Bombay High Court
Jyoti Namdeorav Panpatil Alias Jyoti ... vs The State Of Maharashtra Thr The Sec. ... on 16 September, 2025
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2025:BHC-AS:39040-DB
TRUPTI Trupti 904-wp-4055-2025.odt
SADANAND
BAMNE
Digitally signed by
TRUPTI SADANAND
BAMNE
Date: 2025.09.19
11:11:40 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4055 OF 2025
Jyoti Namdeorav Panpatil
@ Jyoti Amit Ahire,
Age: 42 yrs, Occ:- Service,
R/at- Shubh Darshan Row House,
House No.4, Purvanchal Colony,
Dhikale Mala Panchak, Jail Road,
Nashik - 422 101 ... Petitioner
Versus
1. The State of Maharashtra
through the Secretary
Department of Education and Sports
Mantralaya, Mumbai - 400 001
2. The Education Officer (Secondary),
Nashik Zillah Parishad, Nashik
3. Dy. Director
Divisional Commissioner Office,
Zilla Parishad, Nashik ... Respondents
----
Mr.Sanjeev B. Deore with Ms.Suchita J. Pawar, Mr.Arman Ansari
and Mr.Aditya S. Deore for the Petitioner.
Ms.D.S.Deshmukh, AGP for the Respondent -State.
----
CORAM : RAVINDRA V. GHUGE &
ASHWIN D. BHOBE, JJ.
DATE : 16th September, 2025
ORAL JUDGMENT (Per: Ravindra V. Ghuge, J.)
1. Leave is granted to delete the name of Respondent
No.4. Deletion be carried out forthwith.
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2. Rule. Rule made returnable forthwith and heard finally
with the consent of the parties.
3. The Petitioner has put forth prayer clauses (A) to (C),
which read thus :
"A. This Hon'ble Court be pleased to exercise
the jurisdiction vested in it under Art 226 of
Constitution of India and issue a writ of
certiorari or any other appropriate
directions/writ/order whereby quashing and
setting aside the order dated 12.07.2024 passed
by the Respondent No-2 to the extant that
Petitioner cannot be placed in 20% grant scale
on the ground that she had not qualified the
TET/CTET examination prior to 31.03.2019.
AND/OR
B. This Hon'ble Court be pleased to exercise the
jurisdiction vested in it under Art 226 of
Constitution of India and issue a writ of
mandamus or any other appropriate
directions/writ/order whereby directing the
Respondent No-2 to forward the proposal of the
Petitioner to the Respondent No-3 for creation
of shalarth id
C. This Hon'ble Court be pleased to exercise the
the jurisdiction vested in it under Art 226 of
Constitution of India and issue a writ of
mandamus or any other appropriate
directions/writ/order whereby directing the
Respondent No- 3 to create the shalarth id of the
Petitioner and issue her monthly wages."
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4. This is a peculiar case. The Petitioner was selected and
appointed to teach students of the 9th and 10th standards, vide the
order of appointment as an Assistant Teacher dated 12th January,
2017. She was granted approval on a no-grant basis as a Graduate
Assistant Teacher by the order dated 18 th January, 2019. Since the
number of students of the 9th and 10th standards depleted, she was
directed in 2023 to teach the students from the 6th to 8th standards.
When the Respondent school started receiving grants in phases,
more particularly when 20% grants were sanctioned by the
Government Resolution (GR) dated 6th February 2023, the
Petitioner's proposal was forwarded to Respondent No. 2 for
approval of her transfer from the unaided establishment to the
partially aided establishment.
5. By the impugned order dated 12th July 2024, the
approval for the transfer of the Petitioner from the unaided
establishment to the partially aided establishment, was rejected on
the ground that she does not possess the Teacher Eligibility Test
(TET)/Central Teacher Eligibility Test (CTET) qualification. It is
confessed by the Petitioner that she does not have this qualification,
especially, since she was originally selected and appointed to teach
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students of the 9th and 10th standards, for which the TET
qualification was admittedly not a requisite qualification.
6. The Hon'ble Supreme Court has delivered a judgment
in Anjuman Ishaat-e-Taleem Trust Versus State of Maharashtra and
Others, vide judgment dated 1st September, 2025 in Civil Appeal
No. 1385 of 2025 and connected Appeals. For ready reference,
paragraphs 194 to 218 of the Anjuman Ishaat-e-Taleem Trust (supra)
judgment are reproduced hereunder:
"194. In legal parlance, the term 'appointment'
means not only initial appointment but also
covers appointment by 'promotion', among
others. In this context, a profitable reference
may be made to the decision of this Court in
M. Ramachandran v. Govind Ballabh.
Relevant passage from such decision reads
thus:
"6. ... There is no dispute that
appointment/recruitment to any service
can be made from different sources, i.e.,
by direct appointment, by promotion or by
absorption/transfer. The source of
recruitment can either be internal or
external. Internal source would relate to
cases where the appointments are made by
promotion or by transfer and by
absorption. External source would
conceive the recruitment of eligible
persons who are not already in service in
the organisation to which the recruitment
is to be made ... ."
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195. Furthermore, reference may be made to
the decision of this Court in K. Narayanan v.
State of Karnataka where this Court traced the
meaning of the word 'recruitment' and held:
"6. ... 'Recruitment' according to the
dictionary means 'enlist'. It is a
comprehensive term and includes any
method provided for inducting a
person in public service. Appointment,
selection, promotion, deputation are
all well-known methods of
recruitment. Even appointment by
transfer is not unknown. ...."
196. Appointment and recruitment are two
distinct but not unrelated concepts.
Recruitment is the broader process of which
selection is a part that culminates in an
appointment. Recruitment can be carried out
from various sources, which are broadly
classified into internal and external sources.
Internal sources would comprise individuals
who are already employed within the
organization. This would include an
appointment by promotion or transfer.
External sources, on the other hand, consist of
individuals who are not currently in the
service of the recruiting organization. Direct
recruitment is an appointment from external
sources or from open market, so to say.
197. Having noticed what this Court has held
in relation to recruitment/ appointment, we
turn to Section 23 of the RTE Act.
198. Reading Section 23 of the RTE Act, we
find that the first proviso to sub- section (2) of
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Section 23 thereof assumes importance for
dealing with the contention. For brevity, the
proviso is reproduced below:
"Provided that a teacher who, at the
commencement of this Act, does not
possess minimum qualifications as laid
down under sub-section (1), shall acquire
such minimum qualifications within a
period of five years."
199. The proviso provides for a deadline for
all teachers, who are in service, to acquire the
prescribed minimum qualifications within a
period of five years. Should they fail to do so,
they render themselves ineligible to continue
on their post. The objective behind introducing
the proviso is to uphold the best interest of the
children by ensuring quality education, not
only through teachers who were to be
appointed after the commencement of the RTE
Act but also for in-service teachers.
200. If we are to accept the contention of the
in-service teachers, the abovesaid proviso
would be rendered nugatory. Obtaining the
TET qualification under the RTE Act is
mandatory and the consequence of not
obtaining such qualification flowing from the
scheme of the RTE Act is that the in-service
teachers would cease to have any right to
continue in service. Reference may also be
made to letter dated 3rd August, 2017
(discussed in paragraph 69 above) issued by
the MHRD which provided a deadline beyond
which the in-service teachers, having not
qualified the TET, would not be permitted to
continue in service.
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201. Having regard to the foregoing, we see
no reason to hold that the minimum
qualifications prescribed by the Council would
apply only for initial appointment and not for
promotion.
N. ON MINIMUM QUALIFICATIONS
VERSUS ELIGIBILITY
202. Learned senior counsel opposing the TET
have argued that the phrase 'minimum
qualifications' used in Section 23 of the RTE
Act will not cover the TET in its ambit. They
contend that the TET is not a qualification at
all but an eligibility criterion. Thus,
prescribing the TET as a minimum
qualification under Section 23 is incorrect.
There is no statutory imprimatur to make the
TET mandatory and the same must be done
away with.
203. We are not persuaded to agree with this
argument for reasons discussed in heading K
above.
204. We reiterate and hold that the TET is
indeed a qualification, necessary to be held by
a person seeking appointment as a teacher in a
school. Only upon a person obtaining such
qualification can he become eligible for
appointment as a teacher.
205. Obfuscating the true import of the
synonymous expressions would not lend
assistance. What must be looked into is the
consequence of such qualification. The
eligibility criteria, among other things, also
prescribes the TET as a qualification. A person
seeking appointment as a teacher must, as a
qualification, pass the TET. Only by obtaining
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such qualification, he would be considered
eligible to be appointed as a teacher. In our
view, there lies no difference as such between
qualification and eligibility. In this context, we
may refer to a decision of the Allahabad High
Court in Arvind Kumar Shukla v. Union of
India which held thus:
"Further, submission of learned
counsel for the petitioners is that
since the reserved category
candidates have availed the benefit
of reservation in TET Exam, they
should not be given benefit of
reservation in selection and
recruitment of the Assistant
Teacher. I find no force in this
submission of the learned counsel
for the petitioners. Qualifying the
TET Exam as per Rules is not a
guarantee for employment. It is
eligibility qualification to
participate in the selection process.
There is a difference between
eligibility qualification and
selection for employment.
Reservation in educational
institution is provided under Article
15 of the Constitution, whereas
reservation in employment is
provided under Article 16 of the
Constitution. Merely because a
person has secured admission in a
course, which makes him eligible to
participate in the selection process,
does not amount to secure
employment for which he becomes
eligible after completing the course.
Therefore, the reservation in
employment cannot be denied to a
person who belongs to reserved
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category and has secured admission
in a course to become eligible for
such an employment on the ground
that he has already secured
admission on the basis of
reservation in getting admission in a
course to acquire eligibility."
206. Thus, we hold that the TET is one of the
minimum qualifications that may be
prescribed under Section 23 of the RTE Act.
VII. ORDER OF REFERENCE FOR
CONSIDERATION BY A LARGER BENCH
207. Sitting in a combination of two Judges,
we are not oblivious to the bounds of judicial
discipline and the enduring authority of
'precedents'. Though a Constitution Bench
decision of seven Judges of recent origin in
Aligarh Muslim University v. Naresh Agarwal
has upheld a reference made by a Bench of
two-Judges directly to a larger Bench of
seven-Judges while doubting a Constitution
Bench decision of five-Judges and, relying on
such observations, it seems to be a permissible
course of action for us to refer the issues that
we propose to formulate hereafter to the
Hon'ble the Chief Justice for a reference to a
Bench of seven-Judges, we refrain from doing
so consciously. We tread this path of making a
reference with deference to all previous
decisions of Constitution Benches on the
manner of making a reference, and not in
defiance of what the majority view is in
Aligarh Muslim University (supra). We are
mindful that we can merely doubt the view
expressed by a larger Bench; not differ and
depart from such view of a larger Bench.
Pramati Educational and Cultural Trust (supra)
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being a Constitution Bench decision, we
cannot render findings different to what has
been expressed therein and direct them to be
treated as final. This would only create chaos
by making the same binding on all in terms of
Article 141 of the Constitution.
208. In view of the foregoing discussions, we
respectfully express our doubt as to whether
Pramati Educational and Cultural Trust (supra)
[insofar as it exempts the application of the
RTE Act to minority schools, whether aided or
unaided, falling under clause (1) of Article 30
of the Constitution] has been correctly
decided.
209. We may also place on record that a
coordinate Bench of this Court in Ashwini
Thanappan v. Director of Education after
recording the submission of counsel for the
petitioner of Pramati Educational and Cultural
Trust (supra) being inconsistent with the
decision in P.A. Inamdar (supra) and requires
further examination, directed the Registry to
place the matter before the Hon'ble the Chief
Justice of India. The reference, we find, is yet
to be answered.
210. We, therefore, consider it expedient to
follow the decision of this Court in Lala Shri
Bhagwan v. Shri Ram Chand as well as long-
standing subsequent precedents set by
decisions of Constitution Benches prior to
Aligarh Muslim University (supra) and urge
the Hon'ble the Chief Justice of India to
consider the desirability as to whether the
issues formulated hereunder, or such other
issues as may be deemed relevant, do warrant
reference to a larger Bench:
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a. Whether the judgment in Pramati
Educational and Cultural Trust (supra)
exempting minority educational
institutions, whether aided or unaided,
falling under clause (1) of Article 30 of the
Constitution, from the purview of the
entirety of the RTE Act does require
reconsideration for the reasons assigned by
us?
b. Whether the RTE Act infringes the rights
of minorities, religious or linguistic,
guaranteed under Article 30(1) of the
Constitution? And, assuming that Section
12(1)(c) of the RTE Act suffers from the
vice of encroaching upon minority rights
protected by Article 30 of the Constitution,
whether Section 12(1)(c) should have been
read down to include children of the
particular minority community who also
belong to weaker section and
disadvantaged group in the neighbourhood,
to save it from being declared ultra vires
such minority rights?
c. What is the effect of non-consideration
of Article 29(2) of the Constitution in the
context of the declaration made in Pramati
Educational and Cultural Trust (supra) that
the RTE Act would not be applicable to
aided minority educational institutions?
and
d. Whether, in the absence of any
discussion in Pramati Educational and
Cultural Trust (supra) regarding
unconstitutionality of the other provisions
of the RTE Act, except Section 12(1)(c),
the entirety of the enactment should have
been declared ultra vires minority rights
protected by Article 30 of the Constitution?
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211. Registry is directed to place Civil Appeal
Nos. 1364 - 1367, 1385 -1386 and 6364 of
2025 before the Hon'ble Chief Justice of India
for appropriate directions.
212. As regards Civil Appeal Nos. 6365-6367
of 2025, we have already noted that the State
of Tamil Nadu raised the argument regarding
the TET for the first time before this Court.
The appointment proposals of the concerned
teachers were rejected on grounds other than
the TET, and the TET issue was not raised
before the High Court. We are mindful of the
settled legal principles that prohibit the
introduction of new grounds for the first time
before this Court. Therefore, it would have
been appropriate to dismiss the civil appeals at
the outset on this basis alone. That said, we are
conscious of the fact that the institution in
which the teacher/respondent seeks
appointment is a minority institution. As such,
it falls within the scope of the order of
reference mentioned above.
213. In light of this, we direct that Civil
Appeal Nos. 6365-6367 of 2025 too shall be
governed by the direction in paragraph 211
above.
VIII. ORDER ON APPLICABILITY OF THE
TET TO IN-SERVICE TEACHERS
214. Per the detailed discussions above and
resting on the same, we hold that the
provisions of the RTE Act have to be complied
with by all schools as defined in Section 2(n)
of the RTE Act except the schools established
and administered by the minority - whether
religious or linguistic - till such time the
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reference is decided and subject to the answers
to the questions formulated above under
section VII. Logically, it would follow that in-
service teachers (irrespective of the length of
their service) would also be required to qualify
the TET to continue in service.
215. However, we are mindful of the ground
realities as well as the practical challenges.
There are in-service teachers who were
recruited much prior to the advent of the RTE
Act and who might have put in more than two
or even three decades of service. They have
been imparting education to their students to
the best of their ability without any serious
complaint. It is not that the students who have
been imparted education by the non-TET
qualified teachers have not shone in life. To
dislodge such teachers from service on the
ground that they have not qualified the TET
would seem to be a bit harsh although we are
alive to the settled legal position that operation
of a statute can never be seen as an evil.
216. Bearing in mind their predicament, we
invoke our powers under Article 142 of the
Constitution of India and direct that those
teachers who have less than five years' service
left, as on date, may continue in service till
they attain the age of superannuation without
qualifying the TET. However, we make it clear
that if any such teacher (having less than five
years' service left) aspires for promotion, he
will not be considered eligible without he/she
having qualified the TET.
217. Insofar as in-service teachers recruited
prior to enactment of the RTE Act and having
more than 5 years to retire on superannuation
are concerned, they shall be under an
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obligation to qualify the TET within 2 years
from date in order to continue in service. If
any of such teachers fail to qualify the TET
within the time that we have allowed, they
shall have to quit service. They may be
compulsorily retired; and paid whatever
terminal benefits they are entitled to. We add a
rider that to qualify for the terminal benefits,
such teachers must have put in the qualifying
period of service, in accordance with the rules.
If any teacher has not put in the qualifying
service and there is some deficiency, his/her
case may be considered by the appropriate
department in the Government upon a
representation being made by him/her.
218. Subject to what we have said above, it is
reiterated that those aspiring for appointment
and those in-service teachers aspiring for
appointment by promotion must, however,
qualify the TET; or else, they would have no
right of consideration of their candidature."
7. It is, thus, settled by the Hon'ble Supreme Court that
even teachers who were inducted into employment prior to the
advent of the TET qualification (13.02.2013) will have to acquire
the TET qualification within two years, if they have more than five
years of service remaining before retirement. If a candidate has less
than five years to go for superannuation, he need not have the TET
qualification, subject to the condition that he would be entitled for
promotion. If he desires promotion, even such a candidate would
acquire the TET qualification within 2 years.
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8. In view of the above judicial pronouncement, the
Petitioner, who at the time of her appointment was not required to
possess the TET qualification, is now required to acquire the said
qualification since she has been called upon to teach students from
the secondary section. In the light of the peculiar facts recorded
above, we find that the Petitioner needs to be placed under the same
mandate of the Hon'ble Supreme Court, i.e. to acquire the TET or
CTET qualification within two years.
9. In these peculiar facts and circumstances of the case,
this Petition is partly allowed.
10. The impugned order dated 12th July, 2024 is quashed
and set aside. Respondent No. 2 shall grant conditional approval to
the Petitioner's transfer to the 20% grant-in-aid establishment,
subject to the Petitioner acquiring the TET or CTET qualification
within two years from the date of the Hon'ble Supreme Court's
judgment, i.e., on or before 1st September 2027. Until then, she
shall not be entitled to any further service benefits/promotions,
salary grants of 40% or more, etc..
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11. Needless to say, if she does not acquire the qualification
by 1st September 2027, she shall stand demoted to her original no-
grant position with effect from that date. So also, if she acquires the
qualification before the expiry of the two-year period, she shall be
entitled to further service benefits.
12. To the extent of the 20% grant-in-aid benefits being
extended to the Petitioner, the Shalarth ID shall be granted
accordingly.
13. Rule is made partly absolute in the above terms.
(ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)
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