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Kesavan Bhaskaran Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberA.S. No. 177 of 1960
Judge
Reported inAIR1961Ker23
ActsConstitution of India - Article 226; Specific Relief Act - Sections 45
AppellantKesavan Bhaskaran
RespondentState of Kerala
Appellant Advocate K. Velayudhan Nair,; V.S. Moothathu and; K.J. Joseph
Respondent AdvocateGovt. Pleader
DispositionAppeal allowed
Cases ReferredCommissioner of Police v. Gordhandas
Excerpt:
.....year in which he applies for thecertificate and has made the prescribed attendance as laid down in rule 127 q. i do not think that the cases are in quite the same position, nor do i think that the committee ought to have imposed rule 3 on the queens theatre unless in some way that rule could promote order and decency within the house and i do not think that it could in view of the history of the house'.4. the argument is therefore well supported that a tribunal vested with the discretion is authorised to follow a policy but that should not be used as ail invariable rule and to preclude exceptional circumstances of a particular case being decided on merits. by adoption of this policy the authority has disabled and debarred himself from deciding exceptional cases on their merits. in our..........we have heard the application seeking interim relief, and as we are substantially convinced of the merits, we think the rejection order should be reviewed. the learned government pleader filed his counter to the miscellaneous application, and we do not think any useful purpose will be served in delaying hearing of the main appeal, because all the relevant matters for the decision are before us. 3. the learned advocate of the appellant has urged that discretionary power under the rule must not he controlled by self-created rules of policy. in support of this argument he relies on r. v. flintshire county council licensing county (stage plays) committee, 1957-1 qb 350. there the committee had adopted a general rule that no alcoholic liquor or tobacco should be sold in a theatre if adequate.....
Judgment:

Ansari, J.

1. This appeal suit arises from the order of this Court, which has been passed on February 19, 1960, and thereby a petition invoking powers under Article 226 of the Constitution was dismissed. The ground of dismissal is that the matter is essentially within the discretion of the authority competent to grant the exemption, and the exercise of the discretion cannot be interfered with by the Court in the exercise of its extraordinary powers under Article 226. The facts of the petition are that the mother of Saigal had requested the Director of Public Instruction on October 8, 1959, for exemption under Rule 127E of the Travancore Education Code to be given to the son. The Rule provides as follows:- .

'No English School Leaving Certificate will be granted to any person unless

(a) he has been a pupil on the rolls of Form VI of a recognised English High School during the whole of the school year in which he applies for a certificate;

(b) he has completed fifteen years of age on or before the first day of July of the year, in which he applies for the certificate;

Note; -- It shall however be competent to the Director to grant exemption from this rule in deserving cases in favour of Pupils on whose behalf recommendations for exemption are received from their respective Headmasters, provided such recommendations are invariably accompanied by certificates of physical fitness from medical practitioners (in the subjoined 'form) holding at least the L. M. P. Diploma,

X X X X

(c) he has been recommended for a certificate by the Headmaster of the school which he attends during the school year in which he applies for thecertificate and has made the prescribed attendance as laid down in Rule 127 Q.A.

(d) he has been certified by the Headmaster of the school which he attends, either to have had small-pox or to have been vaccinated not more than five years prior to the written examination at the close of the school year',

x x x x

2. The Headmaster of the School also wrote to the Director of Text Books and Examinations recommending Saigal being given exemption. The boy was 11 years and 6 months on February 12, 1960. In March 1957 he was allowed to sit for Public examination for III form and passed the examination obtaining a certificate. Afterwards he joined Kottapuram High School and by promotion he reached the School Final Class, which is XIth standard.' It is seen from the past record of his study that he had creditably passed all the class examinations, and has been selected for the ensuing Public examination and has paid the necessary fee. The Director of the Text Books and Examinations refused to grant him the exemption on the ground stated in his memorandum, which is Ext. P. 6 in the case. Its relevant extracts are as follows:-

'Saigal B, of Standard XIA, Kottapuram II. S. Parvoor cannot he exempted from the operation of the rule regarding minimum age as the deficiency in age in his case is beyond two years'.

His father thereafter filed the O. P. and the A, S. praying at the same time for iterim relief. We have heard the application seeking interim relief, and as we are substantially convinced of the merits, we think the rejection order should be reviewed. The learned Government Pleader filed his counter to the Miscellaneous application, and we do not think any useful purpose will be served in delaying hearing of the main appeal, because all the relevant matters for the decision are before us.

3. The learned Advocate of the appellant has urged that discretionary power under the rule must not he controlled by self-created rules of policy. In support of this argument he relies on R. v. Flintshire County Council Licensing County (Stage Plays) Committee, 1957-1 QB 350. There the committee had adopted a general rule that no alcoholic liquor or tobacco should be sold in a theatre if adequate drinking facilities were available nearby and having imposed that condition on one theatre followed it against the applicant theatre on grounds of consistency. Jenks, L. J., observed that the committee wrongly pursued consistency at the expense of the merits of individual cases. The learned Judge at p. 368 observes:-

'I cannot think that the method of approachfulfils the requirement that the matter should be heard and determined according to law. It seems to me that it sets up a general principle as to the effect of proximity of other premises where liquor can be obtained when the proper course is to consider each case on its merits. It seems to me that it wrongly pursues consistency at the expense of the merits of individual cases'.

Singleton, L. J., also expressed the same view in these words at page 362:--

'It appears to me that the committee paid attention to the desire to be consistent, in other words,they decided to grant the same form of licence to the Queen's Theatre as they have done, to the Pavilion Theatre. I do not think that the cases are in quite the same position, nor do I think that the committee ought to have imposed Rule 3 on the Queens Theatre unless in some way that rule could promote order and decency within the house and I do not think that it could in view of the history of the house'.

4. The argument is therefore well supported that a Tribunal vested with the discretion is authorised to follow a policy but that should not be used as ail invariable rule and to preclude exceptional circumstances of a particular case being decided on merits. In the case before us the authority appears to have made the invariable rule of not granting exemption unless the applicant's deficiency, in age be less than two years. By adoption of this policy the authority has disabled and debarred himself from deciding exceptional cases on their merits. In our opinion fettering of such discretion by self-created rule of policy is contrary to law, It also is not denied that where there be failure to exercise discretion, mandamus can be issued, and therefore vesting of discretionary power in the authority does not preclude our exercising powers under Article 226 of the Constitution.

5. The next question is whether the duty is cast by law. In this connection the learned Advocate of the writ petitioner has relied on the observation of Bose, J., in Commissioner of Police v. Gordhandas, AIR 1952 SC 16 where the learned Judge at p. 21 interprets the words 'any law' in Section 45 in these words:

'In our opinion, the words 'any law' are wide enough to embrace all kinds of law and we so hold'.

6. In this case the administrative direction creates a duty that is to be observed and which would be enforced by the proper courts under Section 45 of the Specific Relief Act. The position cannot be different under Article 226 of the Constitution for rules regarding mandamus under Section 45 should be generally followed for mandamus under the Article. We feel fortified by Rudra Narain Roy in the matter of ILR 28 Cal 479 where the Board of Examiners' was directed to inquire into each individual case and form its own opinion. Accordingly the appeal is allowed. The Director's order of January 29, 1960, rejecting the request of exemption is cancelled and be is directed to determine the request of exemption on its merits unfettered by the earlier rule of Policy of not exempting where the deficiency in age is beyond two years.

The direction is issued to the Director of PublicInstruction.


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