M.E.C.T. Public School v. Central Board of Secondary Education and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 28TH DAY OF MARCH 2018 / 7TH CHAITHRA, 1940** **WP(C).No. 19595 of 2017** ## **PETITIONER(S)** **M.E.C.T. PUBLIC SCHOOL, REPRESENTED BY ITS MANAGER ABDUL BASHEER, AGED 51 YEARS, SON OF ABDU HAJI, SITUATED AT KARA VETTATHUR-P.O, (VIA PATTIKKAD) IN MALAPPURAM DISTRICT- 679 324 (RESIDING AT “NALAKATH HOUSE NO.K.P.10/557, KOTTOPADAM P.O., MANNARKKAD, PALAKKAD DISTRICT- 678 583).** **BY SRI.TPM.IBRAHIM KHAN, SENIOR ADVOCATE ADV. SMT.P.J.RAZIA BEEVI** ## **RESPONDENT(S):** **1. THE CENTRAL BOARD OF SECONDARY EDUCATION, REPRESENTED BY THE SECRETARY,** - **"SHIKSHA KENDRA", 2, COMMUNITY CENTRE,** - **PREET VIHAR, DELHI-110 092.** **2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (N) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.** **3. NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS, REPRESENTED BY ITS SECRETARY, GATE NO.4, FIRST FLOOR, JEEVAN TARA BUILDING, 5, SANSAD MARG, PATEL CHOWK, NEW DELHI-110 001.** - **R1 BY ADV. SRI.NIRMAL S., SC, CBSE R2 BY GOVERNMENT PLEADER SMT.RANJITHA** - **R3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL ADV. SRI.M.C.MONY, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-01-2018, ALONG WITH W.P.(C)NO. 19572 OF 2017 AND CONNECTED CASES, THE COURT ON 28-03-2018 DELIVERED THE FOLLOWING:** **Msd.** **02.04.2018** **WP(C).No. 19595 of 2017 (Y)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**EXHIBIT P1**|**A PHOTOSTAT COPY OF THE CERTIFICATE ISSUED ON**| |---|---| ||**12/6/2013 BY THE CHAIRMAN OF THE NATIONAL**| ||**COMMISSION FOR MINORITY EDUCATIONAL**| ||**INSTITUTIONS, NEW DELHI.**| |**EXHIBIT P2**|**A PHOTOSTAT COPY OF THE COVERING LETTER NO**| ||**MECT/NOC/01/2013 DATED 22/10/2013 SENT BY THE**| ||**PETITIONER BEFORE THE DIRECTOR OF PUBLIC**| ||**INSTITUTION, THIRUVANANTHAPURAM THROUGH THE**| ||**DISTRICT EDUCATIONAL OFFICER, MALAPPURAM FOR**| ||**GRANTING NOC TO PETITIONER SCHOOL.**| |**EXHIBIT P3**|**A PHOTOSTAT COPY OF THE PETITIONER F .NO.1715/2014**| ||**DATED 10/7/2014 FILED BY THE PETITIONER BEFORE**| ||**THE THIRD RESPONDENT COMMISSION.**| |**EXHIBIT P4**|**A PHOTOSTAT COPY OF THE COVERING LETTER DATED**| ||**26/8/2014 ALONG WITH THE ORDER F NO.1715 OF**| ||**2014-17655 DATED 20/8/2014 PASSED BY THE THIRD**| ||**RESPONDENT - NATIONAL COMMISSION FOR MINORITY**| ||**EDUCATIONAL INSTITUTIONS.**| |**EXHIBIT P5**|**A PHOTOSTAT COPY OF THE LETTER DATED 7/10/2014**| ||**SENT BY THE PETITIONER BEFORE THE FIRST**| ||**RESPONDENT ALONG WITH ONLINE REGISTRATION**| ||**PAGE AND THE CHALLAN RECEIPT FOR THE PAYMENT OF**| ||**RS. 75,00/- TOWARDS AFFILIATION FEE.**| |**EXHIBIT P6**|**A PHOTOSTAT COPY OF THE REJECTION LETTER**| ||**NO.CBSE/AFFL./SL-02613-1516/2015-16 DATED 20/10/2014**| ||**ISSUED BY THE FIRST RESPONDENT-CENTRAL BOARD**| ||**OF SECONDARY EDUCATION, DELHI.**| |**EXHIBIT P7**|**A PHOTOSTAT COPY OF THE COMPLIANCE LETTER**| ||**DATED 12/01/2015 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE FIRST RESPONDENT**| |**EXHIBIT P8**|**A PHOTOSTAT COPY OF THE LETTER NO.**| ||**CBSE/AFF/SL-02613/1516 DATED 2/6/2015 ISSUED BY THE**| ||**FIRST RESPONDENT TO THE PETITIONER.**| |**EXHIBIT P9**|**A PHOTOSTAT COPY OF THE COMPLIANCE LETTER**| ||**DATED 12/6/2015 SUBMITTED BY THE PETITIONER**| ||**BEFORE THE FIRST RESPONDENT.**| |**EXHIBIT P10**|**A PHOTOSTAT COPY OF THE LETTER NO.**| ||**CBSE/AFF/SL-02613-1516/1022630 DATED 3/2/2016 ISSUED**| ||**BY THE FISTR RESPONDENT TO THE THIRD RESPONDENT.**| |**EXHIBIT P11**|<br>**A PHOTOSTAT COPY OF THE LETTER NO 56350/N DATED**| ||**20/10/2015 SENT BY THE 2ND RESPONDENT TO THE FIRST**| ||**RESPONDENT.**| **WP(C).No. 19595 of 2017 (Y)** **EXHIBIT P12 A PHOTOSTAT COPY OF THE PETITION DATED 10/9/2016 FILED BY THE PETITIONER BEFORE THE THIRD RESPONDENT. EXHIBIT P13 A PHOTOSTAT COPY OF ORDER F.NO.1247 OF 2016 DATED 9/02/2016 PASSED BY THE THIRD RESPONDENT. RESPONDENT(S)' EXHIBITS & ANNEXURES : ANNEXURE R1(A): TRUE COPY OF THE CIRCULAR DATED 29.12.2016 AMENDING THE AFFILIATION BYE-LAW. //TRUE COPY// P.S.TO JUDGE** **Msd. 02.04.2018** ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = = W.P.(C).Nos.19595, 19572, 20880, 20933 & 28340 of 2017** ## **= = = = = = = = = = = = = = = Dated this the 28th day of March, 2018** ## **JUDGMENT** - 1.These writ petitions are filed by schools, which have been declared as Minority Educational Institutions under Section 2 - (g) of the National Commission for Minority Educational Institutions Act, 2004 (hereinafter referred to as 'the Act'.). They seek directions to the 1[st] respondent, Central Board of Secondary Education (CBSE) to grant provisional affiliation to the schools on the strength of the deemed No Objection Certificate issued by the Commission under Sections 10(3) and (4) of the Act. - 2.The learned counsel appearing for the petitioners contends that the order of the CBSE rejecting the affiliation on the ground that the No Objection Certificate issued by the National Commission for Minority Educational Institutions is not acceptable as per the norms, is illegal and unsustainable. It is contended that Section 22 of the Act overrides any 2 W.P.(C).Nos.19595, 19572, 20880, 20933 & 28340 of 2017 provision of the norms formulated by the CBSE and provisional affiliation is liable to be granted in the light of the deemed NOC. - 3.Heard Sri.T.P.M.Ibrahim Khan, learned Senior Counsel appearing for the petitioners, Sri.T.T.Mohammed, learned counsel for the petitioners in W.P.(C).No.19572 of 2017, Sri.S.Nirmal, learned Standing Counsel for the CBSE and the learned Government Pleader. - 4.The petitioners' claim is that their applications for affiliation should have been considered by the CBSE on the strength of the deemed NOC granted by the National Commission for Minority Educational Institutions. They also rely on the decision of the Apex Court in **Pramati Educational & Cultural Trust and others v. Union of India** [(2014) 8 SCC] to contend that the provisions of the RTE Act and the rules made thereunder would have no application to a Minority Educational Institution recognised as such by the National 3 W.P.(C).Nos.19595, 19572, 20880, 20933 & 28340 of 2017 Commission for Minority Educational Institutions. It is contended that power having been conferred on the Commission for grant of deemed NOC, the rejection of the request for affiliation by the University was completely unjustified. ## 5.A statement has been filed by the CBSE contending as follows:- “As per Rule 3(3)(i) of the Affiliation Bye-Laws of CBSE amended vide circular dated 8.7.2013, one of the conditions for applying to CBSE for affiliation is that the school must have prior recognition/NOC from the concerned Department of the State Government. The amended Rule 3(3)(i) of the Affiliation Bye-Laws of CBSE is reproduced below:- 3(3) Any educational institution in India or outside India which fulfills the following essential conditions (without which the case cannot be processed) can apply to the Board of affiliation. (I) The school seeking provisional affiliation with the Board must have formal prior recognition of the State/Union Territory. Its application either should be forwarded by the State Govt. or there should be a No Objection Certificate to the affiliation of the School with the CBSE. 'No Objection Certificate' once issued to any school will be considered at par even if it prescribes a specific period or stage unless it is withdrawn..' W.P.(C).Nos.19595, 19572, 20880, 20933 & 28340 of 2017 4 As per Rule 3.3.(i) of the Affiliation Bye Laws amended vide circular No.10 dated 8.7.2013 “The school seeking provisional affiliation with the Board must have formal prior recognition of the State/UT Govt. and also has to produce evidence to the effect that the applicant school has intimated to the concerned Education Department of the State about the application made to CBSE for seeking affiliation with the Board. In case the Board receives any objection during the process of the application of the school, the Board may ask the concerned school to produce the No Objection Certificate from the State Government or otherwise it would be assumed that concerned State/Government has No Objection.” Therefore it is reiterated that the school has not submitted recognition letter along with intimation from the concerned education department of the State. Hence the application of the school for affiliation was rejected by the CBSE due to non-submission of essential document of Recognition letter as per Affiliation Bye Laws.” - 6.It is contended that a reading of the provisions of the Act would show that the Act is applicable only for the purpose of establishment of educational institutions which require affiliation to universities and that the question of affiliation of schools with the CBSE is completely omitted from the scope of the Act. W.P.(C).Nos.19595, 19572, 20880, 20933 & 28340 of 2017 5 ## 7.I have considered the contentions advanced. The provisions of - the Act are relevant for a consideration of the contentions raised in these writ petitions. - 8.The definition of affiliation under Section 2(a) of the Act reads as follows:- “2(a)”affiliation” together with its grammatical variations, includes in relation to a college, recognition of such college by, association of such college with, and admission of such college to the privileges of, a University.” 9. Earlier, by clause (b) of Section 2, a College was defined as a teaching institution (other than a University) established or maintained by a person or group of persons from amongst a minority community. This definition clause has been omitted by Act 20 of 2010 w.e.f. 1.9.2010. Now, Minority Educational Institution is defined as follows:- - “2(g) Minority Educational Institution means a college or an educational institution established and administered by a minority or minorities. “ W.P.(C).Nos.19595, 19572, 20880, 20933 & 28340 of 2017 6 10. Section 10 provides that subject to the provisions contained in any other law for the time being in force, any person, “who desires to establish a Minority Educational Institution” may apply to the competent authority for grant of no objection certificate for the said purpose. The Competent authority can consider the application and either grant or reject the application. Where the Competent authority does not, within a period of 90 days from the receipt of the application, grant the certificate or reject the same and communicate to the applicant the fact of such rejection, a deemed no objection certificate will come into operation. It is to be noticed immediately that the deemed no objection certificate under Section 10(3) and (4) is only with regard to no objection for the establishment of a Minority Education institution, if such No Objection is required. This is clear from Explanation (b) to subsection (4) which says that “no objection certificate” means a certificate stating therein that the Competent authority has no objection for the 'establishment' of a Minority Educational Institution. 7 W.P.(C).Nos.19595, 19572, 20880, 20933 & 28340 of 2017 - 11.Section 10A of the Act provides for a right of Minority Educational Institution to seek affiliation which reads as ## follows:- Section 10A: Right of Minority Educational Institution to seek affiliation:-(1) A Minority Educational Institution may seek affiliation to any University of its choice subject to such affiliation being permissible within the Act under which the said University is established. (2) Any person who is authorised in this behalf by the Minority Educational Institution, may file an application for affiliation under sub-section (1) to a University in the manner prescribed by the Statute, Ordinance, rules or regulations, of the University: Provided that such authorised person shall have right to know the status of such application after the expiry of sixty days from the date of filing of such application.” 12.It is clear from a reading of the provisions of the Act that the No Objection Certificate contemplated under Section 10 is only with regard to the no objection, if required, for the establishment of a Minority Educational Institution. Clause 10A relates to affiliation of a Minority Educational Institution with a University. On a comprehensive reading of the 8 W.P.(C).Nos.19595, 19572, 20880, 20933 & 28340 of 2017 provisions, it is clear that the issue of deemed no objection certificate, which is a requirement for the affiliation of a school under the CBSE, is not contemplated under the provisions of Sections 10(3) and 10(4) of the Act. A reading of the provisions of the Act would show that the Act is applicable only for the purpose of establishment of educational institutions which require affiliation of Universities and that the question of affiliation of schools with the CBSE is completely omitted from the scope of the Act. 13.In the above view of the matter, though it is contended by the learned standing counsel for the CBSE that the declaration in the **Pramati Educational & Cultural Trust's case (supra)** by the Apex Court to the effect that the RTE Act does not apply to Minority Educational Institutions is confined to the provisions relating to admission of under privileged students to such schools, the said question does not arise for consideration in this writ petition and therefore the same does not require to be answered here. I am of the opinion that the W.P.(C).Nos.19595, 19572, 20880, 20933 & 28340 of 2017 9 prayer made in these writ petitions to the effect that the CBSE was duty bound to grant the affiliation on the strength of the deemed no objection certificates is not sustainable. These writ petitions therefore fail and are accordingly dismissed. _Sd/-_ **Anu Sivaraman, Judge** sj