STATE OF KERALA Vs. MANAGER NIRMAL PUPLIC SCHOOL

JUDGEMENT

(1.) All these appeals are filed by the State against the common judgment passed by the learned Single Judge quashing of a Government order No. GO(P).No.107/07G.Edn. dated 13.6.2007 regarding issuance of no objection certificate for starting CBSE and ICSE school in the State of Kerala. Petitioners in those cases applied for issuance of NOC for affiliation to CBSE and ICSE respectively in the year 2005. It is their case that their applications were processed and reports of the concerned District Educational Officer etc. were received. But, they were informed that Government will pass final orders in the applications only after policy decision is formed regarding the matter. It was also not disputed that as per the Government order, and Kerala Education Rules, only up to Vth standard, a student can study in unrecognised schools. But the CBSE will consider the applications only if the school is having classes up to minimum VIth standard. According to the petitioners, their schools started before the year 2001. They have all facilities. They should get NOC to continue the students studying in their schools. According to the learned Advocate General, on the basis of the recommendation of the high level committee, the State passed the impugned order incorporating State policy by not encouraging new schools in the private sector.

(2.) It is the contention of the writ petitioners that the impugned Government order is also not in accordance with the high level committee's decision as the high level committee's decision is that in view of the demand of starting schools for better quality education, more schools under CBSE should be started, but the number of NOC should be restricted to 25 in an year. But committee never recommended that the schools can be started only in the backward areas or in five districts only or no NOC should be given at all. In this case, in the Government order it is stated that the NOC can be given only in Malappuram, Kozhikode, Kasaragod and Wayanad areas where there is concentration of backward Muslim community members. Later, it is submitted that, Palakkad was also added as another district where CBSE schools can be granted in view of Muslim population. It is submitted that the above clause is discriminatory and violative of Article 14 of the Constitution and is highly arbitrary. It is again submitted that it violates Article 19(1)(g) of the Constitution and reasonable restriction to the above right can be made only by legislative process and not by Government order. It is further stated that some of the applicants belongs to minority community and their right under Article 30(1) of the Constitution is completely taken away. It is further submitted that the order is made in such a way that nobody can start a CBSE school even in the backward areas as it says that school shall have classes from I to X. In the KER it is stated that no school can be started without recognition whether in the aided or in unaided schools after Class V. Therefore, this is an unworkable impractical order to achieve ultimate hidden agenda that no school can be started in the State of Kerala affiliating to CBSE/ICSE as better education should be denied to students in Kerala.

(3.) Learned Advocate General submitted that this is a policy decision of the Government and the court shall not interfere in the policy decision. Merely because another view is possible the court shall not interfere in the matter. It is further submitted that after the 1980 Government order, affiliation bye-laws was amended by CBSE in 1988 and in view of Rule 3 clause (3) of the above bye- laws, since these schools were not recognised, they are not entitled to apply at all. It is further submitted that it is the obligation of the State to provide education under Article 21-A of the Constitution and the State has also produced several documents to prove that there are aided schools in other areas, other than the five districts mentioned in the notification. The school and students ratio, as per the statement, justify the decision. It is further submitted that if new schools are started, the existing schools will have to be closed down and therefore the State will not be able to give free education to the pupil. It is again submitted that five districts were identified to start CBSE schools in view of concentration of Muslim population who are educationally and economically backward. It was also argued that the poor people cannot afford to study in unaided and CBSE schools.