Judgment S.J. Mukhopadhaya, CJ.—The petitioner while challenging the decision of the respondents in not admitting the petitioner to the course of Diploma in any of the Polytechnic Colleges situated within the State of Gujarat for the academic session 2010-11, prayed for direction on respondent No. 1 to admit him in the course of Diploma in any of the Polytechnic Colleges within the State of Gujarat for the academic session 2010-11. 2. The case of the petitioner that he having passed X Std. Examination from Study Centre situated in Gujarat of the 3rd respondent - National Institute of Open Schooling (hereinafter referred to as ‘NIOS’) applied for admission in Diploma courses in any of the polytechnic colleges within the State, but in the merit list ‘zero’ mark was allotted. Further case of the petitioner is that he could come to know that respondents are not recognizing the certificate issued by the Board of NIOS, therefore, he has been allotted ‘zero’ marks and not admitted in the aforesaid course. 3. The brief facts of the case of the petitioner are as follows:— The Government of India from its Department of Education, Ministry of Human Resources Development, New Delhi, framed a policy known as ‘National Policy on Education 1986’. It was adopted by the Parliament in May 1986. The policy was introduced with a view to help the school dropouts, children from habitation without school, working children and girls who cannot attend whole day school and to strengthen and enlarge the scope of education. 4. In the year 1989, in furtherance of the aforesaid National Policy on Education, the Ministry of Human Resource Development, Government of India passed Resolution on 21.11.1989 to provide education upto pre-degree level to those who for one or other reason could not make use of the formal education system. National Open School, an autonomous organisation was set up under National Open School Society, a society registered under the Societies Registration Act. The name of the National Open School was later on changed to National Institute of Open Schooling (NIOS). 5. The courses offered by NIOS were recognised by different State Boards including Gujarat Secondary Education Board at secondary education level and senior secondary education level. A list of Universities recognizing NIOS examinations and certification has been shown at Appendix ‘B’ of the Prospectus 2010-11 issued by NIOS, relevant portion of which is as follows:— “GUJARAT 1. 5. The courses offered by NIOS were recognised by different State Boards including Gujarat Secondary Education Board at secondary education level and senior secondary education level. A list of Universities recognizing NIOS examinations and certification has been shown at Appendix ‘B’ of the Prospectus 2010-11 issued by NIOS, relevant portion of which is as follows:— “GUJARAT 1. Saurashtra University Campus, Kalavad Road, Rajkot-110007 2. North Gujarat University, Rajmahal Road, P.B. No. 21, Patan-384265 (N.G.) 3. Bhav Nagar University, Bhavnagar 4. Sardar Patel University, Vallabh Vidhya Nagar 5. Gujarat University, Ahmedabad” 6. On 14.09.1996, the Ministry of Human Resource Development, (Department of Education) Government of India, passed a Resolution vesting authority in the National Open School Society (for short ‘NOSS’) for holding certain examinations through distance and open learning system at school stage and certification thereof. The relevant portion of the Resolution reads as follows:- “... The Society shall also be the certifying authority for such courses and programmes and do such acts ancillary to these objects as may be necessary. The Central Board of Secondary Education which was the certifying and examining authority on behalf of the National Open School Society, will cease to be so with effect from the date of issue of this Notification in the Gazette of India.” From the aforesaid Resolution, it will be evident that power was taken away from CBSE, which was the certifying and examining authority on behalf of NIOS earlier, and vested with the NOSS itself. The aforesaid Resolution was followed by a Circular dated 11.12.2002 issued by Government of India, Ministry of Human Resource Development, Department of Elementary Education and Literacy, whereby Secretaries of Education Departments of all the States and Union Territories, including the State of Gujarat, were informed of recognition of the examination at primary and middle level courses conducted by NOIS, with a further direction to the States to issue necessary instruction to all the concerned to consider the certificates issued by NOIS as equivalent to concerned stage of education in matters of admissions and employment, etc. Gujarat Secondary and Higher Secondary Education Board (hereinafter referred to as ‘GSHSEB’) by its Resolution dated 16.06.2005 granted recognition of the examination conducted by NOIS as equivalent to examination conducted by the GSHSEB and other Boards functioning under the umbrella of Council of Board of School Education (hereinafter referred to as ‘COBSE’), a parent body of various Central Boards. Gujarat Secondary and Higher Secondary Education Board (hereinafter referred to as ‘GSHSEB’) by its Resolution dated 16.06.2005 granted recognition of the examination conducted by NOIS as equivalent to examination conducted by the GSHSEB and other Boards functioning under the umbrella of Council of Board of School Education (hereinafter referred to as ‘COBSE’), a parent body of various Central Boards. The said parent body recognizes examinations conducted by CBSE, ICSE, different State Boards, as also NIOS, as equivalent to passing Std. X examination for being eligible for admission in Std. XI courses offered by State Boards, including GSHSEB. The letter issued by the GSHSEB dated 16.06.2005 contains a list of Boards recognised by COBSE, wherein GSHSEB, Gandhinagar, has been shown at Sr. No. 1 and NIOS, New Delhi, has been shown at Sr. No. 34. CBSE has been shown at Sr. No. 8 and other State Boards have also been shown therein. 7. Government of Gujarat enacted a law in 2008 known as Gujarat Professional Technical Education Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 to regulate the admission to the Diploma courses. Rules have been framed under the said Act by issuance of a Notification dated 30.05.2005, known as Professional Diploma Courses (Regulation of Admission and Payment of Fees) Rules, 2008 (hereinafter referred to as ‘the Rules’). Under Rule 2(g) qualifying examination has been defined as under:— “(g) ‘Qualifying Examination’ means the Secondary School Certificate Examination, (Standard X) passed with Mathematics, Science and English or equivalent examination.” Under Rule 5 Eligibility for admission has been prescribed, which reads as under:- “5. Under Rule 2(g) qualifying examination has been defined as under:— “(g) ‘Qualifying Examination’ means the Secondary School Certificate Examination, (Standard X) passed with Mathematics, Science and English or equivalent examination.” Under Rule 5 Eligibility for admission has been prescribed, which reads as under:- “5. Eligibility for Admission.—(1) For the purpose of admission, a candidate shall have passed the qualifying examination from,— (i) The Gujarat Board; or (ii) The Central Board of Secondary Education Board: Provided that,— (a) the school in which the candidate has studied, should have been located in the State of Gujarat; or (b) the school in which the candidate has studied, should have been located in the Union Territories of Diu, Daman and Dadra Nagar Haveli and whose parents are origin of Gujarat; or (iii) the Council of Indian School Certificate Examination, New Delhi: Provided that,— (a) the school in which the candidate has studied, should have been located in the State of Gujarat; or (b) the school in which the candidate has studied, should have been located in the Union Territories of Diu, Daman and Dadra Nagar Haveli and whose parents are origin of Gujarat; and (iv) Sanskrit Pathsala: Provided that,— (a) the school in which the candidate has studied, should have been located in the State of Gujarat; or (b) the school in which the candidate has studied, should have been located in the Union Territories of Diu, Daman and Dadra Nagar Haveli and whose parents are origin of Gujarat; and (v) A candidate who has studied under Jawaharlal Navodaya Vidyalaya Scheme upto Standard VIII in any of the schools located in the State of Gujarat, thereafter studied in any of the schools located out of the State of Gujarat under the said Scheme shall be eligible for admission. Explanation.—’Jawaharlal Navodaya Vidyalaya Scheme’ means the Jawaharlal Navodaya Vidyalaya scheme started during the year 1985-86 by the Government of India in accordance with the National Policy of Education. The scheme is managed by Navodaya Vidyalaya Samiti, an autonomous organisation under the Department of Education, Ministry of Human Resource Development. Explanation.—’Jawaharlal Navodaya Vidyalaya Scheme’ means the Jawaharlal Navodaya Vidyalaya scheme started during the year 1985-86 by the Government of India in accordance with the National Policy of Education. The scheme is managed by Navodaya Vidyalaya Samiti, an autonomous organisation under the Department of Education, Ministry of Human Resource Development. (2) A candidate whose parents are origin of Gujarat and who are residing out of Gujarat and who have passed the qualifying examination from Central Board of Secondary Education or the Council of Indian School Certificate Examinations, New Delhi or the respective State Boards shall be eligible for admission, subject to the condition that he shall produce his parents’ domicile certificate. (3) (a) A candidate whose parents are origin of Gujarat and who is living outside India and have passed the qualifying examination from outside India shall be eligible for admission, subject to the condition that he shall produce his parents’ domicile certificate. (b) The grade with which he has passed the qualifying examination shall be converted into the Merit Marks by considering the lowest of the marks-range on the basis of which grade is awarded. (4) A candidate who has passed the qualifying examination and,— (i) whose parents are serving in the category of service as shown below; and (ii) who are transferred from other States to Gujarat and have resumed their duty in the place where they are transferred in Gujarat and working in Gujarat at the time of registration shall be eligible for admission and shall remain so transferred in the State of Gujarat at the time of registration for admission. Category of Service:— (a) Officers or Employees of Central Government; or (b) Officers or Employees of Public Sector Undertakings of Central Government and State Government; or (c) Officers or Employees of nationalised banks; or (d) Officers or Employees of United Nations, UNICEF, World Health Organisation and such other International Institutions located in Gujarat State; or (e) Officers or Employees of Indian Administrative Service, Indian Police Service, Indian Forest Service of Gujarat Cadre working in Gujarat or working in other States on deputation from Gujarat; or (f) Officers or Employees of Gujarat Government posted outside Gujarat State for administrative reasons. (5) A candidate who has passed the qualifying examination after appearing in the supplementary examinations conducted by the board shall not be eligible for admission in the current academic year.” From the aforesaid Rule 5, it will be evident that while candidates passed through GSHSEB, Gujarat, CBSE, New Delhi, Council of Indian School Certificate Examination (hereinafter referred to as ‘CISCE’), New Delhi, Sanskrit Pathsala have been recognised, subject to location of its School in the State of Gujarat, NIOS, New Delhi, has been excluded therefrom. 8. The petitioner appeared in the examination held by NIOS for the academic session 2009-10 and passed the examination having secured 268 marks. He applied for admission to Diploma courses, result of which was declared in June 2010, but while he had obtained the marks, he could find that in evaluation portion ‘zero’ marks were allotted to him, thereby petitioner was held to be ineligible for admission to the 1st year Diploma course in the State of Gujarat. 9. The case of the petitioner is that when he presented himself on 23.06.2010 before the 1st respondent-Admission Committee with a request to consider his case having passed X examination with 268 marks from NIOS, he could come to know that his case has not been considered and provided with ‘zero’ marks as NIOS is not recognised under Rule 5 of the Rules. 10. On behalf of the petitioner, learned Counsel would contend that the action is arbitrary, as petitioner has passed from an institution situated within the State of Gujarat run under the control of NIOS, a Board constituted by the Central Government and recognised equivalent to all other Boards, including CBSE by COBSE. 11. 1st respondent in its affidavit has also shown the petitioner ineligible having passed from NIOS, which is not a recognised Board under Rule 5. 12. On 29.07.2010, the State Government was issued notice and asked as to why Rule 5 of the Rules, so far as exclusion of candidates studied from the State of Gujarat and obtained certificate from an equivalent Board, be not declared ultravires. A petition for amendment of the petition was also filed on behalf of the petitioner. 13. The 3rd respondent, NIOS, a Board constituted by the Central Government , has supported the case of the petitioner. A petition for amendment of the petition was also filed on behalf of the petitioner. 13. The 3rd respondent, NIOS, a Board constituted by the Central Government , has supported the case of the petitioner. The stand as taken by the petitioner with regard to Central Government’s National Policy of Education, constitution of the Board (NIOS), vesting it with independent power, taking away such power from CBSE, all have been accepted. A specific stand has been taken by the 3rd respondent that CBSE and the CISCE, New Delhi, having been established under the Notification issued by the Ministry of Human Resource Development, Education Department, Government of India, being similar to NIOS, non-consideration of the case of the petitioner on the ground that he has not passed from the Central Board is arbitrary and violative of Art.14 of the Constitution of India. The State of Gujarat, 5th respondent filed an affidavit-in-reply wherein they have not dealt with Paragraph-wise reply. While one plea has been taken that the petitioner has never approached the 5th respondent, who is the deciding authority, and no specific challenge of the Rules has been made, it is pleaded that observation of the Court relating to prima facie arbitrariness of Rule 5 has been considered by the State authorities and considering its policy, and as the State Government will be flooded with numerous such applications, it is decided not to accede to such applications at this belated stage, but it is pleaded that the State Government may think of initiating necessary procedure pursuant to provision of the Gujarat Professional Technical Colleges or Institution (Regulation of Admission and Fixation of Fees) Act, 2007, to include the name of 3rd respondent NIOS in the eligible institutions for admission to the professional diploma courses from the next year. That means they have agreed to include NIOS for the academic session 2011-12, and not from the current session, i.e. 2010-11. 14. We have heard counsel for the parties and perused the record. 15. It has not been disputed that CBSE, CISCE, as also NIOS, all Boards have been constituted by the Education Department, Government of India. For all purposes, they are equivalent. It is also not in dispute that there are institutions in the State of Gujarat, including the institution in which the petitioner has studied, which is recognised by the NIOS and certificate is granted by NIOS. For all purposes, they are equivalent. It is also not in dispute that there are institutions in the State of Gujarat, including the institution in which the petitioner has studied, which is recognised by the NIOS and certificate is granted by NIOS. Previously, on behalf of the NIOS, CBSE used to grant the certificate and now after the decision of the Central Government, since 2002, it has been granted by NIOS. 16. It is true that the State Government can frame Rules and confine recognition of institution located within the State of Gujarat, though the Board may be located outside the State like CBSE or CISCE. If any institution is located outside the State of Gujarat, and if the Board which grants certificate is also located outside Gujarat, it is always open to the State not to allow the students of such institutions for admission in one or the other courses within the State, but it cannot discriminate among two institutions or Board similarly situated. 17. It has already been pointed out that NIOS is constituted by the Central Government. It is also recognised for all purposes by the State of Gujarat, and the centre in which the petitioner was studying is also located in the State of Gujarat. Having noticed the aforesaid facts, the State Government has also accepted to recognize the candidates, who have passed from the institutions situated in the State of Gujarat, and are granted certificate by NIOS for the future academic session 2011-12, but the ground given for not granting such recognition to the students for the academic session 2010-11 is that it will be flooded with applications, cannot be accepted as not allowing such applicants to take part in the selection for admission in the Diploma courses will render the admissions violative of Art.14 of the Constitution, and in such case, Rule 5 may be doubted. 18. In the circumstances, instead of declaring Rule 5 ultravires, we direct the State to make necessary amendment in the Rule as per the stand taken before this Court in its affidavit with further direction to respondents to consider the case of petitioner for admission in the academic session 2010-11 in any of the Diploma institutions imparting education in Diploma courses. In the circumstances, instead of declaring Rule 5 ultravires, we direct the State to make necessary amendment in the Rule as per the stand taken before this Court in its affidavit with further direction to respondents to consider the case of petitioner for admission in the academic session 2010-11 in any of the Diploma institutions imparting education in Diploma courses. If any person having less marks than the petitioner has been admitted, the petitioner should be given the same benefit for the present academic session 2010-11 and formalities be completed within 15 days from the date of receipt/production of a copy of this order. The writ petition is allowed with aforesaid observations and directions. but there shall be no order as to costs.