M. F. SALDANHA, J. ( 1 ) A controversy of appreciable dimensions has arisen with regard to the proposed decision of the education department of the state government to conduct a public examination at the 7th standard level in the various schools in the state. Hitherto, such an examination was conducted up to the year 1979 whereafter it was discontinued. Under the scheme at present in vogue, the 7th standard examination like all other similar examinations is being conducted by the school authorities themselves and it is this particular system that is sought to be varied through the present decision. This decision was taken by the authorities on 29-1-1996 and was communicated to the schools very shortly thereafter. It appears that there was a certain degree of opposition to the introduction of the public examination at the 7th standard level and it is contended that certain demonstrations took place and that certain articles appeared in the media opposing this decision. The court is not concerned with such reaction but I refer to it because there are two petitions before me one of them which is a representative petition filed on behalf of the management of about two thousand institutions and another petition which claims to be representative of the students and parents. There are reference in these petitions and various submissions therein contending that intervention of this court is necessary as far as the decision is concerned and one of the pleas that is urged is that there has been a sporadic reation only because the element of hardship is very real and is very widespread. To this limited extent, I am- referring to those incidents. ( 2 ) I need to prefix this judgment with certain observations. To this limited extent, I am- referring to those incidents. ( 2 ) I need to prefix this judgment with certain observations. In the first instance, it needs to be recorded that this court has come across numerous instances with regard to a very sad situation concerning the educational field which can be broadly summarised under two heads the first of them being that there has been a widespread non-observance of regulations and orders both of the government and of the universities on the part of a large number of individuals and institutions and secondly, that there have been many instances of flagrant breach of regulations as a result of which the educational standards in many quarters have virtually plummeted and further more a situation has been reached whereby a large number of excellent educational institutions that this state possesses have been totally and completely eclipsed by the errant ones which have repeatedly come to the notice of the courts, the authorities and the public eye and the totality of the situation reflected is that it was very very necessary on the part of the state government to conceive of correctives. As far as the educational institutions which we are concerned with, namely the various schools are concerned, it is a matter of record that certain malpractices have been rampant namely that standards have not been rampant namely that standards have not been maintained. There have been numerous other instances where virtually trading and racketeering in education has taken place as a result of which almost an entire generation of students has been exposed to very dangerous consequences. It is incumbent on the part of the authorities in such a situation to device and implement correctives and it is in this background that it has been pointed out by the secretary of the department and by the learned government Advocate who represents the respondents that after a very careful, detailed and mature consideration of the problem that it was decided that one very necessary and essential corrective would be to reintroduce the system of holding a public examination at the 7th standard level. The general consensus not only of the authorities but the experts in the field was to the effect that the introduction of the 7th standard public examination was desirable because it would provide a virtual test or a barometer of the all important question which centres around the maintenance of proper educational and academic standards. What is in fact pointed out is that by the time a student reaches the 7th standard he or she has reached the formative years of the educational career and it is therefore very necessary to provide some regulatory mechanism in addition to what already exists perhaps of ensuring that in the first instance the various syllabi which are prescribed by the departments are in fact be adhere to that the requisite standards are maintained and further more, that there is a clean and transparent examination system. This last aspect of the matter is of some significance because I am in full agreement with what has been pointed out by the respondents that if in the existing system the entire decision with regard to the completion or otherwise of the syllabus, the methodology adopted as far as the maintenance of standards and the only test that comes up at the examination is left to the school authorities, that it is a virtual in house circulatory system which does not provide for adequate scrutiny from the department. Experience has shown that because of this closed system even though in a large number of institutions which do observe the rules that there is hardly any cause for complaint, that the instances of departure from these norms have now become rampant. The decision therefore to hold the examination according to the authorities proceeds on a two-fold objective. The first is in order to enforce the adherence to the syllabus, secondly and more importantly, in order to enforce standards both as far as academic curriculum goes and the holding of the examination is concerned. In the view of the experts the 7th standard is the correct point of time when this should be done and there can hardly be two opinions about it. It is precisely in this background that after a careful, prolonged and protracted consideration that the decision came to be taken. ( 3 ) THIS decision has been challenged through the two petitions. It is precisely in this background that after a careful, prolonged and protracted consideration that the decision came to be taken. ( 3 ) THIS decision has been challenged through the two petitions. I need to indicate that even though there is a composite challenge presented in the petitions, that it narrows down to basically two heads which I shall deal with. The first of them is with regard to certain legalities involved in the methodology of bringing about the change and the second one is confined baskally to the timing of the decision. It is not really the wisdom of the decision that is questioned but the fact that it is sought to be implemented from the current academic year. Various grounds have been pleaded which I shall also deal with but the reason for narrowing down the heads of challenge is in order to record that as far as the broad aspect of the matter is concerned namely the desirability or the necessity of holding a public examination at the 7th standard level goes, there is precious little challenge on merits. I have already recorded that this was a considered decision which was taken by the state government in the light of a situation that required rectification, that the decision was neither hurried nor arbitrary, that the various experts had been consulted and this court is of the view that it is not only a step in the right direction but it is also well intentioned. I need to record here that in the course of the argument the secretary of the department has produced before me a considerable amount of material from which I am more than satisfied that apart from other considerations it was also a responsible decision and to my mind a correct one. ( 4 ) THE basic ground on which the decision in question is sought to be challenged as far as the legalities go, can best be stated by summarising it. Learned counsel have pointed out that the exercise of powers by the department will now have to be traced to the Provisions of the Karnataka Education Act which is really the source of such power. This act admittedly came into force from 1-6-1995. To start with, the learned advocates have drawn my attention to the Provisions of Section 7 of the act. This act admittedly came into force from 1-6-1995. To start with, the learned advocates have drawn my attention to the Provisions of Section 7 of the act. They have demonstrated that this Section makes mention of various aspects particularly the prescription of the syllabi, the holding of examinations etc. Learned advocates have specifically demonstrated that Section 22 of the act deals with the holding of examinations and that Section 22 prescribes that the government may make necessary rules for this purpose. They have thereafter drawn the court's attention to the Provisions of Section 145 of the act wherein, as many as 40 different heads have been enumerated as various areas in respect of which the state government may promulgate rules but what the learned advocates point out is that when these draft rules are prepared, that they should be made known to the various parties who would be concerned with those rules which necessarily implies that these parties may bring to the notice of the government whatever modifications or amendments or changes that are necessary in those rules and that once they are finalised, that they are required to be approved by the house. They contend that the Rule making power of the government has been exercised and that certain very unsatisfactory draft rules have been published and that various parties have filed objections to these rules. A copy of those rules has been filed before the court but those rules are silent with regard to the aspect of the present change. The learned advocates therefore submit that the executive decision that has now been taken which is in the form of an order from the department is wholly without jurisdiction in so far as the rules do not make provision for this and in any event the rules themselves have so far not been finalised. They therefore content that it is not open to the authorities howsoever good the step may be, to bring about a drastic change of this type, as far as the educational system is concerned, through a mere executive order without first having promulgated the requisite rules in this regard. ( 5 ) THE defence put forward by the department and the learned government Advocate has not been specifically filed in the form of an objection statement. ( 5 ) THE defence put forward by the department and the learned government Advocate has not been specifically filed in the form of an objection statement. This does not make any difference because it has been submitted in writing and I have taken it on record. The reason for this was principally because these cases are of some urgency in so far as the petitioners learned Advocate submits that the examinations are due to be held in the course of the next 3 weeks and that therefore a decision on the petition is very necessary. The respondents have also co-operated in so far as they have filed their say immediately and I have heard all the learned advocates. An application was filed for intervention which I have also granted because in my view it is very necessary for the court to take into account the submissions canvassed from all the different quarters. ( 6 ) THE basic plank of defence is that the power to act in such situations vests with the government by virtue of the Provisions of article 162 of the constitution. It is contended that in so far as the government is possessed of this power that it is entitled to exercise it and if the exercise is, in a given case valid and does not suffer from any mala fides, that the want of rules etc. Is a mere technical objection. Learned government Advocate supports this submission by pointing out that Section 22 of the Education Act itself vests the basic power and that the option to make rules for purposes holding the examinations etc. Is not a compulsion. The emphasis is basically on the fact that the legislature in its wisdom uses the word "may" and not the word "shall" and that therefore it is not obligatory on the part of the state to first promulgate rules in respect of the conduct of examinations and to thereafter make known its decision. The argument proceeds on the footing that so long as the power vests in the government, the jurisdiction of the government to take such a decision and implement it cannot be questioned. The learned government Advocate has also advanced one more argument namely that as is customary, when a new legislation replaces a set of older ones that actions taken under the old legislations, rules, regulations etc. Are saved. The learned government Advocate has also advanced one more argument namely that as is customary, when a new legislation replaces a set of older ones that actions taken under the old legislations, rules, regulations etc. Are saved. He submits therefore that in so far as under the pre-existing regulations, the state had the authority to fix the examinations or to alter them, that the present power has been exercised by virtue of that situation. There is a fallacy in this argument in so far as what Section 146 saves is only acts that have been done prior to the Provisions of the Karnataka Education Act coming into force and consequently, once the Present Act has come into operation, it would not be permissible to seek to exercise powers under the pre-existing rules, regulations or orders. To this extent therefore, the submission that Section 146 comes to the assistance of the respondents cannot be upheld. ( 7 ) THE petitioners learned advocates have submitted that it is well-settled law that as far as the powers that flow from article 162 of the Constitution are concerned, that these powers cannot be exercised in those situations where the very functions are occupied by an existing legislation. For. this purpose, they have drawn my attention to a decision of the Supreme Court in State of Sikkim v d. t. bhutia and others. The court had occasion to consider the ambit and scope of Section 162 and to uphold this proposition. Petitioners learned advocates have secondly contended that regardless of the option that is prescribed in Section 22, that it would not be open to the state without having first promulgated the rules in relation to the holding of examinations to have taken the present decision. As far as this aspect of the matter is concerned, I need to observe that normally this court would have taken cognizance of the fact that the use of the word 'may' in Section 22 would give the government the option to act even de hors any rules. There is an aspect of significance which this court needs to take into account. The question of holding a public examination in this case, as the court is informed, is a decision which concerns and affects something like 10 lakh students. The magnitude of the matter is something which the court has to take serious note of. There is an aspect of significance which this court needs to take into account. The question of holding a public examination in this case, as the court is informed, is a decision which concerns and affects something like 10 lakh students. The magnitude of the matter is something which the court has to take serious note of. The second aspect of the matter is that it is not an inconsequential decision but it is an extremely major decision. It is almost a total overhaul of the pre-existing system. Had the decision been one of considerable insignificance, this court would not have hesitated to dismiss the objection raised by the petitioners learned Advocate but one needs to take note of the fact that it may be in the present instance the department has acted very responsibly and" very correctly, but that on the other hand there have been instances when the courts have been required to strike down actions on the part of the government, who for populist sentiments had taken motivated or irresponsible decisions or acted arbitrarily and in situations such as these the court needs to take into account the fact that they are decisions of far reaching consequence which affect lakhs of students and virtually touch the future career of an entire generation. Under these circumstances it may not be possible, as far as such major decisions are concerned, to uphold the contention canvassed on behalf of the respondents that they have the absolute freedom in the absence of pre-determined rules to take whatever steps they like even if the decision happens to be a good one. The educational system is something that has been carved out and which has been worked upon over the years and a decision of this type which bring about a major alteration is something which will still have to be done after well defined rules have been prescribed. This would be very necessary in order to avoid a situation whereby, for whatever reason, changes are sought to be made from time to time and the education system is sought to be changed. This court has come across many situations whereby decisions of this type, sometimes untimely ones, have been taken and which consequently have been far from happy. This would be very necessary in order to avoid a situation whereby, for whatever reason, changes are sought to be made from time to time and the education system is sought to be changed. This court has come across many situations whereby decisions of this type, sometimes untimely ones, have been taken and which consequently have been far from happy. It is basically in this background and having regard to the nature of the subject and consequences of it and the number of persons that it will affect, that the court considers it very necessary to uphold the objection that has been canvassed on the point of law in the present petitions. ( 8 ) AS far as the second objection is concerned, the petitioner slearned advocates have contended that the 7th standard examination is scheduled to be held in the 3rd week of March 1996. They pointed out that the average age of the students who will be taking this examination is around 12 or 13 years. The court needs to take note of this last aspect of the matter because the candidates are virtually a group of young school children. These candidates are studying in various institutions both in the rural and mofussil areas. The various institutions in which they are being imparted education are extremely dissimilar and what the learned advocates submit is that it is not only a question of whether in all these institutions the syllabus has been completed or whether it has not been completed. It is also the question as to whether the students have been imparted the training of the requisite caliber to be able to do the public examination but the important aspect of the matter is that the students were never informed prior to 29-1-1996 that they would have to do a public examination in the month of March of that very year which was hardly six weeks from that date. What they submit is that the students and the teachers for that matter, were not mentally prepared for this decision. They have also submitted that one has to take note of the fact that there are a very large number of instances where the students, are in fact not prepared because neither has the syllabus been properly completed nor has been standard of education been good enough. They have also submitted that one has to take note of the fact that there are a very large number of instances where the students, are in fact not prepared because neither has the syllabus been properly completed nor has been standard of education been good enough. The bottomline of the argument is that irrespective of who was responsible for this State of affairs, that the young students cannot be punished for it. It is this contention which they have basically projected before the court and they have also contended that if the students are to prepare themselves for the examination adequately that the amount of time available is not enough to take corrective action. ( 9 ) AS regards this head of criticism, it is pointed out on behalf of the respondents as also by the interveners that the entire grievance or objection is imaginary. It is also submitted that it is opposition for the sake of opposition only because some reform is sought to be brought about. The respondents have also submitted that as invariably happens, even a good measure is opposed because people are allergic to change. More importantly, what has been pointed out on behalf of the department is that in any event the students do take the district level examination which is akin to a public examination at the end of the 7th standard. These students in any event do a final examination at the end of the academic year and the basic contention is that there is no question of pleading hardship because it is only a different authority that is holding the examination. It is also pointed out that on the other hand that as far as the present year is concerned that various considerate steps have been taken which have been geared broadly in view of the fact that there are various dissimilarities between the educational institutions and the levels of education, minor differences from district to district and several other factors including the fact that this examination is being introduced for the first time. The authorities have pointed out that special consideration has been given as far as the setting of the examination papers is concerned, that the evaluation will also be done by a good set of evaluators namely the teachers at the high school level and that further more special instructions have been issued that a certain degree of consideration must be shown as far as the evaluation goes since this is the first occasion when the examination is being held and that too at short notice. It is also pointed out to the court that there is one more helpful provision that has been corporated namely that if some of the students are unsuccessful, they will be given a second opportunity to reappear in the month of may 96 so that they can clear the examination without having to lose one academic year. In sum and substance, what has been pointed out is that everyone of the grievances projected on behalf of the petitioners have been taken into account and that adequate provision has been made in this regard. To this extent I musts say that the department deserves to be complimented for the simple reason that unlike, as often happens in government, a lot of thought has been given for the holding of the examination and serious efforts have been made to ensure that there is no hardship that is caused to the students. ( 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. 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 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 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. 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 order to enable the government to take a decision in this regard and if the decision is to move the appellate court, so that appropriate orders can be obtained. The petitioners learned advocates have opposed the grant of any further stay only on the ground that the large number of students and others who are concerned with these cases have been in a State of uncertainty and that since the court has cleared the process that this situation should not be allowed to continue. As far as this aspect of the matter is concerned, normally I would have stayed the operation of the order for a reasonable period of time. The effect of passing any such order would be to prolong the present State of uncertainty which is extremely detrimental to the student community, virtually on the eve of their examinations and this is not desirable. Under these circumstances, a copy of the order will be made available to the respondents at the very earliest and it is always open to them to move the appellate court if they so desire. The application for stay therefore cannot be granted. --- *** --- .