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2023 DIGILAW 483 (JK)

J&K Private Schools United Front v. UT of J&K

2023-09-08

SANJAY DHAR

body2023
JUDGMENT : SANJAY DHAR, J. 1. The petitioner Trust claims to be working for the welfare of private educational schools and institutes. It has laid challenge to the notification No. F(PP-Publication)B/22 dated 26.08.2022 issued by respondent No. 4, whereby all the private schools have been asked to ensure that in the first phase, the text books published by the J&K BOSE are implemented/prescribed by all the private schools across UT of J&K for classes 6thto 8thfrom the ensuing academic session. Challenge has also been thrown to communication dated 4th January, 2023 issued by respondent No. 4, communication dated 27.03.2023 issued by respondent No. 6, communication dated 28.03.2023 issued by respondent No. 5 and communication dated 28.03.2023 issued by respondent No. 7, which, in effect, have been issued as a follow-up to the impugned notification dated 26.08.2022. 2. The petitioner has challenged the aforesaid notification and communications on the ground that even though under Section 10 of the Jammu and Kashmir Board of School Education Act, 1975 (hereinafter referred to as “the Act of 1975”) the respondent Board is vested with power to prescribe text books but the said provision does not make it mandatory for the schools to prescribe the text books prescribed by the Board for their students. It has been further contended that Section 10 of the Act of 1975 is subject to the broad educational policies including National Education Policy, 2020 and National Curriculum Framework, 2005 and the impugned notification being not in consonance with aforesaid Policy Framework, is liable to be set aside. It has been further contended that the impugned notification is vague, non-specific and the same is not substantiated by any verified and authentic data. Lastly, it has been contended that respondent No. 4 is not competent to issue the impugned notification 3. The respondent Board has filed its reply to the writ petition, in which it has been submitted that prescription of curriculum, syllabi and development of textbooks from Class 1st to 12th is the domain of Jammu and Kashmir Board of School Education. Lastly, it has been contended that respondent No. 4 is not competent to issue the impugned notification 3. The respondent Board has filed its reply to the writ petition, in which it has been submitted that prescription of curriculum, syllabi and development of textbooks from Class 1st to 12th is the domain of Jammu and Kashmir Board of School Education. It has been contended that as per the provisions of the Act of 1975, the Board has the power to advise the Government on the matters of policy relating to the Elementary Education and Senior Secondary Education as also other matters pertaining to promotion of the education including prescription of courses of instructions, preparation of curricula, preparation of syllabi and prescription of text books for Elementary, Secondary and Senior Secondary schools. It has been further submitted that the Board has well established Curriculum Development and Research Wing at its divisional offices Jammu and Srinagar headed by Director Academics and it has permanent faculty of qualified academic staff to look after this task effectively. The respondent Board has further submitted that it functions according to the broader objectives set in the National Education Policy, 2020 and National Curriculum Framework, 2005. It is averred that while issuing the impugned notification, mandate of the law has been followed by the Board and that the said notification has the approval of the competent authority. According to the respondent Board, as per SRO 123 dated 18th March, 2010, every school has to follow the curriculum and the textbooks as may be prescribed for different classes by the Board. It has been submitted that the petitioner is interested in commercialization whereas the endeavour of the respondent Board is to benefit the students so as to provide them low-cost text books. It has also been contended that the text books published by the respondent Board are rich in content and cost effective. 4. I have heard learned counsel for the parties and perused the record of the case. 5. The first question which is required to be determined in this petition is as to whether the respondent Board is vested with the power to prescribe text books published by it and whether the Board can make it obligatory upon the private schools to ask their students to use only these text books. 5. The first question which is required to be determined in this petition is as to whether the respondent Board is vested with the power to prescribe text books published by it and whether the Board can make it obligatory upon the private schools to ask their students to use only these text books. The other question which is required to be determined is as to whether impugned notification dated 26th August, 2022 has the approval of the competent authority. 6. Section 10 of the Act of 1975 deals with powers and functions of the Board. Clause (i) of the said provisions is relevant to the context and the same is reproduced as under: Subject to the provisions of this Act and also subject to the broad educational policies and such directions and instructions as the Government may adopt and issue, from time to time, the Board shall have the following powers and functions: (i) to prescribe the courses of instructions, prepare curricula and detailed syllabi and also prescribe text books for the Pre-primary, elementary, secondary school and Higher Secondary (School graduation) school examinations and Elementary Teachers Training Course. 7. From a perusal of the aforesaid provision, it is clear that the respondent Board has the power to prescribe the courses of instructions, prepare curricula and detailed syllabi and also prescribe text books for the Pre-primary, elementary, secondary school and High Secondary (School graduation) and school examinations and Elementary Teachers Training Course. 8. Section 2(l) of the Act of 1975 defines “text book.” The same is reproduced as under: “Text Book” in relation to any standard or course means any book prescribed/ approved by the Board or caused to be prepared/approved by the Board. 9. From the above, it is clear that a text book means any book prescribed or approved by the Board or caused to be prepared/approved by the Board. Therefore, a text book would include a book prepared/approved by the Board. Publication of a text book would also mean preparation of a text book. Thus, it is clear that the Board has the power to prescribe and publish text books because definition of “text book” includes its preparation/approval by the Board. Therefore, it can safely be stated that the power of the Board to prescribe text books would also include its power to publish these books. 10. Thus, it is clear that the Board has the power to prescribe and publish text books because definition of “text book” includes its preparation/approval by the Board. Therefore, it can safely be stated that the power of the Board to prescribe text books would also include its power to publish these books. 10. Learned counsel for the petitioner has vehemently argued that even if it is assumed that the Board has power to prescribe text books which would include publication of the text books, still then such power is subject to the broad educational policies. Taking his argument further, the learned counsel has submitted that as per paragraphs 4.31 and 4.32 under the heading “National Text books with Local Content and Flavour” contained in National Education Policy, 2020, the schools have to be given choice in text books they employ. In this regard, it would be apt to reproduce aforenoted clauses of National Education Policy, 2020: 4.31. The reduction in content and increased flexibility of school curriculum - and the renewed emphasis on constructive rather than rote learning - must be accompanied by parallel changes in school textbooks. All textbooks shall aim to contain the essential core material (together with discussion, analysis, examples, and applications) deemed important on a national level, but at the same time contain any desired nuances and supplementary material as per local contexts and needs. Where possible, schools and teachers will also have choices in the textbooks they employ - from among a set of textbooks that contain the requisite national and local material - so that they may teach in a manner that is best suited to their own pedagogical styles as well as to their students and communities’ needs. 4.32. The aim will be to provide such quality textbooks at the lowest possible cost - namely, at the cost of production/printing - in order to mitigate the burden of textbook prices on the students and on the educational system. This may be accomplished by using high-quality textbook materials developed by NCERT in conjunction with the SCERTs; additional textbook materials could be funded by public-philanthropic partnerships and crowd sourcing that incentivize experts to write such high-quality textbooks at cost price. This may be accomplished by using high-quality textbook materials developed by NCERT in conjunction with the SCERTs; additional textbook materials could be funded by public-philanthropic partnerships and crowd sourcing that incentivize experts to write such high-quality textbooks at cost price. States will prepare their own curricula (which may be based on the NCFSE prepared by NCERT to the extent possible) and prepare textbooks (which may be based on the NCERT textbook materials to the extent possible), incorporating State flavour and material as needed. While doing so, it must be borne in mind that NCERT curriculum would be taken as the nationally acceptable criterion. The availability of such textbooks in all regional languages will be a top priority so that all students have access to high-quality learning. All efforts will be made to ensure timely availability of textbooks in schools. Access to downloadable and printable versions of all textbooks will be provided by all States/UTs and NCERT to help conserve the environment and reduce the logistical burden. 11. Learned counsel for the petitioner has also referred to paragraph 4.6 of National Curriculum Framework, 2005, to emphasize the point that the schools and students cannot be asked to use only the textbooks published by the respondent Board and that any notification restricting the choice of students and schools is not in accordance with the Framework, 2005. 12. It is true that power of the respondent Board to prescribe courses of instructions, prepare curricula, syllabi and to prescribe text books has to be subject to broad educational policies and directions on the subject by the Government but the power of the Board to prescribe books which would include publication of text books, cannot be diluted or taken away. The only requirement is that these prescribed text books have to be in consonance with the Education Policy in operation as also in conformity with the National Curriculum Framework. The broad educational policies and the instructions of the Government from time to time on the subject guide the Board in prescription of the textbooks. 13. It has been submitted by the respondent Board in its affidavit that it has a well-established curriculum development and research wing which is manned by permanent faculty of qualified academic staff. The broad educational policies and the instructions of the Government from time to time on the subject guide the Board in prescription of the textbooks. 13. It has been submitted by the respondent Board in its affidavit that it has a well-established curriculum development and research wing which is manned by permanent faculty of qualified academic staff. It is these academicians who take care of selecting appropriate text books so that the same can be prescribed by the Board in exercise of its powers under Section 10 of the Act of 1975 for use by the students. Prescription of text books by the Board is a policy matter and it has been the consistent view of the Supreme Court and various High Courts of the Country that in policy matters, particularly those relating to education, judicial restraint has to be adhered to. The Courts cannot interfere or substitute their opinion for that of the experts. I am supported in my aforesaid view by the judgment of the Supreme Court in the cases of University of Mysore and Another vs. C.D. Govinda Rao and Another, AIR 1965 SC 491 , Dr. J.P. Kulshreshtha and Others vs. Chancellor, Allahabad University and Others, (1980) 3 SCC 418 , Chairman J&K Board of Education vs. Fayaz Ahmad Malik and Others, (2000) 3 SCC 59 , Dental Council of India vs. K.K.B Charitable Trust and Another, (2001) 5 SCC 486 and Rajbir Singh Dalal vs. V. Chaudhari Devi Lal University, Sirsa and Another, (2008) 9 SCC 284 . 14. Without burdening this judgment with what has been observed by the Supreme Court in each of the afore-quoted cases, it would be apt to note that in the case of Chairman J&K Board of Education (supra), the Supreme Court has stressed upon the importance of the functions of the expert body and has observed that the opinion of an expert body consisting of persons coming from different walks of life who are engaged in or interested in the field of education and have wide experience entrusted with the duty of maintaining higher standards of education, should be given due weightage by courts. 15. 15. In view of the aforesaid analysis of the law on the subject, it is clear that the policy decisions and guidelines issued by the Board with regard to the matters relating to curriculum, syllabus and prescription of text books for the schools affiliated to the Board cannot be interfered with by the Courts, otherwise the whole exercise made by various stakeholders including educationists etc. would become futile. If the schools are at liberty to choose books, it would not only create chaos and confusion but there would not be uniformity in the education system throughout the Union Territory. The respondent Board while issuing the impugned notification is right in observing that the practice of prescribing textbooks from different private publishers by different private schools results in non-uniformity in curriculum being taught and even instances of controversial content finding way in some textbooks cannot be ruled out. Therefore, the decision of the Board in prescribing the textbooks published by it for use by the schools and students cannot be interfered with by this Court. 16. The High Court of Delhi in the case of Federation of Educational In India vs. Directorate of Education and another, [W.P. (C) No. 13143/2018 & CM No. 51010/2018 decided on 27th March, 2019], while emphasizing upon the need for uniformity in curriculum upheld the stipulation issued by the Directorate of Education to the effect that the schools running under the aegis of the said Directorate have to follow the text books prescribed by SCERT, NCERT and CBSC. The Court observed as under: 56. The intention, behind the stipulation, in Clause 2.4.7 of the Affiliation Bye-Laws of the CBSE, to the effect that, in classes and subjects in which textbooks have been published by the NCERT, the School may prescribe the said textbooks, is, in my opinion, apparent. The advisability of the material, being taught by schools to students who are studying in schools affiliated to a common Board, and governed by a common syllabus, being uniform, is self-evident. While discretionary autonomy must necessarily remain, to some extent, with the teacher, to decide regarding the extent to which knowledge should be disseminated to the students under her, or his, tutelage, the basic textual material on which the students would be assessed, periodically or at the end of the academic year, must ideally be uniform. While discretionary autonomy must necessarily remain, to some extent, with the teacher, to decide regarding the extent to which knowledge should be disseminated to the students under her, or his, tutelage, the basic textual material on which the students would be assessed, periodically or at the end of the academic year, must ideally be uniform. If schools are to be given an absolute discretion to decide the textbooks from which they will teach the students, it would result in the level of education, and the level of knowledge, being possessed by students of the same class, studying under the same Board and subject, ultimately, to the same examination, being different, which would result in a situation of chaos, ultimately inimical to the interests of the students themselves. It is obviously to attain this uniformity, to the extent possible, that the CBSE has prescribed, in its bye-laws, that, where the NCERT has published textbooks, those textbooks ought to be prescribed, as the basic material to be taught to the students, and on which the students would be assessed. 57. No doubt, it is only at the stage of Class X, and, thereafter, Class XII, that students of all schools, under the CBSE, are jointly evaluated. The educational journey of a student, till she, or he, reaches Class X, is, however, an evolutionary process, and, therefore, the assimilated knowledge of the student, by the time she, or he, reaches Class X, is the accumulated whole of the knowledge gained over the formative years in the earlier classes. When all the earlier classes are under the umbrella of a single Board, therefore, it is essential that the syllabi, and prescribed study materials, be uniform, so that there is no dissonance amongst the students by the time they reach Class X, and, later, Class XII. 58. Students, in our country, constitute a homogeneous whole. Uniformity of dissemination of education, among them, is a necessity, in order that they march together, matching step for step, on the path of knowledge and learning, towards the creation of a new and vibrant Bharat, for the ages to come. 58. Students, in our country, constitute a homogeneous whole. Uniformity of dissemination of education, among them, is a necessity, in order that they march together, matching step for step, on the path of knowledge and learning, towards the creation of a new and vibrant Bharat, for the ages to come. Dissonance in the ranks, which would be an inevitable sequitur, were each school to be given absolute authority to prescribe the books which it would teach its students, and on which they would be evaluated and assessed, is inimical not only to the interests of the students themselves, but would ultimately defeat national interest, of which the children of today are the strident sentinels of tomorrow. 59. Such uniformity would also obviate the requirement of monitoring the content of the material which individual schools may choose to teach their students. The mere observation, almost as a caveat, in the NCF, to the effect that schools should be careful to ensure that books published by private publishers should not contain any “objectionable content” can hardly suffice in this regard, given the length and breadth of our country, and the number of schools which are imparting education, simultaneously. Besides, the concept of “objectionability” is also essentially fluid; what may be seen as objectionable by one may not be regarded as objectionable by another. Ours is a nation which prides itself on its linguistic, cultural, religious and regional diversity; but this diversity carries, with it, the pernicious threat of inculcation, of ideas and concepts, to children in their formative years, which may be disconsonant with national interest, and, on occasion, even national security. The sowing of extreme and fundamentalist seeds, in impressionable and innocent minds, is not an unknown phenomenon today, and prescribing of common educational media, to be scrupulously followed by schools under the common CBSE umbrella, is but a small step towards controlling this menace. 60. Thus viewed, the stipulation, in the impugned Circular dated 29th November, 2018, issued by the DoE, to the effect that the schools running under the aegis of the DoE have to follow textbooks prescribed by the SCERT, the NCERT and the CBSE, is only in consonance with the provisions of the DSE Act, the DSE Rules, the RTE Act as well as the Affiliation Bye-Laws of the CBSE. It has, therefore, to be regarded as mandatory. 61. It has, therefore, to be regarded as mandatory. 61. Before parting with this judgment, I may only note that, in my view, the reliance, by Mr. Luthra, on the judgment of this Court in Association of School Vendors (supra) is completely misplaced. The issue in the case was entirely different from that which arises in the present case. The controversy, therefore, was whether there could be any legal embargo on vending of publications, other than those of the NCERT or the SCERT, in tuck shops which were permitted to operate in schools. This Court decided this issue in the negative, relying, for the said purpose, on Article 19(1)(g) of the Constitution of India. In that case, the court dealt with the right of textbook manufacturers to ply their trade, whereas the present case deals with the necessity of having uniform textbooks, in the interest of students studying in schools affiliated to a common Board. The submissions of Mr. Tripathi, in this regard, are well taken. The two cases are as alike as chalk and cheese. 62. Before concluding, it does appear piquant that the torch-bearers, for the supposed interests of the students, in this case, are neither the students, nor their parents, nor even the schools who would be required to comply with the impugned Circular, but an association of private publishers of textbooks. For the nonce, I say no more. 63. The challenge to the impugned stipulation, in the Circular dated 29th November, 2018 is, therefore, repelled. This Court endorses the mandate, reflected in the said stipulation, to the effect that, in respect of subjects, for which textbooks have been prescribed by the CBSE, and published by the NCERT/SCERT/CBSE, the said prescription shall scrupulously be followed by all schools subject to the control of the DoE. The syllabi and textbooks, prescribed by the CBSE, shall constitute the basis of imparting of education, as well as evaluation, of all schools students, from Classes I to X. Needless to say, this would apply only to schools affiliated to the CBSE. 64. Should, however, any individual teacher desire to impart knowledge, to her, or his, students, in addition to that which is available in the said textbooks, needless to say, she/he would be at liberty to do so. It is important to distinguish between what is prescribed to be taught, by the competent authority, and what a teacher may teach. 64. Should, however, any individual teacher desire to impart knowledge, to her, or his, students, in addition to that which is available in the said textbooks, needless to say, she/he would be at liberty to do so. It is important to distinguish between what is prescribed to be taught, by the competent authority, and what a teacher may teach. A resourceful, knowledgeable, and competent, teacher may have, in her, or his treasury, a wealth of information and learning, transgressing what is contained in the prescribed textbooks, with which she, or he may desire to enlighten her students. No law can prevent her or him from doing so. Dissemination of knowledge is one of the most sacred duties of man, and there can be no curbs, thereon, by any law known to civilised society. We are concerned, in the present case, with the prescribed textbooks, i.e. the textbooks prescribed and which have, therefore, to be taught by the schools, to the students, and on which alone the students would be assessed and evaluated. 65. Subject to the caveat contained in paragraph 64 (supra), the writ petition is dismissed. 17. From the foregoing analysis of the law on the subject, it is clear that once it is found that the Board of School Education is vested with statutory power to prescribe text books which include publication of these books, it would be well within its power to make it mandatory for the affiliated schools to use only those books that have been prescribed and published by the Board. Neither the private schools nor other publishers have any right to compel the Board to prescribe text books published by these private publishers. The prescription of text books published by the Board would not infringe right of any publisher or owner of a private school as long as the respondent Board has to power to do so which it does have in terms of Section 10 of the Act of 1975. 18. That takes us to the question whether the impugned notification had the approval of the competent authority. 19. The respondents have placed on record minutes of the State Affiliation Committee/Recognition Committee meetings held on 7th August, 2013 and 18th May, 2023. 18. That takes us to the question whether the impugned notification had the approval of the competent authority. 19. The respondents have placed on record minutes of the State Affiliation Committee/Recognition Committee meetings held on 7th August, 2013 and 18th May, 2023. In these meetings several resolutions have been adopted by the Committee of the Board, one of which provides that any deviation or non-compliance of the instructions or orders of the J&KBOSE or Government of Jammu and Kashmir issued from time to time/non-adoption of J&KBOSE prescribed text books and curricula by any academic institution shall warrant a disciplinary action, imposition of a penalty upto Rs. 50,000/- or both and that it shall be reinforced for strict implementation. 20. Apart from the above, SRO 123 dated 8th March, 2010, vide which the Jammu and Kashmir School Education Rules, 2010, have been notified, contains Rule 11 which provides for library and text books. Rule 11 reads as under: (a) Every school shall follow the curriculum and the text books as may be prescribed for different classes by the Jammu and Kashmir State Board of School Education, save in respondent of the Classes/subjects where Government or the State Board of School Education may provide for flexibility consistent with the public interest. (b) Every private High and Higher Secondary Schol and Teachers Training Institute (TTI) shall have a library of 2000 books including conference/text books, in the first year and shall add 200 books, in circulation in each subsequent year. (c) The aforesaid High and Higher Secondary School and TTI shall also initially subscribe to at least three Journals/Magazines. 21. As per the aforesaid Rule, it has been made incumbent upon every school to follow curriculum and textbooks prescribed by the Jammu and Kashmir Board of School Education. These Rules have been framed in exercise of power under Section 29 of the J&K School Education Act, 2002, and have statutory force. By virtue of the resolution adopted by the Affiliation Committee of the Board, adherence to the aforesaid Rule has been made compulsory by the Board. It is pursuant to this Statutory Rule that respondent No. 4 has issued the impugned notification making it obligatory upon all the schools affiliated to the Board to use the textbooks prescribed and published by the Board. Therefore, it cannot be stated that the impugned notification has been issued without the approval of the competent authority. It is pursuant to this Statutory Rule that respondent No. 4 has issued the impugned notification making it obligatory upon all the schools affiliated to the Board to use the textbooks prescribed and published by the Board. Therefore, it cannot be stated that the impugned notification has been issued without the approval of the competent authority. The argument of learned counsel for the petitioner is, therefore, without any merit. 22. For the foregoing reasons, I do not find any merit in this writ petition. The same is dismissed accordingly. Interim direction, if any, shall stand vacated.