The Supreme Court today upheld the Kerala High Court verdict striking down two conditions the state government had set for schools seeking its NoC for CBSE affiliation -- three acres land and 300 students on its roll -- saying the state was seeking to "arbitrarily" impose its authority on educational institutions.
The top court termed the conditions imposed on schools by the state government seeking its No-Objection Certificate (NOC) for CBSE affiliation as "arbitrary" and "without any rationale basis".
A bench of justices M B Lokur and Deepak Gupta dismissed the appeal of the Kerala government challenging the high court's decision.
"The fundamental right to free and compulsory education to all children between the age of 6 and 14 years postulates good quality education and not just education for the sake of providing education. Regulation of such education is permissible by law and not by executive fiat," the bench said.
It said that unfortunately, in this batch of petitions, the Kerala government has sought to impose its authority over schools that "provide apparently quality education, which is perceived to be a threat to the public education system in the State".
Dealing with the condition of requirement of land, the court said that according to the Kerala government, a school seeking its NoC for affiliation to the CBSE must have three acres of land out of which two acres should be contiguous and in the actual location of the school.
It said that condition of the state government is in contrast to the CBSE affiliation bye-laws and under these the minimum land requirement varies from location to location.
The CBSE bye-laws in general required for an educational institution to apply for affiliation is that the school must have two acres of land but there are certain exceptions.
The bye-laws provides that 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/organization 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.
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.
"In other words, 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 bench said.
The court said that it appears 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".
"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," the bench said.
Dealing with the second challenge with reference to the minimum strength of students being 300 in a school that seeks affiliation with the CBSE in terms of condition in the guidelines, the bench said it is not rational or sustainable.
It said that there is no such requirement under the CBSE affiliation Bye-laws and the condition is merely an unwarranted imposition by Kerala on school managements.
The bench said that under the Right of Children to Free and Compulsory Education Act, 2009 (the RTE Act) it is required that a student-teacher ratio of 30:1 should be maintained.
It said 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," it said.
The top court said that Kerala has expected an impossibility from such schools that strictly conform to the provisions of the RTE Act and 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".
The court said that another condition of requirement of compulsory unique identification (UID) for enrolment of students, the constitution bench is seized of the matter and therefore the issues remains open, till the decision by a larger bench.
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