SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 1 of 13
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NOS. 18475-18476 OF 2013
State of Kerala & Anr. …..Petitioners
Vs.
Mythri Vidya Bhavan English M. Sch. & Ors. …..Respondents
WITH
SLP(C) Nos. 4531-4532/2014, SLP(C) No.
4530/2014, SLP(C) Nos. 23142-23146/2013, SLP(C)
Nos.23138-23140/2013, SLP(C) Nos. 29655-
29658/2013, SLP(C) Nos. 29781-29783/2013,
SLP(C) Nos. 29560-29561/2013, SLP(C) Nos.
33438-33439/2013, SLP(C) Nos. 29660-29662/2013,
SLP(C) Nos. 83-86/2014, SLP(C) Nos. 31934-
31936/2013, SLP(C) Nos. 79-80/2014, SLP(C) No.
39339/2013, SLP(C) No. 37208/2013, SLP(C) Nos.
76-77/2014, SLP(C) No. 81/2014, SLP(C) No.
82/2014, SLP(C) Nos. 4534-4536/2014
JUDGMENT
Madan B. Lokur, J.
1. The fundamental right to free and compulsory education to all
children between the age of 6 and 14 years postulates good quality
education and not just education for the sake of providing education.
Regulation of such education is permissible by law and not by
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 2 of 13
executive fiat. Unfortunately, in this batch of petitions, the State of
Kerala seeks to impose its authority over schools that provide
apparently quality education, which is perceived to be a threat to the
public education system in the State.
2. The challenge by the State of Kerala in this batch of petitions is
to the judgment and order dated 14th September, 2012 passed by a
Division Bench of the High Court of Kerala. In our opinion, all these
petitions deserve to be dismissed.
Brief background
3. Without going into any great detail into the history (which is
replete with litigation – as if schools have nothing better to do) leading
up to these petitions, it needs to be said that the affiliation of schools by
the Central Board of Secondary Education (CBSE) is governed by its
Affiliation Bye-laws. Clause 3(i) of the Bye-laws mandates formal
prior recognition by the State/Union Territory Government.
Additionally, the application for affiliation should be forwarded by the
State Government or there should be a No Objection Certificate (NOC)
to the effect that the State Government has no objection to the
affiliation of the school with the CBSE.
4. Apparently with this in mind, the State of Kerala issued certain
guidelines on 13th June, 2007 limiting consideration of applications for
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 3 of 13
grant of an NOC to 5 northern districts in the State. The Government
Order (G.O.) was challenged by the management of some schools and
it was set aside by the High Court.
5. Against the decision rendered by the High Court, petitions for
special leave to appeal were filed by Kerala which were taken up for
consideration on 18th July, 2011. By that time, Kerala had come out
with a new policy dated 10th June, 2011 which made the petitions
infructuous. The relevant extract of the order passed by this Court on
18th July, 2011 reads as follows:
“Delay condoned.
The State Government has filed these SLPs challenging the
order of the High Court directing consideration of the
applications filed by the respondents for grant of ‘no objection
certificate’ for seeking affiliation with Central Board of
Secondary Education (for short ‘CBSE’) for a new
institution/existing institutions. The State Government had
earlier rejected the request with reference to the Policy of the
State Government then in force.
When the matter came up today, both sides submitted
that the State Government has now made a new Policy
contained in G.O.(MS) No.137/2011/G. Edn. dated 10.6.2011
which reads as under:
“Government are pleased to accord sanction for issuing
No Objection Certificate for getting CBSE/ICSE
affiliation to schools, which totally fulfils the norms and
conditions prescribed by CBSE/ICSE and having own
land and basic facilities.
Further guidelines will be issued by the Department in
due course.”
In view of the said Policy, it is submitted that these
SLPs by the State Government have become infructuous as the
State Government will have to consider the applications of the
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 4 of 13
respondents with reference to the said new Policy dated
10.6.2011 and pass appropriate orders within three months
from today.
It is needless to say that if the respondents-applicants
are aggrieved by any order passed on such consideration, they
will be entitled to challenge the same in accordance with law.
…………….”
6. It is significant to note that the last line of the G.O. dated 10th
June, 2011 stated that further guidelines would be issued by the
concerned department in due course.
7. These further guidelines as postulated by the G.O. dated 10th
June, 2011 came to be issued on 7th October, 2011. These (new)
guidelines were not supplementary but a completely extra set of
guidelines that prescribed norms for the grant of an NOC to new
schools for affiliation to CBSE and for existing schools for renewal of
affiliation under the CBSE Affiliation Bye-laws. According to learned
counsel for the schools, this was quite unexpected and unnecessary
8. Be that as it may, the management of several schools objected to
some of the guidelines. The objections were to the following
guidelines:
“iv. The institution should have minimum 3 acres of land, out
of which at least 2 acres shall be in the actual location where
the school is functioning in a contiguous manner. It should
have adequate playground also. There should be a library and
adequate number of laboratories.
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 5 of 13
vi. The medium of instruction must be English. However
Malayalam will be compulsorily taught as a paper with a
prescribed text book and a proper academic evaluation as
instructed by State Government from time to time.
viii. The school shall appoint only qualified and eligible staff
and must pay the salary and allowances and other benefits to
the employees of the school. Employees in the CBSE/ICSE
school shall be offered the same pay scales as in Government
Schools for equivalent categories. The pay shall start at the
minimum of the scale and employees shall be eligible for DA
and increments as is allowed in Government Schools from time
to time.
xiv. The school should have been in existence for a period of
five years as on the date of application for NOC and should
have at least 300 students in its rolls. The UIID enrolment
should be completed and UIID numbers of the students
enrolled in the school shall be furnished.”
9. These guidelines were challenged by some schools by way of
writ petitions in the High Court. A learned Single Judge of the High
Court heard the writ petitions challenging the G.O. of 7th October, 2011
and by an interim order passed on 20th April, 2012 stayed the operation
of guidelines (iv) and (xiv).
10. Kerala filed a writ appeal challenging the order of the learned
Single Judge and upon hearing learned counsel, the Division Bench
was of the view that the decision in the writ appeal would render all the
pending writ petitions before the learned Single Judge infructuous.
Therefore, with the consent of all the parties to the litigation, it was
decided that all the writ petitions and the writ appeal should be heard
by the Division Bench so that there is some finality to the dispute.
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 6 of 13
11. By the impugned judgment and order dated 14th September,
2012, the High Court struck down clause (iv) and (xiv) of the
guidelines dated 7th October, 2011 and it is under these circumstances
that the present petitions have been filed by Kerala and taken up for
consideration.
12. At the outset, we may note that although initially four guidelines
were under challenge before the learned Single Judge but before us it
was stated by learned counsel for school managements that they do not
press the challenge to guidelines (vi) and (viii). We are, therefore,
concerned only with guidelines (iv) and (xiv) pertaining to a school
seeking affiliation requiring minimum 3 acres of land and a minimum
300 enrolled students.
Requirement of minimum 3 acres of land
13. According to Kerala, a school seeking an NOC for affiliation to
the CBSE must have 3 acres of land out of which 2 acres should be
contiguous and in the actual location of the school. We have not been
shown any basis for this mandate, applicable to all schools across the
board.
14. On the other hand, the CBSE appears to have done its homework
in framing the Affiliation Bye-laws and making a realistic assessment
of the requirements of schools depending on their location.
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 7 of 13
15. In Chapter IV of the Kerala Education Rules, 1959 (for short
‘KER’), we have been informed by learned counsel for Kerala that it is
provided that Upper Primary Schools with or without Lower Primary
Section (that is up to and including Standard V and VI), the land
requirement (as informed) is 1.2 to 2 hectares (3 to 5 acres); for
Secondary Schools the land requirement is 1.2 to 2 hectares (3 to 5
acres) and for Higher Secondary Schools the land requirement is 1.2
hectares (3 acres). Hence the minimum requirement is of 3 acres of
land. However, the KER provides that every school should normally
have a minimum site area as indicated above.
16. Contrast this with the CBSE Affiliation Bye-laws. Under these
Bye-laws, the minimum land requirement varies from location to
location. The requirement generally for an educational institution to
apply to the CBSE for affiliation is that the school must have 2 acres of
land but there are certain exceptions. For example, in cities with a
population exceeding 25 lakhs the land should not be less than 1 acre
with adequate building and arrangement with other
institution/organization for imparting physical and health education and
for conducting games to the satisfaction of the CBSE. In hilly areas, the
land should not be less than 1 acre and the norms as prescribed by the
Planning Commission would be applicable for determining hilly areas.
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 8 of 13
17. Similarly, in schools located within the Municipal limit of the
capital cities, islands, North Eastern States and Jammu & Kashmir the
minimum land requirement shall be 1 acre. In other words, the CBSE
has introduced a degree of flexibility depending upon the location of
the school. Unfortunately, Kerala has not even thought of providing
any such flexibility. It appears to us that the rigid requirement of
Kerala indicates that it is imposed upon the schools that seek affiliation
with the CBSE only with a view to unnecessarily burden them with an
onerous and arbitrary condition, since Kerala believes it has the
authority to do so.
18. Keeping all this in mind, we had required Kerala by an order dated
6
th December, 2016 to inform us the number of schools run by the State
Government or aided by the State Government or affiliated with the State
Board that do not comply with the guidelines of 7th October, 2011. In
response, Kerala filed an evasive affidavit to the effect that since the
guidelines do not apply to such schools, there is no compulsion on such
schools to comply with them. This is remarkable – guidelines are framed
by Kerala for application by schools other than those run by the State
Government or aided by the State Government or affiliated with the State
Board. There is no reason given for this distinction drawn by Kerala
which appears to be completely arbitrary.
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 9 of 13
19. It was submitted on behalf of Kerala that nevertheless the State
Government was well within its rights and authority to provide for a
minimum of 3 acres of land for the grant of an NOC. While this may be
so, the requirement must have some rational basis but we are unable to
find any such rational basis. Even in the counter affidavit filed before
the learned Single Judge it is stated by Kerala that restrictions have
been placed on CBSE schools to prevent their mushrooming growth
which would affect the public education system in the State. No details
have been given for arriving at this conclusion. But the very fact that
there is a mushroom growth of CBSE schools is an indication that the
public education system in Kerala as managed by the State Government
leaves something to be desired in terms of the quality of the education.
How does the restriction imposed by Kerala benefit the children of the
State?
20. As mentioned above, the CBSE has done its homework well and
has taken a pragmatic view of the requirement of land. We can take
judicial notice of the fact that in metropolitan and capital cities as well
as in hilly areas, it would be difficult to get 3 acres of land or even 2
acres of land. Similarly, due to the terrain it would perhaps be difficult
to get adequate land in the North Eastern region of the country as well
as in Jammu & Kashmir. This realism deserves to be contrasted with
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 10 of 13
non-realistic inflexibility of Kerala which too has some hilly areas
where perhaps it might be difficult to find 3 acres of land. It is this lack
of pragmatism and arbitrary rigidity that has weighed with the High
Court as well as with us in coming to the conclusion that guideline (iv)
requiring a minimum of 3 acres of land for obtaining an NOC for
getting affiliation in accordance with the Affiliation Bye-laws of the
CBSE is arbitrary and was deservedly struck down by the High Court.
Minimum enrolment of 300 students
21. The second challenge is with reference to the minimum strength
of students being 300 in a school that seeks affiliation with the CBSE in
terms of guideline (xiv).
22. At this stage, it may be mentioned that in Queen Mary Public
School v. State of Kerala1
the High Court held that the requirement of
500 students on the rolls for affiliation of the school from Standard I to
Standard X is contrary of the CBSE Affiliation Bye-laws and is not
rational or sustainable. Notwithstanding this, Kerala has insisted on the
number of students on the rolls being at least 300 for the issuance of an
NOC. Since there is no such requirement under the CBSE Affiliation
Bye-laws - this is merely an unwarranted imposition by Kerala on
school managements.
1
(2007) 4 KLT 706
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 11 of 13
23. The question of affiliation with the CBSE would arise only when
the school reaches at least Standard VI. In this regard, clause 15.1(a) of
Chapter III of the Affiliation Bye-laws is relevant and this provides as
follows:
“15.1.(a) The schools fulfilling the norms of Affiliation given
in Chapter-II may apply ‘On-line’ to the Board for approval of
Middle Class Syllabus/provisional affiliation for secondary/
upgradation of Senior Secondary Classes on the prescribed
from alongwith prescribed fee given in Appendix II before 30th
June of the Year preceding the year in which Class VI/IX/XI as
the case may be is proposed to be started. Application Forms,
procedural details and Affiliation Bye-Laws for submission of
applications ‘on line’ are available on the Boards website
www.cbse.nic.in. Application submitted by post or by any
other means will not be processed.
All the applications which are received by CBSE on or before
30th June every year may be processed together within a period
of six months thereof. The order of granting or refusing the
affiliation shall be communicated to the applicants on or before
31st December of that year.”
24. The High Court took the view that progressive stages of
affiliation has a rational basis while the prescription of having a
minimum of 300 students for obtaining an NOC does not have any such
basis. Again, we do not find any reason for this requirement in the
counter affidavit filed by Kerala in the High Court except that it has the
authority to make such a prescription.
25. The illustration given by the High Court in this regard is
apposite. The Right of Children to Free and Compulsory Education
Act, 2009 (the RTE Act) requires a student-teacher ratio of 30:1. A
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 12 of 13
school having 30 children in one class and having one division will
have only 180 students upto and including Standard VI. Such a school
cannot, therefore, obtain provisional affiliation for secondary or senior
secondary classes. Actually, such a school would not be eligible for
affiliation till Standard X when it has 300 students – and it can never
reach that stage since Standard IX and X can be started only if the
school has CBSE affiliation. Kerala is, therefore, expecting an
impossibility from such schools that strictly conform to the provisions
of the RTE Act.
26. On the other hand, under the KER the minimum effective
strength per standard in Lower Primary/Upper Primary and High
Schools is 25 students (it would now have increased to 30 students). It
is only for schools seeking CBSE affiliation that it is prescribed that the
number of students should not be less than 300. We do not see how, if
the number of students is less than 300, it will detract from the quality
of education imparted to the students. In other words, the requirement
of a minimum strength of 300 students is a completely arbitrary figure
arrived at by Kerala and which has no rational nexus with quality
education or the CBSE Affiliation Bye-laws.
27. According to learned counsel for Kerala, if a school does not
have a minimum of 300 students, it would be difficult for that school to
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 13 of 13
pay the required wages of the staff and the teachers except by charging
exorbitant fees. There is no material on record to substantiate such a
conclusion and it is based merely on the ipse dixit of the State. In the
absence of any material on record justifying the fixation of a minimum
of 300 students in a school seeking an NOC for affiliation to the CBSE,
we must hold the requirement as arbitrary and we do so.
28. Another issue raised by the management of schools is with
regard to the compulsory unique identification (UID) for enrolment of
students. We leave this issue open, as suggested by learned counsel, to
await the decision of Constitution Bench of this Court which is
presently seized of the requirement of UID.
29. For the aforesaid reasons, we find no merit in these petitions
which are accordingly dismissed. The interim applications stand
disposed of.
..………………………J
(Madan B. Lokur)
New Delhi .……………………J
May 2, 2018 ( Deepak Gupta )
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NOS. 18475-18476 OF 2013
State of Kerala & Anr. …..Petitioners
Vs.
Mythri Vidya Bhavan English M. Sch. & Ors. …..Respondents
WITH
SLP(C) Nos. 4531-4532/2014, SLP(C) No.
4530/2014, SLP(C) Nos. 23142-23146/2013, SLP(C)
Nos.23138-23140/2013, SLP(C) Nos. 29655-
29658/2013, SLP(C) Nos. 29781-29783/2013,
SLP(C) Nos. 29560-29561/2013, SLP(C) Nos.
33438-33439/2013, SLP(C) Nos. 29660-29662/2013,
SLP(C) Nos. 83-86/2014, SLP(C) Nos. 31934-
31936/2013, SLP(C) Nos. 79-80/2014, SLP(C) No.
39339/2013, SLP(C) No. 37208/2013, SLP(C) Nos.
76-77/2014, SLP(C) No. 81/2014, SLP(C) No.
82/2014, SLP(C) Nos. 4534-4536/2014
JUDGMENT
Madan B. Lokur, J.
1. The fundamental right to free and compulsory education to all
children between the age of 6 and 14 years postulates good quality
education and not just education for the sake of providing education.
Regulation of such education is permissible by law and not by
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 2 of 13
executive fiat. Unfortunately, in this batch of petitions, the State of
Kerala seeks to impose its authority over schools that provide
apparently quality education, which is perceived to be a threat to the
public education system in the State.
2. The challenge by the State of Kerala in this batch of petitions is
to the judgment and order dated 14th September, 2012 passed by a
Division Bench of the High Court of Kerala. In our opinion, all these
petitions deserve to be dismissed.
Brief background
3. Without going into any great detail into the history (which is
replete with litigation – as if schools have nothing better to do) leading
up to these petitions, it needs to be said that the affiliation of schools by
the Central Board of Secondary Education (CBSE) is governed by its
Affiliation Bye-laws. Clause 3(i) of the Bye-laws mandates formal
prior recognition by the State/Union Territory Government.
Additionally, the application for affiliation should be forwarded by the
State Government or there should be a No Objection Certificate (NOC)
to the effect that the State Government has no objection to the
affiliation of the school with the CBSE.
4. Apparently with this in mind, the State of Kerala issued certain
guidelines on 13th June, 2007 limiting consideration of applications for
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 3 of 13
grant of an NOC to 5 northern districts in the State. The Government
Order (G.O.) was challenged by the management of some schools and
it was set aside by the High Court.
5. Against the decision rendered by the High Court, petitions for
special leave to appeal were filed by Kerala which were taken up for
consideration on 18th July, 2011. By that time, Kerala had come out
with a new policy dated 10th June, 2011 which made the petitions
infructuous. The relevant extract of the order passed by this Court on
18th July, 2011 reads as follows:
“Delay condoned.
The State Government has filed these SLPs challenging the
order of the High Court directing consideration of the
applications filed by the respondents for grant of ‘no objection
certificate’ for seeking affiliation with Central Board of
Secondary Education (for short ‘CBSE’) for a new
institution/existing institutions. The State Government had
earlier rejected the request with reference to the Policy of the
State Government then in force.
When the matter came up today, both sides submitted
that the State Government has now made a new Policy
contained in G.O.(MS) No.137/2011/G. Edn. dated 10.6.2011
which reads as under:
“Government are pleased to accord sanction for issuing
No Objection Certificate for getting CBSE/ICSE
affiliation to schools, which totally fulfils the norms and
conditions prescribed by CBSE/ICSE and having own
land and basic facilities.
Further guidelines will be issued by the Department in
due course.”
In view of the said Policy, it is submitted that these
SLPs by the State Government have become infructuous as the
State Government will have to consider the applications of the
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 4 of 13
respondents with reference to the said new Policy dated
10.6.2011 and pass appropriate orders within three months
from today.
It is needless to say that if the respondents-applicants
are aggrieved by any order passed on such consideration, they
will be entitled to challenge the same in accordance with law.
…………….”
6. It is significant to note that the last line of the G.O. dated 10th
June, 2011 stated that further guidelines would be issued by the
concerned department in due course.
7. These further guidelines as postulated by the G.O. dated 10th
June, 2011 came to be issued on 7th October, 2011. These (new)
guidelines were not supplementary but a completely extra set of
guidelines that prescribed norms for the grant of an NOC to new
schools for affiliation to CBSE and for existing schools for renewal of
affiliation under the CBSE Affiliation Bye-laws. According to learned
counsel for the schools, this was quite unexpected and unnecessary
8. Be that as it may, the management of several schools objected to
some of the guidelines. The objections were to the following
guidelines:
“iv. The institution should have minimum 3 acres of land, out
of which at least 2 acres shall be in the actual location where
the school is functioning in a contiguous manner. It should
have adequate playground also. There should be a library and
adequate number of laboratories.
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 5 of 13
vi. The medium of instruction must be English. However
Malayalam will be compulsorily taught as a paper with a
prescribed text book and a proper academic evaluation as
instructed by State Government from time to time.
viii. The school shall appoint only qualified and eligible staff
and must pay the salary and allowances and other benefits to
the employees of the school. Employees in the CBSE/ICSE
school shall be offered the same pay scales as in Government
Schools for equivalent categories. The pay shall start at the
minimum of the scale and employees shall be eligible for DA
and increments as is allowed in Government Schools from time
to time.
xiv. The school should have been in existence for a period of
five years as on the date of application for NOC and should
have at least 300 students in its rolls. The UIID enrolment
should be completed and UIID numbers of the students
enrolled in the school shall be furnished.”
9. These guidelines were challenged by some schools by way of
writ petitions in the High Court. A learned Single Judge of the High
Court heard the writ petitions challenging the G.O. of 7th October, 2011
and by an interim order passed on 20th April, 2012 stayed the operation
of guidelines (iv) and (xiv).
10. Kerala filed a writ appeal challenging the order of the learned
Single Judge and upon hearing learned counsel, the Division Bench
was of the view that the decision in the writ appeal would render all the
pending writ petitions before the learned Single Judge infructuous.
Therefore, with the consent of all the parties to the litigation, it was
decided that all the writ petitions and the writ appeal should be heard
by the Division Bench so that there is some finality to the dispute.
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 6 of 13
11. By the impugned judgment and order dated 14th September,
2012, the High Court struck down clause (iv) and (xiv) of the
guidelines dated 7th October, 2011 and it is under these circumstances
that the present petitions have been filed by Kerala and taken up for
consideration.
12. At the outset, we may note that although initially four guidelines
were under challenge before the learned Single Judge but before us it
was stated by learned counsel for school managements that they do not
press the challenge to guidelines (vi) and (viii). We are, therefore,
concerned only with guidelines (iv) and (xiv) pertaining to a school
seeking affiliation requiring minimum 3 acres of land and a minimum
300 enrolled students.
Requirement of minimum 3 acres of land
13. According to Kerala, a school seeking an NOC for affiliation to
the CBSE must have 3 acres of land out of which 2 acres should be
contiguous and in the actual location of the school. We have not been
shown any basis for this mandate, applicable to all schools across the
board.
14. On the other hand, the CBSE appears to have done its homework
in framing the Affiliation Bye-laws and making a realistic assessment
of the requirements of schools depending on their location.
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 7 of 13
15. In Chapter IV of the Kerala Education Rules, 1959 (for short
‘KER’), we have been informed by learned counsel for Kerala that it is
provided that Upper Primary Schools with or without Lower Primary
Section (that is up to and including Standard V and VI), the land
requirement (as informed) is 1.2 to 2 hectares (3 to 5 acres); for
Secondary Schools the land requirement is 1.2 to 2 hectares (3 to 5
acres) and for Higher Secondary Schools the land requirement is 1.2
hectares (3 acres). Hence the minimum requirement is of 3 acres of
land. However, the KER provides that every school should normally
have a minimum site area as indicated above.
16. Contrast this with the CBSE Affiliation Bye-laws. Under these
Bye-laws, the minimum land requirement varies from location to
location. The requirement generally for an educational institution to
apply to the CBSE for affiliation is that the school must have 2 acres of
land but there are certain exceptions. For example, in cities with a
population exceeding 25 lakhs the land should not be less than 1 acre
with adequate building and arrangement with other
institution/organization for imparting physical and health education and
for conducting games to the satisfaction of the CBSE. In hilly areas, the
land should not be less than 1 acre and the norms as prescribed by the
Planning Commission would be applicable for determining hilly areas.
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 8 of 13
17. Similarly, in schools located within the Municipal limit of the
capital cities, islands, North Eastern States and Jammu & Kashmir the
minimum land requirement shall be 1 acre. In other words, the CBSE
has introduced a degree of flexibility depending upon the location of
the school. Unfortunately, Kerala has not even thought of providing
any such flexibility. It appears to us that the rigid requirement of
Kerala indicates that it is imposed upon the schools that seek affiliation
with the CBSE only with a view to unnecessarily burden them with an
onerous and arbitrary condition, since Kerala believes it has the
authority to do so.
18. Keeping all this in mind, we had required Kerala by an order dated
6
th December, 2016 to inform us the number of schools run by the State
Government or aided by the State Government or affiliated with the State
Board that do not comply with the guidelines of 7th October, 2011. In
response, Kerala filed an evasive affidavit to the effect that since the
guidelines do not apply to such schools, there is no compulsion on such
schools to comply with them. This is remarkable – guidelines are framed
by Kerala for application by schools other than those run by the State
Government or aided by the State Government or affiliated with the State
Board. There is no reason given for this distinction drawn by Kerala
which appears to be completely arbitrary.
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 9 of 13
19. It was submitted on behalf of Kerala that nevertheless the State
Government was well within its rights and authority to provide for a
minimum of 3 acres of land for the grant of an NOC. While this may be
so, the requirement must have some rational basis but we are unable to
find any such rational basis. Even in the counter affidavit filed before
the learned Single Judge it is stated by Kerala that restrictions have
been placed on CBSE schools to prevent their mushrooming growth
which would affect the public education system in the State. No details
have been given for arriving at this conclusion. But the very fact that
there is a mushroom growth of CBSE schools is an indication that the
public education system in Kerala as managed by the State Government
leaves something to be desired in terms of the quality of the education.
How does the restriction imposed by Kerala benefit the children of the
State?
20. As mentioned above, the CBSE has done its homework well and
has taken a pragmatic view of the requirement of land. We can take
judicial notice of the fact that in metropolitan and capital cities as well
as in hilly areas, it would be difficult to get 3 acres of land or even 2
acres of land. Similarly, due to the terrain it would perhaps be difficult
to get adequate land in the North Eastern region of the country as well
as in Jammu & Kashmir. This realism deserves to be contrasted with
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 10 of 13
non-realistic inflexibility of Kerala which too has some hilly areas
where perhaps it might be difficult to find 3 acres of land. It is this lack
of pragmatism and arbitrary rigidity that has weighed with the High
Court as well as with us in coming to the conclusion that guideline (iv)
requiring a minimum of 3 acres of land for obtaining an NOC for
getting affiliation in accordance with the Affiliation Bye-laws of the
CBSE is arbitrary and was deservedly struck down by the High Court.
Minimum enrolment of 300 students
21. The second challenge is with reference to the minimum strength
of students being 300 in a school that seeks affiliation with the CBSE in
terms of guideline (xiv).
22. At this stage, it may be mentioned that in Queen Mary Public
School v. State of Kerala1
the High Court held that the requirement of
500 students on the rolls for affiliation of the school from Standard I to
Standard X is contrary of the CBSE Affiliation Bye-laws and is not
rational or sustainable. Notwithstanding this, Kerala has insisted on the
number of students on the rolls being at least 300 for the issuance of an
NOC. Since there is no such requirement under the CBSE Affiliation
Bye-laws - this is merely an unwarranted imposition by Kerala on
school managements.
1
(2007) 4 KLT 706
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 11 of 13
23. The question of affiliation with the CBSE would arise only when
the school reaches at least Standard VI. In this regard, clause 15.1(a) of
Chapter III of the Affiliation Bye-laws is relevant and this provides as
follows:
“15.1.(a) The schools fulfilling the norms of Affiliation given
in Chapter-II may apply ‘On-line’ to the Board for approval of
Middle Class Syllabus/provisional affiliation for secondary/
upgradation of Senior Secondary Classes on the prescribed
from alongwith prescribed fee given in Appendix II before 30th
June of the Year preceding the year in which Class VI/IX/XI as
the case may be is proposed to be started. Application Forms,
procedural details and Affiliation Bye-Laws for submission of
applications ‘on line’ are available on the Boards website
www.cbse.nic.in. Application submitted by post or by any
other means will not be processed.
All the applications which are received by CBSE on or before
30th June every year may be processed together within a period
of six months thereof. The order of granting or refusing the
affiliation shall be communicated to the applicants on or before
31st December of that year.”
24. The High Court took the view that progressive stages of
affiliation has a rational basis while the prescription of having a
minimum of 300 students for obtaining an NOC does not have any such
basis. Again, we do not find any reason for this requirement in the
counter affidavit filed by Kerala in the High Court except that it has the
authority to make such a prescription.
25. The illustration given by the High Court in this regard is
apposite. The Right of Children to Free and Compulsory Education
Act, 2009 (the RTE Act) requires a student-teacher ratio of 30:1. A
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 12 of 13
school having 30 children in one class and having one division will
have only 180 students upto and including Standard VI. Such a school
cannot, therefore, obtain provisional affiliation for secondary or senior
secondary classes. Actually, such a school would not be eligible for
affiliation till Standard X when it has 300 students – and it can never
reach that stage since Standard IX and X can be started only if the
school has CBSE affiliation. Kerala is, therefore, expecting an
impossibility from such schools that strictly conform to the provisions
of the RTE Act.
26. On the other hand, under the KER the minimum effective
strength per standard in Lower Primary/Upper Primary and High
Schools is 25 students (it would now have increased to 30 students). It
is only for schools seeking CBSE affiliation that it is prescribed that the
number of students should not be less than 300. We do not see how, if
the number of students is less than 300, it will detract from the quality
of education imparted to the students. In other words, the requirement
of a minimum strength of 300 students is a completely arbitrary figure
arrived at by Kerala and which has no rational nexus with quality
education or the CBSE Affiliation Bye-laws.
27. According to learned counsel for Kerala, if a school does not
have a minimum of 300 students, it would be difficult for that school to
SLP (Civil) Nos. 18475-18476 of 2013 etc. etc. Page 13 of 13
pay the required wages of the staff and the teachers except by charging
exorbitant fees. There is no material on record to substantiate such a
conclusion and it is based merely on the ipse dixit of the State. In the
absence of any material on record justifying the fixation of a minimum
of 300 students in a school seeking an NOC for affiliation to the CBSE,
we must hold the requirement as arbitrary and we do so.
28. Another issue raised by the management of schools is with
regard to the compulsory unique identification (UID) for enrolment of
students. We leave this issue open, as suggested by learned counsel, to
await the decision of Constitution Bench of this Court which is
presently seized of the requirement of UID.
29. For the aforesaid reasons, we find no merit in these petitions
which are accordingly dismissed. The interim applications stand
disposed of.
..………………………J
(Madan B. Lokur)
New Delhi .……………………J
May 2, 2018 ( Deepak Gupta )
