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2013 DIGILAW 376 (JK)

DCM Public School v. State Of J&K

2013-07-03

BANSI LAL BHAT

body2013
1. Petitioner-School, established by Dharam Chand Education Society, a registered Society under the Jammu and Kashmir Societies Registration Act 1860, is a day-boarding School situated at Gurha Brahmana, Akhnoor offering education up to level of 8th Standard. It claims to have adopted CBSE Curriculum / Programmes and completed the required formalities for its affiliation with Central Board of Secondary Education. It was in the year 2011 that petitioner applied for grant of No Objection Certificate from State Government for getting affiliation with CBSE. Chief Education Officer Jammu recommended the case of petitioner to Director School Education Jammu vide letter dated 25.06.2011 which forms Annexure-E to the Petition. This was followed by inspection. Ultimately Director School Education Jammu made recommendation to the State Government for grant of No Objection Certificate (NOC) in favour of petitioner-school. However, respondent No. l has not taken any decision in this regard. Petitioner, being aggrieved of inaction on the part of respondent No. l, has approached this Court invoking its extra-ordinary writ jurisdiction. 2. No response has been filed by respondents. Documents forming Annexure to the Petition, prima facie, lend support to petitioner's plea. It appears that in terms of order dated 29.06.2011 passed by Director School Education Jammu the petitioner-school was granted permission to run classes up to 8th Standard for academic purposes only for academic purposes only till ending March 2014. This factual position comes to fore from perusal of recommendation dated 03.12.2011 made by Director School Education to Commissioner-Secretary School Education Department. The letter forms Annexure-R (1) to Motion of respondents for recalling the interim direction dated 03.12.2011. Director School Education Jammu appears to have made recommendation to State Government for grant of NOC for affiliation with Central Board of Secondary Education in favour of petitioner-School. This followed as a corollary to the recommendation of Chief Education Officer Jammu dated 25.06.2011. It emanates from perusal of record that at one stage respondent Nos-2 and 3 were directed to conduct inspection of petitioner-School and thereafter refer the case to State Government so that State functionaries could pass appropriate orders on petitioner's request to consider grant or otherwise of NOC. This direction was passed on 30.12.2011 and the same was reiterated in interim order dated 28.02.2012. However, this direction does not appear to have been implemented. This direction was passed on 30.12.2011 and the same was reiterated in interim order dated 28.02.2012. However, this direction does not appear to have been implemented. Subsequently learned counsel for petitioner appears to have sought time to examine the Judgment of Hon'ble Apex Court which purportedly laid down that without grant of NOC from State Government an educational Institution could not be affiliated to CBSE. 3. The matter was taken up for final hearing with the consensus of learned counsel for the parties. 4. Petitioner is aggrieved of inaction on the part of State Government which has not issued NOC in its favour to enable it to seek affiliation with CBSE. It is required to be determined in the light of by-laws of CBSE as to whether: a) Grant of NOC by State Government is a sine qua non for grant of affiliation by CBSE; b) What is effect of non-issuance of NOC by State Government? 5. CBSE was initially created by Central Government by a Resolution dated 01.07.1929 for conducting examination, prescribing educational courses and maintaining standards on school education besides advising the Central Government on matters pertaining to school education. Presently CBSE is an autonomous body. It has its own Rules. It is not a statutory creation. No part of its expenses for running the organization is borne by the Government. Though CBSE was initially created by the Central Government, it was subsequently registered as a Society under the Societies Registration Act. This happened on 02.01.1935. Thus it ceased to be a limb of the Central Government from the date of its registration under the Societies Registration Act and became a distinct legal entity. Thus CBSE is an autonomous Body which has prescribed its own procedures and rules for grant of affiliation. Regulation 3(i) prescribes that the school seeking provisional admission with the Board must have prior recognition of the State/Union Territory Government. CBSE bylaws came up for interpretation before various judicial forums. In CBSE v. Tushar Welfare Society and anr. (LPA No. 2477/2005) decided by Hon'ble High Court of New Delhi on 09.12.2005 it was held that the bye law 3 (i) providing for NOC from the State Government before grant of affiliation to a school incorporates the Policy decision of CBSE and ordinarily the Courts do not interfere in Policy matters. In CBSE v. Tushar Welfare Society and anr. (LPA No. 2477/2005) decided by Hon'ble High Court of New Delhi on 09.12.2005 it was held that the bye law 3 (i) providing for NOC from the State Government before grant of affiliation to a school incorporates the Policy decision of CBSE and ordinarily the Courts do not interfere in Policy matters. The Hon'ble Apex Court held in Tamil Nadu Education Department Ministerial and General Subordinate Services Association v. State of Tamil Nadu & ors., reported in AIR 1980 SC 379 that the Court cannot strike down a circular/Government order or a policy merely because there is a variation or contradiction. Same view was reiterated in Maharashtra State Board of Secondary and Higher Secondary Education and ors. V. Paritosh Bhupesh Kumar Sheth, reported in AIR 1984 SC 1543 that the Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the Sub-ordinate regulation making body. Any drawback in the policy incorporated in a Rule or regulation will not render it ultravires and the Court cannot strike it down. 6. CBSE consists of Experts in the field of education and its functioning does not brook any interference in academic/educational matters. Courts are reluctant to interfere in academic/educational matters unless the decision is illegal or arbitrary. The administrative functions cannot be interfered with unless the decision is tainted by illegality, irrationality or procedural impropriety. In the instant case it has been noticed that petitioner-School is a Society registered under the Jammu and Kashmir Societies Registration Act 1860. It is offering education to children up to level of 8th Standard based on CBSE Programmes. It is undisputed and un-controverted that petitioner-School had approached the State Government for grant of NOC for getting affiliation with CBSE. Its case for affiliation with CBSE has been recommended by CEO Jammu to the Director School Education, Jammu. Respondent-CBSE which is a Society registered under the Act, has framed its by-laws governing affiliation. Chapter II deals with norms for affiliation which authorizes the Board to affiliate several categories of schools from within and outside India which, inter alia includes Private unaided schools established by the Societies registered under the Societies Registration Act or under legal enactments as Educational, Charitable or Religious Societies or by trusts. Chapter II deals with norms for affiliation which authorizes the Board to affiliate several categories of schools from within and outside India which, inter alia includes Private unaided schools established by the Societies registered under the Societies Registration Act or under legal enactments as Educational, Charitable or Religious Societies or by trusts. Rule 3 incorporated in Chapter II of by-laws provides that the school seeking affiliation should have formal recognition of the State Government and its application should be forwarded by the State Government or there should be a NOC for affiliation of School with CBSE. 7. Admittedly, petitioner-School does not belong to either of the categories enumerated in Rule 3.1(i) to (iv). Thus, grant of NOC by State Government is a sine quo non for affiliation with CBSE. The effect of non-issuance of NOC by the State Government disentitles petitioner -- School to seek affiliation with CBSE. Requirement of NOC from State Government to entitle a private unaided School for grant of affiliation is the policy decision of CBSE and, as noticed in a catena of judicial pronouncements, ordinarily the Courts do not interfere in policy matters. Such policy, having been adopted in view of the regulatory mechanism in place, cannot be termed as flawed, shortcomings notwithstanding. Same, having been crystallized into a Rule, cannot be struck down as being ultravires. 8. In view of the foregoing discussion it is manifestly clear that in absence of a NOC certificate from the State Government, the petitioner-School cannot claim affiliation with CBSE. It has to go along the policy forming the edifice of Affiliation Bye Laws adopted by CBSE. Requirement of NOC being a sine qua non and CBSE not being amenable to writ jurisdiction of this Court, no Rule can be granted against CBSE as such. However, in the instant case it appears that petitioner-School has approached the State Government for grant of NOC to get affiliation with CBSE. Chief Education Officer, Jammu has recommended the case of petitioner-School to the Director School Education, Jammu. Same has been followed by inspection. Director School Education, Jammu has finally recommended grant of NOC in favour of petitioner-School. It appears that the State Government is sitting over the matter for the last two years which, by any standard, is a fairly sufficient time to enable it to take decision in this regard. Same has been followed by inspection. Director School Education, Jammu has finally recommended grant of NOC in favour of petitioner-School. It appears that the State Government is sitting over the matter for the last two years which, by any standard, is a fairly sufficient time to enable it to take decision in this regard. It is apt to observe that the State Government has not been able to defend inaction on its part. 9. This Petition is, accordingly, disposed of with direction to State Government to consider the case of petitioner-school and take appropriate decision on recommendation of Director School Education, Jammu in regard to affiliation of petitioner-School with CBSE, within a period of one month from the date copy of this order is served on respondent No. 1.