Secretary,Muslim ... vs State Of Kerala & Ors

Muslim Educational Association, Karimbam

(hereinafter referred to as the `Appellant'), which

is a Society registered under the Societies

Registration Act (Central Act 21/1860). The

Appellant had established Sir Syed College in 1967

1 and it was imparting degree courses along with some

pre-degree courses in various streams constituting

11 batches of a total of 80 students in each batch.

3. The Respondents, took a policy decision to abolish

the Pre-degree Courses conducted in the colleges and

enacted the Pre-degree Courses (Abolition) Act,

1997.

4. Subsequently, the respondents decided that those

colleges which were running classes up to High

School may be allowed to add classes up to the 12th

standard in place of pre-degree courses. Those

colleges which did not have any classes till the

High school level were to be allowed to run High

Schools and were also to be allowed Higher Secondary

courses. Notice inviting applications from the

management of schools, both government as well as

private, and from colleges were issued for the first

time for the academic year 1997-1998 vide

notification dated 2.04.97.

2

5. The policy decision of the Government in this regard

was upheld by the High Court by judgment dated

29.8.2002 in W.A.No.2716/2000.

6. The mode of implementation of this policy was the

subject matter of a series of litigations where the

Respondents were accused of discrimination. The

Appellant before us has a similar grievance.

7. Writ Petition(C) No. 11167 OF 2006 was filed by the

appellant challenging the non-sanctioning of the

Higher secondary courses to its school. The other

connected Writ Petitions which were disposed of by

the impugned judgment were filed by the management

or the teachers of the neighbouring schools,

challenging the grant of a High school to the

Appellant.

8. The Appellant had been applying for Higher Secondary

courses ever since 1996. However, its applications

were not considered by the respondents in light of

the policy that the Government was allowing only

those applicants who already had existing High

Schools. Since many of the managements did not have

3 High Schools to start higher secondary courses, the

Government issued a preliminary notification on

25.06.1998 for starting High Schools at a certain

number of designated places as per Chapter V

Rule(2) Sub-rule(2)of the Kerela Education Rules,

1959. The ward to which the Appellant belonged i.e.

ward No. 15 of Taliparamba Municipality was also

included in the earlier notification dated

13.06.2000 but it was excluded subsequently as the

Government received some objections. An O.P. No.

29989/99 was filed by the Government wherein the

High Court directed that the case of the Appellant

be considered. Pursuant to this direction, the

Appellants were given an assurance that they will be

given the High School as and when the financial

position of the Government improves.

9. Then by an order dated 31.05.2003, ten schools were

given the sanction to open aided High Schools but

the appellant was denied the same facility.

10. After repeated representations before the

respondents, the appellant was sanctioned a High

School and a Higher Secondary School in ward No. 15

4 of Taliparamba Municipality after a decision to that

effect was taken in a meeting dated 08.10.03 of the

Council of Ministers, as a special case.

11. But the said decision for sanction of Higher

Secondary classes was not implemented in the light

of the decision of the High Court in W.P.(C). No.

29124/03 wherein the High Court had directed the

Respondents that newer Higher Secondary schools were

not to be sanctioned by them without further orders

from the Court.

12. Subsequently, in partial implementation of the order

of 08.10.03, it started a High School from 9.8.2004

pursuant to the said order and the classes commenced

during the academic year 2004-05 and the School

became a complete High School during the academic

year 2006-07.

13. In view of repeated representations of the appellant

Association, the State Cabinet on 13.10.2005 decided

to grant three batches of Higher Secondary courses

to the appellant in the aided sector, subject to

getting the permission of this Court. For this

5 purpose, the Government filed I.A. No.1816/06 in

W.P.(C) No.22532/04 and connected cases. But, High

Court dismissed the said application, on the ground

that the aggrieved persons may approach the Court.

14. Thereupon a Writ Petition was filed by the appellant

seeking mainly the relief that the High Court may

issue a writ in the nature of mandamus or any other

appropriate writ, order or direction directing the

respondents to sanction an aided Higher Secondary

school to the appellant herein, as was done in the

case of other aided college managements, so that the

higher secondary school can commence functioning

during the academic year 2006-07 itself.

15. Alleging discrimination in general, it was the

specific contention of the Appellant in the Writ

Petition that while other managements were being

granted High Schools and Higher Secondary Schools

simultaneously or immediately, one after the other,

the appellant herein was not sanctioned Higher

Secondary School after the sanction of the High

School. It also prayed that the order of 08.10.03 by

which the Government had already granted Higher

6 Secondary courses to the appellant may be

implemented.

16. The question before the High Court was whether the

Higher Secondary school was to be sanctioned to the

Appellant as per the old policy and the subsequent

orders or in view of the new policy as per the

G.O.(P)No.107/07/G.Edn dated 13.6.2007, which was

produced by the Respondents before the High Court

along with a memo, containing the norms for

sanctioning new schools, courses etc. Respondents in

their Counter Affidavit had contended before the

High Court that in view of the various allegations

of discriminations against it, it is planning to

review the entire matter afresh by appointing a

Committee. It was urged before the High Court in its

affidavit that vide the order dated 19.8.2006, it

had formed a Committee to look into the allegations

of irregularities in the sanctioning of the High

Schools and Higher secondary schools. It was also

urged that by the order dated 22.8.2006, the

Government was to set up a Committee to review the

irregularity in the sanctioning or the upgradation

of several schools in the aided sector in violation

7 of the procedure prescribed in the Kerela Education

Rules after the period of 1.1.2003. It further

contended that in view of the above, the old

sanction for a Higher Secondary school given to the

appellant did not hold good anymore and the

respondents contended that the appellant's case

would be considered afresh after it would formulate

new norms as per the findings of the above appointed

Committees. Thus, it subsequently passed the new

G.O. dated 13.6.2007.

17. The Hon'ble High Court while dismissing the

appellants' Writ Petition held that the earlier

orders governing grant of Higher Secondary Schools

was no longer valid and has been replaced by the new

order G.O.(P) No.107/07/G.Edn dated 13.6.2007 and

the Appellant does not have any statutory right to

get the sanction of running Higher Secondary classes

18. It also held that the Government did not owe a

corresponding duty to the appellant to sanction the

school as per the previous order and that "...the

Government cannot be tied down to a policy

8 permanently. It should be conceded freedom to change

it from time to time".

19. The High Court shared the apprehension that if it

orders the Government to sanction a Higher Secondary

School to the appellant herein, it may impinge upon

the budgetary allotment of Government funds. This,

it held that sanction of this course, was a

Government function on which a Court cannot step in.

In coming to this finding the Hon'ble High Court

relied on a decision of the Court of Appeal in R. v.

Cambridge Health Authority, ex p B [(1995)2 All ER

129] where the Court of Appeal refused to interfere

with the validity of a decision of the Health

Authority of not alloting funds for the treatment of

a child. High Court also referred to the decision

in the case of State of H.P. and another v. Umed Ram

Sharma [(1986) 2 SCC 68].

20. The respondent No. 4 before this Court moved an

application for impleadment as a necessary party in

the W.P.(C) No. 11167 OF 2006 before the High Court

and which was allowed by the High Court. In its

Counter Affidavit, the Respondent No. 4 had

9 challenged the Writ Petition on the ground that the

sanctioning of the High School to the Appellant

itself is illegal and has been made in violation of

the Rules in Chapter V of the Kerela Education

Rules. It was also contended that the sanction of

the Higher Secondary school to the Appellant would

prejudice other schools in the nearby area and would

also not be necessary as the number of existing

schools are enough for that area. This issue was

heard with the other connected Writ Petitions.

21. In the connected writ petitions, the main challenge

was with respect to the sanction of a High School to

the Appellant on the ground that it was done in

violation of the Rule 2A of Chapter V of the Kerela

Education Rules. These writ petitions were filed

either by the managers or the teachers of the

schools. They contended that in case of an already

existing statutory provision governing a particular

field, the implementation of a new scheme under the

provision can only be done by amending the existing

provision; in this case, Rule 2, Chapter V of the

Kerela Education Rules.

10

22. The High Court while rejecting the Writ Petition

upheld the government's right to change its policy

and also opined that the government cannot be tied

to any policy. After coming to this conclusion, the

High Court held that in the context of the changed

policy of the government, it is not proper for the

Court to interfere.

23. This Court is of the opinion that so far as the

right of the government to change its policy is

concerned, the High Court's conclusion is correct.

The High Court is equally right in holding that the

government cannot be tied down to any policy. But

unfortunately, the High Court did not examine the

impact of the government policy on the admitted

facts and circumstances of the case. This Court is

of the opinion that High Court especially the Writ

Court cannot take a mechanical or strait jacket

approach in this matter.

24. It appears that the appellant is a religious

minority. As a religious minority, it has a

fundamental right to establish and administer

educational institutions of its choice in view of

11 the clear mandate of Article 30. Apart from the

fundamental right of the appellant to establish and

administer an educational institution, the right of

the appellant to get the sanction of running a Class

XII School was also accepted by the government to

the extent that the government applied to the High

Court for its permission to seek an order for

implementation of its decisions dated 08.10.03 and

13.10.05 whereby sanction was given to the appellant

to run Higher Secondary Courses. Those decisions of

the government to sanction higher secondary courses

in favour of the appellant could not be implemented

in view of the order of the High Court dated

05.04.06 to the effect that the High Court wanted

the aggrieved persons to approach the Court. In the

background of these facts, the writ petition was

filed and during the pendency of the writ petition

came the revised policy of the government. In that

policy, it has been made very clear that there is no

need to sanction or upgrade government or aided

schools in the normal course.

25. The High Court should have appreciated the facts of

the case and come to the conclusion that the

appellant's case does not come under the normal

12 course. But the High Court refused to do so and

took, as noted above, a mechanical approach.

26. The High Court in support of its decision relied on

the judgment of the Court of Appeal in Cambridge

Health Authority (supra). That was a case of refusal

to allocate funds for the treatment of a minor girl

who was 10= years old. The child was suffering from

non-Hodgkins Lynphona with common acute

Lymphoblastic Leukaenia. It was thought that no

further treatment was possible except giving the

child palliative drugs. The child's father sought

further medical opinion and experts advised a second

bone marrow transplant, which could only be

administered privately and not in a National Health

Service hospital, and that too with 10 to 20%

chances of success. In the background of these facts

the child's father requested the health authority to

allocate funds amounting to #75,000 for the proposed

treatment which the health authority refused. The

father of the child applied for a judicial review of

the decision of the health authorities. The question

was what the Court should do in such a situation?

13

27. The learned single judge quashed the decision of the

health authority and directed it to reconsider its

decision. Then on appeal against the decision of the

learned single judge, the Court of Appeal allowed

the appeal. Sir Thomas Bingham, Master of Roll,

presiding over the Court of Appeal held that the

learned Single judge failed to recognize the

realities of the situation. Considering the

constraints of budget on the health authority, the

Master of Roll held:-

"Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticised for not advancing before the court"

(See at page 137, placitum `F')

28. But the facts of this case do not have even a remote

resemblance to the facts in Cambridge Health

Authority (supra). In this case the government was

willing to sanction the higher secondary classes to

the appellant-institution and to the effect applied

to the High Court for getting the necessary

permission and that application of the government

14 was disposed of by the Court in the manner indicated

above. In between came the change of policy but

financial crunch was never the reason for denying

the prayer of the appellant to run the higher

secondary course.

29. While dismissing the Writ Petition, the High Court

also relied on the decision of this Court in the

case of Umed Ram (supra).

30. In Umed Ram (supra), the Respondents, who were poor

harijans in the State of Himachal Pradesh wrote a

letter to the High Court of Himachal Pradesh

complaining about the incomplete construction of the

road and also complained of the fact that such

construction has been stopped in collusion with the

authorities causing immense hardship to the poor

people and that is why the Court's intervention was

prayed for. The Court treated the said letter as a

writ petition and directed the superintending

engineer of PWD to complete the work in the course

of the financial year.

15

31. The superintending engineer before the High Court

gave an estimate that for the purposes of the

widening of the road, Rs. 95,000/- was required but

only Rs. 40,000/- was available in the course of the

current financial year. Before this Court,

Government challenged those directions of the High

Court questioning the High Court's jurisdiction

under Article 226 of the Constitution to direct the

State Government to allot particular funds for

expenditure in addition to the funds already

allotted and thus regulate the residual financial

matters of the State.

32. The Government raised questions on the basis of

Articles 202-207 of the Constitution pointing out

the Government's exclusive domain in financial

matters as indicated in those articles. The three

judge bench of this court considered the matter in

detail and ultimately upheld the High Court's

directions as not transgressing the limit, in view

of the provisions of Articles 38, 19 and 21 of the

Constitution. [See para 39, pg. 82-83]

16

33. Therefore, this decision does not support the

conclusion reached by the High Court in this case.

On the other hand, the decision in Umed Ram (supra)

upheld the power of the Court to act in public

interest in order to advance the constitutional goal

of ushering a new social order in which justice,

social, economic and political must inform all

institutions of public life as contemplated under

Article 38 of the Constitution.

34. Paragraph 21 of the judgment in Umed Ram (supra)

which has been quoted by the High Court does not

constitute its ratio. The High Court, therefore,

with great respect, failed to appreciate the ratio

in Umed Ram (supra) in its correct perspective.

35. While dismissing the writ petition the Hon'ble High

Court with respect, had taken a rather restricted

view of the writ of Mandamus. The writ of Mandamus

was originally a common law remedy, based on Royal

Authority. In England, the writ is widely used in

public law to prevent failure of justice in a wide

variety of cases.

17

36. In England this writ was and still remains a

prerogative writ. In America it is a writ of right.

(Law of Mandamus by S.S. Merrill, Chicago, T.H.

Flood and Company, 1892, para 62, page 71).

37. About this writ, SA de Smith in `Judicial Review of

Administrative Action', 2nd edn., pp 378 & 379 said

that this writ was devised to prevent disorder from

a failure of justice and defect of police and was

used to compel the performance of a specific duty.

38. About this writ in 1762 Lord Mansfield observed that

`within the past century it had been liberally

interposed for the benefit of the subject and

advancement of justice'.

39. The exact observations of Lord Mansfield about this

writ has been quoted in Wade's `Administrative Law,

Tenth Edition' and those observations are still

relevant in understanding the scope of Mandamus.

Those observations are quoted below:-

"It was introduced, to prevent disorder from a failure of justice, and defect of police. Therefore it ought to be used upon all occasions where the law has established no

18 specific remedy, and where in justice and good government there ought to be one.....The value of the matter, or the degree of its importance to the public police, is not scrupulously weighed. If there be a right, and no other specific remedy, this should not be denied. Writs of mandamus have been granted, to admit lecturers, clerks, sextons, and scavengers & c., to restore an alderman to precedency, an attorney to practice in an inferior court,& c." (H.W.R. Wade & C.F. Forsyth:

Administrative Law, 10 th Edition, page 522-

23).

40. De Smith in Judicial Review, Sixth Edition has also

acknowledged the contribution of Lord Mansfield

which led to the development of law on Writ of

Mandamus. The speech of Lord Mansfield in R Vs.

Blooer, (1760) 2 Burr, runs as under:

"a prerogative writ flowing from the King himself, sitting in his court, superintending the police and preserving the peace of this country".(See De Smith's Judicial Review 6th Edition, Sweet and Maxwell page 795 para 15-

036.

41. Almost a century ago, Darling J quoted the

observations in Rex Vs. The Justices of

Denbighshire, (1803) 4 East, 142, in The King Vs.

The Revising Barrister etc. {(1912) 3 King's Bench

518} which explains the wide sweep of Mandamus. The

relevant observations are:

19

"..Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable...."

(See page 529)

42. At page 531 of the report, Channell, J said about

Mandamus:

"It is most useful jurisdiction which enables this Court to set right mistakes".

43. In Dwarka Nath Vs. Income Tax Officer, Special

Circle, D. Ward, Kanpur and another - AIR 1966 SC

81, a three-judge Bench of this Court commenting on

the High Court's jurisdiction under Article 226

opined that this Article is deliberately couched in

comprehensive language so that it confers wide power

on High Court to `reach injustice wherever it is

found'.

44. Delivering the judgment Justice Subba Rao (as His

Lordship then was) held that the Constitution

designedly used such wide language in describing the

nature of the power. The learned Judge further held

that the High court can issue writs in the nature of

prerogative writs as understood in England; but the

20 learned Judge added that the scope of these writs in

India has been widened by the use of the expression

"nature".

45. Learned Judge made it very clear that the said

expression does not equate the writs that can be

issued in India with those in England but only draws

an analogy from them. The learned Judge then

clarifies the entire position as follows:

"..It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constituion with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself...."

(See para 4, page 85)

46. Same view was also expressed subsequently by this

Court in J.R. Raghupathy etc. Vs. State of A.P. and

Ors. - AIR 1988 SC 1681. Speaking for the Bench,

Justice A.P. Sen, after an exhaustive analysis of

the trend of Administrative Law in England, gave His

21 Lordship's opinion in paragraph (29) at page 1697

thus:

"29. Much of the above discussion is of little or academic interest as the jurisdiction of the High Court to grant an appropriate writ, direction or order under Article 226 of the Constitution is not subject to the archaic constraints on which prerogative writs were issued in England. Most of the cases in which the English courts had earlier enunciated their limited power to pass on the legality of the exercise of the prerogative were decided at a time when the Courts took a generally rather circumscribed view of their ability to review Ministerial statutory discretion. The decision of the House of Lords in Padfield's case (1968 AC 997) marks the emergence of the interventionist judicial attitude that has characterized many recent judgments."

47. In the Constitution Bench judgment of this Court in

Life Insurance Corporation of India vs. Escorts

Limited and others, [(1986) 1 SCC 264], this Court

expressed the same opinion that in Constitution and

Administrative Law, law in India forged ahead of

the law in England (para 101, page 344).

48. This Court has also taken a very broad view of the

writ of Mandamus in several decisions. In the case

of The Comptroller and Auditor General of India,

Gian Prakash, New Delhi and another Vs. K.S.

Jagannathan and another - (AIR 1987 SC 537), a

22 three-Judge Bench of this Court referred to

Halsbury's Laws of England, Fourth Edition, Volume I

paragraph 89 to illustrate the range of this remedy

and quoted with approval the following passage from

Halsbury about the efficacy of Mandamus:

"..is to remedy defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right, and it may issue in cases where, although there is an alternative legal remedy yet that mode of redress is less convenient beneficial and effectual." (See para 19, page 546 of the report)

49. In paragraph 20, in the same page of the report,

this Court further held:

"...and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it property and lawfully exercised its discretion"

50. In a subsequent judgment also in Shri Anadi Mukta

Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti

Mahotsav Smarak Trust and Ors. Vs. V.R. Rudani and

Ors. - AIR 1989 SC 1607, this Court examined the

development of the law of Mandamus and held as

under:

23

"21. ..........mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter common law, custom or even contract."

(Judicial Review of Administrative Act 4th Ed. P. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available `to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition." (See page 1613 para 21).

24

51. The facts of this case clearly show that appellant

is entitled to get the sanction of holding higher

secondary classes. In fact the Government committed

itself to give the appellant the said facility. The

Government's said order could not be implemented in

view of the court proceedings. Before the procedural

wrangle in the court could be cleared, came the

change of policy. So it cannot be denied that the

appellant has a right or at least a legitimate

expectation to get the permission to hold Higher

Secondary classes.

52. The appellant is a minority institution and its

fundamental right as a religious minority

institution under Article 30 also has to be kept in

view.

53. It is therefore really a case of issuance of

mandamus in the appellant's favour. Merrill on

Mandamus has observed that it would be a monstrous

absurdity if in a well-organized government no

remedy is provided to a person who has a clear and

undeniable right. It has been also observed where a

25 man has a jus ad rem (a right to a thing) it will be

`absurd, ridiculous and shame to the law, if Courts

have no remedy and the only remedy he can have is by

mandamus.' [See para 11, pages 4-5]

54. For the reasons aforesaid this court cannot uphold

the judgment passed by High Court in W.P. No.11167

of 2006. The judgment is set aside and this court

directs the respondent state to sanction Higher

Secondary course in the appellant's institution from

the next academic session with this rider that the

appellant must follow the extant statutory

procedures for the appointment of teachers in the

Higher Secondary section.

55. The appeal is allowed. Parties are left to bear

their own costs.

.....................J. (G.S. SINGHVI)

.....................J. (ASOK KUMAR GANGULY)

26 New Delhi May 7, 2010

27