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2018 DIGILAW 525 (KER)

Dynamic English Medium School v. State of Kerala

2018-07-05

A.MUHAMED MUSTAQUE

body2018
JUDGMENT : These Writ Petitions concern the right of the petitioners to establish both elementary schools and high schools. There are two sets of petitioners. It can be categorised as follows: (i) The petitioners who have applied for recognition and No Objection Certificate from the State Government for establishing high schools by affiliating such schools to CBSE/ICSE; and (ii) the schools which want to have a recognition upto elementary schools with the syllabus of their choice such as CBSE/ICSE or State syllabus. Some of the petitioners have established schools much before the Right of Children to Free and Compulsory Education Act, 2009 (Act 35 of 2009) came into existence. Some of them have established schools after the Act came into force. Admittedly none of the petitioners have recognition from the State Government in terms of Act 35 of 2009. Some of the schools want to have affiliation with CBSE/ICSE at high school and higher secondary level. They have approached the State Government. The State Government refused No Objection Certificate. Some of them have applied for recognition for elementary school. The State Government refused the recognition as well. 2. The common issue in these Writ Petitions is whether the State Government is bound to grant recognition to such schools which have established prior to Act 35 of 2009 and after the Act came into force. The petitioners also submit that the State Government is bound to grant No Objection Certificate to such schools for obtaining affiliation with CBSE/ICSE, etc. 3. The Right of Children to Free and Compulsory Education Act, 2009 is an enactment to provide free and compulsory education to all children upto the age of 14 years. This enactment is a fulfillment of long cherished constitutional obligations under Article 21A of the Constitution inserted by the 86th amendment. 3. The Right of Children to Free and Compulsory Education Act, 2009 is an enactment to provide free and compulsory education to all children upto the age of 14 years. This enactment is a fulfillment of long cherished constitutional obligations under Article 21A of the Constitution inserted by the 86th amendment. S.18 of the Act mandates that “no school, other than a school established, owned or controlled by the appropriate Government or the local authority, shall, after the commencement of this Act, be established or function, without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed.” It is further provided in the proviso to S.18(2) that “no such recognition shall be granted to a school unless it fulfills norms and standards specified under S.19.” Proviso to S.18(3) refers that even such recognition granted will stand withdrawn on the contravention of the conditions of recognition. S.19 lays down the norms and standards which are as follows: “19. Norms and standards for school.– (1) No school shall be established, or recognised, under Section 18, unless it fulfils the norms and standards specified in the Schedule. (2) Where a school established before the commencement of this Act does not fulfil the norms and standards specified in the Schedule, it shall take steps to fulfil such norms and standards at its own expenses, within a period of three years from the date of such commencement. (3) Where a school fails to fulfil the norms and standards within the period specified under sub-section (2), the authority prescribed under sub-section (1) of Section 18 shall withdraw recognition granted to such school in the manner specified under sub-section (3) thereof. (4) With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function. (5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.” It mandates that all schools shall fulfill the norms and standards as specified in the Schedule to the Act. In respect of schools already established prior to the Act, S.19(2) mandates that such schools shall fulfill the norms and standards as referred to in the Schedule within a period of three years from the date of such commencement of the Act. That means that a gestation period of three years is given to the schools established before the commencement of the Act to fulfill the norms and standards as referred to in the Schedule. 4. The State appears to have taken a stand that there is a cut off date as prescribed under S.19(2) of the Act that only if such norms and standards are fulfilled within the time limit as prescribed in the said section, then alone the said schools are entitled for recognition. It is further submitted that the Government had fixed a cut off date as 31.12.2014 for schools which follow State syllabus and 31.01.2015 for CBSE/ICSE syllabus. The Government also says that without any assessment of educational need, no such schools can be established in the State. 5. The right to elementary education is a Fundamental Right. The statutory provisions referred to in Act 35 of 2009 is a provision only to implement such mandate of Constitution. Government cannot tinker with the provisions of Act 35 of 2009 by altering the norms and conditions for establishment of schools. On a close reading of Ss.18 and 19, it can be seen that all schools which fulfill the norms and standards specified in the Schedule are entitled for recognition without any further qualification. It is only such schools which fail to fulfill the norms and standards are not entitled for such recognition. Act 35 of 2009 is a comprehensive legislation as far as right to free and compulsory education upto the elementary school. 6. As far as recognition is concerned, the Parliament has relegated the power to appropriate Government. (See S.2(a)(ii)(A) read with Ss.18 and 38(2)(g) of Act 35 of 2009). 7. The question is whether recognition is depend on the assessment of educational need of the locality where such school is established? 8. Learned Special Government Pleader argued that without there being an assessment of the educational need, no recognition can be granted under Act 35 of 2009. I am of the view that such argument is untenable. Nowhere the Act states such a condition for granting recognition. 8. Learned Special Government Pleader argued that without there being an assessment of the educational need, no recognition can be granted under Act 35 of 2009. I am of the view that such argument is untenable. Nowhere the Act states such a condition for granting recognition. Learned Special Government Pleader argued that the Schedule to the Act itself is vague. Therefore, the Parliament has left to the discretion of the State Government to adopt necessary norms for recognising such schools. In the absence of relegating any power, the State Government cannot make such a claim. Under Chapter VII, the power to issue such directions is given to the Central Government. The power conferred on State Government under S.38(2) of the Act is to issue such guidelines to implement the statutory provisions of the Act. No other power is given to State Government other than the power for issuing guidelines to implement the provisions of the Act. No rule making power is conferred on the State Government under S.38 for assessment of educational need as a pre condition to grant recognition. 9. Section 6 of Act 35 of 2009 states that the Government and the local authority shall establish such schools wherein it is not established within three years from the date of commencement of the Act. Part IV of the Right of Children to Free and Compulsory Education Rules, 2010 framed by the Central Government casts duties and responsibilities on the Government and local authority to determine the area or limits of neighbourhood within which such schools are to be established. This is essentially to carry out the constitutional obligations if there are no schools in the area or neighbourhood. The scope of assessment of educational need arises only if the State Government feels that there are no elementary schools established within such area as referred in S.6 of the Act. In such place, the Government has to conduct school mapping for planning the school location. This is essentially to overcome the social barriers and geographical constraints faced by the pupil. In such place, the Government has to conduct school mapping for planning the school location. This is essentially to overcome the social barriers and geographical constraints faced by the pupil. On a reading of S.6 along with Part IV of the Right of Children to Free and Compulsory Education Rules, 2010 framed by Central Government, it can be seen that the mandate of the statutory provision obligates the State Government or the local authority to establish a school if such schools are not established after the mapping area based on the norms referred in R.6 of Part IV of Central Rules. This Rules therefore are intended to compel the Government or the local authority to establish school and not enacted to restrict establishment of schools. 10. Viewed from the above angle, it can be seen that assessment of educational need is only for the purpose of compelling Government or local authority to establish schools and not as a pre-condition for establishing such schools. 11. Incidentally, a question arises as to the recognition to be granted by the Government in respect of the minority schools. Some of the counsel, relying upon the judgment of the Supreme Court in Pramati Educational and Cultural Trust v. Union of India (2014 (2) KLT 547 (SC)), contended that no recognition is required for such minority schools as minority schools are outside the purview of Act 35 of 2009 and therefore, they are free to run such schools without even recognition and for the purpose of obtaining No Objection Certificate to affiliate CBSE to start High School and the Higher Secondary School, the Government is bound to grant No Objection Certificate without insisting for recognition. 12. In that context, it is appropriate also to determine whether minority schools are also bound to obtain recognition. The provisions of Act 35 of 2009 do not distinguish between minority and other schools. The claim of minority is raised based on Article 30(1) of the Constitution of India. Therefore, the issue has to be considered with reference to the constitutional provisions referrable as above. The issue that was considered by the Supreme Court above was based on a challenge in regard to certain provisions of the Act particularly S.12(1)(c) and also with regard to the definition of ‘school’ as referred under S.2(n)(iv). Therefore, the issue has to be considered with reference to the constitutional provisions referrable as above. The issue that was considered by the Supreme Court above was based on a challenge in regard to certain provisions of the Act particularly S.12(1)(c) and also with regard to the definition of ‘school’ as referred under S.2(n)(iv). S.12(1)(c) mandates that such schools as specified in sub clauses (iii) and (iv) of clause (n) of Section 2 shall admit in Class I, to the extent of atleast 25% of the strength of that class, the children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion. S.2(n)(iv) refers an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority. 13. On a reading of the judgment as above, it can be seen that the ratio of the above judgment rests on the challenge made to the provisions as above. It cannot be said that Act 35 of 2009 has no application to the minority schools other than to the extent of recognising the rights of minority to admit and manage schools in terms of Article 30(1) of the Constitution of India. The Supreme Court in that context declared that Act 35 of 2009 has no application in respect of the minority schools. It can be seen that the declaration as above is confined to the mandate of admitting such students as referrable under S.12(1)(c) and not beyond. Learned counsel referring to the concluding portion in Pramati case (supra) argued that declaration of the Supreme Court had excluded minority schools from the purview of Act 35 of 2009. In State of U.P and another v. Synthetics and Chemicals Ltd. & Anr. (1991) 4 SCC 139 and in Arnit Das v. State of Bihar (2000) 5 SCC 488 , the Supreme Court held that a decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated under Article 141 of the Constitution. Therefore, in that view of the matter, I am of the view that minority schools are also bound to obtain recognition from the State Government under Act 35 of 2009. 14. Therefore, in that view of the matter, I am of the view that minority schools are also bound to obtain recognition from the State Government under Act 35 of 2009. 14. There are arguments raised on the side of the learned Special Government Pleader that in respect of the State syllabus, the State cannot recognise such schools without following the procedure as referred under the Kerala Education Act and Rules. This argument also has to be repelled. It is to be noted that Act 35 of 2009 itself is a self contained Act. The State Government has power to frame Rules under S.38 of the Act. The State Government has necessary power to lay down curriculum and evaluation provided as referred under S.29 of the Act. The State Government can only insist the schools to follow such curriculum prepared by the Academic Authority appointed by the Government. 15. The recognition as referred under Act 35 of 2009 is required only in respect of elementary schools. Some of the writ petitioners are claiming that they are only conducting kindergarten (pre school). This Court is of the view that no recognition under Act 35 of 2009 is required for running such pre schools. 16. The rule making power of the State Government is referrable under S.38 of Act 35 of 2009. The State Government has no power to insist compliance of any norms other than those referred in the Schedule to the Act for granting recognition. Any rules framed by the State Government supplementing such norms have no statutory flavor. No doubt, all schools are bound to follow such rules framed by the Government specifically referrable to S.38 of the Act. The Government cannot supplement the norms and standards as referred in the Schedule as a pre-condition to grant recognition. 17. Thus, to sum up the discussions on the above aspect, this Court is of the view that the schools would be entitled for recognition subject to fulfillment of the norms as referred under the Schedule to Act 35 of 2009. If the existing schools established prior to the commencement of the Act has not applied so far, they can apply before the State Government. If the existing schools established prior to the commencement of the Act has not applied so far, they can apply before the State Government. In view of the fact that the State is not proposing to take action this academic year, if they have not obtained any recognition during this academic year, the State Government is free to take action to close down such schools from next academic year. All other schools which were established after the enactment without getting such recognition are also free to apply for recognition. If they are unable to obtain recognition, the State Government is free to take action to close down such schools. 18. The next point to be considered is whether the State Government is bound to issue No Objection Certificate for the purpose of affiliation with the ICSE and CBSE. 19. Learned Standing Counsel for the CBSE argued that as per the CBSE bylaws, recognition and No Objection Certificate from the State Government are mandatory. This aspect has not been disputed by any of the counsel. In regard to ICSE schools, learned Standing Counsel for the ICSE submitted that only No Objection Certificate is required from the State Government. 20. Learned counsel for one of the petitioners argued that even without recognition, the State Government is bound to issue No Objection Certificate for the purpose of affiliation with ICSE. 21. No Objection Certificate to be issued by the State Government is for the purpose of processing the application before the CBSE or ICSE. The Government, while issuing No Objection Certificate in respect of any schools imparting elementary education, is bound to examine whether such schools are having recognition or not. If the schools are having such recognition, the Government cannot withhold such No Objection Certificate based on the policy of the Government. 22. The stand of the Government is that schools which have not applied within the cut off date prescribed for receiving application for No Objection Certificate for starting CBSE and ICSE cannot claim No Objection Certificate from the Government. 23. Learned Special Government Pleader submits that the Government fixed the cut off date as 31.01.2015 for the schools which follow CBSE and ICSE syllabus and 31.12.2014 for the schools which follow State syllabus taking note of the mandate of S.19(2) of the Act. 23. Learned Special Government Pleader submits that the Government fixed the cut off date as 31.01.2015 for the schools which follow CBSE and ICSE syllabus and 31.12.2014 for the schools which follow State syllabus taking note of the mandate of S.19(2) of the Act. Learned Special Government Pleader also relied upon the judgment of this Court in Principal, Jawahar English Medium School, Tvm. & Anr. v. Simi A.C. & Ors. 2014 (4) KHC 733 and argued that if the Government cannot tinker with the prescription of outer limit for compliance of the mandate under the Act, any application submitted after the cut off date as referred under S.19(2) of the Act cannot be entertained. The prescription of cut off date as referred under S.19(2) of the Act is only in respect of the schools which had established prior to the commencement of Act 35 of 2009. In respect of other schools, before establishing such schools, they will have to obtain recognition from the authorities as referred under S.18 of Act. This is so clear from S.19(2) of the Act itself. It only refers to such schools which had established before the commencement of the Act. If the stand of the Government as such is accepted, no schools can be established as the cut off date is over. No doubt, such schools which had not obtained recognition within the outer limit of the period as mandated under S.19(2) of the Act, the Government is free to close down. In the light of the fact that the Government is not proposing to take action this academic year, there need not be further direction in this aspect. So it is therefore clear that S.19(2) shall apply only in respect of the schools which had established prior to the commencement of the Act and it cannot be put an embargo for receiving any application for starting new schools after the commencement of the Act. The Government had issued guidelines in the year 2011 for issuance of No Objection Certificate. A Division Bench of this Court interfered with the norms insisting requirement of minimum 3 acres of land and 300 students for issuance of No Objection Certificate. The State challenged the judgment in SLP No.18475 of 2013 and connected matter before the Supreme Court. The Government had issued guidelines in the year 2011 for issuance of No Objection Certificate. A Division Bench of this Court interfered with the norms insisting requirement of minimum 3 acres of land and 300 students for issuance of No Objection Certificate. The State challenged the judgment in SLP No.18475 of 2013 and connected matter before the Supreme Court. The Supreme Court dismissed the appeal (* Ed.Note: Reported in 2018 (2) KLT 795 (SC) - State of Kerala v. Mythri Vidya Bhavan English Medium School.). Thus, to conclude that Government will have to issue No Objection Certificate to such schools which had obtained recognition in accordance with the provisions of Act 35 of 2009 subject to fulfillment of other norms and guidelines issued by the Government. The Government cannot prescribe any policy to withhold such recognition. The State Government has no choice in such matters except to give recognition once the schools fulfill all the norms and standards as referred under the Schedule to Act 35 of 2009. The entire matter relating to the issuance of recognition will have to be decided with reference to the provisions under the Act and not based on the policy of the State Government. 24. Learned Standing Counsel for the CBSE submitted that the last date for receiving application for affiliation for this academic year was 30.06.2018 and therefore, no application can be received by the CBSE this academic year and if any recognition and No Objection Certificate are issued, that can be considered only for the academic year 2019-2020. 25. However, learned counsel for the petitioners argued that it is on account of the policy decision of the State Government that they are unable to submit the application along with the requisite documents within time. Therefore, the court may extend the deadline fixed by the CBSE/ICSE. 26. Taking note of the submission that no schools in the State was able to submit the application before the CBSE/ICSE, this Court is of the view that the CBSE/ICSE should extend the last date for submitting the application for affiliation upto 15.10.2018. 27. The State Government has necessary power under S.38 of Act 35 of 2009 to prescribe the authority, the form and manner of making application for certificate for recognition. It has also necessary power to prescribe the period, the manner and the conditions for issuing certificate of recognition. 27. The State Government has necessary power under S.38 of Act 35 of 2009 to prescribe the authority, the form and manner of making application for certificate for recognition. It has also necessary power to prescribe the period, the manner and the conditions for issuing certificate of recognition. The schools will have to therefore apply for recognition in accordance with the form prescribed under the Rules framed by the State Government. However, it is seen from the form prescribed by the State Government in Form III that certain informations are sought for granting recognition such as, justifying educational need of the area concerned, the location of respective neighbouring schools and all such details of the schools within the radius of 3 KMs. The Form also insists about the willingness of the applicants to absorb protected teachers retrenched from the Government schools, aided schools etc. These stipulations are referred in Clauses 11, 13 and 21 of Form III. This Court is of the view that the Government cannot insist the applicant to provide such materials which are outside the standards and norms as prescribed under S.19 of Act 35 of 2009 and the Schedule. As already adverted, the assessment of educational need is only for the purpose of recognising the fundamental rights of the children and for implementing the provisions in recognition of such right by establishing the schools and not intended for regulating the establishment of schools based on educational need. Therefore, the petitioners need not comply with such stipulations as referred in clauses 11 and 13 in the Form. The applicant for recognition in unaided school has no obligation to absorb any protected teacher so long as the schools are not funded by the Government. The Government cannot insist for willingness to absorb protected teachers. These clauses have no statutory flavour. Therefore, the clauses 11, 13 and 21 will have to be simply ignored for the purpose of compliance and to obtain recognition. It is also made clear that recognition is not depend upon holding any particular extent of land as there is no such insistence in S.19 of Act 35 of 2009 and in the Schedule. Though the school authorities will have to furnish details of the extent of land, the Government cannot insist that recognition would depend upon any particular extent of land for establishing such schools. Though the school authorities will have to furnish details of the extent of land, the Government cannot insist that recognition would depend upon any particular extent of land for establishing such schools. In regard to the norms and standards, the Government will have to strictly follow S.19 of Act 35 of 2009 and the Schedule. Appropriate Government cannot supplant or supplement such norms. 28. There are challenges regarding the State Rules in this matter. In view of the interpretations of the statutory provisions as above, I am of the view that the challenge as above has become redundant and is left open. In the light of the discussions as above, the following directions are issued: (i) In respect of the schools which had applied for recognition or for No Objection Certificate and stands rejected, they are free to submit application for recognition and No Objection Certificate again. Those who have not so far applied for recognition, they must apply for the same within a period of one month from the date of receipt of a copy of this judgment. This would be applicable equally to the schools which had established prior to the commencement of the Act and subsequent to the Act. If such schools do not apply for recognition, the State Government is free to close down such schools from the next academic year onwards. (ii) All pending applications for recognition shall be considered by the State Government in the light of the discussions as above. (iii) The petitioners are free to resubmit the applications and also free to file fresh applications. All the applications shall be considered before 15.09.2018. (iv) The impugned orders rejecting No Objection Certificate are set aside. If the schools are granted recognition, certainly, all that schools shall be given No Objection Certificate within time. (v) Fresh application/resubmission shall be filed within a period of one month from the date of receipt of a copy of this judgment. It is made clear that in case the Government refuses to grant recognition and also any of the schools have failed to submit application for recognition, the Government is free to close down such schools from the next academic year onwards. (vi) The application shall be submitted before the Educational Officer/authority as prescribed under Act 35 of 2009 and State Rules. (vii) The Government cannot insist pre school/kindergarten to have recognition under Act 35 of 2009. (vi) The application shall be submitted before the Educational Officer/authority as prescribed under Act 35 of 2009 and State Rules. (vii) The Government cannot insist pre school/kindergarten to have recognition under Act 35 of 2009. (viii) The CBSE is directed to accept all completed applications submitted on or before 15.10.2018. (ix) The State Government is free to insist such conditions as referrable under S.38 of Act 35 of 2009 for compliance by the schools. These Writ Petitions are disposed of as above.