Allahabad High Court
Committee Of Management Seth M.R. ... vs State Of U.P. Thru. Prin. Secy. Civil ... on 27 September, 2022
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Court No. - 18 Case :- WRIT - C No. - 522 of 2022 Petitioner :- Committee Of Management Seth M.R. Jaipuria School Lko. Thru. Its Manager Respondent :- State Of U.P. Thru. Prin. Secy. Civil Secrtt. Education Lko. And Others Counsel for Petitioner :- Salil Srivastava, Som Kartik Shukla Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia,J.
1. Heard Sri Prashant Chandra, Senior Advocate assisted by Sri Ansuman Singh the counsel for the petitioner and the learned Standing Counsel.
2. The present petition has been filed challenging the order dated 08.10.2021 passed by the committee constituted under the Government Order whereby the request for grant of No Objection Certificate to the petitioner has been rejected.
3. The facts, in brief, are that the petitioner claims to be running a school which is recognized up to Class 8th by the State of U.P. and the petitioner, on account of enhancement of the students, desirous of obtaining affiliation with the Central Board of Secondary Education (CBSE for short), applied before the CBSE for grant of affiliation.
4. It is argued that in terms of the requirements as enumerated by the CBSE, the petitioner possesses all requisite criterias for grant of affiliation. As the Rules framed by the CBSE for grant of affiliation require the production of a NOC from the State of U.P., the petitioner applied for grant of NOC, which has been rejected and which is under challenge.
5. The counsel for the petitioner argues that in terms of the requirements of both the CBSE and ICSE, wherein a requirement for obtaining a NOC is specified, the State Government has issued a Government Order wherein, the procedure for grant of NOC, desired by various schools, is specified. The said GO provides for constitution of a Committee comprising of four persons which shall look into the issue with regard to the application for grant of NOC and shall pass orders thereupon. No further guidelines have been framed as to how and in what manner the said committee shall proceed to grant the NOC, thus, it is left to the discretion of the committee to either grant the NOC or to refuse the same.
6. It is on record that in pursuance to the application filed by the petitioner for grant of NOC, one of the Members of the Committee namely the DIOS of the district carried out some investigation and based upon the same submitted its report on 16.11.2019. The Joint Director of Education, Lucknow vide his order dated 16.11.2019 itself, quoting the report as submitted by the DIOS proceeded to reject the application of the petitioner. The reasoning as contained in the order of rejection dated 16.11.2019 are quoted herein below:
1. "शासन द्वारा भूमि का अधिग्रहण विद्यालय हेतु किया गया था। इस स्थिति में भूमि का प्रयोग माध्यमिक शिक्षा परिषद, उत्तर प्रदेश से मान्यता प्राप्त विद्यालय के निमित्त ही औचित्यपूर्ण है। यदि विद्यालय की भूमि को प्रबन्धतन्त्र द्वारा किसी अन्य शैक्षिक प्रयोग हेतु लिया जाना है तो उसकी औपचारिक अनुमति सक्षम अधिकारी स्तर से आस्तियों का अपव्यय निवारण अधिनियम-1974 की संगत धाराओं के अन्तर्गत प्राप्त की जानी अनिवार्य है, जो कि विद्यालय प्रबन्धतन्त्र द्वारा नहीं की गयी थी।
2. श्री योगेश्वर ऋषिकुल इण्टर कोज, मेहन्दीगंज लखनऊ की प्रबन्ध समिति के सचिव श्री सुव्रतों मजूमदार द्वारा उ०प्र० शैक्षिक संस्थायें (आस्तियों के अपव्यय का निवारण) अधिनियम 1974 का उल्लघंन कर हुए विद्यालय की कुल भूमि (22 बीघा, '12 बिस्वा, 10 विस्वांसी) की की आधी भूमि लगभग 29914.77 वर्ग मीटर मेसर्स डी लोटर्स बिल्डर्स एवं कालोनाइजर्स को बेच दी गयी।
3. उपाध्यक्ष लखनऊ विकास प्राधिकरण लखनऊ के पत्रांक - 747 / 117/14 दिनांक 28.08.201 द्वारा दिये गये निर्णय में स्पष्ट किया गया है कि शिक्षा के उपयोगार्थ श्री योगेश्वर ऋषिकुल इण्टर कोज मेहन्दीगंज लखनऊ द्वारा लगभग 22 बीघा, 12 बिस्वा, 10 विस्वांसी भूमि प्राधिकरण योजना के अन्तर्गत अर्जन से मुक्त की गयी थी, जिसमें से आधी से अधिक भूमि लगभग 31,918.80 वर्ग मी० भूमि सोसाइटी के सचिव श्री सुव्रतो मजूमदार द्वारा धोखाधड़ी एवं जालसाजी करके करोड़ो रूपये में निजी लाभ हेतु आवासीय एवं व्यवसायिक उपयोग के लिये बेच दी गयी, जो कि अवैधानिक एवं अवैध है।
4. विद्यालय प्रधानाचार्य द्वारा काइम संख्या0525 दिनांक 04.10.2018 द्वारा थाना बाजार खाला, लखनऊ में श्री सुब्रतो मजूमदार, श्री राजीव बिसारिया एवं केता दाऊ दयाल अग्रवाल एवं मेसर्स डी लोटर्स बिल्डर्स एवं कालोनाइजर्स के विरुद्ध भारतीय दण्ड संहिता की धारा 420, 467, 468, 471 के अर्न्तगत प्रथम सूचना रिपोर्ट दर्ज करायी गयी, जिसमें श्री सुब्रतो मजूमदार लगभग 40-45 दिन जेल पर रहे। वर्तमान समय में श्री मजूमदार जमानत पर रिहा हैं तथा प्रकरण माननीय न्यायालय में विचाराधीन है।"
7. Aggrieved against the said order dated 16.11.2019, the petitioner preferred a Writ Petition before this Court being Misc. Single No.3010 of 2021 before this Court. It was urged that the order has been passed by one person based upon the enquiry report of one of the constituent of the committee, as such, the order was bad in law.
8. The said argument found favour with this Court which vide its order dated 15.07.2021 proceeded to set aside the order dated 16.11.2019 giving liberty to the respondents to take a fresh decision in the light of the Government Order dated 14.07.2009. In pursuance to the said liberty granted by this Court, a fresh order has been passed, which is contained in Annexure no.1. The said order is similar to the earlier order dated 16.11.2009 and is under challenge in the present writ petition.
9. Sri PrashantChandra,senior advocate, appearing on behalf of the petitioner was called upon to address this court with regard to the points noticed in the report of the DIOS and as reproduced in the impugned order as well as the order dated 16.11.2019. In respect of the first objection, wherein it is recorded that the land in question was acquired by the State for setting up a school and thus it would be proper if the said land is used for setting up a school, which has affiliation with the Intermediate Education Board and not for any other school to use the same for academic activities. It was essential to take permission under The U.P. Educational Institutions (Prevention of Dissipation of Assets) Act, 1974 (for short Act of 1974). In response to the said observations, he argues that the land was acquired for setting up an academic institution and the petitioner is exactly serving the said cause, thus, the same has no basis.
10. The second objection recorded by the DIOS wherein it is recorded that the land in question after acquisition was allotted to one Society in the name of Baldev Vidya Peeth and the Manager of the said institution had sold a part of the property to one D-Lotus Builders and Colonizers in contravention of the 'Act of 1974'.
11. The third objection records that in terms of the letter issued by the Lucknow Development Authority to the effect that out of the total land acquired, a substantial part of the said land was left out of acquisition and was allotted to the society in question, which has been sold by the secretary of the society by playing fraud for personal benefit for housing and Commercial purposes, which was arbitrary and illegal.
12. In response to the objection as referred to in Clause 2 and 3 and referred in foregoing paragraphs, Sri Chandra argues that in respect of the property which are owned by the societies, after amendment in the Societies Registration Act, Section 5-A(as it then was) was introduced, wherein the District Judge is empowered to grant sanction of any property being transferred by the Society registered under the Act and the approval of the Court is essential for making any such transfer. In the light of the said amendment as contained in Section 5-A, he argues that prior to transfer in favour of the petitioner, an application for permission from the District Judge was sought for in Misc. Case no.142 of 1993 filed in the Court of District Judge, Lucknow wherein all the questions, including scope of Section 5-A of the Societies Registration Act was considered and the permission for transfer was granted by the District Judge vide an order dated 03.08.1995. He argues that the said order was challenged by the Lucknow Development Authority by filing a Writ Petition No.2719 of 1995 before this court, which too was dismissed by this court on 16.05.2005 and thus, the said order of the District Judge has attained finality. he argues that once there is a specific provision under the Act, the general provision as proposed to be relied upon by the respondents being the 'Act of 1974' looses significance.In any event even under the 1974 Act the final arbiter of disputes is the District Judge as specified under Section 5 of the 1974 Act. Thus, the objections mentioned in Clause 2 and 3 become irrelevant.
13. With regard to the objection mentioned at serial no.4 in the DIOS report and as extracted above, that a first information report has been registered against the secretary of the society, who was imprisoned and was later on enlarged on bail, in response to the said, Sri Chandra argues that the correct fact is that an FIR was registered however it will have no affect on the decree passed by the District Judge.
14. He also argues that in terms of the requirement as framed by the CBSE and as extracted herein below being paragraph 2:3:5, the requirement of a no objection certificate from the State Government cannot give unbridled powers to the State Government, the said requirement has to be interpreted keeping in view the requirements of the site on which the School is proposed to be established, the likelihood of the school causing any nuisance and that the school being constructed in an area, which is prohibited under any law, the requirement of NOC cannot give unbridled powers to the State Government to dwell on the validity and legality and correctness of all steps of the society in the school.
15. He further argues that the Government Order issued by the State Government is silent on that subject, which is resulting in state authorities exercising powers and entering into spheres which are beyond their jurisdiction only on the basis of the Government Order.
16. He argues that the NOC required under the regulations should have some relevant nexus to the objects sought to be achieved in granting of affiliation and cannot be understood to give unbridled powers to the State Government to harass the applicants. He further argues that the Right to Education now being a fundamental right is to be promoted by the State Government at all levels and the manner in which the decision has been taken, militates against the constitutional duties imposed upon the State Government for providing the education to the citizens. He places reliance on the following judgments:
i. Chintpurni Medical College and Hospital and another vs. State of Punjab and others; (2018) 15 SCC 1.
ii. Mangilal vs. State of M.P. (2004) 2 SCC 447;
iii. Gangotri Enterprises Limited vs. Union of India and others (2016) 11 SCC 720.
iv. Rattan Lal Sharma vs. Managing Committee Dr. Hari Ram (Co-Education) Higher Secondary School and others (1993) 4 SCC 10 v. A. K. Kraipak and others vs. Union of India and others; 1969 (2) SCC 262 vi. State of U.P. vs. Vijay Kumar Tripathi and another; 1995 Supp (1) SCC 552.
17. The Standing Counsel on the other hand argues that the State was well within its jurisdiction to deny the permission as sought by the petitioner. He argues that the permission granted by the District Judge was not an unconditional permission and the DIOS has rightly gone into the those questions while giving the report against the grant of NOC.
18. The State Government on Courts directions had produced the instructions, however there was no record produced by the State Government to the effect that the land granted in favour of the petitioner has ever been cancelled or that they do not continue to be the owners of the land as claimed by them.
19. In view of the submissions made at the bar, this court is to consider as to what are the scope of the powers conferred upon the State Government in pursuance to clause 2:3:5 of the CBSE Manual which prescribes for obtaining a no objection certificate from the State Government to the effect that the State Government has no objection to the affiliation of the school with the CBSE.
20. It is necessary to notice the requirements specified by CBSE for grant of affiliations to the schools desirous of seeking affiliation.The necessary requirements (for deciding the lis )are specified in paragraphs 2.3.4 and 2.3.5 which are quoted herein below.
"2.3.4 : Recognition from the respective State Government.
The Schools seeking affiliation with the Board shall submit formal prior Recognition Certificate from concerned State Education Department as per extant rules and provisions contained in RTE Act 2009.
2.3.5 : No objection from the respective State Government.
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 formal 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."
21. While paragraph 2.3.4 prescribes recognition under Right of Children to Free and Compulsory Education ,Act 2009 and Rules framed there under,paragraph 2.3.5 deals with affiliation.
22. The difference between 'recognition' and 'affiliation' was explained by Supreme Court in THE PRINCIPAL AND OTHERS vs THE PRESIDING OFFICER AND OTHERS (1978) 1 SCC 498 wherein the Court recorded as under :
"There is a significant difference between 'affiliation' and 'recognition. Whereas 'affiliation', it may be noted, is meant to prepare and present the students for public examination, 'recognition' of a private school is for other purposes mentioned in the Act and it is only when the School is recognised by the " appropriate authority' that it becomes amenable to other provisions of the Act."
23. In pursuance to the said requirement prescribing obtaining of no objection for affiliation under paragraph 2.3.5, the State Government has issued an extensive Government Order prescribing the manner in which the applications seeking no objection certificate shall be dealt with. The Government Order dated 14.07.2009 records the requirement as issued by the CBSE and also with the ICSE Board and proceeded to constitute a committee comprising of four persons who were conferred with the power of inspection and were further to provide a report in terms of the said inspection for being granted the no objection certificate.
24. It is interesting to note that the CBSE has issued extensive guidelines specifying requirements by the institutions seeking affiliation with them. The specifications include the requirements of Area, requirements of fullfilling essential safety guidelines, informations regarding staff, etc one of the requirements of CBSE for grant of affiliation as contained in paragraph no.2:3:5 is, that the State Government has no objection to the affiliation of the school with the CBSE. In the garb of the said requirement, the Government Order dated 14.07.2009 is framed specifying the requirements for grant of no objection certificate and in furtherance of the said guidelines has proceeded to pass the order impugned which has gone into the question of manner in which the property was acquired by the petitioner institute and the various stages of litigation. It further goes into the requirement which are prescribed for grant of affiliation by the CBSE in the Chapter III Rule 3.2 and Chapter II Rule 3.3 and Chapter II Rule 3.4.
25. From the perusal of the impugned order, it appears that the State Government took over the role of the CBSE to find whether the petitioner would be entitled for the affiliation or not. The said action of going into the title and the other requirements as prescribed by the CBSE were clearly beyond the requirement as specified in Clause 2:3:5 as well as in the Government Order dated 14.07.2009. The requirement as specified by CBSE is confined to a no objection only with regard to affiliation, thus the normal meaning that can be deciphered from interpretation of clause 2:3:5 is that the State Government has to grant a no objection certificate only to the effect that whether the State Government has any objection to the institutions being 'affiliated' with the CBSE. No other requirement is to be fulfilled by the State Government while deciding application for grant of NOC for affiliation.The other requirements are to be judged by the CBSE while granting or refusing to grant affiliation. The Government Order dated 14.07.2009 clearly goes beyond the prescribed scope of the grant of no objection certificate by the State, it clearly infringes the right of the petitioner's institution to run an educational institution after getting affiliation from CBSE which itself is a society registered under the Societies Registration Act. The requirement of obtaining a no objection certificate of affiliation from the State Government cannot confer the right on the State Government to act like a bull in a china shop and to carry a roving enquiry/investigation into the manner of acquisition of title as has been done by means of the impugned order.
26. The scope of no objection certificate as is required in terms of clause 2:3:5 is only confined to the objection by the State with regard to the grant of affiliation with CBSE, as sought by the petitioner from the CBSE. It cannot go into any other question. It is inconceivable as to what the four member committee constituted in terms of the Government Order dated 14.07.2009 is to oversee while granting the no objection certificate for affiliation. It appears that the Government Order as perceived the no objection certificate by the State for affiliation as the power on the State Government to see whether the institution fulfills all the requirements as are prescribed by the CBSE for grant of affiliation. The said fact is also evident from the manner in which the applications have been invited and the disclosures with regard to title etc. have been demanded and have been supplied by the petitioner.
27. In view of the my specific view that the scope of powers for grant of no objection certificate for affiliation is only confined to the powers of the State for objecting only to the affiliation and nothing beyond that. It appears that the requirement as specified in Clause 2:3:5 was incorporated because a State, in exercise of its powers can take a ground to promote education only through its Regional Boards and not otherwise and thus the no objection certificate as required under Clause 2:3:5 is confined to that issue alone.
28. The Supreme Court while dealing with some guidelines framed by the State of Kerala for granting NOC to the institutions applying for afffiliation with CBSE hads held in the case of State of Kerala vs Mythri Vidyabhavan English Medium School (2020) 20 SCC 669 held that the guidelines issued should have some relevant nexus with the object sought to be achieved.
29. In the present case, not only a roving enquiry has been made but the State has gone ahead in taking decisions which it could not had taken in the garb of requirement of grant of no objection certificate for affiliation. Thus, I have no hesitation in holding that the State Government has exceeded its mandate in rejecting the request for grant for no objection certificate for affiliation. I am not going into the question of validity of the Government Order as the same is not under challenge in the present writ petition. As there is no bar in affiliation of schools with Boards other than the U.P. Board in the State of Uttar Pradesh as various schools affiliated to both CBSE and ICSE Boards are imparting education in the State, there is no reason available with the State to deny the no objection certificate, which is required only for grant of affiliation and nothing more. All the other issues pertaining to the grant of affiliation as sought by the petitioner before the CBSE have to be dealt with by the CBSE in accordance with their rules which have been held to be pragmatic by the Supreme Court in case of State of Kerala (supra). Thus, the order dated 08.10.2021 is quashed with directions to the respondents to grant the no objection certificate for affiliation as sought by the petitioner within a period of two months from today.
30. The writ petition is allowed in terms of the said order.
Order date : 27.09.2022.
VNP/-
[Pankaj Bhatia]