K. Vinod Chandran, J.

1. The appeal is by the Central Board of Secondary Education [for brevity "CBSE"] and the challenge is against the directions issued by the learned Single Judge for consideration of the affiliation of the school, of which the writ petitioner is the Manager. The learned Single Judge found that Exhibit P9 application for affiliation was preferred by the writ petitioner before Exhibit P12 amendment and that Exhibit P10 judgment had directed the consideration of the petitioner's application for affiliation without insisting for No Objection Certificate [for brevity "NOC"] from the State Government. The argument raised by the CBSE that affiliation can be considered only if the petitioner had recognition till Standard VIII from the State Government was negatived relying on the decision in Bharathiya Vidya Bhavan v. State of Kerala [2009 (2) KLT 1003]. The Division Bench in the cited decision was found to have held; the condition that only running recognized schools under the Kerala Education Rules could apply for NOC for the purpose of affiliation to CBSE and ICSE was illegal and unreasonable. The further contention with respect to Rule 15(9) and 15(10) was rejected on the ground that the writ petitioner was disabled from making an application since NOC from the State Government was to be accompanied with the application and that the State Government had issued specific orders to its subordinate officers not to issue any NOC. It was also held that there is no stipulation that petitioner should have recognition for all classes conducted by it before an application for affiliation is made and such a prescription would be unreasonable and unjustified.

2. We have heard Sri.Nirmal S., learned Standing Counsel appearing for the CBSE and Sri.Mohan Jacob George appearing for the Manager-1st respondent in the appeal.

3. The learned Standing Counsel for CBSE-appellant argued that the learned Single Judge failed to notice that the judgment at Exhibit P10, did not at all negative the requirement of a NOC. It is argued that the respondent's school had recognition from the Government only upto Standard IV and for starting Standard V there should have been provisional affiliation or an approval of the Middle Class Syllabus [for brevity "MCS"] taken as per affiliation bye-laws of the CBSE. As far as Standards VI,VII, IX and XI, without formal permission of affiliation, no school is permitted to start the CBSE pattern classes. Reliance is also placed on a Division Bench judgment of this Court reported in CBSE v. V.M.Public School [2019 (3) KHC 338 (DB)].

4. The learned Counsel for the management, however, contends that the 1st respondent's school is a minority institution and there is no requirement to obtain a recognition under the Right of Children to Free and Compulsory Education Act, 2009 [for brevity "RTE Act"] from the State Government. This position has been clarified by this Court in the decision reported in State of Kerala & Ors. v. Manager, Mahatma Public School & Ors. [2019 (4) KHC 209 (DB)] It is reiterated that the 1st respondent could not make an application for reason of there being no NOC issued by the State as a policy. As a matter of practice, running schools, whether they are affiliated to a Board or not, has been granted affiliation by the CBSE is the contention; which is strongly refuted by the learned Standing Counsel.

5. On facts, it has to be noticed that Exhibit P1 is the recognition obtained by the writ petitioner from the State Government. Exhibit P1 grants recognition only for Standards I to IV. Though the recognition was obtained by Exhibit P1 dated 09.11.2015, there was no application made to the CBSE for affiliation. Exhibits P2 and P4 indicate that the 1st respondent-writ petitioner had sought affiliation from the ICSE and not from the CBSE. Only on 18.06.2016, as is seen from Exhibit P4(a) a communication of the petitioner dated 23.11.2016, an application for CBSE affiliation was submitted.

6. The petitioner is also seen to have moved this Court with W.P.(C) No.37271 of 2016, in which Exhibit P10 judgment was passed. The judgment only directed consideration of the application of the petitioner within two months. As has been rightly pointed out by the CBSE, there is no direction that the consideration be made without a NOC. The learned Single Judge who disposed of the writ petition by Exhibit P10, merely recorded the petitioner's contention that as of now the grant of a NOC by the State is not mandatory as per the bye-laws of the CBSE. The CBSE, in consideration of the application of the petitioner, had rejected the same by Exhibit P11 dated 16.03.2017, which was challenged in the writ petition. This was also followed up with Exhibit P20, which directed the petitioner to produce the recognition of the State Government upto Standard VIII.

7. In Manager, Mahatma Public School (supra), this Bench itself found that, for minority institutions the RTE Act is not applicable. However, in the matter of affiliation from recognised boards of examination, it was held that, even minority institutions have to comply with the terms of the affiliating body/board. As far as the present case is concerned, the Affiliation Bye-laws of the CBSE prior to 2018 is applicable. The Affiliation Bye-laws, by Rule 3 under Chapter-II, provides that the school seeking provisional affiliation with the Board must have formal prior recognition of the State/U.T. Government. In Manager, Mahatma Public School (supra), it was also held that both recognition and NOC from the State Government need not be obtained, since, as of now the State Government is issuing recognition after verifying the affiliation norms of the respective Boards of Examination. Recognition hence is mandatory in accordance with the bye-laws whether it be prior to 2018 or the presently existing one, framed in 2018.

8. We have to pertinently reiterate that Ext.P1 recognition obtained from the Government, by the respondent herein, is only for Standards up to I to IV. The respondent school is said to be carrying on Standards I to VIII, which as per the bye-laws of the CBSE is included in the MCS.

9. Looking at the bye-laws prior to 2018, 'affiliation' is defined as formal enrolment of a school among the list of approved schools of the Board following prescribed/approved courses of studies up to Standard VIII as well as those preparing students, according to the prescribed courses for the Board's examinations. The Board examinations are conducted in the Xth Standard and XIIth Standard. The bye-laws speak of affiliation of Middle Class Schools, Secondary Schools and Senior Secondary Schools. Middle Class Syllabus (for brevity "MCS") is specifically defined under Rule 2 (xix), which is the syllabus approved by the Board for Standards upto VIII on the pattern of syllabus/guidelines for these classes given by N.C.E.R.T. Secondary School refers to Standards IX & X and Senior Secondary to Standards XI & XII.

10. We think it apposite to extract Chapter-III, Clause 151(a), (c), 2, 7, 9 and 10, hereunder:

"15. Submission of Applications for Affiliation and Follow-up Action-

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 form along with 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. Applications submitted by post or by any other means will not be processed.

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(c) Schools seeking fresh affiliation with the Board may apply for approval of middle class syllabus in the year preceding the year in which class VI is proposed to be started except in case of switch over from other recognised Boards in India.

2. Before applying, the school should ensure that it fulfils the essential requirements of affiliation as given in Rule 3(3) of Chapter-II. No application will be considered in case the essential requirements are not fulfilled by the school.

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7. The approval of middle class syllabus shall be subject to the conditions that the school will make fresh applications for provisional affiliation for the Secondary classes or Senior Secondary classes on the prescribed form in accordance with the Bye-laws and conditions for Provisional Affiliation/ Upgradation when Class VIII or X has started.

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9. No school is permitted to start CBSE Pattern Classes VI/IX/XI as the case may be without obtaining formal permission of affiliation of the CBSE. Any school who violates the condition would be disqualified for a period of two years.

10. Request for getting approval of Middle Class Syllabus/ Provisional Affiliation for Secondary/ Senior Secondary Classes should be made when Class V/VIII/X as the case may be, has been started in the school."

11. The application of schools fulfilling the norms of affiliation given in Chapter-II for approval or provisional approval of MCS/secondary/up-gradation to Senior Secondary Classes has to make the applications before 30th June of the year preceding the year in which Standards VI, IX, and XI are proposed to be started. The schools seeking fresh affiliation also has to apply for approval of MCS in the year preceding the year in which Standard VI is proposed to be started. Hence a School for the purpose of affiliation has to make an application for approval of Middle Class syllabus, first before the start of Class VI. Then an application for provisional affiliation of Secondary before IXth Standard is commenced and last an application for provisional affiliation of Senior secondary before commencing XIth Standard.

12. In the instant school, it is said that classes are already commenced till VIIIth Standard. Hence, the students studying in the VIIIth Standard as on the academic year 2019-20 would have been studying in the Vth standard in 2016-17. The application to the CBSE is said to have been made on 23.11.2016 (Exhibit P4) in the year preceding the commencement of classes in the VIth Standard i.e academic year 2017-18. The time frame is perfectly in consonance with the bye-laws. But, however, the school does not fulfil the norms of affiliation given in Chapter-II. Herein, specifically, recognition obtained from the State Government for starting Standards between I to VIII should have been obtained. The School had obtained recognition of the State Government to start a school with Standards from I to IV.

13. We also have to pertinently notice sub-rules 7, 9 and 10 of Chapter-III of Rule 15 of the bye-laws which we have extracted herein-above.

14. As per sub-rule 9, no school is permitted to start the CBSE pattern Standards VI, IX and XI, as the case may be, without obtaining formal permission of affiliation of the CBSE. Request for getting approval of MCS/provisional affiliation for Secondary/Senior Secondary classes should also be made when classes V, VIII and X, as the case may be, has been started in the school. This indicates that, before Standard VI is commenced, MCS approval has to be obtained, before starting Standard IX provisional affiliation for Secondary classes has to be obtained and before commencement of Standard XI provisional affiliation for Senior Secondary classes has to be obtained.

15. We are, in this case, concerned only with the MCS approval and the provisional affiliation for Secondary classes. The respondent has started Standards V and VIII without such approval of syllabus and provisional affiliation obtained from the CBSE. As we noticed, Exhibit P10 judgment is of no consequence, since the recognition of the State Government, which is a mandatory requirement under the bye-laws, was obtained by the school to commence only class I to IV. There could be no CBSE affiliation and not even an approval of Middle Class Syllabus, sought for with the said recognition from the Government. Even if the respondent is a minority institution, since the mandate for recognition of the State Government is one flowing from the bye-laws of the Board itself and not under the RTE Act; it has to be scrupulously followed.

16. The learned Counsel for the first respondent further submits that the said respondent has already applied for a recognition from the State Government and it would be received in one or two weeks. This recognition could only be prospective and the first respondent school would be entitled to make an application for affiliation which can have application only from the next academic year.

17. We, here, no

tice the 2018 Affiliation Bye-laws also. Chapter II, Rule 2.2., specifically categorises affiliation into: Approval for MCS, General Affiliation of a Secondary School or Senior Secondary School, up-gradation of a school approved for MCS up to Secondary or Senior Secondary level, up-gradation of an affiliated Secondary School up to Senior Secondary level and switch over of Schools up to Secondary and Senior Secondary level. The recognition from the respective State Governments is also a stipulation in the existing bye-laws as per Rule 2.3.4. We, pertinently, notice Appendix-VI of the bye-laws. Appendix-VI indicates that even existing schools can apply for such affiliation, provided, no admissions are made to Standard VIII. The petitioner would do well to discontinue Standard VIII and make an application for affiliation, if at all the recognition is obtained from the State Government. We leave liberty to the petitioner to approach the CBSE for affiliation, which, definitely, can only be prospective. With respect to the affiliation as directed by the learned Single Judge on the application filed in the year 2016, we have to find that the absence of a recognition from the State Government dis-entitles the consideration of affiliation under the bye-laws as existing at the time of application. We, hence, allow the Writ appeal setting aside the judgment of the learned Single Judge. Parties are left to bear their respective costs.