Jayasheela Stores and Others vs The State of Karnataka and Others

Mohan Shantanagoudar, J.—The validity of the Circular dated 28.1.2010 issued by respondents 4 and 5 vide Annexure-F is questioned in these writ petitions.

Petitioners submit that they are the owners of private book depots. Selling the books is the principal trade and that is the source of their livelihood. Upto the last academic year, the petitioners and similarly situated certain owners of the book depots were given a permission/licence to sell the textbooks, printed and published by the State Government for Standards I to X. Under the impugned circular, the petitioners and similarly placed persons are prohibited from distributing/selling the textbooks prescribed by the State Government for Standards I to X. According to the petitioners, imposition of such prohibition through the impugned circular issued by respondents 4 to 5 is without any source of power and without authority of law. They further contended that the decision as spelled out in the circular infringes Articles 19(1)(g) and 21 of the Constitution of India.

The State Government has opposed the writ petitions by filing the statement of objections.

Heard the learned Counsel appearing for the petitioners and the learned Additional Advocate General Sri K.M. Nataraj, for the respondents.

Learned Counsel appearing on behalf of the petitioners relying upon the judgments reported in (i) Rashbihari Panda etc. Vs. State of Orissa, (ii) Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, and (iii) 1990 (4) SCC 557 Bharat Coking Coal Limited v. State of Bihar and Ors. contends that there is no law enacted by the State Government restricting the distribution and vending of textbooks by the private book depots owners; that the textbooks are not the prohibited items and consequently the selling of textbooks by the private book depot owners should not have been prohibited; that the State Government has not given authority to the 5th respondent-Commissioner for Public Instruction to issue impugned circular, inasmuch as there is no executive order of the State Government authorizing the 5th respondent for issuing the impugned circular. The sum and substance of the argument on behalf of the petitioners is that there is neither the law enacted by the State nor has it issued an executive order prohibiting the private book depot owners from distributing/selling the textbooks printed by or on behalf of the State Government and consequently, the impugned circular issued by the 5th respondent is illegal and arbitrary. It is further contended that the fundamental right guaranteed under Articles 19(1)(g) and 21 is violated.

Per contra, it is contended by the learned Additional Advocate General that neither statutory nor contractual right is vested with the petitioners to insist the State Government to have business of distribution and selling of the textbooks with them; that the impugned circular at Annexure-F is only intra departmental communication/Circular and it is not a policy decision as such taken by respondents 4 and 5; that u/s 7 of the Karnataka Education Act, it is open for the State Government to prescribe curricula, syllabi and textbooks for any course in respect of the educational institutions; that the Director or the Commissioner appointed under Sub-section (1) of Section 8 of the Education Act, shall be Chief Controlling Authority in all matters connected with the administration relating education in the State as may be allotted by the State Government; that in order to fulfill various responsibilities including the making available of the textbooks for the children of Karnataka studying in various classes in Government, Aided and Unaided Schools and with a view to see that the books will reach every student before the academic year, the impugned circular came to be issued; that while issuing the circular, respondents 4 and 5 have taken into consideration the hardship caused to the students of the Government, Aided and Unaided schools in the State in the earlier academic years. On those among other grounds, it was argued by the respondents that the writ petitions be dismissed.

With the object to publish, print, sell, supply or otherwise deal in textbooks, note books and other books and literature on all subjects in different languages well in time before the commencement of academic school year at reasonable prices, etc., the State Government passed an order dated 4.1.2006 to establish and register a society. Accordingly, the society called Karnataka Text Books Society came to be formed and registered on 12.5.2006 to deal with all the matters relating to printing, selling/distribution of Textbooks etc. Copies of the Registration Certificate, Articles of Association, Rules and Regulations of Text Books Society, are produced by the respondents along with the memo dated 17.6.2010. The society has a Governing Council with certain members including the Minister for Primary and Secondary Education as the Chairman of the Society. Secretary of the Primary and Secondary Education Department is the Vice-Chairman of the Society. The Executive Committee consists of the Commissioner of Public Instruction, Bangalore, as the Chairman. Director of Pre-University Education, Director (DSERT), etc. are the other members of the Executive Committee. The Governing Council shall take the decisions in all the matters connected with preparation, printing and distribution of Textbooks from Standards 1 to 10, irrespective of whether the textbooks are published by the Government or whether it is left to private entrepreneurs. The Governing Council shall delegate certain powers to the Executive Committee. The Executive Committee will approve the programme of preparation, production and distribution of Textbooks and other publications of the society for every year. The Executive Committee shall have the power and duties to make arrangements for preparation, production and distribution of school textbooks and other literature as per the programme formulated for the purpose. Thus, it is clear that the Karnataka Text Books Society is a creature of an executive order of the State Government, dated 4.1.2006 bearing No. ED.95.DGO.2005. It is empowered with the task of preparing, producing and distributing the school text books. Pursuant to the Articles of Association, Rules and Regulations of the Text Books Society, the tenders were invited by the Text Books Society for the year 2006 onwards for printing and supplying the textbooks. Normally procedure is to get the books printed from the private entrepreneurs after inviting tenders and to distribute/circulate the Textbooks to various Private, Government, Aided and Unaided schools in the State of Karnataka. Up to the last academic year, the textbooks were being distributed/sold through private book depot owners.

There cannot be any dispute that the State Legislature has got power to make laws on the subject of education. Thus, the executive power of the State shall extend to the matters in respect to the subject of education also as is clear from Article 162 of the Constitution of India. In exercising the executive power vested in the State Government under Article 162 of the Constitution of India, the Government Order dated 4.1.2006 came to be issued in the name of the Governor under Article 166 of the Constitution of India.

It is brought to the notice of the Court by the learned Additional Advocate General that, as per the policy of the Government, all the Government School students studying in Standards I to X and all the students studying in aided schools in Standards I to VIII were getting the textbooks from the 4th respondent free of cost. The cost of printing and supplying of free Textbooks has been met by the Government. The students studying in Standards IX and X of Aided schools and the students studying in Standards I to X of Unaided schools were required to buy the textbooks as sale component. Thus, it is clear that the issue involved in these writ petitions is only with regard to the Textbooks supplied to the students as a sale component studying in IX and X Standards of Aided schools and the students studying in I to X Standards of Unaided schools. As aforementioned, till the previous academic year, the sale component Textbooks were tendered by the 4th respondent-society and the printers were free to print and supply the books to all the book shops in the State for sale to the students studying in IX and X standards of Aided schools and the students studying in I to X Standards of Unaided schools. In this regard, neither the State Government nor the 4th respondent-society did make any Regulation for printing or selling the Textbooks except to fix the sale price. In view of the same, according to the State Government, the successful bidders in the absence of an accurate mission to know the market demand for the sale component books, were indulging in printing the textbooks on the basis of previous years'' sale. Consequently, number of students in the rural areas did not get the textbooks in time and hence such children used to buy second hand textbooks or used to borrow the textbooks from their relatives and friends. In other words, the artificial scarcity used to be created by the book sellers and consequently the book sellers used to sell the textbooks at a higher rates, which created greater financial hardship to the students and their parents. In order to overcome such hardship, the impugned circular seems to have been issued with the object of distributing textbooks directly to all the schools i.e., Government, Aided and Unaided schools. Such distribution would be done by the Education Department of the State through concerned Deputy Directors of Public Instruction and Block Education Officers, etc. by getting the demand drafts directly from the schools, based on the actual strength of the students.

As aforementioned, the Text Books Society, is a creature of the Government Order dated 4.1.2006, inasmuch as while creating the Text Books Society, the Government has taken policy decision. The said Government Order dated 4.1.2006 is issued in the name of His Excellency, the Governor of Karnataka as required under Article 166 of the Constitution of India.

Contention of the petitioners is that the impugned circular itself is a policy decision of the State Government, which does not comply with the requirements of Article 166 of the Constitution of India, inasmuch as the same is not issued in the name of the Governor.

The said contention cannot be accepted, inasmuch as the impugned circular is not the executive order of the State Government, but it is only an intra departmental communication/Circular, inasmuch as the same is made by the Karnataka Text Books Society. The impugned circular is signed by the Commissioner of Public Instruction, Bangalore, who is the Chairman of the Executive Committee of the Karnataka Text Books Society and by the Executive Director of Karnataka Text Books Society, Bangalore. Thus, it is clear that the impugned circular is not issued by the State Government, but is issued by the Karnataka Text Books Society with the object of distribution of textbooks to each of the students in better and orderly manner and for fulfilling of object, for which the said society is formed. Since the impugned circular is not an executive order of the State Government, the same need not be published in the name of the Governor and consequently, the provisions of Article 166 of the Constitution of India are not violated.

So also, this Court does not find any substance in the arguments advanced on behalf of the petitioners that the action of the State in issuing the impugned circular violates Articles 19(1)(g) and 21 of the Constitution of India. It is well settled that the fundamental rights guaranteed under Article 19 are not absolute but the same are subject to the reasonable restrictions to be imposed against enjoyment of such rights. Such reasonable restriction seeks to strike a balance between the freedom guaranteed by any of the clauses under Article 19(1) and the social control permitted by Clauses (2) to (6) of the Article 19 of the Constitution of India. The reasonableness of restriction is to be determined in an objective manner and from the standpoint of the interests of general public and not from the standpoint of the interests of the persons upon whom the restrictions are imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly and even if the persona affected be small traders. In determining the infringement of the right guaranteed under Article 19(1), the nature of right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, enter into judicial verdict (see Mohd. Hanif Quareshi and Others Vs. The State of Bihar, , Laxmi Khandsari and Others Vs. State of U.P. and Others, 1986 SCC Supp. 20 D.K. Trivedi and Sons v. State of Gujarat Harakchand Ratanchand Banthia and Others Vs. Union of India (UOI) and Others, .

Although a citizen has a fundamental right to carry on a trade or business, he has no fundamental right to insist upon the Government or any other individual for doing business with him. Any Government or an individual has got a right to enter into contract with a particular person in accordance with law and well established procedure. In the matter on hand, the State Government has not discriminated in favour of any individual supplier, inasmuch as no individual supplier of the book is allowed to distribute or sell the textbooks to the students. The Text Books Society itself has decided to distribute the books directly to the schools based on the strength of the students of a particular school. As aforementioned, the object of the State Government is to distribute. the books in orderly manner to the students so as to avoid any confusion in the minds of the students and parents. By the procedure which is adopted now by the Text Books Society, each student will get the books either free of cost or on payment, as the case may be, in his school itself. He need not go to shop keeper searching for the books. Thus, looking from the standpoint of interest of general public, this Court is of the opinion that so called restriction cannot be said to be unreasonable.

Merely because the petitioners are prohibited from selling the textbooks of Standards I to X, it cannot be said that their right to live is taken away. They are the private book depot owners, they are not only selling textbooks of I to X Standards, but also other textbooks of various degrees/courses. They are not prohibited to do their business of selling the note books and other books, including the textbooks relating to other classes/courses. Therefore, this Court does not find any justification to accept the contention of the petitioners that the provisions of Article 19(1)(g) and 21 of the Constitution of India, are violated.

The judgment of the Apex Court in the case of Rashbihari Panda etc. Vs. State of Orissa, , relied on by the petitioners is inapplicable to the facts of the present case, inasmuch as in the said matter, the Government had decided to invite only those individuals who carried out contracts in the previous year without default and to the satisfaction of the Government. In the said matter, the Apex Court has held that right to make offers being open to a limited class of persons, it effectively shuts out all other persons carrying on trade in Kendu leaves and also new entrants into that business. In that view of the matter, the Apex Court held that the order of the State Government is expressly discriminatory upon the right of the persons. But in the matter on hand, the State Government has not made any pick and choose policy. In the very judgment at paragraph-19, it is observed by the Supreme Court that the validity of the law, by which the State assumed the monopoly to trade in a given commodity has to be judged by the test whether the entire benefit arising therefrom is to enure to the State, and the monopoly is not used as a cloak for conferring private benefit upon a limited class of persons. In the case on hand, the entire benefit arising out of the monopoly of the distribution of textbooks enures to the State.

The judgment of the Apex Court in the case of Bharat Coking Coal Limited v. State of Bihar and Ors. reported in (1990) 4 SCC 557, relied upon by the petitioners is inapplicable to the facts of this case, inasmuch as the impugned circular is not an executive order/action of the State Government. It is only a communication or internal arrangement made by the Karnataka Text Books Society for better implementation of distribution system of text books.

For the very reasons, the judgment of the Supreme Court in the case of Rai Rahib Ram Jawaya Kapur and Ors. v. The State of Punjab reported in AIR SC 549 is also not applicable to the matter on hand.

In view of the above, this Court does not find any ground to grant the prayer of the petitioners. Hence, writ petitions fail and accordingly same are dismissed.