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The West Bengal Board of Secondary Education and ors. Vs. Sm. Basana Rani Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberF.M.A.T. Nos. 812 and 955 of 1982
Judge
Reported inAIR1982Cal467,86CWN908
ActsConstitution of India - Articles 19(1) and 226; ;Evidence Act, 1872 - Section 115; ;West Bengal Board of Secondary Education Act, 1963 - Sections 19A, 19A(3), 27, 27(2) and 27(4); ;West Bengal Board of Secondary Education (Amendment) Act, 1979; ;West Bengal General Clauses Act - Section 25
AppellantThe West Bengal Board of Secondary Education and ors.
RespondentSm. Basana Rani Ghosh and ors.
Appellant AdvocateSomnath Chatterjee, ;Suprokash Banerjee, ;Arun Prokash Sirkar, ;Mitali Chakraborty, Advs. (in FMAT No. 812 of 1982) and ;Malay Kr. Basu and ;A.N. Banerjee, Advs. (in FMAT No. 955 of 1982);S.K. Acharya
Respondent AdvocateAjit Kr. Panja, ;Nirmal Kumar Manna and ;S.N. Garai, Advs.
Cases ReferredState of Madhya Pradesh v. Ram Ragubir Agarwal
Excerpt:
- .....nos. 1 and 3 are the guardians of two students of class viii and the respondent no. 2 is the west bengal headmaster association. in the writ petition, the said respondents who were the writ petitioners, challenged the validity of the revised history syllabus for class viii prescribed by the west bengal board of secondary education. the case of the writ petitioners is that in the state of west bengal, there are two types of schools, namely, one under the central board of education, new delhi, and the other under the west bengal board of secondary education. the syllabi of the two groups of schools are different, but both of them are in conformity with the syllabus as framed by the national council of educational research and training, hereinafter referred to as ncert, an autonomous.....
Judgment:

M.M. Dutt, J.

1. This appeal has been preferred by the West Bengal Board of Secondary Education, its President and Secretary against the judgment of a learned single Judge of this Court. By the said judgment, the learned Judge made absolute the Rule Nisi issued on the application of the respondents Nos. 1, 2 and 3 under Article 226 of the Constitution of India.

2. The respondents Nos. 1 and 3 are the guardians of two students of Class VIII and the respondent No. 2 is the West Bengal Headmaster Association. In the Writ Petition, the said respondents who were the Writ Petitioners, challenged the validity of the revised history syllabus for Class VIII prescribed by the West Bengal Board of Secondary Education. The case of the Writ Petitioners is that in the State of West Bengal, there are two types of schools, namely, one under the Central Board of Education, New Delhi, and the other under the West Bengal Board of Secondary Education. The syllabi of the two groups of schools are different, but both of them are in conformity with the syllabus as framed by the National Council of Educational Research and Training, hereinafter referred to as NCERT, an autonomous body under the Ministry of Education, Government of India, New Delhi. The complaint of the Writ Petitioners, in short, is that there has been serious departure in the revised history syllabus for Class VIII from the syllabus that was in force immediately before the revised syllabus. In the revised syllabus, there is no specific mention of any Indian leader-- social, religious, literary, scientific or political -- whereas names of Marx, Engles. Mao, Sun Yatsen, Chiang, eleven leaders of intellectual renaissance, three leaders of renaissance in Arts, six leaders of renaissance in Science, ten navigators of Europe and three leaders of reformation movement in Europe have been specifically mentioned in the syllabus. The main grievance of the Writ Petitioners is that different phases of freedom movement in India have been covered by only 10 pages out of 135 pages, whereas Bolshevik revolution has occupied 5 pages, Chinese revolution 5 pages and revolution in South East Asia 3 pages. It is alleged that the students who will pass from the Board under the revised syllabus, particularly in history, may be lost in track in Central educational system and may develop separate outlook affecting national integration and national solidarity.

It is contended by them that the revised history syllabus for Class VIII has net been framed in accordance with the prevision of Section 27 (2) (c) of the West Bengal Board of Secondary Education Act. 1963, as amended by the West Bengal Secondary Education (Amendment) Art, 1979 read with the provision of clause (g) of Sub-section (3) of Section 19A incorporated in the Act by the said amendment Act. The further challenge to the validity of the revised history syllabus is that it is ultra vires Article 19(1)(a) read with Article 51A(b) of the Constitution of India.

3. The Rule Nisi was opposed by the appellants and also by the State of West Bengal. An application was filed by the West Bengal Publishers' Association for being added as a party respondent in the Writ Petition. It appears from the record that the said application was not disposed of by the learned Judge. The West Bengal Publisners Association has also filed an appeal against the judgment of the learned Judge.

4. In the affidavit-in-opposition of the appellants, which has been affirmed on Feb. 13, 1982 by Sri Nirmal Sinha, Secretary of the West Bengal Board of Secondary Education, it has been averred that the Writ Petitioners, who are the respondents Nos. 1 to 3 in this appeal, have no locus standi to maintain an application under Article 226 of the Constitution. The case of the appellants is that in order to bring about a national consensus in the field of education through an academic advisory oganisa-tion, the Ministry of Education and Social Welfare set up a body called NCERT on Sept. 1, 1961 under the Societies Registration Act, 1860. The NCERT is wholly financed by the Government of India, one of its main objects being to assist and advise the Ministry of Education and Social Welfare in the implementation of its policies and major programmes in the field of education, particularly school education. The NCERT drew up curriculum for the tenure schools and prepared syllabi for Classes VI to VIII and Classes IX to X based on national consensus. The new syllabi were drawn up by high level editorial boards in different school subjects consisting of educationists of repute from different parts of the country and it was hoped that the new syllabi would serve as an effective instrument for initiating the desired educational changes.

5. The Board, in order to keep pace with the changing pattern of Secondary Education, particularly to acquaint the students with the history of mankind appointed an expert committee and a Syllabus Advisory Committee to draw up a new syllabus for Class VIII keeping in view the particular guidelines of the NCERT. The expert committee consisted of 4 educationists/historians of repute for the purpose of drawing up a new syllabus in history for Classes VI to X including Class VIII. The draft syllabus was scrutinized by the Syllabus Advisory Committee consisting of the said four educationists and 2 representatives of each of the 9 Secondary Teachers' Organizations including the representatives of the West Bengal Headmasters' Association. One of the two representatives of the W. B. Headmasters' Association, Sri Bibhas Chandra Mitra, is a co-author of the history text-book for Class VIII written according to the new syllabus. The new syllabus was adopted and approved by the Board and a circular dated July 29, 1981 was issued in that regard.

6. The further case of the appellants as sought to be made out in the affidavit-in-opposition is that as regards the names of Marx, Engels, Mao, Sun Yat-sen, Chiang and other luminaries, it was thought necessary to indicate the said names in the syllabus in connection with the study of other countries to show how important historical personalities have shaped the destinies of nations to which they belonged, just as our national leaders moulded our destinies. It has been stated that the history of Indian freedom movement will be studied in details in Classes IX and X. The syllabus was drawn up and notified by the Board on April 30 and July 29, 1981, to all concerned after a prior intimation about the introduction of the new syllabus in history for Class VIII. The text-books on history prepared by different authors in accordance with the new syllabus have been submitted and the same have been distributed for sale. Most of the students of Class VIII have already purchased such text-books. It is contended that the Writ Petition is not maintainable at the instance of the West Bengal Headmasters' Association which has participated in the preparation of the new syllabus.

7. The learned Judge, after considering the facts and circumstances of the case has come to the finding that the new history syllabus for Class VIII is illegal inasmuch as it has not been prepared in accordance with the provision of Section 27 (2) (c) read with the provision of Section 19A (3) (g) of the West Bengal Board of Secondary Education Act. 1963 as amended by the said Amendment Act of 1979. In considering the question as to whether the revised syllabus is also violative of Article 19(1)(a) of the Constitution, the learned Judge has taken notice of the report of the Kothari Commission published by NCERT in 1966. The learned Judge has proceeded on the basis that according to the said report there is a drop-out of 40% of students every year at the end of Class VIII. The learned Judge is of the view that these 40% of students would be deprived of any knowledge about the history of India, particularly the freedom movement and the national leaders connected therewith. Reliance has been placed by the learned Judge on the decision of the Supreme Court in Maneka Gandhi v. Union of India, : [1978]2SCR621 . In that case, it has been observed by Bhagawati J. that even if a right is not specifically mentioned in Article 19(1) it may still be a fundamental right covered by some clauses in that Article, if it is an integral part of the named fundamental right or partakes of the same basic nature and character of that fundamental right. Relying on the said observation, the learned Judge has taken the view that Article 19(1)(a) includes within its reach the right of freedom of thought which, in his opinion, is an integral part of the aforesaid right and partakes of the same basic nature and character. It has been observed by the learned Judge that in a democratic State as that of ours, it is necessary that the pupils who would be the future citizens, should be imparted education in such a manner that they become well conversant with the social, political and religious movements and developments in India, its freedom struggle and its national leaders. In other words, the syllabus should be so devised that the pupils of Class VIII should be well acquainted with the history of India, its freedom movement and its national leaders, who were responsible for bringing in social and political changes in the country which, ultimately, led to the achievement of the freedom of India. In that view of the matter, it has been held by the learned Judge that the new syllabus is violative of Article 19(1)(a) of the Constitution. He has, however, overruled the contention of the Writ Petitioners that the new syllabus is also violative of Article 51A which provides that it shall be the duty of every citizen of India to cherish and follow noble ideas which inspired our national struggle for freedom. In view of his finding that the revised history syllabus is illegal as it has not been prepared in accordance with the provisions of the West Bengal Board of Secondary Education Act, 1963 as amended by the said Amendment Act of 1979, and that the same is also violative of Article 19(1)(a) of the Constitution, the learned judge has made the Rule Nisi absolute. A writ in the nature of Mandamus has been directed to be issued commanding the appellants to forebear from giving any effect to the impugned syllabus. A writ in the nature of Certiorari quashing the impugned syllabus has also been directed to be issued. Hence, this appeal by the West Bengal Board of Secondary Education, its President and Secretary.

8. At the outset, Mr. Somnath Chatterjee, learned counsel appearing on behalf of the appellants challenges the locus standi of the writ petitioners to maintain the writ petition. It is submitted by him that the writ petitioners have no legal right to challenge the validity of the revised history syllabus for Class VIII. It has been already pointed out that the writ petitioners consist of two guardians of students reading in Class VIII and the West Bengal Headmasters' Association. It is true that no legal right of the writ petitioners has been infringed or sought to be infringed by the impugned revised history syllabus. But that will not be the proper test for considering the maintainability of the writ petition at their instance. The writ petitioners are, admittedly, interested in the education of children. According to them, if the revised history syllabus for Class VIII is allowed to be thought, it will affect the education of the students of Class VIII so far as the subject of history is concerned. As they are interested in the education of the boys and girls reading in Class VIII, we are of the view that they have locus standi to seek interference of this Court by a writ petition. When the interest of a community is affected by any action of the Government or a statutory authority, any member of the community may complain against that action by the presentation of a writ petition in this Court. It may be that such a member may not be personally affected or his personal right is not infringed. But that will be no ground to throw away the writ petition. It has been observed by the Supreme Court in Akhil Bharatiya Soshit Karmachari Sangh v. Union of India, : (1981)ILLJ209SC that our current processual jurisprudence is broad-based and people-oriented, and envisions access to justice through 'class actions', 'public interest litigations', and 'representative proceedings'. We are, therefore, unable to accept the contention of the appellants regarding the locus standi of the writ petitioners to maintain an application under Article 226 of the Constitution against the impugned history syllabus.

9. The next contention made on behalf of the appellants is that in any event the West Bengal Headmasters' Association having sent their representatives on the Syllabus Committee and having taken part in laying down the history syllabus for Class VIII without any demur, the said Association is estopped from challenging the propriety or the validity of the revised history syllabus. Even assuming that the West Bengal Headmasters' Association is so estopped as contended on behalf of the appellants, yet the writ petition will not be defeated inasmuch as besides the said Association there are two other writ petitioners. Moreover, the challenge of the writ petitioners to the legality of the revised history syllabus is that it has infringed the fundamental right of citizens guaranteed under Article 19(1)(a) of the Constitution, and that it is also violative of some provisions of the West Bengal Secondary Education Act, 1963 as amended by the said Amendment Act, 1979. It is now a well settled principle of law that there cannot be any estoppel against statutes. Considered from that point of view, we do not find any merit in the contention of the appellants based on the ground of estoppel.

10. Now we may deal with the question whether the revised history syllabus has been framed in accordance with the provisions of the West Bengal Secondary Education Act, 1963, as amended by the Amendment Act of 1979. It has been urged on behalf of the writ petitioners, that in preparing the impugned syllabus, the appellants have not followed the procedure laid down in Clause (g) of Sub-section (3) of Section 19A read with Clause (c) of Sub-section (2) of Section 27 of the Act. Clause (g) of Sub-section (3) of Section 19A provides that it shall be the duty of the Executive Committee to provide by bye-laws after considering the recommendation, if any, of the Syllabus Committee, the syllabus, the courses of studies to be followed and books to be studied in recognized institutions and for examinations instituted by the Board in accordance with such regulations as may be made by the Board. Clause (c) of Section 27 (2) casts a duty upon the Board to make regulations in respect of matters referred to in Clauses (c), (d), (e) and (g) of Sub-section (3) of Section 19A. Sub-section (4) of Section 27, inter alia, provides that no regulation shall be valid unless it is approved by the State Government, and the State Government may, in according such approval, make such additions, alterations and modifications therein as it thinks fit. Thus it appears that the Board has to make the regulations, inter alia, in respect of matters referred to in clause (g) of Sub-section (3) of Section 19A. After the regulations are made by the Board the same will have to be approved by the State Government. So long, as the regulations are not approved by the State Government, no steps can be taken by the Board. After the approval of the regulations by the State Government, the Board has to frame by-laws, prepare syllabus, lay down the courses of studies to be followed, books to be studied in recognized institutions and for holding examinations in accordance with the approved regulations. Section 19A has been introduced in the Act by the Amendment Act of 1979 and the provision of Section 27 has also been amended by the said Amendment Act. It is not disputed that after the amendment of the parent Act, no regulations have been framed by the Board, nor any bye-laws have been prepared. But the Board proceeded to set up a Syllabus Advisory Committee which prescribed the syllabus on history for Class VIII. There can, therefore, be no doubt that the history syllabus for Class VIII which has been prepared by the Board is violative Of the provisions of clause (g) of Section 19A read with the provision of clause (c) of Section 27 (2), In other words, in preparing the history syllabus for Class VIII, the Board has not followed the mandatory provisions of law as contained in the West Bengal Board of Secondary Education Act, 1963. as amended by the said Amendment Act of 1979. The impugned history syllabus prescribed for Class VIII is, therefore, illegal inasmuch as it has been made without following the legal procedure. Such syllabus cannot be prescribed and the educational institutions cannot be directed to follow the syllabus.

11. It is, however, brought to our notice that several books have been written by 171 authors in accordance with the revised history syllabus. It is submitted by Mr. Malay Kumar Basu, learned counsel appearing on behalf of the West Bengal Publishers' Association, that if the syllabus is struck down, the publishers would suffer great hardship. Mr. Chatterjee has also brought to our notice that some schools have prescribed books written in accordance with the revised history syllabus, and that, as a matter of fact, such books are being taught. We are also told that in some schools books written in accordance with the old syllabus have been prescribed and are being taught. In this situation, it has been submitted on behalf of the appellants that the Board will take steps to regularise the matter and legalize the history syllabus for Class VIII in accordance with the provisions of the Act, as amended. It is, however, submitted on behalf of the appellants that so long as that is not done, the books written in accordance with the impugned revised syllabus should be allowed to be taught by different schools under the Board. In this connection, Mr. Chatterjee has placed reliance on the said decision of the Supreme Court hi State of Madhya Pradesh v. Ram Ragubir Prasad Agarwal AIR 1979 SC 888. In that case, the syllabus for 'Rapid Reading' was published on June 30, 1978, while the text-books were prescribed in Oct. 1977 in violation of the provisions of Sections 3 and 4 of the Madhya Pradesh Act 13 of 1973. It was directed by the Supreme Court that: the State Government should take a fresh decision under Sections 4 and 5 of the said Act Thereafter, Krishna Iyer, J. who delivered the judgment of the Court, observed as follows (at p. 897):--

'These directions take care of the future. But what about the current academic year? To change horses mid-stream may be disastrous. Throughout the better part of the year except for around a month, Government text-books have been in use. The examinations are impending. To harass the young alumni by putting them through fresh books of the respondent (though in circulation last year) is an avoidable infliction. Therefore, for the nonce. Government books for 'Rapid Reading' will continue in this year's classes. We direct so.'

12. Relying on the above observation of Krishna Iyer, J., it is contended that as the books have already been published in accordance with the syllabus and, as some schools have prescribed such books, the new syllabus should not be disturbed. In other words, the books which have been written in accordance with new syllabus should be allowed to be taught and, in the meantime, the Board will remove the irregularities, if any, by complying with the procedure prescribed by law.

13. It has been already noticed that the impugned syllabus has been prepared without conforming to the provisions of the Act as amended by the Amendment Act of 1979. In the case before the Supreme Court, there was only one violation, that is to say, the book on 'Rapid Reading was published before the publication of the syllabus. The said book was followed in different schools and, in view of the fact that the examination was to take place after one month, the Supreme Court did not interfere for that year. In the instant case, however, the provisions of the Act as amended have not at all been complied with. Mr. Chatterjee submits that in preparing the syllabus, the old regulations have been followed and that, in view of Section 25 of the Bengal General Clauses Act. it was permissible to do so. In our opinion, the old regulations cannot be followed. Under the old regulations, it was the Board that was to prescribe, modify or revise the syllabus after considering the recommendations of the Syllabus Committee. Under the amended Section 27 (2) (c), the Board has to make regulations, inter alia, in respect of matters under Clause (g) of Sub-section (3) of Section 19A which casts a duty on the Executive Committee of the Board to provide by bye-laws, after considering the recommendations, if any, of the Syllabus Committee, the syllabus etc. So, the syllabus has to be prepared by the Executive Committee and not by the Board and that too in accordance with bye-laws. Thus the old regulations are inconsistent with the provisions of Sections 27 (2) (c) and 19A (3) (g) of the Act, as amended by the said Amendment Act of 1979. In our opinion, therefore, Section 25 of the Bengal General Clauses Act is inapplicable and the old regulations made under the unamended provision of Section 27 (2) (c) did not continue to be in force

14. At the same time, we find that some schools have prescribed books on history written in accordance with the revised syllabus, and some schools are following books written under the old syllabus. After considering these facts and. in view of the decision of the Supreme Court in State of Madhya Pradesh v. Ram Ragubir Agarwal, (supra), we modify the judgment of the learned Judge and direct that so long as the history syllabus for Class VIII is not prepared in accordance with the provisions of the West Bengal Board of Secondary Education Act, 1963, as amended by the said Amendment Act of 1979, the Board shall not prescribe or insist on the teaching of books written on the basis of impugned revised syllabus for Class VIII. We direct that the Board shall prepare the history syllabus for Class VIII in accordance with the provisions of the Act by Oct., 1982. It is further directed that the schools which have prescribed the books on history for Class VIII written in accordance with the impugned revised syllabus will be entitled to teach such books for this year. Similarly, the schools which are teaching books on history for Class VIII written on the basis of the old syllabus will be entitled to teach the same for this year.

15. In view of our finding that the revised history syllabus is illegal inasmuch as it has been made without following the legal procedure and in view of our direction to the Board for the preparation of the history syllabus for Class VIII in accordance with the provisions of the West Bengal Board of Secondary Education Act, 1963 by Oct., 1982, we do not think that we are called upon to embark upon the question as to whether the impugned syllabus offends against the provisions of Article 19(1)(a) of the Constitution. The question as to constitutional validity of the syllabus will arise only when the syllabus has been prepared in accordance with the procedure prescribed by the Act. In the circumstances, we keep the question open.

16. It may be recorded that Mr. Arun Prakash Chatterjee, learned Senior Standing Counsel, appearing on behalf of the State of West Bengal has adopted the arguments of Mr. Somnath Chatterjee, learned counsel for the appellants.

17. The appeal is disposed of as above. There will, however, be no order for costs.

18. The appeal which has been filed by the West Bengal Publishers' Association is also disposed of by this judgment without any order for costs.

Monoj Kumar Mukherjee, J.

19. I agree.


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