TMI Blog2005 (12) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... reinafter referred to as CBSE), is a society constituted by the Central Government through a Resolution bearing No. F.115-R28 dated 01.07.1929 as amended from time to time. As per the constitution of the society, the Education Secretary in the Ministry of Human Resource Development, Government of India is the controlling authority. The objective of the respondent is to grant affiliation and conduct examinations at the secondary and senior secondary level throughout the country. The constitution of the society is Annexure 2 to the writ petition. It is alleged that an overwhelming majority of the members of the respondent Board are Government representatives and all the members of the CBSE hold posts only at the pleasure of the Controlling Authority, who is the Secretary to the Government of India, Ministry of Human Resource Development. Hence it is alleged that CBSE is amenable to the extra ordinary writ jurisdiction of this court. 5. For the purposes of grant of affiliation of private unaided schools with the CBSE, one of the essential requirements prescribed by the CBSE is that the concerned school should obtain a No Objection Certificate (NOC) from the State /UT Government, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is received from the State Government within the three months, then after the expiry of three months, the Board should take decision on the case in an impartial manner. In case State Government specifically refuses the NOC in writing, even then CBSE should give its decision (regarding affiliation based on the merits and demerits of the case. However, in this sort of case, decision should be backed with or based on fully justified reasons to be recorded in writing and a copy of the same should also go to the State Government. CBSE may kindly note the above advice / directions of the Controlling Authority for guidance and appropriate necessary action. 10. The petitioner has alleged that the affiliation bye-laws are in contravention of the aforesaid direction issued by the Controlling Authority vide letter dated 01.05.2001 reproduced above. It is alleged that the direction of the Controlling Authority is binding on the CBSE by virtue of Clause 10(i) and (3) of the constitution of the CBSE. It is further alleged that bye-laws 3.3(i) of the affiliation bye-laws is contrary to the decision of the Supreme Court in St. Johns Teacher Training Institute v. Regional Director, National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stration Act, 1860. It was registered on 02.01.1935, and the certificate of registration is Annexure A1 to the additional affidavit. True copy of the Memorandum of Association is Annexure A2 and true copy of the Regulations of CBSE is Annexure A-3 to the additional affidavit. Chapter 6 of the regulations contains the rules of affiliation which prescribe the minimum requirement of affiliation. In addition, bye-laws of affiliation have been framed which are on the record. 17. Thus, it is evident that although the CBSE was initially created by the Central Government by the Resolution dated 01.07.1929, subsequently the appellant was registered as a society registered under the Societies Registration Act, 1860. Hence after its registration on 02.01.1935 it ceased to be a limb of the Central Government and became an independent and distinct legal entity. 18. Among the objects for which the CBSE has been established as mentioned in the Memorandum of Association are:- (1) To supervise and regulate high school, intermediate education and training of teachers in Rajputana including Ajmer Mervari, Central India and Gwalior and also to conduct examination in this area. The other ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Government. Hence the CBSE constitution mentioned in the Resolution of the Central Government dated 01.07.1929 can no longer govern the CBSE. From 02.01.1935 it is the Memorandum, Regulations and Bye-laws of the CBSE which govern it. 24. In Para 06 of the impugned judgment the learned Single Judge has observed :- So far as regulations or bye-laws vis-`-vis a statute are concerned it is firmly entrenched in our jurisprudence that a delegate would exceed the jurisdiction and the powers vested in it if it were to go beyond the provisions of the Statute which has created it. 25. There is no disputing the proposition which the learned Single Judge has referred to in the above observation. However, with due respect to the learned Judge what has not been taken into consideration by him is that there was no statute which created the CBSE but only a Resolution of the Central Government dated 01.07.1929. That Resolution is only an executive order and not a statute. Subsequently, the CBSE became a registered society under the Societies Registration Act, 1860 on 02.01.1935. Hence from 02.01.1935, the society is no longer a limb of the Central Government, but is a distinct le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intricacies of a public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator. 29. In our opinion judges must maintain judicial self restraint while exercising the power of judicial review of administrative or legislative decisions. In view of the complexities of modern society, wrote Justice Frankfurter, while Professor of Law at Harvard University, and the restricted scope of any man's experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution. These insights Mr. Justice Holmes applied in hundreds of cases and expressed in memorable language: It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UT Government. 34. In our opinion, it is entirely for the Board to lay down the rules for grant of affiliation. This is a policy matter, and it is not proper for this Court to interfere in this. 35. The learned counsel for the writ petitioner (respondent in this appeal) has invited our attention to the last sentence in the judgment of the Supreme Court in St. Johns Teacher Training Institute v. Regional Director, National Council for Teacher Education and Anr.(supra), in which it is stated that the State Government shall pass the final order on the application for grant of No Objection Certificate within 4 months of presentation of a certified copy of the order, failing which, it will be deemed that No Objection Certificate has been granted. 36. The learned counsel submitted that in the present case also we should direct that if the application for No Objection Certificate has not been decided within 4 months it should be deemed to have been granted. 37. In our opinion, if we give a direction that if the application for grant of No Objection Certificate is not decided within 4 months it will be deemed to have been granted that will amount to legislation which this court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the case before the court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent judge is the principle upon which the case was decided. 40. In J and K Public Service Commission v. Dr. Narinder Mohan (1994)ILLJ780SC , the Supreme Court held that the directions issued by the court from time to time for regularization of ad hoc appointments are not a ratio of this decision, rather the aforesaid directions were to be treated under Article 142 of the Constitution of India. The Supreme Court ultimately held that the High Court was not right in placing reliance on the judgment as a ratio to give the direction to the Public Service Commission to consider the cases of the respondents for regularization. In that decision the Supreme Court observed: 11. This Court in Dr. A.K. Jain v. Union of India [1988]1SCR335 , gave directions under Article 142 to regularise the services of the ad hoc doctors appointed on or before October 1, 1984. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules. 41. Thus, the direction in the decision of the Supreme Court in St. Johns Teacher Training Institute v. Regional Director, National Council for Teacher Education and Anr. (supra) that if No Objection Certificate application is not decided within 4 months it will be deemed to have been allowed cannot be treated as precedent binding on the High Courts. That direction was given on its own facts and does not amount to laying down a general principle of law that whenever any application is not decided within 4 months it will be deemed to have been allowed. 42. The learned Single Judge has struck down bye-law 3 (1) holding it to be inconsistent with certain decisions of the Supreme Court. We have perused th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2003 (51) ALR 598 the Supreme Court observed: The court as observed in G.P. Mahajan v. Jalgaon Municipal Council AIR1994SC988 are kept out of the lush field of administration policy except where the policy is inconsistent with the express or implied provision of a statute which creates the power to which the policy relates, or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have made it. But there has to be a word of caution. Something overwhelming must appear before the Court will intervene. That is and ought to be difficult onus for an applicant to discharge. The Courts are not very good at formulating or evaluating policy. Sometimes when the Courts have intervened on policy grounds the Courts view of the range of policies open under the statute or of what is unreasonable policy has not got public acceptance. On the contrary, curial views of policy have been subjected to stringent criticism. As Professor Wade points out (in Administrative Law by HWR Wade, 6th Edition), there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe for any interference by the Courts unless the particular provision impugned before it can be said to suffer from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power or it being is consistent with any of the provisions of the parent enactment or in violation of any of the limitation imposed by the Constitution. 51. A similar view has been reiterated in Delhi Science Forum and Ors. v. Union of India and Anr. [1996]2SCR767 ; U.P. Kattha Factories Association v. State of U.P. and Ors. [1996]1SCR5 ; and Rameshwar Prasad v. Managing Director, U.P. Rajkiya Nirman Nigam Ltd. and Ors. AIR1999SC3443 . 52. In Netai Bag and Ors. v. State of West Bengal and Ors. AIR2000SC3313 , the Supreme Court observed:- The Court cannot strike down a policy decision taken by the government merely because it feels that another decision would have been fairer or wiser or more scientific or logical. 53. The Government is entitled to make pragmatic adjustments and policy decisions which may be necessary or called for under the prevalent peculiar circumstances. While deciding the said case, the Court referred to and relied upon its earlier judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the information in its possession and the advice it receives and according to its own perspective and calculations. Unless its action is mala fide, even a wrong decision taken by it is not open to challenge. It is not for the Courts or a third party to substitute its decisions, however, more prudent, commercial or business like it may be, for the decision of the corporation. Hence, whatever the wisdom (or the lack of it) of the conduct of the corporation, the same cannot be assailed by making the corporation liable. 57. In Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. (2002) 1 UPLBEC 937(Vide paragraph 10) the Supreme Court observed:- If the High Court cannot sit as an appellate authority over the decisions and orders of quasi judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known that more than one choice is available to the administrative authorities. They have a certain amount of discretion available to them. They have a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imaginative statesmanship, if judges have imagination for statesmanship. 60. In Keshavanand Bharathi v. State of Kerala AIR1973SC1461 (vide paragraph 1547 Khanna J. observed: In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error. 61. In Indian Railway Construction Co. Limited v. Ajay Kumar (2003) 2 UPLBEC 1206(vide paragraph 14) the Supreme Court observed that there are three grounds on which administrative action is subject to control by judicial review. The first ground is illegality, the second is irrationality and the third is procedural impropriety. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister of the Civil Service 1984 (3) All ER 935. The Supreme Court observed that the Court will be slow to interfere in such matters relating to administrative functions unless the decision is tainted by any vulnerability enumerated above, like illegality, irrationality and procedural impropriety. The famous case, commonly known as the Wednesburys case is treated as the landmark in laying down various principles relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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