NARAINDAS INDURKHYA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(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 Government. 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 classes.

(2.) 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 1970-71. 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 so.

(3.) 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: