Case: State of Tamil Nadu &amp; Others Vs. S.K. Krishnamurthi &amp; Others

1. Writ Petitions were filed in the High Court of Madras by publishers of text-books for Government Schools, Dist Board and Municipal Council Schools challenging the directions of the Deputy Secretary to Government, Education Department, contained in his D. O. letter No. 54582/E5/69, Education, dated 12th August, 1969, addressed to District Collectors and Local Board authorities that they should intimate to the publishers of the books which are prescribed for the year 1969-70 that after the end of the School year they will no longer be prescribed. A Division Bench of the High Court allowed the Writ Petitions. From this decision, 19 appeals are before us by certificate. It appears that the Government of Tamil Nadu in furtherance of its policy to nationalise text-books for schools, was intending to publish them through the Tamil Nadu Text Books Corporation pursuant to which it had issued the impugned D.O. letter. The writ petitions which are the subject matter of these appeals raise similar grounds and we will adopt the averments in writ petition No. 768/70 as being typical of the other writ petitions, which course was also adopted by the High Court2. The respondent in that appeal alleged that the impugned D.O. letter giving the aforesaid directions is illegal and void as being contrary to the Madras Educational Rules and the Text-Book Committee Rules made by the Governor of Tamil Nadu in pursuance of the powers vested under Article 162 of the Constitution and affected respondents fundamental rights under Article 19(1)(g) of the Constitution inasmuch as his business of publishing Text-Books has been seriously jeopardised and has practically been brought to a stand-still; that it is not open to the Government of Tamil Nadu to act contrary to the general rules made under Article 162 of the Constitution; that the policy of nationalisation of the text-books is itself illegal and void; that the principles of natural justice have been violated in that under the rules once text-books have been approved and selected for the schools and have been prescribed, they remained current for three years, as such to cancel the continuance for the remaining period without notice and without hearing would result in heavy financial loss; and that as under Article 19(6) of the Constitution the trade carried out by the private citizens can be restricted only in pursuance of a law which enables the State to have a monopoly of that trade, it will not be open to the State to set up a Text Books Society to have a monopoly over the text-books trade without the authority of law and an executive order purporting to do this would be violative of Article 19 (1)(f) and (g) of the Constitution. It was further averred that even if it is assumed that Article 19 (6) does not apply to their case, their fundamental rights cannot be restricted only for the purpose of enabling a State or the Corporation owned or controlled by the State to carry on the particular trade to the exclusion of private citizens. The High Court disposed of the Writ Petitions merely on the ground that even though the Madras Education Rules like the Text Book Committee rules have been issued in exercise of the administrative powers vested in the Government, the inhibition against change of selected text-books within a period of three years is not for the purposes of safeguarding the interest of the publishers but is conceived in public interest, namely, that the institution concerned should not be at liberty to change the books every year which may involve hardships to the students. Nonetheless it was of the view that a publisher of text-books could proceed on the basis that he has some sort of assurance that once his books have been selected and prescribed as text books, those books will remain to be so prescribed for three years on which expectation he may, from a business point of view, have the requisite number of text-books printed in advance or stock the same. It further observed that the publisher can well say unless the rules are changed, by no administrative instructions, the three years period can be curtailed to his prejudice. On this assumption it held that "if a representation is made to some one of a particular state of affairs to continue over a time and he acts on it and as a result does something which has cost him time and money the representation or the person who induced the belief and expectation will not be at liberty to go back upon his representation or holding out of expectation and withdraw his stand to the prejudice of the one who has acted upon it". The petitioner was therefore, entitled to invoke this principle in his favour in the instant case. The contention urged on behalf of the State of Tamil Nadu that the rules being merely in the nature of administrative instructions, do not have the force of law and cannot be enforced in courts was negatived on two grounds, firstly, that even as an administrative instruction, if it has the force of representation which a publisher may well rely on and commit himself to a certain position, it is not open to the authority to resile from it to his prejudice and secondly, that the rules referred to are obviously traceable to the executive power of the Government under Article 162 of the Constitution and provide for the procedure for registration of publishers submission of books by them for approval and their selection, which books if approved and selected, are to be valid for a certain duration. For these reasons the High Court observed that "even as an administrative instruction when it is codified in that form, it is bound to be followed", and therefore, the executive cannot say that because they have the administrative invoke such administrative power and act for the purpose of its adoption in individual cases contrary to the generality and tenor of the rules.

Court's reasoning:
There is in our view no warrant for concluding that the Madras Education Rules and the Text Book Committee Rules hold out any representation or even an assurance to the publishers that the books once prescribed will not be changed nor as contended by the respondents advocate is there any justification for the assumption that these rules envisage the participation of the publishers in the scheme and as such the Government will be estopped from resiling from the representation that the period will not be alteredThe Madras Education Rules though called rules are administrative instructions for the guidance of the Department. Rule 58 which deals with the text books states that a consolidated list of text-books authorised by the Government to be used under the several subjects is published annually in the Fort St. George Gazette; that Manager of schools are at liberty to select from the latest list such books as they may deem most suitable provided that the text-book so selected shall not be changed within three years of their introduction in any of the schools except with the previous approval of the District Education Officer in the case of boys schools and the Inspectors in the case of girls schools. It further states that no books (other than books for religious instruction) not authorised by the Government shall be used in any recognised school. The Government, however, reserve to itself the right to forbid or to prescribe the use of any book or books in the recognised schools. The rules relating to Madras text-books Committee which were issued on November 26, 1965, set out the objects of the Committee, its constitution, the general grounds on which the books may be described as unsuitable, expression, printing and get-up registration of publishers, rules relating to recognised schools, fees for scrutiny of books submitted for approval of the text-books committee, etc. In Rule 27, it is provided that any book approved for use in recognised schools as text-book shall retain its approval for five years and in Rule 30 it is provided that all text-books used in recognised schools shall be selected only from the approved list of text-books issued during the year excepting books published by or on behalf of the Government. It is also provided in Rule 32 that under the powers delegated to him by the Government, the Director retains on behalf of the Government the right to prescribe text books in a particular subject for use in reconised schools even though such books have not been approved by the text book committee. A perusal of these rules show that they are in the nature of Departmental instructions and do not confer any right on the publishers. Nor are they, as held by the High Court, designed to safeguard the interests of the publishers but are conceived in public interest. The Government is at liberty to change those text books or to delete from or add to the list or even prescribe books which are not in the list. When once it is accepted that those instructions do not confer any right on nor create an interest in the publishers but are conceived in the public interest and the Government has full liberty in the matter of control over the kind of books that should be prescribed in the schools the publishers cannot say that once they are prescribed they cannot be changed within the period for which they are stated to be current. The period during which Text-Book once prescribed is to continue is more an injunction to the Managers of the schools than an assurance to the publishers that they will not be changed because that power even if it is conferred by administrative rules made under Article 162, which in our view they are not empower the managers subject to the approval of the authority concerned to change them within the period specified therein or the Government to forbid or prescribe the use of any book or books in the recognised schools. The impugned letter in this case can, therefore, be said to have been issued by the Government in exercise of the power reserved to it under those very rules4. Even dehors these provision the instructions do not extent to the publishers and kind of representation or assurance. The selection of any text-books by the Committee does not confer any rights on the publishers that their text books will be prescribed. All that the selection implies is that the books have been approved as fit and of the standard which can be prescribed for respective classes in the schools by their managers. There is no undertaking that they will be prescribed. If any of the schools prescribe the books in the approved list for their classes there is no assurance or a holding out by them that a particular number of books will be required. If the books that are printed are not sold the risk is that of the publishers. Nor can the schools which have prescribed the book hold the publishers responsible if they cannot at any time supply sufficient number of books to cope with the needs of the school. All that the instructions that a books prescribed should not be changed for three years imply, as the High Court rightly recognised is to avoid any hardship to the students. Students may fail and have to repeat the course the next year, or those who are promoted may not afford new books but might go in for second hand books used in the previous years. These are some of the hardships that may be sought to be avoided by requiring the books prescribed to be current for three schools years5. It is true that a representation can be made to a person either directly or indirectly if it was intended to be made to him when it is brought to his notice. But that is not the case here as it was in the Union of India v. Indo-Afghan Agencies Ltd., (1968) 2 SCR 366  = (AIR 1968 SC 718 ) where under a scheme to increase exports to woollen textiles, as an incentive it was provided that an exporter will be granted certificates to import raw materials of a total amount equal to 100% of the f.o.b. value of his exports. The scheme was under the Imports (Control) Order 1955 made pursuant to section 3 of the Imports and Exports (Control) Act 1947. Clause 10 of the scheme provided that the Textile Commissioner could grant an import certificate for a lesser amount if he is satisfied after holding an enquiry, that the declared value of the goods exported is higher than the real value of the goods. The Textile Commissioner collected evidence ex parte and acting upon the report of a Committee appointed by him, passed orders reducing the import entitlements of the respondents without informing them or giving them an opportunity to explain the materials on the basis of which the said action was taken. This Court held that it could not be assumed merely because the policy is general in terms and deals with the grant of licences for import of goods and related matters, that it is statutory in character. But even if it is only executive or administrative in character Courts have power in appropriate cases to compel performance of the obligations imposed by the scheme upon the Departmental authorities. On the terms of the scheme and the facts of the case, the action of the Textile Commissioner in reducing the "import entitlement" was considered to be bad and struck down. This case was later considered to be bad and struck down. This case was later considered and explained in Sankaranarayanan v. The State of Kerala, (1971) 2 SCC 361  = (AIR 1971 SC 1997 ) and in an unreported decision in Narinderchand Hemraj v. Lt. Governor, Union Territory, Himachal Pradesh, C.A. No.1313 of 1970, D/- 5-10-1971 (reported in AIR 1971 SC 2399) to both of which one of us (Hegde J.) was a party. In the former case it was pointed out that "there is no question of any representation having been made by the Government which was acted upon to their detriment by the appellants". In the later case one of us, Hegde, J., pointed out that in the Indo-Afghan Agencies case, (1968) 2 SCR 366  = (AIR 1968 SC 718 ). "This Court did not hold that the Government was not competent to change the scheme. If the scheme had statutory force, it bound the Government as much as it bound the exporters. In that event the Court was competent to compel the Government to act according to the scheme. If on the other hand the scheme contained merely administrative instructions then the Government having made the representation referred to earlier, on the basis of which the exporters had exported certain goods, the Government was estopped from going back on the representation made by it"6. The case which is more analogous to the one before us is State of Assam v. Ajit Kumar Sharma, (1965) 1 SCR 890  = (AIR 1965 SC 1196 ) where a Constitution Bench of this Court which considered the claim of the teacher of a private College affiliated to the Gauhati University in Assam which received grants-in-aid from the State on certain conditions set out in the form of Rules held that he was not entitled to maintain a Writ Petition under Article 226 of the Constitution. In that case, Rule 7 of the Rules provided that if a teacher stood for elections to the Legislature, he should be on compulsory leave without pay from the date of the filing of his nomination till the end of the next academic session or till the termination of the term of office to which he may be elected as the case may be. The respondent who had recourse to the Rule had after obtaining permission stood as a candidate for Parliament and was defeated. Thereafter, he rejoined his post but was informed that he has been granted compulsory leave without pay till the end of the academic session. It was against this direction that he filed a Writ Petition challenging the rule as being without legal force and not binding on the Governing Body or the Respondent, which contention was negatived on the ground that the rules were merely administrative instructions not having the force of the law as statutory rules and govern matters between private colleges and the Government. In any view of the matter, the claim of the respondents that there was any representation made to them or intended to be made is not justified.