Re v. Fr. Joachin — 1990 DIGILAW 386 (KER)

Judgment :- It seems that 91 schools sought to be opened as recognized schools have been jinxed from the beginning. Though the schools were meant to be opened during the cadmic year 1986-87, they still remain in incubation stage in spite of lapse of four years. The Government which initiated the process for according recognition to those schools later resiled from it, but due to court intervention the Government could not close the Matter once and for all. However, Government, in order to circumvent an earlier judgment of this Court by which the Government was asked to proceed with the resolve to open 91 schools, have amended the law by arming itself with the power of review. In exercise of that power, Government reviewed the earlier decision and cancelled it. This batch of Original Petitions is in challenge of the said decision of the Government. 2. It was on 4-2-1987 that the Government accorded sanction to open or upgrade 91 unaided schools in different localities in Kerala State. This was done under R.2A(5) (in Chapter V) of the Kerala Education Rules (for short 'K.E.R.'), after obtaining applications from individuals and/or agencies for opening new schools. When a new government came to power, they decided to cancel the earlier decision. Accordingly, orders were issued in G.O. (MS) 107/87G/Edn. Dated 19-5-87. Some of the interested persons challenged the said decision in this Court Though a learned single judge upheld the decision, a Division Bench of this Court quashed it. The judgment of the Division Bench was reported in Madhavan Filial v. State of Kerala (1987(1) KLT 681). The Government went in appeal to the Supreme Court, but the Supreme Court did not interfere (vide State of Kerala v. Madhavan Filial -1989 (1) KLT 141). The Division Bench of this Court directed the Government to proceed with the applications. The Supreme Court while dismissing the State appeal held that the applicants are entitled to have their applications considered under R.9 in Chap. V of the K.E.R. and to pass appropriate orders under R.11 in accordance with law. The Division Bench of this Court directed the Government to proceed with the applications. The Supreme Court while dismissing the State appeal held that the applicants are entitled to have their applications considered under R.9 in Chap. V of the K.E.R. and to pass appropriate orders under R.11 in accordance with law. After the Supreme Court decision, the Government amended the K.E.R. in order to confer powers on the Government to review the orders passed under R.2A in Chapter V of the K.E.R. For that purpose, Government inserted R.2B in Chapter V of the K.E.R. On the strength of R.2B(1) of the K.E.R. Government issued notice to the applicants concerned informing Government's intention to review the earlier order dated 4-2-87. After receiving individual representations, Government passed Ext.P5 order canceling the earlier order dated 4-2-87. Ext.P5 is the order, which is challenged in these Original Petitions. 3. Three-fold attack is launched against Ext.P5. Firstly, it was con tended that R.2B(1) in Chapter V of the K.E.R. is ultra virus to Article 14 of the Constitution inasmuch as it saddles the Government with unrestricted and unguided power to review the earlier order. Second contention is that neither the Government nor even the legislature can scuttle the due enforcement of a direction issued by the High coup under Art.226 of the constitution. As the Division Bench of this Court in Madhavan Pillai's case (cited supra) has issued a direction to the Government to proceed to the stage of Rule 9 and pass necessary orders under R.11, it is not open to the Government in exercise of its delegated legislative powers to nullify the direction, contended the counsel. The third contention is that the Government committed a serious illegality in relying on the very same grounds, which this Court and the Supreme Court once found to be extraneous and irrelevant to review the earlier decision. I shall proceed to consider those contentions one after the other. 4. The third contention is that the Government committed a serious illegality in relying on the very same grounds, which this Court and the Supreme Court once found to be extraneous and irrelevant to review the earlier decision. I shall proceed to consider those contentions one after the other. 4. Rule 2B in Chapter V of the K.E.R. reads thus: "Review of orders by Government -(1) The Government may, either suomotu or on The application of any party interested, review, confirm, modify or cancel any decisions and pass such orders as they may deem fit; Provided that in the public interest or for the larger interest of the State, Government may exercise such powers, without giving notice to the parties likely to be affected, if Government are satisfied that there is any urgency. (2) Not with standing anything contained in these rules, Government may take a general policy decision taking into account the various factors for opening and recognition of schools and with due regard to the overall finances of the State, that no recognized or aided schools shall be opened for a year or for any specified period. (3) Not with standing any of the provisions contained in these rules, even if cases where steps under R.2A of Chapter V, are completed, Government shall not be obliged to take further steps commencing from R.11, and Government shall be at liberty to stop the exercise at any stage, if they feel that it is in the public interest, or in the larger interest of the State, or in the-interest of the policy that is pursued by Government, and pass, such orders as Government deems fit under the circumstances". It is sub-rule (1), which confers review power on the Government. The sub-rule is not subject to any period, or limitation or condition. No guideline is seen specifically prescribed for exercise of the said review power of the Government. R.2, which deals with the procedure for determining the areas where new schools are to be. Opened or existing schools upgraded confers a power of review on the Government in sub-rule (5) which is conditioned by or restricted to instances where the Government are satisfied that any irrelevant ground has been taken into consideration or any relevant facts has not been taken into account while finalizing the list. Opened or existing schools upgraded confers a power of review on the Government in sub-rule (5) which is conditioned by or restricted to instances where the Government are satisfied that any irrelevant ground has been taken into consideration or any relevant facts has not been taken into account while finalizing the list. This Court has held in Abraham v. State of Kerala (1984 KLT 704) that the said power could be exercised only in cases where the list approved and published by the Government is vitiated by: (a) failure to take into account relevant grounds or (b) taking into account irrelevant grounds; or (c) due to failure to take into account relevant facts. R.23A is another rule in the same Chapter, which confers power of review on the District Educational Officer if he is satisfied that breach of rules for which recognition was withdrawn has been rectified or that there are, in public interests good and sufficient reasons to restore recognition to the school. The power envisaged in the said rule is not so wide or unrestricted as the power conferred on the Government under R.2B(1), according to the learned counsel. The other rules in the other Chapters of the K.E.R. dealing with review power of the Government were also referred to by the counsel. Eg:-Rules 90 and 93 in Chapter XIV(A). Learned counsel pointed out that some restrictions are incorporated in all those rules and he contended that the impugned sub-rule is totally unrestricted. 5. When power is conferred on executive authorities a decision in exercise of such power should be made only by applying the known principles and rules. "If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law" (vide Jaisinghani v. Union of India - AIR 1967 S.C.1427). In Maneka Gandhi v. Union of India (AIR 1978 S.C 597) the Supreme Court recognized the said settled legal position that "when a statute vests unguided and unrestricted power in an authority to effect the rights of a person, without laying down any policy or principle which is to guide the authority in exercise of the power, it would be affected by the vice of discrimination since it would leave it open to the authority to discriminate between persons and/or things similarly situated". However, the Supreme Court upheld the validity of S.10(3)(c) of the Passport Act since it contained the rider that power there under can be exercised "yi the interests of the general public". The contention that the said words are too vague and indefinite as to arm the passport authority with unguided and unfettered power to impound a passport was repelled by the Supreme Court. Bhagwati. (as he then was) who delivered the judgment of the majority has observed thus: "When power is vested in a high authority like the Central Government, abuse of power cannot be lightly assumed. And in any event, if there is abuse of power, the arms of the court are long enough to reach it and to strike it down. The power conferred on the Passport Authority to impound a passport under S.10(3)(c) cannot, therefore, be regarded as discriminatory and it does not fall foul of Art.14. But every exercise of such power has to be tested in order to determine whether it is arbitrary or within the guidelines provided in S.10(3)(c)". 6. It is well neigh settled that when the provision of a statute or any rule made there under is challenged as unconstitutional, the court should always lean in favour of that interpretation which would save the law from being struck down. (Vide Indira Gandhi v. Raj Narain - AIR 1975 S.C. 2299). "It is a well-established canon of interpretation that, out of two possible interpretations of a provision, one which prevents it from becoming unconstitutional should be preferred if' this is possible - utres magis valeat quam pereat". Therefore, the effort must be to save the rule and only if it is not possible that the rule has to suffer the cut with the axe. 7. The power of review envisaged in R.2B(1) of the Act cannot be understood as one arming the Government with power to review on irrelevant or extraneous considerations. This can be gathered from the sub-rule as the power is conferred on a high authority like the State Government. It could also be discerned from the proviso to the sub-rule. There is inherent material in the proviso to indicate that the power of review can be exercised only in public interest or for the larger interest of the State, though the emphasis of the proviso is to a case of urgency. It could also be discerned from the proviso to the sub-rule. There is inherent material in the proviso to indicate that the power of review can be exercised only in public interest or for the larger interest of the State, though the emphasis of the proviso is to a case of urgency. Under the proviso, the normal rule is that the power of review shall not be exercised without giving notice to the parties likely to be affected. The procedure to give notice can be dispensed with only if the Government are satisfied that there is any urgency. Public interest or larger interests of the State are not enough to dispense with notice to the affected parties. They must co-exist with the satisfaction of the Government that due to urgency of the matter service of notice on the affected parties would delay the procedure. It may appear, on a cursory glance at the proviso that it is intended primarily to dispense with notice to the affected parties. But a closer reading of the proviso reveals as to when and how the power of review can be exercised in normal cases as well as in emergent cases. Thus the proviso can be interpreted as one laying down a guideline that the Government can review the order only if it is demanded in public interest or in larger interest of the State, and if the Government are satisfied that there is any urgency, it can proceed even without issuing notice to the affected parties. 8. For the aforesaid reasons, I do not agree with the contention of the petitioners that the power of review envisaged in R.2B(1) of the Act is unlimited or unguided. 9. The next contention that since the Government is bound by the direction issued by this Court to proceed with the applications, neither the Government nor the legislature can escape there from on the strength of change in law, needs careful scrutiny. 10. A Constitution Bench of the Supreme Court has considered the sustainability of the argument that the legislature exercises judicial power if its legislative action retroacts on past controversies and overrides or reverses the decisions of the judiciary. The decision is reported in UdaiRam v. Union of India (AIR 1968 Sc 1138). 10. A Constitution Bench of the Supreme Court has considered the sustainability of the argument that the legislature exercises judicial power if its legislative action retroacts on past controversies and overrides or reverses the decisions of the judiciary. The decision is reported in UdaiRam v. Union of India (AIR 1968 Sc 1138). The Bench was of the opinion that the contentions raised about the validity of the impugned provision on the premise that it encroached upon the domain of the judiciary by seeking to nullify judicial decisions cannot be sustained. The American doctrine of well-defined separation of legislative and judicial powers has no application to' India and it cannot be said that an Indian Statute which seeks to validate invalid actions is bad if the invalidity has already been pronounced upon by a court of law. The Supreme Court was considering a case relating toS.4of Act 13 of 1967. To circumvent certain difficulties created by a judgment of the Supreme Court, the Central Government passed Act 13 of 1967 called "The Land Acquisition (Amendment and Validation) Act. S.4 of the said Act validated the proceedings already initiated "notwithstanding any judgment, decree or order of any court to the contrary". The Constitution Bench held that S.4 of that Act "being within the legislative competence of Parliament, the provisions thereof are binding on all courts of law notwithstanding judgments, orders or decrees to the contrary rendered or made in the past". 11. Another Constitution Bench of the Supreme Court in Xante Kathuria v. Manak Chand (AIR 1970 K 694) considered a similar question. Smt. Kathuria stood as a candidate for election to the Rajasthan Legislative Assembly from a particular constituency. She was declared elected. One of the defeated candidates challenged the election on the ground, inter alia, that she was disqualified to be chosen as a candidate, as she held the office of Special Government Pleader, which was an office of profit under the Government of Rajasthan. The High Court of Rajasthan accepted the contention and found that Smt. Kathuria was disqualified. She filed an appeal before the Supreme Court. While the appeal was pending, the Governor of Rajasthan promulgated an Ordinance by removing the disqualification retrospectively. The said Ordinance was replaced by an Act of the legislature of State, as a settled legislative practice to make validation laws. The Supreme Court upheld the validity of the Act. 12. She filed an appeal before the Supreme Court. While the appeal was pending, the Governor of Rajasthan promulgated an Ordinance by removing the disqualification retrospectively. The said Ordinance was replaced by an Act of the legislature of State, as a settled legislative practice to make validation laws. The Supreme Court upheld the validity of the Act. 12. When a certain Panchayat demanded a huge sum of money by way of permission fee, a writ petition was filed in the High Court of Andhra Pradesh challenging the levy of the said fee. The High Court allowed the writ petition on the ground that the building constructed by the assessee does not fall within the definition of the word "house" as contained in the Andhra Pradesh Panchayats Act, 1964. Subsequently, the Act was amended by changing the definition of the word "house" and the amendment was given retrospective effect. When fresh proceedings were initiated for levy of the fee, they were again challenged in court. The Supreme Court noted that the legislature has removed the basis of the decision rendered by the High Court "so that the decision could not have been given in the altered circumstances". (Vide Government of Andhra Pradesh v. HMT. - AIR 1975 K 2037). The Supreme Court upheld the amendment, which removed the basis of the decision as "it was within the permissible limits and validation of the old Act by amending it retrospectively did not constitute an encroachment on the functions of the judiciary". In Mis. Hindustan Gum & Chemicals Ltd. v. State of Haryana (AIR 1985 K 1683) the Supreme Court held that "it is now well settled that it is permissible for a competent Legislature to overcome the effect of a decision of a court setting aside the imposition of a tax by passing a suitable legislation amending the relevant provisions of the statute concerned with retrospective effect, thus taking away the basis on which the decision of the Court had been rendered and by enacting an appropriate provision validating the levy and collection of tax made before the decision in question was rendered". 13. thus the trend of the decisions seems to be that the courts in India have always Regarded legislative power to remove the basis of any judicial decision as valid and thereby to render the decision of the court ineffective. 14. 13. thus the trend of the decisions seems to be that the courts in India have always Regarded legislative power to remove the basis of any judicial decision as valid and thereby to render the decision of the court ineffective. 14. However, learned counsel for the petitioners contended that a departure was made by the Supreme Court from the aforesaid trend in M.M. Pathak v. Union of India (AIR 1978 K 803). That decision was given by a Constitution Bench of seven judges of the Supreme Court. Much reliance was placed by the learned counsel for the petitioners on this decision. It was held that "the jurisdiction of a High Court and the effectiveness of its orders derived their force from Art.226 of the Constitution itself and that the rights of the citizen against the State which had passed into those embodied in a judgment and became the basis of a mandamus from the High Court could not be taken away in indirect fashion by enacting such an ordinary Act of Parliament". The employees of the Life Insurance Corporation made a claim for bonus for the year 1975-76. A settlement was arrived at between the employees of the Union and the Corporation and also by the Central Government. Subsequently, Payment of Bonus Amendment Ordinance was promulgated under which the Life Insurance Corporation issued a circular reviewing the payment of bonus. In a writ petition filed in the High Court of Calcutta, an order was passed recognizing the right of the petitioners to entitlement of bonus. Subsequently, Parliament enacted the Life Insurance Corporation (Modification of settlement) Act, 1976, where by the petitioners' right was denied. The validity of the said Act was challenged before the Supreme Court. It was held that "even if legislation can remove the basis of a decision it has to do it by an alteration of general rights of a class but not by simply excluding two specific settlements between the Corporation and its employees". The peculiar facts in the case were given special emphasis by the Supreme Court and the absence of any contest by the Life Insurance Corporation against the writ issued by the Calcutta High Court was also highlighted in the judgment. The peculiar facts in the case were given special emphasis by the Supreme Court and the absence of any contest by the Life Insurance Corporation against the writ issued by the Calcutta High Court was also highlighted in the judgment. It was in the aforesaid circumstances that the Supreme Court held that the Life Insurance Corporation could not be absolved from the obligation imposed by the judgment to carry out the writ of mandamus. That decision was followed in Nachane v. Union of India (AIR 1982 SCKI 126). It was pointed out that even though the real object of amending the Act was to set aside the result of the mandamus issued by the Calcutta High Court, the section did not mention that object at all. The said two decisions have not really changed the trend of the earlier decisions although, on the peculiar facts of the two cases, the Supreme Court did not agree that the Amendment Act had removed the basis of the judgment delivered by the court. 15. Rule 2B(1) has been enacted obviously for removing the basis of the earlier judgment of the Division Bench of this Court as well as the judgment of the Supreme Court. (Vide Madhavan Filial v. State of Kerala -1987 (2) KLT 681 and State of Kerala v. Madhavan Filial -1989 (1) KLT 141). As the Government had acted on the strength of the power so conferred by R.2B, it cannot be said that the Government have acted illegally for bypassing the directions contained in the aforesaid decisions. 16. What remains is the contention that the Government have acted on extraneous and irrelevant considerations while reviewing the earlier orders. 17. In Ext.P5, Government have adverted to the ground for review in the following lines: "On a review of the whole matter Government find that at the time of sanctioning the school the State was having more schools than what is required for catering to the educational needs of the State. During the years preceding the issue of the G.O. dated 4-2-1987, the Government have resorted to a policy of sanctioning aided and unaided school on ad hoc basis without carefully assessing the educational needs. As a result of this several Government and aided schools have become uneconomic for want of adequate students and many schools witnessed heavy division fall rendering a large number of school teachers and non-teaching staff as surplus. As a result of this several Government and aided schools have become uneconomic for want of adequate students and many schools witnessed heavy division fall rendering a large number of school teachers and non-teaching staff as surplus. There were 660 uneconomic schools and 4985 surplus teachers during 1986-87 for want of adequate students. On verification it is also found that in the present case of schools sanctioned as per G.O. (MS) 35/871 G.Edn. Dated 4-2-1987, the area for opening or upgrading unaided schools were selected and notified without carefully assessing the educational needs as required in sub-rule (1) of Rule (2) of Chapter V of the Kerala Education Rules". The Division Bench in Madhavan Pillai's case (cited supra) considered the reasonableness of the very same ground since on this ground the Government had earlier cancelled the decision to open or upgrade unaided schools. That order of cancellation was the subject matter of challenge in Madhavan Pillai's case. The Division Bench observed that if the Government have issued any executive order undertaking to pay protected teachers even if they are accommodated elsewhere "the remedy seems to cancel those executive orders which is still within the power of the Government, rather than refuse to make the educational needs for explanation by starting/ upgrading new schools". The Supreme Court, which confirmed the decision of the Division Bench of this Court, has also observed that the said ground "speaks rather poorly of the standards of education in Government and aided schools". It proceeded thus: "Be that as it may, this cannot be a reason which can be advanced by the Government after it had gone half the way through the exercise of opening new schools in areas and localities where educational facilities are not adequate ... the argument fails to take note of the fact that all these factors were not new developments but were in existence even when the Government took steps under R.2 to identify the poorly served areas and then called for applications from interested parties for grant of permission to open new schools or to upgrade existing schools. If really the opening of new aided schools would result in an adverse effect upon the finances of the State, then the Government should find remedy for the situation by amending the Rules suitably so as to severely limit the scope for opening new unaided schools by putting more stringent conditions... If really the opening of new aided schools would result in an adverse effect upon the finances of the State, then the Government should find remedy for the situation by amending the Rules suitably so as to severely limit the scope for opening new unaided schools by putting more stringent conditions... Over and above all these things, it is inconceivable that by the opening of 91 unaided schools, new or upgraded, even assuming at of them are granted permission under R.11, the impact on the pupil strength or division strength in the existing government and aided schools will be so great as to cause a large number of teachers being rendered surplus and the Government being forced to incur heavy expenditure by treating them as protected teachers and paying them their salary. We are therefore, in complete agreement with the Division Bench that these factors are undoubtedly extraneous ones and do not afford justification for the passing of the impugned order for revoking the earlier sanction order". (Emphasis supplied) In the light of those observations, Government cannot resort to the same grounds once again for reviewing the earlier decision, merely on the strength of R.2B(1). 18. Learned Advocate General contended that it is possible for the Government to refrain from proceeding further if the Government feel that it is in public interest or in the larger interest of State or in the interest of the policy pursued by the Government. I am not disposed to consider the said contention as it is hypothetical now and the Government have not so far taken any such policy decision. As it is, the impugned order Ext.P5, which alone is challenged in this batch of Original Petitions, I need not go beyond the scope of consideration of the questions involved in these Original Petitions. 19. As I hold that the Government have exercised review power on factors, which are "undoubtedly extraneous ones", Ext.P5 is liable to be quashed. In the result, I quash Ext.P5. Original Petitions are disposed of accordingly.