Allowed

Registered Unaided Private Schools Management Association Karnataka v. Union of India

Karnataka HC10 Mar 2023WP/1668/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed circulars mandating a uniform assessment for 5th and 8th standard students in State-syllabus schools, holding them contrary to Section 16 of the RTE Act and the mandatory procedure for rule-making under the Karnataka Education Act.

What did the court decide?

Writ of certiorari issued quashing Circular dated 12.12.2022, Circular dated 13.12.2022, and Circular dated 04.01.2023.

Registered Unaided Private Schools Management… — Education and Admissions | Karnataka HC (2023)

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WP No. 1668 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF MARCH, 2023 BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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WRIT PETITION NO. 1668 OF 2023 (EDN-RES) A/W WP NO..1699 OF 2023, WP NO.3636/2023 & WP NO.5017 OF 2023

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IN WP NO.1668/2023

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BETWEEN:

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REGISTERED UNAIDED PRIVATE SCHOOLS MANAGEMENT ASSOCIATION KARNATAKA @ A SOCIETY REGISTERED UNDER THE KARNATAKA SOCIETIES REGISTRATION ACT 1960 NO. 40, RING ROAD, NAGADEVANAHALLI, JNANABHARATHI POST, BENGALURU - 560 056 REPRESENTED BY ITS PRESIDENT SHRI LOKESHWARAPPA S

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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…PETITIONER

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(BY SRI. ANIRUDH A KULKARNI, ADVOCATE FOR SRI. NARAYAN BABU D N.,ADVOCATE)

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AND:

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UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF EDUCATION SHASTRI BHAVAN DR.RAJENDRA PRASAD ROAD NEW DELHI- 110 001

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STATE OF KARNATKA REPRESENTED BY ITS

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PRINCIPAL SECRETARY DEPARTMENT OF SCHOOL EDUCATION & LITERACY , M.S BUILDING DR. AMBEDKAR VEEDHI BENGALURU- 560 001

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COMMISSIONER OF PUBLIC INSTRUCTIONS DEPARTMENT OF SCHOOL EDUCATION & LITERACY GOVERNMENT OF KARNATAKA NRUPATHUNGA ROAD BENGALURU 560 001

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DEPARTMENT OF STATE EDUCATIONAL RESEARCH AND TRANING REPRESENTED BY ITS DIRECTOR NO.4, 100 FEET RING ROAD BANASHANKARI 3^RD STAGE BENGALURU - 560 085

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KARNATAKA SCHOOL EXAMINATION AND ASSESSMENT BOARD REPRESENTED BY ITS CHAIRPERSON 6^TH CROSS ROAD, MALLESHWARAM BENGALURU – 560 003

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…RESPONDENTS

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(BY SMT.NAYANATARA B.G., CGC FOR R-1, SRI DHYAN CHINNAPPA, ADDL.ADVOCATE GENERAL ALONG WITH SMT.PRAMODHINI KISHAN, AGA FOR R-2 TO R-5)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT SECTION 16 OF THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT,2009(AS AMENDED BY THE AMENDMENT ACT 2019) IS ULTRA VIRES THE PARENT LEGISLATION AND UNCONSTITUTIONAL ON ACCOUNT OF BEING VIOLATIVE OF ARTICLE 21 AND 21A OF THE CONSTITUTION OF INDIA, 1950 & ETC.

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IN WP NO.1699/2023

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BETWEEN:

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ORGANISATION FOR UNAIDED RECOGNISED SCHOOLS @ A SOCIETY REGISTERED UNDER THE KARNATAKA SOCIETIES REGISTRATION ACT, 1960 [ SPOORTHI VIDYANIKETAN SCHOOL NO.10, RAJAGOPAL REDDY EXTENSION CIL LAYOUT MAIN ROAD, CHOLANAYAKANAHALLI (HEBBALA) R.T.NAGAR POST, VISHWANTHA NAGENAHALLI 560 032 REPRESENTED BY ITS SECRETARY, SHRI N PRABHAKAR URS

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…PETITIONER

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(BY SRI.S SUDHARSAN.,ADVOCATE)

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AND:

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UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF EDUCATION, SHASTRI BHAVAN, DR. RAJENDRA PRASAD ROAD, NEW DELHI 110 001

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STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF SCHOOL EDUCATION & LITERACY, M.S BUILDING DR. AMBEDKAR VEEDHI, BENGALURU 560 001

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COMMISSIONER OF PUBLIC INSTRUCTION DEPARTMENT OF SCHOOL

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EDUCATION& LITERACY GOVERNMENT OF KARNATAKA NRUPATHUNGA ROAD, BENGALURU 560 001

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DEPARTMENT OF STATE EDUCATIONAL RESEARCH AND TRANING REPRESENTED BY ITS DIRECTOR NO. 4, 100 FEET RING ROAD, BANASHANKARI 3^RD STAGE BENGALURU 560 085

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KARNATAKA SCHOOL EXAMINATION AND ASSESSMENT BOARD REPRESENTED BY ITS CHAIRPERSON 6^TH CROSS ROAD, MALLESHWARAM BENGALURU - 560 003

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…RESPONDENTS

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(BY SMT.NAYANATARA B.G., CGC FOR R-1; SRI DHYAN CHINNAPPA ADDL.ADVOCATE GENERAL ALONG WITH SMT.PRAMODHINI KISHAN , AGA FOR R-2 TO R-5)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT SECTION 16 OF THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009 (AS AMENDED BY THE AMENDMENT ACT OF 2019) IS ULTRA VIRES THE PARENT LEGISLATION. & ETC.

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IN WP NO.3636 0F 2023 BETWEEN:

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SMT.GAYATHRI K.S W/O LATE NAGARAJU R AGED ABOUT 52 YEARS R/AT NO .60, 1^ST ‘E’ CROSS, 1^ST MAIN ROAD, NEAR NETHAJI CIRCLE, BENGALURU – 560 054.

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…PETITIONER

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(BY SRI. MANJUNATH A.,ADVOCATE)

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AND:

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STATE OF KARNATAKA REP BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, DEPARTMENT OF PRIMARY AND SECONDARY EDUCATION VIDHANA SOUDHA BENGALURU – 560 001

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PRINCIPAL SECRETARY DEPARTMENT OF SCHOOL EDUCATION & LITERACY, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BENGALURU – 560 001

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COMMISSIONER OF PUBLIC INSTRUCTION DEPARTMENT OF EDUCATION, NRUPATHUNGA ROAD, BENGALURU – 560 001

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DIRECTOR OF PUBLIC INSTRUCTION PRIMARY EDUCATION NRUPATHUNGA ROAD, BENGALURU – 560 001

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DIRECTOR OF PUBLIC INSTRUCTION SECONDARY EDUCATION, NRUPATHUNGA ROAD, BENGALURU -560 001

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THE SECRETARY KARNATAKA SCHOOL EXAMINATION AND ASSESSMENT BOARD GOVERNMENT OF KARNATAKA, 6^TH CROSS, MALLESHWARAM, BENGALURU – 560 003.

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7. DIRECTOR

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SAMAGRA SHIKSHANA KARNATAKA NEW PUBLIC OFFICES PREMISES, NRUPATHUNGA ROAD,

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BENGALURU – 560 001.

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…RESPONDENTS

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(BY SRI.DHYAN CHINNAPPA ADDL.ADVOCATE GENERAL ALONG WITH SMT.PRAMODHINI KISHAN, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO HOLD THAT THE CIRCULAR DATED 12/12/2022 (ANNEXURE-A) ISSUED BY R-3 IS REPUGNANT TO PROVISIONS OF THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009 & ETC.

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IN WP NO.5017 OF 2023

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BETWEEN:

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KARNATAKA UNAIDED SCHOOLS MANAGEMENTS ASSOCIATION A REGISTERED SOCIETY REPRESENTED BY ITS SECRETARY SRI.A.MARIYAPPA AGED ABOUT 80 YEARS (SENIOR CITIZENSHIP PRIORITY IS NOT CLAIMED) NO.427, 1^ST CROSS, 2^ND MAIN, VIDYAPEETA LAYOUT, T R NAGAR, BENGALURU - 560 028

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…PETITIONER

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(BY SRI.DHANANJAYA K V.,ADVOCATE & SRI.A.VELAN, ADVOCATES FOR SRI.PAWAN SHYAM A., ADVOCATE)

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AND:

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STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF SCHOOL EDUCATION & LITERACY, M.S. BUILDING,

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DR. AMBEDKAR VEEDHI, BENGALURU-560 001.

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COMMISSIONER OF PUBLIC INSTRUCTION DEPARTMENT OF SCHOOL EDUCATION & LETERACY, GOVERNMENT OF KARNATAKA NRUPATHUNGA ROAD, BENGALURU-560 001

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DEPARTMENT OF STATE EDUCATIONAL RESEARCH AND TRAINING REPRESENTED BY ITS DIRECTOR NO.4,100FT. RING ROAD, BANASHANKARI 3^RD STAGE BENGALURU 560 085

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KARNATAKA SCHOOL EXAMINATION & ASSESSMENT BOARD REPRESENTED BY ITS CHAIRPERSON 6^TH CROSS ROAD, MALLESHWARAM BENGALURU-560 003

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…RESPONDENTS

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(BY SRI.DHYAN CHINNAPPA, ADDL.ADVOCATE GENERAL & SMT.PRAMODHINI KISHAN, AGA FOR R-1 TO R-4)

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THIS WRIT PETITION FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED CIRCULAR DATED 12.12.22 BEARING NUMBER E- 870867-DPII-CPIOC7-2(PLM)/3/2022AND FURTHER CIRCULARS BEARING NO. E-9951/DSERT/EVG/5,8, THA. VA. PA.MAULYANKANA/22-23 DATED 13.12.22 AND NO. DPICPIOSATS(E-)/6/2022-SATS DATED 4.01.23 RESPECTIVELY (ANNEXURE-B) ON THE GROUND OF VIOLATING THE MANDATORY PROCEDURE PRESCRIBED IN SECTION 145 OF THE KARNATAKA EDUCATION ACT, 1983, AND FOR SUCH OTHER LEGAL INFIRMITIES DESCRIBED ABOVE & ETC.

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THESE WRIT PETITIONS ARE COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Common questions are involved in these batch of writ petitions. Hence, with consent of all parties, it is taken up together. The petitioners are unaided private school management association in three petitions and one petition is by the parent of the 5^th standard student studying in a Private School questioning the circulars issued by the respondents.

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The petitioners have sought relief to quash the circular dated 12.12.2022 bearing No.E-870867-DPII-CPIOC72(PLM)/3/2022, circular dated 13.12.2022 bearing No.E9951/DSERT/EVG/5,8 Tha.Va.Pa.Moulyankana/2022-23 and circular dated 04.01.2023 bearing No.DPI-CPIOSATS (E-)/6/2022-SATS respectively, as being violative of the mandatory procedure prescribed under Section 145 of the Karnataka Education Act, 1983 (for short ‘the Act’), Sections 16, 30 and 38(4) of the Right of Children to Free and Compulsory Education Act, 2009 (for short ‘the RTE’ Act) and for other legal infirmities urged in the pleadings and the grounds of the writ petitions.

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The main contentions of the learned counsel

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appearing for the petitioners are that the students of 5^th and 8^th standard cannot be subjected to or forced to appear or take-up the Board examination by the respondent-State without following the mandatory due process of law. It is also contended that the circular which is questioned herein is in total violation and disregard to Section 145 of the Act and so also in violation of Section 16 of the RTE Act and in gross violation of Sections 30 and 38(4) of the RTE Act. It is the contention of the petitioners that the circular issued on 12.12.2022 clearly mandates holding of a public examination for 5^th and 8^th standard in Schools registered under the Act following the State syllabus, though it does not very specifically say so in the circular but on overall reading of the circular, the form and substance and the procedure laid down in the circular for conducting the examination or assessment is by way of an external process which is in total contravention to Sections 16, 30 and 38 of the RTE Act.

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It is the contention of learned counsel Sri Dhananjay appearing on behalf of the petitioners in WP.No.5017/2023 that the circular pertains to annual

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exam/evaluation for 5^th and 8^th standard in all Schools of State syllabus for the academic year 2022-2023. Therefore, the circular is applicable to only the Schools coming under the State syllabus and would not be applicable to other Schools which do not fall under the State syllabus category. Though the circular does not specifically state conducting of Board exam or Public exam, the content, procedure for conducting of examination, evaluation, setting of question paper, printing and distribution of admit card, evaluation centre and evaluation management and allocation of management responsibilities are all in the form of conducting a Board exam/Public exam to the 5^th and 8^th standard students.

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Learned counsel for petitioners relies on Section 16 of the RTE Act and contends that Section 16(1) of the RTE Act contemplates conducting of ‘regular examination’ in the 5^th and 8^th standard at the end of every academic year. Learned counsel contends that the RTE Act has made a differentiation/ distinction with conducting of regular examination being different from conducting of Board examination. He say so for the reason that Section 16 of the RTE Act contemplates regular examination and Section 30 of the RTE Act contemplates Board

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examination. He draws a distinction that under Section 16(1) of the RTE Act, the Act contemplates conducting of regular examination in the 5^th and 8^th standard at the end of every academic year, whereas, Section 30 of the RTE Act contemplates Board examination, which in specific terms says that ‘no child shall be required to pass any Board examination till completion of elementary education’.

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Learned counsel for petitioners contends that the

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elementary education is defined under Section 2(f) of the RTE Act, which reads as follows:

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“elementary education” means the education from first class to eighth class.”

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Learned counsel also brings to the notice of this

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Court the definition of School under the provisions of Section 2(n) RTE Act, which reads as under:

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“(n) “school” means any recognised school imparting elementary education and includes—

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(i) a school established, owned or controlled by the appropriate Government or a local authority;

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(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;

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(iii) a school belonging to specified category; and

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(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority.”

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It is the further contention of learned counsel for petitioners that the impugned circulars issued by the respondent-State are in the form of a circular and admittedly, it is not a notification or a Rule. He further contends that the

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circular has been deliberately issued to circumvent the procedure and the methodology, which are inherently available for formulating a Rule or a notification. If the State has to make a notification or a Rule, the same will have to be made by the State and shall have to be laid, as soon as may be after it is

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made before the State Legislatures. This procedure has to be followed as per Section 38(4) of the RTE Act. Admittedly, in the

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instant case, the present circular suddenly changes the Rules of the game midway, i.e. the Education Methodology for examination of 5^th and 8^th standard at the fag end of the academic year.

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It is the further contention of learned counsel for petitioners that the respondent-State is a competent authority under the Act and so also, all the educational institutions under the State on or before the commencement of the Act shall be registered in accordance with the Act and Rules made thereunder. The procedure for registration of educational institutions, the upgradation of the educational institution, cancellation of registration, the recognition and renewal of education, withdrawal of recognition are all contemplated under the Act, so also, the penalties for contravention is also provided under the Act. It is further contended that for the purpose of making any Rules, State Government is empowered by way of a notification and after previous publication, make rules to carry out the purpose of the Act under Section 145(1) of the Act. Learned counsel further contends that under Section 145(4), every such notification or every such Rule made under the Act after it is issued or made is required to be laid before

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each House of the State Legislature and only after both the Houses agree in the notification or in the rule, it shall be brought into force. It is contended that admittedly, this process and procedure contemplated under the Act is not followed while issuing the impugned circulars.

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Learned counsel further contends that this process and procedure which is mandated under the Act is admittedly not followed. It is also the contention of the learned counsel that the provisions of Karnataka General Clauses Act, 1989 are also not followed and is violated with impunity. He further contends that Section 23 of the Karnataka General Clauses Act, 1989, contemplates that when any rule is enacted or made, it shall be subject to previous publication and before making them shall publish a draft of the said proposed Rules for the information of the persons likely to be affected and the draft of the same shall be published and shall consider any objection or suggestion received by the rule or the notification making authority. In the present case, admittedly there is no such publication of the Circular and no consideration of the objections or suggestions from the affected parties.

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Learned counsel further contends that on an earlier occasion, a similar attempt was made by the State Government to bring into effect the District Level 7^th standard Public Examination Rules 1997. The said rule was published by way of a notification and in consonance to Section 22(2) read with Section 145 of the Act, but, thereafter due to certain oppositions, the said Rule came to be withdrawn. He further contends that the State Government is aware that any rule or notification would have to be brought into force in consonance with the Act and mere issuance of Circular cannot become a Rule or a binding factor for the Act of the State when there is specific procedure laid down under the Act.

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In the present case, circulars are issued without draft of it being published, without calling for any objections or suggestions and neither any debate or discussion was called for, due to which the petitioners who are the aggrieved parties were not heard before issuance of the impugned circulars. Under these circumstances, learned counsel contends that the issuance of impugned circulars is in violation of the provisions of the Act and so also the RTE Act. He also contends that the Legislative functions cannot be delegated without following the

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test of Legislatives sanctions. He also contends that Legislative mandates cannot be introduced by way of administrative Circulars or by subordinate delegated Legislations. Therefore, he contends that the impugned administrative circulars issued are liable to be struck-down and quashed.

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It is the contention of the learned counsel Sri S.Sudarshan appearing on behalf of petitioner in W.P.No.1699/2023, who supports the arguments put-forth by learned counsel Sri K.V.Dhananjaya and contends that the said circulars is issued only for Government Schools and there is violation of principles of natural justice and so also, the circular being not in conformity with the Act and RTE Act for not having followed the procedure laid down is liable to be struck down and quashed. He further contends that the State Government has introduced ‘Kalika Chetharike’ vide circular dated 13.05.2022, which is also specifically applicable only to Government Schools. He also brings to the notice of this Court the question papers of the ‘Kalika Chetharike’, which is filed along with memo issued to the Government Schools have not been supplied or issued to the private Schools like the petitioners before this Court. When the State Government has

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not issued and supplied necessary books for which examination is sought to be conducted, the same is violative of principles of natural justice as the students of 5^th and 8^th standard who have not even received the books and studied the said subject syllabus cannot be expected to answer the same without being taught. Therefore, he contends that the students of private unaided institution are certainly not prepared to take up such examinations proposed in the impugned circulars. Hence, there is disparity and arbitrariness as against the petitioners.

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Learned counsel Sri Anirudh A.Kulkarni appearing on behalf of petitioner in W.P. No.1668/2023 also supports and adopts the arguments advanced by the learned counsel Sri Dhananjay and Sri Sudarshan. He further adds that the students of 5^th and 8^th standard will be put to difficulty, harassment and mental disturbance on introduction of Board exam or Public exam at the fag end of the academic year, which would in turn directly affect their performance in the ensuing final examination scheduled to commence from 13.03.2023. Hence, he contends that the impugned circulars are violative of Articles 14 and 21-A of the Constitution of India

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and also the rights provided to the students of 5^th and 8^th standard under the RTE Act.

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Learned counsel for petitioners further contends that the impugned circulars are deliberately in the nomenclature of a circular rather than a rule or notification, as the Rule and notification could only be made within the frame work of the Act, which contemplates mandatory draft publication of Rule in terms of Section 145 of the Act. Learned counsel further contends that there is no such thing as intelligible differentia. The impugned circulars are nothing but a hostile discrimination against the children in the State School who are subjected to Board examination. It is also contended by learned counsel for petitioners that the circular categorically refers to a Board examination conducted by the Karnataka School Examination and Assessment Board Act, 1966 (for short ‘KSEAB’) whereas Section 16 of the RTE Act does not contemplate Board examination and Section 16(1) of the RTE Act expressly refers to ‘regular examination’, on the contrary, Section 30 of the RTE Act says no child shall be required to pass any Board examination. It is the further contention of learned counsel for the petitioners that for the students of 10^th

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and 12^th standard, Board examination is contemplated which will be conducted by an external agency other than the respective School and Section 16(4) of the RTE Act contemplates that no child shall expelled from a School till completion of elementary School.

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It is further contented that the impugned circulars takes support under the KSEAB. The said statute does not support the impugned circulars for the reason that there is no such previous publication of the impugned circulars. Learned counsel further contends that the issue of delegated legislation has to be necessarily exercised by the competent authority formulating necessary Rules. In the present case, the impugned circulars are merely an executive direction for implementation of the Rules/Legislation. When a Rule is framed, it has to be backed by Legislation. In the present case, admittedly, there is no Rule or notification but a circular issued

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in the administrative capacity, which is an executive order without the sanctity of the Legislation. It is further contended that it is the cardinal principal of law that when a circular issued is in contravention of Rules/Legislation, it has not existence in

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law, it being devoid of legislative competence requires to be struck-down.

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Learned counsel relies on the following authorities

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in support of his case:

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i) RAMAKRISHNA VIVEKANANDA MISSION v.

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STATE OF W.B. reported in (2005)9 SCC 53;

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ii) MUNICIPAL CORPN., BHOPAL v. MISBAHUL HASAN reported in (1972)1 SCC 696;

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iii) COMMR. OF POLICE v. GORDHANDAS BHANJI

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reported in 1951 SCC 1088 ;

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iv) STATE OF ORISSA v. SUDHANSU SEKHAR MISRA

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AND OTHERS reported in AIR 1968 SC 647;

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v) AJOY KUMAR BANERJEE v. UNION OF INDIA

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reported in 1984(3) SCC 127;

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vi) ALLISAB HUSENSAB HULKOTI vs. THE STATE OF KARNATAKA reported in ILR 1980 KAR 427;

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vii) A.C.JOSE v. SIVAN PILLAI reported in (1984)2 SCC 656;

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viii) COMMISSIONER OF CENTRAL EXCISE, BOLPUR v.

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RATAN MELTING & WIRE INDUSTRIES reported in (2008)13 SCC 1;

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ix) KERALA STATE ELECTRICITY BOARD & ORS. v. THOMAS JOSEPH ALIAS THOMAS M.J. & ORS. reported in 2022 SCC Online SC 1737;

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x) GODREJ & BOYCE MFG.CO.LTD. v. STATE OF MAHARASHTRA reported in (2009)5 SCC 24;

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xi) CCE v. RATAN MELTING & WIRE INDUSTRIES

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reported in (2008)13 SCC 1;

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xii) ASHOK LANKA v. RISHI DIXIT reported in (2005)5 SCC 598.

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Per contra, learned Additional Advocate General, Sri Dhyan Chinnappa contends that the impugned circular dated 12.12.2022 issued by respondent-State is to frame a mechanism for evaluation of students in 5^th and 8^th standard. He further contends that mechanism is evolved in accordance with Section 16 of the RTE Act. He contends that the State has taken a conscious decision not to hold back any student in the same class and every student even if he fails, will go through to

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the next class. It is further contended that the circular is issued to improve the learning outcomes in elementary classes and after wide deliberation Section 16 of the RTE Act came to be substituted to empower the Government to take a decision in relation to holding back or otherwise of children. Therefore, it is his contention that the issuance of impugned circulars are backed by Section 16 of the RTE Act.

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Learned Additional Advocate General further contends that the mechanism by which a Government issues direction is not only limited to Rules, Regulations or Government Orders. The powers can also be exercised by issuance of directions through circulars for the welfare of the public at large, more specifically, the students herein. For such directions/ instructions, no public consultation or formulation of Rules is essential. He further contends that no fault can be found in such mechanisms, when the same is made with an intent to improve the standard of education by making periodical assessments of the students and of the teachers/Schools. The petitions preferred by the petitioners, who are Association of private aided and unaided Schools, is more of shadow boxing and the interest of students are of very

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little concern, as the associations are interested in the institutions and not the education of the students.

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Learned Additional Advocate General further contends that the circular provides for uniform assessment across all Schools which have the State syllabus. It is further contended that the State Government only controls the State syllabus for which it has instructed a uniform assessment to be held for classes 5^th and 8^th . It is also contended that under Section 16 of the RTE Act, the State has the authority/right to decide/ determine whether the students are held back in class 5^th or class 8^th . It is contended that the State is conscious of

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the fact that the assessment is limited only to SA-2 (Summative Assessment). It is further contended that in terms of Section 7 of the Act, the State Government prescribes Rules. If Rules are not made, the State Government would still prescribe curricula by orders. The Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula, etc.) Rules, 1995 provides for prescribing curricula in terms of Rule 19, on the basis of which, the curricula is prescribed. It is further contended that the present evaluation mechanism by the State is being implemented to ensure that

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the students progress well in their educational activity and to put in place a test in an uniform manner which will be beneficial to the interest of the students, their academics and future career.

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Learned Additional Advocate General further contends that the arguments of the petitioners with regard to discrimination/disparity is of little substance, as learned counsel for petitioners have canvassed that the private Schools running ICSE and CBSE School stand on a different footing altogether and that the Act would not apply to such students. It is contended by learned Additional Advocate General that the

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petitioners keep changing their arguments suiting their convenience as by not prescribing assessment for ICSE/CBSE students, there is a clear discrimination by the State. The answer to this that the State is dealing with those students studying under its curricula that it has laid out, wherein requiring the students to do Summative Assessment without any danger of failing in the assessment or evaluation. Therefore, the arguments put-forth with regard to discrimination and disparity would not apply as the State is not

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prescribing any syllabus or curricula to those students not falling under the State syllabus.

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Learned Additional Advocate General further

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contends that an examination necessarily requires leading to the result of pass or fail, whereas students cannot fail or is not made to fail in an examination, it becomes an evaluation or assessment, which is intention of the State by implementing the present circular. It is also contended that by implementation of the present Summative Assessment and uploading the marks in the online portal (SATS), it will help the students to understand and know their strengths and weaknesses and such uniform assessment will help the students in understanding their own standing and so also, apart from helping the students, this would in turn help the parents and also the Schools and teachers imparting education to their students.

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Learned Additional Advocate General further contends that he is at loss of words to understand as to what is the inconvenience and difficulty that is caused to the petitioners who are association of Schools and not representatives of

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students or parents. He contends that the worry of the petitioners could be that their flaw would be exposed to the parents and the students, which may be detrimental to the private institutions under the State syllabus. In fact, it should be appreciated by the petitioners as well as students and parents as it would be ultimately in the welfare and interest of the students for their future career and growth. He further contends that there is absolutely no violation of Article 14 of the Constitution of India, there is no discrimination by the State rather there is going to be an uniform assessment and evaluation of all the students coming under the State syllabus. On these grounds, he contends that the present petitions preferred by the petitioners is misconceived, speculative and the same deserve to be dismissed with exemplary costs.

¶192

Having heard learned counsel Sri Anirudh A. Kulkarni appearing on behalf of learned counsel Sri Narayan Babu.D.N., for petitioner in W.P. No.1668/2023; learned counsel Sri S.Sudharsan, appearing on behalf of petitioner in W.P. No.1699/2023, learned counsel Sri A. Manjunath appearing on behalf of petitioner in W.P. No.3636/2023 and learned counsel Sri Dhananjay and Sri A. Velan, appearing on

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behalf of learned counsel Sri Pawan Shyam A., for petitioner in W.P. No.5017/2023 and Sri Dhyan Chinnappa, Additional Advocate General on behalf of learned Additional Government Advocate Smt. Promodini Kishan, for respondent – State, learned counsel Sri Nayanatara B.G, CGC for respondent No.1 Union of India, the point that arises for consideration before this Court is:

¶196

“Whether the impugned circulars issued by the respondent-State are in accordance with the statute under which it is being implemented and Whether it would stand the test of law as per the prescribed statute?”

¶197

To answer the above question, it is necessary to understand the Karnataka Education Act, 1983 and the Right of Children to Free and Compulsory Education Act, 2009.

¶198

The Act came into effect on 20.01.1995 by Gazette notification, after receiving the assent of the President, on 27.10.1993. As per Section 1 of the Act extends to the whole of State of Karnataka. It is also relevant to mention that as per Section 1(3) (iii-a), the Act does not apply to Educational Institution Affiliated or recognized by the Indian School Certificate Examination or Central Board of Secondary Education, respectively.

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As per the Act Section 2(7) of the Act defines the

¶202

‘competent authority’, which reads as under:

¶203

“(7) “Competent Authority” means any person, officer or authority authorised by the State Government, by notification, to perform the functions and discharge the duties of the competent authority under all or any of the provisions of this Act for such area or for such purposes or for such classes of institutions as may be specified in the notification.”

¶204

Section 3 of the Act, contemplates ‘regulation of education’, which reads as under:

¶205

“3. Regulation of Education.- (1) The State Government may, subject to subsection (3) of section 1, regulate general education, professional education, medical education, technical education, commerce education and special education at all levels in accordance with the provisions of this Act.

¶206

(2) The State Government may towards that end.-

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(a) establish and maintain educational institutions;

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(b) permit any local authority or a private body of persons to establish educational institutions and maintain them according to such specifications as may be prescribed;

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(c) require registration of educational institutions including tutorial institutions;

¶212

(d) recognise educational institutions;

¶213

(e) grant aid to any recognised educational institutions in furtherance of the objects of this Act;

¶214

(f) regulate the admission including the minimum or maximum number of persons to be admitted to any course in any educational institution or class of such institutions, and the minimum age for such admission;

¶215

(g) prescribe the conditions for eligibility of or admissions to any educational institution or class of such institutions;

¶216

(h) establish hostels or recognise private hostels and frame rules for grant-in-aid to recognised private hostels;

¶217

(i) permit or establish institutions imparting education in arts, crafts, music, dance,

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drama or such other fine arts, physical education including sports;

¶220

(j) permit and establish institutions or centres for pre-primary education, adult education and non-formal education; and

¶221

(k) take from time to time such other steps as they may consider necessary or expedient.”

¶222

Section 6 of the Act deals with Educational institutions

¶223

to be in accordance with this Act, which reads as under:

¶224

“6. Educational Institutions to be in accordance with this Act.- No educational institution shall be established or maintained otherwise than in accordance with the provisions of this Act or the rules made thereunder.”

¶225

Section 7 of the Act deals with the power of the

¶226

Government to prescribe the curricula, which reads as under:

¶227

“7. Government to prescribe curricula,

¶228

etc.- (1) Subject to such rules as may be prescribed, the State Government may, in respect of educational institutions, by order specify,-

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(a) the curricula, syllabi and text books for any course of instruction;

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(b) the duration of such course;

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(c) the medium of instruction;

¶234

(d) the scheme of examinations and evaluation;

¶235

(e) the number of working days and working hours in an academic year;

¶236

(f) the rates at which tuition and other fees, building fund or other amount, by whatever name called, may be charged from students or on behalf of students;

¶237

(g) the staff pattern (teaching and nonteaching) and the educational and other qualifications for different posts;

¶238

(h) the facilities to be provided, such as buildings, sanitary arrangements, playgrounds, furniture, equipment, library, teaching aid, laboratory and workshops;

¶239

(i) such other matters as are considered necessary.

¶240

(2) The curricula under sub-section (1) may also include schemes in respect of,-

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(a) moral and ethical education;

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(b) population education, physical education, health education and sports;

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(c) socially useful productive work, work experience and social service;

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(d) innovative, creative and research activities;

¶247

(e) promotion of national integration;

¶248

(f) promotion of civic sense; and

¶249

(g) inculcation of the sense of the following duties of citizens, enshrined in the Constitution namely, duty:-

¶250

(i) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

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(ii) to cherish and follow the noble ideals which inspired our national struggle for freedom;

¶252

(iii) to uphold and protect the sovereignty, unity and integrity of India;

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(iv) to defend the country and render national service when called upon to do so;

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(v) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women;

¶257

(vi) to value and preserve the rich heritage of our composite culture;

¶258

(vii) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

¶259

(viii) to develop the scientific temper, humanism and the spirit of inquiry and reform;

¶260

(ix) to safeguard public property and to abjure violence;

¶261

(x) to strive towards excellence in all spheres of individual and

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collective activity, so that the nation constantly rises to higher levels of endeavour and achievement.

¶265

(3) The prescription under sub-section (1) may be different for the different categories of educational institutions.

¶266

(4) (a) The objectives of education at the primary level shall be universalisation of education at the primary level by comprehensive access by both formal and non-formal means and by improving retention and completion rates with curriculum development and teacher education to help children attain the required level of achievement in the following basic purposes:-

¶267

(i) development of 'basic skills' in literacy in the mother tongue and Kannada (where mother tongue is not Kannada), numeracy and communication;

¶268

(ii) development of 'Life Skills' for understanding of and meaningful interaction with the physical and social environment, including study of Indian

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culture and history, science, health and nutrition;

¶272

(iii) introduction of 'work experience' or socially useful productive work to provide children with the ability to help themselves, to orient them to the work processes of society and to develop right attitudes to work;

¶273

(iv) promotion of values including moral values; and

¶274

(v) development of good attitudes towards further learning.

¶275

(b) The main objective of education at the secondary level shall be to impart such general education as may be prescribed so as to make the pupil fit either for higher academic studies or for job-oriented vocational courses. The general education so imparted shall, among others, include,-

¶276

(i) the development of linguistic skills and literary appreciation in the regional language;

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(ii) the attainment of prescribed standards of proficiency in any two other selected languages among classical or modern Indian

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languages including Hindi and English;

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(iii) the acquisition of requisite knowledge in mathematics and physical and biological sciences, with special reference to the physical environment of the pupil;

¶282

(iv) the study of social sciences with special reference to history, geography and civics so as to acquire the minimum necessary knowledge in regard to the State, Country and the world;

¶283

(v) the introduction of 'work experience' or 'socially useful productive work' as an integral part of the curriculum; and

¶284

(vi) training in sports, games, physical exercises and other arts.

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(5) In every recognised educational institution,-

¶286

(a) the course of instruction shall conform to the curricula and other conditions under sub-section (1); and

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(b) no part of the working hours prescribed shall be utilised for any purpose other than instruction in accordance with the curricula.”

¶289

Section 12(1) of the Act deals with ‘schemes for

¶290

primary education’, which reads as under:

¶291

“12. Schemes for primary education.- (1) Any local authority, if called upon by the State Government so to do, shall within such time as may be specified by the State Government submit to them a scheme for compulsory primary education in such area within its jurisdiction for children ordinarily resident therein, of such ages and upto such standard as the State Government may specify.”

¶292

Section 30 of the Act deals with ‘the educational

¶293

institutions to be registered’, which reads as under:

¶294

“30. Educational institutions to be registered.- (1) Save as otherwise provided in this Act, every local authority institution and every private educational institution, established on or before the date of commencement of this Act or intended to be established thereafter, shall notwithstanding anything contained in any other law for the

¶295

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time being in force, be registered in accordance with this Act and the rules made thereunder.

¶297

(2) No person or local authority shall establish or as the case may be, run or maintain an educational institution requiring registration under this section, unless such institution is so registered.”

¶298

Section 31 of the Act deals with ‘registration of

¶299

educational institution’, which reads as under:

¶300

“31. Procedure for registration of Educational Institutions.- (1) Any local authority or any person or registered body of persons intending to.-

¶301

(a) establish an institution imparting education, or

¶302

(b) maintain an institution imparting education established on or before the date of commencement of this Act and in existence on such date,

¶303

shall make an application for registration of such institution to the registering authority within such period and in such manner along with such fee as may be prescribed.

¶304

(2) While registering an institution under sub-section (1), the registering authority

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shall have due regard to the following matters, namely:-

¶308

(a) that there is need for providing educational facilities to the people in the locality or for the type of education intended to be provided by the institution;

¶309

(b) that there is adequate financial provision for continued and efficient maintenance of the institution as prescribed by the competent authority;

¶310

(c) that the institution is proposed to be located in sanitary and healthy surroundings;

¶311

(d) that the site for the building, playground and garden proposed to be provided and the building in which the institution is proposed to be housed conform to the rules prescribed therefor;

¶312

(e) that the teaching staff qualified according to rules made by the State Government in this behalf, is or shall be appointed; and

¶313

(f) that the application satisfies the requirements laid down by this Act

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and the rules and orders made thereunder.

¶317

(3) The registering authority shall within a period of three months from the date of receipt of the application,-

¶318

(a) register the institution and issue a certificate in the prescribed form, if the conditions specified or prescribed for registration have been complied with; or

¶319

(b) specify or extend from time to time, the period for compliance with such conditions:

¶320

Provided that the registering authority, may if it deems necessary, obtain and consider a report on the need for such institution from the expert body constituted under section 37 before granting or refusing the registration.

¶321

(4) Where any period is specified or extended under clause (b) of sub-section (3), the registering authority may register the institution if the conditions prescribed or specified for registration have been fulfilled within such period and issue a certificate in the prescribed form but shall refuse registration where there has been no such compliance. Every order of refusal shall

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disclose the grounds for such refusal and shall be in writing and shall be communicated to the concerned applicant.

¶325

(5) The Governing Council of an educational institution registered under this section shall give intimation to the registering authority of any change in any of the particulars furnished under sub-section (1) or of closure of the institution, in such form, in such manner and within such time as may be prescribed and the registering authority shall, on receipt of such intimation, amend the register and the registration certificate wherever necessary or, as the case may be, cancel the certificate.”

¶326

Section 33 of the Act, deals with ‘Registration of a

¶327

recognized Educational Institution’, which reads as under:

¶328

“33. Registration of a recognised Educational Institution.-(1) Notwithstanding anything contained in section 30, the registering authority shall register a local authority institution or a private educational institution if such institution has been recognised by the State Government or the authority competent to grant such

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recognition, as the case may be, before the date of commencement of this Act, in accordance with the rules or orders applicable to such recognition and the local authority or the Governing Council, as the case may be, files a statement in the prescribed form before the registering authority within a period of six months from such date.

¶332

(2) No fee shall be payable for the registration of an educational institution under sub-section (1).

¶333

(3) Notwithstanding anything in subsection (1), where the registering authority is of opinion that a local authority institution or a private educational institution does not conform to the provisions made by or under this Act, it may direct the local authority concerned or as the case may be, the Governing Council of the private educational institution to bring it in conformity with the same within such period or extended period as it may allow.”

¶334

Section 34 of the Act deals with ‘Cancellation of registration’, which reads as under:

¶335

“34. Cancellation of registration.- (1) Where it appears to the registering

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authority that in respect of any private educational institution or a local authority institution.-

¶339

(a)any condition for registration prescribed or specified under subsection (2) of section 31 or the provisions of this Act or the rules made thereunder relating to registration are violated; or

¶340

(b) the local authority or the Governing

¶341

Council to which a direction was given under sub-section (3) of Section 33 has contravened the direction,

¶342

it may, after holding such enquiry as it deems fit, send report to the competent authority recommending the cancellation of registration of such institution.

¶343

(2) The competent authority may upon the receipt of the report under sub-section (1), after giving the local authority or the Governing Council an opportunity of being heard, order the cancellation of the certificate of registration of the institution and the removal of its name from the register. Every such order shall be communicated to the local authority or the

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Governing Council and to the registering authority.”

¶347

Section 38 of the Act, deals with the Recognition of existing Institution, which reads as under:

¶348

“38. Recognition of existing Institution, etc.-(1) Notwithstanding anything contained in Section 3.-

¶349

(a) educational institutions established and run by the State Government or by any authority sponsored by the Central or State Government or by a local authority and approved by the competent authority in accordance with such conditions as may be prescribed shall be deemed to be educational institutions recognised under this Act;

¶350

(b) all educational institutions or any local authority institutions other than those specified in clause (a) imparting education, which are established and recognised in accordance with rules in force immediately before the commencement of this Act and in

¶351

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existence at such commencement shall be deemed to be educational institutions established and recognised under this Act, provided they comply with the provisions of this Act and the rules made thereunder within such period and in accordance with such procedure as may be prescribed.

¶354

(2) Any private educational institution imparting education which is in existence at the commencement of this Act but which has not been recognised in accordance with the rules in force immediately before such commencement shall discontinue to impart education from such commencement unless within sixty days of such commencement, an application for recognition is made, in accordance with the provisions of this Act and the rules made thereunder and every such application shall be disposed of within sixty days of its receipt by the competent authority. No person shall run any such institution after the application for recognition is rejected.”

¶355

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Section 39 of the Act, deals with withdrawal of recognition, which reads as under:

¶358

“39. Withdrawal of recognition.- (1) Where any local authority or the Governing Council of any private educational institution.-

¶359

(a) fails to fulfill all or any of the conditions of recognition or fails to comply with the orders of the competent authority in regard to accommodation, equipments, syllabi, textbooks, appointment, punishment and dismissal of teachers;

¶360

(b) denies admission to any citizen on ground of religion, race, caste, language or any of them;

¶361

(c) directly or indirectly encourages in the educational institution any propaganda or practice wounding the religious feelings of any class of citizens of India or insulting religion or the religious belief of that class;

¶362

(d) employs or continues to employ any teacher whose certificate has been cancelled or suspended by the competent authority after due enquiry or who has been considered by the

¶363

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competent authority after due enquiry to be unfit or undesirable to be a teacher or arbitrarily terminates the services of a teacher or fails to comply with the orders of the competent authority in this regard;

¶366

(e) fails to remedy the defects in the instruction or accommodation or deficiencies in the management or discipline within such time as may be specified therefor by the competent authority;

¶367

(f) contravenes any of the provisions of this Act, the rules and orders made thereunder,

¶368

the competent authority may, for reasons to be recorded in writing, withdraw the recognition of the institution or take such other action as is deemed necessary, after giving to the local authority or as the case may be, the Governing Council an opportunity of making its representation against such withdrawal or action.

¶369

(2) Where the State Government is of the opinion that the recognition granted to any local authority institution or private educational institution should, in the public interest be

¶370

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withdrawn, they may after giving to the local authority or as the case may be the Governing Council of the institution one month's notice to make any representation, withdraw by notification the recognition granted to the said institution.

¶373

(3) Notwithstanding anything contained in any other law for the time being in force, no educational institution which has not been recognised, or the recognition of which has been withdrawn under this Act shall be entitled, to.-

¶374

(a)receive any grant-in-aid from the State funds or other financial assistance or other facilities from the Government;

¶375

(b)send up or present candidates for examinations in courses of study conducted by a University or the Government.”

¶376

Section 145 of the Act, deals with ‘Power to make rules’, which reads as under:

¶377

“145. Power to make rules.- (1) The State Government may, by notification and after previous publication, make rules to carry out the purposes of this Act.

¶378

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(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for.-

¶381

(i) the classes or standards of education and upto which shall be considered as primary education;

¶382

(ii) the curricula, etc., specified under subsection (1) of Section 7;

¶383

(iii) xxxxxxxxxxxx

¶384

(3) Any rule may be made under this Act with retrospective effect and when such a rule is made the reasons for making the rule shall be specified in a statement to be laid before both Houses of the State Legislature.

¶385

(4) Every notification issued and every rule made under this Act, shall immediately after it is issued or made be laid before each House of the State Legislature if it is in session and if it is not in session immediately following for a total period of fourteen days which may be comprised in one session or in two successive sessions and if before the expiration of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the notification

¶386

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or in the rule or in the annulment of the Notification or the rule, the notification or the rule shall from the date on which the modification or annulment is notified have effect only in such modified form or shall stand annulled, as the case may be; so, however, that any such modification or annulment, shall be without prejudice to the validity of anything previously done under that notification or rule.”

¶389

The RTE Act, 2009 extends to whole of India. Section 2(a) deals with ‘appropriate Government’, which reads as under:

¶390

“(a) “appropriate Government” means—

¶391

(i) in relation to a school established,

¶392

owned or controlled by the Central Government, or the administrator of the Union territory, having no legislature, the Central Government;

¶393

(ii) in relation to a school, other than the

¶394

school referred to in sub-clause (i), established within the territory of—

¶395

(A) a State, the State Government;

¶396

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(B) a Union territory having legislature,

¶399

the Government of that Union territory;”

¶400

Section 16 of the RTE Act deals with ‘Examination

¶401

and holding back in certain cases’, which reads as under:

¶402

“16. Examination and holding back in certain cases.- (1) There shall be a regular examination in the fifth class and in the eighth class at the end of every academic year.

¶403

(2) If a child fails in the examination referred to in sub-section (1), he shall be given additional instruction and granted opportunity for re-examination within a period of two months from the date of declaration of the result.

¶404

(3) The appropriate Government may allow schools to hold back a child in the fifth class or in the eighth class or in both classes, in such manner and subject to such conditions as may be prescribed, if he fails in the re-examination referred to in subsection (2):

¶405

Provided that the appropriate Government may decide not to hold back a

¶406

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child in any class till the completion of elementary education.

¶408

(4) No child shall be expelled from a school till the completion of elementary education.”

¶409

Section 30 of the RTE Act deals with ‘Examination

¶410

and completion certificate’, which reads as under:

¶411

“30. Examination and completion certificate.—(1) No child shall be required to pass any Board examination till completion of elementary education.

¶412

(2) Every child completing his elementary education shall be awarded a certificate, in such form and in such manner, as may be prescribed.”

¶413

Section 38 of the RTE Act deals with ‘Power of appropriate Government to make rules, which reads as under:

¶414

“38. Power of appropriate Government to

¶415

make rules.—(1) The appropriate Government may, by notification, make rules, for carrying out the provisions of this Act.

¶416

(2) In particular, and without prejudice to the generality of the foregoing powers, such

¶417

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rules may provide for all or any of the following matters, namely:—

¶419

(a) the manner of giving special training and the time-limit thereof, under first proviso to section 4;

¶420

(b) the area or limits for establishment of a neighbourhood school, under section 6;

¶421

(c) the manner of maintenance of records of children up to the age of fourteen years, under clause (d) of section 9;

¶422

(d)the manner and extent of reimbursement of expenditure, under sub-section (2) of section 12;

¶423

(e)any other document for determining the age of child under sub-section (1) of section 14;

¶424

(f)the extended period for admission and the manner of completing study if admitted after the extended period, under section 15;

¶425

(fa) the manner and the conditions subject to which a child may be held back under sub-section (3) of section 16;

¶426

(g)the authority, the form and manner of making application for certificate of

¶427

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recognition, under sub-section (1) of section 18;

¶430

(h)the form, the period, the manner and the conditions for issuing certificate of recognition, under sub-section (2) of section 18;

¶431

(i)the manner of giving opportunity of hearing under second proviso to subsection (3) of section 18;

¶432

(j the other functions to be performed by School Management Committee under clause (d) of sub-section (2) of section 21;

¶433

(k)the manner of preparing School Development Plan under sub-section (1) of section 22;

¶434

(l) the salary and allowances payable to, and the terms and conditions of service of, teacher, under sub-section (3) of section 23;

¶435

(m)the duties to be performed by the teacher under clause (f) of sub-section (1) of section 24;

¶436

(n) the manner of redressing grievances of teachers under sub-section (3) of section 24;

¶437

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(o)the form and manner of awarding certificate for completion of elementary education under sub-section (2) of section 30;

¶440

(p) the authority, the manner of its constitution and the terms and conditions therefor, under sub-section (3) of section 31;

¶441

(q) the allowances and other terms and conditions of appointment of Members of the National Advisory Council under subsection (3) of section 33;

¶442

(r) the allowances and other terms and conditions of appointment of Members of the State Advisory Council under subsection (3) of section 34.

¶443

(3) Every rule made under this Act and every notification issued under sections 20 and 23 by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in

¶444

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making any modification in the rule or notification or both Houses agree that the rule or notification should not be made, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.

¶447

(4) Every rule or notification made by the State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislatures.”

¶448

There is no dispute to the fact that the impugned circulars issued by the respondent – State is emanating from RTE Act. The mechanism so evolved by the State is in accordance with Section 16 of the RTE Act. It is also not in dispute that the entire mechanism framed by the State Government is in terms of Section 16 of the RTE Act. This Court has already extracted Section 16 of the RTE Act for easy and quick understanding.

¶449

The locus of the petitioners who are association of private aided and unaided Schools, though initially questioned

¶450

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is not seriously questioned at the stage of final arguments for the reason that one of the parents of 5^th standard is also the petitioner in one of the cases. The petitioners have questioned the impugned circulars which have been issued by the respondent-State at the fag end of the academic year. It is seen that the sum and substance of the arguments of the petitioners is that by virtue of the impugned circulars, the State is making an attempt to impose implementation in the form of Board examination/Public examination to the students of 5^th and 8^th standard. According to the petitioners, though the impugned circulars are styled in the form of circulars, it is having the effect of Rule/notification. The State has deliberately styled it in the form of circular to avoid the procedure, process and methodology required to frame a Rule, which would have to pass the test of legislative frame work and requirement.

¶453

On careful perusal of the Act and the RTE Act, the competent authority is the State Government and the appropriate Government is also the State Government respectively. Section 16(1) of the RTE Act contemplates regular examination in the 5^th and 8^th standard of every academic year. Section 16(2) of the RTE Act contemplates that

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if a child fails in the examination, additional instructions shall be given and an opportunity would be granted for reexamination within a period of two months from the date of declaration of results. Section 16(3) of the RTE Act states that the appropriate Government may allow the Schools to hold back a child in 5^th or in 8^th standard, in such manner and subject to such condition as may be prescribed, if the student fails in the re-examination referred to in Sub-Section(2). Proviso to Sub-Section (3) of Section 16 of the RTE Act states that the appropriate Government may decide not to hold back a child in any class till the competition of elementary education. Section 16(4) of the RTE Act states that no child shall be expelled from the School till competition of elementary education. At this stage, it is also important to once again look into Section 30 of the RTE Act, which states that no child shall be required to pass any Board examination till completion of elementary education.

¶457

The amendment to Section 16 of the RTE Act was enacted keeping in mind the object of Article 21-A of the Constitution of India, which was intended to protect the children coming within the age group of 6-14 years which is

¶458

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considered to be the stage of elementary education i.e. from 1^st to 8^th standard to be uninterrupted.

¶461

Now the question before this Court is the impugned circulars that has been issued by the State which proposes to conduct an assessment of the students of 5^th and 8^th standard falling within the State syllabus from 2022-2023. The circulars also very clearly state that the KSEAB would conduct an examination, which would include preparation and distribution of question papers, conduct of examination of Schools, evaluation and assessment subject wise, School wise, cluster/Taluk – wise for the above said 5^th and 8^th standard students in all the Schools of State syllabus. It is also stated in the said circular that the KSEAB is also entrusted with publishing of results and taking necessary action regarding analysis and strategy development. It is also stated in the said circular that in view of more than half of the academic year having been completed i.e. in 2022-2023, FA-1, FA-2, FA-3, FA-4 and SA-1, the Summative examination-2 would be conducted for 50 marks, out of which, 10 marks will be oral and 40 marks would be for written test and that the said 40 marks of the test would be converted to SA-2 as per the current

¶462

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overall passing criteria proportionately for 20 marks. It is also stated that a blue print has been prepared for conducting the examination with the model of question paper based on ‘Kalika Chetharike’, which has been issued to most of the Government Schools.

¶465

The form and substance of the impugned circulars is in the guise of Rule/notification though it is in the nomenclature of a circular. The State is well within the powers to bring about a Rule/notification or a circular to supplement the Rule as an aid in furtherance of the Rule. The impugned circulars when issued by the State cannot supplant the Rule, unless the necessary process and procedure is followed as contemplated under the Act.

¶466

Section 16(1) of the RTE Act is very clear with regard to conducting of regular examination. It has drawn a clear distinction between a regular examination and a Board examination, which is found in Section 30 of the RTE Act. Section 30 also very clearly says that no child shall be required to pass any Board examination till completion of elementary education i.e. 1^st to 8^th standard. In ordinary parlance of

¶467

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layman’s understanding, it can be said without any iota of doubt that the students of 1^st to 8^th standard are not required to pass any Board examination till completion of elementary education, thereby the concept of Board examination is exempted.

¶470

By virtue of issuance of present circular, the State has clearly stated in unambiguous words that the process of Summative Assessment/evaluation would be by an external Board called the KSEAB. However, during the course of arguments, the learned Additional Advocate General has stated, and so also, in the statement of objections, that the State is not intending to conduct any Board examination for the 5^th and 8^th standard students, and it would not fail or detain any student of elementary education whatsoever be the result of the evaluation or Summative Assessment.

¶471

The fact remains that the entire process of the setting up of the question paper, conduct of examination, evaluation methodology and declaration of results are all monitored by the Board namely, KSEAB, which would mean that an external agency other than the respective Schools

¶472

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would be making an evaluation/assessment for SA-2 for the academic 2022-2023 for 50 marks, which would be proportionate to 20 marks. This would mean that the respective Schools would not have the liberty to assess or evaluate the students by themselves for 20 marks out of 100 marks. This is not contemplated under the RTE Act, on the basis of which, the present circular has emanated.

¶475

In view of the State Government admitting the fact of bringing this mechanism for evaluation of students for the 5^th or 8th standard coming under the purview of Section 16 of the RTE Act, it will have to be seen whether Section 16 of the RTE Act provides the State Government any such mechanism to conduct assessment / evaluation and if so, what would be the process for such assessment / evaluation. At the cost of repetition, Section 16(1) contemplates regular examination; Section 16(2) contemplates the if the child fails he shall be given additional instructions and an opportunity for reexamination within a period of two months from the date of declaration of result; Section 16(3) states the appropriate Government may allow the schools to hold back the child in 5^th or 8^th standard, in such manner and subject to such condition

¶476

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as may be prescribed, if he fails in the re-examination as referred to in sub-Section (2). Proviso to Section 16(3) states the appropriate Government not to hold back any child till the stage of elementary education. Section 16(4) states no child shall be expelled from a school till the completion of elementary education.

¶479

On careful perusal of Section 16 of the RTE Act and its sub-Sections, in my opinion, there is no power vested with the appropriate Government/State Government to conduct any examination of its own other than the regular examination contemplated under the above said Section. It can also be further inferred from the above said Section 16 that there is no scope under the said Section for conducting an assessment or evaluation other than the regular examination by an external agency/board and to award marks as per Section 16(1) of the RTE Act.

¶480

This being the state of affairs, in order to improve the learning outcomes in the elementary classes, it was proposed to substitute Section 16 of the RTE Act to empower the appropriate Government to take decision as to whether to hold back a child in the 5^th or 8^th standard or in both classes or

¶481

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not to hold back any child in any class till the completion of elementary education. Accordingly, the substitution to Section of the RTE Act was brought in to force with effect from 01.03.2019. Thereafter, there was an amendment to Section 38 of the Act, by incorporating sub-Clause (fa) of sub-Section (2) of Section 38 of the Act.

¶484

In the fag end of the academic year 2022-2023 the State Government has issued the impugned circulars to conduct a uniform assessment by limiting the assessment only to SA-2 which is the final summative assessment with an intention to have an assessment and to determine whether a student would be held back or not. It is also not in dispute that marking of the assessment being limited to SA-2 would be for the total marks of 20 and in the event a student gets lesser than 35 marks in FA-1 to FA-4 and SA-1 & SA-2, then the student would need further assessment, but however, in no event a student is made to stay back/detained in the same class. This methodology of assessment/evaluation of the State for the aforementioned students of the 5^th and 8^th standard is to understand and have an idea for the benefit of the parents

¶485

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and students as to what is the merit of the student and where he stands requiring or calling for improvement or assistance.

¶488

The object and intent of the appropriate Government or State Government is laudable and appreciable wherein it is making an attempt to have checks and balances or mechanism for assessment and evaluation and also for remedial actions. In the present generation and state of affairs large number of schools mushrooming in every nook and corner of the street in the District and State level, it is necessary to bring about a proper mechanism with regard to checks & balances and evaluation & assessment of the school children of 1^st to 9^th standard and so also, a similar assessment with regard to the schools and the teaching staff. However, while bringing about such mechanism the appropriate Government or State Government or the schools for that matter would have to necessarily follow the process and procedure laid down and prescribed under the statute. It is cardinal principle of law that when any scheme/circular/order of the Government is implemented it has to evolve or emanate from a statute under which it is governed.

¶489

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¶491

The State Government has issued the impugned circulars to prescribe certain assessment and evaluation under the provisions of the RTE Act. No doubt, the appropriate Government being the State Government is empowered to make Rules and Regulations to carry out the provisions of the Act, but while doing so it will have to be necessarily follow the procedure prescribed under the Act. Section 38(4) of the Act states, ‘every rule or notification made by the State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislatures’. Though it is the contention of the learned Additional Advocate General that the State has not decided to make any rule or notification and it is only formulating certain assessment and evaluations for the aid and benefit of the students coming under the State syllabus, therefore, the question of following the process and procedure of the Act more specifically Section 38 or any other provisions of the Act would not attract and that the arguments of the petitioners is flawed as State Government has not made any rule and accordingly, the question of public consultation, debate or discussion are unwarranted. I am afraid the contention of learned Additional Advocate General cannot be accepted for the

¶492

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reason that by virtue of the impugned circulars, there is a change which is brought by the State Government by way of assessment/evaluation and awarding of 20 marks for SA-2 for the academic year 2022-2023, which would invariably be assessed by the Board - KSEAB of the State. Thereby an external agency is coming into play for awarding of 20 marks for SA-2 for the students of 5^th or 8^th standard thereby out of 100 marks to be awarded the Schools are deprived of 20 marks which is taken away by the impugned circulars. This is not contemplated under Section 16 of the RTE Act.

¶495

It is a cardinal principle of law that when the State Government wishes to bring about a Government order or Circulars, it has to be in consonance with the Act and the Rules. The said Circulars if any can only supplement the Act or Rules, but in no circumstances, supplant the Rules. In situation where such Circulars are issued to supplant the Rules which is in the guise of the Rules, the prescribed procedure and process have to be followed as contemplated under the Act. Section 38(4) of the RTE Act contemplates when Rules/notifications can be made by the appropriate Government, it will have to be laid as soon as may be after it is made before the State Legislature,

¶496

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which admittedly in the present case has not been done or followed.

¶499

Nothing prevents the State Government from making an assessment/evaluation in order to improve the learning outcomes in the elementary classes. A mechanism or a procedure can be set up to evaluate the learning outcomes but whether the State has the powers to award a percentage of marks from out of 100 marks from the Schools by conducting a separate exam other than the Schools conducting the exams, well the answer in my opinion is ‘NO’ as Section 16 of the RTE Act does not contemplate so.

¶500

It is certainly within the domain of the State Government to make rules, modify the rules, but however the same will have to be done as per the RTE Act by following the prescribed mandatory provisions.

¶501

No doubt, the object of the State Government is laudable, appreciable and so also, the intent of the State is good to have certain checks and balances with regard to improving the learning outcomes of the students in the

¶502

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elementary classes and so also, the Schools and the teaching staff of the various Schools.

¶505

Be that as it may, however laudable the object of the State be and good the intention be, the same will have to be done within the frame work of law and the procedure and process mandatorily prescribed in the Statute. Merely because, it is the State implementing the impugned Circulars, it cannot blatantly violate the procedure mandatorily enshrined in the Statute books. The circulars as in the present case, which are contrary to the statutory provision has in effect no existence in law.

¶506

In the case of COMMISSIONER OF CENTRAL

¶507

EXCISE, BOLPUR v. RATAN MELTING AND WIRE

¶508

INDUSTRIES reported in (2018) 13 SCC 1 , the Constitution Bench of the Hon’ble Apex Court held at para-7 as under:

¶509

“7. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should

¶510

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be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law.”

¶512

Further, the Hon’ble Apex Court in the case of KERALA STATE ELECTRICITY BOARD & ORS. v. THOMAS JOSEPH ALIAS THOMAS M.J. & ORS. reported in 2022 SCC

¶513

ONLINE SC 1737 at Para-64 held as under:

¶514

“64. At this stage, it is apposite to state about the rule making powers of a delegating authority. If a rule goes beyond the rule making power conferred by the statute, the same has to be declared invalid. If a rule supplants any provision for which power has not been conferred, it becomes invalid. The basic test is to determine and consider the source of power, which is relatable to the rule.

¶515

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Similarly, a rule must be in accord with the parent statute, as it cannot travel beyond it.”

¶518

The Hon’ble Apex Court in the case of RAMAKRISHNA VIVEKANANDA MISSION v. STATE OF

¶519

W.B. reported in (2005)9 SCC 53 , has held at para-25 as follows:

¶520

“25. The Special Rules have the effect of encroaching upon the rights of the teaching and non-teaching staff in the school. On publication of the draft rules, those affected by the Special Rules are granted opportunity to file objections and suggestions to those rules. Section 24 postulates fixing of date for consideration of draft rules by the State Government. The objections or suggestions that may be received are required to be considered before taking a decision to publish the rules in official gazette as the said publication is conclusive proof of the rules having been duly made.”

¶521

In the case of COMMISSIONER OF POLICE v.

¶522

GORDHANDAS BHANJI reported in 1951 SCC 1088 , the

¶523

Hon’ble Apex Court has held at para-9 as follows:

¶524

“9. An attempt was made by referring to the Commissioner's affidavit to show that this

¶525

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was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”

¶528

67. In the case of ASHOK LANKA v. RISHI DIXIT

¶529

reported in (2005) 5 SCC 598 , the Hon’ble Apex Court at para-57 held as follows:

¶530

“57. It is interesting to note that the Rules were amended only for one excise year. The rule- making power should be exercised having regard to the policy to be adopted by the State. Such a policy may vary from time to time. Having regard to the exigency for the situation, rule may also be amended but we do not see any reason as to why an attempt

¶531

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should be made to amend the rule only with a view to justify an illegal action on the part of the Commissioner of Excise for the year 200506. Although the validity of the Rules have not been challenged, the Court cannot shut its eyes from considering this aspect of the matter. We are not oblivious of the fact that framing of rules is not an executive act but a legislative act; but there cannot be any doubt whatsoever that such subordinate legislation must be framed strictly in consonance with the legislative intent as reflected in the rulemaking power contained in Section 62 of the Act.”

¶534

68. In the case of GODREJ & BOYCE MFG. CO. LTD.

¶535

V. STATE OF MAHARASHTRA reported in (2009)5 SCC 24,

¶536

the Hon’ble Apex Court at Para-64 has held as follows:

¶537

“64. Having regard to the nature of the law the submission advanced on behalf of the municipal authority would lead to palpably unjust and inequitable results. The land owner whose land is designated in the development plan as reserved for any of the purposes enumerated in Section 22 of the Act or for any of the amenities as defined under Section 2(2) of the Act or Regulation 2(7) [sic

¶538

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Regulation 3(7)] of the Regulations is not left with many options and he does not have the same bargaining position as the municipal authority. Therefore, surrender of the land in terms of clause (b) of Section 126(1) of the Act cannot be subjected to any further conditions than those already provided for in the statutory provisions. It is of course open to the legislature to add to the conditions provided for in the statute (or for that matter to do away with certain conditions that might be in existence). But it certainly cannot be left in the hands of the executive to impose conditions in addition to those in the statutes for accepting the offer to surrender the designated land.”

¶541

Under the circumstances, I find sufficient force in

¶542

the arguments put-forth by the respective counsel for petitioners as the new format of assessment / evaluation implemented by the State Government is contrary to Section 16 of the RTE Act and the procedure prescribed under the Act. The delegated legislation so assumed cannot run contrary to statutory provisions enacted by the legislature.

¶543

Accordingly, I pass the following:

¶544

ORDER

¶545

(1) The writ petitions are allowed ;

¶546

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(2) A writ of certiorari is issued, the Circular dated 12.12.2022 bearing No.E-870867-DPII-CPIOC72(PLM)/3/2022 issued by respondent – the Commissioner of Public Instructions, is quashed;

¶549

(3) A writ of certiorari is issued, the Circular dated 13.12.2022 bearing No.E-9951/DSERT/ EVG/5,8 Tha.Va.Pa.Moulyankana/ 2022-23 issued by respondent – the Department of State Educational Research and Training, is quashed;

¶550

(4) A writ of certiorari is issued, the Circular dated 04.01.2023 bearing No.DPI-CPIOSATS(E-)/6/ 2022-SATS issued by respondent – the Commissioner of Public Instructions, is quashed.

¶551

Sd/-

¶552

JUDGE

¶553

LB/VK

Registered Unaided Private Schools Management Association Karnataka v. Union of India

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Registered Unaided Private Schools Management Association Karnataka v. Union of India

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