Case: STATE OF KERALA Vs. MYTHRI VIDYA BHAVAN ENGLISH M. SCH

indication that the public education system in Kerala as managed by the State Government leaves something to be desired in terms of the quality of the education. How does the restriction imposed by Kerala benefit the children of the State?20. As mentioned above, the CBSE has done its homework well and has taken a pragmatic view of the requirement of land. We can take judicial notice of the fact that in metropolitan and capital cities as well as in hilly areas, it would be difficult to get 3 acres of land or even 2 acres of land. Similarly, due to the terrain it would perhaps be difficult to get adequate land in the North Eastern region of the country as well as in Jammu & Kashmir. This realism deserves to be contrasted with non-realistic inflexibility of Kerala which too has some hilly areas where perhaps it might be difficult to find 3 acres of land. It is this lack of pragmatism and arbitrary rigidity that has weighed with the High Court as well as with us in coming to the conclusion that guideline (iv) requiring a minimum of 3 acres of land for obtaining an NOC for getting affiliation in accordance with the Affiliation Bye-laws of the CBSE is arbitrary and was deservedly struck down by the High Court. Minimum enrolment of 300 students21. The second challenge is with reference to the minimum strength of students being 300 in a school that seeks affiliation with the CBSE in terms of guideline (xiv).22. At this stage, it may be mentioned that in Queen Mary Public School v. State of Kerala 1 the High Court held that the requirement of 500 students on the rolls for affiliation of the school from Standard I to Standard X is contrary of the CBSE Affiliation Bye-laws and is not rational or sustainable. Notwithstanding this, Kerala has insisted on the number of students on the rolls being at least 300 for the issuance of an NOC. Since there is no such requirement under the CBSE Affiliation Bye-laws - this is merely an unwarranted imposition by Kerala on school managements. 23. The question of affiliation with the CBSE would arise only when the school reaches at least Standard VI. In this regard, clause 15.1(a) of Chapter III of the Affiliation Bye-laws is relevant and this provides as follows:“15.1.(a) The schools fulfilling the norms of Affiliation given in Chapter-II may apply ‘On-line’ to the Board for approval of Middle Class Syllabus/provisional affiliation for secondary/ upgradation of Senior Secondary Classes on the prescribed from alongwith prescribed fee given in Appendix II before 30 th June of the Year preceding the year in which Class VI/IX/XI as the case may be is proposed to be started. Application Forms, procedural details and Affiliation Bye-Laws for submission of applications ‘on line’ are available on the Boards website www.cbse.nic.in. Application submitted by post or by any other means will not be processed. All the applications which are received by CBSE on or before 30 th June every year may be processed together within a period of six months thereof. The order of granting or refusing the affiliation shall be communicated to the applicants on or before 31 st December of that year.”24. The High Court took the view that progressive stages of affiliation has a rational basis while the prescription of having a minimum of 300 students for obtaining an NOC does not have any such basis. Again, we do not find any reason for this requirement in the counter affidavit filed by Kerala in the High Court except that it has the authority to make such a prescription.25. The illustration given by the High Court in this regard is apposite. The Right of Children to Free and Compulsory Education Act, 2009 (the RTE Act) requires a student-teacher ratio of 30:1. Aschool having 30 children in one class and having one division will have only 180 students upto and including Standard VI. Such a school cannot, therefore, obtain provisional affiliation for secondary or senior secondary classes. Actually, such a school would not be eligible for affiliation till Standard X when it has 300 students – and it can never reach that stage since Standard IX and X can be started only if the school has CBSE affiliation. Kerala is, therefore, expecting an impossibility from such schools that strictly conform to the provisions of the RTE Act.26. On the other hand, under the KER the minimum effective strength per standard in Lower Primary/Upper Primary and High Schools is 25 students (it would now have increased to 30 students). It is only for schools seeking CBSE affiliation that it is prescribed that the number of students should not be less than 300. We do not see how, if the number of students is less than 300, it will detract from the quality of education imparted to the students. In other words, the requirement of a minimum strength of 300 students is a completely arbitrary figure arrived at by Kerala and which has no rational nexus with quality education or the CBSE Affiliation Bye-laws.27. According to learned counsel for Kerala, if a school does not have a minimum of 300 students, it would be difficult for that school to pay the required wages of the staff and the teachers except by charging exorbitant fees. There is no material on record to substantiate such a conclusion and it is based merely on the ipse dixit of the State. In the absence of any material on record justifying the fixation of a minimum of 300 students in a school seeking an NOC for affiliation to the CBSE, we must hold the requirement as arbitrary and we do so.28. Another issue raised by the management of schools is with regard to the compulsory unique identification (UID) for enrolment of students. We leave this issue open, as suggested by learned counsel, to await the decision of Constitution Bench of this Court which is presently seized of the requirement of UID.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In our opinion, all these petitions deserve to beappears to us that the rigid requirement of Kerala indicates that it is imposed upon the schools that seek affiliation with the CBSE only with a view to unnecessarily burden them with an onerous and arbitrary condition, since Kerala believes it has the authority to do so.18. Keeping all this in mind, we had required Kerala by an order dated 6 th December, 2016 to inform us the number of schools run by the State Government or aided by the State Government or affiliated with the State Board that do not comply with the guidelines of 7 th October, 2011. In response, Kerala filed an evasive affidavit to the effect that since the guidelines do not apply to such schools, there is no compulsion on such schools to comply with them. This is remarkable – guidelines are framed by Kerala for application by schools other than those run by the State Government or aided by the State Government or affiliated with the State Board. There is no reason given for this distinction drawn by Kerala which appears to be completely arbitrary.19.It was submitted on behalf of Kerala that nevertheless the State Government was well within its rights and authority to provide for a minimum of 3 acres of land for the grant of an NOC.While this may be so, the requirement must have some rational basis but we are unable to find any such rational basis. Even in the counter affidavit filed before the learned Single Judge it is stated by Kerala that restrictions have been placed on CBSE schools to prevent their mushrooming growth which would affect the public education system in the State. No details have been given for arriving at this conclusion. But the very fact that there is a mushroom growth of CBSE schools is an indication that the public education system in Kerala as managed by the State Government leaves something to be desired in terms of the quality of the education. How does the restriction imposed by Kerala benefit the children of the State?20. As mentioned above, the CBSE has done its homework well and has taken a pragmatic view of the requirement of land. We can take judicial notice of the fact that in metropolitan and capital cities as well as in hilly areas, it would be difficult to get 3 acres of land or even 2 acres of land. Similarly, due to the terrain it would perhaps be difficult to get adequate land in the North Eastern region of the country as well as in Jammu & Kashmir. This realism deserves to be contrasted withic inflexibility of Kerala which too has some hilly areas where perhaps it might be difficult to find 3 acres of land. It is this lack of pragmatism and arbitrary rigidity that has weighed with the High Court as well as with us in coming to the conclusion that guideline (iv) requiring a minimum of 3 acres of land for obtaining an NOC for getting affiliation in accordance with the Affiliationof the CBSE is arbitrary and was deservedly struck down by the High Court.At this stage, it may be mentioned that in Queen Mary Public School v. State of Kerala 1 the High Court held that the requirement of 500 students on the rolls for affiliation of the school from Standard I to Standard X is contrary of the CBSE Affiliationand is not rational or sustainable. Notwithstanding this, Kerala has insisted on the number of students on the rolls being at least 300 for the issuance of an NOC. Since there is no such requirement under the CBSE Affiliationthis is merely an unwarranted imposition by Kerala on school managements.The High Court took the view that progressive stages of affiliation has a rational basis while the prescription of having a minimum of 300 students for obtaining an NOC does not have any such basis. Again, we do not find any reason for this requirement in the counter affidavit filed by Kerala in the High Court except that it has the authority to make such a prescription.25. The illustration given by the High Court in this regard is apposite. The Right of Children to Free and Compulsory Education Act, 2009 (the RTE Act) requires aratio of 30:1. Aschool having 30 children in one class and having one division will have only 180 students upto and including Standard VI. Such a school cannot, therefore, obtain provisional affiliation for secondary or senior secondary classes. Actually, such a school would not be eligible for affiliation till Standard X when it has 300 students – and it can never reach that stage since Standard IX and X can be started only if the school has CBSE affiliation. Kerala is, therefore, expecting an impossibility from such schools that strictly conform to the provisions of the RTE Act.26. On the other hand, under the KER the minimum effective strength per standard in Lower Primary/Upper Primary and High Schools is 25 students (it would now have increased to 30 students). It is only for schools seeking CBSE affiliation that it is prescribed that the number of students should not be less than 300. We do not see how, if the number of students is less than 300, it will detract from the quality of education imparted to the students. In other words, the requirement of a minimum strength of 300 students is a completely arbitrary figure arrived at by Kerala and which has no rational nexus with quality education or theAccording to learned counsel for Kerala, if a school does not have a minimum of 300 students, it would be difficult for that school toay the required wages of the staff and the teachers except by charging exorbitant fees.There is no material on record to substantiate such a conclusion and it is based merely on the ipse dixit of the State. In the absence of any material on record justifying the fixation of a minimum of 300 students in a school seeking an NOC for affiliation to the CBSE, we must hold the requirement as arbitrary and we doleave this issue open, as suggested by learned counsel, to await the decision of Constitution Bench of this Court which is presently seized of the requirement of UID.