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PETITIONER: STATE OF TAMIL NADU & ORS. ETC.

       Vs.

RESPONDENT: S.   K. KRISHNAMURTHI, ETC.  ETC.

DATE OF JUDGMENT18/01/1972

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN HEGDE, K.S. PALEKAR, D.G.

CITATION:  1972 AIR 1126            1972 SCR  (3) 104  1972 SCC  (1) 492  CITATOR INFO :  RF         1980 SC1285  (48)

ACT: Madras  Educational  Rules and  Text-Book  Committee  Rules- Nature  of-Rights  of  Publishers  of  approved  text-books- Government, if estopped from changing  text books.

HEADNOTE: In  furtherance  of  the policy of  the  appellant-State  to nationalise textbooks for schools, directions were issued to District  Collectors and Local Board authorities  that  they should  intimate  publishers of the  text-books  which  were prescribed for the year 1969-70, that, after the end of  the school  year  they  will  no  longer  be  prescribed.    The publishers  challenged the validity of the  directions.   Th High  Court allowed the petitions on the ground that  though the  Madras  Educational Rules and the  Text-Book  Committee Rules-under which lists of approved text-books are published in  the Gazette-are administrative instructions and are  not framed  for  the benefit of publishers,  nonetheless,  under those rules, a publisher of text-books could proceed on  the basis that he ha,% an assurance that once his books had been selected and prescribed as text-books, they will continue to be prescribed for 3 years. Allowing the appeal to this Court, HELD  :  (1)  The Rules are in the  nature  of  Departmental Instructions and do not confer any right on the  publishers, nor   are  they  designed  to  safeguard  the  interest   of publishers.   They are conceived in public interest and  the Government is at liberty to change the textbooks and  delete from  and  add to the list of approved  text-books  or  even prescribe  books which are not in the list.  Therefore,  the impugned  directions have been issued by the  Government  in exercise  of  the  power,,.  reserved to  it  by  the  Rules themselves. [108C-E F-G ] (2)  There is no warrant for concluding that the Rules  held out   any  kind  of  representation  or  assurance  to   the publishers, or that the Rules envisaged their  participation in  the scheme and as such the Government was estopped  from resiling from the representation that the period of 3  years will not be altered. [107D-F]

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The selection of text books by the Text-Book- Committee does not involve any assurance to the publishers that their text- books  will be prescribed.  The selection only implied  that the  books  have  been  approved.  It  any  of  the  schools prescribed  any  of  the approved  text-books  there  is  no assurance  as to the number of books that may  be  required. The  period during which a text book once prescribed  is  to continue,  is  an injunction to the Managers of  schools  to avoid  hardship  to failed candidates or  to  poor  students intending to buy second band books.  It is not an  assurance to  the  publishers, because, the Managers  can  change  the text-books within the specified period with the approval  of the prescribed authority. [108 E-H:109 A-C] State of Assam v. Ajit Kumar Sharma & Ors., [1965] 1 S.C.R.. 890, followed. 105 Union of India v. M/s.  Indo-Afghgan Agencies Lid., [1968] 2 S.C.R.  366,  Sankaranarayanan,  etc. v.  State  of  Kerala, [1971]  2 S.C.R. 361 and M/s.  Narinder chand Hemraj &  Ors. v.  Lt.  Governor, Union Territory Himachal Pradesh &  Ors., C.A. No. 1313/70 dt. 5-10-71, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : C.A. No. 557 to 575 of 1971. Appeals from the judgment and order dated September 3, 1970 of  the Madras High Court in Writ Petitions Nos.  768,  1465 and 1483 of 1970. S.   Govind  Swaminadhan, Advocate-General for the State  of Tamil  Nadu, S. Mohan and A. V. Rangam, for  the  appellants (in all the appeals). K.   K. Venugopal and K. R. Nambiar, for the respondents (in (C.A.S No. 557 to 559 and 561 to 575 of 1971). The Judgment of the Court was delivered by P.   Jaganmohan  Reddy, J. 22 Writ Petitions were  filed  in the  High  Court of Madras by publishers of  text-books  for Government  Schools,  Distt.  Board  and  Municipal  Council Schools  challenging the directions of the Deputy  Secretary to  Government Education Department, contained in  his  D.O. letter No. 454582/ 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. 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 vasted under Article 162  of the  Constitution  and  affected  respondent’s   fundamental rights under Article 19 (I) (g) of the Constitution inasmuch as  his business of publishing TextBooks has been  seriously jeopardised and has practically been brought to  a  stand-

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stilt;  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 -L864SupCI/72 106 text-books  is itself illegal and void; that the  principles of  natural  justice have been violated in  that  under  the rules once textbooks have been approved and selected for the schools and have been prescribed, they remained current  for three  years,  as such to cancel this  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 ) & (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  107 may  well rely on and commit himself to a certain  position, it  is  not open to the authority to resile from it  to  his

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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  power  they are entitled to use  and  invoke such  administrative  power and act for the purpose  of  its adoption in individual cases contrary to the generality  and tenor of the rules. 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 publisher nonetheless a representation is said to have been made to then 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 Managers  of  schools  are, at liberty to  select  from  the latest  list  such  books as they  may  deem  most  suitable provided  that  the  text-books 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 1 08 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-book committee, etc.   In Rule  2", 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 11  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

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behalf  of the Government the right to prescribe  text-books in a particular subject for use in recognised 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 approval as well as the power 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 a  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. Even dehors these provisions the instructions do not  extend to  the publishers any 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 109 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  book  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 school years. 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 & Ors v.  M/s. Indo-Afghan  Agencies  Ltd.(1),  where  under  a  scheme  to increase exports of 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

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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 rant an  import  certificate  for  a  lesser  amount  if  he   is satisfied, after holding an enquiry, that the declared value of  the goods exported is hi-her 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  entitlement,-,  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  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  and explained in Sankaranarayanan, etc. etc.  v. The  State of Kerala (2), and in ’an unreported decision  in M/s. (1) [1968]  2 S.C.R. 366.          (2) [1971] 2 S.C.R. 361. 110 Narinderchand  Hemraj  and  Ors.  V.  Lt.   Governor,  Union Territory, Himachal Pradesh & Ors.(1), 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 "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". The case which is more analogous to the one before us is The State  of  Assam  and  Another  v.  Ajit  Kumar  Sharma  and Others(2)  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 the 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 this 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 rules  as being without legal, force and not binding on  the

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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.   In this  view,  the  appeals are allowed but  as  some  of  the contentions raised in the petitions have not been considered by the High Court, the matter is remanded to it for disposal according to law.  There will be no order as to costs. V.P.S.                       Appeals allowed. (1)  C.A. 1313/70 decided on 5-10-71. (2)  [1965] 1 S.C.R. 890. 111