iqbal HussaIn Vs. State of U.P. and ors. - Court Judgment

S. N. Srivastava, J.

1. The genesis of the controversy involved in the instant petition was the de-recognition order passed by the Secretary, Madhyamik Shiksha Parishad by which it was intimated to the Institution by referring to the letter of Regional Secretary, Madhyamik Shiksha Parishad, U. P. Regional Office, Bareilly dated 14.6.2006, that the Institution has been stripped of recognition of the history as a subject and therefore, it was advised that the students having history as a subject may seek admission elsewhere.

2. The present petition has been instituted by one Iqbal Hussain as President of Parent-Teachers Association Shan Inter College, Moradabad, for the relief of a writ of mandamus directing the respondents 1 and 2 to allow 52 students studying in standard XII having history as one of the subjects in the Institution to appear in Intermediate examination 2006 as regular students.

3. From a perusal of the record it would transpire that recognition to the Institution in six subjects including history as one of the subjects had been accorded to the Institution in the year 2000 as an unaided Institution vide letter dated 19.7.2000. It would further appear that the ground for derecognition of history as one of the subjects was cited to be that for two consecutive years, requisite numbers of students, with history as one of the subjects were not available and this, according to the calendar of the Board, furnished foundation automatically, for derecognition of history as one of the subjects.

4. The core question at issue in the instant petition is about syllabus of High School and intermediate. From a glance through the Board Calendar, it brooks no dispute, the High School Education is of two years duration, i.e. 9th standard and 10th standard. The students appearing for High School examination have to appear in seven papers which includes, (1) Hindi or Elementary Hindi. (2) One Modern Indian Language which includes Gujrati, Urdu, Marathi, Uriya, Kannad, Kashmiri, Sindhi, Telgu, Malayam, Nepali or one Modern English Language which Includes English, French, Germane, Russian, Tibbatian, Chinese or any of the language which includes Sanskrit, Pall, Persian, Latin, (3) Maths or elementary Maths or Home Science (Only for Girl students). (4) Science, (5) Social Science, (6) any additional subject or any of the language mentioned above at Hem No. 2, Sangeet Gayan, Sangeet Vadan, Vanijya, Chitrakala, Krishi, Home Science (for girls only), Sewing, Ranjan Kala, Computer. (7) Moral education etc. or any of the vocational trades which includes 20 subjects Including textile, Library Science, etc. Similarly, for intermediate examination, every student is required to appear in five subjects.

5. From a perusal of the letter according recognition to the Institution (Annexure-4 to the writ petition), it would transpire that Institution was accorded recognition for Intermediate classes for six subjects namely, Hindi, English, Urdu, Civics, Art and History. It would further transpire from the record that in all 54 students were granted admission in Intermediate Classes for the sessions 2005-2006 who had opted for history as one of the subjects. It would be further eloquent that forms for appearing in Intermediate Examination, 2007, submitted on behalf of students opting for history as one of the subjects were declined by the Board on the solitary ground that requisite numbers of students, opting for history, were not available for two consecutive years and hence recognition of history as one of the subjects was said to have ceased to operate automatically.

6. The sum total of what the Board has done in the above perspective is that the Board refused to receive the examination fee amount from the students for the examination and also the forms on the premises that during the period of two years, requisite numbers of student were not studying and hence, forms of students, who were in the subsequent sessions, admitted with history as one of the subjects could not be accepted and accordingly, they were directed to take admission in some other college. It would further appear that a representation was preferred by the petitioner for accepting forms for the 2007 Intermediate examination but finding the education authorities unyielding in the matter, the present petition has come to be filed by the petitioner.

7. On filing of the writ petition, learned standing counsel was directed to seek instructions on 21.8.2006. The learned standing counsel relying upon the relevant rules contained In Chapter 7 of the Calendar of the Board argued that since requisite number of students were not available in the college, the history as a subject stood derecognised automatically in terms of the provisions of Rules (supra). He further argued that in view of the provisions aforesaid, it was rightly presumed that recognition was rightly withdrawn and the order passed by the Board for not accepting forms was rightly passed.

8. Upon consideration of arguments advanced across the bar, the foremost question that crops up for consideration in the present case is whether any recognition granted to the High School and Intermediate classes as a whole, could be deemed to have ceased to operate automatically with regard to a particular subject or the institution is required to be issued notice or to be afforded opportunity of hearing before passing an order of de-recognition. Regard being had to the settled principle in law, it brooks no dispute that the right already having vested in the college after getting recognition in accordance with law; cannot be taken away without observing in compliance the due procedure prescribed in law. Reverting to the facts of the present case, the broad view that flows from the settled position is that in case the Board has presumed certain facts that requisite numbers of students in a particular subject were not available for instructions for a particular period, and further in case the Board is possessed of any material pointing to the fact that requisite number of students were not available, it leaves no manner of doubt that unless the Board issues notice to the concerned institution pursuant to such materials before it or any order is passed in utter disregard of the principles of natural justice, the recognition validly granted to an institution of a particular subject cannot be taken away or rescinded in piecemeal manner by derecognising one particular subject and therefore, it cannot be said that recognition would cease to operate automatically.

9. There is no gainsaying of the fact that 54 students were admitted in the institution who opted for history as one of the subjects and by this reckoning, it needs no straining of facts as is quite discernible from the record that requisite numbers of students were available and in the circumstances, the stand of the Board has no legs to stand that requisite number of students were wanting, it having already been held above that recognition cannot be taken away in piecemeal involving a particular subject. In this connection, it may also be noticed here that admittedly, no notice or opportunity of hearing was afforded to the institution to explain the circumstances therefore, it bears no repudiation that principles of natural justice were given a complete go-by by the authorities before passing order derecognising history as a subject. In the circumstances, the irresistible conclusion remains that the Board acted illegally and arbitrarily in refusing to accept forms of 52 students who had opted for history as one of the subjects and by this reckoning, refusal by the Board to accept forms without any valid justification cannot, by any stretch of imagination, be sustained in law. As a matter of fact there is nothing on record to prop up the stand of the Board whereby students were disentitled from appearing in the 2006 intermediate examination merely on the ground that for two consecutive years, the requisite number of students in a particular subject were not available in the Institution. In the above perspective, I am of the considered view that 52 students who had opted for history as one of the subjects are entitled to fill up forms as regular candidates of the said college and the Board cannot refuse processing of such forms for appearing in the 2006 Intermediate Examination.

10. The 2nd question (hat begs consideration in the perspective of controversy involved in this petition is whether in case once the Board has recognized one compulsory subject, i.e., Hindi and six optional subjects at High School level and according to relevant calendar of the Board, moral education and physical education also fall within the category of subjects (which do not find mention in the letter of recognition as is clear from the letter of recognition), the question arises whether the recognition will be deemed to have been rescinded automatically in case out of five subjects, the students do not opt for one of the subjects? In this connection, the calendar of the Board may be referred to in which are enumerated moral education and physical education as optional subjects. When the Court drew attention of the standing counsel to the calendar of the Board that when subjects like moral education and physical education are mentioned in the calendar of the Board why the Board has not embarked upon effective steps for introducing such a significant subject like moral education with a view to inculcating in the impressionable minds of the students the duties towards Nation, the duties to the society and the duties towards ecology and environment, etc., the learned standing counsel sought time to get instructions on the aspect.

11. In this connection, attention may be drawn to the calendar of the Board again which has been placed before the Court. It is eloquent from a close scrutiny of the Calendar that a statutory Committee is already in existence constituted to review the text-books and calendar of the Board which meets in the month of September each year. The learned standing counsel did not dispute the existence of statutory committee and also that this Committee is empowered to review the efficacy of text-books and calendar of the Board. In connection with the above, the calendar of the Board of High School and Intermediate may again be referred to. It would appear that the calendar enlists 37 subjects, which could be recognized as subjects to be taught in the High School and Intermediate Classes. The Board has not spelt out in its order granting recognition as to why recognition of only six subjects has been accorded unmindful of the fact that if history is derecognized, some of the students will be eligible to appear in the Board Examination with still lesser subjects. As noticed above, there are subjects of physical and moral education at item No. 35 of the list which can, without any difficulty, be converted into compulsory subjects according to the calendar of the Board regard being had to the fact that in the changed scenario, and also that Article 51A has come to be engrafted in the Constitution, teaching of moral education is all the more necessary.

12. Now the question is whether the Board can be enjoined to consider about treating subjects like physical/moral Education and social science as compulsory subjects to be taught to all the students in the changed scenario all over the world particularly regard being had to Article 51A the essence of which is that every citizen has fundamental duties to be discharged under the Constitution. Article 51A being relevant is reproduced below:

51 A. Fundamental duties.-It shall be the duty of every citizen of India:

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forest, lakes, rivers and wild life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure violence;

(J) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

13. While dealing with nuisance of pollution in the River Ganga in a Public Interest Litigation in M. C. Mehta v. Union of India : [1988]2SCR530 , the Apex Court held it to be a duty of the Central Government to take a number of steps in order to make this provision effective. The Apex Court also held therein that the Central Government had duty to introduce compulsory teaching of lessons on protection and improvement of natural environment in schools. In para 24 of the said decision, it was directed that the Central Government shall get text books written for the purpose and distribute them to the educational institutions free of costs. The summary of directions contained in the aforesaid decision is excerpted below:

(a) to direct all educational institutions throughout India to give weekly lessons in the first ten classes, relating to the protection and improvement of the natural environment including forests, lakes, rivers and wild-life;

(b) to get text-books written for the said purpose and to distribute them free of costs;

(c) to introduce short-term courses for training of teachers who teach this subject;

(d) not only the Central Government but also the State Government and local authorities to introduce cleanliness weeks when all citizens, including members of the Executive, the Legislature and the Judiciary, should render free personal service to 'keep their local areas free from pollution of land, water and air.

14. It is now acknowledged all over the world that value based education is the only instrument for transmuting national talent into national progress. For want of value based education, i.e., moral education including physical education, the whole generation has grown up to see crime and violence, casteism and communal frenzy and in such situation, democracy can hardly survive. The citizenry must be better educated to evolve a higher standard of public character. The synergic effect of the various cultures, the amalgam of which is called Indian culture is bound to prove of great ethical value. What 'Will Durant' once said must be heeded that just as continuity of memory is necessary for the sanity of an individual, continuity of the Nation's traditions and culture is necessary for the sanity of the Nation.

15. In the surcharged atmosphere prevailing today, the Nation is confronting various turmoil, be it students stir, or moral recessions amongst the fresh minds, it is all the more essential that these fresh minds must be given lesson in behaviour and compartment. There must also be endeavour to cope with the lethargy, sloppiness and mal-practices which prevail in our educational system. The fresh minds are very susceptible minds. A man is said to be only half educated if he has no sense of values. The poor level of education in ethics and values is responsible on account of want of attention on this aspect and to regain the standards of decorum and discipline of dignity and decency, there is a felt need to introduce subjects like moral education as compulsory subjects. As directed by the Apex Court in its decision (supra), the Board must evolve measures to introduce subjects like moral education as one of the compulsory subjects in the High School and Intermediate classes having ingredients of the provisions of Article 51A of the Constitution and also regard being had to the directions contained in the judgment of the Apex Court.

16. In view of the above, the U. P. Board of High School and Intermediate is directed to recognize the subjects, i.e., moral as well physical education as compulsory subjects regard being had to the directions of the Apex Court in the judgment (supra) and also to the Constitutional amendment. This matter shall be placed for consideration before the statutory committee constituted for consideration of subjects to be taught and which it is stated, meets in the month of September each year.

17. In view of the discussions made above, it is directed that the Board of High School and Intermediate shall consider the matter relating to teaching of moral education as compulsory subject in which fundamental duties contained in the Constitution should be taught to every student in the High School and Intermediate classes. The statutory committee shall consider the matter at issue and pass appropriate orders within a period of three weeks and the decision taken by the committee should be filed alongwith the counter-affidavit within three weeks.

18. List this matter on 18.9.2006, for further hearing in the matter. By that time, the Board may take effective steps for introducing the subjects in the curriculum of High School and Intermediate as one of the compulsory subjects by referring the matter to the statutory committee and work out modalities in the light of Article 51A of the Constitution of India and also the directions contained in the judgment of the Apex Court aforesaid. It may be clarified that the subject 'moral education' shall consist of ingredients as envisaged in Article 51A of the Constitution as fundamental duties of every citizen and also in the light of directions contained in the judgment of the Apex Court (supra).

19. In view of the above discussion, it is directed in the meantime, that the Board shall accept the forms of all the 52 students which shall be duly filled up and forwarded by the Institution to the end of the Board within a period not exceeding one week from the date of receipt of a certified copy of this order.