REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4346 OF 2010
(Arising out of SLP (Civil) No.15730 of 2008)
Secretary, Cannanore District Muslim
Educational Association, Kanpur ..Appellant(s)
Versus
State of Kerala and others ..Respondent(s)
J U D G M E N T
GANGULY, J.
1. Leave granted.
2. The appellant is the Secretary of Cannanore District
Muslim Educational Association, Karimbam
(hereinafter referred to as the `Appellant’), which
is a Society registered under the Societies
Registration Act (Central Act 21/1860). The
Appellant had established Sir Syed College in 1967
1
and it was imparting degree courses along with some
pre-degree courses in various streams constituting
11 batches of a total of 80 students in each batch.
3. The Respondents, took a policy decision to abolish
the Pre-degree Courses conducted in the colleges and
enacted the Pre-degree Courses (Abolition) Act,
1997.
4. Subsequently, the respondents decided that those
colleges which were running classes up to High
School may be allowed to add classes up to the 12th
standard in place of pre-degree courses. Those
colleges which did not have any classes till the
High school level were to be allowed to run High
Schools and were also to be allowed Higher Secondary
courses. Notice inviting applications from the
management of schools, both government as well as
private, and from colleges were issued for the first
time for the academic year 1997-1998 vide
notification dated 2.04.97.
2
5. The policy decision of the Government in this regard
was upheld by the High Court by judgment dated
29.8.2002 in W.A.No.2716/2000.
6. The mode of implementation of this policy was the
subject matter of a series of litigations where the
Respondents were accused of discrimination. The
Appellant before us has a similar grievance.
7. Writ Petition(C) No. 11167 OF 2006 was filed by the
appellant challenging the non-sanctioning of the
Higher secondary courses to its school. The other
connected Writ Petitions which were disposed of by
the impugned judgment were filed by the management
or the teachers of the neighbouring schools,
challenging the grant of a High school to the
Appellant.
8. The Appellant had been applying for Higher Secondary
courses ever since 1996. However, its applications
were not considered by the respondents in light of
the policy that the Government was allowing only
those applicants who already had existing High
Schools. Since many of the managements did not have
3
High Schools to start higher secondary courses, the
Government issued a preliminary notification on
25.06.1998 for starting High Schools at a certain
number of designated places as per Chapter V
Rule(2) Sub-rule(2)of the Kerela Education Rules,
1959. The ward to which the Appellant belonged i.e.
ward No. 15 of Taliparamba Municipality was also
included in the earlier notification dated
13.06.2000 but it was excluded subsequently as the
Government received some objections. An O.P. No.
29989/99 was filed by the Government wherein the
High Court directed that the case of the Appellant
be considered. Pursuant to this direction, the
Appellants were given an assurance that they will be
given the High School as and when the financial
position of the Government improves.
9. Then by an order dated 31.05.2003, ten schools were
given the sanction to open aided High Schools but
the appellant was denied the same facility.
10. After repeated representations before the
respondents, the appellant was sanctioned a High
School and a Higher Secondary School in ward No. 15
4
of Taliparamba Municipality after a decision to that
effect was taken in a meeting dated 08.10.03 of the
Council of Ministers, as a special case.
11. But the said decision for sanction of Higher
Secondary classes was not implemented in the light
of the decision of the High Court in W.P.(C). No.
29124/03 wherein the High Court had directed the
Respondents that newer Higher Secondary schools were
not to be sanctioned by them without further orders
from the Court.
12. Subsequently, in partial implementation of the order
of 08.10.03, it started a High School from 9.8.2004
pursuant to the said order and the classes commenced
during the academic year 2004-05 and the School
became a complete High School during the academic
year 2006-07.
13. In view of repeated representations of the appellant
Association, the State Cabinet on 13.10.2005 decided
to grant three batches of Higher Secondary courses
to the appellant in the aided sector, subject to
getting the permission of this Court. For this
5
purpose, the Government filed I.A. No.1816/06 in
W.P.(C) No.22532/04 and connected cases. But, High
Court dismissed the said application, on the ground
that the aggrieved persons may approach the Court.
14. Thereupon a Writ Petition was filed by the appellant
seeking mainly the relief that the High Court may
issue a writ in the nature of mandamus or any other
appropriate writ, order or direction directing the
respondents to sanction an aided Higher Secondary
school to the appellant herein, as was done in the
case of other aided college managements, so that the
higher secondary school can commence functioning
during the academic year 2006-07 itself.
15. Alleging discrimination in general, it was the
specific contention of the Appellant in the Writ
Petition that while other managements were being
granted High Schools and Higher Secondary Schools
simultaneously or immediately, one after the other,
the appellant herein was not sanctioned Higher
Secondary School after the sanction of the High
School. It also prayed that the order of 08.10.03 by
which the Government had already granted Higher
6
Secondary courses to the appellant may be
implemented.
16. The question before the High Court was whether the
Higher Secondary school was to be sanctioned to the
Appellant as per the old policy and the subsequent
orders or in view of the new policy as per the
G.O.(P)No.107/07/G.Edn dated 13.6.2007, which was
produced by the Respondents before the High Court
along with a memo, containing the norms for
sanctioning new schools, courses etc. Respondents in
their Counter Affidavit had contended before the
High Court that in view of the various allegations
of discriminations against it, it is planning to
review the entire matter afresh by appointing a
Committee. It was urged before the High Court in its
affidavit that vide the order dated 19.8.2006, it
had formed a Committee to look into the allegations
of irregularities in the sanctioning of the High
Schools and Higher secondary schools. It was also
urged that by the order dated 22.8.2006, the
Government was to set up a Committee to review the
irregularity in the sanctioning or the upgradation
of several schools in the aided sector in violation
7
of the procedure prescribed in the Kerela Education
Rules after the period of 1.1.2003. It further
contended that in view of the above, the old
sanction for a Higher Secondary school given to the
appellant did not hold good anymore and the
respondents contended that the appellant’s case
would be considered afresh after it would formulate
new norms as per the findings of the above appointed
Committees. Thus, it subsequently passed the new
G.O. dated 13.6.2007.
17. The Hon’ble High Court while dismissing the
appellants’ Writ Petition held that the earlier
orders governing grant of Higher Secondary Schools
was no longer valid and has been replaced by the new
order G.O.(P) No.107/07/G.Edn dated 13.6.2007 and
the Appellant does not have any statutory right to
get the sanction of running Higher Secondary classes
18. It also held that the Government did not owe a
corresponding duty to the appellant to sanction the
school as per the previous order and that “…the
Government cannot be tied down to a policy
8
permanently. It should be conceded freedom to change
it from time to time”.
19. The High Court shared the apprehension that if it
orders the Government to sanction a Higher Secondary
School to the appellant herein, it may impinge upon
the budgetary allotment of Government funds. This,
it held that sanction of this course, was a
Government function on which a Court cannot step in.
In coming to this finding the Hon’ble High Court
relied on a decision of the Court of Appeal in R. v.
Cambridge Health Authority, ex p B [(1995)2 All ER
129] where the Court of Appeal refused to interfere
with the validity of a decision of the Health
Authority of not alloting funds for the treatment of
a child. High Court also referred to the decision
in the case of State of H.P. and another v. Umed Ram
Sharma [(1986) 2 SCC 68].
20. The respondent No. 4 before this Court moved an
application for impleadment as a necessary party in
the W.P.(C) No. 11167 OF 2006 before the High Court
and which was allowed by the High Court. In its
Counter Affidavit, the Respondent No. 4 had
9
challenged the Writ Petition on the ground that the
sanctioning of the High School to the Appellant
itself is illegal and has been made in violation of
the Rules in Chapter V of the Kerela Education
Rules. It was also contended that the sanction of
the Higher Secondary school to the Appellant would
prejudice other schools in the nearby area and would
also not be necessary as the number of existing
schools are enough for that area. This issue was
heard with the other connected Writ Petitions.
21. In the connected writ petitions, the main challenge
was with respect to the sanction of a High School to
the Appellant on the ground that it was done in
violation of the Rule 2A of Chapter V of the Kerela
Education Rules. These writ petitions were filed
either by the managers or the teachers of the
schools. They contended that in case of an already
existing statutory provision governing a particular
field, the implementation of a new scheme under the
provision can only be done by amending the existing
provision; in this case, Rule 2, Chapter V of the
Kerela Education Rules.
10
22. The High Court while rejecting the Writ Petition
upheld the government’s right to change its policy
and also opined that the government cannot be tied
to any policy. After coming to this conclusion, the
High Court held that in the context of the changed
policy of the government, it is not proper for the
Court to interfere.
23. This Court is of the opinion that so far as the
right of the government to change its policy is
concerned, the High Court’s conclusion is correct.
The High Court is equally right in holding that the
government cannot be tied down to any policy. But
unfortunately, the High Court did not examine the
impact of the government policy on the admitted
facts and circumstances of the case. This Court is
of the opinion that High Court especially the Writ
Court cannot take a mechanical or strait jacket
approach in this matter.
24. It appears that the appellant is a religious
minority. As a religious minority, it has a
fundamental right to establish and administer
educational institutions of its choice in view of
11
the clear mandate of Article 30. Apart from the
fundamental right of the appellant to establish and
administer an educational institution, the right of
the appellant to get the sanction of running a Class
XII School was also accepted by the government to
the extent that the government applied to the High
Court for its permission to seek an order for
implementation of its decisions dated 08.10.03 and
13.10.05 whereby sanction was given to the appellant
to run Higher Secondary Courses. Those decisions of
the government to sanction higher secondary courses
in favour of the appellant could not be implemented
in view of the order of the High Court dated
05.04.06 to the effect that the High Court wanted
the aggrieved persons to approach the Court. In the
background of these facts, the writ petition was
filed and during the pendency of the writ petition
came the revised policy of the government. In that
policy, it has been made very clear that there is no
need to sanction or upgrade government or aided
schools in the normal course.
25. The High Court should have appreciated the facts of
the case and come to the conclusion that the
appellant’s case does not come under the normal
12
course. But the High Court refused to do so and
took, as noted above, a mechanical approach.
26. The High Court in support of its decision relied on
the judgment of the Court of Appeal in Cambridge
Health Authority (supra). That was a case of refusal
to allocate funds for the treatment of a minor girl
who was 10= years old. The child was suffering from
non-Hodgkins Lynphona with common acute
Lymphoblastic Leukaenia. It was thought that no
further treatment was possible except giving the
child palliative drugs. The child’s father sought
further medical opinion and experts advised a second
bone marrow transplant, which could only be
administered privately and not in a National Health
Service hospital, and that too with 10 to 20%
chances of success. In the background of these facts
the child’s father requested the health authority to
allocate funds amounting to #75,000 for the proposed
treatment which the health authority refused. The
father of the child applied for a judicial review of
the decision of the health authorities. The question
was what the Court should do in such a situation?
13
27. The learned single judge quashed the decision of the
health authority and directed it to reconsider its
decision. Then on appeal against the decision of the
learned single judge, the Court of Appeal allowed
the appeal. Sir Thomas Bingham, Master of Roll,
presiding over the Court of Appeal held that the
learned Single judge failed to recognize the
realities of the situation. Considering the
constraints of budget on the health authority, the
Master of Roll held:-
“Difficult and agonising judgments have to be
made as to how a limited budget is best
allocated to the maximum advantage of the
maximum number of patients. That is not a
judgment which the court can make. In my
judgment, it is not something that a health
authority such as this authority can be fairly
criticised for not advancing before the court”
(See at page 137, placitum `F’)
28. But the facts of this case do not have even a remote
resemblance to the facts in Cambridge Health
Authority (supra). In this case the government was
willing to sanction the higher secondary classes to
the appellant-institution and to the effect applied
to the High Court for getting the necessary
permission and that application of the government
14
was disposed of by the Court in the manner indicated
above. In between came the change of policy but
financial crunch was never the reason for denying
the prayer of the appellant to run the higher
secondary course.
29. While dismissing the Writ Petition, the High Court
also relied on the decision of this Court in the
case of Umed Ram (supra).
30. In Umed Ram (supra), the Respondents, who were poor
harijans in the State of Himachal Pradesh wrote a
letter to the High Court of Himachal Pradesh
complaining about the incomplete construction of the
road and also complained of the fact that such
construction has been stopped in collusion with the
authorities causing immense hardship to the poor
people and that is why the Court’s intervention was
prayed for. The Court treated the said letter as a
writ petition and directed the superintending
engineer of PWD to complete the work in the course
of the financial year.
15
31. The superintending engineer before the High Court
gave an estimate that for the purposes of the
widening of the road, Rs. 95,000/- was required but
only Rs. 40,000/- was available in the course of the
current financial year. Before this Court,
Government challenged those directions of the High
Court questioning the High Court’s jurisdiction
under Article 226 of the Constitution to direct the
State Government to allot particular funds for
expenditure in addition to the funds already
allotted and thus regulate the residual financial
matters of the State.
32. The Government raised questions on the basis of
Articles 202-207 of the Constitution pointing out
the Government’s exclusive domain in financial
matters as indicated in those articles. The three
judge bench of this court considered the matter in
detail and ultimately upheld the High Court’s
directions as not transgressing the limit, in view
of the provisions of Articles 38, 19 and 21 of the
Constitution. [See para 39, pg. 82-83]
16
33. Therefore, this decision does not support the
conclusion reached by the High Court in this case.
On the other hand, the decision in Umed Ram (supra)
upheld the power of the Court to act in public
interest in order to advance the constitutional goal
of ushering a new social order in which justice,
social, economic and political must inform all
institutions of public life as contemplated under
Article 38 of the Constitution.
34. Paragraph 21 of the judgment in Umed Ram (supra)
which has been quoted by the High Court does not
constitute its ratio. The High Court, therefore,
with great respect, failed to appreciate the ratio
in Umed Ram (supra) in its correct perspective.
35. While dismissing the writ petition the Hon’ble High
Court with respect, had taken a rather restricted
view of the writ of Mandamus. The writ of Mandamus
was originally a common law remedy, based on Royal
Authority. In England, the writ is widely used in
public law to prevent failure of justice in a wide
variety of cases.
17
36. In England this writ was and still remains a
prerogative writ. In America it is a writ of right.
(Law of Mandamus by S.S. Merrill, Chicago, T.H.
Flood and Company, 1892, para 62, page 71).
37. About this writ, SA de Smith in `Judicial Review of
Administrative Action’, 2nd edn., pp 378 & 379 said
that this writ was devised to prevent disorder from
a failure of justice and defect of police and was
used to compel the performance of a specific duty.
38. About this writ in 1762 Lord Mansfield observed that
`within the past century it had been liberally
interposed for the benefit of the subject and
advancement of justice’.
39. The exact observations of Lord Mansfield about this
writ has been quoted in Wade’s `Administrative Law,
Tenth Edition’ and those observations are still
relevant in understanding the scope of Mandamus.
Those observations are quoted below:-
“It was introduced, to prevent disorder from a
failure of justice, and defect of police.
Therefore it ought to be used upon all
occasions where the law has established no
18
specific remedy, and where in justice and good
government there ought to be one…..The value
of the matter, or the degree of its importance
to the public police, is not scrupulously
weighed. If there be a right, and no other
specific remedy, this should not be denied.
Writs of mandamus have been granted, to admit
lecturers, clerks, sextons, and scavengers &
c., to restore an alderman to precedency, an
attorney to practice in an inferior court,&
c.” (H.W.R. Wade & C.F. Forsyth:
Administrative Law, 10 th
Edition, page 522-
23).
40. De Smith in Judicial Review, Sixth Edition has also
acknowledged the contribution of Lord Mansfield
which led to the development of law on Writ of
Mandamus. The speech of Lord Mansfield in R Vs.
Blooer, (1760) 2 Burr, runs as under:
“a prerogative writ flowing from the King
himself, sitting in his court, superintending
the police and preserving the peace of this
country”.(See De Smith’s Judicial Review 6th
Edition, Sweet and Maxwell page 795 para 15-
036.
41. Almost a century ago, Darling J quoted the
observations in Rex Vs. The Justices of
Denbighshire, (1803) 4 East, 142, in The King Vs.
The Revising Barrister etc. {(1912) 3 King’s Bench
518} which explains the wide sweep of Mandamus. The
relevant observations are:
19
“..Instead of being astute to discover reasons
for not applying this great constitutional
remedy for error and misgovernment, we think
it our duty to be vigilant to apply it in
every case to which, by any reasonable
construction, it can be made applicable….”
(See page 529)
42. At page 531 of the report, Channell, J said about
Mandamus:
“It is most useful jurisdiction which enables
this Court to set right mistakes”.
43. In Dwarka Nath Vs. Income Tax Officer, Special
Circle, D. Ward, Kanpur and another – AIR 1966 SC
81, a three-judge Bench of this Court commenting on
the High Court’s jurisdiction under Article 226
opined that this Article is deliberately couched in
comprehensive language so that it confers wide power
on High Court to `reach injustice wherever it is
found’.
44. Delivering the judgment Justice Subba Rao (as His
Lordship then was) held that the Constitution
designedly used such wide language in describing the
nature of the power. The learned Judge further held
that the High court can issue writs in the nature of
prerogative writs as understood in England; but the
20
learned Judge added that the scope of these writs in
India has been widened by the use of the expression
“nature”.
45. Learned Judge made it very clear that the said
expression does not equate the writs that can be
issued in India with those in England but only draws
an analogy from them. The learned Judge then
clarifies the entire position as follows:
“..It enables the High Courts to mould the
reliefs to meet the peculiar and complicated
requirements of this country. Any attempt to
equate the scope of the power of the High
Court under Article 226 of the Constituion
with that of the English Courts to issue
prerogative writs is to introduce the
unnecessary procedural restrictions grown over
the years in a comparatively small country
like England with a unitary form of Government
to a vast country like India functioning under
a federal structure. Such a construction
defeats the purpose of the article itself….”
(See para 4, page 85)
46. Same view was also expressed subsequently by this
Court in J.R. Raghupathy etc. Vs. State of A.P. and
Ors. – AIR 1988 SC 1681. Speaking for the Bench,
Justice A.P. Sen, after an exhaustive analysis of
the trend of Administrative Law in England, gave His
21
Lordship’s opinion in paragraph (29) at page 1697
thus:
“29. Much of the above discussion is of little
or academic interest as the jurisdiction of
the High Court to grant an appropriate writ,
direction or order under Article 226 of the
Constitution is not subject to the archaic
constraints on which prerogative writs were
issued in England. Most of the cases in which
the English courts had earlier enunciated
their limited power to pass on the legality of
the exercise of the prerogative were decided
at a time when the Courts took a generally
rather circumscribed view of their ability to
review Ministerial statutory discretion. The
decision of the House of Lords in Padfield’s
case (1968 AC 997) marks the emergence of the
interventionist judicial attitude that has
characterized many recent judgments.”
47. In the Constitution Bench judgment of this Court in
Life Insurance Corporation of India vs. Escorts
Limited and others, [(1986) 1 SCC 264], this Court
expressed the same opinion that in Constitution and
Administrative Law, law in India forged ahead of
the law in England (para 101, page 344).
48. This Court has also taken a very broad view of the
writ of Mandamus in several decisions. In the case
of The Comptroller and Auditor General of India,
Gian Prakash, New Delhi and another Vs. K.S.
Jagannathan and another – (AIR 1987 SC 537), a
22
three-Judge Bench of this Court referred to
Halsbury’s Laws of England, Fourth Edition, Volume I
paragraph 89 to illustrate the range of this remedy
and quoted with approval the following passage from
Halsbury about the efficacy of Mandamus:
“..is to remedy defects of justice and
accordingly it will issue, to the end that
justice may be done, in all cases where there
is a specific legal right and no specific
legal remedy for enforcing that right, and it
may issue in cases where, although there is an
alternative legal remedy yet that mode of
redress is less convenient beneficial and
effectual.” (See para 19, page 546 of the
report)
49. In paragraph 20, in the same page of the report,
this Court further held:
“…and in a proper case, in order to prevent
injustice resulting to the concerned parties,
the Court may itself pass an order or give
directions which the Government or the public
authority should have passed or given had it
property and lawfully exercised its
discretion”
50. In a subsequent judgment also in Shri Anadi Mukta
Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti
Mahotsav Smarak Trust and Ors. Vs. V.R. Rudani and
Ors. – AIR 1989 SC 1607, this Court examined the
development of the law of Mandamus and held as
under:
23
“21. ……….mandamus cannot be denied on the
ground that the duty to be enforced is not
imposed by the statute. Commenting on the
development of this law, Professor De Smith
states: “To be enforceable by mandamus a
public duty does not necessarily have to be
one imposed by statute. It may be sufficient
for the duty to have been imposed by charter
common law, custom or even contract.”
(Judicial Review of Administrative Act 4th Ed.
P. 540). We share this view. The judicial
control over the fast expanding maze of bodies
affecting the rights of the people should not
be put into water-tight compartment. It should
remain flexible to meet the requirements of
variable circumstances. Mandamus is a very
wide remedy which must be easily available `to
reach injustice wherever it is found’.
Technicalities should not come in the way of
granting that relief under Article 226. We,
therefore, reject the contention urged for the
appellants on the maintainability of the writ
petition.” (See page 1613 para 21).
24
51. The facts of this case clearly show that appellant
is entitled to get the sanction of holding higher
secondary classes. In fact the Government committed
itself to give the appellant the said facility. The
Government’s said order could not be implemented in
view of the court proceedings. Before the procedural
wrangle in the court could be cleared, came the
change of policy. So it cannot be denied that the
appellant has a right or at least a legitimate
expectation to get the permission to hold Higher
Secondary classes.
52. The appellant is a minority institution and its
fundamental right as a religious minority
institution under Article 30 also has to be kept in
view.
53. It is therefore really a case of issuance of
mandamus in the appellant’s favour. Merrill on
Mandamus has observed that it would be a monstrous
absurdity if in a well-organized government no
remedy is provided to a person who has a clear and
undeniable right. It has been also observed where a
25
man has a jus ad rem (a right to a thing) it will be
`absurd, ridiculous and shame to the law, if Courts
have no remedy and the only remedy he can have is by
mandamus.’ [See para 11, pages 4-5]
54. For the reasons aforesaid this court cannot uphold
the judgment passed by High Court in W.P. No.11167
of 2006. The judgment is set aside and this court
directs the respondent state to sanction Higher
Secondary course in the appellant’s institution from
the next academic session with this rider that the
appellant must follow the extant statutory
procedures for the appointment of teachers in the
Higher Secondary section.
55. The appeal is allowed. Parties are left to bear
their own costs.
…………………J.
(G.S. SINGHVI)
…………………J.
(ASOK KUMAR GANGULY)
26
New Delhi
May 7, 2010
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