Mudholkar, J.
1. This is a petition by a person who was declared as having passed at the Secondary School Certificate Examination held by the former Board of Madhya Pradesh in the year 1956. The result of the aforesaid examination was published by the Board on 1-6-1956. In that declaration first twenty-five candidates were placed in the order of merit. The petitioner's grievance is that though he had obtained the highest number of marks at the written examination held by the Board, he was shown as ranking No. 3, the respondent No. 2 who had secured six marks less than him in the written examination was shown as ranking No. 1 and the respondent No. 3 who has secured 9 marks more (less?) than him shown as ranking No. 2. The petitioner contends that Rule 7: of the Rules made by the Board under the Rule-making power conferred upon it by the Secondary Education Act whereunder the ranking was made is ultra vires of the Constitution inasmuch as it allows discrimination to be made amongst the candidates who appear for the examination in the matter of giving them marks. He also wants that a suitable writ be issued to the Secretary of the Board and to the Board itself directing them to place the petitioner as ranking first in the list of successful candidates.
2. It may be mentioned that the petitioner obtained 616 marks at the examination out of a total of 750, whereas the respondent No. 2 obtained 610 marks. The marks secured by the respondent No. 3 at the examination were 607. The provisions of Rule 7, which is impugned before us, of the Rules contained in Chapter XVII of the 'Regulations of the Board of Secondary Education, Madhya Pradesh.' Rule 7 reads as follows :
'Special concession (or candidates who join the National Cadet Corps.--
'In the case of a candidate who has passed the 'A Certificate Examination of the National Cadet Corps' 25 per cent of the marks obtained by him in this examination shall be added -
EITHER
(i) to his aggregate marks if he has passed in all the subjects,
OR
(ii) to the marks already obtained by him in one of the subjects under Parts A and C and in the written part of a subject under Part B, in which he failed obtaining, however, not less than 25 per cent marks in that subject, before determining his final result:
Provided that the maximum marks in the 'A' Certificate Examination 'shall be deemed to be 100, and the total marks obtained by the candidate in this examination recalculated accordingly :
Provided further that the marks shall he added to that subject in which the addition is more advantageous to the candidates.'
The respondents Nos. 2 and 3 had both joined the National Cadet Corps and had obtained 64 marks and 50 marks respectively at the N.C.C. Examination. By reason of this fact 16 marks were added to the total of the respondent No. 2 and 14 marks were added to the total of the respondent No. 3 with the result that the total marks deemed to have been obtained by the respondents Nos. 2 and 3 were respectively 628 and 621 as against 616 obtained by the petitioner at the examination. It is on this basis that their ranking was made.
3. Shri G.S. Padhye who appears for the petitioner referred us to the prospectus issued by the Board of Secondary Education for the examination to be held in the year 1956 and pointed out that military education is not one of the prescribed subjects. On the basis of this fact he argued that only the marks obtained by candidates in subjects which are included in the syllabus could be taken into account for determining the rank of the candidates. The Madhya Pradesh Secondary Education Act, 1951, came into force on 24-2-1953. The regulations made under that Act came into force on the same date. In Chapter XVII of the Regulations are to be found subjects for the Secondary School Certificate Examination. Those subjects are divided into three Parts, Part A, Part B and Part C. The Regulations prescribed that certain combination of subjects for different parts only will be permitted. In Rule 5 of Chapter XVII are to be found the conditions of passing the examination. In Rule 7, which is the rule impugned before us, are set out certain concessions for candidates who join the National Cadet Corps. We have quoted this rule already. What is to he noted is that this particular rule is to be found in the same Chapter which sets out subjects for the Secondary School Certificate Examination. Therefore, though military education is not a prescribed subject the candidates or the prospective candidates are told that if they obtain an A Certificate at the National Cadet Corps Examination a certain proportion of marks secured by them at that examination will be taken into account for certain purposes. It cannot therefore be said that what was done by the Board in this case was something which the candidates did not expect would be done. These particular regulations were published in the year 1953 and the candidates who wanted to appear at the examination to be held in 1956 knew well in advance what the position would be. Therefore, if the candidates wanted to take advantage of Rule 7 it, was open to them to join the National Cadet Corps.
4. It is however pointed out that every school does not possess this particular facility, that is to say, every school does not have a unit of the National Cadet Corps. Now, it is open to a candidate to join such school as possesses such facility. The rules regarding the formation of National Cadet Corps units are contained in the National Cadet Corps Rules made by the Central Government under the National Cadet Corps Act, 1948. Under these rules it is open to any school which satisfies the conditions laid down in the rules to apply for the allocation of a unit. It is however said that the Government is not in a position to provide separate units for each school which is able to fulfil the requirements of the rules. There was no averment of this fact in the petition as originally filed and it was only by way of an amendment that the petitioner averred that as against 310 recognised schools in Madhya Pradesh only about 218 units were available for distribution. The Board has pointed out in its reply that it is not aware of the position. The proper authorities who could be expected to plead specifically on the points are not before us and it would not be right to act upon the amended statement which does not appear to be verified. We, however, find that the particular school to which the petitioner belonged did have a National Cadet Corps unit, but on its own application the unit had to be withdrawn because the school could no longer fulfil the requirements of the National Cadet Corps Rules.
5. There is one more aspect of the matter which needs to be stressed. It is this. The responsibility for providing N.C.C. Units is not on the Board which is purely an examining body but rests upon the State Government and the N.C.C. organisation. It is not easy to understand how, by making a rule like Rule 7 any responsibility can fasten upon the Board. The Board has prescribed many subjects for being offered for the examination held by it. It has also provided options in the selections of subjects. Can it be urged, with any force or semblance of reason that by merely prescribing subjects the Board ipso facto becomes responsible, even indirectly, to ensure that every school offers equal facilities to its students to receive instructions in all the prescribed subjects? Yet it was argued vehemently before us that the rule is discriminatory inasmuch as the Board has not, before enacting it, taken any steps to see that its implementation will not cause disparity by reason of the failure of the authorities concerned (not the Board) to provide an opportunity to each and every prospective candidate to join the National Cadet Corps!
6. Apart from the fact that the Board is not a body entrusted with the impairing of education or instructions but is merely an examining body, it would seem that the argument is based upon a misconception of the equality clause in the Constitution. Article 14 of the Constitution, which embodies it, reads thus :
'The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India'
Two concepts underlie this Article : the equal subjection of all classes to the ordinary law of the land and the assurance of the same rights to all classes. The first of these concepts appears to have been taken from the British Constitutional doctrines while the second from the 14th Amendment to the Constitution of the United States of America. While both the expressions aim at establishing what may be regarded as equality of legal status for all, there is some difference between those expressions. The former expression is somewhat a negative concept implying the absence of any special privilege in favour of an individual, while the latter is a more positive concept implying equality of treatment in equal circumstances. There is however one dominant idea common to both the expressions, that is, equal justice. (Sheoshankar v. State Government of M. P. AIR 1951 Nag 58.
7. Jennings on the Law of the Constitution, page 49 has expounded the principle of equality thus :
'Equal before the law means that among the equals the law should be equal and should be equally administered, that like should be treated alike.'
At the same time, equality before the law does not mean absolute equality of men, which is a physical impossibility. Nor does it mean that things which are different shall be treated as though they were the same. What it does mean is the denial of any special privilege by reason of birth, creed or the like, and also equal subjection of all individuals and classes' to the ordinary law of the land. There is no denying the fact that it is impossible for any law to make or regard two things different in themselves as the same. What is meant by equality of status is that rights of the same kind are to be treated equally, i.e., in the same way, as between different individuals.
8. Robson in his hook on Justice and Administrative Law, 1947, says at page 264 :
'This leads us to the principle of equality in that when a given set of facts or a particular group of individuals have been thrown into their appropriate legal categories, the Judge must apply to the individual concerned the law that governs the entire class of objects, or persons situated in those circumstances. .... .This disinterested treatment of each member of a legal category on similar lines, regardless of race, religion, antecedents, physical appearance, intellect, public spirit or occupation is the foundation of judicial impartiality.'
Acting upon this principle, it has been held in numerous cases not only in the United States of America but also in India that reasonable classification by law is not denial of equal protection. In Barhjer v. Connolly (1885) 113 US 27 , it was pointed out that what the constitutional guarantee forbids is class legislation but not classification which rests upon reasonable grounds of distinction. See also AIR 1951 Nag 58 , Charanjit Lal Chowdhury v. Union of India, : [1950]1SCR869 , State of Bombay v. F.N. Balsara : [1951]2SCR682 . It is clear from all these decisions that the Constitution docs not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. As observed in Hayes v. State of Missouri (1887) 120 US 68 :
'It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed.'
Then again, as pointed out in Pembina Consolidated Silver Mining etc. Co. v. Pennsylvania (1888) 125 US 181 , what is prohibited by the Constitution is deliberately treating a person or a class of persons in a prejudicial way. The classification permissible by the State extends to all kinds of activities and the State has wide discretion in the matter. It is only where there is no reasonable basis for classification that legislation making such classification may be declared discriminatory. Again, it is the duty of the Court to sustain the classification if any state of facts can reasonably be conceived in justification of the classification. Farther, the burden is upon the person who assails the classification to show that it does not rest upon a reasonable basis. As oberved by Willis at p. 580:
'Many different classifications of persons have been upheld as constitutional. A law applying only to one person or one class of persons is constitutional if there is sufficient basis or reason for it.'
Again, it must be borne in mind that the Court will not pronounce the law itself as discriminatory even though it lends itself to the practice of discrimination unless it is clear that in the guise of conferral of discretion upon an authority, arbitrary power is given to it with the sole or dominant intention that it be used for favouring or oppressing a particular class, community, race or other group. See Snowden v. Hughes (1943) 321 US 1 . Where a law grants protection to a class, which needs it, it has the effect of placing that class, if not on a par with the rest of the community, at least as nearly so as is practicable. It would therefore be correct to say that the whole object of classification is to minimise inequality.
9. Such being the law, it is perfectly legitimate to look into the statement made by the Board Secretary at the Press Conference, a copy of which has been placed on record by the petitioner himself. In that statement, the Secretary has pointed out that 'concession' was given in view of the fact that the N.C.C. students have to put in four hours a week for the N.C.C. Parades. In addition, of course, there is the admitted fact that the students joining the N.C.C. have also to attend camp for certain days in the year. The students who engage themselves in these activities would naturally be at a disadvantage in comparison with those who have not so engaged themselves as regards the time available for prosecuting their studies. It is however said that the time spent on the N.C.C. activities is not very considerable but the 'reward' given with respect to it is out of all proportion. As pointed out earlier, as against a total of 750 marks for the subjects prescribed, the additional marks available for a candidate who has joined the N.C.C. are only 25. It will thus be seen that the additional marks which a candidate can secure are not disproportionate to the time which he spends over the N.C.C. activities. Indeed, the rule I made by the Board only tries to remove some dis-parity in so far as the examination is concerned between the candidates who join the N.C.C. and those who do not join the National Cadet Corps.
10. It is then said that there are other incalculable advantages which the students derive by joining the National Cadet Corps and if those advantages are taken into consideration it will be realised that there is no occasion for giving any further concession to those students. It is not for us to find out what other advantages the candidates who join the National Cadet Corps derive by reason of the fact that they have obtained a particular kind of training except such as have a direct bearing upon the examination for which they have to appear. What is of immediate concern to a student is passing the examination and not some remote advantage which may be gained by reason of obtaining a certificate from the National Cadet Corps. If such a remote advantage were the only gain to a student taking the National Cadet Corps course, then it is possible that many students, at any rate, those who are not particularly brilliant, would he dissuaded from joining the National Cadet Corps. It is reasonably possible that with the object of ensuring some kind of assistance to such students that the relevant rule was enacted. Bearing in mind that the Court must proceed on the assumption of the validity of the rule one would be compelled to say that nothing that has been argued before us would negative the assumption. Therefore, it will be seen that what is characterised as a concession is really in the nature of compensation. The effect of the rule is only to create classification between two categories of candidates, viz. those who join the National Cadet Corps and those who do not join the National Cadet Corps. This classification cannot be regarded as unreasonable because it is obviously in the national interest that as many students as possible should obtain at least the rudiments of military training and acquire discipline.
11. When a Court finds that the impugned rule or law creates a reasonable classification, its duty is to sustain that rule or law.
11a. Apart from that the fact remains that for determining the validity of the rule made by the Board we cannot properly consider the circumstances, even if such circumstances exist, that the Government or the National Cadet Corps Organisation are not in a position to provide units for each school which is able to fulfil the requirements of the rule. As already stated, the Board is only an examining body and has nothing to do either with the imparting of instructions in schools or with affording training to the candidates who join the National Cadet Corps. They have no control whatsoever over these matters. The latter is governed by the rules made under the National Cadet Corps Act. It may be pointed out that there is nothing in these rules which would amount to a denial of equality. Under those rules every school which fulfils the requirements of the rules shall be entitled to have a unit of the National Cadet Corps. The rules do not make any discrimination between a school and a school in the matter of obtaining a unit or between a candidate and a candidate in the matter of joining the National Cadet Corps so long as the school and the candidate concerned fulfil the requirements of the rules. If the rules made by the Board were themselves such as to create inequality on the ground or race, religion, antecedents, physical appearance, intellect, public spirit or occupation, then it would have been a different matter. In such a case, the rules would have infringed Article 14 of the Constitution inasmuch as their effect would have been to countenance or promote inequality. Such is not a case here. If for some reason the authorities concerned have been unable to provide sufficient number of units for being allotted to the various schools, or if in a school in which such exists but candidates who satisfy the requirements of the rules have not been able to find place therein because of the limitation in the strength of the unit, it is difficult to see how the rules framed by the Board could be invalidated. The proper grievance to make in such cases would he against the authorities charged with the duty of providing units and affording facilities, to every candidate fulfilling the requirements of the rules to join a unit and not against the examining body which has nothing whatsoever to do with the matter. An action compelling the authorities to implement the rules by providing units or by providing opportunity to suitable candidates to join the unit can well be conceived of hut not one challenging the rule which affords a relief--or gives a concession, as the petitioner wants to call it--to a candidate who takes advantage of the National Cadet Corps rules and eventually secures an A certificate after having passed the examination held by the National Cadet Corps authorities. Clearly the whole argument advanced before us is misconceived and rests upon an entire misapprehension not only as to the meaning and scope of the equality clause but also as to the authority on which the responsibility with regard to the allocation of the National Cadet Carps units and determining their strength rests. There can therefore be no doubt as to the validity of the rule impugned before us. It does not amount to 'class legislation' though it purports to make a classification. That classification rests upon a reasonable basis and, indeed, has the effect of removing an inequality.
12. It was then strongly contended by Shri Padhye that what Rule 7 permits is taking into account of the additional marks for the purpose of passing a candidate who has failed in one or two subjects or for determining his class in the examination and not for determining the rank. Now, this is perfectly true. The rules nowhere say that these marks are to be taken into consideration for ranking the candidates, but at the same time it is to be observed that the rules do not say that the candidates should at all be ranked by the Board. What the Board has done is to rank the first 25 candidates, which is something that was not required of it by the rules inasmuch as the rules do not require the Board to place candidates in the order of merit. It is difficult to see what grievance the petitioner can have for the simple reason that no particular significance can be attached to this tanking. Significance can be attached only to the passing of a candidate or to his placing in a particular class, but nothing more. If the Board does something over and above that which the rules require, then it is of no significance.
13. Shri Padhye finally argued that even if we were to take into account the marks given to the respondents 2 and 3, who had obtained A certificates, they would rank below the petitioner because in calculating the percentage of the marks 25 marks are to be added to the total of 750 marks which are allotted to the prescribed subjects. That may or may not be so. In our opinion, that would make little difference upon our view that the order in which the candidates have been listed by the Board has no legal significance. In other words, if the Board has done something which it ought not to have done in regard to this matter, no legal right of the petitioner can be said to have been infringed.
14. For these reasons, we are of opinion, that the petition is misconceived and we dismiss it. There will however be no order as to costs.
15. The outstanding amount of security deposited by the petitioner shall be refunded to him.
Kotval, J.
16. With greatest respect I am unable to agree with all the reasons given in the order just delivered, and so it is but proper that I should record my reasons separately.
17. I agree with my learned Brother that the petition ought to be dismissed upon the short ground that no legal right, fundamental or otherwise, has been made out by the petitioner, nor has there been an infringement of Article 14 of the Constitution.
18. But I am unable to accept the contention which was advanced on behalf of the respondents that the additional marks given to the candidates under Rule 7 were given in order to compensate them for the loss of their time.
19. In the first place, there is no sufficient material before us from which such a conclusion could well be drawn. The entire foundation of the argument on this score was apparently based upon a statement to the Press, purporting to have been issued by the Secretary of the Board (Annexure G), a statement which has been denied in the written reply of the respondents 1 and 4. Respondents 1 and 4 also did not in their return take up the stand that the marks were awarded to the candidates as compensation for the loss of their time. When for the first time an argument was advanced on behalf of the hoard and its Secretary, the facts were strongly controverted on behalf of the petitioner. It seems to me that it was a much disputed question of fact as to whether these marks were originally allotted to compensate the students or not. The question would also give rise to investigation of a number of ancillary facts such as how much time the students spend upon such activity, whether the time spent does interfere with their curricular activities or not, and so on. Therefore, in my opinion, we cannot safely found any conclusion upon such disputed questions of fact in a petition invoking the constitutional powers of this Court.
20. But the contention cannot for a moment be entertained if one considers the spirit of the regulation summed up by the Board itself at the end of Rule 7 as follows ;
'The spirit of the regulation is summed up below :
(i) A candidate passing in all subjects may be able to get a better division by the addition of 'A Certificate marks'.
(ii) A candidate failing only in one subject under Parts A and C or in the written part of a subject under Part B getting, however, not less than 25 per cent marks in that subject, may make up his deficiency by this addition and get the 'First', 'Second' or the 'Third' Division instead of the 'Pass Division.'
(iii) A candidate failing in two subjects getting, however, not less than 25 per cent marks in any of these, may make up the deficiency of one of those subjects by the addition of these marks and have the deficiency of the other condoned under proviso (i) or (ii) of Regulation 5 (a) and (b) to get the 'Pass Division'.'
It is clear that the additional marks were granted, not in order to compensate for any disadvantage or burden imposed on the candidates, but to enable a candidate to get a calculated and palpable advantage.
21. Apart from this, it also seems to me that the so-called disadvantage which was sought to be compensated was more or less illusory. I am unable to appreciate how the spending of a short time,--about 15 days during a camp and 4 hours a week, it was said--by a student is a matter which so gravely handicaps him that he must he rewarded by the giving of additional marks, which reward, as I am presently going to show, is not available to every student on the same basis. Surely, students in schools do carry on a number of extra-curricular activities without being given extra marks for them at examinations. The explanation offered by counsel cannot be accepted. It was not raised on behalf of respondents 1 and 4, the facts on which it is founded are in dispute, and the explanation is negatived by the very text and the spirit of the rule itself.
22. I am aware that the National Cadet Corps provide a very useful and laudable activity for the youth of the country. No one is less alive than I to the necessity of imparting some sort of physical and military training to school and college students and instilling into them a martial spirit--and what is its inevitable concomitant, discipline. The National Cadet Corps provided for such activities, hut the Central Legislative in its wisdom did not make it a compulsory activity but only an optional one, as is clear from the provisions of Sections 6 and 7 of that Act. It is the impugned Regulation 7 made by the Board of Secondary Education that introduces in a small way the clement of compulsion because it awards extra marks to those undertaking the activity and passing the A certificate examination. Candidates who do not pass the examination or get the A certificate would inevitably lose those marks. The Board was not compelled by any law or authority to make or continue such a Regulation and therefore it must be assumed that the Regulation represents a considered decision of the Board itself. By making the regulation the Board assumed responsibility albeit partially for the National Cadet Corps activities.
23. The Regulation itself is misconceived. To what anomalies it can lead was well illustrated by an example given during the hearing by Mr. G.S. Padhye, counsel for the petitioner.
24. The rule prescribes that the marks in respect of the A certificate examination, calculated in a certain manner, shall be added to the candidate's aggregate marks if he has passed in all the subjects and gives an illustration. Now, to take a hypothetical case. Suppose a candidate gets in the Secondary School Certificate Examination 740 marks in the aggregate out of the maximum of 750 marks and also gets the marks stated in the illustration appended to the rule, in the A certificate examination, then to his credit of 740 marks in the S.S.C. examination will have to be added 19 marks more. Thus, he will according to the rule be entitled to 759 marks out of a maximum of 750 marks 1 Any rule which leads to so anomalous a result condemns itself. The anomaly is created because while the Board decided to add marks to the total aggregate marks obtained by a candidate, they did not (indeed they could not without prescribing it as a subject) make a corresponding addition in the maximum marks for the examination.
25. It is very desirable and proper for the Board to encourage such activity and to make it, if need be, compulsory, but if the scheme contemplated by the National Cadet Corps Act is to he aided and, its object furthered by suitable regulations of the Board of Secondary Education, it seems to me that the Board ought to have seen to it that every student was put on a footing of equality and was given an equal opportunity to avail of that scheme.
26. In this connection it is relevant to refer to paragraph 4(a) of the petition wherein the petitioner has alleged that there are no fewer than 310 recognized High Schools in Madhya Pradesh and not more than 218 N.C.C. Units available for distribution amongst those schools, on account of the very limited funds and trained personnel available for the purpose at the disposal of the Central and Stale Governments. Further, some schools have been granted more than one unit with the result that many of the institutions though anxious to have N.C.C. Units attached to their schools are deprived of the advantage'. No doubt, these allegations were not in the original petition and were incorporated in it by way of an amendment. But this Court allowed the amendment by an order dated 31-8-56 and therefore these allegations form part of the petition and cannot be brushed aside. No objection was taken at the hearing on this ground or on the ground that the said allegations were not properly verified.
27. There is no answer to these allegations. The Board in reply has simply said in paragraph 4(A) that 'These respondents have no information about the number of N.C.C. units available for distribution amongst the schools. They have also no information if some schools are granted more than one unit.' All that they have explained is the reason why the school in which the petitioner was going has no N.C.C. unit, which was not the gravamen of the petitioner's charge.
28. Now it seems to me that the reply of the Board was mere equivocation. If the Board does not know how many N.C.C. units are attached to schools under its control, who else shall know? Is it to be supposed that the Board implements Rule 7 without having this information in its possession? At any rate, the Board had the means at its command and ample powers to get the information, as a reference to Section 8(e) and (k) of the Madhya Pradesh Secondary Education Act will show, and that it has not done so can only lead me to conclude that the facts stated by the petitioner are correct.
29. Nor do I consider it a sufficient answer that the Government not being a party to this petition the proper authorities to answer these allegations are not before the Court. The petitioner states that he is aggrieved because the Board made Rule 7 and gave 'special concession for candidates who join the National Cadet Corps'. His grievance is not against Government for establishing the National Cadet Corps but against the Board which connected that activity with their normal courses of study by giving the extra marks for that activity. By the impugned Rule 7 the Board accepted the N.C.C. activities as part of their curriculum. They need not have done so, or having done so could always amend the regulations. No doubt the first regulations were made by Government as Section 20 of the Act would indicate, but the section itself gives power to the Board to alter or modify them. Therefore, the responsibility of answering the allegations in the petition remains that of the Board.
30. The partial implementation of the scheme adumbrated by the National Cadet Corps Act by the Board of Secondary Education has resulted in several anomalies of which one has been already pointed out above. As stated by the petitioner, several schools have not provided a Cadet Corps at all, with the result that students attending those schools are at a disadvantage. I shall presently deal with the argument that the student should not join such schools if they know what is good for them. Even in the same school the number of candidates who can take up the A certificate examination is necessarily limited by the strength of the Corps prescribed under the National Cadet Corps Act, and it was not disputed that the sanctioned strength of the Cadet Corps in each school is less than the total number of students in the school. Quite apart from this, the rules under the National Cadet Corps Act prescribe an age limit for the school student joining the Junior Division of the National Cadet Corp?, with the result that students below that age would be excluded even if they are willing and fit, and anxious to undertake the training prescribed. The Board has not taken into account these circumstances and has prescribed a uniform rule that a candidate who passes the A certificate examination of the National Cadet Corps shall be given an advantage (subject to the mode of calculation prescribed) of 25 per cent of the marks obtained by him in that examination to be added to his aggregate marks or to the marks in one of the subjects obtained in the Secondary School Certificate examination. In my opinion, so long as every student, willing and able to undergo training in the National Cadet Corps, has not an equal option to join it, there does arise an inequality which ought never to pervade the field of education.
31. No doubt, in the many subjects prescribed for being offered for the examination an option of selection has been given to candidates. But that is not the case in regard to the special concession given to candidates who join the N.C.C. Under Rule 7 if a candidate does not join the N.C.C. he or she loses outright the marks assigned for that activity. The point of substance is that the candidate cannot take up any other or additional subject and make good that loss. Therefore, there is no option given to him in the matter.
32. Another ground on which this inequality was sought to be explained was that Rule 7 makes a reasonable classification of candidates into two categories, viz. candidates taking up the N.C.C. course and candidates not taking up that course. In the first place the rule does not indicate any classification at all, nor does it appear that its framers had in mind any classification. Secondly, even in the return of the respondents the rule was not sought to be justified on the ground of any reasonable classification. In view of this, I think it unnecessary to discuss cases which lay down to what extent and on what principles classifications may be held reasonable.
33. Thirdly it seems to me that what is here attacked is not the reasonableness of any so-called classification but want of opportunity to all students to take advantage of that classification. I have already shown how a student even if willing and able to join the N.C.C. is not able to do so and therefore by not affording the same opportunities to every student the Board certainly perpetrated a gross inequality. Unfortunately, as I have said, it is not an inequality affecting any legal right.
34. There now remains to be dealt with two points urged on behalf of the Board which were based upon the following pleadings in their return : Paragraph 4 :
'....There is neither any responsibility nor any duty cast on the Board for teaching the prescribed subjects or for N.C.C. Training. The Board is not responsible even if there be any inequality in the matter of opportunities for the study of any subject or for the N.C.C. Training'
and in paragraph 12:
'....He (the petitioner) deliberately chose a school which could not give him the opportunity for securing this special concession.'
35. Now, it seems to me that a body like the Board of Secondary Education, charged with the responsibility for secondary school education in this region, cannot point to the default of a student or a school and say that because the former joined a particular school he has by his own act disentitled himself from raising the question of inequality. The stand which has been taken on behalf of the respondents is that the school which the petitioner joined was a school which previously had a National Cadet Corps unit but for reasons best known to the school authorities, possibly a dearth of funds, it discontinued that facility and the argument is that the petitioner ought not to have joined that school. This is not a stand, which befits a responsible body like the Board of Secondary Education and I deprecate the 'tu quoque' involved in the argument especially when the parties are so unequally matched. It is well known that a student and a minor like the petitioner has no choice in the matter of joining a school and that it is dependent more upon his parents and their financial condition and many other circumstances, of which the student is not the master. Therefore, it is no answer to say that because the student joined a particular school which had no facility for N.C.C. activities he invited the inability to earn the additional marks. Besides, I have already stated that no school has a corps with a sufficient sanctioned strength to absorb all the students on its rolls. Therefore even if the petitioner had joined a school providing N.C.C. facilities, there was no certainty that he would have been able to avail of them.
36. But apart from this, the more effective answer to any such argument is that it is the Board that has recognized such a school under powers vested in it by law and so the Board cannot be heard to complain that the school was in default or the student at fault because he joined it.
37. A cursory glance at the constitution of the Board and its powers (Sections 5 and 8) will show that the Board is a powerful body with overwhelming authority to enforce its decisions upon a defaulting school. A mere threat to withdraw recognition under Section 8(f) would in most cases be effective to ensure compliance with its wishes. Such an authority recognized the petitioner's school and it seems to me that in these circumstances it is but a puerile answer to make to a student's complaint 'Though we recognized the school, why did you join it?'--which is in effect what the Board has said.
38. Nor, in my opinion, is the Board correct in the stand it has taken that 'there is neither any responsibility nor any duty cast on the Board for teaching the prescribed subjects or for N.C.C. training' and that 'even if there be any inequality......'
39. The very preamble of the Act indicates that it is the duty of the Board 'to regulate Secondary Education.....' Nothing could be clearer than that declaration and all the powers given to the Board are ancillary to that important duty. Though the conferment of many of those powers is preceded by the use of the word 'may' (e.g. in Section 19), that word in the context in which it is used does not import a discretion but a duty. See the observations of Das T. (now Chief Justice) in Province of Bombay v. Khushaldas S. Advani, : [1950]1SCR621 , to the effect that 'The authorities show that in construing a power the Court will read the word 'may' as 'must' when the exercise of the power will be in furtherance of the interest of a third person for securing which the power was given,' and similar remarks in Gabdoo v. S. Bajan 1953 Nag LJ 7 : AIR 1953 Nag 1.
40. For these reasons, I am satisfied that the impugned Rule 7 does create an inequality and since the matter is important I have recorded separately my reasons. It is regrettable that this Court is unable to assist the petitioner because he has invoked only the Constitutional powers of Courts. One of limitations on those powers that this Court has imposed upon itself is that it will not exercise those powers unless the infringement of a legal right is made out. That condition is missing here as my learned Brother has, with respect to him, so ably demonstrated, and so this petition will have to be dismissed. I agree that there shall be no order as to costs and that the outstanding amount of the security deposit made by the petitioner shall be refunded to him.
41. Petition dismissed.