Right To Education: Rajasthan HC Grants Interim Relief Against State's Decision To Not Reserve 25% Seats For Weaker Section In Pre-School Admissions

The Jaipur Bench of the Rajasthan High Court on Saturday granted interim relief against the State's decision to not reserve 25% seats for admission of students from the weaker sections in pre-schools.

Justice Manindra Mohan Srivastava observed that the State cannot come in the way of performance of statutory obligation by the schools provided under the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act).

On a prima facie consideration of the case, the Bench noted that the proviso to Section 12(1) of the RTE ACt provides that where a school ((defined in Section 2(n) of the RTE Act) imparts pre-school education, the provisions of Clauses (a) to (c) shall apply for admission to such per-school education.

Clause (a) of Section 12 provides that all Government schools shall provide free and compulsory elementary education to all children admitted therein.

Clause (b) provides that all Government aided schools shall provide free and compulsory elementary education to such proportion of children admitted therein as its annual recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of 25%.

Clause (c) contemplates that schools belonging to specified category, or/and unaided school shall admit in class I, to the extent of at least 25% of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion.

Further, the proviso to Section 12 stipulates that where a school imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education.

Accordingly, the Bench observed, 

"Thus, Proviso creates an obligation on the schools specified in Sub-clauses (iii) and (iv) of Clause (n) of Section 2 to admit, to the extent of at least twenty five percent of the class, Children belonging to weaker section and disadvantaged group."

It added,

"The direction issued by the State Government, on a prima facie consideration, seeks to absolve the schools of the aforesaid specified category from the statutory obligation as stated under Proviso of Sub-Section 2 of Section 12. Therefore, we are inclined, at this stage, to pass an interim order to the effect that the direction of the State shall not come in the way of performance of a statutory obligation by the schools specified in Sub-clauses (iii) and (iv) of Clause (n) of Section 2 of the RTE Act and Proviso, as referred to above, shall oblige them to take admission under the RTE Act. Such admission, however, would be provisional in nature and to be governed by the final order that may be passed by this Court in the writ petitions. Considering the nature of litigation, we deem it proper to list these petitions for a final hearing on 17.11.2021."

Background

The Court was hearing a PIL challenging the direction issued by the State for admissions to pre-school classes in educational Session 2020-21, precluding the application of RTE Act. The said decision was later extended to admissions during Session 2021-22.

Advocates Vikas Jakhar and Abhinav Sharma, appearing for the petitioner, argued that the state's directions to prohibit admission to pre-classes under RTE Act is contrary to the statutory scheme of Section 12 of the RTE Act. The State has illegally absolved the private schools from complying with the statutory obligation enjoined under Section 12(1)(c), concerning per-educational classes, in ignorance of the scheme under Proviso to that provision.

They further argued that as the admission process has been initiated, and the last date of applying is 24.10.2021, an appropriate interim order may be made so that the petitions may not be rendered, at least for the current ongoing session infructuous.

Additional Advocate General Chiranji Lal Saini submitted that given the definition of 'child' as provided in Clause (c) of Section 2 and that of 'elementary education' under Clause (f), the petitions are misconceived as the statutory obligations under the Act cannot be fastened where the education is being provided in pre-school to children under the age of six years which, otherwise, is not a part of the elementary education.

In the alternative, he argued that the applicability of the provisions to pre-school would essentially depend upon proper reimbursement to be made to the State by the Central Government under the scheme of Section 7 of the Act and, therefore, unless such scheme is properly worked out and implemented, no direction could be sought in the garb of PIL by the petitioners.

Case Title: Smile For All Society (NGO) v. Elementary Education Rajasthan & Anr.

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