SECRETARY, CANNANORE DISTRICT MUSLIM EDUCATIONAL ASSOCIATIONversusSTATE OF KERALA AND ORS.

                       [2010] 6 S.C.R. 556


A        SECRETARY. CANNANORE DISTRICT MUSLIM
                EDUCATIONAL ASSOCIATION
                              v.
               STATE OF KERALA AND ORS.
               (Civil Appeal No. 4346 of 2010)
8                          MAY 7, 2010
      [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

       Education/Educational institutions: Minority institution -
c Government decided to grant permission to run High School
  and Higher Secondary School to the appellant, a minority
  institution - Change in government policy - Decision for
  sanction of Higher Secondary School not implemented - Writ
  of mandamus seeking direction to government to sanction
D Higher Secondary School - Held. Maintainable - Appellant
  has right to get permission to hold Higher Secondary School
  as government committed itself to give the appellant the said
  sanction - Ke re/a Education Rules, 1959 - r. 2(2) -
  G.O.(P)No.107107/G.Edn dated 13.6.2007 - Administrative
E /aw - Legitimate expectation.

       Appellant minority institution established a college
  for imparting degree courses with some pre-degree
  courses in various streams. Respondent-State
  Government took a policy decision to abolish the Pre-
F degree Courses conducted in the colleges.
  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
G 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. By notification dated
  2.04.1997, applications were invited from the management
  of schools, both government as well as private, and from
H                             556
    SECRETARY, CANNANORE DISTRICT MUSLIM EDUCATIONAL      557
             ASSOCIATION v. STATE OF KERALA

 colleges for the academic year 1997-1998. Appellant had         A
 been applying for Higher Secondary courses ever since
 1996. However, its applications were not considered by
 the respondents in the light of policy that the Government
 livas allowing only those applicants who already had
 existing High Schools. Since many of the managements            B
 did not have High Schools to start higher secondary
 courses, the Government issued a preliminary
 notification on 25.06.1998 for starting High Schools at a
 certain number of designated places as per Chapter V
 Rule(2) Sub-rule(2) of the Kerela Education Rules, 1959.        c
 The ward to which the Appellant belonged was also
 included in the earlier notification dated 13.06.2000 but it
 was excluded subsequently as the Government received
 some objections. A petition was filed by the Government
 wherein the High Court directed the respondent to
                                                                 0
 consider the case of the appellant. Pursuant to this
 direction, appellant was given an assurance that it would
 be given the High School as and when the financial
 position of the Government would improve.

       Then by an order dated 31.05.2003, ten schools were       E
  given the sanction to open aided High Schools but the
  appellant was denied the same facility. After repeated
  representations before the respondents, the appellant
  was sanctioned a High School and a Higher Secondary
  School in its ward after a decision to that effect was taken   F
  in a meeting of the Council of Ministers on 08.10.2003.
  But the said decision for sanction of Higher Secondary
  classes was not implemented in the light of the decision
. of the High Court in a writ petition.
                                                                 G
     Subsequently, in partial implementation of the order
 of 08.10.2003, it started a High School from 9.8.2004 and
 the classes commenced during the academic year 2004-
 05 and the School became a complete High School
 during the academic year 2006-07. But appellant was not         H
     558   SUPREME COURT REPORTS             (2010] 6 S.C.R.


  A sanctioned Higher Secondary Courses inspite of several
    representations. Appellant approached High Court for
    issuance of writ of mandamus to the respondents for
    sanctioning an aided Higher Secondary school as it was
    done in the case of other aided college managements. It
. B was alleged that other managements were granted High
    Schools and Higher Secondary Schools simultaneously
    or immediately, one after the other. It also prayed for
    implementation of the order of 08.10.2003 by which the
    Government had already granted Higher Secondary
 c  courses to the appellant.

       The question before the High Court was whether the
   Higher Secondary school was to be sanctioned to the
   appellant as per the old policy and the subsequent
   orders or in view of the new policy as per the
 D G.O.(P)No.107/07/G.Edn dated 13.6.2007. High Court while
   dismissing the writ petition held that the earlier orders
   governing grant of Higher Secondary Schools was no
   longer valid and was replaced by the new order dated
   13.6.2007 and the appellant did not have any statutory
 E right to get the sanction of running Higher Secondary
   classes and the sanction of this course, was a
   Government function on which a Court cannot step in. It
   also upheld the right of government to change its policy.
   Hence the appeal.
 F
       Allowing the appeal, the Court

       HELD: 1. So far as the right of the government to
   change its policy is concerned, the High Court's
   conclusion was correct. The High Court was equally right
 G in holding that the government cannot be tied down to
   any policy. But unfortunately, the High Court did not
   examine the impact of the government policy on the
   admitted facts and circumstances of the case. High Court
   especially the writ court cannot take a mechanical or
 H
     SECRETARY, CANNANORE DISTRICT MUSLIM EDUCATIONAL   559
              ASSOCIATION v. STATE OF KERALA

strait jacket approach in such matter. [Para 23] [566-G-H;     A
567-A]

     2. The appellant was a religious minority. As a
religious minority, it has a fundamental right to establish
and administer educational institutions of its choice in
view of the clear mandate of Article 30 of the Constitution.
                                                               B
Apart from the fundamental right of the appellant to
establish and administer an educational institution, the
right of the appellant to get the sanction-of running a
Class XII School was also accepted by the government
to the extent that the gove;,,ment applied to the High         C
Court for its permission to seek an order for
implementation of its decisions dated 08.10.2003 and
13.10.2005 whereby sanction was given to the appellant
to run Higher Secondary Courses. Those decisions of the
government to sanction higher secondary courses in             D
favour of the appellant could not be implemented in view
of the order of the High Court dated 05.04.2006 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     E
writ petition came the revised policy of the government.
In that policy, it was made very clear that there was no
need to sanction or upgrade government or aided
schools in the normal course. The High Court should
have appreciated the facts of the case and come to the         F
conclusion that the appellant's case did not come under
the normal course. But the High Court refused to do so
and took a mechanical approach. [Paras 24, 26] [567-B-
G]
    3. The facts of this case clearly show that appellant      G
was 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
                                                               H
    A 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. The
•
    8 appellant is a minority institution. It is therefore really a
      case of issuance of mandamus in the appellant's favour.
      [Paras 51-53] [575-C-G]

          4. The respondent State is directed to sanction
      Higher Secondary course in the appellant's institution
    C from the next academic session with this rider that the
      appellant must follow the extant statutory procedures for
      the appointment of teachers in the Higher Secondary
      section. [Para 54] [576-A-B]

    0       State of H.P. and another v. Urned Ram Sharma 1986)
        2 SCC 68; Dwarka Nath v. Income Tax Officer, Special Circle,
        D. Ward, Kanpur and another AIR 1966 SC 81; J.R.
        Raghupathy etc. v. State of A.P. and Ors. AIR 1988 SC 1681;
      Life Insurance Corporation of India v. Escorts Limited and
      other (1986) 1 SCC 264; The Comptroller and Auditor
    E General of India, Gian Prakash, New Delhi and another v.
      K.S. Jagannathan and another AIR 1987 SC 537; Shri Anadi
      Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna
      Jayanti Mahotsav Smarak Trust and Ors. v. V. R. Rudani and
      Ors. AIR 1989 SC 1607, referred to.
    F
             R. v. Cambridge Health Authority ex p B (1995) 2 All ER
        129; R. v. Blooer (1760) 2 Burr; Rex v. The Justices of
        Denbighshire (1803) 4 East, 142; The King v. The Revising
        Barrister etc. (1912) 3 King's Bench 518, referred to.
    G                       Case Law Reference:
        (1986) 2 sec 68         referred to       Para 19
        (1995) 2 All ER 129     referred to       Paras 19, 26, 28
    H   1760 2 Burr             referred to       Para 40
   SECRETARY, CANNANORE DISTRICT MUSLIM EDUCATIONAL         561
            ASSOCIATION v. STATE OF KERALA

(1803) 4 East, 142        referred to        Para 41               A
(1912) 3 King's Bench 518 referred to Para 41
AIR 1966 SC 81            referred to·       Para 43
AIR 1988 SC 1681          referred to        Para 46               B
(1986) 1 sec 264          referred to        Para 47
AIR 1987 SC 537           referred to        Para 48
AIR 1989 SC 1607          referred to        Para 50
                                                                   c
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4346 of 2010.

    From the Judgment & Order dated 11.10.2008 of the High
Court of Kerala at Ernakulam in W.P. (C) No. 11167 of 2006.
                                                                   D
     L. Negeswara, E.M.S. Anam and Fazlin Anam for the
Appellant.

    T.L.V. Iyer, P.V. Dinesh and Atishi Dipankar for the
Respondents.
                                                                   E
     The Judgment of the Court was delivered by

    GANGULY, J. 1. Leave granted.

     2. The appellant is the Secretary of Cannanore Dir        t
Muslim Educational Association, Karimbam (hereinafter              F
referred to as the 'Appellant'), which is a Society registered
under the Societies Registration Act (Central Act 21/1860). The
Appellant had established Sir Syed Colle~ . , , 1967 and it was
imparting degree courses along with somt.. pre-degree courses
in various streams constituting 11 bate .es of a total of 80       G
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.
                                                                   H
    562     SUPREME COURT REPORTS                 [2010] 6 S.C.R.


A      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
B 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.
c       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
D 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
E appellant challenging the non-sanctioning of the Higher
  secondary courses to its school. The other connected Writ
  Petitions which were disposed of by the impugned judgment
  were filed by the management or the teachers of the
  neighbouring schools, challenging the grant of a High school
F to the Appellant.

       8. The Appellant had been applying for Higher Secondary
  courses ever since 1996. However. its applications were not
  considered by the respondents in light of the policy that the
  Government was allowing only those applicants who already
G had existing High Schools. Since many of the managements
  did not have High Schools to start higher secondary courses,
  the Government issued a preliminary notification on 25.06.1998
  for starting High Schools at a certain number of designated
  places as per Chapter V Rule(2) Sub-rule{2)of the Kerela
H



                       •
  SECRETARY, CANNANORE DISTRICT MUSLIM EDUCATIONAL        563
ASSOCIATION v. STATE OF KERALA [ASOK KUM.A.R GANGULY, J.]

Education Rules, 1959. The ward to which the Appellant               A
belonged i.e. ward No. 15 of Taliparamba Municipality was also
included in the earlier notification dated 13.06.2000 but it was
excluded subsequently as the Government received some
objections. An O.P. No. 29989/99 was filed by the Government
wherein the High Court directed that the case of the Appellant       s
be considered. Pursuant to this direction, the Appellants were
given an assurance that they will be given the High School as
and when the financial position of the Government improves.

     9. Then by an order dated 31.05.2003, ten schools were          C
given the sanction to open aided High Schools but the appellant
was denied the same facility.

     10. After repeated representations before the respondents,
the appellant was sanctioned a High School and a Higher
Secondary School in ward No. 15 of Taliparamba Municipality          D
after a decision to that effect was taken in a meeting dated
08.10.03 of the Council of Ministers, as a special case.

     11. But the said decision for sanction of Higher Secondary
classes· was not implemented in the light of the decision of the     E
High Court in W.P.(C). No. 29124/03 wherein the High Court
had directed the Respondents that newer Higher Secondary
schools were not to be sanctioned by them without further
orders from the Court.

    12. Subsequently, in partial implementation of the order of      F
08.10.03, it started a High School from 9.8.2004 pursuant to
the said order and the classes commenced during the
academic year 2004-05 and the School became a complete
High School during the academic year 2006-07.
                                                                     G
     13. In view of repeated represen•::-.tians or 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.
                                                                     H
    564     SUPREME COURT REPORTS                 [2010] 6 S.C.R.


A 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.

B       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
C 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
D managements were being granted High Schools and Higher
  Secondary Schools simultaneously or immediately, one after
  the other, the appellant herein was not sanctioned Higher
  Secondary School after the sanction of the High School. It also
  prayed that the order of 08.10.03 by which the Government had
E already granted Higher Secondary courses to the appellant
  may be implemented.

        16. The question before the High Court was whether the
  Higher Secondary school was to be sanctioned to the Appellant
F as per the old policy and the subsequent orders or in view of
  the new policy as per the G.O.(P)No.107/07/G.Edn dated
  13.6.2007, which was produced by the Respondents before the
  High Court along with a memo, containing the norms for
  sanctioning new schools, courses etc. Respondents in their
G Counter Affidavit had contended before the High Court that in
  view of the various allegations of discriminations against it, it
  is planning to review the entire matter afresh by appointing a
  Committee. It was urged before the High Court in its affidavit
  that vide the order dated 19.8.2006, it had formed a Committee
H to look into the allegations of irregularities in the sanctioning
  SECRETARY, CANNANORE DiSTRICT MUSLIM EDUCATIONAL      565
ASSOCIATION v. STATE OF KERALA [ASOK KUMAR GANGULY, J.]

of the High Schools and Higher secondary schools. It was also          A
urged that by the order dated 22.8.2006, the Government was
to set up a Committee to review the irregularity in the
sanctioning or the upgradation of several schools in the aided
sector in violation of the procedure prescribed in the Kerela
Education Rules after the period of 1.1.2003. It further               B
contended that in view of the above, the old sanction for a
Higher Secondary school given to the appellant did not hold
good anymore and the respondents contended that the
appellant's case would be considered afresh after it would
formulate new norms as per the findings of the above appointed         c
Committees. Thus, it subsequently passed the new G.O. dated
13.6.2007.

     17. The Hon'ble High Court while dismissing the appellants'
Writ Petition held that the earlier orders governing grant of
                                                                       0
Higher Secondary Schools was no longer valid and has been
replaced by the new order G.0.(P) No.107/07/G.Edn dated
13.6.2007 and the Appellant does not have any statutory right
to get the sanction of running Higher Secondary classes.

     18. It also held that the Government did not owe a                E
corresponding duty to the appellant to sanction the school as
per the previous order and that" ... the Government cannot be
tied down to a policy permanently. It should be conceded
freedom to change it from time to time".
                                                                       F
     19. The High Court shared the apprehension that if it
orders the Government to sanction a Higher Secondary School
to the appellant herein, it may imriinge upon the budgetary
allotment of Government funds. This, it held that sanction of this
course, was a Government function on which a Court cannot              G
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.
                                                                       H
    566     SUPREME COURT REPORTS                 (2010] 6 S.C.R.


A   High Court also referred to the decision in the case of State of
    H.P. and another v. Urned 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
8 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
C Chapter V of the Kerela Education Rules. It was also contended
  that the sanction of the Higher Secondary school to the
  Appellant would prejudice other schools in the nearby area and
  would also not be necessary as the number of existing schools
  are enough for that area. This issue was heard with the other
  connected Writ Petitions.
D
       21. In the connected writ petitions, the main challenge was
  with respect to the sanction of a High School to the Appellant
  on the ground that it was done in violation of the Rule 2A of
  Chapter V of the Kerela Education Rules. These writ petitions
E were filed either by the managers or the teachers of the
  schools. They contended that in case of an already existing
  statutory provision governing a particular field, the
  implementation of a new scheme under the provision can only
  be done by amending the existing provision; in this case, Rule
F 2, Chapter V of the Kerela Education Rules.

       22. The High Court while rejecting the Writ Petition upheld
  the government's right to change its policy and also opined that
  the government cannot be tied to any policy. After coming to
G this conclusion, the High Court held that in the context of the
  changed policy of the government, it is not proper for the Court
  to interfere.

      23. This Court is of the opinion that so far as the right of
  the government to change its policy is concerned, the High
H Court's conclusion is correct. The High Court is equally right in
  .SECRETARY, CANNANORE DISTRICT MUSLIM EDUCATIONAL     567
ASSOCIATION v. STATE OF KERALA [ASOK KUMAR GANGULY, J.)

holding that the government cannot be tied down to any policy.        A
But unfortunately, the High Court did not examine the impact
of the government policy on the admitted facts and
circumstances of the case. This Court is of the opinion that High
Court especially the Writ Court cannot take a mechanical or
strait jacket approach in this matter.                                B

      24. It appears that the appellant is a religious minority. As
a religious minority, it has a fundamental right to establish and
administer educational institutions of its choice in view of the
clear mandate of Article 30. Apart from the fundamental right
of the appellant to establish and administer an educational           C
institution, the right of the appellant to get the sanction of
running a Class XII School was also accepted by the
government to the extent that the government applied to the
High Court for its permission to seek an order for
implementation of its decisions dated 08.10.03 and 13.10.05           D
whereby sanction was given to the appellant to run Higher
Secondary Courses. Those decisions of the government to
sanction higher secondary courses in favour of the appellant
could not be implemented in view of the order of the High Court
dated 05.04.06 to the effect that the High Court wanted the           E
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           F
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             G
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
    568       SUPREME COURT REPORTS                    [2010] 6 S.C.R.


A (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
  treatment was possible except giving the child palliative drugs.
8 The child's father sought further medical opinion and experts
  advised a second bone marrow transplant, which could only be
  administered privately and not in a National Health Service
  hospital, and that too with 10 to 20% chances of success. In
  the background of these facts the child's father requested the
C health authority to allocate funds amounting to £75,000 for the
  proposed treatment which the health authority refused. The
  father of the child applied for a judicial review of the decision
  of the health authorities. The question was what the Court should
  do in such a situation?

D      27. The learned single judge quashed the decision of the
  health authority and directed it to reconsider its-decision. Then
  on appeal against the decision of the learned single judge, the
  Court of Appeal allowed the appeal. Sir Thomas Bingham,
  Master of Roll, presiding over the Court of Appeal held that the
E learned Single judge failed to recognize the realities of the
  situation. Considering the constraints of budget on the health
  authority, the Master of Roll held:-

          "Difficult and agonising judgments have to be made as to
          how a limited budget is best allocated to the maximum
F
          advantage of the maximum number of patients. That is not
          a judgment which the court can make. In my judgment, it
          is not something that a health authority such as this authority
          can be fairly criticised for not advancing before the court"
          (See at page 137, placitum 'F')
G
         28. But the facts of this case do not have even a remote
    resemblance to the facts in Cambridge Health Authority
    (supra). In this case the government was willing to sanction the
    higher secondary classes to the appellant-institution and to the
H
  SECRETARY, CANNANbRE DISTRICT MUSLIM EDUCATIONAL      569
ASSOCIATION v. STATE OF KERALA [ASOK KUMAR GANGULY, J.]

effect applied to the High Court for getting the necessary           A
permission and that application of the government was
disposed of by the Court in the manner indicated above. In
between came the change of policy but financial crunch was
never the reason for denying the prayer of the appellant to run
the higher secondary course.                                         B

     29. While dismissing the Writ Petition, the High Court also
relied on the decision of this Court in the case of Urned Ram
(supra).

     30. In Urned Ram (supra), the Respondents, who were             C
poor harijans in the State of Himachal Pradesh wrote a letter
to the High Court of Himachal Pradesh complaining about the
incomplete construction of the road and also complained of the
fact that such construction has been stopped in collusion with
the authorities causing immense hardship to the poor people          D
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.
                                                                     E
      31. The superintending engineer before the High Court
gave an estimate that for the purposes of the widening of the
road, Rs. 95,000/- was required but only Rs. 40,000/- was
available in the course of the current financial year. Before this
Court, Government challenged those directions of the High            F
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.
                                                                     G
     32. The Government raised question-s on the basis of
Articles 202-207 of the Constitution pointing out the
Government's exclusive domain in financial matters as
indicated in those articles. The three judge bench of this court
considered the matter in detail and ultimately upheld the High       H
    570      SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A   Court's directions as not transgressing the limit, in view of the
    provisions of Articles 38, 19 and 21 of the Constitution. [See
    para 39, pg. 82-83]

        33. Therefore, this decision does not support the
8 conclusion reached by the High Court in this case. On the other
  hand, the decision in Urned Ram (supra) upheld the power of
  the Court to act in public interest in order to advance the
  constitutional goal of ushering a new social order in which
  justice, social, economic and political must inform all institutions
C of public life as contemplated under Article 38 of the
  Constitution.                                                     ·

        34. Paragraph 21 of the judgment in Urned Ram (supra)
  which has been quoted by the High Court does not constitute
  its ratio. The High Court, therefore, with great respect, failed
D to appreciate the ratio in Urned Ram (supra) in its correct
  perspective.

       35. While dismissing the writ petition the Hon'ble High
  Court with respect, had taken a rather restricted view of the writ
E of Mandamus. The writ of Mandamus was originally a common
  law remedy, based on Royal Authority. In England, the writ is
  widely used in public law to prevent failure of justice in a wide
  variety of cases.

        36. In England this writ was and still remains a prerogative
F writ. In America it is a writ of right. (law of Mandamus by S.S.
  Merrill, Chicago, T.H. Flood and Company, 1892, para 62,
  page 71).

       37. About this writ, SA de Smith in 'Judicial Review of
G Administrative Action', 2nd edn., pp 378 & 379 said that this
  writ was devised to prevent disorder from a failure of justice
  and defect of police and was used to compel the performance
  of a specific duty.

H         38. About this writ in 1762 Lord Mansfield observed that
  SECRETARY, CANNANORE DISTRICT MUSLIM EDUCATIONAL        5 71
ASSOCIATION v. STATE OF KERALA [ASOK KUMAR GANGUL'r'. J.]

'within the past century it had been liberally interposed for the      A
benefit of the subject and advancement of justice'.

     39. The exact observations of Lord Mansfield about this
writ has been quoted in Wade's 'Administrative Law, Tenth
Edition' and those observations are still relevant in                  B
understanding the scope of Mandamus. Those observations
are quoted below:-

     "It was introduced, to prevent disorder from a failure of
     justice, and defect of police. Therefore it ought to be used
     upon all occasions where the law has established no               C
     specific remedy, and where in justice and good
     government there ought to be one ..... The value of the
     matter, or the degree of its importance to the public police,
      is not scrupulously weighed. If there be a right, and no other
     specific remedy, this should not be denied. Writs of              D
     mandamus have been granted, to admit lecturers, clerks,
     sextons, and scavengers & c., to restore an alderman to
     precedency, an attorney to practice in an inferior court,&
     c." (H.W.R. Wade & C.F. Forsyth: Administrative Law, 10th
      Edition, page 522-23).                                           E

      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. 8/ooer, (1760) 2 Burr, runs as under:
                                                                       F
     "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.
                                                                       G
    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
                                                                       H
    572       SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A   of Mandamus. The relevant observations are:

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

                                                    (See page 529}

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

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

          43. In Dwarka Nath Vs. Income Tax Officer, Special
D Circle, D. Ward, Kanpur and another - AIR 1966 SC 81, a
  three-judge Bench of this Court commenting on the High
  Court's jurisdiction under Article 226 opined that this Article is
  deliberately couched in comprehensive language so that it
  confers wide power on High Court to 'reach injustice wherever
E it is found'.

         44. Delivering the judgment Justice Subba Rao (as His
    Lordship then was} held that the Constitution designedly used
    such wide language in describing the nature of the power The
F   learned Judge further held that the High court can issue writs
    in the nature of prerogative writs as understood in England; but
    the learned Judge added that the scope of these writs in India
    has been widened by the use of the expression "nature".

G        45. Learned Judge made it very clear that the said
    expression does not equate the writs that can be issued in India
    with those in England but only draws an analogy from them. The
    learned Judge then clarifies the entire position as follows:

          " .. It enables the High Courts to mould the reliefs to meet
H         the peculiar and complicated requirements of this country.
  SECRETARY, CANNANORE DISTRICT MUSLIM EDUCATIONAL      57 3
ASSOCIATION v. STATE OF KERALA [ASOK KUMAR GANGULY, J.)

    Any attempt to equate the scope of the power of the High           A
    Court under Article 226 of the Constituion with that of the
    English Courts to issue prerogative writs is to introduce
    the unnecessary procedural restrictions grown over the
    years in a comparatively small country like England with a
    unitary form of Government to a vast country like India            B
    functioning under a federal structure. Such a construction
    defeats the purpose of the article itself .... "

                                          (See para 4, page 85)

    46. Same view was also expressed subsequently by this              C
Court in J.R. Raghupathy etc. Vs. State of A.P. and Ors. -AIR
1988 SC 1681. Speaking for the Bench, Justice A.P. Sen, after
an exhaustive analysis of the trend of Administrative Law in
England, gave His Lordship's opinion in paragraph (29) at page
1697 thus:                                                             D

    "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         E
    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         F
    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."
                                                                       G
     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).                      H
    574      SUPREME COURT REPORTS                  (2010] 6 S.C.R.


A        48. This Court has also taken a very broad view of the writ
    of Mandamus in several decisions. In the case of The
    Comptroller and Auditor General of India, Gian Prakash, New
    Delhi and another Vs. K. S. Jagannathan and another - (AIR
    1987 SC 537), a three-Judge Bench of this Court referred to
B   Halsbury's Laws of England, Fourth Edition, Volume I
    paragraph 89 to illustrate the range of this remedy and quoted
    with approval the following passage from Halsbury about the
    efficacy of Mandamus:

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

        49. In paragraph 20, in the same page of the report, this
    Court further held:

E         " ... and in a proper case, in order to prevent injustice
          result1i .g to the concerned parties, the Court may itself
          pas$ an order or give directions which the Government or
          the p'ublic authority should have passed or given had it
          property and lawfully exercised its discretion"
F        50. In a subsequent judgment also in Shri Anadi Mukta
    Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti
    Mahotsav Smarak Trust and Ors. Vs. V.R. Rudani and Ors.
    - AIR 1989 SC 1607, this Court examined the development
    of the law of Mandamus and held as under:
G
          "21 ........... mandamus cannot be denied on the ground
          that the duty to be enforced is not imposed by the statute.
          Commenting on the development of this law, Professor
          De Smith stales: "To be enforceable by mandamus a
H         public duty does not necessarily have to be one imposed
               SECRETARY, CANNANORE DISTRICT MUSLIM EDUCATIONAL      575
             ASSOCIATION v. STATE OF KERALA [ASOK KUMAR GANGULY, J.)

                  by statute. It may be sufficient for the duty to have been       A
                  imposed by charter common law, custom or even
                  contract." (Judicial Review of Administrative Act 4th Ed.
                  P. 540). We share this view. The judicial control over the
                  fast expanding maze of bodies affecting the rights of the
                  people should not be put into water-tight compartment. It        B .
                  should remain flexible to meet the requirements of variable
                  circumstances. Mandamus is a very wide remedy which
                  must be easily available 'to reach injustice wherever it is
                  found'. Technicalities should not come in the way of
                  granting that relief under Article 226. We, therefore, reject    c
                  the contention urged for the appellants on the
                  maintainability of the writ petition." (See page 1613 para
                  21).

                   51. The facts of this case clearly show that appellant is
             entitled to get the sanction of holding higher secondary classes.     D
             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       E
             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   F
             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 G
     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 th_e law, if Courts have no remedy and the only
     remedy he can have is by mandamus.' [See para 11, pages
     ~-5]                                                                 .H



......
         y
    576     SUPREME COURT REPORTS                   [2010] 6 S.C.R.


A        54. For the reasons aforesaid this court cannot uphold the
  judgment passed by High Court in W.P. No.11167 of 2006. The
  judgment is set aside and this court directs the respondent state
  to sanction Higher Secondary course in the appellant's
   institution from the next academic session with this rider that
B the appellant must follow the extant statutory procedures for the
   appointment of teachers in the Higher Secondary section

         55. The appeal is allowed. Parties are left to bear their own
    costs.                                                        ·

C D.G.                                              Appeal allowed.




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