Secretary,
Muslim Educational. Association Vs. State of Kerala & Ors. [2010] INSC 377
(7 May 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4346 OF
2010 (Arising out of SLP (Civil) No.15730 of 2008) Secretary, Cannanore
District Muslim Educational Association, Kanpur ..Appellant(s) Versus State of
Kerala and others ..Respondent(s)
GANGULY,
J.
1. Leave
granted.
2. The
appellant is the Secretary of Cannanore District 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.
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.
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.
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.
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 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 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".
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 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, 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 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).
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.
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