KAN SINGH, J. - (1.) WE have before us two writ petitions under Article 226 of the Constitution by two students who have taken their higher secondary education in Rajasthan but who have been prevented from appearing at the higher secondary examination on the basis of Regulation No. 11 of the Regulations made by the Board of Secondary Education, Rajasthan, hereinafter to be referred to as the Board, in exercise of its powers under sec. 36 of the Rajasthan Secondary Education Act, 1957 (Act No. 42 of 1957), hereinafter to be referred to as the Act. They have prayed that Regulation No. 11 be declared ultra vires-the Board and the Board be directed to permit them to appear at the examination of the Board. As the writ petitions raise a common question of law, they can conveniently be dealt with together.
(2.) BEFORE we advert to the facts of these writ petitions, we may refer to the relevant provisions of the Act and the Regulations made under the Act. The Act was passed by the Rajasthan Legislature in 1957 and it came into force atonce. The Act was passed to provide for the establishment of a Board for secondary education in Rajasthan, with a view to developing the system of secondary education in the State on modern, scientific and progressive lines (Vide Preamble of the Act ). The Board was to re-organise, regulate and supervise the secondary education in the State. It was a corporate body and was to be composed of certain official members and others to be elected in the manner laid down by Sec. 4 Its power and functions are specified in Sec. 9 of the Art, and it is as follows: - "9. Powers and functions of the Board - Subject to the provisions of this Act the Board shall - (1) prescribe courses of instructions for secondary education in the State for such candidates as : - (a) have pursued a course of study in an institution for secondary education in Rajasthan, recognised by the Board ; (b) are teachers of institutions recognised by the Board in this behalf; (c) have studied privately under conditions laid down in the Regulations; and have passed the examinations of the Board under the like conditions; (2) conduct public examinations at the end of the secondary stage; (3) publish the results of examinations of the Board; (4) grant certificates and diplomas to such persons as - (a) have pursued a course of study in a recognised institution; (b) are teachers of recognised institutions, or (c) have studied privately under conditions laid down in the Regulations; and have passed the examinations of the Board; (5) recognise institutions for the purpose of its examinations and admitting them to the privileges of the Board; (6) admit candidates to the examinations of the Board; (7) demand and receive such fees as may be prescribed; (8) co-operate with other authorities in such manner and for such purposes as the Board may determine; (9) place before the State Government the views of the Board on any matter with which it is concerned ; (10) call for reports from the Director on the conditions of recognised institutions or of institutions applying for recognition and to direct inspection of such institutions ; (11) adopt measures to promote the physical, moral cultural and social welfare of students in recognised institutions and to prescribe the conditions of their residence and discipline ; (12) organise and provide lectures, demonstrations and educational exhibitions, seminars and symposiums and to take such other measures, as are necessary to raise the standard of secondary education in the State ; (13) institute and award Scholarships, medals and prizes under conditions that may be prescribed; and (14) do all such other acts and things as may be requisite in order to further the objects of the Board as a body constituted for regulating and supervising secondary education in the State. " Sec. 28 lays down in what manner the State Government is to exercise control over the Board. Sec. 36 empowers the Board to make regulations and its material portions are as follows : - "36. Powers of the Board to make Regulations - (1) The Board may make regulations for the purposes of carrying into effect the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, the Board may make Regulations providing for all or any of the following matters, namely; - (a) the procedure of the Board and its committees; (b) the conferment of diplomas and certificates; (c) the courses of study to be laid down for all certificates and diplomas; (d) the conditions under which candidates shall be admitted to the examinations of the Board and shall be eligible for diplomas and certificates; (e) the fees for admission to the examinations of the Board; (f) the conduct of examinations; . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 37 provides that the first Regulations of the Board shall be made by the State Government. The Regulations that were made provided for various matters,, e. g. the conduct of the meetings of the Board and its various committees, the functions of the Secretary, committees of courses, examinations committee, results committee, and various other matters, with which we are not concerned. Chapter XV of the Regulations made provision for private candidates. It is provided therein that private candidates shall be eligible to appear at the secondary school and higher secondary examinations of the Board on the conditions laid down in these Regulations. Chapter XVIII provides for secondary school examination and it lays down that candidates for the secondary school examination, other than those appearing as private candidates, shall have attended a regular course of study for two academic years prescribed by the Board. Regulation 10 of that Chapter was as follows : - "10. Notwithstanding anything contained in these regulations, no candidate shall be allowed to appear at the Secondary School Examination unless he would complete the age of 15 years on the 1st October of the year in which he intends to take the examination. " Chapter XIX provides for higher secondary examination and lays down rules for eligibility and provides for other matters. We give below Regulation No. 11 which is as follows : - "11. Notwithstanding anything contained in these Regulations, no candidate shall be allowed to appear at the Higher Secondary Examination unless he would complete the age of 16 years on the 1st October of the year in which he intends to take the examination. " It appears that when the Government made the first Regulations, Regulation No. l was not there. In April, 1963 the Board resolved to lay down the minimum age for the candidates appearing at the secondary school and Higher Secondary examination; with effect from 1965 for secondary school examination and with effect from 1966 for higher secondary examination The grounds on which this Regulation is challenged will be stated hereinafter while narrating the facts. We may now first recount the facts in Miss Kuntal Gupta's writ petition. Miss Kuntal Gupta is a student of Maharaja's Girls 'multipurpose Higher Secondary School, Jaipur and is studying in the Xlth class of the three year's integrated course prescribed for the High Secondary School Examination. Her date of birth was 8. 11. 1951. Her grievance is that on account of her age, Regulation 11 stands in her way in her taking the Higher secondary school examination. She joined the 8th class of the Maharaja's Girls Multipurpose Higher Secondary School, Jaipur on 13. 12. 1962 and while filling in her admission form she gave her age. She proceeds to say that she passed the examination of Class VIII held in April, 1963 and secured third rank in her class. In July, 1963 she was admitted to class IX, i. e. , first year of the three years' integrated course for Higher secondary examination. She proceeds to say that she passed the IXth class examination with credit standing first in the class and joined the Xth class in July, 1964. At the Xth class she appeared in certain subjects at the part I examination of the Higher secondary course and secured 57% marks. At the annual examination of her class in the remaining subjects she secured again the first rank. In July, 1965 she joined the Xlth Class, which is the final year of the three years' integrated course for Higher-Secondary examination. She completed her studies but when she wanted to appear at the examination, she was not allowed to do so on the ground that she had not completed the prescribed minimum age as per Regulation 11. The case of the other petitioner Subhash Chandra is that he was born on 22. 7. 1951. He passed his VIIth class examination in May, 1962 and thereafter he was admitted to the Mahilabagh Higher Secondary School in Jodhpur in the IXth Class in the same year. He passed his IXth class and thereafter joined the Xth class which he passed on 12. 5. 1964. He appeared at the Higher Secondary Examination of the Board held in the year 1965, but unfortunately he failed. In 1965 he applied for appearing as an ex-student in the Higher Secondary Examination of the Board to be held in the year 1966, but his application was rejected on 24. 12. 1966 on the ground that he had not attained the minimum age prescribed by Regulation No. l l. It was petitioner's double misfortune that when there was no bar he failed and when he wanted to attempt second time, he was faced with the age ban. It is in these circumstances that the validity of Regulation No. 11 made by the Board is impugned in these two writ petitions. The writ petitions have been opposed on behalf of the Board. A two fold argument is advanced on behalf of Miss Kuntal Gupta: (1) That the regulation is bad because it is beyond the scope of the Board's authority as contained in sec. 36 (2) (d) of the Act. It is pointed out that under this section the Board can only lay down the conditions for the examinations and in doing so it can make provisions as for only such conditions as were germane to the conduct of the examination It is pointed out that under this section the Board can only law down the conditions for the examinations and in doing so it can make provisions for only such conditions as were germane to the conduct of the examination. It is pointed out that can be pertaining to (a) subject of the examination; (b) courses of study; (c) training at the recognised higher secondary schools; and (d) acquiring a certain minimum proficiency at the school examination, but according to the petitioner the Board could not lay down any such condition regarding the minimum age of a candidate at an examination. It is urged that the Board is only a subordinate rule making authority and, therefore, its powers, which are derived from the statute, have to be strictly construed. The second ground of attack is based on Article 14 of the Constitution. It is submitted that prescribing a minimum age only for the examination and not for the admission to study was arbitrary because the underlying object of the Act was thereby not served. It is maintained that the classification of candidates on the ground of age at the examination was neither rational, nor was it based on any intelligible differentia. Further the basis of differentiation did not have any rational nexus with the avowed policy or object of the Act. Lastly, it was urged that at the time of the admission Miss Kuntal Gupta was not told that any age bar had been imposed and if she were told like that, she might have thought of going to any place outside Rajasthan where such a ban did not exist.
(3.) IN the case of Subhash Chandra it is urged, besides what is contended for in Miss Kuntal Gupta's case, that as the petitioner joined the three years' integrated course for the higher secondary examination prior to the imposition of the ban, the same should not operate against the petitioner. It is pointed out he has acquired a vested right to pursue his studies under the state of things as they existed at the time of his joining the three years' integrated course. IN other words, it is urged that we should so construe the Regulation No. 11 that it is held inapplicable to Subhash Chandra. Both the writ petitions are opposed. Mr. Agarwal appearing for the Board submits that the prospectus for the secondary examination, 1965 and the Higher Secondary school examination, 1966, was issued as early as June, 1963 before the candidates joined the three years' integrated course for the examination in question and therefore Miss Kuntal Gupta should not be heard to say that she was unaware of the ban. It is pointed out that Regulation 11 has been reproduced at page 36 of the prospectus. It is denied by the Board that the Regulation No. 11 was bad on any of the grounds mentioned by the learned counsel for the petitioners. We may first deal with the question whether Regulation No 11 falls beyond the scope of powers conferred on the Board for making the Regulations. Sub-sec. (1) of Sec. 36 contains the generality of powers which are exercisable for the purposes of carrying into effect the provisions of the Act. Purposes of this Act obviously are to re-organise, regulate and supervise the system of secondary education in the State on modern, scientific and progressive lines. It is with this view that various powers and functions have been conferred on the Board by sec. 9 of the Act. The Board has the power to prescribe courses of instructions, to conduct public examinations at the end of the secondary stage, recognise institutions for the purposes of examinations, admit candidates to the examinations of the Board, and adopt measures to promote the physical, moral, cultural and social welfare of the students and to do all such other acts and things as may be requisite in order to further the objects of the Board as a body constituted for regulating and supervising secondary education in the State. A perusal of section 36 shows that while sub-sec. 1 contains the general power, sub-sec. 2 confers powers in particular and without prejudice to the generality of that power, the Board may provide for all or any of the matters specified in sub-sec. 2 of sec. 36 by its regulations. We are, therefore, unable to hold that it was beyond the powers of the Board to lay down the condition of minimum age for the candidates for taking the examination of the Board. Also we fin d ourselves unable to put a narrow construction of S. 36 and thereby limit the powers of the Board to putting down of only such conditions as pertain to the subject of examination, the courses of study, and training at the recognised schools or those for requiring minimum proficiency at the school examination as contended by the petitioners. We are, therefore, unable to find any substance in the first contention. Turning now to the second contention, we may observe that learned counsel for Miss Kuntal Gupta place reliance on the following passage in Kangs-hari Haldar vs. The State of West Bengal (1): - "in considering the validity of the impugned statute on the ground that it violates Art. 14 it would first be necessary to ascertain the policy underlying the statute and the object intended to be achieved by it. In this process the preamble to the Act and its material provisions can and must be considered. Having thus ascertained the policy and the object of the Act the court should apply the dual test in examining its validity. Is the classification rational and based on intelligible differentia; and, has the basis of differentiation any rational nexus with its avowed policy and object? If both these tests are satisfied, the statute must be held to be valid; and in such a case the consideration as to whether the same result could not have been better achieved by adopting a different classification would be foreign to the scope of the judicial enquiry. If either of the two tests is not satisfied, the statute must be struck down as violative of Art. 14. " Learned counsel submits that any classification which is adopted by the rule making authority must satisfy the dual test viz. , whether the classification was rational and based on intelligible differentia, and whether it has a rational nexus with the avowed policy and object underlying the enactment. Learned counsel grants that the object underlying the imposition of ban may be a wholesome one being to prevent stunted growth of students both mentally and physically. He however, maintains that although this may be a relevant consideration for controlling admissions to institutions, but when there is no such ban on the basis of age regarding admissions, putting the ban only at the time of the examination, according to him, is in no way calculated to achieve the object of imposing such a ban. Learned counsel goes on to say that once the student embarks on the course of study, exerts himself and is ready to take the examination, then if at that stage he or she is confronted with a ban, the purpose in view is not only not served but it results in a frustration to the student. In the particular case he points out that Miss Kuntal Gupta has had all along a brilliant career, and she has studied upto the Xlth class and if she is now asked to wait for two years more, this would be highly irrational. Learned counsel admits that for the college education minimum age of 16 years for entering the three years' degree course is prescribed in most of the Indian Universities, but he submits that each and everybody who passed the Higher Secondary examination is not going to join any University, and, therefore, this should be no consideration in justification of the age barrier created for the higher secondary examination. It is true that the classification has to be rational and one based on intelligent differential and, also the basis of the differentiation has to have a rational nexus with the avowed policy and object of such a classification, but it 1ms been recognised in the very case cited by the learned counsel that in the application of said principles to the different sets of fact presenter! by different cases, emphasis may shift and the approach may not always be identical ; but it is inevitable that the final decision about the vires of any impugned provision must depend upon the decision which the courts reach having regard to the facts and circumstances of each case, the general scheme; of the impugned Act and the nature and effect of the provisions, the vires of which are under examination. Their Lordships reiterated in this case what was said in Chiranjitlal Chaudhri vs. Union of India (2) that if any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. Now the object of the Act is undoubtedly to develop the system of secondary education, and this too on modern and progressive lines. Therefore, if examinations are taken to be the mile-stones in the progress of one's education and if the taking of education is made to depend upon the maturity of mind and body that a person develop with his or her age, then one cannot say that classification based on age for the taking of an examination is not rational or that it is not in keeping with the underlying object of the enactment. System of examinations is integral part of imparting of education and the education of a person is inevitably judged on the basis of an examination that one has passed. For taking secondary examination of the Board, it is not necessary that one should have joined any institution. For certain specified subjects a candidate who had not studied at any school at all. can take the examination. This is evident from the scheme of Chapter XVIII of the Regulations. In the circumstances, imposing of an age bar for admission to any educational institution may not serve the purpose in view as private candidates in that event will remain unaffected. Therefore, if taking note of the eligibility of private candidates for an examination, the Board thought fit only to impose a ban on the ground of age for the examination, we are unable to hold that such a ban is not capable of serving the purpose in view. Moreover, a particular purpose need not be fully served by a particular provision. Furthermore, the existence of the ban for taking the examination is bound to induce the students and their parents or guardians in the long run to so plan their education that the course will be completed only by the time they reach the prescribed age and in this way the underlying object of inducing healthy growth of students in body and mind may very well be achieved. ;