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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.VINOD CHANDRAN, V.G.ARUN, JJ.
State of Kerala, Represented by the Secretary to Government, General Education Department and Anr. – Appellants
Versus
The Manager, Mahatma Public School, Kottackakom And Ors. – Respondents
WA. 173 of 2019, 1622, 1655, 1932, 2051, 2140, 2284, 2295 of 2018, 1236, 1237, 256, 261, 269, 271, 273, 283, 285, 286, 287, 297, 298, 302, 303, 304, 307, 309, 317, 318, 319, 321, 322, 324, 325, 327, 328, 329, 333, 339, 340, 345, 346, 347, 348, 349, 350, 352, 354, 355, 356, 361, 362, 363, 365, 366, 367, 368, 371, 372, 373, 374, 375, 376, 377, 379, 380, 381, 382, 383, 384, 385, 386, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 420, 421, 422, 424, 425, 426, 427, 428, 429, 430, 431, 432, 434, 435, 436, 437, 438, 439, 440, 441, 443, 444, 445, 446, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474, 475, 476, 477, 478, 479, 480, 481, 482, 483, 484, 485, 487, 488, 489, 490, 491, 492, 493, 494, 496, 497, 498, 499, 500, 501, 502, 503, 504, 505, 506, 507, 508, 509, 510, 511, 512, 513, 514, 515, 516, 517, 518, 519, 520, 521, 522, 523, 524, 525, 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 536, 537, 538, 539, 540, 541, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 565, 566, 567, 568, 569, 570, 571, 572, 573, 574, 575, 576, 577, 578, 579, 580, 581, 582, 583, 584, 585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598, 599, 600, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620, 621, 622, 623, 624, 625, 626, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 639, 640, 641, 642, 643, 644, 645, 657, 658, 660, 662, 671, 672, 684, 963 of 2019
Decided On : 12-07-2019
The Right of Children to Free and Compulsory Education Act, 2009- Recognition of the Government- The RTE Act is not applicable to minority institutions, we, nevertheless find such minority institutions also to be necessarily affiliated under recognized Boards of Examination, even if any such institution imparts only elementary education. Otherwise, the vision behind providing for free and compulsory elementary education would be defeated and the aspirations to proceed for higher education stand frustrated; of the students studying in un-affiliated schools.
Statement of facts:
Batch of appeals are against the judgment of a learned Single Judge in numerous writ petitions filed by the managements. The managements of schools, established and those aspiring to establish one, sought recognition of the Government as mandated under the Right of Children to Free and Compulsory Education Act, 2009 -A sizeable number are minority institutions. The appeals by the State are with respect to the findings of the learned Single Judge that the "assessment of educational need is only for the purpose of compelling Government or local authority to establish schools and not as a pre-condition for establishing such schools" (sic) (para 10). There were also contentions raised with respect to the guidelines framed by the State, which stood modified by the learned Single Judge in the review petitions filed. The State is not challenging those findings, since a Division Bench, while admitting the appeals, directed the State Government to consider the recognition based on the norms appealable to the respective Boards, like CBSE, ICSE, etc. The Government has conceded to that position and has also issued Circulars in accordance with that.
Finding of the court:
(i) The appeals of the State, challenging the finding of the learned Single Judge that educational need or saturation of the same cannot be a reason to reject the application for recognition, are rejected upholding the view taken by the learned Single Judge.
(ii) We find the order in review to be incompetent to upset the judgment in the Writ Petitions and as a result, the guidelines produced in the review is of no consequence.
(iii) We uphold the stand of the Government, taken at this appellate stage, of considering recognition under the RTE Act by verifying the compliance of the Schedule under the Act and the affiliation norms of Secondary and Higher Secondary Examination Boards. We, however, leave open the challenge to the Government Orders G.O.(Ms) No.22/2019/GEDN dated 01.03.2019 and G.O.(Ms) No.45/2019/GEDN dated 22.05.2019, subject to our above finding.
(iv) The minority institutions carrying on elementary education are saved from the application of the RTE Act, 2009. But even they have to get affiliations from recognized Boards of Examinations and comply with the terms of the affiliating body/board. If recognition of the State is prescribed by that body/board; it has to be obtained, in the terms above declared. The minority institutions too thus have to be affiliated to one recognized Board or another, lest otherwise it would be no “effective vehicle of education” (sic Sidhrajbhai - para 15).
(v). The State in considering recognition either under the RTE Act and as stipulated by the affiliating board/body is competent to look into the norms and conditions of affiliation as prescribed by the affiliating board/body and when so satisfied as to the grant of recognition, shall also issue a NOC as required.
(vi). The State can prescribe such further conditions under the RTE Act, which are not onerous, impractical or arbitrary; without diluting the Schedule under Section 19, in public interest, the grievance against which are to be individually tested, on the anvil of reasonableness.
(vii) The non-minority institutions even if confined to elementary education, are required to comply with the provisions of the RTE Act.
Result: Writ Appeals of the State are rejected
Vinod Chandran, J.
This batch of appeals are against the judgment of a learned Single Judge in numerous writ petitions filed by the managements. The managements of schools, established and those aspiring to establish one, sought recognition of the Government as mandated under the Right of Children to Free and Compulsory Education Act, 2009 ["RTE Act" for brevity]. A sizeable number are minority institutions. The appeals by the State are with respect to the findings of the learned Single Judge that the "assessment of educational need is only for the purpose of compelling Government or local authority to establish schools and not as a pre-condition for establishing such schools" (sic) (para 10). There were also contentions raised with respect to the guidelines framed by the State, which stood modified by the learned Single Judge in the review petitions filed. The State is not challenging those findings, since a Division Bench, while admitting the appeals, directed the State Government to consider the recognition based on the norms appealable to the respective Boards, like CBSE, ICSE, etc. The Government has conceded to that position and has also issued Circulars in accordance with that.
2. The appeals by the minority institutions assail the findings of the learned Single Judge, which puts such institutions at par with others, on the aspect of compliance of the various conditions stipulated in the notification and the RTE Act. They assert, they are totally absolved from the provisions of that Act by virtue of the protection under Article 30(1) of the Constitution of India.
3. The learned Advocate General C.P Sudhakara Prasad, argued based on the documents produced in W.A.Nos.173 of 2019 and 363 of 2019. It is pointed out that a total of 796 applications for recognition were received from managements who wish to affiliate their schools with CBSE. The District Educational Officer ["DEO" for brevity] considered the same and rejected 534 applications, while recommending 262. The Director of Public Instruction ["DPI" for short] found that out of the recommended schools, 134 schools had prior recognition. 52 were defective applications, which were directed to be rectified. 56 applications were recommended by the DPI. As far as the recognition for schools seeking affiliation to the State Board, 371 were received, which are under process. It is submitted by the learned Advocate General that all these applications would be considered based on the respective norms for affiliation. There would be no consideration of educational need as provided in the Rules with respect to these applications.
4. However, the learned Advocate General would assert that in the coming years there is a requirement to consider the educational need in processing the applications as prescribed under the Rules. The learned Advocate General specifically takes us to Rule 14(14) of the Kerala Right of Children to Free and Compulsory Education Rules, 2011 [hereinafter referred to as "Kerala Rules of 2011"], which speaks of conforming to the norms and standards specified in the Schedule and those mentioned in these Rules and the proven educational need of the locality in which the school is proposed, as revealed from the school mapping carried out by the authorized agency, certified by the local authority and the Assistant Educational Officer ["AEO" for brevity]. This prescription is as allowed under Section 30 of the RTE Act. The educational need definitely has to be assessed by the authorities under the Government, failing which there would be mushrooming of schools which is not conducive to provision of better education. The State while conceding to the mandate insofar as the RTE Act to provide education in the event of there being insufficiency of primary schools also asserts its power to reject the applications if there is a saturation of the educational need.
5. The learned Advocate General relies on the decision of a learned Single Judge reported in Manager,
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