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2009 Supreme(Ker) 303
High Court Of Kerala
K. BALAKRISHNAN NAIR, M.L. JOSEPH FRANCIS
Bharathiya Vidyabhavan - Appellant
Versus
State Of Kerala - Respondent
W.P.(C).Nos. 34184, 34871, 34910, 34912, 34941, 35008, 35342, 35343, 35405, 35498 & 36428 of 2007, 153, 856, 882, 2923, 6501, 6660, 7604, 8724, 8725, 8732, 8765, 8766, 8780,8781, 8902, 8903, 9014, 9576, 11260, 11727, 12537,15516, 16149, 17974, 20204, 30112, 31695, 32531, 32839, 32840, 32846, 33625, 33657, 33836, 33962, 33986, 34370, 34438, 34906, 34973, 35176, 35386 & 36331 of 2008, 164, 922, 924, 1153, 4995, 5117, 5122, 5132, 5153, 925, 6253, 6419, 6476, 6781, 10180 & 10760 of 2009
Decided On : 04/06/2009
For the Petitioners:V.V. Asokan, Advocate. For the Respondents: P. Parameswaran Nair, Asst. Solicitor.
Headnote:
Kerala Education Rules, 1959 - Chapter V Rule 2 & Chapter V Rule 2A - Whether the procedure prescribed under Rr.2 & 2A of Chap.V K.E.R., can be made applicable for grant of NOC for C.B.S.E. & I.C.S.E. Schools by executive orders - Whether executive orders can be issued whereby only who are running recognized schools under K.E.R. are eligible to apply for NOC for establishing C.B.S.E. & I.C.S.E. Schools - Held, Application for N.O.C. has been rejected, on the additional ground that the teachers are not paid salary at the rate paid to the teachers in Government/Aided schools in the State, as provided under the Affiliation Bye-laws - If the application for N.O.C. is rejected on the ground that the teachers are not paid salary as provided under the Affiliation Bye-laws, it is a valid ground for rejection - Writ Petitions Disposed of
Balakrishnan Nair, J.
The petitioners in these writ petitions have applied for No Objection Certificates (N.O.C.) from the Kerala Government for establishing C.B.S.E. or I.C.S.E. schools. As per the Affiliation Bye-laws of C.B.S.E. and I.C.S.E., N.O.C. from the State Government is one of the mandatory requirements for grant of affiliation. Therefore, the writ petitioners moved the Government, seeking NO.C., by filing appropriate applications. Their applications are either pending or have been rejected. Those applications were dealt with by the Government as per Government Order, G.O.(MS) No.18/88/GEdn dated 11.1988. Earlier, this Court held that clause (xii) of the said Government Order is arbitrary and unworkable. So, the Government issued G.O.(MS) No. 204/08/G.Edn. dated 112.2008, deleting clause (xii) of G.O.(MS) No.18/88/G.Edn. dated 11.1988 and also incorporating certain new provisions in the said Government Order dated 11.1988. Still later, the words recognised by the Government, in the opening sentence of paragraph 3 of the Government Order dated 112.2008 was substituted by the word established, as per G.O.(MS) No.3/09/G.Edn. dated 1.2009. Feeling aggrieved by the last two Government Orders mentioned above, these writ petitions are filed. Since common questions arise for consideration in these writ petitions, they are heard and disposed of together by this common judgment.
2. We will now briefly refer to the facts of the case.
W.P.(C) No. 34912 of 2007
This case is treated as the main case, for the purpose of referring to the exhibits. The petitioner in this writ petition is a Trust. It moved the Government by submitting Ext.P1, which is a copy of the application for affiliation, along with a covering letter, seeking N.O.C. It wanted to establish Nirmala Public School at Karimannoor, Thodupuzha. The proposal is to run a Higher Secondary School with Standards 1 to 12. Ext.P2 is G.O.(MS) No. 18/88/G.Edn. dated 11.1988, containing the norms formulated by the Government for grant of N.O.C. for affiliation.
3. The petitioners application was enquired into by the District Educational Officer and the said officer submitted Ext.P3 report before the D.P.I. on 24.2006, recommending grant of N.O.C. The Director of Public Instruction, by Ext.P3(a) dated 6.2006, also favoured the grant of N.O.C. to the writ petitioner. While so, the Government returned the application as per Ext.P4 dated 210.2006, directing the writ petitioner to submit the application as per the new guidelines to be framed by it. Ext.P4 was challenged before this Court by filing Writ Petition (C) No.8120 of 2007. While so, new guidelines for grant of N.O.C. were issued by the Government, as per G.O.(P) No.107/07/G.Edn. dated 16.2007, which is produced as Ext.P5 in this writ petition. The petitioner amended the writ petition and challenged the objectionable clause in Ext.P5. The said writ petition was allowed by Ext.P6 judgment. Paragraph 2 of Ext.P5 dealing with recognition of unaided schools and grant of
N.O.C. toC.B.S.E. and I.C.S.E. schools was quashed by this Court.
4. The Government filed Writ Appeal against that judgment. While so, the C.B.S.E. team visited the petitioners school on 17.2007. Later, the Government issued Ext.P7 order dated 111.2007, rejecting the petitioners application for N.O.C. Challenging Ext.P7, the present writ petition was filed.
5. During the pendency of the writ petition, the Government issued G.O.(MS) No.204/08/G.Edn. dated 112.2008, a copy of which is produced as Ext.P26. The said Government Order was corrected by Ext.P27 Government Order dated 1.2009. The petitioner amended the writ petition, challenging Ext.P26, as amended by Ext.P27. Since it is unnecessary to refer to other details pleaded in the writ petition, we will now come straight to the point to be decided. The petitioner submits that going by Ext.P26, as modified by Ext.P27, only persons, who are running recognised schools in the State, are eligible to apply f
