STATE OF KERALA & ANR. versus MYTHRI VIDYA BHAVAN ENGLISH M. SCH. & ORS. on 2 May 2018

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SUPREME COURT REPORTS

[2018] 5 S.C.R.

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STATE OF KERALA & ANR.

v.

MYTHRI VIDYA BHAVAN ENGLISH M. SCH. & ORS.

(Special Leave Petition (C) Nos. 18475-18476 of 2013)

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MAY 02, 2018

[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]

Education/Educational Institutions:

Kerala Education Rules, 1959: Affiliation of the schools withCthe CBSE – No Objection Certificate (NOC) from the StateGovernment for CBSE affiliation – Guidelines postulated by theGO dt 10.06.2011 – Guidelines (iv) and (xiv) requiring minimum 3acres of land and minimum 300 enrolled students – Challenge to –Held: In metropolitan and capital cities as well as in hilly areas, itwould be difficult to get 3 acres of land or even 2 acres of land –DThus, the guideline (iv) requiring a minimum of 3 acres of land forobtaining an NOC for getting affiliation in accordance with theAffiliation Bye-laws of the CBSE is arbitrary – Requirement of aminimum strength of 300 students has no rational nexus with qualityeducation or the CBSE Affiliation Bye-laws – In the absence of anyEmaterial on record justifying the fixation of a minimum of 300students in a school seeking an NOC for affiliation to the CBSE,the said requirement is also arbitrary.

Dismissing the petitions, the Court

HELD: 1.1 In Chapter IV of the Kerala Education Rules,F1959, it is provided that Upper Primary Schools with or withoutLower Primary Section (that is up to and including Standard Vand VI), the land requirement (as informed) is 1.2 to 2 hectares(3 to 5 acres); for Secondary Schools the land requirement is 1.2to 2 hectares (3 to 5 acres) and for Higher Secondary Schools theGland requirement is 1.2 hectares (3 acres). Hence, the minimumrequirement is of 3 acres of land. However, the KER providesthat every school should normallyhave a minimum site area.[Para 15] [693-H; 694-A-B]

1.2 Under the CBSE Affiliation Bye-laws, the minimumHland requirement varies from location to location. The requirement generally for an educational institution to apply tothe CBSE for affiliation is that the school must have 2 acres ofland but there are certain exceptions. In cities with a populationexceeding 25 lakhs the land should not be less than 1 acre withadequate building and arrangement with other institution forimparting physical and health education and for conducting gamesto the satisfaction of the CBSE. In hilly areas, the land should notbe less than 1 acre and the norms as prescribed by the PlanningCommission would be applicable for determining hilly areas.[Para 16] [694-B-D]

1.3 Similarly, in schools located within the Municipal limitof the capital cities, islands, North Eastern States and Jammu &Kashmir the minimum land requirement shall be 1 acre. TheCBSE has introduced a degree of flexibility depending upon thelocation of the school. Unfortunately, Kerala has not even thoughtof providing any such flexibility. The rigid requirement of Keralaindicates that it is imposed upon the schools that seek affiliationwith the CBSE only with a view to unnecessarily burden themwith an onerous and arbitrary condition, since Kerala believes ithas the authority to do so. [Para 17] [694-D-E]

1.4 The State of Kerela was asked to inform the number ofschools run by the State Government or aided by the StateGovernment or affiliated with the State Board that do not complywith the guidelines of 7.10.2011. In response, Kerala filed anevasive affidavit to the effect that since the guidelines do notapply to such schools, there is no compulsion on such schools tocomply with them. Guidelines are framed by Kerala for applicationby schools other than those run by the State Government or aidedby the State Government or affiliated with the State Board. Thereis no reason given for this distinction drawn by Kerala whichappears to be completely arbitrary. [Para 18] [694-F-H]

1.5 There was no rational basis for the requirement of aminimum of 3 acres of land for the grant of an NOC. Even in thecounter affidavit filed before the Single Judge it is stated by Keralathat restrictions have been placed on CBSE schools to preventtheir mushrooming growth which would affect the public educationsystem in the State. No details have been given for arriving atthis conclusion. But the very fact that there is a mushroom growth AB

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Aof CBSE schools is an indication that the public education systemin Kerala as managed by the State Government leaves somethingto be desired in terms of the quality of the education. [Para 19][695-B-C]

1.6 Judicial notice is taken of the fact that in metropolitanBand capital cities as well as in hilly areas, it would be difficult toget 3 acres of land or even 2 acres of land. Similarly, due to theterrain it would perhaps be difficult to get adequate land in theNorth Eastern region of the country as well as in Jammu &Kashmir. This realism deserves to be contrasted with non-realisticinflexibility of Kerala which too has some hilly areas where perhapsCit might be difficult to find 3 acres of land. It is this lack ofpragmatism and arbitrary rigidity that has weighed with the HighCourt as well as this Court in coming to the conclusion thatguideline (iv) requiring a minimum of 3 acres of land for obtainingan NOC for getting affiliation in accordance with the Affiliation DBye-laws of the CBSE is arbitrary and was deservedly struckdown by the High Court. [Para 20] [695-D-F]

2.1 The High Court took the view that progressive stagesof affiliation has a rational basis while the prescription of having aminimum of 300 students for obtaining an NOC does not haveEany such basis. [Para 24] [696-F]

2.2 The Right of Children to Free and Compulsory EducationAct, 2009 requires a student-teacher ratio of 30:1. A school having30 children in one class and having one division will have only180 students upto and including Standard VI. Such a school cannot,Ftherefore, obtain provisional affiliation for secondary or seniorsecondary classes. Actually, such a school would not be eligiblefor affiliation till Standard X when it has 300 students-and it cannever reach that stage since Standard IX and X can be startedonly if the school has CBSE affiliation. Kerala is, therefore,expecting an impossibility from such schools that strictly conformGto the provisions of the RTE Act. [Para 25] [696-G-H; 697-A]

2.3 Under the KER the minimum effective strength perstandard in Lower Primary/Upper Primary and High Schools is25 students (it would now have increased to 30 students). It isonly for schools seeking CBSE affiliation that it is prescribedHthat the number of students should not be less than 300. It cannot be said that if the number of students is less than 300, it willdetract from the quality of education imparted to the students. Inother words, the requirement of a minimum strength of 300students is a completely arbitrary figure arrived at by Kerala andwhich has no rational nexus with quality education or the CBSEAffiliation Bye-laws. [Para 26] [697-B-C]

2.4 According to the State, if a school does not have aminimum of 300 students, it would be difficult for that school topay the required wages of the staff and the teachers except bycharging exorbitant fees. There is no material on record tosubstantiate such a conclusion and it is based merely on the ipsedixit of the State. In the absence of any material on record justifyingthe fixation of a minimum of 300 students in a school seeking anNOC for affiliation to the CBSE, the requirement is arbitrary.[Para 27] [697-D-E]

Queen Mary Public School v. State of Kerala (2007) 4KLT 706 – referred to.

Case Law Reference

(2007) 4 KLT 706 referred toPara 22CIVIL APPELLATE JURISDICTION: Special Leave Petition(C) Nos. 18475-18476 of 2013.

From the Order dated 14.09.2012 of the High Court of Kerala atErnakulam in WA No. 1042 of 2012 and WPC No. 32928 of 2011respectively WITH

SLP (C) Nos. 4531-4532 and 4530 of 2014SLP(C) Nos. 23142-23146, 23138-23140, 29655-29658, 29781-29783, 29560-29561, 33438-33439, 29660-29662 of 2013SLP (C) Nos. 83-86 of 2014SLP (C) Nos. 31934-31936 of 2013SLP (C) Nos. 79-80 of 2014SLP (C) Nos. 39339 and 37208 of 2013SLP (C) Nos. 76-77, 81, 82 and 4534-4536 of 2014.

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AAman Lekhi, ASG, Jaideep Gupta, Jayant Bhushan, KylashnathPillai, V. Giri, Sr. Advs., C. K. Sasi, Ms. Nayantara Roy, ManukrishnanG., Sajith P., Prasanth P. R. Jayakrishnan, Tara Chandra Sharma,Ms. Neelam Sharma, Ms. Pankhuri Shrivastava, Mrs. V. S. Lakshmi,A. Venayagam Balan, Rajeev Sharma, D. N. Goburdhun, Vibhu ShankerMishra, Deepak Goel, Gurmeet Singh Makker, Kuldeep Chauhan, RajeshBMishra, Sajith P. Warrier, Jose Abraham, M. P. Srivignesh, B. Mathews,Sarah Shaji, E. M. S. Anam, Vijay Kumar, Chandan Kumar Mandal,Romy Chacko, Naveen R. Nath, Abhimanyu Verma, Jayant Mutraj,Mohammed Sadique T. A., Abraham, Anu K. Joy, Alim Anvar, NisheRajen Shonker, Renjith B., Ms. Lakshmi N. Kaimal, Anubhav AnandCPandey, Krishnadas Villadath, K. Rajeev, A. Raghunath, C. K. Sasi,Raghenth Basant, Ms. Aanchal Tikmani, Mithun Vergis, BadushaSuleman, Senthil Jagadeesan, Ranjith K. C., P. V. Dinesh, Sindhu T. P.,Bineesh K., Arushi Singh and Rajendra Beniwal, Advs. for the appearingparties.DThe Judgment of the Court was delivered by MADAN B. LOKUR, J. 1. The fundamental right to free andcompulsory education to all children between the age of 6 and 14 yearspostulates good quality education and not just education for the sake ofproviding education. Regulation of such education is permissible by lawEand not by executive fiat. Unfortunately, in this batch of petitions, theState of Kerala seeks to impose its authority over schools that provideapparently quality education, which is perceived to be a threat to thepublic education system in the State.

2. The challenge by the State of Kerala in this batch of petitions isFto the judgment and order dated 14[th] September, 2012passed by a DivisionBench of the High Court of Kerala. In our opinion, all these petitionsdeserve to be dismissed.

Brief background

3. Without going into any great detail into the history(which isGreplete with litigation – as if schools have nothing better to do) leadingup to these petitions, it needs to be said that the affiliation of schools bytheCentral Board of Secondary Education (CBSE) is governed by itsAffiliation Bye-laws. Clause 3(i) of the Bye-laws mandates formal priorrecognition by the State/Union Territory Government. Additionally, theapplication for affiliation should be forwarded by the State GovernmentH

or there should be a No Objection Certificate (NOC) to the effect thatthe State Government has no objection to the affiliation of the schoolwith the CBSE.

4. Apparently with this in mind, the State of Kerala issued certainguidelines on 13[th] June, 2007 limiting consideration of applications forgrant of an NOC to 5 northern districts in the State. The GovernmentOrder (G.O.) was challenged by the management of some schools and itwas set aside by the High Court.

5. Against the decision rendered by the High Court, petitions forspecial leave to appeal were filed by Kerala which were taken up forconsideration on 18[th] July, 2011. By that time, Kerala had come out witha new policy dated 10[th] June, 2011 which made the petitions infructuous.The relevant extract of the order passed by this Court on 18[th] July, 2011reads as follows:

“Delay condoned.

The State Government has filed these SLPs challenging the orderof the High Court directing consideration of the applications filedby the respondents for grant of ‘no objection certificate’ for seekingaffiliation with Central Board of Secondary Education (for short‘CBSE’) for a new institution/existing institutions. The StateGovernment had earlier rejected the request with reference tothe Policy of the State Government then in force.

When the matter came up today, both sides submitted that theState Government has now made a new Policy contained inG.O.(MS) No.137/2011/G.Edn. dated 10.6.2011 which reads asunder:

“Government are pleased to accord sanction for issuing NoObjection Certificate for getting CBSE/ICSE affiliation toschools, which totally fulfils the norms and conditions prescribedby CBSE/ICSE and having own land and basic facilities.

Further guidelines will be issued by the Department in duecourse.”

In view of the said Policy, it is submitted that these SLPs by theState Government have become infructuous as the StateGovernment will have to consider the applications of therespondents with reference to the said new Policy dated 10.6.2011and pass appropriate orders within three months from today.

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It is needless to say that if the respondents-applicants areaggrieved by any order passed on such consideration, they will beentitled to challenge the same in accordance with law.

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6. It is significant to note that the last line of the G.O. datedB10[th] June, 2011 stated that further guidelines would be issued by theconcerned department in due course.

7. These further guidelines as postulated by the G.O. dated10[th] June, 2011 came to be issued on 7[th] October, 2011. These (new)guidelines were not supplementary but a completely extra set of guidelinesCthat prescribed norms for the grant of an NOC to new schools foraffiliation to CBSE and for existing schools for renewal of affiliationunder the CBSE Affiliation Bye-laws. According to learned counsel forthe schools, this was quite unexpected and unnecessary.

8. Be that as it may, the management of several schools objectedDto some of the guidelines. The objections were to the following guidelines:

“iv. The institution should have minimum 3 acres of land, out ofwhich at least 2 acres shall be in the actual location where theschool is functioning in a contiguous manner. It should haveadequate playground also. There should be a library and adequatenumber of laboratories.E

vi. The medium of instruction must be English. HoweverMalayalam will be compulsorily taught as a paper with a prescribedtext book and a proper academic evaluation as instructed by StateGovernment from time to time.

Fviii. The school shall appoint only qualified and eligible staff andmust pay the salary and allowances and other benefits to theemployees of the school. Employees in the CBSE/ICSE schoolshall be offered the same pay scales as in Government Schoolsfor equivalent categories. The pay shall start at the minimum ofthe scale and employees shall be eligible for DA and incrementsGas is allowed in Government Schools from time to time.

xiv. The school should have been in existence for a period of fiveyears as on the date of application for NOC and should have atleast 300 students in its rolls. The UIID enrolment should becompleted and UIID numbers of the students enrolled in the schoolHshall be furnished.”

9. These guidelines were challenged by some schools by way ofwrit petitions in the High Court. A learned Single Judge of the HighCourt heard the writ petitions challenging the G.O. of 7[th] October, 2011and by an interim order passed on 20[th] April, 2012 stayed the operationof guidelines (iv) and (xiv).

10. Kerala filed a writ appeal challenging the order of the learnedSingle Judge and upon hearing learned counsel, the Division Bench wasof the view that the decision in the writ appeal would render all thepending writ petitions before the learned Single Judge infructuous.Therefore, with the consent of all the parties to the litigation, it wasdecided that all the writ petitions and the writ appeal should be heard bythe Division Bench so that there is some finality to the dispute.

11. By the impugned judgment and order dated 14[th] September,2012, the High Court struck down clause (iv) and (xiv) of the guidelinesdated 7[th] October, 2011 and it is under these circumstances that thepresent petitions have been filed by Kerala and taken up for consideration.

12. At the outset, we may note that although initially four guidelineswere under challenge before the learned Single Judge but before us itwas stated by learned counsel for school managements that they do notpress the challenge to guidelines (vi) and (viii). We are, therefore,concerned only with guidelines (iv) and (xiv) pertaining to a school seekingaffiliation requiring minimum 3 acres of land and a minimum 300 enrolledstudents.

Requirement of minimum 3 acres of land

13. According to Kerala, a school seeking an NOC for affiliationto the CBSE must have 3 acres of land out of which 2 acres should becontiguous and in the actual location of the school. We have not beenshown any basis for this mandate, applicable to all schools across theboard.

14. On the other hand, the CBSE appears to have done itshomework in framing the Affiliation Bye-laws and making a realisticassessment of the requirements of schools depending on their location.

15. In Chapter IV of the Kerala Education Rules, 1959 (for short‘KER’), we have been informed by learned counsel for Kerala that it isprovided that Upper Primary Schools with or without Lower PrimarySection (that is up to and including Standard V and VI), the land A

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Arequirement (as informed) is 1.2 to 2 hectares (3 to 5 acres); forSecondary Schools the land requirement is 1.2 to 2 hectares (3 to 5acres) and for Higher Secondary Schools the land requirement is 1.2hectares (3 acres). Hence the minimum requirement is of 3 acres ofland. However, the KER provides that every school should normallyhave a minimum site area as indicated above.B

16. Contrast this with the CBSE Affiliation Bye-laws. Underthese Bye-laws, the minimum land requirement varies from location tolocation. The requirement generally for an educational institution to applyto the CBSE for affiliation is that the school must have 2 acres of landbut there are certain exceptions. For example, in cities with a populationCexceeding 25 lakhs the land should not be less than 1 acre with adequatebuilding and arrangement with other institution/organization for impartingphysical and health education and for conducting games to the satisfactionof the CBSE. In hilly areas, the land should not be less than 1 acre andthe norms as prescribed by the Planning Commission would be applicableDfor determining hilly areas.

17. Similarly, in schools located within the Municipal limit of thecapital cities, islands, North Eastern States and Jammu & Kashmir theminimum land requirement shall be 1 acre. In other words, the CBSEhas introduced a degree of flexibility depending upon the location of theEschool. Unfortunately, Kerala has not even thought of providing anysuch flexibility. It appears to us that the rigid requirement of Keralaindicates that it is imposed upon the schools that seek affiliation with theCBSE only with a view to unnecessarily burden them with an onerousand arbitrary condition, since Kerala believes it has the authority to doso.F

18. Keeping all this in mind, we had required Kerala by an orderdated 6[th] December, 2016 to inform us the number of schools run by theState Government or aided by the State Government or affiliated withthe State Board that do not comply with the guidelines of 7[th] October,2011. In response, Kerala filed an evasive affidavit to the effect thatGsince the guidelines do not apply to such schools, there is no compulsionon such schools to comply with them. This is remarkable – guidelinesare framed by Kerala for application by schools other than those run bythe State Government or aided by the State Government or affiliatedwith the State Board. There is no reason given for this distinction drawnHby Kerala which appears to be completely arbitrary.

STATE OF KERALA & ANR. v. MYTHRI VIDYA BHAVANENGLISH M. SCH. & ORS. [MADAN B. LOKUR, J.]

19. It was submitted on behalf of Kerala that nevertheless theState Government was well within its rights and authority to provide fora minimum of 3 acres of land for the grant of an NOC. While this maybe so, the requirement must have some rational basis but we are unableto find any such rational basis. Evenin the counter affidavit filed beforethe learned Single Judge it is stated by Kerala that restrictions havebeen placed on CBSE schools to prevent their mushrooming growthwhich would affect the public education system in the State. No detailshave been given for arriving at this conclusion. But the very fact thatthere is a mushroom growth of CBSE schools is an indication that thepublic education system in Kerala as managed by the State Governmentleaves something to be desired in terms of the quality of the education.How does the restriction imposed by Kerala benefit the children of theState?

20. As mentioned above, the CBSE has done its homework welland has taken a pragmatic view of the requirement of land. We can takejudicial notice of the fact that in metropolitan and capital cities as well asin hilly areas, it would be difficult to get 3 acres of land or even 2 acresof land. Similarly, due to the terrain it would perhaps be difficult to getadequate land in the North Eastern region of the country as well as inJammu & Kashmir. This realism deserves to be contrasted with non-realistic inflexibility of Kerala which too has some hilly areas whereperhaps it might be difficult to find 3 acres of land. It is this lack ofpragmatism and arbitrary rigidity that has weighed with the High Courtas well as with us in coming to the conclusion that guideline (iv) requiringa minimum of 3 acres of land for obtaining an NOC for getting affiliationin accordance with the Affiliation Bye-laws of the CBSE is arbitraryand was deservedly struck down by the High Court.

Minimum enrolment of 300 students

21. The second challenge is with reference to the minimumstrength of students being 300 in a school that seeks affiliation with theCBSE in terms of guideline (xiv).

22. At this stage, it may be mentioned that in Queen Mary PublicSchool v. State of Kerala[1] the High Court held that the requirement of500 students on the rolls for affiliation of the school from Standard I toStandard X is contrary of the CBSE Affiliation Bye-laws and is not 1(2007) 4 KLT 706

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Arational or sustainable. Notwithstanding this, Kerala has insisted on thenumber of students on the rolls being at least 300 for the issuance of anNOC. Since there is no such requirement under the CBSE AffiliationBye-laws - this is merely an unwarranted imposition by Kerala on schoolmanagements.

B23. The question of affiliation with the CBSE would arise onlywhen the school reaches at least Standard VI. In this regard, clause15.1(a) of Chapter III of the Affiliation Bye-laws is relevant and thisprovides as follows:

“15.1.(a) The schools fulfilling the norms of Affiliation given inCChapter-II may apply ‘On-line’ to the Board for approval of MiddleClass Syllabus/provisional affiliation for secondary/ upgradationof Senior Secondary Classes on the prescribed from along withprescribed fee given in Appendix II before 30[th] June of the Yearpreceding the year in which Class VI/IX/XI as the case may be isproposed to be started. Application Forms, procedural details andDAffiliation Bye-Laws for submission of applications ‘on line’ areavailable on the Boards website www.cbse.nic.in. Applicationsubmitted by post or by any other means will not be processed.

All the applications which are received by CBSE on or before30[th] June every year may be processed together within a periodEof six months thereof. The order of granting or refusing theaffiliation shall be communicated to the applicants on or before31[st] December of that year.”

24. The High Court took the view that progressive stages ofaffiliation hasa rational basis while the prescription of having a minimumFof 300 students for obtaining an NOC does not have any such basis.Again, we do not find any reason for this requirement in the counteraffidavit filed by Kerala in the High Court except that it has the authorityto make such a prescription.

25. The illustration given by the High Court in this regard isGapposite. The Right of Children to Free and Compulsory Education Act,2009 (the RTE Act) requires a student-teacher ratio of 30:1. A schoolhaving 30 children in one class and having one division will have only180 students upto and including Standard VI. Such a school cannot,therefore, obtain provisional affiliation for secondary or senior secondary H

classes. Actually, such a school would not be eligible for affiliation tillStandard X when it has 300 students – and it can never reach that stagesince Standard IX and X can be started only if the school has CBSEaffiliation. Kerala is, therefore, expecting an impossibility from suchschools that strictly conform to the provisions of the RTE Act.

26. On the other hand, under the KER the minimum effectivestrength per standard in Lower Primary/Upper Primary and High Schoolsis 25 students (it would now have increased to 30 students). It is only forschools seeking CBSE affiliation that it is prescribed that the number ofstudents should not be less than 300. We do not see how, if the numberof students is less than 300, it will detract from the quality of educationimparted to the students. In other words, the requirement of a minimumstrength of 300 students is a completely arbitrary figure arrived at byKerala and which has no rational nexus with quality education or theCBSE Affiliation Bye-laws.

27. According to learned counsel for Kerala, if a school does nothave a minimum of 300 students, it would be difficult for that school topay the required wages of the staff and the teachers except by chargingexorbitant fees. There is no material on record to substantiate such aconclusion and it is based merely on the ipse dixit of the State. In theabsence of any material on record justifying the fixation of a minimumof 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 withregard to the compulsory unique identification (UID) for enrolment ofstudents. We leave this issue open, as suggested by learned counsel, toawait the decision of Constitution Bench of this Court which is presentlyseized of the requirement of UID.

29. For the aforesaid reasons, we find no merit in these petitionswhich are accordingly dismissed. The interim applications stand disposedof.

Nidhi Jain

Petitions dismissed.

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