IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13398 of 2009 1. Gayetri Prathmik Sah Madhya Sanskrit Vidyalaya, S/O- Suryawanshi Kanth Nauwagarhi Town, P.S- L.N.M. University Campus, Distt- Darbhanga, Through Its Headmaster Sunil Mohan Kanth 2. Sunil Mohan Kanth S/O- Suryawanshi Kanth At Present Posted As Headmaster, Gayetri Prathmik Sah Madhaya Sanskrit Vidyalaya Nauwagarhi Town , P.S- L.N.M University Campus , Dist- Darbhanga Versus 1. The State Of Bihar Through Principal Secretary, Secondary Eduction) Human Resources Development Department , Bihar , New Secretariat, Patna 2. The Principal Secretary,(Secondary Education) Human Resources Development Department , Null Government Of Bihar, New Secretariat, Patna 3. The Deputy Secretary To Government , Human Resources Development Department Null Government Of Bihar, New Secretariat, Patna 4. Special Director (Sanskrit ) Secondary Education , Human Resources Development Department Government Of Bihar, New Secretariat, Patna 5. Bihar Sanskrit Shiksha Board East Boring Canal Road, Patna Through Its Chairman 6. The Chairman , Bihar Sanskrit Shiksha Board, East Boring Canal Road , Patna 7. The Secretary , Bihar Sanskrit Shiksha Board East Boring Canal Road , Patna ----------- For the Petitioners:- Mr. Durgan Nand Jha, Adv. For the State:- Mr. Sunil Kumar Mandal, Adv. Mr. Bipin , Adv. -------------- 6. 25.10.2011 Heard learned counsel for the petitioners and the State. The petitioners who are a primary and Middle Sanskrit School assail the orders dated 5.1.2006 and 14.7.2009. The former while recommending recognition denies financial aid with reference to notification No. 793 dated 18.6.1994. 2 The latter communicates the grant of recognition but referring to the former denies financial aid. The Court does not consider it necessary to go into the historical facts of the case except to the extent necessary for purposes of the present order. Learned counsel for the petitioners urges that recognition has come belatedly after rounds of litigation before this Court. The petitioners had been subjected to hostile discrimination and continue to be so subjected on the question of grant in aid. Those similarly situated but granted recognition earlier have been granted aid but which has been denied to the petitioners. Though grant of aid may not be a matter of right still the respondents cannot act arbitrarily and whimsically. If the petitioners are to be denied financial aid they have a right to know the reasons especially when the allegations are of hostile discrimination. The respondents having refused to disclose any reasons either in the orders or the counter affidavit, the Court may hold denial to be arbitrary and direct grant of aid. The writ petition was filed on 9.10.2009 after serving two copies in the office of the Advocate General. On 14.10.2009 two weeks time was granted to file counter affidavit. On 16.8.2011 again 3 time was granted for two weeks for the purpose observing that if by the next date no counter affidavit was filed the Court may proceed to dispose the writ application on basis of materials available on record and may not necessarily adjourn the matter. On 5.9.2011 the Court noticed that nearly 2 years time from the date of filing of the writ application had not been considered sufficient for filing a counter affidavit. A submission was made on behalf of the Additional Director (Secondary Education) that the matter was under consideration and was likely to take some time. The Court expressed its anguish for the reluctance of the respondents to assist the Court notwithstanding the State litigation policy but refrained from imposing costs observing that if by the next date a proper, detailed and reasoned counter affidavit supported with necessary documents, if any, why in the wisdom of the State the petitioners were not entitled to financial aid and why the allegations of arbitrariness and discrimination were not correct was not filed, the Court may not necessarily adjourn the matter and may proceed to dispose the application on basis of materials on record without granting any further indulgence. 4 A counter affidavit was then filed on behalf of the Bihar Sanskrit Shiksha Board simply stating that the State Government had not approved grant in aid. A separate counter affidavit was filed on 13.10.2011 by the Special Director (Sanskrit) Secondary Education, Human Resources Department. Notwithstanding the specific order dated 5.9.2011 to spell out the reasons why financial aid was not considered to the petitioners, the counter affidavit choose to make evasive answers rather than to disclose the ground that prevailed in the mind of the respondents before issuance of the order dated 5.1.2006 and 14.7.2009. On 19.10.2011 counsel for the State submitted that he was not in a position to assist the Court in absence of instructions. The Court was left with no option but to direct the personal presence of the Principal Secretary or any other Senior Officer of the Department along with the original records. The original records have been produced today. The Court has perused the notification No. 793 dated 18.6.1994. It is but a regulation framed under Section 22 of the Bihar Sanskrit Shiksha Board ordinance, 1981 (Bihar Ordinance No. 31 of 1982). It deals with establishment and recognition 5 laying down conditions for the same. There is no provision in the same dealing with issues of aid much less the conditions and modality for the same. The file does not contain any discussion or deliberation before issuance of the order dated 5.1.2006 to the extent it denies aid except a reference to the aforesaid regulation. The order dated 14.7.2009 only reiterates the letter dated 5.1.2006 to deny aid and is not preceded by any deliberation or discussion in the records for denial of aid. A supplementary counter affidavit has been filed today by the Special Director (Sanskrit) Secondary Education stating at Paragraph-7 that the matter was very old relating to the years 1987 and 1989 and that it was only after examining the concerned files that specific reply on the point “ with regard to grant of aid” can be given under what circumstances the case of the petitioners school “ grant in aid” had been left out in the relevant point of time. The Court may grant one month time for the purpose. Learned Standing counsel No. 24, Shree Mandal finds it difficult to satisfy the Court either from the original records much less the counter 6 affidavit any consideration of issues for grant of aid and the reasons for denial. Grant of aid to the petitioners may not be a necessary concomitant of recognition. It shall be governed by statutory provisions or executive guidelines, as the case may be. Neither party has placed materials with regard to the same. The grant or non grant of aid is akin to the grant of largesse. There has to be an element of discretion involved. But not absolute discretion. It has to be controlled in its exercise tempered with reasons. Denial may not outright be questionable by the petitioners. But if denial is arbitrary it is unsustainable. The challenge is aggravated if allegations are made of hostile discrimination. The petitioners have alleged that similar institutions have been granted aid while it has been denied to the petitioners arbitrarily. The respondents had a bounden duty to answer the allegations of hostile discrimination in the present proceedings. If the petitioners are to be denied aid, all the more they have a right to know why their perceived grievance was not justified. This is a basic tenet of the rule of law. A litigant granted relief may not be interested in knowing the reasons. The fairness of the decision making process lies in 7 telling those who did not get relief, the reasons. Reasons are the heart and soul of an order. It lends transparency and accountability to the decision. It opens the window to the mind of the author. It upholds the rule of law and demonstrates that the authority has acted fairly, reasonably and within the bounds of its authority. The litigant is left satisfied that his case had been properly considered. An order sans reasons suffers from the vice of arbitrariness vesting unguided authority. To hold otherwise can lead to gross arbitrariness and denial of relief with no justification in law on individual predilections. The duty to assign reasons in not recent enunciation but long standing law. The Supreme Court has succinctly summed up the principles recently in (2010) 9 SCC 496 ( Kranti Associates Private Limited v. Masood Ahmed Khan) as follows : - “47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any 8 possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision- maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber- stamp reasons” is not to be equated 9 with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision- makers less prone to errors but also makes them subject to broader scrutiny. (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision- making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain33 EHRR, at 562 para 29 and Anya v. University of Oxford34, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”. The discretion and jurisdiction to grant or not to grant aid vests in the respondents. The Court in the garb of judicial review cannot usurp that power. If the action of the respondents is contrary to law judicial dictum requires the Court to set aside the impugned order and remand it to the authorities for passing a fresh reasoned and speaking order. In (2009) 16 SCC 60 (Union of India v. Bilash Chand 10 Jain) it has been held :- “5. It may be mentioned that there is a distinction between “judicial review” and “appellate jurisdiction”. The High Court in a writ petition when examining an administrative order is not exercising the appellate power but exercising the power of judicial review which is much narrower than the appellate power. Such judicial review can only be exercised on Wednesbury principles. 6. It is well settled by a series of decisions of this Court that the High Court cannot itself perform the functions of a statutory authority. Thus in G. Veerappa Pillai v. Raman and Raman Ltd.1 it was held that the High Court under Article 226 of the Constitution of India cannot direct the Regional Transport Authority to grant bus permits as the grant of the permit is entirely within the discretion of the Regional Transport Authority. Of course, if the Regional Transport Authority rejects the application for grant of permits arbitrarily or illegally, the High Court can set aside the order of the Regional Transport Authority and direct the Regional Transport Authority to pass a fresh order in accordance with law, but the High Court cannot itself order grant of permits, in that case it will be taking over the function of the Regional Transport Authority.” The aforesaid principle has been reiterated in (2009) 14 SCC 351 (Indian Charge Chrome Limited v. Jagdish Rai Puri) :- “4. We have carefully perused the impugned judgment of the High Court. While agreeing with the High Court that the Order dated 23-5- 2003 refusing permission was 11 unsustainable, we are of the opinion that the High Court should not have directed the State Government to grant the necessary permission for transfer of the said land in favour of the appellant and should not have directed Opposite Party 1 in the said writ petition to have executed the deed of transfer in favour of the appellant. Instead, the High Court should have remitted the matter to the State Government for deciding the application seeking permission to transfer the said land afresh on relevant considerations. 5. Recently, in Union of India v. Bilash Chand Jain1 this Court held that the High Court cannot itself perform the functions which are to be performed by some other authority. If that authority passed an order which the High Court finds is not sustainable in law, the High Court can set aside the said order and remit the matter to the authority concerned for deciding the same afresh in accordance with law, but the High Court should not take over the function of the authority itself. We reiterate the views given in the aforesaid decision which has referred to the earlier decisions of this Court on the point.” Nothing in the present order shall be construed as an affirmance or prima facie opinion for justification in the claim for grant of aid made by the petitioner. While the petitioner may not have a right to grant of aid, the respondents have a duty to consider his claim in accordance with law and tell him the reasons why he is not entitled to the same. It is not 12 their absolute discretion as appears to be their understanding. In (1999) 8 SCC 150 (TVL Sundaram Granites v. Imperial Granites Ltd.) it has been held as follows: - “7. The position is well settled by a catena of decisions of this Court that while grant of largesse is at the discretion of the State Government, its action should be open, fair, honest and completely above board…..” The questions of law involved in the case were minor in nature and well settled. The Court narrowed it down at the very inception and also called for the original records in the hope that it would expedite final adjudication. Such a lengthy order was also not necessary in the facts of the present case. The Court is satisfied that but for the present discussion, the respondents would not remain reined within the bounds of their powers. The discussion in (1995) 6 SCC 289 (M.J. Sivani v. State of Karnataka) which this Court opined would shorten litigation if the original records were called for has also not been of help :- “32. It is also settled law that the order need not contain detailed reasons like a court order. Administrative order itself may contain reasons or the file may disclose reasons to arrive at the decision showing application of mind 13 to the facts in issue. It would be discernible from the reasons stated in the order or the contemporaneous record. Reasons are the link between the order and the mind of its maker. When rules direct to record reasons, it is a sine qua non and condition precedent for valid order. Appropriate brief reasons, though not like a judgment, are a necessary concomitant for a valid order in support of the action or decision taken by the authority or its instrumentality or the State……” The petitioners have alleged hostile discrimination. The respondents have failed to answer the charge. The supplementary counter affidavit acknowledges that the matter requires examination. The Court considers it proper to direct that the petitioners be given a personal hearing. Any further materials which the petitioners propose to rely upon in support of the claim for grant of aid is permitted to be supplemented. The materials on which the respondents may propose to rely for denial must be furnished to the petitioners with an opportunity to meet the same. In this manner after grant of personal hearing let a final, reasoned and speaking order dealing with all aspects and all facts of law as discussed in the present order be passed within a maximum period of four months from the date of 14 receipt/production of a copy of this order. The original records be returned to the counsel for the State. The impugned orders Dated 5.1.2006 and 14.7.2009 are set aside only to the extent that they deny grant in aid to the petitioners. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)