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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. MUHAMED MUSTAQUE, J.
Dynamic English Medium School - Petitioner
Vs.
State of Kerala - Respondent
W.P.(C) No.31912 of 2014
Decided On : 05-07-2018
These Writ Petitions concern the right of the petitioners to establish both elementary schools and high schools. There are two sets of petitioners. It can be categorised as follows: (i) The petitioners who have applied for recognition and No Objection Certificate from the State Government for establishing high schools by affiliating such schools to CBSE/ICSE; and (ii) the schools which want to have a recognition upto elementary schools with the syllabus of their choice such as CBSE/ICSE or State syllabus. Some of the petitioners have established schools much before the Right of Children to Free and Compulsory Education Act, 2009 (Act 35 of 2009) came into existence. Some of them have established schools after the Act came into force. Admittedly none of the petitioners have recognition from the State Government in terms of Act 35 of 2009. Some of the schools want to have affiliation with CBSE/ICSE at high school and higher secondary level. They have approached the State Government. The State Government refused No Objection Certificate. Some of them have applied for recognition for elementary school. The State Government refused the recognition as well.
2. The common issue in these Writ Petitions is whether the State Government is bound to grant recognition to such schools which have established prior to Act 35 of 2009 and after the Act came into force. The petitioners also submit that the State Government is bound to grant No Objection Certificate to such schools for obtaining affiliation with CBSE/ICSE, etc.
3. The Right of Children to Free and Compulsory Education Act, 2009 is an enactment to provide free and compulsory education to all children upto the age of 14 years. This enactment is a fulfillment of long cherished constitutional obligations under Article 21A of the Constitution inserted by the 86th amendment. S.18 of the Act mandates that “no school, other than a school established, owned or controlled by the appropriate Government or the local authority, shall, after the commencement of this Act, be established or function, without obtaining a certificate of recognition from such authority, by making an application in such form and manner, as may be prescribed.” It is further provided in the proviso to S.18(2) that “no such recognition shall be granted to a school unless it fulfills norms and standards specified under S.19.” Proviso to S.18(3) refers that even such recognition granted will stand withdrawn on the contravention of the conditions of recognition. S.19 lays down the norms and standards which are as follows:
“19. Norms and standards for school.– (1) No school shall be established, or recognised, under Section 18, unless it fulfils the norms and standards specified in the Schedule.
(2) Where a school established before the commencement of this Act does not fulfil the norms and standards specified in the Schedule, it shall take steps to fulfil such norms and standards at its own expenses, within a period of three years from the date of such commencement.
(3) Where a school fails to fulfil the norms and standards within the period specified under sub-section (2), the authority prescribed under sub-section (1) of Section 18 shall withdraw recognition granted to such school in the manner specified under sub-section (3) thereof.
(4) With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function.
(5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.”
It mandates that all schools shall fulfill the norms and standards as specified in the Schedule to the Act. In respect of schools already established prior to the Act, S.19(2) mandates that such schools shall fulfill the norms and standards as referred to in the Schedule within a period of three years
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