R.S. Pathak, C.J.
1. The petitioner carries on business as a publisher of books under the name and style, Radhakrishan Prakashan, at Delhi. He is aggrieved by the refusal of the Himachal Pradesh Board of School Education to approve the text book submitted by him for publication and use in Himachal Pradesh schools.
2. Up to the year 1968. educational institutions in Himachal Pradesh holding the matriculation and higher secondary school examinations were affiliated to the Punjab University, Chandigarh, and the curriculum and studies for those examinations were controlled by thatUniversity. It was felt that the educational programmes formulated by that University did not accord with the needs of schools in Himachal Pradesh. Accordingly, the Himachal Pradesh Board of School Education Act, 1968 (hereinafter referred to as 'the Act') was enacted. It was designed to provide an organisation which would undertake the systematic planning and growth of education in Himachal Pradesh. Section 3 of the Act empowered the Government to establish a Board of School Education for Himachal Pradesh. The Board was to be a body corporate with perpetual succession and a common seal. Section 4 provided that the Board would consist of a Chairman and a number of members. Section 10 specified the powers and functions of the Board. Section 24 authorised the Board to appoint a number of Committees, which included a Curriculum Committee and a Text Books Recognition Committee, The first Regulations under the Act were, by Section 27, to be made by the Government. But, by Section 26, the making of subsequent Regulations was placed within the powers of the Board.
3. The first Regulations, made by the Government under Section 27 of the Act, were published by notification dated December 24, 1970 in the Himachal Pradesh Raj Patra dated August 21, 1971. Regulation 48 declared the functions of the Text Books Recognition Committee to be '(a) to make recommendations of suitable books or text books in conformity with the syllabi'. A Note appended thereafter laid down:--
'Note--The following procedure shall be followed in the matter of selection and prescription of text-books;--
In subjects where text-books are required, authors and publishers will be invited to submit books for consideration as text-books along with the prescribed fees. The books received from authors and publishers will be sent to three expert reviewers, appointed by the Chairman of the Board, from a panel of names prepared in consultation with the Curriculum Committee, for opinion and evaluation based on a system of award of marks on the merit of a book. The Textbook Recognition Committee will scrutinise the recommendations of the reviewers and the recommendations can be altered only when 2/3rd of the members of the Committee agree to the alteration. The recommendations of the Text-book Recognition Committee will be consider-ed by the Curriculum Committee, whereafter the recommendations be considered by the Board and forwarded for the approval of the Government. Any recommendations of the Text-book Recognition Committee can be rejected by the Curriculum Committee only by a majority of at least 2/3rd of the members present giving valid reasons for such rejection'.
4. The Board of School Education (hereinafter referred to as 'the Board' was established on July 3. 1969. The second respondent. Professor Tapinder Singh, was nominated its Chairman, Syllabi were framed for different classes by subject committees of the Curriculum Committee by November, 1972.
5. On December 20, 1972. the Board issued a notice calling upon authors and publishers who were desirous of submitting text books for consideration to register themselves with the Board. The period for registration was expended to August 16. 1973. Time was allowed upto November 26, 1973 for submission of text books and it was extended to December 15, 1973. The Board received 512 books covering different subjects taught in Class I to VIII.
6. It had been decided to introduce the new text books in the school session commencing in the first week of March 1974, and the procedure for selection of text books was put into motion. To provide for the appointment of reviewers, contemplated by the Note to Regulation 48 (a), a directory of reviewers was prepared by December. 1973. On December 20, 1973, the Curriculum Committee met and recommended a panel of reviewers for selection and appointment by the Chairman. Two reviewers were to be appointed for each text book, one of them preferably from among experts suggested by the National Council of Education, Research and Training, and the other was to be from Himachal Pradesh. On December 29. 1973, the Secretary of the Board put up a note before the Chairman stating that Curriculum Committee had recommended two reviewers instead of three (the Note to Regulation 48 (a) mentioned three reviewers) because of the paucity of expert reviewers in the State and the shortage of time available, and he proposed that the Chairman should exercise his emergency powers under Section 19 (3) of the Act to appoint two reviewers instead of three. It was pointed out that the text books had to be despatched to the selected reviewers by the first week of January 1974 so that the task of reviewing could be completed within that month. The Chairman, on December 30, 1973. appointed two sets of two reviewers for each subject in a class, the number of text books submitted for each subject being divided between the two sets of reviewers. A printed assessment form was sent to each reviewer indicating the manner and basis of evaluating the text book. The reviewers completed their work on February 5, 1974. The Text-books Recognition Committee met on February 11 and 12, 1974, and theminutes of that proceeding declare that all the 512 text books were placed before the committee along with evaluation reports and other, connected documents, that the Committee scrutinised the books and the evaluation reports, and in the end recommended one text book for each subject in each class. It appears that thereafter a meeting of the Curriculum Committee was convened for February 14. 1974, but on that day although the Chairman and a member were present, the quorum remained incomplete and therefore the meeting could not be held. A meeting of the Board was convened for February 15, 1974. The Chairman and eight members were present, but in the belief that the quorum was not complete no meeting was held. The Board then met on February 16, 1974. According to the minutes of the proceeding the Board screened the books recommended by the Text books Recognition Committee and gave its approval therto. The decision of the Board was despatched to the publishers concerned on February 18, 1974, and it seems that in certain cases the publishers were called for the purpose of entering into agreements with the Board for publication of the approved text books. The petitioner had submitted a text book for use as a Hindi Primer in Class I, but that book was not recommended by the Text-books Recognition Committee and not approved by the Board. The Hindi primer recommended and approved was the one submitted by the fifth respondent, Messrs. Mahajan Brothers of Simla.
7. The petitioner then filed the present writ petition and challenged the validity of the entire procedure taken for the selection and approval of books in respect of the Hindi Primer of Class I.
8. The writ petition has been dismissed by our order dated May 7, 1974, and the reasons for that order are now set out.
9. As will be apparent from the note to Regulation 48 (a), as it stood originally, the Chairman of the Board is required to appoint three expert reviewers from a panel of names prepared in consultation with the Curriculum Committee. To these expert reviewers the books received from authors and publishers are sent for evaluation based on the system of award of marks. The reviewers make their recommendations and submit them to the Text-books Recognition Committee. That Committee will consider the recommendations and may alter them upon 2/3rd of the members agreeing to do so. The recommendations of the 'Text-books Recognition Committee are thereafter considered by the Curriculum Committee, which may for valid reasons reiect recommendation of the Text-books re-cognition Committee by a 2/3rd majority. The recommendations of the Text Books Recognition Committee with the opinion of the Curriculum Committee thereon are then considered by the Board. The Board then sends the recommendations to the Government for its approval apparently with its decision. The petitioner has attempted to make the following points before us for the purpose of demonstrating the invalidity of the procedure followed in the present case by the Board and its Committees:
1. The panel of reviewers prepared by the Curriculum Committee was invalid because there were vacancies in the Committee. Section 8 of the Act did not protect the validity of the panel prepared because the existence of the Vacancies affected the merits of what was done by the Committee.
2. The books were reviewed by two reviewers only when the note to Regulation 48 (a) contemplates three reviewers. In any event, contrary to the resolution of the Curriculum- Committee, in respect of the Hindi Primer for Class I the two reviewers did not include a reviewer from the N. C. E. R. T. list.
3. There was no power in the Chairman under Section 19 (3) to appoint two expert reviewers because there was neither paucity of time nor paucity of experts and, therefore, the emergency contemplated by Section 19 X3) did not exist. Moreover, that power could be exercised by the Chairman only where the emergency arose out of the administrative duties of the Board and not where, as in the present case, the matter related to the academic business of the Board. Further Section 19 (3) contemplates a situation where there is an emergency and the Board cannot meet to take action, and. therefore, the Chairman is empowered to act in the emergency; in the present case, the Board could have held a meeting and, therefore, the action of the Chairman was without jurisdiction. In any event the Chairman did not report to the Board of the action taken by him, and, therefore. Section 19 (3) was not complied with. Again, the Chairman did not apply his mind to the question why two reviewers should be preferred instead of three reviewers and he recorded no opinion in support of that decision.
4. The books submitted for selection for each subject in a class were examined by two sets of reviewers, each set of reviewers examined a different lot of books from the other and no book was evaluated by all the reviewers. As each book was not evaluated by all the reviewers and the pro forma indicating the basis for evaluation left room for subjective opinion in material particulars, in the circumstances there was no uniform evaluation of the books in one lot with the books in the other lot.
5. The recommendations of the reviewers being invalid for the aforesaid reasons, the recommendations of the Text books Recognition Committee were consequently invalid.
6. The recommendations of the Textbooks Recognition Committee were also invalid because there were vacancies in the Committee. Section 8 of the Act did not protect the validity of the recommendations because the existence of the vacancies affected the merits of the recommendations.
7. The recommendations of the Textbooks Recognition Committee were invalid also because the Committee depended entirely on the evaluation made by the expert reviewers and did not apply its own mind to the merit of the books, In particular, it examined only three books which had received the highest marks from the reviewers and it did not consider the petitioner's book which was placed eighth in order of merit.
8. After the Text-books Recognition Committee had made its recommendations, they were not considered by the Curriculum Committee in as much as its meeting convened for February 14, 1974, failed for want of a quorum.
9. When the recommendations of the Text-books Recognition Committee came up thereafter before the Board, the Board should have awaited the opinion of the Curriculum Committee on those recommendations and its omission to do so could not be justified by reference to the proviso to Section 25. There was no material to show that the Board formed the opinion that immediate action was necessary.
10. When the recommendations of the Text-books Recognition Committee were considered by the Board, the Board merely mechanically adopted the recommendations and did not apply its independent judgment. The circumstances show that there was insufficient time for the Board to examine the books. In any event the Board examined the recommended books only and not all the books.
11. The power of the Board extends to formulating its opinion only on the recommendations of the Text-books Recognition Committee and thereafter forwarding the recommendations to the Government for its approval; it is not the function of the Board to take any decision in respect of the books.
12. The Board was bound to send the recommendations for the approval of the Government, and the amendment made in the Note to Regulation 48 (a) deleting that requirement could not cover that omission inasmuch as on February 16, 1974, when the Board finalised the proceeding and informed the publishers on February 18, 1974, of the final selection of the books, the amendment had not been published in the Official Gazette as required by Section 27 (2). When the amendment was in fact published in the Official Gazette on April 13, 1974, it could not make valid what had already become invalid on the date when the Board finalised the proceeding without forwarding the recommendations for the approval of the Government.
13. In any event, the respondents were barred by estoppel from pleading the validity of the procedure actually followed by them when on the faith of the original procedure, which literally conformed to the Note to Regulation 48 (a) and was intimated to the petitioner, the latter had invested much money, time and effort in the preparation and printing of copies of the text books.
14. The relevant records of the Board pertaining to the selection of the textbooks under consideration are fabricated and false documents and therefore there is no material in support of the case relied upon by the respondents.
10. For the determination of the points raised above, much turns on the position occupied by the Board under the Act. It has been pointed out earlier that the Act contemplated an organisation which would undertake the systematic planning and growth of education in Himachal Pradesh. With a view to providing such an organisation the Act empowered the Government to establish a Board of School Education for Himachal Pradesh. The Board was to be & body corporate with perpetual succession. A perusal of the Act will show that it is the central authority under the Act, with far-reaching powers end functions. Its authority extends to determining the policy and shape of school education in the State, Section 10 empowers the Board to prescribe courses of instructions for school education. It is entitled to conduct examinations and grant diplomas and certificates and institute awards, scholarships, medals and prizes. It can prescribe conditions for recognition of schools and other institutions sending candidates to the examinations conducted by it and those conditions may relate to the terms of teachers and their qualifications, curriculum, the equipment, buildings and other educational facilities provided by those institutions. It may publish text books and other books of study. It can organise and provide lectures, demonstrations, educational exhibitions, seminars and symposiums for the purpose of raising and promoting the quality of school education. It has also been entrusted with the task of modernising school curricula, strengthening science and mathematicseducation, work experience and voca-tionalisation. Its powers extend, by Section 26. to the making of Regulations for the purposes of carrying into effect the provisions of the Act. The first Regulations are made by the Government under Section 27, but the Board has been empowered to alter or modify them.
11. The Board, apart from the Government, is the only authority to whom powers have been expressly conferred by the Act. Although Section 24 contemplates a number of Committees, 'they are merely bodies which report to the Board on matters relating to the exercise by the Board of the powers conferred by the Act. The decisions are taken by the Board. If in the opinion of the Board immediate action is necessary with respect to any such matter the Board may proceed to deal with it even without the report of the Committee and pass such orders thereon as it considers necessary.
12. The Board is a body whose Very composition indicates its strength. The Chairman, by Section 18, is an eminent educationist having special experience of school education. The Director of Education, Himachal Pradesh, is the Vice-Chairman of the Board. Besides the Chairman and the Director of Education there are fifteen members of whom nine are intimately associated with different fields of education. The Board has power to co-opt as member a person found qualified because of his expert and wide knowledge of school education.
13. The foregoing discussion abundantly demonstrates that the Board occupies a pre-eminent position under the Act.
14. There was some controversy before us on the question whether what was done by the Board and its Committees in the present case must, be attributed to the functions of the Board under Sections 10 (7) and 10 (17) of the Act or is referable to Section 10 (12) of the Act. The petitioner contends that reference must be made only to the former while the respondents rest their case entirely on the latter. As the resolution of that controversy provides that context within which the points enumerated above must be considered, it is appropriate that the controversy should be disposed of in the first instance.
15. Section 10 of the Act defines the powers and functions of the Board. Sub-sections (7), (12} and (17) of Sec. 10 provide:
'10. Subject to the provisions of this Act the Board shall-
(7) prescribe conditions for recognition of schools and other institutions which send candidates to the examinations conducted by the Board in termsof teachers and their qualifications, curriculum, equipment, buildings and other educational facilities;
...... ...... ...... ...... ...... ...... (12) arrange for publication of text books or other books of study recommended by the Text-books Recognition Committee for publication by the Board;
...... ...... ...... ...... ...... ...... (17) take necessary steps with regard to the modernizing of school curricula, strengthening of science and mathematics education, work experience and vocationalisation.'
16. In support of the contention that Sub-sections (7) and (17). and not Sub-section (12) of Section 10 are pertinent, the petitioner points out that as one of the conditions of recognition of schools the Board is entitled to prescribe specified text books as part of the curriculum of those schools and that could also be regarded as part of a scheme for modernizing school curricula. Our attention is invited to Regulation 2 of Chapter VII of the first Regulations, which provides that the recognition of a High or Middle School shall be governed by the conditions prescribed in the Punjab Education Code. Those conditions are conveniently set out in Annexure-A to the first Regulations. Regulation 1 of Annexure-A provides that the recognition of a High or Middle School will be governed inter alia by the condition that the school follows the courses of study prescribed by the Board. Reference may also be made to Regulation 4 which provides that a Primary or Elementary school will be governed inter alia by the condition that It follows the curriculum prescribed by the Board. In my opinion, the expression 'curriculum' used in the Regulations refers to a course of studies and not to any particular text books. As regards Section 10 (12) the petitioner contends that it is confined to a situation where the Board itself publishes text books and other books of study and so, he says, it does not come into play here. There is no force in this contention. When the Textbooks Recognition Committee recommends text books or other books of study, it recommends them for publication by the Board, and that means that the Board may either publish the books itself or it may have the publication effected through others. If the Board does not publish the books itself but arranges for their publication by publishers in the trade subject to the terms of an agreement with the Board, such publication can properly be understood as 'publication by the Board' within the meaning of Section 10 (12).
17. To my mind, the Note to Regulation 48 (a) is related to both Sub-sections (7) and (12) of Section 10. A glance at Regulation 48 (a) will make that clear.Regulation 48 (a) declares that, the function of the Text-hooks Recognition Committee will be 'to make recommendations of suitable books or text books in conformity with the syllabi.' And the Note thereto begins with these prefatory words: 'The following procedure shall be followed in the matter of selection and prescription of text-books:.........'. Fow,the selection of text-books may be for either or both purposes, prescription and publication. The Board has power to prescribe books for use in recognised institutions. Regulation 20 of Annexure-A declares that no books not authorised by the Board shall be used in recognised institutions, and that the Board reserves to itself the right to forbid or to prescribe the use of any book or books or other publication in recognised institutions. This is one of the conditions of recognition of an institution, and clearly the matter must be referred to Section 10 (7) of the Act. The selection of the text-books by the Text-books Recognition Committee may also be intended for publication by the Board. That is a matter covered by Section 10 (12). It is in this perspective then that we must approach the points raised by the petitioner.
18. Now, if the procedure detailed in the Note to Regulation 48 fa) bears direct relation to Section 10 (12), it is apparent that the Act contemplates two matters only as essential. (i) the recommendation of books by the Text-books Recognition Committee, and (ii) arrangements by the Board for their publication. How the recommendations will be made by the Committee, in accordance with what procedure, on the basis of what criteria and with reference to what considerations, whether the aid of one or more Committees mentioned in Section 24 or some other agency will be taken, and whether one book will be recommended on each subject or more, has not been mentioned in the Act nor is there any indication, therein from which any of these matters may be necessarily implied. These are matters which, apparently, the Act has left to the domain of Regulation making. That the recommendations must be made by the Text-books Recognition Committee and the arrangement for publication must be made by the Board are mandatory requirements; whether the procedure followed for that purpose will be mandatory or directory remains to be determined by the nature of that procedure and its relation to the functions of the Board and the Committee mentioned in Section 10 (12). It may be noted that nothing can be spelled out in this regard from Section 10 (7).
19. That brings me to an examination of the procedure detailed in the Note to Regulation 48 (a). The requirement that the recommendations will be made by the Text-books RecognitionCommittee and that the recommendations will be considered by the Board embodied in the Note are mandatory. Are the remaining provisions of the Note mandatory? That may be considered now as the points enumerated above are taken up. It will be noticed that the points proceed from stage to succeeding stage if the procedure detailed in the Note.
20. The first stag? in the procedure set out in the Note to Regulation 48 (a) is the evaluation of the books by expert reviewers, The Chairman of the Board appoints the reviewers from a panel of names prepared in consultation with the Curriculum Committee. The first four points are concerned with the validity of the recommendations made by the reviewers.
21. Point 1:--The Curriculum Committee drew up a panel of names of expert reviewers in its meeting of December 20. 1973. Regulation 36 of the first Regulations declares that it shall consist of the Chairman, the Vice-Chairman, four members and a person with special knowledge of school education. On the date when the Committee met, there were vacancies in its membership. The petitioner contends that, Section 8 protects the validity of the list of reviewers drawn up by the Committee only if it could be shown that it does not affect the merits of the list. Section 8 provides:--
'Subject to the provisions contained in Section 7, no act or proceeding of the Board or a Committee thereof shall be invalid merely by reason of the existence of the vacancy among its members or by reason of a defect in its constitution or an irregularity in procedure not affecting the merits of the case.'
The petitioner urges that the merits of the list decided by the Committee is affected by the vacancies existing in the composition of the Committee and. therefore, Section 8 could not be invoked. The submission rests on the assumption that the words 'not affecting the merits of the case' must be read along with the words 'by reason of the existence of the vacancies among its members.' In my opinion the words 'not affecting the merits of the case' must be read with the words immediately preceding, namely 'irregularity in procedure'. In other words, so far as procedural irregularities are concerned. Section 8 protects the validity of only those proceedings where an irregularity does not affect the merits of the case. So far as Section 8 speaks of the existence of a vacancy among the members of a Committee, that qualification was not necessary. The mere existence of a vacancy among the members of the Committee is sufficint to affect the merits of any act or proceeding taken byit. Nothing more is needed. It is difficult to conceive of a case where a vacancy would not affect the merits. That is for the reason that when a number of persons join together in the act of deliberation, it must be supposed that each member is capable of influencing the decision of all the rest in the process of joint discussion and consultation. The decision taken by a Committee in the absence of a member could quite possibly have been different on the merits if that member had been present. There are some pertinent observations in this regard by the Supreme Court in A. K. Kraipak v. Union of India, AIR 1970 SC 150. In a proceeding characterised by ioint deliberation the mere existence of a vacancy would invalidate a decision without anything more,
21-A. I am of the view that Section 8 completely protects the validity of the list of reviewers drawn up by the Curriculum Committee.
22. Point 2:--The Note to Regulation 48 (a) states that the books wll be examined by three expert reviewers. The petitioner says that as the books were reviewed by two reviewers only the opinion and the evaluation rendered by them are invalid. It seems to me that nothing turns on whether the books are examined by three reviewers or only two. It has not been established that if three reviewers alone applied their attention to the books the results would have necessarily been different. It is generally accepted that two heads are better than one. and by the same token three heads would be better than two. But equally, four heads would be better than three. There is no magic in the number 'three'. I am unable to see any relevance between that number and the functions which the reviewers are called upon to perform. The form of evaluation adopted is the award of marks on the merit of a book. If three expert reviewers are engaged in the task of evaluation and award different marks, the mean of the marks so awarded by all three need not necessarily be different from the mean of marks awarded by two reviewers alone evaluating the merit of the book. In my opinion, the provision for three reviewers is directory only and the circumstance that two reviewers examined the books does not invalidate the recommendations made by them.
23. The petitioner also urges that the two reviewers who examined the Hindi Primer for Class I did not include a reviewer from the N. C. E. R. T. list and. therefore, the recommendations _ of the reviewers were invalid. Now it is undoubtedly true that the Curriculum Committee proceeded on the principle that while one reviewer should be fromwithin Himachal Pradesh, the other should be from the N. C. E. R. T. list. But when regard is had to the terms of the resolution of the Curriculam Committee passed in its meeting of December 20. 1973, it will be seen that the principle was to be followed only where thai was possible. The minutes of the meeting read:--
'Preferably one should be from the subject experts suggested by the N. C. E. R. T. and the second from the Himachal Pradesh.'
23-A. Point 3:--The petitioner points out that the Chairman justified the appointment of two reviewers instead of three as envisaged by the Note to Regn. 48 (a) on the footing that the paucity of time and the paucity of experts gave rise to an emergency and, therefore, resort was had to Section 19 (3) of the Act. The petitioner urges that there was neither any paucity of time nor paucity of experts and, therefore, the emergency contemplated by Section 19 (3) did not exist.
24. It is clear from the material on the record that the Board was rushed for time in view of the close approach of the school session reopening in March 1974. The volume of the work involved was sufficiently large to justify the feeling that very little time was at hand. It is not sufficient, that even earlier the Chairman was alive to the need that the proceedings should be taken well in time. We are not concerned with the speed and attention devoted to this matter during the months preceding December, 1973. We are concerned with the circumstances existing on December 30. 1973 when the Chairman decided to appoint two reviewers and not three. There can be no dispute that on that day the matter had assumed the dimensions of an emergency. That, it seems to me, is a reasonable view. Section 19 (3) contemplates the subjective opinion of the Chairman that an emergency has arisen which requires immediate action. If from the facts and circumstances it can be reasonably inferred that there was such emergency. that is as far as the Court can go. Merely because a different view is possible on the facts and circumstances it is not open to the Court to hold that there was no emergency justifying immediate action.
25. It seems to me that the pleas of paucity of time and paucity of experts must be appreciated in a single overall context and not independently of each other. Four reviewers were available, but because of the number of books and the paucity of time it was apparently considered that all the books could be examined expeditiously only if they were divided into two lots and each lot was examined by a set of two reviewers. Because of the paeuity of time, three re-viewers could not be appointed for examining each book. Had more experts been available, that may have been possible. It seems to me a reasonable view to take that because of the limitations of time within which the task had to be completed there was the legitimate feeling that the number of reviewers was insufficient to justify each book being examined by three reviewers.
26. It is also urged by the petitioner that resort could be had by the Chairman to Section 19 (3) only if the emergency arose out of the administrative business of the Board. The petitioner says that what was before the Chairman was the academic business of the Board. It cannot be disputed, in view of Section 21, that the business of the Board extends to both administrative and academic business. Section 10 provides examples of both. The selection of text books for publication and prescription can be described as the administrative business of the Board.
27. Then, it is said that Section 19 (3) contemplates a situation where the Board cannot meet and immediate action is necessary, and therefore, the power to take such action has been vested in the Chairman. It is urged that the Board could have met. It appears that of the Members constituting the Board nine are stationed in Simla while the others are stationed at Chandigarh and at various places in Himachal Pradesh. Of the nine stationed in Simla eight members, it is alleged, were in Simla in December 1973. Now the quorum for a meeting of the Board requires, by Section 7, that at least nine members should be present. As will be evident from the record of the in-fructuous meeting of the Board convened for February 15, 1974. the impression of the Chairman was that to constitute a quorum of the Board it was necessary that besides the Chairman at least nine Members should be present. Whether that impression was erroneous or not is immaterial. So long as it was bona fide it cannot be held by the Court that the Chairman acting upon his subjective opinion was unreasonable in not calling a meeting of the Board when action had to be taken immediately. There were only eight members present in Simla at the time, the remaining members were all resident outside and calling a meeting after notifying them would not have contributed to an expeditious decision of the matter.
28. The petitioner's next submission is that the Chairman did not report to the Board the action taken by him and therefore Section 19 (3) was not complied with. As to that it is apparent from the material on the record that the Board did come to know shortly thereafter of theaction taken by the Chairman in the matter of appointment of the reviewers, and, it seems to me, no formal report by the Chairman to the Board was necessary in the circumstances.
29. Then it is submitted that the Chairman did not apply his mind to the question whether two reviewers should be appointed instead of three and that he recorded no opinion in support of that decision. This submission is also without force. The Chairman was present during the deliberations of the Curriculum Committee on December 20, 1973. and the note dated December 29, 1973, put UP by the Deputy Secretary (Administration) before him also set out the circumstances. When the Chairman appended his signature at the foot of the note it must be taken that he agreed with what was stated therein, and that can be deemed as a record of his opinion. There is therefore material to show that the Chairman applied his mind to the issue whether two reviewers or three reviewers should be appointed and that he recorded his opinion in that connection.
30. Point 4: Several books were submitted by authors and publishers for selection for each subject in a class. The petitioner contends that as two sets of reviewers examined two different lots of books and no book was evaluated by all the reviewers, the recommendations made by the reviewers were invalid. It is pointed out that the pro forma issued to the reviewers detailing the basis for evaluation left room for subjective opinion in regard to material particulars. And, therefore, there was no uniform evaluation of the books. The question whether each book should have received the attention of all the reviewers is a difficult one. But two considerations determine this issue. First, the system of the award of marks on the merit of a book constitutes the manner of evaluating it. It indicates the application of an independent external standard for expressing the merit of a book. Each book falls to be judged and its merit evaluated by awarding marks to it. The marks are awarded on the merit of a book, considered independently of the other books, A common standard of reference is applied and within the frame of that reference marks are awarded. It is not necessary in the circumstances that the marks should be awarded by all the reviewers to each book. The example of answer books in an examination being marked by different examiners is well known, and the practice is well accepted as just and fair. Added to this is the second consideration that nowhere does the Act or the Regulations prescribe that only one book or a certain limited number of them will be recommended by the Text-books Recognition Committee for publication orprescription by the Board. Any number of books may be recommended by the Committee, depending on the circumstances and requirements of each subject in a class and the conditions prevailing in different schools in the State.
31. In the opinion I have formed on all the aforesaid four points, the recommendations of the expert reviewers cannot, in my view, be considered as invalid.
32. Point 5:--As the recommendations of the expert reviewers cannot be considered invalid, the recommendations of the Text books Recognition Committee cannot be held invalid on the ground that the Committee considered the recommendations of the reviewers.
33. Point 6:--The petitioner urges that the recommendations of the Text-books Recognition Committee were invalid because there were vacancies in the Committee and that Section 8 of the Act does not protect the validity of those recommendations. For the reasons set out above in respect of Point 1, I hold on this point also that Section 8 constitutes a complete answer.
34. Point 7:--The case of the petitioner is that the recommendations of the Text-books Recognition Committee were invalid because the Committee depended entirely on the evaluation of the expert reviewers and did not apply its own mind to the merit of the books. It is sad that only three books which had been awarded highest marks by the re-viewers were considered by the Committee and the petitioner's book was not considered because the reviewers placed it eighth in order of merit. I have carefully perused the minutes of the meeting of the Text-books Recognition Committee held on February 11 and 12, 1974. It is clear from it that all the text books were placed before the Committee along with the evaluation reports, the consolidated statements of awards and other connected papers, that the Committee scrutinised those books subjectwise for each class arid that the evaluation rendered by the reviewers alone with the pro forma which constituted its basis was also examined by the Committee. It was only thereafter that it accepted the recommendations of the reviewers. Inasmuch as only one book was to be selected for each subject in each class, the Committee took the text books which had been given the first three places by the reviewers, and after examining them in detail they approved of one of them. In the circumstances, the complaint of the petitioner is not well founded.
35. Point 8.--The petitioner points out that under the Note to Regulation 48 (a) it is necessary that the recommendations of the Text-books Recognition Committee should be considered by the Curriculum Committee and this was not done because the meeting of the Curriculum Committee convened for February 14, 1974, failed for want of a quorum. What is the nature of the function exercised by the Curriculum Committee at this stage The Curriculum Committee has no power to alter the recommendations of the Text-books Recognition Committee. It can merely reject one or more of them. Unlike the power of the Text-books Recognition Committee in relation to the recommendations of the Expert Reviewers, the Curriculum Committee has no power to alter the recommendations placed before it. In the case of the Text-books Recognition Committee, after it has considered the recommendations of the expert reviewers and approved or altered 'them, those recommendations emerge as the recommendations of the Text books Recognition Committee. In the case of the Curriculum Committee, on the other hand, after it has considered the recommendations of the Textbooks Recognition Committee those recommendations continue to be identified as the recommendations of the Text-books Recognition Committee. Their status remains unchanged. The function, of the Curriculum Committee is evidently that of tendering its opinion only on those recommendations. The nature of that function is merely consultative. It is intended to be of assistance to the Board in taking a decision when the recommendations of the Text-books Recognition Committee are considered by the Board. In my opinion, the role assigned to the Curriculum Committee at this stage indicates that the provision concerning It is merely directory. The failure of the Curriculum Committee to consider the recommendations of the Text-books Recognition Committee does not, it appears to me vitiate the proceeding. See State of U. P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912.
36. Point 9:--In the view that the failure of the Curriculum Committee to consider the recommendations of the Text-books Recognition Committee does not vitiate the proceeding, it follows that the Board need not have awaited the opinion of the Curriculum Committee on those recommendationa. In any event, having regard to the very short time left for the conclusion of the proceeding and the imminent re-opening of the school session there was justification for the Board resorting to the proviso to Section 25 of the Act and dealing with the matter without awaiting the opinion of the Curriculum Committee. The Board did consider the urgency of the matter, as will be clear from the minutes of its meeting held on February 16, 1974. where specific reference has been made to thecircumstance that the school session was to start in the first week of March, 1974.
37. Point 10:--The petitioner alleges that the Board did not apply its independent Judgment to the recommendations of the Text-books Recognition Committee and adopted them mechanically. The material on the record, it is said, shows that there was insufficient time for the Board to examine the books. The contention is without substance. There is ample material to show that the Chairman and the members of the Board who were present at the meeting on February 16, 1974, had already examined the books on earlier occasions and that the time at their disposal for doing so was sufficient for that purpose. Of the eleven members present on February 16. 1974, nine were present on February 15, 1974, on which date a meeting of the Board had been convened and they scrutinised the books. The remaining were members of the Text-books Recognition Committee and had examined the books on February 11 and 12, 1974. There was therefore more than sufficient opportunity for the Chairman and the members of the Board to examine the merits of the books. It cannot be said that the Board did not apply its mind to the task before it.
38. It is then urged that the Board examined the recommended books only and not all the books. Even if that be so. it is apparent that the Board is not required to do more than that by the Note to Regulation 48 (a). The Board is merely required to consider the recommendations of the Text-books Recognition Committee. In point of fact however, . as I have already mentioned, the Chairman and members of the Board were conversant with the merit of all the different books.
39. Point 11:--The petitioner contends that after receiving the recommendations of the Text-books Recognition Committee the Board can merely formulate its opinion on those recommendations and thereafter forward the recommendations to the Government for its approval. It is urged that the Board is not empowered to take any decision in respect of the books. I am 'unable to agree. From the dominant position which the Board occupies in the scheme embodied in the Act it is clear that it was the Board that had to take a decision in respect of the books. No doubt the decision was to be subject to the approval of the Government. Nevertheless it was the Board which had to take a decision. It is the function of the Board to decide which of the books recommended by the Textbooks Recognition Committee should be published and prescribed. It will be noticed that the 'approval' of the Government is envisaged. To what will the Government accord its approval Not tothe recommendations of the Text-books Committee, although, it must be admitted, the language of the Note says so. Approval to the recommendations is meaningless. The approval must be of a decision, an act which concludes the proceeding. And that can only be the decision of the Board taken after considering the recommendations of the Textbooks Recognition Committee. Section 10 (12) of the Act itself, has advisedly described what is done by the Text-books Recognition Committee as 'recommendations'. They are recommendations made to the Board, and the Board is vested with a discretion in deciding whether to arrange for the publication of, and prescribe all the books recommended by the Text-books Recognition Committee or only some of them. It seems to me from the position which the Board occupies under the Act, the character of its composition and its overall functions in the matter of education in the State that this authority in the Board must necessarily be implied.
40. Point 12: When the proceed-ing for the selection of the books was still pending and before it had reached the stage of consideration by the Board, it appears that the Board had passed a resolution deciding to modify the Note to Regulation 48 (a) by deleting the requirement that after the Board had considered the recommendations of the Text-books Recognition Committee it should forward them for the approval of the Government. It is not disputed that on February 16. 1974, when the Board finalised the proceeding, and two days later when it informed the publishers of the final selection of the books, the amendment had not been published in the Official Gazette. It was in fact published on April 13, 1974. The petitioner contends that the amendment was effected by the Board under Section 27 (1) of the Act, and therefore, required publication by virtue of Section 27 (2) of the Act before it could take effect. It is urged that inasmuch as publication was not effected until April 13, 1974. the amendment had not taken effect when the Board finalished the proceedings in February 1974, and, therefore, inasmuch as the requirement of the Government's approval had not been satisfied at that time the act of the Board was invalid, In the first place, I am unable to agree that the alteration or modification by the Board of the Note to Regulation 48 (a) needed to be published in the Official Gazette because of Sec. 27 (2) before it could take effect. Section 27 (2) refers to the First Regulations made by the Government. It does not refer to any alteration or modification by the Board of those Regulations. The power of the Board to alter or modify must be traced to Section 26. The petitioner hasreferred us to Section 28. and points out that it refers to three distinct cases: (i) a Regulation made by the Board under Section 26, (ii) a modification or rescission thereof under Section 26 and (iii) a modification or rescission of the First Regulation of the Board made or deemed to have been made under Section 27. The submission is that the last category implies that it is Section 27 which confers a power on the Board to alter or modify the First Regulation. To my mind, when Section 28 speaks of the modification or rescission by the Board of the First Regulations of the Board 'made or deemed to have been made under Sec. 27'. the latter words merely describe the First Regulations and do not refer to the modification or rescission thereof. The description is apt because, according to Section 27, the First Regulations are made by the Government and are deemed to have been made by the Board. The modification or rescission of the First Regulations cannot be referred to a power under Section 27, the power is to be found in Section 26.
41. But even if the petitioner be right in contending that the amendment required publication in the official gazette in order to take effect, on his own showing the amendment took effect at least on 13-4-1974 when it was first published. As from that date the requirement of Government's approval no longer exists. If the Board is now required by this Court to seek the approval of the Government, a direction of this Court to that effect would be meaningless. The objection is of a purely technical character, inasmuch as nothing more can be done now in the present state of things than was actually done when the Board finalised the proceeding. It must be renumbered that the requirement of Government approval is procedural in character, and would apply to the proceedings under consideration even though that proceeding was commenced before the amendment took effect. As the objection is wholly technical in character and no benefit can arise to the petitioner if it is upheld, no relief can be granted on its basis.
42. Point 13: The petitioner pleads estoppel. He says that the respondents are barred by estoppel from pleading that validity of the procedure followed by them because on the faith of the procedure intimated to him by the Board he had got himself registered with the Board and had incurred an appreciable expenditure, about Rs. 10,000/-, in having one thousand copies printed of the Hindi Primer submitted by him. I am of opinion that the plea of estoppel cannot prevail. The procedure embodied in the Note to Regulation 48 (a) was indeedcommunicated to the petitioner, and it was understood to be the procedure on the basis of which the books would be selected. But nowhere did that communication require that the petitioner should have a thousand copies printed. The expenditure incurred by him was assumed at his own risk. The plea of estoppel is rejected.
43. Point 14:--When the petition was filed, the petitioner applied for the appointment of a Commissioner for signing of the records in the possession of the Board and its officers. An apprehension was expressed that the records would be falsified. Shri K. p. Sud, Advocate, was appointed Commissioner. He has submitted a report concerning the execution of the Commission. During the arguments in the case, a submission was made from time to time by the petitioner that the original records procured by the Board before us were fabricated. Upon a perusal of the relevant records and the report of the Commissioner, I am unable to hold that the charge made by the petitioner is justified.
44. In my judgment, none of the points raised by the petitioner are valid.
45. In the result, the petition must be dismissed.
46. As the Himachal Pradesh Board of School Education Act, 1968, has, it seems, come up for judicial consideration for the first time and the points raised are generally points of first impression, I would make no order as to costs.
D.B. Lal, J.
47. I agree.
C.R. Thakur, J.
48. I agree.