The Principal, Chinmaya Vidyalaya v. Kerala State Commission for Protection of Child Rights and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 22 [ ND ] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944 ``` ``` WP(C) NO. 17787 OF 2022 ``` ## **`PETITIONER/S:`** ``` THE PRINCIPAL, CHINMAYA VIDYALAYA THAZHATHANGADI P.O., KOTTAYAM - 695 005. BY ADVS. LIJI.J.VADAKEDOM REXY ELIZABETH THOMAS TOM E. JACOB ELVIS J. ALEX ``` ## **`RESPONDENT/S:`** ``` 1 THE KERALA STATE COMMISSION FOR PROTECTION OF CHILD RIGHTS REPRESENTED BY ITS REGISTRAR - SREEGANESH, VANROSS JUNCTION, NEAR BAKERY JUNCTION, THIRUVANANTHAPURAM - 695 034. 2 THE DISTRICT COLLECTOR - KOTTAYAM CIVIL STATION P.O., COLLECTORATE, KOTTAYAM - 686 002. 3 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 005. 4 THE CENTRAL BOARD OF SECONDARY EDUCATION (CBSE) REPRESENTED BY ITS SECRETARY, 'SIKSHA KENDRA' 2, COMMUNITY CENTRE, PREET VIHAR, DELHI - 110 092. 5 AJAYAKUMAR T.S. (CLAIMED PRESIDENT, CHINMAYA VIDYALAYA PARENTS' ASSOCIATION), THONDUKUZHY HOUSE, KILIROOR P.O., KOTTAYAM. ``` ``` WP(C) NO. 17787 OF 2022 ``` ``` 2 ``` ``` 6 RATHEESH G. (CLAIMED SECRETARY, CHINMAYA VIDYALAYA PARENTS' ASSOCIATION) KOOTTUMKAL HOUSE, ARPOOKARA EAST P.O., KOTTAYAM. BY ADVS. SRI.NIRMAL S., SC, CBSE C.C.ANOOP N.RENJU ``` ``` SMT ANIMA M GP, SRI S NIRMAL SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 17787 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** The petitioner herein is the Principal of Chinmaya Vidyalaya, an unaided Higher Secondary School affiliated to the Central Board of Secondary Education (CBSE). They have approached this Court seeking the following relief: “Call for the records leading to the passing of Paragraph 6(c) of Exhibit P7 and consequential Exhibit P7 (a) and P10 and quash the same by issuing a writ of certiorari or any other appropriate writ, direction or order.” 2. The petitioner contends that a complaint was lodged by respondents 5 and 6 before the Kerala State Commission for Protection of Child Rights (“the Commission” for brevity), the 1st respondent herein, alleging that the School Management has not constituted a Parent Teacher Association and that they are discriminating the students who are unable to remit the fee. The petitioner was served notice by the Commission, and their response was sought. The petitioner appeared and filed a statement contending that the School has constituted a School Management Committee (SMC) in terms of the CBSE bye-laws. The Commission, after considering the facts and circumstances, passed Exhibit P7 Order. In the said order, the Commission noted that the concession given by the school authorities to the students for the academic year 2020-2021 and 2021-2022 was appreciable. The parents of the pupils who committed default in paying ``` WP(C) NO. 17787 OF 2022 ``` ``` 4 ``` the arrears of school fee were ordered to clear the arrears on or before 10.3.2022. The school authorities were interdicted from showing any act of discrimination and were ordered not to withhold the marklist or refuse entry to the open house. It was ordered that within the first month of the academic year 2022-2023, a school general body shall be convened, and steps shall be taken to constitute a school management committee with representation to the parents of students in every class of the school. It is also ordered that the School Management Committee shall be convened once in every three months. The petitioner has approached this Court being aggrieved by paragraph 6(c) of Exhibit P7 order, which requires the school to constitute a School Management Committee with representation to parents of students of all classes. 3. The petitioner contends that paragraph 6(c) of the order is illegal and cannot be enforced. It is contended that the school is affiliated to the CBSE, and the school is required to strictly follow the CBSE bye-laws. Referring to Ext.P8 CBSE bye-laws and specifically to paragraph No. 8, it is stated that the bye-laws specifically provide the manner in which the School Management Committee is to be constituted. The composition of the School Management Committee is also made mention of. Reference is also made to Ext.P9 clarification issued by the CBSE and it is contended that it has been clarified that in those schools wherein Act 35 of 2009 or any State ``` WP(C) NO. 17787 OF 2022 ``` ``` 5 ``` Regulation is not in force, the constitution of the School Management Committee shall be strictly in accordance with Rule 8.2.2. of Ext.P8 bye-laws. It is also stated that the school run by the petitioner is an unaided school that does not receive any kind of aid or grant from the Government or local authorities and hence, in view of Section 21 r/w. Section 2(iv)(n) of Act 35 of 2009, the provisions of the RTE Act shall not apply. It is stated that the petitioner has constituted an SMC strictly in terms of the CBSE bye-laws, and therefore, the school cannot be directed to constitute against a parallel body and that too against the provisions of the bye-laws of the affiliating body. It is stated that Ext.P7(a) has been issued by the ADM to comply with the directions issued by the Commission and later, Ext.P10 has been issued by the Commission threatening coercive action. It is in the afore circumstances that this writ petition is filed seeking the following reliefs: - a) Call for the records leading to the passing of Paragraph 6(c) of Ext.P7 and consequential Ext.P7(a) and P10 and quash the same by issuing a writ of certiorari or any other appropriate writ, direction or order. 4. In the counter affidavit filed by the 5th respondent, it is stated that though the petitioner contends that they have formed a School Management Committee, neither the parents nor the students are aware of any such committee. No meetings are held, and the grievances of the ``` WP(C) NO. 17787 OF 2022 ``` ``` 6 ``` students and parents are not considered. It is further stated that a few parents who are there in the SMC are management cronies, and they do not render any assistance to the students. It is further stated that the committee constituted in terms of the CBSE bye-laws is a name-sake committee that cannot be expected to solve the issues faced by the parents and students. Finally, it is stated that the order passed by the Child Rights Commission is valid and no interference is warranted. 5. I have heard Sri. Liji J. Vadakkedom, the learned counsel appearing for the petitioner, Sri. S. Nirmal, the learned standing counsel appearing for the CBSE, Smt. Reshmi Jacob, the learned counsel appearing for the 5th respondent and the learned Government Pleader. 6. Sri. Nirmal, the learned standing counsel appearing for the CBSE submitted that all schools affiliated to the CBSE are bound to follow the bye-laws and also the Regulations issued by the State Government if any. If the provisions of Act 35 of 2009 are applicable, the said provisions are also to be complied with in its letter and spirit. 7. Smt. Anima, the learned Government Pleader, submitted that insofar as the School Management Committee is concerned, the State has not issued any Regulations. ``` WP(C) NO. 17787 OF 2022 ``` 8. Admittedly, the Chinmaya Vidyalaya, is a private unaided school affiliated to the CBSE. There cannot be any dispute that the school is bound to strictly follow the provisions of Ext.P8 affiliation bye-laws. In **Jigya Yadav v. C.B.S.E.,** [2021 (3) KLT 711], the Apex Court has held that the Bye-laws of the Board have the force of law and must be regarded as such for all legal purposes. There is no dispute that the petitioner has constituted a School Management Committee in terms of Ext.P8. 9. In Ext.P9 clarification issued by the CBSE, with regard to the constitution of School Management Committee, it is stated that in States/Union Territory where RTE, 2009 or State regulation is not in force, the school is required to follow the provisions as stipulated in Rule 8.2.2. of Affiliation Bye-Laws for constitution of SMC. The learned Government Pleader on instructions has submitted that the State has not issued any regulations insofar as the constitution of SMC is concerned. Now the question is whether the provisions of Section 21 of Act 35 of 2009 would apply. Section 21(1) is quoted below for easy reference. ## **21. School Management Committee:-** (1) A school, other than a school specified in sub-clause (iv) of Clause (n) of Section 2, shall constitute a School Management Committee consisting of the elected representatives of the local authority, parents or guardians of children admitted in such school and teachers: xxxx xxxxx ``` WP(C) NO. 17787 OF 2022 ``` ``` 8 ``` 10. It is evident from a reading of Section 21 that a school specified in Sub Clause (iv) clause (n) of Section 2 is not covered under Section 21. In other words, an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority is not covered, and therefore, the petitioner institution will also not fall within the ambit of Section 21. 11. In that view of the matter, the Commission has exceeded its powers in directing the petitioner to set up a parallel body. The petitioner is bound to follow only the bye-laws of the CBSE, which has the force of law. 12. In view of the discussion above, the petitioner is entitled to succeed. Paragraph No. 6(c) of Ext.P7, P7(a), and P10 will stand quashed. The petitioner shall carry out its functioning strictly in terms of the CBSE bye-laws. The 4th respondent shall ensure that the provisions of the bye-laws are strictly complied with. This writ petition is disposed of. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** avs ``` WP(C) NO. 17787 OF 2022 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 17787/2022`** ## **`PETITIONER EXHIBITS`** - `Exhibit P1 THE COPY OF THE AFFILIATION CERTIFICATE NO.CBSE/AFF/930213/EX-00715-1718/2017/1213986 DATED 17/02/2017 ISSUED BY THE CENTRAL BOARD OF SECONDARY EDUCATION.` - `Exhibit P2 THE COPY OF THE COMPLAINT DATED 25/11/2021 SUBMITTED BY THE RESPONDENT NOS.5 AND 6.` - `Exhibit P3 THE COPY OF THE REPLY DATED 23/12/2021 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT IN RESPONSE TO EXHIBIT P2 COMPLAINT.` - `Exhibit P4 THE COPY OF THE NOTICE DATED 28/1/2022 ISSUED BY THE DEO, KOTTAYAM TO THE PETITIONER.` - `Exhibit P5 THE COPY OF THE REPLY DATED 28/1/2022 ALONG WITH THE RELEVANT EXTRACT OF THE AUDITED BALANCE SHEET OF THE SCHOOL SUBMITTED BY THE PETITIONER BEFORE THE DEO, KOTTAYAM.` - `Exhibit P6 THE DETAILS SHOWING THE MEMBERS OF THE SCHOOL MANAGEMENT COMMITTEE CONSTITUTED FOR THE PERIOD FROM 4/9/2021 TO 31/5/2023.` - `Exhibit P7 THE COPY OF THE ORDER DATED 15/2/2022 ISSUED BY THE 1ST RESPONDENT IN COMPLAINT NO.CRMP NO.10915/05 LAI/2021/KESCPCR.` - `Exhibit P7A THE COPY OF THE COMMUNICATION NO.DCKTM/748/2021-K5 DATED 22/2/2022.` - `Exhibit P8 THE COPY OF THE BYE-LAW 8 OF THE CBSE BYE-LAWS.` - `Exhibit P9 THE COPY OF THE CLARIFICATION NO.CBSE/AFF/CIRCULAR/2019/1462225 DATED 08/03/2019 ISSUED BY THE 4TH RESPONDENT.` - `Exhibit P10 THE COPY OF THE NOTICE DATED 26/04/2022 ISSUED BY THE 1ST RESPONDENT.`