ORDER
S.P. Khare, J.
1. This is a petition under Article 226 of the Constitution of India for a direction to the respondents to take over the management of the School of the petitioner.
2. The petitioner is a registered Society. It is running a High School in Kari Nagar Panchayat area in district Tikamgarh. The State Government has upgraded the Government Middle School in Kari to High School level. The petitioner’s proposal for taking over the management of its school has been rejected by the Government by order dated 22-3-1997 in view of its policy decision dated 10-3-1997 not to take over the management of any private school. In an earlier writ petition the petitioner was directed to make the representation to the Government and that has been rejected by the impugned order.
3. The petitioner’s case is that with the establishment of Government High School in the year 1996 the strength of the students in the school run by the petitioner has gone down. It is also the case of the petitioner that subsequent to the said policy decision the State Government has taken over the management of 18 schools and that amounts to discrimination against the petitioner.
4. The case of the respondents is that 18 private schools have been taken over after the policy decision keeping in view the educational needs, financial resources and other relevant factors. The Government has considered the case of the petitioner and has taken the decision not to take over the management of this school.
5. After hearing the learned counsel for both the sides this Court is of the opinion that a mandamus cannot be issued in such a case to the Government directing it to take over the management of the petitioner’s School. That writ can be issued against a public authority to perform a public duty imposed upon it by the Constitution or by any other law. The respondents are not obliged under law to take over the management of the school of the petitioner. The petitioner does not have a judicially enforceable legal right. There is no imperative duty cast upon the respondents by law to take over the petitioner’s school.
6. The office of a mandamus is to campel the performance of a plain and positive duty. It is issued at the instance of one who has a clear right to demand such performance. It has been held by the Supreme Court in Shabi Construction Company v. City and Industrial Development Corporation, (1995) 4 SCC 301 that before one can seek a writ of mandamus he has to prove that he has a legally protected and judicially enforceable right. It has been further laid down in M. P. Oil Extraction v. State of M. P., (1997) 7 SCC 592 that the Court cannot and should not overstep its limit and tinker with the policy decision of the executive functionary of the State. Policy decision is in the domain of the executive authority of the State and the Court should not embark on the uncharted ocean of public policy and should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India.
7. In this case the Government has considered the case of the petitioner as per earlier order of this Court and rejected it in view of its policy decision. The respondents have admitted that eighteen private schools have been taken over by the Government even after that date in view of the educational needs of that area and its financial resources. The Government is in a better position to decide the question of taking over the management of a school. The Court cannot usurp that function. That would entail a financial burden on the ex- chequer. The exercise of the discretion by the Government in refusing to take over the management of the petitioner’s school cannot be said to be arbitrary, discriminatory or unreasonable.
8. The petition is dismissed.
