IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 883 of 2000 with SPECIAL CIVIL APPLICATION No 1194 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- SAHITYA SANGAM Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR UTPAL M. PANCHAL for the petitioners in SCA No.883 of 2000 and MR NR SHAHANI for the petitioners in SCA No.1194 of 2000. MR ARUN D OZA, Ld.Govt.Pleader for respondents nos.1 and 2 MR AK CLERK for respondent nos.3 and 6 MR KETAN SHAH for respondent no.4 MR TUSHAR MEHTA for respondent no.5 -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA Date of decision: 18/04/2000 COMMON ORAL JUDGEMENT Both these Special Civil Applications are based on identical facts involving common questions of law and identical grounds of challenge seeking directions against the respondents in the matter of purchase of books for children and reference literature for the teachers of primary schools under the "Operation Black Board" Scheme. I, therefore, propose to decide both these petitions by this common judgment and order as under: 2. In the daily issue of a local newspaper in Gujarati named, "Sandesh" dated 21st May 1999, an advertisement was issued by the Education Officer (Planning), Primary Education, State of Gujarat, Gandhinagar, for purchase of reference literature for the teachers and literature books for children for the primary schools under the "Operation Black Board" Scheme. As per this advertisement, under the "Operation Black Board" Scheme, books worth about Rs.6 crore relating to literature for children and reference literature books for teachers were to be purchased for primary schools of the State under the District/Nagar Prathamik Shikshan Samities and therefore, the publishers, writers and distributors were invited to send to the office of the Director of Primary Education one copy each of the Gujarati medium books published/re-published on or after 1.1.1996 for the purpose of selection, within a period of ten days. The gist of the conditions as mentioned in this advertisement was as under: "1. Books containing rubber stamp/stamp disclosing revised price will not be taken into consideration for the purpose of selection. 2. Upon selection of the books, 35% discount on the basic price of the books will have to be given. 3. Upon selection of the books, same shall be required to be supplied at the concerned Taluks/Nagarpalika station at their own costs, payment whereof will be made by the concerned District/Nagar Prathamik Shikshan Samiti. 4. The books received beyond time stipulated will not be accepted. 5. It will be incumbent upon every publisher to enclose copy of the consent letter of the writer as also the agreement entered into with the writer whereby he has given all the rights to the publishers. Without that, the books will not be considered to be worth selection. 6. The books of the regional writers will be given priority in the matter of selection. 7. Right of acceptance/rejection of the books will be with the 'Book Selection Committee.' 3. The petitioners in both these petitions, i.e. ten petitioners in Special Civil Application No.883 of 2000 and four petitioners in Special Civil Application No.1194 of 2000 have come with the case that they had sent their books in response to the aforesaid advertisement. According to the petitioners, the process for finalisation of the purchase of books in response to this advertisement was taken up in February 2000. As per the facts stated in Special Civil Application No. 883 of 2000, there were about 125 appliers and the respondents nos.1 and 2 chose the publishers/sellers of their favour. The petitioners have arrayed some of them as party respondents nos.3 to 6. It is alleged that these respondents and their sister concerns and connected publishers/sellers had participated in this process and they had given the offers with dummy names and the offers of respondents nos.3 to 6 and their associates have been accepted and the orders of books to the tune of 60% of the total purchase price of Rs.6 crore was likely to be issued shortly. According to the petitioners, the respondents nos.3, 4 and 5 and their associates were to get orders of Rs.1.25 crore each and the respondent no.6 was to be given the order of Rs.62 lakhs. It has also been stated that despite the specific mention in the advertisement that the books of the regional writers will be given preference, the translated version of the books written by non-regional writers published by the publishers outside the State had been selected, with the result, the writers and publishers of the Gujarat State are ignored. It has been alleged that a book titled as, "Israel" has been selected for this purchase which has no relevance of study for Std.I to VII, that the said book is selected only because it is written by the husband of the present Education Minister, while the Education Minister is directly connected with the purchase of these books. In the end of para 10 of this Special Civil Application, the petitioners have gone to the extent of stating that even if this book was relevant for the children studying in Std.I to VII, this book ought not to have been selected as per the norms. It has been stated that although under Condition no.7, the 'Book Selection Committee' is empowered to select or refuse the book, but the Government did not declare the names of the members of the said Committee; that there must be transparency in the process and the action of the Government, the well-known authors on children literature, the well-known regional writers and the leading educationists should have been taken in the 'Book Selection Committee', but the Government had not followed these norms. It has been then stated that Gujarati literature and Gujarat writers have put a landmark and some of the Gujarati writers have received 'Gyan Pith' award which is the highest honour in the field of literature; that there are well-known Gujarati writers such as Raghuvir Chaudhary, Chandrakant Bakshi, Mohammad Manka, Gunvant Shah, Manubhai Pancholi, "Darshak" Bhagwatikumar Sharma and there are well-known Gujarati writers of children literature like Yashwant Mehta, Jivram Joshi, Hariprasad Vyas, Jyotish Jani, Yashwant Kadikar and many more, but the Government did not think it fit to take any of these writers in the 'Book Selection Committee.' It has been then stated that the said Selection Committee did not even think it desirable to select any book of the aforesaid writers and has thus insulted the aforesaid well-known writers of Gujarat State. The majority of the books which have been selected are written by non-regional authors and their translated versions have been selected and the same have been published by the publishers other than those of Gujarat State. It has also been stated that the publications of some of the petitioners have got great honour from the other States and their books are translated in other languages and the series of books have been selected by the National Book Trust of India and the leading English nespapers have received these books and yet the same do not find place in the books selected for purchase by the Selection Committee. It has also been alleged that the said scheme was announced by the Central Government and the same is in operation for more than five years and while implementing this scheme, the State Government ought not to have acted in such an arbitrary and illegal manner for the purpose of favouring anybody. It is then alleged in para 15 of this petition that by influence of the Partner of respondent no.3 Firm, Mr.Pravin Mohanbhai Mankadia, who is the sitting Member of Legislative Assembly from Upleta, Dist. Rajkot, has worked favourably and has, along with his associate publishers, received an order to supply the books worth Rs.1.25 crore. It is also alleged that the respondents nos.4 and 5 and their associates are connected with the high ranking officers in the Education Department and they have also been selected for orders for purchase of books and that it is a case of nepotism writ large in the matter of selection of the books of the personnel and connected persons, may be by corrupt motives. It has also been stated that the advertisement issued in the name of Mr.V.P.Dhamecha, Education Officer (Planning) and said Mr.Dhamecha was transferred from this post and one Mr.B.K.Maru was appointed vice him, but within a short period, Mr.Maru was also transferred and Mr.B.D.Barot was appointed on the said post and immediately after his appointment, the deal was finalised and within a span of nine months, three officers have been changed and this itself smacks of malafide and arbitrary exercise of powers. It has been alleged that the dictionaries of five types have been selected for this purchase and the price varies from Rs.35/- to Rs.600/- and the order for the said different types of dictionaries are to be issued for a sum of Rs.1.30 crore. 4. On the basis of the amendment dated 22nd March 2000, while giving the names of the members of the Selection Committee for selecting the books under this scheme, it has been submitted that the following were the members of the Selection Committee: (1) Smt.Anandiben M. Patel, Minister of Education. (2) Shri P.V. Patel, Director of Primary Education. (3) Shri Nalin Pandit, Director of G.C.R.T. (4) Shri R.C. Raval, Director of Pathya Pustak Mandal. (5) Shri Mahendra Bhatt, Principal, Jilla Shikshan Talim Bhavan. (6) Shri Kaushik Mehta, Chairman, Municipal School Board. (7) Principal, Mohinaba Primary School. (8) Principal, C.N. Vidyalaya. (9) Sudhaben. It has been submitted that out of these members, one was the Education Minister herself and the four members were bureaucrats; that the present Education Minister is connected with the Mohinaba Primary School and therefore, the Principal of the said school was also appointed as the member of the Selection Committee; that one Sudhaben was inducted without following proper procedure and without permission of the State of Gujarat; that no eminent author, eminent author of children literature or no educationist was taken as member of the Committee and majority of the bureaucrats and persons known to the Education Minister have been taken as members of the Selection Committee. This Selection Committee selected 68 books under the said Scheme as per the list of books contained in Annexure.C. It has also been alleged that the prices of the books quoted under the "Operation Black Board" Scheme which have been accepted are much more than that of the market price. By way of example, it was pointed out that the book named, 'Jhalar' written by one Shri Raghavji Madhad has been selected and the price of this book has been quoted as Rs.95/- whereas the market price of the said book is only Rs.43/-. It is also alleged that this book is not at all meant for the children of Std.I to VII. It has also been alleged that Shri Madhavji Madhad is serving in G.C.E.R.T. and Shri Nalin Pandit who is Jt. Director of G.C.E.R.T. was also a member of the Committee and while the aforesaid book is irrelevant for children, the author of the book has been obliged by selecting his book by the members of the Selection Committee. While the books of the eminent authors have not been selected, the books of the authors who have hardly one or two books like Shri Raghavji Madhad and Shri Mafatbhai Patel have been selected by the members of the Selection Committee. It has also been alleged that Navjivan Trust which is established by Mahatma Gandhi has published a dictionary - 'Shabdakosh' which is available at a very low price and yet it has not been selected and as against it, many costly books of private publishers have been selected which is clearly suggestive of malafides. In para 19 of the petition, it has been stated that the purchase of 36 titles of 'Amar Chitrakatha' at the cost of Rs.36/- each which is otherwise available in the market at Rs.12/- is a glaring example of arbitrary exercise to the prejudice of the State. It has also been alleged that the total purchase envisaged for purchase of these books is Rs.1.30 crore and that these books are written by non-regional authors and translated into Gujarati and the same have also been published by non-regional publishers. It has been stated that Navjivan Trust is a pioneer in the field and the same was established by Mahatma Gandhi with a view to see that the book is made available at the lowest rates to the children so that even a poor child is not deprived of reading the book due to high price; the said Trust is purely working on Gandhian philosophy and is engaged in publishing wide range of Gujarati literature having wide range of children literature. Shri Jitendrabhai Desai who is the Managing Trustee of Navjivan Trust and who is also the President of Gujarat Pustak Prakashak and Vikreta Mandal refused to take part in this scheme because of the arbitrary approach of the Government and that it is the duty of the Government to invite such pioneer Gandhian Institute to contribute their valuable share to make the scheme a grand success. In para 22 of this petition, it has been stated that after receiving the list of books from these few publishers, the State Government has already taken a decision to purchase such books but the purchase orders are yet to be issued although the Government has issued letters calling upon them to deposit the requisite amount. It is stated that the respondents are acting in collusion with such few chosen publishers and the respondents have to be prevented from taking any steps which may ultimately result into fraud with public exchequer and clear discrimination of majority of the publishers. 5. On the basis of the aforesaid averments, the reliefs in Special Civil Application No. 883 of 2000 have been sought as under: "26(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction restraining the Resp. Nos. 1 and 2 from making any purchase pursuant to the advertisement at Annex."A". (B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the Resp. No.1 Government to form a fresh Selection Committee consisting of well-known Gujarati writers and authors of children stories and the educationalists and to take up the whole procedure for selection of books afresh." 6. The petitioners in Special Civil Application No. 1194 of 2000 have requested for re-constitution of the Selection Committee by including well-known authors of children literature and critics and for equitable distribution of selected books with a view to benefit the largest possible number of children belonging to Std.I to VII (Primary School) and have prayed for the following reliefs: "10(A) Your Lordships may be pleased to direct Respondents Nos.1 and 2 to reconstitute the Selection Committee by including well known authors and critiques of literature and children's books and further be pleased to direct them to reconsider the whole issue of purchase of children's books under the Advertisement at Annexure."A", afresh, by adopting absolutely transparent, open and equitable procedures; (B) Your Lordships may be pleased to lay guidelines for the purpose of forming the Selection Committee, distribution of orders of books among publishers and also by nominating a suitable Chairman for the present incidence." 7. It may be pointed out that Special Civil Application No.883 of 2000 was initially listed before the Division Bench (Court No.1) on 16th February, 2000, 21st February 2000, 1st March 2000 and thereafter on 8th March 2000. On 8th March 2000, the Division Bench recorded that the petition had been filed by competing publishers and therefore, it could not be treated as a Public Interest Litigation and the same may therefore, be listed before the appropriate single Bench and this is how the matter came up before this Bench from the Division Bench. On 22nd March 2000 the amendment as prayed for by the petitioners was allowed and the Rule was issued. In this Special Civil Application, besides the pleadings including the amendments and the documents as have been filed by the petitioners, there is an affidavit-in-reply dated 8th March 2000 filed by the respondent no.2 through the Education Officer (Planning) under the Directorate of Primary Education, and an affidavit-in-reply dated 8th March 2000 filed on behalf of the respondent no.5 along with the documents, an affidavit-in-reply dated 5th April 2000 filed on behalf of respondent no.6, an affidavit-in-reply dated 13th March 2000 along with the documents filed on behalf of respondent no.4 and an affidavit-in-reply dated 6th April 2000 filed on behalf of respondent no.3, a copy of the letter dated 11th June 1993 issued by the Government of India, Ministry of Human Resources Department, have been produced by the learned Govt.Pleader Mr.Arun D.Oza along with the list of books selected by the 'Book Selection Committee' under the "Operation Black Board" Scheme. Learned Govt. Pleader has also placed on record the proceedings of the Committee dated 24th July 1999, the Resolutions dated 8th October 1998 and 16th September 1999 with regard to the constitution of the Selection Comittee. 8. Special Civil Application No.1194 of 2000 was filed subsequently and even this petition was also listed before the Division Bench (Court No.1) on 1st March 2000, 15th March 2000 and on 15th March 2000, the Division Bench directed that this matter only also be placed before the Single Bench. In this Special Civil Application, the Rule was issued on 5th April 2000 and the same was directed to be heard along with Special Civil Application No. 883 of 2000 as above. In this Special Civil Application, an affidavit-in-reply dated 6th April 2000 has been filed on behalf of the respondent no.2 along with the documents. 9. On the basis of the pleadings as aforesaid available in both these matters, the arguments have been addressed by both the sides. The first attack on behalf of the petitioners was against the constitution of the Selection Committee for selection of the books. There is no dispute between the parties that there are no Rules or any executive circulars so as to prescribe the qualification as to who should be the members of the Selection Committee. The Resolution dated 8th October 1998 shows that earlier, by Resolution dated 24th October 1996 passed by the Government of India in Education Department, a Committee had been constituted for the same scheme, i.e. "Operation Black Board" Scheme. The Director of Primary Education sent a letter dated 11th September 1998. Having read the earlier Resolution dated 24th October 1996 and the Director's letter dated 11th September 1998, the Committee as was constituted on 24th October 1996 was superseded and the new Committee for the selection of the books was constituted as per this Resolution dated 8th October 1998 which has been issued by an order in the name of the Governor of Gujarat. The Director of Primary Education is the Chairman of this Selection Committee and Shri Nalin Pandit, i.e. Jt. Director, Gujarat Council of Education, Research and Training is the Member Secretary, Director of Text Books Board, Smt.Kshamaben Shirishbhai Shah, Member, Gangaba Kanya Vidyalay, Shri Kaushikbhai Mehta, Chairman of Ahmedabad Municipal Education Committee, Mrudulaben Desai, C.N.Primary School, Ambawadi, Ahmedabad, and Principal of District Education and Training, Gandhinagar are the other five members. As per this Resolution dated 8th October 1998, the Chairman of the Gujarat State Text Books Board has to be invited as a special invitee. It was made clear by the learned Govt. Pleader that the Education Minister is the Chairman of the Gujarat State Text Books Board and therefore, the Education Minister was there in the Committee as a special invitee in terms of the Resolution dated 8th October 1998. It was also made clear that as per this Resolution dated 8th October 1998, only eight members including the special invitee were to constitute the Selection Committee for the purchase of the books in question, but it was on 16th September 1999 that yet another Resolution was passed by the Govt. in the Education Department and as per this Resolution, keeping in view the request of the Director of Primary Education, one Smt. Sudhaben R. Mehta was also included in the Committee and thus in all, there were nine members in the Selection Committee including the special invitee, i.e. Chairman of the Gujarat State Text Books Board and the Director of the Primary Education, State of Gujarat as the Chairman of this Committee. It has been submitted that the personnel in this Committee are all related to the Education Department and the Education Minister is there because the Education Minister is the Ex-officio Chairman of the Gujarat State Text Books Board. The Education Minister was therefore there in this meeting as a special invitee by virtue of the position held by her as the Chairman of the Gujarat State Text Books Board because the Education Minister is the Ex-officio Chairman of the Gujarat State Text Books Board. Thus, the inclusion of the Education Minister in the Committee is by virtue of office held by her and the same could not be avoided. Besides this, it was also pointed out on the basis of the proceedings dated 24th July 1999 that the Education Minister did not remain present in each and every meeting of the Selection Committee and that she had remained present only in the meeting dated 6th July 1999 as a special invitee. 10. I find that it is not a case of the constitution of any statutory Selection Committee for the boks in which any definite qualification or eligibility for membership or for member Secretary or for Chairman have been laid down nor I find that the Selection Comittee is required to be of any particular member and thus it cannot be said that the constitution of the Selection Committee was unlawful in any manner. Who should be there in the Selection Committee and who should not be there in the Selection Committee in such cases depends upon the choice of the Government. It is not meant to be said that there cannot be any better personnel, there may be more eminent and still more better personnel available to be included in the Selection Committee, but it is not for this Court to interfere with the constitution of the personnel of such Selection Committee for books. After all, it is found that the Selection Committee for these books had been constituted by a Government Resolution and the Director of Primary Education who is concerned with the primary education of the children in this State has throughout been associated and in such a situation, this Court cannot hold the constitution of the Committee to be illegal merely because the petitioners have pointed out that there could be still better personnel with more eminence available for inclusion in the Committee. There may be still more authors of greater eminence as has been pointed out by the petitioners in the body of their petitions, but that by alone will not render the constitution of this Selection Committee to be illegal and therefore the first contention raised on behalf of the petitioners with regard to the constitution of the Selection Committee cannot be sustained in the eye of law. The said contention is hereby rejected. 11. It was then argued that the selection of books in this case was not fair for two reasons. Firstly, the husband of the Education Minister was one of