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

1. The petitioner carries on business of printing, publishing and selling text books for use in Primary, Middle Schools and Higher Secondary classes in schools in the State of Madhya Pradesh. On 1st November, 1956; as a result of the reorganization of States under the States Reorganization Act, 1956, a new State of Madhya Pradesh was formed comprising of the territories of the existing State of Madhya Pradesh known as Mahakoshal area, the territories of the existing State of Madhya Bharat, excluding Sunal Tappa, Sironj Sub-Division on Kotah District in the existing State of Rajasthan and the territories of the existing States of Bhopal and Vindhya Pradesh. We are concerned in this petition mainly with Makakoshal and Madhya Bharat regions of the State of Madhya Pradesh and we shall, therefore, so far as any reference to the position obtaining prior to the reorganisation of the States is concerned, confine our attention only to those two regions. The school education in the State of Madhya Pradesh, and prior to the reorganization of the States, in the Mahakoshal and Madhya Bharat regions, has always been divided structurally in three stages, namely, Primary, Middle school and Higher Secondary. Primary education consists of classes I to V, Middle school, of classes VI of VIII and Higher Secondary, of classes IX to XI. Primary and Middle school education may be considered together, for, barring a short period up to the enactment of the Madhya Pradesh Secondary Education Act, 1959 (hereinafter referred to as the Act of 1959), when Middle school education was clubbed together with Higher Secondary education and was treated differently from Primary education, Middle School Education has always been treated on the same basis of Primary Education in contrast to Higher Secondary Education. It is not necessary for the purpose of the present petition to trace the history of the regulation of Primary and Middle School Education from the inception. It would be sufficient to state that Primary Education at all times and Middle School Education, so far as Mahakoshal region is concerned, after the enactment of the act of 1959, and in other regions even before that time, were regulated by the State Government. The State Government prescribed the courses of instruction any syllabi for all classes of Primary and Middle School Education and they were followed not only by Government Schools but also by private schools, not because of any statutory authority, but because most of the private schools depended on grant-in aid from the State Government and unless the courses of instruction and syllabi prescribed by the State Government were followed by them, they would not be recognized by the Board of Secondary Education so as to be able to present their students for the examination to be held by the Board a sine qua non for admission to a University - unless their Primary and Middle School sections were recognized by the State Government. So far as the text books for use in Primary and Middle School classes were concerned, the State Government prescribed 29 text books printed and published by it on different subjects for use in difference classes. There was, of course, no statutory provision under which these 29 text books could be prescribed by the State Government and the prescription of these 29 text books had, therefore, no statutory authority but private schools, no less than Government schools, accepted these 29 text books because non-acceptance would have involved stoppage of grant-in-aid from the State Government2. In the meantime a Society called the Madhya Pradesh Pathya Pustak Rachna Avam Shaikshinik Anusandhan Nigam (hereinafter referred to as the Text Books Corpn.) was formed by the State Government for the purpose of carrying on the work of printing, publishing and distributing text books for use in the Primary and Middle School classes in the State of Madhya Pradesh. The Minister incharge of the portfolio of education was an ex-officio Chairman of the Text Books Corpn, while some officers of the Government connected with the Education Department were ex-officio members along with certain other non-official members nominated by the State Government. The Text Books Corporation was registered under the Madhya Pradesh Societies Act, 1959 and according to the provisions of that Act, it was to function on a no profit - no loss basis. The initial resources of the Text Books Corporation were provided by the State Government by giving a loan of Rs. 15 lacs for the purpose of enabling it to commence its operations. The Text Books Corporation was by its very constitution controlled by the State Government and it was intended to function as an agency of the State Government. The work of printing and publishing of text books was, however, not commenced immediately by the Text Books Corporation and until the end of the academic year 1970-71, the aforesaid 29 text books printed and published by the State Government continued to be prescribed and used in the Primary and Middle school classes3. There was, however, a change in the courses of instruction and syllabi in some of the subjects from the academic year 1971-72. The State Government by a notification dated 18th May, 1971 prescribed improved courses of instruction and syllabi in certain subjects to be followed from the academic year 1971-72 and directed that so far as courses of instruction and syllabi in the other subjects were concerned, they should continue to be the same as in the previous academic year 1970-71. The aforesaid 29 text books printed and published by the State Government, not being in accordance with the new courses of instructions and syllabi so prescribed, were rendered useless and in their place, new next books had to be brought out which would be in conformity with such new courses of instruction and syllabi. The Text Books Corporation accordingly printed and published 28 text books in accordance with the new courses of instruction and syllabi and these 28 text books were prescribed by the State Government by a notification dated 21st May, 1971 for use in the Primary and Middle school classes for the academic year 1971-72. The number of text books printed and published by the Text Books Corporation was reduced from 29 to 28 because one text book, namely, Bal Bharati Praveshika, which was printed and published by the State Government as a separate book, was amalgamated by the text Book Corporation with Bal Bharati Part I. These 28 text books brought out by the Text Books Corporation were referred to by the State Government as nationalised text books as the Text Books Corporation was merely an agency set up by the State Government for carrying out the work of printing, publishing and distribution of text books. The State Government made it clear in the notification dated 21st May, 1971, that so far as the other subjects were concerned for which such nationalised text books were not available, the schools were free to use according to their convenience such books of private publishers as they liked, provided they were written in accordance with the courses of instruction and syllabi for the academic year 1970-714. The result was that in the Primary and Middle School classes, for the academic year 1971-72, the above mentioned 28 text books, printed and published by the Text Books Corporation, were used exclusively as text books for the subjects dealt with by them, while for the other subjects text books printed and published by private publishers were used according to the convenience of the schools. The courses of instruction and syllabi for the next academic year 1972-73 were prescribed by the State Government by a notification dated 10th May, 1972 and by this notification the State Government introduced new courses of instruction and syllabi in certain subjects and with regard to the rest, directed that the same courses of instruction and syllabi as also the same text books shall continue to be in use as in the academic year 1971-72. The same 28 text books, printed and published by the Text Books Corporation, revised in accordance with new courses of instruction and syllabi, where necessary, continued to be prescribed as text books for the academic year 1972-73. The Text Books Corporation thereafter brought out eight further text books making in the aggregate 36 text books printed and published by them and, as appears from the circular dated 30th August, 1973, issued by the Director of Public Instruction, an order dated 23rd March, 1973, was issued by the State Government prescribing these 36 text books for use in the Primary and Middle School classes. This order has not been challenged in the present petition or in the voluminous affidavits filed on behalf of the parties and it need not, therefore, engage our attention. The learned Counsel appearing on behalf of the petitioner did make an attempt in the course of the argument to challenge the validity of this order, but when we pointed out to him that there was no challenge against it in the petition and it was, therefore, not open to him to assail its validity on the petition as it stood, he rightly withdrew his attack. This, of course, does not mean that the petitioner cannot challenge the validity of this order in any other appropriate proceeding which he may take for that purpose, provided he has valid grounds for doing so5. So far as Higher Secondary Education is concerned, it was regulated by the Madhya Pradesh Education Act, 1951 in the Mahakoshal region and by the Madhya Bharat Secondary Education Act, Samvat 2007 in the Madhya Bharat region. It is not necessary to refer to the provisions of these two statutes, for both of them were repealed by the Act of 1959 which was enacted by the Legislature of the new State of Madhya Pradesh after the reorganisation of that State. Section 3 of that Act provided for the incorporation of the Board of Secondary Education and Section 4 laid down its composition. The powers of the Board were set out in Section 8, which provided inter alia that the Board shall have the power to prescribe courses of instruction in such branches of Secondary Education as it may think fit. Sections 18 and 19 constituted a salient and distinguishing feature of this Act. They were based on the recommendations made by the Secondary Education Commission, 1952-53 set up by the Government of India. The Secondary Education Commission suggested in its report that it was necessary that "all political and other extraneous influence must be eschewed in the selection of text books" for use in Higher Secondary classes and this was possible only if a high power committee was entrusted with this task. What should be the constitution of this high power committee and what functions must be assigned to it also formed the subject-matter of recommendations made by the Secondary Education Commission. These recommendations formed the basis for the enactment of Sections 18 and 19. Section 18 provided for the constitution of a committee called the Text Books Committee which was to consist of distinguished independent persons who would be free from political and other extraneous influences and they included inter alia a sitting or retired Judge of the High Court or a District Judge, a member of the State Public Service Commission, a Vice-Chancellor of a University in the State and two leading educationalists. The functions of the Text Books Committee were defined by Section 19 to be as follows:"(1) to select text books for prescribed courses of instruction and syllabi for Secondary Education;(2) to prepare a panel of expert reviewers for each of the subjects included in the secondary school education curriculum;(3) to appoint expert committees consisting of not more than three members from amongst the panel of experts to examine and submit a detailed report on the suitability of the books referred to them;(4) to invite experts to write text books and other books of study, if necessary,....."Though one of the functions entrusted to the Text books Committee was to select text books for prescribed courses of instruction and syllabi, no power was given to the Board to prescribe the text books selected by the Text Books Committee. The Board, however, claimed to have the power to prescribe text books in languages on the ground that the power to prescribe courses of the instruction and syllabi in languages carried with it by necessary implication the power to prescribe text books and on that view, the Board, on the basis of the selections made by the Text books Committee, prescribed text books in English, Hindi, Marathi and Sanskrit6. The Madhya Pradesh Madhyamik Shiksha Adhiniyam 1965 (hereinafter referred to as the Act of 1965) was enacted by the Madhya Pradesh Legislature on 29th September, 1965 and by Sec. 30, it repealed the Act of 1959. Section 3 of that Act provided for the incorporation of the Board of Secondary. Education and its constitution was laid down in Section 4. Section 8 defined the powers of the Board which included inter alia the power:"(a) to prescribe courses of instruction in such branches of Secondary Education as it may think fit;... ... ... ... ... ... ...(m) to advise the State Government as to the courses of instruction and syllabi of Middle School Education with a view to secure co-ordination between Middle School and Secondary Education;... ... ... ... ... ... ...The last quoted cl. (m) of Section 8 clearly postulated that the State Government has the power to prescribe courses of instruction and syllabi for Middle School classes. Section 24 empowered the Board to constitute various committees which included inter alia Committees of Courses and their constitution, powers and duties were to be provided by regulations made by the Board under Section 28. The Board in exercise of the power conferred under Section 28 made the Board of Secondary Education, Madhya Pradesh, Regulations, 1965(hereinafter referred to as the Regulations)7. Regulation 30 provided that the Board shall appoint Committees of Courses in the subjects enumerated in that regulation and each Committee of Courses was enjoined by regulation 32 to "lay down a syllabus in the subject or subjects with which it is concerned, and recommend suitable text books when called upon to do so". It was not stated in the Regulations as to who could call upon the appropriate Committee of Courses to recommend suitable text books but obviously what was contemplated was that the Board would require the appropriate Committee of Courses to make recommendations in regard to text books. Now, the Board was not given the power to prescribe text books; and therefore, the recommendation of suitable text books invited from the appropriate Committee of Courses could only be for the purpose of enabling the Board in its turn to recommend such text books for use by schools in the High Secondary classes. In fact, the Board did not claim to exercise the power to prescribe text books on any subjects other than languages. The Board prescribed text books only on languages and so far as the other subjects were concerned, the Board merely recommended text books on some of those subjects9. The record before us does not show precisely what were the languages on which text books were prescribed by the Board, but it does appear from the affidavits and the notification dated 28th March, 1973 issued by the Board, that text books were prescribed by the Board for most of the languages taught in the primary and middle schools, barring General English and Tamil for classes IX and X. So far as the text books recommended by the Board were concerned, there were four notifications issued by the Board from time to time recommending text books on different subjects for classes IX and X for the period commencing from the academic year 1972-73 for the Higher Secondary School Leaving Certificate Examination, 1975. The first was a notification dated 5th April, 1972, by which the Board recommended six text books on Civics, the second was a notification dated 25th April, 1972 by which the Board recommended five text books on Economics, the third was a notification dated 26th April, 1972 by which the Board recommended eight text books on Physics and the fourth was a notification dated 17th May, 1972 by which the Board recommended eight text books on Chemistry. There were thus four subjects on which text books were recommended by the Board. It was not seriously disputed on behalf of the petitioner that the procedure set out above for selection of text books was substantially followed by the Board in prescribing text books on languages and recommending text books on these four subjects. None of the text books prescribed or recommended by the Board was a text book printed and published by the petitioner. The petitioner had submitted text books on Civics, Physics and Chemistry for selection by the Board but they were rejected by the reviewers as they were found to be below standard and were printed on poor quality paper and were also costlier than the text books submitted by other registered publishers10. This was the position which obtained when the Madhya Pradesh Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, 1973 (hereinafter referred to as the Act of 1973) was enacted by the Madhya Pradesh Legislature. This Act came into force on 23rd March, 1973 being the date appointed under sub-s. (3) of Section 1. The provisions of this Act are material and we may refer to them. Section 2, cl. (e) defines text book in the widest possible terms and according to this definition, it means any book approved by the State Government in accordance with the syllabi prescribed under the Act for use for any examination conducted under the authority of the State Government or by the Board or held in an approved school or a school recognized by the Board and includes other books of study or instructional material such as maps, designs and other material of like nature approved by the State Government for any standard of primary education, middle school education or secondary education in accordance with the syllabi laid down under the Act11. Section 3, sub-s. (1) provides that the State Government may from time to time in relation to primary education and middle school education and the Board may from time to time in relation to Secondary education, lay down syllabi and publish the same in such manner as may be prescribed and sub-s. (2) of Section 3 says that the syllabi laid down under the authority of the State Government in the case of primary education and middle school education and by the Board in the case of secondary education and in force immediately before the appointed day, i.e., 23rd March, 1973, shall be the syllabi laid down and published for the purpose of sub-section (1) of Section 312. Then comes Section 4 which deals with the prescription of text books according to syllabi laid down under Section 8. Since that is the section which is impugned in the present petition, we may reproduce it:"4. (1) The State Government may, by order, prescribe the text books according to syllabi laid down under Section 3:Provided that text books for secondary Education shall not be prescribed without prior consultation with the Board(2) The text books prescribed by the State Government or the Board according to the syllabi referred to in sub-section (2) of Section 3 and in force immediately before the appointed day shall, till they are changed in accordance with the provisions of this Act, be the text books prescribed for the purpose of sub-section (1)(3) As from the appointed day, no books other than the text books prescribed under sub-section (1) or referred to in sub-section (2) shall be used in any approved school or recognised school for imparting instruction in accordance with syllabi in primary education, middle school education or secondary education."13. The State Government is also give power under Section 5 to undertake the preparation, printing or distribution of text books itself or to cause the text books to be prepared, printed or distributed through such agency as it thinks fit on such terms and conditions as may be prescribed. Section 6 provides that the text books prescribed by the State Government for any standard of secondary education shall be text books prescribed for such standard of secondary education in accordance with the syllabi and the Board shall be bound to accept the same when so prescribed by the State Government. Then follows Section 7 which deals with delegation of power and the last is Section 8 which confers power on the State Government to make rules for carrying out all or any of the purposes of the Act. It was common ground between the parties that no rules have so far been made by the State Government under this section14. Soon after the coming into force of the Act of 1973, the Board issued a notification dated 28th March, 1973, which contained inter alia the following directions:1. The syllabus and scheme of examination for the Higher Secondary School Certificate Examination 1976 shall continue as per the Higher Secondary School Certificate Examination, 19752. Leaving aside General English and Tamil for Classes IX and X, so far as the rest of the subjects are concerned, the text books recommended or prescribed by the Board for the Higher Secondary School Certificate Examination 1975 shall be the recommended or prescribed text books for the Higher Secondary School Certificate Examination, 1976The State Government thereafter in exercise of the power conferred under Section 4, sub-section (1) of the Act of 1973 issued a notification dated 24th May, 1973, according its approval to certain text books on Botany, Zoology, History, Elements of Commerce and English for the Higher Secondary School Certificate Examination, 1976. It was recited in the notification that the approval to these text books was given by the State Government in consultation with the Board15. The petitioner thereupon filed the present petition claiming various reliefs under Article 32 of the Constitution.

Court's reasoning:
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.