Jayantilal Mohanlal Shah vs State of Saurashtra and Another

Shah, C.J.—This is a petition for a writ of mandamus and appropriate writ ordering the Saurashtra Half�s not; to recover tuition fees from the Petitioner, who is a student of the Sir Jaswantsinghji High School at Limpid.

Before the integration of the Limbdi state into the State of Saurashtra in April, 1948, the said school was wholly maintained, controlled aftd managed by the former Limbdi State, and by a Huzur Older No. 2 dated 3-3-39 the Limbdi State ordered that students enrolled and studying in the said School, who were the subjects either of the Limbdi Statu or the Lakhtar State or those who lived in the Rajput Hostel were not to pay any tuition fees " free education was Imparted to them, Mid itlu-flmiL''i not covered the said clnu.w I.e., foreign NttuhiU''i were be charged fees at a certain presented scale.

This Huzur Order was replaced by Huzur Order No. 41 dated 10-G-43 issued by the Administrator of tiie Limbdi State on the eve of the attachment of the Wadhwan Bhoika Thana and Rais&nkli Taluka (excluding Dhasa) to the Limbdi State by para. 14 whereof it was order that the subjects of the "tliirhed urea will b allowed the benefit of secondary education etc., on the same terms as the subjects of the Limbdi State.

In consequence of the attachment of these areas to the Limbdi State, Anr. Huzur Order. NO, 120 dated 12-10-43 was issued by the Administrator, which stated, inter alia, that on account of the provision of the same facilities to the residents of the attached areas as were enjoyed by the Limbdi State subjects it had become necessary to revise the existing orders in respect of admission and free education in the Sir Jaswantsinhji Higfti School, and in supersession of the previous Huzm Orders it was ordered, among other things, that free education will be given to the State subjects'''' and their sons and the attached area subjects and their sons.

The sons of the Lakjhtar State subjects were to continue to enjoy the same privileges as Limbd subjects. Later the Wadhwan Bhoika Thana and Raisankli Taluka came to be detached from the Limbdi State from 15 -8-47 and therefore by a Huzur Order No. 108 dated 28-8-47 it was ordered that the benefits given by para. 14 of Hunur Order No. 41 dated 10-G-43 were withdrawn from the subjects of the said detached areas. The result was that the subjects of the said areas became liable to payment of the prescribed fees.

The Saurashtra State has continued in force the abovesaid Huzur Order No. 120 dated 12-10-43 as modified by Huzur Order No. 108 dated 28-8-47 and in consequence thereof whereas no tuition fee& are charged to subjects either of the former Limbdi or Lakhtar States, tuition fees are charged to persons who are not the subjects of the former Limbdi. State or Lakhtar State.

The Petitioner is a resident of Khambhlav, a village formerly under the Wadhwan Bhoika Thana and now in the Limbdi Taluka of the Jhalawad District, and is studying in the v. Hth Standard in Sir Jaswantsinhji High School, and he is required to pay tuition fees.

By this petition he contends that the ordeiv meaning the Huzur Order No. 120 dated l2-l0-43" as modified by Huzur Order No. 108 of 28-8-47, which is continued in force by the Saurashtra1 State, Is void because it infringes his fundamental. Right of equality under the law and equal protection of the laws and also because it 3s discriminatory and violates Article 15 of the Constitution.

The facts are not disputed by the Saurashtra State, but the State opposes the petition on the ground that the Petitioner has no fundamental right to receive free education, that the Huzur Order of the former Limbdi State, which is Impugned, is in the nature of an administrative direction or departmental arrangement, and is not ''law'' within the meaning of Article 13 of the Constitution. It denies that there is any violation of either Article 14 or 15 of the Constitution, and contends that even if there was any ''discrimination'' it was not on any of the grounds specified in Article 15.

On the question whether the impugned order is a ''law'' so as to attract the application of Article 14, the Petitioner''s contention that being your ''order'' passed by the Limbdi State, and having: been continued in force by the Saurashtm State it is covered by the definition of "have" contained in Article 13(3) (a).

On the formation of the United Stale of Saurashtra, which later became the State of Saurashtra, an Ordinance No. 1 of 1948 was promulgated'', by the Raj Pramukh by Section 4 whereof all laws. Ordinances, Acts, Rules, Regulations, etc., havinp the'' force of law in the merged States, Estates or Taiu-kas, were to continue to remain in force until repealed or amended and they were to be construed em if references In them to the Ruler of the State were references to the Raj Pramukh.

It is trua the word "Order" was not specifically stated in Section 4, but by Section 7 of Ordinance No. 4 of 1948 it was provided that references in any law, order, rule, regulation, notification or by-law continued in force by Section 4 of Ordinance No. 1 of 1843, -.to the authorities, officers etc., mentioned in col. 1 were to be construed as references to the authorities, officers etc., mentioned in col. 2 of the said .table.

Reading the two provisions together therefore it Is plain that an ''Order'' of the former Satftto, Estate or Taluka was to continue in force Tempter Section 4 of Ordinance'' No. 1 of 1948. The Hmsur Order, which is impugned, had tile force of law ''and that is the order which is continued In force and is being applied by the Saurashtra State.

It is by virtue of this order that at present whereas fees are levied from students who are not residents of the former Limbdi or Lakh tar State, no fee is charged to'' students of the former Limbdi: or Lakhtar State & free education is given to them. It is perfectly immaterial whether the Saurashtra State has continued the above said Huzur Order as .a departmental arrangement or that the continuance is m the nature of an administrative direction, and to endeavour to distinguish the case on this ground is merely to side-track the real issue.

What is in issue is the continuance of the Huzur Order and to the method by which that order is being continued or enforced. As it happens, the Saurashtra State has not passed any orders at all in this respect and the Huzur Order is continued as of old by virtue of Section 4 of Ordinance No. 1 of 1941. Therefore, there is no real basis for the contention that it is an administrative direction or an executive order of the Saurashtra State.

The Kuzur Order in question embodied the policy of the Limbdi State in the matter of imparling secondary education and although it was not a ''Dhara'' or''law enacted by the said State, it I was still an order which had the force of law.

The decision in Om Parkash v. State of Punjab, 1951 Punj 93 (AIR v. 38) (A) relied on by the learned Advocate-General, is distinguishable on the facts because there what was in issue were rules framed for admission of students to a College and: as these were mere rules, they were properly not held as ''law'' as defined in Article 13(3)(a). "''Law" is there defined as including any Ordinance, Order, bye-law, rule, regulation, notification, custom or usage having in the territory of India'' the force of law.'' The definition of "law" as given above does not relate merely to law in Clause (2) of Article 13 but also to the words "laws in force" in Article 13(1). It applies to the conception of law for the whole purpose of the Article, and therefore applies also to the conception of law in Use expression "laws in force".

This point has been dealt with in some detail in "State of Bombay v. Narasu Appa'', 1952 Bom 84 (AIR v. 39) (B) and Ohagla C. J. has there rejected the construction contended for by the Solicitor General, viz,, that the definition of law only applies to Article 13(2) and not to Article 13(1), observing that custom or usage would have no meaning if it were applied, to the expression "law" in Article 13(2) Uec&use trie State cannot make a custom or usage. The question has been considered in a lucid "nd exhaustive note in the Constitution of India by Chitalcy and Rao. Vol. I (N. 2 at pp. 183-184), which is in accord with the view of Chagla C.J., and we are in agreement with thjs view.

Therefore, the impugned Huzur Order is covered by the expression "law" as defined in Article 13(3)(a), and since that definition also applies to the words "laws in force" in Article 13(1), it would follow that the said Order was a "law" in force in the Saurashtra State from before the Constitution, and in case it" is found inconsistent with the fundamental rights, it will be void to the extent of such inconsistency. In this view, if is unnecessary to consider whether an administrative or executive order is covered by the expression "law".

On'' the question whether Article 14 is infringed, the learned Advocate-General''s initial objection is that the Petitioner has no fundamental right; to free education but that again is iw; the question at issue.

The Petitioner, himself .does not claim any light to free education, What he claims is equail-ty before the law and equal protection and hit-, contention is that to charge ''eke to the non-Limbdl ''and non-Lakhtar State students studying in school and not to charge It to the Limbdi and Lak-hta: Slate students denies to him equality lie fore the law and equal protection of the laws and therefore infringes his right guaranteed in Article 14.

That the impugned order does deny him such equality before the law cannot be disputed; all the same the operation of that Article will be optical ed only if it can be shown that the classification is unreasonable or arbitrary, and does not rest on any rational basis having regard so the object in view.

Dealing with the scope of the guarantee which is implied in the equal protection clause of one Constitution Mukherjea J. has observed in Kathl Rantng v. State of Saurashtra 1952 SC 123 GUJ v. 39) (C):

It is well settled that a Legislature for the purpose of dealing with the complex problems that arise out of an infinite variety of human relations, cannot but proceed upon some sort of selection or classification of persons upon whom the legislation w to operate. The consequence of such classification would undoubtedly be to differentiate the persons belonging to that class from Ors. , but that by itself would not make the legislation obnoxious to the equal protection clause.

Equality prescribed by the Constitution would not he violated if the Statute operates equally on all persons who are included in the group, and the classification, is not arbitrary or capricious, but bears a reasonable relation to the objective which the legislation has in view. The Legislature is given the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differences made have no rational relation to the objectives of the regulation that necessity of judicial interference arises.

In the same case Das, J. expressed himself as follows:

It is now well established that while Article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation, In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classifications, before on an intelligible differentia which distinguish persons or things that are grouped from Ors. left out of the group and (2) that; that differentia must have a rational relation to the object sought to be achieved by the Act. What la necessary is that there must be a nexus between the basis of classification and the object of the Act.

Mukherjea J. has referred to this question of Use scope of the guarantee under Art, 14 in Ameerunnissa Begum and Others Vs. Mahboob Begum and Others, , and has said:

it is well settled that a Legislature which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power making. special laws to attain particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate.

Mere differentiation or inequality of treatment does not ''per se'' amount discrimination within the Inhibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object whirl; the Legislature has in view. Ram Prasad Narayan Sahi and Another Vs. The State of Bihar and Others, , Mukherjea J. says:

What this clause aims at is to strike down hostile discrimination or oppression of inequality. As the guarantee ''applies to all persons similarly situated, it is certainly open to the Legislature to classify persons and things to achieve particular legislative n''yjects; but such selection or difference not be arbitrary and should rest upon a rulrnml basis, having regard to the object which tlie Lijjislature- has in view.

(See also Rutom v. State of Madhya Bharat AIR 1954 MP 119 ( v. 41) (F), Nagardas Lalubhai v. Jagsi Bhikha, AIR 1953 Sau 58 ( V,40) (G), Shrl-kisan v. Dattu Shiwaram AIR 1953 Nag 14 (AIR v. 40) (ID. and Shiv Kaiyan Sindv v. Bhur Singh, 1951 Raj ifta (A''Clt v. 41) (I). The same thing has been wild liv Mhagwul.l .J. in Siikhuwant All v. State or Orlssa. 1955 SC Ki(J ( fS) Allt v. 42) (J), though in other terms. He observes:

Article 14 forbids class legislation but docs not forbid reasonable classification for the purposes of legislation. That classification however cannot be arbitrary but must rest upon some real ''am distinction bearing a reasonable� and just relation to the things in respect of which classification is made. In other words the Classical must have a reasonable relation to the object or the purpose sought to be achieved (by the impugned legislation.

Now here the impugned order contains a classification of students studying in the Sir Jas-wantsinhji High School, Limbdi, into two groups, the first being a group of students who were subjects of the former Limbdi or Lakhtar State, and second of the non-Llmbdi or non-Lakhtar State students and this classification is continued by the Saurashtra State.

Now so far as ash Limbed State was concerned, it did not owe any duty to the latter group of students, and If they were admitted in the School, that was by way of giving some facility and the admissions too depended upon the vacancies which Therefore in effect there was no real clarion ill, tile time of the former Limbdi State, and to contend that such a classification existed even then as is done by the learned Advocate-General, is not correct.

No question of local or municipal considera-Hons could at all arise during the regime of the former Limbdi State in so far as the non-Limbdi md tion-Lftkhtur citato students were concerned, because they were, what the order called, outsiders. Therefore the Saurashtra State cannot justify the enforcement of the impugned order on the ground that tlie classification existed before and has been continued by it.

The classification, as it exists, can be justified provided it bears a reasonable and Just relation to (Sepn.) 1956 Sau. D.F-/4/(2) & 5/(1) the things in respect of which it is made. As to this, it is contended by the learned Advocate-General that this was. an ameliorative measure adopted by the Limbdi State for the welfare of the subjects of the former Limbdi and Lakhtar States designed to raise the educational standards of those States and that it could not be said to constitute discrimination merely because similar ameliorative measures may not have existed in the other parts of the Saurashtra State. He referred to the decisions of the Rajasthan High Court in Madan Singh and Others Vs. Collector Sikar, and Raja Harisingh and Another Vs. State of Rajasthan and Others, .

In the former case the question related to Local Self governing institutions in the shape of the District Boards which were set up by the erstwhile Jaipur State under the Jaipur District Hoard:; Act and the contention made was that the Act applied only to those parts which formerly comprised Jaipur State and did not apply to any other part of Rajasthan, and that the Act created the liability to pay cases upon the State grantees and cultivators of those parts only to which it applied.

It was urged therefore that this resulted in discrimination between the citizens of one part of Rajasthan State and those of other parts because whereas particular classes of one part were liable to pay the cases, those very classes of other part were not liable.

The question arose whether the privilege, which the part of the former Jaipur State had of having these institutions should be continued when there were no similar institutions in the remaining part of the Rajasthan State. The contention made for the Petitioners was repelled and it was held:

In the present case, as has been said above, there is a basis for reasonable classification inasmuch as the parts of the present State of Rajasthan comprised in the erstwhile Jaipur State were considered to be lit enough to have local self governing institutions in the shape of District Boards under the Act. They had, therefore, the privilege of having self governing local institutions before the present State of Rajasthan came into being.

It is therefore quite justifiable that the privilege they had from before may be continued even after the establishment of the present State of Rajasthan. The Constitution in its directive principles encourages the establishment of local self governing institutions.

The-Government of the State of Rajruithan is contemplating to extend such institutions to the entire State of Rajasthan. It, therefore, did not consider it proper to withdraw the privileges which, had already been given to those parts which were formerly comprised in Jaipur State.

It cannot be said that in doing so it made un-reasonable discrimination between these parts and oilier parts of liajivslhan. The guarantee of equal protection does not prevent the State from applying different laws or different systems of judicature to different parts of local conditions, for the clause does not secure to all persons the benefit of the same laws and same remedies.

If the Petitioners were not liable to pay the cases under the Act, they would have no grudge cifjrUnst the Act which gave to the inhabitants of the erstwhile State of Jaipur the benefit of self governing Institutions like the District Boards. Simply because for the privilege given by the Act, the Petitioners have to contribute their mite to the upkeep of those institutions and for carrying out of their purposes, it cannot be said that any unfair discrimination has been made between them and the inhabitants of other parts of Rajasthan.

In the other case, the Marwar Land Revenue Act and the Marwar Tenancy Act ''Wert: Impugned as unconstitutional and void on the around that they created Uaertwiiim tion and repelling this contention it was,'' held that it was not necessary that the laws should be exactly the same, for so long as there are almost similar laws in other areas, discrimination can-nick be, said to arise.

It was also held that the laws were progressive ''rind designee'' to raise the economic status of agriculturists of Marwar and that if such a law existed in a former Indian State and did not exist in rather States which integrated to form the State of ilaJaMhau, it would be wrong to declare such progressive and ameliorating measures invalid, and thus brio Chef progressive States to the level of that up progressive States.

The'' effort be to bring the unprogres-elve States to the level of the progressive Stabon which the Rajasthan State was attempting to do, Tlv se two cases were referred to in The State of Rajasthan Vs. Rao Manohar Singhji, , and the principle there laid down was approved by the Supremo Court.

The impugned Huzur Order of the Limbdl State Inasmuch as it provided for free education I to Its students in this High School was indeed a progressive and ameliorative measure, designed for raMoij the educational level of its subjects. The Llmbdi State owed no duty to Ors. and simply because it admitted students of outside places on charging lees to them, the measure would not cease to be ameliorative. This "order" applies to all parsons who are former Llmbdi State subjects and no out of them is excluded.

The measure does not become discriminatory simply because Ors. studying in the same school coots get its benefit and are charged fees. It is argued that in the Rajasthan cases all the subjects of the former Jaipur and Marwar States respectively received the benefit of the Acts, whereas here a student studying in the same school is densities the same privilege of free education, The argument ''cools impressive at first blush but it does not stand scrutiny on a closer examination, The pivotal factor is not the same school, but the privilege of free education in it, and this is continued to all students who belong to the former Limbdi or Lakhtar States, and no one of them is discriminated against.

Secondary education is not free in the Saura-irtra State and this only operates as an exemption and take effort is to uphold the progressive measure of a former component State, and it would be wrong declare such a progressive and ameliorative measure Invalid and bring down this part of the Saurashtra State to the level of the other parts.

To impart free secondary education is indeed a laudable objective and whether it can be achieved all. over the Saurashtra State or not, it still is an attempt towards the achievement of the directive principle of State policy contained in Article 45 of the Constitution, viz., for the provision of free and compulsory education for children till the age fourteen years, however, limited and incomplete It might be. We cannot therefore accept the Petitioner''s contention that the impugned order is discriminatory and is hit by Article 14.

Turning to the alleged infringement of Article 15 of the Constitution, according to Huzur Order No. 120 dated 12-10-43 a person who fulfils the conditions prescribed by the definition of the expression "resident" in" Section 3(11), Limbdi State Varsa (Succession) Act 2 of 1928, was eligible for free education in this school.

By that definition a person who resided within the Jurisdiction of the Lambdas Suite or who owned Immovable property within the Limbed State was considered to be a resident of the Limbed State; so that the status of a subject was conferred on the ground of residence and the person will made himself eligible by the fulfillments of the conditions wan considered to be a State subject, The discrimination arising from a denial of the benefit of free education m this school to the noh-Limbdi and non-Lakhlar students therefore arises on the ground of residence and not on any of the grounds mentioned in Article 15 of the Constitution, Even if a ''person, was bam outside the. Limbed State, he could acquire the status of a resident of the State by fulfilling the requirements of Section 3(11) of the Act and no distinction was made on account of mere place of birth, Therefore the classification here rests on the ground of residence, and does not infringe Article 15. (See D.P. Joshi Vs. The State of Madhya Bharat and Another, ),

The petition therefore fails on both the grounds contended before us and is dismissed. In the circumstances we make no order as to costs.

Baxi, J.

I agree.