REGISTERED UNAIDED PRIVATE SCHOOLS v. SRI K.V. DHANANJAY, ADVOCATES (PH)]

Sri Sudarshan, advocate for petitioners submitted petitioner was association of private unaided schools in Karnataka challenging impugned Notifications, whereunder respondents seek to impose Board Examinations to students of Classes-5, 8, 9 and 11 in schools affiliated to Karnataka Secondary Education Examination Board. It was submitted, as mentioned in impugned Notifications they were issued under Section 22 of Karnataka Education Act, 1983 (for short 'Education Act'), which reads as under: "22. Examinations.- (1).... (2) Government may make rules for all matters connected with implementation of examination system and conduct of examination and pattern of examination system to which different classes of educational institutions should conform." - 5 - WP No.26489/2023 C/W WP No.24745/2023

3. It was submitted, a plain reading of above indicates that such power could be exercised only by framing 'Rules’ and not otherwise. Word 'may' in Section 22 (2) of Education Act, does not dispense with requirement of framing Rules. It was submitted, Section 22 confers power to regulate ‘examinations’, where it affects large number of students and therefore cannot be exercised without framing Rules. On other hand, use of word 'shall' instead of 'may' in Section 22 (2) of Education Act, would force Government to mandatorily frame Rules for every aspect of examination including aspects covered in Sections 23 to 28 of Education Act, which would render said provision absurd or impractical. It was submitted, if word 'may' is read as 'shall', same would be reasonable alternative construction.

4. It was submitted that ordinarily any scheme of 'examination' would involve collection of 'examination fees', though impugned Notifications do not insist on any 'examination fees', fact that while introducing scheme of examination previously Government had mandated payment of fees by framing Rules, assumption of such power under executive fiat in instant case would give scope for challenge.

5. It was next contended that impugned Notifications do not have binding force in law. It was submitted, Section 128 - 6 - WP No.26489/2023 C/W WP No.24745/2023 of Education Act provides for penalty in case of violation of provisions of Education Act (including Rules). But there was no corresponding provision in case of violation of a ‘Notification’ issued under Section 22, especially as said provision was not self-executing. Thus, for want of enforcement mechanism impugned Notifications are not lawfully binding on schools. On other hand, they would be applicable only in case of subscription or consent by individual schools/institutions. Thus, requirement of Board Examinations would not be universally applicable.

6. It was submitted, though specific prayer declaring impugned ‘Notifications’ as not mandatory and as subscriptive was not sought, this Court was empowered to issue such declaration by considering residuary prayer. It was submitted, such declaration could be granted without quashing impugned Notifications and exercise of power in such manner by this Court would be fully justified.

7. It was submitted framing of Rules governing several aspects including scheme of examinations and evaluation, was mandated by Section 7 of Education Act also. It was submitted - 7 - WP No.26489/2023 C/W WP No.24745/2023 ratio in case of OSPCB1 sought to be relied upon to support contention that Board Examination could be introduced without framing 'Rules', would be contrary to context of case. It was submitted that in case of Consumer’s case2, Hon'ble Supreme Court was considering validity of levy of development fees on embarking passengers by lessees of Airports Authority of India at Indira Gandhi International Airport, New Delhi and Chhatrapathi Shivaji International Airport, Mumbai. Principle ground of challenge was that such levy could be authorized only by Rules framed under Airports Authority of India Act, 1994 (for short ‘AAI Act’) or determined by regulatory authority under provisions of Airports Economic Regulatory Authority of India Act, 2008 (for short ‘AERAI Act’). Section 12 of AAI Act, empowered Airport Authority to manage airports, civil enclaves and aeronautical communication stations, subject to rules, if any, made by Central Government. Section 22 thereof authorized, Airports Authority to charge fees, rent etc., with previous approval of Central Government. While amended Section 22-A expressly empowered Airports Authority to levy and collect development fees from embarking passengers at airport at rate as may be prescribed. It was submitted, after ORDER i. Both writ petitions are allowed. ii. Impugned Notification no.EP 209 SLB 2023

06.10.2023 (Annexure-E) Notification no.EP 209 SLB 2023 dated

09.10.2023 (Annexure-G) issued respondent-Government are quashed. iii. No order as to costs. Sd/- JUDGE GRD/psg