Karnataka High Court
State Of Karnataka vs Registered Unaided Private Schools ... on 22 March, 2024
Author: K.Somashekar
Bench: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
WRIT APPEAL NO. 379 OF 2024(EDN-RES)
C/W
WRIT APPEAL NO. 380 OF 2024(EDN-RES)
IN W.A.NO.379 OF 2024
BETWEEN
1. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF SCHOOL
EDUCATION & LITERACY,
M.S.BUILDING, DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. COMMISSIONER OF PUBLIC INSTRUCTION
DEPARTMENT OF SCHOOL
EDUCATION & LITERACY,
GOVERNMENT OF KARNATAKA,
NRUPATHUNGA ROAD,
BENGALURU-560 001.
3. KARNATAKA SCHOOL EXAMINATION
AND ASSESSMENT BOARD,
REPRESENTED BY ITS CHAIRPERSON,
6TH CROSS ROAD,
2
MALLESHWARAM,
BENGALURU-560 003.
...APPELLANTS
(BY SRI.VIKRAM HUILGOL, ADL.ADVOCATE GENERAL
ALONG WITH SMT.MAMATHA SHETTY, AGA)
AND
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
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.
3. MASTER. DHANUSH BASAVARAJA ROTTI,
S/O BASAVARAJA ROTTI,
3
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.
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.
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
4
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.
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.
...PROPOSED RESPONDENTS NOS.2 TO 6
(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)
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.
IN W.A.NO.380 OF 2024
BETWEEN
1. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF SCHOOL
EDUCATION & LITERACY,
M.S.BUILDING, DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
5
2. COMMISSIONER OF PUBLIC INSTRUCTION,
DEPARTMENT OF SCHOOL EDUCATION & LITERACY,
GOVERNMENT OF KARNATAKA,
NRUPATHUNGA ROAD, BENGALURU-560 001.
3. KARNATAKA SCHOOL EXAMINATION
AND ASSESSMENT BOARD
REPRESENTED BY ITS CHAIRPERSON,
6TH CROSS ROAD, MALLESHWARAM,
BENGALURU-560 003.
...APPELLANTS
(BY SRI.VIKRAM HUILGOL, ADL.ADVOCATE GENERAL
ALONG WITH SMT.MAMATHA SHETTY, AGA)
AND
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.
...RESPONDENT
(BY SRI.K.V.DHANANJAY, ADVOCATE FOR C/R1)
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.
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:
6
JUDGMENT
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.
2. The facts that are apposite to consider the case on hand as borne out from the pleadings are as follows.
In the year 2022, the appellants-State Government came up with the Circular dated 12.12.2022 bearing No.E-870867- DPII-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 7 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, 8th, 9th and annual examination for 11th 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.
3. Under this coveted background, aggrieved by the Notifications dated 06.10.2023 and 09.10.2023, respondent 8 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.
4. 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.
5. Learned AAG Sri Vikram Huilgol for the appellants- State contends that, respondent No.1 has challenged the Notifications dated 06.10.2023 and 09.10.2023 before the 9 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.
6. 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:
"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."10
7. Emphasising on the above provisions, he would 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:
"2. Definitions.- In this Act, unless the context otherwise requires,-
(1) to (6) xxxx (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;"
8. 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. 11 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.
9. 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. 12
10. 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.
11. 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 13 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".
12. 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. 14
13. 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.
14. 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 15 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.
15. 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 16 students prays to allow the writ appeals and to set aside the impugned order passed by the learned Single Judge.
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:
"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."17
17. Relying the above decision, he would contend that, 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.
18. 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 18 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.
19. 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:
"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 19 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."
20. 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 20 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:
"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.
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.
3. The Bill seeks to lay down some bench mark the fulfilment of which should be made 21 mandatory before a child is elevated to the next higher class while acquiring elementary education.
4. The Bill seeks to achieve the above objectives."
21. 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 22 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:
"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."
22. 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: 23
"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.
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 24 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."
23. 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 that it is mandatory to consult all the stakeholders including 25 parents, parent-teacher associations and the schools effecting change in the evaluation methodology.
"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.
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 26 before any final decision is taken in this matter for future."
24. 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 would submit that though Article 21 of the Constitution carves out to an exception, thereby giving a right on the State to 27 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.
25. He would further submit that by way of passing the 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 42nd 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 28 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 29 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.
26. 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 5th and 8th standards, thereby 30 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:
"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.
30. Examination and completion certificate.-
(1) No child shall be required to pass any Board examination till completion of elementary education."
27. According to the learned counsel, on conjoint reading 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 8th 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 31 impugned Notification dated 06.10.2023 handing over the responsibility of conducting examination to the children of 5 th and 8th 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 8th 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.
28. Additionally, he would submits that even accepting the action of the State that they have passed the Notifications 32 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 33 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 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 34 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.
35
29. By relying on these judgments, he would contend 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 36 vehemently submit the impugned Notifications requires to be set at naught at the hands of this Court.
30. 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, 37 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.
31. In addition to the above contentions, learned counsel also placed his written submissions to buttress his contentions.
32. 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:
38
1. Whether the exam now being conducted by the KSEAB can be called as Board exam?
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?
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?
33. Before proceedings with the contentions that needs our attention, we deem it necessary to clear out the facts that are tabled for consideration.
34. The State, as aforementioned, had come up with the measure to assess the students of both 5th and 8th standard and the same reads as under:
For class 5 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.
Each FA carries 15 marks Each SA carries 20 marks.
The cumulative marks for the assessments, calculated as 39 FA1 +FA2+FA 3+FA4+SA1+SA2 = 100marks Or as, 15+15+15+15+20+20 = 100 marks Note:
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. 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. No student shall be held back/detained and promotion to a higher grade shall not be based on performance in the proposed assessment.
The syllabus for the exam will cover the portion to be completed from 01.11.2023 to 28.02.2024 only. The chapters have already been divided month-wise according to the shaikshanika Margadharsi, which is authorized and published by the CPI office. This information is also available on the School Education website.
For Class 8 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.
Each FA carries 10 marks Each SA carries 30 marks.
The cumulative marks for the assessments, calculated as FA1+FA2+FA3+FA4-SA-1+SA-2=100marks Or as, 10+10+10+10+30+30 = 100 marks Or as, 40(sum of FAs) + 60 (sum of SAs) = 100 marks Note:
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.40
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. No student shall be held back/detained and promotion to a higher grade shall not be based on performance in the proposed assessment.
The syllabus for SA-2 will cover the portion to be completed from 15.06.2023 to 28.02.2024. 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.
35. 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
"1. 5, 8 ªÀÄvÀÄÛ 9£Éà vÀgÀUÀwUÀ¼À «zÁåyðUÀ½UÉ ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À-2(SA-2) ªÀÄvÀÄÛ 11£Éà 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°èAiÉÄà £ÀqɸÀĪÀÅzÀÄ.41
2. 5, 8 ªÀÄvÀÄÛ 9£Éà vÀgÀUÀwUÀ¼À ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À -2 PÉÌ ¸ÀA§A¢ü¹zÀAvÉ ¥Àæ±ÉߥÀwæPÉUÀ¼£ À ÄÀ ß PÀ£ÁðlPÀ ±Á¯Á ¥ÀjÃPÉë ªÀÄvÀÄÛ ªÀiË®å¤tðAiÀÄ ªÀÄAqÀ°AiÀÄ PÉ.J¸ï.PÀÄå.J.J.¹ ªÀw¬ÄAzÀÀ gÁdåªÀÄlÖzÀ°è ¹zÀÞ¥Àr¹ ¸ÀA§A¢ü¹zÀ PÉëÃvÀæ²PÀëuÁ¢üPÁjUÀ¼À ¯ÁV£ï£À°è ®¨sÀå ªÀiÁqÀĪÀÅzÀÄ.
3. 11£Éà vÀgÀUÀwAiÀÄ ªÁ¶ðPÀ ¥ÀjÃPÉëUÉ ¸ÀA§A¢ü¹zÀAvÉ ¥Àæ±ÉߥÀwæPÉUÀ¼À£ÄÀ ß 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« ¥ÀƪÀð) «¨sÁUÀzÀªÀgÀ ¯ÁV£ï £À°è ®¨sÀå ªÀiÁqÀĪÀÅzÀÄ.
4. 5, 8 ªÀÄvÀÄÛ 9£Éà vÀgUÀ ÀwUÀ¼À ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À -2 (SA-2) ºÁUÀÆ 11£Éà vÀgÀUÀwAiÀÄ ªÁ¶ðPÀ ¥ÀjÃPÉëUÉ DAiÀiÁ ±Á¯Á/ PÁ¯ÉÃdÄUÀ¼ÃÉ ¥ÀjÃPÁë PÉÃAzÀæUÀ¼ÁVgÀÄvÀÛªÉ.
5. 5, 8 ªÀÄvÀÄÛ 9£Éà vÀgÀUÀwUÀ¼À ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À -2 (SA-2) £ÀqÉAiÀÄĪÀ ¸ÀAzÀ¨ÀsðzÀ°è ¸À«ÄÃ¥ÀzÀ ±Á¯ÉUÀ¼À ²PÀëPÀgÀ£ÀÄß PÉÆoÀr ªÉÄðéZÁgÀPÀg£À ÁßV £ÉëĸÀĪÀÅzÀÄ.
6. 11£Éà vÀgU À ÀwAiÀÄ ªÁ¶ðPÀ ¥ÀjÃPÉë £ÀqÉAiÀÄĪÀ ¸ÀAzÀ¨sÀðzÀ°è DAiÀiÁ PÁ¯ÉÃf£À G¥À£Áå¸ÀPÀgÀ£Éßà PÉÆoÀr ªÉÄðéZÁgÀPÀgÀ£ÁßV £ÉëĸÀĪÀÅzÀÄ.
7. 5, 8 ªÀÄvÀÄÛ 9£Éà vÀgÀUÀwUÀ¼À ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À-2 gÀ(SA-2) GvÀÛgÀ ¥ÀwæPÉUÀ¼À ªÀiË®åªÀiÁ¥À£ÀªÀ£ÄÀ ß vÁ®ÆèPÀÄ ºÀAvÀzÀ°è ªÀÄvÀÄÛ 11£Éà vÀgÀUÀwAiÀÄ ªÁ¶ðPÀ ¥ÀjÃPÉëAiÀÄ GvÀÛgÀ¥ÀwæPÉUÀ¼À ªÀiË®åªÀiÁ¥À£ÀªÀ£ÀÄß ¸ÀA§A¢ü¹zÀ PÁ¯ÉÃdÄUÀ¼À°èAiÉÄà ¤ªÀð»¸ÀĪÀÅzÀÄ.
8. ªÀiË®åªÀiÁ¥À£À ¥ÀÆtðUÉÆAqÀ vÀPÀëtªÉà «zÁåyðUÀ¼À ¥sÀ°vÁA±ÀªÀ£ÄÀ ß ¸ÀA§A¢ü¹zÀ ªÀÄÄRå ²PÀëPg À ÀÄ/¥ÁæA±ÀÄ¥Á®gÀÄ J¸ï.J.n.J¸ï.£À°è C¥ÉÆèÃqï ªÀiÁqÀĪÀÅzÀÄ.42
9. 5, 8 ªÀÄvÀÄÛ 9£Éà vÀgÀUÀwUÀ¼À ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À -2 gÀ°è (SA-2) AiÀiÁªÀÅzÉà «zÁåyðUÀ¼£ À ÀÄß C£ÀÄwÛÃtð ªÀiÁqÀĪÀAw®è(No Detention) ºÁUÀÆ ¥sÀ°vÁA±ÀªÀ£ÀÄß ¸ÀA§A¢ü¹zÀ «zÁåyðUÀ¼ÀÄ ªÀÄvÀÄÛ ¥ÉÆõÀPÀjUÉ ªÀiÁvÀæ ¤ÃqÀĪÀÅzÀÄ.
10. 11£Éà vÀgÀUÀwAiÀÄ ªÁ¶ðPÀ ¥ÀjÃPÉëAiÀÄ°è «zÁåyðUÀ¼ÀÄ C£ÀÄwÛÃtðgÁzÀ°è ¥ÀÆgÀPÀ ¥ÀjÃPÉëAiÀÄ£ÀÄß DAiÀiÁ PÁ¯ÉÃdÄ ºÀAvÀzÀ°è £ÀqɸÀĪÀÅzÀÄ.
11. 5, 8 ªÀÄvÀÄÛ 9£Éà vÀgÀUÀwUÀ¼À ¸ÀAPÀ®£ÁvÀäPÀ ªÀiË®åªÀiÁ¥À£À -2PÉÌ (SA-2) vÀU® À ĪÀ ªÉZÑÀªÀ£ÀÄß ¥Àæ¸PÀ ÛÀ ªÀµÀðPÉÌ ªÀiÁvÀæ PÀ£ÁðlPÀ ±Á¯Á ¥ÀjÃPÉë ªÀÄvÀÄÛ ªÀiË®å¤tðAiÀÄ ªÀÄAqÀ°AiÀÄ°è ®¨sÀå«gÀĪÀ C£ÀÄzÁ£ÀzÀ°è ¨sÀj¸À®Ä C£ÀĪÀÄw¹zÉ.
12. 11£Éà vÀgÀUÀwAiÀÄ ªÁ¶ðPÀ ¥ÀjÃPÉëAiÀÄ ¥Àæ±ÉߥÀwæPÉUÀ¼À gÀZÀ£É ªÀÄvÀÄÛ r.n.¦ PÁAiÀÄðPÉÌ vÀUÀ®ÄªÀ ªÉZѪ À À£ÀÄß ¥Àæ¸ÀPÀÛ ªÀµÀðPÉÌ ªÀiÁvÀæ PÀ£ÁðlPÀ ±Á¯Á ¥ÀjÃPÉë ªÀÄvÀÄÛ ªÀiË®å¤tðAiÀÄ ªÀÄAqÀ°AiÀÄ°è ®¨sÀå«gÀĪÀ C£ÀÄzÁ£Àz° À è ¨sÀj¸À®Ä C£ÀĪÀÄw¹zÉ."
36. Now the primary limb of the arguments advanced by 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 43 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 8th 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 44 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 12th standard is being conducted from the inception of the Board. Further, education system in the State wherein the examination conducted for 10th and 12th 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.
Point of Board Assessments
Difference Examinations (For envisaged for 5th,
instance of the 8th and 9th standard
nature conducted students
at the 10th Std.
level- SSLC)
These examinations i. The evaluation
provide a measure of mechanism will
students' relative provide the
capabilities and are Government with
often determinative data and
of students' selection information on the
of further studies, effectiveness of the
Objective
thereby creating a Continuous
permanent record Learning Process
and having bearing contemplated
on the future and under the RTE
career of the student Policy;
ii. To identify the
areas/subjects in
45
which students
require additional
attention.
Sole responsibility of Collective
the Student responsibility of
Government,
Responsibility
Teachers, Schools
and Students.
Candidates The government has
registering for SSLC ordered that all
board examinations assessment and
Fees and
are expected to pay maintenance
Charges in
an examination fee. expenses for 5th, 8th
respect of
and 9th standard
Examinations/
assessments in 2023-
Assessments
2024 must be borne
entirely by KSEAB.
The examination The assessment
centres are centres shall be the
determined by the respective schools.
Establishment board and the same
of Centers is notified about 60
days prior to the
commencement of
the examination.
The admission ticket There shall be no
is issued by the admission ticket
board, after it is required. The room
Admission satisfied on the
supervisors shall
Tickets eligibility of each
cross-check the list of
candidate. students in eth class
appearing for the
assessment.
Management/c Examination Assessment
onduct of management management
Examination/A responsibilities responsibilities are
ssessment including conduct, distributed between
46
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.
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.
47
Evaluation will done Evaluation will be
at the district level done at block level
and evaluators need (inter cluster) and
to enrol in by there is no need to
Evaluation submitting an enrol as an evaluator.
application in the
prescribed form, as
will be published by
the Board.
The Board will
A student cannot fail
announce results in in the assessment
public domain, and shall not be
including results as to
detained, irrespective
Detention
pass/fail of performance.
Policy/Announ
Results will be
cement
communicated only
Results
to the student and
respective parent(s),
thereby maintaining
confidentiality.
The Board awards a No certificate will be Award of certificate to every awarded by the Certificate/Ma candidate who passes Board.
rks card the examination.
After assessment,
DSERT shall be
responsible for
Board examinations analysis of the results do not envision any of the assessment post assessment and for the Post strategies, and hence implementation of Assessment are deemed to be post-assessment Strategies career/life-altering. strategies. This includes organization of need based workshops, subject specific training required to strengthen the 48 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 Schools will conduct
less than 35% of the remedial classes and
marks are declared to conduct assessments
have failed and will at the school level to
have the option of strengthen the
Remedial
appearing for the learning of the
measures
supplementary students who score
examinations, failing less than 35% of the
which they would be marks.
required to repeat a
year.
If a student fails the Even if a student
examination, he/she fails, he or she will go
will not be issued a through to the next
Effect
pass certificate. class, as the larger
purpose is to assist
the students.
37. Now if the exams to the both sets of students are collocated to each other, except for the fact that question papers 49 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.
38. In the current scenario, the exam is only conducted for the last part of 20 marks (for 5th standard) and 30 marks (for 8th standard) i.e., SA-2 and the final outcome of both these exams are that the student will proceed to next class irrespective 50 of the fact that they have succeeded to pass SA-2 or failed in the same.
39. 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 51 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.
40. We are aware of the fact that though Notifications 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 52 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:
"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.
(2) The appropriate Government may issue guidelines and give such directions, as it deems fit, 53 to the local authority or the School Management Committee regarding implementation of the provisions of this Act."
41. 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.
42. 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:
"145. Power to make rules.-(1) xxx (2) xxx 54
(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;"
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.
44. 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 55 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 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: 56
"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.
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 57 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] "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 58 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."
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.
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 59 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."
45. 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.
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46. At the cost of repetition for clarity, we deem it appropriate to cull out Section 22(1) of the KEA, which read thus:
"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."
47. Now if this provision is carefully read, then the same 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- 61
"2. Definitions.- In this Act, unless the context otherwise requires,-
(1) to (6) xxxx (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;"
48. 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.
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49. 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.
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50. 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.
51. 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 64 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:
"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 65 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 66 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 67 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.
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 68 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."
52. 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 69 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 8th and 9th 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 70 were nearly 28 lakhs and among which, the examination for the students of 11th standard has already been completed and two exams for 5th, 8th and 9th 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:
ORDER
i) The appeals are allowed.
ii) 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 is hereby set aside.
iii) The appellants-State is directed to hold the remaining assessment for the classes 5th, 8th & 71 9th and to resume the process which is now stalled for 11th Standard.
iv) Additionally, the State is directed to consult stakeholders before notifying the assessment of alike pattern for upcoming academic years.
Registry is directed to circulate the copy of this order to the learned AAG for speedy action.
Pending interlocutory applications, if any, shall stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE VM