SLP (Civil) Nos. 18475-18476 of 2013 etc. etc.                                                    Page 1 of 13    

REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

SPECIAL LEAVE PETITION (C) NOS. 18475-18476 OF 2013  

State of Kerala & Anr.     …..Petitioners  

Vs.  

Mythri Vidya Bhavan English M. Sch. & Ors. …..Respondents  

WITH  

SLP(C) Nos. 4531-4532/2014, SLP(C) No.  

4530/2014, SLP(C) Nos. 23142-23146/2013, SLP(C)  

Nos.23138-23140/2013, SLP(C) Nos. 29655-

29658/2013, SLP(C) Nos. 29781-29783/2013,  

SLP(C) Nos. 29560-29561/2013, SLP(C) Nos.  

33438-33439/2013, SLP(C) Nos. 29660-29662/2013,  

SLP(C) Nos. 83-86/2014, SLP(C) Nos. 31934-

31936/2013, SLP(C) Nos. 79-80/2014, SLP(C) No.  

39339/2013, SLP(C) No. 37208/2013, SLP(C) Nos.  

76-77/2014, SLP(C) No. 81/2014, SLP(C) No.  

82/2014, SLP(C) Nos. 4534-4536/2014  

JUDGMENT  

Madan B. Lokur, J.  

1. The fundamental right to free and compulsory education to all  

children between the age of 6 and 14 years postulates good quality  

education and not just education for the sake of providing education.  

Regulation of such education is permissible by law and not by

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executive fiat. Unfortunately, in this batch of petitions, the State of  

Kerala seeks to impose its authority over schools that provide  

apparently quality education, which is perceived to be a threat to the  

public education system in the State.   

2. The challenge by the State of Kerala in this batch of petitions is  

to the judgment and order dated 14th September, 2012 passed by a  

Division Bench of the High Court of Kerala. In our opinion, all these  

petitions deserve to be dismissed.  

Brief background  

3. Without going into any great detail into the history (which is  

replete with litigation – as if schools have nothing better to do) leading  

up to these petitions, it needs to be said that the affiliation of schools by  

the Central Board of Secondary Education (CBSE) is governed by its  

Affiliation Bye-laws.  Clause 3(i) of the Bye-laws mandates formal  

prior recognition by the State/Union Territory Government.   

Additionally, the application for affiliation should be forwarded by the  

State Government or there should be a No Objection Certificate (NOC)  

to the effect that the State Government has no objection to the  

affiliation of the school with the CBSE.   

4. Apparently with this in mind, the State of Kerala issued certain  

guidelines on 13th June, 2007 limiting consideration of applications for

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grant of an NOC to 5 northern districts in the State. The Government  

Order (G.O.) was challenged by the management of some schools and  

it was set aside by the High Court.  

5. Against the decision rendered by the High Court, petitions for  

special leave to appeal were filed by Kerala which were taken up for  

consideration on 18th July, 2011. By that time, Kerala had come out  

with a new policy dated 10th June, 2011 which made the petitions  

infructuous. The relevant extract of the order passed by this Court on  

18th July, 2011 reads as follows:   

“Delay condoned.  

The State Government has filed these SLPs challenging the  

order of the High Court directing consideration of the  

applications filed by the respondents for grant of ‘no objection  

certificate’ for seeking affiliation with Central Board of  

Secondary Education (for short ‘CBSE’) for a new  

institution/existing institutions. The State Government had  

earlier rejected the request with reference to the Policy of the  

State Government then in force.  

When the matter came up today, both sides submitted  

that the State Government has now made a new Policy  

contained in G.O.(MS) No.137/2011/G. Edn. dated 10.6.2011  

which reads as under:  

“Government are pleased to accord sanction for issuing  

No Objection Certificate for getting CBSE/ICSE  

affiliation to schools, which totally fulfils the norms and  

conditions prescribed by CBSE/ICSE and having own  

land and basic facilities.  

Further guidelines will be issued by the Department in  

due course.”  

In view of the said Policy, it is submitted that these  

SLPs by the State Government have become infructuous as the  

State Government will have to consider the applications of the

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respondents with reference to the said new Policy dated  

10.6.2011 and pass appropriate orders within three months  

from today.  

It is needless to say that if the respondents-applicants  

are aggrieved by any order passed on such consideration, they  

will be entitled to challenge the same in accordance with law.  

           …………….”  

6. It is significant to note that the last line of the G.O. dated 10th  

June, 2011 stated that further guidelines would be issued by the  

concerned department in due course.  

7. These further guidelines as postulated by the G.O. dated 10th  

June, 2011 came to be issued on 7th October, 2011. These (new)  

guidelines were not supplementary but a completely extra set of  

guidelines that prescribed norms for the grant of an NOC to new  

schools for affiliation to CBSE and for existing schools for renewal of  

affiliation under the CBSE Affiliation Bye-laws. According to learned  

counsel for the schools, this was quite unexpected and unnecessary  

8. Be that as it may, the management of several schools objected to  

some of the guidelines.  The objections were to the following  

guidelines:  

“iv. The institution should have minimum 3 acres of land, out  

of which at least 2 acres shall be in the actual location where  

the school is functioning in a contiguous manner. It should  

have adequate playground also. There should be a library and  

adequate number of laboratories.

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vi. The medium of instruction must be English. However  

Malayalam will be compulsorily taught as a paper with a  

prescribed text book and a proper academic evaluation as  

instructed by State Government from time to time.  

viii. The school shall appoint only qualified and eligible staff  

and must pay the salary and allowances and other benefits to  

the employees of the school. Employees in the CBSE/ICSE  

school shall be offered the same pay scales as in Government  

Schools for equivalent categories. The pay shall start at the  

minimum of the scale and employees shall be eligible for DA  

and increments as is allowed in Government Schools from time  

to time.  

xiv. The school should have been in existence for a period of  

five years as on the date of application for NOC and should  

have at least 300 students in its rolls. The UIID enrolment  

should be completed and UIID numbers of the students  

enrolled in the school shall be furnished.”  

9. These guidelines were challenged by some schools by way of  

writ petitions in the High Court. A learned Single Judge of the High  

Court heard the writ petitions challenging the G.O. of 7th October, 2011  

and by an interim order passed on 20th April, 2012 stayed the operation  

of guidelines (iv) and (xiv).  

10. Kerala filed a writ appeal challenging the order of the learned  

Single Judge and upon hearing learned counsel, the Division Bench  

was of the view that the decision in the writ appeal would render all the  

pending writ petitions before the learned Single Judge infructuous.   

Therefore, with the consent of all the parties to the litigation, it was  

decided that all the writ petitions and the writ appeal should be heard  

by the Division Bench so that there is some finality to the dispute.

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11. By the impugned judgment and order dated 14th September,  

2012, the High Court struck down clause (iv) and (xiv) of the  

guidelines dated 7th October, 2011 and it is under these circumstances  

that the present petitions have been filed by Kerala and taken up for  

consideration.  

12. At the outset, we may note that although initially four guidelines  

were under challenge before the learned Single Judge but before us it  

was stated by learned counsel for school managements that they do not  

press the challenge to guidelines (vi) and (viii).  We are, therefore,  

concerned only with guidelines (iv) and (xiv) pertaining to a school  

seeking affiliation requiring minimum 3 acres of land and a minimum  

300 enrolled students.  

Requirement of minimum 3 acres of land  

13. According to Kerala, a school seeking an NOC for affiliation to  

the CBSE must have 3 acres of land out of which 2 acres should be  

contiguous and in the actual location of the school.  We have not been  

shown any basis for this mandate, applicable to all schools across the  

board.  

14. On the other hand, the CBSE appears to have done its homework  

in framing the Affiliation Bye-laws and making a realistic assessment  

of the requirements of schools depending on their location.  

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15. In Chapter IV of the Kerala Education Rules, 1959 (for short  

‘KER’), we have been informed by learned counsel for Kerala that it is  

provided that Upper Primary Schools with or without Lower Primary  

Section (that is up to and including Standard V and VI), the land  

requirement (as informed) is 1.2 to 2 hectares (3 to 5 acres); for  

Secondary Schools the land requirement is 1.2 to 2 hectares (3 to 5  

acres) and for Higher Secondary Schools the land requirement is 1.2  

hectares (3 acres). Hence the minimum requirement is of 3 acres of  

land.  However, the KER provides that every school should normally  

have a minimum site area as indicated above.   

16. Contrast this with the CBSE Affiliation Bye-laws.  Under these  

Bye-laws, the minimum land requirement varies from location to  

location. The requirement generally for an educational institution to  

apply to the CBSE for affiliation is that the school must have 2 acres of  

land but there are certain exceptions. For example, in cities with a  

population exceeding 25 lakhs the land should not be less than 1 acre  

with adequate building and arrangement with other  

institution/organization for imparting physical and health education and  

for conducting games to the satisfaction of the CBSE. In hilly areas, the  

land should not be less than 1 acre and the norms as prescribed by the  

Planning Commission would be applicable for determining hilly areas.

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17. Similarly, in schools located within the Municipal limit of the  

capital cities, islands, North Eastern States and Jammu & Kashmir the  

minimum land requirement shall be 1 acre. In other words, the CBSE  

has introduced a degree of flexibility depending upon the location of  

the school. Unfortunately, Kerala has not even thought of providing  

any such flexibility.  It appears to us that the rigid requirement of  

Kerala indicates that it is imposed upon the schools that seek affiliation  

with the CBSE only with a view to unnecessarily burden them with an  

onerous and arbitrary condition, since Kerala believes it has the  

authority to do so.   

18. Keeping all this in mind, we had required Kerala by an order dated  

6th December, 2016 to inform us the number of schools run by the State  

Government or aided by the State Government or affiliated with the State  

Board that do not comply with the guidelines of 7th October, 2011. In  

response, Kerala filed an evasive affidavit to the effect that since the  

guidelines do not apply to such schools, there is no compulsion on such  

schools to comply with them. This is remarkable – guidelines are framed  

by Kerala for application by schools other than those run by the State  

Government or aided by the State Government or affiliated with the State  

Board. There is no reason given for this distinction drawn by Kerala  

which appears to be completely arbitrary.   

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19. It was submitted on behalf of Kerala that nevertheless the State  

Government was well within its rights and authority to provide for a  

minimum of 3 acres of land for the grant of an NOC. While this may be  

so, the requirement must have some rational basis but we are unable to  

find any such rational basis.  Even in the counter affidavit filed before  

the learned Single Judge it is stated by Kerala that restrictions have  

been placed on CBSE schools to prevent their mushrooming growth  

which would affect the public education system in the State. No details  

have been given for arriving at this conclusion.  But the very fact that  

there is a mushroom growth of CBSE schools is an indication that the  

public education system in Kerala as managed by the State Government  

leaves something to be desired in terms of the quality of the education.   

How does the restriction imposed by Kerala benefit the children of the  

State?  

20. As mentioned above, the CBSE has done its homework well and  

has taken a pragmatic view of the requirement of land.   We can take  

judicial notice of the fact that in metropolitan and capital cities as well  

as in hilly areas, it would be difficult to get 3 acres of land or even 2  

acres of land.   Similarly, due to the terrain it would perhaps be difficult  

to get adequate land in the North Eastern region of the country as well  

as in Jammu & Kashmir. This realism deserves to be contrasted with

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non-realistic inflexibility of Kerala which too has some hilly areas  

where perhaps it might be difficult to find 3 acres of land. It is this lack  

of pragmatism and arbitrary rigidity that has weighed with the High  

Court as well as with us in coming to the conclusion that guideline (iv)  

requiring a minimum of 3 acres of land for obtaining an NOC for  

getting affiliation in accordance with the Affiliation Bye-laws of the  

CBSE is arbitrary and was deservedly struck down by the High Court.  

Minimum enrolment of 300 students  

21. The second challenge is with reference to the minimum strength  

of students being 300 in a school that seeks affiliation with the CBSE in  

terms of guideline (xiv).  

22. At this stage, it may be mentioned that in Queen Mary Public  

School v. State of Kerala1 the High Court held that the requirement of  

500 students on the rolls for affiliation of the school from Standard I to  

Standard X is contrary of the CBSE Affiliation Bye-laws and is not  

rational or sustainable. Notwithstanding this, Kerala has insisted on the  

number of students on the rolls being at least 300 for the issuance of an  

NOC.  Since there is no such requirement under the CBSE Affiliation  

Bye-laws - this is merely an unwarranted imposition by Kerala on  

school managements.  

                                                           1 (2007) 4 KLT 706

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23. The question of affiliation with the CBSE would arise only when  

the school reaches at least Standard VI. In this regard, clause 15.1(a) of  

Chapter III of the Affiliation Bye-laws is relevant and this provides as  

follows:   

“15.1.(a) The schools fulfilling the norms of Affiliation given  

in Chapter-II may apply ‘On-line’ to the Board for approval of  

Middle Class Syllabus/provisional affiliation for secondary/  

upgradation of Senior Secondary Classes on the prescribed  

from alongwith prescribed fee given in Appendix II before 30th  

June of the Year preceding the year in which Class VI/IX/XI as  

the case may be is proposed to be started. Application Forms,  

procedural details and Affiliation Bye-Laws for submission of  

applications ‘on line’ are available on the Boards website  

www.cbse.nic.in. Application submitted by post or by any  

other means will not be processed.  

All the applications which are received by CBSE on or before  

30th June every year may be processed together within a period  

of six months thereof. The order of granting or refusing the  

affiliation shall be communicated to the applicants on or before  

31st December of that year.”  

24. The High Court took the view that progressive stages of  

affiliation has a rational basis while the prescription of having a  

minimum of 300 students for obtaining an NOC does not have any such  

basis. Again, we do not find any reason for this requirement in the  

counter affidavit filed by Kerala in the High Court except that it has the  

authority to make such a prescription.  

25. The illustration given by the High Court in this regard is  

apposite.  The Right of Children to Free and Compulsory Education  

Act, 2009 (the RTE Act) requires a student-teacher ratio of 30:1.  A

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school having 30 children in one class and having one division will  

have only 180 students upto and including Standard VI.   Such a school  

cannot, therefore, obtain provisional affiliation for secondary or senior  

secondary classes.  Actually, such a school would not be eligible for  

affiliation till Standard X when it has 300 students – and it can never  

reach that stage since Standard IX and X can be started only if the  

school has CBSE affiliation.  Kerala is, therefore, expecting an  

impossibility from such schools that strictly conform to the provisions  

of the RTE Act.  

26. On the other hand, under the KER the minimum effective  

strength per standard in Lower Primary/Upper Primary and High  

Schools is 25 students (it would now have increased to 30 students). It  

is only for schools seeking CBSE affiliation that it is prescribed that the  

number of students should not be less than 300.  We do not see how, if  

the number of students is less than 300, it will detract from the quality  

of education imparted to the students. In other words, the requirement  

of a minimum strength of 300 students is a completely arbitrary figure  

arrived at by Kerala and which has no rational nexus with quality  

education or the CBSE Affiliation Bye-laws.  

27. According to learned counsel for Kerala, if a school does not  

have a minimum of 300 students, it would be difficult for that school to

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pay the required wages of the staff and the teachers except by charging  

exorbitant fees. There is no material on record to substantiate such a  

conclusion and it is based merely on the ipse dixit of the State. In the  

absence of any material on record justifying the fixation of a minimum  

of 300 students in a school seeking an NOC for affiliation to the CBSE,  

we must hold the requirement as arbitrary and we do so.  

28. Another issue raised by the management of schools is with  

regard to the compulsory unique identification (UID) for enrolment of  

students. We leave this issue open, as suggested by learned counsel, to  

await the decision of Constitution Bench of this Court which is  

presently seized of the requirement of UID.  

29. For the aforesaid reasons, we find no merit in these petitions  

which are accordingly dismissed. The interim applications stand  

disposed of.  

      ..………………………J  

     (Madan B. Lokur)   

         New Delhi                                                        .……………………J  

May 2, 2018     ( Deepak Gupta )