IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 WP(C).No. 32141 of 2008(B) -------------------------------------- PETITIONER: ------------------- HOLY CHILD CENTRAL SCHOOL, SNEHAGIRI, MALA, TRICHUR DISTRICT, REPRESENTED BY ITS MANAGER. BY ADV. SRI.MOHAN JACOB GEORGE, SMT.P.V.PARVATHI, SMT.REENA THOMAS, SRI.L.RAM MOHAN. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION (N) DEPARTMENT, THIRUVANANTHAPURAM. 2. COUNCIL FOR THE INDIAN SCHOOL CERTIFICATE EXAMINATIONS, REPRESENTED BY ITS SECRETARY, PRAGATHI HOUSE, 3RD FLOOR, 47-48, NEHRU PLACE, NEW DELHI-110 505. R1 BY ADVOCATE GENERAL SRI. C.P. SUDHAKARA PRASAD, R2 BY ADV. SRI.V.V.RAJA, S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.32141/2008-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RELEVANT PORTION OF THE BYE-LAWS OF ICSE. EXT.P.2: COPY OF THE COVERING LETTER SUBMITTED TO THE R.2. EXT.P.3: COPY OF THE LETTER DTD. 08/11/2006 OF THE D.E.O. EXT.P.3.A: COPY OF THE SPOT VERIFICATION REPORT. EXT.P.4: COPY OF THE JUDGEMENT DTD. 24/06/2008 IN W.P.(C). NO. 18882/2008. EXT.P.5: COPY OF THE LETTER DTD. 18/08/2008 OF THE R.1. EXT.P.6: COPY OF THE REPLY DTD. 25/08/2008 TO EXT.P.5. EXT.P.7: COPY OF THE G.O. (RT).NO.4418/08/G. EDN. DTD. 06/10/2008. EXT.P.8: COPY OF THE SAID G.O. (MS) 18/88 DTD. 12/01/1988. RESPONDENTS' EXHIBIT: EXT.R2.A: COPY OF THE GUIDELINES OF AFFILIATION BROUGHT OUT BY THE R.2. IN MAY 2006. //TRUE COPY// P.A. TO JUDGE. prv. K.BALAKRISHNAN NAIR & V.K.MOHANAN, JJ. --------------------------------------------- W.P.(C).No. 32141 of 2008 B --------------------------------------------- Dated this the 15th day of December, 2008 J U D G M E N T Balakrishnan Nair, J: The writ petitioner is a congregation of “Mother of Carmel”, which is a Christian Religious Congregation of Nuns of Pontifical rite, under the Roman Catholic Church. It is running a school called 'Holy Child Central School' following I.C.S.E.syllabus. It moved the State Government for grant of a No Objection Certificate for applying for affiliation to the I.C.S.E. As per Ext.P1 bye-laws of the I.C.S.E., it is mandatory to obtain a No Objection Certificate (NOC)/ Certificate of Recommendation from the State concerned. The relevant portion of Ext.P1 bye-laws, dealing with the necessity of NOC for affiliation, is quoted below:- “I. Application for Affiliation a. Applications for affiliation to the Council will be processed under the following conditions: (i) The school has to obtain a No Objection Certificate (NOC)/Certificate of Recommendation from the State. (ii)The school should have started Class VI as affiliation must leave sufficient time for the purpose of preparing candidates and presenting them, in the first instance, for WP(C) NO.32141 of 2008 :-2-: the Indian Certificate of Secondary Education Examination. It may be noted that no school may admit students to Class IX without the Council's written approval for affiliation.” (emphasis supplied) 2. The I.C.S.E. will arrange an inspection of the school for grant of affiliation, only if the school has the certificate of recommendation/No Objection Certificate from the State Department of Education, as evident from para II (3)(a)(i) of Ext.P1. Grant of NOC to I.C.S.E and C.B.S.E. schools is presently governed by Ext.P8 Government Order dated 12th January, 1988. The petitioner's application for NOC has been rejected by the Government, relying on the said Government Order, as per Ext.P7 order dated 6.10.2008. The relevant portion of Ext.P7 Government Order reads as follows:- “3. As per para 3(i), Chapter II of the Norms for affiliation of the CBSE, the school seeking provisional affiliation with the Board must have formal prior recognition of the state/U.T Government. Its application either should be forwarded by State Government or there should be a No Objection Certificate to the effect that State Government has no objection to the affiliation of the school with the C.B.S.E., Moreover, no institution shall be affiliated or continue to be affiliated or recommended to affiliate unless the middle section of the school is recognised by the Education Department of the State except in cases where the syllabus of the middle classes is approved by the WP(C) NO.32141 of 2008 :-3-: Chairman of CBSE vide GO(MS) 18/88/G.Edn. Dated 12.1.88. Hence, No Objection Certificate from the State Government is a mandatory requirement for considering the application for affiliation of the schools by the C.B.S.E. since CBSE is only a society registered with Government of India. Further they cannot function like NCTE or AICTE which are constituted by Acts of Parliament. 4. The applicant school viz, Holy Child Central School, Snehagiri, Mala, Thrissur has failed to produce the documents to prove state recognition of middle section/approval of middle class syllabus from CBSE as envisaged in the guidelines issued by the State Government in GO(MS) 18/88/G.Edn. Dated 12.01.88. Hence, it is clear that the applicant schools could not satisfy the conditions stipulated in the Guidelines issued for NOC. The guidelines issued as per GO(MS) 18/88/G.Edn. dated 12.01.1988 is applicable to both CBSE and ICSE schools. 5. For the reasons stated above, the application of the Manager, Holy Child Central School, Snehagiri, Mala, Thrissur for NOC for affiliation of their school to the ICSE cannot be entertained to and therefore is rejected in compliance with the judgment dated 24.06.2008 in WP(C) No.18882/08.” (emphasis supplied) Aggrieved by Ext.P7, this writ petition is filed. 3. The Government rejected the application for NOC, mainly, relying on clause (xii) of Ext.P8 G.O., which reads as follows:- “(xii) No institution shall be affiliated or continue to be affiliated or recommended to affiliate unless the middle section of WP(C) NO.32141 of 2008 :-4-: the school is recognised by the Education Department of the State except in cases where the syllabus of the middle classes is approved by the Chairman.” As the petitioner's application has been rejected relying on the above quoted clause, it has chosen to challenge the said clause also. According to the petitioner, Ext.P7 is vitiated by non-application of mind. The petitioner submits that the Government have proceeded on the footing that the application of the petitioner is one for affiliation to the C.B.S.E. and the same has been dealt with accordingly and for that reason alone, Ext.P7 is liable to be quashed. Further, it is pointed out that clause No. (xii) of Ext.P8 is unworkable as far as the schools affiliated to the I.C.S.E. are concerned. Such schools follow a separate syllabus from class I onwards. At any rate, following the said syllabus at least from class VI is mandatory. Then only the said school will be considered for affiliation by the I.C.S.E. The recognition of the middle school by the State Education Department is possible only under the provisions of the Kerala Education Act and the Kerala Education Rules, especially those contained in Chapter V of the said Rules. The recognition of schools contemplated under those Rules is applicable only to schools following the State syllabus, WP(C) NO.32141 of 2008 :-5-: which are established and managed as per the said Rules. If a recognised school under the K.E.R. alone is competent to apply for NOC for affiliation to the I.C.S.E., the said clause is unworkable and therefore, clause (xii) cannot be made applicable to schools seeking affiliation to the I.C.S.E., it is submitted. Therefore, the petitioner prays for quashing Ext.P7 and also for a direction to the Government to reconsider its application for NOC without taking into account clause (xii) of Ext.P8. The State Government have conceded that the last part of clause (xii) of Ext.P8, that is, concerning exception to the main part (approval of syllabus of middle section by the Chairman) is not applicable for affiliation to the I.C.S.E., but only to the C.B.S.E. 4. The second respondent, Chief Executive and Secretary, Council for Indian School Certificate Examinations, has filed a counter affidavit detailing the procedure for affiliation. It is pointed out that the insistence of N.O.C. will ensure that the applicant satisfies all the administrative and educational requirements of the State Government concerned. Acting in concurrence with the Educational policy of the State Government will, no doubt, help the Council to discharge its functions more effectively and for that reason, NOC from the concerned State WP(C) NO.32141 of 2008 :-6-: Government is insisted, it is submitted. 5. The State Government have filed a counter affidavit in W.P(C) No.2479 of 2008, which is one of the connected writ petitions and a memo has been filed adopting that counter affidavit in this writ petition also. In the counter affidavit, it is submitted that reference to CBSE affiliation bye-laws in the impugned order is an inadvertent mistake. In the case of the petitioner, the middle section of its school must be having recognition from the State Government. Then only, the said school is eligible to get NOC, in view of clause (xii) of Ext.P8. Since admittedly, the petitioner does not have approval for the middle section of its school, remand of the matter, in view of the above said inadvertent mistake, will be an empty formality and a futile exercise and the result is obvious, now itself. Therefore, the State prayed for dismissal of the writ petition. 6. We heard learned counsel Mr.Mohan Jacob George, appearing for the petitioner, the learned Advocate General, Sri.C.P.Sudhakara Prasad for the State and also learned counsel Sri.Raja Vijayaraghavan, appearing for the second respondent, Council for the Indian School Certificate Examinations. We also have the benefit of hearing learned senior counsel Sri.Kurian WP(C) NO.32141 of 2008 :-7-: George Kannanthanam and learned counsel M/s.R.Rajasekharan Pillai, P.J.Elvin Peter and P.Shyny who appeared for the petitioners in the connected writ petitions. 7. Going by Ext.P7, the contention of the writ petitioner that the said order has been issued without application of mind has to be upheld. The said point is, practically, admitted by the State in its counter affidavit also, wherein it has stated that reference to C.B.S.E.bye-laws was only a mistake. But, we are not inclined to accept the contention of the learned Advocate General that the remand of the matter is going to be an empty formality, for the reasons, which we will shortly give. Since Ext.P7 has been issued without reference to the relevant matters and relying on irrelevant matters, it is quashed. 8. The next point to be considered is, in view of clause (xii) of Ext.P8, whether the contention of the State that the petitioner can apply for NOC, if only its school is having the middle section recognised by the State Government, is valid or not. The said contention is supported by a decision of this Court reported in Suresh Kumar v. State of Kerala [2008(4) KLT 39]. But, the petitioner has chosen to challenge that clause. Therefore, we have to consider whether the said clause, based WP(C) NO.32141 of 2008 :-8-: on which the impugned order is sought to be defended by the State, is valid or not. As evident from the materials on record including the affiliation bye-laws, normally schools affiliated to or seeking affiliation to the ICSE should follow its syllabus from class I onwards. At any rate, such schools should follow the syllabus prescribed by the I.C.S.E. at least from standard VI. As per the scheme followed by the I.C.S.E., their middle section consists of Standards V and VI, whereas the middle section as per the K.E.R. consists of Standards V,VI and VII. For recognition of a school as per the K.E.R., it should be a school established and run as per the provisions of the Kerala Education Act and the Rules formed thereunder. Establishment and recognition of schools are governed by Section 3 of the Kerala Education Act. The said section reads as follows:- “3. Establishment and recognition of schools:- (1) The Government may regulate the primary and other stages of education and courses of instructions in Government and private schools. (2)The Government shall take, from time to time, such steps as they may consider necessary or expedient, for the purpose of providing facilities for general education, special education and for the training of teachers. (3) The Government may, for the purpose of providing such facilities:- (a) establish and maintain schools; or WP(C) NO.32141 of 2008 :-9-: (b) permit any person or body of persons to establish and maintain aided schools; or (c) recognise any school established and maintained by any person or body of persons. (4)All existing schools shall be deemed to have been established in accordance with the Act:: Provided that the educational agency of an aided school existing at the commencement of this section may, at any time within one month of such commencement, after giving notice to the Government of its intention so to do, opt to run the school as a recognised school, subject to the condition that the services of the teachers and other members of the staff of the school shall not be dispensed with or their conditions of service under the management varied to their disadvantage on account of the exercise of this option. (5) After the commencement of this Act, the establishment of a new school or the opening of a higher class in any private school shall be subject to the provisions of this Act, and the rules made thereunder and any school or higher class established or opened otherwise than in accordance with such provisions shall not be entitled to be recognised by the Government. (emphasis supplied) The relevant rules under the K.E.R. dealing with the recognition of schools are contained in Chapter V. Rule 16 of Chapter V deals with the application for recognition. Rule 17 thereof deals with the conditions to be satisfied for grant of recognition. Rule 21 deals with the orders granting recognition. The said rules are quoted below for convenient reference. 16(a). Application for recognition.-- Applications for recognition of schools or of additional standards shall be made to the WP(C) NO.32141 of 2008 :-10-: District Educational Officer in Form 2 within three months from the date of opening of schools or of additional standards by the Manager. Applications from Managers of Schools for the continuance of temporary recognition of their schools or of standards of their schools shall be made to the District Educational Officer not later than three months before the expiry of the temporary recognition. (b) Condonation of delay in applying for recognition:-- The District Educational Officer may, for satisfactory reasons, entertain an application for recognition from the date of opening of the school or of the expiry of recognition if the application is made after the expiry of the period specified in sub-rule(a) above. In all cases where the period to be condoned exceeds three months, the approval of the Deputy Director (Education) shall be obtained. (c) Every application for recognition shall be accompanied by:-- (i) A site plan of the school drawn to scale; (ii)a ground plan of the buildings drawn to scale showing the standards accommodated in each room; and (iii)a statement showing the conditions prescribed and how far they have been fulfilled. (d) The competent authority may grant either permanent recognition or temporary recognition. 17. Conditions to be satisfied for grant of recognition.--Recognition shall be granted only to schools which satisfy the following conditions:- (i) The school must have been opened with permission under Rule 11; (ii) its financial conditions must be satisfactory and no instalment of the financial guarantee WP(C) NO.32141 of 2008 :-11-: specified in Rule 7 must be in default; (iii) Teachers must have been appointed in accordance with the relevant provisions in the Kerala Education Act and the Rules under it; (iv) The Educational Agency or the Manager that may be appointed by it must undertake in writing to have the school accounts annually audited by auditors approved by the Director or the auditors authorised by the Government; (v) The school must be necessary to meet educational needs of the locality; and (vi) it must be conducted in accordance with the provisions of the Kerala Education Act, the Rules under it, and the directions issued by the Government or the Department from time to time. 21. Orders granting recognition.-- (1) If any of the conditions prescribed in rule 17 is not satisfied a temporary recognition for one year at a time may be granted by the District Educational Officer. Previous approval of the Director shall be obtained to accord temporary recognition beyond three years. Permanent recognition shall be granted to the schools satisfying all the prescribed conditions. (2) Recognition shall be granted from the date of opening of schools or of the additional standards or from the date of expiry of temporary recognition if the application has been made within the period specified in sub-rule(a) of rule 16 or the delay in submitting application for recognition has been condoned in the manner laid down in sub-rule(b) of rule 16. In all other cases recognition shall be granted from the date of application for recognition: Provided that it shall be competent for the District Educational Officer to grant recognition to primary and secondary schools and standards deemed as provisionally recognised under sub-rule (3) of rule 1, from a date prior to the introduction of Kerala Education Rules. The retrospective WP(C) NO.32141 of 2008 :-12-: recognition of such schools in such cases shall take effect from the date of payment of salary by Government to the teaching staff in the standard or standards concerned and not from an earlier date.” (emphasis supplied) If the standards (classes) of the school do not have the minimum students strength, recognition can be withdrawn as per Rule 22- A. Section 19 of the Act says that the provisions of sub-sections (2) and (4) to (9) of Section 7 will apply to recognised schools to the same extent and in the same manner as they apply to aided schools. Going by the above statutory provisions, it is clear that there is no provision for recognition of a school following ICSE syllabus under the Kerala Education Act and the Kerala Education Rules. A school recognised by the State has to mandatorily follow the State syllabus, as the school has to be run according to the provisions of the K.E.R. There is practically no distinction between an aided school and a recognised school under the K.E.R., except in the matter of payment of salary to the staff. In the case of former, the salary will be paid by the State. 9. In view of the above position, a school with its middle section approved by the Kerala Government can never apply for I.C.S.E. affiliation, as it is mandatory to follow the said organisation's syllabus at least from Standard VI. Therefore, we WP(C) NO.32141 of 2008 :-13-: accept the contention of the petitioner that clause (xii) of Ext.P8 is unworkable as far as the schools following the syllabus of ICSE are concerned. The contention of the learned Advocate General that such schools should also obtain recognition under the K.E.R. cannot be accepted. In the result, the first respondent/State is directed to reconsider the application for NOC submitted by the petitioner in accordance with law after affording an opportunity of being heard to it in the light of Ext.P8, but ignoring clause (xii) thereof. This shall be done within a period of six weeks from the date of production of a copy of this judgment. The writ petition is allowed as above. K.Balakrishnan Nair, Judge. V.K.Mohanan, MBS/ Judge WP(C) NO.32141 of 2008 :-14-: K.BALAKRISHNAN NAIR & V.K.MOHANAN, JJ. -------------------------------------------- W.P(C).NO. 32141 of 2008 -------------------------------------------- J U D G M E N T WP(C) NO.32141 of 2008 :-15-: DATED: 15 -12-2008 WP(C) NO.32141 of 2008 :-16-: