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2.1. Petitioner in writ petition No.47074 of 2018 is a private unaided educational institution and challenge is made to the validity of Sections 2(11-A) and 124-A of the Act. Petitioner has raised similar contentions that are raised by petitioner- institutions in Writ Petition No.6313 of 2017.

2.2. Petitioners in writ petitions No.47077 of 2018; 5072 of 2019; 6185 of 2019; 9149 of 2019; 11657 of 2019; 6396 of 2020; 15268 of 2021; and 16418 of 2021 are the educational institutions that are affiliated to Central Board for Secondary Education (CBSE) and Indian Certificate of Secondary Education (ICSE). Writ Petition No.15241 of 2021 is filed by the Karnataka Private Schools Committee, which are affiliated to CBSE/ICSE syllabus. In these writ petitions, petitioner-Institutions are the managements of Private Educational Institutions, which are permanently unaided and are affiliated to CBSE/ICSE syllabus. It is stated that, quality of education and integrity of management, is the mantra of these institutions and petitioner- institutions have excelled academically and professionally in various fields. These institutions are self-financing bodies without any grant-in-aid either by Government or by any other source. The bye-laws of CBSE/ICSE framed to regulate such schools, are set out in paragraphs 10 to 16 in Writ Petition No.6185 of 2019. It is further stated that the Karnataka Education Act, 1983 got Presidential Assent in the year 1993 and the Act was challenged in Writ Petition No.27432 of 1995 and connected petitions and the said writ petitions were referred to the Division Bench of this Court. The Division Bench, by order dated 10th October, 1996, upheld the validity of the Act and being aggrieved by the same, Special Leave Petitions were preferred before the Hon'ble Supreme Court, wherein leave was granted and accordingly, Civil Appeals No.366-368 of 2004 were registered before the Hon'ble Supreme Court. During the interregnum, though the constitutional validity of the Act was upheld, the Division Bench of this Court excluded the educational institutions affiliated to CBSE/ICSE syllabus from the purview of the Act. Section 1(3)(iii-a) was incorporated by Karnataka Act No.25 of 2017 on 22nd April, 2017 continuing to apply Sections 5-A, 48, 112-A and 124-A to schools affiliated to CBSC/ICSE syllabus. It is further stated that, as amended by Karnataka Act 8 of 1998, inclusion of schools affiliated to CBSE/ICSE syllabus within the purview of Education Act, was challenged in AIRFORCE SCHOOL PARENTS WELFARE ASSOCIATION, BENGALURU v. STATE OF KARNATAKA AND OHTERS reported in 2011(2) KLJ 363 and this Court held that the inclusion of schools affiliated to CBSE/ICSE syllabus under the Act, is violative of Article 14 of the Constitution of India. The said order of the learned Single Judge was challenged before the Division Bench in the case of GOVINDAGIRI AND OTHERS v. GOVERNMENT OF KARNATAKA AND OTHERS reported in 2011(6) KLJ 133, and the Division Bench, dismissed the appeal. Despite the same, it is contended by the petitioners that, the State Government by amending the Act, extended the provisions of Sections 5-A, 48, 112-A and 124-A of the Act to the educational institutions affiliated to CBSE/ICSE syllabus, which is contrary to the aforementioned judgments. It is the principal contention of these educational institutions that, what is being done through the judicial proceedings excluding these institutions from the purview of the Act, has been illegally brought through Karnataka Education (Second Amendment) Act, 2017 and same is contrary to the law declared by the Division Bench of this Court in the case of GOVINDAGIRI (supra). It is contended that including these institutions under the Act would also run contrary to the judgment of T.M.A. PAI FOUNDATION case, wherein it is held that the private educational institutions must have independent right to fix their own fee structure, subject to the restriction that the same should not amount to profiteering or charging captivation fee and accordingly, sought for invalidating the impugned provisions of the Act as ultra vires the Constitution of India. It is the contention of petitioners in Writ Petition No.12520 of 2021 that, Sections 2(11-A) and 124-A of Amendment Act are unconstitutional, so also, challenged Rule 4 of Rules 1999 as contrary to the law declared in T.M.A. PAI FOUNDATION case.

6. Nextly, Sri S. Basavaraju, learned Senior Counsel appearing for petitioner-Schools affiliated to CBSE/ICSE syllabus, argued that, fee structure can be fixed by the management, based on the quality and standard of education imparted by such educational institutions, subject to the condition that there is no profiteering or charging of capitation fee as per the dictum in the case of T.M.A. PAI FOUNDATION. Referring to the bye-laws of both CBSE/ICSE Boards, learned Senior Counsel submitted that these schools can charge fee independently, which are commensurate with the facilities provided by them and for imparting quality education and therefore, such fee cannot be termed as capitation fee.

By this amendment to Section 1 the schools affiliated to ICSE and CBSE syllabus are excluded from the purview of Education Act.

21. The private unaided educational Institutions affiliated to the State Syllabus are governed by the provisions of Education Act. But the private unaided schools affiliated to ICSE or CBSE syllabus are excluded from the application of the provisions of Education Act.

ICSE is an autonomous self-financing body and CBSE is a registered society. Both ICSE and CBSE are not established or constituted by any Act. Both these schools are private unaided schools and they are deriving various concessions and exemptions from the State Government. Merely because the respondent-Schools are affiliated to the ICSE or CBSE syllabus they are excluded form the application of provisions of Education Act by amendment Act of 1998. This differentia between private unaided educational institution affiliated to the State Syllabus and respondent-Schools affiliated to ICSE or CBSE syllabus has no rational nexus. On the basis of affiliation to a particular syllabus the said school do not become different class from others. Therefore, the impugned amendment is violative of Article 14 of the Constitution.

32. The aforesaid view was affirmed by the Division Bench of this Court in the case of GOVINDAGIRI (supra). At paragraphs 8 and 9 of the judgment, it is observed thus:

"8. It emerges from the material available on record that, the Department of Public Instructions has constituted a Committee called Karnataka State Vidhyarthi Kreeda Nidhi, pursuant to which, bye-laws are framed for regulating the constitution and functioning of the said committee and bye-law No. 4 deals with the purpose and objects of the said Nidhi. The main object of the said committee is to conduct sports meets for schools which comes within the purview and jurisdiction of the Department of Public Instruction. Each student coming within the control and jurisdiction of the Department of Public Instructions, who are studying in 5th to 10th standard is required to pay a prescribed fee as contribution to the 'Kreeda Nidhi'. The contribution is compulsorily payable and the authorities are enjoined with duties and obligations to collect this amount. The schools which fail to collect the amount from the students and to pay the same to the authorities are to face several coercive and penal consequences including withholding of recognition and such other measures. The sports meet is to be conducted by the authorities of the Department who constitute the Committees at different levels starting from the Block Level to the State Level Further, it is not in dispute that the ICSE and CBSE schools do not fall within the jurisdiction, control and ambit of these authorities and no direction can be issued to these schools nor any coercive or penal action can be taken against them if they fail to pay the contribution towards the 'Kreeda Nidhi'. In fact, the concept of the 'Kreeda Nidhi' and the Sports meet to be conducted by the various Committees from the Block level to the State level is confined only to the schools coming under the purview and control of the Department of Public Instructions. It is significant to note that, as one of its objective in imparting training in physical education, the machinery provided under the Education Act is arranging these meets and competitions. The children studying in ICSE and CBSE schools cannot as of right claim that the competition shall be thrown open for them also. They cannot contend that their fundamental rights are violated by denying them an opportunity to participate in these Sports Meet because, they do not fall in the same class of students controlled by the Department. It is pertinent to note that, the ICSE and CBSE schools are controlled by independent/autonomous bodies after obtaining recognition from their respective boards and they will not come within the purview, aim and object of the Karnataka Education Act, 1983. Learned Single Judge, after critical evaluation of the oral and documentary evidence, after going through the aim and object of the Kreeda Nidhi, the purpose for which it has been established i.e., to conduct the sports meet for the students, has come to the conclusion that, the students who are studying in ICSE and CBSE will not come under the purview and jurisdiction of the Karnataka Education Act nor the authorities of the Department of Public Instructions can take any action against such schools. The learned Single Judge in para 12 of the order has considered in detail with regard to the submission of the learned Counsel for the appellants about the discrimination made in the impugned circular stating that it is in violation of the fundamental rights under Article 14 of the Constitution of India and rejected the said submission holding that the students who are studying in ICSE and CBSE cannot claim similar treatment in the matter of conduct of the Sports Meet and Competitions by the Department at various levels.