MANAGER, BETHLEHEM INTERNATIONAL, MULLAPUZHACHAL P.O., VAZHAKULAM-686670, ERNAKULAM DISTRICT v. CENTRAL BOARD OF SECONDARY EDUCATION, AFFILIATION BRANCH, SHIKSHA KENDRA, DELHI; STATE OF KERALA; DISTRICT EDUCATIONAL OFFICER, MUVATUPUZHA; DIRECTOR OF PUBLIC INSTRUCTIONS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 12TH DAY OF APRIL 2018 / 22ND CHAITHRA, 1940 WP(C).No. 12214 of 2017** ## **PETITIONER(S)** **-------------** **MANAGER, BETHLEHEM INTERNATIONAL, MULLAPUZHACHAL.P.O., VAZHAKULAM-686670, ERNAKULAM DISTRICT.** **BY ADVS.SRI.MOHAN JACOB GEORGE** **SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.T.K.NAVAS SMT.NIGI GEORGE** ## **RESPONDENT(S):** **-------------** ## **1. CENTRAL BOARD OF SECONDARY EDUCATION,** **AFFILIATION BRANCH, SHIKSHA KENDRA, 2 COMMUNITY CENTRE, PREET VIHAR, DELHI-110 092, REPRESENTED BY ITS SECRETARY.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** ## **3. DISTRICT EDUCATIONAL OFFICER, MUVATUPUZHA-686 661.** ## **4. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695001.** **R1 BY ADV. SRI.NIRMAL S., SC R2 TO R4 BY SENIOR GOVERNMENT PLEADER SRI.E.S.ASHRAF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-01-2018, THE COURT ON 12.04.2018, DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 12214 of 2017 (B)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS ----------------------** - **EXHIBIT P1 COPY OF THE G.O. NO.282/2012/G.EDN DATED 09.11.2015 EXHIBIT P2 COPY OF THE COVERING LETTER SUBMITTED BY THE PETITIONER TO THE DEO EXHIBIT P2(A) COPY OF THE LIST OF DOCUMENTS EXHIBIT P3 COPY OF THE CHALAN EVIDENCING DEPOSIT OF RS.25,000/- TOWARDS THE FEE FOR NOC EXHIBIT P4 COPY OF THE COMMUNICATION FROM THE SECOND RESPONDENT DATED 29.8.2013 RETURNING THE APPLICATION EXHIBIT P4(A) COPY OF THE LETTER DATED 23.11.2016 SUBMITTED BY THE PETITIONER TO THE DEO EXHIBIT P5 COPY OF THE G.O.(MS)202/11/G.EDN DATED 7.10.2011 EXHIBIT P6 COPY OF THE CIRCULAR NO.65057/N3/2011/G.EDN DATED 10.11.2011. EXHIBIT P7 COPY OF G.O.(MS) NO.384/2012/G.EDN DATED 07.12.2012 EXHIBIT P8 COPY OF THE AMENDMENT OF CBSE BYE LAWS EXHIBIT P9 COPY OF THE REGISTRATION CERTIFICATE NO SL-01617-1718 EXHIBIT P10 COPY OF THE JUDGEMENT DATED 22.11.2016 IN WP(C) NO.37271/2016 EXHIBIT P11 COPY OF THE LETTER DATED 16.3.2017 OF THE CBSE EXHIBIT P12 COPY OF THE AMENDED BYE LAWS DATED 20.12.2016 OF CBSE EXHIBIT P13 COPY OF THE RELEVANT PORTION OF THE AFFILIATION BYE LAWS SHOWING THAT NCERT SYLLABUS IS TO BE FOLLOWED TILL STD. VIII EXHIBIT P14 COPY OF THE REPLY DATED 27.3.2017 SUBMITTED BY THE PETITIONER EXHIBIT P15 COPY OF THE JUDGMENT DATED 15.12.2008 IN WPC NO 32141/2008** **TS** **WP(C).No. 12214 of 2017 (B) ---------------------------** |**EXHIBIT P16**|**COPY OF THE GOVERNMENT COMMUNICATION**| |---|---| ||**NO.1114173/N3/2017/G.EDN DATED 15.3.2017**| |**EXHIBIT P17**|**COPY OF THE INTERIM ORDER DATED 08.04.2015**| ||**IN WPC 11568/2015**| |**EXHIBIT P18**|**COPY OF THE LETTER DATED 08.2017 OF CBSC.**| |**EXHIBIT P19**|**COPY OF THE REPLY DATED 04.10.2017 SUBMITTED BY**| ||**THE PETITIONER.**| |**EXHIBIT P20**|**COPY OF THE LETTER DATED 02.11.2017.**| |**EXHIBIT P21**|**COPY OF THE LETTER DATED 03.11.2017 OF THE**| ||**FIRST RESPONDENT.**| |**EXHIBIT P22**|**COPY OF THE JUDGMENT DATED 15.12.2008 IN**| ||**WPC.NO,32141/2008 OF THE DIVISION BENCH OF**| ||**THIS HON'BLE COURT.**| |**EXHIBIT P23**|**COPY OF THE COUNTER AFFIDAVIT FILED BY THE STATE GOVERNMENT**| ||**IN WPC.NO.36533/2016.**| |**EXHIBIT P24**|**COPY OF JUDGMENT DATED 11.3.2014 IN WPC.NO.7100/2010.**| **RESPONDENT(S)'EXHIBITS - NIL** **-----------------------------** ## **/TRUE COPY/** ## **PS TO JUDGE** **TS** **13.04.2018** ## **ANU SIVARAMAN, J. -------------------------------W.P.(C).No.12214 of 2017 --------------------------------Dated this the 12[th] day of April, 2018** ## **J U D G M E N T** **------------------** Challenging Ext.P11 and seeking directions to the first respondent to process the application for affiliation without insisting on the NOC of the State Government. It is submitted that the petitioner has submitted Ext.P9 application but the same is not being considered on the ground that the petitioner's school has to submit either NOC or recognition up to class VIII issued by the State Education Department. It is stated by the learned counsel for the petitioner that by Ext.P10 judgment dated 22.11.2016, this Court had specifically directed the consideration of the application without insisting on the NOC. It is further contended that the requirement of recognition up to class VIII was introduced only by Ext.P12 amendment of the affiliation bye laws of the first respondent. It is stated that the said amendment is dated 20.12.2016 and has no retrospective effect and therefore the petitioner's application submitted on 17.6.2016 is liable to be 2 W.P.(C) No.12214 2017 considered without insisting on the requirements made applicable for the first time by Ext.P12. It is stated that the refusal on the part of the first respondent to take follow up action on the basis of Ext.P9 and to grant affiliation as requested therein is illegal and unsustainable. 2. A statement has been filed by the first respondent contending that as per Rule 3, 3(i) of the affiliation bye-laws of the CBSE, amended vide circular dated 8.7.2013, the schools applying for affiliation must have prior recognition/NOC from the concerned department of the State Government. Rule 15 i(a) of Chapter 3 of the affiliation bye-laws is relied on to contend that recognition of the State Government is required for submitting an application for affiliation for approval of Middle Class Syllabus. It is stated that the school could not have started classes VI and above without formal permission or affiliation of the CBSE or recognition from the State Government. It is stated that the school is unauthorizedly conducting classes V to VIII without any affiliation or recognition which is impermissible under the law. 3. The learned counsel appearing for the petitioner would contend that the State Government had evidently taken a policy decision not to grant no objection certificates W.P.(C) No.12214 2017 3 to any schools for the purpose of seeking affiliation to the CBSE. It is contended that the unamended Rules provided only that there should be recognition for the school. It is stated that the school in question had recognition of the State Government for classes up to Class IV and therefore at the time when Ext. P9 application was submitted, the petitioner's application was liable to be considered, in accordance with law. It is stated that thereafter, this Court had directed consideration of the application without insisting on the NOC in view of the fact that the State Government had taken a decision not to issue NOC in any case. In the above circumstances, it is contended that the present stipulation contained in Ext.P11 to the effect that the school should have affiliation for all classes till Standard VIII which is a subsequent introduction by Ext.P12 amendment cannot affect the consideration of the petitioner's application for affiliation under Ext.P9 which has already been directed to be considered without insisting on a NOC. 4. The learned Standing Counsel appearing for the respondents relies on a decision in **DM WAYANAD INSTITUTE OF MEDICAL SCIENCES vs. UNION OF INDIA AND ANOTHER [(2016) 2 SCC 315]** to contend that there is no right much less a fundamental right in any 4 W.P.(C) No.12214 2017 citizen, person or institution to affiliation or recognition and that applications for affiliation are to be considered, in accordance with the Rules governing the subject. The conditions of the affiliation bye-laws are also referred to extensively to contend that the application for affiliation is to be considered strictly in accordance with the provisions contained in the same. 5. The learned counsel for the petitioner would rely on the decisions reported in **[2016 (1) KLT 892] MICHAEL v. STATE OF KERALA and 2009 (2) KLT 1003] BHARATHIYA VIDYABHAVAN VS. STATE OF KERALA** to contend that executive orders cannot be issued restricting the right to apply for NOC to only persons or institutions who are running recognized schools under the KER. It is stated that the Division Bench considering the provisions of the affiliation bye-laws had held in [ **2009 (2) KLT 1003]** ## **BHARATHIYA VIDYABHAVAN VS. STATE OF KERALA,** that the only schools recognized under the KER could apply for NOC for the purpose of affiliation to CBSE or ICSE would be an unreasonable restriction and would thus be violative of Article 19 (1)(g) of the Constitution of India. The decision in [ **2016 (1) KLT 892] MICHAEL vs. STATE OF KERALA** is relied on to contend that the provisions of the KER are W.P.(C) No.12214 2017 5 applicable only to aided schools and in a case like the present one where the petitioner receives no aid from the Government, the insistence of recognition also would not be proper. 6. I have considered the contentions advanced. It is clear that Ext.P9 application was preferred by the petitioner before Ext.P12 amendment was introduced in the affiliation bye-laws. This Court by Ext.P10 judgment had directed the consideration of the petitioner's application for affiliation without insisting on the NOC from the State Government. The contention now raised by the first respondent is that the application for affiliation can be considered only if the petitioner has recognition till standard VIII from the State Government. The Division Bench of this Court considering the affiliation bye-laws and the requirement of NOC from the State Government in [ **2009 (2) KLT 1003] BHARATHIYA VIDYABHAVAN VS. STATE OF KERALA,** had held that the condition that only running recognized schools under the KER could apply for NOC for the purpose of affiliation to CBSE and ICSE is illegal and unreasonable. In the instant case the petitioner's application was directed to be considered without insisting on the NOC. W.P.(C) No.12214 2017 6 7. In the above view of the matter, the further condition insisted on in Ext.P11 to the effect that the petitioner should have recognition from the State Government for all classes conducted by it does not appear to be reasonable or justifiable. This stipulation with regard to recognition for all standards has been made applicable by Ext.P12 amendment. Ext. P11 refers to Rule No. 15(9) of the affiliation of bye-laws. Rule 15(9) of the bye-laws provides that no school is permitted to start CBSE Pattern Classes VI/IX/XI as the case may be without obtaining formal permission of affiliation of the CBSE. 8. It is further stated that Rule 15(10) provides that request for getting approval of Middle Class Syllabus/ Provisional Affiliation for Secondary/Senior Secondary classes should be made when Class V/VIII/X, as the case may be, has been started in the school. The contention of the petitioner is that the petitioner had been disabled from making an application for affiliation because the requirement was specifically that an NOC from the State Government should accompany such an application. The State Government had clearly issued orders to subordinate officers not to forward applications for NOC in respect of private schools. In the above factual situation, this Court had W.P.(C) No.12214 2017 7 stepped in and held that such a blanket policy decision is not proper and therefore the applications are liable to be considered without insisting on the NOC. It is in the above circumstances, that the petitioner had approached this Court and obtained Ext.P10 order directing a consideration of his application for affiliation. In the above circumstances, I am of the opinion that the further insistence made in Ext.P11 that the petitioner should have recognition for all classes conducted by it before an application for affiliation can even be made before the first respondent is completely unreasonable and unjustifiable. Ext.P11 communication is set aside. There will be a direction to the first respondent to consider Ext.P9 request for affiliation as directed by this Court in Ext.P10 and to pass orders on the same on merits after conducting an inspection within a period of three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** sab