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Allahabad High Court · body

2019 DIGILAW 97 (ALL)

Apple Grove School v. Union of India

2019-01-10

AJAY BHANOT

body2019
JUDGMENT : AJAY BHANOT, J. 1. Supplementary affidavit filed today be taken on record. 2. Heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Ashish Kumar Ojha, learned counsel for the petitioner, Sri Dhananjay Awasthi, learned counsel for the respondent CBSE Board and Sri Rajesh Kumar Singh, learned counsel holding brief of Sri Dilip Kumar Pandey, learned counsel for the respondent no. 1. 3. By order dated 01.11.2018 the respondent CBSE Board has withdrawn the provisional affiliation granted to the petitioner institution upto senior secondary level. Thus aggrieved by the disaffiliation the petitioner has assailed the said order in the instant writ petition. 4. The order recites that the institution has violated the affiliation bye-laws relating to infrastructure. The school building and the playground are not part of a compact piece of land. The petitioner was granted several opportunities to cure the deficiency. The petitioner failed to rectify the defect. 5. The submission of Sri R.K. Ojha, learned Senior Counsel assisted by Sri Ashish Kumar Ojha learned counsel for the petitioner in support of the writ petition is that the order of disaffiliation of the institution is an arbitrary exercise of power. The bye-laws of the institution do not contemplate that the school buildings as well as the playgrounds should be located in a compact piece of land. He called attention to the relevant bye-laws of affiliation of the Central Board of Secondary Education (hereafter referred to as 'CBSE'). Secondly, the petitioner had made all out efforts to secure permission to construct an over-bridge from the land housing the school building to the vacant piece of land on which the playground was situated. The permission was denied by the State authorities. The petitioner cannot be faulted for orders passed by the said authorities since they are matters beyond the control of the petitioner. Thirdly, a number of schools affiliated to the CBSE are having playgrounds which are not part of a compact piece of land containing school buildings as well as the playground. It is then contended that the petitioners have an alternative piece of land which is large enough to accommodate the school building and the playground in one compact area. The petitioner has made an application seeking permission for two years to construct the school building and requisite infrastructure with a view to run the school from an alternative piece of land. The petitioner has made an application seeking permission for two years to construct the school building and requisite infrastructure with a view to run the school from an alternative piece of land. Learned counsel for the petitioner relies on a communication dated 05.09.2016. Lastly, the learned Senior Counsel, submits that the petitioner institution has been running without incident over long years. Consideration of equity arising from an incident free past and long continuance have not been factored in the order impugned. 6. Sri Dhananjay Awasthi, learned counsel for the respondent Board in opposition to the writ petition submits that the requirement of compact piece of land is mandatory. There has to be contiguity in the land area where the school building stands and the playground is situated. The purpose of providing a playground would be defeated if the playground is far removed or difficult to access from the school building. He further contends that number of opportunities were given to the petitioner to cure the aforesaid deficiency, but the petitioner failed to do so. 7. Learned counsel for the respondent Board submits that there cannot be parity in illegality. The assertion of the petitioner that some CBSE affiliated schools have playgrounds and buildings situated in plots which are not compact or contiguous, even if true, cannot come to its rescue. Lastly in regard to the alternative piece of land it is contended that this submission is being raised for the first time. It was not presented to the authorities prior to passing of the impugned order. He calls attention to the communication dated 05.09.2016 to buttress his contention that no serious offer of an alternative site was made. The communication dated 05.09.2016 is an ambiguous communication and is not a specific proposal to shift the school premises to an alternative plot. 8. Heard learned counsel for the parties. 9. The order assailed in the writ petition dated 01.11.2018 referencing the report of the Inspection Committee appointed by the Board, finds that the school area is comprised of a single plot but there was no playground. The order dated 01.08.2018 recites that an open ground located adjacent to a local residential area was being used as the playground of the school. The access of the students to the said playground was not unimpeded. The order dated 01.08.2018 recites that an open ground located adjacent to a local residential area was being used as the playground of the school. The access of the students to the said playground was not unimpeded. The school building and the playground were not contiguous and were separated by a 6.8 footpath, 14.8 wide public road, 8.3 footpath closed from two sites having a 2 ft. opening at one corner. There is a local residential area adjoining the playground. 10. The order assailed dated 01.11.2018 goes on to record that the applications submitted by the petitioner institution to construct a foot bridge over the public road has been rejected by the State authorities namely ADM/SDM, on account of objections by the residents of the area. The order dated 01.11.2018 finds that the playground is not a part of the school since the same is not within in the school campus comprising of single and compact plot of land. The land documents could not be verified as the management of the school informed them that the same were deposited in a Bank as a collateral to a loan. 11. Finally in view of the non fulfilment of the land requirement as provided in the bye-laws of the CBSE Board the request for restoration of provisional affiliation upto the Senior Secondary Level could not be acceded to and the status of the school remains dis-affiliated. However in the interest of students of Class X and XII permission is granted to appear in the CBSE examination to be conducted in the year 2018. The order dated 01.11.2018 lastly records that the school was earlier directed by order dated 22.02.2018 not to run CBSE pattern classes IX, X, XI and XII and no permission for X and XII CBSE examination 2019 would be considered by the Board. 12. The institution was disaffiliated on an earlier occasion by an order dated 15.09.2015. It would be apposite to extract the relevant portions of the order dated 15.09.2015 since they are all relevant to the controversy. "And whereas the Board constituted an Inspection Committee for inspecting the school infrastructure in response to the said application. The Committee inspected the school are divided by a service lane. Thus, school was not fulfilling the condition of compactness of land as per essential conditions laid down in Rule 3(3) (ii) of Affiliation Bye-Laws of the Board. "And whereas the Board constituted an Inspection Committee for inspecting the school infrastructure in response to the said application. The Committee inspected the school are divided by a service lane. Thus, school was not fulfilling the condition of compactness of land as per essential conditions laid down in Rule 3(3) (ii) of Affiliation Bye-Laws of the Board. However, in view of the career of the students, the Affiliation Committee extended the Secondary Level Affiliation for One year i.e. up to 31.03.2012 subject to the conditions that school will take initiatives towards removing the shortcomings reported by the Inspection Committee and the school will complete the construction of the new building and shift the entire school to the new campus within the said extension period. The school was accordingly intimated vide letter dated 19.09.2011. And Whereas the school vide letter dated 10.02.2015 furnished the Report of the SDM, Saharanpur, U.P. vide dated 18.10.2014 based on the inspection of the school site intimating to the effect that the condition of constructing an over-bridge between the school plot and the playground cannot be complied with. However, the school again requested to waive off the condition of constructing the over-bridge as there is no safety hazards for crossing the narrow pathway for reaching to the second plot which his being used as Playground by the students." 13. The order dated 15.09.2015 has been extracted and has been referenced to demonstrate that there was on going communication between the Board and the petitioner institution in regard to the lack of playground. The petitioner institution was made aware and alerted to the case of dis-affiliation against it. The institution was given full opportunity to respond to such communications and rectify the defects. 14. It is also in the record that the petitioner institution had sought permission from the Board to rectify the deficiency. However, even after the expiry of three years, the deficiency of lack of a playground in a compact area which contained building infrastructure and the playground continued to subsist. 15. The relevant bye-laws for affiliation insofar as they relate to various infrastructural requirements of land for building and playground purpose is extracted here under:- "3. However, even after the expiry of three years, the deficiency of lack of a playground in a compact area which contained building infrastructure and the playground continued to subsist. 15. The relevant bye-laws for affiliation insofar as they relate to various infrastructural requirements of land for building and playground purpose is extracted here under:- "3. Any educational institution in India or outside India which fulfils the following essential conditions (without which the case cannot be processed) can apply to the Board for affiliation: (i) The School seeking Provisional Affiliation with the Board must have formal prior recognition of the State/U.T. Govt. Its application either should be forwarded by the States Govt. or there should be a No Objection Certificate to the effect that State Government has no objection to the affiliation of the school with the CBSE. 'No Objection Certificate' once issued to any school will be considered at par even if it prescribes a specific period or *stage unless it is withdrawn. Condition of submitting a No Objection Certificate will not be applicable to categories 3.1 (i) to (iv). (ii) (a) The School/Society/Trust/#Company registered under section 25 of the Companies Act, 1956 or the Congregation or other Religious Body controlling the Society/Trust/#Company registered u/s 25 of the Companies Act, 1956 managing the school must have about two acres (or as otherwise permitted measurement) of land and a building constructed on a part of land and proper playgrounds on the remaining land." 16. A perusal of the relevant bye-laws discloses that the educational institution seeking affiliation has to satisfy the infrastructural pre-requisites before the institution is granted affiliation. The infrastructure requirements for affiliation are clarified by the words "essential conditions". This indicates a mandatory intent and a requirement of strict compliance of such conditions. The existence of a playground is clearly mentioned in the land requirement for the purposes of building infrastructure and playgrounds. 17. The affiliation requirements are of an imperative character. These requirements determine the quality of education imparted to the students. The existence of such infrastructure which includes buildings and playgrounds in a compact area distinguishes an educational institution from a education shop. 18. The schools of today are the cradle of Indian leadership of tomorrow. The schools of today owe it to the future generations to provide the best infrastructure and facilities to ensure that they nurture excellence. The existence of such infrastructure which includes buildings and playgrounds in a compact area distinguishes an educational institution from a education shop. 18. The schools of today are the cradle of Indian leadership of tomorrow. The schools of today owe it to the future generations to provide the best infrastructure and facilities to ensure that they nurture excellence. Education is not only about learning from books in an enclosed classroom, but it is equally about imbibing sterling character traits in open playfields. The importance of sports and playgrounds to develop strength, mental and physical is too obvious to be stated. Education is not about cramming but learning. Education is about honing intellectual abilities, developing sterling character traits and building physical strength. An integrated and all around development of the human personality and spirit is the essence of education. Sports play a paramount role in all these endeavours. If sporting activities are integral to education, playing fields are indispensable to schools. In fact many are persuaded by the view with good reason, that the Battle of Waterloo was won on the playing fields of Eton. 19. The Court notices the fact that massive unplanned urban development has diminished open spaces and playgrounds for the coming generations. Similarly in the rush for profits school managements make the first compromises with playfields. Sports and all that it offers by way of learning takes a back seat. 20. The playground will serve its purpose only if there is contiguity between school buildings and the playground. The playground and the school building should be part of one compact and contiguous land area. In case the playground and the school buildings/academic blocks are situated in plots of land which are separated by other plots or residential areas or roads, the access of the students to the play field from the academic blocks will not be free. The playground will play its part and make its contribution only if the access of the students to the playground is free and unimpeded. Young students should be able to run with gay abandon to the play field during their sports classes or after their academic classes without any impediment and kick the ball soaring into the sky. In case the students have to pass through the residential areas, traffic snarls, labyrinth of streets to access the playground, the purpose of a play field would be defeated. 21. In case the students have to pass through the residential areas, traffic snarls, labyrinth of streets to access the playground, the purpose of a play field would be defeated. 21. Students should have a "walk in" or rather a "run in" access to the playground. 22. There is judicial consensus on the non negotiable requirements of a playground in a school. This was emphasized by a Division Bench of the Punjab & Haryana High Court in the case of Deepak Education Society Vs State of Haryana reported at,2013 SCCOnlineP&H 18370. The Court held thus: "It may thus be seen that the petitioners are obligated to provide adequate space for extra curricular activities of the students, failing which the affiliation could be withdrawn by the CBSE. Since play ground or sports activities is an essential component of the school education, we are of the view that the land measuring 4 kanal 9 marla of the petitioner society also deserves to be released subject to the condition that the same shall be utilized by the petitioner society only as a play ground or for other extra curricular activities of the students. In other words, no commercial activities shall be allowed to be carried out over that land." 23. The purpose of playgrounds narrated in the preceding paragraphs only reinforces the interpretation of the bye-laws as mandatory provisions. Further it supports the requirement in the bye-laws for having a playground and the school building in a compact piece of land. 24. This Court accordingly, holds that the requirement of land area of two acres for building and playgrounds means a compact piece of land with contiguity between school building and the playgrounds. The finding recorded in the impugned order to this effect is consistent with the requirements of law. 25. Deviation from affiliation bye-laws of affiliation by schools, devalues standards of education imparted by the schools. The Courts have set their face strongly against any deviation or violation of affiliation bye-laws. In Adarsh Shiksha Mahavidyalaya and others Vs Subhash Rahangdale and others, reported at, (2012) 2 SCC 425 the Hon'ble Supreme Court was seized with issues arising from contraventions of preconditions and requirements of affiliation of institutions under the NCTE Act read with the Regulations framed there under. In Adarsh Shiksha Mahavidyalaya and others Vs Subhash Rahangdale and others, reported at, (2012) 2 SCC 425 the Hon'ble Supreme Court was seized with issues arising from contraventions of preconditions and requirements of affiliation of institutions under the NCTE Act read with the Regulations framed there under. The following observations of the Hon'ble Supreme Court on issue of affiliation are conceptual in nature and can be quoted with profit: "87(xi) While granting affiliation, the examining body shall be free to demand rigorous compliance of the conditions contained in the statute like the University Act or the State Education Board Act under which it was established or the guidelines/norms which may have been laid down by the concerned examining body." 26. It is not disputed by the petitioner that the playground is not a part of compact land area where the building and the playground is contiguous. 27. In such view of the matter, the petitioner institution has not satisfied the mandatory pre-requisite for affiliation provided in bye-law no. 3 extracted earlier. 28. Contravention of the mandatory prerequisites of affiliation bye-law, shall entail disaffiliation of the institution. On this ground no fault can be found in the order dated 01.11.2018. 29. The other arguments of the petitioner shall now be considered. 30. The denial of permission by the ADM to construct an over-bridge is of no avail to the petitioner. It is the responsibility of the institution to satisfy all the pre-requisites for affiliation and obtain necessary permissions from the concerned authorities. 31. I find merit in the submission of Sri Dhananjay Awasthi, learned counsel for the respondents that parity cannot be claimed with other institutions acting in illegal breach of affiliation bye-laws on the foot of Article 14 of the Constitution of India. The law is well settled that equality claimed under Article 14 of the Constitution of India is not a negative equality. In other words, one illegality cannot justify or become the basis for committing another illegality. If the CBSE is permitting the institutions which are not satisfying the affiliation bye-laws to function, it would be a matter of concern. The Court will leave it there. It is for the officials of the CBSE to respond to the calls of their collective conscience. 32. The purported proposal to shift the institution to an alternative piece of land is contained in the communication dated 05.09.2016. The Court will leave it there. It is for the officials of the CBSE to respond to the calls of their collective conscience. 32. The purported proposal to shift the institution to an alternative piece of land is contained in the communication dated 05.09.2016. A perusal of the communication clearly discloses that the petitioner institution had never seriously canvassed the proposal for shifting the school building to the alternative site after construction of school building and satisfying other infrastructure requirements. The communication merely recites that the school has acquired land on lease as per the CBSE norms. The complete lease deed is not in the record of the writ petition, hence no comment can be made on the same. In any case in the communication dated 05.09.2016 there is no proposal for shifting of the school premises to such an alternative plot of land. The communication dated 05.09.2016 is equivocal and is not a credible defence against disaffiliation. The purported offer of the petitioner in the communication dated 05.09.2016 does not in any way impeach correctness of the order dated 01.11.2018 which disaffiliates the institution. 33. It is however, open to the petitioner to canvass its case before the respondent authorities, if permissible in law, independent of this controversy. 34. The penultimate argument of Sri R.K. Ojha, learned Senior Counsel shall now be considered that long continuance of the affiliation in favour of the institution estopped the respondent Board from cancelling the affiliation on the aforesaid ground. Considerations of equity arise in favour of the Institution which have been overlooked by the Board while passing the order dated 01.11.2018. 35. The argument is made only to be rejected. The long continuance of affiliation despite violation of the affiliation bye-laws does not accumulate any credit of equity in favour of the petitioner. On the contrary, the institution has incurred a debt which it cannot repay. The debt of students who went through the process of schooling without the experience of a play field. The debt of childhoods lost because of denial of opportunities to develop a love for the outdoor life and understanding comradeship through sporting activities. The considerations of the future of the young students of India is invaluable and cannot be weighed in balance with the immediate quest for profit of the petitioner. 36. The debt of childhoods lost because of denial of opportunities to develop a love for the outdoor life and understanding comradeship through sporting activities. The considerations of the future of the young students of India is invaluable and cannot be weighed in balance with the immediate quest for profit of the petitioner. 36. The right of an educational institution to seek affiliation from a board of education sub-serves and is subservient to the right of education of the children. 37. As a parting argument it was submitted that land documents were available with the petitioner. The argument has been mentioned since it was made. In view of the preceding narrative, it does not alter the fate of the case. 38. There is no infirmity in the order dated 01.11.2018. The writ petition is misconceived. 39. The writ petition is dismissed.