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PETITIONER: NARAINDAS INDURKHYA

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH & ORS.

DATE OF JUDGMENT18/03/1974

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. RAY, A.N. (CJ) KHANNA, HANS RAJ MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A.

CITATION:  1974 AIR 1232            1974 SCR  (3) 624  1974 SCC  (4) 788  CITATOR INFO :  RF         1976 SC1207  (179)  R          1979 SC 888  (3,14,16)  F          1982 SC  33  (21)

ACT: Madhya  Pradesh  Prathmik  Middle  School  Tatha   Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyav v istha)  Adhiniyan, 1973,  S.  4(1)  and 4(2)--Whether  State  Government  could prescribe    text   books   in   exercise    of    executive power--Education Board not expressly empowered to  prescribe books--if     could     prescribe     text     books      on languages--Distinction     between    recommendation     and prescription--Whether  consultation  with  Chairman  of  the Board would amount to consultation with the Board. Constitution  of  India--Art. 14 and  19(1)(g)--If  the  Act violates Art. 162--Scope of.

HEADNOTE: By  Section  8  of the  Madhya  Pradesh  Madhyarrik  Shiksha Adhiniyam,  1965  the  Board  of  Secondary  Education   was empowered  to  prescribe  courses  of  instruction  in  such branches  of Secondary education as it may think  fit.   The Board  claimed  that  the  power  to  prescribe  courses  of instruction  carried  with it by necessary  implication  the power to prescribe text books, and did prescribe text  books on  languages.  This Act was replaced by the Madhya  Pradesh Prathmik  Middle  School  Tatha  Madhyamik  Shiksha  (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, 1973.  Section 4(1) empowered  the  State  Government to  prescribe  text  books according  to syllabi laid down under s. 3. The  proviso  to sub-section  (1) enacted that the text books  for  secondary education shall not be prescribed without prior consultation with the Board.  Sub-section (2) of this section stated that the  text  books prescribed by the State Government  or  the Board  and ’in force’ immediately before the  appointed  day shall,  till  they  are  changed  in  accordance  with   the provisions of this Act, be the text-books prescribed for the purpose of sub-section (1).  Sub-section (3) prohibited  the use of any books,other than the text books prescribed  under

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subsection  (1)  or referred to in sub-section  (2)  in  any approved school or recognised school from the appointed day, that  is,  23rd  March, 1973.  In  exercise  of  the  powers conferred  by  section 4(1) the State  Government  issued  a notification  dated  24th  May, 73 giving  its  approval  to certain   text-books   for  the  Higher   Secondary   School Certificate  Examination  in which it was  stated  that  the approval  of  these  text  books  was  given  by  the  State Government  in  consultation  with the  Board  of  Secondary Education.   A notification was issued by the Board on  28th March, 1973 giving directions that the scheme of examination for the higher secondary school certificate examination 1976 shall continue as per the same examination in 1975 and  that except for the language subjects the text-books  recommended or  prescribed  by  the Board for  higher  secondary  school certificate  examination 1975 in respect of  other  subjects shall  be the recommended or prescribed text-books  for  the same examination for the year 1976. The  petitioner carried on business in printing,  publishing and selling text-books for use in schools in the State.  The petitioner was one of the publishers who registered  himself with the Board and submitted text-books published by him for the  approval of the Board.  From among the  books  received for  approval the Board recommended certain  text-books  but none  of  the text-books prescribed or  recommended  by  the Board was text book printed and published by the petitioner. In  a petition under article 32 of the Constitution  it  was contended (1) that before the 1973 Act the State  Government had  no statutory authority to prescribe any textbooks  and, therefore,  the  text-books  published  by  the  Text   Book Corporation and prescribed by the State Government could not be  said  to  be validly prescribed and they  could  not  be regarded  as  text-books ’in force’ immediately  before  the appointed  day under s. 4(2) of the Act, (2) that there  was no statutory provision empowering the Board to Prescribe any text-books on languages and the notification prescribing the text-books was ineffective because it was issued 625 by  the  Board and not by the State Government  which  alone could  prescribe the text-books under s. 4(1); (3) that  the text-books recommended by the Board could not be regarded as text-books  ’in force’ immediately before the appointed  day under  s. 4(2) and the notification dated 28th  March,  1973 issued  by the Board did not have the effect of  prescribing any  of  these text-books (4) that though  the  notification dated  24th May, 1973 stated that the approval to the  text- books  was accorded by the State Government in  consultation with the Board, there was’ in fact, no prior consultation as required by the proviso to sub-section (1) of section 4  and the notification was, therefore, void, and (5) that  section 4  imposed  unreasonable restrictions  on  the  petitioner’s right  to  carry on his business in as much as  it  did  not provide  adequate machinery for selection of text books  and left  it  to the unfittered and unguided discretion  of  the State  Government  and so was violative of  article  14  and 19(1)(g) of the Constitution. HELD: The text-books printed and published by the Text-books Corporation  were  validly and lawfully  prescribed  by  the State Government in exercise of its executive power and they were ’in force’ immediately before the appointed day.  These text-booksaccordingly  fall  within  the  category   of prescribed text-books under s. 4(2)and  s. 4(3) of  the Act.  The action of the State Government in prescribing  the text-books,   printed  and  published  by  the   Text   Book Corporation,  to  the exclusion of other text-books  on  the

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subjects  did not infringe any right of the  petitioner  and other  publishers and-it was within the executive  power  of the  State.  The State Government could act in  exercise  of executive  power in relation to any matter with  respect  to which  the State legislature had power to make laws even  if there  was no legislation to support executive  action;  but such  executive  action  must not  infringe  rights  of  any person. The    fact   that  prior  to  1973  there  was   no statutory  provision  like  s.4(1) of  the  1973  Act  which empowered  the State Government to prescribe any text  books did  not-mean that the State Government was not entitled  to prescribes these books in exercise   of  its   executive power under article 162 of the Constitution.[638-D;    B-C; 636 G] Rai  Sahib  Ram Jawaya Kapur v. State of  Punjab,  119551  2 S.C.R. 225 followed. Bennett Cokman & Co. v. Union of India [1972] 2 S.C.R.  788, State  of  Madhya Pradesh v. Thakur Bharat Singh,  [1967]  2 S.C.R. 454 referred to. (2) The Board has undoubtedly the power to prescribe courses of  instruction  in languages, but it does not  include,  as necessarily  incidental to it, the power to prescribe  text- books  on  languages.   It is not correct to  say  that  the course of instruction in language cannot be laid down except by reference to text books prescribed for the purpose.   The prescription  of  text books on languages  was  outside  the power  of the Board and hence it was ultra vires and had  no binding  effect which would oblige the schools to  use  only those  text  books  and  no others. it  is  only  the  State Government  and not the Board which is given power under  s. 4(1) to prescribe text books and therefore, the notification dated 28th March, 1973 which was issued by the Board and not by  the State Government was futile and ineffectual and  did not have the effect of prescribing these text books under s. 4(1).  The Board is a creature of the statute and unless the statute creating it invests it with power to prescribe text- books  so as to make it obligatory on the schools  to  adopt such text books and no other for study and teaching, it  can not claim to exercise such power.  The Board also, cannot in the  absence of power expressly or by necessary  implication conferred  on  it  by the statute. make it  a  condition  of recognition of schools that they shall follow only the  text books prescribed by it and no other text books shall be used by them for study and teaching.  The Act of 1965 under which the Board was created did not in express terms give power to the  Board  to  prescribe text books,  nor  did  it  provide anywhere  that  the  Board shall be entitled to  make  it  a condition of recognition that the schools shall use the text books  prescribed by it and no others. [639 B; 640 B-D;  638 E-G] (3)  The notification dated 28th March, 1973 cannot be  read as  representing  exercise of power under s.  4(1)  and  the status of prescribed text books could not be accorded to the four  text books on the strength of this notification.  [641 B] There  is  a basic distinction  between  recommendation  and prescription  of  tex  books. Prescription of  a  text  book carries  with  it a binding obligation to  follow  the  text book.   There  is no such obligation when a book  is  merely recommended. 626 No  conferment  of statutory power is needed to  enable  the Board to recommend text books and no question of ultra vires can  arise  in  such a case.  The  text  books  were  merely recommended  and not prescribed by the Board and being  only

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recommended text books, they obviously could not be said  to be ’in force’ immediately before the appointed day.  Section 4(2)  did  not, therefore, apply in respect  of  these  text books. [640 E-H] (4) The notification dated 24th May, 1973 must be held to be invalid  as being in breach of the mandatory requirement  of the proviso to section 4(1) of the Act.  It is clear  beyond doubt  that there was no prior consultation with  the  Board before  the State Government issued the  notification.   The proviso  to section 4(1) clearly lays down a  condition  for the exercise of power and unless this condition is satisfied the  power cannot be exercised by the State Government.   It is  settled law that where the validity of an order  depends on  the fulfilment of a condition precedent and there  is  a recital  in  the  order  that  the  condition  precedent  is satisfied,   the  presumption  arises  in  favour   of   the satisfaction of the condition precedent and the burden is on the  person  challenging the satisfaction of  the  condition precedent to prove that in fact the condition precedent  was not satisfied.  In the instant case the question as to  what text books should be recommended to the State Government for prescription  was not placed before the general  meeting  of the  Board,  nor was any resolution passed  by  the  general meeting  of  the  Board recommending any  text  books.   The recommendations in regard to the text books were made by the Chairman  of the Board, which were not made as an  emergency measure  nor  was  any  power of the  Board  vested  in  the Chairman by the regulations.  There is nothing in the Act or the  regulations  which  says  that  consultation  with  the Chairman would be tantamount to consultation with the Board. The  consultation  which Government had before  issuing  the notification dated 24th May, 1973 was consultation with  the Chairman and not with the Board. [644 E; 641F] Swadeshi Cotton Mills v. The State of U. P. [1962] 1. S.C.R. 422. referred to. (5) No fundamental right guaranteed to the petitioner  under article 19(1)(g) was infringed, if the State Government,  in exercise of the statutory power conferred under s. 4(1), did not prescribe text books printed and published by them.   It is not possible to say that arbitrary and uncontrolled power has  been veste in the State Government and on that  account Section 4(1) is bad.  The power to select and prescribe text books  is not an unguided and unfettered power which  leaves it free to the State Government to select and prescribe such text books as it may wantonly or capriciously please, but it is  a power which is confined and embanked within limits  by the object and purpose for which it is conferred.  The State Government  has to exercise this power in the light  of  the policy or principle that the best possible text books should be made available to the students. [648A; 649 D,B] It is true that the power conferred on the State  Government is  a  large, discretionary power and no machinery  is  laid down  by the legislature which would ensure just and  proper execution of the power by the State Government, but on  that account  alone conferment of the power connot be held to  be invalid.  Whenever a discretionary power is conferred on any authority there is always a potential danger of its exercise or  abuse, however much the legislature may try to hedge  it with  safeguards.  But the mere possibility that  the  power may  be misused or abused cannot per se induce the court  to deny the existence of the power.  The State legislature  has confided  this  power not to any petty official but  to  the State  Government  and that itself is a guarantee  that  the power  would be exercised in conformity with the  policy  or principle laid down in the statute. [649G]

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Matajob Dobea v. R. C. Bhari, [1955] 2 S.C.R. 925.

JUDGMENT: ORIGINAL  JURISDICTION  :  Writ Petition No.  1177  of  1973 (Under Article 32 of the Constitution for enforcement of the fundamental rights). 627 B. Sen with K. P. Munshi, U. K. Khaitan and S. R.  Agarwala, for the petitioner. Y.  S. Dharmadhi Kari with Ram Punjwani and.   I.N.  Sharff. for the respondent 1-3 (In W. P. 1177) V. N. Ganpule and Urmila Sirur for the respondent 4-6 (in W. P. 1177) The Judgment of the Court was delivered by BHAGWATI, J.-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 reorganisation of States under the States Reorganization Act,  1956,  a  new  State  of  Madhya  Pradesh  was  formed comprising  of territories of the existing States of  Madhya Pradesh  known  as Mahakoshal area, the territories  of  the existing  State  of Madhya Bharat,  excluding  Sunel  Tappa, Sironj  SubDivision of 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 Mahakoshal and Madhya Bharat regions of the State of Madhya Pradesh and we shall, therefore, so  far as  any  references to the position obtaining prior  to  the reorganization  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  Primay,  Middle  school  and  Higher Secondary.   Primay  education consists of classes I  to  V, Middle School, of classes VI to VIll and Higher Secondary of classes  IX to XI.  Primary and Middle school education  may be considered together, for barring a short period upto  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 as 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 and 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 628 the  State Government were followed by them, they would  not be  recognized by the Board of Secondary Education so as  to

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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 schools  sections were recognized by the State Government.  So far as the text books for use in Primary and Middle school classes were con- cerned,  the  State  Government  prescribed  29  text  books printed and published by it on different subjects for use in different  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  estoppage  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 Corporation)  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 Corporation, 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. There  was, however, a change in the course  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 syallabi  in  certain  subjects  to  be  followed  from  the academic  year 1971-72 and directed that so far  as  courses ,of  instruction  and syallabi 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 instruction and  syallabi so  prescribed, were rendered useless and in  their  place,. new  text  books  had to be brought out which  would  be  in conformity   with  such  new  courses  of  instruction   and syallabi.   The Text Books Corporation  accordingly  printed and  published  28  text books in accordance  with  the  new courses of instruction and syallabi and these 629 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

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published  by the State Government as a separate  book,  was amalgamated  by the Text Books Corporation with Bal  Bharati Part  1. These 28 text books brought out by the  Text  Books Corporation  were  referred to by the  State  Government  as ’nationalized 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 syallabi 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  in- troduced new courses of instruction and syallabi in  certain subjects and with regard to the rest, directed that the same courses  of instruction and syallabi 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  the new  courses  of instruction and  syallabi  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 then and as appears from  the circular  dated 30th August 1973 issued by the  Director  of Public  Instruction,  an  order dated 23rd  Match  1973  was issued  by  the State Government prescribing these  36  text books  for  use in the Primary and  Middle  school  classes. This order had 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. So  far as Higher Secondary education is concerned,  it  was regulated  by the Madhya Pradesh Education Act, 1951 in  the Mahakoshal region 630 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 reorganization  of  that  State.   Section  3  of  that  Act provided  for  the incorporation of the Board  of  Secondary Education and s. 4 laid down its composition.  The powers of

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the  Board were set out in s. 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 taxt 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 ss. 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 educationists.   The functions of the Text  Books  Committee were difined by s. 19 to be as follows               "(1)  to  select  text  books  for  prescribed               courses   of  instructions  and  syllabi   for               Secondary Education;               (2) to prepare a panel of expert reviewers for               each of the subjects included in the secondary               school education curriculum;               (3) to appoint expert committees consisting of               not  more than three members from amongst  the               panel  of  experts  to examine  and  submit  a               detailed  report  on the  suitability  of  the               books referred to them;               (4) to invite experts to write text books  and               other books of study, if necessary,--" Though  one  of the functions entrusted to  the  Text  Books Committee was to select text books for prescribed courses of instruction and syllabi, no power was given to the Board  to prescribe  the  text  books  selected  by  the  Text   Books Committee.  The Board, however, claimed to have the power to prescribe  text  books in languages on the ground  that  the power  to  prescribe courses of instruction and  syllabi  in languages carried with it by necessary implication the power to prescribe text books and on that view, the Board, on  the basis  of the selections made by the Text  Books  Committee, prescribed  text  books  in  English,  Hindi,  Marathi   and Sanskrit. 631 The  Madhya Pradesh Madhyamik Shiksha Adhiniyam 1965  (here- inafter  referred to as the Act of 1965) was enacted by  the Madhya Pradesh Legislature on 29th September 1965 and by  s. 30,  it  repealed the Act of 1959.  Section 3  of  that  Act provided  for  the incorporation of the Board  of  Secondary Education  and  its  constitution was laid  down  in  s.  4. Section  8  defined the powers of the Board  which  included inter alia the power:               "(a)  to  prescribe couses of  instruction  in               such branches of Secondary Education as it may               think fit;               (in) to advise the State Government as to  the               courses  of instruction and syllabi of  Middle

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             School  Education  with a view to  secure  co-               ordination between Middle School and Secondary               Education; The  last quoted cl.(m) of s. 8 clearly postulated that  the State  Government  has  the power to  prescribe  courses  of instruction and syllabi for Middle School classes.   Section 24  empowered  the Board to  constitute  various  committees which  included inter alia Committees of Courses  and  their constitution,  powers and duties were to be provided by  re- gulations  made  by  the Board under s. 28.   The  Board  in exercise of the power conferredunder  s.  28  made   the Board of Secondary Education, MahdyaPradesh Regulations, 1965 (hereinafter referred to as the Regulations).Regulation 30  provided  that  the Board shall  appoint  Committees  of Courses  in  the subject enumerated in that  regulation  and each  Committee of Courses was enjoined by regulation 32  to "lay  down a syllabus in the subject or subjects with  which it  is  concerned,, and recommend suitable text  books  when called upon to do so".  It was not stated in the Regulations as  to  who  could call upon the  appropriate  Committee  of Courses to recommend suitable text books but obviously  what was  contemplated  was  that the  Board  would  require  the appropriate Committee of Courses to make recommendations  in regard  to  text books.  Now, the Board was  not  given  the power   to   prescribe  text  books,  and   therefore,   the recommendation  of  suitable  text books  invited  from  the appropriate  Committee  of  Courses could only  be  for  the purpose of enabling the Board in its turn to recommend  such text  books  for  use by schools  in  the  Higher  Secondary classes.   In fact, the Board did not claim to exercise  the power  to  prescribe text books on any subjects  other  than languages.    The  Board  prescribed  text  books  only   on languages  and so far as the other subjects were  concerned, the  Board  merely recommended text books on some  of  those subjects. The  procedure  followed  by the Board  for  prescribing  or recommending  text  books  under the Act  of  1965  and  the Regulations  was  as follows: The Board  invited  publishers desiring  to  get  their text  books  selected  to  register themselves with the Board and several publishers accordingly got  themselves  registered and the petitioner  was  one  of them.   The  detailed  instructions  and  specifications  in regard to the text books 632 on matters such as quality of paper, number of pages,  price etc.  were  laid  down  by the  Board  and  the  registered- publishers  were  invited to submit text books  prepared  in accordance  with  such instructions and  specifications  for selection by the Board.  The registered publishers than  got the  text books written by authors of their choice  in  con- formity  with  the  prescribed courses  of  instruction  and syllabi and printed in accordance with the instructions  and specifications  given by the Board and submitted  such  text books to the Board for selection.  The text books which were received  from the registered publishers were then  sent  to three  reviewers  appointed by the Board  for  the  relevant subject  for evaluation after removing the title  page,  the names of the author and the publisher and every other matter that  might  indicate  the identity of  the  author  or  the publisher.   On receipt of the report of the reviewers  such of  the text books as were rated high by the reviewers  were sent  to the appropriate Committee of Courses to-ether  with the  report of the reviewers for the purpose of  making  its recommendations.  The appropriate Committee of Courses after scrutinising  the text books and considering the  evaluation

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made  by the reviewers made its recommendation to the  Board as  regards the merits of the text books submitted  for  its consideration.   The Chair man of the Board then, by  virtue of the authority conferred upon him by the Resolution of the Board  dated  12th October, 1971, selected  the  text  books after  considering  the  report of  the  reviewers  and  the recommendation  of the appropriate Committee of Courses  and the  text books so selected were prescribed or  recommended, as  the  case  may be, by the Board.   This  procedure  gave opportunity to all the registered publishers to submit their text  books  for  selection  by the  Board  and  provided  a machinery  for  selection  of  the best  text  books  to  be recommended or prescribed by the Board. The  record before us does not show precisely what were  the language  on which text books were prescribed by the  Board, but it does appear from the affidavits and the  notification dated 28th March, 1973 issued by the Board, that text  books were  prescribed  by  the Board for most  of  the  languages taught  in the primary and middle schools,  barring  General English  and Tamil for classes IX and X. So far as the  text books  recommended by the Board were concerned,  there  were four  notifications  issued by the Board from time  to  time recommending text books on different subjects for classes IX and X for the period commencing from the academic year 1972- 73  for  the  Higher Secondary  School  Leaving  Certificate Examination,  1975.  The first was a notification dated  5th April, 1972 by which the Board recommended six textbooks  on Civics, the second was a notification dated 25th April, 1972 by which the Board recommended five text books on Economics, the third was a notification dated 26th April, 1972 by which the  Board recommended eight text books on Physics  and  the fourth was a notification dated 17th May, 1972 by which  the Board recommended eight text books on Chemistry.  There were thus  four subjects on which text books were recommended  by the  Board.  It was not seriously disputed on behalf of  the petitioner that the procedure set out above 633 for  selection of text books was substantially  followed  by the  Board  in  prescribing  text  books  on  languages  and recommending text books on these four subjects.  None of the text books prescribed or recommended by the Board was a text book   printed  and  published,  by  the  petitioner.    The petitioner  had submitted text books on Civics, Physics  and Chemistry. for selection by the Board but they were rejected by the reviewers as they were found to be below standard and were  printed on poor quality paper and were  also  costlier than   the   text  books  submitted  by   other   registered publishers. This was the position which obtained when the Madhya Pradesh Prathamik,  Middle  School Tatha Madhyamik  Shiksha  (Pathya Pustakon  Sambandhi Vyavastha) Adhiniyam, 1973  (hereinafter referred  to as the Act of 1973) was enacted by  the  Madhya Pradesh  Legislature.   This  Act came into  force  on  23rd March, 1973 being the date appointed under sub-s. (3) of  s. 1. The provisions of this Act are material and we may  refer to them.  Section 2, cl. (e) defines text book in the widest Possible  terms and according to this definition,  it  means any book approved by the State Government in accordance with the  syllabi  prescribed  under  the Act  for  use  for  any examination  conducted  under  the authority  of  the  State Government or by the Board or held in an approved school  or a school recognized by the Board and includes other books of study  or instructional material such as maps,  designs  and other  material  of  like  nature  approved  by  the   State Government  for  any standard of primary  education,  middle

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school  education or secondary education in accordance  with the syllabi laid down under the Act.  Section 3, sub-s.  (1) provides that the State Government may from time to time  in relation  to primary education and middle  school  education and the Board may from time to time in relation to Secondary education,  lay  down syllabi and publish the same  in  such manner as may be prescribed and sub-s. (2) of s. 3 says that the  syllabi  laid  down under the authority  of  the  State Government  in  the  case of primary  education  and  middle school  education and by the Board in the case of  secondary education and in force immediately before the appointed day, i.e.,  23rd March, 1973 shall be the syllabi laid  down  and published for the purpose of sub-s. (1) of s. 3. Then  comes section  4 which deals with the prescription of  text  books according to syllabi laid down under s. 3. Since that is the section  which is impugned in the present petition,  we  may reproduce it :               "4(1)  The  State Government  may,  by  order,               prescribe the text books according to  syllabi               laid down under section 3;               Provided   that  text  books   for   secondary               education  shall  not  be  prescribed  without               prior consultation with the Board.               (2)  The  text books prescribed by  the  State               Government  or  the  Board  according  to  the                             syllabi  referred  to in  sub-section  (2)  of               section 3 and in force immediately before  the               appointed  day shall till they are changed  in               accordance with the provisions Of this Act, be               the  text books prescribed for the purpose  of               subsection, (1). 634               (3) As from the appointed day, no books  other               than  the  text books  prescribed  under  sub-               section  (1) or referred to in subsection  (2)               shall  be  used  in  any  approved  school  or               recognized  school for imparting  instructions               in   accordance   with  syllabi   in   primary               education,   middle   school   education    or               secondary education." The  State  Government  is also given power under  s.  5  to undertake the preparation, printing or distribution of  text books  itself  or to cause the text books  to  be  prepared, printed or distributed through such agency as it thinks  fit on such terms and conditions as may be prescribed.   Section 6,  provides  that the text books prescribed  by  the  State Government for any standard of secondary education shall  be text  books  prescribed  for  such  standard  of   secondary education in accordance with the syllabi and the Board shall be bound to accept the same when so prescribed by the  State Government.   Then  follows  section  7  which  deals   with delegation of power and the last is section 8 which  confers power on the State Government to make rules for carrying out all or any of the purposes of the Act.  It was common ground between  the parties that no rules have so far been made  by the State Government under this section. Soon  after  the coming into force of the Act of  1973,  the Board  issued  a notification dated 28th March,  1973  which contained inter alia the following directions               1. The syllabus and scheme of examination  for               the   Higher  Secondary   School   Certificate               Examination  1976  shall continue as  per  the               Higher     Secondary    School     Certificate               Examination, 1975,

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             2. Leaving aside General English and Tamil for               classes  IX and X, so far as the rest  of  the               subjects   are  concerned,  the   text   books               recommended or prescribed by the Board for the               Higher     Secondary    School     Certificate               Examination  1975 shall be the recommended  or               prescribed text books for the Higher Secondary               School Certificate Examination, 1976. The  State  Government thereafter in exercise of  the  power conferred under s. 4, sub-s. (1) of the Act of 1973 issued a notification dated 24th May, 1973 according its approval  to certain  text books on Botany, Zoology, History, Element  of Commerce  and  English  for  the  Higher  Secondary   School Certificate  Examination,  1976.   It  was  recited  in  the notification that the approval to these text books was given by the State Government in consultation with the Board. The petitioner thereupon filed the present petition claiming various reliefs under Art. 32 of the Constitution.   Several contentions were raised in the petition which has the  great demerit of being a highly prolix and confused document,  not easily  yielding  to analysis, but it is  not  necessary  to delve  into  the petition to find out  all  the  contentions taken  there, since at the hearing the learned  counsel  for the petitioner confined his arguments only to the  following contentions 635               A.  Prior to the enactment of the Act of  1973               the   State   Government  had   no   statutory               authority to prescribe any text books for  the               primary  and  middle school  classes  and  the               notifications  dated 21st May, 1971  and  10th               May,  1972  issued  by  the  State  Government               prescribing   28   text  books   printed   and               published  by the Text books  Corporation  for               use  in some of the primary and middle  school               classes were, therefore, without the authority               of  law and these 28 text books could  not  be               said  to  be validly prescribed by  the  State               Government          nor could they be said  to               be ’in force’ immediately before the appointed               day,  and  if that be so, they  could  not  be               regarded as text books prescribed under sub-s.               (2) of s. 4.               B.   Though  text  books  on  languages   were               prescribed   by  the  Board,  there   was   no               statutory provision empowering the Board to do               so and the prescription of these text books by               the   Board   was,  therefore,   without   the               authority  of law and these text  books  could               not  be said to be validly prescribed  by  the               Board  or to be ’in force’ immediately  before               the  appointed day so as to qualify for  being               regarded as text books prescribed under s.  4,               sub-s. (2) The Notification dated 28th  March,               1973 undoubtedly provided that these textbooks               shall be prescribed text books for the  period               commencing from the academic year 1973-74, but               that Notification was ineffective to prescribe               any text books under s. 4, sub-s. (1)  because               it  was  issued by the Board and  not  by  the               State  Government which alone could  prescribe               text books under s. 4, sub-s. (1).               C.  The  Board by  issuing  the  notifications               dated 5th April, 1972, 25th April, 1972,  26th               April,   1972  and  17th  May,   1972   merely

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             recommended  certain  text  books  on  Civics,               Economics, Physics and Chemistry.  These  text               books  were  not prescribed by the  Board  and               they were not in force’ immediately before the               appointed day.  They could not, therefore,  be               regarded as text books prescribed under s.  4,               sub-s.  (2).   Though the  notification  dated               28th   March,  1973  was  issued   after   the               appointed  day. it did not have the effect  of               prescribing  any of these text books under  s.                             4,  sub-s. (1), firstly, because it wa s  issued               by the Board and not by the State  Government,               and  secondly,  because it did not  more  than               merely  direct that these text books shall  be               recommended   text   books  for   the   period               commencing from the Academic year 1973-74.               D.  Though  the notification dated  24th  May,               1973  recited  that the approval to  the  text               books  mentioned  in  the-  notification   was               accorded   by   the   State   Government    in               consultation with the Board, there was in fact               no  prior  consultation  with  the  Board   as               required by the proviso to S. 4, sub-s.(1) and               the notification prescribing these text books,               was therefore, null and void.               E. Section 4 imposed unreasonable restrictions               on the right of the petitioner to carry on his               business of printing publishing and 636               distributing  text books for use  in  Primary,               Middle  School and Higher  Secondary  Classes,               inasmuch  as it did not provide a  proper  and               adequate  machinery for selection of the  best               available  text  books  and  left  it  to  the               unguided  and  unfettered  discretion  of  the               State Government to prescribe at its own sweet               will  such  text  books at  it  liked  without               providing  any  standard  or.  guidance  which               would regulate the exercise of such discretion               arid   it  was,  therefore,  void   as   being               violative    of   Art.   19(1)(g)    of    the               Constitution.  This section was also violative               of the equality clause contained in Art. 14 of               the  Constitution inasmuch as it  enabled  the               State  Government to discriminate between  one               publisher  and  another by leaving it  to  the               unrestrained  will of the State Government  to               prescribe such text books as it liked  without               laying  down any machinery which would  ensure               selection of the best available text books  by               giving equal opportunity to all publishers. These  were  the  only contentions urged on  behalf  of  the petitioner  which  need to be considered. and we  shall  now proceed to examine them. Re:A. This  contention  relates  to  28  text  books  printed  and published   by  the  Text  Books  Corporation.   The   State Government  prescribed  these 28 text books for use  in  the primary  and middle school classes at the time when the  Act of 1973 had not been enacted and the question is whether the State  Government  was  entitled to do so.   There  was,  of course,  then no statutory provision, like s. 4, sub-s.  (1) of the Act of 1973, which empowered the State Government  to prescribe  any text books and the prescription of  these  28

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text  books had, therefore, no legal force.  But  that  does not  mean  that  the State Government was  not  entitled  to prescribe  these 28 text books in exercise of its  executive power  under Art. 162 of the Constitution.   ’The  executive power of the State Government under Art. 162 extends to  all matters  with  respect to which the  State  Legislature  has power  to make laws and since education is a  subject  which falls within entry I 1 of List II of the Seventh Schedule to the  Constitution, the State Government could apparently  in exercise  of  its executive power prescribe  these  23  text books,  provided that in doing so it did not trench  on  the rights  of  any  person.   It is now  well  settled  by  the decision  of  this Court in Rai Sahib Ram  Jawaya  Kapur  v. State  of  Punjab(1) that the State Government  can  act  in exercise  of executive power in relation to any matter  with respect  to- which the State Legislature has power  to  make laws,  even  if  there is no  legislation  to  support  such executive  action,  but  such  executive  action  must   not infringe the rights of any person.  If the executive  action taken  by  the State Government encroaches  on  any  private rights,  it  would  have  to  be  supported  by  legislative authority,  for under the rule of law which prevails in  our country  every  executive  action  which  operates  to   the prejudice  of any person must have the authority of  law  to support it.  Vide paragraph 27 of the judgment of this Court in Bennett Coleman & Co. V. Union of India.(2) The executive action of the State Government in entering upon the business (1) [1955] 2 S.C.R. 225. (2) [1972] 2 S.C.C. 788. 637 of printing, publishing and selling text books in Rai  Sahib Ram Jawaya’s case (1), though not supported by  legislation, was  upheld because it did not operate to the  prejudice  of any  person.  This Court took care to point out that  if  it were "necessary to encroach upon private rights in order  to enable the Government to carry on their business, a specific legislation  sanctioning  such  course  would  have  to   be passed".   The  same view was reiterated by  this  Court  in State  of  Madhya Pradesh v. Thakur  Bharat  Singh(2)  where referring to the decision in Rai Sahib Ram Jawava’s  case(l) this  Court  pointed out that in that case  it  specifically held that "by the action of the Government no rights of  the petitioners were infringed, since a mere chance or  prospect of having particular customers cannot be said to be a  right to property or to any interest or undertaking.  It is  clear that the State of Punjab had done  no act which infringed  a right  of any citizen : the State had merely entered upon  a trading  venture.  By  entering into  competition  with  the citizens,   it   did   not  infringe   their   rights".   It would,therefore,  seem  that  the  State  Government   could prescribe  these 28 text books in exercise of its  executive power provided that such action did not infringe the  rights of anyone. Now,  so far as Government schools are concerned, the  State Government  could  always,  as  the  authority  owning   and conducting  those  schools, prescribe the text books  to  be used  by the students in those schools. The prescription  of such  text books by the State Government would not  infringe the rights of any publisher, because, as pointed out by this Court  in Rai Sahib Ram Jawaya’s case,(1) there is no  right in a publisher that "any of the books printed and  published by him    should  be prescribed as text books by the  school authorities or if they are once accepted as text books  they cannot be stopped or discontinued in future". With regard to the  private  schools  also the position is  the  same.  All

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private  schools  have  to seek  recognition  by  the  State Government for two reasons. Firstly, by reason of Regulation 61, cl. (b), it is a condition of recognition of a school by the  Board  that its primary and middle sections  should  be recognized by the State Government and secondly, it is  only recognized schools which are eligible for grant in-aid  from the  State  Government.  Both these  are  highly  compelling reasons.  There are hardly any schools which have no  Higher Secondary section and that means they must have  recognition by  the  Board, but this they cannot have  unless  they  are recognized  by  the  State Government in  respect  of  their primary  and middle sections. Besides, having regard to  the high  costs  of maintenance in running a school, it  is  not possible  for  any school to function  without  grant-in-aid from the State Government and in order to qualify for grant- in-aid,   the  school  must  be  recognized  by  the   State Government.  Now,  one  of  the  main  conditions  on  which recognition  is granted by the State Government is that  the school  authorities must use as text books only those  which are  prescribed or authorised by the State Government. Thus, even though there is no law which confers power on the State Government to prescribe text books, the State Government can by   virtue  of  the  need  of  the  private   schools   for recognition. prescribe text books for them (1) [1955] 2 S.C.R. 225. (2) [1967] 2 S.C.R. 454 638 and oblige them to use such text book,,.  So far, therefore, as  the private schools are concerned, the, choice  of  text books   rests  entirely  with  the  State  Government.    No publisher  has  any right to insist that any  of  his  books shall be accepted as text books by the State Government.  He has merely a chance or prospect of any or some of his  books being approved as textbooks by the State Government.   "Such chances  are", to use the words of Mukherjee, C.J.,  in  Rai Sahib  Ram  Jawaya’5 case,(1) "incidental to all  trade  and business" and there can be no infringement of any right,  if by an action of the State Government such chances are  taken away.  The action of the State Government in prescribing  28 text   books  printed  and  published  by  the  Text   Books Corporation.  to  the exclusion of other text books  on  the subject  did  not  therefore  infringe  any  right  of   the petitioner  and  other  publishers and  it  was  within  the executive  power  of  the State Government.   This  view  is completely  supported  by  he  decision  in  Rai  Sahib  Ram Jawaya’s cast:. (1) It  must,  therefore follow that 28 text books  printed  and published  by  the Text Books Corporation were  validly  and lawfully  prescribed by the State Government in exercise  of its  executive  power and they were  ’in  force  immediately before the appointed day, These text books accordingly fail, within  the category of prescribed text books  under  sub-s. (2)  of  s. 4, and under s. 4. subs. (3)  the  approved  and recognized  schools were tinder an obligation to  use  these text  books  and  no others so far as they  related  to  the subjects for which they were prescribed. RJ: B. It is elementary that the Board is a creature of the statute and unless the statute creating it invests it with power  to prescribe  text  books so as to make it  obligatory  on  the schools to adopt such text books and no others for study and teaching, it cannot claim to exercise such power.  The Board also cannot, in the absence of power expressly or by  neces- sary  implication conferred on it by the Statute, make it  a condition  of  recognition of the schools  that  they  shall

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follow  only  the text books prescribed by it and  no  other text  books  shall be used by them for study  and  teaching. The Act of 1965 under which the Board is created does not in express  terms  give power to the Board  to  prescribe  text books, nor does it provide anywhere, that the Board shall be entitled  to  make it a condition of  recognition  that  the schools  shall  use the text books prescribed by it  and  no others,  Even the Regulations made by the Board under s.  28 of  the  Act  of  1965 do not  make  it  a  requirement  of, recognition that only the text books prescribed by the Board shall be used by the schools.  Vide Regulation 61.  The only question  is  whether there is anything in the Act  of  1965 which  by necessary- implication confers power on the  Board to  prescribe text books.  It was not seriously disputed  by the  learned  Advocate General appearing on  behalf  of  the respondents  that the Board has no power to  prescribe  text books  generally  but  his contention was that,  so  far  as languages  are concerned, the power to prescribe courses  of instruction,  which  is  admittedly  vested  in  the  Board, carries  with  it  by necessary  implication  the  power  to prescribe text books, because (1) [1955] 2 S.C.R. 225. 639 courses  of instruction in languages cannot,  be  prescribed otherwise  than  by  reference  to  particular  text   books selected  for  the  purpose. it was  urged  by  the  learned Advocate General that it is only through particular selected text  books that courses of instruction in languages can  be prescribed, and therefore, the Board has, as necessarily in- cidental to its power of prescribing courses of instruction, the  power  to  prescribe text  books  on  languages.   This contention is not well founded and cannot be sustained.  The Board  has  undoubtedly the power to  prescribe  courses  of instruction  in  languages,  but it  does  not  include,  as necessarily  incidental to it, the power to  prescribe  text books on languages. it is not correct to gay that the course of  instruction  in language cannot be laid down  except  by reference  to  text books prescribed for the  purpose.   The course of instruction in language would cover topics such as grammar, composition. prose anti poetry.  So far as  grammar and  composition are concerned, there can be no  doubt  that course  of instruction can be laid down without  prescribing any  text  books  and in fact we find  from  the  prospectus issued  by  the Board from time to time that no  text  books were  prescribed  by  the  Board  and  yet  the  course   of instruction  could be laid down with sufficient clarity  and precision  by  reference to various topics  such  as  nouns, verbs, adverbs, adjectives, tenses, complex sentences and so on  and  so forth.  The course of instruction in  prose  and poetry  can  be  easily prescribed  by  reference  to  prose passages,  short  stories,  articles, essays  and  poems  of different  authors and for this purpose it is not  necessary to prescribe any particular text books containing such prose passages, short stories,articles,  essays  and  poems.   In fact, once these prose passages,short stories,  articles, essays and poems are prescribed as part of thecourse  of instruction,  different  publishers  would  come  out   with different   text   books  compiling  these   materials   and presenting  them  in intelligible,  instructive  and  useful form.   These  different text books may vary  one  from  the other,   in  presentation,  style,  annotations,   comments, elucidations, explanatory notes, quality of printing,  price etc.   Some  may be more intelligible and useful  than  ’the others.  The chief merit of a text book on prose and  poetry would really lie not in mechanical reproduction of the prose

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passages,   short   stories,  articles,  essays   and   poem prescribed by the Board, which can be done by any publisher, but   in   the  annotations,  comments,   elucidations   and explanatory  notes  given  by  the author  with  a  view  to inculcating in the students greater understanding and keener appreciation  of  the literary and other qualities  of  such prose  passages, short stories, articles, essays and  poems. Any  one of these text books may be prescribed by the  Board and  that  would be wholly different from  prescribing’  the course  of instruction.  We may illustrate our point  by  an example.   Take a case where a play of Shakespeare is to  be prescribed.   There  are several editions  of  Shakespearian plays.   There is the Cambridge edition; there is the  Arden edition; there is the Warwick edition and there ’are a  host of   other  editions.   The  play  of  Shakespeare  can   be prescribed by referring to its title, as for example, Hamlet or  King Lear.  It is not necessary, in order  to  prescribe such  play  as a part of the course of instruction,  that  a particular edition of such play should 640 also  be  prescribed as a text book.  The two  are  entirely distinct  propositions.  The power to prescribe  courses  of instruction in languages does not require for its  effectual exercise  prescription  of  text  books  and  the  power  to prescribe text books cannot be read by necessary implication in the power to prescribe courses of instruction. It is therefore, clear, and this conclusion can be disputed, that the prescription of text books on languages was outside the power of the Board and hence it was ultra vires and  had no binding effect which would oblige the schools to use only these text books and no others.  These text books could  not in the circumstances be said to be prescribed by the  Board, nor  could they be said to be in force,  immediately  before the  appointed day so as to attract the applicability of  s. 4,  sub-s.  (2),  and they could not  claim  the  status  of prescribed  text books under S. 4, sub-s. (2).   These  text books  could not also be regarded as text  books  prescribed under  s.  4, sub-s. (1) on the basis  of  the  notification dated 28th March, 1973.  It is only the State Government and not  the Board, which is given power under s. 4, sub-s.  (1) to  prescribe  text books, and therefore,  the  notification dated  28th March, 1973, which was issued by the  Board  and not by the State Government, was futile and ineffectual  and did  not  have the effect of prescribing  these  text  books under s. 4, sub-s. (1). These   text   books   could   not, therefore, be regarded as text booksprescribed     under sub-s. .(1) or referred to in sub-s. (2) of s. 4 and in  the circumstances  there was no obligation on the  approved  and recognised  schools  to  use only these text  books  and  no others under sub-s. (3) of s. 4. Re: C. This  contention  is  self-evident and  does  not  need  any elaborate  argument.  It may be noted that there is a  basic distinction  between  recommendation and prescription  of  a text book.  When a text book is prescribed by an appropriate authority having legal power to do so, it has to be followed by the schools.  Prescription of a text book carries with it a  binding obligation to follow the text book.  There is  no such  obligation  when a text book  is  merely  recommended. Recommendation has merely a persuasive effect it being  open to the schools to accept the recommendation or to reject  it as they think fit.  The schools may use the recommended text book  or  they may not according as the  principals  choose. That  is why no conferment of statutory power is  needed  to enable the Board to recommend text books and no question  of

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ultra  vires can arise in such a case.  Now the  text  books which  formed the subject matter of the notifications  dated 5th April, 1972, 25th April, 1972, 26th April, 1972 and 17th May, 1972 were merely recommended and not prescribed by  the Board and being only recommended text books as distinguished from prescribed text books, they obviously could not be said to  be  ,in  force’ immediately before  the  appointed  day. Section, 4, sub-s. (2) did not, therefore, apply in  respect of  these text books and they could not be regarded as  text books  prescribed under s. 4, sub-s. (2).   The  respondents placed strong reliance on the notification dated 28th March, 1973 but it is difficult to see how this notification can be of  any  help  to the respondents.   This  notification  was admittedly 641 issued  by  the Board and not by the  State  Government  and moreover  it  did not even purport to prescribe  these  text books  but  merely directed that these text books  shall  be recommended  text books for the period commencing  from  the academic  year 1973-74.  It is, therefore, not  possible  to read  this  notification as representing exercise  of  power under  s.  4, sub-s. (1) and the status of  prescribed  text books  could  not  be accorded to these text  books  on  the strength  of this notification.  These text books could  not accordingly  be  regarded as prescribed  text  books  either under sub-s. (1) or under sub-s. (2) of s. 4, and section 4, sub-s.  (3) could not be invoked for contending  that  these text  books  alone  should  be  used  in  the  approved  and recognised  schools to the exclusion of text books of  other publishers. Re: D. The  validity of the notification dated 24th May,  1973  was challenged under this head of contention on the ground  that the State Government by this notification prescribed certain text  books for the Higher Secondary classes  without  prior consultation  with  the  Board  and  the  notification  was, therefore, invalid as being in contravention of the  proviso to s. 4, sub-s. (1).  Now, it is clear on a plain reading of S. 4, sub-s. (1) that though power is conferred on the State Government  to  prescribe text books  for  Higher  Secondary classes,  this  power cannot by reason of  the  proviso,  be exercised by the State Government without prior consultation with  the Board.  The proviso clearly lays down a  condition for  the exercise of the power and unless this condition  is satisfied  the  power  cannot  be  exercised  by  the  State Government.   Any  attempted exercise of the  power  without complying  with this condition would be null and void.   The question  which,  therefore, requires to  be  considered  is whether  the State Government issued the notification  dated 24th May, 1973 after prior consultation with the Board.  Now there is a recital in the notification that the approval  to the  text books mentioned in the notification was  given  by the  State Government in consultation with the Board.   This recital throws the burden of proving that there was no prior consultation  with  the  Board on  the  petitioner.   It  is settled  law that where the validity of an order depends  on the  fulfilment  of  a condition precedent and  there  is  a recital  in  the  order  that  the  condition  precedent  is satisfied,  the presumption arises in favour of  the  satis- faction  of  the condition precedent-the burden  is  on  the person   challenging  the  satisfaction  of  the   condition precedent to prove that in fact the condition precedent  was not satisfied.  See Swadeshi Cotton Mills v. The State of U. P.  (1)  The petitioner would, therefore, have  to  show  by producing  proper  and  adequate material  that  though  the

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notification recited that the State Government had consulted the Board prior to the issue of the notification, there  was in  fact no such prior consultation with the Board.  If  the petitioner, can establish this, the notification would  have to  be held to be invalid as being in contravention  of  the proviso to s. 4, sub-s. (1). Now it is clear from paragraph 134 of the affidavit filed by Chaturvedi,  Deputy  Secretary to the Government  of  Madhya Pradesh, (1) [1962] 1 S.C.R. 422. 642 Education  Department  in reply to the petition’  that  text books  on  Botany, Zoology, English, Elements  of  Commerce, History.  ’and Geography were invited by the Board from  the registered  publishers  and  various  registered  publishers submitted their text books on one or more of these  subjects for  selection  and approval by the Board.   The  petitioner also availed of this opportunity and submitted text books on History  and  Geography.  The text books received  from  the various   registered  publishers  were  then  sent  to   the reviewers  for  evaluation, there being a different  set  of expert  reviewers  for each subject, and on receipt  of  the report of the reviewers, these text books, at any rate  most of them chosen in the order of merit given by the reviewers, were  placed  before the appropriate  Committee  of  Courses along  with  the report of the reviewers.   The  appropriate Committee  of  Courses  after scrutinising  the  text  books placed before it and considering the evaluation made by  the reviewers,  submitted its recommendations to the  Board  and the Chairman of the Board, agreeing with the recommendations made by the appropriate Committee of Courses, forwarded them to the State Government as recommendations of the Board.  It appears  that no recommendations in regard to text books  on Geography were forwarded by the Chairman of the Board to the State  Government  as  all  the  text  books  on   Geography submitted for selection and approval were found to be  below the  requisite standard.  The State Government  then  issued the notification dated 24th May, 1973 prescribing text books on  Botany,  ’Zoology,  English, Elements  of  Commerce  and History in accordance with the recommendations forwarded  by the Chairman of the Board.  It will be seen from these facts that   the  question  as  to  what  text  books  should   be recommended,  to the State Government for  prescription  was not placed before the general meeting of the Board, nor  was any  resolution  passed  by general  meeting  of  the  Board recommending any particular text books.  The recommendations in regard to the text books were made by the Chairman of the Board.  This was indeed not disputed by the learned Advocate General  but  his  contention  was  that  the  Chairman  was entitled   to  act  on  behalf  of  the  Board   in   making recommendations  and  the  recommendations made  by  him  in regard   to  text  books  were  in  the  eye  of   the   Jaw recommendations  of the Board.  Now, there can be  no  doubt that  if the recommendations made by the Chairman  could  be regarded as recommendations of the Board, the requirement of the proviso to s. 4, sub-s. (1) would be satisfied.  But  we do  not  think it is possible to take this view.  (What  the proviso to s. 4, sub-s. (1) requires is that there should be prior consultation with the Board, and therefore, it is  the Board  which must give its opinion and advice to  the  State Government in regard to the prescription of text books.  Now the  Board may act by resolution passed at  general  meeting but as pointed out above, there. was no resolution passed at general  meeting of the Board recommending any  text  books. It  was the Chairman who recommended the text books and  the

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question, therefore, is whether the Chairman could  exercise the power of the Board to make recommendations to the  State Government so that the recommendations made by the  Chairman could  in  law be said to be recommendations of  the  Board. The powers and duties of the Chairman are to be found in  s. 15 of the 643 Act  of  1965.  Sub-s. (1) of s. 15  does not help,  for  it merely says that it shall be the duty of the Chairman to see that the Act and the Regulations are faithfully observed and he shall have all powers necessary for that purpose.  Sub-s. (2) of s. 15 has also no relevance in this connection.  Then there  is  sub-s. (3) of s. 15 which provides  that  in  any emergency arising out of the business of the Board, which in the  opinion of the Chairman requires that immediate  action should  be taken, the Chairman shall take such action as  he deems  necessary and shall thereafter report his  action  to the Board at its next meeting.  This sub-section is  clearly inapplicable  as it is not the case of the respondents  that there  was any emergency arising out of the business of  the Board  which necessitated the taking of immediate action  by the Chairman.  The recommendation of the text books was  not made  by the Chairman as an emergency measure-at  any  rate, that was not the plea taken by the respondents.  Sub-s.  (4) of  s.  15 is a sort of residuary  provision  which  confers power on the Chairman to "exercise such other powers as  may be  vested in him by Regulations".  But there is nothing  in the  Regulations which, vests in the Chairman the  power  of the  Board to recommend or give advice in relation  to  text books to be prescribed by the State Government.  In fact, no power  of  the  Board  is vested  in  the  Chairman  by  the Regulations.  Thus, we do not find anything in the Act or in the  Regulations which provides that the power of the  Board to  recommend’ or give advice in relation to text  books  to the   State  Government  which  power  is   necessarily   by implication  conferred on the Board under s. 4,  sub-s.  (1) proviso-shall  be  exercisable  by  the  Chairman  so   that consultations  with  the  Chairman would  be  tantamount  to consultation with the Board.  Realising this difficulty, the learned’ Advocate General relied on a decision of the  Board dated  12th October, 1971, Ex. 9 to the affidavit  in  reply filed  by  Chaturvedi  on behalf  of  the  respondents,  and contended  that by this decision ’the Board  authorised  the Chairman  to  take all necessary steps for  the  purpose  of proceeding  further  with  the work of the  text  books  im- provement  scheme which consisted of selection and  approval of   text   books  for  the  purpose  of   prescription   or recommendation   by-the   Board,  and  the   Chairman   was, therefore,  entitled  to  act on behalf’  of  the  Board  in recommending  or giving advice in relation to text books  to the  State  Government.  Now we do not dispute  the  general proposition  that when a power or function is given  by  the statute to. a corporate body and no provision is made in the statute as to how such power or function shall be exercised, the  corporate body can by a resolution passed at a  general meeting  devise  its own mode of exercising  such  power  or function, such ’as authorising one or more of the members to exercise  it  on behalf of the Board.  But here  this  broad proposition  would have no application.  There  are  several provisions  in the Act of 1965 which provide for  delegation of the powers and functions of the Board to the Chairman and other  Committees by means of Regulations.   If,  therefore, any  power or function of the Board is intended to  be  made exercisable by the Chairman, that can only be a done through the  mechanism of the Regulations.  The Board cannot,  by  a

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resolution  passed  at  a, general  meeting,  authorise  the Chairman   to  exercise  a  particular  power  or   function entrusted to the 644 Board.   The decision of the Board dated 12th October,  1971 cannot,  therefore,  help the respondents even  if  it  were construed as authorising the Chairman to exercise the  power of the Board to recommend or give advice in relation to text books to be prescribed by the State Government.  But in fact we  do  not  think it can be so  construed.   This  decision merely  authorises the Chairman to take all necessary  steps for   the   purpose   of   proceeding   further   with   the implementation  of the text books improvement scheme and  it does not confer any authority on him to exercise a power  of the Board which he other-wise did not possess.  In any event the authority conferred by this ,decision cannot include the exercise of a statutory function which came to be vested  in the Board for the first time on 23rd Match, 1973 when s.  4, sub-s.  (1)  was enacted.  We are, therefore,  compelled  to reach  the conclusion that the only consultation  which  the State  Government had before issuing the notification  dated 24th  May, 1973 was consultation with the Chairman  and  not with  the  Board.  The recommendation of text books  by  the appropriate Committee of Courses also could not be  regarded as  consultation  with  the  Board,  because  the  power  or function to give opinion or advice in relation to text books to  be  prescribed  by  the  State  Government  came  to  be conferred  on the Board for the first time on the  enactment of  s. 4. sub-s. (1) and there is no Regulation which  dele- gates this power or function to the appropriate Committee of Courses.   It is, therefore, clear beyond doubt  that  there was  no prior consultation with the Boara before  the  State Government issued the notification, dated 24th May, 1973 and this notification must accordingly be held to be invalid  as being in breach of the mandatory requirement of the  proviso to s. 4, sub-s. (1). Re : E. The argument of the petitioner under this head of  challenge was  that  s.  4,  sub-s. (1)  vested  power  in  the  State Government  to  prescribe text books for use in  schools  at primary, middle and secondary education levels and by reason of  s. 4, sub-s. (3) it became obligatory on the schools  to use  only  the text books so prescribed and  no  others  for imparting  instruction to the students.  The effect  of  the combined  reading  of sub-ss. (1) and (3) of s. 4  was  that once the text books ,were prescribed by the State Government under  s.  4, sub-s. (1), the schools  were  precluded  from using  any  other text books for the  purpose  of  imparting instruction to the students.  This directly interferred with the  business  of  the petitioner for,  if  the  text  books printed  and published by the petitioner were  not  selected and  approved by the State Government, the petitioner  would not have any market for the ,sale of his text books and that would prejudicially affect his business.  The petitioner did not   seriously  contend  that  it  was  not  open  to   the legislature to provide by legislation for standardisation of the  courses of instruction and syllabi and prescription  of text books but his grievance was that the machinery provided by  the legislature for this purpose  was  unconstitutional. The  petitioner pointed out that he could have no  grievance if  the Legislature provided an independent body of  experts like the Text Book Committee constituted under the 645 Act of 1959, for prescribing text books.  The provision  for such independent body would ensure fair and equal  treatment

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to all printers. and Publishers of text books and  eliminate arbitrariness  in the matter of selection of text books  for prescription.  But here the State Government was constituted the authority for selection and prescription of’ text  books and  unfettered  and uncanalised power was  vested  in  the, State  Government  without  any guidelines  to  control  and regulate the: exercise of such power and without there being anything  which would. ensure proper execution of the  power or  operate as a check on the, injustice that  might  result from  improper execution of the same.  The State  Government could   in  exercise  of  its  absolute   and   uncontrolled discretion  select  and prescribe any text  books  it  liked without consulting any experts on the subject and this might not  only result in wrong. and improper evalutation  of  the merits of the text books submitted for the consideration  of the  State  Government but also lead  to  arbitrariness  and personal as well as political nepotism.  The conferment.  of such unguided and uncontrolled power on the State Government in,  the matter of selection and prescription of text  books contravened  the;  fundamental right to  carry  on  business guaranteed  under Art. 19(1) (g) and was also  violative  of equality clause contained in Art. 14 and  sub-ss.(1)and(3)of s.4 were,therefore,liable to be struck down as invalid..  We do  not  think  this contention of the  petitioner  is  well founded.   It  must fail for reasons  which  we  immediately proceed to give. One  thing  is  clear that in order  to  achieve  a  uniform standard  of  excellence  in education in  all  the  schools within  the  State,  it is necessary that  there  should  be uniform  courses of instruction which are. properly  thought out  and  devised by experts on the  subject  and  forgiving proper  and adequate training in such courses, there  should be.  standardised  text books.  That would not  only  ensure uniformity  in  standard  but  also  achieve  efficiency  in instruction.  Moreover, it would prevent us of poor  quality text  books  which frequently find way in  the  schools  on. account  of certain dubious financial arrangements,  between the management and the printers and publishers of those text books.   It  is, therefore, in the interest  of  proper  and healthy  education of children that  scientifically  planned courses of instruction should be laid down and text books of high  merit and excellence should be prescribed.   That  can never be regarded as unreasonable.  Now when the Legislature decides   to   adopt  this  course  the   Legislature   must necessarily  entrust  the  text of laying  down  courses  of instruction  and  prescribing text books to  some  authority fifted and equipped for this purpose., We are concerned here only   with  prescription  of  text  books  and  we:   will, therefore,  confine  our  attention to  that  subject.   The Legislature,. when it enacted the Act of 1959, left the task of  selecting and prescribing text books to be performed  by the  Text Books Committee but under s. 4, sub-s. (1) of  the Act  of  1973 the Legislature has provided, that  this  task shall  be  performed by the State Government.   Now  it  can hardly  be  disputed that for the purpose of  selection  and prescription  of  text books, the machinery  of  Text  Books Committee  would  be  more  efficient  and  objective,   and inspiring  of  greater confidence as to,  its  fairness  and impartiality of than that of the State Government,, 646 but  on that account alone the entrustment of the  power  of selection  and  prescription  of text  books  to  the  State Government  cannot be regarded as bad.  The Legislature  may choose one of several methods available to it for  achieving its  legislative  and  the  Court  cannot  interfere  simply

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because  it thinks that another method is better and  should have  been adopted by the Legislature, for ultimately it  is for the Legislature in exercise of its legislative  judgment to  determine which of many possible methods it  should  in- ’the circumstances adopt.  It is a matter of policy for  the Legislature  to decide to which authority it  would  entrust the power to select and prescribe text books .and so long as the authority chosen by the Legislature is not inappropriate or inadept for the task, no complaint of unconstitutionality in  the  law  can  be made on the  ground  that  some  other authority which appears to be better could have been  chosen by  the Legislature.  The question which has, therefore,  to be  considered in adjudging the constitutionality of  s.  4, sub-ss. (1) and (3) is not whether a better machinery  could have  been  chosen  by the  Legislature  for  selecting  and prescribing text books but whether the machinery which is in fact provided by the Legislature is violative of any of  the fundamental rights of the petitioner. So far as the claim of the petitioner based on infraction of the  fundamental  right under Art. 19(1) (g)  is  concerned, that  stands  completely negatived by the  decision  in  Rai Saheb Ram Jawaya’s case.(1) We have already referred to this decision  earlier but in order to appreciate how it  applies in  the  context of the present claim, it  is  necessary  to notice the facts of that case in some detail.  The procedure which  was framed by the State of Punjab prior to  May  1950 for selection and approval of text books for use in  schools was that the State Government used to invite publishers  and authors  to submit their books for examination and  approval by  the Education Department and the State Government  after scrutiny  selected  out  of them a certain  number  of  text books,  any one of them could be used by the schools.   This procedure  was  slightly altered in May 1950 and  under  the altered procedure, the State Government took upon itself the monopoly  of publishing text books in some of  the  subjects and  with regard to the rest, the State Government  selected and approved text books--not several as before but only  one on each subject-out of those submitted by the publishers and authors  and  reserved for itself a certain royalty  on  the sale  proceeds  of  such  approved  text  books.   In  1952, however,  changes  of  a fir  more  drastic  character  were introduced  by a notification dated 9th August, 1952  issued by  the  State Government.  By this notification  the  State Government took over the publishing, printing and selling of text  books  exclusively in its own hands  and  the  private publishers  were altogether ousted from this business.   The petitioners  who  were a firm carrying on  the  business  of preparing,  printing,  publishing  and  selling  text  books there--upon   moved  this  Court  under  Art.  32   of   the Constitution  praying for writs of mandamous  directing  the State  Government to withdraw the notifications of 1950  and 1952  on  the ground that they  contravened  the  fundaments right of the petitioners under Art. 19(1) (g).  This  Court, however,  took  the view that no fundamental  right  of  the petitioners to carry on their (1) [1955] 2 S. C. R. 225 647 business of preparing,-printing, publishing and selling text books was infringed by the notifications issued by the State Government in furtherance of their policy of nationalisation of  text  books  for  students  and  the  petitioners  were, therefore,  not entitled to any relief under Art. 32 of  the Constitution.   Mukherjea,  C. J., speaking on behalf  of  a unanimous Court, pointed out:               "The procedure hitherto followed was that  the

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             Government  used  to  invite  publishers   and               authors to submit their books for  examination               and  approval by the Education Department  and               after  selection was made by  the  Government,               the  size, contents as well as the  prices  of                             the  books were fixed and it was left  to  the               publishers  or  authors to print  and  publish               them  and offer them for sale to  the  pupils.               So  long as this system was in vogue the  only               right  which publishers, like the  petitioners               had,  was to offer their books for  inspection               and  approval by the Government.  They had  no               right  to insist on any of their  books  being               accepted  as text books.  So the  utmost  that               could  be  said is that there  ,was  merely  a               chance  or  prospect of any or some  of  their               books  being  approved as text  books  by  the               Government.   Such chances are  incidental  to               all  trades  and businesses and  there  is  no               fundamental right guaranteeing them.  A trader               might be lucky in securing a particular market               for  his  goods  but if he  loses  that  field               because  the  particular coustomers  for  some               reason  or  other do not choose to  buy  goods               from him, it is not open to him to say that it               was  his  fundamental right to  have  his  old               customers   for  ever.   On  the   one   hand,               therefore,  there was nothing but a chance  or               prospect  which the publishers had  of  having               their books approved by the Government, on the               ’other hand the Government had the  undisputed               right  to adopt any method of  selection  they               liked  and  if they  ultimately  decided  that               after  approving  the text  books  they  would               purchase  the  copyright  in  them  from   the               authors  and others provided the  latter  were               willing to transfer the same to the Government               on certain terms, we fail to see what right of               the  publishers  to carry on  their  trade  or               business is affected by it.  Nobody is  taking               away  the  publishers’  right  to  print   and               publish any books they like and to offer  them               for sale but if they have no right that  their               books should be approved as text books by  the               Government it is immaterial so far as they are               concerned  whether the Government approves  of               text books submitted by other per,sons who are               willing to sell their copyrights in the  books               to  them, or choose to engage authors for  the               purpose of preparing the text books which they               take up on themselves to print and publish The               action of the Government-does not amount to an               infraction of the fundamental right guaranteed               by Article 19(1) (g) of the Constitution." These  observations are equally applicable where the  State. Government instead of prescribing text books in exercise  of its  executive power does so in exercise of statutory  power such as that conferred 648 under s.4, sub-s.(1). No fundamental right guaranteed to the petitioners  under Art. 19(1)(g) is infringed if  the  State Government  in  exercise of the  statutory  power  conferred under s. 4, sub-s. (1) does not prescribe text books printed and  published by him.  The challenges based on  Art.  19(1)

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(g) must, therefore, fail. That  takes  us  to the challenge based on Art.  14  of  the Constitution.  This Article ensures equality before law  and strikes at arbitrary and discriminatory State action,  Where State   Government   exercises  any  power,   statutory   or otherwise,  it  must not discriminate unfairly  between  one person  and another.  Every State action must be  guided  by certain  norms  and standards which are  in  themselves  not objectionable as being discriminatory in character. if power conferred  by  statute  on any authority  of  the  State  is vagrant  and unconfined and no standards or  principles  are laid  down by the statute to guide and control the  exercise of  such  power,  the  statute would  be  violative  of  the equality  clause,  because  it would  permit  arbitrary  and capricious  exercise of power, which is the  anti-thesis  of equality  before  law.  Such a case would  fall  within  the second proposition laid down by this Court in Jyoti  Pershad v. Administrator for the Union Territory of Delhi.               "The enactment of the rule might not in  terms               enact  a discriminatory rule of law but  might               enable an unequal or discriminatory  treatment               to be accorded to persons or things  similarly               situated.    This   would  happen   when   the               legislature   vests   a   discretion   in   an               authority,   be  it  the  Government   or   an               administrative  official acting either  as  an               executive  officer or even in a  quasijudicial               capacity  by a legislation which does not  lay               down  any policy or disclose any  tangible  or               intelligible   purpose   thus   clothing   the               authority  with unguided and arbitrary  powers               enabling it to discriminate.’ It  can, therefore hardly be disputed that if s.  4,  sub-s. (1) were found to confer a naked and arbitrary power on  the State Government to select and prescribe such text books  as it  pleases  in exercise of its  absolute  and  uncontrolled discretion  without  any  guiding  principle  or  policy  to control  and  regulate the exercise of such  discretion,  it would  be  in  violation of the  constitutional  mandate  of equality  before  law.  The State Government would  then  be able  to choose the text book of any publisher it likes  and prescribe  it as a text book even though it is  inferior  in quality than the text book of another publisher.  That would enable  the  State  Government to  exercise  its  power  ar- birtarily  and  capriciously and discriminate at  its  sweet will between one publisher and another.  But we do not think s.  4,  sub-s. (1) suffers from this lethal  infirmity.   It does  not vest an arbitrary uncontrolled discretion  in  the State Government to select and prescribe such test books  as it  likes  irrespective  of their merit  and  quality.   The object  or  purpose  for  which  the  power  to  select  and prescribe text books is conferred on the State Government is to ensure uniformity of standard 649 and excellence in instruction which can be achieved only  if standardised  text books of high quality and merit are  used in  the schools.  This object or purpose furnishes  guidance to the State Government in exercising its power of selecting and  prescribing  text  books.   The  power  to  select  and prescribe text books is thus not an unguided and  unfettered power which leaves it free to the State Government to select and  prescribe  such  text  books as it  may  want  only  or capriciously  please, but it is a power which is  con  fined and  embanked  within limits by the object and  purpose  for which  it  is  conferred.,  The  State  Government   cannot,

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therefore.  act arbitrarily or capriciously in selecting  or prescribing text books but it has to exercise this power  in the light of the policy or principle that the best  possible text  books,  possessing  the highest degree  of  merit  and quality,  should be, made available to the  students.   This standard  or  criterion,  gatherable  from  the  object  and purpose of the Statute, controls and regulates the  exercise of the power by the State Government and it is by  reference to  this  yard-stick that the exercise of the power  by  the State  Government is canalised and kept within  bounds.   If the State Government in selecting and prescribing text books does not follow this standard or criterion, the prescription of  text books made by the State Government, and not  s.  4, sub-s.  (1) would be liable to be condemned as invalid.   It is not possible to say that arbitrary and uncontrolled power has been vested in the State Government and on that  account s. 4, sub s. (1) is bad. It  was however, contended on behalf of the petitioner  that even  if there is any guidance provided by the  Legislature, it  is  futile  because the power  conferred  on  the  State Government  is a very- wide discretionary power and  it  can easily  lend itself to misuse or abuse in the hands  of  the executive  without  any  one  being  able  to  pinpoint   or demonstratably  show  such misuse or abuse  of  power.   The apprehension  which  was voiced was that since there  is  no machinery  provided  by the Legislature which  would  ensure just  and  proper  execution  of  the  power  by  the  State Government  according  to the guidelines laid  down  by  the Legislature,  the  State Government may  with  impunity  act arbitrarily   or   capriciously  and   the   selection   and prescription of text books by it may not only be vitiated by wrong evaluation of the merit and quality of text books  but may  also conceivably be actuated by personal  or  political corruption  or nepotism on the part of those exercising  the power on behalf of the State Government.  Now’, it is  true, and  there,  can  be  no doubt  about  it,  that  the  power conferred on the State.  Government is a large discretionary power and no machinery is laid down by the Legislature which would  ensure just and proper execution of the power by  the State Government but on that account alone the conferment of the  power  cannot  be  held  to  be  invalid.   Whenever  a discretionary power is conferred on any authority, there  is always  a potential danger of its misuse or  abuse,  however much  the Legislature may try to hedge it  with  safeguards. But  the mere possibility that the power may be  misused  or abused cannot per se induce the Court to deny the  existence of the power.  It cannot be overlooked that the  Legislature has  confided this power not to, any petty official  but  to the State Government and that itself is a guarantee that the power 650 would  be  exercised  in  conformity  with  the  policy   or principle  laid down in the Statute.  As said by this  Court in Matajob Dobey v. H. C. Bhari(l) "A discretionary power is not necessarily a discriminatory power and abuse of power is not  easily to be assumed where the discretion is vested  in the  Government  and not in a minor official."  We  have  no doubt  that  if  the  law  is  administered  by  the   State Government  "with an evil eye and an unequal hand" or  there is  misuse  or abuse of power by the State  Government,  the arms  of this Court would be long enough to reach it and  to strike  down such misuse or abuse with a heavy  hand.We  may point out that State Government has not yet made rules under s.   8 of the Act of 1973 prescribing the machinery which it would adopt in selecting and prescribing text books-.  It is

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quite possible that when such machinery is prescribed by the State Government it will allay any apprehension of  possible misuse or abuse of power by the State Government. if, on the other  hand, it is found that such machinery operates so  as to  deny equality of treatment to private  publishers  simi- larly  circumstanced,  it may become  vulnerable  to  attack under Art. 14 of the Constitution. We are not unmindful of the fact-and that is a matter  which has  caused  us great anxiety-that the power to  select  and prescribe  text  books for obligatory used  by  students  in schools can be a potent and powerful weapon in the hands  of the executive to inculcate its social, economic or political philosophy and ideology in young impressionable minds  which have  not yet developed the capacity to think  independently for  themselves  and  which  are  easily  amenable  to   the thoughts, ideas and influences to which they are continually exposed.   The State Government, controlled by  a  political party  having  a particular social, economic  and  political philosophy  or ideology, may use the power of selecting  and prescribing   text  books  for  indoctrinating  the   highly receptive  and sensitive minds of young boys and  girls  and stifling the growth and development of free thought which is so essential for maintenance of democratic way of life.   It is our firm belief, nay, a conviction which constitutes  one of the basic values of a free society to which we are wedded under our Constitution, that there must be freedom not  only for  the thought that we cherish, but also for  the  thought that  we  hate.   As pointed out by Mr.  Justice  Holmes  in Abrwnson v. United States (2) "the ultimate good desired  is better reached by free trade in ideas-the best test of truth is  the power of the thought to get itself accepted  in  the competition  of  the  market".  There  must  be  freedom  of thought and the mind must be ready to receive new ideas,  to critically  analyse  and examine them and  to  accept  those which are found to stand the test of scrutiny and to  reject the  rest.  That is why our Vedic prayer says :  "Let  noble thoughts  come to us from all sides".  The text books  which are  selected  and prescribed or use in  schools  must  not, therefore,  be  such as project only  a  particular  social, economic  or political philosophy or ideology.  The mind  or the  young  students  must  not  be  cribbed,  cabined   and confined’  by  thoughts  and ideas which  form  the  social, economic   or  Political  philosophy  or  ideology  of   the political party which is for the time being (1) [1955] 2 S.C.R. 925 (2) 250 U.S. 616 651 controlling   the  State  Government.   It  is,   therefore, necessary  that  in the selection and prescription  of  text books  all political and other extraneous influences  should be  eliminated.  The only objective must be to give  to  the students the best possible text books possessing the highest degree  of  merit and quality from a  purely  objective  and academic  point  of  view  so  as  to  lead  to  a   healthy development of the personality of the students and make them truly  nationalist,  patriotic,  service-minded  and  useful members  of  the  society.   That  is  the  reason  why  the Secondary Education Commission recommended the  constitution of  a high power committee which would be in charge  of  the function  of  selecting and prescribing text books.   It  is true  that under the Act of 1973 there is no  provision  for constituting  such a high power committee and  instead,  the power  to select and prescribe text books is vested  in  the State Government.  But there is nothing to prevent the State Government  from  setting  up  an  independent  high   Power

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committee on the lines indicated by the Secondary  Education Commission  for the purpose of assisting it in the  task  of selecting  and prescribing text books.  This can be done  by the State Government by making appropriate rules under s.  8 of  the Act of 1973 and there is no reason to  suppose  that the State Government will not do "so.  Be that as it may, it is  clear  from the aforesaid discussion that the  power  to select  and  prescribe  text books conferred  on  the  State Government  under  s. 4, sub-s. (1) is not an  unguided  and unfettered  power and s. 4, sub-s. (1) is not liable  to  be struck  down  as invalid on the ground of  contravention  of Art. 14, and if that be so, s. 4 sub-s. (3)  also  does  not incur the condemnation of that article. We, therefore, allow the petition and make the rule absolute to  a  limited extent.  We declare that the  text  books  on languages  prescribed  by the Board as also the  text  books which  formed the subject matter of the notifications  dated 5th April, 1972, 25th April, 1972, 26th April, 1972 and 17th May,  1972 issued by the Board-both, of which categories  of text   books   were  purported  to  be  continued   by   the notification dated 28th March, 1973-are not prescribed  text books  within the meaning of sub-s. (1) or sub-s. (2) of  s. 4.  We  also  issue a writ quashing and  setting  aside  the notification  dated  24th  May, 1973  issued  by  the  State Government.   So  far as the other reliefs  claimed  by  the petitioner  are concerned, the petition is rejected and  the rule  will  stand discharged. There will be no order  as  to costs. P B. R.            Petition allowed. 652