STATE OF KERALA & ANR.versusMYTHRI VIDYA BHAVAN ENGLISH M. SCH. & ORS.

686                       [2018]
               SUPREME COURT     5 S.C.R. 686
                              REPORTS                      [2018] 5 S.C.R.


A                        STATE OF KERALA & ANR.
                                        v.
           MYTHRI VIDYA BHAVAN ENGLISH M. SCH. & ORS.
             (Special Leave Petition (C) Nos. 18475-18476 of 2013)
B                                MAY 02, 2018
            [MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
            Education/Educational Institutions:
             Kerala Education Rules, 1959: Affiliation of the schools with
C     the CBSE – No Objection Certificate (NOC) from the State
      Government for CBSE affiliation – Guidelines postulated by the
      GO dt 10.06.2011 – Guidelines (iv) and (xiv) requiring minimum 3
      acres of land and minimum 300 enrolled students – Challenge to –
      Held: 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 –
D
      Thus, the 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 – Requirement of a
      minimum strength of 300 students has no rational nexus with quality
      education or the CBSE Affiliation Bye-laws – In the absence of any
E     material on record justifying the fixation of a minimum of 300
      students in a school seeking an NOC for affiliation to the CBSE,
      the said requirement is also arbitrary.
            Dismissing the petitions, the Court
            HELD: 1.1 In Chapter IV of the Kerala Education Rules,
F     1959, 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
G     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.
      [Para 15] [693-H; 694-A-B]
           1.2 Under the CBSE Affiliation Bye-laws, the minimum
H     land requirement varies from location to location. The
                                        686
   STATE OF KERALA & ANR. v. MYTHRI VIDYA BHAVAN                         687
               ENGLISH M. SCH. & ORS.

requirement generally for an educational institution to apply to         A
the CBSE for affiliation is that the school must have 2 acres of
land but there are certain exceptions. 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 for
imparting physical and health education and for conducting games
                                                                         B
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.
[Para 16] [694-B-D]
      1.3 Similarly, in schools located within the Municipal limit
of the capital cities, islands, North Eastern States and Jammu &         C
Kashmir the minimum land requirement shall be 1 acre. 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. The rigid requirement of Kerala
indicates that it is imposed upon the schools that seek affiliation      D
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. [Para 17] [694-D-E]
      1.4 The State of Kerela was asked to inform the number of
schools run by the State Government or aided by the State                E
Government or affiliated with the State Board that do not comply
with the guidelines of 7.10.2011. 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. Guidelines are framed by Kerala for application
by schools other than those run by the State Government or aided         F
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. [Para 18] [694-F-H]
       1.5 There was no rational basis for the requirement of a
minimum of 3 acres of land for the grant of an NOC. Even in the          G
counter affidavit filed before the 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       H
688            SUPREME COURT REPORTS                       [2018] 5 S.C.R.


A     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. [Para 19]
      [695-B-C]
             1.6 Judicial notice is taken of the fact that in metropolitan
B     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 non-realistic
      inflexibility of Kerala which too has some hilly areas where perhaps
C     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 this Court 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
D     Bye-laws of the CBSE is arbitrary and was deservedly struck
      down by the High Court. [Para 20] [695-D-F]
             2.1 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
E     any such basis. [Para 24] [696-F]
            2.2 The Right of Children to Free and Compulsory Education
      Act, 2009 requires a student-teacher ratio of 30:1. A 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,
F     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
G     to the provisions of the RTE Act. [Para 25] [696-G-H; 697-A]
            2.3 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
H     that the number of students should not be less than 300. It cannot
   STATE OF KERALA & ANR. v. MYTHRI VIDYA BHAVAN                          689
               ENGLISH M. SCH. & ORS.

be said that if the number of students is less than 300, it will          A
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. [Para 26] [697-B-C]
                                                                          B
       2.4 According to the State, if a school does not have a
minimum of 300 students, it would be difficult for that school to
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   C
the fixation of a minimum of 300 students in a school seeking an
NOC for affiliation to the CBSE, the requirement is arbitrary.
[Para 27] [697-D-E]
      Queen Mary Public School v. State of Kerala (2007) 4
      KLT 706 – referred to.                                              D

                        Case Law Reference
      (2007) 4 KLT 706             referred to           Para 22
      CIVIL APPELLATE JURISDICTION: Special Leave Petition
(C) Nos. 18475-18476 of 2013.                                             E
      From the Order dated 14.09.2012 of the High Court of Kerala at
Ernakulam in WA No. 1042 of 2012 and WPC No. 32928 of 2011
respectively
                               WITH
                                                                          F
      SLP (C) Nos. 4531-4532 and 4530 of 2014
      SLP(C) Nos. 23142-23146, 23138-23140, 29655-29658,
      29781-29783, 29560-29561, 33438-33439, 29660-29662 of 2013
      SLP (C) Nos. 83-86 of 2014
      SLP (C) Nos. 31934-31936 of 2013                                    G
      SLP (C) Nos. 79-80 of 2014
      SLP (C) Nos. 39339 and 37208 of 2013
      SLP (C) Nos. 76-77, 81, 82 and 4534-4536 of 2014.

                                                                          H
690             SUPREME COURT REPORTS                            [2018] 5 S.C.R.


A             Aman Lekhi, ASG, Jaideep Gupta, Jayant Bhushan, Kylashnath
      Pillai, V. Giri, Sr. Advs., C. K. Sasi, Ms. Nayantara Roy, Manukrishnan
      G., Sajith P., Prasanth P. R. Jayakrishnan, Tara Chandra Sharma,
      Ms. Neelam Sharma, Ms. Pankhuri Shrivastava, Mrs. V. S. Lakshmi,
      A. Venayagam Balan, Rajeev Sharma, D. N. Goburdhun, Vibhu Shanker
      Mishra, Deepak Goel, Gurmeet Singh Makker, Kuldeep Chauhan, Rajesh
B
      Mishra, Sajith P. Warrier, Jose Abraham, M. P. Srivignesh, B. Mathews,
      Sarah Shaji, E. M. S. Anam, Vijay Kumar, Chandan Kumar Mandal,
      Romy Chacko, Naveen R. Nath, Abhimanyu Verma, Jayant Mutraj,
      Mohammed Sadique T. A., Abraham, Anu K. Joy, Alim Anvar, Nishe
      Rajen Shonker, Renjith B., Ms. Lakshmi N. Kaimal, Anubhav Anand
C     Pandey, Krishnadas Villadath, K. Rajeev, A. Raghunath, C. K. Sasi,
      Raghenth Basant, Ms. Aanchal Tikmani, Mithun Vergis, Badusha
      Suleman, Senthil Jagadeesan, Ranjith K. C., P. V. Dinesh, Sindhu T. P.,
      Bineesh K., Arushi Singh and Rajendra Beniwal, Advs. for the appearing
      parties.
D           The Judgment of the Court was delivered by
             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
E     and not by 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
F     to the judgment and order dated 14th September, 2012passed 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
G     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
      theCentral 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
H
   STATE OF KERALA & ANR. v. MYTHRI VIDYA BHAVAN                               691
     ENGLISH M. SCH. & ORS. [MADAN B. LOKUR, J.]

or there should be a No Objection Certificate (NOC) to the effect that         A
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
grant of an NOC to 5 northern districts in the State. The Government           B
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       C
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          D
      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.                        E
         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            F
          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.”                                                             G
      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
      respondents with reference to the said new Policy dated 10.6.2011
      and pass appropriate orders within three months from today.              H
692            SUPREME COURT REPORTS                           [2018] 5 S.C.R.


A             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
B     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
C     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
D     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
E           number of laboratories.
            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.
F           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
G           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
H           shall be furnished.”
   STATE OF KERALA & ANR. v. MYTHRI VIDYA BHAVAN                                 693
     ENGLISH M. SCH. & ORS. [MADAN B. LOKUR, J.]

       9. These guidelines were challenged by some schools by way of             A
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        B
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.                C

      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.
                                                                                 D
        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         E
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             F
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
                                                                                 G
assessment of the requirements of schools depending on their location.
      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
                                                                                 H
694             SUPREME COURT REPORTS                           [2018] 5 S.C.R.


A     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.
B
             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
C     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
D     for determining hilly areas.
             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
E     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.
F
             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
G     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
H     by Kerala which appears to be completely arbitrary.
      STATE OF KERALA & ANR. v. MYTHRI VIDYA BHAVAN                              695
        ENGLISH M. SCH. & ORS. [MADAN B. LOKUR, J.]

       19. It was submitted on behalf of Kerala that nevertheless the            A
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. Evenin the counter affidavit filed before
the learned Single Judge it is stated by Kerala that restrictions have
                                                                                 B
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.         C
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   D
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 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        E
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.                                F
          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).
                                                                                 G
      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
1
    (2007) 4 KLT 706
                                                                                 H
696             SUPREME COURT REPORTS                           [2018] 5 S.C.R.


A     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.
B           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
C           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 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
D           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
E           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 hasa rational basis while the prescription of having a minimum
F     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
G     apposite. The Right of Children to Free and Compulsory Education Act,
      2009 (the RTE Act) requires a student-teacher ratio of 30:1. A 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
H
   STATE OF KERALA & ANR. v. MYTHRI VIDYA BHAVAN                                  697
     ENGLISH M. SCH. & ORS. [MADAN B. LOKUR, J.]

classes. Actually, such a school would not be eligible for affiliation till       A
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                 B
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            C
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          D
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,           E
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         F
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.
                                                                                  G
Nidhi Jain                                                 Petitions dismissed.




                                                                                  H