Recognition of CBSE schools: Govt needn't consider education need, says HC

KOCHI: State government cannot stipulate that there must be educational need in an area to grant recognition for schools affiliated to CBSE or ICSE, the Kerala High Court has held. The court said such a stipulation in Right to Education Act (RTE) is for the government to set up schools where needed and that it cannot be used to prevent establishing a private school.

The ruling was given by justice A Muhamed Mustaque was after considering a batch of petitions (WP-C No. 31912/2014 and others) filed by managements of schools questioning government's insistence that recognition would be granted only if there is educational need in the area where the school is running or proposed.

Schools that approached the high court included those proposing to establish high schools affiliated to CBSE or ICSE and schools seeking recognition upto elementary schools under CBSE, ICSE, or State syllabus. Some of the schools were established prior to RTE (or Right of Children to Free and Compulsory Education Act, 2009) came into existence whereas some were established after it. None of them had recognition from the state government and when they applied, government had refused to grant it.

While denying recognition, the government took the stand that recognition could be granted only if a school fulfilled the norms and standards within the time limit prescribed by it. No schools can be established in the state without any assessment of education need of the area, government had stipulated.

Special government pleader Asif MA argued in court that recognition cannot be granted without assessing the educational need as per RTE Act. Schedule to RTE Act is vague and the Parliament has left to the discretion of the state government to adopt necessary norms for granting recognition, he argued.

The court said such a view is untenable and pointed out that it is nowhere stated in RTE that educational need is to be assessed for granting recognition. In the absence of relegating any power, the government cannot claim that the Parliament has left it to its discretion to adopt necessary norms, the court said.

In the judgment, the court said, "The power conferred on State Government under Section 38(2) of the Act is to issue such guidelines to implement the statutory provisions of the Act. No other power is given to State Government other than the power for issuing guidelines to implement the provisions of the Act. No rule making power is conferred on the State Government under Section 38 for assessment of educational need as a precondition to grant recognition."

Scope of assessing the educational need arises only if the state government feels that there are no elementary schools established in an area, the court added. Government has to conduct school mapping to determine the location of the school in such an area. The statutory provision in RTE Act obligates the state government or the local authority to establish as school if no schools as per the norms in RTE Act are there in an area after mapping is done, the court said.

"Viewed from the above angle, it can be seen that assessment of educational need is only for the purpose of compelling Government or local authority to establish schools and not as a precondition for establishing such schools," the judgment stated.

Through the judgment, the court also held that minority schools are required to obtain recognition from the state government for running schools affiliated to CBSE or ICSE. Some of the schools had contended that no recognition is required and had relied on a 2014 Supreme Court decision (Pramati Educational and Cultural Trust vs. Union of India). For the purpose of obtaining affiliation from CBSE, government is bound to issue NOC, the schools had argued.

However, the court held that the apex court's decision is only limited to the rights of minority to admit and manage schools in terms of Article 30(1) of the Constitution. Stating that the apex court's decision cannot be considered as a precedent regarding applicability of RTE Act with regard to granting recognition by state government, the court said in the judgment, "In that view of the matter, I am of the view that minority schools are also bound to obtain recognition from the State Government under Act 35 of 2009 (RTE Act)."