00 per cent B.Sc. (Horti.) — 0.00 per cent B.Sc. (Forest) — 0.00 per cent B.E. (Agri) — 0.00 per cent Veterinary: B.V.Sc. — 0.00 per cent B.F.Sc. — 9.00 per cent On enforcing the G.O. (No. 555) “Engineering: AnnaUniversity— 1.91 per cent DTE-Gr. I — 2.03 per cent DTE. Gr. II — 1.96 per cent Medicine: MBBS — 1.99 per cent BDS — 2.00 per cent Agriculture: B.Sc. (Agri.) — 3.13 per cent B.Sc. (Horti.) — 2.56 per cent B.Sc. (Forest) — 0.00 per cent B.E. (Agri) — 1.35 per cent Veterinary: B.V.Sc. — 3.19 per cent B.F.Sc. I — 2.03 per cent DTE. Gr. II — 1.96 per cent Medicine: MBBS — 1.99 per cent BDS — 2.00 per cent Agriculture: B.Sc. (Agri.) — 3.13 per cent B.Sc. (Horti.) — 2.56 per cent B.Sc. (Forest) — 0.00 per cent B.E. (Agri) — 1.35 per cent Veterinary: B.V.Sc. — 3.19 per cent B.F.Sc. — 0.00 per cent The University has explained that the excess over the prescribed 2.0 per cent is due to the rounding off the number in different reservation categories by the concerned admitting agencies. 22. We are alive of sensitive issue before us that CBSE conducts the examinations not for the students of the State of Tamil Nadu alone or that of Madras Zone alone, which comprises of the States of Andhra Pradesh, Andaman & Nicobar Islands, Daman & Diu, Goa, Karnataka, Kerala, Maharashtra and Tamil Nadu; but it conducts examinations in as many as five other Zones and covers the whole of the country as well as Indian nationals abroad. It will not be easy to concede that an agency charged with such responsibilities shall intend to benefit a certain section of its students or students of the State of Tamil Nadu for the purpose of their admission in technical education courses of the State of Tamil Nadu. They are expected to maintain a uniform and high standard of education as they cater to the need of a country which cannot afford to be liberal for the benefit of certain individuals in evaluation of marks. Their system, if we go by the details that are provided in the two counter-affidavits, is foolproof and but for the laxities that may be responsible for aberration there is little chance of any compensation with the evaluation of the answer-books of the students strictly in accordance with merit. It is explained that the decentralisation of CBSE functioning has been in accordance with the recommendation incorporated in the new education policy and the evaluation system that ensured complete fairness and uniformity by providing a marking scheme which is uniformly applicable to all the examiners in order to eliminate the chance of subjectivity. It, however, has stated that the results are moderated which, according to it, is not unique to it. It, however, has stated that the results are moderated which, according to it, is not unique to it. This moderation called ‘standardization’ by the CBSE is done to ensure appropriate evaluation of the answers of the students, the sole purpose being to appropriately evaluate the response of the students to the question papers set and to properly assess their proficiency. Explaining this standardization process the CBSE has stated that it is the process to evaluate marks subject-wise considering the various factors on the basis of the report of the students performance “in order to modulate the overall results”. Its affidavit says that the assessment of overall performance and moderation (standardisation) is done on objective scientific lines by a Hi gh level Result Committee and in the year 1992 the Result Committee was composed of Chairman, CBSE; Controller of Examinations, CBSE (as Member Secretary); Director of Education (Delhi Administration); Commissioner, Kendriya Vidyalaya Sangathan; Joint Director, NCRET and one Professor of Statistics from the Delhi University. It considered factors like (1) the degree of difficulty noticed in question papers, (2) change in curriculum for the year in question and (3) the mean marks and the percentage of failures and passes in the country. When pressed however, to clarify how these factors could lead to award of 6 marks; 6 marks; 8 marks; 8 marks; 4 marks; 5 marks; 8 marks; and 6 marks in the subjects of Mathematics; Physics; Chemistry; Biology; History; Political Science, Economics and Geography respectively (with the last four we are not concerned), in the affidavit it is stated, “as an Educational Board, it has been noticed that several difficult factors influence the overall performances of the students touching the ill prepared, as well as t he bright students in each region and across the country. In academic circles, it has been statistically assessed that performance is capable of being assessed as a stable factor reflecting the over all proficiency at various levels of accomplishment of the students. It is also considered safe to assume that handicaps noticed and assessed ought to have been a common factor to the students across the Board and when the Results Committee assesses the degree of difficulty, the evaluation is not confined to the levels of inadequacy but also the difficulties as assumed to exist at the level of average as well as students proficient. It is objectively considered by the Board that the standardisation would be objective only if it is just and fair at all levels of examinees. Therefore, while taking a decision on objective material before it, the degree of standardisation for particular subjects for which specific data is before the Committee is related to the standardisation factor, which is an index. Normall y the prior year pass/fail data is a reasonable measure of the index and therefore taken while standardisation marks are given”. The affidavit has specified only one index. The prior pass/fail data. It is however mentioned that a decision in this behalf is taken on objective materials by the Results Committee. Such objective materials according to it, were available in the shape of reports of the Head Examiners and others who gave their respective reports on the method of evaluation of the answers given by the students in various States. The CBSE has made a few samples available to the Court also. 23. A Courtcannot have any idea of the degree of difficulty existing at the level of average as well as students proficiency or the effect of the handicaps available with the CBSE. Experts alone should be left with the task of judging the difficult factors that influence the overall performance of the students touching the ill-prepared as well as bright students, This would have deterred us from entering into the desirability of awarding of the additional marks aforementioned besides the marks awarded to the students by their respective examiners had we not been put to a measure that prior year pass/fail data is a reasonable index for standardization marks. How, as stated on behalf of the CBSE the factors or “any difficulty caused during answering the questions due to vagueness, incorrectness or capable of different performances, misinterpretation causing lack of reply, consumption of time for other questions or error” reconciled with the prior pass/fail data, prompted us for a further probe and we categorically asked learned counsel for the CBSE to inform the Court as to what were the methods that the CBSE Results Committee adopted for the purpose of reaching through the standardization marks for the subjects aforementioned. Learned counsel for the CBSE relied upon a “practical Handbook for teachers on Techniques and Problems of Assessment edited by H.C. Macintosh, Secretary, Southern Regional Examinations Board for the Certificate of Secondary Education, Chapter 8, the Application of Statistics to Assessment” and stated at the Bar that this furnished the method of awarding the standardization marks to the CBSE students in the subjects of aforementioned. ‘The Application of Statistics to Assessment by R.B. Morrison’, incorporated in the handbook his given the meaning of the word ‘statistics’ in one sense to mean description of measurements, as in the case of a distribution of marks or scores for a test or the output figures for a factory and in the other sense to mean, an inferential method, which goes beyond pure description and attempts to discern a pattern in what appears at first sight to be a haphazard collection of data. The book states that it is a method for coping with an uncertain situation or a situation influenced by a number of variable factors, but then added, ‘the language of statistics is not the language of certainty, for statistics cannot prove anything, but the language of probability’. 24. Dealing with the problem of treatment of marks and test scores, it says, “In assessment we require efficient ways of tabulating marks and scores to see what characteristics they have. We need to work out averages or mean values and induces of spread for the accumulated data. Individuals differ from each other, and the same individual varies also in ability and performance over a period of time. The same holds true for a group of individuals. The degree of uncertainty or error for a single measurement or set of measurements needs to be appreciated, and where possible calculated”. This article recognises as the first statistical exercise after a test or examination to produce a frequency distribution for the scores of marks obtained by the candidates and adds ‘For small entries, such as the classroom test, this often takes the form of a distribution based upon individual marks within an appropriate range of marks’. For a large entry, probably marked on a percentage scale, the marks are usually grouped into appropriate classes with a frequency distribution similar to that shown in Table 1(b). This might be the kind of distribution for an assistant examiner with one of the examining boards”. For a large entry, probably marked on a percentage scale, the marks are usually grouped into appropriate classes with a frequency distribution similar to that shown in Table 1(b). This might be the kind of distribution for an assistant examiner with one of the examining boards”. After the table of frequency distribution of marks, it is stated, “One cannot have a lenient or severe marker for objective tests, or one who is inclined to bunch marks, because the marking is completely objective. It is quite possible, however, to have this state of affairs with essay-type examinations and impression assessment, as Hartog and Rhodes et al. have found. Such errors may be serious where the marking does not conform to a reasonably specific mark scheme, or where no attempt is made to minimize them by scaling the marks.” and it proceeds to add, “Where leniency or severity, or differential spreading of the marks is suspected, it is important to scale the marks so that the subjective error of the marker is minimized. The process of scaling or standardization of marks is to ensure that the frequency distributions from various markers conform to an agreed standard, so that each candidate receives a mark which has been effectively corrected for any anomalies in the marking. In team marking the agreed distribution is usually that of the chief examiner and every care is taken to ensure that the team of examiners conforms. The agreed standardized scale, however, could equally be one to which all examiners, including the chief examiner, conformed.” 25. The only permissible standardization recommended thus by the author is standardization of marks to ensure frequency distributions from various markers to conform to an agreed standard so that each candidate received marks which have been effectively corrected for any anomalies in the marking. If there are anomalies in the marking, scaling of marks is recommended, not otherwise. 26. Dilating further how scaling of marks should be done the Author says, “Scaling requires the adjustment of an examiners raw marks to scaled marks such that the scaled distribution of marks will conform to an agreed mean (M.) and standard deviation (a1). If there are anomalies in the marking, scaling of marks is recommended, not otherwise. 26. Dilating further how scaling of marks should be done the Author says, “Scaling requires the adjustment of an examiners raw marks to scaled marks such that the scaled distribution of marks will conform to an agreed mean (M.) and standard deviation (a1). The basis of a common method for sealing marks is to ensure that the deviation of a raw mark (X) from the mean (M) expressed in standard deviation units (a) is the same as the deviation of the corresponding scaled mark (X) from the scaled mean (M1), also expressed in standard deviation units (a1), This may be expressed mat hematically as: Table or re-arranging X1=1.5 X-35. As an example of scaling, we shall suppose that a chief examiner has marked a sample of scripts and obtained a mean and standard deviation of 40% and 15% respectively. This means that M1 =40% and a1 = 15%. An assistant examiner is given the same scripts to mark and obtains a mean and standard deviation of 50% and 10% respectively, i.e., M=50% and a = 10%. Taking the chief examiners standard as the criterion, the assistant examiner has erred on the lenient side and has also bunched his marks. The assistant examiners marks therefore need to be scaled using the scaling equation above. Substituting in this equation we obtain a scaling equation for the examiner, namely: X1=1.5 X-35. It will be seen that the assistant examiners raw mark corresponding to his mean of 50% becomes 40% when scaled, i.e., the mean for the chief examiner. The equation enables us to convert all his raw marks (X) into equivalent scaled marks (X1). Thus a raw mark of 40% becomes 25 per cent, a raw mark of 60% becomes 55% when scaled and so on. This scaling procedure adjusts both the mean and standard deviation to an agreed mean and standard deviation, thus correcting for both leniency or severity and bunching or excessive spreading of the marks, simultaneously. At the same time the scaling transformation is a linear transformation, which means that the basic shape of the original distribution of marks is unchanged. If the original distribution were basically skewed, it remains skewed after scaling. It should also be noted that the rank order of the candidates is unaffected by the scaling process”. 27. At the same time the scaling transformation is a linear transformation, which means that the basic shape of the original distribution of marks is unchanged. If the original distribution were basically skewed, it remains skewed after scaling. It should also be noted that the rank order of the candidates is unaffected by the scaling process”. 27. When we look to the statements in the counter-affidavit it is indeed the CBSEs case that the degree of Standardization for particular subjects for which specific data was before the Committee related to the Standardization factor as indicated in the book. But if that be so, where do we find any necessity to see the prior year pass/fail data? We have already stated we are not experts and we do not intend to encroach upon the area exclusively belonging to the experts. We do not suggest that if a situation like one indicated in the handbook or claimed to exist in the affidavit filed on behalf of the CBSE is found adversely affecting the assessment of merit of a particular candidate, the CBSE cannot resort to the moderation of the raw marks awarded by a examiner by a method as scientific as has been recommended by the Author of the Article which has been indicated in the Handbook “Techniques and Problems of Assessment”. However we do not find any basis whatever to refer to the previous year pass/fail in the moderation/standardization. Standardization is meant to remove anomalies on account of liberal or strict valuation. It is resorted to on account of anomalies as to the answers that a candidate may give to a particular question arising on account of a mistake in the question or the question being vague or the key answer being wrong. These are factors that would give to the CBSE a basis to standardise the result. A factor, however, which is unconnected with the examination concerned or the evaluation of the answer by the examiner like the pass/fail data of the previous year would be as irrelevant as the result Committee deciding to award grace marks as a whole to every candidate. Standardization has to be a process to ensure that equals in merit are evaluated equally. Standardization has to be a process to ensure that equals in merit are evaluated equally. If it would benefit a person who performed poorly and merited a lower place in the result it would, on the one hand, deny to a person possessed of real merit his correct position as he would be graded with a person who is lower in merit and give on the other hand, undue advantage to a person who on merit assessment ranked lower but on account of the so-called standardization/moderation marks, was pushed higher. In the case in hand, it is yet another tale created on account of its effect. According to the CBSEs affidavit having worked out the marks to be allotted for the purpose of standardization, no standardization mark was given to the candidate who did not pass in the subject and while allotting standardization marks it was so worked out that beneficiary of the additional standardization marks was not allowed to reach the level of the top scorers in the subject but was at the level of the second highest ranking candidate in the subject on the basis of the unmoderated marks. Besides these marks, which according to the affidavit, not allowed to those who failed, there has been additional five marks permitted to be added, cumulatively either for one or all subjects, to a candidate, who failed by a few marks in the overall performance. These five marks are called grace marks. To be fair to the CBSE it has not withheld the information from the Court that it took into account the prior year pass/fail data, a factor, which in our opinion, was a stranger to the issue of evaluation of the overall performance of the students in 1992 examinations and in assessment of their efficiency and proficiency. Any reference to the pass/fail data of the previous year will bring into a foreign element to maintain the overall percentage of result at the level of the previous year, even though, on account of merit assessment this years students were not as efficient as previous years students. 28. Any reference to the pass/fail data of the previous year will bring into a foreign element to maintain the overall percentage of result at the level of the previous year, even though, on account of merit assessment this years students were not as efficient as previous years students. 28. We endeavoured to enter into the aspect of additional marks legitimately allotted to the CBSE 12th Standard students for it is understood as found stated in the impugned Government Order that the press reports and a number of representations made by parents disclosed that the valuation of the Central Board of Secondary Education (CBSE) Plus-2 answer papers had been over-liberal and in W.P. No. 8477 of 1992 it has been specifically alleged that the petitioner therein reliably understood that after the valuation was originally completed, which itself was done after specific instructions to liberally evaluate the papers, the Tamil Nadu wing of the CBSE considered the need to boost up the marks to lay unjust claims for admission into higher and professional courses and that under the pretext of moderating the results, deliberately took a decision to increase the marks for all students atleast by 10 per cent for each without any rationale or justifiable grounds. The case of the petitioner that moderation of results is generally done under very rare and unusual circumstances, when questions are asked out of syllabus, etc. has been conceded by the CBSE in its counter-affidavit that Standardization/moderation was done in view of the students-response to the question papers vis-a-vis the key answer during evaluation by various examiners, the adequacy of students to the challenge of question papers and feedbacks in accordance with the guidelines and that the Result Committee at a meeting, the sole purpose of which is to appropriately evaluate the response of the students to the question papers set and properly assess their proficiency, found it just and fair to allot additional marks in the subjects of Mathematics, Physics, Chemistry, Biology, etc. We do, however, find it difficult to see the application of the system of scaling of marks which CBSE has claimed to have been applied by the Result Committee and that Result Committee allotted uniform marks in the name of compensating the students for the difficulties caused during answering the questions due to vagueness, incorrectness or capable of different performances, misinterpretation causing lack of reply, consumption of time for other questions or error of any kind. If we do not altogether reject the additional marks and allow that to be a part of the marks allotted to the students who passed 12th Standard CBSE examination, we are doing so for the reason that it would affect not only the students who have applied for admission to the technical courses of studies of the State of Tamil Nadu or any other higher courses of study in the State but shall affect the students all over the country and bring to the CBSE a bad name. If students deserve a standardization/moderation marks and they are thus allotted such marks they should not for the reason of insufficient materials produced before us on behalf of the CBSE be made to suffer. In any case we are concerned mainly with the comparison of the CBSE 12th standard students and the HSC Plus 2 students, their admission to the professional courses of studies in the State of Tamil Nadu and other institutions for higher education in the State. We do not, for the said reason, say that the additional marks allotted to the CBSE students in the subjects aforementioned do not correctly reflect their merit in the subjects in which they have been awarded standardization marks but we cannot desist saying that the standardisation marks awarded to the CBSE students have introduced an element of disparity in the equivalence that the State Government had accepted for the purpose of determining merit of the candidates coming from the two main sources, i.e., CBSE/HSC. 29. Constitution of India has accepted as one of the basic and fundamental rights of any person to have equal protection of law and equality before law. The impugned G.O. shall have to pass the test of Art. 14 of the Constitution read with Art. 15 thereof. 29. Constitution of India has accepted as one of the basic and fundamental rights of any person to have equal protection of law and equality before law. The impugned G.O. shall have to pass the test of Art. 14 of the Constitution read with Art. 15 thereof. “The propositions applicable to cases arising under Art. 14 have been repeated so many times that they now sound platitudinous” said the Supreme Court in one of its judgments in the year 1960 and quoted in In re, Special Court Bill A.I.R. 1979 S.C. 478 judgment of the Supreme Court in adding that, ‘if that was true in 1960, it would be even more true in 1979.” The Supreme Court in its judgment in E.P. Royappa v. State of Tamil Nadu A.I.R.1974 S.C. 555 laid bare a new dimension of Art. 14, said the Supreme Court in its judgment in Ajay Hasia v. Khalid Mujib A.I.R. 1981 S.C. 487 and added, “What is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Art. 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Art. 14 like a brooding omnipresence. This was again reiterated by this Court in International Airport Authoritys Case A.I.R. 1979 S.C. 1628. It must therefore now be taken to be well settled that what Art. 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the Courts is not paraphrase of Art. 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. The doctrine of classification which is evolved by the Courts is not paraphrase of Art. 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Art. 14 would be breached.” 30. We have referred to the judgment of the Supreme Court in Ajay Hasia v. Khalid Mujit A.I.R. 1991 S.C. 487. Since we may be referring to the principle on which classification is found not to have violated Art. 14. We may take another observation of the Supreme Court in the case of Ajay Hasia (supra), wherein it is said, “The true scope and ambit of Art. 14 has been the subject matter of numerous decisions It is sufficient to state that the content and reach of Art. 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law Art. 14 came to be identified with the doctrine of classification because the view taken was that that Article forbids discrimination and there would be no discrimination where classification making the differentia fulfills two conditions, namely (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E.P. Royappa v. State of Tamil Nadu A.I.R.1964 S.C. 555 (supra) that this Court laid bare a new dimension of Art. 14 and pointed out that that Article has highly activist magnitude and it embodies a guarantee against arbitrariness We cannot countenance any attempt to truncate its all-embracing scope and meaning, for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic point of view, e quality is antithetic to arbitrariness. Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic point of view, e quality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.” 31. In Minor Senthilkumar, K. v. The State of Tamil Nadu 1990 Writ L.R. Suppl. 1, a case decided on difference of opinion by majority on the basis of the judgment of the third Honourable Judge, affirmed by the Supreme Court in S.L.P. No. 4710-11 of 1991 one of us (Mishra, J.) has referred to almost every relevant authority on the subject and stated at one place as follows: “In Ramakrishna v. Tendolkar A.I.R. 1958 S.C. 538 the Supreme Court, after referring to a large number of cases decided on Art. 14 of the Constitution formulated the following propositions: (a) Art. 14 condemns discrimination not only by substantive law but by a law of procedure; (b) Art. 14 forbids class legislation but does not forbid classification; (c) Permissible classification must satisfy two conditions, namely, (i) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) the differentia must have a rational relation to the subject sought to be achieved by the statute in question; (d) The differentia and object are different elements and it follows that the object by itself cannot be the basis of the classification; (e) In permissible classification mathematical nicety and perfect equallity are not required. Similarly, no identity of treatment is enough; (f) The classification may be founded on different bases, namely, geographical or according to objects or occupations or the like; (g) If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons; (h) Even a single individual may be in a class by himself on account of some special circumstances or reasons applicable to him and not applicable to others; a law may be constitutional even though it relates to a single individual who is in a class by himself; (i) The legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (j) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (k) In order to sustain the presumption of constitutionality, the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived; (l) It must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (m) While good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must he some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminatory legislation. The principle must be borne in mind in deciding whether a law violates Art. 14. In all subsequent judgments, I shall refer to a few of them, these propositions are reiterated with emphasis shifting from one to another differentia ting thus the cases brought before the Court on their peculiar facts. The principle must be borne in mind in deciding whether a law violates Art. 14. In all subsequent judgments, I shall refer to a few of them, these propositions are reiterated with emphasis shifting from one to another differentia ting thus the cases brought before the Court on their peculiar facts. In re the Special Courts Bill (supra), the Supreme Court has pointed out that the first part of Art. 14, which was adopted from the Irish Constitution is a declaration of equality of the civil rights of all persons within the territories of India and it enshrines a basic principle of republicanism and that the second part, which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favouritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances. The Supreme Court has also pointed out in the said case that the State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies and it must possess for that purpose, large powers of distinguishing and classifying persons or things to be subjected to such laws. The Constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The Court should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary. The law, it is in this behalf, therefore, will be to concede to the State the power to differentiate groups or class of persons within its territory to achieve a particular aim in giving effect to its policies. Classification is justified if it is not palpably arbitrary. The law, it is in this behalf, therefore, will be to concede to the State the power to differentiate groups or class of persons within its territory to achieve a particular aim in giving effect to its policies. But such differential treatment must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out, but those qualities and characteristics must have a reasonable relation to the object of the legislation or the State action. In order to pass the test, two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (ii) that the differentia must have a rational relation to the object sought to be achieved by the Act.” 32. The principle aforementioned that the State in the exercise of its governmental power, has of necessity to make laws to operate differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies and it must possess for that purpose, large powers of distinguishing and classifying persons or things to be subjected to such laws, has to be extended such executive actions of the State as well which are exercised to attain a particular aim to give effect to its policies. The governmental power shall enable the State to distinguish and classify persons or things for the reason that any artificial equality will lead to arbitrariness; instead of being just it may be unjust in many cases. To accept such fictional equality or sometimes to achieve legal equality, resort to classification may be found necessary because classification alone will strike at arbitrariness. As pointed out above classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things and the Court should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary. 33. The judgment in Minor Senthilkumars case (supra) has gone into some details of the useful role of Art. 15(1) & (2) of the Constitution and Exceptions indicated in Cls. Classification is justified if it is not palpably arbitrary. 33. The judgment in Minor Senthilkumars case (supra) has gone into some details of the useful role of Art. 15(1) & (2) of the Constitution and Exceptions indicated in Cls. (3) and (4) of Art. 15 and Art. 29(2) of the Constitution, which states that ‘No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them, besides Art. 14 and referred to the usefulness of the Directive Principle in Art. 46 of the Constitution. The judgments of the Supreme Court in M.R. Balaji v. State of Mysore A.I.R. 1980 S.C. 649, R. Chitratekha & Another v. State of Mysore & others ; (1964) 6 S.C.R. 368 State of A.P. v. P. Sagar ; (1968) S.C.J. 778, Periyakaruppan v. State of Tamil Nadu ; A.I.R. 1971 S.C. 2303 A.P. State v. Balram A.I.R. 1972 S.C. 1375, Minor B. Rajendran v. State of Madras & others A.I.R. 1968 S.C. 1012; U.P. State v. Pradip Tandon A.I.R. 1975 S.C. 563; Arti Sapru v. State of J. & K. 1981-3-S.C.R. 34; Pradeen Jain v. Union of India A.I.R. 1984 S.C. 1420; Suneel Jatley v. State of Haryana A.I.R. 1984 S.C. 1534; Jagadish Saran v. Union of India A.I.R. 1980 S.C. 820; Nidamarti v. State of Maharashtra A.I.R. 1986 S.C. 1362; Yogendar Pal Singh v. Union of India A.I.R. 1987 S.C. 1015; Deepak Saibal v. Punjab University A.I.R. 1989 S.C. 903; Greater Bombay Municipal Corporation v. Thukral Anjali A.I.R 1989 S.C. 1194; and State of Rajasthan v. Ashok Kumar A.I.R. 1989 S.C. 177 are referred to and it is observed, “There is no doubt that one can multiply the decisions on the subject and notice that invariably in every case decided, the guiding principle has always been that unless there is a very strong reason to allow a departure from merit, and accept as justifiable, a classification to prefer a candidate of inferior merit over a candidate of superior merit, Art. 14 of the Constitution shall stand violated. The State can no doubt have the power to make a special provision for socially and educationally backward classes and Scheduled Castes and Scheduled Tribes, but even that would be violative of Arts. The State can no doubt have the power to make a special provision for socially and educationally backward classes and Scheduled Castes and Scheduled Tribes, but even that would be violative of Arts. 14 and 15(1) of the Constitution of India and Art. 29 thereof, in case any special provision is made for admission to an educational institution if there is no differentia and/or there is no reasonable nexus with the object to be achieved that is to say, the object of admitting the best amongst the candidates available.” We shall, however, refer to some of the judgments cited at the bar including some of those which have been considered in the case of Minor Senthilkumar, K. (supra) for’ we have every reason to think that having realised that students representing one source when found not acceptable as equals of the students coming from another source for admission in the professional courses of studies, even if the Government Order is found not justifiable for the reason of the absence either of intelligible differentia or nexus with the object to be achieved, CBSE, in this case has to concede that the State shall be at liberty to devise an appropriate method for regulating the admissions so that no group of students belonging to one or the other source would get undue advantage of being rated superior in merit on account of allotment of higher marks in qualifying subjects in the different and separate examinations. Before however, we do so, to be fair to the parties we may state that if there has been any reasons for the State Government issuing the impugned G.O. that has been provided by the CBSE. No government can ignore the public outcry and forget its loco parentio. Any such act of turning a deafear to the grievance of the public will make a democratic government of a Republic an autocrat or a despot. It is not becoming extra sensitive to act upon the reports and complaints of some act of CBSE that, people thought, gave undue advantage to the CBSE students, if the Government decided to get more informations about the complaints from the CBSE and got verified from the records of the previous years how CBSE and HSC students had faired in the past. CBSE alone has to take the blame, for, its response to the State Government was not clear and specific. CBSE alone has to take the blame, for, its response to the State Government was not clear and specific. Even our attempts to get clear and specific informations have only partially achieved the purpose in the sense that even though we do not find that CBSE has not been sincere in responding to the Courts directions and desire, it is not established before us that additional marks given to the students by the Result Committee of the CBSE were genuine and given by it for the reason of vagueness of the questions, error in the key answers and/or any strict evaluation of the answer books. The State Governments verification revealed, as stated in the impugned G.O., that while percentage of candidates who had scored 190 and above out of 200 in Mathematics in CBSE and HSC was 27 per cent and 28 per cent respectively, in Physics, Chemistry and Biology for CBSE students the percentage was 48, 48 and 54 respectively wherein for HSC students the percentage of those who have scored 190 and above in Physics was 12 per cent in Chemistry 11 percent and in Biology 7 per cent only. When compared to the figures of the previous years this was showing a very unusual phenomena as in the year 1990 in maths the percentage of candidates who scored more than 95 per cent was 19 in HSC and 13 in CBSE; in Physics 7 in HSC and 10 in CBSE; in Chemistry 9 in HSC and 14 in CBSE and in Biology 3 in HSC and 25 in CBSE; in the year 1991 in Maths it is 17 in HSC, 24 in CBSE; in Physics it is 5 in HSC and 31 in CBSE; in Chemistry it is 9 in HSC and 20 in CBSE and in Biology it is 6 in HSC and 14 in CBSE. The impugned G.O. records: “Government after careful consideration of these facts, are convinced that an attempt has been made to over liberalise the valuation in CBSE Plus-2 Examination, particularly in science subjects, so as to give an unfair advantage to these students. This has raised a serious problem of comparability of two streams of students who have passed through two different systems of valuation. This has raised a serious problem of comparability of two streams of students who have passed through two different systems of valuation. Government feel that this calls for corrective action to meet the ends of justice.” It is difficult to find any fault with this approach of the State Government. The Government had no material to throw into the dustbin the reports and complaints of over-liberalisation of the results of the CBSE students of the 12th Standard examination but to act accordingly in such a situation to correct the imbalance which was likely to occur on account of the advantage that CBSE students had over the HSC students. 34. The impugned G.O. also indicates that the Government it is keen to find a permanent solution and that pending a permanent solution it had to do something immediately for the 1992 session of the professional course of studies as well as other courses of studies to which CBSE/ISC as well as HSC students were to be admitted. 35. The judgment of the Supreme Court in the case of D.N. Chanchala v. State of Mysore A.I.R.1971 S.C. 1762 is illustrative of a reservation of seats in Medical colleges for students coming from the different sources. The scheme under the rules in that case was that on passing the Pre-University Course examination a pupil becomes eligible to apply for admission to the Pre-professional Course in Bangalore and Mysore Universities and to the B.Sc. part I Course leading to M.B.B.S. in the Karnataka University, the common qualification for eligibility to both the said courses in the three Universities being the passing of the P.U.C. examination. One of the rules prescribed the qualification for eligibility as the candidate must have passed the P.U.C. examination or the XI standard of the Higher Secondary Schools examination of any University established by law in India or of any institution recognised by the State Government, or an equivalent examination with (i) Physics, Chemistry and Biology, or (ii) Chemistry, Botany and Zoology as optional subjects, or, as provided by Cl. (b) who is a graduate of any university with (i) Physics, Chemistry and Biology, or (ii) Chemistry, Botany and Zoology as optional subjects. (b) who is a graduate of any university with (i) Physics, Chemistry and Biology, or (ii) Chemistry, Botany and Zoology as optional subjects. Another of the rules provided that out of the available number of seats, after deducting the number of seats set apart for other categories of reservation, 80 per cent of the seats would be open for those who had passed the P.U.C. examination and 20 per cent for those who were graduates. This reservation was challenged. The Supreme Court found as follows: “It will be easily seen that the university wise distribution of seats in the Government medical colleges has nothing in common with the district wise or unit wise selection struck down in Rajendrans case A.I.R. 1971 S.C. 1762 and Periakaruppans case 1963-2-S.C.R. 786 = AIR 1968 S.C. 1012 . In both the cases what was mainly objected to was that the selection would have to be made on the basis either of the place of birth or residence and the candidate was confined to the medical college at or nearest to such a place. Such a basis for selection was held to have no reasonable nexus with the object of the rules, namely, to select the most meritorious amongst the candidates to have the advantage of such education. In Periakaruppans case W.P. Nos. 281 and 314 of 1970, dt. 23-9-1970 = A.I.R. 1971 NSC 171, there was a further infirmity, in that, there were several committees for selection resulting in varying standards, thus defeating the very object of screening the candidates with a view to give chance to the best of them. Both these decisions, are distinguishable as the basis on which the selection of candidates is sought to be made under he present rules is quite different in that it is neither district wise nor unit wise, but is university-wise. Therefore, the infirmities found in the selection rules in those two cases and for which they were struck down cannot be relevant in any scrutiny of the present rules, much less can they be relied upon for an attack on them”. “The three universities were set up in three different places presumably for the purpose of catering to the educational and academic needs of those areas Obviously one university for the whole of State would neither have been adequate nor feasible to satisfy those needs. “The three universities were set up in three different places presumably for the purpose of catering to the educational and academic needs of those areas Obviously one university for the whole of State would neither have been adequate nor feasible to satisfy those needs. Since it would not be possible to admit all candidates in the medical colleges run by the Government, some basis for screening the candidates had to be set up. There can be no manner of doubt, and it is now fairly well settled, that the Government as also other private agencies who found such centers for medical training have the right to frame rules for admission so long as those rules are not inconsistent with the university statutes and regulations and do not suffer from infirmities, constitutional or otherwise. Since the universities are set up for satisfying the educational needs of different areas where they are set up and medical colleges are established in those areas. It can safely be presumed that they also were so set up to satisfy the needs for medical training of those attached to those universities. In our view, there is nothing undesirable in ensuring that those attached to such universities have their ambitions to have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own universities. Such a basis for selection has not the disadvantage of district wise or unit wise selection as any student from any part, of the state can pass the qualifying examination in any of three universities irrespective of the place of his birth or residence. Further, the rules confer a discretion on the selection committee to admit outsiders upto 20 per cent of the total available seats to any one of these colleges, i.e. those who have passed the equivalent examination held by any other university not only in the State but also elsewhere in India. It is, therefore, impossible to say that the basis of selection adopted to thee rules would defeat the object of the rules as was said in Rajendrans case 1968 3 S.C.R. 786= AIR 1968 S.C. 1012 or make possible less meritorious students obtaining admission at the cost of the better candidates. It is, therefore, impossible to say that the basis of selection adopted to thee rules would defeat the object of the rules as was said in Rajendrans case 1968 3 S.C.R. 786= AIR 1968 S.C. 1012 or make possible less meritorious students obtaining admission at the cost of the better candidates. The fact that a candidate having lesser marks might obtain admission at the cost of another having higher marks from another university does not necessarily mean that a less meritorious candidate gets advantage over a more meritorious one. As is well known, different universities have different standards in the examinations held by them. A preference to one attached to one university in its own institutions for post-graduate or technical training is not uncommon Rules giving such a preference are to be found in various universities. Such a system for that reason alone is not to be condemned as discriminatory, particularly when admission to such a university by passing a qualifying examination held by it is not precluded by any restrictive qualifications, such as birth or residence, or any other similar restrictions. In our view, it is not possible to equate the present basis for selection with those which were held invalid in the aforesaid two decisions. Further the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission to its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not aribtrary and has a rational basis and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot be successfully challenged. (See Chitra Ghosh v. Union of India 1970-1-S.C.R. 413 at 418 = AIR 1970 S.C. 35 . In our view, the rules lay down a valid classification Candidates passing through the qualifying examination held by university from a class by themselves as distinguished from those passing through such examination from the other two universities. Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies. Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies. In our opinion, the rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Art. 14” 36. The above rule was also challenged on the ground that it had laid down an excessive reservation for certain categories of candidates. This contention was repelled by the Supreme Court in these words: “It was not disputed that under Art. 15(4) the State was entitled to make special provisions for the advancement of socially and educationally backward classes. It has to be remembered that the object of Art. 15(4) is to advance the interests of the society as a whole by looking after the interests of its weaker sections. But as stated in M.R. Balaji v. State of Mysore 1963 Supp. (1) S.C.R. 439 = AIR 1963 S.C. 649 , while making such a provision the rights and interests of the rest of the society are not to be absolutely ignored. Consideration for the rest of the society and those who are its weaker elements have both to be kept in mind and taking the prevailing circumstances as a whle have to be adjusted. One in signed provision in Balajis case 1963 Supp. (1) S.C.R. 439 = AIR 1963 S.C. 649 , made reservations of 68 per cent of the seats for the socially and educationally backward classes in medical and engineering colleges. Such a high percentage was held to amount almost to an exclusion of the deserving and qualified candidates from other communities, which also was not in the interests of the society as a whole. The Court there observed that in adjusting the claim of both the weaker and the stronger elements the reservation for the former should ordinarily be less than 50 per cent although no inflexible percentage could be fixed and the actual reservation must depend upon the relevant prevailing circumstances in each case. In Periakaruppans case W.Ps. Nos. 85 and 314 of 1970 dt. 23-9-1970 = A.I.R. 1971 N.S.C. 171, 41 per cent reservation for the socially and educationally backward classess was held not to be excessive. In Periakaruppans case W.Ps. Nos. 85 and 314 of 1970 dt. 23-9-1970 = A.I.R. 1971 N.S.C. 171, 41 per cent reservation for the socially and educationally backward classess was held not to be excessive. No materials have been placed before us which would show that in the circumstances prevailing in Mysore State reservation made under R. 5. is unreasonably excessive. Setting apart 60 seats under R. 4 is, as already stated, not a reservation but living down sources for selection necessitated by certain overriding considerations, such as obligations towards those who serve the interests of the countrys security, certain reciprocal obligations and the like. The reservation under R. 5, though apparently appearing on the high side, not having been shown is unreasonably excessive, the contention in regard to it must fail”. 37. The Supreme Court, however, distinguished Chanchallas case A.I.R. 1971 SC 1762(supra) in its judgment in the case of State of A.P. v. U.S.V. Balaram A.I.R. 1972 S.C. 1375 & 1377 wherein a rule introducing a reservation after the students were taken through a common entrance examination test had fallen for consideration. The Supreme Court said: “in the case before us, though a uniform Entrance Test has been prescribed for both the P.U.C and H.S.C candidates, still the selection is not made on the basis of the marks obtained in the Entrance Test. On the other hand, the selections are made after disregarding those marks. At any rate, so far as some P.U.C. candidates are concerned it shows a preference to the H.S C. candidates, who may have got lesser number of marks and would not have got admission, but for the reservation of 40 per cent made for the group to which they belonged. It is no doubt true that it is open to the State to prescribe the sources from which candidates will be selected and also prescribe the criteria for eligibility. It is no doubt true that it is open to the State to prescribe the sources from which candidates will be selected and also prescribe the criteria for eligibility. In fact, in the case before us, as we have already pointed out, the rules provide for the qualifications which have to be satisfied to enable a candidate to apply and the sources from which selections will have to be made, have also been prescribed.” “We have also pointed out that in respect of eligibility for applying for admission to the 1st Year Integrated M.B.B.S. Course, no distinction has been drawn between P.U.C. and H.S.C. candidates, both of whom have to get atleast 50 per cent marks in Physical and Biological Sciences. So that clearly shows that they have been put on a par so far as eligibility is concerned. But the discrimination is made only after the Entrance Test is over by denying admission to the P.U.C. candidates who may have got higher marks then some of the H.S.C. candidates who get admission because of the 40 per cent reservation”. In D.N. Chanchala v. The State of MysoreA.I.R.1971 SC 1762, one of the question this Court had to consider was the validity of the University wise distribution of seats in the medical colleges run by the State of Mysore. There were three Universities in Mysore State, namely, Karnataha Mysore and Bangalore Universities. The challenge to such distribution of seats was that candidates having lesser marks might obtain admission at the cost of another having higher marks from another university. This Court after a reference to the different standards of examinations held in the three Universities, rejected the challenge of discrimination as follows: ‘Further the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a rational, basis and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot be successfully challenged.. In our view the rules lay down a valid classification. So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot be successfully challenged.. In our view the rules lay down a valid classification. Candidates passing through the qualifying examination held by a university form a class by themselves as distinguished from those passing through such examination from the other two universities. Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies. In our opinion, the rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Art. 14”. It will be seen that the above decision has emphasised that the selection which was made on the basis of the marks obtained in the qualifying examination held by each of the Universities was valid and the distribution of seats in the medical colleges University wise was also valid in view of the different standards adopted by each university. Again it is to be noted in the said decision, there was question of all students of the three universities taking a common Entrance Test on the basis of which a selection was made. This decision also does not help the appellants”. The Supreme Courts in its judgment pronounced as follows: “It is no doubt open to the State to prescribe the sources from which the candidates are declared eligible for applying for admission to the Medical College; but when once a common Entrance Test has been prescribed for all the candidates on the basis of which selection is to be made, the rule providing further that 40 per cent of the seats will have to be reserved for the H.S.C. candidates is arbitrary. In the first place, after a common test has been prescribed, there cannot be a valid classification of the P.U.C. and H.S.C. candidates. Even assuming that such classification is valid, the said classification has no reasonable relation to the object sought to be achieved, namely, selecting the best candidates for admission to the Medical Colleges. The reservation of 40 per cent to the HSC candidates has no reasonable relation or nexus to the said object. Even assuming that such classification is valid, the said classification has no reasonable relation to the object sought to be achieved, namely, selecting the best candidates for admission to the Medical Colleges. The reservation of 40 per cent to the HSC candidates has no reasonable relation or nexus to the said object. Hence we agree with the High Court when it struck down this reservation under R. 9 contained in C.N. 1648 of 1970 as violative of Art. 14”. 38. The Supreme Court once again found, however that the ruling in Chanchalas case (supra), could be applied to a situation obtaining in the State of Kerala where, after a protracted litigation, a classification was resorted to and reservations accordingly made allocating seats university wise. This reached the Supreme Court in the case of State of Kerala v. T.P. Roshana A.I.R. 1979 S.C. 765. The Supreme Court this time said, “Government (Government of Kerala) appointed a fresh export committee to examine and report the quo modo of admissions to medical colleges in the light of the directives contained in the Full Bench decisions. Two solutions were seriously considered by the Committee, namely (1) a common entrance examination such as is in vogue in many States and has the approval of the Medical Council of India; and (2) the standardization of the syllabi uniformly for the universities and the elimination of different yard sticks in regard to the setting of question papers, marking system and the like. The first one, though the better, was given up as productive of public and student resistance. However wise a measure may be, its viability depends on its acceptance by the consumers, namely the student community. Agitational opposition or determined dead-locking may make it unwise to inflict it on an unwilling constituency. Of course, by a gradual process of enlightenment the wisdom of such a measure may dawn. What is rejected to-day may be greeted tomorrow. The Committee jettisoned the first proposal of a common entrance examination partly scared of its impracticability at the moment. So it opted for the second, namely uniformity of standards, from the formulation of syllabus up to assignment of marks at the examinations. Surely either of the proposals is an effective answer to Art. 14. The Committee jettisoned the first proposal of a common entrance examination partly scared of its impracticability at the moment. So it opted for the second, namely uniformity of standards, from the formulation of syllabus up to assignment of marks at the examinations. Surely either of the proposals is an effective answer to Art. 14. Even so, when the Committees recommendations were placed before the Government it reflected carefully on the pragmatics of implementation on and reached the conclusion that it would take some time to fulfil the pre-requisites to give effect to that formula. Time runs, university applications rush in, admissions must begin, courses must start and administrative paralysis in decision-making is no alibi. Implementational dilatoriness cannot stall the flow of medial education Caught in this crisis, caused, in part, by the court ruling, Government fabricated a quick scheme of admission to the four medical colleges.” The Supreme Court said upon this: “The corner-stone of classification adopted for medical admissions by the Government this time was University wise allocation. By itself, this approach had constitutional sanction, having regard to the ratio in Chanchalas case. On principle, reiterating what was Found justifiable in Chanchalas case (supra) earlier, in this judgment, however, an additional pronouncement is recorded which has a bearing on the formula on which basis the State Government has allotted 2 per cent of the seats in professional courses as well as other colleges to the CBSE students and 98 per cent to the HSC students. The Supreme Court said: “But a dubious rider was added That is the bone of contention and so we excerpt the relevant portion: After considering the proposal in all its aspects Government have decided that the seats for MBBS course after deducting the seats for mandatory admission may be distributed for the students of the two Universities in the ratio of the candidates for registered the pre-degree and B.Sc. course in the two Universities , taking the average of the number of candidate registered for the pre-degree and B.Sc degree courses with eligibility for admission to Medical Colleges for the last three years as the basis.” The Supreme Court then said: “We agree with the High Court that the injection of the University wise student-strength is drawing the red-herring across the trail—an irrelevance that invalidates the scheme. We cannot see the nexus between the registered student-strength and the seats to be allotted. We cannot see the nexus between the registered student-strength and the seats to be allotted. The fewer the colleges the fewer the pre-degree or degree students. And so, the linkage of the division of seats with the registered student-strength would make an irrational inroad into the University wise allocation. Such a formula would be a punishment for backwardness, not a promotion of their advancement. We cannot uphold the discriminatory paring down based on unreason.” 39. In the case of Dr. Jagadish Saran v. Union of India A.I.R. 1980 S.C. 820, a medical graduate from the Madras University, desired admission to a post-graduate degree course of the Delhi University. He took a common entrance test and secured enough marks for qualifying for admission but was turned down because of a rule reserving 70 per cent of the seats at the post-graduate level to Delhi graduates, 30 per cent being open to all, including graduates of Delhi. Before the reservation of 70 per cent for the Delhi graduates the rule was 48 per cent for Delhi graduates and rest for others. The Supreme Court noticed the Constitutional problem and stated the law as follows: “The primary imperative of Arts. 14 and 15 is equal opportunity for all across the nation to attain excellence and this has burning relevance to our times when the country is gradually being ‘broken up into fragments by narrow domestic walls’ in politics, economics and education, undoing the founding faith of an undivided integrated India by surrender to lesser appeals and grosser passions. What is fundamental, as an enduring value of our polity, is guarantee to each of equal opportunity to unfold the full potential of his personalities Anyone anywhere, humble or high, agrestic or urban, man or woman, and whatever his religion or irreligion, shall be afforded equal chance for admission to any secular educational course or school for cultural growth, training facility, specialty or employment. ‘Each according to his ability’ is of pervasive validity, and it is a latent, though radical fundamental that, given propitious environments, talent is more or less evenly distributed and everyone has a prospect of rising to the peak Environmental inhibitions mostly freeze the genial current of the soul of many a humble human whose failure is ‘inflicted’ not innate. ‘Each according to his ability’ is of pervasive validity, and it is a latent, though radical fundamental that, given propitious environments, talent is more or less evenly distributed and everyone has a prospect of rising to the peak Environmental inhibitions mostly freeze the genial current of the soul of many a humble human whose failure is ‘inflicted’ not innate. Be it from the secular perspective of human equality or the spiritual insight of divinity in everyone, the inherent superiority cult with a herrenvolk tint, is contrary to our axiom of equality. That is why ‘equal protection of the laws” for full growth is guaranteed, apart from ‘equality before the law’. Even so, in our imperfect society, some objective standards like common admission tests are prescribed to measure merit without subjective manipulation or universitywise invidiousness. In one sense, it is a false dilemma to think that there is rivalry between equality and excellence, although superficially they are competing values. In the long run, when every member of the society has equal opportunity, genetically and environmentally, to develop his potential, each will be able, in his own way, to manifest his faculty fully. The philosophy and pragmatism of universal excelleace through universal equal opportunity is part of our culture and constitutional creed” “This norm of non-discrimination, however, admits of just exceptions geared to equality and does not forbid these basic measures needed to abolish the gaping realities of current inequality afflicting ‘socially and educationally backward classes” and ‘the Scheduled Castes and the Scheduled Tribes’. Such measures are rightly being taken by the State and are perfectly constitutional as the State of Kerala v. N.M. Thomas 1976 1 S.C.R. 906 has explains. Equality and steps towards equalisation are not idle incantation but actuality, not mere ideal but real life. But can a university, acting within the constitutional parameters, create a new kind of discrimination, viz.. reservation for students of a particular university? The literal terms of Art. 14 do not tolerate it, the text of Art. 15 does not sanction it. Can we carve out a fresh ground of preference? But can a university, acting within the constitutional parameters, create a new kind of discrimination, viz.. reservation for students of a particular university? The literal terms of Art. 14 do not tolerate it, the text of Art. 15 does not sanction it. Can we carve out a fresh ground of preference? Delhi University students, as such, are not an educationally backward elass and, indeed, institution-wise segregation or reservation has no place in the scheme of Art. 15, although social and educational destitution may be endemic in some parts of the country where a college or university may be started to remedy this glaring imbalance and reservation for those alumni for higher studies may be permissible. We will explain this further but speaking generally, unless there is vital nexus with equal opportunity, board validation of university—based reservation cannot be built on the vague ground that all other universities are practising it—a fact not fully proved before us either. Universality of illegality, even if the artists of discrimination are universities, cannot convert such proxis into constitutionality. Nor, indeed, can the painful circumstance that a batch of medical graduate demonstratively lasted in front of the Health Ministers house, ipso facto , legalise reservation of seats in their favour. Shri Shanti Bhushan vividly described his role as Law Minister in meeting the student satyagraha who were honestly hungry for post-graduate seats and the crisis which stampeded Government to intervene and make the University revise its reservation upward to save the lives of the ‘fasters’. We have sympathy for students especially for those who sacrifice their comforts to claim an opportunity to take post-graduate medical degrees. We even feel that the student community often resorts to direct action of the satyagraha model when the pachydermic disposition of authorities drive them to such drastic heroics. But what if non-Delhi students start a rival starvation exercise? That will lead to testing the rule of law on the immolative or masochist capabilities of affected groups and not on the Articles of the Constitution or provisions of the legislation. Protest fasting, a versatile weapon in our cultural armory is meant to sensities or conscientize the soul of the Administration when it is too paper-logged or callous to look at human problems from the angle of human justice. Protest fasting, a versatile weapon in our cultural armory is meant to sensities or conscientize the soul of the Administration when it is too paper-logged or callous to look at human problems from the angle of human justice. Beyond that, this great Gandhian technique cannot be blunted by promiscuous use, so long as democratic mechanisms are alive and not impervious to legitimate grievances and can be spelt into action not merely by sensational, though sincere, tactics like fasting unto death. While recognising, even reverencing, the role of soul force in quickening the callous conscience of authorities t o grave injury and need for urgent remedy, we cannot uphold the Delhi Universitys ‘reservation’ strategy merely because the Government was faced with students ‘fasts’ and ministers desired a compromise formula and the University bodies simply said ‘Amen’. The constitutionality of institutional reservation must be founded on facts of educational life and the social dynamics of equal opportunity. Political panic does not ipso facto, make constitutional logic”. In this judgment, the Supreme Court observed: “Prima facie, equal marks must have equal chance for medical admissions, as urged by the petitioner. And neither university-based favoured treatment nor satyagraha induced quota policy can survive the egalitarian attack. To repulse the charge, equality-oriented grounds must be made out. Constitutional equality itself is dynamic, flexible, and moulded by the variables of life. For instance, if a region is educationally backward or woefully deficient in medical services, there occurs serious educational and health service disparity for that human region which must be redressed by an equality-and-service minded welfare State. The purpose of such a policy is to remove the existing in equality and to promote welfare based equality for the denizens of the backward regions. The specific strategy to ameliorate the unequal societal condition is left to the State, provided it is geared to producing equality in the quality of life of that handicapped area subject, of course, to basic recognition of individual quality and criteria of efficiency”. 40. Speaking upon a slightly different angle which may be of relevance to us, the Supreme Court in the same judgment posed a question, what is merit or excellence? 40. Speaking upon a slightly different angle which may be of relevance to us, the Supreme Court in the same judgment posed a question, what is merit or excellence? and answered: “If potential for rural service or aptitude for rendering medical attention among backward people is a criterion of merit—and it undoubtedly, is in a land of sickness and missery, neglect and penury, wails and tears — then, surely, belonging to a university catering in to a deprived region is a plus point of merit. Excellance is composite and the heart and its sensitivity are as precious in the scale of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in freak cases. Marks on this basis will take us to the same preference as reservations for in-university candidates. Here we are not preferring one with less marks, but adopting a holistic manner of marking linked up with backward settings, institutional orientation and/or like considerations”. Commenting further, the Supreme Court said, “The first caution is that reservation must be kept in check by the demands of competence. You cannot extend the shelter of reservation where minimum qualifications are absent. Similarly, all the best talent cannot be completely excluded by wholesale reservation. So, a certain percentage, which may be available, must be kept open for meritorious performance regardless of university, State and the like. Complete exclusion of the rest of the conntry for the sake of a province, wholesale banishment of proven ability to open up, hopefully, some dalit talent, total sacrifice of excellence at the alter of equalisation—when the Constitution mandates for everyone equality before and equal protection of the law — may be fatal folly, self-defeating educational technology and anti-national if made a routine rule of State policy. A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit—such is the dynamics of social justice which animates the three egalitarian articles of the Constitution”. After stating as above and after taking notice of a few cases decided by the Supreme Court, it is said by the Supreme Court: “If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. After stating as above and after taking notice of a few cases decided by the Supreme Court, it is said by the Supreme Court: “If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has grenter importance where we reach the higher levels of education like post-graduate courses. After all, top technological expertise in any vital field like medicine is a nations human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social in consequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the countrys development in the vital areas of professional expertise,” The Supreme Court also said in this judgment that: “measurement of merit is difficult and the methods now in vague leave so much to be desired, that swearing by marks as measure of merit may even be stork superstition. But, for want of surer techniques, we have to make-do with entrance tests, and at any rate, save in clear cases of perversity or irrationality, this is ordinarily but of bounds for courts. The Supreme Court finally held that 70 per cent reservation was on the high side and directed that the petitioner (in that case) be admitted and directed the Delhi University to appoint a time-bound committee to investigate in depth the justification for and the quantum of reservation at the post-graduate level from the angle of equality of opportunity for every Indian but taking into consideration other constitutionally relevant criteria that the Supreme Court indicated in that judgement. 41. In Charles K. Skaria v. C. Mathew AIR 1980 S.C. 1230 the Supreme Court found unconstitutional the scheme of reservation of 2 per cent for candidates in the whole of the country outside the two universities of the State of Kerala. It observed: “Although the selection formula may be bad for violation of Art. 14, it is possible to reconstruct for this year a practical admission formula. It observed: “Although the selection formula may be bad for violation of Art. 14, it is possible to reconstruct for this year a practical admission formula. That is precisely what we have done, over-ruling the High Courts approach which, in our view but with all respect, is a little too pedantic. In the result the appellants 2 and 3 who took their diploma from the Medical College, Calicut will re entitled to continue their course. Appellant No. 1 will move the two Universities, the Indian Medical Council and the Kerala Government for permission to continue his studies in the exigencies of the case and in the light of the observations we have made above” 42. In Pradip Jain v. Union of India AIR 1984 S.C. 1420 the Supreme Court made certain observation indicating that, “wholesale reservation made by some of the state Governments on the basis of ‘domicile’ or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the University or the State, excluding all students not satisfying this requirement, regardless of marit was unconstitutional and void as offending the equality clause of the Constitution”. It appears that this judgment of the Supreme Court was misunderstood as giving to the State Government and the other authorities to make reservations upto 70 per cent leaving 30 per cent seats open for others. In Dinesh Kumar v. MotilalNehru Medical College, Allahabad AIR 1985 S.C. 1059 the Supreme Court clarified by stating: “We would also like to clear up one misunderstanding which seems to prevail with some State Governments and Universities in regard to the true import of our judgment dated 22nd June, 1984. They have misinterpreted our judgment to mean that 30% of the total number of seats available for admission to M.B.B.S. course in a medical college should be kept free from reservation on the basis of residence requirement or institutional preference. That is a total misreading of our judgment. They have misinterpreted our judgment to mean that 30% of the total number of seats available for admission to M.B.B.S. course in a medical college should be kept free from reservation on the basis of residence requirement or institutional preference. That is a total misreading of our judgment. What we have said in ou r judgment is that after providing for reservation validly made, whatever seats remain available for non-reserved categories, 30% of such seats at the least, should be left free for open competition and admission to such 30% open seats should not be based on residence requirement or institutional preference but students from all over the country should be able to compete for admissions to such 30% open seats. To take an example, suppose there are 100 seats in a medical college or University and 30% of the seats are validly reserved for candidates belonging to scheduled castes and scheduled tribes. That would leave 70 seats available for others belonging to non-reserved categories. According to our judgment, 30 per cent of 70 seats, that is, 21 seats out of 70 and nor 30 per cent of the total number of 100 seats, namely, 30 seats must be filled up by open competition regardless of residence requirement or institutional preference,” 43. In Nidamarti v. State of Maharashtra A.I.R. 1986 S.C. 1362 the Supreme Court pointed out there are two considerations which may legitimately weigh with the Court in justifying departure from the principle of selection based on merit. One is what may be called State interest and the other is what may be described as a regions claim of backwardness. In this judgment it is indicated that “the legitimacy of claim of State interest was recognised explicitly in Dr. P. Joshis case A.I.R. 1955 S.C. 334 and P. Rajendrans case A.I.R. 1968 S.C. 1012. These two cases show that the claim of State interest in providing adequate medical services to the people of the State by imparting medical education to students who by reason of their residence in the State would be likely to settle down and serve the people of the State as Doctors, was regarded by the Court as a legitimate ground for departing from the strict principle of selection based on merit”. The second consideration according to the Supreme Court is illustrated in the case of Dr. The second consideration according to the Supreme Court is illustrated in the case of Dr. Pradeep Jains case A.I.R. 1984 S.C. 1420 in which the Suprume Court observed that backwardness of a region may be a ground for departure from the rule of equity and in Jagdish Sarahs case A.I.R. 1980 S.C. 820, wherein again this aspect was emphasized. The Supreme Court took the above view inspite of the citation before it of the earlier judgment in D.N. Chanchalas case (supra). 44. In Greater Bombay Municipal Corporation v. Thukrai Anjali A.I.R. 1989 S.C. 1194, the rule providing for college-wise institutional preference was declared ultra vires. The Bombay Municipal Corporation had framed a rule for admission to post-graduate degree and diploma courses in its medical colleges providing for college wise institutional preference for admission. When this rule was challenged the High Court declared that as ultra vires . On appeal before the Supreme Court, after a detailed examination of the issue in all its aspect, in this judgment, it has said, “By the impugned rules, a classification has been sought to be made with the students of each particular college passing their MBBS examination from that college to the exclusion of all other students obtaining their MBBS Degree from the other colleges. In order that a classification is permissible one within the meaning of Art. 14 of the Constitution, two tests are to be satisfied, namely, (1) that there is an intelligible differentia which distinguishes persons grouped together from those who are left out of the group and (2) that there is a rational nexus to the object sought to be achieved by the impugned rules. The object sought to be achieved by the impugned rules is obviously to prefer merit for the post-graduate course and to exclude less meritorious candidates, It will be presently demonstrated that both the tests are not satisfied in the instant case”. Having so stated, the Court took notice of the student-performance in different colleges and found that such institution wise reservation by the Government is a discrimination and thus was invalid. 45. Having so stated, the Court took notice of the student-performance in different colleges and found that such institution wise reservation by the Government is a discrimination and thus was invalid. 45. Reservation for institutional candidates has once again been found to be invalid in one of the latest judgment of the Supreme Court in P.K. Goel & others v. U.P. Medical Council & Others 1992-3-.J.T. (S.C.) 508lThe Supreme Court has left no ambiguity in this behalf that once there is an entrance examination any institution wise reservation will be invalid. 46. We have seen from the above that the State Government has issued the impugned order on informations that on verification there were doubts created as to the results of the CBSE atleast with respect to the merits of the candidates. The government have been aware of the system applied in the selection of the candidates for admission to professional courses that entrance examination merit of a candidate was judged for 50 marks only whereas marks in the qualifying subjects were judged for 200 marks and thus a student even obtaining out of 50 a total of 50 marks in the entrance examination was to rank below (in the final selection list) a student who obtained only 30 marks in the entrance examination but got 150 out of 200 in the qualifying subjects against 129 of the candidate who got 50 out of 50 in the entrance examination. In any case, the HSC students who constitute another source of selection had no advantage of the liberal evaluation of the answers of the CBSE students in the qualifying subjects. CBSE had not come forward with needed informations totally the apprehensions of the prejudice to the HSC students on account of liberal evaluation of answer papers of the CBSE students. In fact, even such informations which have been revealed before us were not made available to the State Government by the CBSE. Whether there has been any mistake in equating for the purposes of merit evaluation students coming from the CBSE 12th Standard and HSC plus-2 was not to be examined or would not have been examined by the State Government while issuing the impugned order. The governments concern, it appears, however, was to remove the alleged unfair advantage of the CBSE students over the HSC students on account of the alleged liberal evaluation of the answer papers of the CBSE students. The governments concern, it appears, however, was to remove the alleged unfair advantage of the CBSE students over the HSC students on account of the alleged liberal evaluation of the answer papers of the CBSE students. The findings of the sample cheek and a comparison with the figures of the previous years (when no such complaint of overliberalisation was received by the government) gave to them a conviction that there has been an unfair advantage to the CBSE students on account of liberal evaluation of the results of CBSE students. The immediacy or immanency or urgency of the situation in which the government decided to issue the order can easily be found in the fact that the session had to be started on time and decision taken to admit the students urgently so that academic curriculum in professional courses was not delayed for the current year. Postponing thus a permanent solution if the government resorted to a course which is constitutionally justifiable, no fault can be attached to them in issuing the impugned G.O. allotting 2 per cent CBSE/ISC students and 98 per cent for HSC students. 47. We have seen already that the State in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies and it must possess for that purpose large power of distinguishing and classifying persons or things to be subjected to such classification. This will not be in any manner inhibited by the equality rule of the Constitution of India if the classification is not palpably arbitrary and its action passed the twin test of classification founded on intelligible differentia and that the differentia have a rational relation to the object sought to be achieved by the action. It is difficult on the facts noticed above to say that there is no intelligible differentia in classifying the CBSE students for the reasons stated in the Government Order as a separate group from the students-constituting other sources for the reasons stated in the Government Order that it had reasons of conviction that CBSE students had been allotted marks liberally in qualifying subjects. Whether this differentia have a rational relation to the object sought to be achieved by the impugned order, however, a different question. Whether this differentia have a rational relation to the object sought to be achieved by the impugned order, however, a different question. The purpose which can justify the reservation of seats in professional courses of studies has been invariably tested by the Courts on the touchstone of the rule that merit alone would justify a selection for admission to any educational course because a person inferior in merit can hardly complain of any discrimination or arbitrariness if a person superior in merit is selected. A person who is inferior in merit can equal the meritorious only by improving his merit. The State Government, however, has got the freedom to take notice of the backwardness of a section of the people and make laws to improve their lot by providing for reservation and ensuring that in the area reserved for them those who are superior in merit get primacy over those who are inferior in merit. It is open to the State to prescribe the sources from which the candidates are declared eligible to apply for being selected for admission and in doing so to take notice of such social and educational backwardness that would require any special provision including reservation of the number of seats for candidates belonging to a particular source. A reservation, however, attached to a source will run the risk of discrimination unless a true and genuine nexus is found existing between the reservation on the one hand and the object sought to be achieved on the other, viz., admission of the best talent from the sources indicated in the rules. 48. It will not be out of place to reiterate that in A.P. State v. Balram , (supra), a reservation of 40 per cent in favour of HSC student was found invalid even though the Court found that it was intended to protect the interests of the HSC students against others saying, “even assuming that such a classification is valid, the said classification has no reasonable relation to the object sought to be achieved, namely, selecting the best candidates for admission to medical colleges. The reservation of 40 per cent to the HSC candidates has no reasonable relation or nexus to the said object.” 49. The reservation of 40 per cent to the HSC candidates has no reasonable relation or nexus to the said object.” 49. This apart, the other difficulty is in acknowledging any nexus between the strength of students who appeared for the HSC examination and the number of students who appeared for the CBSE/ISC, examination, for working out the percentage of reservation. We have already noticed that in the case of State of Kerala v. T.P. Roshana (supra), in which the Supreme Court found that there can be university wise distribution of seats it said in no uncertain terms that the injection of the University wise student-strength is drawing the red-herring across the trail-an irrelevance that invalidates the scheme. In the words of the Supreme Court, ‘we cannot see the nexus between the registered student-strength and the seats to be allotted’. 50. In the instant case thus, we are faced with a situation that on the one hand there is a reasonable basis for taking steps to remove any advantage that CBSE students are likely to get on account of certain additional marks allotted to them and on the other hand it is difficult to reconcile the marks in the qualifying subjects and the entrance examination that there is no unfair advantage to any section of the students. Students going to the CBSE schools or HSC schools are after all students who are sons of the soil and who committed no fault or mistake if their parents sent them for education to one or the other schools. Of course, if they are educated in a school following a particular system and pattern of education and they are assessed in accordance with the rules of that system and pattern and thus in one type of school, that is to say, schools which follow the same curriculum and take the students through the same examination, for the purpose of merit evaluation they are equals inter se. Once the system and pattern followed by various schools including the examination to which the students are taken is found different there can be no basis to treat them as equals. If any equality in this behalf is worked out, that will be fictional. If there is no way but to go by the fictional equality, people may have to tolerate infractions of the constitutional rights. If any equality in this behalf is worked out, that will be fictional. If there is no way but to go by the fictional equality, people may have to tolerate infractions of the constitutional rights. If infractions are little, and are of not much consequence, they may be ignored. Ignoring such infractions is possible, however, only when infractions are known or predictable. If infractions are not known and are not predictable, the extent of damage that they are likely to cause is not assessable it is not possible to ignore them. Such a minor infraction can be noticed in the reference sheet of the entrance examination produced by the Anna University. In the result-sheet based on moderated marks of the CBSE students and the marks of the HSC students, it is understandable that if more than one are found at one level in the entrance examination result, one who has got higher marks in the qualifying subjects has eliminated the other who has got lower marks in the qualifying subjects. Even though there is some advantage of additional marks allotted by moderation to a CBSE student as he eliminated a HSC student only on the basis of the said marks, we think one can be inclined to ignore it because this infraction will be so nominal that it will be of no consequence. 51. Coming to the facts of the case, when we see what the State Government did, we notice that in its attempt to remove the apprehensions of the unfair advantage to the CBSE student its, it resorted to a reservation of a sort in the sense that it decided to allot 2 per cent of the total number of seats in professional courses and other courses of studies in the State of Tamil Nadu to the CBSE/ISC students and 98 per cent reservation for HSC students. They arrived at this figure by a process, however, that took them to the number of students who appeared in the HSC and CBSE qualifying examinations. At the time they did it, they had no other information/figure and it was not known how the students from the CBSE and HSC had fared in the entrance examination. They had thus no adequate material at that time to create a nexus with the object to be achieved by the impugned Government Order. 52. At the time they did it, they had no other information/figure and it was not known how the students from the CBSE and HSC had fared in the entrance examination. They had thus no adequate material at that time to create a nexus with the object to be achieved by the impugned Government Order. 52. We are thankful to the learned counsel for the parties, the authorities of the CBSE, the State Government, the Anna University which conducted the entrance test examination and all others for the co-operation that they gave to us in our attempt to resolve a sensitive issue how to ensure that no meritorious student coming through both sources is denied due admission to any professional course or any other course of study of his choice on account of the faults that are noticed or apprehended in the allotment of marks to the CBSE students in the examination through which they have qualified. If we have not accepted as conclusive the explanations furnished by the CBSE for allotment of standardization-moderation marks of the Result Committee of CBSE we have not intended to discredit their result. All that we have, as a result of our endeavours, found is that the equality which had been conceived for the purposes of admission in professional courses between the students coming through the CBSE and the students coming through HSC has been disturbed by a serious apprehension on account of the extra marks that some students appeared to have received in the qualifying subjects after the evaluation of their answer books by the Result Committee of the CBSE. These extra marks they might have deserved but there is no proper explanation as to why such extra marks were allotted by the Result Committee. These extra marks they might have deserved but there is no proper explanation as to why such extra marks were allotted by the Result Committee. When we asked the respondent-State Government and the Anna University to prepare a selection list of candidates for professional courses (1) based solely on the entrance test result merit; (2) based on the Government Order of allotment of 2 per cent of seats to the CBSE/ISC students and 98 per cent of seats to the HSC students and (3) in accordance with the rule that had been followed in the past, i.e., in accordance with a position in the selection list of a candidate on the basis of the marks in the qualifying subjects and the entrance examination first only accepting the standardization/moderation marks and secondly, in accordance with the raw marks or unmoderated/unstandardized marks allotted to the students coming through the CBSE, we had in our mind that by this process we would be able to know how HSC students ranked in merit and how far moderation/standardization marks benefited the CBSE students if the impugned Government Order was not implemented and the old rule of admitting students to the professional courses on the basis of the selection list on the basis of marks in the qualifying subjects as well as marks in the entrance examination, is followed. It is for anybody to see that percentage of number of students coming through the CBSE to the professional courses will be much more if the standardized/moderated marks are added in their credit card selection is based on the marks in the qualifying subjects and the marks in the entrance examination combined. The percentage of CBSE students in the selection list based entirely upon the entrance examination results is close to their number if 2 per cent allotment of seats is adhered to; in the latter case, they get a few seats less than the entrance examination result. The selection based on unmoderated marks allotted to CBSE students in accordance with the rule that took into account the marks in the qualifying subjects as well as entrance examination however, gives to the CBSE students lesser number of seats than the 2 per cent reservation would give to them. 53. The selection based on unmoderated marks allotted to CBSE students in accordance with the rule that took into account the marks in the qualifying subjects as well as entrance examination however, gives to the CBSE students lesser number of seats than the 2 per cent reservation would give to them. 53. If there is an entrance examination and merit is reckoned in accordance with the result of that examination but admissions are restricted by allotment of seats to various sources, the equality rule of the Constitution is violated. Having reckoned their merit as a result of the entrance examination if they are sought to be classified on the basis of the sources through which they come, there is every reason to say that there can be no nexus with the object of selecting the best of the candidates for professional courses. The Supreme Court has made it clear more than once that any such reservation will be hit by Art. 14 of the Constitution. 54. There is a possibility of a justifiable reservation or allotment of seats to the candidates or students coming through the different sources as the Supreme Court has found in some of the cases provided such a reservation has no adverse effect on merits and is intended to protect the interests of a socially and educationally backward region or area or a section of the people. Institution wise reservation in such a case may pass the test of discrimination and arbitrariness but it shall always be subject to the various ancillary rules that are to be examined such as the extent of the percentage of reservation, the cause for which the reservation was made, etc. The system in the State of Tamil Nadu, however, is not one of admission based on the merit of a candidate assessed on the basis of the entrance examination result. It is also not a system in which only the marks in the qualifying subjects are taken and although they come from different sources, some sort of fictional equality is presumed. The system is one in which the marks allotted to the candidates in the entrance examination do play a role but marks obtained by the candidates in the qualifying subjects play a dominant role. The system is one in which the marks allotted to the candidates in the entrance examination do play a role but marks obtained by the candidates in the qualifying subjects play a dominant role. There is no need to rationalise the merit of a student solely based on the entrance examination result vibether they come through one of the other source. There is always a need, however, to rationalise and create that fictional equality about which we have already stated in our judgment when marks in the qualifying subjects are taken into account of students coming through CBSE and through the HSC who are admittedly not examined by the same standard and the syllabus also appear to differ. The equation which worked well until, doubts were raised due to the additional marks allotted to the CBSE students has brought some inherent defects to light. If merit alone is to be judged, subject to the usual reservation for the SC/ST candidates and backward class candidates, etc. any attempt to do it on the basis of the marks in the qualifying subjects has got the risk of introducing unpredictable elements of liberal or strict evaluation of answer books by the examiners or in the other words varying systems of marking the answer books of the students. 55. It seems, in the past a combination of the two, that is to say, marks in the qualifying subjects as well as marks in the entrance examination was taken for determining the merit of the candidates and preparing the selection list accordingly because anomalies on account of the students coming through different sources were substantially likely reduced by entrance examination marks. But this has received a serious jolt. It is no longer a safe basis for the selection of the candidates for professional courses. 56. But this has received a serious jolt. It is no longer a safe basis for the selection of the candidates for professional courses. 56. To sum up: (1) It will not be proper to accept the subject marks allotted to the CBSE students as a basts to reckon their merit assessment with the HSC students unless all doubts as to the propriety of allotment of extra marks in the name of standardization/moderation are removed; (2) Since it will not be proper to take into account the subfects marks of the CBSE students for the purpose of reckoning their merit with the HSC students it will be improper to take into account the subject marks of HSC students as a whole because, while there may be some basis for reckoning inter se merit of HSC students with reference to the marks allotted to them in plus-2 examination, they may have no one from the other source (CBSE) for any equation of equality; (3) While it may be possible to say that Government had no justification to intervene and introduce by an order a system of allotment of seats to be CBSE/ISC on the one hand and HSC students on the other, there is no reasonable nexus with the object to be achieved in the reservation of 2% for the CBSE/ISC students and 98% for the HSC students; (4) When subject marks are no longer safe for assessing the merit of the candidates. The entrance examination result is the safest and the only basis available for assessing inter se merit of the candidates coming either through CBSE/ISC or through HSC. 57. For the reasons of the conclusions that we have reached it is not possible to order as prayed for in W.P. No. 8477 of 1992 to deduct the alleged extra marks of the CBSE-12th Standard students in the year 1992 and to consider the claims of the students belonging to the CBSE only on the basis of such deducted marks. The unmoderated marks, as we have seen, or raw marks will have no value except that such marks are awarded by the examiners subject to acceptance thereof by the Result Committee. The unmoderated marks, as we have seen, or raw marks will have no value except that such marks are awarded by the examiners subject to acceptance thereof by the Result Committee. Since the Result Committee of the CBSE decided to award standardized moderated marks, it is not possible to separate raw marks from it and treat raw mirks as the result of the 12th Standard examination of the CBSE students for the year 1992. Since we have, however, found that the award of the standardization/moderation marks to the CBSE students in the year 1992 has inflicted serious blow upon the fictional equality that had been created in the scheme of preparing the selection list of the candidates for professional courses, we cannot altogether ignore the grievance of the petitioner in W.P. No. 8477 of 1992. It is obvious that the marks allotted to the CBSE students in the year 1992 in 12th Standard cannot form any basis for the equation of the equality of the subject marks of the students of the CBSE/ISC and HSC. 58. We do not see any force in the contention of the learned counsel for the petitioners in W.P. No. 7656/92 and 7862 to 7865 & 8099/92 that the State Government had no justification to say that an attempt has been made to overliberalise the valuation in CBSE 12th Standard examination particularly in science subjects so as to give an unfair advantage to its students. We have already noticed that the State Government acted on the basis of the reports and complaints and verified the veracity of the allegations. They wanted the CBSE to give informations to them. Since CBSE gave no information and the materials that the Government of the State found gave the impression that there had been over liberalisation of the valuation of the answer books of the students of CBSE, they decided pending a permanent solution, to strike a balance by the impugned order. In doing so, however, the Government based its ratio on the total number of students who appeared for the HSC examination and the number of students who appeared for the CBSE/ISC examinations and fixed the allotment figure at 2 per cent for CBSE/ISC students and 98 per cent for HSC students. In doing so, however, the Government based its ratio on the total number of students who appeared for the HSC examination and the number of students who appeared for the CBSE/ISC examinations and fixed the allotment figure at 2 per cent for CBSE/ISC students and 98 per cent for HSC students. We have, however, found that there is absence of nexus with the object to be achieved in the allotment of seats rounded to 2 per cent for the CBSE/ISC students and 98 per cent for HSC students. 59. When pursuant to our orders the Anna University prepared various result meets, and under our orders entrance examination results were published, however, Mr. R. Krishnamurthy, learned counsel for the petitioners in W.P. Nos. 7862 to 7865 and 8099 of 1992 attempted to say at one stage that the entrance examination results were manipulated but gave up when it was pointed out that there has been no basis for any such allegation. He, however, made a serious attempt to persuade the Court to take the view that in the absence of any challenge to the rule that the entrance examination marks and qualifying subject marks together, in the ratio indicated above, form the basis of selection of the candidates, the Court should strike down the Government Order but should do no more which will have the effect of disturbing the existing system. In this his arguments have been at variance with the arguments of learned counsel for the petitioner in W.P. No. 7656 of 1992. We do not, however, think that this argument of Mr. R. Krishnamurthy merits anything more than a mention of it in our judgment because it is well settled that it is not the prayer made in a petition or the relief asked for which shall guide or inhibit the Courts jurisdiction. The Court has a duty in the public interest to mould the relief as and when needed and to do substantial justice. 60. We have given our anxious thought to the problem on hand. The Court has a duty in the public interest to mould the relief as and when needed and to do substantial justice. 60. We have given our anxious thought to the problem on hand. While a long term solution has to be devised which the Government also have apparently desired in saying, depending permanent solution to such problems in future Government after careful consideration direct” in the impugned order, a specific order is required for the admission this year in the professional courses for which entrance examination has already been held and the results published under our orders. 61. We have already noticed that discrediting standardization/moderation marks allotted to the CBSE students and accepting raw marks/unmoderated marks as the basis for reckoning inter se merit will be unfair to the CBSE students and permitting to reckon the standardization/moderation marks of the CBSE students would be unfair to the HSC students. When subject marks thus are not safe guide to the inter se merit of the CBSE and CBSE and HSC students the only course and a proper course on that, is to accept the selection list strictly in accordance with the merit in the entrance examination test as the basis for admission to the professional courses. 62. A long term solution has to be found out not by means which are created on account of agitation of one section or the other or on account of influence of one or the other section whether overt or latent. The Government of the State, which has shown so much of concern, we hope and trust, shall not do things which shall create new problems. We invited suggestions for long term solution and noticed that parties, in spite of their prejudice, sincerely feel that there should be no occasion left for litigations that divide students and parents. In our anxiety in this behalf we have elicted informations and come to know that there are eminent educationists who will have no bias either for the CBSE/ISC or any other class of students. The Ministry of Human Resource Development, Government of India, will surely feel concerned because one of its major agencies in the country is the CBSE conducting examinations at a very large scale and the number of CBSE students in Tamil Nadu has also been increasing with the increase in the number of schools affiliated to CBSE. The Ministry of Human Resource Development, Government of India, will surely feel concerned because one of its major agencies in the country is the CBSE conducting examinations at a very large scale and the number of CBSE students in Tamil Nadu has also been increasing with the increase in the number of schools affiliated to CBSE. The two concerned parties, viz., the government of the State in the concerned department and the Union Government in the concerned Ministry (department) with the help of experts can always as it is said when there is a will there is a way, find out a solution. Keeping this in view we have no hesitation in recommending for constitution of a Committee of a nominee of the Union of India in the concerned Ministry (Department); the Government of the State of Tamil Nadu in the concerned Ministry (Department) and at least three eminent educationists preferably from the State of Tamil Nadu, to make recommendations of a system and procedure for admission to the professional courses of the State of Tamil Nadu in accordance with the rules of usual reservation for the SC/ST and socially and educationally backward classes of people as well as women for which purpose we intend to direct the State Government and the Union of India to do the needful as quickly as possible. If there is any delay in constituting the Committee and obtaining recommendations as aforesaid there is likelihood of a repetition of similar allegations in future and this time it is the CBSE, the next time it may be CBSE again or any other source including HSC 63. Before we part with this judgment we record that in W.P. No. 8477 of 1992 there has been some statements which we thought were fit to be deleted and when this was conveyed to the petitioner, through its learned counsel, Mr. Doraiswami it filed a petition/affidavit withdrawing such allegations. We have confined our considerations to only such allegations in the petition that we found out after withdrawal. 64. In the result W.P. No. 7656 of 1992 and 7862 to 7865 & 8099 of 1992 are allowed to the extent that the impugned Government Order is made inoperative. 65. Doraiswami it filed a petition/affidavit withdrawing such allegations. We have confined our considerations to only such allegations in the petition that we found out after withdrawal. 64. In the result W.P. No. 7656 of 1992 and 7862 to 7865 & 8099 of 1992 are allowed to the extent that the impugned Government Order is made inoperative. 65. The State of Tamil Nadu and the other agencies concerned with the admission to the professional courses in the State of Tamil Nadu are directed to proceed with the admission only on the basis of the entrance examination results and not to take into account the subject marks for the said purpose. Since the respondent-State of Tamil Nadu and the agencies concerned with admission to professional courses are directed to ignore the subject marks, W.P. No. 8477 of 1992 stands allowed to that extent. 66. On the facts of these cases, there shall be no order as to costs.