# 6 24 NARAINDAS: INDURKHYA v. THE STATE OF MADHYA PRADESH & ORS

- **Citation:** [1974] 3 S.C.R. 624
- **Court:** Supreme Court of India
- **Decided:** 1974-03-18
- **Bench:** A. N. Ray, H. R. Khanna, K. K. Mathew, A. ALAGIRISWAmI . . P. N. BIIAGWA1I
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/6-24-naraindas-indurkhya-v-the-state-of-madhya-pradesh-ors-6047
- **Pages:** 28

## Headnote

Madhya Pradesh Prathmik -;.,fiddle School Tatha Madhyamik Shiksha (Pothya
Pustakon Samb(}ndhi Vy' v rstha) Adhiniyam, 1973, S. 4(1) and 4{2}--Whether State
Governme1_ t coli/J 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 consul~
talion with Chairn1an of the Board would amount to consultation with the Board.
Constitution of India -Art. 14 and 19(1)(g)-/f the Act l'iolates Art. 162~
Scope,of.
By S:ction 8 or t'1: ~l1dhya Prad.!sh 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 impli·
cation the pov•er 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) empo\vered 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 consulta·
tion with the Board. Sub-section (2) of this section stated that the text books pre·
"Scribed by the State Gcvernment or the Board and 'in fcrce' 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 lf"ooks other than the text books prescribed under sub·
section (1) or referred to in sub-section (2) in any approved school or recognised
-school from the appointed day, that is, 23rd March, 1973. Jn 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 Y>'hich it was stated that the approval of these text bo( ks
was given by the State Government in consultation \Vith the Board of Secondary
Education. A notification was issued by the Board on 28th March, 1973 giving
directions that the scheme of exarr.ination for the higher secondary school certificate
-examination 1976 shall continue as per the same examination in 1975 and that ex~
cept 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 exami·
nation for the year 1976.
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The petitioner carried en business in printing, publishing and selling text.books
for use in schools in the State. The petitioner was one of the publishers \Vho register·
G
. (:d himself \Vith the Board and submitted text-books published by him for the app-.
roval of the Board. From among the books received for approval the Board recom·
mended certain text-books but none of the text·books prescribed or recommended
by the Board \Vas text book printed and published by the petitioner.
In a petiton under article 32 of the Constitution it \Vas contended (1) that before
the 1973 Act the State Government had no statutory authority to prescribe any text·
books 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
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they could not be regarded as text·books •in force' immediately before the appoin·
ted day under s. 4(2) of the Act, (2) that there was no statutory provision empowering the
BJard to Prescribe any text-books
on
languages . and the
notification prescribing the text·books was ineffective because it v•as issued
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NAIWNDAS v. M.P. STATE (Bhagwati J.)
625
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6 24
NARAINDAS: INDURKHYA
v.
THE STATE OF MADHYA PRADESH & ORS.
March 18, 1974.
{A. N. RAY, C. J., H. R. KHANNA, K. K. MATHEW, A. ALAGIRISWAmI .
. P. N. BIIAGWA1I, .JJ.]
Madhya Pradesh Prathmik -;.,fiddle School Tatha Madhyamik Shiksha (Pothya
Pustakon Samb(}ndhi Vy' v rstha) Adhiniyam, 1973, S. 4(1) and 4{2}--Whether State
Governme1_ t coli/J 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 consul~
talion with Chairn1an of the Board would amount to consultation with the Board.
Constitution of India -Art. 14 and 19(1)(g)-/f the Act l'iolates Art. 162~
Scope,of.
By S:ction 8 or t'1: ~l1dhya Prad.!sh 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 impli·
cation the pov•er 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) empo\vered 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 consulta·
tion with the Board. Sub-section (2) of this section stated that the text books pre·
"Scribed by the State Gcvernment or the Board and 'in fcrce' 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 lf"ooks other than the text books prescribed under sub·
section (1) or referred to in sub-section (2) in any approved school or recognised
-school from the appointed day, that is, 23rd March, 1973. Jn 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 Y>'hich it was stated that the approval of these text bo( ks
was given by the State Government in consultation \Vith the Board of Secondary
Education. A notification was issued by the Board on 28th March, 1973 giving
directions that the scheme of exarr.ination for the higher secondary school certificate
-examination 1976 shall continue as per the same examination in 1975 and that ex~
cept 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 exami·
nation for the year 1976.
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The petitioner carried en business in printing, publishing and selling text.books
for use in schools in the State. The petitioner was one of the publishers \Vho register·
G
. (:d himself \Vith the Board and submitted text-books published by him for the app-.
roval of the Board. From among the books received for approval the Board recom·
mended certain text-books but none of the text·books prescribed or recommended
by the Board \Vas text book printed and published by the petitioner.
In a petiton under article 32 of the Constitution it \Vas contended (1) that before
the 1973 Act the State Government had no statutory authority to prescribe any text·
books 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
H
they could not be regarded as text·books •in force' immediately before the appoin·
ted day under s. 4(2) of the Act, (2) that there was no statutory provision empowering the
BJard to Prescribe any text-books
on
languages . and the
notification prescribing the text·books was ineffective because it v•as issued
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NAIWNDAS v. M.P. STATE (Bhagwati J.)
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 ~ot h~ve
the effect of prescribing any of these text-books (4) that though the nottfica ion
dat:d 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
conc;ultation as required by the proviso to sub-section (1) of section 4 and the
notification was, therefore, void, and (5) that sectiof! 4 ~mposed unre~so!lable
r ~trictions on the petitioner's right to carry on his business tn as _much as it did not
p:ovide adequate machinery for selection of text books and left 1t to t~e ui:ir~tter·
ed and unguided discretion of the State Government and so was violative of
articlo 14 and 19(1)(11) 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-books
accordingly fall within the
cate~ory of prescribed text-books
under s. 4(2) and s. 4(3) of the Act.
The actton 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 subject, did not
infringe any right of the petitioner and other publishers and it "':as
wit~in
the executive power of the State.
The State Government could act -.J.D 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 likes. 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 prescribe 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 f'unjab, \ 1955] 2 S.C.R. 225 followed.
Bennett Coleman & Co. v. Union of India [19721 2 S.C.R .. 788, State of Madhya
Pradesh v. Thakur Bharat Singh, [1967] 2 S.C.R. 454 referre<l to.
(2) The Board has undoubtedly the power to prCscribc 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 corrett to say that the course of instr~ion in language cannot be laid down except by reference to text books prescribed for the purpose. The prescription of text books on languaees was outside
the power of the Board and hence it was ultra v1"res and had no binding effect which
would oblige the schools to use only those text books and I).o 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
issu~ 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 obligat_ory 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 exi>ressly
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 ~ext 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 Boatd 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'Gl
. (3) The notification dated 28th March, 1973 cannot be read as representing exer
c1sc of power under s. 4(1) and the status of prescribed text books could not be nccorded to the four text books on the strength of this notification. [641 BJ
There is a b.as~c distinction between reoommendation and prtseriPtion of tex
books • Prescnptton 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
SUPREME COURT REPORTS
[1974] 3 s.c.R.
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
recommended text books, 'they obviously could not be said to be 'in force' immediately before the appointed day. Section 4(2) did not1 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 dear beyonil 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. Jt 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 presuinption 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. Jn 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 Chainnan 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 Chainnan and not with the Board. (644 E; 641FJ
Swades!ii Cotton Mi/ls v. The State OJ 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. 40), did not prescribe text-books printed and publisheji by them. It is
. not pos.sibJe to say that arbitrary and uncontrolled power has been vested 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
w,antonly 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]
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. 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 jtfst and proper executicn of the power by the State Government, but on that
account alone confennent of the power connot be held to be invalid. Whenever
a discretionary power is conferred On any authority there is always a potential
danaer of its exercise or abuse, hcwever much the legislature may try to hedge it
with safeguards. But the mere possibility that the power may be misused or abused
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cannot per se induce the court to deny the existence of the power. The State legislatura has coRfidcd 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 confonnity
with the policy or principle laid down in the statute. (649GJ
Matajob Dobea v. H. C. Bhari, [1955]2 S.C.R. 925.
ORIGINAL JURISDICTION : Writ Petition No. 1177 -of
J97:i
(Under Article 32 of the. Constitution for enforcement of the
fundamental rights).
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NARAINDAS v. M. P. STATE (Bhagwati, I.)
627
B. Sen with K. P. Munshi, U. K. Khaitan and S. R. Agarwa/a for
the petitioner.
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Y. S. Dharmadhi Kari with Ram Punjwani and. l.N. Sharif for the
respondent 1-3 (In W. P. 1177)
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V. N. Ganpule and Urmila Sirur for the respondent 4-6 (in W. P.
1177)
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The Judgment of the Court was de.livered by
. BHAGWATI, J.-The. petitioner carries on business of printing, pub'.ishing and selling text books for use in Primary, Middle schools and
Higher Secondary classes in schools in the St.ate of Madhya Pradesh.
On 1st. November; 1956, as a result of the reorganisation of Stoics
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 bf 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 Maha·
koshal 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 VJII 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 Sta1e 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 pri·
vate schools, not because of any statutory authority, but because most
of the private schools depended on grant-in-aid from the State Government and unles• the courses of instruction and syllabi prescribed by
628
SUPREME COURT REPORTS
[1974) 3 S.C.R ..
the State'Government were followed by them, they would not b' rc;,>g·
nized by the Board of Secondary Educations<> as to be able to present their students for tile examination to be held by the Board a .•ine
'Jlla no.1 for admission to a university-unless their Primary and Middle
schools sections were recognized by the State Government. So far a•
the text books for use in Primary and Middle school etas.es, were concerned, the State Government prescribed 29 text books printed and published by it on different subjects for me in different cla~sos. There wa.
of-course, no statutory provision under which these 29 text bo~k' cJuU
be prescribed by the State Government and the prescription of these
29 text books had, therefore, no statutory authority but private scho•)l',
no less than Gover.nment schools accepted these 29 te~t books b'cau>e
non-accept~nce would have inwlved ,toppage of grant-in-aid from
the Sta~ (lovernmcnt. rn the meantime a Society called the Madhya
Pradesh Pathya Pustak Rachna Avarn Shaiksbinik Anusandhan Nig•m
<ltel'!'inafter refem:d to.·as the Text Books Corporation) was formod
by. t~e State Government for the purpose of carrying on the work of
printing, publishing and distributing text books for use in the Pdmary
and . Middle school classes jn the State of Madhya Pradesh. The
Mt°!ster incharge pf the portfolio of education was an ex:offic10
Chairman of the text Books Corporation, while some offi::ers of the
~veroment connected with the Education Department were •.x-0ffic10 members along with certain other non-0fficial members nvmmated
by the State Government. The Text Books Corp>rtion wa~ registered
under the Madhya Pradesh societies Act. 1959 and according to the
prov!si?!1S of that Act, it was to function on a no profit-no los~ basis.
'I;ite 1rut1al resources of the Text Books Corporation. were provided by
the State Government by giving a loan of Rs.15 lacs for the purpo;e of
cnablin~ it to commence its operations. The Text 'Books Corporatio~
was by 11& very constitution controlled by the State' Government and 11
was intended to function as an agency of the state Government.
The work of printing and publishing of text books wa•, however, not
commenced immediately by the Text Books Corporation and until
the end of the academic year 1970-71, the aforesaicl 29 text books printed and published by the State Government continued to be prescribed and used in the Primary and Middle school classes.
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. There was, however, a change in the course of instruction and syl-
~abi in some of the subjects from the academic year 1971-72. The State
-Government by .a notification dated 18th May, 1971 prescribed impro-
·ved courses of instruction and syallabi in certain subj<cts to be followod
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from the academic year 1971-72 and direcled that so far as courses
of instruction and syallabi in the other subjects were conce~ned. they
should continue to be the same as in the previous academic year 197071. The aforesaid 29 text books printed and published by the State
Government; not being in accordance with the new courses of imtruction and syallabi so prescribed, were rendered usele5' and in their
place, new text books had to be brought out which would be in conforH
rnity 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 theso
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NARAINDAS v. M. P. STATE (Bhagwari, J.)
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 book, prin.
ted 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 published by the State Government as a separate
book, was amalgamated by the Text Books Corporation with Bal Bharati Part I. These 28 text books brought out by the Text Books Corporation were referred to by the State Government as 'nationalised
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 ditribution 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, provid<d 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 !0th May, 1972 and by this notification the State Government introduced new courses of instruction and syallabi in certain sutiects
and with regard to the rest, directed that the same courses of insir~c
tion 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 book,, printed and
published by the Text Books Corporation, revhed in accordance with
the new courses of instruction and syallabi where necessary continued to be prescribed as text books for the academfo year 1972-73.
The Text Books Corporation thereafter brought out eight further
text book.o 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 March
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 affidavit; 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 agrument 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 orde1
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 regulate<'
by the M.adhya Pradesh Education Act, 1951 in the Mahakoshal regior
630
SUPREME COURT REPORTS
[ 1974] 3 s.c.R.
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 reorganisation 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 the Board
·were set out ins. 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 :
"(!) to select text books for prescribed courses of instructions and syllabi for Secondary Education;
(2) toprepareapanelofexpertreviewers for each of the
'.subjects included in the secondarys chool 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 oneofthc 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 oft he selections made
by the Text Books Committee, prescribed text books in English, Hindi,
Marathi and Sanskrit.
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NARAINDAS v. M. P. STATE (Bha,wczti, J.)
631
The Madhya Pradesh Mad hyamik Shiksha Adhiniyam 1965 (hereinafter referred to as the Act of 1965) was enacted by the Madhya Pradesh Legislature on 29th September 1965 and bys. 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;
(m) to advise the State Government as to the courses of
instruction and svJlabi of Middle 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 regulations made by the Board under s. 28. The Board in exercise of
the power conferred under s. 28 made the Board of Secondary
Education,
Mahdya
Pradesh
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 imited 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 mercily recon1mendcd 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 wasas follows:
The Board invited publishers desiring to get their text books selected to
register themseleves 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
SUPREME COURT REPORTS
[ l 974] 3 S.C..R.
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 conformity 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 together 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 n1ade bv the reviewers made its recommendation
to the Board as regards the merits of the text books submitted for
its consideration. The Chairman of the Board then, by virtue of the
authority conferred upon him by the Resolution of the Board dated
12th October, l 971, 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 i.p;iear
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
6:neral 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 wa> a notification dated 17th May. 1972 by which the Bo'td 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
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NARAINDAS I'. M.P. STATE (Bhagwati, /.)
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 oil 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) Adhiftiyam, 1973 (hereinafter refeffed
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. !. The provisions of this Act are material and
we may refer .to them. Section 2, cl. (e) defines 'text book' in the wideEt
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 11nder
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 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 lime 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. (!) of" 3.
Then comes section 4 which
deals with the prescription of text books according to syllabi l;lid down
under s. 3.
Since that is the section which is impugned in the present
petiVion, we may reproduce it :
"4(1) The State Government i:icy, 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 iryimediately before the appo.inted
H
day s'1all, till they are changed in accordance with the provLS1ons_
of this Act, be the text books prescribed for the purpose o!
fiub-section (l).
12-M45 Sup. Ct175
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
(3) As from the appointed day, no books other than the text
books prescribed under sub-section (I) 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 Goverll\nent 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
gTOund 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
a/ia the following directions :
I. 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.
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. {I) 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 Comn~er~ and English for the Higher
Secondary School Certificate Examinat10n, 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 Con<titution. Several contentions were
raised in the petitition 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 peti·
tioner confined his arguments only to the following contentions :
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NARAINDAS v. M.P. STATE (Bhagwati, J.)
635
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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 classe' were, therefore, without the authority
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of law and these 28 text tooks 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.
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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).