IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Con.Case(C).No. 962 of 2008(S) ----------------------------------------- AGAINST THE JUDGEMENT IN WPC.1452/2007 Dated 20/07/2007 .................... PETITIONER/PETITIONER: ------------------------------------ FR.VARGHESE MANAVALAN,S/O.ANTHAPPAN, 56 YEARS, R/AT.ST.ANTONY'S CHURCH,KIZHAKKAMBALAM, KUNNATHUNADU TALUK,ERNAKULAM DISTRICT, MANAGER, ST.ANTONY'S PUBLIC SCHOOL, KIZHAKKAMBALAM-686 562, ERNAKULAM DISTRICT. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT(S): IST RESPONDENT ----------------------------- JAMES VARGHESE, AGE AND FATHER'S NAME NOT KNOWN TO THE PETR., SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER (SR.) SRI.T.B.HOOD. THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Cont. Court Case(C) No.962 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of August, 2008 Judgment Petitioner in this Contempt of Court Case is the Manager of an unaided school. He along with the President of the Parent Teachers' Association had field W.P.No. 1452/2007 impugning Ext.P8 order passed by the Government declining the request for grant of No Objection Certificate (NOC) for affiliation to the Central Board of Secondary Education. 2. It is not necessary at this stage to refer to the prolonged litigation process that the management has been compelled to undertake to get the No Objection Certificate. It need only be mentioned that in the earlier round of litigation viz. in W.P. (C)No.25267/06, the stand taken by the Government was that the request for NOC could not be considered, unless and until the Government came out with fresh guidelines based on the new policy to be evolved. Even after noticing the above contention and after hearing the learned Advocate General, this Court in WP(C).No.25267/06 held thus: “6. In this context it has to be noticed that the Government does not have a case that the existing guidelines in the matter of grant of N.O.C are not in force now. Those guidelines will govern the field. It may be true that the Government has constituted a new Committee to evolve new policy parameters and to recommend principles Cont. Court Case(C) No.962 of 2008 2 and guidelines to be followed by the Government for upgradation and recognition of existing schools and also for grant of N.O.C to C.B.S.E affiliated institutions. ........... But that does not mean that the request made by the petitioners should be kept in cold storage till the Committee submits its report recommending fresh guidelines/principles or new policy parameters.” Admittedly the above judgment was not challenged by the State and thus it had become final. Thereafter the Government had issued another order on December 15, 2006 holding that since other English medium schools were available in the locality, the students in that area would get an opportunity to seek admission in those schools, if they so desire. The above order was challenged by the petitioners in W.P.No.1452/2007. 3. In this context it is pertinent to note that the Government had in fact considered the request of the petitioner under the old guidelines. To that extent the Government had complied with the direction issued by this Court in W.P.No.25267/06. But still, the stand taken by the Government was that even the clauses under the old guidelines would not entitle the petitioner to get NOC. 4. W.P.No.1452/07 was disposed of by this Court on July 20, Cont. Court Case(C) No.962 of 2008 3 2007. In the said judgment this Court observed thus: “........The attempt of the Government seems to be to contend for the position that if petitioner's school is granted NOC, the parallel English divisions in the 3 neighbouring schools may be adversely affected. 9. Admittedly, the 3 schools referred to in Ext.P8 order do not follow CBSE syllabus. It may be true that there are parallel divisions of English medium classes with a strength of 30 students each in 3 neighbouring schools. That is the sole reason which is stated in Ext.P8 order to reject petitioner's application. Curiously, it is further stated in Ext.P8 order that the Govt. “do not consider it as a matter of immediate public interest to provide NOC for CBSE affiliation to the petitioner's school before the fresh guidelines are finalised”. The above view taken by the Govt. cannot be countenanced especially for the reason that this Court in Ext.P7 had found that petitioner's application had to be considered in terms of the old guidelines. Similarly, the Cont. Court Case(C) No.962 of 2008 4 Departmental Officer in his Visit Report had recommended grant of NOC. In the absence of any valid reasons to reject the report, I do not find any justification on the part of the Government to decline NOC to the petitioner's school. In any view of the matter I am satisfied that Ext.P8 cannot be sustained. Therefore the Writ Petition is allowed. Ext.P8 is quashed. Government shall pass appropriate orders in the light of the observations made above. This shall be done as expeditiously as possible, at any rate on or before July 31, 2007.” 5. The Government had issued Annexure B order rejecting the application for NOC stating that under the new guidelines, the request cannot be considered. It is true that in the said order it was also mentioned that the schools seeking provisional affiliation with the Board must have formal prior recognition of the State/UT Government. Anyhow, the said order was withdrawn by Annexure F and G orders on the teeth of contempt proceedings in CCC.1205/2007, which are not relevant for the purpose of disposal of this case. The fact remained that the NOC remained a mirage as far as the petitioner is concerned, in spite of the direction issued by this Court. 6. It was in the above circumstances that this Contempt of Court Cont. Court Case(C) No.962 of 2008 5 Case happened to be filed on July 2, 2008. During the pendency of this case, the Government has come out with yet another order dated August 5, 2008. Paragraph 6 of the said order is extracted hereunder for the sake of convenience: “6. In the above circumstances the application of the petitioner's school has been examined in detail on the basis of the report of the Director of Public Instruction, Thiruvananthapuram and as per the existing guidelines applicant school has not obtained recognition from the State Government to run middle class. Further they have not produced any documents to prove that they have obtained approval for syllabus from the CBSE/ICSE in middle class as envisaged in the guidelines issued by the State Government in GO (Ms) 18/88/G.Edn. dated 12/1/1988. Hence it is clear that the applicant school could not satisfy the conditions stipulated in the Guidelines issued in GO (Ms)18/88/G.Edn. dated 12/01/1988 for NOC and also based on the conditions prescribed for affiliation by CBSE in their Bye- Laws.” 7. From the above order it can be seen that the Government has now taken a stand that petitioner will not be entitled to get NOC since “the school had not obtained recognition from the State Government to run Cont. Court Case(C) No.962 of 2008 6 middle class” as stipulated in clause (xii) of G.O.(Ms).18/88/G.Edn. dated 12/1/1988. It is pertinent to note that in any of the previous round of litigations between the petitioner and the Government such a ground was never raised by the Government. It is true that in Annexure B order there was a reference to the above stipulation, but in none of the above orders issued by the Government such a stand was taken by the Government. There is considerable force in the contention raised by the petitioner that the attempt of the Government is to deny NOC to the petitioner somehow. He contends that the respondent is guilty of ex facie contempt by his audacity to issue Annexure R1 order dated August 5, 2008 in wilful and deliberate disobedience of the direction issued by this Court in W.P.No.25267/2006 and W.P.No.1452/2007. 8. Though I am prima facie satisfied that there is considerable force in the above contention, I do not propose to initiate any proceedings against the respondent under the Contempt of Courts Act at this stage. 9. Though learned Government Pleader has pointed out that a Special Leave Petition is pending before the Supreme Court against the judgment of the Division Bench in the matter of grant of NOC to CBSE schools in Annexure E judgment along with other connected cases, it is evident from the judgment in this case that this Court had categorically found that the petitioner was entitled to get NOC in the light of the various reports of the educational authorities. As mentioned earlier, the finding entered by this Court in this regard in WP (C)No.25267/07 had never been challenged by the State and thus it had become final. But still I refrain from proceeding with this contempt case any further. 10. Learned counsel for the petitioner has made a very persuasive Cont. Court Case(C) No.962 of 2008 7 request not to condone the wilful act of disobedience by the respondent. However it is made clear that it will be open to the petitioner to pursue the remedy available to him as against Annexure R1 order dated August 5, 2008 in accordance with law. Contempt of Court Case is closed with the above observations and reserving liberty to the petitioner to challenge Annexure R1 order in separate proceedings. A.K. BASHEER an. Judge.