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The West Bengal Board Of Secondary Education And Others v. Sm. Basana Rani Ghosh And Others
Structured Summary of the Court's Opinion
Factual and Procedural Background
This appeal was preferred by the West Bengal Board of Secondary Education (the Board), its President and Secretary against a judgment of a learned single Judge which had made absolute a Rule Nisi issued on the application of three respondents under Article 226 of the Constitution. The respondents (two guardians of Class VIII students and the West Bengal Headmasters' Association) had challenged the validity of a revised history syllabus for Class VIII prescribed by the Board.
The petitioners alleged two main types of defect: (a) substantive content complaints — that the revised syllabus departed seriously from the prior syllabus by omitting specific mention of Indian leaders while naming various foreign leaders and devoting comparatively little space to phases of the Indian freedom movement; and (b) procedural and constitutional complaints — that the revised syllabus was not framed in accordance with S.27(2)(c) of the West Bengal Board of Secondary Education Act, 1963, as amended by the West Bengal Secondary Education (Amendment) Act, 1979 (notably read with clause (g) of sub-sec. (3) of S.19A), and that it was ultra vires Article 19(1)(a) read with Article 51A(b) of the Constitution.
The learned single Judge held the revised syllabus illegal for failure to follow the statutory procedure and also held it violative of Article 19(1)(a); he made the Rule Nisi absolute, directed mandamus and certiorari to forebear giving effect to the syllabus and quashed it. The Board appealed. The West Bengal Publishers' Association had applied to be added as a party and had also filed an appeal; that application before the single Judge was not disposed of at the trial-court stage.
Legal Issues Presented
- Whether the petitioners had locus standi to maintain a writ under Article 226 challenging the revised history syllabus for Class VIII.
- Whether the revised history syllabus was framed in accordance with the statutory procedure set out in clause (g) of sub-sec. (3) of S.19A read with clause (c) of sub-sec. (2) of S.27 of the West Bengal Board of Secondary Education Act, 1963, as amended by the 1979 Amendment Act.
- Whether the revised syllabus violated Article 19(1)(a) (freedom of speech and expression/freedom of thought) and Article 51A(b) (duties of citizens) of the Constitution.
- Whether estoppel could be invoked against the West Bengal Headmasters' Association which had participated in the syllabus formulation process.
- Whether, if the syllabus was set aside as illegal, books already published and prescribed in accordance with the impugned syllabus should nevertheless be permitted to be taught for the current academic year.
Arguments of the Parties
Writ Petitioners / Respondents (as described in the opinion)
- The revised Class VIII history syllabus departs seriously from the previous syllabus and from NCERT-informed syllabi; it omits specific mention of Indian leaders while naming many foreign leaders and devoting comparatively little coverage to the Indian freedom movement.
- The revised syllabus would disadvantage students who drop out after Class VIII (relying on the Kothari Commission report that there is a substantial dropout at Class VIII) and thus affect national integration and students' knowledge of national history.
- The syllabus was not framed in accordance with the statutory provisions (S.27(2)(c) and S.19A(3)(g)) introduced or amended by the 1979 Amendment Act.
- The syllabus offended fundamental rights provisions, specifically Article 19(1)(a), and was challenged also vis-à-vis Article 51A(b).
Appellants / Board and Supporting Parties (as described in the opinion)
- Challenged locus standi of the petitioners, arguing they had no legal right infringed by the syllabus.
- Explained the NCERT-driven national process for drawing up syllabi and the Board's efforts to keep pace with changing secondary education by appointing an expert committee and a Syllabus Advisory Committee that included representatives of teachers' organisations (including the West Bengal Headmasters' Association).
- Pointed out participation of the West Bengal Headmasters' Association in the Syllabus Advisory Committee and asserted that the Association is estopped from challenging the syllabus since it took part in preparing it.
- Submitted that many textbooks (171 authors) had already been written and distributed in accordance with the revised syllabus and that striking down the syllabus would cause hardship to publishers and schools; relied on State of Madhya Pradesh v. Ram Ragubir Agarwal to argue for leaving the published books in use for the current year.
- Argued that the old regulations could still be followed, invoking S.25 of the Bengal General Clauses Act to justify continuing under the old regulatory framework pending the new regulations.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Maneka Gandhi v. Union of India, AIR 1978 SC 597 | Doctrine that rights not specifically named in Article 19(1) may nevertheless be covered if integral to the named rights; breadth of Article 19(1). (Observation by Bhagawati J. on the scope of Article 19.) | The single Judge had relied on this decision to support the view that Article 19(1)(a) includes freedom of thought and to hold the revised syllabus violative of Article 19(1)(a). The Division Bench noted that the single Judge relied on that observation but, having decided the case on procedural grounds, kept the constitutional question open. |
| Akhil Bharatiya Soshit Karmachari Sangh v. Union of India, AIR 1981 SC 298 | Support for broad, people-oriented processual jurisprudence, including the concept of access to justice through representative and public interest proceedings (locus standi principles). | The Division Bench relied on this authority to reject the Board's challenge to the petitioners' locus standi, holding that members of a community who are interested in the education of children may maintain such writs even if not personally or directly legally affected. |
| State of Madhya Pradesh v. Ram Ragubir Prasad Agarwal, AIR 1979 SC 888 | Relief-modifying principle: where practical disruption would result (e.g., exams imminent and books already in use), the Court may permit continuation of government books for the current academic year despite procedural defects, as a temporising measure. | The Division Bench relied on the observation of Krishna Iyer, J. in that case to craft a limited, practical remedy: although the revised syllabus was held illegal for procedural noncompliance, the Court allowed schools that had prescribed books under the impugned syllabus to teach them for the current year and likewise allowed schools following the old syllabus to continue for this year; the Board was directed to regularise the matter by preparing the syllabus in accordance with the Act by Oct. 1982. |
Court's Reasoning and Analysis
The Division Bench proceeded in a stepwise analytical manner:
- Locus standi: The Court rejected the appellants' argument that the petitioners lacked locus standi. It applied the modern, people-oriented approach to procedural jurisprudence (citing Akhil Bharatiya Soshit Karmachari Sangh) and concluded that guardians and an association interested in education had standing to challenge state or statutory action affecting the education of children even if their personal legal rights were not directly infringed.
- Estoppel: The Court rejected the estoppel argument based on the Headmasters' Association's participation in the Syllabus Advisory Committee. It observed that even if estoppel were arguable against a private party, there cannot be estoppel against statutes; also, other petitioners remained to maintain the challenge.
- Statutory/procedural compliance: The core of the Court's analysis focused on the statutory framework introduced by the 1979 Amendment Act: clause (g) of sub-sec. (3) of S.19A cast a duty on the Executive Committee to provide by byelaws, after considering recommendations of the Syllabus Committee, the syllabus, courses of study and books in accordance with regulations; clause (c) of S.27(2) required the Board to make regulations in respect of such matters; sub-sec. (4) of S.27 made regulations subject to State Government approval. The Bench noted that after the amendment, no new regulations were framed by the Board, nor were bye-laws prepared, yet the Board proceeded to set up a Syllabus Advisory Committee and to adopt and notify the revised syllabus.
- Consequence of procedural failure: Because the statutory scheme required the making of regulations (and thereafter approved bye-laws) before the Executive Committee could frame syllabi, and because that mandatory procedure was not followed, the Court concluded that the history syllabus for Class VIII was illegal as having been prescribed without following the mandatory provisions of the Act as amended.
- On reliance on earlier regulations and general clauses: The appellants' contention that old regulations continued in force under S.25 of the Bengal General Clauses Act was rejected. The Court held that the amended statutory scheme required a different process (Executive Committee and bye-laws), making the old regulations inconsistent and inapplicable.
- Practical considerations and modulation of relief: The Court acknowledged the practical hardship — many books were already written and distributed in accordance with the impugned syllabus and some schools had prescribed and were teaching them. Relying on State of Madhya Pradesh v. Ram Ragubir Agarwal, the Court modified the single Judge's order: it restrained the Board from prescribing or insisting on teaching books based on the impugned syllabus until the Board complied with the statutory procedure, directed the Board to prepare a valid syllabus in accordance with the Act by October 1982, and allowed schools that had already prescribed either the new-syllabus books or the old-syllabus books to teach their chosen books for that academic year.
- Constitutional question deferred: Although the single Judge had held the revised syllabus violative of Article 19(1)(a), the Division Bench declined to decide the constitutional validity issue because it found the syllabus illegal on procedural grounds; the Court held the constitutional question open to be raised only if a syllabus is later prepared in accordance with the statutory procedure.
Holding and Implications
Holding: The Division Bench held that the revised history syllabus for Class VIII was illegal because it had been prescribed without following the mandatory procedural provisions of the West Bengal Board of Secondary Education Act, 1963, as amended by the 1979 Amendment Act.
Specific directions and immediate effects:
- The Board was directed not to prescribe or insist on the teaching of books written on the basis of the impugned revised syllabus for Class VIII so long as the history syllabus for Class VIII is not prepared in accordance with the provisions of the Act as amended.
- The Board was directed to prepare the history syllabus for Class VIII in accordance with the Act by October, 1982.
- As a transitional measure, schools which had prescribed books on history written according to the impugned revised syllabus were permitted to teach such books for the current year; similarly, schools teaching books based on the old syllabus were permitted to continue doing so for the current year.
- No order as to costs was made in respect of the appeal(s).
Broader implications and precedent:
- The Court's ruling primarily enforces statutory procedure: it requires that the amended scheme (regulations, State approval, Executive Committee and bye-laws) be followed before syllabi are prescribed. The decision does not finally resolve the constitutional question whether the content of the impugned syllabus offends Article 19(1)(a); that constitutional issue was expressly kept open because the syllabus was set aside on procedural grounds and the question will arise only when a syllabus is lawfully prepared.
- No new ruling was laid down on the substantive constitutional point in this judgment; the effect on national educational policy is procedural — the Board must reframe the syllabus using the statutorily mandated process.
Note: This summary is confined strictly to the facts, issues, reasoning and directions stated in the provided opinion and does not introduce information or inference beyond the text of that opinion.
M.M Dutt, J.:— 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 not been framed in accordance with the provision of S. 27(2)(c) of the West Bengal Board of Secondary Education Act, 1963, as amended by the West Bengal Secondary Education (Amendment) Act, 1979 read with the provision of clause (g) of sub-sec. (3) of S. 19A incorporated Lithe Act by the said amendment Act. The further challenge to the validity of the revised history syllabus is that it is ultra vires Art. 19(1)(a) read with Art. 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 Publishers' 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 Art. 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 oganisation, 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 Yatsen, 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 S. 27(2)(c) read with the provision of S. 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, AIR 1978 SC 597. In that case, it has been observed by Bhagawati J. that even if a right is not specifically mentioned in Art. 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 Art. 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 Art. 19(1)(a) of the Constitution. He has, however, overruled the contention of the Writ Petitioners that the new syllabus is also violative of Art. 51A(b) 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 Art. 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 tought, 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, AIR 1981 SC 298 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 Art. 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 Art. 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 fay 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-sec. (3) of S. 19A read with clause (c) of sub-sec. (2) of S. 27 of the Act. Clause (g) of sub-sec. (3) of S. 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 S. 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-sec. (3) of S. 19A. Sub-sec. (4) of S. 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-sec. (3) of S. 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 S. 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 S. 19A read with the provision of Clause (c) of S. 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 a 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 in 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 Ss. 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 Ss. 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 S. 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 S. 27(2)(c), the Board has to make regulations, inter alia, in respect of matters under cl. (g) of sub-sec. (3) of S. 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 Ss. 27(2)(c) and 19A(3)(g) of the Act as amended by the said Amendment Act of 1979. In our opinion, therefore, S. 25 of the Bengal General Clauses Act is inapplicable and the old regulations made under the unamended provision of S. 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, (AIR 1979 SC 888) (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 Art. 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.:— I agree.
Order accordingly.
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