Case: Naraindas Indurkhya Vs. The State of Madhya Pradesh & Others


Decision:
1[ds]It is clear that the State of Punjab had done no act which infringed a right of any citizen: the State had merely entered upon a trading venture. By entering into competition with the citizens, it did not infringe their rights." It would, therefore, seem that the State Government could prescribe these 28 text books in exercise of its executive power provided that such action did not infringe the rights of any one.The action of the State Government in prescribing 28 text books printed and published by the Text Books Corporation, to the exclusion of other text books on the subjects, did not, therefore, infringe any right of the petitioner and other publishers and it was within the executive power of the State Government. This view is completely supported by the decision in Ram Jawayas case18. It must, therefore, follow that 28 text books printed and published by the Text Books Corporation were validly and lawfully prescribed by the State Government in exercise of its executive power and they were in force immediately before the appointed day. These text books, accordingly, fall within the category of prescribed text books under sub-section (2) of Section 4, and under Section 4 sub-section (3) the approved and recognized schools were under an obligation to use these text books and no others so far as they are related to the subjects for which they were prescribed20. It is, therefore, clear, and this conclusion can hardly be disputed, that the prescription of text books on languages was outside the power of the Board and hence it was ultra vires and had no binding effect which would oblige the schools to use only these text books and no others. These text books could not in the circumstances be said to be prescribed by the Board, nor could they be said to be in force immediately before the appointed day so as to attract the applicability of Section 4, sub-s. (2), and they could not claim the status of prescribed text books under S. 4, sub-s. (2). These text books could not also be regarded as text books prescribed under Section 4, sub-s. (1) on the basis of the notification dated 28th March, 1973. It is only the State Government and not the Board, which is given power under Section 4, sub-sec. (1) to prescribe text books, and therefore, the notification dated 28th March, 1973, which was issued by the Board and not by the State Government, was futile and ineffectual and did not have the effect of prescribing these text books under Section 4, sub-s. (1). These text books could not, therefore, be regarded as text books prescribed under sub-s. (1) or referred to in sub-s. (2) of Section 4 and in the circumstances there was no obligation on the approved and recognised schools to use only these text books and no others under sub-s. (3) of S. 4There is no such obligation when a text book is merely recommended. Recommendation has merely a persuasive effect, it being open to the schools to accept the recommendation or to reject is as they think fit. The schools may use the recommended text book or they may not according as the principals choose. That is why no conferment of statutory power is needed to enable the Board to recommend text books and no question of ultra vires can arise in such a case. Now the text books which formed the subject-matter of the notifications dated 5th April, 1972, 25th April, 1972, 26th April, 1972 and 17th May, 1972 were merely recommended and not prescribed by the Board and being only recommended text books as distinguished from prescribed text books, they obviously could not be said to be in force immediately before the appointed day. Section 4, sub-s. (2) did not, therefore, apply in respect of these text books and they could not be regarded as text books prescribed under Section 4, sub-s. (2). The respondents placed strong reliance on the notification dated 28th March, 1973 but it is difficult to see how this notification can be of any help to the respondents. This notification was admittedly issued by the Board and not by the State Government and moreover it did not even purport to prescribe these next books but merely directed that these text books shall be recommended text books for the period commencing from the academic year 1973-74. It is, therefore, not possible to read this notification as representing exercise of power under Section 4, sub-section (1) and the status of prescribed text books could not be accorded to these text books on the strength of this notification. These text books could not accordingly be regarded as prescribed text books either under sub-section (1) or under sub-section (2) of Section 4, and Section 4, sub-section (3) could not be invoked for contending that these text books alone should be used in the approved and recognised schools to the exclusion of text books of other publishersIt is settled law that where the validity of an order depends on the fulfilment of a condition precedent and there is a recital in the order that the condition precedent is satisfied, the presumption arises in favour of the satisfaction of the condition precedent and the burden is on the person challenging the satisfaction of the condition precedent to prove that in fact the condition precedent was not satisfied. See Swadeshi, Cotton Mills v. State of U. P., (1962) 1 SCR 422   = (AIR 1961 SC 1381  ). The petitioner would, therefore, have to show by producing proper and adequate material that though the notification recited that the State Government had consulted the Board prior to the issue of the notification, there was in fact no such prior consultation with the Board. If the petitioner can establish this, the notification would have to be held to be invalid as being in contravention of the proviso to S. 4, sub-s. (1)If, therefore, any power or function of the Board is intended to be made exercisable by the Chairman, that can only be done through the mechanism of the Regulations. The Board cannot, by a resolution passed at a general meeting, authorise the Chairman to exercise a particular power of function entrusted to the Board. The decision of the Board dated 12th October, 1971 relied on cannot therefore, help the respondents even if it were construed as authorising the Chairman to exercise the power of the Board to recommend or give advice in relation to text books to be prescribed by the State Government. But in fact we do not think it can be so construed. This decision merely authorises the Chairman to take all necessary steps for the purpose of proceeding further with the implementation of the text books improvement scheme and it does not confer any authority on him to exercise a power of the Board which he otherwise did not possess. In any event the authority conferred by this decision cannot include the exercise of a statutory function which came to be vested in the Board for the first time on 23rd March, 1973 when Section 4, sub-s. (1) was enacted. We are, therefore, compelled to reach the conclusion that the only consultation which the State Government had before issuing the notification dated 24th May, 1973 was consultation with the Chairman and not with the Board. The recommendation of text books by the appropriate Committee of Courses also could not be regarded as consultation with the Board, because the power or function to give opinion or advice in relation to text books to be prescribed by the State Government came to be conferred on the Board for the first time on the enactment of Section 4, sub-s. (1) and there is no Regulation which delegates this power or function to the appropriate Committee of Courses. It is, therefore, clear beyond doubt that there was no prior consultation with the Board before the State Government issued the notification dated 24th May, 1973 and this notification must accordingly be held to be invalid as being in breach of the mandatory requirement of the proviso to Section 4, sub-s. (1)Nobody is taking away the publishers right to print and publish any books they like and to offer them for sale but if they have no right that their books should be approved as text books by the Government it is immaterial so far as they are concerned whether the Government approves of text books submitted by other persons who are willing to sell their copy rights in the books to them, or chooses to engage authors for the purpose of preparing the text books which they take up on themselves to print and publish. The action of the Government does not amount to an infraction of the fundamental right guaranteed by Article 19 (1) (g) of the ConstitutionThese observations are equally applicable where the State Government instead of prescribing text books in exercise of its executive power does so in exercise of statutory power such as that conferred under Section 4, sub-section (1). No fundamental right guaranteed to the petitioners under Article 19 (1) (g) is infringed if the State Government in exercise of the statutory power conferred under Section 4, sub-section (1) does not prescribe text books printed and published by him. The challenge based on Article 19 (1) (g) must, therefore, failIt can, therefore heardly be disputed that if Section 4, sub-s. (1) were found to confer a naked and arbitrary power on the State Government to select and prescribe such text books as it pleases in exercise of its absolute and uncontrolled discretion without any guiding principle or policy to control and regulate the exercise of such discretion, it would be in violation of the constitutional mandate of equality before law. The State Government would then be able to choose the text book of any publisher it likes and prescribe it as a text book even though it is inferior in quality than the text book of another publisher. That would enable the State Government to exercise its power arbitrarily and capriciously and discriminate at its sweet will between one publisher and another. But we do not think S. 4, sub-s. (1) suffers from this lethal infirmity. It does not vest an arbitrary uncontrolled discretion in the State Government to select and prescribe such text books as it likes irrespective of their merit and quality. The object or purpose for which the power to select and prescribe text books is conferred on the State Government is to ensure uniformity of standard and excellence in instruction which can be achieved only if standardised text books of high quality and merit are used in the schools. This object or purpose furnishes guidance to the State Government in exercising its power of selecting and prescribing text books. The power to select and prescribe text books is thus not an unguided and unfettered power which leaves it free to the State Government to select and prescribe such text books as it may wantonly or capriciously please, but it is a power which is confined and embanked within limits by the object and purpose for which it is conferred. The State Government cannot, therefore, act arbitrarily or capriciously in selecting or prescribing text books but it has to exercise this power in the light of the policy or principle that the best possible text books, possessing the highest degree of merit and quality, should be made available to the students. This standard or criterion, gatherable from the object and purpose of the Statute, controls and regulates the exercise of the power by the State Government and it is by reference to this yardstick that the exercise of the power by the State Government is canalised and kept within bounds. If the State Government in selecting and prescribing text books does not follow this standard or criterion, prescription of text books made by the State Government, and not Section 4, sub-section (1), would be liable to be condemned as invalid. It is not possible to say that arbitrary and uncontrolled power has been vested in the State Government and on that account Section 4, sub-section (1) is badNow it is true, and there can be no doubt about it that the power conferred on the State Government is a large discretionary power and no machinery is laid down by the Legislature which would ensure just and power execution of the power by the State Government but on that account alone the conferment of the power cannot be held to be invalid. Whenever a discretionary power is conferred on any authority, there is always a potential danger of its misuse or abuse, however, much the Legislature may try to hedge it with safeguards. But the mere possibility that the power may be misused or abused cannot per se induce the Court to deny the existence of the power. It cannot be overlooked that the Legislature has confided this power not to any petty official but to the State Government and that itself is a guarantee that the power would be exercised in conformity with the policy or principle laid down in the StatuteWe have no doubt that if the law is administered by the State Government "with an evil eye and an unequal hand" or there is misuse or abuse of power by the State Government, the arms of this Court would be long enough to reach it and to strike down such misuse or abuse with a heavy hand. We may point out that the State Government has not yet made rules under Section 8 of the Act of 1973 prescribing the machinery which it would adopt in selecting and prescribing text books. It is quite possible that when such machinery is prescribed by the State Government it will allay any comprehension of possible misuse or abuse of power by the State Government. if, on the other hand, it is found that such machinery operates so as to deny equality of treatment to private publishers similarly circumstanced, it may become vulnerable to attack under Article 14 of the ConstitutionThat is the reason why the Secondary Education Commission recommended the constitution of a high power committee which would be in charge of the function of selecting and prescribing text books. It is true that under the Act of 1973 there is no provision for constituting such a high power committee and instead, the power to select and prescribe text books is vested in the State Government. But there is nothing to prevent the State Government from setting up an independent high power committee on the lines indicated by the Secondary Education Commission for the purpose of assisting it in the task of selecting and prescribing text books. This can be done by the State Government by making appropriate rules under Section 8 of the Act of 1973 and there is no reason to suppose that the State Government will not do so.Be that as it may, it is clear from the aforesaid discussion that the power to select and prescribe text books conferred on the State Government under Section 4, sub-section (1) is not an unguided and unfettered power and Section 4, sub-section (1) is not liable to be struck down as invalid on the ground of contravention of Article 14, and if that be so. Section 4, sub-section (3) also does not incur the condemnation of that article.