Jammu & Kashmir High Court - Srinagar Bench
Kohsar Public High School vs State Of J&K And Others on 28 September, 2020
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conferencing from Jammu)
...
WP(C) no.3196/2019
CM no.6390/2019
Reserved on: 08.09.2020
Pronounced on: 28.09.2020
Kohsar Public High School
.........Petitioner(s)
Through: Mr Altaf Haqani, Advocate
Versus
State of J&K and others
.........Respondent(s)
Through: Mr M. I. Dar, Advocate
CORAM:
HON'BLE MR JUSTICE TASHI RABSTAN, JUDGE
JUDGEMENT
1. Quashment of Order no.59-Gen of 2019 dated 17th October 2019 (Annexure I to writ petition) and Order no.51-Gen of 2019 dated 10th October 2019 (Annexure VIII to writ petition), issued by J&K State Board of School Education (for short "Board"), is sought for. Quashment of Report, bearing no.F.Insp(KPS-B)19/KD dated 14th October 2019 (Annexure IX to writ petition) of an Inspection Team, is also prayed for by petitioner in writ petition on hand on the grounds tailored therein. Petitioner prays to prohibit respondents from giving effect to aforementioned impugned orders. Petitioner also seeks a direction in the name of respondents to consider and grant recognition/affiliation 2 WP(C) no.3196/2019 CM no.6390/2019 extension in favour of petitioner-school with effect from 2017-18 for a period of five years in conformity with Government Order dated 5 th October 2016 and entertain its registration returns and other facilities of the on-roll 9th Class students for Session 2018-19 of petitioner- school.
2. The case set up by petitioner is that Kohsar Public High School, Khag, Budgam, is a private educational institution with its managing body duly approved by J&K School Education Department. Petitioner- school on the basis of Resolution passed by State Affiliation Committee in a meeting held on 29th April 2016 in the campus of the Board, was accorded sanction for grant of affiliation (upgradation) vide Order no.F.(143-Aff.Gen)B-KD/16/B-03 dated 29th April 2016, with permission to run the classes up to Secondary level (10th Class) for a period of two years up to October-November 2017, in a phased manner, i.e. Class 9th in academic session 2015-16 and class 10th from academic session 2016-17. J&K School Education Department vide Government Order no.176-Edu of 2016 dated 19th May 2016, granted recognition in favour of petitioner-school co-terminus with the period of affiliation granted by the Board. Petitioner mains that Order no.F.(143-Aff.Gen) B-KD/ 16/B-03 dated 29th April 2016 and Government Order no.176- Edu of 2016 dated 19th May 2016, restricting affiliation and recognition upto academic session 2016-17 was contrary to criteria of permission/ affiliation/ recognition of private schools as provided in Government Order no.385-Edu of 2016 dated 5th October 2016, laying down criteria 3 WP(C) no.3196/2019 CM no.6390/2019 in exercise of powers under Section 12 of School Education Act, 2002, including extension of five years' recognition to the existing schools, fulfilling all requirements / conditions or those existing schools having deficiencies of minor nature. Even six months permission/affiliation can be given to those schools having major construction/ infrastructural deficiencies, failure whereof would entail derecognition and that the said criteria also stipulates service of six months' final notice to those existing schools, which do not have three essential certificates, i.e. fire safety, building safety and Lab. Chemical Safety, failure in respect whereof would entail closing down of such schools.
2.1. It is also averred in writ petition that petitioner-school was required to obtain no objection certificates from various government organisations under rules, which being a cumbersome process, obviously, consumed sufficient time, rendering petitioner disabled to apply for extension of affiliation for the period beyond 2016-17, covering academic sessions 2017-18, 2018-19. To explain delay, petitioner states to have moved an application on 27th August 2019 for approval of managing body and extension of affiliation for the period beyond 2017-18 before respondents 2&3, tendering all requisite information along with related documents including essential safety certificates, namely, Fire Safety, Building Safety and Lab Chemicals Safety, issued by competent authorities. According to petitioner, this was done by petitioner-school albeit no Lab. Chemicals safety certificate was required to be obtained by the school recognised up to 10th standard.
4WP(C) no.3196/2019 CM no.6390/2019 2.2. It is as well stated in writ petition that Directorate of School Education vide letter no.DSEK/GS/Joint Inspection/576 dated 11th September 2019 informed respondent no.4 to conduct joint inspection of petitioner-school in terms of Government Order no.668-Edu of 2005 dated 5th October 2005 qua grant of extension of recognition/ affiliation upto Class 10th. By another communication, respondent no.3 requested respondent no.4 that pending disposal of application of petitioner- school for grant of approval of managing body, the affairs of petitioner- school for conducting periodical joint inspection may be entertained in terms of SRO 123 read with SRO 292 and release registration return forms for Session 2019. By Order no.51-Gen of 2019 dated 10th October 2019, respondent no.4 directed constitution of an Inspection Team for determining extension of petitioner-school upto 9th and 10th class, with a stipulation to ascertain fulfilment of conditions under SRO 123 read with SRO 292 by petitioner-school. On 12th October 2019 a team visited petitioner-school and instead of conducting inspection in a systematic manner, it resorted to a course of high handedness, threatening and intimidations not only against school management but also teaching and non-teaching staff. The said team of officers submitted a report, bearing no.F.insp(KPS-B)19/KD dated 14th October 2019.
2.3. Petitioner maintains that aforesaid inspection team has failed to make appropriate recommendations for extension of recognition/ affiliation and also made observations of general nature in the report without any specific details. The said inspection team is stated to have not included 5 WP(C) no.3196/2019 CM no.6390/2019 Principal concerned of cluster head and instead included respondent no.6 in the team contrary to order dated 10th October 2019, which according to petitioner is unauthorised. It is averred that report of the inspection team was legally invalid thus incapable of being acted upon as also incompetent because of its composition as also in view of absence of proper recommendations. The same, however, was implemented particularly during the prevailing disturbed conditions of law and order and in view of fast-approaching ensuing examination of the 10th standard. Besides petitioner was ordered to deposit prescribed normal fee @ Rs.4951- and late fee of Rs.2001/- per candidate, amounting to Rs.19,305 and Rs.78001/- respectively and Rs.92/- as form fee for Rs.39/- candidates (aggregating to Rs.27,197) and also affiliation fee of Rs.8020/- with late fee of Rs.10000/-, the admission- cum-permission forms of Class 10th students for academic session 2018-19 of petitioner-school and submission of RR forms of class 9th session 2017-18 were processed and submitted through the cluster head Higher Secondary School, as had been provided in the order impugned. Petitioner also states that RR forms of class 9th, session 2018-2019, are yet to be processed and that the same being in the entitlement of petitioner-school. As maintained by petitioner recognition and affiliation of private educational institution is regulated by mandate of J&K School Education Act, 2002. In exercise of powers under Section 29 of the Act of 2002, competent authority has already notified the Rules vide SRO 123 of 2010 as amended by SRO 292 of 2018. Rule 4 of the Rules prescribe procedure for registration of private schools. 6 WP(C) no.3196/2019 CM no.6390/2019
3. Reply has been filed by the respondents 2, 4 to 6 (J&K State Board of School Education), in which they insist that affiliation of petitioner- school expired in the month of October 2017 and it was its obligation to apply for extension of affiliation before the Board but petitioner- school did not bother to do so for almost two years, till 12th September 2019, when petitioner-school approached respondent-Board with an application. Respondents vehemently stated that examination forms of students of petitioner-school had neither been submitted nor the same would have been accepted by respondent-Board in the absence of affiliation because requisite preparation for Annual Regular Examination 2019 had already been completed and respondent-Board was about to issue Date Sheet for conducting examination. 3.1. Respondents also state in their Reply that in order to safeguard academic career of students, respondent-Board was left with no option but to tag the on-roll students of Class 9th and 10th of Academic Session 2018-19 with Cluster Head High/ Higher Secondary Institution(s) in pursuance of Order no.59-Gen of 2019 dated 17th October 2019 and in case the timely action would not have been taken by respondent-Board, academic career of the students would have been lost due to negligent approach exhibited by petitioner-school. Though application dated 26th September 2019 submitted by petitioner-school was deficient of necessary requisites, yet respondent-Board processed it under rules and Inspection Team for determining infrastructural and academic viabilities of petitioner-school, was constituted vide Order no.51-Gen 7 WP(C) no.3196/2019 CM no.6390/2019 of 2019 dated 10th October 2019 read with Order no.60-Gen of 2019 dated 6th November 2019.
3.2. It is also asserted that aforesaid Joint Inspection Team furnished its report on 14th October 2019 and pointed out various infrastructural deficiencies/requirements in/of petitioner-school, including development and augmenting the Science and Computer Laboratory; augmenting and renovating Library-cum-Reading room to make it comprehensive in terms of books and accessibility of students as per defined library standard; installation of standard water purifying facility; renovation of washroom facility, as per scientific standard separately for male and female students; appointing a full time Physical Education Teacher and to add more sports equipment; face-lifting of interiors and exteriors of the Class rooms and buildings. It is stated that Order no.59-Gen of 2019, dated 17th October 2019, had to be issued by respondent-Board in view of negligent approach of petitioner-school in submitting the case file for grant of affiliation in due course of time 3.3. It is avowed that petitioner-school failed to furnish revalidated managing Committee as previous managing Committee made vide Order no.348-DSEK of 2013 dated 5th February 2013 by Joint Director, School Education Department, expired on 4th February 2016 as its tenure was for three years, besides recognition of petitioner-school was also co-terminus with affiliation granted by respondent-Board to petitioner-school upto October 2017.
3.4. Respondents maintain that in terms of Government Order no.385-Edu of 2016 dated 5th October 2016, five years (extension) shall be granted 8 WP(C) no.3196/2019 CM no.6390/2019 in respect of existing schools, which fulfill requirements/ conditions, irrespective of their previous period of recognition and contrary to the requirements, petitioner-school did not bother to even apply for grant of extension in affiliation beyond October 2017 and due to non- applying, respondent-Board was unable to extend the facilities to petitioner-school. The application submitted by petitioner school on 12th September 2019, besides being late, was deficient of essential documents, like, Managing Committee of school; No Objection Certificate from Government Labour Department; Fire and Emergency Certificate; Updated CPF Certificates/Challans; Audit report for the last two years from the Chartered Accountant; Bye-laws without countersign of Zonal Education Officer concerned.
3.5. Respondents claim in their reply that Registration Returns of students of Class 9th were submitted by petitioner-school in October 2019, instead of March 2018, i.e. after lapse of more than 18 months, when these students were about to appear in Class 10th Annual Regular 2019. Purely in order to save academic career, which was otherwise jeopardized by petitioner-school by unlawfully admitting students in Class 9th for academic Session beyond 2016-17, when they did not bother to file an application for extension or fulfill/furnish requisite essential formalities/documents.
3.6. Respondents insist that designated Inspection Team conducted inspection as per codal procedures/rules/norms. Inclusion of respondent no.6 in designated Inspection Team was duly approved vide Order 9 WP(C) no.3196/2019 CM no.6390/2019 no.60-Gen of 2019 dated 6th November 2019. Inspection team was not constituted in contravention of Rule (3)(a) of relevant SRO. 3.7. It is averred by respondents that Incharge/management of all concerned Schools having their period of affiliations expiring by or before October 2018 had been provided with an opportunity and formally asked to apply for extension in their period of affiliation vide Circular no.F(Gen- Recog/Affl)18 dated 6th January 2018, which also was published in leading newspapers.
3.8. I have heard learned counsel for parties and considered the matter.
4. By impugned Order no.51-Gen of 2019 dated 10th October 2019 (Annexure VIII to writ petition), respondent Board constituted an Inspection Team for determining infrastructural and academic viabilities of petitioner-school. It would be profitable to reproduce aforesaid order hereunder:
"THE JAMMU AND KASHMIR STATE BOARD OF SCHOOL EDUCATION NEW CAMPUS BEMINA SRINAGAR Subject: Constitution of Inspection Team for determining infrastructural and Academic Viabilities.
Sequel to the approval the team comprising of:
01. Mr Aijaz Ahmad Hakak Joint Secretary General-KD
02. Principal concerned of Cluster Head
03. Mr Ajaz Ahmad Khan, Section Officer Secrecy Accounts-KD is constituted to determine the Infrastructural and Academic viabilities of the below mentioned institution. The inspection team is required to ascertain whether the school management is fulfilling the conditions as laid down in SRO-123 read with SRO 292.
S.No. Name and location of the Institution To determine
01. Kohsar Public High School Khag Budgam Extension 9th and 10th a. The team shall complete the assignment within three (03 days) from the date of issue of this order and furnish the Report/s, complete in all respects to the undersigned within two days after conduct of Inspection, enabling this office to place the same before the Affiliation Committee in due course of time to decide the course of Affiliation.
10WP(C) no.3196/2019 CM no.6390/2019 b. Further, in order to have a transparent and accountable inspection, it is mandatory upon the team to prepare the report/s in duplicate, to provide a copy of the Inspection report to the institution and obtain the Signatures (with seal) of the concerned Head of the Institution on the other copy. c. In case the team fails to submit the report with given period a fresh team shall be constituted.
Sd/-
No.F-(Gen-KD)19 Joint Secretary
General Section-KD General Kashmir Division
Dated: 10.10.2019"
4.1. From the above quoted order, it is evident that after approval was granted by the competent authority, the inspection team was constituted, which was directed to be headed by Joint Secretary General, Kashmir Division. The inspection team was asked to ascertain whether petitioner-school had been fulfilling conditions as laid down in SRO 123 read with SRO 292.
4.2. The inspection team visited petitioner-school in the afternoon of 12th October 2019. What has been reported by the team is advantageous to be reproduced infra:
"Subject: School Inspection Report of Kohsar Public High School, Khag, Budgam.
The team comprising Joint Secretary, Registration/General, Section Officer, Registration and Secrecy Accounts visited Kohsar Public High School, Khag, Budgam, in the afternoon of 12th October 2019. The school is located in a rural area, serving the local populace who are socially, economically and educationally backward, School has added various progressive features to its infrastructure, however a lot more needs to be done, the School need to improve in the following infrastructural requirements;
a. To develop and augment the Science and Computer Laboratory as per the present day educational requirements.
b. To augment and renovate its Library cum Reading room, make it more comprehensive in terms of books and accessible to the students as per the defined library standards.
c. To install standard water purifying facility.
d. To renovate its wash room facility as per scientific standard separately for male and female students.
e. To appoint a full time Physical Education Teacher and to add more sports equipments.
f. Face lifting the interiors and exteriors of the school classrooms and buildings.11
WP(C) no.3196/2019 CM no.6390/2019 This is the only Private Secondary Standard School in the area, the school has a good track of academic records and some of its students have excelled in various Board examinations. The students and teachers were satisfied with the school administration and management. The School has a good number of trained teachers.
The School has continued its classification for secondary standard (Class 9th and 10th) despite its affiliation expired in the year 2017. The School has failed to follow the defined procedure and accomplish requirements and has thus put the interest of innocent students at risk, although the irresponsible handling of school affairs and negligent approach warrants a strict disciplinary action against the school, even tagging the school with some affiliated Government Secondary/Higher Secondary School but such an action may affect adversely the moral of the students who are otherwise eligible to appear in the ensuing Secondary Standard (Class 10th) Annual, Regular 2019 Examination.
Therefore in consideration of the interest of the students it is recommended, i. That the retrospective renewal/extension of the affiliation of the school be considered as per the defined procedure after completion of all the required formalities by the School only after re-inspection of the school by the same team who will determine the progress made by the school in respect of the identified deficiency. ii. That the students of the Kohsar Public School, Khag, Budgam who are presently on its rolls in Class 10th be allowed to appear in the ensuing Secondary Standard (Class 10th) Annual, Regular 2019 Examination after permitting their registration in Class 9th for the academic session 2017-18.
iii. That a financial penalty of Rs.50,000/- (Rupees Fifty Thousand) only be imposed upon the school for its failure to follow the administrative requirements besides a letter of Caution be also served to the school."
4.3. It emerges from supra-extracted excerpt of the report that petitioner- school needed to improve various infrastructural requirements, including, to develop and augment Science and Computer Laboratory as per prevalent educational requirements; to augment and renovate Library-cum-Reading room, make it more comprehensive in terms of books and accessible to students as per defined library standards; to install standard water purifying facility; to renovate its wash-room facility as per scientific standard separately for male and female students; to appoint a full-time Physical Education Teacher and to add more sports equipment; to facelift interiors and exteriors of school class 12 WP(C) no.3196/2019 CM no.6390/2019 rooms and buildings. The report also unveils that petitioner-school continued its classification for Class 9th and 10th despite expiry of its affiliation way back in the year 2017 and petitioner-school failed to follow defined procedure and accomplish requirements and had, thus, put interest of innocent students at risk, although irresponsible handling of school affairs and negligent approach warranted a strict disciplinary action against petitioner-school, even tagging petitioner-school with some affiliated Government Secondary/ Higher Secondary School, but such an action might affect adversely the morale of students, who were otherwise eligible to appear in Class 10th Annual Regular 2019 Examinations. Accordingly, inspection team recommended retrospective renewal/extension of affiliation of petitioner-school as per defined procedure after completing all formalities that too after re- inspection of petitioner-school. Inspection team also recommended that students of petitioner-school, who were on its rolls in Class 10th, be allowed to appear in ensuing Class 10th Annual Regular 2019 Examination after permitting their registration in Class 9th for academic session 2017-18. Financial penalty of Rs.50,000/- was also recommended by inspection team to be imposed upon petitioner-school for its failure to follow requirements, besides a caution letter be served upon it. Petitioners is aggrieved of this.
4.4. Aforementioned inspection report terminated in issuance of impugned Order no.59-Gen of 2019 dated 17th October 2019. It would be worthwhile to reproduce relevant portion thereof infra: 13 WP(C) no.3196/2019 CM no.6390/2019
"Order No.59-Gen of 2019 Dated: 17.10.2019 Sequel to the approval, sanction is hereby accorded for tagging of on roll students of class 9th and 10th of the current Academic Session 2018-19 of Kohsar Public School Khag Magam with nearby cluster Head High/Higher Secondary Institutions in order to save the career of the students of current session.
The Cluster Head Institution shall submit the Admission cum Permission forms of class 10th for the academic session 2018-19 and R.R.forms of class 9th session 2017-18 through offline mode within three days positively from the date of issuance of the order along with normal prescribed fee of Rs.495 Plus token fine of Rs.200/- per candidate. Besides, also submit the RR forms of Class 9th Session 2018-2019 with normal prescribed fee of the candidates of said institution through online mode through the BOSE website www.jkbose.ac.in within ten days form the date of release of the internet facility by the Government in Kashmir divison.
The principal of the above Private Academic institution is directed to discharge the on roll candidates of class 9th session 2018- 19 from his school to enable them to get admission in nearby cluster Head Govt School."
4.5. By above quoted impugned Order no.59-Gen of 2019 dated 17th October 2019, sanction was accorded for tagging of the on-roll students of Class 9th and 10th of Academic Session 2018-19 of petitioner-school with nearby cluster Head, High/Higher Secondary Institutions, so as to save career of students. Principal of petitioner-school was also directed to discharge the on-roll candidates of Class 9th Session 2018-19 from its school to enable them to get admission in nearby cluster Head Government School. Petitioner-school is also aggrieved of this order.
5. Learned counsel for petitioner, in support of case set up in writ petition, has stated that impugned order dated 17th October 2019, issued by respondent-Board is arbitrary in nature inasmuch as the same has been issued to the prejudice of petitioner-school, arbitrarily, unjustly and unfairly, and without giving an opportunity of hearing to it. Impugned order has been issued even after acceptance of prescribed fee along with late fee. Respondents were mandatorily bound to notify petitioner- 14 WP(C) no.3196/2019 CM no.6390/2019 school qua proposed action and grant it an opportunity to explain that adverse report of joint inspection team was unjustified and not based on facts and that respondents have violated petitioner's fundamental rights under Article 14 of the Constitution. He has also averred that impugned action of respondents culminated in impugned orders is in violation of Rule 4(3)(a) of J&K School Education Rules 2010 as also provisions of J&K Education Act, 2002.
6. Given submissions made by learned counsel for petitioner, it would be appropriate to go through the Jammu and Kashmir Education Act, 2002 (for brevity "Act of 2002"). It provides for achieving the goal of universalisation of elementary education and for better organization and development of school education. Section 2 (b) of the Act of 2002 provides that "aided school" means a private school which is recognized by and is, or has been receiving grant-in-aid from the Government. Insofar as "private school" is concerned, it is defined in Subsection (l) and it means a school established, run or maintained by any educational agency and recognised by the Government. Section 5 of the Act permits establishment and maintaining of private schools by any educational agency, so as to provide adequate facilities for school education. Section 6 of the Act empowers the Government to stipulate manner, in which government schools shall be established and run. 6.1. Relevant to present controversy are provisions commencing from Section 11 of Act of 2002. It enjoins that "no private school shall be established, run or maintained without permission", of the Government or competent authority.
15WP(C) no.3196/2019 CM no.6390/2019 6.2. It should be kept in mind that Section 11 in unequivocal terms stipulates that it is not only for establishing a private school that a "written permission" is required, but it is even after establishing a private school that a "written permission" is required to be had from the government or competent authority to run and maintain a private school. So, it is not a simpliciter threshold "written permission" to establish a private school and thereafter remain calm and in a state of slumber. Here Section 11, one cannot deny it, is a good piece of legislation incorporated and introduced in the Act of 2002. It categorically takes care of things at the time of establishment of a school. It ordains overseeing of running of private schools. It stipulates keeping vigil on maintaining of private schools. The reason being: involvement of the children; their future; and career. Section 11, keeps private school's management on toes. Having said so, petitioner-school cannot absquatulate from the liability, responsibility and duty cast upon it the moment it established the school, to remain active, promptitude and up- to-date in all fields in running and maintaining the school and its management. Petitioner could not and/or should not have made a miniature mistake in running and maintaining the school. So applies to respondents. They should not permit any private school, including petitioner-school, to run and function without "written permission"
from competent authority. Any deviation thereto also attracts delinquency on those who were/are at the helm of affairs. 6.3. Subsection (2) of Section 11 makes it obligatory upon the Government of Jammu and Kashmir, to "prescribe procedure to be followed for the 16 WP(C) no.3196/2019 CM no.6390/2019 grant of permission to establish, run or maintain private schools". By this, private schools, including petitioner-school herein, are under obligation to follow and comply with in letter and spirit the procedures, regulations, rules, and norms prescribed by the Government or competent authority. And there is no escape therefrom. So is for petitioner-school inasmuch as petitioner-school is not in a trade of merchandize but is involved in a reverential mission of imparting education, which, should be, if not above par, but, at least, on a par.
It is germane to mention here that any lackadaisical approach by any school in fulfilling and complying with the norms, procedures, terms and conditions laid down for running and functioning of the school, should be dealt with iron hand by respondents.
7. Only those private schools are to be permitted to function, which are recognised, as is provided in Section 12 (1) of the Act of 2002. This means that the unrecognised schools cannot be permitted to function.
7.1. How recognition is to be obtained, the procedure therefor is to be followed and complied with and for that matter the Government is required to prescribe procedure as is envisaged under Subsection (3) of Section 12.
7.2. It is not only that procedure, norms and conditions are to be prescribed by the Government for establishment of a private school, but norms and conditions are also to be prescribed by the Government for functioning of the schools recognised by it, so as to discipline them. Such a requirement is embossed in Subsection (4) of Section 12. 17 WP(C) no.3196/2019 CM no.6390/2019 7.3. Not only this, the Government, as stipulated under Subsection (5) of Section 12, is also required to issue notification in Government Gazette, on or before the first day of May every year, publishing List of recognised private schools. The Government, while issuing and publishing the List of recognised private schools, can publicize their particulars as well, if the Government considers it necessary. Therefore, Subsection (5) obligates the Government to make public the List of recognised schools, aiming at to keep unrecognised schools at bay and save the future and career of the children.
8. Insofar as management of private schools is concerned, Section 13 of the Act of 2002 says that no private school shall be managed and run by any person other than an educational agency. The Government shall prescribe procedure for registration of educational agencies. And every educational agency shall appoint a Manager to look-after day-to-day running and administration of the school managed and run by such educational agency.
9. If a private school wants to start a new class or add any higher classes, it is required to seek "prior permission" from competent authority. Prior permission for adding new class in unambiguous terms is envisaged in Section 15 of the Act of 2002. It is a basic and fundamental requirement that there should be a "prior permission" for starting a new class in a private school and its recognition as well. Procedure in this regard is to be prescribed by the Government for permission and recognition. 9.1. It is to be seen that conjoint reading of Section 11 and 15 of the Act of 2002, thus, requires a private school to have a "prior permission" that 18 WP(C) no.3196/2019 CM no.6390/2019 too written, for adding a new class. And there is no way out therefrom. Any deviation thereto will attract impositions as contemplated under the Act of 2002, Rules and regulations made thereunder.
10. In the present case, vide Order no.F.(143-Aff. Gen) B-KD/16/B-03 dated 29th April 2016 (Annexure III to writ petition), petitioner-school was given affiliation (upgradation) to run the classes up to Class 10th for a period of two years, dependent on certain norms and procedures to be followed and complied with by it, which are:
A. The affiliation shall strictly be governed by the terms and conditions as laid down vide SRO 123, relevant Govt. orders, BOSE regulations and the resolutions of the State Affiliation Committee meetings passed from time to time.
B. That the deficiencies listed in the joint inspection report are to be overcome within a time bound manner i.e. the time frame of one to three months (if the deficiency is minor) or six months (if the deficiency is major). The compliance to this effect will be monitored by the joint re-inspection teams as and when required. C. There shall be no compromise with safety conditions therefore three mandatory Statutory Certificates, viz. Building safety, Fire Safety, and Chemical Safety by the designated authorities are essential for the consideration of the affiliation. The essential requirements viz. Fire safety are basic and desirable requirements are to be addressed within a definite time frame. The compliance to NBC (National building code) norms is to be ensured.
D. It shall be binding upon all Govt./Private Institutions to fulfil all the statutory conditions laid down from time to time.
E. The financial transactions especially the payment of salary to the Staff is to be made through Bank.
F. Fee structure to be adopted by the Institutions must strike compliance to the decisions of Fee Fixation Committee constituted by the Govt. in pursuance to the directions of the Hon'ble High Court.
G. All schools have to comply with the conditions mentioned in the NOCs by the competent authorities. In particular they shall comply with the NOC conditions imposed by the Traffic Department for the safe transportation of Children's, boarding/Deboarding arrangements of Children and deployment of the personnel for the purpose.
H. The heads of the affiliated Institutions shall keep their infrastructure like the Examination hall and related facilities at the disposal of the BOSE as and when needed and especially at the time of the examinations.
I. The Academic calendar prepared by the BOSE is to be strictly adhered to. Any deviation thereof will invite imposition of penalty. J. It will be obligatory to stick strictly to the curriculum adopted by the BOSE for all classes and prescribe books covering that curriculum, 19 WP(C) no.3196/2019 CM no.6390/2019 especially published by the BOSE. Also to ensure arrangement for co-curricular and extra-curricular activities for the students. K. To maintain hygiene and sanitation separate Toilets have to be there for boys and girls. An additional facility of Change room is to be made available to the Girl students with first Aid facilities. L. Parent Association as required under norms has to be there to ensure joint monitoring along with Managing committee for the Academic development of the Students and the implementation of the decision that are being taken for their further improvement. M. The necessary maintenance of EPF/CPF (whichever is applicable) is to be maintained with the required contribution towards the fund. N. It shall be obligatory upon all the affiliated academic institutions to obtain recognition order from School Education Department. O. In addition to the above, the Inspector of the Academic Institutions will be caused on yearly basis and the above period of affiliation shall be reviewed annually on reception of Inspection reports. The observations to above mentioned requirements is obligatory and any deviation thereof will invite penalty, even de-affiliation from BOSE.
No.F.(143-Aff.Gen)B-KD/16/B-03 Sd/-
Dated: 29/04/2016 Joint Secretary General
Kashmir Division"
10.1. The requirements, in terms of afore-quoted Order dated 29th April 2016 (Annexure III to writ petition), to be followed and complied with, include making good the deficiencies listed in joint inspection report within a time bound manner. The timeframe of three months for removing minor deficiencies is given and six months in case of major deficiencies, which would be monitored by joint inspection team. There shall be no compromise with safety conditions. The school is required to obtain Building Safety Certificate, Fire Safety Certificate and Chemical Safety Certificate, so that its affiliation is considered accordingly. Compliance to National Building Code (NBC) is to be ensured by the school. In the above order dated 29th April 2016, it is even enjoined upon all the government and private institutions to fulfil all statutory conditions laid down from time to time. The financial transactions especially, payment of salary to the staff, is to be made through Bank and fee structure, to be adopted by the Institutions, must be in compliance with the decisions 20 WP(C) no.3196/2019 CM no.6390/2019 of Fee Fixation Committee constituted by the Government in pursuance of the directions of the High Court. The school is also to maintain hygiene and sanitation, and separate toilets have to be there for boys and girls and an additional facility of change room is to be made available to the girl students with first aid facilities. The order also says that inspection of academic institutions would be conducted on yearly basis and the period of affiliation shall be reviewed annually on receipt of inspections reports. It shall be obligatory upon all affiliated academic institutions to obtain recognition Order from School Education Department and the necessary maintenance of EFP/CPF is to be maintained with the required contribution towards the fund. It may be mentioned here that Order no.F.(143-Aff. Gen) B-KD/16/B-03 dated 29th April 2016 (Annexure III to writ petition), as on its plain reading would divulge, has been issued by respondent-Board on the basis of approval of the Chairman to the resolutions, passed by the State Affiliation Committee in its meeting held on 29th April 2016 in BOSE Campus, Rehari Colony, Jammu.
10.2. The terms and conditions laid down in aforesaid Order dated 29 th April 2016 (Annexure III to writ petition) had to be followed and complied with by petitioner-school in letter and spirit and any deviation thereto, as is unequivocally mentioned in aforesaid order, would invite penalty, even de-affiliation from respondent-Board. In such circumstances, petitioner-school cannot be heard saying that it was unable to obtain no objection certificates from various government organisations/ departments for long two years. Such pretext, given the sacred job and 21 WP(C) no.3196/2019 CM no.6390/2019 work that petitioner-school discharges and performs, is not worth consideration muchless acceptable. In that view of matter, writ petition lacks in merit.
11. It may be mentioned here that as many as 36 cases of extension/ upgradation of private educational institutions, including petitioner-
school, had been approved by Affiliation Committee of respondent- Board as is discernible from Government Order no.176-Edu of 2016 dated 19th May 2016 (Annexure IV to writ petition). However, it was found that some of the schools had not made good the deficiencies. Amongst those schools, petitioner-school also figures in a List (Annexure B) to Government Order no.176-Edu of 2016 dated 19th May 2016, which had to make up the identified deficiencies that did not require construction or major procurements for alternative arrangements. 11.1. Pertinent to mention here that petitioner, on his own accord, mentions in writ petition that certain deficiencies were pinpointed, that too, way back in the year 2016. Petitioner also admits that petitioner-school was not able to obtain the certificates, as according to petitioner, it being cumbersome process, which consumed sufficient time to apply for affiliation for the period beyond 2016-17 and it was only on 27th August 2019 that petitioner-school approached respondent-Board for extension of affiliation for the period beyond 2017-18.
11.2. While going through the Reply of respondent-Board, it comes to fore that petitioner-school has miserably failed to submit requisite and essential documents/certificates notwithstanding the fact that respondent-Board in the year 2018 vide Circular dated 6th January 2018 22 WP(C) no.3196/2019 CM no.6390/2019 (Annexure R-4 to Reply) asked concerned schools, whose affiliation expired on or before October 2018, to submit application(s) for further extension in their affiliation in the first instance and thereafter complete the requisite formalities. This fact, though not made mention of in writ petition, has been brought to the notice of this Court by respondent- Board in its Reply and the same remained unrebutted. Petitioner-school cannot escape from this fact. To remain dormant for long two years, petitioner-school cannot go scot-free from its liability and responsibility in running and functioning of school under the Act of 2002, Rules and Regulations made thereunder, and norms, procedures, terms and conditions laid down from time to time in this regard by the Government. Mere submission of application after two years will not absolve petitioner-school from all that was and/or is required to be undertaken and accomplished. In that view of matter, writ petition is devoid of any merit.
12. If functioning of a private school is not in accordance with provisions of the Act of 2002 and Rules made thereunder, the Government can derecognise such a private school. While contemplating to derecognise a private school, reasonable opportunity is to be provided to educational agency.
12.1. The Government, under Section 29, can make rules so as to carry into effect the provisions of the Act of 2002, particularly with respect to the matters that provide for: the provision of compulsory education; the establishment and maintenance of schools; the grant of permission to set up private schools; the recognition of private schools; the giving of 23 WP(C) no.3196/2019 CM no.6390/2019 grant-in-aid to schools; the levy and collection of fees in private schools; the manner in which accounts, registers and records shall be maintained and the auditing of the accounts of private schools; the returns, statements and reports to be submitted by schools; the inspection of schools; the standards of education and courses of study; the procedure for admission of students in schools; and any other matter, which is or may be required to be prescribed under the Act of 2002.
12.2. The Government of Jammu and Kashmir, through Education Department, in exercise of powers conferred by Section 29 of the Act of 2002, issued the Jammu and Kashmir School Education Rules, 2010, (for brief "Rules of 2010") vide Notification/SRO 123 dated 18th March 2010. Rules 3 thereof provides that the Government shall work on a sustained basis, for enlargement of access to elementary education and shall, towards that end, take all necessary steps which may include:
opening of Primary Schools and Upper Primary Schools within a reasonable distance from each other with particular regard to the topography and terrain of an area; development of special, age-specific bridge courses for the school drop outs, never-enrolled or out-of-school children; thrust on removal of social, regional and gender gaps; creation of a sustainable support system of resource personnel and institutions; strengthening of teacher-training institutions; continued capacity building and capacity enhancement of teachers, teacher educators and educational planners/ administrators; launch of target-oriented and area-specific initiatives like innovative education, alternative 24 WP(C) no.3196/2019 CM no.6390/2019 schooling, open schooling, coverage of special focus groups etc.; and community ownership of school-based strategies through increased public participation and need-based decentralization. 12.3. Rule 4 of the Rules of 2010 prescribes procedure for registration of private schools. It says that an application for grant of permission to establish, run or maintain a private school or to extend the permission for such school shall be made in Form "A", as is prescribed in the Rules.
The Form "A" should be accompanied by Treasury Receipt/Cheque/ Bank Draft as application/inspection fee to be notified by the Government from time to time and submitted to the competent authority by the educational agency running a private school. Sub Rule (2) of Rule 4 envisages that application for opening of a private school should be accompanied by no objections certificate from Municipal Corporation/ Committee, Panchayat, LAWDA or any other local body and/or any other institution concerned as the case may be. No objection certificates are also to be had from Traffic Police, Public Works Department (from the safety standpoint); and Fire and Emergency Services Department. Upon receipt of application, competent authority as Sub Rule (3)(a) of Rule 4 provides shall refer the matter for spot inspection of the institution or for examination of the project/proposal vis-à-vis the norms of infrastructure, equipment, staff and other requirements as laid down under Rules 5, 6 and 11 of the Rules of 2010. 12.4. As can be gathered from Sub Rule (3) of Rule 4, (SRO 123), inspection team should be headed by the officer now below the rank of Joint Director in case an ETT/NTT institution is inspected; and Principal of 25 WP(C) no.3196/2019 CM no.6390/2019 a Government Higher Secondary School in respect of High and Higher Secondary Schools and similarly in respect of Elementary Schools (i.e. school running up to class 8th), the inspection team should be headed by the officer not below the rank of Headmaster of a Government High School.
12.5. Private school, seeking permission/recognition or its extension/ renewal, shall be required to have requisite infrastructure and facilities, including physical facility and teaching and other staff as has been detailed in Rules of 2010. In respect of Pre-Primary Schools (i.e. Pre- Nursery/ Nursery and K.G.), the school should be located in a noise- free zone, equipped with requisite wherewithal. It should have, at least, three class rooms; each classroom should have, at least, one seat and drawing/ writing space for each student; one play room and/or a playground; one multipurpose educational laboratory; one staff room; toilet and drinking facility; and if the intake of students is above 50 per class, then extra room for each additional section is to be added. Accordingly, in relation to High Schools, i.e. Class 9th and 10th, the school, is reflected in lower classes as well, should be located in noise- free zone and should have, at least, two rooms for Class 9th and 10th and each class room should have, at a minimum, one seat and writing space for each student. There should be library for Class 9th and 10th. There should also be one room for indoor-games (with an area of not less than 150 sq. mt.) meant for Class 9th and 10th and one multipurpose educational laboratory. Principal should have also an exclusive room. There should be one office room, besides one staff room. There should 26 WP(C) no.3196/2019 CM no.6390/2019 be separate toilet and drinking water facility for students (boys and girls), besides for the staff. If the intake of students is above 50 per class, then, in such situation, additional section/s is/are to be added. And in the event the institute/school provides education right from pre- primary to class 10th, additional infrastructure to that extent (i.e. pre- primary to class 8th) is to be provided. There should also be an Assembly/examination hall.
13. Certain amendments have been made in the Rules of 2010 vide Notification/SRO 292 dated 2nd July 2018 (Annexure XII to writ petition). Previously in terms of SRO 123 (Annexure XI to writ petition) the officer, not below the rank of Joint Director, was to be appointed for inspecting an ETT/NIT institution; and Principal of a Government Higher Secondary School in case of High and Higher Secondary Schools. Now by above SRO 292, there should be, at least, Joint Director, Chief Education Officer, Joint Secretary/Deputy Secretary/Assistant Secretary of the J&K Board of School Education for conducting inspection of ETT/NIT Institutions and in respect of High and Higher Secondary School, there should be, at least, Principal of a Government Higher Secondary School/Assistant Secretary of J&K Board of School Education.
13.1. A submission has been made by learned counsel for petitioner that inspection team had been appointed in violation of the Rules of 2010, particularly Rules 5, 6 and 11, and so was the report submitted by the said inspection team.
27WP(C) no.3196/2019 CM no.6390/2019 13.2. Given aforesaid submission, it is worthwhile to mention here that by Order no.51-Gen of 2019 dated 10th October 2019, impugned herein, an inspection team was constituted, headed by Joint Secretary, who were to be accompanied by Principal concerned of Cluster Head and Section Officer, Secretary Accounts. If we go through amendment carried in terms of SRO 292, the officer, not below the rank of Principal of a Government Higher Secondary School, should head inspection team. In the present case, Joint Secretary General, Kashmir Division has been appointed as Head of the Inspection Team, who, for all practical purposes, is not below but above the rank of Principal of a Government Higher Secondary School. Thus, inspection team headed by Joint Secretary General, Kashmir Division, was not only great but was the icing on the cake. In that view of matter, submission of learned counsel for petitioner that inspection team was appointed in violation of Rules of 2020, is misconceived.
14.In view of above milieu, it is imperative to have discourse qua Sub Rule (3) (b) of Rule 4 of the Rules 2010. In SRO 123 (Annexure XI to writ petition), it was mentioned that the inspector/inspection team shall submit the report to competent authority within a period of 30 days from the date his appointment. However, while making amendment, the following has been incorporated in Sub Rule (3) (b) of Rule 4 vide SRO 292 (Annexure XII to writ petition):
"b) Inspection procedure: - The following procedure shall be followed for inspection of the institutes, namely:
a) Application for affiliation/ recognition as per devised proforma, complete in all respects shall be submitted online on JKBOSE, website.
b) JKBOSE shall constitute an inspection committee within 10 days of receipt of application.28 WP(C) no.3196/2019 CM no.6390/2019
c) In case of any deficiency, JKBOSE shall communicate the same to the applicant within 7 days, otherwise it shall be presumed fir for inspection.
d) As and when, applicant informs the fulfilment of deficiency, the inspection team shall be constituted within 10 days for conduct of inspection.
e) The inspection committee shall submit its report within a period of 15 days from the date of appointment.
f) The competent authority shall examine the report so received and take final decision thereon within 30 days and convey the same to the educational agency.
g) The total time involved would be a maximum of 75 days.
h) Affiliation/recognition committee shall meet every 3rd Monday of the month. In case the earmarked day is a holiday, the meeting shall be held on next working day.
i) All cases for affiliation/recognition shall be submitted in respect of both Kashmir/Jammu province three months prior to the commencement of session.
j) No provisional approval shall be granted.
k) Minutes of affiliation committee meeting shall be framed by JKBOSE and shall be submitted to Administrative Department along with Draft Affiliation/Recognition order for approval and the same shall be returned to JKBOSE for issuing affiliation/recognition order.
l) Affiliation/Recognition orders shall be for a period of five years in view of Govt. Order No.385-Edu of 2016 dated 05.10.2016.
......................."
14.1. What emerges from the above extract of Sub Rule (3) (b) of Rule 4, is important to be deliberated upon, here and now, before proceeding further in the matter. Online application is to be submitted for affiliation/recognition, which should be complete in all respects. Submission of application entails inspection. In the present case, application, though received belatedly, from petitioner-school, was considered and inspection team was constituted. If SRO 292, making certain amendments in Rules of 2010, is seen and looked meticulously, it enjoins upon private schools to inform competent authority immediately that it has removed the deficiency, which was earlier detected. The competent authority, upon receipt of information, is to constitute an inspection committee. The inspection team, in case in hand, has submitted its report (Annexure IX to writ petition). All that is 29 WP(C) no.3196/2019 CM no.6390/2019 mentioned in inspection report is the position obtaining on spot. This Court, in writ proceedings, cannot examine the contents of inspection team as if it is sitting in appeal. This Court, in writ proceedings, is only to see and examine as to whether Statute, Rules, regulations, norms and guidelines, governing the field, have been followed and complied with by respondents while issuing impugned orders. On birds' eye view of present case, no violation springs therefrom on part of respondents in issuing impugned orders. On the other hand, laxity is at galore at the hands of petitioner that cannot be and is not condonable muchless permissible.
15.Rules 5, 6 and 11 of the Rules of 2010 have been referred to by learned counsel for petitioner, to contend that impugned orders and inspection report are liable to be quashed.
15.1. Rule 5 of the Rules of 2010, read with amendment made in terms of SRO 292, provides that every school shall have managing committee representing the local community and it shall function under the control and directions of the committee and members of the managing committee shall not belong to one single family. And power to approve composition of managing committee shall vest with Director School Education with respect to all school running upto class 12th, but any change in the management body shall be done by concerned Chief Education Officer, after getting confirmation of Director, School Education, and in case no confirmation is accorded by Director, within a period of 90 days, it shall be deemed as confirmed.
30WP(C) no.3196/2019 CM no.6390/2019 15.2. Insofar as Rule 6, amended vide SRO 292, is concerned, it provides that private schools, seeking permission/ recognition or extension/ renewal thereof, shall be required to have the requisite infrastructure and facilities, including physical facilities and teaching and other staff as per details given in sub-rules of Rule 6.
15.3. Rule 11 says that every school shall follow curriculum and textbooks as may be prescribed for different classes by respondent-Board, save in respect of the Classes/subjects where Government or respondent-Board may provide for flexibility consistent with public interest and that every private High and Higher Secondary School shall have a library of 2000 books including reference/text books, in the first year and shall add 200 books in circulation in each subsequent year. Besides, High and Higher Secondary School shall also initially subscribe to at least three journal/ magazines. Had petitioner-school followed and complied with these rules in letter and spirit, is not coming forth from both writ petition and Reply.
15.4. It is in the above backdrop, very significant to say that on 27 th August 1975, the Jammu and Kashmir Board of School Education Act, 1975 (for brevity "Act of 1975") received assent of the Governor of erstwhile State of Jammu and Kashmir and was published in Government Gazette on 28th August 1975. It came into being for the purpose of reforming and reorganizing School Education in Jammu and Kashmir and consolidating and amending the law relating thereto. Besides coming into force of the Act of 1975 was with a view to securing that education should: relate intimately to the development of the potentialities of 31 WP(C) no.3196/2019 CM no.6390/2019 youth, to the National needs and to the aspirations of the people; discover talent and nurture it; promote equality of opportunity by providing necessary facilities; help generally to raise the standard of living and productivity of the State and achieve closer and willing participation of the people in democratic processes. The Act of 1975 has been enacted considering it expedient that facilities are provided for ensuring universalization of Elementary Education by arranging for a two point entry system in the new educational system; the existing institutional structure at the higher secondary stage be so coordinated as to provide for twelve years schooling, ten years of schooling in secondary education followed by two years in Higher Secondary Education so as to achieve a uniform pattern of Secondary and Higher Secondary Education for laying the foundation of a society which is academically alert, scientific in outlook and forward looking; and for securing the above objectives, it is necessary to reform, re-organise and reconstruct the existing system of school education, and for that purpose, to consolidate and amend the law relating thereto. Accordingly, it was expedient to establish respondent-Board to regulate, control and develop Education in the Jammu and Kashmir up to the Higher Secondary level by providing varied courses with a view to equipping pupils for different occupations for education in the Universities and other cultural purposes and to examine the candidates and to award certificates to successful candidates and doing all other things incidental thereto.
32WP(C) no.3196/2019 CM no.6390/2019 15.5. Section 10 of Act of 1975 enumerates powers and function of respondent-Board, which are:
"10. Powers and functions of the Board. - Subject to the provisions of this Act and also subject to the board educational policies and such directions and instructions as the Government may adopt and issue, from time to time, the Board shall have the following powers and functions: -
(i) to prescribe the courses of institution, prepare curricula and detailed syllabi and also prescribe text books for the elementary, secondary school and higher secondary (school graduation), school examinations;
(ii) to conduct public examinations for persons who have pursued the secondary school and higher secondary (school graduation) school education courses;
(iii) to publish the results of examinations conducted by the Board;
(iv) to grant diplomas or certificates to persons who have passed the examinations of the Board under conditions laid down in the regulations;
(v) to recognise institutions for the purpose of providing instructions in the Secondary and Higher Secondary Courses on such conditions and on receipt of such fees as may be fixed by the regulations;
(vi) to require schools recognised by the board, to extend their cooperation in the conduct of examinations held by it, by placing their staff, equipment, halls and rooms, laboratories and other apparatus at the disposal of the board;
(vii) to conduct inspection of the recognised schools/institutions to ensure-
(a) that the recognised school have the requisite facilities of playgrounds, furniture, laboratories, library, equipment, accommodation and qualified teaching staff as prescribed by the regulations.
(b) that no recognised school/institutions adopts books as courses of study other than those prescribed/approved by the board;
(c) that the recognised schools/institutions maintain the standard of education and impart instructions strictly in accordance with the regulations made under this Act;
(viii) to disaffiliate recognised schools which do not fulfil the conditions laid down in clause (vi) and sub-clauses (a), (b), and (c) of clause (vii) of this section;
(ix) to admit candidates to the examination of the Board under the conditions laid down by the Regulations;
(x) to demand and receive such fees as may be prescribed by the regulations;
(xi) to hold, control and administer the funds and property by the Board;
(xii) to receive bequests, donations, endowments, trusts and other transfers of any property or interest therein;
(xiii) to co-operate with the University of Jammu, University of Kashmir, other Boards and with other authorities and with other 33 WP(C) no.3196/2019 CM no.6390/2019 institutions in such manner and for such purposes as the Board may determine;
(xiv) to place before the Government the view of the board on any matter with which it is concerned;
(xv) to call for reports from a Director of School Education on the conditions prevailing in the recognised institutions or in institutions applying for recognition.
(xvi) to adopt measures to promote the physical, moral, cultural and social welfare of the students in recognised institutions; (xvii) to take such measures as the Board may think necessary to raise the standard of the education in the State and advise the Government on matters of policy relating to elementary, secondary and higher secondary education;
(xviii) to frame regulations for carrying out its purposes; (xix) to institute and award medals and prises and scholarships under conditions that may be prescribed;
(xx) to approve the annual financial estimates of the board after having been enclosed by the Finance Committee; (xxi) to appoint committees consisting of such members of the Board and such other persons, if any, as the Board in each case may deem fit for carrying out specified purposes and to delegate to these committees, such powers as it may consider necessary; (xxii) to issue instructions by correspondence; (xxiii) to exercise full academic control over the recognised institutions;
(xxiv) to obtain loans in furtherance of the objects of the Board; (xxv) to delegate such of its powers to any officer or committee of the Board as it may deem fit, provided that such delegation is made by a majority of not less than two-thirds of the members of the Board;
(xxvi) to appoint, save as otherwise provided in this Act, the Joint Secretaries and such other officers as may be declared by the Regulations to be the officers of the Board; (xxvii) to undertake editing, printing and publication-of text books for various courses, as the Board may deem proper;
(xxviii) to adopt measures for co-ordinating National and State policies in secondary and higher secondary, technical and vocational education and for co-ordinating higher secondary education with the elementary and University education; (xxix) to constitute various, divisions, units and committees for the furtherance of its objectives; and (xxx) to do all such other acts and things as may be necessary for furtherance of the objectives of the board as a corporate body constituted for regulating and supervising elementary, secondary and higher secondary education in the State."
15.6. Section 10, as quoted above, thus provides to prescribe the courses of instructions, prepare curricula and detailed syllabi and also prescribe text books for the elementary, secondary school and Higher Secondary (School graduation) school examinations; to conduct public 34 WP(C) no.3196/2019 CM no.6390/2019 examinations for persons who have pursued the Secondary School and Higher Secondary (School graduation) school education courses; to publish the results of examinations conducted by the Board; to grant diplomas or certificates to persons who have passed the examinations of the Board under conditions laid down in the regulations; to recognize institutions for the purpose of providing instructions in the Secondary and Higher Secondary courses on such conditions and on receipt of such fees as may be fixed by the regulations; to require schools recognized by the Board, to extend their cooperation in the conduct of examinations held by it, by placing their staff, equipment, hall and rooms, laboratories and other apparatus at the disposal of the Board; to conduct inspection of the recognized schools/ institutions to ensure:
that the recognized schools have the requisite facilities of play grounds, furniture, laboratories, library, equipment, accommodation and qualified teaching staff as prescribed by the regulations; that no recognized school/institution adopt books as courses of study other than those prescribed/ approved by the Board; that the recognized schools/ institutions maintain the standard of education and impart instructions strictly in accordance with the regulations made under this Act; to disaffiliate recognized schools which do not fulfill the conditions laid down in the Act; to admit candidates to the examination of the Board under the conditions laid down by the Regulations; to demand and receive such fees as may be prescribed by the regulations; to hold, control and administer the funds and property by the Board; to receive, bequests, donations, endowments, trusts and other transfers of any 35 WP(C) no.3196/2019 CM no.6390/2019 property of interest therein; to cooperate with the University of Jammu, University of Kashmir other Boards and with other authorities and with other institutions in such manner and for such purposes as the Board may determine; to place before the Government the views of the Board or any matter with which it is concerned; to call for reports from a Director of School Education on the conditions prevailing the recognized institutions or in institutions applying for recognition; to adopt measures to promote the physical, moral, cultural and social welfare of the students in recognized institutions; to take such measures as the Board may think necessary to raise the standard of the education in the state and advise the Government on matters of policy relating to Elementary, Secondary and Higher Secondary Education; to frame regulations for carrying out its purpose; to institute and award medals and prizes and scholarships under conditions that may be prescribed; to approve the annual financial estimates of the Board after having been endorsed by the Finance Committee; to appoint Committees consisting of such members of the Board and such other persons, if any, as the Board in each case may deem fit for carrying out specified purposes and to delegate to these committees such powers as it may consider necessary; to issue instructions by correspondence; to exercise full academic control over the recognized institutions; to obtain loans in furtherance of the objects of the Board; to delegate such of its powers to any officer or committee of the Board as it may deem fit, provided that such delegation is made by a majority of not less than two thirds of the members of the Board; to appoint save as otherwise provided in this 36 WP(C) no.3196/2019 CM no.6390/2019 Act, the Joint Secretary and such other officers as may be declared by the Regulations to be the officers of the Board; to undertake editing, printing and publication of textbooks for various courses as the Board may deem proper; to adopt measures for coordinating national and state policies in secondary and higher secondary, technical and vocational education and for coordinating higher secondary education with the elementary and University education; to constitute various divisions, units committees for the furtherance of its objectives; and to do such other acts and things as may be necessary for furtherance of the objectives of the Board as a corporate body constituted for regulating and supervising elementary, secondary and higher secondary education in the State. In that view of matter there is no force in the submission made in writ petition that respondent-Board has no powers to issue impugned orders and as a corollary thereof writ petition fails.
16.There is also a fantastic submission made in writ petition. Petitioner- school was granted recognition vide order dated 29th April 2016 (Annexure III to writ petition) for a period of two years, which, according to petitioner's submission, is contrary to criteria laid down in Government order dated 5th October 2016 (Annexure V to writ petition). Recognition granted is anterior to Government Order dated 5th October 2016, heavily relied upon by petitioner. Thus, Government Order dated 5th October 2016 cannot have retrospective effect.
16.1. Otherwise also, Government Order no.385-Edu of 2016 dated 5th October 2016 will not come to rescue of petitioner-school, rather it etiolates the case of petitioner-school. It categorically envisages that 37 WP(C) no.3196/2019 CM no.6390/2019 permission/ affiliation/recognition shall be given for five years only to those schools, which "meet all the requirements/conditions". When upgradation was granted in favour of petitioner-school, it was given only on the condition that petitioner-school will ameliorate deficiencies. Order (Annexure III to writ petition) granting affiliation (upgradation) to petitioner-school in clear cut terms enjoins upon petitioner-school to overcome deficiencies within a time bound manner. Minor deficiency is to be removed within one to three months and major deficiency in six months and compliance to this effect will be monitored by joint re-inspection teams as and when required. 16.2. From own showing of petitioner, after getting affiliation (upgradation), there had been no inspection for next two years and during this period petitioner-school had not even taken any serious step to overcome the deficiencies as admitted by it in writ petition.
16.3. Government Order no.385-Edu of 2016 dated 5th October 2016 (Annexure V to writ petition) also says that in respect of upgradation, the schools that meet all conditions or have minor deficiencies or do not require construction or major purchase or alternate arrangements, the upgradation permission would be for 9th/11th classes with permission to run the higher classes in subsequent years, if sufficient infrastructure/ manpower is available. Otherwise, upgradation for higher classes will be subject to availability of the same, to be checked in annual inspection, which shall be carried out well before commencement of next session, if so, applied by school management. Thus, it deduces 38 WP(C) no.3196/2019 CM no.6390/2019 from aforesaid Government order that annual inspections are to be conducted.
16.4. Petitioner-school is to make good deficiencies as have been detected by inspection team in terms of inspection report (Annexure IX to writ petition). It cannot come up with pretexts to exhort equity or justice when petitioner-school itself has failed to overcome deficiencies. The deficiencies, pinpointed by inspection report on the spot, cannot be looked into muchless examined or adjudicated upon by this Court in exercise of writ jurisdiction under Article 226 as if acts as an appellate court. For that matter it would be appropriate for petitioner to avail of remedy as is provided under SRO 292 dated 2nd July 2018 (Annexure XII to writ petition). The net result is that writ petition is liable to be dismissed.
17.In view of discussion made herein before, writ petition is dismissed with connected CM(s). Interim direction, if any, shall stand vacated.
18.Before parting, it is necessary to mention that there is dereliction on the part of respondents in discharge and performance of their duty and obligation as is ordained under the Act of 2002, Rules, Regulations, norms and procedures made thereunder and/or, for that matter, under J&K Board of School Education Act, 1975, Rules, Regulations, norms and procedures made thereunder.
18.1. Undisputed fact-situation in the present case is that respondents have also remained in deep slumber allowing the matters to worsen. Respondents, in their Reply, admit expiry of affiliation of petitioner- school in the month of October 2017, and that petitioner approached 39 WP(C) no.3196/2019 CM no.6390/2019 them on 12th September 2019. For two years, respondents allowed petitioner-school to do whatever it would like to do, including run the school without affiliation. It is an obligation of respondents to remain always au fait qua running and functioning of all schools in the Union Territory of Jammu and Kashmir and take stern action there and then, so as to arrest such delinquencies, or else future of students will remain in uncertainty.
19. Registry to send copy of this judgement to the Chief Secretary, Union Territory of J&K; Commissioner/Secretary to Government, Education Department; J&K; and Chairman, J&K Board of School Education, for necessary action as also identifying and taking stern action against the delinquents, given the observations made herein above.
20. Registry shall also maintain index of this file.
(Tashi Rabstan) Judge Srinagar 28.09.2020 Ajaz Ahmad, PS Whether the order is reportable: Yes AJAZ AHMAD 2020.09.28 11:54 I attest to the accuracy and integrity of this document