K. Shyam Sunder Others v. State Of Tamilnadu, ...

(Petitions praying that in the circumstances stated therein and in these respective affidavits filed therewith the High Court will be pleased to

(i) grant an order of interim direction, directing the respondents to continue the Samacheer Kalvi in the Academic Year 2011-2012 as per the Tamil Nadu Uniform System of School Education Act, 2010 (TN Act 8/2010) (in MP.1/11 in WP.12882/11);

(ii) grant an order of Ad Interim Injunction restraining the 1^st and 2^nd respondents from in any way implementing the Cabinet decision of the Government dt.22.5.2011 in so far as putting on hold the implementation of Tamil Nadu Uniform System of School Education Act 2010 (in MP.1/11 in WP.12890/11);

(iii) grant an order of Interim Injunction, restraining the respondents 1 and 2 from in any manner implementing the Cabinet Decision of the Government dt.22.5.2011 in so far as putting on hold the implementation of Tamil Nadu Uniform System of School Education Act, 2010 (in MP.1/11 in WP.13019/11);

(iv) grant an interim injunction restraining the respondent from implementing the policy decision of the Cabinet held on 22.5.2011 to withhold and defer the implementation or Uniform System of Schools Education Act, 2010 for the Academic Year 2011-2012, issued vide News Release No.289 of 2011 by the 4^th respondent dt.22.5.2011, (in MP.1/11 in WP.13037/11);

(v) pass an interim stay for the further proceedings of Tender called for printing the Text Books by the 5^th respondent Corporation vide Tender Ref.No.3329/P52/2011, dt.21.5.2011, (in MP.2/11 in WP.13037/11);

(vi) grant an interim direction, directing the 1^st to 3^rd respondents to re-open the schools in Tamil Nadu on 03.06.2011 and to issue the Text Books now available for the Standards I to X under various streams as per the Syllabus of Uniform School System for this Academic Year 2011-2012, (in MP.3/11 in WP.13037/11);

(vii) pass an order of interim injunction preventing the respondents from disposing the Uniform Textbooks published as per the approval of the 5^th respondent (in MP.1/11 in WP.13038/11);

(viii) direct the respondent to distribute the common text books to all the schools governed by the provisions of Tamil Nadu Act 8 of 2010 (in MP.1/11 in WP.13227/11);

(ix) Writ Petition under Article 226 of the Constitution of India praying that in the circumstances stated therein and in the affidavit filed therewith the High Court will be pleased to issue a writ, order or direction in the nature of a Writ of Mandamus directing the respondent to the nature of a Writ of Mandamus directing the respondent to continue with the existing Uniform Textbooks and Uniform Syllabus for all classes from this academic year i.e. 2011-2012 (in WP.13293/11);

(x) pass an interim order of stay of further proceedings in pursuant to the Cabinet Decision taken on 22.5.2011 by the Government of Tamilnadu to with hold the implementation of the Tamil Nadu Uniform School Education Act, 2010, for the academic 2011-2012 as issued vide News Release No.289 dt 22.5.2011 by the Director of News and Public Relations Department, the 4^th respondent (in MP.1/11 in WP.13296/11);

(xi) grant an order of interim injunction, restraining the respondents from acting in furtherance of placing any order for printing and/or publication and/or distribution of any textbooks other than the textbooks already printed and published under the uniform system of education for the academic year 2011-2012, (in MP.1/11 in WP.13345/11);

(xii) pass an Order of Interim Injunction preventing the respondents from disposing the Uniform Textbooks published and made ready for distribution (in MP.1/11 in WP.13381/11);

(xiii) pass an Order of stay of the operation of the Tamil Nadu Uniform System of School Education (Amendment) Act 2011, (in MP.2/11 in WP.13381/11);

(xiv) grant stay for the operation of the Tamil Nadu Uniform System of School Education (Amendment) Act 2011 (in MP.1/11 in WP.13390/11) pending disposal of the above Writ Petition Nos.12282, 12890, 13019, 13037, 1303B, 13227, 13293, 13296, 13345, 13381, 13390/11 respectively.)

As common questions of fact and law arise for consideration in these batch of cases, they were heard together and the miscellaneous petitions are disposed of by this common order.

2. There are two sets or writ petitions. In one set or writ petitions, the petitioners seek issuance of a writ of mandamus directing the respondents to continue with the “Samacheer Kalvi Thittam” in the Academic Year 211-2012 as per the Tamil Nadu Uniform System of School Education Act, 2010. In another set of writ petitions, the petitioners seek a declaration to the effect that the decision of the State Cabinet taken on 22.5.2011 to withhold the implementation of the Tamil Nadu Uniform System of School Education Act, 2010 for the Academic Year 2011-2012 is null and void, unconstitutional and further, to direct the respondents to implement section 3 of the aforesaid act of 2010. In some writ petitions, the petitioners also challenge the substituted Section 3 of the Tamil Nadu Uniform System of School Education (Amendment) Act, 2011 as ultra vires the Constitution, nullifying the judgment of the Division Bench of this Court in W.P.Nos.3051 of 2010 dated 30.4.2010.

3. The first batch of writ petitions, seeking for a direction to continue the “Samacheer Kalvi”, came to be filed earlier and a Division Bench of this Court, granted an interim order on 01.06.2011, which is to the following effect:-

“Learned Advocate General submitted a copy of the letter bearing No.17629/Q/2011-1 dated 01.06.2011 addressed to him by the Secretary to Government, School Education Department.

The letter reads as follows:

“I am directed to State that the Government will not take any action regarding the disposal of Samacheer Kalvi Textbooks Printed so far till the next hearing of the case i.e., 08.06.2011.

2. The contents of the above letter satisfy the interim prayer made in the writ petition. Therefore, the contents of the letter are brought on record.

3. Post along with W.P.Nos.12882, 12890/2011 on 08.06.2011.”

4. During the pendency of the first batch of writ petitions, the State of Tamil Nadu enacted the Amending Act, 2011, (Act 10 of 2011) amending the Parent Act, thereby postponing the implementation of the Parent Act. The Constitutional validity of the Amending Act is challenged in the second batch of writ petitions.

5. The State Government through its Secretary, School Education Department, have filed a counter affidavits in the first category of cases, wherein the petitioners sought for implementation of the Parent Act. In view of the subsequent development, whereby the State amended the Parent Act, some of the petitioners in the first batch of cases have filed miscellaneous petitions to amend the prayer in the writ petitions by challenging the vires of the Amending Act. Few petitioners have filed separate writ petitions challenging the vires of the Amending Act. Since the vires of the Amending Act has to be tested, it is essential that the State Government should file a counter affidavit in the said batch of writ petitions to enable this Court to hear and dispose of the same. However, both parties to the writ petitions have expressed some urgency in the matter, since the Schools in the State of Tamil Nadu have to reopen on 15.06.2011, for the academic session 2011-12, and the text books have to be distributed to the students. Therefore, we are constrained to dispose of the interim applications alone and admit the writ petitions for hearing and disposal.

6. We have elaborately heard the learned counsels, Mr. P. Wilson, Senior Advocate, Mr. N.G.R. Prasad, Mr. V. Selvaraj, Mr. T. Mohan and Mr. Purusothaman for the writ petitioners, the learned Advocate General Mr. A. Navaneetha Krishnan, for the respondent State and Mr. R. Krishnamoorthi, Mr. N.R. Chandran and Mr. S. Silambanan, learned Senior Counsels Mr. S. Kadarkaria and Mr. Siddartha Jeganathan (Party in person) for the impleading parties, who are supporting the stand taken by the State Government.

7. The facts of the case, which are not much in dispute, are that the “Samacheer Kalvi Thittam”, i.e., the Uniform System of School Education Act, 2010 (in short “Act of 2010) was enacted to introduce a common syllabus, textbooks and examination system to the four streams of education in the State of Tamil Nadu. The Act was enacted to achieve social justice and introduce quality education. The said Act was challenged by some of the Private Schools Associations as well as by some individuals in W.P. Nos.3051 of 2010 etc. It was canvassed before a Division Bench of this Court challenging the Act of 2010 that the Act interfered with the right of children to choose the preferred system of education. It also interfered with the right of the parents to choose as to which system of education was suitable for their children. The Act was assailed also on the ground that it interfered with the teachers’ independence, imagination and inventiveness in adapting and adopting teaching methods which were best for her class. However, in those writ petitions, the legislative competency of the State Legislature to legislate the Act of 2010 was not challenged.

8. The Division Bench of this Court, by a very elaborate judgment, upheld the constitutional validity of the Act of 2010 with certain observations and directions. The Division Bench proceeded on the basis that it is clear from the scheme of the Central Act that the National Curriculam Policy has to be implemented by the States either through the Academic Authority or the State Council, so that both the Acts could co-exist. On the basis of the materials produced before the Division Bench, the Court held that the Committee constituted for drafting the syllabus consisted of senior lecturers of D.I.E.T., post-graduate teachers from across the State and other scholars. The Division Bench observed as follows:-

“50. Materials were produced before us giving the names of the Draft Syllabus Committee constituted for ‘Samacheer Kalvi’ and we found that apart from Senior Lecturers of D.I.E.T. in various districts, Post-Graduate teachers from across the State from Matriculation Schools, Anglo-Indian Schools and Higher Secondary Schools had been invited to suggest and to prepare the draft syllabus. A fairly broad based group or people had been invited to prepare the syllabus. The fears of the petitioners that the textbooks that are prescribed by the State would not match the textbooks that they have been using appears to spring from their comparison of the existing State Board textbooks with the textbooks used by the matriculation schools. The materials produced before us – and a sample textbook was also shown – clearly shows that the State wants to make a clean break in designing the textbooks bearing in mind broadly the suggestions made by the various committees hitherto and also the suggestions of the education experts whom they had on their team. Repeatedly, the learned Additional Advocate General submitted that the petitioners shall not base their conclusions on the students who study in the State Board Schools, but what the State has produced now is an effort to improve the education standards and to give quality education.”

The Division Bench, therefore, observed that the object of the Act of 2010 is in tune with the constitutional principles and the international conventions, and that the Act of 2010 does not make any discrimination between the State Board Schools and the Central Board Schools. The Division Bench further elaborately discussed the different provisions of the Act of 2010, including Section 3 of the Act. Section 3 of the Act of 2010, in fact, made it mandatory for every school to follow the common syllabus and textbooks as may be specified by the Board for each subject. In Section 3, it is clearly mentioned that the new pattern will commence from the Academic Year 2010-2011 for Standards I and VI, while for Standards II to V and Standards VII to X, it was to commence from the Academic Year 2011-2012. The Court observed that the ambitious efforts undertaken on the part of the State to bring about social justice and to have quality education will be achieved only when the selection of teachers is made properly and not like appointment in other services. The Division Bench finally upheld the vires of the Act of 2010, and in the concluding portion of the judgment, the Division Bench held as follows:-

“63. To conclude –

… We have upheld the power of the State to bring in a school system common to all in the interest of social justice and quality education. As an aside, we would like to point out that the phrase ‘Uniform School System’ does not bring to the mind the same meaning that the words in Tamil (Tamil) do, which immediately indicates equity and quality in education.

…Implementation of the syllabus and textbooks is postponed till the Academic Year 2011-2012, or until the State makes known the norms and the syllabus and prepares the textbooks in advance.

… In the mean time, the State will bring the provisions of the impugned Act in line with the Central Act, e.g., the State shall specify by notification, the Academic Authority and the State Advisory Council.

… The Government shall also indicate what the approved textbooks are.

… The Government shall, by amending the section or by introducing a schedule to the Act, indicate that the syllabus is restricted to curricular subjects.

… The schools are bound to follow the common syllabus only for the curricular subjects and not the co-curricular subjects.

… The schools may choose from multiple textbooks, viz., Government produced textbooks, which are the prescribed text books and the Government approved textbooks, in all subjects – both curricular and co-curricular.

… The schools shall follow the norms as far as they are practicable.

… There can be no Board Examinations upto the level of elementary education, but assessment norms may be specified.

…The schools which teach all the subjects in a language other than Tamil or English shall inform the competent authority of the language of their choice; in view of the Full Bench decision, the approval is automatic.

…The above intimation is only to facilitate the State to provide appropriate textbooks.

… Norms shall be fixed by the Board which will include both the ex officio members and the other members. The State may make it clear whether this Board will also be the Academic Authority under the Central Act.

… Since we have held that there cannot be strict and rigid norms, Section 11 and Section 12 of the impugned Act are struck down.

… section 14 of the impugned act is also struck down.

64. All the writ petitions are disposed of accordingly. There shall be no order as to costs. Consequently, all the connected miscellaneous petitions are closed.”

30.04.2010

After the orders have been pronounced, the learned Additional Advocate General submitted that a great deal of industry and expenditure has gone into the preparation of the Act by one year will cause huge loss to the State. The learned Additional Advocate General has said that if some time is fixed in May, 2010, they would lay down the norms, would publish it in the website and would also make it known to the general public.

2. We accept this statement of the learned Additional Advocate General. But however, in our judgment, we have held that a school has to have a choice of multiple textbooks. Therefore, we will allow the state to implement Section 3, as modified by us, from this year for Standard I and VI provided the Board fixes the norms before 15^th May 2010 and also gives the list of approved textbooks in every subject before that date.

3. Unless they give a list of approved textbooks before 15^th May, 2010 so that the Schools have a choice, our direction regarding the implementation of Section 3 of the Act from the next academic year will stand.

9. It appears that the School Managements Associations filed appeals before the Hon’ble Supreme Court, which were dismissed. However, both parties have not placed before us, the order passed by the Hon’ble Supreme Court in the said Special Leave Petitions.

10. As noticed above, the Division Bench upheld the power of the State Government to bring in a school system common to all. In paragraph 63 of the Judgment, referred supra, the Division Bench postponed the implementation of the syllabus and text books till the academic year 2011-12 or until the State makes known the norms and the syllabus and prepares the text books in advance. The State in the mean time was directed to bring the provisions of the state act in line with the Central Act namely, The Right of Children to Free and Compulsory Education Act, 2009. We have also noticed the other directions issued by the Division Bench. The further order passed by the Division Bench after pronouncing the Judgment is significant, for the disposal of these miscellaneous petitions.

11. Though the Division Bench initially postponed the implementation of the uniform syllabus and text books till the academic year 2011-12, on a representation made on behalf of the State Government, allowed the State to implement section 3 of the parent act, as modified in the Judgment, for the year 2010-11 for standards I & VI provided the Board fixes the norms before 15.05.2010 and also gives the list of approved text books in every subject before that date. It was further ordered that if the list of approved text books are not given before 15.05.2010, then the direction to implement the Section 3 of the Act for the academic years 2011-12 would stand.

12. It is not in dispute that the books were notified before the cut off date fixed and consequently, the Uniform Syllabus was implemented in respect of Standards I & VI from the academic year 2010-11. The State Government by Amending Act 10 of 2011, substituted Section 3 of the Act, by stating that every school in the State shall follow the common syllabus as may be specified by the Board for each subject in standards I to X for such academic year as may be notified by the Government in the Gazette. Until such notification is issued, the syllabus and text books for standards I & VI shall be the system as prevailing prior to the academic year 2010-11 and for standards II to V and VII to X, the existing system i.e. the system followed for the academic year 2010-11 shall continue. The Amending Act omitted Section 11, 12 & 14 of the Act of 2010, which were struck down by the Division Bench in the above referred Judgment. Thus, the implementation of the Parent Act, has been deferred until a notification is issued by the Government. Challenging the validity of the Amending Act, the writ petitions have been filed.

13. The contentions raised by the learned counsels appearing for the petitioners could be broadly summarized as follows:-

(a) That Section 3 of Amending Act is violative of Article 14 of the Constitution of India as its frustrate the principles of equality which was sought to be implemented by Act 8 of 2010.

(b) That Section 3 confers arbitrary, unguided and unfettered discretion to fix a date for the implementation of the Act.

(c) The Amending Act is in the nature of a conditional legislation giving power to an external authority and it is a colourable exercise of power and it suffers from arbitrariness and unreasonableness.

(d) That Section 3 of the Amending Act virtually nullifies whatever has been done under the Principle Act and it is in effect a repeal of the Parent Act.

(e) Section 3 of the Amending Act contravenes Section 8 (c) and (d) of the Tamil Nadu General Clauses Act, 1891.

(f) That the State has ignored the stress and trauma that would be caused to the children due to the confusion and instability.

(g) That more than Rs.200 crores of public money has been utilized for printing the text books and if they are not utilized or destroyed, it would be a loss to be exchequer.

(h) The reasons offered by the State in the objects and reasons of the Amending Act is not supported by any material records.

(i) The Amending Act is against the National Curriculam Frame Work, 2005, besides the directions issued by the NCERT.

(j) The Amending Act runs counter to the decision of the Full Bench of this Court in 2000 Vol. II CTC 344 and in particular, the observations contained in the paragraph 25 of the said decision.

(k) That the date of change of policy of the new Government is on 22.05.2011, when the Cabinet took a decision to put on hold the Parent Act and by then the State Government was fully ready to implement the Parent Act and the text books have already been printed and published and distributed to the District Educational Officers of the State and the text books have also been published in the website prior to 22.05.2011 and 9.00 crores text books have been printed and if the Amending Act is to be implemented, all these efforts taken by the State Government would go waste.

(l) It is impossible for the State to now print and distribute the old text books as, there are more than 45,000 Government schools, 11000 Matriculation schools, 50 Anglo Indian schools and 25 Oriental schools.

(m) That reverting to the old syllabus will not amount to complying with Section 29(1) of the Central Act, since the old syllabus has not been approved as required under the Central Act.

(n) Though, the State Government did not constitute the committee as required under the Parent Act, their inaction cannot be a ground to repeal or put on hold the Parent Act.

14. Mr. N.G.R. Prasad, learned counsel appearing for the petitioners placed reliance on following decision of the Hon’ble Supreme Court in support of his contentions that Government cannot change policies without valid reasons and Government cannot nullity decisions merely on account of change of power (2010) 8 SCC 49, (2002) 2 SCC 503 and (1996) 5 SCC 280.

15. The learned Advocate General appearing for the state would vehementally contend that (i) the State Government have passed the Amending Act in order to fully and effectively implement the decision of the Division Bench in its letter and spirit and the decision of the Government cannot be faulted.

(ii) That the mandate in Section 3(2)(b) of the Parent Act is contrary to the provisions of Section 30(1) of the Central Act and therefore, the Division Bench struck down the same.

(iii) That the academic authority under Section 5 of the Act and the State Advisory Council under Section 34 have not been notified and it is mandatory to notify the same and without which the provisions of the Parent Act cannot be implemented and therefore, the State Government rightly passed the Amending Act.

(iv) The Government of Tamil Nadu has undertaken a detailed study and after considering all relevant aspects passed the Amending Act and as such the same does not suffer from any infirmity.

(v) The learned Advocate General produced copies of text books printed by the Tamil Nadu Text Books Corporation under the Uniform Syllabus Scheme and stated that certain portions contained in the text books are mere propaganda material introduced by the previous Government and the same would amount to politicizing, the minds of the young children and the present Government will ensure new syllabus within one year and the Government has not abandoned the Uniform Educational Scheme, but are desirous or introducing a good syllabus.

(vi) That a poem written by the Former Chief Minister has been printed in all the Tamil text books for all classes and it is a propaganda and cannot be permitted, therefore, the present Government seeks to achieve the best for the students.

(vii) In support of the Amending Act, 2011, Mr. Navaneethakrishnan, learned Advocate General mainly attacked the Act of 2010 and the syllabus and textbooks prepared thereunder on the ground that the only object and scheme of the earlier Government was to make the young generation politicized. The books contain propaganda material of the earlier Government. According to the learned Advocate General, even after more than Rs.200 Crores have been spent for printing the textbooks, that was only to sing the glory of the earlier Government. Now the present Government reviewed the entire syllabus and the curriculam and found that the same is totally inferior in comparison to the syllabi and textbooks of other States.

(viii) The learned Advocate General placed reliance on an order passed by this Bench in W.P.No.496 of 2011 dated 10.01.2011, wherein a public interest litigation was filed to review the Social Science, Telugu text book for class VI and this Bench directed the Government to consider the representation and the Government accepted the mistakes and issued a fresh text book, which goes to show that all is not well with the new syllabus. The learned Advocate General on the scope of judicial review of the legislation, relied on the decisions of the Hon’ble Supreme court in State of Kerala and another vs. PUCL, (2009) 8 SCC 46, Mylapore Club vs. State of Tamil Nadu, (2005) 12 SCC 752, Municipal Committee Patiala vs. Model Town Residence Association, (2007) 8 SCC 669, Raipur Development Authority vs. Anupam, (2000) Vol 4 SCC 357 and Nagaland Senior Government Employees Welfare Association vs. State of Nagaland, (2010) 7 SCC 643.

16. Mr. R. Krishnamoorthy learned Senior Counsel appearing for the impleading party supporting the learned Advocate General would contend that the school Managements are not against Uniform System of Education and all they seek is quality in the education to be imparted to the students and the Special Leave Petitions filed by the school Managements against the order of the Division bench in referred supra, was dismissed, since the learned senior counsel appearing for the State of Tamil Nadu stated that the Government will be implement the directions of the Division Bench. The learned senior counsel placed heavy reliance on the Statement of Objects and Reasons of Amending Act and would contend that the answer to all the contentions raised by the writ petitioners is contained in the Statement of Objects and Reasons and this Court is entitled to look into the Statement of Objects and Reasons to test the validity of the Amending Act. The learned senior counsel would further submit that the expenditure, of Rs.200 crores incurred for printing the text books is not important, but the Government had in mind the future of the children and therefore, brought about the Amending Act.

17. Mr. N.R. Chandran learned senior counsel for the petitioner would contend that non of the directions issued by the Division Bench have been complied with, the academic authority has not been notified, the State Advisory Council has not been notified and the Schedule to the Act has not been amended. The learned Senior counsel would further contend that the order passed by the Division Bench after the order was pronounced on 10.04.2010 cannot be accepted as a Division Bench of this Court in decision reported in 1995 W.L.R. Page 839 held that a matter cannot be posted for being mentioned for challenging a judicial order passed by a Court and modification could be done only by filing a review. Further, the learned Senior counsel placed reliance on the decision of the Hon’ble Supreme court in Bakhtawar Trust vs. M.D. Narayan, AIR 2003 SC 2236, for the proposition that a decision of a Court of law has a binding effect unless the very basis upon which it is given is so altered that the said decision would not have been given in the changed circumstances.

18. Mr. S. Silambannan, learned Senior counsel would submit that there are various discrepancies in the syllabus and the Matriculation Schools have higher syllabus and the new text books are sub-standard and therefore, it should not be distributed.

19. In reply, the learned Advocate General would submit that there are several complaints given by the Management about the uniform syllabus and based on the same, decision was taken. Several decisions were relied on by the learned counsels in support of their legal contentions regarding the theory of repugnancy, whether the Statement and Objects of an enactment could be looked into for deciding the validity of the Act and such other issues. As, we are disposing the interim applications alone, we have not referred to the said decisios.

20. We have given our anxious consideration to the contentions raised on either side.

21. As noticed above, the Parent Act namely, act of 8 of 2010, was subject matter, of challenge before a Division Bench of this Court. The Division Bench upheld the power of the State Government to bring in a common school system in the interest of social justice and quality education. The Division Bench postponed the implementation of the Act till the academic year 2011-12 or until the State makes known the norms and the syllabus and prepares the text books in advance. In the mean time, the State was directed to bring the provisions of the Parent Act in line with the Central Act. The Division Bench did not uphold the validity of the Parent Act in its entirety, but Sections 11, 12 & 14 were struck down. The schools were given an option to choose the Government approved text books or the Government prescribed text books. It is brought to our notice that the paper cutting showing that the private publishers have been allowed by the earlier Government to print text books and supply the same by 05^th April 2011 and it appears that a circular has been issued by the School Education Department to the said effect. It was ordered that the schools shall follow the norms as far as they are practicable; the interest of the schools teaching subjects in a language other than Tamil or English was also safeguarded in line with the decision of the Full Bench of this Court. It appears that after the judgment was pronounced by the Division Bench on 30.04.2010, it was submitted on behalf of the State Government that great deal of industry and expenditure has gone into preparation of text books and to postpone the implementation of the Act by one year will cause prejudice and huge cost. This submission made by the State Government was accepted and the Division Bench allowed the State to implement section 3 of the parent act, as modified by the Division Bench, for the academic year 2010-11, provided the Board fixes the norms before 15.05.2010 and also gives the list of approved text books in every subject before that date.

22. It has not been disputed that in compliance of the aforesaid judgment, the new syllabus already came to be implemented for Standards I and VI and textbooks were printed in accordance with the said new syllabus from the Academic Year 2010-2011; as far as Standards II to V and Standards VII to X, all textbooks were printed with the approval of the Board, for implementing the new syllabus from the Academic Session 2011-2012. It has also not been disputed that about 9 Crore books at the cost of more than Rs.200 Crores have been printed and distributed for the Academic Session 2011-2012. It is also not in dispute that these text books were made available in the official website to enable the students to download the same and take copies. It is only thereafter that the Amending Act of 2011 was passed by the State Legislature, whereby Section 3 of the Act of 2010 was amended by the Amending Act, 2011. For better appreciation, the Amendment Act is reproduced hereinbelow:-

“The following Act of the Tamil Nadu Legislative Assembly received the assent of the Governor on the 7^th June 2011 and is hereby published for general information:-

ACT No.10 OF 2011

An Act to amend the Tamil Nadu Uniform System of School Education Act, 2010.

Be it enacted by the Legislative Assembly of the State of Tamil Nadu in the Sixty-second Year of the Republic of India as follows:-

1. (1) Thus Act may be called the Tamil Nadu Uniform System of School Education (Amendment) Act, 2011.

(2) It shall be deemed to have come into force on the 22^nd day of May, 2011.

2. For section 3 of the Tamil Nadu Uniform System of School Education Act, 2010 (hereinafter referred to as the principal Act), the following section shall be substituted, namely:-

“3. Schools to follow common syllabus. –

(1) Every school in the State shall follow the common syllabus as may be specified by the Board for each subject in Standards I to X from such academic year as may be notified by the Government in the Tamil Nadu Government Gazette. The Government may specify different academic years for different Standards.

(2) Until notification under sub-section (1) is issued, the syllabus and text books for every school in the State shall be as follows:-

(a) in Standards I and VI, the system as prevailing prior to academic year 2010-2011 shall continue; and

(b) in Standards II to V and VII to X, the existing system shall continue.”

3. section 11 of the principal act shall be omitted.

4. section 12 of the principal act shall be omitted.

5. section 12 of the principal act shall be omitted.

(By order of the Governor)

R. KATHIRVEL,

Secretary to Government-in-charge,

Law Department.

STATEMENT OF OBJECTS AND REASONS

The Government of Tamil Nadu have undertaken a detailed review of the prevailing position in respect of school education in the State, including the relevant material culminating in the enactment of the Tamil Nadu Uniform System of School Education Act, 2010 (Tamil Nadu Act 8 of 2010) and all relevant aspects connected thereto. The Government have also considered the judgment of the Hon’ble Division Bench of the Madras High Court dated the 30^th April 2010 in a batch of petitions challenging the validity of the said Act.

2. On a careful study and consideration of all the relevant aspects, it is seen that the Hon’ble Division Bench of the Madras High Court in its common judgment dated the 30^th April 2010 passed in a batch of writ petitions, even while recognizing the power of the State to bring in a school system common to all ion the interest of social justice and quality education, has struck down certain provisions and given directions for amendment of certain other provisions of the said Act.

3. It is also seen that the decisions for framing the syllabus for classes I and VI has been taken only by the ex-officio members and that the other members of the Board enlisted in section 5(2) of the said Act were appointed only after framing of the syllabus, a fact noted by the Hon’ble Division Bench of the Madras High Court in its decision.

4. Further, as per the Right of Children to Free and Compulsory Education Act, 2009 (Central Act 35 of 2009), the curriculam and the evaluation procedure for elementary education shall be laid down by the academic authority to be specified by the State Government by notification, taking into consideration the criterion spelt out in section 29(2) of the said Central Act 35 of 2009. The Hon’ble High Court, Madras in its order dated the 30^th April 2010, in W.P.Nos.3051-3056 of 2010, etc. has stated that the State must decide whether the Board formed under section 5(2) of the said Tamil Nadu Act 8 of 2010 will be the same as is specified by the Government by notification to function as the academic authority under the said central act 35 of 2009.

5. Further, a detailed review of the syllabus sought to be introduced under the Tamil Nadu Act 8 of 2010 has been undertaken. It is found that the syllabus is wanting in quality and content in various subjects as for example Mathematics, Science and English, thereby undermining one of the principle objects of the said Tamil Nadu Act, namely, providing quality education to children. It is also seen on a scrutiny of the new text books prepared under the new system that there is no scope for creative learning and extra textual learning as recommended by the National Curriculam Framework, 2005. As a consequence, the competence of the students in the State will not be at par with students of other parts of the country while facing national level examinations for higher education.

6. This apart, certain important recommendations made in the report of Thiru M.P. Vijayakumar and Dr. S. Muthukumaran Committees, as for example, constitution of an Advisory Board envisaged to be a permanent body under the name of State Council for Educational Development has not been provided for. Thus, there is no Advisory Board which would assist in a proper formulation of a syllabus which will in turn help in furthering the object of the said Tamil Nadu Act, namely, quality education.

7. The State common Board or School Education constituted under the Tamil Nadu Uniform System of School Education Act, 2010 has not been designated to be the Academic Authority according to section 29 of the Right of Children to Free and Compulsory Education Act, 2009. Therefore, there is no competent professional body for prescribing the common syllabus and prescription of text books. No books other than the books brought out by Tamil Nadu Text Book Corporation has yet been notified for Standards II to V and VII to X. This is required as per the judgment of the Hon’ble High Court. Further, Uniform System of Education, ‘Samacheer Kalvi’, involves more than the prescription of common syllabus and text books. Various suggestions made by Dr. S. Muthukumaran Committee with regard to enactment of a comprehensive legislation covering various aspects like qualification of teachers, infrastructure facilities, examinations, code of conduct for teachers, conduct rules for students etc., need a comprehensive study in the interest of students. He has also emphasized changes required in the method of assessing the students. Therefore, it has become impossible to implement the Samacheer Kalvi Thittam this year as envisaged in section 3 of the said Tamil Nadu Act 8 of 2010. Therefore, the Government propose to appoint a Committee to suggest the ways and means of implementing the ‘Samacheer Kalvi’. To give effect to the above, it has been necessary to amend section 3 of the said Tamil Nadu Act 8 of 2010, suitably.

8. Further, the Act has not been amended as per the directions of the Hon’ble High Court in W.P. No.3051-3056/2010. This needs to be amended as per the directions of the Hon’ble High Court. To give effect to the above directions, it has become necessary to omit sections 11, 12 and 14 of the said Tamil Nadu Act 8 of 2010.

9. Therefore, on a review of all the relevant facts and materials including the aforestated, the State have found that the syllabus and the text books are not subserving the objects of the Act fully or enabling the students to meet the challenges thrown up by globalization. The State proposes to appoint a high powered committee consisting of experts in the field to undertake a detailed study of the more appropriate system to be adopted for ensuring the improvement of quality and education and social justice by providing a level playing field to all sections of society.

There is therefore an urgent need to review the situation.

To give effect to the above, it has become necessary to amend the said Tamil Nadu Act suitably.

10. The Bill seeks to give effect to the above decision.

C. Ve. SHANMUGAM,

Minister for School Education”

2. Although from a reading of the aim and object of the Amendment Act, many things have been said, but no materials have been produced before us to show that any review was done by any Expert Committee before passing the Amending Act, 2011. On the contrary, it has been alleged and not denied by the respondents that the result of the Assembly Elections was announced on 13.5.2011 and the Cabinet took office on 16.5.2011. The first meeting of the Cabinet was held on 22.5.2011 for an hour and within that short time, several issues including the issue on ‘Samacheer Kalvi’ was discussed and immediately the notification was issued on 23.5.2011 calling for tenders to print textbooks under the old syllabus. Prima facie, this shows that the action of the Government to switch back to the old syllabus is not based on the report of any Expert Committee.

24. Section 3(1) of the Parent Act states that every school in the State shall follow common syllabus and text books as may be specified by the Board for each subject. Under the Amended Section 3, the word text book has been deleted and every school in the State shall follow the common syllabus as may be specified by the Board for each subject in standards I to X from the academic year as may be notified by the Government. The learned Advocate General during the course of his argument submitted that the Government would be in a position to introduce the new syllabus within one year and that the Government is not against the Uniform System of education, but are interested in providing good syllabus bearing in mind the future of the children.

25. In terms of subsection 2 of Section 3 of Amending Act, the position prevailing prior to the academic year 2010-11 has to be followed for standards I and VI and for remaining classes, it has been stated that the “existing system” shall continue. At this stage, the moot question would be as to what is the “existing system”, so far as standards II to V and VII to X are concerned. The petitioners would contend that as directed by the Division Bench, the Uniform Syllabus Scheme has been implemented for standards II to V and VII to X, a new syllabus has been published, text books have been printed, ready for distribution and text books have been made available in the website well before the coming into force of the Amending Act on 22.05.2011. It is not disputed that substantial amount of public money has been invested for the preparation of the new syllabus and text books. According to the learned Advocate General certain portions of the text books are propaganda about the earlier State Government and therefore, cannot be allowed to be remain in the text books. However, no other material has been brought to our notice to say that the new text books under the Uniform Syllabus is either wholly erroneous or incorrect. In any event, these are matter to be decided by the experts in the respective field. The learned Advocate General submitted that team of experts have been constituted to make a thorough study of the text books and therefore, the text books printed under the Uniform Syllabus should not be put to use. As noticed above, a paper cutting from the ‘Times of India’ dated 24.02.2011 has been placed before us, wherein it has been stated that the School Education Department has called for private publishers to come out with text books for students based on the common school syllabus drafted by the Department. A circular from the Department has asked private publishers to prepare text books for all subjects except Tamil for students of classes 2 to 5 and 7 to 9 with the common syllabus as a guideline. Publishers have been asked to submit the textbooks by April 5 for clearance by the Department.

26. At this stage, we are faced with two vital issues, firstly, the validity of the impugned Amending Act has to be tested; whether, it infringes any of the Constitutional guarantees, and whether it nullifies the judgment of the Division Bench of this Court. This could be done only after the State files their counter affidavit to the writ petitions, challenging the vires of the Amending Act. The second and more important issue is to see as to what has to be done in the interregnum. At this juncture, we may not ignore stages and circumstances under which the impugned Amending Act was passed. The first meeting of the Cabinet was held on 22.05.2011 and the notification for printing the text books with old syllabus was issued on 23.05.2011. Though, in the Statement of Objects and Reasons of the impugned Amending Act, it has been stated that a detailed review of the syllabus sought to be introduced under the Parent Act was undertaken, no material has been placed before this Court as to the manner in which such review was undertaken. It would be rather impossible for any such expert committee to conduct a review of the entire syllabus and text books for classes 1 to 10 within one day after the Cabinet first met on 22.05.2011. The details as to the manner in which the review was done is not forthcoming. However, in paragraph 9 of the Statement of Objects and reasons it has been stated that the Government proposes to appoint a High Power Committee consisting of experts to undertake a detailed study for improving the quality of education. Thus, it is manifest that as on date no such committee has been constituted to review the existing syllabus and text books. Thus, it is clear that action appears to have been done in haste. We are prima facie satisfied that the Amending Act in effect repeals or indefinitely puts on hold the implementation of the Parent Act. At this stage, it is to be borne in mind that the Parent Act has already been implemented insofar as Class I & VI from the academic year 2010-11. Therefore, to revert back to the position prior to 2010-11 would amount to violating the decision of the Division Bench of this Court and would have the effect of repealing the Parent Act. Therefore, at this stage, such reversion should not be permitted as the same would not be for the welfare the student community. In respect of the other classes namely standards II to V and VII to X, it has been stated that the substantial work has been done for introduction of the new syllabus and printing the text books and the same has already been made available to the students by publishing it in the official website. Therefore, we are of the firm view that if the impugned Amending Act is to be given effect to it would result in unsettling various issues and the interest of the children would be jeopardized. While considered the balance of convenience we have to bear in mind that the paramount consideration shall be the welfare of the students.

27. In that view of the matter, we dispose of the Miscellaneous Petitions by passing the following order:-

(i) The provisions of Section 3 of the Tamil Nadu Uniform System of School Education (Amendment Act) 2011, (TN Act 10 of 2011) shall remain stayed pending disposal of the writ petitions.

(ii) The order of stay shall not operate as a bar for the State Government to conduct a detailed study of the common syllabus and common text books introduced under Act 8 of 2010 and the Government shall be entitled to delete, add, modify, substitute or alter any chapters, paragraphs, portion of the text books which indeed included to propagate the achievement of a political party or an individual and issue appropriate instructions in this regard. At this stage, we are constrained to observe that the Government should avoid to include any chapter in any of the text books with an intent to propagate a particular political party or an individual.

(iii) The various private Managements have stated that there are several books of high standard and the Government should approve the same in terms of the direction of the Division Bench as the schools should be given option to choose either the Government prescribed text books or the Government approved text books. In this regard, it shall be open to such the Managements of private schools to submit the list of books for approval of the Government and the Government shall conduct a detailed study on such books and take a decision in the matter with a view to comply with the direction of the Division Bench contained in paragraph 63 of the Judgment.

(iv) The impleading petitions are ordered and the newly impleaded parties are at liberty to file their counter affidavits.

(v) The State Government shall also file their counter affidavit in the writ petitions filed for declaration of the Amending Act as ulta vires.