IMPORTANT POINT
Kerala’s requirements for issuing NOC to schools for seeking affiliation with CBSE are arbitrary.

Headnote:(a) School education – CBSE affiliation – NOC from State for seeking affiliation – Imposing requirement of 3 acres of land as against requirement of 1 acre as per CBSE norms – Held, High Court rightly striking down the condition being arbitrary. (Para 20)
       (b) School education – CBSE affiliation – NOC from State for seeking affiliation – Imposing requirement of 300 students – An impossibility under RTE Act, 2009 having one division in each class – Requirement held, arbitrary. (Para 27)
       Facts of the case:
       This case relates to NOC required by schools in Kerala for seeking affiliation with Central Board of Secondary Education.
       Finding of the Court:
       Both the requirements are arbitrary.
       Result: Appeal dismissed.

JUDGMENT

Madan B. Lokur, J.

1. The fundamental right to free and compulsory education to all children between the age of 6 and 14 years postulates good quality education and not just education for the sake of providing education. Regulation of such education is permissible by law and not by executive fiat. Unfortunately, in this batch of petitions, the State of Kerala seeks to impose its authority over schools that provide apparently quality education, which is perceived to be a threat to the public education system in the State.

2. The challenge by the State of Kerala in this batch of petitions is to the judgment and order dated 14th September, 2012 passed by a Division Bench of the High Court of Kerala. In our opinion, all these petitions deserve to be dismissed.

Brief background

3. Without going into any great detail into the history (which is replete with litigation – as if schools have nothing better to do) leading up to these petitions, it needs to be said that the affiliation of schools by the Central Board of Secondary Education (CBSE) is governed by its Affiliation Bye-laws. Clause 3(i) of the Bye-laws mandates formal prior recognition by the State/Union Territory Government. Additionally, the application for affiliation should be forwarded by the State Government or there should be a No Objection Certificate (NOC) to the effect that the State Government has no objection to the affiliation of the school with the CBSE.

4. Apparently with this in mind, the State of Kerala issued certain guidelines on 13th June, 2007 limiting consideration of applications for grant of an NOC to 5 northern districts in the State. The Government Order (G.O.) was challenged by the management of some schools and it was set aside by the High Court.

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

“Delay condoned.
The State Government has filed these SLPs challenging the order of the High Court directing consideration of the applications filed by the respondents for grant of ‘no objection certificate’ for seeking affiliation with Central Board of Secondary Education (for short ‘CBSE’) for a new institution/existing institutions. The State Government had earlier rejected the request with reference to the Policy of the State Government then in force.
When the matter came up today, both sides submitted that the State Government has now made a new Policy contained in G.O.(MS) No.137/2011/G. Edn. dated 10.6.2011 which reads as under:
“Government are pleased to accord sanction for issuing No Objection Certificate for getting CBSE/ICSE affiliation to schools, which totally fulfils the norms and conditions prescribed by CBSE/ICSE and having own land and basic facilities.
Further guidelines will be issued by the Department in due course.”
In view of the said Policy, it is submitted that these SLPs by the State Government have become infructuous as the State Government will have to consider the applications of the respondents with reference to the said new Policy dated 10.6.2011 and pass appropriate orders within three months from today.
It is needless to say that if the respondents-applicants are aggrieved by any order passed on such consideration, they will be entitled to challenge the same in accordance with law.
…………….”

6. It is significant to note that the last line of the G.O. dated 10th June, 2011 stated that further guidelines would be issued by the concerned department in due course.

7. These further guidelines as postulated by the G.O. dated 10th June, 2011 came to be issued on 7th October, 2011. These (new) guidelines were not supplementary but a completely extra set of guidelines that prescribed norms for the grant o

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2018 Supreme(SC) 439

IMPORTANT POINTKerala’s requirements for issuing NOC to schools for seeking affiliation with CBSE are arbitrary.

IMPORTANT POINT
Kerala’s requirements for issuing NOC to schools for seeking affiliation with CBSE are arbitrary.