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High Court Of Calcutta
Amitava Lala
ORGANISING MANAGING COMMITTEE, KENDUA RAKSHAKALI VIDYAMANDIR - Appellant
Versus
WEST BENGAL BOARD OF SECONDARY EDUCATION - Respondent
W. P. 2598 Of 1997
Decided On : 12/14/1999
EDUCATION - RECOGNITION OF INSTITUTION - RIGHT TO ESTABLISH EDUCATIONAL INSTITUTION - RIGHT TO RECOGNITION/AFFILIATION - WRIT JURISDICTION - SCOPE OF JUDICIAL REVIEW:
Fact of the Case:
Petitioner filed a writ petition challenging the impugned order of the Secretary of the Board of Secondary Education refusing recognition to their school. The grounds for refusal were that the classrooms were too small, enrollment was low, there were other high schools nearby, the school had purchased a Kishan Bikash Patra in 1995 instead of 1970, and teaching and non-teaching staff were appointed only in 1981.
Finding of the Court:
The court held that the right to establish an educational institution is not an absolute right and is subject to such laws as may be made by the State in the interest of the general public. The court also held that the right to establish an educational institution does not carry with it the right to recognition or affiliation, which are essential for a meaningful exercise of the right to establish and administer educational institutions.
Issues: 1. Whether the impugned order refusing recognition to the petitioner's school was justified. 2. Whether the court could investigate the matter under writ jurisdiction.
Ratio Decidendi: 1. The court held that the grounds for refusal of recognition were not strictly in conformity with the mechanical grounds given under the Division Bench judgment and that there were substances for the refusal. 2. The court held that it could not investigate the matter under writ jurisdiction but could not ignore the issue without further investigation by the appropriate authority.
Final Decision: The court directed the District Inspector of Schools to get the school inspected by the DLI Team within four weeks and forward the report to the Director of School Education, who would then forward it to the Educational Department and the West Bengal Board of Secondary Education. The Board would then consider the question of recognition and pass necessary orders within six weeks.
( 1 ) THE Court: This is an application in the nature of writ petition arising out of non-consideration of recognition of the Institution.
( 2 ) THE impugned order under challenge is at page 264 of the writ petition being No. S/280 dated 19th September, 1997 being annexure 'w' to the writ petition whereunder the following grounds of refusal are set out:1. THE Classrooms are of 252 sq. ft. (18' x 14') in size which are very small in respect of the prescribed size. 2. Enrolment of School has been claimed to be 137 in 96/97 session but on the date of inspection only 86 students have been found which is far below for making the school a viable one. 3. There are at least four High Schools located within a distance of 5 and 6 k. m. from the proposed school and thus no new school is needed in the area. 4. The School is claiming to have been established in 1970, but the School purchased Kishan Bikash Patra of Rs. 5000/- only on 7. 10. 95 as its Reserve Fund instead of in the year 1970. 5. Teaching and non-teaching staff were appointed on and from 22. 7. 81 and thereafter this can be considered a conclusive evidence that the School is not being run from the 1975 at all. "
( 3 ) ACCORDING to Mr. Arun Prakash Sarkar, learned senior counsel, appearing in favour of the petitioners that the order of refusal is mechanical in nature and covered by a Division Bench judgment of this Court being 1998 (1) CLJ 141 (Nabadwip Chandra Das and Ors. v. West Bengal Board of Secondary Education and Ors. ). In such well known judgment, in fact, the Division Bench of this court reiterated the principles laid down by the Hon'ble Supreme Court as reported in 1993 (1) SCC 645 (Unni Krishnan v. State of Andhra Pradesh) to the extent of observation that the citizens have fundamental right of education as flowing from Article 21 the Constitution of India. Therefore, it is desirous that educational Institution should be given recognition and/or affiliation which is very lifeblood of a private Educational Institution and without such recognition if the studies in the private Educational Institution continues the same may be rendered infructous in effect to achieve the goal of education of the Students.
( 4 ) THE Division Bench of this Court discarded the rejection of recognition and/or affiliation of the school on the mechanical manner being : (I)the School has not applied in the prescribed form with a requisite fee of Rs. 25/- by 1975 to the record; (ii)teaching and non-teaching staff were appointed not keeping in view of the staff pattern and without observing the existing norms; and (iii)there are two Secondary/junior High Schools within the radius of 4/5 k. m. and as such another junior High School will not be a viable one.
( 5 ) A single Bench of this Court under C. O. No. 1179 (W) of 1996 (Chittaranjan Tikadar v. State of West Bengal and Ors.) held that such grounds of rejection was also brustasdide.
( 6 ) HOWEVER, right of education being part and parcel of Article 21 of the Constitution is distinct and different form giving recognition/affiliation/up-gradation of an Institution.
( 7 ) I have carefully considered the judgment of the Supreme Court as reported in 1993 (1) SCC 645 (supra), wherefrom it is crystal clear that establishing Educational Institutions can under no stretch of imagination be treated as practising any profession under the meaning of Article 19 (1) (g) of the Constitution of India. Teaching may be a profession but establishing an institution, employing teaching and non-teaching staff, procuring the necessary infrastructure for running a School or College is not 'practising profession'. Therefore, the Supreme Court made it clear that it had not gone into the precise meaning and content of the expressions profession, occupation, trade or business for the reason that it is not necessary for the court to do so in view of the approach adopting hereinafter. The observation was that activity of establishing and/or running
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