TMI Blog2010 (5) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 10= years old. The child was suffering from non-Hodgkins Lynphona with common acute Lymphoblastic Leukaenia. It was thought that no further tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplete 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. 31. The superintending engineer before the High Court gave an estimate that for the purposes of the widening of the road, ₹ 95,000/- was required but only ₹ 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne.....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, 10 th 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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