Education/Educational Institutions:
Kerala Education Rules, 1959: Affiliation of the schools with the CBSE – No Objection Certificate (NOC) from the State Government for CBSE affiliation – Guidelines postulated by the GO dt 10.06.2011 – Guidelines (iv) and (xiv) requiring minimum 3 acres of land and minimum 300 enrolled students – Challenge to – Held: 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 – Thus, the 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 – Requirement of a minimum strength of 300 students has no rational nexus with quality education or the CBSE Affiliation Bye-laws – 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, the said requirement is also arbitrary.
Dismissing the petitions, the Court
HELD: 1.1 In Chapter IV of the Kerala Education Rules, 1959, it is provided that Upper Primary Schools with or without Lower Primary Section (that is up to and including Standard V and VI), the land requirement (as informed) is 1.2 to 2 hectares (3 to 5 acres); for Secondary Schools the land requirement is 1.2 to 2 hectares (3 to 5 acres) and for Higher Secondary Schools the land requirement is 1.2 hectares (3 acres). Hence, the minimum requirement is of 3 acres of land. However, the KER provides that every school should normally have a minimum site area. [Para 15] [693-H; 694-A-B]
1.2 Under the CBSE Affiliation Bye-laws, the minimum land requirement varies from location to location. The requirement generally for an educational institution to apply to the CBSE for affiliation is that the school must have 2 acres of land but there are certain exceptions. In cities with a population exceeding 25 lakhs the land should not be less than 1 acre with adequate building and arrangement with other institution for imparting physical and health education and for conducting games to the satisfaction of the CBSE. In hilly areas, the land should not be less than 1 acre and the norms as prescribed by the Planning Commission would be applicable for determining hilly areas. [Para 16] [694-B-D]
1.3 Similarly, in schools located within the Municipal limit of the capital cities, islands, North Eastern States and Jammu & Kashmir the minimum land requirement shall be 1 acre. The CBSE has introduced a degree of flexibility depending upon the location of the school. Unfortunately, Kerala has not even thought of providing any such flexibility. 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. [Para 17] [694-D-E]
1.4 The State of Kerela was asked to inform 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 7.10.2011. 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. 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. [Para 18] [694-F-H]
1.5 There was no rational basis for the requirement of a minimum of 3 acres of land for the grant of an NOC. Even in the counter affidavit filed before the 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. [Para 19] [695-B-C]
1.6 Judicial notice is taken 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 this Court 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. [Para 20] [695-D-F]
2.1 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. [Para 24] [696-F]
2.2 The Right of Children to Free and Compulsory Education Act, 2009 requires a student-teacher ratio of 30:1. A school 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. [Para 25] [696-G-H; 697-A]
2.3 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. It cannot be said that 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. [Para 26] [697-B-C]
2.4 According to the State, 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, the requirement is arbitrary. [Para 27] [697-D-E]
Queen Mary Public School v. State of Kerala (2007) 4 KLT 706 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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