STATE OF TAMIL NADU Vs. S K KRISHNAMURTHI

JUDGEMENT

(1.) 22. 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 Court.

(2.) 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 respondent's 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 representator 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.

(3.) Before us it is submitted on behalf of the State of Tamil Nadu by the learned Advocate General that the High Court adopted two contradictory positions in that while holding that the rules approving the text books and prescribing them for schools though administrative in character are not for the benefit of the publishers nonetheless a representation is said to have been made to them that once they are prescribed they will not be changed for three years. 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 respondent's 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 altered. The 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 Inspectress 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 rules.