if the policy decision itself is contrary to the law and is arbitrary and irrational, powers of judicial review must be exercised.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO. 5068 OF 2023
(ARISING OUT OF SPECIAL LEAVE PETITION (C) No.20743 OF 2021)
DEVESH SHARMA  Appellant
Versus
UNION OF INDIA AND ORS. Respondent(s)
....
36. The introduction of B.Ed. as a qualification by NCTE on the
directions of the Central Government is a policy decision of the
Government, as has been submitted before this Court, and is also
evident from the sequence of events, the minutes of the various
meeting and the order passed in this regard. Section 29 of NCTE
Act which mandates that NCTE must follow the directions of the
Central Government in discharging of its functions. It is a policy
decision which binds NCTE.
We have absolutely no doubt in our mind that policy
decisions of the Government should normally not be interfered
with, by a constitutional Court in exercise of its powers of judicial
review. At the same time if the policy decision itself is contrary to
41
the law and is arbitrary and irrational, powers of judicial review
must be exercised.
A policy decision which is totally arbitrary; contrary to the
law, or a decision which has been taken without proper
application of mind, or in total disregard of relevant factors is
liable to be interfered with, as that also is the mandate of law and
the Constitution. This aspect has been reiterated by this Court
time and again.
Judicial review becomes necessary where there is an
illegality, irrationality or procedural impropriety. These principles
were highlighted by Lord Diplock in Council of Civil Service
Unions v. Minister for the Civil Service17 (commonly known as
CCSU case). The above decision has been referred by this Court
in State of NCT of Delhi v. Sanjeev18. This view was reiterated
again by this Court in State of M.P. & Ors. v. Mala Banerjee19 :-
6. We also find ourselves unable to
agree with the appellants' submission
that this is a policy matter and,
therefore, should not be interfered with
by the courts. In Federation of Railway
Officers Assn. v. Union of India [(2003) 4
SCC 289] , this Court has already
considered the scope of judicial review
17 (1984) 3 All ER 935 : 1985 AC 374 : (1984) 3 WLR 1174 (HL)
18 (2005) 5 SCC 181
19 (2015) 7 SCC 698
42
and has enumerated that where a policy
is contrary to law or is in violation of the
provisions of the Constitution or is
arbitrary or irrational, the courts must
perform their constitutional duties by
striking it down...
In Brij Mohan Lal v. Union of India20 this Court reiterated
on this aspect and made out a distinction as to where an
interference to a decision is required, and whereas it is not :-
100. Certain tests, whether this Court should
or not interfere in the policy decisions of the
State, as stated in other judgments, can be
summed up as:
(I) If the policy fails to satisfy the test of
reasonableness, it would be
unconstitutional.
(II) The change in policy must be made
fairly and should not give the
impression that it was so done
arbitrarily on any ulterior intention.
(III) The policy can be faulted on grounds
of mala fides, unreasonableness,
arbitrariness or unfairness, etc.
(IV) If the policy is found to be against any
statute or the Constitution or runs
counter to the philosophy behind these
provisions.
20 (2012) 6 SCC 502
43
(V) It is dehors the provisions of the Act or
legislations.
(VI) If the delegate has acted beyond its
power of delegation.
101. Cases of this nature can be classified
into two main classes: one class being the
matters relating to general policy decisions of
the State and the second relating to fiscal
policies of the State. In the former class of
cases, the courts have expanded the scope of
judicial review when the actions are arbitrary,
mala fide or contrary to the law of the land;
while in the latter class of cases, the scope of
such judicial review is far narrower.
Nevertheless, unreasonableness,
arbitrariness, unfair actions or policies
contrary to the letter, intent and philosophy of
law and policies expanding beyond the
permissible limits of delegated power will be
instances where the courts will step in to
interfere with government policy.
The decision whether to include or exclude B.Ed. as a
qualification for teachers in primary school is an academic
decision, which has to be taken after proper study by the
academic body i.e. NCTE and should be better left to this expert
body.
But as we have seen the decision to include B.Ed. as a
qualification is not an independent decision of NCTE, but it was
the decision of the Central Government and NCTE was simply
44
directed to carry it out for that being a direction under Section 29
of NCTE Act, a direction NCTE followed.
In the present case and in the larger context of the matter,
we cannot even see this as a policy decision. But without getting
into this argument, even presuming for the sake of argument that
the decision taken at the Government level to include B.Ed. as a
qualification for teachers at primary level is a policy decision, we
must say that this decision is not correct as it is contrary to the
purpose of the Act. In fact, it goes against the letter and spirit of
the Fundamental Right enshrined in the Constitution under
Article 21A. It is against the specific mandate of the Act, which
calls for a free, compulsory and meaningful primary education to
children. By including B.Ed. as a qualification for teachers for
primary school, the Central Government has acted against the
provisions of the Constitution and the laws. The only logic given
by the Central Government to include B.Ed. as a qualification is
that it is a higher qualification. This we have already seen is not
correct. Under these circumstances, we have no hesitation to say
that the notification has rightly been quashed and the decision of
the Division Bench of the Rajasthan High Court has to be upheld.
45
In our considered opinion therefore the direction of the
Central Government dated 30.05.2018 culminating in the
notification dated 28.06.2018 of NCTE are violative of the
principles as laid down in RTE Act. Not only this, the notification
goes against the purpose and the mandate of law, which is to
provide a meaningful and quality primary education to children.
The entire exercise is also procedurally flawed. The
notification dated 28.06.2018 is not an independent decision of
NCTE taken after due deliberation, but it simply follows the
direction of the Central Government, a direction which fails to
take into consideration the objective realities of the day.
Having made the above determination we, all the same, are
also of the considered opinion that the State of Rajasthan was
clearly in error in not calling for applications from B.Ed. qualified
candidates, for the reasons that till that time when such an
advertisement was issued by the Rajasthan Government, B.Ed.
candidates were included as eligible candidates as per the
statutory notification of NCTE, which was binding on the
Rajasthan Government, till it was declared illegal or
unconstitutional by the Court. The Rajasthan High Court had
rightly observed as under :-
46
..we are of the opinion that the State
Government could not have ignored the
notification while inviting applications for
REET. Even if the State Government was of
the opinion that such notification was
unconstitutional or for any reason illegal, the
same had to be stayed or set aside by a
competent court before it could be ignored.
 [Para 45 of the Impugned Judgement]
What the Rajasthan High Court had stated above is the
settled legal position. In a recent three Judge judgment of this
Court in State of Manipur & Ors. v. Surjakumar Okram &
Ors.
21 this position that a statute which is made by a competent
legislature is valid till it is declared unconstitutional by a court
of law; has been reiterated.