Reservation at pre-school level valid under RTE Act

Karnataka High Court: While relying upon the Bombay High Court decision in Vikhe Patil Foundation’s Vikhe Patil Memorial School v. Union of India, 2015 SCC OnLine Bom 4732, the Single Bench of S. Sujatha, J. has held that the compulsory admission of minimum 25% in Class-I, or pre-school (LKG) of the children belonging to disadvantageous section and the simultaneous entry to both levels is within the framework of the Right to Education Act.

Section 12(1)(c) of the RTE Act provides that a school specified in Section (2)(n)(iii) and (iv), shall admit in class-I, at least 25% of the strength of that class, children belonging to disadvantageous section. The Proviso appended thereto reads: “provided further that where a school imparts pre-school education, clause (c) shall apply for admission to such pre-school education.”

A Karnataka Government Order further prescribed that in schools imparting pre-primary education, and having higher strengths in Class-I as compared to LKG, total number of reserved seats shall be 25% of strength in class-I, where number of seats reserved for LKG shall be 25% of strength of LKG, and for Class-I shall be the difference between total number of reserved seats and seats reserved for LKG. Petitioners contended that the proviso to a section carves out an exception and it cannot be used to import into the enacting part something which is not there. Thus, the modification of the entry level mentioned in Section 12(1)(c) i.e. Class I to pre-primary was illegal. In arguendo, it was submitted that in schools imparting pre-primary education there was only one entry level at LKG, and State Government could not divide the reserved seats between class-I and LKG.

The Court noted that the use of the word ‘further’ in the proviso indicated the legislative intent of Parliament to read the provision in addition to clause (c), not as an exception, and thus there was no illegality therein. The Court further observed that many schools had tried to evade admissions under the RTE by starting pre-primary in their schools with substantially lower strength than that of Class-I. Hence, the determination of the number of reserved seats as per the government order was justifiable. The writ petitions were accordingly dismissed. [Soujanya Patel Trust v. State of Karnataka, 2017 SCC OnLine Kar 1001, decided on  17-4-2017]

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