Delhi High Court
Optimum International School vs Central Board Of Secondary ... on 6 December, 2018
$~42 & 43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 6th December, 2018
+ W.P.(C) 10569/2015
OPTIMUM INTERNATIONAL SCHOOL ..... Petitioner
Through: Mr. Sanjay Sherawat, Mr. Divyank Rana
& Mr. Ashok Kumar, Advocates
versus
CENTRAL BOARD OF SECONDARY EDUCATION
..... Respondent
Through: Mr. Amit Bansal & Ms. Seema Dolo,
Advocates for CBSE
Mr. Roshan Lal Goel & Ms. Dev Jyoti
Dehria, Advocate for UOI
+ W.P.(C) 1868/2017
BHARAT PUBLUC SCHOOL ..... Petitioner
Through: Mr. Vipin Jai, Advocate
versus
CHAIRMAN CENTRAL BOARD OF
SECONDARY EDUCATION AND ORS .... Respondents
Through: Mr. P.S. Singh, Advocate for UOI
Mr. Tanveer Alam, Advocate for DOE
Mr. Sumit Aggarwal & Mr.Mukesh
Sachdeva, Advocate for R-3
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
% J U D G M E N T (ORAL)
1. These two writ petitions involve similar issues and are accordingly
being decided by this common judgment.
2. Both the petitioners are aggrieved by the rejection of their requests
for affiliation by Respondent No. 1 - the Central Board of Secondary
Education (CBSE). In both cases, the request has been rejected on the
ground of non-fulfilment, by the concerned school, of the provisions of
Bye-law III of the Affiliation Bye-Laws of the CBSE. For the purpose of
these writ petitions, it would only be required to extract clause 3 (i),
(ii)(a) and (ii)(b) of the Bye-Laws, as under:
"3. Any educational institution in India or outside India
which fulfils 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. Govt. Its application either should be
forwarded by the States Govt. 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
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specific period or stage unless it is withdrawn. Condition
of submitting a No Objection Certificate will not be
applicable to categories 3.1 (i) to (iv).
(ii) (a) The School/Society/Trust /Company
registered under section 25 of the Companies Act, 1956
or the Congregation or other Religious Body controlling
the Society/Trust/Company registered u/s 25 of the
Companies Act, 1956 managing the school must have
about two acres (or as otherwise permitted measurement)
of land and a building constructed on a part of land and
proper playgrounds on the remaining land.
Provided that the school may be graded as Category A+,
Category A & Category B School as per the following
criteria:
Category A + School - Permanently affiliated school
Category A School - Provisionally affiliated school
with land of atleast 2 acres or of such measurement as
has been permitted under Rule 3(ii) (b),(c), (d) & (e)
below.
Category B School - Provisionally affiliated school with
following criterion:
a) recognized by the Education Department or whose
application has been forwarded by it.
b) does not possess land as per Category 'A' but has not
less than 1.5 acre of land also satisfies the following:
• 250 sq. mtr. of area + 1 sq.mtr. for every student
on the rolls (for a middle school).
• 500 sq.mtr. of area +1 sq.mtr. for every student
on the rolls (for a Secondary school).
• 750 sq.mtr. of area +1 sq.mtr. for every student
on the rolls (for a Senior Secondary school).
c) pays salaries as per State Govt./U.T. scales of pay
d) satisfies all the other conditions of Affiliation Bye-
Laws
(b) $ In cities with a population exceeding 15 lacs, the
land should not be less than one acre with adequate
building & arrangement with other
institution/organization for imparting Physical &
Health Education and for conducting games, to the
satisfaction of the Board.
In case of lease, it will be accepted if, it is for at least 30
years. Provided further that in case of any portion, which
is leased out below 30 years, such case may be. In case
of lease, it will be accepted if considered provided that
land has been allotted by the Govt. or Govt. Agencies
and it is as per the Law of the land. In all such cases
school should have at least one acre of land by
ownership or by lease for 30 years and in all case the
total land area should not be less than about 2 acres."
3. Inasmuch as the issue in controversy revolves around a narrow
compass, it is not necessary to set out in detail the facts recited in the writ
petitions. Nevertheless, for ease of reference, and for the sake of
convenience, reference, hereinafter, would be to the record of W.P.(C)
10569/2015. The impugned letter dated 4th September, 2015 issued by
the CBSE, whereby the request of the petitioner, for affiliation of its
college to secondary level stands rejected, reads thus:
"Sub: Request for Provisional Affiliation upto Secondary
level - reg.
Sir/Madam,
With reference to your application No. SL-01669-
1415 registered on the subject cited above and subsequent
correspondence in the matter, I am directed to inform you
that on perusal of the documents received along-with the
compliance report dated 12/06/2015 the following
deficiencies have been observed:
In this connection, I am directed to inform you that
after perusal of the documents submitted with aforesaid
letter, it has been observed that the school is not in
possession of 1.5 acres of land on single compact land/plot
to fulfil the minimum land requirements i.e. 1.5 acres as per
Affiliation Bye-laws of the Board.
Since, fulfilment of above conditions are mandatory
in nature, your application under reference registered for the
session 2014-15, after due consideration, has been Rejected.
The school is advised to remove the above
deficiencies and apply afresh online through http:/
/cbseaff.nic.in/ to consider its application for the future
academic session as the Board is not a position to consider
your request at the late stage for the current academic
session.
It is further informed that school should not start
classes under CBSE pattern (IX/X) without grant of
affiliation by the Board otherwise the Board will not be
responsible for any consequences arising out of it."
4. Clearly, the only ground on which the petitioner's request for
affiliation has been rejected is that the School is not in possession of 1.5
acres of land on a single compact land/plot to fulfill the minimum land
requirement of i.e. 1.5 acres as stipulated in the Affiliation Bye-Laws.
The assertion of the petitioner, as ventilated in Court, by Mr. Sanjay
Sherawat, learned counsel for the petitioner is that the Affiliation Bye-
Laws do not contain any such stipulation, of the school, seeking
affiliation, having necessarily to be in possession of 1.5 acres of land on a
single compact land/plot. It may be noted, in this regard, that the
affiliation in both these writ petitions is provisional affiliation; in fact,
Mr. Amit Bansal, learned counsel appearing for the CBSE submits that
the CBSE has done away with the provision of permanent affiliation, and
that all affiliation is now provisional. As such, the provision which
would apply is Bye-law 3(ii)(a)(b), which, read in conjunction with
clause (ii)(a) of the said Bye-law, requires the school to have not less
than 1.5 acres of land and a building constructed on a part of land and
proper play grounds on the remaining land.
5. Mr. Sherawat, learned counsel for the petitioner points out that
there is no stipulation, in any of the clauses or sub-clauses of Bye-law 3,
requiring the stipulated area of 1.5 acres of land to be in the form of a
single plot of land. In the case of the school represented by him, the
school possesses two plots of land, one admeasuring 1 acre and the other
admeasuring 0.5 acres, 900 meters apart. His submission is that, so long
as the two plots, put together, measure 1.5 acres, the mandate of Bye-law
3(ii)(a)(b) stands fulfilled.
6. Mr. Sherawat makes the following submissions, to support his
case:
(i) It is only w.e.f. 18th October, 2018 that the CBSE has
introduced, in its Affiliation Bye-Laws, a specific
requirement in clause 3.1.1 which reads thus:
"3.1.1 The land on which the school is located should
necessarily be a contiguous single plot of land. If
there are more than two survey numbers etc. all the
survey numbers/plots should be adjacent/touching
each other and shall make a single plot of land on the
whole."
(ii) As such, it would not be permissible to read, into the
Affiliation Bye-Laws as they existed prior to 2018, a
requirement for the entire 1.5 acres of land having to be on a
single contiguous plot.
(iii) The online application form, submitted by the school while
seeking affiliation, contained a specific query as to whether
the school was running at two sites. In other words, the fact
that the school might have been running at two sites could
not be treated as a fetter to grant of affiliation to the school.
(iv) Mr. Sherawat next invites my attention to a communication
dated 7th September, 2013, from the CBSE to the school,
which observed that, as per the land certificate possessed by
it, the school was running on a campus area of
approximately 1 acre, which did not amount to fulfilment of
the minimum land condition. In juxtaposition therewith, Mr.
Sherawat invites attention to the communication dated 8th
October, 2013, which calls upon the school to intimate the
exact distance between the school and the proposed piece of
land for the playground. This, Mr. Sherawat would seek to
submit, indicates that, even in the opinion of the CBSE, the
playground could be located on two separate plots.
(v) Mr. Sherawat also questions the rationale for the insistence,
by the school, on the entire area of 1.5 acres having to b e in
one contiguous plot. He submits that there is no justification
for requiring fulfilment of such a condition, so long as the
facilities in the school were sufficient to ensure overall
welfare of the students.
(vi) Mr. Sherawat next refers to another communication dated
24th December, 2013, from the CBSE to his client, which
alleges that the school had not submitted the registered lease
deed of its playground. He submits that, in response to this
communication, the school had, in fact, submitted the said
registered lease deed.
(vii) Mr. Sherawat would next invite my attention to the fact that
an Inspection Committee had been appointed, vide
communication dated 6th March, 2014 of the CBSE, for
inspection of the school. He would submit that inspection of
the school hoped to have taken place only after the
respondent had been satisfied about the entitlement, of the
school, to affiliation. He draws attention to serial No. 2 of
the 4 specific points for verification as communicated to the
Inspecting Committee in the said communication, which
reads thus:
"2. The Inspection Committee is
requested to verify the Original land
documents of the school and match its
location with the address of the school
mentioned in NOC and specifically report
that the school is running from the same site
as mentioned in the land documents and
NOC. Also area of campus may be verified
and see that same in order and school land is
in a Single Compact Plot. If school land is
not in a single plot, area of different plots
and distance between plots may clearly be
given in the report."
(viii) Mr. Sherawat next refers to a circular dated 26th October,
2012, issued by the Department of School Education and
Literacy, Ministry of Human Resource Development,
dealing with the "Requirement of playgrounds specified
under schedule to the Right of Children to Free and
Compulsory Education (RTE) Act, 2009", para 2 of which
reads thus:
"2. The matter has been examined in the
Ministry. The intent of inclusion of
playground as an infrastructural requirement
of a school is to ensure that children have
sufficient open space for sports and other
physical activities during school hours. It is
not necessary that the school management
provides this facility within the school
premises. It would be sufficient compliance
if school managements make adequate
arrangements, in an adjoining
playground/municipal park etc., for children
to play outdoor games and other physical
activities."
(ix) Mr. Sherawat would submit that, in view of this
communication, the fact that the playground, for the
children, was in an adjoining plot, or in a plot separate from
where the school was located, could not be an inhibiting
factor, for the affiliation of the school.
(x) Mr. Sherawat would finally seek to submit that there were
sufficient instances where schools, which were located at
more than one site, were granted affiliation. He draws
attention, in this regard, to the affiliation granted to the
Police Modern School which, even in its application for
affiliation, accepted that it was operating from two sites.
7. In view of these submissions, Mr. Sherawat would seek to contend
that the decision, of the CBSE, to refuse affiliation to his client, for the
sole reason that the area of 1.5 acres, though possessed by the school,
was located at two separate locations, of 1 acre and 0.5 acres
respectively, was inherently faulty, in fact as well as in law.
8. Countering the said submission, Mr. Amit Bansal, learned counsel
for the CBSE, submits that there was no ambiguity regarding the
applicable legal provisions, which clearly required the school to possess
1.5 acres of land. He would seek to impress on the wording of the clause,
which stipulates that the building should be constructed on a part of the
land, with proper playgrounds on "the remaining land". This stipulation,
Mr. Bansal, would submit, itself made it clear that the land had to be in
the form of one contiguous plot and not two plots located at a distance of
900 meters from each other.
9. Insofar as the various communications to which Mr. Sherawat
placed reliance, were concerned, Mr. Bansal would submit that these
communications did not, in any way, detract from the scope and ambit, or
the effect, of the aforementioned clauses i.e. 3(i), (ii)(a) and (ii)(b) of the
Bye-Laws. Specifically referring to the circular dated 26th October, 2012,
of the Department of School Education and Literacy, Mr. Bansal would
submit that the said communication had been issued in the context of the
schedule of the RTE Act and the requirement of playgrounds specified
therein and had nothing to do with the stipulations contained in clauses
3(i), (ii)(a) and (ii)(b) of the Affiliation Bye-Laws, which constitutes a
self-contained code, insofar as affiliation of schools was concerned.
10. Mr. Bansal is at pains to point out that the validity of the said
clauses is not under challenge, and that, therefore, no exception could be
taken, by the petitioner, to the decision of the CBSE to refuse affiliation
to it, for non-compliance with the aforementioned bye-laws. Mr. Bansal
also places reliance on the judgment of the Supreme Court in St. John's
Teachers Training Institute (For Women), vs. State of Tamil Nadu
(1993) 3 SCC 595, as well as the judgment of a learned Single Judge of
this Court in W.P.(C) 20787-20788/2005 (Rajdhani Public Secondary
School vs. Central Board of Secondary Education), decided on 13th
December, 2005.
11. Mr. Sherawat would submit, in rejoinder, that the Circular dated
26th October, 2012, though issued in the context of the RTE Act, was
required to be read harmoniously with the CBSE Bye-laws. He contends,
in this context, that the CBSE Bye-laws were not statutory in nature, but
were merely administrative instructions, which, therefore, could not be
placed on a pedestal higher than the circular dated 26th October, 2012.
Analysis
12. Having heard learned counsel, I proceed to examine the issue in
controversy.
13. It is true that there is no express stipulation, in Bye-law 3(1)(ii)(a)
to the effect that the land admeasuring 1.5 acres, as required to be
possessed by the School, in order to entitle it to seek affiliation, had to be
in one single/contiguous plot. At the same time, a holistic reading of the
clause discloses that it specifically stipulates that the land should have a
building constructed on a part thereof, and proper playgrounds on the
remaining part. What is, therefore, required is that the school possesses
not less than 1.5 acres of land, on part of which a building should be
located, with the remaining part being devoted to a proper playground.
The Bye-law stipulates that "the school must have not less than 1.5 acres
of land and a building constructed on a part of land and proper
playground on the remaining land".
14. This Court is of the view that it is not possible to agree with the
submission of learned counsel for the petitioner that the mandate of the
above Bye-law would stand satisfied if the school had 1 acre land in one
plot and 0.5 acre land in another plot, located 900 meters away. It may
be noted, here, that it is an admitted position that the entire 1 acre in the
first plot was occupied by the school building and the entire 0.5 acres
located 900 meters away was occupied by the playground. Such an
arrangement could not be treated to be in fulfillment of Bye-law
3(i)(ii)(a) of the Affiliation Bye-Laws. The stipulation of the school
requiring to possess 1.5 acres, in my opinion, necessarily means that the
area of 1.5 acres should be located at one plot and not in two places
located nearly 1 kilometer apart. An interpretation, such as that
canvassed by Mr. Sherawat, if accepted, would in my opinion, frustrate
the very purpose of the stipulation contained in bye-law 3(i)(ii)(a) of the
Affiliation Bye-Laws. I may note that, in its decision in Richa Mishra
vs. State of Chhattisgarh, (2016) 4 SCC 179, the Supreme Court has
held that the golden rule of interpretation has, in recent times, shifted
from the rule of literal interpretation to that of purposive interpretation.
If one were to interpret the Bye-law purposively, no exception could, in
my opinion, be taken to the incidence, by the CBSE, of the entire area of
1.5 acres being required to be located in one contiguous piece of land.
15. Insofar as the reliance, by Mr. Sherawat, on the various
communications between the parties; is concerned, I am of the view that
the said communications are not of serious significance, as they deal with
issues which are not germane to the controversy at hand. The various
communications, to which Mr. Sherawat has drawn my attention, do not,
at any point, opine that the possessing of 1 acre and 0.5 acres of land with
a distance of 900 meters between the two was sufficient for the school to
be entitled to affiliation.
16. Insofar as the issue of whether the said requirement was justified
or not is concerned, Mr. Bansal has correctly pointed out that the validity
of the clause is not under challenge in these proceedings. It is not,
therefore, for this Court to second guess the intent of the framers of the
bye-laws, or conjecture as to whether the said stipulation was justified or
not justified.
17. I may note, in this regard, that the Supreme Court has held, in St.
John Teachers' Training Institute (supra), that such guidelines
regarding the possession of land, as a condition for affiliation of
educational institutions, are justiciable in writ proceedings.
18. Insofar as the communication dated 26th October, 2012 (supra) of
the Department of School Education and Literacy is concerned, Mr.
Bansal correctly points out that the said communication was issued in an
entirely different context, under the RTE Act, and cannot deal with the
mandate of the Affiliation Bye-laws or the conditions contained therein,
relating to the requirement of possession of land.
19. The submission regarding other Schools, which were located at
more than one site, having been granted affiliation, can also not carry the
case of the petitioner any further. Apart from the fact that Mr. Bansal has
pointed out that the Police Modern School, which was granted affiliation
actually possessed land in excess of the necessary requirement, this
submission of Mr. Sherawat ignores the fact that the CBSE has rejected
the prayer of the petitioner of affiliation not on the ground that the school
was located at two sites, or that the playground was located at a site
different from the school. In fact, most of the submissions advanced at
the bar seemed to proceed on the premise that the ground for rejection of
the petitioner for affiliation was that the petitioner/school was located at
two sites with the playground and the school building located at a
distance of 900 meters from each other. It is quite clear that this is not
the basis on which the request for affiliation was rejected by the CBSE.
The CBSE has proceeded on the ground that the mandate of the
Affiliation Bye-Laws, requiring a minimum of 1.5 acres of land to be
possessed by the school, with a building located on a part thereof and
playgrounds located on the remainder of the land was not fulfilled, by the
petitioner school, as it did not possess 1.5 acres of land at any single
location.
20. I am not convinced that interference, with the said decision of the
CBSE, is merited, under Article 226 of the Constitution of India.
21. The writ petition is, accordingly, dismissed with no order as to
costs.
C.HARI SHANKAR, J.
DECEMBER 06, 2018
rd
