IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5544 of 2006 PRIMARY-CUM-MIDDLE SANSKRIT SCHOOL, Kishanpur Yusuf, P.O Kishunpur Yusuf, P.S. Sarairanjan, District- Samastipur through its Headmaster Ramashray Prasad s/o late Sukhdeo Prasad,Resident of village & P.O. Khalispur, P.S. Sarairanjan, District- Samastipur. Versus 1.THE STATE OF BIHAR through the Secretary, Human Resources Development Department, Government of Bihar, Patna. 2.The Additional Finance Commissioner (Expenditure),Finance Department, Government of Bihar, Patna. 3.Sanskrit Education Board through its Chairman, East Boring Canal Road, Patna. ----------- For the Petitioner : Mr.Amit Shrivastava For respondent nos. 1 and 2: Mr.Alok Kumar, A.C. to G.A.1 For respondent no.3 :Mr.Awadhesh Prasad Sinha. 9 17.5.2011 By this writ petition, the petitioner has sought quashing of the order dated 13.2.2006 passed the Additional Finance Commissioner (Expenditure), Government of Bihar, Patna, as contained in Annexure 1, whereby on behalf of the Government, he has refused to approve the grant of financial aid to the petitioner school and further for issuance of an appropriate writ or direction to the respondents to grant financial aid to the school , in question, as per policy of the Government itself, which was prevailing at the relevant time. A counter affidavit has been filed on behalf of the respondent- Sanskrit Education Board, which is on record. The petitioner has filed rejoinder. The writ petition was filed in the year 2006 and over the years has been adjourned several times for the State to file a comprehensive counter affidavit but inspite of it no counter affidavit is filed. - 2 - The writ petition is finally heard for disposal at this stage itself with the consent of the parties. The facts do not appear to be disputed .Even though no counter affidavit has been filed by the State, the material facts have already been noticed by this Court and the Apex Court in earlier proceedings and as such are not in dispute. The petitioner is a Sanskrit School, which was established in the year 1977. It has teachers including the Headmaster. All have requisite qualifications and within the sanctioned limit. The school is functional since 1977 itself. It appears that at the relevant time, the Sanskrit Schools were to be recognized by Kameshwar Singh Darbhanga Sanskrit University. In 1982, the Bihar Sanskrit Education Board Act, 1981 was enacted and the responsibility was shifted to the Board constituted there under. It may be noticed here that 1981 Act was the result of series of Ordinances, which were issued in that regard since 1980. It appears that the petitioner had made an application for recognition as per the policy of the government and the legislation in that regard. It further appears that the Board which was constituted under the said Act being Sanskrit Shiksha Board suo moto granted recognition to large number of Sanskrit Schools without approval of the State Government and later realizing this, cancelled all those recognition. It is pertinent to note here that at that time the State - 3 - Government policy admittedly was that all Sanskrit Schools , which were established and were duly recognized would become entitled to grant in the shape of aid from the State government. This led to large number of schools being established. The State Government then constituted a One Man Committee known as Dr.Damodar Thakur Committee and the State Government by its resolution dated 21.5.1983 directed the said Committee to submit its report within six months. The resolution was duly notified in the official gazette . The Committee was to submit its report with regard to recognition of different schools. The term of the Committee was extended as well. Ultimately, the Committee submitted its reports in phases. In the first phase, the Committee gave report in respect of 204 schools having examined them and found them fit for recognition. In the second phase, the Committee recommended in respect of 22 more schools. Petitioner’s school is included in the second phase i.e. 22 schools. While these enquiries were pending, the State Government came out with a policy resolution dated 8.12.1982 (Annexure 10), which was duly notified in the official gazette. In this resolution it was clearly noted that upon the State Government taking a decision to grant aid to all recognized Sanskrit Schools ,there was a large number of schools being established only to get the aid. It was, therefore, decided by the State Government that henceforth i.e. up to this resolution in 1982, school having received recognization would get aid but thereafter in spite of recognition, they would get aid only as per approval of the Finance Department, which it considers fit and proper. It would thus be - 4 - seen that distinction had been made in respect of school, which has already received recognition prior to the said resolution of 1982 and those ,which were to get recognition thereafter . The later were subject to discretion of the State Government and its Finance Department. On 30.4.1985, the Government resolution was notified that as per the report of the Dr.Damodar Thakur Committee, 205 schools were granted recognization with government aid/grant. As noticed above, in the first phase Dr.Damodar Thakur Committee had recommended 204 schools and in the second phase 22 schools including that of petitioner. The Government notified 205 schools being 204 schools, as recommended by the Committee in the first phase and one school out of 22 schools recommended in the second phase leaving the petitioner’s school. Why it was so done in respect of one out of 22 schools of 2nd phase has never been explained. What was the reason behind it has never been explained. Why petitioner’s school was left out was never explained. Being aggrieved by this whimsical action of the State Government in neither granting recognition to the petitioner school nor aid to it even though there was recommendation in its favour by the Committee as constituted by the Government itself, on recommendation of whom, government acted though partially, on behalf of the petitioner and others ,a writ petition was filed being CWJC No. 9692 of 1989 ( Dilip Kumar Mishra –v- The State of Bihar & ors.).By an interim order dated 10.4.1991 passed therein (Annexure 4), the Division Bench of this Court directed the district authorities , who were - 5 - competent in the matter, to inspect the petitioner’s school once again and submit their report by 19th May, 1992 positively. If the reports were to be adverse, reasons were to be disclosed. While the writ petition was pending as per said order of this Court, inspections were conducted and report having been submitted the State by memo no. 947, dated 9.9.1992 (Annexure 5) clearly indicated that upon inspection they found the school of the petitioner to be qualifying all the conditions for grant of recognition and as such recommended the matter for approval of the Finance Department. The information was sent to the Sanskrit Shiksha Board and the petitioner. As is usual in the State, nothing moves unless it is moved, the matter rested there and no further action was taken by the State. The said Writ Petition No.9692 of 1989 was then disposed of by the Division Bench by judgment and order dated 12.1.2001 (Annexure 6). The Division Bench of this Court noticed various facts. It clearly noticed that Dr. Damodar Thakur Committee in its second phase had already recommended (in 1984) recognition and grant of aid to the petitioner’s school but the State kept the matter hanging so far as petitioner and few others are concerned. It also noticed that by interim order, this Court directed re- inspection of petitioner’s school, pursuant to which again recommendation by the State itself was made for grant of recognition on 9.9.1992 (Annexure 5) but again nothing was done. In between in 1994, the State in terms of Bihar Sanskrit Shiksha Board Act, 1981 framed Bihar non-Government Sanskrit Schools (Recognition and Conditions) Rules, 1993,copy of which has - 6 - been placed on record. In these rules, now, for the first time, it was provided that Sanskrit schools would get recognition but would not be entitled to any government aid. In that writ proceedings then it was brought on record government resolution dated 19.12.1995 that only those schools that were granted recognition prior to 2.12.1982 ( the date of change of policy of the government) only they would be entitled to financial aid and not others. On this ground the case of the petitioner was prayed by the State to be rejected. The Division Bench considering these aspect of the matter, held that 1993 Rules would have no retrospective operation. Petitioner’s school was recommended for recognization and aid by the Dr. Damodar Thakur Committee way back in 1984 itself. Even thereafter in 1992 itself, the State Government had decided to grant it recognition and recommended it for approval of the Finance Department. It also noticed that as per recommendation in 1984 of the Dr. Damodar Thakur Committee, 205 schools were granted recognition and aid from 1985 when it was so notified by the government, then there was no reason why petitioner’s institution would not receive the same treatment. There being no difference in them. Accordingly noticing that in two other cases , similar directions were issued by learned Single Judges of this Court, the Division Bench allowed the writ petition with a direction to the State to give similar treatment to the petitioner and others. State filed an appeal to the Apex Court. The order of the Apex Court is to be found with reference to SLA (Civil) No. 359 of 2002 (Annexure 7), which was disposed of on 8.4.2005. The Apex - 7 - Court , while allowing the appeal, held that even though 1993 rules would not apply, the government had the discretion in the matter as per 1982 policy itself. There was no right to claim aid. That would depend upon the economic and other relevant consideration. Accordingly the Apex Court directed the Finance Department of the State to consider the question of grant of aid to the school of the petitioner and others and communicated it to them. If it was adverse, then the reason has to be given. It is pursuant to this that the impugned order dated 13.2.2006 has been passed (Annexure 1) denying aid to the petitioner. From the aforesaid facts, it would be seen that so far as the question of grant of recognition is concerned, that question is fait accompli . Recommendation for recognition was made by Dr. Damodar Thakur Committee in 1984 and then again by the State itself in 1992.There is no pleadings nor the State counsel argued that the petitioner was not entitled to recognition .Even otherwise that could not have been the case of the State because this was its own recommendation. Thus, this Court in the Division Bench so as the Apex Court have proceeded on the basis of petitioner’s school having received due recognition and it is only consequent thereto, the question of financial grant is now to be considered. The petitioner’s contention is that Dr. Damodar Thakur Committee considered the whole aspect of the matter and made a specific recommendation in respect of 204 schools in the first phase and 22 schools in the second phase, but and for some undisclosed reason Government took only one school out of 22 schools of phase II leaving - 8 - petitioner’s school for no reason and notified them (205 schools) in 1985 for grant of recognition and aid and as such there being no distinction or difference as between the petitioner and 205 schools, the petitioner should also receive the same treatment. Petitioner’s further case is that it was the State, who slept over the matter. The petitioner should have been notified along with 205 other schools but it slept. It cannot now say that because of State’s own default, the petitioner has now lost the right. The State could have justified or given cogent reason for not granting aid to the petitioner’s school. Those reasons must appear from Annexure 1.Examining those reasons what we find is it has given only two reasons. First that in view of 1993 Rules, the government policy now is that though schools may be granted recognition but it cannot certainly be granted financial aid. It further noticed that as per 1985 decision, those schools, which had not been granted recognition prior to 1982 policy, could not be granted financial aid forgetting that those 205 Schools who got recommended in 1984 by the Committee were granted recognition and aid in 1985 and secondly the State was under heavy debt burden running in to several thousand crores it could not afford to take the burden of granting aid to a Sanskrit school like the petitioner. It is the correctness of this factual and legal stand that has to be judged. In my view two issues arise which would decide the case. Firstly, will discretion mean the sweet will of the government and secondly, can the government take the stand that it ought to have acted - 9 - but having not so acted in time, the petitioner has lost his right? At the cost of repetition I may notice one thing. The question of recognition has been taken for grant given by the State . It was recommended by the State’s own constituted Committee in 1984.Then again in 1992 long before 1993 Rules came into being and it is because of that even the Apex Court held that notwithstanding non applicability of 1993 Rules, the government still had discretion in the matter and should be given a chance to pass an order in that regard, which order having been passed adverse to the petitioner, has been challenged. While passing that order, government has once again referred to 1993 Rules as disqualifying the petitioner from government aid, which for the reason noted above, cannot be accepted. Coming to the question of discretion it is too late in the date to urge that when discretion is conferred on a public authority in respect of public duty and the conditions are shown to exist for exercise of discretion in a particular manner, State can refuse to exercise the discretion in a manner appropriate to the facts, as if it can act on its own sweet will. In this connection I may first refer to the opinion of the Apex Court in the case of In re The Kerala Education Bill, 1957 upon presidential reference since reported in AIR 1958 S.C. 956.The relevant passage is to be found in para 19 of the judgment of the Chief Justice at page 975 of the report and is quoted hereunder: “It is true that the word "may" has been used in sub-cl. (3), but, according to the well known rule of construction of statutes, if the existence of the purpose is established and the conditions of the exercise of the discretion are fulfilled, the Government will be under an obligation to exercise its discretion in furtherance of such purpose and no question of the arbitrary exercise of - 10 - discretion can arise. [Compare Julius v. Lord Bishop of Oxford, (1880) 5 A C 214 (N)]. If in actual fact any discrimination is made by the Government then such discrimination will be in violation of the policy and principle deducible from the said Bill itself and the court will then strike down not the provisions of the Bill but the discriminatory act of the Government.” I may then refer to the case of L.Hirday Narain –v- Income Tax Officer, Bareilly since reported in AIR 1971 SC 33.There the question arose in respect of Section 35 of 1922 Income Tax Act, which is para materia to Section 154 of 1961 Income Tax Act. That provision confers power on the Income Tax Officer to rectify an error apparent from the record. The statutory provision provides that the Income Tax Officer may rectify an error apparent from the records. The assessee moved for correction of the status. The Income Tax Officer even though accepted the plea but declined to exercise his discretion in the mater. The assessee moved the High Court under Article 226 of the Constitution of India. The learned Single Judge rejected the petition on the ground that the assessee had not raised the issue in the original assessment and the assessee had not applied to the Commissioner for revision. The Division Bench of the High Court confirmed the order observing that the rectification under Section 35 of the Act was discretionary and he was not bound to rectify the assessment on technical ground. The matter having thus reached the Apex Court. Their Lordships thus held in paras 12, 13 and 15 of the report. The relevant parts thereof are quoted hereunder: “12. …..The High Court observed that under Sec. 35 of the Indian Income-tax Act, 1922, the jurisdiction of the Income-tax Officer is discretionary. If thereby it is intended that the Income-tax Officer has discretion to exercise or not to exercise the power to - 11 - rectify, that view is in our judgment erroneous. Sec. 35 enacts that the Commissioner or Appellate Assistant Commissioner or the Income-tax Officer may rectify any mistake apparent from the record. If a statute invests a public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling, the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right- publi13. In Julius v. Bishop of Oxford (1880) 5 AC 214 it was observed by Cairns L. C. at pp. 222-223 that "the words "it shall be lawful" conferred a faculty or power, and they did not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so '' Lord Blackburn observed in the same case at pp. 244-245 that the enabling words give a power which prima facie might be exercised or not, but if the object for which the power is conferred is for the purpose of effectuating a right there may be a duty cast upon the donee of the power to exercise it for the benefit of whose who have that right when required on their behalf. Lord Penzance and Lord Selborne made similar observations at pp. 229 and 235.c or private - of a citizen. 13. In Julius v. Bishop of Oxford (1880) 5 AC 214 it was observed by Cairns L. C. at pp. 222-223 that "the words "it shall be lawful" conferred a faculty or power, and they did not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so '' Lord Blackburn observed in the same case at pp. 244-245 that the - 12 - enabling words give a power which prima facie might be exercised or not, but if the object for which the power is conferred is for the purpose of effectuating a right there may be a duty cast upon the donee of the power to exercise it for the benefit of whose who have that right when required on their behalf. Lord Penzance and Lord Selborne made similar observations at pp. 229 and 235. 15. The High Court was, in our judgment, in error in assuming that exercise of the power was discretionary and the Income-tax Officer could, even if the conditions for its exercise were shown to exist, decline to exercise the power.” Accordingly, the Apex Court issued writ for rectification of the assessment. I may then refer to the judgment of the Apex Court in the case of Ex-Capt. Harish Uppal –v- Union of India and another since reported in AIR 2003 SC 739 and in particular what is noted and stated in para 40 of the report, relevant part of which is quoted hereunder : ” ... No body or authority, statutory or not, vested with powers can abstain from exercising the powers when an occasion warranting such exercise arises. Every power vested in a public authority is coupled with a duty to exercise it, when a situation calls for such exercise. The authority cannot refuse to act at its will or pleasure. It must be remembered that if such omission continues, particularly when there is an apparent threat to the administration of justice and fundamental rights of citizens, i.e. the litigating public, Courts will always have authority to compel or enforce the exercise of the power by the statutory authority. The Courts would then be compelled to issue directions as are necessary to compel the authority to do what it should have done on its own.” Thus, from the above, it is clear that discretion does not mean sweet will of the State. It has to be exercised appropriate to the facts. Here in the facts of the case it would be seen that the petitioner - 13 - was held to be entitled for recognition as far back in 1984 and in 1922 while 205 other schools similarly situated were granted recognition and aid. The petitioner was left out. Why it was left out, was never disclosed in any proceeding before this Court or Division Bench or the Apex Court. It is true that aid cannot be demanded, as a matter of right, but when the aid is being given or being distributed, there cannot be any discrimination in that regard. The action has to be non discriminatory even though the action is discretionary. The only ground now in 2006 (Annexure 1) given is that the State is under heavy debt running into thousand of crores, surely the aid to be given to the petitioner in a year would not have exceeded even rupees couple of lakhs. It is not the case of the State that no aid has been given to any educational institution thereafter. To the contrary it is common knowledge that aid to educational institution is increasing every day and newer and newer institutions are being given aid. The bald statement of the State of thousand of crores of debt would not absolve it of its obligation. Now we come to the second aspect of the matter i.e. the stand taken by the State that even if it be held that aid was to be given, now the time had expired by intervention of 1993 Rules and as such aid could not be given. Firstly, as noted earlier, this plea of 1993 Rules is not available to the State. Moreover, the petitioner had been demanding equal treatment and consequently aid since long before when there was no reason not to grant. Now State says that because they slept over the matter, nothing can be done and the petitioner’s right to receive aid is - 14 - lost. In this connection I would refer