P.S. Poti, C.J.
1. We have before us a batch of 10 applications three of which are by school managements and the rest by students seeking admission to the XIth standard in the science stream. The fourth and fifth of these applications are by students of the institutions which are the petitioners in the second and third petitions respectively. These petitions arise by reason of a circular issued by the' Education Department of the Government concerning admission to the science stream of the XIth standard for the academic year 1984-'85. Even previously norms, for such admission had been set, to which we will refer in due course. The norms set for the current academic year have caused these petitions at the instance of three managements of schools in Ahmedabad city who complain that the circular infringes their right by reason of the direction to admit 20% of the students in standard XI in their schools from among students outside their own institutions. The students who are petitioners in fourth, fifth and sixth petitions evidently support the stand of these institutions. They are students of the institutions where there is XIth standard to which standard they seek admission and they feel that had there been no diversion of the 20% of the seats to students outside their own institutions they would have obtained admission in their own institutions. There is another set of students represented by petitioners in the seventh and eighth petitions oath of whom are students from outside Ahmedabad city seeking admission to schools in Ahmedabad city. According to them merit or excellence should be the criterion for admission without any limitation on the number of seats to be in any institution for students passing out of that institution. The petitioner in the seventh petition SCA No. 3357/84 claims to have obtained academic distinction by securing 76.16 marks on the average and the student in the eighth petition SCA No. 3425/84 similarly claims that he had obtained 78% of the marks. Nevertheless in the present state of things they are unable to get admission anywhere for the XIth standard in the science stream. The two other petitions, viz. ninth and tenth, are by students belonging' to the scheduled caste. Their complaint is that while the Government has been exercising itself to make reservations for students in institutions where there is no XIth standard they have forgotten the case of scheduled castes and scheduled tribes and no arrangement for reservation has been made for them in the impugned circular. They sponsor the case of other backward classes also who also, according to them, have been ignored in the matter of reservation.
2. It may be necessary to refer in brief to the background of the circular issued by the Government on 2341984 which circular is under challenge by the school managements in these cases.
3. By the year 1976 the national policy formulated on the basis of Kothari Commission of adopting 10 + 2 + 3 pattern of education was implemente4 in Gujarat. It was to be effective from the academic year commencing in June 1976. The new policy necessitated the introduction of S.S.C. examination at the terminal stage in the 10th standard for the first .time in the March 1976 examinations. Consequent upon this the higher secondary examination at the end of the XlIth year was held in March 1978. The Gujarat Secondary Education Act 1972 governs secondary education in the State and there is a Secondary Education Board constituted under this Act. Though higher secondary education was introduced in the State by 1976 so far the Government has made no legislation on higher secondary education and it is this vacuum, which has in essence led to series of petitions to this Court from year to year. The Gujarat Secondary Education Board is also conducting the higher secondary examinations
4. Prior to the introduction of the pattern of 10 + 2 + 3 the secondary education extended up to XIth standard, and the pattern was 11 + 4, the boys passing out of the secondary examination having to take a four year course in the college. Consequent upon the introduction of the new scheme institutions to cater to the XIth and XIlth standards became necessary. Either Higher Secondary Schools had to be started, or higher secondary classes had to be started in existing secondary schools. It would appear from the materials before us that there was not much of anxiety on the part of many schools to seek to open standards XI ' and XII in the higher secondary section with the result that there Was some pressure in the matter of admission to XIth standard from students passing out of the 10th standard. This was not in alls ' subjects, but only in the science stream which led the students finally to technical courses like engineering and medicine. It was only students who took higher mathematics and higher science in the 10th standard that could seek admission to the science stream in the higher secondary classes. Such others as did not choose to take higher mathematics and higher science subject would be able to join the general stream which may qualify them to pursue their education in such subjects as arts and commerce. In view of the fact that the schools, which started XIth and XIIth standards, were few, naturally, year after year, there was pressure on seats in the schools for admission to the science stream. There were instances where some of the schools did not admit students who had passed 'the 10th standard after a course of study in their own schools since they wanted to attract better talent from other institutions evidently with a view to show good results in their XIIth standard examination. On the other hand there were some schools which considered that their students 'were good enough and therefore wanted to take in only their students in the XIth standard and did not desire to admit anyone else so long as there were students sufficient in number t to fill up the classes in the XIth standard in their schools. Many of the students, some of them getting marks of distinction, found themselves unable to obtain admission because the schools from which they passed out had only standards up to 10. Those students had to go from school to school seeking admission in some school where their marks may earn them admission provided the management was willing to give them admission*n. Evidently it was this situation which called for attention by the Government to the need of some policy in regard to admission in the. XIth standard in schools where such standards were run.
5. We are concerned in these petitions only with admission to the schools in the city of Ahmedabad ,and therefore we are referring to the 'facts so far as it is necessary for consideration of this aspect only. It does not appear from any material available to us that a situation similar to that which had arisen in Ahmedabad had arisen in other parts of Gujarat. The number of classes in Ahmedabad city catering to the XIth standard of the science stream is 91 and the number of seats available for the current year is 5460. The number of students who appeared with higher mathematics/science in the examinations of 1984 is 6931. This is from the Ahmedabad city schools. The number of students from those schools who have passed is 5732 and out of them 4567 have more than 50% marks which is the eligible minimum for admission in the science stream. Most of them may apply for admission to the science stream in the XIth standard and besides them students from various schools outside the Ahmedabad city are also likely to apply as we find from two of the petitions before us. Though the 5460 seats available in the Ahmedabad city may perhaps be sufficient to accommodate all these students there is nevertheless pressure on some of the schools which may appear to be a strange phenomenon. But the answer is obvious as we find from the minimum marks of students .who have been admitted to various schools in Ahmedabad city. Some of those schools are reputed and naturally there is considerable pressure on admission in those schools. Some of the schools are evidently of moderate reputation perhaps not attracting talent, but catering to students who may not find an opening in other schools. But some of the schools certainly do not attract talented students. as is evident from the fact that in the quota of 20% allotted to them by the impugned circular there were not sufficient number of applicants with 50% marks so that they had even to admit students with 38% marks. It was because of the pressure to obtain admission in schools which impart education efficiently evidently the popular schools that the question of having to make provision in those schools for admission of students who seek such admission on the merits had to be considered.
6. We find that in 1981 the complaint that reached the Education Department was that schools were not admitting their own students in science stream XIth standard and that preference was being given in respect of some seats to students from outside the schools. This invited a circular from the Department of Education directing the schools to admit their own students in their institutions. Evidently at that time the problem had not assumed the dimensions which it assumed later. Thereafter it appears that the question of making proper rules and regulations to provide guidelines was under consideration of the Education Department. These matters came to this Court in a batch of writ petitions and while hearing those petitions this Court passed an order on 30-6-1982 by which order while permitting withdrawal of the petitions the Court recorded the solution reached by way of settlement for the y ear under consideration by consent of all parties concerned. While realizing that ultimately it must be the educational authorities that should decide what policy they should adopt in these matters the Court cautioned about the need for determining the policy for any year sufficiently in advance so that if there is any attack on the policy adopted for an academic year that may come to this Court well in advance of the commencement of the academic year so that decision could be rendered in time to see that admissions are not delayed.
7. After the judgment of this Court a Committee was constituted consisting of persons who are said to be educational experts for considering the question of framing guidelines regarding admission to the higher secondary science stream. It is seen from the affidavit of the State that the Committee recommended that 75% of the seats in the schools having secondary science stream should be reserved for the students of the respective schools while the remaining. 25% should be reserved for students passing out from other secondary schools having no higher secondary education facility. The report, we must notice, had not been acted upon by the Government, at any rate, in the form in which it had been presented to the Government. The Higher Secondary Education Board after considering the report is said to have made a recommendation that in place of 75% suggested, 80% be reserved for students of the same school and 20% for outside students and in respect of the 20% itself there may be a sub reservation of 10%, 5% being for students whose guardians had been transferred from outside the town or from outside the State or from abroad or from schools under the control of other secondary education boards and 5% being for students of such local schools where there may be higher secondary science stream but the students desire transfer to other schools having higher secondary science stream. Even before these recommendations were accepted by the Government a Circular was issued by the Joint Director of Education applicable for the academic year 1983-'84 embodying these rules as guidelines for admission for the academic year 1983-'84. It would appear that some of the schools did not comply with these directions. In Ahmedabad city itself 11 schools did not comply with these directions. This resulted in a students' union filing a special civil application in this Court as S.C.A No. 2998/83. The students sought proper action against such of those managements as were not willing to comply' with the circular. When the matter came up before this Court on 8-9-1983 the petitioner withdrew the petition and the case was disposed of accordingly.
8. The Government seems to have appointed a one man Commission to enquire into the non-implementation of the circular by some of the schools and the one man Commission submitted a report to the Government on 13-5-1984. That is said to be under the consideration of the Government. In the meantime the question of admission for the, current academic year arose and adopting the approach in the circular issued by the Joint Director of Public Instruction a similar instruction was issued by the Government for the academic year 1984-'85. This circular has necessarily to bear the brunt of attack by the managements as well as students, the managements revolting against the principle of reserving some of the seats in their schools to outsiders and the students other than (those?) who support the managements seeking that the seats in all the schools should be open to all on merit. According to the latter the Government Circular serves a counter productive purpose, that of giving the management a right to reserve a good number of seats for themselves.
9. It is an admitted fact that despite the passage of a fairly long number of years after the introduction of the Higher Secondary studies there is no legislation on the question of regulation of the higher secondary education and the Government is, depending merely on its executive powers. One of the grounds of challenge concerns the authority of the Government to issue such circulars as the impugned one in the exercise of its executive power as it is said that the circular operates to restrict the fundamental right of the management of the schools to govern their institutions, to administer them and to admit students of their choice. It may be necessary in this context to refer to the circular and for the sake of convenience we are setting down the entire circular here :
'Government of Gujarat Education Department Resolution No. - 1183-30829 G. I Sachivalaya Gandhinagar Dated 23-4-84.
Read: 1. Circular No.83-84
Admission Norms dated 6-'3 of the Joint Director of Education (10 + 2 special cell)
2. Letter No.-1183-30829-G. 1 dated 15-6-83 from the Education Department.
3. Letter dated 20-12-83 addressed to the Director of Higher Education, Gandhinagar by the Joint Director of Education (10 +2 special cell) and the D. 0. letter No complaint - 1 stream - GH-10744 of the Director of Higher Education.
Resolution
Government have decided to introduce rules for admission as set out in Appendix-1 and the norms of procedure for admission as set out in Appendix-2, as regards admission to the Science stream of the Higher, Education.
2. The Joint Director of Education (10 +2 Special Cell) and District Education Officers are requested to take further suitable action to bring these orders to the notice of all concerned.
By order and in the name of Governor of Gujarat,
(V.R. RANA)
Education Officer,
Education Department.
xx xx xx xx xx
Appendix -1
(to the Government Resolution, Education Department No.1183-30829-G. 1 dated 23-4-84)
Rules for Admission
Rule-1
1(a) Schools shall grant admission in Standards XI and XII to their own students, on the basis of merits, in respect of 80 per cent seats of their total intake capacity. The minimum limit of marks for giving admission to their own students, in the first stage, shall be to the extent of 50 per cent in the new S.S.C. Examination.
(b) If any seats out of 80 per cent of the total seats as repartitioned above, remain vacant after giving admission in order of merits to their own students who have secured 50 per cent of marks, a list of their own students who have secured less than 50 per cent of marks shall be prepared in the serial order of their marks obtained at the S.S.C. Examination. If, after allotment of 20 per cent of the total seats to the students of other schools on the basis of merits, there remain some students who wait for admission, a joint list of the students on the above list and those waiting for admission shall be prepared according to the merits; and the seats remaining vacant out of the 80 per cent seats meant for their students, shall be filled in by the students on the said joint list in order of merits.
2. Admission on the20 percent seats meant for the outsiders shall be given on the following basis : -
(a) 50 per cent out of the 20 per cent seats shall be allotted in order of merits to the students of those Higher Secondary Schools which do not offer science stream.
(b) 25 per cent of the above mentioned 20 per cent seats shall be allotted in order of merits to the students coming either from other towns due to transfer of their guardians or from other States or other Countries or from other Secondary Boards.
(c) 25 per cent of the above mentioned 20 per cent seats shall be allotted in order of merits to the admission-seeking students who come from other local Higher Secondary Schools, though they offer science stream,
Note: - The 20 per cent seats meant for the outside students belonging to the above categories (a), (b) and (c) shall, in the first stage, be allotted only to those students who have obtained at least 50 per cent of marks in the new S.S.C. Examination/ equivalent examination and a waiting list be prepared for the students who have obtained less than 50 per cent of marks.
The minimum criterion for the admission on 80 per cent and 20 per cent of seats allotted in the first stage as per rules 1 and 2 above, has been fixed at 50 per cent marks in the S.S.C. Examination. However, if the seats remain vacant even after allotment as above, they shall be allotted on the following basis.
As regard seats remaining vacant inthe80per cent and 20 per cent, a joint list for the students who have not been given admission in their own schools and the students from other schools shall be prepared in order of merits from amongst those who have obtained less than 50 per cent of marks. Thus by way o giving-admission to the students from the said list according to the merits, the remaining seats shall be filled in.
(V.R. RANA)
Section Officer,
Education Department.
Appendix-2.
Procedure for admission.
Students who have passed the S.S.C. Examination of Std. X with the subjects of Mathematics-Science (higher) are eligible for admission in the science stream of Std. XI. Therefore, any school imparting education in the scythe stream shall not -refuse to give admission form to the student seeking admission if he has passed the S.S.C. Examination with these subjects. The school shall, on demand by the students who have passed Std. X from the same school and the students who have passed Std. X from other schools, start giving admission forms from the very day of the result and shall accept the completed forms within 15 days and shall fix the last date for acceptance of forms. Then after scrutiny of the forms within five days, it shall prepare a list of the students eligible for admission as per the above said Rules. In this list, 80 per cent students of the total capacity of seats, who are from the same school, shall be admitted on the basis of the total marks obtained in the subjects of Mathematics Science (Le. on the basis of merit). Thereafter, the school shall give admission to the remaining 20 per cent students as per the norm prescribed at (2) above. Generally the number of students for one class of a school for higher secondary science stream is fixed at 60. Therefore, it is desirable that the school would have proper facility accordingly. How-ever, from the very beginning of the academic term, the respective school having science stream shall give prior intimation to the District Education Officer as well as the office of the Joint Director of Education; Special Cell 10 + 2, Ahmedabad - 6 as to how many classes are there in its science stream and how many students can be admitted in each class. After the list of students seeking admission is prepared, the school shall not, on. its own increase or decrease seats without the approval of the District Education Officer, or the Joint Director of Education, Special Cell 10 + 2. In case of students who have passed the examination of Std. X with the subjects of mathematics-science at more than one attempt, one per cent of marks, for more than one attempt shall be deducted for the purpose of admission.
(V.R. RANA)
Section Officer
Education Department'
10. Besides the question, which arises at the instance of the petitions here by the three managements of such schools and five student petitions a further question, has been raised in two petitions filed by the students belonging to the Scheduled Castes. The question posed there and according to us rightly concerns the non-application of the mind to the need for reservation for students belonging to the Scheduled Castes, Scheduled Tribes and Backward classes which reservation is available to them at the entry into professional courses. But any reservation in such professional courses would be meaningless if there may not be sufficient number of candidates qualified to seek admission to such professional courses and that would be the case if at a prior stage, where there is a competition in them attar of admission, no provision is made for corresponding reservation for the students of the Scheduled Caste, Scheduled Tribe and Backward classes. We must notice here that the learned Advocate General appearing for the State conceded at the hearing of these petitions that it is necessary to provide reservation for Scheduled Caste, Scheduled Tribe and other backward classes that it will be attended to in the scheme of things in future and for the current year some ad hoc arrangement may be made in regard to admissions of students belonging to such classes. We are also happy to notice that this stand has not been challenged by any of the interests present here, the students the managements and also the guardians represented by Mr. Dave in one of the petitions, S.C.A. No. 3279/84, who has in that case obtained an order to be heard in the case. Before we deal with the contentions raised in these cases we may also notice the suggestion of the learned Advocate General that considering the number of Scheduled Caste, Scheduled Tribe and other backward class students seeking admission for the current academic year in the Ahmedabad schools such admission of students even fixing a- lower percentage of 45% marks as minimum would be possible if each one of the schools takes in six more students in each class. We will consider this when we consider the shape of the final order to be passed in these cases.
11. The question that we are called upon, to consider as raised mainly in the petitions of the three managements of schools is Whether the circular issued by the Government would be sustainable in law and whether it could be enforced as now attempted. The case of the managements is that they have a fundamental right to carry on the business of running a school and that right envisages the right to admit students of their choice, that such right is restricted by the impugned circular, that such restriction would not validly operate for the reason that the circular is not law, that only by legislation could reasonable restrictions be imposed and that the direction to admit students to 20% of the seats is also discriminatory and vocative of the right of equality under Article 14 of the Constitution of India. In elaboration of their plea of discrimination their case is that students of their own schools with more marks than those admitted in 20% of the seats do not get admission in the school in the 80% reserved for their own students and further that educational excellence is given the goby by reservation of 20% of the seats. The State in answer challenges the case of the managements of any fundamental right in them to seek to admit students of their choice. It is not disputed that the schools could be run only by public trusts registered as such under the Bombay Public Trusts Act and the Societies Registration Act. It is not disputed that the three managements, which are before us are Public Trusts registered under the Bombay Public Trusts Act. It is therefore the case of the State that there could be no fundamental right in the trustees qua trustees in the matter of the schools which they seek to represent and the right of admission can in no circumstance be said to be a fundamental right falling either within right to property or right to carry on business. It is also said that though the circular is only an executive instruction, in the absence of a law such executive instruction would operate validly and further that the circular need not be taken as any restriction on the right of the management, but only as regulating the admission to schools. Such regulations, it is said, are permissible even if restrictions are not permissible except by law. The plea of infringement of Article 14, it is said, cannot arise because the purpose of the circular is to provide opportunities for those who would otherwise have no opportunity to have study in the science stream in any school. There are many secondary schools in Ahmedabad and elsewhere which have not sought to raise the higher secondary standards in their schools and even in some schools where such higher secondary standards have been created they have not chosen to have science stream classes. Therefore students who had taken Higher Mathematics/Science in the 10th standard and who wish to pursue professional studies in technical courses such as engineering, medicine or pharmacy find themselves at a loss for want of XIth or XIIth standards in their own schools and disinclination of other managements to admit them to their schools. It is in these circumstances that the Government had stepped in with the regulation to enable those students to obtain to some extent admissions in other schools on the basis of their merit.
12. While considering the plea of the managements that they have a right to control admission it is worthwhile to notice the stand of the students that in the attitude taken by the managements it is their right that is infringed, their right to seek admission to public institutions on the basis of their merit and excellence. The students contend that all these schools are maintained by the State either directly or indirectly, that in the case of private schools though the management is with the private body the funds for running the school emanate from the State and so long as it is the State funds which are used and so long as a public duty of imparting education to the citizens is being performed by these managements they cannot give admissions to the schools at their sweet will and pleasure as if it is their property over which they can exercise right without any concern to the rights of the students community. It is their case that the Government, instead of regulating admissions to a few seats, should have directed admissions to be made M; all seats on the basis of merit subject of course to appropriate reservations contemplated in Article 15(4) of the Constitution. The circular, it is contended, infringed the rights not really of managements, but of the student community of the State in that though its avowed purpose is the reservation of a few seats to the students on the basis of their excellence and merit it serves the purpose of protecting the managements from being called upon to meet the obligation of admitting students to all the seats on the basis of merit. Before we take up these contentions we would advert to an attempt made at the hearing to arrive at some ad hoc solution to the situation for the current academic year. No doubt this is a recurring phenomena and until and unless the State duly deliberates over the matter and finds a solution rather than drive the managements and students to Court, ad hoc resort to the Court at the commencement of every academic year would become a natural phenomenon. It is stated by the learned Advocate General that the enactment of a law on higher secondary education is in the anvil and it may be possible to bring such a law so as to operate for the next academic year. Though some of those appearing in these cases have expressed their apprehensions about this since past assurances of a similar nature have proved to be without substance we do hope that in its own interests the State will strengthen itself by enacting a legislation to govern the higher secondary education in the State without further delay. Noticing that the academic year has begun and there should be no further delay in commencing classes if a solution which will be acceptable to most, if not all, could be found that would be welcome and it is towards this end that the parties more or less had a consensus on a suggestion made by the learned Advocate General as one to operate for this year. The dispute in these cases which has led to many of these proceedings being one concerning reservation to the 20% of the seats, if the students of the same schools who would otherwise have come into those seats are also provided admission, then any objection on the part of the school would be substantially met except in the case of institutions where there is no possibility for making further accommodation for students. The suggestion that while retaining the circular as such and implementing it may be contemplated, a further extension of 20% more seats for this year besides six seats for each class for scheduled caste and scheduled tribe students would solve the question was one which was generally acceptable to many and we will consider it when we finally decide the case. But that does not obviate a decision in this case because of the stand taken by Miss V. P. Shah, counsel appearing for the Proprietary School, the petitioner in S.C.A. No. 2863 of 1984. According to her in the Proprietary School an addition of 20% seats amounting to 12 seats was made last year and consequently there are 72 seats in the class and it may not be possible to add to these seats except to the extent of six to accommodate the scheduled caste, scheduled tribe students. A further extension of 20% seats, according to the petitioners' counsel Miss Shah, would not be practicable. At this stage we must notice that Shri S. I. Nanavati appearing for the C. U. Shah College which also runs higher secondary classes in the science stream, submitted that if need be the C. U. Shah College will take in any of the students which the petitioners in S.C.A. No. 2863 of 1983 want to admit in the science stream. Of course since the counsel for the petitioners Miss Shah was not amenable to this suggestion this offer was naturally withdrawn.
13. Now we will come to the merits of the or whether it could be justified on the ground contentions necessitated by the fact that one that it is merely a regulation at least of the petitioners wants an adjudication on the issue before us.
14. We are called upon to consider a very important question, a question of considerable concern for the managements and the students and this relates to the nature, extent and character of the right of the management in the matter of admitting students to State aided schools. We have used the term' management' here for the sake of convenience. As a matter of fact it is the Board of Trustees that governs these institutions all of which, as we have stated earlier, are Public Trusts. A 'public trust' under the Bombay Public Trusts Act, 1950 takes in any society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860 and every such Public Trust is compulsorily remittable under Section 18(l) of the Act. It is as trustees that the petitioners have filed these petitions. The trustee is the legal owner. But the trustee has no personal proprietary interest in the Trust, and it is not by virtue of any personal qualification that he is filing a petition on behalf of the Trust, but only as trustee and thereby the legal owner. We have to examine the question of the fundamental right to challenge the circular bearing this in mind. No doubt as individuals the trustees may be citizens and may have a right under Article 19(l)(g) to practice any profession or carry on any occupation, trade or business, but we have to examine in these cases whether the fact that as a. citizen the trustee could claim a fundamental right under Article 19(l)(g) would enable the trustee as trustee to claim that in respect of the school of which he is the trustee he has a fundamental right. We have also to examine the question whether assuming that there is a fundamental right the right to regulate the admission of students could be said to be a right forming part of any right to carry on a business or occupation. It is only in the event these are found the question whether the circular is not operative for the reason that it restricts the fundamental right of the petitioners would have to be considered. Even so there is a further question which calls for our attention as to whether any circular such as the one before us could be said to be a restriction on the right to practice a profession or vocation or whether it could be justified on the ground that it is merely a regulation.
15. When we are called upon to consider the question of infringement of the fundamental right of the petitioner it would be appropriate for us to refer to the decision of the Supreme Court in K. A. Samajam v. Commr., H. R. & C. E. Hyderabad : [1971]2SCR878 . The Supreme Court was, in the case, called upon to consider the validity of certain provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966. The Act imposed certain restrictions on hereditary trustees. The hereditary trustees contended that their office was 'property' and that restrictions imposed on the right to such property were not reasonable. Both these questions had to be considered by the Supreme Court in that case~ In that context the Supreme Court drew a, distinction between hereditary trustees, pure and simple, and those trustees who have a proprietary or beneficial interest either in the corpus or in the usufruct of the trust estate. A case of a Shebait of a religious institution or a Mathadhipati or Mahant could be the case of one having proprietary or beneficial interest in the estate of the Trust. That would not be the case of the hereditary trustee who despite the fact that he is a hereditary trustee has no interest other than that of a trustee which interest is neither personal nor of beneficial impact to him. In other words it casts upon him an obligation and the right is attendant upon that obligation, the obligation to discharge his duties under law as a trustee, being the legal owner, not for his own benefit, but that of the beneficial owner. We may particularly refer to a passage in paragraph 7 of the judgment. The Supreme Court dealt with cases where Courts had occasion to hold hereditary trusteeship to be 'property' within the meaning of Article 19(l)(f) of the Constitution and observed that in those cases the true character and incidents of that office do not appear to have been fully kept in view. The Court proceeded to say (Para 10):
'It was common ground before the High Court and has not been disputed before us that the hereditary trustees of the institutions with which we are concerned have only claimed a bare right to manage and administer the secular estate of the institution or the endowment and in no case any hereditary trustee has claimed proprietary or beneficial interest either in the corpus or in the usufruct of the estate. The position of a hereditary trustee does not appear to be in any way different from that of a Dharamkartha or a mere manager or custodian of an institution or endowment. There is one exception only. The hereditary trustee succeeds to the office as of right and in accordance with the rules governing succession. But in all other respects his duties and obligations are the same as that of Dhardmkartha. No one has ever suggested that a hereditary trustee can be equated to a Shebait of a religious institution or Mathadhipati or the Mahant. The ingredients of both office and~ property, of duties and personal interest are blended together in the rights of a Mahant as also a Shebait and a Mathadhipati. The position of Dharamkartha, on the other hand, is not that of a Shebait of a religious institution or of the head of a math. These functionaries have a much higher right with larger power of disposal and administration and they have a personal interest of beneficial character; (See Srinivasa, Chariar v. Evalappa Mudalier (AIR 1922 PC 325)). There would thus be no justification for holding that since the office of the aforesaid functionaries has been consistently held by this Court to be property the office of a hereditary trustee is also property within Article 19(l)(f).
It may be interesting to notice that the Court highlighted the distinction between functionaries such as Shebait and Mathadhipati who have larger power of disposal and administration apart from a personal or beneficial interest and further held that it is in their cases that the Court had held earlier that the office of a hereditary trustee was also 'property' within the meaning of Article 19(1)(f).
16. It appears to us that one of the requirements necessary for invoking the exercise of a fundamental right available to a citizen under the Constitution is that his interest in that litigation is as a citizen and not in any other capacity. Where it is by virtue of an office held by him or by virtue of a position he holds representing another the fact that he is a citizen may have no consequence. The position would be different if in the case of a Trustee he is not merely a Trustee but a Trustee with a larger interest, personal in character or beneficial to him. That being not the case of a Trustee, pure and simple, there would be no occasion for him to exercise his fundamental right as a citizen.
17. It will be only appropriate that we notice here cases where fundamental right has been recognized in associations of persons and shareholders of companies. They do call for examination particularly because Miss Shah placed reliance on those cases. The cases decided by the Supreme Court in R. C. Cooper v. Union of India : [1970]3SCR530 and Bennett Coleman and Co. Ltd. v. Union of India : [1973]2SCR757 can easily be found to be of no assistance to the petitioner in S.C.A. No. 2863/84. A shareholder of a company may be affected by action against the Company though a company is a different legal entity from the shareholder-and properties of the company is not properties of the shareholder. A shareholder has a personal interest in the prospects of the company. He would be affected by the situation in which the company is placed and by its fortunes because the value of the ownership of the share that belongs to him will necessarily depend upon the status and position of the company of which he is a shareholder. The declaration of dividends by the company and the share Value of the company in the stock market are matters of concern to him. If therefore any legislative action or executive action infringes the right of the company with the consequence that the right of a shareholder is affected he is one who has sufficient interest to come to Court. This is what Justice Shah said in paragraph 14 of the judgment in Cooper's case : [1970]3SCR530
'The shareholder of a Company, it is true, is not the owner of its assets, he has merely a right to participate in the profits of the Company subject to the contract contained in the Articles of Association. But on that account the petitions will not fail. A measure, executive or legislative may impair the rights of the Company alone, and hot of its shareholders; it may impair the rights of the shareholders and not of the company: it may impair the rights of the shareholders as well as of the Company. Jurisdiction of the Court to grant relief cannot be denied when by State action the rights of the individual shareholder are impaired, if that action impairs the rights of the Company as well. The test in determining whether the shareholder's right is impaired is not formal; it is essentially qualitative; if the State action impairs the right of the shareholders as well as of the Company, the Court will not, concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant relief'. The same view has been expressed by Justice Ray in the later case in Bennett Coleman and Co. Ltd. v. Union of India : [1973]2SCR757 thus: 'A shareholder is entitled to protection of Article 19. That individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalization case : [1970]3SCR530 (supra) has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to form a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders' rights are equally and necessarily affected if the rights of the company are affected. The rights of shareholders with regard to Article 19(l)(a) are protected and manifested by the newspapers owned and controlled by the shareholders through the medium of the corporation. In the present case, the individual rights of freedom of speech and expression of editors, Directors and Shareholders are all exercised through their newspapers through which they speak. The press reaches the public through the newspapers. The shareholders speak through their editors. The fact that the companies are the petitioners does not prevent this Court from giving-relief to the shareholders, editors, printers who have asked for protection of their fundamental rights by reason of the effect of the law and of the action upon their rights. The locus stands of the shareholder petitioners is beyond challenge after the ruling of this Court in the Bank Nationalization case (supra). The presence of the company is on the same ruling not a bar to the grant of relief'.
18. We may also advert in this context to the decision of the Supreme Court in Damyanti v. Union of India AIR 1971 SC 966. The question there concerned infringement of the right of association guaranteed under Article 19(l)(c). The Hindi Sahitya Sammelan Act provided that the Hindi Sahitya Sammelan constituted under the Act was to take over the original Hindi Sahitya Sammelan and thereafter to continue as the Sahitya Sammelan. Those who had originally associated themselves to form the Hindi Sahitya Sammelan as an infringement of their right to form an association challenged this. The Hindi Sahitya Sammelan, it may be remembered, was an association of persons and those persons who associated to form that association were faced with a situation where there were those in the new Sammelan whom they had not agreed to associate with and that is how they raised the plea of the infringement of the right to form association. It is evident that in that context those who were members of the association of persons were voicing a plea available to them as such members to plead infringement of their right to associate by a legislative Act and that case therefore is of no assistance to the petitioner in SCA No. 2863/84. It may be necessary to refer to two decisions of this Court in Sharda Education Trust v. State (1976) 17 Guj LR 298 and Ahmedabad Kelavani Trust v. State of Gujarat, (1978) 19 Guj LR 671. The first of these cases was by a learned single Judge of this Court, Justice. D.Desai as he then was, and the question that arose for our learne4 brother's decision there was whether teaching or, imparting education to a pupil in a secondary school was a fundamental right. The Managing Trustee of a registered Public Trust, Sharda Education Trust was the petitioner there. The order impugned in that case was that of the Government of Gujarat which- dismissed an appeal against an order passed by the Secondary Education Board The Board had rejected an application for registration for starting a secondary school. This was contended to be in violation of the fundamental right of the petitioner. The question examined in that case was whether any fundamental right of running a school could be claimed The question whether the petitioner as a trustee could have claimed that right was not as such agitated in that decision and that is the question now before us. Evidently it was assumed that the only question to be considered was whether running a school was a business. The Court took the view in that case that teaching or imparting of education to pupils in a secondary school being a fundamental right any dealing with the fundamental right must be in recognition of such right. To that question we will come later when we consider whether the right to admit pupils is a fundamental right, but we have to point out the fact that there was no occasion for our learned brother to consider the plea that is now before us, viz. whether the managing trustee as trustee could claim any fundamental right. The case before this Court in Ahmedabad Kelavani Trust v. State of Gujarat (1978) 19 Guj LR 671 was relied on by the learned Advocate General in support of his stand that right to establish, administer and manage educational institutions could not be said to be a right to practice any profession or to carry on any occupation, trade or business. The question before us, namely, whether a trustee litigating as trustee could, claim any fundamental right as a citizen did not arise. We are of the view that the petitioners, the school managements in these cases, cannot claim to have a fundamental right, infringement of which can be complained of.
19. The view expressed by Chagla, C. J. in Yusuf Abdul Aziz v. State : AIR1951Bom470 that even if a non- citizen could not invoke fundamental right (Article 15 in that case) it is open to him to contend that the. law under which he was prosecuted was a void law as it violated Article 15 is no longer valid in view of the pronouncements by the Supreme Court. Such a law is valid and can be enforced against non-citizens on whom fundamental right has not been conferred Behram Khurshid Pesikaka v. State of Bombay : 1955CriLJ215 and Bhikaji Narain Dhakras v. State of Madhya Pradesh : [1955]2SCR589 . Though an earlier Supreme Court case, Dwarkadas Shrinivas v. The Sholapur Spinning and Weaving Co. Ltd. : [1954]1SCR674 might appear to have expressed a contrary view it must be noticed that it was Article 31 of the Constitution which was considered in that case and that was not limited to citizens. Relying on' the later Supreme Court decisions the Bombay High Court in Zoolfiquar Ali v. Official Trustee (1967) 69 Bom LR 326 reconsidered the view expressed by Chagla, C. J. in the decision in Yusuf Abdul Aziz v. State : AIR1951Bom470 and held that the claimants therein were not entitled to take 4dvantage of Article 19 for the simple reason that they were not citizens. In view of the Supreme Court decisions to which we have adverted the earlier decision of this Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality : AIR1968Guj124 cannot be correct but we are not referring the question to the larger bench only because the matter is directly covered by the subsequent decisions of the Supreme Court. We are only indicating here that there is no need to consider whether the resolution w ill be inoperative qua citizens as we are only concerned with the question whether it is inoperative in these cases as an infringement of any fundamental right under Article 19(l) of the Constitution.
20. The question whether any right guaranteed under Article 19(l)(g) has been infringed in this case by the State issuing the impugned circular does not arise in view of the decision that the petitioner-managements cannot impugn the circular on the plea that their fundamental rights have been infringed. If these cases could be decided without answering that question it would be advisable to do so considering the very large and wide impact a decision on the question is likely. to have. But we will go into further question whether, assuming the petitioner6managements have a fundamental right under Article 19(l)(g) such right is liable to be regulated not by way of any restrictions, but by way of permissible regulations. We will set out ourselves to the task by considering whether the right to admit students is a matter capable of being regulated at the instance of the State and whether such regulation would not amount to restriction infringing the right under Article 19(l)(g) of the Constitution. The premises that we adopt is that Article 19(l)(g) while conferring right to practice profession or occupation. enables the State to make law by way of reasonable restriction on the exercise of that right, but even without making such law the right is liable to be regulated and such regulation need not be by law. The question of giving life to such regulation as a law in order to be operative would arise only if such regulation amounts to restriction. Every regulation need not be understood as a restriction destroying the core of the right.
21. Article 30(l) of the Constitution of India confers on all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. This right has been held by the Supreme Court to be an absolute right. Unlike the right of a citizen under Article 19(l)(f) or (g) which right is liable to be restricted reasonably by law, there can be no law infringing the right of a minority under Article 30(l) of the Constitution. That does not mean that it is not liable to be regulated. The absoluteness of the right under Article,30(l) does not in any way militate against the State making regulations either b~ law or by executive orders so as to regulate the exercise of such right. The right to administer is not the right to mala dminister and if to preserve the excellence of an institution and to prevent maladministration guidelines are laid down which guidelines would operate to regulate the exercise of the right to administer such regulations have been held by the Supreme Court to be permissible. We are only pointing out that merely because there is some sort of restraint on the exercise of a right it need not be that every such restraint acts as a restriction. It may operate, as a restraint by way of regulation in order to protect the right itself such protection may be to retain excellence and quality. Such a protection is envisaged in regard to Article 30(l). We are indicating that if that regulation would be permissible in respect of an absolute right under Article 30(l) similar regulations would be permissible in respect of a right -under Article 19(l)(g) so long as such regulation does not transgress the limit, does not trespass upon the right of the citizen and does not amount to a restriction.
22. When the validity of the Kerala Education Bill had to be considered by the Supreme Court whose opinion was called for by the President various clauses of that bill came up for consideration by the Court and some of those clauses were apparently clauses which appear to infringe upon the rights of the minorities and it is in that context the Supreme Court had to consider the validity of those clauses. Dealing with this the Supreme Court said in In Re the Kerala Education Billy 1957 AIR 1958 SC 956 (Para 31)
'The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run .by them in unhealthy surroundings, without any competent teachers possessing any semblance of qualifications, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their 6hoice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided.'
The same view was reiterated by the Supreme Court in a later case in Sidhrajbhai v. State of Gujarat AIR 1963 SC 540. Shah, J., speaking for the Bench, said in that case (Para 10):
'Unlike Art. 19, the fundamental freedom under clause (1) of Art. 30, is absolute in terms: it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Art. 19 may be subjected to. All minorities, linguistic or religious have by Art. 30(l) an absolute right to establish and administer educational institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under Art. 30(l) would to that extent be void. This, however, is not to say that it is not open to the St ate to impose regulations upon the exercise of this right. The fundamental freedom is to establish and to administer educational institutions: it is a right to establish and administer what are in truth educational institutions - institutions which cater to the educational needs of the citizens, or sections thereof. Regulation made in the true interests of efficiency of instruction discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed: they secure the proper functioning of the institutions, in matters educational.'
We do not think that there is any need to multiply authorities. Suffice to say that a right of regulation could exist even without a law. Such regulation may not operate as restriction annihilating the right on which it operates. On the other hand it may operate to promote the said right.
23. We have therefore only to consider whether the circular before us is a restriction upon the right of the management, assuming that there is such a fundamental right, or whether it is merely a regulation of the right. What does the circular purport to do? It only gives guidelines in the matter of admitting students to a school. The background has already been stated and that would be sufficient to underline the need for attention to the question of providing for those-students who would otherwise be left without opportunity for admission in a school where they could have reasonably good education. It is in this context that we have to look at the whole question not necessarily from the point of view of managements of schools who think of their rights and who feel about their rights and who are attempting to sponsor their own cause~ but from the point of view of the students who have a legitimate cause for grievance that despite the marks obtained by them they 'find themselves nowhere when it comes to their pursuing education in the XIth standard of the science stream. To illustrate this point let us take the case of the petitioners in SCA Nos. 3357 and 3425 of 1984.' Urvashiben Kiritkumar Patel, the petitioner in SCA No. 3357 of 1984, has passed the S.S.C. examination in March 1984 from the Shri Saraswati Mandir, Kathalal in Kheda district. She has obtained 76.16% marks in New S. S.C. Examination. The Shri Saraswati Mandir from which she has passed has no facility in science stream in higher secondary. Therefore she had necessarily to take leave of that school and she has. She has necessarily to find herself a place elsewhere and she has been applying to various schools in Ahmedabad where there is science stream. Imagine a situation where not even the 20% reservation is available to such students. If every good school thinks of admitting only its own students or students they pick and choose without any principle and there are more number than they could take 'in naturally there would be no chance for a person like the petitioner despite her76.16% marks to study in the science stream. Perhaps she may find a place in one of those schools where even persons with 38% marks have been admitted. In the case of a student who has obtained 76.16% marks it would certainly appear that it would be as good as dooming her career. Let us take the other case, that of the petitioner in SCA No. 3425 of 1984. She passed the 10th standard from the Sheth S. N. Carob High School of the District Baroda, Taluka Sankheda. She secured 78% marks and her case is that her school is not imparting education in higher secondary as there are no higher secondary standards there and she would also say that her father is not in a sound financial position to continue her studies, but could perhaps continue her studies if she could get admission in Ahmedabad. As in the case of many others she has applied for admission to many schools in Ahmedabad hoping that one or other of her applications would evoke a favorable response, but according to her that has not happened. In her case also, if only students from the schools from which they have passed the 10th standard were to be admitted on merits in other schools she could continue her studies in the science stream. Otherwise the situation would be that she would be effectively denied admission.
24. One of the primary duties of the State is to promote education. It is particularly so in the case of weaker sections of the people. People in the higher social strata may be able to find suitable places to accommodate their children in case the State does not make provision there for, as it would be economically feasible for them to admit their students in educational institutions of their choice. But that would not be the case with the large masses of the people who may not be able to afford such education as a luxury. Article 46 of the Constitution enjoins the State to promote with special care the educational and economic interest of the weaker sections of the people and to protect them from social injustice. The obligation to provide education particularly for children is a special obligation imposed by Article 45 of the Constitution. Even a period, of time within which the State is obliged to bring this into force is specified in that Article. It is 10 years from the period of commencement of the Constitution. Education, free and compulsory, for all children until they complete the age of 14 has to be provided by the State. Article 41 of the Constitution obliges the State to make effective provision for securing the right to education within the limits of its own economic capacity and development. This Article is particularly significant because it refers to the 'right' to education and naturally envisages the Government's duty to secure such right. No doubts these are unenforceable rights. But from the stand point of the State there is as much moral compulsion in the mandate in these articles as in the articles in Part III which also secure rights to citizens and in some cases to non citizens too. Any measure the State adopts to promote education would be in furtherance of its obligation under the directive principles. The duty to secure the right to education is a public duty which the State may perform by itself or through its agencies or instrumentalities or through institutions which are regulated by it, so much so that, not only the direction of education but also the requirements of providing free and compulsory education to children up to 14 would also be taken care of through such agencies, instrumentalities or institutions.
25. In the State of Gujarat, the State runs educational institutions. But it is not in controversy that the umber of institutions run by the State is inadequate to meet the educational requirements of the people. Since it is its bounden duty to provide such education for those who have right to seek such education this duty is performed through recognition granted and State aid extended to other schools. In this State such other schools are run only by Public Trusts. Recognition as well as State aid are given only to Public Trusts. They alone can run such schools. This is not to say that private agencies which are not Public Trusts cannot run educational unstitutions. They cannot seek from the State Government recognition as well as State aid as educational institutions. We are not concerned with such institutions in these cases. All the educational institutions which are State aided are admittedly Public Trusts. Therefore it is pair that in the State of Gujarat education is remote by the State by running its own institutions and also by giving recognition as well as State aid to Public Trusts for running their institutions. Naturally the State aid calls for regulation to promote the purpose of the need of he people of the State to realize the objective in the directive principles of providing free and compulsory education to children, promoting with special care the educational interests of the weaker sections and making effective provision for securing the right to education. If this is the background of the functioning of Public Trusts as educational institutions it goes without saying that regulations to secure t1fis purpose would be necessary. We have already noticed that there can be no question of fundamental right. But that would make no difference, since even assuming that there is a fundamental tight in the managements which are Public Trusts, in the background of what we have stated, regulation would be called for, as otherwise, the very purpose of those institutions, the very object with which those institutions are recognized and State aided. would be defeated. At the moment we are not dealing with the minority institutions. In their case certain other considerations also come into play.
26. If here is obligation in the State to provide education, that obligation could be discharged not merely by setting up schools or by permitting Public Trusts to setup schools and funding them, but also by making such regulations as are necessary for making the State educational institutions as well as the educational institutions of the Public Trusts cater to the needs of the people. It must promote the interests of the weaker sections. It must secure the right to education. This being the guideline indicated in the directive principles any regulation to achieve this object would be permissible regulation and in fact any regulation which is counter productive of these objectives may not be justifiable though any action in that behalf may not be capable of judicial review. It is for the State to conduct itself in such a way as to further the directive principles and if it does so there would be no scope for a Court normally to interfere unless it is shown that such action comes into conflict with the fundamental rights of citizens. Even then the Court would try to reconcile and harmonize to the extent possible the fundamental right of citizens on the one hand and the social good sought to be achieved by implementing directive principles on the other. ('It is sometimes also said that in the establishment of a welfare State, the rule of law suffers. Perhaps it does, because the State in its pursuit of the common weal is not always ethical. The choice before us is whether we regard the welfare State so necessary that we may give up a little of the rule of law or we regard the rule of law so essential that we must sacrifice our desire for a welfare State. The Courts have daily to reconcile the demands of a welfare State with the rule of law. This is the most delicate task before the Courts'. M. Hidayatullah, J., in 'Democracy in India and the Judicial Process'). We therefore find that imposition of regulations to promote the objectives enshrined in the directive principles of State policy, and to promote educational excellence, would not be restrictions but would operate only as permissible, nay, desirable regulations.
27. The injunction in Article 14 of the Constitution against discrimination is no doubt directed only to the State. So is the prohibition in Article 15(l) of the Constitution. But Article 29(2) of the Constitution indicates that the student community has a right to seek admission in educational institutions run by the State as well as those, which are aided by the State. No doubt the injunction under Article 29(2) is of a limited character. But that Article envisages a right to admission. In State of Madras v. Sm. Champakam Dorairajan : [1951]2SCR525 the Supreme Court had to consider a plea of discrimination in the context of a Communal G.O. issued by the then Government of Madras in regard to admissions into professional colleges. Considering the scope of Article 29(2) S. R. Das, J., speaking for the Bench, said in that case (Para 7):
'The right to get admission into any educational institution of the kind mentioned in Cal. (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens'.
28. A Having considered the obligation of the State to make regulations in the matter of admission we will now proceed to consider whether the impugned circular was justified or called for in the circumstances of the case and whether it would operate as a permissible regulation. To the background of the resolution we need not refer, for we have considered it earlier in this judgment. The Government was obliged to interfere, to regulate admissions into schools as otherwise a good number of students who pass out from schools where there are no higher secondary classes would have been unable to pursue their education in, the science stream despite their good performance in the 10th standard examinations. This would certainly affect their right to enter professional colleges and in due course practice professions of their choice. In this background the State Government envisaged reserving a few seats in the State aided educational institutions. We say 'few' because from the statement furnished to us which forms part of the record of the case, it is evident that in the 20% seats reserved, though the qualifying marks for admission is fixed at 50%, the minimum mark of the students admitted is much above the 50%. From the' statement which is with regard to the 48 schools in Ahmedabad city only, furnished by the State, we find that while students having 50%, the eligible minimum, passing out from their own institutions have been given admission in some good schools, the lowest mark of candidates who are accommodated in the 20% of reserved seats is very much higher. To illustrate, in the Vijayanagar High School the lowest mark of students who got seats under the 80% filled in by the management is 50.3% while the lowest mark for the students under the 10% for schools with no science stream is 77.83%. Similar figures of C. N. Vidyalaya is seen to be 70% marks for the unreserved seats while the minimum marks for reserved seats is 84.5%. In the case of the school represented by proprietary school for which Miss Shah appears the lowest mark of the boys admitted in the 80% seats is 68.3% while the lowest marks for boys admitted in the 10% reserved seats is 83.66% and the figures for another school under the same management is 66.6% and 82.15% respectively. This shows that despite the reservation of 20%, out of which 10% alone goes to the students from the schools with no science stream in the XIth standard, many students of much higher merit do not get admission in certain schools, while, those who have passed out from the same school get admission with lesser marks. If the students have a right to admission and it is the duty of the State to secure such admission, any formula which secures them admission must necessarily give due weight to merit. We of course envisage that some of the seats must necessarily go to the weaker sections and some of the seats may possibly have to be provided for other justifiable interests. But the complaint of the students that the State under the guise of attempting to regulate the right of admission of students generally by providing them 20% seats is really approving thereby the right of the management to fill up 80% seats as it likes is not without merit.
29. We see no justification in the claim of the managements that there should be no regulation of admission into their schools. We do not think that any further discussion on this question is called for. We see justification in the complaint of the students that such regulation should be to secure the right of students on the basis of their merit, subject of course to permissible reservations such as to the weaker sections.
30. Now we come to the circular in question. The 20% reservation envisages really only 10% reservation for the category of students about whom we have discussed in this judgment, viz. those who find themselves without any venue for their further studies in the science stream. We have indicated how, on the basis of the figures made available to us it could be shown that this reservation is inadequate. We have shown how weight age should be given to merit. Therefore there is; no question of finding that even that inadequate reservation should be held to be bad. But the case is different with regard to reservation of the balance 10% to two categories, 5% each. One of them is even difficult to be located as a class. The 5% allotment of seats 'in order of merits to' the admission-seeking students who come from other local Higher Secondary Schools, though they offer science stream' does not appear to be logical in the context of reservation of only 10% for those who are really aggrieved. So is the reservation of 5% for the children of those who have been transferred. There may be justification for such reservation, but not for the quantum. We are only indicating that these percentages not being based upon any scientific data or material do not seem to reflect a logical approach. This is intended as a note of caution for the future. Whatever that be, we are not disturbing the admission for this year, for it is too late now to think of it, too late to think of an alternate resolution for admitting students. In the event of any disturbance to the situation the education of a large number of students during this year will be affected. The remedy will be worse than the evil. It is in this background that we welcome the acceptance generally by the managements of the suggestion by the learned Advocate General to provide those who come in the 20% as also those who would have been admitted by the school management from the same school had the impugned resolution not been passed in the same class. We, therefore, hold that the circular will operate for this year.
31. We have to refer very briefly to the plea of violation of Article 14. Miss Shah's case that the circular violates Article 14 for the reason that it sacrifices excellence for the sake of adjustment would not in any way promote her case. If excellence be the test then the admissions must necessarily be on merit. What is sought by the petitioner herself on behalf of her client is adjustment and not excellence and what the State has attempted is to provide both for excellence and adjustment and therefore there is no case for complaint of violation of Article 14. Of course if there are candidates in her school with more marks than the candidates admitted to the 20% quota such students must also be admitted. ) 3ut figures, as we have already indicated, do not substantiate such a case in respect of any school. Hence there is no scope for the plea of discrimination. The plea of discrimination at the instance of students has already been dealt with by us.
32. Now before we close we have also necessarily to emphasize the plea of the petitioners in the two petitions, SCA Nos. 3450 and 3683 of 1984. Despite years of reservation the scheduled castes and scheduled tribes are inadequately represented whether it be in professional colleges or in professions. One cannot expect them to perform at the same level as other candidates and therefore if it is a question of plain competition with others their chances are bound to be seriously affected. It is not sufficient to provide adequate representation to scheduled castes and scheduled tribes, but effective representation to them. In the representation now made there is always provision for adequate representation, but very rarely effective representation. No student, as we have indicated earlier, could join the professional courses without passing through the higher secondary science stream. The reservation at the professional level would have no sense if reservation is not made at the higher secondary level. While we have been exercising ourselves in these cases about excellent students and the excellence in education we should not forget that, there necessarily has to be effective representation for those classes which deserve reservation and we are mentioning this to justify the direction that we make in these cases, to admit students who have not less than 45% marks in the S.S.C. belonging to the scheduled caste, scheduled tribe or other backward classes on the basis of a merit list prepared for admission to the schools in Ahmedabad city. From out of this the District Educational Officer who shall prepare such fist may allot six seats in each class to the various educational institutions in the city. The educational authorities may have to take such steps as are necessary to enforce this direction. This will be only to such of those students as apply to the concerned District Educational Officer within one week from today.
33. Thus while we dispose of the petitions holding at the circular is enforceable for this academic year, we direct that such of those schools as may want to accommodate students who had been studying in the same school may admit them up to 20% of the seats in the class for which the educational authorities shall give permission and besides this they shall also admit six students belonging to the scheduled caste, scheduled tribe or other backward classes as directed by the District Educational Officer for each class. Such of those schools as want to avail of this permission for additional seats may in writing apply within a period of two weeks from today to the District Educational Officer whereupon in accordance with the direction here the request will be granted. It is also open to the schools to seek additional classes during this year in which case such additional classes will be sanctioned according to the needs.
34. One of the reasons why there has been so much of litigation here consequent upon which there has been delay in the admission this year is the belated publication of the resolution concerning admission applicable to this year. Had the same been published sufficiently in advance it would have been open to this Court to tell those who come to this Court just at the time of opening of the schools that we would not interfere with the academic course as they should have come to this Court earlier. But it is not open to us to say so now and the consequence has been the delay in commencing the education in the science classes in many of the schools. To avoid repetition of a similar situation we once again caution the State Government to take steps sufficiently in advance for the next academic year.
Learned counsel Miss V. P. Shah seeks that the interim relief may continue so as to enable petitioners to file appeal to the Supreme Court. The commencement of the classes for those students who are seeking admission stands sufficiently delayed even now and we do not think that it will be in the interest of education to extend the interim relief in any manner. All interim reliefs vacated.
Learned counsel for the petitioners in SCA Nos. 2863, 3279 and 3280 of 1984 seek leave to appeal to the Supreme Court of India. We see no reason to grant leave, as we do not think that any substantial question of law of general importance, which needs to be decided by the Supreme Court, arises in these cases. Leave declined.
35. Order accordingly.