REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4346 OF 2010 (Arising out of SLP (Civil) No.15730 of 2008)

Secretary, Cannanore District Muslim Educational Association, Kanpur ..Appellant(s)

Versus  

State of Kerala and others ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. Leave granted.

2. The appellant is the Secretary of Cannanore District  

Muslim  Educational  Association,  Karimbam  

(hereinafter referred to as the ‘Appellant’), which  

is  a  Society  registered  under  the  Societies  

Registration  Act  (Central  Act  21/1860).  The  

Appellant had established Sir Syed College in 1967  

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and it was imparting degree courses along with some  

pre-degree courses in various streams constituting  

11 batches of a total of 80 students in each batch.

3. The Respondents, took a policy decision to abolish  

the Pre-degree Courses conducted in the colleges and  

enacted  the  Pre-degree  Courses  (Abolition)  Act,  

1997.

4. Subsequently,  the  respondents  decided  that  those  

colleges  which  were  running  classes  up  to  High  

School may be allowed to add classes up to the 12th  

standard  in  place  of  pre-degree  courses.  Those  

colleges which did not have any classes till the  

High school level were to be allowed to run High  

Schools and were also to be allowed Higher Secondary  

courses.  Notice  inviting  applications  from  the  

management of schools, both government as well as  

private, and from colleges were issued for the first  

time  for  the  academic  year  1997-1998  vide  

notification dated 2.04.97.

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5. The policy decision of the Government in this regard  

was  upheld  by  the  High  Court  by  judgment  dated  

29.8.2002 in W.A.No.2716/2000.

6. The mode of implementation of this policy was the  

subject matter of a series of litigations where the  

Respondents  were  accused  of  discrimination.  The  

Appellant before us has a similar grievance.  

7. Writ Petition(C) No. 11167 OF 2006 was filed by the  

appellant  challenging  the  non-sanctioning  of  the  

Higher secondary courses to its school. The other  

connected Writ Petitions which were disposed of by  

the impugned judgment were filed by the management  

or  the  teachers  of  the  neighbouring  schools,  

challenging  the  grant  of  a  High  school  to  the  

Appellant.

8. The Appellant had been applying for Higher Secondary  

courses ever since 1996. However, its applications  

were not considered by the respondents in light of  

the  policy that  the Government  was allowing  only  

those  applicants  who  already  had  existing  High  

Schools. Since many of the managements did not have  

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High Schools to start higher secondary courses, the  

Government  issued  a  preliminary  notification  on  

25.06.1998 for starting High Schools at a certain  

number  of  designated  places   as  per  Chapter  V  

Rule(2)  Sub-rule(2)of  the  Kerela  Education  Rules,  

1959. The ward to which the Appellant belonged i.e.  

ward  No. 15  of Taliparamba  Municipality was  also  

included  in  the  earlier  notification  dated  

13.06.2000 but it was excluded subsequently as the  

Government  received  some  objections.  An  O.P.  No.  

29989/99  was filed  by the  Government wherein  the  

High Court directed that the case of the Appellant  

be  considered.  Pursuant  to  this  direction,  the  

Appellants were given an assurance that they will be  

given  the  High  School  as  and  when  the  financial  

position of the Government improves.

9. Then by an order dated 31.05.2003, ten schools were  

given the sanction to open aided High Schools but  

the appellant was denied the same facility.  

10. After  repeated  representations  before  the  

respondents,  the  appellant  was  sanctioned  a  High  

School and a Higher Secondary School in ward No. 15  

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of Taliparamba Municipality after a decision to that  

effect was taken in a meeting dated 08.10.03 of the  

Council of Ministers, as a special case.

11. But  the  said  decision  for  sanction  of  Higher  

Secondary classes was not implemented in the light  

of the decision of the High Court in W.P.(C). No.  

29124/03  wherein the  High Court  had directed  the  

Respondents that newer Higher Secondary schools were  

not to be sanctioned by them without further orders  

from the Court.

12. Subsequently, in partial implementation of the order  

of 08.10.03, it started a High School from 9.8.2004  

pursuant to the said order and the classes commenced  

during  the  academic  year  2004-05  and  the  School  

became a complete High School during the academic  

year 2006-07.

13. In view of repeated representations of the appellant  

Association, the State Cabinet on 13.10.2005 decided  

to grant three batches of Higher Secondary courses  

to the appellant in the aided sector, subject to  

getting  the  permission  of  this  Court.  For  this  

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purpose,  the  Government  filed  I.A.  No.1816/06  in  

W.P.(C) No.22532/04 and connected cases. But, High  

Court dismissed the said application, on the ground  

that the aggrieved persons may approach the Court.  

14. Thereupon a Writ Petition was filed by the appellant  

seeking mainly the relief that the High Court may  

issue a writ in the nature of mandamus or any other  

appropriate writ, order or direction directing the  

respondents to sanction an aided Higher Secondary  

school to the appellant herein, as was done in the  

case of other aided college managements, so that the  

higher  secondary  school  can  commence  functioning  

during the academic year 2006-07 itself.

15. Alleging  discrimination  in  general,  it  was  the  

specific  contention of  the Appellant  in the  Writ  

Petition  that  while  other  managements  were  being  

granted High Schools and Higher Secondary Schools  

simultaneously or immediately, one after the other,  

the  appellant  herein  was  not  sanctioned  Higher  

Secondary  School  after  the  sanction  of  the  High  

School. It also prayed that the order of 08.10.03 by  

which  the  Government  had  already  granted  Higher  

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Secondary  courses  to  the  appellant  may  be  

implemented.

16. The question before the High Court was whether the  

Higher Secondary school was to be sanctioned to the  

Appellant as per the old policy and the subsequent  

orders  or  in  view  of  the  new  policy  as  per  the  

G.O.(P)No.107/07/G.Edn  dated  13.6.2007,  which  was  

produced by the Respondents before the High Court  

along  with  a  memo,  containing  the  norms  for  

sanctioning new schools, courses etc. Respondents in  

their  Counter  Affidavit  had  contended  before  the  

High Court that in view of the various allegations  

of  discriminations against  it, it  is planning  to  

review  the  entire  matter  afresh  by  appointing  a  

Committee. It was urged before the High Court in its  

affidavit that vide the order dated 19.8.2006, it  

had formed a Committee to look into the allegations  

of  irregularities in  the sanctioning  of the  High  

Schools and Higher secondary schools. It was also  

urged  that  by  the  order  dated  22.8.2006,  the  

Government was to set up a Committee to review the  

irregularity in the sanctioning or the upgradation  

of several schools in the aided sector in violation  

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of the procedure prescribed in the Kerela Education  

Rules  after  the  period  of  1.1.2003.  It  further  

contended  that  in  view  of  the  above,  the  old  

sanction for a Higher Secondary school given to the  

appellant  did  not  hold  good  anymore  and  the  

respondents  contended  that  the  appellant’s  case  

would be considered afresh after it would formulate  

new norms as per the findings of the above appointed  

Committees.  Thus,  it  subsequently  passed  the  new  

G.O. dated 13.6.2007.

17. The  Hon’ble  High  Court  while  dismissing  the  

appellants’  Writ  Petition  held  that  the  earlier  

orders governing grant of Higher Secondary Schools  

was no longer valid and has been replaced by the new  

order  G.O.(P)  No.107/07/G.Edn  dated  13.6.2007  and  

the Appellant does not have any statutory right to  

get the sanction of running Higher Secondary classes

18. It  also  held  that  the  Government  did  not  owe  a  

corresponding duty to the appellant to sanction the  

school  as  per  the  previous  order  and  that  “…the  

Government  cannot  be  tied  down  to  a  policy  

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permanently. It should be conceded freedom to change  

it from time to time”.  

19. The High Court shared the apprehension that if it  

orders the Government to sanction a Higher Secondary  

School to the appellant herein, it may impinge upon  

the budgetary allotment of Government funds. This,  

it  held  that  sanction  of  this  course,  was  a  

Government function on which a Court cannot step in.  

In coming to this finding the Hon’ble High Court  

relied on a decision of the Court of Appeal in R. v.  Cambridge Health Authority, ex p B [(1995)2 All ER  129] where the Court of Appeal refused to interfere  

with  the  validity  of  a  decision  of  the  Health  

Authority of not alloting funds for the treatment of  

a child.  High Court also referred to the decision  

in the case of State of H.P. and another v. Umed Ram  Sharma [(1986) 2 SCC 68].  

20. The  respondent  No.  4  before  this  Court  moved  an  

application for impleadment as a necessary party in  

the W.P.(C) No. 11167 OF 2006 before the High Court  

and which was allowed by the High Court. In its  

Counter  Affidavit,  the  Respondent  No.  4  had  

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challenged the Writ Petition on the ground that the  

sanctioning  of  the  High  School  to  the  Appellant  

itself is illegal and has been made in violation of  

the  Rules  in  Chapter  V  of  the  Kerela  Education  

Rules. It was also contended that the sanction of  

the Higher Secondary school to the Appellant would  

prejudice other schools in the nearby area and would  

also  not  be  necessary  as  the  number  of  existing  

schools are enough for that area. This issue was  

heard with the other connected Writ Petitions.  

21. In the connected writ petitions, the main challenge  

was with respect to the sanction of a High School to  

the Appellant on the ground that it was done in  

violation of the Rule 2A of Chapter V of the Kerela  

Education  Rules.  These  writ  petitions  were  filed  

either  by  the  managers  or  the  teachers  of  the  

schools. They contended that in case of an already  

existing statutory provision governing a particular  

field, the implementation of a new scheme under the  

provision can only be done by amending the existing  

provision; in this case, Rule 2, Chapter V of the  

Kerela Education Rules.

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22. The  High Court  while rejecting  the Writ  Petition  

upheld the government’s right to change its policy  

and also opined that the government cannot be tied  

to any policy. After coming to this conclusion, the  

High Court held that in the context of the changed  

policy of the government, it is not proper for the  

Court to interfere.

23. This Court is of the opinion that so far as the  

right  of  the  government  to  change  its  policy  is  

concerned, the High Court’s conclusion is correct.  

The High Court is equally right in holding that the  

government cannot be tied down to any policy. But  

unfortunately, the High Court did not examine the  

impact  of  the  government  policy  on  the  admitted  

facts and circumstances of the case. This Court is  

of the opinion that High Court especially the Writ  

Court  cannot  take  a  mechanical  or  strait  jacket  

approach in this matter.

24. It  appears  that  the  appellant  is  a  religious  

minority.   As  a  religious  minority,  it  has  a  

fundamental  right  to  establish  and  administer  

educational institutions of its choice in view of  

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the  clear  mandate  of  Article  30.  Apart  from  the  

fundamental right of the appellant to establish and  

administer an educational institution, the right of  

the appellant to get the sanction of running a Class  

XII School was also accepted by the government to  

the extent that the government applied to the High  

Court  for  its  permission  to  seek  an  order  for  

implementation of its decisions dated 08.10.03 and  

13.10.05 whereby sanction was given to the appellant  

to run Higher Secondary Courses. Those decisions of  

the government to sanction higher secondary courses  

in favour of the appellant could not be implemented  

in  view  of  the  order  of  the  High  Court  dated  

05.04.06 to the effect that the High Court wanted  

the aggrieved persons to approach the Court. In the  

background  of these  facts, the  writ petition  was  

filed and during the pendency of the writ petition  

came the revised policy of the government. In that  

policy, it has been made very clear that there is no  

need  to  sanction  or  upgrade  government  or  aided  

schools in the normal course.

25. The High Court should have appreciated the facts of  

the  case  and  come  to  the  conclusion  that  the  

appellant’s  case  does  not  come  under  the  normal  

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course. But the High Court refused to do so and  

took, as noted above, a mechanical approach.

26. The High Court in support of its decision relied on  

the judgment of the Court of Appeal in  Cambridge  Health Authority (supra). That was a case of refusal  to allocate funds for the treatment of a minor girl  

who was 10½ years old. The child was suffering from  

non-Hodgkins  Lynphona  with  common  acute  

Lymphoblastic  Leukaenia.  It  was  thought  that  no  

further  treatment  was  possible  except  giving  the  

child palliative drugs. The child’s father sought  

further medical opinion and experts advised a second  

bone  marrow  transplant,  which  could  only  be  

administered privately and not in a National Health  

Service  hospital,  and  that  too  with  10  to  20%  

chances of success. In the background of these facts  

the child’s father requested the health authority to  

allocate funds amounting to £75,000 for the proposed  

treatment which the health authority refused. The  

father of the child applied for a judicial review of  

the decision of the health authorities. The question  

was what the Court should do in such a situation?

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27. The learned single judge quashed the decision of the  

health authority and directed it to reconsider its  

decision. Then on appeal against the decision of the  

learned single judge, the Court of Appeal allowed  

the  appeal.  Sir  Thomas  Bingham,  Master  of  Roll,  

presiding over the Court of Appeal held that the  

learned  Single  judge  failed  to  recognize  the  

realities  of  the  situation.  Considering  the  

constraints of budget on the health authority, the  

Master of Roll held:-

“Difficult and agonising judgments have to be  made  as  to  how  a  limited  budget  is  best  allocated  to  the  maximum  advantage  of  the  maximum  number  of  patients.  That  is  not  a  judgment  which  the  court  can  make.  In  my  judgment,  it  is  not  something  that  a  health  authority such as this authority can be fairly  criticised for not advancing before the court”  (See at page 137, placitum ‘F’)

28. But the facts of this case do not have even a remote  

resemblance  to  the  facts  in  Cambridge  Health  Authority (supra).  In this case the government was  willing to sanction the higher secondary classes to  

the appellant-institution and to the effect applied  

to  the  High  Court  for  getting  the  necessary  

permission and that application of the government  

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was disposed of by the Court in the manner indicated  

above.  In  between  came  the  change  of  policy  but  

financial crunch was never the reason for denying  

the  prayer  of  the  appellant  to  run  the  higher  

secondary course.

29. While dismissing the Writ Petition, the High Court  

also relied on the decision of this Court in the  

case of Umed Ram (supra).

30.  In Umed Ram (supra), the Respondents, who were poor  harijans in the State of Himachal Pradesh wrote a  

letter  to  the  High  Court  of  Himachal  Pradesh  

complaining about the incomplete construction of the  

road  and  also  complained  of  the  fact  that  such  

construction has been stopped in collusion with the  

authorities  causing  immense  hardship  to  the  poor  

people and that is why the Court’s intervention was  

prayed for. The Court treated the said letter as a  

writ  petition  and  directed  the  superintending  

engineer of PWD to complete the work in the course  

of the financial year.

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31. The superintending engineer before the High Court  

gave  an  estimate  that  for  the  purposes  of  the  

widening of the road, Rs. 95,000/- was required but  

only Rs. 40,000/- was available in the course of the  

current  financial  year.   Before  this  Court,  

Government challenged those directions of the High  

Court  questioning  the  High  Court’s  jurisdiction  

under Article 226 of the Constitution to direct the  

State  Government  to  allot  particular  funds  for  

expenditure  in  addition  to  the  funds  already  

allotted and thus regulate the residual financial  

matters of the State.  

32. The  Government  raised  questions  on  the  basis  of  

Articles 202-207 of the Constitution pointing out  

the  Government’s  exclusive  domain  in  financial  

matters as indicated in those articles. The three  

judge bench of this court considered the matter in  

detail  and  ultimately  upheld  the  High  Court’s  

directions as not transgressing the limit, in view  

of the provisions of Articles 38, 19 and 21 of the  

Constitution. [See para 39, pg. 82-83]

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33. Therefore,  this  decision  does  not  support  the  

conclusion reached by the High Court in this case.  

On the other hand, the decision in Umed Ram (supra)  upheld  the  power  of  the  Court  to  act  in  public  

interest in order to advance the constitutional goal  

of ushering a new social order in which justice,  

social,  economic  and  political  must  inform  all  

institutions of public life as contemplated under  

Article 38 of the Constitution.  

34. Paragraph 21 of the judgment in  Umed Ram (supra)  which has been quoted by the High Court does not  

constitute its ratio.  The High Court, therefore,  

with great respect, failed to appreciate the ratio  

in Umed Ram (supra) in its correct perspective.  

35. While dismissing the writ petition the Hon’ble High  

Court with respect, had taken a rather restricted  

view of the writ of Mandamus. The writ of Mandamus  

was originally a common law remedy, based on Royal  

Authority. In England, the writ is widely used in  

public law to prevent failure of justice in a wide  

variety of cases.  

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36. In  England  this  writ  was  and  still  remains  a  

prerogative writ.  In America it is a writ of right.  

(Law  of  Mandamus  by  S.S.  Merrill,  Chicago,  T.H.  

Flood and Company, 1892, para 62, page 71).

37. About this writ, SA de Smith in ‘Judicial Review of  

Administrative Action’, 2nd edn., pp 378 & 379 said  

that this writ was devised to prevent disorder from  

a failure of justice and defect of police and was  

used to compel the performance of a specific duty.

38. About this writ in 1762 Lord Mansfield observed that  

‘within  the  past  century  it  had  been  liberally  

interposed  for  the  benefit  of  the  subject  and  

advancement of justice’.

39. The exact observations of Lord Mansfield about this  

writ has been quoted in Wade’s ‘Administrative Law,  

Tenth  Edition’  and  those  observations  are  still  

relevant  in  understanding  the  scope  of  Mandamus.  

Those observations are quoted below:-

“It was introduced, to prevent disorder from a  failure  of  justice,  and  defect  of  police.  Therefore  it  ought  to  be  used  upon  all  occasions  where  the  law  has  established  no  

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specific remedy, and where in justice and good  government there ought to be one…..The value  of the matter, or the degree of its importance  to  the  public  police,  is  not  scrupulously  weighed. If there be a right, and no other  specific remedy, this should not be denied.  Writs of mandamus have been granted, to admit  lecturers, clerks, sextons, and scavengers &  c., to restore an alderman to precedency, an  attorney to practice in an inferior court,&  c.”  (H.W.R.  Wade  &  C.F.  Forsyth:  Administrative  Law,  10th Edition,  page  522- 23).

40. De Smith in Judicial Review, Sixth Edition has also  

acknowledged  the  contribution  of  Lord  Mansfield  

which  led  to  the  development  of  law  on  Writ  of  

Mandamus.  The  speech  of  Lord  Mansfield  in  R Vs.  Blooer, (1760) 2 Burr, runs as under:

“a  prerogative  writ  flowing  from  the  King  himself, sitting in his court, superintending  the police and preserving the peace of this  country”.(See De Smith’s Judicial Review 6th  Edition, Sweet and Maxwell page 795 para 15- 036.

41. Almost  a  century  ago,  Darling  J  quoted  the  

observations  in  Rex Vs.  The  Justices  of  Denbighshire, (1803) 4 East, 142, in  The King Vs.  The Revising Barrister etc. {(1912) 3 King’s Bench  518} which explains the wide sweep of Mandamus. The  

relevant observations are:

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“..Instead of being astute to discover reasons  for  not  applying  this  great  constitutional  remedy for error and misgovernment, we think  it our duty to be vigilant to apply it in  every  case  to  which,  by  any  reasonable  construction, it can be made applicable….”  

(See page 529)

42. At page 531 of the report, Channell, J said about  

Mandamus:

“It is most useful jurisdiction which enables  this Court to set right mistakes”.

43. In Dwarka  Nath Vs.  Income  Tax  Officer,   Special  Circle, D. Ward, Kanpur and another – AIR 1966 SC  81, a three-judge Bench of this Court commenting on  the  High  Court’s  jurisdiction  under  Article  226  

opined that this Article is deliberately couched in  

comprehensive language so that it confers wide power  

on High Court to ‘reach injustice wherever it is  

found’.

44. Delivering the judgment Justice Subba Rao (as His  

Lordship  then  was)  held  that  the  Constitution  

designedly used such wide language in describing the  

nature of the power. The learned Judge further held  

that the High court can issue writs in the nature of  

prerogative writs as understood in England; but the  

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learned Judge added that the scope of these writs in  

India has been widened by the use of the expression  

“nature”.

45. Learned  Judge  made  it  very  clear  that  the  said  

expression does not equate the writs that can be  

issued in India with those in England but only draws  

an  analogy  from  them.  The  learned  Judge  then  

clarifies the entire position as follows:

“..It enables the High Courts to mould the  reliefs to meet the peculiar and complicated  requirements of this country. Any attempt to  equate  the  scope  of  the  power  of  the  High  Court  under  Article  226  of  the  Constituion  with  that  of  the  English  Courts  to  issue  prerogative  writs  is  to  introduce  the  unnecessary procedural restrictions grown over  the  years  in  a  comparatively  small  country  like England with a unitary form of Government  to a vast country like India functioning under  a  federal  structure.  Such  a  construction  defeats the purpose of the article itself….”  

(See para 4, page 85)

46. Same view was also expressed subsequently by this  

Court in J.R. Raghupathy etc. Vs. State of A.P. and  Ors. – AIR 1988 SC 1681. Speaking for the Bench,  Justice A.P. Sen, after an exhaustive analysis of  

the trend of Administrative Law in England, gave His  

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Lordship’s opinion in paragraph (29) at page 1697  

thus:

“29. Much of the above discussion is of little  or academic interest as the jurisdiction of  the High Court to grant an appropriate writ,  direction or order under Article 226 of the  Constitution  is  not  subject  to  the  archaic  constraints  on  which  prerogative  writs  were  issued in England. Most of the cases in which  the  English  courts  had  earlier  enunciated  their limited power to pass on the legality of  the exercise of the prerogative were decided  at a time when the Courts took a generally  rather circumscribed view of their ability to  review Ministerial statutory discretion. The  decision of the House of Lords in Padfield’s  case (1968 AC 997) marks the emergence of the  interventionist  judicial  attitude  that  has  characterized many recent judgments.”

47. In the Constitution Bench judgment of this Court in  

Life  Insurance  Corporation  of  India vs.  Escorts  Limited and others, [(1986) 1 SCC 264], this Court  expressed the same opinion that in Constitution and  

Administrative Law,  law in India forged ahead of  

the law in England (para 101, page 344).

48. This Court has also taken a very broad view of the  

writ of Mandamus in several decisions. In the case  

of  The Comptroller  and Auditor  General of  India,  Gian  Prakash,  New  Delhi  and  another Vs.  K.S.  Jagannathan  and  another –  (AIR  1987  SC  537),  a  

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three-Judge  Bench  of  this  Court   referred  to  

Halsbury’s Laws of England, Fourth Edition, Volume I  

paragraph 89 to illustrate  the range of this remedy  

and quoted with approval the following passage from  

Halsbury about the efficacy of Mandamus:

“..is  to  remedy  defects  of  justice  and  accordingly it will issue, to the end that  justice may be done, in all cases where there  is  a  specific  legal  right  and  no  specific  legal remedy for enforcing that right, and it  may issue in cases where, although there is an  alternative  legal  remedy  yet  that  mode  of  redress  is  less  convenient  beneficial  and  effectual.”  (See  para  19,  page  546  of  the  report)

49. In paragraph 20, in the same page of the report,  

this Court further held:

“…and in a proper case, in order to prevent  injustice resulting to the concerned parties,  the Court may itself pass an order or give  directions which the Government or the public  authority should have passed or given had it  property  and  lawfully  exercised  its  discretion”

50. In a subsequent judgment also in  Shri Anadi Mukta  Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti  Mahotsav Smarak Trust and Ors. Vs. V.R.     Rudani and    Ors.  – AIR 1989 SC 1607, this Court examined the  development of the law of  Mandamus and held as  

under:

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“21.  ……….mandamus  cannot  be  denied  on  the  ground that the duty to be enforced is not  imposed  by  the  statute.  Commenting  on  the  development of this law, Professor De Smith  states:  “To  be  enforceable  by  mandamus  a  public duty does not necessarily have to be  one imposed by statute. It may be sufficient  for the duty to have been imposed by charter  common  law,  custom  or  even  contract.”  (Judicial Review of Administrative Act 4th Ed.  P.  540).  We  share  this  view.  The  judicial  control over the fast expanding maze of bodies  affecting the rights of the people should not  be put into water-tight compartment. It should  remain flexible to meet the requirements of  variable  circumstances.  Mandamus  is  a  very  wide remedy which must be easily available ‘to  reach  injustice  wherever  it  is  found’.  Technicalities should not come in the way of  granting that relief under Article 226. We,  therefore, reject the contention urged for the  appellants on the maintainability of the writ  petition.” (See page 1613 para 21).

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51. The facts of this case clearly show that appellant  

is entitled to get the sanction of holding higher  

secondary classes. In fact the Government committed  

itself to give the appellant the said facility. The  

Government’s said order could not be implemented in  

view of the court proceedings. Before the procedural  

wrangle  in  the  court  could  be  cleared,  came  the  

change of policy. So it cannot be denied that the  

appellant  has  a  right  or  at  least  a  legitimate  

expectation  to get  the permission  to hold  Higher  

Secondary classes.  

52. The  appellant  is  a  minority  institution  and  its  

fundamental  right  as  a  religious  minority  

institution under Article 30 also has to be kept in  

view.  

53. It  is  therefore  really  a  case  of  issuance  of  

mandamus  in  the  appellant’s  favour.  Merrill  on  

Mandamus has observed that it would be a monstrous  

absurdity  if  in  a  well-organized  government  no  

remedy is provided to a person who has a clear and  

undeniable right. It has been also observed where a  

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man has a jus ad rem (a right to a thing) it will be  

‘absurd, ridiculous and shame to the law, if Courts  

have no remedy and the only remedy he can have is by  

mandamus.’ [See para 11, pages 4-5]

54. For the reasons aforesaid this court cannot uphold  

the judgment passed by High Court in W.P. No.11167  

of 2006. The judgment is set aside and this court  

directs  the  respondent  state  to  sanction  Higher  

Secondary course in the appellant’s institution from  

the next academic session with this rider that the  

appellant  must  follow  the  extant  statutory  

procedures for the appointment of teachers in the  

Higher Secondary section.

55. The  appeal  is  allowed.  Parties  are  left  to  bear  

their own costs.  

.....................J. (G.S. SINGHVI)

.....................J. (ASOK KUMAR GANGULY)

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New Delhi   May 7, 2010

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