Point of Law: It is a cardinal principle of law that when State Government wishes to bring about a Government order or Circulars, it has to be in consonance with Act and Rules.

ORDER :

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

2. The petitioners have sought relief to quash the circular dated 12.12.2022 bearing No. E-870867-DPII-CPIOC7-2(PLM)/3/2022, circular dated 13.12.2022 bearing No. E-9951/DSERT/EVG/5, 8 Tha.Va.Pa.Moulyankana/2022-23 and circular dated 04.01.2023 bearing No. DPI-CPIOSATS (E-)/6/2022-SATS respectively, as being violative of the mandatory procedure prescribed under Section 145 of the Karnataka Education Act, 1983 (for short ‘the Act’) Sections 16, 30 and 38(4) of the Right of Children to Free and Compulsory Education Act, 2009 (for short ‘the RTE’ Act) and for other legal infirmities urged in the pleadings and the grounds of the writ petitions.

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

4. It is the contention of learned counsel Sri Dhananjay appearing on behalf of the petitioners in W.P. No. 5017/2023 that the circular pertains to annual exam/evaluation for 5th and 8th standard in all Schools of State syllabus for the academic year 2022-2023. Therefore, the circular is applicable to only the Schools coming under the State syllabus and would not be applicable to other Schools which do not fall under the State syllabus category. Though the circular does not specifically state conducting of Board exam or Public exam, the content, procedure for conducting of examination, evaluation, setting of question paper, printing and distribution of admit card, evaluation centre and evaluation management and allocation of management responsibilities are all in the form of conducting a Board exam/Public exam to the 5th and 8th standard students.

5. Learned counsel for petitioners relies on Section 16 of the RTE Act and contends that Section 16(1) of the RTE Act contemplates conducting of ‘regular examination’ in the 5th and 8th standard at the end of every academic year. Learned counsel contends that the RTE Act has made a differentiation/distinction with conducting of regular examination being different from conducting of Board examination. He say so for the reason that Section 16 of the RTE Act contemplates regular examination and Section 30 of the RTE Act contemplates Board examination. He draws a distinction that under Section 16(1) of the RTE Act, the Act contemplates conducting of regular examination in the 5th and 8th standard at the end of every academic year, whereas, Section 30 of the RTE Act contemplates Board examination, which in specific terms says that ‘no child shall be required to pass any Board examination till completion of elementary education’.

6. Learned counsel for petitioners contends that the elementary education is defined under Section 2(f) of the RTE Act, which reads as