STATE OF TAMIL NADU & ORS. v. K. SHYAM SUNDER & ORS.

A scheme has uniformly conformed to the same pattern. The legislature evolves a scheme of socio-economic welfare, makes elaborate provisions in respect of it and leaves it to the Government concerned to decide when, how and in what manner the scheme should be introduced. That, in our opinion, cannot amount to excessive delegation."

34Copy pinpoint34. In view of the above, the law stands crystallised to the effect that in case the legislature wants to delegate its power in respect of the implementation of the law enacted by it, it must provide sufficient guidelines, conditions, on fulfillment of which, the Act would be enforced by the delegatee. Conferring unfettered, uncanalised powers without laying down certain norms for enforcement of the Act tantamounts to abdication of legislative power by the legislature which is not permissible in law. More so, where the Act has already come into force, such D a power cannot be exercised just to nullify its commencement thereof.

VIII. LEGISLATIVE ARBITRARINESS:

35Copy pinpoint35. In Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & E Ors., AIR 1981 SC 487, this Court held that Article 14 strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. Whenever therefore, there is arbitrariness in State action, whether it be of the legislature or of the executive, Article 14 immediately springs F into action and strikes down such State action. (See also: E.P. Royappa v. State of Tamil Nadu & Anr., AIR 1974 SC 555; and Smt. Meneka Gandhi v. Union of India & Anr. AIR 1978 SC 597).

36Copy pinpoint36. In Mis. Sharma Transport rep. by D.P. Sharma v. Government of A.P. & Ors. AIR 2002 SC 322, this Court defined arbitrariness observing that party has to satisfy that the action was not reasonable and was manifestly arbitrary. The expression 'arbitrarily' means; act done in an unreasonable manner, as fixed or done capriciously or at pleasure without

STATE OF TAMIL NADU & ORS. v. K. SHYAM 1155 SUNDER & ORS. [DR. B.S. CHAUHAN, J.]

adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone.

37Copy pinpoint37. In Bombay Dyeing & Manufacturing Co. Ltd. (3) v. Bombay Environmental Action Group & Ors. AIR 2006 SC B 1489, this Court held that arbitrariness on the part of the legislature so as to make the legislation violative of Article 14 of the Constitution should ordinarily be manifest arbitrariness.

38Copy pinpoint38. In cases of Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board & Ors. AIR 2007 SC 2276; and C Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Limited & Ors. AIR 2009 SC 2337, this Court held that a law cannot be declared ultra vires on the ground of hardship but can be done so on the ground of total unreasonableness. The legislation can be D questioned as arbitrary and ultra vires under Article 14. However, to declare an Act ultra vires under Article14, the Court must be satisfied in respect of substantive 7 unreasonableness in the statute itself.

IX. AMENDING ACT-IF STRUCK DOWN-WHETHER OLD E LAW WILL REVIVE:

39Copy pinpoint39. This Court in Bhagat Ram Sharma v. Union of India & Ors., AIR 1988 SC 740 explained the distinction between repeal and amendment observing that amendment includes F abrogation or deletion of a provision in an existing statute. If the amendment of an existing law is small, the Act prefaces to amend; if it is extensive, it repeals and re-enacts it.

40Copy pinpoint40. In State of Rajasthan v. Mangilal Pindwal AIR 1996 G SC 2181, this Court held that when the statute is amended, the process of substitution of statutory provisions consists of two parts:-

(i) the old rule is made to cease to exist; H

p. 1156 Copy page pinpoint

A (ii) the new rule is brought into existence in its place.

In other words, the substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. (See also: Koteswar Vittal Karnath v. K.Rangappa B Baliga & Co. AIR 1969 SC 504).

41Copy pinpoint41. In Firm A. T.B. Mehtab Majid and Co. v. State of Madras & Anr., AIR 1963 SC 928, this Court held:

"22. It is a settled legal proposition that whenever an Act c is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided under Section 6 of the General Clauses Act,

1897. Repeal is not a matter of mere form but is of 0 substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly i.e. pro tanto repeal"

42Copy pinpoint42. Thus, undoubtedly, submission made by learned senior counsel on behalf of the respondents that once the Act stands E repealed and the amending Act is struck down by the Court being invalid and ultra vires/unconstitutional on the ground of legislative incompetence, the repealed Act will automatically revive is preponderous and needs no further consideration.

STATE OF TAMIL NADU & ORS. v. K. SHYAM 1157 SUNDER & ORS. [DR. B.S. CHAUHAN, J.]

State Unit & Ors., (2009) 8 SCC 46; and Firm A. T.B. Mehtab A Majid and Co. (supra) reached the same conclusion.

43Copy pinpoint43. There is another limb of this legal proposition, that is, where the Act is struck down by the Court being invalid, on the ground of arbitrariness in view of the provisions of Article 14 B of the Constitution or being violative of fundamental· rights enshrined in Part-Ill of the Constitution, such Act can be described as void ab-initio meaning thereby unconstitutional, still born or having no existence at all. In such a situation, the Act which stood repealed, stands revived automatically. (See: C Behram Khurshid Pesikaka (Supra); and Mahendra Lal Jaini (Supra)

44Copy pinpoint44. In Harbilas Rai Bansal v. State of Punjab & Anr. AIR 1996 SC 857, while dealing with.. the similar situation, this Court struck down the Amending Act being violative of Article 14 of the Constitution. The Court further directed as under:

"We declare the abovesaid provision of the amendment as constitutionally invalid and as a consequence iestore the original provisions of the Act which were operating before coming into force of the Amendment Act." (Emphasis added)

45Copy pinpoint45. Thus, the law on the issues stands crystallised that in case the Amending Act is struck down by the court for want of legislative competence or is violative of any of the fundamental rights enshrined in Part Ill of the Constitution, it would be un- enforceable in view of the provision under Article 13(2) of the Constitution and in such circumstances the old Act would revive, but not otherwise. This proposition of law is, however, not applicable so far as subordinate legislation is concerned. G

X. WHETHER LEGISLATURE CAN OVERRULE THE JUDGMENT OF THE COURT:

46Copy pinpoint46. A Constitution Bench of this Court in Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & H

p. 1158 Copy page pinpoint

A Ors., AIR 1970 SC 192, examined the issue and held as under: ''. .... When a legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said B to take place effectively. The most important condition, of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the c decision of the Court shall not bind for that it tantamo!Jnts to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances ..... "

47Copy pinpoint47. In S.R. Bhagwat & Ors. v. State of Mysore, AIR 1996 a SC 188, similar issue was consid~red by this Court while considering the provisions of Karnataka State Civil Services (Regulation of Promotion, Pay & Pension) Act, 1973. In that case, the provisions of that Act disentitled deemed promotees to arrears for the period prior to actual promotion. These provisions were held to be not applicable where directions of the competent court against the State had become final. The F Court observed that any action to take away the power of judicial decision shall be ultra vires the powers of the State legislature as it encroached upon judicial review and tried to overrule the judicial decision binding between the parties. The binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance overrules such a judgment and is not in the realm of a legislative enactment which displaces the basis or foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect.

STATE OF TAMIL NADU & ORS. v. K. SHYAM 1159 SUNDER & ORS. [DR. B.S. CHAUHAN, J.]

48Copy pinpoint48. While deciding the said case, this Court placed reliance on its earlier judgments in Re, Cauvery Water Disputes Tribunal, AIR 1992 SC 522; and G.C. Kanungo v. State of Orissa, AIR 1995 SC 1655. In the former case, the Constitution Bench of this Court held that the legislature could change the basis on which a decision was given by the Court and, thus, change the law in general, which would affect a class of persons and events at large. However, it cannot set aside an individual decision inter-parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and c functioning as an appellate court OJ tribunal. In the latter case, a similar view had been reiterated observing that the award of the tribunal could not be nullified by an Amendment Act having recourse to the legislative power as it tantamounts to nothing else, but "the abuse of this power of legislature." D

49Copy pinpoint49. In Madan Mohan Pathak & Anr. v. Union of India & Ors., AIR 1978 SC 803, a seven-Judge Bench of this Court considered a similar issue and-held that the act of legislature cannot annul a final judgment giving effect to rights of any party. A declarative judgment holding an imposition of tax invalid cari be superseded by a re-validation statute. But where the factual or legal situation is retrospectively altered by an act of legislature, the judgment stands, unless reversed by an appeal or review. Bringing a legislation in order to nullify the judgment of a competent court would amount to trenching upon the judicial power and no legislation is permissible which is meant to set aside the result of the mandamus issued by a court even though, the amending statute may not mention such an objection. The rights embodied in a judgment could not be taken away by the legislature indirectly. G

A similar view has been reiterated in K. Sankaran Nair (Dead) through LRs. v. Devaki Amma Malathy Amma & Ors., (1996) 11 sec 428.

50Copy pinpoint50. The legislature cannot by bare declaration, without H

p. 1160 Copy page pinpoint

A anything more, directly overrule, reverse or override a judicial decision. However it can, in exercise of the plenary powers conferred upon it by Articles 245 and 246 of the Constitution, render a judicial decision ineffective by enacting a valid law fundamentally altering or changing the conditions on which such B a decision is based.

(Vide: A. Manjufa Bhashini & Ors. v. Managing Director, Andhra Pradesh Women's Cooperative Finance Corporation Ltd. & Anr., (2009) a sec 431).

51Copy pinpoint51. In view of the above, the law on the issue can be summarised to the effect that a judicial pronouncement of a competent court cannot be annulled by the legislature in exercise of its legislative powers for any reason whatsoever. The legislature, in order to revalidate the law, can re-frame the D conditions existing prior to the judgment on the basis of which certain statutory provisions had been declared ultra vires and unconstitutional.

XI. READING OF THE STATEMENT OF OBJECTS AND E REASONS: WHILE INTERPRETING THE STATl:ITORY PROVISIONS:

52Copy pinpoint52. The Statement of Objects and Reasons appended to the Bill is not admissible as an aid to the construction of the Act to be passed, but it can be used for limited purpose for ascertaining the conditions which prevailed at that time which necessitated the making of the law, and the extent and urgency of the evil, which it sought to remedy. The Statement of Objects and Reasons may be relevant to find out what is the objective of any given statute passed by the legislature. It may provide for the reasons which induced the legislature to enact the statute. "For the purpose of deciphering the objects and purport of the Act, the court can look to the Statement of Objects and Reasons thereof'. (Vide: Kava/appara Kottarathif Kochuni@ Moopif Nayar v. The States of Madras and Kera/a & Ors., AIR 1960 H

STATE OF TAMIL NADU & ORS. v. K. SHYAM 1161 SUNDER & ORS. [DR. B.S. CHAUHAN, J.]

SC 1080; and Tata Power Company Ltd. v. Reliance Energy A Ltd. & Ors., (2009) 16 sec 659).

53Copy pinpoint53. In A. Manjula Bhashini & Ors. (Supra), this Court held as under:

"The proposition which can be culled out from the aforementioned judgments is that although the Statement of Objects and Reasons contained in the Bill leading to enactment of the particular Act cannot be made the sole basis for construing the provisions contained therein, the same can be referred to for understanding the background, the antecedent state of affairs and the mischief sought to be remedied by the statute. The Statement of Objects and Reasons can also be looked into as an external aid for appreciating the true intent of the legislature and/or the object sought to be achieved by enactment of the particular D Act or for judging reasonableness of the classification . made by such Act." (Emphasis added)

54'. Thus, in view of the above, the Statement of Objects and Reasons of any enactment spells out the core reason for E which the enactment is brought and it can be looked into for appreciating the true intent of the legislature or to find out the object sought to be achieved by enactment of the particular Act or even for judging the reasonableness of the classifications made by such Act. F CASE ON MERITS:

55Copy pinpoint55. The instant case requires to be examined in the light of the aforesaid settled legal propositions, though it may not be necessary to deal with all these issues in great detail as the G High Court has already dealt with the same elaborately.

56Copy pinpoint56. In the instant case, as the Expert Committee had submitted a report and most of the members had given their opinion on different issues and as we have also examined the reports, it is evident from the same that each member had H

p. 1162 Copy page pinpoint

A pointed out certain defects in the curriculum as well as in the text books etc. There was no unanimity on any particular issue, as each member has expressed a different opinion on different issues/subjects.

57Copy pinpoint57. The counter affidavit dated 7.6.2011 was filed before 8 the High Court by Ms. D. Sabitha, the Secretary to the . Government Education Department on behalf of all the respondents therein. In reply to the Writ Petition she stated as under:

c "I. Further the prayer for an issuance of writ of declaration declaring that the decision of the Cabinet dated 22.⁵.2011 by the Government of Tamil Nadu to withhold the implementation of the Tamil Nadu Uniform System of School Education Act, 2010 for the academic year D 2011-12 as published vide News Release No. 289 dt. 22.⁵.2011 as null and void is not sustainable in law for the sole reason that the policy decision taken by the ~Cabinet would not be generally subject tqjudicial review. - It is further submitted that the decision taken by the Cabinet I E to review the implementation of the Uniform System of School Education for Standards I to X is purely in the interest of students. parents and public which is within the domain of the popular Government..

II. Further the averment that text books printed would be wasted and there would be a loss caused to the tune of 200 crore rupees seems to have been made without understanding the implications that could be created due to the implementation of the illegal policy formulated by the erstwhile Government. The Government has a mandate to ensure the quality of education and welfare of the students. It is with this intent the present policy is being formulated ..... .

·111. The State, therefore, proposes to appoint a high powered committee consisting of experts in the field to

STATE OF TAMIL NADU & ORS. v. K. SHYAM 1163 SUNDER & ORS. [DR. B.S. CHAUHAN, J.] ' undertake a detailed study of the more appropriate system to be adopted for ensuring the improvement of quality of education and social justice by providing a level playing field to all sections of society.

IV. At this juncture, it is pointed out that the books that have 8 been printed already are substandard and wanting in quality and if followed, would lead to deterioration of academic Standards of school students and therefore the Cabinet has rightly taken a policy decision after thorough deliberation to stall the implementation of the Uniform C System of School Education Act, 2010 as it suffers from illegality, irrationality and unconstitutionality .... » (Emphasis added)

On amendment of the writ petitions, another counter affidavit was filed by Ms. D. Sabitha, the same officer, wherein she stated on oath, inter-alia, as under:

"I. This being so, the Government has taken a decision to stall the implementation of the policy of the previous government that is devoid of any legal sanction and has constituted a committee to formulate an appropriate solution in order to redress the complications created due to the implementation of the illegal policy.

II. ...... In the Cabinet meeting held on 22.⁵.2011, it was initially decided to do away with the uniform Education F system. Since the schools were reopening on 1st June, 2011, orders had to be issued for printing of textbooks. It is submitted that the advertisement for inviting tenders for printing textbooks was issued on 23.⁵.2011." G (Emphasis added)

58Copy pinpoint58. The High Court, after taking note of the counter affidavit filed by the present appellants labeling the Act 2010 as illegal, irrational and unconstitutional, after it had already undergone an intense judicial scrutiny and held to be H

p. 1164 Copy page pinpoint

A Constitution:.illy valid by the High Court vide judgment and order dated 30.4.2010 and by this Court vide judgment and order dated 10.9.2010, the question that arises for consideration is as to whether it was permissible for the Secretary of the Education Department to label the Act as illegal and B unconstitutional. Does such a conduct amount to sitting in appeal against the judgments of the High Court as well as of this Court or does it not amount to an attempt to take away the effect of the judgments of the High Court as well of this Court ?

59Copy pinpoint59. The High Court has taken note of these pleadings ' C taken by the State authorities :

"From a perusal of the counter affidavit filed by the Secretary, School Education Department, it is manifestly clear that the Government has taken the consistent stand D that the policy formulated by the previous Government by implementing the Uniform Syllabus System was illegal and that the amount of Rs. 200 crores spent for printing the textgooks under the new syllabus was because of the wrong policy ...... " (Emphasis added) E The report submitted by the Expert Committee, in fact, did not contain any collective opi_nion. All the members have expressed their different views and most of the members had approved the contents of the text books, in general, pointing out certain defects which could be cured by issuing F corrigendums or replacements etc.

60Copy pinpoint60. Section 18 of the Act 2010 enables the State Government to remove difficulties, if any, in implementation of the said Act. The provisions thereof read as under: G "If any difficulty arises in giving effect to the provisions of this Act, the Government may, by order published in the Tamil Nadu Government Gazette, make such provisions, not inconsistent with the provisions of this Act as appears

STATE OF TAMIL NADU & ORS. v. K. SHYAM 1165 SUNDER & ORS. [DR. B.S. CHAUHAN, J.]

to them to be necessary or expedient for removing the A difficulty; ... "

Therefore, the amendment itself is totally unwarranted. If the State Government was facing any difficulty, the same could have been removed by issuing a Government order under 8 Section 18 of the Act which conferred all residuary powers on it.

The nature of the defect as canvassed by the State counsel is reflected in the pleadings that indicates an undesirable inclusion of certain chapters that do not subserve the purpose of a uniform standard and multicultural educational pattern. The contention appears to be that such material may damagingly divert the mind of the young students towards a motivated attempt of individualistic glorification. In the opinion of the court, if such material does create any adverse impact or is otherwise targeted towards unwanted propaganda without any contribution towards the educational standard sought to be a~hieved, then such material upon a thorougb investigation and deliberation by the Expert Committee could be deleted with the aid of Section 18 of the Act 2010. It appears that the State E Government while introducing the Amendment Act 2011 did not appropriately focus attention on the provision .of Section 18 quoted hereinabove that are inclusive of all powers that may be required to remove such difficulties. Had the said provision been carefully noted, there would have been no occasion to suspend the implementation of the Act 2010. What could have been done with the help of a needle was unnecessarily attempted by wielding a sword from the blunt side. Not only this the said provision was not even pointed out by the State machinery before the High Court nor did its legal infantry choose to examine the same. Even before us the learned counsel were unable to successfully counter the availability of such powers with the State Government.

In addition to that, needless to re-emphasize, the High Court while dealing with the validity of the provisions of the Act H

p. 1166 Copy page pinpoint

A 2010, had already conceded liberty to the State Government to remove defects and had on the other hand struck down the offending provisions in Section 14 thereof empowering the State Government to compel the Education Board to be bound on questions of policy. Thus, the State Government was left with B sufficient powers to deal with the nature of defects appropriately under the said judgment with a statutory power available for that purpose under Section 18 of the Act 2010.

61Copy pinpoint61. It may be relevant to point out here that Statement of Objects and Reasons given to the Amendment Act 2011 reveal C a very sorry state of affairs and point out towards the intention of the legislature not to enforce the Act 2010 at all. Relevant part of clause 9 of the Statement of Objects and Reasons of the Amendment Act 2011 reads as under:

D " ... the State proposes to appoint a high powered committee consisting of expe: ts in the field to undertake a detailed study of the more appropriate system to be adopted for ensuring the improv~rnent of quality and education and social justice by providing a level playing field to all sections of society ... " (Emphasis added)

The afore3-aid quoted part of the same makes it clear that the Government intended to introduce a more appropriate system to ensure the improvement of quality education, meaning thereby, that the State has no intention to .enforce the uniform education system as provided under the Act 2010.

62Copy pinpoint62. The relevant part of Section 3 of the Act 2010 reads as under:

3(1) Every school in the State shall follow the common syllabus and text books as may be specified by the Board for each subject -

(a) in Standards I and VI, commencing from the academic year 2010-2011; H

STATE OF TAMIL NADU & ORS. v. K. SHYAM 1167 SUNDER & ORS. [DR. B.S. CHAUHAN, J.]

(b) in Standards II to V and Standards VII to X from the academic year 2011-2012.

(2) Subject to the provisions of s.ub-section (1 ), every school in the State shall -

(a) follow the norms fixed by the Board for giving instruction in each subject;

(b) follow the norms for conducting examination as may be specified by the Board.

63Copy pinpoint63. After the Amendment Act 2011, Section 3 reads as c under:

"3. Schools to follow common syllabus -

(1) Every school in the State shall follow the common D syllabus as may be specified by the Board for each subject in Standards 1 to X from such academic year as may be notified by the Government in the Tamil Nadu Government Gazette. The Government may specify different academit years for different Standards. · E

(2) Until notification under sub-section (1) is issued, the syllabus and text books for every school in the State shall be as follows:

(a) in Standards I and VI, the system as prevailing prior F to academic year 2010-11 shall continue; and

(b) in Standards II to V and VII to X, the existing system shall continue," (Emphasis added)

64Copy pinpoint64. The legislature in its wisdom had enforced the Act G 2010 providing for common sylla~1,1s and text ·books for Standards I and VI from the academic year 2010-2011 and for Standards II to V and VII to X from the academic year 2011- 2012, the validity of this law has been upheld by the High Court vide judgment and order dated 30.4.2010 and by this Court vide H

p. 1168 Copy page pinpoint

A order dated 10.9.2010. Certain directions had been issued by the High Court which could be carried out easily by the State exercising its administrative powers without resorting to any legislative function. By the Amendment Act, even the application of Act 2010, so far as Standards I and VI are concerned, has also been withdrawn without realising that students who have studied in academic year 2010-11 would have difficulty in the next higher class if they are given a different syllabus and different kind of text books. The Amendment Act 2011 provided that the students in Standards I and VI would also revert back to the old system which had already elapsed.

65Copy pinpoint65. The Amendment Act 2011, in fact, nullified the earlier judgment of the High Court dated 30.4.2010, duly approved by the order of this Court dated 10.9.2010, and tantamounts to repealing of the Act 2010 as unfettered and uncanalised power has been bestowed upon the Government to notify the commencement of the uniform education system. State Government may submit only to the extent that the High Court itself had given option to the State to implement the Common Education System after ensuring compliance of directions E · issued by the High Court itself. However, no such liberty was available to the State so far as Standards I and VI are concerned.

66Copy pinpoint66. It is also evident from the record that after the new F Government was sworn in on 16.⁵.2011, tenders were invited to publish books being taught under the old system on 21.⁵.2011 and subsequent thereto, it was decided in the Cabinet meeting on 22.⁵.2011 not to implement the uniform education system. Whole exercise of amending the Act 2010 G was carried out most hurriedly. However, proceeding in haste itself cannot be a ground of challenge to the validity of a Statute though proceeding in haste amounts to arbitrariness and in such a fact-situation the administrative order becomes liable to be quashed. The facts mentioned hereinabove reveal that tenders had been invited on 21.⁵.2011 for publishing the text H

STATE OF TAMIL NADU & ORS. v. K. SHYAM 1169 SUNDER & ORS. [DR. B.S. CHAUHAN, J.]

books, taught under the old system even prior to Cabinet A meeting dated 22.⁵.2011. Thus, a decision had already been taken not to implement the Common Education System.

67Copy pinpoint67. If one crore twenty lacs students are now to revert back to the multiple syllabus with the syllabus and textbooks applicable prior to 2010 after the a~ademic term of 2011-12 has begun, they would be utterly confused and would be put to enormous stress. Students can not be put to so much strain and stress unnecessarily. The entire exercise by the Government is therefore arbitrary, discriminatory and oppressive to students, teachers and parents.

The State Government should have acted bearing in mind that "destiny of a nation rests with its youths". Personality of a child is developed at the time of basic education during his formative years of life. Their career should not be left in dolorific conditions with uncertainty to such a great extent. The younger generation has to compete in global market. Education is not a consumer service nor the educational institution can be equated with shops, therefore, "there a're statutory prohibitions for establishing and administering educational institution without E' prior permission or approval by the authority concerned."

Thus, the State Government could by no means be justified in amending the provisions of Section 3 of the Act 2010, particularly in such uncertain terms. Undertaking given by the learned Advocate General to the High Court that the Act 201 O F would be implemented in the academic year 2012-13, cannot be a good reason to hold the Act 2011 valid.

68Copy pinpoint68. Submissions advanced on behalf of the appellants that it is within the exclusive domain of the legislature to fix the date G of commencement of an Act, and court has no competence to interfere in such a matter, is totally misconceived for the reason that the legislature in its wisdom had fixed the dates of commencement of the Act though in a phased manner. The Act commenced into force accordingly. The courts intervened in the H

p. 1170 Copy page pinpoint

A matter in peculiar circumstances and passed certain orders in this regard also. The legislature could not wash off the effect of those· judgments at all. The judgments cited to buttress the arguments, particularly in A.K. Roy v. Union of India & Anr., AIR 1982 SC 710; Aeltemesh Rein v. Union of India & Ors., B AIR 1988 SC 1768; Union of India v. Shree Gajanan Maharaj Sansthan, (2002) 5 SCC.44; and Common Cause v. Union of India & Ors., AIR 2003 SC 4493, wherein it has been held that a writ in the nature of mandamus directing the Central Government to bring a statute or a provision in a statute into force in exercise of powers conferred by Parliament in that statute cannot be issued, stand distinguished.

69Copy pinpoint69. As explained hereinabove, the Amendment Act 2011, to the extent it applies to enforcement of Act 2010, nullified the judgment of the High Court dated 30.4.2010 duly approved by this Court vide order dated 10.9.2010. Thus, we concur with the conclusion reached by the High Court in this regard.

70Copy pinpoint70. To summarise our conclusions:

(i) The Act 2010 was enacted to enforce the uniform education system in the State of Tamil Nadu in order to impart quality education to all children, without any discrimination on the ground of their economic, social or cultural background.

F (ii) The Act itseff provided for its commencement giving the academic years though, in phased programme i.e. for Standards I to VI from the academic year 2010-2011; and for other Standards from academic year 2011-2012, thus, enforcement was not dependent on any further notification. G (iii) The validity of the Act was challenged by various persons/ institutions and societies, parents of the students, but mainly by private schools organisations, opposing the common education system in the entire State. The writ petitions were dismissed upholding the validity of the Act. H

STATE OF TAMIL NADU & ORS. v. K. SHYAM 1171 SUNDER & ORS. [DR. B.S. CHAUHAN, J.]

However, few provisions, particularly, the provisions of A Sections 11, 12 and 14 were struck down by the High Court vide judgment and order dated 30.4.2010. The said judgment of the High Court was duly approved by a speaking order of this Court dated 10.9.2010. Certain directions had been given in the said judgment by the High B Court which could have been complied with by issuing executive directions. Moreover, directions issued by the High Court could be complied with even by changing the Schedule as provided in the judgment dated 30.4.2010 ~~ c (iv) Section 18 of the Act 201 O itself enabled the Government to issue any executive direction to remove any ·difficulty to enforce the statutory provisions of the Act 2010. The Act 2010 itself provided for an adequate residuary power with the government to remove any difficulty in enforcement of the Act 2010, by issuing an administrative order.

(v) Justification pleaded by the State that Amendment Act 2011 was brought to avoid contempt proceedings as the directions issued by the High Court could not be complied with, is totally a misconceived idea and not worth acceptance.

(vi) The new government took over on 16.⁵.2011 and immediately thereafter, the Government received representations from various private schools/organizations on 17th/18th May, 2011 to scrap the uniform education system. As most of these representations were made by the societies/organisations who had earlier challenged the validity of the Act 2010 and met their waterloo in the hierarchy of the courts, such representations were, in fact, not even maintainable and, thus could not have been entertained by the Government.

(vii) Before the first Cabinet meeting of the new H

p. 1172 Copy page pinpoint

A Government on 22.⁵.2011, i.e. on 21.⁵.2011, tenders were invited to publish the books under the old education system. It shows that there had been a pre-determined political decision to scrap the Act 2010. The Cabinet on 22.⁵.2011 had taken a decision to do away with the Act 8 2010 and brought the Ordinance for that purpose.

(viii) There was no material before the Government on the basis of which, the decision not to implement the Act 2010 could be taken as admittedly the Expert Committee had not done any exercise of reviewing the syllabus and c textbooks till then.

(ix) The validity of the said decision was challenged by parents and teachers and various other organisations before the High Court and interim orders were passed. It D was at that stage that the Bill was introduced in the House on 7.6.2011 and the Amendment Act was passed and enforced with retrospective effect i.e. from 22.⁵.2011, the date of the decision of the Cabinet in this regar~.·

(x) The interim orders passed by the High Court were challenged before this C'lurt and the appeals were disposed of by this court vide judgment and order dated 14.6.2011, issuing large number of directions including constitution of the Expert Committee which would find out ways and means to enforce the common education system.

(xi) The Secretary of School Education Department had filed affidavits before the High Court as well as before this Court pointing out that the Amendment Act 2011 was necessary in view of the fact that the Act 2010 was illegal and unconstitutional. However, the Secretary of School Education Department was inadvertently made a member of the Expert Committee by this Court. Though her inclusion in the Committee was totally unwarranted particularly in view of her stand taken before the High Court that the Act

STATE OF TAMIL NADU & ORS. v. K. SHYAM 1173 SUNDER & ORS. [DR. B.S. CHAUHAN, J.]

2010 was unconstitutional and illegal. A

{xii) The Secretary, to the Govt. of Tamil Nadu School Education Department, who had been entrusted the responsibility to plead on behalf of the State, herself had approved the textbooks and fixed the prices for those 8 books of Standards Vlllth, IXth and Xth vide G.O. dated 9.⁵.2011. {xiii) The members of the Expert Committee did not r.eject the text books and syllabus in toto, however, pointed out certain discrepancies therein and asked for rectification/ C improvements of the same.

{xiv) The High Court as well as this Court upheld the validity of the Act 2010. Thus, it was not permissible for the legislature to annul the effect of the said judgments by the D Amendment Act 2011, particularly so far as the 1st and Vlth Standards are concerned. The list of approved textbooks had been published and made known to all concerned. Thus, the Act 2010 stood cc>mpletely implemented so far these Standards were concerned. E {xv) The Statement of Objects and Reasons of the Act 2011 clearly stipulated that legislature intended to find out a better system of school education. Thus, the object has been to repeal the Act 2010. F {xvi) The legislature is competent to enact the revalidation Act under certain circumstances, where the statutory provisions are struck down by the court, fundamentally altering the conditions on which such a decision is based, but the legislature cannot enact, as has been enacted G herein, an invalidation Act, rendering a statute nugatory.

{xvii) The School Education Department of Tamil Nadu on 24.2.2011 called for private publishers to come out with the textbooks based on common education system, and submit for clearance by the Department by 5.4.2011, as H

1174 SUPREME COURT REPORTS [2011) 11 $.C.R.

A taken note of by the High Court in its order dated 10.6.2011. Thus, in such a fact-situation, it was not permissible for the State to revert back to the old system at this advanced stage.

(xviii) Most of the other directions given by the High Court B on 30.4.2010, stood complied with. The DTERT had been appointed as Academic Authority as required under Section 29 of the Act 2009, vide G.O. dated 27.7.2010.

(xix) The material produced by the respondents before this c Court reveal that norms had been made known and the NCF 2005 was also implemented by issuing Tamil Nadu Curriculum 2009.

(xx) The issue of repugnancy of the Act 2010 with the Act D 2009 merely remains an academic issue as most of the discrepancies stood removed. Even if something remains to be done, it can be cured even now, however, such a minor issue could not be a good ground for putting the Act 2010 under suspended animation for an indefinite period on uncertain terms. E (xxi) Undoubtedly, there had been a few instances of portraying the personality by the leader of political party earlier in power, i.e. personal glorification, self publicity and promotion of his own cult and philosophy, which could F build his political image and influence the young students, particularly, in the books of primary classes. Such objectionable material, if any, could be deleted, rather than putting the operation of the Act 2010 in abeyance for indefinite period. G (xxii) As early as in April 2011, textbooks for Xth Standard were posted in the official website of School Education Department and many students downloaded the same and started study of the same as the students, parents and teachers had been under the impression that for Standards H

STATE OF TAMIL NADU & ORS. v. K. SHYAM 1175 SUNDER & ORS. [DR. 8.$. CHAUHAN, J.] / '

II to V and VII to X, common education system would A definitely be implemented from academic year 2011-12. Such pious hope of so many stakeholders could not be betrayed. Rolling back the Act 2010 at this belated stage and withdrawal thereof even for Standard I and VI would be unjust, iniquitous and unfair to all concerned. B

(xxiii) The Amendment Act 2011, in fact, has the effect of bringing back the effect of Section 14 of the Act 2010 which had been declared ultra vires by the High Court for the reason that the Board could not be given binding C directions by the State Government.

(xxiv) Even if a very few schools could not exercise their choice of multiple text books, it could not be a ground of scrapping the Act 2010. Steps should have been taken to remove the discrepancy. D

(xxv) Passing the Act 2011, amounts to nullify the effect of the High Court and this Court's judgments and such an act simply tantamounts to subversive of law.

71Copy pinpoint71. In view of the above, the appeals are devoid of any merit. Facts and circumstances of the case do not present special features warranting any interference by this Court.

The appeals are accordingly dismissed. The appellants are directed to enforce the High Court judgment impugned herein within a period of 10 days from today.

D.G. Appeals dismissed.