The Manager vs The State Of Kerala
2021 Latest Caselaw 2542 Ker

                                                                              CR

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                 THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

           FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942

                           WP(C).No.22812 OF 2020(B)


PETITIONERS:

       1         THE MANAGER
                 LIFE VALLEY INTERNATIONAL SCHOOL, RUBBER BOARD POST-686 009
                 KOTTAYAM DISTRICT

       2         THE MANAGER
                 SREERAMAKRISHNA VIDYANIKETHAN PUBLIC SCHOOL,
                 NANDIKKARA P.O., - 680 301, THRISSUR DISTRICT.

       3         THE COUNCIL OF CBSE SCHOOLS KERALA
                 (REGISTER NO.EKM/TC/376/2019), REP. BY ITS PATRON, DR.INDIRA
                 RAJAN, VIKRAM SARABHAI SPACE PARK, THENGODE POST-682030,
                 KAKKANAD, ERNAKULAM DISTRICT.

                 BY ADVS.
                 SRI.M.R.VENUGOPAL
                 SMT.DHANYA P.ASHOKAN

RESPONDENTS:

       1         THE STATE OF KERALA
                 REP.BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION
                 DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001

       2         THE DIRECTOR OF GENERAL EDUCATION
                 JAGATHY, THIRUVANANTHAPURAM-695 014

       3         THE DISTRICT EDUCATIONAL OFFICER
                 KOTTAYAM - 686 001

       4         THE ASSISTANT EDUCATIONAL OFFICER
                 IRINJALAKKUDA - 680 121

       5         SECRETARY (AFFILIATION)
                 CENTRAL BOARD OF SECONDARY EDUCATION, CBSE BHAVAN, SHIKSHA
                 KENDRA, 2, COMMUNITY STREET, PREET VIHAR, NEW DELHI-110092

                 BY SRI.NIRMAL S., SC

OTHER PRESENT:

                 SRI. P.M.MANOJ - SR.GP

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.22812 OF 2020(B)

                                    2




                                                                       CR
                            JUDGMENT

An Association called "The Council of Central Board of

Secondary Education Schools", constituted by various self

financing schools affiliated to the Central Board of Secondary

Education (CBSE for short), along with the Managers of two

such schools, have approached this Court seeking that the

competent Deputy Directors of Education, who are operating

under the provisions of the Kerala Education Act and Rules (Act

and KER respectively for short), be directed to issue to them

"Orders of Prior Recognition" in Form No.II appended to the

Kerala Right of Children to Free and Compulsory Education

Rules, 2011 (hereinafter referred to as 'Rules' for short).

2. The petitioners, through their learned counsel,

Smt.Dhanya P. Asokan, submit that even though the schools are

bound to obtain an "Order of Prior Recognition" from the

Government of Kerala for the purpose of renewal of their

affiliation/recognition as per its affiliation by-laws in Form No.II

of the Rules, the concerned Deputy Directors of Education issue

such forms in the manner that they please, manifest from WP(C).No.22812 OF 2020(B)

Ext.P11; while in certain cases, they reject requests for such

orders saying that since the Schools are already affiliated to the

CBSE, no such is required, as is evident from Ext.P5, issued to

the 1st petitioner - School.

3. The learned counsel for the petitioners, therefore,

reiteratingly pray that the competent Deputy Directors of

Education in the State of Kerala be directed - through the 2 nd

respondent - Director of Education - to issue the "Order of Prior

Recognition" in Form No.II of the Rules, as and when the

Schools approach them for such purpose, by making the

application in the prescribed format.

4. The learned Standing Counsel for the CBSE,

Sri.S.Nirmal, submitted that a statement has been filed by his

client, wherein, the following have been stated:

                       "3.    Recognition        certificate
                       issued    by    State     Education
                       Department as per the Right to
                       Education Act, 2009 is pre-
                       requisite for running a school.
                       Since     the    submission        of
                       Recognition       certificate       is
                       mandatory      requirement,       the

application for grant of affiliation cannot be proceesed without the same.

Bye-law 2.3.4 of the Affiliation Bye-laws - 2018 states that the WP(C).No.22812 OF 2020(B)

school seeking affiliation with the board shall submit a formal prior recognition certificate from the concerned state Government as per the rules and provisions contained in the RTE Act, 2009.

Bye-law 2.3.5 of the Affiliation Bye-laws, 2018 states that the Schools mentioned under clauses 2.1.5,2.1.6, 2.1.7 and 2.1.8 seeking affiliation with the Board shall submit format prior "No objection Certificate" to the effect that State Government has no objection to the affiliation of the School with CBSE. No objection Certificate once issued to any school will be considered at par even if it prescribes a specific period and/or level unless it is withdrawn.

                       4.       The     petitioner     has
                       produced Ext.P8 which is the
                       format     appended      to  CBSE

Affiliation Bye-laws, 2018 and as seen from columns 11 & 12 information is sought for with respect to recognition from class 1 to 8 and also the number of recognition certificate. This information is conspicuously missing in Ext.P8. Without producing Appendix -III certificate, the application for extension of Affiliation cannot be proceed.

5. The Clause-16 of form No.II Annexed to The Kerala Right of Children to Free and Compulsory Education Rules, 2011 states:-

"This certificate of recognition granted under the provision of Right of Children to Free and WP(C).No.22812 OF 2020(B)

Compulsory Education Act, 2009 relates to classes 1 to 8. The recognition granted under the provision of Kerala Education Act and Rules issued thereunder or other orders in force will continue in respect of standards above class 8"

Therefore the Deputy Director has to issue the certificate in Form -II in order to enable the DEO of concerned jurisdiction to issue Appendix -III form as provided in Affiliation Bye-laws 2018. In fact the Central RTE Rules, the Right of Children to Free and Compulsory Education Rules, 2010 also has Form -II which is exactly similar to the Form-II under the Kerala Rules.

The only difference is that under the Central Rules the DEO has to give the certificate instead of the Deputy Director, under the Kerala Rules. Since the Kerala Rules Form -II has to be certified by the Deputy Director, the DEO can issue Appendix -III format only after the Deputy Director issues Form-II.

Therefore it is highly essential and necessary that the Deputy Director of the concerned jurisdiction issues Form -II in order to enable the DEO to do the ministerial act to certify Appendix-III form required for extension of affiliation under the CBSE Bye-laws, 2018."

5. Sri.Nirmal, therefore, submitted that the CBSE travels

along with the petitioners as far as the cause in this writ petition

is concerned and that they support their request that the WP(C).No.22812 OF 2020(B)

concerned Deputy Directors of Education be directed to issue the

"Order of Prior Recognition" as required under the Rules in

Form No.II appended thereto.

6. The learned Senior Government Pleader,

Sri.P.M.Manoj, submitted that since the Rules and the Right to

Education Act make it mandatory that a School, which has

already obtained affiliation from other Educational Boards like

CBSE and ICSE, must make a self declaration in Form No.I of

the Rules and that since this should be succeeded by a proper

inspection by the competent Authorities, leading to an "Order of

Prior Recognition" to be issued by the Deputy Director of

Education of the area where the respective school is situated,

there cannot be any legal impediment in such orders being

issued in Form No.II, provided the Schools comply with all the

necessary and imperative conditions under the Act and Rules.

The learned Senior Government Pleader, however, submitted

that he does not have specific instructions as to why Ext.P11

"Prior Recognition Letter" has been issued by the Additional

Director of General Education in the manner shown therein,

conceding that this ought to have been issued only in Form No.II WP(C).No.22812 OF 2020(B)

of the Rules. He concluded his submissions by saying that the

competent Deputy Directors of Education in Kerala will,

therefore, issue the "Orders of Prior Recognition" to any School

who approaches the said Authority in Form No.I and that

necessary directions for this purpose will be issued by the 2 nd

respondent - Director General of Education by way of a circular,

if this Court is so inclined.

7. When I hear the learned Senior Government Pleader

on the afore lines, it is without doubt that there is, in fact, no

controversy in this case at all. The petitioners want the Deputy

Directors of Education to issue the "Orders of Prior Recognition"

in Form No.II of the Rules, while the learned Senior Government

Pleader also affirms that this is to be done.

8. Perspicuously, therefore, all that is required from this

Court is to record the afore and to issue appropriate directions.

Resultantly, this writ petition is ordered:

a) Declaring that, as per the provisions of the Kerala Right

of Children to Free and Compulsory Rules, 2011, and the Right

to Education Act, any application made by a School seeking an

"Order of Prior Recognition" under the terms of Rule 14 of the WP(C).No.22812 OF 2020(B)

said Rules shall be issued by the concerned Deputy Directors of

Education only in Form No.II of the Rules and in no other

manner, after following due procedure and after making such

necessary inspections as are warranted under it.

b) To ensure that the afore directions are properly complied

with and since none of the Deputy Directors of Education are on

the party array, I direct the 2nd respondent - Director of General

Education to issue a circular to all such officers informing them

the contents of this judgment and instructing them to act

implicitly by the directions herein.

c) This shall be done by the 2 nd respondent - Director of

Education, as expeditiously as is possible but not later than two

weeks from the date on which the copy of this judgment is

received.

Sd/-

                                            DEVAN RAMACHANDRAN

rp                                                JUDGE
 WP(C).No.22812 OF 2020(B)






                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED

30/6/2005 ISSUED TO THE FIRST PETITIONER

EXHIBIT P2 TRUE COPY OF THE NOC DATED 19/8/2017 ISSUED BY THE FIRST RESPONDENT FOR CHANGING THE NAME OF THE FIRST PETITIONER SCHOOL TO LIFE VALLEY INTERNATIONAL SCHOOL

EXHIBIT P3 TRUE COPY OF FORM NO.I SELF DECLARATION DATED 8/8/2018 SUBMITTED BY THE FIRST PETITIONER TO THE DISTRICT EDUCATION OFFICER, KOTTAYAM.

EXHIBIT P4 TRUE COPY OF FORMAT OF FORM NO.II PROVIDED IN THE RTE RULES

EXHIBIT P5 TRUE COPY OF THE REPLY DATED 3/6/2019 ISSUED BY THE 3RD RESPONDENT TO THE FIRST PETITIONER

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 31/7/2012 OF THE 5TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF COMMUNICATION DATED 16/8/2018 RECEIVED BY THE SECOND PETITIONER FROM THE AEO, IRINJALAKKUDA

EXHIBIT P8 TRUE COPY OF THE CERTIFICATE DATED 29/1/2019 ISSUED BY THE DISTRICT EDUCATION OFFICER IN APPENDIX III TO THE SECOND PETITIONER.

EXHIBIT P9 TRUE COPY OF THE SELF DECLARATION CUM APPLICATION DATED 8/8/2018 SUBMITTED BY THE VILLAGE INTERNATIONAL SCHOOL

EXHIBIT P10 TRUE COPY OF THE REMINDER DATED 27/6/2019 SUBMITTED TO THE DEO THODUPUZHA

EXHIBIT P11 TRUE COPY OF THE COVERING LETTER AND THE FORMAL PRIOR RECOGNITION LETTER DATED 16/1/2020 ISSUED TO THE VILLAGE INTERNATIONAL SCHOOL

EXHIBIT P12 TRUE COPY OF THE CIRCULAR INSTRUCTION NO.NS(2) 10819/18/CBSE/DGE DATED 17.2.2020