Allowed

State of Karnataka v. Registered Unaided Private Schools Management Association Karnataka Society

Karnataka HC22 Mar 2024WA/379/2024

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed writ appeals against an order quashing notifications empowering KSEAB to conduct Summative Assessment-2 for 5th and 8th standard students. The Court held the assessment was not a Board Exam but allowed the writ appeal to set aside the quashing order.

What did the court decide?

Writ appeals allowed; impugned order dated 06.03.2024 set aside; State directed to hold assessments and consult stakeholders before future similar notifications.

State of Karnataka Vs Registered Unaided… — Pension and Retirement Benefits | Karnataka HC (2024)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 22^ND DAY OF MARCH, 2024

¶4

PRESENT

¶5

THE HON'BLE MR. JUSTICE K.SOMASHEKAR

¶6

AND

¶7

THE HON'BLE MR. JUSTICE RAJESH RAI K

¶8

WRIT APPEAL NO. 379 OF 2024(EDN-RES) C/W WRIT APPEAL NO. 380 OF 2024(EDN-RES)

¶9

IN W.A.NO.379 OF 2024

¶10

BETWEEN

¶11

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

¶12

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

¶13

KARNATAKA SCHOOL EXAMINATION AND ASSESSMENT BOARD, REPRESENTED BY ITS CHAIRPERSON, 6^TH CROSS ROAD,

¶14

¶15

MALLESHWARAM, BENGALURU-560 003.

¶16

...APPELLANTS

¶17

(BY SRI.VIKRAM HUILGOL, ADL.ADVOCATE GENERAL ALONG WITH SMT.MAMATHA SHETTY, AGA)

¶18

AND

¶19

1 . REGISTERED UNAIDED PRIVATE SCHOOLS MANAGEMENT ASSOCIATION KARNATAKA SOCIETY REGISTERED UNDER THE KARNATAKA SOCIETIES REGISTRATION ACT, 1960. NO.40, RING ROAD, NAGADEVANAHALLI, JNANABHARATHI POST, BENGALURU560 056. REPRESENTED BY ITS PRESIDENT, SHRI. LOKESHWARAPPA S. …RESPONDENT NO.1

¶20

2 . MR.VAISHNAVI ASHOK SHIMPI, D/O ASHOK SHIMPI, AGED ABOUT 14 YEARS, STUDYING IN CLASS 8, GOVT., HIGH SCHOOL, PALACE GUTTAHALLI, BENGALURU - 560 003, ROLL No. 093851662, SATS NO.093851662, SINCE MINOR, REP BY. NATURAL GUARDIAN SRI. ASHOK SHIMPI, S/O. MAHADEVAPPA, AGED ABOUT 40 YEARS, RESIDING AT M#22, MUNESHWARA BLOCK, PALACE GUTTAHALLI, BENGALURU-560 003.

¶21

3 . MASTER. DHANUSH BASAVARAJA ROTTI, S/O BASAVARAJA ROTTI,

¶22

¶23

AGED ABOUT 10 YEARS, STUDYING IN CLASS 5, GOVT. HIGHER PRIMARY SCHOOL, ARAMANE NAGAR, BENGALURU - 560 003 ROLL NO. 192870525 SATS NO. 192870525 SINCE MINOR, REP. BY NATURAL GUARDIAN SMT. LALITHA, W/O BASAVARAJA ROTTI, AGED ABOUT 33 YEARS, RESIDING AT #10/1, RAMA NILAYA KUMARA PARK, BENGALURU - 560 020.

¶24

4 . MS.DROUPATHI K., D/O KASHAPPA, AGED ABOUT 10 YEARS, STUDYING IN CLASS 5, GOVT., HIGHER PRIMARY SCHOOL, ARAMANE NAGAR, BENGALURU - 560 003 SINCE MINOR, REP. BY NATURAL GUARDIAN, SRI. KASHAPPA, AGED ABOUT 38 YEARS, RESIDING AT BEHIND PRASHANTH HOTEL, PALACE GUTTAHALLI, BENGALURU - 560 003.

¶25

5 . MS.SHASHIKALA, D/O BASAVARAJA ROTTI, AGED ABOUT 14 YEARS, STUDYING IN CLASS 8, GOVT., HIGH SCHOOL, PALACE GUTTAHALLI, BENGALURU - 560 003 ROLL No. 061612777 SATS No. 061612777

¶26

¶27

SINCE MINOR, REP. BY NATURAL GUARDIAN SMT. LALITHA, W/O BASAVARAJA ROTTI, AGED ABOUT 33 YEARS, RESIDING AT #10/1, RAMA NILAYA KUMARA PARK, BENGALURU - 560 020.

¶28

6 . RTE STUDENTS AND PARENTS ASSOCIATION HAVING REGISTERED OFFICE AT No.7, ANANTHA SWAMY ASHRAM, BEHIND KAPALI THEATRE, BENGALURU - 560 004. REPRESENTED BY ITS GENERAL SECRETARY MR. B.N YOGANANDA.

¶29

…PROPOSED RESPONDENTS NOS.2 TO 6

¶30

(BY SRI.K.V.DHANANJAY, ADVOCATE FOR R1; SRI.PRITHVEESH M.K AND SMT.SWATHY, ADVOCATES FOR IMPLEADING APPLICANT-PSD R2-R5 IN I.A.NO.5/2024; SRI.VELAN, ADVOCATE FOR IMPLEADING APPLICANT/R6 IN I.A.NO.6/2024)

¶31

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 06.03.2024, PASSED IN W.P.NOS.26489 OF 2024 AND ETC.

¶32

IN W.A.NO.380 OF 2024

¶33

BETWEEN

¶34

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

¶35

¶36

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

¶37

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

¶38

...APPELLANTS

¶39

(BY SRI.VIKRAM HUILGOL, ADL.ADVOCATE GENERAL ALONG WITH SMT.MAMATHA SHETTY, AGA)

¶40

AND

¶41

REGISTERED UNAIDED PRIVATE SCHOOLS MANAGEMENT ASSOCIATION KARNATAKA 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.

¶42

…RESPONDENT

¶43

(BY SRI.K.V.DHANANJAY, ADVOCATE FOR C/R1)

¶44

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 06.03.2024, PASSED IN W.P.NOS.24745 OF 2024 AND ETC.

¶45

THESE WRIT APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 18.03.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, K.SOMASHEKAR, J., AND RAJESH RAI.K, J., DELIVERED THE FOLLOWING:

¶46

¶47

JUDGMENT

¶48

These intra-Court appeals arising out of the order dated 06.03.2024 passed by the learned Single Judge in W.P.Nos.26489/2023 C/w W.P.No.24745/2023, wherein the learned Single Judge was pleased to allow the writ petitions by quashing the impugned Notification No.EP 209 SLB 2023 dated 06.10.2023 and Notification No.EP 209 SLB 2023 dated 09.10.2023. Challenging the same, the appellants, who are the respondents-State Government Authorities before the learned Single Judge, are before this Court invoking the provisions of Section 4 of the High Court of Karnataka Act, 1961.

¶49

The facts that are apposite to consider the case on hand as borne out from the pleadings are as follows.

¶50

In the year 2022, the appellants-State Government came up with the Circular dated 12.12.2022 bearing No.E-870867DPII-CPIOC7-2(PLM)/3/2022 and pursuant to the same, another Official Memorandum dated 28.04.2022 regarding a module of assessment in a manner conducting the examination by way of three Formative Assessments Examination (for short 'FA') and

¶51

¶52

two Summative Assessments Examination (for short 'SA') came to be issued directing all the schools in the State of Karnataka to follow the same method in evaluating the students to allow them to proceed to the next grades. It is in this scenario, another Notification dated 06.10.2023 came to be issued by appellant No.1 herein, wherein appellant No.1 appointed the Karnataka State Education and Assessment Board (for short 'KSEAB') as the "Competent Authority" to conduct the Summative Assesment-2 (for brevity 'SA-2') of the Schools under the purview of the Karnataka Education Act, 1983 (for short 'KEA'). Further, on 09.10.2023, another notification came to be issued by appellant No.1, whereby the power to conduct SA-2 to 5^th , 8^th , 9^th and annual examination for 11^th standard students was given to the KSEAB. In this background, by another proceedings and order dated 16.11.2023, appellant No.1 also issued instructions to the Competent Authority clarifying the manner in which the assessment to be conducted for the students therein.

¶53

Under this coveted background, aggrieved by the

¶54

Notifications dated 06.10.2023 and 09.10.2023, respondent

¶55

¶56

No.1-private aided schools approached the learned Single Judge on the premises of it being in violation of the provisions of Sections 16 and 30 (1) of the Right of Children to Free and Compulsory Education Act, 2009 (for short 'RTE Act'). Learned Single Judge, vide order dated 06.03.2024, allowed the writ petitions filed by the respondents herein and consequently, quashed these impugned Notifications. Hence, the appellants, who are the petitioners before the learned Single Judge, are before this Court.

¶57

We have heard the learned AAG Sri Vikram Huilgol for the appellants-State, learned counsel Sri K.V.Dhananjay for respondent No.1, learned counsel Sri A.Valen for the impleading applicant/respondent No.6 in W.A.No.379/2024, learned counsel Sri M.K.Prithveesh for impleading applicants/respondent No.2 to 5 in W.A.No.379/2024 and perused the material available on record.

¶58

Learned AAG Sri Vikram Huilgol for the appellants-

¶59

State contends that, respondent No.1 has challenged the Notifications dated 06.10.2023 and 09.10.2023 before the

¶60

¶61

learned Single Judge as the same are in the teeth of Sections 16 and 30 (1) of the RTE Act. He would contend that the respondents have not challenged the Notification dated 16.11.2023, which empowered the KSEAB to conduct SA-2 and also the prescribed mode and manner in which the same requires to be conducted. He would persuade this Court and submit that, without there being challenge to the Notification/proceedings dated 16.11.2023, learned Single Judge erred in holding that the same is in the teeth of the RTE Act as stated supra .

¶62

Further arguing to the sanctity of the Notifications dated 06.10.2023 and 09.10.2023, he would contend that the same were passed in the capacity of Section 22(1) of the KEA, which reads thus:

¶63

"22. Examinations.- (1) The examination system, whether by internal assessment, external assessment or partly internal and partly external assessment, shall be so regulated by the competent authority as to make it a reliable and effective method of student evaluation."

¶64

¶65

Emphasising on the above provisions, he would

¶66

contend that, the State has power to decide the scheme of examination and the manner in which the Competent Authority has the power to conduct such examination. Further, he also draws the attention of this Court to Section 2(7) of the KEA, which reads thus:

¶67

"2. Definitions.- In this Act, unless the context otherwise requires,-

¶68

(1) to (6) xxxx

¶69

(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;"

¶70

He would submit that when the provisions of Sections 22(1) and 2(7) of the KEA read in conjecture, then the State is very much empowered to appoint the Competent Authority under the provisions of the KEA to implement the scheme of examination as per Section 22(1) of the KEA.

¶71

¶72

Further, he would also submit that the State has right to pass Notification imparting the responsibility to KSEAB being the Competent Authority as Section 2(7) vests prerogative right on the State to do so by way of Notification.

¶73

Further, he would also contend that the learned Single Judge erred in holding that, the State is required to formulate the rules only after the required mandates of prior publication as mandated under the provisions of Section 145 of the KEA and would submit that, as stated supra the impugned Notifications are the Notifications passed under the provisions of Sections 2(7) and 22(1) of the KEA, as such, the same cannot be interpreted as the rules made under such provisions and appointing the Competent Authority to the examination, which is now to be conducted. No where in the KEA calls for amendment of statute or enactment of rules, but can be done by a Notification, which does not mandate for any prior publication. As such, he would support the action taken by the State Authorities in passing the impugned Notifications.

¶74

¶75

Thereafter, he would submit that, there emerges no separate amendment to the statute or rule specifying the powers and functions of the Competent Authority for the reason that, the provisions of Section 15 of the Karnataka Secondary Education Examination Board Act, 1966 (for short 'KSEEB Act') already holds a field. As such, when the Notification being passed in these capacities and the State expressly by way of Notification has directed the Competent Authority to act as per Section 15(a)(iv) of the KSEEB Act, there arise no opportunity of requirement of prior publication of these Notifications which is done in the interest of the students and also keeping in mind their developments.

¶76

Moreover, he would also in addition to this submissions, would draw the attention of this Court to Section 145 of the KEA and would submit that, even for the argument sake, the Notification is considered to be rule that is being made, there is no bar or impediment happened on the State Government to make a prior publication as Section 145 of the KEA only mentions that "State may do so" and no where an

¶77

¶78

express mandatory provisions is carved out in the Act. As such, he would contend that even if the version of the respondents are to be considered, learned Single Judge erred in holding that Section 145 of the KEA is a mandatory provision and also has failed to suffice the same with the cogent reason that why a provision carved out invoking "May" should not be read as "Must".

¶79

Further referring to the findings recorded by the learned Single Judge, he would also contend that, the appellants had only referred to Section 7 of the KEA in order to impress upon the Court and submit that the State is empowered under the Act to form the scheme of examination as flown from the powers under Section 7 of the KEA. Further, he also submit that the present Notifications are the Notifications passed expressly on the provisions of Section 22(1) ) of the KEA and the learned Single Judge holding it otherwise is misplaced. As such, he would submit that, the present Notifications now passed in no way can be said to be a rule, but can only be read as a Notification made exercising the powers under Section 22(1) of the KEA.

¶80

¶81

He repeatedly assert this Court that the present Notifications being passed as per the provisions of the KEA cannot be read as per the provisions of the RTE Act and the learned Single Judge, without considering the said aspect, has erred in holding that, the same is under the teeth of the provisions of the RTE Act.

¶82

Learned AAG would also submit that, in the case on hand, the Notification informing the institution was already passed on 16.11.2023 and the time tables were also issued on 13.12.2023 and admittedly, there was no interim order in the nature of stay granted by the learned Single Judge during the pendency of the writ petitions. As such, he contends that there are as many as 42,250 Government Schools and 2,660 Aided Schools, in total 46,000 Schools in the State, which have made all such preparations for the assessment and there are as many as 28 lakhs students were also been mentally and academically prepared to write SA-2, which was scheduled on 11.03.2024. In addition to these, now in the present scenario, already two examinations have also been conducted and as such, the stand

¶83

¶84

of the respondents that, the sudden action of the State has hampered the rights of the respondents and also the students does not hold good. In addition to these, the above contention of the State is also expressed unilaterally by the impleading applicants i.e., proposed respondent Nos.2 to 5, who are the parents and students of the Government Schools who have been affected in the said SA-2.

¶85

On behalf of the impleading applicants i.e., respondent Nos.2 to 5, learned counsel Sri Prithveesh vehemently submits that the very action of staying the SA-2 by the Hon'ble Apex Court has caused distress in the minds of the students as the students were made known of the same in the month of November 2023 itself and accordingly, the students have put in best efforts to write SA-2 and also mentally prepared for the same. Such being the case, cancellation of the examination in the midst is no manner useful to bring up the well being of the students. Accordingly, the learned AAG so also the learned counsel for the impleading applicants for the

¶86

¶87

students prays to allow the writ appeals and to set aside the impugned order passed by the learned Single Judge.

¶88

16. Per contra , learned counsel Sri A.Velan for the impleading applicant i.e., respondent No.6 in W.A.379/2024 primarily advanced his arguments that the Notifications now sought to be effected by the State, without consultation of the parents or the organization, who are imparting the education as per the whims of the parents and according to him, this very system is as per the norms of the decision of Hon'ble Apex Court in the case of State of Karnataka v. Associated Management of English Medium Primary & Secondary Schools, reported in (2014) 9 SCC 485 , wherein in paragraph 45, the Hon'ble Apex Court held as under:

¶89

"45. Our answer to Question (ii), therefore, is that a child, and on his behalf his parent or guardian, has the right to choose the medium of instruction at the primary school stage under Article 19(1)(a) and not under Article 21 or Article 21-A of the Constitution."

¶90

¶91

Relying the above decision, he would contend that,

¶92

the language in which the students are to be educated is the domain of the decision of the parents are concerned and it is a very fundamental right vested with the parents/children to decide the language in which they would study. He would submit that, by implementation of the Notifications now passed vide order 06.10.2023, 09.10.2023 and the order at 16.11.2023, without hearing the parents or the stakeholders, would no way authorize the State to act on it as the same would effect the rights of the children, who are studying in the institutions of the Private Schools whose medium of education is as per the choice of the parents, unlike the public schools who maintain uniform medium of education.

¶93

Further, to buttress the same, he would rely on the decision of the Hon'ble Apex Court in the case of Society for Unaided Private Schools of Rajasthan vs. Union of India and another reported in (2012) 6 SCC 1 and would submit that the said action of the institutions departing education in the language, medium decided by the parents is identified as the

¶94

¶95

fundamental right and the said decision though may not be without consultation of the Board herein, but very much within the mandates of Article 21A of the Constitution of India. Hence, on this ground, he would impinge the action taken by the State in passing the above said notifications without consulting the stakeholders in prior.

¶96

Further, learned counsel persuades the attention of this Court to Paragraph No.130 of the decision of the Full Bench of this Court in the case of Associated Managements of Primary and Secondary Schools in Karnataka vs. State of Karnataka reported in 2008 SCC OnLine Kar 301 , which reads as under:

¶97

"130. Thus, this parental right is recognised by the United Nations as is clear from Article 26(3) of the Universal Declaration of Human Rights Convention on the rights of the child, which was adopted by the General Assembly of the United Nations on 20th November 1989, which was accepted by the Government of India on 11th December 1992 which recognizes that every child has an inherent right to life, right to education and the parents have the

¶98

¶99

right to choose the kind of education that shall be given to their children. The United Nations and other International Organizations only has adopted the national ethos of this country, which is cherished for over centuries in their land."

¶100

Accordingly, he would submit that the rights of the parents are also identified by Article 26(3) of the Universal Declaration of Human Rights to which India is also signatory, wherein the said Article vests a right on the parents and also the children and inherent right to choose the manner of education and also the kind of education that is to be given to their children. In addition to the above aspects, he would also persuade this Court to Article 51A (k) of Constitution of India and would submit that, it is the duty vested on every parent of the society to impart best education to their children between the age of 6 to 14. Under these circumstances, he would submit that when the parents in association with the respondent institution have agreed to impart the education in a particular standard keeping in mind their rights as enshrined under the provisions of the Constitution which is high lightened in the

¶101

¶102

above cited decisions. He would also emphasis his arguments by relying on the object of the RTE Act which has come to force and the same reads as under:

¶103

"The Right of Children to Free and Compulsory Education Act, 2009 aims to facilitate the children of the country in acquiring elementary education. For achieving this objective, section 16 of the Act provides for two things, namely, the first that no child undergoing elementary education shall be expelled form the school and secondly that no such child shall be held back in any class.

¶104

4. The later condition that no child shall be held back in any class while undergoing elementary education is, however, not showing healthy results. It is seen that children are routinely being promoted from one class to the higher one without any linkage to the learning they have attained. There are instances where the children's attendance have been very less and consequently, they were not able to learn meaningfully. This defeats the purposes of the Act.

¶105

3. The Bill seeks to lay down some bench mark the fulfilment of which should be made

¶106

¶107

mandatory before a child is elevated to the next higher class while acquiring elementary education.

¶108

4. The Bill seeks to achieve the above objectives."

¶109

The State adopting the method of passing the Notification without consulting the stakeholders has not only prejudice the rights of the children, but also the students are put under the great hardship to write examination those aspects which they had no occasion to study and also in the language in which they have not studied the subject. Such being the scenario, pressurizing the students to write the examination without preparation or on a fresh preparation of lessons which was not taught to them by their institution is not only putting them to hardship, but also playing with the rights of the children which affects their well being. He would submit that this action of the State have come in the way of parental right in imparting the education to their children which the pivotal point of democratic system and also the basic structure of the society. He also submits that the very action of the State would only depict that the State has treated these children as a commodity

¶110

¶111

and a creature but not as a human being whose bright future on which the interest of whole nation lies. In support of this contention, the learned counsel would rely upon the decision of the Hon'ble Apex Court in the case of Ahmedabad St. Xavier's College Society v. State of Gujarat reported in (1974) 1 SCC 717 , wherein the Hon'ble Apex Court, in paragraph 141 held as under:

¶112

"141. The fundamental postulate of personal liberty excludes any power of the State to standardize and socialize its children by forcing them to attend public schools only. A child is not a mere creature of the State. Those who nurture him and direct his destiny have the right coupled with the high duty to recognize and prepare him for additional obligations."

¶113

He would also buttress his submission relying on the decision of the Full Bench of the Hon'ble Madras High Court in the case of T.N.Tamil and English Schools Association v. State of T.N., reported in 2000 SCC OnLine Mad 314 , wherein in paragraphs 74 and 75, it held as under:

¶114

¶115

"74. The parents on behalf of the children can call upon the State to provide free education upto 14 years. Such education has to be given to shape the children to face the challenges and cater to the needs of a changing society. Under Article 21 of the Constitution of India, a citizen has a right to safeguard education. According to the Universal Declaration of Human Rights (Convention on the Rights of the Child) as accepted by Government of India even in 1992 parents have a prior right to choose the kind of education that shall be given to their children, which the Apex Court described even in 1974 as a pivotal right of the parents in a democratic country. The beneficiary of such a fundamental right should be allowed to enjoy it in the fullest measure. Article 350A of the Constitution of India is not restricting such a right in any manner, as it imposes only an obligation on the State and nothing more.

¶116

75. Now the parents are not demanding the State to provide education. They desire and only want to be left alone to decide. It is not as if, they want their children to learn something, which is prohibited under law. All that they want is to educate their children all the subjects of their choice. Certainly, it cannot be said that the nation's image and dignity will

¶117

¶118

be affected, as the language English has already been accepted by this nation as an ‘associate language. No one can claim to know better than the parents about the child, to decide, as to what the child requires in the sphere of education and such a decision they take keeping their duty in mind to shape the career and destiny of their child. With the nation touching a population of 100 crores and the State of Tamil Nadu with more than 6 crores, may not be able to do much in view of the limitations and constraints on them. First, the State has to endeavour to provide food and shelter to every one and education comes only thereafter. It can safely be said that the only logical conclusion that flows from the various decisions referred to supra and the discussions made above, is that the right to education is a fundamental right, which also includes the right to choose the medium of instruction and it can be exercised by the parents on behalf of their children."

¶119

He would also relied on the decision of the Delhi High Court in the case of Parent Forum for Meaningful Education v. CBSE reported in 1993 SCC OnLine Del 481 , wherein it held

¶120

that it is mandatory to consult all the stakeholders including

¶121

¶122

parents, parent-teacher associations and the schools effecting change in the evaluation methodology.

¶123

"1……..As noted, above, students who were going to be directly affected and also their parents were not considered necessary to be consulted and their suggestions obtained. No doubt, first respondent is empowered to conduct, examinations but in the exercise of that power it has to act reasonably, in good faith and on correct grounds. In other word, when the first respondent used its discretion in introducing a new system of examination papers, that discretion had to be exercised reasonably, fairly and justly. The discretion is not absolute or unfettered. When while exercising its discretion the first respondent ignores a relevant consideration or takes into account an irrelevant consideration, its decision cannot be said to be within the confines of reasonableness. That way it acts arbitrarily and a decision is liable to be set aside. This position in law is well settled.

¶124

5…….. The principals can also be asked to seek the views of the Parents-Teacher Associations in their respective school on this issue. This will ensure that the views of the parents and students will also be placed before the respondent for its consideration

¶125

¶126

before any final decision is taken in this matter for future."

¶127

By referring to all the above provisions and the law laid down by the Hon'ble Apex Court and other various High Courts, the learned counsel for the impleading respondent No.6 would submit that, before the appellants-State acting upon to decide on passing the impugned Notifications would have made its honest efforts in consulting the stakeholders and obtaining their opinions before conducting examination. But the present action of the State giving powers to the Court without even consulting the stakeholders is justified even though the same is seen keeping in view of fundamental rights of the children/parents. He would also submit that, in no manner, it can be said that the State Government has scientifically applied its mind before taking such decision, but the action seems only in a manner giving a go-bye entirely to the rights of the children/parents. Further, by relying on the findings in T.N.Tamil and English Schools Association's case supra, he

¶128

would submit that though Article 21 of the Constitution carves out to an exception, thereby giving a right on the State to

¶129

¶130

withhold the same by establishing a procedure to the contrary, but same would be keeping in mind the balance of interest of the parents and also the State Government who intend to develop the standards of education among the children that is now being imparted by the State.

¶131

He would further submit that by way of passing the

¶132

above Notifications, the State has not only violated the rights of the children, but by handing over the same to the KSEAB has violated the provisions of RTE Act. As such, he would draw the attention of this Court to Article 254 of the Constitution of India and submit that the education being the aspect of concurrent list by virtue of 42^nd Amendment to Constitution, any enactment formulated under Part-III i.e., concurrent list by the Central Act could be repugnant over the enactments made by the State Government. As such, he would contend that even though State would defend its action under the provisions of the KEA, but the same should be in consonance with the provisions of RTE Act, more fully, Section 30 of the RTE Act. It is on this ground, he would submit that, disregarding the Central Act, which has

¶133

¶134

repugnant force over the State enactment is not only in violation of the rights of the children/parents in Part III of the Constitution, but also in violation of the Constitutional ethos under the Article 254 of the Constitution. He would also persuade this Court to National Education Policy of 2020 which emphasize on balancing the rights of the children, parents and also on improving the standards and pattern of education clearly points out that, the standard should be improved in such a manner without engraving the minds of the children thereby burdening with unwanted attentions and also the policy highlights about bringing the developments only after consultation of the parents and also getting the feedbacks from them. In such circumstance, in all the aspects of Central enactments and rules so also mandates by the different organization of the United Nations have been holding the field, he would submit that the State, without considering any of these aspects, has proceeded to pass the Notifications in a manner hijacking overall these provisions enshrined for the well being of the children of the Country, thereby completely acting in derogations of the provisions of Article 254 read with Part III of

¶135

¶136

the Constitution. In addition to these submissions, he would persuade this Court to the amendment dated 20.02.2017 made to the RTE Rules, 2010 wherein Section 2(c) came to be amended by the Central Government and would submit that when it comes to adopting the manner in which the examination is to be conducted, it is mandate for the Central Government to appoint the Competent Authority and to frame the guidelines thereunder. As such, he would submit that if viewed from any angle the action of the State in passing these impugned notifications, the same is in violation of the Constitutional mandates so also the provisions of Sections 30 (1) and 16 of the RTE Act.

¶137

Learned counsel Sri K.V.Dhananjay for respondent No.1 in both the appeals, addressed his challenge to the impugned Notifications by the appellants-State, would contend that very Notifications dated 06.10.2023 and 09.10.2023 is worked out to give the power of conducting the examination to the KSEAB, thereby allowing the Board to conduct the examination to the students of 5^th and 8^th standards, thereby

¶138

¶139

violating the rights of the children, which is enshrined under the provisions of Sections 16 and 30 (1) of RTE Act, which reads as under:

¶140

"16. Prohibition of holding back and expulsion.No child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education.

¶141

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

¶142

According to the learned counsel, on conjoint reading

¶143

of the above provisions, the RTE Act 2009 being Central enactment, which would prevail over any State enactment has been passed with an object of making sure that the State is imparting best quality of education to the students between the age groups of 6 to 14 and it also empowers the children with a right of not to get themselves burdened in attending board examination till they passes 8^th standard and also vest their right of no expulsion and regular examination by way of Section 16. Such being the circumstance, the very action of the State by

¶144

¶145

impugned Notification dated 06.10.2023 handing over the responsibility of conducting examination to the children of 5^th and 8^th standard to the KSEAB is in violation of the provisions of Section 16 and 30 of the RTE Act. He would further emphasis before this Court the importance of Right to Education Act and would submit that the rationale adopted by the Central Government in fixing the standard of not to conduct board examination till 8^th standard is clearly depicts in the objects and also in the Rules made to the Act i.e., the children of this age will not be able to handle the stress and the result of the board examination and as such, the stress at an early age would be harmful for the students to their future. As such, he submits that the State overlooking the provisions carved out in the RTE Act and the proceeding with the provisions of KEA, thereby giving a go-bye to the rights of the children under the provisions of Article 21 of Constitution is completely beyond any justification and is liable to be struck down at the very instance itself.

¶146

Additionally, he would submits that even accepting

¶147

the action of the State that they have passed the Notifications

¶148

¶149

dated 06.10.2023 and 09.10.2023 giving the power to the KSEAB as per Section 22 of the KEA, then on examination of the provisions of Section 22 would mandate the State Government to form a rule prescribing the manner and scheme of conducting the examination and if the same is viewed from any angle of Section 145 (2) (iv) of the very same act, then it certainly would require to be priorly publicized before it being officially notified in a public gazette. He would also emphasis on the importance of prior publication and would argue identical to the arguments advanced by the learned counsel for the impleading applicant i.e., respondent No.6. He would further submit that the standard in which the students are made to study, the manner in which they are imparted the education differs from the public schools and private schools, which transpires the rigid measure to implement the idea of the State Government burdening the young minds of the State, who are the future of the State is in no manner justifiable and as such, he would repeatedly assert before this Court the very act of the State conducting the examination more specifically SA-2 by handing it over to the KSEAB in itself is in violation of Section 30 of RTE Act. He would

¶150

¶151

submit, though the Board examination is no where defined in the Act or in the General Clause, but the same in any manner and when verified through various legal dictionaries, would led to a single opinion that any examination conducted by the Board would amount to Board examination, thereby the notification is in the teeth of RTE Act as stated supra. By addressing this to the importance of the decisions now being taken by the State Government, the learned counsel would contend that though Section 145 (2) (iv)) of KEA would prescribe the duty of prior publication in a 'May' clause, in the scenario necessitated it must read as "Must" clause and in support of this contention, he would rely upon the judgment of the Hon'ble Apex Court in the case of Ramakrishna Vivekananda Mission Vs. State of W.B. and

¶152

others reported in (2005) 9 SCC 53 and emphasis that the Hon'ble Apex Court in this case while interpreting requirement of publication of 'Special Rules' framed under Rule 33 of West Bengal Board of Secondary Education Act, 1963, has held said requirement would be mandatory requiring strict compliance by referring to Section 24 of Bengal General Clause Act, 1899. Accordingly, he ponder upon the requirement of previous

¶153

¶154

publication of 'Rules' is mandatory under Section 145 of the KEA. He further relying on the judgment of the Hon'ble Apex Court in the case of The Municipal Corporation Bhopal, M.P., vs. Misbahul Hasan and Others reported in (1972) 1 SCC 696 submits that the Hon'ble Apex Court in this case interpreted words 'State Government may after previous publication' in Section 433 of Madhya Pradesh Municipal corporation Act, in light of Section 24 of MP General Clause Act, 1957 has mandatorily requiring strict compliance. He would further rely on the judgment of the Hon'ble Apex Court in the case of Consumer Online Foundation and others vs. Union of India and others reported in Consumer Online Foundation and others vs. Union of India and others reported in (2011) 5 SCC 360 and submits that in this case the Hon'ble Apex Court while considering Section 22 (A) of the Airports Authority of India Act, 1994, held that the phrase 'Rate as may be prescribed' would have the effect of mandatorily requiring the rules to be framed in order to exercise the power to levy development fee.

¶155

¶156

By relying on these judgments, he would contend

¶157

that, Section 145 (2) (iv) of the KEA as it is phrased as "May", the same has to be read as a mandatory provision for the reason that any rules passed under this Act would have wider implication which affects the stakeholders which includes parents and institutions who are imparting the education to the children, as such, in such scenario like case on hand, he would time and again impress his opinion on this Court that the State should have made Notification to implement what is now implemented by way of drafts and also that the same would require mandatorily practice of prior publication of the rules as enshrined under the provisions of Section 23 of the General Clauses Act. Thereby, he submits that if the same is priorily publicized would bring down all the stakeholders to the table of discussion thereby allowing the State to legislate a law, free from all the encumbrances. He would submits that this basic requirement being unmet in the given case. Moreover, the impugned Notifications being passed beyond the authority of law under Section 22 would be in the teeth of provisions of Section 145 of KEA and also Article 21 of the Constitution and would

¶158

¶159

vehemently submit the impugned Notifications requires to be set at naught at the hands of this Court.

¶160

Learned counsel further address this Court to the provisions of Section 38 (4) of the RTE Act and also Section 7 of the KEA Act and would contend that the State being the Competent Authority to decide upon the manner in which the competitive examination is to be conducted, the appointment of Competent Authority to conduct the same and also deciding the scheme of examination, but if Section 38 (4) of the RTE Act and also Section 7 of the KEA Act are carefully read, then the State is fundamentally obligated to frame rules prescribing all the above mentioned procedure and the same cannot be made by way of Notification. Further he would contend that even Section 22 of the KEA Act is read carefully, then the same would only prescribe the method of framing the rules to modulate the examination that is to be conducted and all these provisions would only empower the State Government to frame the rules and not to notify through the Notification and when there exists no power on the State Government to publish any Notification,

¶161

¶162

but only to frame rules, the State opting such measure would only indicate that, the State in order to implement its whims has opted to do something that can be done directly. Hence, this attempt of the State in opting for back door entry to the provisions is against the constitutional Doctrine of Colurabel Legislation. As such, on the strength of the judgments of the Hon'ble Apex Court, he would contend that the provisions under Section 145 should be read as mandatory provisions when considering the scenario now emerged for adjudication before this Court.

¶163

In addition to the above contentions, learned counsel also placed his written submissions to buttress his contentions.

¶164

We have heard the respective counsels and also perused the pleadings of all the parties so also written submission placed before us and carefully perused the findings of the learned Single Judge. On considering all the materials so also the submissions of the parties, in our opinion, the questions that would arise for consideration are:

¶165

¶166

1. Whether the exam now being conducted by the KSEAB can be called as Board exam?

¶167

2. Whether the Notifications dated 06.10.2023, 09.10.2023 and 16.11.2023 are in the teeth of Section 16 and 30 (1) of the RTE Act?

¶168

3. Whether the impugned Notifications passed under the provisions of Section 22 of KEA requires prior publication, thereby the present act of the State is in violation of the provisions of Section 145 of the KEA?

¶169

Before proceedings with the contentions that needs

¶170

our attention, we deem it necessary to clear out the facts that are tabled for consideration.

¶171

The State, as aforementioned, had come up with the

¶172

measure to assess the students of both 5^th and 8^th standard and the same reads as under:

¶173

For class 5

¶174

Components for the proposed scheme of assessment for 2023- 24

¶175

04 Formative assessments (FA) and 02 Summative Assessment (SA) will be conducted in 2023-24.

¶176

Each FA carries 15 marks

¶177

Each SA carries 20 marks.

¶178

� The cumulative marks for the assessments, calculated as

¶179

¶180

FA1 +FA2+FA 3+FA4+SA1+SA2 = 100marks

¶181

� Or as, 15+15+15+15+20+20 = 100 marks

¶182

Note:

¶183

Assessment is proposed to be conducted by the KSEAB only for the SA-2 component. The rest of the assessments would be conducted at the school level.

¶184

The students would be required to take up the assessment for the SA-2 component for 50 marks (40 marks for written assessment and 10 marks for oral assessment), which would then be scaled down to 20 marks.

¶185

No student shall be held back/detained and promotion to a higher grade shall not be based on performance in the proposed assessment.

¶186

The syllabus for the exam will cover the portion to be completed from 01.11.2023 to 28.02.2024 only.

¶187

The chapters have already been divided month-wise according to the shaikshanika Margadharsi, which is authorized and published by the CPI office.

¶188

This information is also available on the School Education website.

¶189

For Class 8

¶190

Components for the proposed scheme of assessment for 2023- 24 04 Formative assessments (FA) and 02 Summative Assessment (SA) will be conducted in 2023-24.

¶191

Each FA carries 10 marks

¶192

Each SA carries 30 marks.

¶193

The cumulative marks for the assessments, calculated as FA1+FA2+FA3+FA4-SA-1+SA-2=100marks

¶194

Or as, 10+10+10+10+30+30 = 100 marks

¶195

Or as, 40(sum of FAs) + 60 (sum of SAs) = 100 marks

¶196

Note:

¶197

Assessment is proposed to be conducted by the KSEAB only for the SA2 component. The rest of the assessments would be conducted at the school level.

¶198

¶199

The students would be required to take up the assessment for the SA-2 for 60 marks, (50 marks for written assessment and 10 marks for oral assessment) which would then be proportionately scaled down to 30 marks.

¶200

No student shall be held back/detained and promotion to a higher grade shall not be based on performance in the proposed assessment.

¶201

The syllabus for SA-2 will cover the portion to be completed from 15.06.2023 to 28.02.2024.

¶202

The chapters have already been categorized month-wise according to the shaikshanika Margadharsi, which is authorized and published by the CPI office. This Information is also accessible on the School Education website.

¶203

Under these circumstances, the appellants-State handed over the responsibility of conducting examination to KSEAB by way of Notifications dated 06.10.2023 and 09.10.2023 and also issued subsequent proceedings dated 16.11.2023 instructing the Competent Authority the manner and the procedure to conduct examination for these students, which reads as under

¶204

"1. 5, 8 ªÀÄvÀÄÛ 9£ÉÃ vÀgÀUÀwUÀ¼À «zÁåyðUÀ½UÉ ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À-2( SA -2) ªÀÄvÀÄÛ 11£ÉÃ vÀgÀUÀwAiÀÄ «zÁåyðUÀ½UÉ ªÁ¶ðPÀ ¥ÀjÃPÉëAiÀÄ£ÀÄß PÀ£ÁðlPÀ ±Á¯Á ¥ÀjÃPÉë ªÀÄvÀÄÛ ªÀiË®å¤tðAiÀÄ ªÀÄAqÀ°AiÀÄ ªÀw¬ÄAzÀ ±Á¯Á ªÀÄvÀÄÛ PÁ¯ÉÃdÄ ºÀAvÀzÀ°èAiÉÄÃ £ÀqÉ¸ÀÄªÀÅzÀÄ.

¶205

¶206

5, 8 ªÀÄvÀÄÛ 9£ÉÃ vÀgÀUÀwUÀ¼À ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À-2 PÉÌ ¸ÀA§A¢ü¹zÀAvÉ ¥Àæ±Éß¥ÀwæPÉUÀ¼À£ÀÄß PÀ£ÁðlPÀ ±Á¯Á ¥ÀjÃPÉë ªÀÄvÀÄÛ ªÀiË®å¤tðAiÀÄ ªÀÄAqÀ°AiÀÄ PÉ.J¸ï.PÀÄå.J.J.¹ ªÀw¬ÄAz À gÁdåªÀÄlÖzÀ°è ¹zÀÞ¥Àr¹ ¸ÀA§A¢ü¹zÀ PÉëÃvÀæ²PÀëuÁ¢üPÁjUÀ¼À ¯ÁV£ï£À°è ®¨sÀå ªÀiÁqÀÄªÀÅzÀÄ.

¶207

11£ÉÃ vÀgÀUÀwAiÀÄ ªÁ¶ðPÀ ¥ÀjÃPÉëUÉ ¸ÀA§A¢ü¹zÀAvÉ ¥Àæ±Éß¥ÀwæPÉUÀ¼À£ÀÄß PÀ£ÁðlPÀ ±Á¯Á ¥ÀjÃPÉë ªÀÄvÀÄÛ ªÀiË®å¤tðAiÀÄ ªÀÄAqÀ°AiÀÄ ¦AiÀÄÄ ¥ÀjÃPÁë «¨sÁUÀ¢AzÀ gÁdåªÀÄlÖzÀ°è ¹zÀÞ¥Àr¹ ¸ÀA§A¢ü¹zÀ f¯Áè G¥À¤zÉÃð±ÀPÀgÀÄ ±Á¯Á ²PÀët E¯ÁSÉ (¥ÀzÀ« ¥ÀÆªÀð) «¨sÁUÀzÀªÀgÀ ¯ÁV£ï £À°è ®¨sÀå ªÀiÁqÀÄªÀÅzÀÄ.

¶208

5, 8 ªÀÄvÀÄÛ 9£ÉÃ vÀgÀUÀwUÀ¼À ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À-2 ( SA -2) ºÁUÀÆ 11£ÉÃ vÀgÀUÀwAiÀÄ ªÁ¶ðPÀ ¥ÀjÃPÉëUÉ DAiÀiÁ ±Á¯Á/ PÁ¯ÉÃdÄUÀ¼ÉÃ ¥ÀjÃPÁë PÉÃAzÀæUÀ¼ÁVgÀÄvÀÛªÉ.

¶209

5, 8 ªÀÄvÀÄÛ 9£ÉÃ vÀgÀUÀwUÀ¼À ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À-2 ( SA -2) £ÀqÉAiÀÄÄªÀ ¸ÀAzÀ¨sÀðzÀ°è ¸À«ÄÃ¥ÀzÀ ±Á¯ÉUÀ¼À ²PÀëPÀgÀ£ÀÄß PÉÆoÀr ªÉÄÃ°éZÁgÀPÀgÀ£ÁßV £ÉÃ«Ä¸ÀÄªÀÅzÀÄ.

¶210

11£ÉÃ vÀgÀUÀwAiÀÄ ªÁ¶ðPÀ ¥ÀjÃPÉë £ÀqÉAiÀÄÄªÀ ¸ÀAzÀ¨sÀðzÀ°è DAiÀiÁ PÁ¯ÉÃf£À G¥À£Áå¸ÀPÀgÀ£ÉßÃ PÉÆoÀr ªÉÄÃ°éZÁgÀPÀgÀ£ÁßV £ÉÃ«Ä¸ÀÄªÀÅzÀÄ.

¶211

5, 8 ªÀÄvÀÄÛ 9£ÉÃ vÀgÀUÀwUÀ¼À ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À-2 gÀ( SA -2) GvÀÛgÀ ¥ÀwæPÉUÀ¼À ªÀiË®åªÀiÁ¥À£ÀªÀ£ÀÄß vÁ®ÆèPÀÄ ºÀAvÀzÀ°è ªÀÄvÀÄÛ 11£ÉÃ vÀgÀUÀwAiÀÄ ªÁ¶ðPÀ ¥ÀjÃPÉëAiÀÄ GvÀÛgÀ¥ÀwæPÉUÀ¼À ªÀiË®åªÀiÁ¥À£ÀªÀ£ÀÄß ¸ÀA§A¢ü¹zÀ PÁ¯ÉÃdÄUÀ¼À°èAiÉÄÃ ¤ªÀð»¸ÀÄªÀÅzÀÄ.

¶212

ªÀiË®åªÀiÁ¥À£À ¥ÀÆtðUÉÆAqÀ vÀPÀëtªÉÃ «zÁåyðUÀ¼À ¥sÀ°vÁA±ÀªÀ£ÀÄß ¸ÀA§A¢ü¹zÀ ªÀÄÄRå ²PÀëPÀgÀÄ/¥ÁæA±ÀÄ¥Á®gÀÄ J¸ï.J.n.J¸ï.£À°è C¥ÉÆèÃqï ªÀiÁqÀÄªÀÅzÀÄ.

¶213

¶214

5, 8 ªÀÄvÀÄÛ 9£ÉÃ vÀgÀUÀwUÀ¼À ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À-2 gÀ°è ( SA -2) AiÀiÁªÀÅzÉÃ «zÁåyðUÀ¼À£ÀÄß C£ÀÄwÛÃtð ªÀiÁqÀÄªÀAw®è( No Detention ) ºÁUÀÆ ¥sÀ°vÁA±ÀªÀ£ÀÄß ¸ÀA§A¢ü¹zÀ «zÁåyðUÀ¼ÀÄ ªÀÄvÀÄÛ ¥ÉÆÃµÀPÀjUÉ ªÀiÁvÀæ ¤ÃqÀÄªÀÅzÀÄ.

¶215

11£ÉÃ vÀgÀUÀwAiÀÄ ªÁ¶ðPÀ ¥ÀjÃPÉëAiÀÄ°è «zÁåyðUÀ¼ÀÄ C£ÀÄwÛÃtðgÁzÀ°è ¥ÀÆgÀPÀ ¥ÀjÃPÉëAiÀÄ£ÀÄß DAiÀiÁ PÁ¯ÉÃdÄ ºÀAvÀzÀ°è £ÀqÉ¸ÀÄªÀÅzÀÄ.

¶216

5, 8 ªÀÄvÀÄÛ 9£ÉÃ vÀgÀUÀwUÀ¼À ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À-2PÉÌ ( SA -2) vÀUÀ®ÄªÀ ªÉZÀÑªÀ£ÀÄß ¥Àæ¸ÀPÀÛ ªÀµÀðPÉÌ ªÀiÁvÀæ PÀ£ÁðlPÀ ±Á¯Á ¥ÀjÃPÉë ªÀÄvÀÄÛ ªÀiË®å¤tðAiÀÄ ªÀÄAqÀ°AiÀÄ°è ®¨sÀå«gÀÄªÀ C£ÀÄzÁ£ÀzÀ°è ¨sÀj¸À®Ä C£ÀÄªÀÄw¹zÉ.

¶217

11£ÉÃ vÀgÀUÀwAiÀÄ ªÁ¶ðPÀ ¥ÀjÃPÉëAiÀÄ ¥Àæ±Éß¥ÀwæPÉUÀ¼À gÀZÀ£É ªÀÄvÀÄÛ r.n.¦ PÁAiÀÄðPÉÌ vÀUÀ®ÄªÀ ªÉZÀÑªÀ£ÀÄß ¥Àæ¸ÀPÀÛ ªÀµÀðPÉÌ ªÀiÁvÀæ PÀ£ÁðlPÀ ±Á¯Á ¥ÀjÃPÉë ªÀÄvÀÄÛ ªÀiË®å¤tðAiÀÄ ªÀÄAqÀ°AiÀÄ°è ®¨sÀå«gÀÄªÀ C£ÀÄzÁ£ÀzÀ°è ¨sÀj¸À®Ä C£ÀÄªÀÄw¹zÉ."

¶218

Now the primary limb of the arguments advanced by

¶219

the respondents both before this Court and also before the learned Single Judge challenging the above development is that the exam now scheduled to be held by way of Notifications dated 06.10.2023, 09.10.2023 and 16.11.2023 is a board examination conducted by the KSEAB and as such, the same cannot be conducted by the State Government as the same is in the teeth of the provisions of Sections 16 and 30 (1) of RTE Act. In

¶220

¶221

address to this, learned AAG would contend that exam now scheduled to be held is made on the Notification that draws its strength from the provisions of Section 22 of the KEA Act and not from the provisions of RTE Act and hence, he would submit the stand of respondents in applying the same is misplaced. In examination of the same, this Court would now emphasis upon the provisions of Section 22 of KEA and also Section 16 and 30 (1) of the RTE Act. Admittedly, with regard to the subject 'Education' is put under the Part III i.e., concurrent list of the 7^th schedule of the Constitution. As such, when this Court delves upon to examine the action of the State in passing the impugned Notifications, though it is under the provisions of the KEA, but it is mandate to examine the same as per the RTE Act as the same prevails over KEA in view of provisions of Article 254 (2) of the Constitution of India. As the basic challenge were laid down on the ground of it being violative of rights of the student of 5^th and 8^th Standard, this Court would now decide the legality of the impugned notifications keeping in mind the same factual background. As such, in order to examine the correctness of the notifications now passed, this Court when raised a query as to

¶222

¶223

the manner in which the State is conducting the Board examination are concerned, the counsel for the respondents would concede to the fact that the examination for 10^th and 12^th standard is being conducted from the inception of the Board. Further, education system in the State wherein the examination conducted for 10^th and 12^th standard by the Board will involve certain features. Now we would like to draw the difference between the Board examination and the assessment introduced by the State under the notifications challenged.

¶224

Point of Difference	Board Examinations (For instance of the nature conducted at the 10th Std. level- SSLC)	Assessments envisaged for 8^thand 9^thstan students	5^th, dard
Objective	These examinations provide a measure of students' relative capabilities and are often determinative of students' selection of further studies, thereby creating a	i. The evalu mechanism provide Government data information on effectiveness o Continuous	ation will the with and the f the
	permanent record and having bearing	Learning Pro contemplated	cess
	on the future and career of the student	under the Policy; ii. To identify areas/subjects	RTE the in

¶225

¶226

		which students require additional attention.
Responsibility	Sole responsibility of the Student	Collective responsibility of Government, Teachers, Schools and Students.
Fees and Charges in respect of Examinations/ Assessments	Candidates registering for SSLC board examinations are expected to pay an examination fee.	The government has ordered that all assessment and maintenance expenses for 5^th, 8^th and 9^th standard assessments in 2023- 2024 must be borne entirely by KSEAB.
	The examination	The assessment
Establishment of Centers	centres are determined by the board and the same is notified about 60 days prior to the commencement of the examination.	centres shall be the respective schools.
Admission Tickets	The admission ticket is issued by the board, after it is satisfied on the eligibility of each candidate.	There shall be no admission ticket required. The room supervisors shall cross-check the list of students in eth class appearing for the assessment.
Management/c onduct of	Examination management	Assessment management
Examination/A ssessment	responsibilities including conduct,	responsibilities are distributed between

¶227

¶228

evaluation and	the DSERT
preparation of	(Department of State
question papers and	Educational Research
awarding certificates	and Training)¹ and
are carried out by	KSEAB. The DSERT
KSEAB.	shall act as the
	academic authority
	that is responsible for designing the pattern
	of question paper, deciding the syllabus.
	However, the
	question papers are
	actually set by
	Karnataka School
	Quality Assessment
	and Accreditation
	Council (KSQAAC),
	which is the
	assessment cell of
	the KSEAB. The
	KSEAB which shall
	act as the
	assessment authority
	is entrusted with overall
	superintendence of
	the conduct of the
	assessment.

¶229

1 This aspect of the matter, demonstrating the involvement and control of the DSERT in the proposed scheme of assessment is additionally relevant having regard to the contention made by the Ld. Counsel for the intervener, Sri. Velan to the effect that the State Government by proposing to conduct the impugned assessments, has, in effect usurped the powers vested under the RTE Act. It is further pertinent to highlight that the DSERT is a Body constituted in terms of Section 29 of the RTE Act.

¶230

¶231

Evaluation	Evaluation will done at the district level and evaluators need to enrol in by submitting an application in the prescribed form, as will be published by the Board.	Evaluation will be done at block level (inter cluster) and there is no need to enrol as an evaluator.
Detention Policy/Announ cement Results	The Board will announce results in public domain, including results as to pass/fail	A student cannot fail in the assessment and shall not be detained, irrespective of performance. Results will be communicated only to the student and respective parent(s), thereby maintaining confidentiality.
Award of Certificate/Ma rks card	The Board awards a certificate to every candidate who passes the examination.	No certificate will be awarded by the Board.
		After assessment,
		DSERT shall be responsible for
	Board examinations	analysis of the results
	do not envision any	of the assessment
Post	post assessment strategies, and hence	and for the implementation of
Assessment Strategies	are deemed to be career/life-altering.	post-assessment strategies. This includes organization of need based workshops, subject specific training
		required to strengthen the

¶232

¶233

		subject-wise teaching-learning process, and an
		action plan to be designed to develop and update study rooms/labs/school libraries in case of lack of good resources. In case data demonstrates lack of qualified teacher/resource persons, steps would be taken to recommend appointments.
	Students who score less than 35% of the marks are declared to have failed and will	Schools will conduct remedial classes and conduct assessments at the school level to
Remedial measures	have the option of appearing for the supplementary examinations, failing which they would be required to repeat a year.	strengthen the learning of the students who score less than 35% of the marks.
Effect	If a student fails the examination, he/she will not be issued a pass certificate.	Even if a student fails, he or she will go through to the next class, as the larger purpose is to assist the students.

¶234

Now if the exams to the both sets of students are

¶235

collocated to each other, except for the fact that question papers

¶236

¶237

are prepared by the KSEAB who is notified as Competent Authority to conduct examination, no other provisions herein would show that, the student is made to feel the exam as a Board exam to input pressure on them. Moreover, to consider an exam is board exam, the primary requirement would be that the result of the exam would be publicly displayed and moreover, the impact of which would be that the student who detained in the main exam and re-examination is made to sit in the same class which in itself is a serious consequence not only to the mind of the students, but also for their future. Further, the manner in which the evaluation of the answer scripts i.e., in a board examination, the same will be conducted by the external faculty, but whereas in the present assessment examination, the evaluation will be conducted by the internal faculty.

¶238

In the current scenario, the exam is only conducted for the last part of 20 marks (for 5^th standard) and 30 marks (for 8^th standard) i.e., SA-2 and the final outcome of both these exams are that the student will proceed to next class irrespective

¶239

¶240

of the fact that they have succeeded to pass SA-2 or failed in the same.

¶241

Such being the scenario, we are not in concurrence with the arguments advanced by the respondents that conducting examination would hamper the well being of the children and also hamper the growth of children. But we are of the opinion, the adoption of this method would prepare the students to the upcoming board examination in future years and also that they will be well equipped to face the actual board exam. Seen from any angle, the assessment now scheduled to be conducted is only appears to be assessment that is made under the provisions of Section 16 of RTE Act and the State is very much empowered to appoint the Competent Authority to manage the same. As per Section 2 (a) (ii) (A) of the RTE Act, it is the State Government which is the appropriate Government which is mandated the responsibility to carry out the objectives of the RTE Act and when this is read in conjecture with the provisions of Section 2 (7) of the KEA, the State Government is very much empower to appoint the Competent Authority, by way

¶242

¶243

of Notifications, to over look/manage the examination that is to be conducted for the students. As such, we are of the opinion that the examination now scheduled cannot be termed as the board examination just for the fact that the question papers are being prepared by the KSEAB. Moreover, when the examinations are held with the provisions of no expulsion policy, in no manner the same can be considered as the board exam and the same are in violation of the provisions of RTE Act, 2009. This view of ours is fortified by the findings of the Co-ordinate Bench of this Court vide interim order dated 15.03.2023 passed in W.A.No.293/2023, which attained the finality in SLP (C) No.5689-5691/2023 vide order dated 22.03.2023.

¶244

We are aware of the fact that though Notifications

¶245

issued therein were issued as per the provisions of RTE Act and the impugned Notifications herein are the one issued under the provisions of KEA, the principles laid down therein applies to the case on hand for the reason that the present Notifications are one under the provision of KEA, however, the same has to be read in conjecture with RTE Act in view of fact that the

¶246

¶247

constitutional mandate of Doctrine of Occupied Field applies to the case on hand. Though initially the challenge is laid only to the Notifications dated 06.10.2023 and 09.10.2023, we are constrained to decide the legality of the proceedings and the order dated 16.11.2023 for the reason that in our considered opinion, the existence of proceedings dated 16.11.2023 has came into picture only on the strength of the Notifications dated 06.10.2023 and 09.10.2023. Hence, it is a consequential action taken by the appellants and as such, scrutiny of the same requires to be made at the hands of this Court. Accordingly, before delving to examine the proceedings and order dated 16.11 2023, we deem it necessary to refer to the provisions of Section 35 of the RTE Act (Act No.35 of 2009), which reads as under:

¶248

"35. Power of issue directions.-(1) The Central Government may issue such guidelines to the appropriate Government or, as the case may be, the local authority, as it deems fit for the purpose of implementation of the provisions of this Act.

¶249

(2) The appropriate Government may issue guidelines and give such directions, as it deems fit,

¶250

¶251

to the local authority or the School Management Committee regarding implementation of the provisions of this Act."

¶252

Now if the provisions of Section 35 (2) of RTE is read along with the proceedings and order dated 16.11.2023, it can be clearly seen that the State being the appropriate Authority has only issued certain instructions and guidelines prescribing the manner in which the examination is to be conducted and the same seems to be guidelines as under the provisions of Section 35 of the RTE Act, but nothing else. Accordingly, we answer both the point Nos.1 and 2 raised above in the negative.

¶253

In address to the next contention, the respondents and impleadings applicants, who support the stand of the respondents private schools, would draw the attention of this Court to the provisions of Section 22 and Section 145 (2) (iv) of KEA and for the purpose of reference, Section 145 (2) of the KEA is extracted hereunder:

¶254

"145. Power to make rules.-(1) xxx

¶255

(2) xxx

¶256

¶257

(iv) the authorities and the manner in which appointments are to be made to the posts sanctioned under subsection (2) of Section 9 and the powers and functions of the Officers and staff;"

¶258

43 In address to the contention of the respondents, the appellants-State would contend that the present Notifications being the action taken by way of Notifications and not by way of enacting a separate rules and the same may not require any prior publication as under the provisions of Section 145 of the KEA Act.

¶259

In order to analysis this issue, now we delve upon the stakes involved in the impugned Notifications i.e., now being issued. Primarily, to be seen, the provisions of RTE Act, 2009, Rules, 2010 and Education Policy of 2020 so also Section 38(4) of KEA Act, all these provisions would emphasis unilaterally the right of children and also parents in imparting the best and quality education to the children. It is not only the legislation, the Hon'ble Apex Court has also stressed upon this issue and has passed various orders in support of this contention. For

¶260

¶261

reference, we would rely on the decision relied upon by the counsel for the impleading applicant in W.A.No.379/2024 as discussed above, wherein the Hon'ble Apex Court has clearly laid down that the standard of education that is to be imparted to their children, language and the medium of education are all the prerogative of the parents to decide. These rights are not only statutory rights, but the same is protected under Article 21 of the Constitution. On the other hand, the very action of the State in passing the Notifications is justified by the ratio laid down by the Hon'ble Apex Court in the decision of Orissa State (Prevention & Control of Pollution) Board vs. Orient Paper

¶262

Mills reported in (2003) 10 SCC 421 , wherein the very question that fell for consideration was that the power of the State to declare air pollution control areas. To answer the same, the interpretation that has to be made was with respect to the fact, whether the State is empower to issue Notification under the parent Act i.e., irrespective of that there exists no rules to that effect. The Hon'ble Apex Court in this regard, in the above decision, in paragraphs 13, 20 and 21 held as under:

¶263

¶264

"13. Thus, in case manner is not prescribed under the rules, there is no obligation or requirement to follow any, except whatever the provision itself provides viz. Section 19 in the instant case which is also complete in itself even without any manner being prescribed as indicated shortly before to read the provision omitting this part “in such manner as may be prescribed”. Merely by absence of rules, the State would not be divested of its powers to notify in the Official Gazette any area declaring it to be an air pollution control area. In case, however, the rules have been framed prescribing the manner, undoubtedly, the declaration must be in accordance with such rules.

¶265

20. We feel that so far as the point relating to the meaning of the word “may” used under Section 19 of the Act is concerned, it is not relevant for resolving the controversy we are concerned with. Once the manner is prescribed under the rules undoubtedly, the declaration of the area has to be only in accordance with the manner prescribed but absence of rules will not render the Act inoperative. The power vested under Section 19 of the Act, would still be exercisable as provided under the provision i.e. by declaring an area as air pollution control area by publication of notification in the Official Gazette. Non-framing of rules does not curtail the power of the

¶266

¶267

State Government to declare any area as air pollution control area by means of a notification published in the Official Gazette. The part of the provision “in such manner as may be prescribed” would spring into operation only after such manner is prescribed by framing the rules under Section 54(2)(k) of the Act. This view as indicated earlier, is amply supported by the decision of this Court referred to above in the case of T. Cajee which is a decision by a Constitution Bench of this Court. It has been followed in a subsequent decision of this Court reported in Surinder Singh v. Central Govt. The Central Government had not framed rules in respect of disposal of property forming part of the compensation pool as contemplated under the provisions of the relevant Act. It was claimed by one of the parties that the authority constituted under the Act had no jurisdiction to dispose of urban agricultural property by auction-sale in absence of rules. The contention was repelled with the following observations: [SCC p.673, para 6]

¶268

“Where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of rules unless the

¶269

¶270

statute expressly provides for the same. In other words framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the statute. The expression ‘subject to the rules’ only means, in accordance with the rules, if any. If rules are framed, the powers so conferred on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute.”

¶271

A reference was also made to the decisions of this Court in the cases reported in B.N. Nagarajan v. State of Mysore and Mysore SRTC v. Gopinath Gundachar Char. Reliance was also placed on U.P. SEB v. City Board, Mussoorie.

¶272

21. In view of the discussion held above, in our view it would not be correct to say that simply because the rules have not been framed prescribing the manner it would render the Act inoperative. The area was notified as air pollution control area by the State Government as authorized and provided by virtue of the powers conferred under Section 19 of the Act. The declaration is provided to be made by means of a notification published in the Official Gazette. No other

¶273

¶274

manner is prescribed nor exists. The relevant notifications issued by the Government cannot be said to be contrary to any rules in existence as framed by the Government. The respondent had knowledge of the notification and had also applied for consent of the Board which was granted to the respondent. But it may be clarified that this is not the reason for taking the view that we have taken, it is mentioned only by way of an additional fact and nothing more. The whole working and functioning of the Act which is meant for controlling the air pollution cannot be withheld and rendered nugatory only for the reason of absence of the rules prescribing the manner declaring an air pollution control area which otherwise is provided to be notified by publication in an Official Gazette which has been done in this case."

¶275

If decision of the Hon'ble Apex Court is juxtapose with the case on hand, then even in the present case, the State has proceeded to pass the Notifications under Section 22 of the KEA in the absence of Rules and as such, we do not find any fault attached to it and hold that the procedure adopted by the State Government in notifying the impugned notifications is under the due procedure established and not in derogation of the same.

¶276

¶277

At the cost of repetition for clarity, we deem it appropriate to cull out Section 22(1) of the KEA, which read thus:

¶278

¶279

Now if this provision is carefully read, then the same

¶280

enables the "Competent Authority to take a decision" as to the examination system that is whether the same is to be made by way of internal assessment or external assessment or given the case whether assessment should be partly external and partly internal. The entire responsibility of deciding these aspects rests upon the Competent Authority. Now as there exist, no other Competent Authority to handle the examination matters, the State has appointed Competent Authority vide impugned Notification dated 06.10.2023. Now in order to evaluate this action of the State, we deem it appropriate to examine the provision of section 2 (7) of the KEA, which reads as under-

¶281

¶282

"2. Definitions.- In this Act, unless the context otherwise requires,-

¶283

(1) to (6) xxxx

¶284

(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;"

¶285

Now if the provision of Section 22(1) and Section 2(7) of the KEA Act so also impugned Notification dated 06.10.2023 is collocated to each other, then it would be clearly visible that, in order to handle the process of examination and to discharge the functions stipulated under Section 22(1), the State has appointed KSEAB as the Competent Authority and as per Section 2(7) of the KEA, it is evident that the same can be made by way of Notification itself, which does not in any manner or by force of the provisions contained in the KEA. However, in our considered opinion it would require a prior publication as enshrined under Section 145 of the KEA.

¶286

¶287

Admittedly, Section 22 (2) and Section 145 of the KEA would come to picture when a rule regarding implementation of the examination system would have been enacted. In the present scenario, KSEAB being a body governed by its own statute where Section 15 speaks about its powers and functions, there arises no need of making any prior publication and the statute governing KSEAB is admittedly has withstood all the procedural norms. As such, in our detailed and also examined view, we are of the un-unanimous opinion that, the action of the State in passing the impugned Notifications cannot be read as one under Section 22(1) of the KEA and hence, the same may not require a prior publication. Such being the scenario, there arises no vocation to this Court to rely upon the provision of Section 145 of the KEA and to decide on the point whether the said Section should be read as "Must" though it is mentioned as "May". As such, with the great respect to the dictums laid down by the Hon'ble Apex Court in this regard and which are pointed out by the learned counsel for the respondents, we deem not fit to discuss the same, as the same are inapplicable to the case on hand.

¶288

¶289

Further, learned Single Judge has opined that, in the given scenario seriousness of the issue involved in the present case on hand, the law laid down by the Hon'ble Apex Court has no application to the case hand, which in our opinion is untenable under the eyes of law as the procedure laid down by the law cannot be altered as per the gravity of the scenario presented before the Court. But only can be altered when the same is arbitrary or in the teeth of the present act so also the constitution. Hence, in our considered view that the learned Single Judge erred in holding that the reliance placed by the appellants on the Orissa State (Prevention & Control of Pollution) Board's case supra is misplaced and liable to be rejected.

¶290

Now without altering the view of this Court on the findings of law in preceding paragraphs given the peculiarity of the issue involved as a matter of consideration, this Court would now delve to examine whether they require prior publication inviting objections from the stakeholders as repeatedly asserted by the learned counsel for the respondents and impleading

¶291

¶292

applicants is to be seen, We would rely on the decision of the Co-ordinate Bench of this Court in the case of Karnataka Unaided Schools (Recognised) Management Association (Regd.)., Bangalore vs. State of Karnataka and others reported in 1997 (5) Kar.LJ 423, wherein the Co-ordinate Bench of this Court in paragraphs 10 and 11 held as under:

¶293

"10. It is basically in the light of these rival contentions that the Court is required to decide on the all important aspect as to whether the authorities are justified in holding the public examination from the current academic year. I do not require to debate this matter at any length for the simple reason that the law is well-settled and well crystallised. As far as the academic sphere is concerned, the law is very clear namely that the curriculum or the various aspects relating to the education fields cannot be altered at short notice to the prejudice of the parties concerned. This is an inflexible principle and it is the only one that will have to be applied in the present instance. Admittedly as far as the students and teachers and their parents are concerned, at no point of time prior to 29-1-1996 was it made known to them that the public examination would be held at the end of the 7th standard. This decision even

¶294

¶295

though it is to my mind a correct one, was publicised virtually in the first week of February 1996 in relation to an examination that is to be conducted in the month of March 1996. There can be no two opinions about the fact that the type of examination that is held by a public authority does differ as far as the caliber of that examination and the standard of it is concerned, from the one which the institution may hold. I do concede that there is a lot of similarity but the fact of the matter to be emphasised is that as far as the public examination is concerned it is materially different from the one which is conducted by the institution itself being of a slightly higher standard and the evaluation would also be of a higher level. It is therefore only fair that the students as also the teachers and their parents should all have adequate notice of the fact that the student would have to appear for such an examination at the end of an academic year. To my mind since the decision has been taken and the decision is not only a beneficial but a correct one, the State Government ought not to implement the decision with effect from the current academic year. The reason for this is because the students cannot be taken by surprise, the students cannot be traumatised or pressurised and when the Court takes notice of the student

¶296

¶297

community, the Court includes the teachers and the parents, having regard to the situation that is now prevalent in the academic field where the competition levels are almost killing as a result of which each and every examinations is of immense consequence, it is not merely a question of whether the student passes or fails but experience has shown that as far as the performance in the examinations that count are concerned that almost every single mark or a fraction of a mark does make a difference. There is one additional aspect that Court needs to take into consideration is as far as the 7th standard is concerned. It may be that in some of the cases the students will proceed from the 7th standard to the 8th standard in the same institution but those cases are relatively few. There are a large number of schools in the State which do not have attached high schools in which case the student on the completion of the 7th standard is required to virtually compete for admission to a high school on the basis of the number of marks that has been secured at that examination. Under these circumstances, the student would be seriously and heavily prejudiced careerwise if the student does not have a complete, full and fair opportunity of doing his or her best at that exam. The holding of the public examination with notice of

¶298

¶299

hardly six weeks, to my mind, would handicap the students as far as the performance in the examination is concerned and could undoubtedly cause prejudice as far as the future educative process goes. All these difficulties would genuinely be eliminated if the authorities were to make it clear that the decision to hold the public examination having been taken, that it shall be given effect to from the coming academic year. The petitioners learned Advocates have drawn the attention of the Court to some of the earlier decisions which I do not really require to refer to. The principle embodied in those decisions was that as far as the educational system is concerned that it should not be tampered with nor should any drastic or far reaching changes be made particularly in the course of the academic year. If such changes are made, not only does it offend the well-settled legal principles but it does cause real and far reaching prejudice to the student community. It is for this reason that the Courts have consistently upheld the view that even good decisions must be timely decisions.

¶300

11. In the light of the aforesaid situation while this Court upholds the decision of the State Government to conduct the public examination at the

¶301

¶302

end of the 7th standard, the only relief that is granted to the petitioners is that the respondents shall be directed to implement that decision with effect from the next academic year and not as far as the present academic year is concerned. With these directions, the petitions to stand disposed of. There is one clarification which needs to be made. Because of the urgency involved this Court has heard and disposed of these petitions but in view of the fact that W.P. No. 5538 of 1996 is filed on behalf of 2000 institutions and as far as W.P. 5914 of 1996 is concerned since it represents 8 persons, Court fee shall be tendered in respect of this number of petitioners, petitioners are given an outer limit of four weeks to pay the Court fee and get the petitions renumbered."

¶303

If the case on hand is read in conjecture with the judgment cited supra keeping in mind the findings in the preceding paragraphs that the exam now scheduled to be held is not board exam and impugned Notifications are the Notifications passed under Section 22 of KEA, we do accept the contentions of the respondents including the impleading applicant i.e., respondent No.6 that the effect of present Notifications bear

¶304

¶305

great weightage as equivalent stakes involved. This action by the State should be discussed prior in hand before being implemented by the State for the reason that the same can be effectively to be presented to the public in more efficacies. As we are of the opinion that the present action of the State is one that is to be seen keeping in mind the interest of stakeholders and not something that can be unanimously decided by the State alone. Presently, the Notification to hold SA-2 supervised by the KSEAB was notified on 09.10.2023 and instructions were issued on 16.11.2023. Hence, it is evidently clear that the children so also the parents were aware of the fact that the children of 5^th would be facing the examination of the prescribed pattern before the syllabus even commenced (syllabus for the same commenced from 01.11.2023) and the children for children for 8^th and 9^th after three months of it being commenced (syllabus for the same commenced from 15.06.2023). As such, in no way it can be said that the parents were unaware of the developments and the children were unprepared for the same. Now this being the admitted position, keeping in mind the fact that the students who are involved in the scheduled examination

¶306

¶307

were nearly 28 lakhs and among which, the examination for the students of 11^th standard has already been completed and two exams for 5^th , 8^th and 9^th have already been held, as rightly pointed by the impleading applicant i.e., respondent Nos.2 to 5 (the students and parents of Government schools), we find no better convincing way to say that the students and parents are well prepared to this assessment i.e., programmed to be held. Provided, in view of the stakeholders involved, we also deem it appropriate to the State Government to call for opinions from the stakeholders in prior i.e., before notifying the pattern of the assessment for the upcoming academic years that too well in advance. Accordingly, we hold that above raised point No.3 in partly affirmative and proceed to pass the following:

¶308

ORDER

¶309