IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:19.01.2010 Coram The Honourable Mr. JUSTICE K.VENKATARAMAN W.P.Nos.25868 & 26212 of 2009 & M.P.Nos.1, 1, 2 of 2009 Pastor C.Gnanadoss ... Petitioner in W.P.No.25868 of 2009 AJC Public School (CBSE) Parents Association Rep by its President Mr. R.Ganesan ... Petitioner in W.P.No.26212 of 2009 -Vs.- 1.Government of Tamil Nadu, Rep by its Secretary, School Education, Fort St.George, Chennai 600 009. 2.The Director of School Education, D.P.I Compound, College Road, Chennai 600 006. 3.The District Collector, Nagapattinam District, Nagapattinam 611 001. 4.The Chief Educational Officer, Nagapattinam District, Public Office Road, Velipalayam, Nagapattinam 611 001. 5.Central Board of Secondary Education, rep by its Secretary, "Shiksha Kendra", No.2, Community Centre, Preet Vihar, Delhi 110 092. https://hcservices.ecourts.gov.in/hcservices/ 6.Central Board of Secondary Education, Regional Office, Plot No.1630A, J Block, 16th Main Road, Anna Nagar West, Chennai – 40. ... Respondents in W.P.No.25868 of 2009 (Respondents 5 & 6 impleaded as per order dated 23.12.2009 in M.P.No.2 of 2009 in W.P.No.25868 of 2009) 1.The State Government of Tamil Nadu, Rep by its Secretary, Education Department, Fort St.George, Chennai – 9. 2.The District Collector, Nagapattinam. 3.The Chief Educational Officer, Nagapattinam. 4.AJC Public School (CBSE), First Line Beach Road, Nagapattinam. ... Respondents in W.P.No.26212 of 2009 Prayer in W.P.No.25868 of 2009 Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records relating to the impugned order passed by the 4th respondent in Na.Ka.No.11424/Aa2/2009 dated 4.12.2009 directing the petitioner to close down A.J.C Public School, Nagapattinam from 4.12.2009 and to quash the same and to consequently direct the respondents herein to allow the school to carry on its function till the end of the academic year 2009-2010. Prayer in W.P.No.26212 of 2009 Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records in SE.VE.No.622 dated 05.12.2009 passed by the 2nd respondent and order of the 3rd respondent in Na.Ka.No.11424/A2/2009 dated 04.12.2009 and quash the same and https://hcservices.ecourts.gov.in/hcservices/ further direct the 2nd and 3rd respondents to permit the petitioner and other 487 students of the 4th respondent school to complete their academic year 2009-2010 in the 4th respondent school itself based on their representation dated 14.12.2009. For Petitioners : Mr.N.G.R.Prasad for Mr.K.Elango in W.P.No.25868 of 2009 Ms.R.T.Shyamala in W.P.No.26212 of 2009 For Respondents : Mr.P.Wilson, A.A.G., Asst. by Mrs.Dakshayani Reddy, GA For RR1 to 4 in W.P.25868/09 and for R1 to R3 in W.P.No.26212/09 Mr. G.Nagarajan, for R5 & R6 in W.P.No.25868 of 2009 C O M M O N O R D E R W.P.No.25868 of 2009 was filed by the Correspondent of Assembly of Jesus Christ Public School, challenging the order passed by the fourth respondent dated 04.12.2009, directing the petitioner to close down the said school from 04.12.2009 and to consequently direct the respondents to allow the school to carry on its function till the end of the academic year 2009-2010. 2. W.P.No.26212 of 2009 was filed by the Parents Association of Assembly of Jesus Christ Public School, challenging the order passed by the second respondent dated 05.12.2009 and the order of the third respondent dated 04.12.2009, with a further direction to the respondents two and three to permit the petitioner and other students of the fourth respondent school to complete their academic year 2009-2010 in the fourth respondent school based on their representation dated 14.12.2009. 3. In effect, the relief sought for by the petitioners in both the writ petitions are one and the same. 4. The short facts which is set out in the first writ petition in nut shell is set out here under:- (a) The Assembly of Jesus Christ Public School (AJC Public School) was started at Nagapattinam on 06.06.2007. The school is run by a registered society by name 'Assembly of Jesus Christ'. The Society runs four schools in different parts of Tamil Nadu. https://hcservices.ecourts.gov.in/hcservices/ (b) The School at Nagapattinam is a high school and is a religious minority institution. The school has a strength of 487 pupils in class LKG to 9th standard. The number of teaching staff is 25 and non-teaching staff is 7. The school is presently run in a rented building with an extent of 15,000 Sq.ft. The society has purchased 2 Acres and 62 cents of land under a Sale Deed dated 27.06.2007. The construction of the building will commence in January 2010 and will be completed in six months thereafter. (c) Since the petitioner school is a minority institution, as per Section 9 of the Act, it shall establish and administer any private school without permission under Section 6 of the Act. Hence, the petitioner did not apply for permission to the State Government to start a school. It requires to get recognition as per Section 11 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. The petitioner is aware that it need to get recognition as per Section 11 of the Act. From the academic year 2010-2011, it will be having the first set of 10th standard students and has to get affiliation from the CBSE, New Delhi. (d) The construction of the school building will be completed soon and it will apply to CBSE for affiliation in the meantime. It also undertake to comply with all the requirements under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. (e) While that being so, it was shocked to receive the impugned order dated 04.12.2009 from the fourth respondent directing closure of the school for the reason that it did not seek permission from the Government of Tamil Nadu. The impugned order also states that the pupils in its school would have to be accommodated in another school. There is only one more school in Nagapattinam that follows CBSE syllabus and it has got a student strength of 780. It is practically impossible to accommodate all the students in their school. More over, the impugned order was passed without giving an opportunity to explain its case. (f) Thus, the said writ petition was filed for the relief set out earlier. 5. The facts in nutshell in other writ petition namely W.P.No.26212 of 2009 is stated here under:- (a) The president of the Parents Association of AJC Public School has got a minor son by name G.Harish. His son is studying first standard in the said school. It has been informed by the school that they belong to minority institution and hence they will get recognition from the authorities as they got for the other school. https://hcservices.ecourts.gov.in/hcservices/ (b) On 05.12.2009, the second respondent issued an order stating that 10 schools in Nagapattinam were not recognised and the same have to be closed immediately. The said order was passed based on the incident that took place at Kathiripulam, where the van was drowned in a pond resulting in the death of 10 children. The fourth respondent closed down the school immediately. The entire parent of 487 students came to the street and did dharna for the closure of the school. (c) In Nagapattinam there is only one school called Chinmaya CBSE School imparting CBSE syllabus. They cannot accommodate all the students from the present school. Due to the closure of the school, students cannot pursue their studies in the middle of the academic year. Hence, the petitioner has come up with the present writ petition. 6. I have heard Mr.N.G.R.Prasad, the learned counsel appearing for the petitioner in W.P.No.25868 of 2009 and Ms.R.T.Shyamala, the learned counsel appearing for the petitioner in W.P.No.26212 of 2009 and Mr.P.Wilson, the learned Additional Advocate General assisted by Mrs.Dakshayani Reddy, the learned Government Advocate appearing for the respondents. 7.1. It is submitted by the learned counsels appearing for the petitioners that the school in question was started in the year 2007 and that the same was closed by an order dated 04.12.2009 of the fourth respondent in W.P.No.25868 of 2009. It is stated that the school has applied for affiliation with the CBSE and also applied for recognition with the State Government. Further, it was urged that though the school is now running in a rented premises more than two acres of land was purchased and construction will be completed within eight months. Further, it was contended that if the students studying in the school are disturbed now at the middle of the academic year and accommodated in the other school, it will cause great inconvenience to them. In the result, it will affect the students at large. Further, it is contended that there is yet another CBSE school at Nagapattinam which accommodates 787 students and now if the students from the school in question is transferred to the said school it will affect the students career. 7.2. On the other hand, Mr.P.Wilson, the learned Additional Advocate General appearing for the respondents submitted that the school which has not obtained recognition from the state Government cannot for a minute allowed to function. When it came to the notice of the respondents, immediately an order dated 04.12.2009 was passed directing the closure of the school. Sufficient safe guard was made to accommodate the students in the other school and hence the students will not suffer, as contended by the other side. https://hcservices.ecourts.gov.in/hcservices/ 8. On the above back drop, the following undisputed facts exists:- (a) The petitioner school was started in the year 2007 and it has got 487 pupils, 25 teaching staff and 7 non-teaching staff. (b) Admittedly, the school in question did not obtain the recognition was required in the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. (c) There is a direction in the said impugned order to accommodate the students in the nearby school. 9. The question that now arise for consideration is whether the petitioner school can function in spite of the order of closure dated 04.12.2009 of the fourth respondent. Section 11 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 clearly contemplates that recognition of a competent authority is necessary. It would be useful to extract Section 11 which is reproduced here under:- "11. Recognition of Private Schools.- (1) On receipt of an application by- (a) any private school in respect of which permission has been or is deemed to have been granted under section 6 ; or (b) any minority schools. the competent authority may, after satisfying itself, that proper arrangements have been made for the maintenance of academic standard in the school, that the provisions of this Act are complied with and that the prescribed conditions have been satisfied, grant a certificate, recognising the private school for the purposes of this Act. (2) The certificate under sub-section (1) shall be granted within such period as may be prescribed." 10. It is not the case of the petitioner that such recognition was granted by the State of Tamil Nadu. Further more, it is not even the case of the petitioners that affiliation was granted by the CBSE board. Chapter II, Section 3, Clause 3(i) of the Affiliation Bye-Laws of Central Board of Secondary Education contemplates that the school seeking Provisional Affiliation with the Board must have formal prior recognition of the State Government. https://hcservices.ecourts.gov.in/hcservices/ Chapter II, Section 3, Clause 3(i) of the Affiliation Bye-Law is usefully extracted here under:- "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 for affiliation: (i) 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 the States Government or there should be a No Objection Certificate (NOC) to the effect that State Government has no objection 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 and there will be no need for further NOC for the school. Condition of submitting a No Objection Certificate will not be applicable to categories 3.1 (i) to (iv)." As stated earlier, it is not the case of the petitioner that such affiliation was obtained from the CBSE Board. 11. The only question that was urged before me is that recognition is sought for from the Government of Tamil Nadu and in case of the closure of the school, the students will suffer. There cannot be two opinion that the students will suffer in the event of the closure of the school. The students who have joined in the school are made to suffer for no fault of them. But, unfortunately the school cannot be permitted to run without recognition from the State Government and without affiliation by the CBSE board. 12. The Hon'ble Apex Court in (2006) 13 SCC 673, SUNIL ORAON V. CBSE has held that the practice of the educational institutions admitting students without requisite recognition or affiliation has to be deprecated. The mere fact that ultimate victims are the innocent students cannot be a ground to direct the CBSE to allow them to appear in the examinations. Paras 14 to 24 of the said judgment is usefully extracted here under:- " 14. Now, we would refer to the law settled by this Court in various judgments to the effect that interim orders of the nature passed in the present case are detrimental to education and its efficient management. As a matter of course, such interim orders should not be passed, as they are aberrations and it is subversive of academic discipline. https://hcservices.ecourts.gov.in/hcservices/ 15. In Regional Officer, CBSE v. Sheena Peethambaran, this Court has observed: (SCC p.724, para 6) " 6. This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases it is ultimately pleaded that since the course was over or the result had been declared, the matter deserves to be considered sympathetically. It results in very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions." 16. In CBSE v. P.Sunil Kumar the institutions whose students were permitted to undertake the examination of the Central Board of Secondary Education were not entitled to appear in the examination. They were, however, allowed to appear in the examination under the interim orders granted by the High Court. In that context the Supreme Court observed: (SCC p. 381, para 4) "4. ...But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students." 17. In Guru Nanak Dev University v. Parminder Kr. Bansal the Supreme Court observed that such interim order is subversive of academic discipline. The relevant observations are as under: (SCC p.403, para 7) "7. ... We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose, ill-conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates. ... The courts should not embarrass academic authorities by themselves https://hcservices.ecourts.gov.in/hcservices/ taking over their functions." 18. Yet in another case i.e. in A.P. Christians Medical Educational Society v. Govt. of A.P. this court held that: (SCC p.678, para 10) "10. ... We cannot by out fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws." 19. In State of T.N. v. St. Joseph Teachers Training Institute this Court observed that the direction of admitting the students of unauthorised educational institutions and permitting them to appear at the examination has been looked on with disfavour and the students of unrecognised institutions who are not legally entitled to appear at the examination conducted by the Educational Department of the Government cannot be allowed to sit at the examination and the High Court committed an error in granting permission to such students to appear at the public examination. 20. In CBSE v. Nikhil Gulati this Court deprecated the practice followed by the High Court to issue direction and also observed that such aberrations should not be treated as a precedent in future. 21. In Krishna Priya Ganguly v. University of Lucknow the Supreme Court observed: (SCC p.310, para 3) "3. ... whenever a writ petition is filed provisional admission should not be given as a matter of course on the petition being admitted unless the court is fully satisfied that the petitioner has a cast-iron case which is bound to succeed or the error is so gross or apparent that no other conclusion is possible." 22. In State of Maharashtra v. Vikas Sahebrao Roundale it was held that the students of unrecognised and unauthorised educational institutions could not have been permitted by the High Court on a writ petition being filed to appear in the examination and to be accommodated in recognised institutions. This Court observed: (SCC p.439, para 12) "12. ... Slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education." 23. Time and again, therefore, this Court had https://hcservices.ecourts.gov.in/hcservices/ deprecated the practice of educational institutions admitting the students without requisite recognition or affiliation. In all such cases the usual plea is the career of innocent children who have fallen in the hands of the mischievous designated school authorities. As the factual scenario delineated against goes to show that the school has shown scant regards to the requirements for affiliation and as rightly highlighted by learned counsel for CBSE, the infraction was of very serious nature. Though the ultimate victims are innocent students that cannot be a ground for granting relief to the appellant. Even after filing the undertakings the school nonchalantly continued the violations. 24. Students have suffered because of the objectionable conduct of the school. It shall be open to them to seek such remedy against the school as is available in law, about which aspect we express no opinion." 12.1. The judgment cited above of the Hon'ble Apex Court makes it very clear that there cannot be any misplaced sympathy on the ground that students will suffer in the circumstances like this. 13. Considering the above facts and circumstances, I am not inclined to grant the relief that has been sought for by the petitioners and in fine, the writ petitions stands dismissed. Consequently, connected miscellaneous petitions are closed. However, no order as to costs. It is needless to say that the respondents have to take earnest and immediate steps to accommodate the students studying in the petitioner school in the nearby school without affecting their carrier. The said steps shall be taken within ten days from today. 14.1. Before parting with the matter, I am constrained to express that educational authorities who are in-charge in the district where the school is in existence have to be blamed for not taking action against the petitioner school which started functioning from 2007. Had the action been taken at the initial stage itself (i.e) even in the year 2007, students would not be suffering at this stage. In-action on the part of the authorities concerned have now landed the innocent students in great trouble. At the end of the academic year, how the students are going to be accommodated, in what school and what would be their fate, all remains unanswered. 14.2. Even in the present case, such order came to be passed directing the closure of the school, since an incident happened in an un-recognised school causing death of 10 students. That too at the instruction of the Government, the educational authorities have taken such action. In the interest of the student https://hcservices.ecourts.gov.in/hcservices/ community, it would be desirable on the part of the State Government to give suitable direction to each of the district educational authorities to be vigilant hence forth and take action against the school authorities who start the school without any affiliation or recognition. Only then, a situation of this nature may not arise in future. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pgp To 1.The Secretary, Government of Tamil Nadu, School Education Dept., Fort St.George, Chennai 600 009. 2.The Director of School Education, D.P.I Compound, College Road, Chennai 600 006. 3.The District Collector, Nagapattinam District, Nagapattinam 611 001. 4.The Chief Educational Officer, Nagapattinam District, Public Office Road, Velipalayam, Nagapattinam 611 001. 5.The Secretary, Central Board of Secondary Education, "Shiksha Kendra", No.2, Community Centre, Preet Vihar, Delhi 110 092. https://hcservices.ecourts.gov.in/hcservices/ 6.Central Board of Secondary Education, Regional Office, Plot No.1630A, J Block, 16th Main Road, Anna Nagar West, Chennai – 40. 1 cc To Mr.K.Elango, Advocate, SR.3152/10 1 cc To M/s.R.T.Shyamala, Advocate, SR.3736/10 1 cc To The Government Pleader, SR.3291/10 W.P. Nos.25868 & 26212 of 2009 kgk(co) pmk.21.1.2010. https://hcservices.ecourts.gov.in/hcservices/