Calcutta High Court (Appellete Side)
Satikanta Guha Foundation vs Union Of India & Ors on 26 August, 2019
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
1
26.08.
g.b. 2019 W. P. 15225 (W) of 2019
22 Ct. No.17
Satikanta Guha Foundation
Vs.
Union of India & Ors.
Mr. Saktinath Mukherjee, Sr. Advocate
Mr. Pratik Dhar, Sr. Advocate
Mr. Ranabir Roy Chowdhury
Mr. Supratik Syamal
Mr. Mainak Gupta
Mr. Prasun Mukherjee
.....For the Petitioner
Mr. Debashis Saha
Ms. Dipika Basu
.....For the Union of India
Mr. Mrinal Kanti Mukherjee
....For the Respondent Nos. 3 and 4
In spite of being served two times, Central Board of Secondary Education (CBSE) is not represented.
Both the affidavits of service filed by the petitioner are kept on record.
The petitioner is a Society registered under the West Bengal Societies Registration Act, 1961 and applied to the Indian Institute of Science Education and Research (IISER) for establishing and managing a school at Mohanpur, Nadia. Upon the proposal of the petitioner being accepted by the respondent no.3, the petitioner set up a school on the IISER Campus on agreed terms and conditions. The petitioner has a track record of 2 successfully establishing and running several other schools in Kolkata. The immediate grievance of the petitioner is a communication dated 8th June, 2019 from the Central Board of Secondary Education (CBSE) by which the petitioner's application for affiliation to the CBSE was rejected. The application for affiliation to the CBSE was required since the petitioner's school set up within the IISER Campus in 2015 is for Classes I to VIII and would hence require such affiliation for secondary level of classes, namely Classes IX and X. Learned senior counsel for the petitioner assails the decision contained in the letter dated 8th June, 2019 on two grounds. Before elaborating on the grounds taken for such challenge, the impugned decision is set out below:
"With reference to your representation in response to the rejection letter sent by the Board on the subject and reference mentioned above it is to inform that the representation/compliances submitted by the school have been considered by the Board:-
It has been observed that the school does not fulfil the requirements for affiliation.
Any Other Essential Requirement.
The application of the school for affiliation upto secondary level was rejected vide this office letter no.cbse/aff/vip reference /2019/1458300, dated 22.02.2019 as the noc obtained by the school is reported to be received without approval of competent authority as informed by sh. v.l.v.s.s. subba rao, sr. economic advisor, goi, mhrd, deptt. of higher education. as per office record, copy of above letter has already been provided to school under rti vide letter no. cbse/aff/rti- cbsed/r/2019/50933/190108, dated 17/05/2019.
As per the videography submitted the school has not built pucca Boundary wall around the school campus.
The representation submitted by the school under reference has been REJECTED after due consideration."3
Learned counsel submits that the first objection taken by the CBSE relates to an alleged approval of the competent authority as has been brought to the notice of CBSE by one Mr. Subba Rao, who is a functionary of the Central Government. Counsel submits that the alleged approval relates to a No-Objection Certificate/certificate of registration which has already been given by the Directorate of School Education to the Secretary, CBSE in favour of Garden High School - IISER Kolkata Campus at Mohanpur, Nadia. Counsel submits that Garden High School is one of the schools which has been set up and managed by the petitioner. It is further submitted that the No-Objection relates to Section 6 (2) of the National Institutes of Technology (Amendment) Act, 2012, in relation to a bar on an institute to dispose of any immovable property without the prior approval of the Central Government. Counsel submits that notwithstanding the approval given by the State Government in December, 2017 in terms of Bye-law 1.3.25 of the CBSE, there is no scope for such objection being raised since the petitioner cannot and will not dispose of any portion or otherwise of the IISER land on 4 which the petitioner's school has been set up.
The primary challenge taken is to the second objection raised by the CBSE in the impugned letter. According to counsel, the second objection pertains to the school not having a pucca boundary wall around the school campus, which is (a) not factually correct and (b) an unnecessary insistence on a non-essential requirement. Current photographs of the school are placed to show that contrary to the objection taken, there is actually a sturdy fence built around the periphery of the school. The photographs also show that there is a permanent gate with "IISER Kolkata Campus" displayed on it marking the entrance to the land in question. The entire IISER land also appears to have a permanent wall around it. Counsel places the Bye-law 3.1.5 of the Affiliation Bye-Laws, 2018 of the Central Board of Secondary Education in respect of requirements with respect to land, which is as follows:
"The land mentioned in 3.1.5 above should be surrounded on all sides by a pucca boundary wall of sufficient and adequate height."
Counsel relies on Poddar Steel Corporation Vs. Ganesh Engineering Works & Ors. reported in (1991) 3 SCC 273 where it was held that deviation of subsidiary 5 conditions in a tender is permissible and a strict literal compliance of such conditions is not called for. Counsel submits that there has been substantial compliance of Bye-Law 3.1.5 raised in the form of permanent fencing around the school.
Learned counsel for the respondent no.3, namely the IISER submits that the dispute with regard to the affiliation sought for by the petitioner is entirely a matter between the petitioner and the CBSE and that IISER may not be in a position to construe the scope and effect of the Rules shown on behalf of the petitioner. Counsel however refers to a Sponsorship Certificate dated 18th July, 2018 stating that the management and administration of the school has been handed over to the petitioner.
After conclusion of submissions, counsel for the Union of India seeks time to take instructions in the matter although it appears from the affidavit of service that the Union of India was served on 7th August, 2019.
Having heard learned counsel for the petitioner and IISER the dispute at present appears to center only on the second objection raised by the CBSE, namely the alleged non-compliance of Bye-Law 3.1.5 by the petitioner. The first objection with regard to the prior approval is no 6 longer relevant in light of the submission made by learned counsel for the petitioner that disposal or alienation of the land in question does not arise in the present circumstances.
Upon carefully perusing the photographs annexed to the writ petition, it is clear that the area of the school has been clearly demarcated by way of an iron fencing all around the school. There is a gate in front of the school campus connected to the iron fencing which forms a circumference around the school. Bye-Law 3.1.5 uses the language "should be surrounded on all sides by a pucca boundary wall of sufficient and adequate height" which is in the nature of an advisory measure for ensuring the safety and security of the students who would be attending the school. In this case, not only does the school have an iron fencing encircling it, the land belonging to IISER also has a boundary wall demarcating the area belonging to IISER with a permanently-grouted display board indicating who owns the land. Further, reading of the Affiliation of the CBSE Bye-Laws shows that demarcating the school area with a permanent/solid boundary wall can be given a purposive construction and include any boundary of a permanent nature around the 7 periphery of the school. This court could have taken a different view had the school area not been demarcated at all by any form of fencing or like structure. This however is not the case in the present petition. This court also finds substance in the view taken by the Supreme Court in "Poddar Steel Corporation" (supra) allowing deviations of ancillary or subsidiary conditions of eligibility. The second objection taken by the CBSE in the letter of rejection falls under this category. The iron fencing may be taken as substantial compliance of Bye-Law 3.1.5 of the CBSE affiliation Bye-Laws, 2018. Rejecting the application of the petitioner for affiliation on this ground can therefore be seen as enforcing strict compliance of an ancillary condition.
In view of the above, the impugned communication dated 8th June, 2019 is quashed. The respondent 2, namely Central Board of Secondary Education is accordingly directed to dispose of the petitioner's application for affiliation to the CBSE, without the two objections raised in the impugned communication, within a period of three weeks from the date of communication of this order but not later than 23rd September, 2019.
W. P. 15225 (W) of 2019 is disposed of in terms of 8 the above.
(Moushumi Bhattacharya, J.)