Madras High Court
The Director Of School Education vs M. Velayutham on 2 June, 2023
WA. No. 313 of 2022 etc batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.06.2023
CORAM :
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Appeal Nos. 313, 833, 1891, 2050, 2082, 2617, 2795 of 2022
&
Writ Appeal Nos. 19, 31, 32, 36 of 2023
&
Writ Petition Nos. 3364 and 3368 of 2023
and
CMP. Nos. 22724, 22726 and 5628 of 2022, 335 and 6349 of 2023, 15716,
20772, 13862, 2384 of 2022, 330, 342, 6050 of 2023, 15447 of 2022,
268 of 2023 and WMP. Nos. 3434 and 3436 of 2023
---
WA No. 313 of 2022
1. The Director of School Education
D.P.I. Campus, College Road
Chennai - 600 006
2. The Chief Educational Officer
Kancheepuram District
Kancheepuram
3. The District Educational Officer
Chengalpattu Education District
Kancheepuram District .. Appellants
Versus
1. M. Velayutham
Son of V. Murugesan
B.T. Assistant (English)
Jaigopal Garodia National Higher Secondary School
East Tambaram, Chennai - 600 059
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WA. No. 313 of 2022 etc batch
2. The Secretary
Jaigopal Garodia National Higher Secondary School
East Tambaram, Chennai - 600 059 .. Respondents
WA No. 833 of 2022
1. The Director of School Education
D.P.I. Campus, College Road
Chennai - 600 006
2. The Chief Educational Officer
Presidency Girls Higher Secondary School Campus
Gangureddy Road, Egmore
Chennai - 600 008
3. The District Educational Officer
Chennai East
Chennai - 600 094 .. Appellants
Versus
1. A. Choodamani
Wife of M. Govindan
B.T. Assistant (Science)
K. Ramaiah Chetty ARC Girls Hr. Sec. School
New No.26 (Old No.38) Saivamuthu Street
Chennai - 600 001
2. The Secretary
K. Ramaiah Chetty ARC Girls Hr. Sec. School
New No.26 (Old No.38) Saivamuthu Street
Chennai - 600 001 .. Respondents
WA No. 1891 of 2022
1.State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George, Secretariat
Chennai - 600 009
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WA. No. 313 of 2022 etc batch
2. The Commissioner of School Education
D.P.I. Campus, College Road
Chennai - 600 006
3. The Chief Educational Officer
Salem, Salem District
4. The District Educational Officer
Salem Educational District
Salem .. Appellants
Versus
1. K.A. Karpagam
D/o. K.S. Anbalagan
B.T. Assistant (Science)
Sri Sarada Vidyalaya Higher Secondary School for Girls
Fairlands, Salem - 636 016
2. The Correspondent/Secretary
Sri Sarada Vidyalaya Higher Secondary School for Girls
Fairlands, Salem - 636 016 .. Respondents
WA No. 2050 of 2022
1. State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George, Secretariat
Chennai - 600 009
2. The Director of School Education
D.P.I. Campus, College Road
Chennai - 600 006
3. The Chief Educational Officer
Chengalpet
Chengalpet District
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WA. No. 313 of 2022 etc batch
4. The District Educational Officer
Chromepet Educational District
Chromepet - 600 044
Chengalpet District .. Appellants
Versus
1. R. Varun
B.T. Assistant (Maths)
A.J.S. Nidhi Higher Secondary School
Alandur, Chennai - 600 016
2. The Secretary
A.J.S. Nidhi Higher Secondary School
Alandur, Chennai - 600 016 .. Respondents
WA No. 2082 of 2022
1. State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George, Secretariat
Chennai - 600 009
2. The Commissioner of School Education
D.P.I. Campus, College Road
Chennai - 600 006
3. The Chief Educational Officer
Chengalpet
Chengalpet District
4. The District Educational Officer
Chromepet Educational District
Chromepet - 600 044
Chengalpet District .. Appellants
Versus
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WA. No. 313 of 2022 etc batch
1. P. Sureshkumar
Son of T. Palanivelu
B.T. Assistant (Maths)
A.J.S. Nidhi Higher Secondary School
Alandur, Chennai - 600 016
2. The Secretary
A.J.S. Nidhi Higher Secondary School
Alandur, Chennai - 600 016 .. Respondents
W.A. No. 2617 of 2022
1. G.S. Senthilkumar
Son of G. Subbaiyan
B.T. Assistant (Science)
Sri Krishna Middle School
Thappalampuliyur
Thiruvarur District - 610 016
2. T. Vanniyarajathi
Wife of Rajaiah
B.T. Assistant (Science)
Sri Krishna Middle School
Thappalampuliyur
Thiruvarur District - 610 016
3. S. Karthikeyan
Son of Subramanian
Secondary Grade Teacher
Sri Krishna Middle School
Thappalampuliyur
Thiruvarur District - 610 016 .. Appellants
Versus
1. The Director of School Education
DPI Campus, College Road
Chennai - 600 006
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WA. No. 313 of 2022 etc batch
2. The Chief Educational Officer
Thiruvarur District, Thiruvarur
3. The District Educational Officer
Thiruvarur Educational District
Thiruvarur
4. The Block Development Officer
Thiruvarur Education Block
Thiruvarur District
5. The Correspondent
Sri Krishna Middle School
Thappalampuliyur
Thiruvarur District - 610 016
6. Teachers Recruitment Board
rep. by its Chairman
College Road, Nungambakkam
Chennai - 600 006
7. Union of India
rep. by its Secretary to Government
Department of School Educational and Literacy
Ministry of Human Resource Department
217-C, Shastri Bhawan
New Delhi - 110 001
8. National Council for Teacher Education (NCTE)
rep. by its Member Secretary
G-7, Sector-10, Dwarka
New Delhi - 110 075 .. Respondents
W.A. No. 2795 of 2022
1. V. Vanaja
2. K. Prabhu
3. P. Prabhakar
4. P. Subramanian
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WA. No. 313 of 2022 etc batch
5. V. Manonmani
6. B. Sridhaladevi
7. G. Arumugam
8. R. Vasanthi
9. R. Manimegalai
10. P. Vijayalakshmi
11. R. Lakshmi
12. J. Malathi
13. R. Chitra
14. D. Amudha
15. J. Geetha Sahayarani
16. S. Arokkiya Lurthuraj
17. R. Jayanthi
18. R. Kavitha
19. M. Prema
20. G. Karivaradharajan
21. R. Dhavamani
22. P. Shenbagam
23. V. Kalaiselvi
24. S. Abraham
25. P. Selvambal
26. M. Emreen Haseen
27. V. Senthamarai
28. V. Prema
29. S. Santhi
30. S. Dhanasekaran
31. S. Selvarani
32. G. Annamailee
33. R. Jayaraman
34. K. Subramaniyan
35. V. Rajeshkannan
36. S. Manigandan
37. V. Vijayalakshmi
38. V. Selvarani
39. P. Dhanalakshmi
40. C. Thangarasu
41. R. Moorthi .. Appellants
Versus
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WA. No. 313 of 2022 etc batch
1. The State of Tamil Nadu
rep. by its Principal Secretary to Government
School Education Department
Fort St. George, Chennai - 600 009
2. The Commissioner of School Education
Directorate of School Education
DPI Campus, College Road
Chennai - 600 006
3. The Joint Director of School Education (Personnel)
DPI Campus, College Road
Chennai - 600 006
4. The Director of Elementary Education
Directorate of School Education (Personnel Department)
DPI Campus, College Road, Chennai - 600 006\
5. R. Sakthivel
6. TET Passed Candidates Welfare Association
rep. by its Secretary K. Shanmuga Priya
having office at No.389/2, Rose Valley
Opposite to Bismillah Nagar
Hosur - 635 109
7. Muthamizh Selvan
Son of Saminathan
Secondary Grade Teacher
Panchayat Union Middle School
Kaduvettankurichi
T. Palur Block, Ariyalur District
(RR5 to 7 were impleaded as party
respondents as per order dated 10.02.2023
in CMP.Nos.2403, 2404 and 2596 of 2022) .. Respondents
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WA. No. 313 of 2022 etc batch
WA No. 19 of 2023
1. The Government of Tamil Nadu
represented by its Secretary
Department of School Education
Fort St. George
Chennai - 600 009
2. The Director of School Education
College Road, Chennai - 600 006
3. The Chief Educational Officer
Chief Educational Office
Government Girls Hr. Secondary School Campus
Chengalpet District - 603 001
4. The District Educational Officer
District Educational Office
St. Thomas Mount
Government Boys Hr. Sec. School Campus
Chromepet, Chennai - 600 044
Kanchipuram .. Appellants
Versus
The Headmistress & Correspondent
St. Joseph's Higher Secondary School
Vettuvankeni
Chennai - 600 115 .. Respondent
WA No. 31 of 2023
1. The Government of Tamil Nadu
represented by its Secretary
Department of School Education
Fort St. George, Chennai - 600 009
2. The Director of School Education
College Road, Chennai - 600 006
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WA. No. 313 of 2022 etc batch
3. The Chief Educational Officer
Chief Educational Office
Government Girls Hr. Secondary School Campus
Chengalpet District - 603 001
4. The District Educational Officer
District Educational Office
St. Thomas Mount
Government Boys Hr. Sec. School Campus
Chromepet, Chennai - 600 044
Kanchipuram .. Appellants
Versus
The Headmistress & Correspondent
St. Joseph's Higher Secondary School
Vettuvankeni
Chennai - 600 115 .. Respondent
WA No. 32 of 2023
1. The Government of Tamil Nadu
represented by its Secretary
Department of School Education
Fort St. George, Chennai - 600 009
2. The Director of School Education
College Road, Chennai - 600 006
3. The Chief Educational Officer
Chief Educational Office
Government Girls Hr. Secondary School Campus
Chengalpet District - 603 001
4. The District Educational Officer
District Educational Office
St. Thomas Mount
Government Boys Hr. Sec. School Campus
Chromepet, Chennai - 600 044
Kanchipuram .. Appellants
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WA. No. 313 of 2022 etc batch
Versus
The Headmistress & Correspondent
St. Joseph's Higher Secondary School
Vettuvankeni
Chennai - 600 115 .. Respondent
WA No. 36 of 2023
1. The Government of Tamil Nadu
represented by its Secretary
Department of School Education
Fort St. George, Chennai - 600 009
2. The Director of School Education
College Road, Chennai - 600 006
3. The Chief Educational Officer
Chief Educational Office
Government Girls Hr. Secondary School Campus
Chengalpet District - 603 001
4. The District Educational Officer
District Educational Office
St. Thomas Mount
Government Boys Hr. Sec. School Campus
Chromepet, Chennai - 600 044
Kanchipuram .. Appellants
Versus
The Headmistress & Correspondent
St. Joseph's Higher Secondary School
Vettuvankeni
Chennai - 600 115 .. Respondent
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WA. No. 313 of 2022 etc batch
Writ Petition No. 3364 of 2023
TET Passed Candidates Welfare Association
rep. by its Secretary K. Shanmuga Priya
having office at No.389/2, Rose Valley
Opposite to Bismillah Nagar
Hosur - 635 109 .. Petitioner
Versus
1. Union of India
Through its Secretary to Government
Ministry of Human Resource and Development
(Department of School Education)
New Delhi
2. National Council for Teacher Education
G-7, Sector-10, Dwarka
New Delhi - 110 075
3. The State of Tamil Nadu
rep. by its Principal Secretary to Government
School Education Department
Fort St. George, Chennai - 600 009
4. The Commissioner of School Education
Directorate of School Education
DPI Campus, College Road
Chennai - 600 006
5. The Joint Director of School Education (Personnel)
DPI Campus, College Road
Chennai - 600 006
6. The Director of School Education
Directorate of School Education
DPI Campus, College Road
Chennai - 600 006 .. Respondents
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WA. No. 313 of 2022 etc batch
WA No. 313 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 29.07.2021 passed in WP No. 23999 of 2019 on
the file of this Court.
WA No. 833 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 29.07.2021 passed in WP No. 24003 of 2019 on
the file of this Court.
WA No. 1891 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 22.10.2021 passed in WP No. 22221 of 2021 on
the file of this Court.
WA No. 2050 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 29.09.2021 passed in WP No. 20911 of 2021 on
the file of this Court.
WA No. 2082 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 29.09.2021 passed in WP No. 20913 of 2021 on
the file of this Court.
WA No. 2617 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 28.04.2022 passed in WP No. 35487 of 2022 on
the file of this Court.
WA No. 2795 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 20.10.2022 passed in WP No. 19587 of 2019 on
the file of this Court.
WA No. 19 of 2023:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 22.10.2021 passed in WP No. 22545 of 2021 on
the file of this Court.
WA No. 31 of 2023:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 22.10.2021 passed in WP No. 22550 of 2021 on
the file of this Court.
WA No. 32 of 2023:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 22.10.2021 passed in WP No. 22554 of 2021 on
the file of this Court.
WA No. 36 of 2023:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 22.10.2021 passed in WP No. 22556 of 2021 on
the file of this Court.
Writ Petition No. 3364 of 2023:- Writ Petition filed under Article
226 of The Constitution of India praying to issue a Writ of Declaration
declaring that the Special Rules for the Tamil Nadu School Educational
Subordinate Service issued in G.O. Ms. No.13, School Education (S.E3(1)
Department dated 30.01.2020 insofar as it prescribes 'a pass in Teacher
Eligibility Test (TET)" only for direct recruitment for the post of B.T. Assistant
and not for promotion thereto in Annexure-1 (referred to in Rule 6) is illegal
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WA. No. 313 of 2022 etc batch
being ultravires the Right of Children to Free and Compulsory Education Act,
2009 and the Rules framed thereunder and the NCTE notification dated
23.08.2010 and 29.07.2011.
Writ Petition No. 3368 of 2023:- Writ Petition filed under Article
226 of The Constitution of India praying to issue a Writ of Declaration
declaring that the Special Rules for the Tamil Nadu School Educational
Subordinate Service issued in G.O. Ms. No.13, School Education (S.E3(1)
Department dated 30.01.2020 insofar as it prescribes 'a pass in Teacher
Eligibility Test (TET)" only for direct recruitment for the post of B.T. Assistant
and not for promotion thereto in Annexure-1 (referred to in Rule 6) is illegal
being ultravires the Right of Children to Free and Compulsory Education Act,
2009 and the Rules framed thereunder and the NCTE notification dated
23.08.2010 and 29.07.2011.
W.A. No. 313 of 2022
For Appellant (s) : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate
For Respondent (s) : Mr. G. Sankaran, Senior Advocate
for Mr. S. Nedunchezhiyan for R1
Mr. N. Ganesh for R2
W.A. No. 833 of 2022
For Appellant (s) : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate
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WA. No. 313 of 2022 etc batch
W.A. No. 1891 of 2022
For Appellant (s) : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate
For Respondent (s) : Mr. G. Sankaran, Senior Advocate
for Mr. S. Nedunchezhiyan for R1
W.A. No. 2050 of 2022
For Appellant (s) : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate
For Respondent (s) : Mr. G. Sankaran, Senior Advocate
for Mr. S. Nedunchezhiyan for R1
No representation for R2
W.A. No. 2082 of 2022:-
For Appellant (s) : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate
For Respondent (s) : Mr. G. Sankaran, Senior Advocate
for Mr. S. Nedunchezhiyan for R1
W.A. No. 2617 of 2022
For Appellant (s) : Mr. G. Sankaran, Senior Advocate
for Mr. S. Nedunchezhiyan
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WA. No. 313 of 2022 etc batch
For Respondent (s) : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate for RR1 to 4
Mr. Su. Sreenivasan for R7
Mr. V.Ashok Kumar, CGSC for R8
Mr. K.Sathish for R6 (No appearance)
W.A. No. 2795 of 2022:-
For Appellant (s) : Mrs. Nalini Chidambaram, Senior Advocate
for Mrs. C. Uma
For Respondents : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate for RR1 to 4
Mr. E. Viswanathan for R5
Mrs. Kavitha Rameshwar for RR6 & 7
Mr. Karthikeyan for Implead Petitioners in
CMP Nos. 6349 & 6050 of 2023
W.A. Nos. 19, 31, 32 & 36 of 2023
For Appellants : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate
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WA. No. 313 of 2022 etc batch
WP No. 3364 of 2023
For Petitioner (s) : Ms. N. Kavitha Rameshwar
For Respondents : Mr. V. Ashokkumar
Central Government Standing Counsel for R2
Mr. Su. Srinivasan
Standing Counsel for R1
Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate for RR3 to 6
WP No. 3368 of 2023
For Petitioner (s) : Ms. N. Kavitha Rameshwar
For Respondents : Mr. V. Ashokkumar
Central Government Standing Counsel for R1
Mr. Su. Srinivasan
Standing Counsel for R2
Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate for R3 to R6
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WA. No. 313 of 2022 etc batch
COMMON JUDGMENT
R. MAHADEVAN, J
I. INTRODUCTION, FACTUAL BACKGROUND AND PLEADINGS
1. The key issues that arise for determination in these batch of writ
appeals and writ petitions are:
(i) whether passing of the Teacher Eligibility Test (TET) is mandatory
for promotion to the post of B.T. Assistant/Graduate Teacher, from the cadre of
Secondary Grade Teacher (already in service).
(ii) whether non-possession/non-acquisition of a pass in TET by a
teacher appointed prior to 29.07.2011 would affect his/her continuance in
service and drawal of increment, without seeking for further promotion to the
post of BT Assistant/Graduate Teacher.
2. By a notification dated 23.08.2010 issued in exercise of powers
conferred under sub-section (1) of Section 23 of the Right of Children to Free
and Compulsory Education Act, 2009 (Act 35 of 2009) (in short, "RTE Act")
and in pursuance of Notification No. S.O. 750 (E) dated 31.03.2010 issued by
the Department of School Education and Literacy, Ministry of Human
Resources Development, Government of India, the National Council for
Teacher Education (in short, "the NCTE") laid down certain minimum
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qualifications for a person to be eligible for appointment as a Teacher in
Classes I to VIII in a school. Subsequently, by notification dated 29.07.2011,
the NCTE made certain amendments to the said principal notification. The
relevant clauses of the amended notification read thus:
1. Minimum Qualifications:~
(i) Classes I to V
(a) Senior Secondary (or its equivalent) with at least 50% marks and 2 - year
Diploma in Elementary Education (by whatever name known)
OR
Senior Secondary (or its equivalent) with at least 45% marks and 2-year
Diploma in Elementary Education (by whatever name known), in accordance
with the NCTE (Recognition Norms and Procedure) Regulations, 2002.
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 - year
Bachelor in Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 2 - year
Diploma in Education (Special Education)
OR
Graduation and two year Diploma in Elementary Education (by whatever
name known)
AND
(b)Pass in the Teacher Eligibility Test (TET), to be conducted by the
appropriate Government in accordance with the Guidelines framed by the
NCTE for the purpose.
(ii) Classes VI-VIII
(a)Graduation and 2 - year Diploma in Elementary Education (by whatever
name known)
OR
Graduation with atleast 50% marks and 1 - year Bachelor in Education
(B.Ed.)
OR
Graduation with at least 45% marks and 1 - year Bachelor in Education
(B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure)
Regulations issued from time to time in this regard
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 - year
Bachelor in Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 - year
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B.A./B.Sc.Ed. or B.A.Ed./B.Sc.Ed.
OR
Graduation with at least 50% marks and 1 - year B.Ed. (Special Education)
AND
(b)Pass in the Teacher Eligibility Test (TET), to be conducted by the
appropriate Government in accordance with the Guidelines framed by the
NCTE for the purpose.
4.Teacher appointed before the date of this Notification:- The following
categories of teachers appointed for Classes I to VIII prior to date of this
Notification need not acquire the minimum qualifications specified in Para
(1) above:
(a)A teacher appointed on or after the 3rd September, 2001 i.e. the date on
which the NCTE (Determination of Minimum Qualifications for Recruitment
of Teachers in Schools) Regulations, 2001 (as amended from time to time)
came into force, in accordance with that Regulation.
Provided that a teacher of class I to V possessing B.Ed qualification, or a
teacher possessing B.Ed (Special Education) or D.Ed (Special Education)
qualification shall undergo an NCTE recognized 6 - month special
programme on elementary education.
(b)A teacher of class I to V with B.Ed qualification who has completed a 6-
month Special Basic Teacher Course (Special BTC) approved by the NCTE;
(c)A teacher appointed before the 3rd September, 2001, in accordance with
the prevalent Recruitment Rules.
5.(a) Teacher appointed after the date of this Notification in certain cases:-
Where an appropriate Government or local authority or a school has issued
an advertisement to initiate the process of appointment of teachers prior to
the date of this Notification, such appointments may be made in accordance
with the NCTE (Determination of Minimum Qualifications for Recruitment of
Teachers in Schools) Regulations, 2001 (as amended from time to time).
(b)The minimum qualification norms referred to in this Notification shall
apply to teachers of Languages, Social Studies, Mathematics, Science, etc. In
respect of teachers for Physical Education, the minimum qualification norms
for Physical Education teachers referred to in NCTE Regulation dated 3rd
November, 2001 (as amended from time to time) shall be applicable. For
teachers of Art Education, Craft Education, Home Science, Work Education,
etc. the existing eligibility norms prescribed by the State Governments and
other school managements shall be applicable till such time the NCTE lays
down the minimum qualification in respect of such teachers."
3. Pursuant to the aforesaid notification, the Government of Tamil Nadu
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issued G.O. (Ms) No. 181, School Education (C2) Department 15.11.2011, in
which the Teachers Recruitment Board (in short, “the TRB”) was designated as
the Nodal Agency for conducting the Teachers Eligibility Test (TET) in the
State of Tamil Nadu. Subsquently, another G.O., viz., G.O. (Ms) No. 90,
School Education (Q) Department 28.03.2012, came to be passed, to the
following effect:
"....In the G.O. (Ms) No. 181, School Education (C2) Department, dated
15.11.2011, the Government has changed the recruitment policy for
recruitment of Secondary Grade Teachers and Graduate Assistants.
Henceforth, the recruitment will be based on written examination, namely,
Teacher Eligibility Test in accordance with the guidelines issued by the
National Council for Teacher Education. The qualifying candidates of the
Teacher Eligibility Test will be recruited based on marks, communal rotation
and certificate verification.
2.However, with respect to the recruitment of Secondary Grade Teachers, the
state-wide seniority in employment exchange registration will continue till the
disposal of the Special Leave Petition filed in the Supreme Court."
Subsequently, in GO. Ms. No. 244 School Education [EE(3)2] Department
dated 30.11.2013, it was clarified that the Government has examined the
matter and directed the Teachers Recruitment Board to follow the procedure for
selection of Secondary Grade Teachers also on the basis of the marks obtained
in TET.
4. Thus, as per the G.Os. referred to above, possessing TET
qualification has become essential and mandatory for the teaching faculties
from 23.08.2010 (subsequently extended by NCTE notification to 29.07.2011)
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in the State.
5. The Nodal Agency (TRB) in the State of Tamil Nadu, has conducted
TET examination for the first time on 12.07.2012 from which it could be
inferred that no person, who had passed the TET, would have been available to
be appointed during the period from 23.08.2010 to 12.07.2012 as a teacher. It
is in that backdrop that the first and second proviso to clause (2) of Section 23
of the RTE Act enable those teachers, who were appointed during that period,
to pass the TET by 31.03.2019 for their continuance in the post.
6. Though there is a requirement in the Notification No.76-4/2010
/NCTE/Acad dated 11.02.2011 published by the NCTE that the TET should be
conducted atleast once in every year and there will be no restriction on the
number of attempts a person can take for acquiring a TET Certificate and a
person who has qualified the TET may also appear again for improving his/her
score, it has been brought to notice that the TET has not been conducted
annually in the State of Tamil Nadu except on 14.10.2012, 17.08.2013,
18.08.2013, 29.04.2017, 30.04.2017, 08.06.2019 and 09.06.2019. Thus,
taking this situation that TET had not been conducted in the years 2014, 2015,
2016 and 2018, the persons appointed during the period from 23.08.2010 to
12.07.2012 have claimed exemption from passing TET, particularly when it is
not in dispute that the TET has been conducted during the years 2012, 2013
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and 2017 and they have had sufficient opportunity to prepare and appear for
the TET during the said period. In this context, the Division Bench of this
Court in State of Tamil Nadu v. R.Arivazhagan (Order dated 24.01.2017 in
W.A. No. 1126 of 2016 etc., batch) had taken note of those aspects of the
matter and held as follows:
"42.Accordingly, to meet the ends of justice, the writ appeals and the writ
petitions are disposed with the following directions:
(i)The Teachers herein, who have been appointed subsequent to the
issuance of the Government Order, are granted one opportunity to appear
for the Teacher Eligibility Test to be conducted by the Teachers Recruitment
Board and in the event of their passing in the Teacher Eligibility Test, their
appointments shall be approved else, they have no other option but to quit
the service/ousted from service;
(ii)Till the results are published, the Government shall pay the salary to the
Teachers, who are in service of the aided institutions, for the service
rendered by them and in the cases where salary was not paid the same
shall be paid along with arrears, if any, forthwith;
(iii)Learned Advocate General submitted that salary has been paid to most
of the Teachers and only a few were not paid, for want of particulars. In
such a case, the Teachers whose salary have not been paid for want of
particulars, they shall furnish the requisite particulars immediately, so as
to enable the Government pay the salary immediately.
(iv)Insofar as W.P. No. 7953 of 2015 is concerned, though the writ
petitioner has qualified with a pass in Teacher Eligibility Test during 2013,
she has not been paid the difference of salary from the date of
appointment, till the date of passing of the Teacher Eligibility Test. In view
of the discussions aforesaid, the Government is directed to pay the
difference of salary within a period of four weeks from the date of receipt
of a copy of this order; and
(v)The Teachers Recruitment Board is directed to take note of the above
observations and to issue notification for conducting Teacher Eligibility
Test on or before the end of February 2017, indicating the date of exam to
be either in the last week of March 2017 or in the first week of April 2017."
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WA. No. 313 of 2022 etc batch
appeals as well as the writ petitions are required to be dealt with,
independently. The pleadings have been arranged for narration on the basis of
the issues that arise for consideration as referred to at the first instance, Issue
No. (i) being covered by W.A.No. 2795/2022, W.P. Nos.3364 & 3368 of 2023,
and Issue No. (ii) being covered by W.A.Nos.313, 833, 1891, 2050, 2082,
2617 of 2022 & WA.Nos.19, 31, 32 & 36 of 2023.
8. W.A. No. 2795 of 2022
8.1. The appellants are aggrieved by the order dated 20.10.2012 passed
by the learned Judge in WP No. 19587 of 2022 filed by them.
8.2. The appellants have filed WP No. 19587 of 2022 praying to quash
the order dated 11.07.2022 of the second respondent insofar as it relates to
postponing of the promotion counselling scheduled to be held on 14.07.2022
and 15.07.2022 for the post of B.T. Assistant from among the Secondary
Grade Teachers and after quashing the said order dated 11.07.2022, sought for
a consequential direction to the second respondent to instruct all the Chief
Educational Officers to conduct the promotion counselling for the post of B.T.
Assistant in High Schools and Higher Secondary Schools from the post of
Secondary Grade Teachers, within a time frame.
8.3. Even though the learned Judge allowed the writ petition and quashed
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the order dated 11.07.2022 of the second respondent with a further direction to
conduct promotion counselling, the appellants are aggrieved by the observation
made by the learned Judge to the effect that teachers without TET are not
entitled to continue in service in the schools/educational institutions and are not
entitled for promotion to BT Assistants from the cadre of secondary grade
teachers unless they qualify for TET.
8.4. According to the appellants, the learned Judge went beyond the
scope of the writ petition and issued such directions which had adversely
affected their right to continue in service. The appellants have filed the writ
petition only against the postponement of the promotion counselling inasmuch
as they are continuing in the post of Secondary Grade Teachers without being
promoted to the post of B.T. Assistant by citing the non-possession of TET.
When the appellants sought for a direction to the respondents to expeditiously
conduct the promotion counselling, the learned Judge overstepped and held
that those who did not possess TET are not entitled to promotion and continue
in service. Such finding will have a cascading effect in their continuing in
service. The appellants further stated that they were appointed from 1991 to
2011 on various dates and they are continuing in service without promotion.
On the other hand, those who were appointed after the appellants have climbed
the promotion ladder and are holding higher posts. It is also stated by the
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appellants that they are not required to pass TET at all inasmuch as they were
appointed much prior to the issuance of G.O. Ms. No.181 dated 15.11.2011 as
well as the conduct of TET for the first time in the State; and that, this
Honourable Court had passed several orders holding that pass in TET is
compulsory only for direct recruitment to the post of B.T. Assistants and not
for those who are seeking promotion to the said post. The appellants further
stated that there was no condition imposed in their order of appointment.
However, by virtue of the notification dated 23.08.2010, they are required to
pass TET as a condition precedent for promoting them to higher post. Such a
condition is conspicuously absent in the order of appointment issued to the
appellants and therefore, they cannot be directed to complete TET as a
condition precedent for conferment of promotion or for the purpose of
continuing in service. In any event, when there are several orders cited on
behalf of the appellants and the learned Judge did not agree with the decisions
rendered by this Court in the earlier orders, judicial discipline demands that the
matter ought to have been referred to a Division Bench. Instead, the learned
Judge observed that those who did not possess TET has to be shown the exit
door and they are not having any right to remain in service. Such an
observation made by the learned Judge is legally not sustainable. Further, the
Government issued G.O. (Ms.) No. 13, School Education [S.E 3(1)]
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Department dated 30.01.2020 whereby the Special Rules for the Tamil Nadu
School Educational Subordinate Service, was published. Even in the said
Government Order, it was only stated that TET is necessary for appointment of
a graduate teacher, however, it cannot be insisted in the case of promotion to
the post of B.T. Assistant. The said Government Order in G.O. (Ms.) No.13,
School Education Department dated 30.01.2020 was not challenged and
therefore also, the order passed by the learned Judge required to be interfered
with by this Court. Accordingly, the appellants prayed for allowing this appeal.
8.5. The learned counsel appearing for the appellants in W.A.No.2795 of
2022 would contend that the appellants were appointed as Secondary Grade
Teachers between 1991 and 2011 on various dates and they have rendered
more than two decades of service without any promotion. However, during the
course of their service, NCTE has made TET qualification mandatory for all
appointments from the date of the notification on 23.08.2010. It was also made
clear that for appointments made prior to the notification, possessing TET is
not required.
9. WP Nos. 3364 & 3368 of 2023:
9.1. WP No. 3364 of 2023 is filed by TET Passed Candidates Welfare
Association, while WP No. 3368 of 2023 has been filed by one Sakthivel. Both
these writ petitions have been filed to issue a Writ of Declaration declaring that
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the Special Rules for the Tamilnadu School Educational Subordinate Service
issued in G.O. Ms. No.13, School Education Department dated 30.01.2020
insofar as it prescribes "a pass in TET only for direct recruitment for the post of
BT Assistant and not for promotion thereto in Annexure-I (referred to in Rule
6)" is illegal being ultra vires the Right of Children to Free and Compulsory
Education Act, 2009 and the Rules framed thereunder and the NCTE
notifications dated 23.08.2010 and 29.07.2011.
9.2. According to the petitioner in WP No.3364 of 2023, it is a registered
association and they have been espousing the cause of candidates who have
passed TET. It is stated that NCTE issued the notification dated 23.08.2010
prescribing minimum qualification for being appointed as a Teacher for
imparting teaching to students studying Classes I to V (secondary grade
teachers) and Classes VI to VIII (B.T. Assistants). As per the notification dated
23.08.2010, the teachers appointed prior to the notification need not pass TET.
However, by a subsequent notification dated 29.07.2011, amendments were
made to the notification dated 23.08.2010 in which also, the requirement to
pass TET has become necessary for the purpose of appointment. The
Government also issued G.O. Ms. No.173, dated 08.11.2011 framing the Tamil
Nadu Right of Free and Compulsory Education Rules, 2011 followed by
another order in G.O. (Ms.) No.181 dated 15.11.2011 appointing TRB as the
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nodal agency to conduct TET exam. As per the orders of the Government,
passing TET is mandatory for all secondary grade teachers as well as BT
Assistants in the State.
9.3. It is further stated by the petitioners that pursuant to the orders of the
Government, TRB has conducted several TET exams and the results declared
in those examinations were the subject matter of various litigations before this
Court. However, it is clear that no selection shall be made to the post of
Secondary Grade Teachers and BT Assistants without the TET qualification
and no approval for any appointment was given by the educational agency in
favour of those who do not pass TET.
9.4. The petitioners, in unison, would state that the Government of Tamil
Nadu has now framed Special Rules for Tamil Nadu Elementary Education
Subordinate Service in GO Ms. No.12, School Education [EE1(1)] Department
dated 30.01.2020 and Special Rules for the Tamil Nadu School Educational
Subordinate Service vide G.O. Ms. No.13, School Education [S.E 3(1)]
Department dated 30.01.2020. In the aforesaid Government Orders, while
prescribing qualification for the post of Graduate Teacher (BT Assistant) in
Annexure I (as referred to in Rule 6) of the Special Rules, it was specified that
"a pass in TET" is mandatory only for direct recruitment. As far as the mode of
appointment, it was stated that the post of BT Assistant/Graduate Teacher can
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be filled by way of transfer, promotion or direct recruitment, meaning thereby,
for transfer and promotion, the in-service candidates in the post of Secondary
Grade Teachers can be considered even without TET qualification for
promotion to the post of BT Assistant.
9.5. The grievance of the writ petitioners is that such a prescription to
promote the in-service candidates to the higher post without TET qualification
is against the spirit of RTE Act and the Rules made thereunder. Therefore,
challenging G.O. Ms. No.12, School Education Department dated 30.01.2020,
the petitioner Association has earlier filed WP (MD) No. 9707 of 2022 before
this Court. Similarly, another writ petition in WP (MD) No. 9708 of 2022 was
filed by one K. Rajasekaran. Both the writ petitions were taken up for hearing
on 11.05.2020 and an interim order was granted to the effect that any
promotion order passed by the official respondents will be subject to the
outcome of the final order to be passed in the writ petitions.
9.6. During the pendency of the writ petitions, the Commissioner of
School Education has passed an order dated 30.06.2022 directing all the Chief
Educational Officers to prepare a panel in the category of Secondary Grade
Teacher for promotion to the post of BT Assistant. Challenging the said order
dated 30.06.2022, the petitioner in WP No. 3368 of 2023 has earlier filed WP
No. 17895 of 2022 to quash the proceedings dated 30.06.2022 of the
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Commissioner of School Education, Chennai, insofar as it relates to promotion
to the post of B.T. Assistant from those unqualified candidates without passing
TET by conducting promotion counselling. In connection with the same
dispute, some of the in-service candidates have also filed WP No. 19587 of
2022 challenging the order dated 11.07.2022 of the Commissioner of School
Education, Chennai postponing the promotion counselling scheduled to be held
on 14.07.2022 and 15.07.2022 for the post of B.T. Assistant from the post of
Secondary Grade Teacher as per the proceedings dated 30.06.2022 and to
direct the Commissioner of School Education to instruct all the Chief
Educational Officers to conduct promotion counselling for promotion to the
post of B.T. Assistant. Both the WP No.17895 of 2022 and WP No. 19587 of
2022 were taken up for hearing and by order dated 20.10.2022, WP No. 17895
of 2022 filed by the TET passed candidate Sakthivel was allowed and WP No.
19587 of 2022 was dismissed.
9.7. As against the common order dated 20.10.2022, the petitioners in
WP No. 19587 of 2022 have filed Writ Appeal No. 2795 of 2022 before this
Court, wherein the petitioner in WP No. 3364 of 2023 impleaded themselves as
party respondent and opposed the writ appeal by stating that in-service
candidates, who do not possess TET qualification cannot be conferred with
further promotion. According to the writ petitioners, number of in-service
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candidates do not possess TET qualification, however, they are asserting a right
for promotion to the post of B.T. Assistant. If promotion to the post of B.T.
Assistant is made from among unqualified secondary grade teachers, who do
not pass TET, the qualified persons, who have passed TET, will be deprived of
their legitimate right of appointment and promotion. The unqualified in-service
candidates solely rely upon G.O. Ms. Nos. 12 and 13 dated 30.01.2020 for
conferment of promotion to the post of B.T. Assistant without possession of
TET and therefore, challenging the aforesaid orders of the Government, these
writ petitions in WP Nos. 3364 & 3368 of 2023 have been filed.
9.8. A counter affidavit has been filed in WP No. 3368 of 2023 by the
Joint Director (Personnel), Commissioner of School Education, Chennai
contending inter alia that number of candidates, who do not possess the
mandatory TET, have been appointed in Government aided school and
therefore, their appointments are not approved by the Department. However,
on the basis of interim order passed by this Court in the writ petitions filed by
such candidates, they continue to remain in service and on the basis of such
orders, temporary appointments have been given by the Department to the
nonqualified teachers. It is stated in the counter affidavit that the nodal agency
namely TRB has conducted TET examination on 03.06.2012 in which
3,05,405 candidates appeared, but only 1735 passed the examination.
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Subsequently, TET examination was conducted on various dates in which very
few have passed the examination. It is further stated that the State Government
strictly adheres to the provisions of RTE Act, 2009 which made it mandatory
for all those teachers, both secondary grade teachers as well as B.T. Assistant
appointed on or after 01.04.2020 to acquire TET qualification. As far as
Government Schools are concerned, only those candidates, who passed TET,
alone are appointed after the coming into force of the said Act. The teachers
appointed in the minority aided schools claim that they need not acquire TET
in view of the order passed by the Constitutional Bench of the Honourable
Supreme Court in Pramati Educational and Cultural Trust and others v.
Union of India [(2014) 8 SCC 1]. However, the issue that was dealt with in
that case relates to reservation of 25% of seats in the schools for the children
belonging to weaker and disadvantaged sections of the society and the said
decision has no application to their case.
9.9. With reference to the Judgment passed in W.A.(MD)No.859 of 2019
filed by Tmt. B. Annie Packiarani Bai, the Department has filed SLP (C) Diary
No. 17702 of 2021 before the Honourable Supreme Court and it is pending. In
another batch of cases in W.A. No. 1723 of 2019 filed against the order dated
30.04.2019 in WP No. 13306 of 2019, the Division Bench of this Court has
directed the Department to issue show cause notice to those who have not
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passed TET. However, this Court, by an order dated 16.05.2019, granted
interim injunction restraining the Educational authorities from terminating the
teachers pending disposal of the writ appeals. Thus, according to the
respondent authorities, the prayer made in the writ petitions is devoid of merits
and is liable to be rejected.
10. Writ Appeal Nos. 313 and 833 of 2022
10.1. These appeals arise out of the common order dated 29.07.2021
passed by the learned Judge in WP Nos. 23999 and 24003 of 2019.
10.2. Both the aforesaid writ petitions have been filed for issuing a Writ of
Mandamus forbearing the respondents therein from insisting passing of TET
and to direct the respondents to continue to make salary, including annual
increment, incentive increment and other service benefits to them.
10.3. According to the writ petitioners, they were appointed as B.T.
Assistant on 15.06.2011 and 29.07.2011 respectively and their appointment
has also been approved by the educational agency. While so, after their
appointment, the Government issued G.O. Ms. No.181, School Education
Department dated 15.11.2011 appointing TRB as nodal agency to conduct
TET. Therefore, the writ petitioners who were appointed prior to the issuance
of G.O. Ms. No.181 dated 15.11.2011, are not required to complete TET or the
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acquisition of TET qualification cannot be put against them for the purpose of
conferment of annual increment, incentive and other service benefits. However,
the school, where they were employed, are refusing to pay salary and other
monetary benefits to them by citing non-possession of TET.
10.4. The learned Judge, on considering the rival submissions, held that
the petitioners, who were appointed on 15.06.2011 and 29.07.2011, cannot be
insisted to possess TET qualification as prescribed by NCTE. The learned
Judge also, by placing reliance on the order dated 30.07.2020 passed by this
Court in WP (MD) Nos. 8313 of 2020 etc., batch in Mrs. D. Raja Malar vs.
The State of Tamil Nadu, Department of School Education and others, held
that the writ petitioners were appointed prior to issuance of G.O. Ms. No.181
dated 15.11.2011 and they are not required to pass TET as a condition
precedent for payment of salary and other monetary benefits. Accordingly, a
direction was issued to the respondents therein to pay the salary, including
annual increment and other incentives payable to the writ petitioners within a
period of eight weeks. Aggrieved by the common order dated 29.07.2021
passed by the learned Judge in WP Nos. 23999 and 24003 of 2019, the present
intra-court appeals in W.A. Nos. 313 and 833 of 2022 are filed.
10.5. Assailing the order dated 29.07.2021 of the learned Judge, it is
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contended by the appellants that the appointment of the writ petitioners
without possession of TET would be considered as without adequate
qualification and it is against the prescription of minimum qualification under
the RTE Act, 2009. The learned Judge, while allowing the writ petitions, did
not consider that sufficient and adequate time has been given to the teachers
like the writ petitioners to acquire TET, however, they did not possess such
qualification. After coming into force of the RTE Act, 2009, acquisition of TET
qualification is mandatory for appointment as teachers. Even though the writ
petitioners were appointed in the year 2011, till this date, they have not chosen
to acquire such qualification and therefore, it shall be deemed that they are
continuing in service as B.T. Assistant without the mandatory qualification
prescribed under the RTE Act, 2009. While so, the order passed by the learned
Judge, directing the appellants to pay the writ petitioners their salary, annual
increments and other incentives is not proper and hence, prayed for setting
aside the same by allowing the writ appeals.
11. W.A. No. 1891 of 2022
11.1. This appeal arises out of the order dated 22.10.2021 passed by the
learned Judge in WP No. 22221 of 2021.
11.2. The aforesaid writ petition was filed by one K.A. Karpagam, praying
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to issue a Writ of Mandamus directing the appellants to sanction annual
increment to her in the post of B.T. Assistant (Science-Zoology) in the second
respondent school from the year 2016 without reference to passing TET with
all consequential benefits.
11.3. According to the writ petitioner, she was appointed as B.T. Assistant
in Sri Sarada Vidyalaya Higher Secondary School for Girls, Fairlands, Salem
on 19.03.2011 and her appointment was also approved by the educational
authorities on 24.05.2011. In the meanwhile, based on G.O. Ms. No.181 dated
15.11.2011, making TET qualification mandatory, the writ petitioner has not
been paid annual increments payable to her. The writ petitioner further stated
that she was appointed on 19.03.2011, prior to issuing G.O. Ms. No.181 dated
15.11.2011 and therefore insisting her to pass TET. as a condition precedent
for payment of annual increment and other benefits. is illegal.
11.4. The learned Judge, by the order dated 22.10.2021, allowed WP No.
22221 of 2021 filed by the writ petitioner by placing reliance on the earlier
order passed by this Court in WP No. 20013 of 2021 and held that as per
Section 23 of the RTE Act, a teacher, who did not possess the minimum
qualification shall acquire it within a period of five years, however,
consequences of not obtaining such qualification has neither been prescribed in
the Act nor the Rules and Government Orders. It was further held that as long
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as the petitioner was working as a teacher, she is entitled to all the benefits that
are available to the regular teachers as per the Rules.
11.5. Assailing the order dated 22.10.2021 passed in WP No. 22221 of
2021, it is contended on behalf of the appellants that minimum qualification to
be possessed by a Teacher has been laid down by NCTE in exercise of powers
conferred under Section 23(1) of The Right of Children to Free and
Compulsory Education Act, 2009. The writ petitioner admittedly did not
possess the minimum qualification prescribed by NCTE within five years from
the date of commencement of the Act in the year 2009. Even the Government
has passed the order in G.O. Ms. No.181, School Education Department dated
15.11.2011 to the effect that teachers to be recruited in future for the
elementary segment must have passed TET. Therefore, as per the order of the
Government, it is mandatory for the writ petitioner to possess TET and she
cannot be permitted to state that her appointment was made prior to the
issuance of the Government Order. Even the five years time limit prescribed
under Section 23 (2) has lapsed but the writ petitioner did not acquire TET
qualification. When the continuance of the writ petitioner in service itself is
illegal, the learned Judge ought not to have issued a Mandamus directing the
appellants herein to confer her all the consequential monetary benefits such as
annual increment etc. In this context, the appellants have relied on the order
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dated 24.03.2022 passed by this Court in WP No. 28284 of 2021 etc., in
K. Vasudevan v. The Principal Secretary, School Education Department and
others, wherein it was held that merely because the writ petitioners'
appointment was made prior to the issuance of the Government Order and their
appointments were also ratified by the educational authorities, it will not confer
them the right to get annual increment etc. Thus, according to the appellants,
when the writ petitioner did not possess the requisite mandatory qualification,
she is not entitled to annual increment and other incentives and hence, the
order of the learned Judge dated 22.10..2021 made in WP.No.22221 of 2021
will have to be set aside by allowing this appeal.
12. W.A. No. 2050 of 2022
12.1. This appeal arises out of the order dated 29.09.2021 passed by the
learned Judge in WP No. 20911 of 2021.
12.2. The aforesaid writ petition has been filed praying to issue a Writ of
Mandamus directing the appellants to sanction annual increment to the writ
petitioner in the post of B.T. Assistant (Maths) from the year 2018 and also to
pay incentive increment for having acquired M.Sc., Mathematics without
reference to passing of TET.
12.3. According to the writ petitioner, he was appointed as B.T. Assistant
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on 12.09.2011 and he joined the said post on 12.12.2011 and that, his
appointment was also approved by the educational authorities. It was further
stated that after his appointment as B.T. Assistant, on 12.09.2011, the
Government issued G.O. Ms. No.181 dated 15.11.2011 making it mandatory
for the Secondary Grade Teachers and B.T. Assistant to possess TET. In any
event, when he was appointed much earlier to the passing of the Government
Order, the writ petitioner cannot be insisted to pass TET as a condition
precedent for continuing in service or payment of his annual increment and
other incentives.
12.4. The learned Judge, on consideration of the rival submissions, held
that Section 23 of the RTE Act makes it clear that a Teacher, who, at the
commencement of the Act did not possess the minimum qualification, shall
acquire such qualification within five years. However, the consequences of not
obtaining such qualification has neither been prescribed in the Act nor in the
Rules or the Government Orders. As long as the writ petitioner continues to
work as a Teacher, he is entitled for his salary and other incentives.
Accordingly, the learned Judge allowed the writ petition No. 20911 of 2021 on
29.09.2021. Aggrieved by the same, W.A. No. 2050 of 2022 is filed by the
appellants.
12.5. In the grounds of writ appeal, it is stated that the learned Judge did
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not consider the fact that adequate time has been granted to the candidates,
including the writ petitioner, to acquire TET qualification. The writ petitioner,
who joined services on 12.09.2011, did not pass TET till the date of filing the
writ petition. When a statute prescribes a particular qualification as a minimum
qualification for holding a post, the writ petitioner cannot be given any
exemption from possessing such qualification. In any event, the appointment of
the writ petitioner or continuance of his service without the mandatory TET
qualification cannot be countenanced. In such circumstances, the learned Judge
ought not to have directed the appellants to confer all the monetary benefits
payable to the writ petitioner. Therefore, the appellants sought to allow this
writ appeal.
13. W.A. No. 2082 of 2022
13.1. This appeal arises out of the order dated 29.09.2021 passed by the
learned Judge in WP No. 20913 of 2021.
13.2. The aforesaid writ petition has been filed praying to issue a Writ of
Mandamus directing the appellants to sanction annual increment to the writ
petitioner in the post of B.T. Assistant (Maths) from the year 2018 and also to
pay incentive increment for having acquired M.Sc., Mathematics without
reference to passing of TET.
13.3. According to the writ petitioner, he was appointed as B.T. Assistant
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on 08.09.2011 and his appointment was also duly approved by the educational
authorities on 27.12.2011. However, just prior to his appointment on
08.09.2011, the NCTE has issued the notification dated 27.09.2011, amending
the earlier notification dated 28.08.2010. As per the notification dated
27.09.2011, passing of TET is considered as one of the eligibilities for
appointment to the post of teacher taking classes from Standards I to VIII. It is
the stand of the writ petitioner that after his appointment to the post of B.T.
Assistant, the notification dated 27.09.2011 has been issued by NCTE and
therefore, he is not required to pass TET.
13.4. The learned Judge allowed the writ petition by stating that as long as
the writ petitioner is in service, he is entitled for all the monetary benefits
attached to the post and he cannot be deprived of the same. Therefore, the
learned Judge allowed the writ petition and directed the appellants to confer all
the monetary benefits to the writ petitioner.
13.5. Assailing the order passed by the learned Judge, it is contended on
behalf of the appellants that adequate time has been granted to the candidates
including the writ petitioner, to acquire TET qualification. The writ petitioner
who joined the service during the year 2011, did not pass TET till the date of
filing the writ petition. When a statute prescribes a particular qualification as a
minimum qualification for holding a post, the writ petitioner cannot be given
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any exemption from possessing such qualification. In any event, the
appointment of the writ petitioner or continuance in service without the
mandatory TET qualification cannot be countenanced. In such circumstances,
the learned Judge ought not to have directed the appellants to confer all the
monetary benefits payable to the writ petitioner and hence, prayed for quashing
the same.
14. W.A. No. 2617 of 2022
14.1. The appellants are aggrieved by the order dated 28.04.2022 passed
by the learned Judge, dismissing their writ petition No. 35487 of 2019.
14.2. The appellants have filed the aforesaid writ petition praying to issue
a Writ of Mandamus forbearing the respondents from insisting passing of TET
for their appointment in the fifth respondent school on 10.12.2010 and
22.01.2011 respectively prior to G.O. Ms. No.181, School Education
Department dated 15.11.2011 and consequently direct the respondents to
continue to make payment of salary, including other service benefits with
annual increment.
14.3. Before the learned Judge, on behalf of the writ petitioners-appellants,
it was contended that the Government of Tamil Nadu issued G.O. (Ms.)
No.244, School Education (EE3(2)) Department dated 30.11.2013 in
compliance with the order passed by the Honourable Supreme Court and
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therefore, they are not required to pass TET as a condition precedent for
continuing in the post to which they are appointed. However, the learned Judge
refused to accept such a plea by holding that the writ petitioners were
appointed in an Aided School, which is receiving aid from the State
Government. On the other hand, the order passed by the Honourable Supreme
Court confers certain protection to the teachers appointed through the TRB in
Government Schools. It was further held that TET has become mandatory to be
acquired and the writ petitioners cannot claim exemption on any ground. The
appointment of the writ petitioners as teachers in the fifth respondent school
has been made on 10.12.2010, 10.12.2010 and 22.01.2011 respectively, after
the notification dated 23.08.2010 was issued by the NCTE under Section 23
(1) of the RTE Act. Therefore, the writ petitioners cannot be granted exemption
from passing TET and they are equally governed by the mandate contained in
clause 5 (a) of the notification dated 23.08.2010 issued by the NCTE. Further,
the writ petitioners have not passed the TET till the extended time on
31.03.2019 or on 08.06.2019 and 09.06.2019. Therefore, the learned Judge
dismissed the writ petition filed by the writ petitioners/appellants.
14.4. According to the appellants, they were appointed in accordance with
the Special Rules which was in force, without reference to TET. The
appointment of the writ petitioners were also approved by the educational
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authority. The appellants have also received salary and other monetary benefits,
as applicable till December 2019. However, the fourth respondent orally
intimated the writ petitioners that they will not be paid the monetary benefits
attached to the post due to non-passing of TET. The notification issued by
NCTE on 11.02.2011 specifically states in Clause 9 that the Government
should give weightage to the TET scores in the recruitment process, meaning
thereby, passing of TET is mandatory during the selection for recruitment of
the post and it is not applicable to those who were already appointed, like the
writ petitioners-appellants. Therefore, the qualification prescribed under
Section 23 (1) cannot be put against the writ petitioners who were appointed
much prior to the conduct of TET by the nodal agency for the first time in the
State. Even thereafter, the Government issued G.O. Ms. No.90 dated
28.03.2012 changing the policy for recruitment of secondary grade teacher and
Graduate Assistant by stating that "henceforth the recruitment will be based
on written examination in TET in accordance with guidelines framed by
NCTE." Thus it is evident that the notification issued by the NCTE as well as
the Government would indicate that TET cannot be insisted against those
candidates like the writ petitioners-appellants, who were appointed much prior
to G.O. Ms. No. 181 dated 15.11.2011, G.O. Ms. No.90 dated 28.03.2012 and
prior to conducting TET in the State for the first time. Therefore also, the writ
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petitioners- appellants are not required to pass TET.
14.5. On behalf of the appellants, reference was made to the earlier orders
passed by this Court in WP No. 1126 of 2016 dated 24.01.2017 wherein it was
held that TET cannot be insisted to those candidates who were appointed much
after the issuance of G.O. Ms. No.181 dated 15.11.2011. Further, the
Honourable Supreme Court passed an order protecting those teachers
appointed prior to G.O. Ms. No.181 dated 15.11.2011 and therefore, the
learned Judge ought to have allowed the writ petition filed by the writ
petitioners-appellants.
15. Writ Appeal Nos. 19, 31, 32 and 36 of 2023
15.1. These four appeals are filed by the State, assailing the common order
dated 22.10.2021 passed by the learned Judge in WP Nos.22545, 22550,
22554 and 22556 of 2021 respectively.
15.2. The writ petitions namely WP Nos. 22545, 22550, 22554 and 22556
of 2021 have been filed by The Headmistress and Correspondent of St.
Joseph's Higher Secondary School, Chennai against an order dated 02.09.2021
passed by the District Educational Officer, St. Thomas Mount, Chennai,
refusing to approve the appointment of the Teachers appointed by the writ
petitioner to the post of B.T. Assistant for non-possessing TET.
15.3. According to the writ petitioner, St. Joseph's Higher Secondary
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School, Vettuvankeni, Chennai - 600 115, is one among the several schools
founded and administered by Congregation of the Sisters of St. Anne,
Tiruchirapalli. The said school, which is a minority educational institution, was
established in the year 1978 and presently it is imparting education to children
from Standards VI to XII. It was further stated that there are 31 teachers viz., 1
Headmistress, 2 Tamil Pandits, 10 BT Assistants, 15 Secondary Grade
Teachers, 2 Physical Education Teachers and 1 Sewing Mistress working in the
school. The teaching staff working in the school is in accordance with the
student strength and staff fixation done during the academic year 2019-2020.
While so, due to retirement of the teaching staff, they have appointed four
teaching staff in the sanctioned post and upon their appointment, necessary
proposal was sent for ratification of their appointment. While so, the District
Educational Officer, St. Thomas Mount returned the proposal submitted by the
petitioner School by citing an interim order dated 09.04.2019 passed by the
Madurai Bench of this Court in WA (MD)No. 76 of 2019 etc., batch and also
G.O. Ms. No.165, School Education Department dated 17.09.2019. According
to the writ petitioner, the reliance made to the interim order dated 09.04.2019
is legally not sustainable inasmuch as it has culminated in passing final order
dated 31.03.2021 in WA (MD) No. 76 of 2019 etc., batch upholding the
validity of G.O. Ms. No.165, School Education Department dated 17.09.2019
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as not operative.
15.4. The learned Judge, upon hearing the counsel for both sides, placing
reliance on the earlier order dated 31.03.2021 in WA (MD) No. 76 of 2019,
allowed the writ petitions filed by the Writ Petitioner School by a common
order dated 22.10.2021. Aggrieved by the same, the present intra-court appeals
are filed.
15.5. The appellants would state that the learned Judge allowed the writ
petitions on the ground that G.O. Ms. No.165, School Education Department
dated 17.09.2019 was ordered to be in-operative by the judgment dated
30.03.2021 in W.A. (MD) No. 76 of 2019 etc. batch. However, the
Government has filed Special Leave Petition before the Honourable Supreme
Court in which an order of interim stay was granted on 14.03.2022. Even
otherwise, the teachers appointed by the writ petitioner/School did not possess
TET qualification when they were appointed during the year 2020-2021. When
the minimum educational qualification prescribed for a teaching faculty is a
pass in TET and it is being adopted at the national level, the writ petitioner
cannot seek to dispense with such mandatory qualification to be possessed by
the teaching faculty. It is in those circumstances, the District Educational
Officer, St. Thomas Mount has rightly returned the proposals sent by the writ
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petitioner School for approval of appointment of their teacher.
15.6. The appellants would further state that this Court, in the order dated
07.04.2022 made in WP No. 28284 of 2021 referred to the decision of
Honourable Supreme Court in Unaided Private School of Rajasthan v. Union
of India [2012 (6) Supreme Court Cases 1] wherein it was held that the
Rights of Children to Free and Compulsory Education Act, 2009 is
constitutionally valid. The Act is applicable to the writ petitioner school and the
appointment of the teachers without the mandatory TET qualification cannot be
ratified by the educational authorities. Therefore, the appellants would pray for
setting aside the common order dated 22.10.2021 passed by the learned Judge
in the writ petitions.
II. SUBMISSIONS OF COUNSELS
16.1. Mrs. Nalini Chidambaram, learned Senior counsel appearing for the
appellants in W.A. No. 2795 of 2022 submitted that the appellants were
appointed as Secondary Grade Teachers on various dates between the years
1991 and 2011. Their appointment is governed by the Tamil Nadu Educational
Subordinate Service. While so, after two decades of the appointment of the
appellants, on 26.08.2009, Parliament has passed the Right of Children to Free
and Compulsory Education Act, 2009 (Act 35 of 2009) to provide for free and
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compulsory education to all children of the age 6 to 14 year. The Act received
the assent of the President on 26.08.2009. Thereafter, on 23.08.2010, in
exercise of powers conferred under Section 23(1) of the RTE Act, the NCTE
issued a notification dated 23.08.2010 prescribing minimum educational
qualification for appointment of teacher to impart classes to students studying
in Classes I to VIII. However, even as per the NCTE Regulations which was in
force in the year 2001, TET was not mandatory.
16.2. In line with the enactment of the RTE Act, the Government of Tamil
Nadu issued G.O. Ms. No.181, School Education Department dated
15.11.2011 making TET mandatory for appointment of teacher. It is in those
circumstances, when Civil Appeal Nos. 6186 to 6187 of 2008 were taken up
for hearing by the Honourable Supreme Court on 05.09.2013, it was held that
"the Teachers who were appointed prior to G.O. dated 15.11.2011 will remain
protected". Thus, all the teachers appointed prior to 15.11.2011 are protected
and their services shall not be terminated for not passing TET as per the order
passed by the Honourable Supreme Court.
16.3. Notwithstanding the above position, the Directorate of School
Education issued a notification dated 01.10.2014 stating that TET is
compulsory for all the teachers in service and directed that within five years of
their appointment as BT Assistant, they should pass TET. According to the
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learned Senior counsel for the appellants, TET can be insisted to those who are
directly recruited to a teaching post and it cannot be insisted on the appellants
who have been appointed between 1991 to 2011 and had completed two
decades of service. While so, the observation made by the learned Judge in the
order dated 20.10.2022, which is impugned in Writ Appeal No. 2795 of 2022
that the teachers who do not possess the minimum qualification of pass in TET
are not entitled to continue in service in the schools/educational institutions is
legally not sustainable.
16.4. The learned Senior counsel for the appellants further referred to the
order dated 05.09.2013 passed by the Honourable Supreme Court in Civil
Appeal Nos.6186 and 6187 of 2008 (State of Tamil Nadu and another v.
Unemployed Sec. Grade Teach. Welfare Association and others) wherein it
was held as follows:
"That the teachers who were appointed prior to the G.O. dated 15.11.2011
will remain protected and as far as the transfers sought by the teachers
outside their Districts are concerned, it is for them to apply to the authority
concerned and the authority concerned will consider their applications in
accordance with law.
16.5. According to the learned Senior counsel, in the light of the above
observations made by the Honourable Supreme Court, the Teachers, who did
not pass TET and who were appointed prior to 15.11.2011 are protected and
that, insisting them to pass TET as a condition precedent for conferring
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promotion to higher post is unjustified.
16.6. The learned Senior counsel also placed reliance on the decision of the
Division Bench of this Court in The Secretary to Government, Government of
Tamil Nadu, Education Department, Fort St. George and others v. S.
Jeyalakshmi and others [(2016) 4 Law Weekly 841] wherein it was
categorically held in para No.55 that when once a person is appointed as
teacher after being found eligible as on the date of his or her appointment, he
cannot be expected to write an examination and to qualify himself in such
examination at a later point of time. The Division Bench also directed the
Government to seek necessary clarification from the NCTE in the light of such
observation made inter alia as to whether the prescription of minimum
qualification of TET can be made applicable prospectively for the Teachers who
were appointed subsequent to the date of the issue of Government Order in
both non-minority and minority institutions so as to benefit the Teachers who
have been serving for quite a long time. This observation of the Division Bench
of this Court would make it very clear that insisting TET for those who were
appointed long back, prior to the advent of RTE Act or to deny them the
legitimate promotion, is uncalled for.
16.7. The learned Senior counsel for the appellant further relied on the
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order dated 08.03.2019 passed by one of us (R. Mahadevan, J) in WP (MD)
Nos. 5626 to 5630 of 2017 etc., batch, wherein it was held that the cut off date
for acquiring the TET qualification is 27.09.2011 and the teachers who were
appointed prior to that date need not pass TET. Even in the case of teachers
who were appointed after that date, if the advertisement to initiate the process
of appointment of teachers was made prior to that date, then their
appointments can also be in accordance with NCTE Regulations, 2001 and
they need not acquire the TET qualification. Thus, the learned senior counsel
sought to quash the order of the learned Judge by allowing this writ appeal.
17.1. Ms. N. Kavitha Rameshwar, learned counsel appearing for the TET
passed Candidates Welfare Association/Petitioners in WP Nos. 3364 and 3368
of 2023, as also the impleaded respondents in W.A.No. 2795 of 2022, would
contend that a BT Assistant or a Graduate Teacher could be appointed either by
direct recruitment or by transfer or by promotion. Adding further, the learned
counsel submitted that the necessary qualification for the post of BT Assistant
is an Under graduation and B.Ed. degree and a pass in TET. The Tamilnadu
government has now framed Special Rules for Tamilnadu Elementary
Educational Subordinate Service vide GO.Ms.No. 12 School Education (EE(1))
Department dated 30.01.2020 and Special Rules for the Tamilnadu School
Educational Subordinate Service vide GO Ms. No.13 School Education
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(S.E3(1)) Department dated 30.01.2020. The said Rules while prescribing
qualifications for Graduate Teacher (BT Assistant) in its Annexure I (as
referred to in Rule 6) of the Special Rules specifies “a pass in TET” only for
direct recruitment. However, the mode of appointment to the said post of BT
Assistant/ Graduate Teacher is mentioned as transfer, promotion or direct
recruitment. This would mean that for transfer and promotion, the Government
is open to promoting Secondary Grade Teachers without TET qualification as
BT Assistants. The same is against the RTE Act and the Rules framed
thereunder and the notifications issued by the respondents 2 and 3 from time to
time apart from being unconstitutional.
17.2. The learned counsel also submitted that as the NCTE Notifications
prescribing the qualifications did not mention or make any distinction in the
qualifications on the basis of the mode/channel of appointment, the State
Government cannot make such an artificial distinction and that, it would be
beyond the competence of the State Legislature to do the same as the field is
already occupied by Parliamentary legislation under Entry 66 of the Union
List. In this context, the learned counsel contended that when once the field is
occupied by Parliamentary legislation and the subject relates to an entry falling
within the exclusive domain of the Parliament under the Union List, the State
Legislature has intended to legislate on a subject in respect of which it has no
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legislative competence, and thus the doctrine of colorable legislation is
attracted to the present case. The learned counsel relied on the Constitution
Bench judgment of the Supreme Court in K.C. Gajapati Narayan Deo and
Ors. v. State of Orissa [(1954) 1 SCR 1], to substantiate her argument that
once a legislature does not have competence to enact law on a particular
subject, it cannot do indirectly what cannot be done directly. She further
submitted that the impugned Rules are illegal and ultravires the RTE Act and
the Rules framed thereunder and also the notifications dated 23.08.2010 &
29.07.2011, issued by the NCTE which prescribe TET as a mandatory
eligibility criteria for the post of BT Assistant and that, the impugned
provisions while prescribing the mode of appointment to the post of Graduate
Teacher as either by transfer, promotion or by direct recruitment, cannot
restrict TET as an essential eligibility criteria only for direct recruitment, when
the NCTE notifications issued under the RTE Act make TET mandatory for
appointment to the post of BT Assistant/Graduate Teacher.
17.3. The learned counsel would further contend that the impugned Rules
are a colourable exercise of legislative power to the extent that it prescribes “a
pass in Teacher Eligibility Test (TET)” only for direct recruitment for the post
of BT Assistant and not for promotion thereto in Annexure-I (referred to in
Rule 6) as the same ultravires the Right of Children to Free and Compulsory
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Education Act 2009 and the Rules framed thereunder and the NCTE
Notification dated 23.08.2010 & 29.07.2011, and hence violative of Articles 14
and 16 of the Constitution of India. Section 23 of the RTE Act makes it
mandatory that the minimum qualification prescribed by the academic
authority is necessary for being appointed as teacher to teach classes 1 to 8. A
graduate Teacher to teach classes 6 to 8 must also possess the necessary
qualification prescribed by the academic authority. The NCTE, the academic
authority had prescribed TET as minimum qualification for being appointed as
teacher. The impugned provisions are directly contrary to the above legal
provisions and hence, liable to be declared as illegal.
17.4. The learned counsel also placed reliance on the NCTE Regulations
2001 to buttress her case that even earlier the NCTE has intended to follow the
qualifications for the respective posts in cases where there is movement from a
lower to a higher or next level post in cases of already appointed persons.
Further, a perusal of the Rules made by various States on the basis of the
NCTE Notifications prescribing qualifications, including a pass in TET, would
show that the said qualifications have been applied to both direct recruitment
as well as to promotion to the post of BT Assistants. Also, the Order in Special
Appeal No.737/2018, (Allahabad High Court) dated 04.09.2018 has been
pressed in to service by the learned counsel to contend that the very same
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question arose before the Allahabad High Court and the Court has affirmed
that the qualifications prescribed by the NCTE including a pass in TET apply
to all appointments made after the cutoff date, i.e. 29.07.2011, including to
promotion to BT Assistant/Graduate Teacher.
17.5. The learned counsel submitted that the impugned Rules would create
a situation where those appointed by direct recruitment to the post of BT
Assistant would be TET qualified while those appointed through promotion
would be unqualified in respect of TET, thereby defeating the provisions of the
RTE Act that seeks to uniformly increase the standard of teaching and
education while ensuring the right to education under Article 21-A of the
Constitution of India.
17.6. Lastly, the learned counsel would contend that though all the
members of the petitioner Association aspire for direct recruitment and the
Rules contemplate 50 percent of appointments to BT Assistant through direct
recruitment and 48 percent through promotion and the remaining 2 per cent by
transfer from among categories mentioned therein, the writ petitioners and
others are aggrieved by the impugned Rules on account of the fact that while
the Government has not made any direct recruitment for a decade, it keeps
filling up all vacant positions of BT/Graduate Assistants through promotion
from among candidates not possessing a pass in TET and that, the Government
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has not maintained the requisite quota for direct recruits, thereby meaning that
unqualified candidates are being promoted while qualified candidates are
waiting in the queue endlessly without employment and thus, the challenge is
to the Rules relating to promotion.
17.7. That apart, Ms. Kavitha Rameshwar, learned counsel for the writ
petitioners, placed reliance on several judgments with regard to the issue
relating to the maintainability of the writ petition filed by a registered
Association. It is her contention that the Association represents the unemployed
teachers who are eligible and qualified and cannot be expected to individually
knock the doors of the Court as they suffer from financial disability and the
nature of their grievances are the same.
18.1. Mr. Silambannan, learned Additional Advocate General appearing for
the State would contend that after the advent of RTE Act and appointment of
TRB as nodal agency to conduct TET in the State, the teachers were required to
pass the examination conducted by TRB within five years from 01.04.2010 to
31.03.2015. However, the deadline to pass the TET has been extended until
31.03.2019. Thus, nine years’ time was given to the teachers to acquire the
qualification, but several teachers have not acquired the TET qualification. He
would also submit that without such qualification, appointments were made in
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Government Aided Schools and therefore, the educational agency did not
approve their appointment. But, those teachers whose appointments have not
been approved or who were not paid the monetary benefits such as annual
increment etc., have approached this Court with various writ petitions and
obtained orders in their favour.
18.2. According to the learned Additional Advocate General, the State
Government scrupulously adheres to the provisions of RTE Act and insists the
teaching faculty to pass TET as mandated under the RTE Act. So far as the
Government Schools are concerned, only the TET passed teachers are
appointed through TRB after the coming into force of the RTE Act. At the same
time, the learned Additional Advocate General made reference to clauses 4 and
5 of the notification dated 23.08.2010 issued by NCTE stating that those
teachers appointed on or after 3rd September 2001 i.e., the date on which the
NCTE (Determination of Minimum Qualification for Recruitment of Teachers
in Schools) Regulations, 2001 (as amended from time to time) came into force
in accordance with that Regulation.
18.3. The learned Additional Advocate General further submitted that
promotion to the teachers in Government Schools is governed by the relevant
Service Rules namely Tamil Nadu School Education Subordinate Service Rules
or Tamil Nadu Higher Secondary Educational Service Rules. In none of the
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aforesaid Rules it was prescribed that passing of TET for promotion of teachers
to other categories is mandatory. Therefore, the teachers appointed before
01.04.2010 were exempted from passing TET. At the same time, those who are
recruited directly to the post of B.T. Assistant after the said date must have
passed TET. It is further submitted by the learned Additional Advocate General
that whenever a new legislation or rule is introduced, it will only have
prospective effect unless otherwise specifically notified that it will come into
force from a particular date. In the present case, the RTE Act was enacted on
and from 01.04.2010. Therefore, the teachers appointed much prior to the
coming into force of the said Act are not required to clear TET and they are
exempted from passing the TET.
18.4. With respect to promotion, it is submitted by the learned Additional
Advocate General that once a teacher has been directly recruited under the
governing Service Rules, his or her promotion or career prospects have to be
decided only based on the Rules which were in force on the date of his or her
appointment. As such, those who were appointed much prior to the coming
into force of the Act are exempted from passing TET and consequently, they
are entitled for further promotion based on their seniority and merits.
19.1. Mr. G. Sankaran, learned Senior counsel appearing for the appellants
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in W.A. No. 2617 of 2022 submitted that the appellants were appointed on
10.12.2010, 10.12.2010 and 22.01.2011 in the fifth respondent school. They
were appointed in the vacancies that arose on 01.06.2009 due to retirement of
teachers. The fifth respondent school, upon obtaining permission during
September 2010 and on 28.12.2010 respectively appointed the appellants. The
appointment of the appellants were also approved by the educational
authorities on 24.02.2011. Thus, the appellants were appointed in accordance
with the Special Rules without reference to TET. In the orders of appointment
issued to the appellants, there was no pre-condition imposed to pass TET.
While so, in the year 2019, the appellants were orally informed that they will
not be eligible for payment of annual increment etc., for not passing TET.
19.2. The learned Senior counsel for the appellants invited the attention of
this Court to the notifications dated 23.08.2010 and 11.02.2011 issued by
NCTE and submitted that the directions contained therein can be made
applicable only to the appointments to be made and not to those who were
already appointed. He had drawn the attention of this Court to clause 9 of the
notification dated 11.02.2011 of the NCTE wherein it was stated that the
Government should give weightage to the TET scores in the recruitment
process, meaning thereby, TET can be insisted only to those who are newly
recruited or appointed. Even the State Government in G.O. Ms. No. 90, School
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Education Department dated 28.03.2012 has directed that "henceforth, the
recruitment will be based on written examination, namely TET in accordance
with the guidelines issued by NCTE." The words "henceforth" employed in
G.O. (Ms) No. 90, dated 28.03.2012 will make it amply clear that TET can be
insisted only for the appointments to be made by resorting to a recruitment
process and not to those who were already recruited and are in service.
However, the learned Judge had concluded that the appointment of the
appellants is after 23.08.2010, the date on which the NCTE issued the
notification prescribing minimum educational qualification to be possessed by
the Teachers in Classes I to VIII. The learned Judge further held that the
process of appointment was initiated after 23.08.2010 and therefore, the
appellants will not fall under the exempted category of cases. However, the
learned Judge did not take note of the fact that as on 23.08.2010, the TRB has
not conducted any TET examination and there are no qualified person available
with TET qualification to be appointed as Teacher. While so, the learned Senior
counsel submits that the appellants will come under the exempted category and
consequently, passing of TET cannot be insisted against them.
19.3. In support of his contention, the learned Senior counsel invited the
attention of this Court to the decision of this Court dated 30.07.2020 passed in
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WP (MD) No. 8313 of 2020 etc., in the case of D.Raja Malar v. State of
Tamil Nadu and others, where, in similar circumstances, this Court held as
follows:
"15.Therefore, it has become quite clear that the appointment of the
petitioners as on 17.09.2010, 20.06.2011 and 20.06.2011 having been
approved by the third respondent through the said approval order, the
applicability of the prescription made by NCTE to have such qualification,
insofar as the petitioners are concerned, cannot be made or applied.
Therefore, the said reason cited in the impugned order by the third
respondent, in the considered opinion of this Court, may not hold good.
Therefore, on that reason, the petitioners service benefit like annual
increment cannot be denied.
16.Moreover, once the appointments are approved by the authority and the
same still holds good, the petitioners have been brought under regular time
scale of pay. When that being the position, the annual increment is part and
parcel of the time scale of pay system being adopted for government
employees/Teachers of the Government is concerned and when such is the
position, the third respondent cannot insist upon any Government Order,
which cannot be created by the petitioners.
17.Moreover, if at all any such request is made by the petitioners for annual
increment, that should have been decided by the respondents by taking into
account the relevant Rule position, Service Law and the Government Order,
if any available with the respondents, instead, off late, it has become a
practice that some of the officials/authorities would raise a question that, in
order to get the benefit sought for by the employees/Teacher/incumbent,
whether any Government Order is available in their favour.
19.4. The learned Senior counsel also placed reliance on the order dated
29.09.2021 passed in WP No. 20911 of 2021 as well as the order dated
20.12.2021 passed in WP No. 25138 of 2021, wherein this Court issued a
Mandamus directing the respondents therein to continue to pay the annual
increment and other monetary benefits to the petitioners therein without
insisting TET.
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19.5. The learned Senior counsel for the appellants further relied on the
order passed by the Madurai bench of this Court in WP (MD) Nos. 5626 to
5630 of 2017 etc., batch. According to the learned Senior counsel, the common
prayer sought for in those writ petitions is to issue a Writ of Mandamus to
forbear the official respondents from insisting the writ petitioners to pass TET
for continuing their service as B.T. Assistant in the respondents schools. All the
writ petitioners in those cases were admittedly appointed before issuance of
notification and their appointments were also approved by the Educational
Authorities. While so, it was contended on their behalf that when their
appointment is proper, they cannot be compelled to write TET as a condition
precedent for continuing in their service. This Court, upon examining the fact
as to whether the writ petitioners, who were appointed before the cutoff date
are entitled to get exemption from passing TET, after an in-depth analysis of
the same, held that the writ petitioners are entitled to seek exemption from
passing TET, as they were appointed prior to the cutoff date and the
respondents were directed not to insist TET certificate from the writ petitioners
as a condition precedent for their continuance in service as B.T. Assistants.
19.6. Reliance was also placed on the decision of the Division Bench of
this Court in The Secretary to Government, Government of Tamil Nadu,
Education Department and others v. S. Jeyalakshmi and another [2016 (4)
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Law Weekly 841]. In that case, this Court had an occasion to consider as to
whether the teachers, who were appointed prior to the Government Order
introducing TET as a condition, are required to acquire TET qualification
within a period of five years so as to continue in their service. The Division
Bench of this Court, in Para Nos. 55 to 58 held as follows:
"55. A reading of the qualifications extracted above would clearly show that
the B.T. Assistants are being appointed only if they are qualified and
possessed with Teachers Training Certificate. As per G.O. Ms. No.181
dated 18.11.2011, Secondary Grade Teachers are being appointed only if
they are qualified and possessed with Diploma in Teachers Education. Thus,
it is evident that the persons who underwent either Teachers Training course
or Diploma in Teachers Education alone are eligible for appointment either
as B.T. Assistants or Secondary Grade Teachers as the case may be.
Therefore, there cannot be an iota of doubt as to their eligibility for
appointment as Teachers. Once they are appointed as Teachers after having
been found eligible as on the said date of their appointment, they cannot be
expected to write an examination and to qualify in such examination at a
much later point of time.
56. We are, therefore, of the considered view that the Government may seek
a clarification from the NCTE, in the light of what is stated in the preceding
paragraph, whether the prescription of minimum qualification of TET can
be made applicable prospectively for the Teachers who were appointed
subsequent to the date of the issue of G.O., in both non-minority and
minority institutions and not retrospectively as the same would cause undue
hardship to the Teachers who have been serving for a quite a long time.
57. In case of NCTE clarifying that G.O. can be given prospective effect, the
Government, in its wisdom, may think of conducting refresher course for the
Teachers who were appointed prior to the issue of G.O., during the annual
vacation, instead of insisting for qualifying in TET, since the Teachers have
already undergone either Teachers Training Course or Diploma in Teachers
Education, as the case may be, as per the Education Act of the State.
Moreover, we are of the opinion that asking the Teachers who have been
appointed after having found eligible and working for quite a long time, to
undergo TET examination and to pass the same at this stage, would be
nothing but imposing upon them a task, which they have already achieved
by passing the requisite tests for getting appointed. Further, an uncertainty
also would get created in the minds of the Teachers that lest they pass the
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TET examination, their career would be hanging in balance as the
Damocles Sword. Keeping the above in mind, the Government may, in
consultation with NCTE, formulate a scheme for conducting refresher
course for those Teachers who were appointed prior to the issue of G.O., as
this would set at rest the uncertainty that would otherwise get created in the
minds of the persons already in employment.
58. In our opinion, non qualifying in TET by the Teachers already in service
should not defeat the object of the Government to provide quality and
standard education and therefore, the Government may, in the alternative,
conduct a refresher course and also some interactive sessions during
annual vacation, in order to ensure and enhance the quality of education."
19.7. By placing reliance on the aforesaid decision, the learned Senior
counsel for the appellants submitted that the appellants are governed by the
conditions imposed or the Rule prevailing as on the date of their appointment
and hence, they cannot be compelled to pass TET which was introduced much
after their appointment. With these submissions, the learned Senior counsel
prayed for allowing this appeal.
20. Mr. V. Ashok Kumar, learned Central Government Counsel
appearing for the first respondent in WP Nos. 3364 and 3368 of 2023 would
submit that the Right of Children to Free and Compulsory Education Act, 2009
(Amendment Act, 2012) which represents the consequential legislation
envisaged under Article 21-A of the Constitution of India came into force on
01.04.2010. Subsequently, the Central Government formulated the Central
RTE Rules, 2010 which could be adopted by the Union Territories not having
the legislative Assembly. The Government of India also formulated the model
RTE Rules, which were to be adopted by the concerned State based on the
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ground realities prevailing in the particular State. Section 23 of the RTE Act,
prescribes the qualification for appointment and the terms and conditions of
service of teachers. Section 23 (2) confers relaxation for teachers who were
appointed or in position as on 31st March 2015, which means that this clause
applies on those teachers who are in-service as on 31st March 2015. Further,
as per Section 23 (2), the relaxation can be given only in academic
qualifications in a case where a State does not have adequate institutions
offering course or training in Teachers Education. Even such relaxation can be
conferred till 31st March 2019 and not thereafter. He would further submit that
TET is mandated by NCTE and therefore, the question of relaxation in TET is
not covered under the above mentioned sections of the RTE Act. The Central
Government has authorised the NCTE to lay down certain minimum
qualification to be possessed by a person to become eligible for appointment of
a teacher. Accordingly, the NCTE issued a notification dated 23.08.2010 and
one of the essential qualifications for a person to be eligible for appointment as
a teacher is that he or she should pass TET which will be conducted by the
appropriate Government. In effect, the learned Central Government Counsel
submitted that the recruitment, service conditions and deployment of teachers
are primarily in the domain of respective State Governments and Union
Territory Administrations. As per the RTE Act, it is for the appropriate
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Government to take a decision on employment of teachers in accordance with
the provisions of the RTE Act, 2017.
21. Mr. Karthikeyan, learned counsel appearing for the petitioners in
CMP Nos. 6050 and 6349 of 2023, which were filed to implead themselves as
party respondents in W.A. No. 2795 of 2022, would contend that the
petitioners were appointed as Teachers during 1995 to 2001 on various dates
and they cannot be brought within the fold of TET. The petitioners are working
as such for more than 25 years and are waiting for their legitimate promotion
to the post of B.T. Assistant. However, by citing the non-passing of TET, they
are deprived of their legitimate promotion, which is unjustified. The provisions
contained under the RTE Act or the notifications issued by NCTE prescribing
minimum educational qualification vis-a-vis a pass in TET cannot be put
against the petitioners to deny them their legitimate promotion. He placed
reliance on the order passed by the Government in G.O. Ms. No.171, School
Education Department dated 18.08.2008 and contends that if the petitioners
are given promotion from the post of Secondary Grade Teacher to B.T.
Assistant, the post which they have held (Secondary Grade Teacher) will
automatically be converted as B.T. Assistant in which event no one will be
prejudiced. The learned counsel therefore prayed for allowing the impleading
petitions and to direct the Government to conduct the promotion counselling to
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the petitioners to the post of B.T. Assistant without insisting TET.
22. We have heard the learned counsel appearing for all the parties at
length and also perused the materials placed on record.
III. DISCUSSION & FINDINGS
A. W.A. No. 2795/2022 & W.P. Nos. 3364 and 3368/2023
23. The writ appeal arises out of the order of the Learned Judge wherein
it has been held that the Teacher Eligibility Test (TET) shall be an essential
eligibility criteria for those aspiring to be promoted as Graduate Teachers/ BT
Assistants from the post of Secondary Grade Teachers. Apart from the various
submissions made by the appellants, who were the writ petitioners originally,
seeking promotion to the post of BT Assistant from the post of Secondary
Grade teacher without insistence on TET, it is pertinent to mention that under
the Special Rules for the Tamil Nadu School Educational Subordinate Service
issued vide GO. Ms. No. 13 School Education [S.E.3 (1)] dated 30.01.2020, it
has been stipulated that for the post of Graduate Teacher/ B.T. Assistant, a pass
in Teacher Eligibility Test (TET) is mandatory only for direct recruitment as
mentioned in Annexure I to the Special Rules, as referred to in Rule 6 of the
said Rules. The said Rules have been made by the State Government under
Article 309 of the Constitution.
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24. It is also pertinent to mention that while heavy reliance has been
placed by the appellants on the said Rules which lends assistance to the sheet
anchor of their case that TET as an eligibility criteria is required to be fulfilled
only in the case of direct recruitment to the post of BT Assistant, the Learned
Judge has, even in the face of the said Special Rules, adopted the view that it is
mandatory even for promotion to the post of BT Assistant from the category of
secondary grade teacher after the coming into force of the RTE Act, 2009 and
the NCTE notifications issued pursuant thereto. In the light of the operation of
the Special Rules as stated above, stating that a pass in TET is required only
for direct recruitment to the post of Graduate Teacher/BT Assistant, the natural
outcome should be that in the absence of a challenge to the Rules, the position
stated in the Rules would have to be applied. However, while the said Rules
had not been subject to challenge before the Learned Judge, the said Rules
have now been challenged by way of two writ petitions and therefore, the moot
question would now be on the validity or otherwise of the said Special Rules.
The entire issue therefore now narrows down to the validity or otherwise of the
said Special Rules which have now been challenged before us. Once we
pronounce upon the validity of the said rules, all the issues including the
correctness of the order passed by the Learned Judge in the present writ
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appeal, would stand settled.
25. The essential question therefore relates to the determination of the
validity of the Special Rules (hereinafter referred to as “the impugned Rules”)
by which it has been prescribed that for the post of Graduate Teacher/BT
Assistant, a pass in Teacher Eligibility Test (TET) is mandatory for direct
recruitment alone. Two writ petitions have been filed challenging the vires of
the said Rules, one of them being by a registered Association that espouses the
cause of all candidates who have passed TET, and the other petition by an
individual who is an aspirant for the post of Graduate Teacher/BT Assistant, by
direct recruitment.
THE RTE ACT, 2009 & THE LEGAL FRAMEWORK ON TET AS AN
ELIGIBILITY CRITERIA
26. The Right of Children to Free and Compulsory Education Act, 2009
was passed with the avowed objective of ensuring free and compulsory
education to all children in the age group of 6 to 14 years, pursuant to Article
21-A inserted by the Constitution (86th amendment) 2002 which provides for
free and compulsory education of all children in the age group of 6 to 14 years
as a fundamental right. The RTE Act also aimed at raising the standard of
education, and came into force on 01.04.2010. Under the Act, the term ‘school’
is defined as follows:
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“2(n) “School” means any recognized school imparting elementary
education and includes –
(i)a school established, owned or controlled by the appropriate
Government or a local authority;
(ii)an aided school receiving aid or grants to meet whole or part of its
expenses from the appropriate Government or the local authority;
(iii)a school belonging to specified category; and (iv) an unaided school
not receiving any kind of aid or grants to meet its expenses from the
appropriate Government or the local authority.”
27. At the commencement of the Act, under Section 23 of the Act, it has
been stated as follows:
“23. Qualifications for appointment and terms and conditions of service
of teachers.—
(1) Any person possessing such minimum qualifications, as laid down by
an academic authority, authorised by the Central Government, by
notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or
training in teacher education, or teachers possessing minimum
qualifications as laid down under sub-section (1) are not available in
sufficient numbers, the Central Government may, if it deems necessary, by
notification, relax the minimum qualifications required for appointment
as a teacher, for such period, not exceeding five years, as may be
specified in that notification:
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.”
28. Thereafter, by Notification dated 31.03.2010, the 1st respondent
appointed the 2nd respondent NCTE as the academic authority to lay down the
minimum qualifications for a person to be eligible to be appointed as a teacher.
On 08.10.2010, the 1st respondent by virtue of powers conferred under Section
38 of the Act, framed Right of Children to Free and Compulsory Education
Rules 2010. Pursuant to the provisions of the Act, the National Council
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Teacher Education (NCTE) issued a notification dated 23.08.2010 prescribing
the minimum qualifications for teachers from Classes I to V- ‘Secondary Grade
Teachers’ as well as for Classes VI to VIII- ‘BT Assistant’. Apart from
prescribing the minimum educational qualifications, the important eligibility
criteria added by way of the notification is – “Pass in Teacher Eligibility Test
(TET)”. This notification stated under paragraph 4 that teachers appointed
prior to the date of this notification need not acquire the minimum qualification
prescribed by the notifications. Under para 5 it has been stated that those
teachers appointed after date of this notification, but in whose case the process
of appointment was initiated prior to the date of this notification would also be
exempt from acquiring the minimum qualifications including Teacher Eligibility
Test (TET) as prescribed under Para 1 of the notification. The said Para 5 of
the notification dated 23.08.2010 came to be amended by the notification of
the NCTE dated 29.07.2011 whereby Para 5 was substituted by Para 5(a) with
the same provision while shifting the cut off date from 23.08.2010 to
29.07.2011, meaning thereby that where the Government, Local Authority or
School issued the advertisement to initiate the process of appointment prior to
the date of this notification i.e., 29.07.2011, such appointments may also be
made in accordance with the NCTE Regulations 2001 i.e., exempting them
from acquiring TET for appointment as the teacher. The NCTE Notification
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dated 11.02.2011 issued guidelines relating to conduct of TET. In Para 3 of the
said Guidelines (though subsequently amended in notification dated
29.07.2011 and the reason for same is not understood), the rationale for
including the TET as minimum qualification can be seen, and the same is
reproduced:
“3. The rationale for including the TET as a minimum qualification for a
person to be eligible to be appointed as a teacher is as under:
(i) It would bring national standards and benchmark of teacher quality in the
recruitment process;
(ii) It would induce teacher education institutions and students from these
institutions to further improve their performance standards;
(iii) It would send a positive signal to all stakeholders that the Government lays
special emphasis on teacher quality.”
29. Thereafter, the State Government framed the Tamil Nadu Right of
Children to Free and Compulsory Education Rules, 2011 vide GO. Ms. No.
173 dated 08.11.2011. The State Government issued GO.Ms.No. 181 dated
15.11.2011, appointing Teachers Recruitment Board (hereinafter called ‘TRB’)
as the nodal agency to conduct TET exams. The said GO makes it very clear in
categorical terms that passing of TET is mandatory for all Secondary Grade
Teachers and BT Assistants in Tamil Nadu.
MAINTAINABLITY OF THE WRIT PETITIONS IMPUGNING THE
SPECIAL RULES
30. At the outset, as an objection has been raised to the maintainability
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of the writ petition by an Association, it is only appropriate that we deal with
the said issue first. The issue whether a writ petition is maintainable at the
instance of an Association is now no longer res integra and the Hon'ble
Supreme Court has made authoritative pronouncements laying down broad
guidelines on the said issue in various judgements, most of which have been
relied upon by the counsel for the petitioner in the writ petition impugning the
Special Rules. The following judgments have been referred to by the Learned
counsel for the writ petitioner:
(i)Akhil Bharatiya Soshit Karamchari Sangh (Railway)
represented v. Union of India and Others [1981 (1) SCC 246]
(ii)West Bengal Head masters’ Association and ors. v. Union of
India (UOI) and Others [AIR 1983 Cal 448]
(iii)Umesh Chand Vinod Kumar and others v. Krishi Utpadan
Mandi Samiti and others [AIR 1984 All 46]
(iv)D.C.Wadhwa and others v. State of Bihar and others [AIR
1987 SC 579]
(v)State Bank of Bikaner and Jaipur v. State Bank of Bikaner and
Jaipur Employees Association and others [MANU/TN/0293/1991]
(vi)Confederation of Ex-servicemen Associations and Others v.
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Union of India (UOI) and Others [AIR 2006 SC 2945]
(vii)Andhra Pradesh Scheduled Tribes Employees Association v.
Aditya Pratap Bhanj Dev and Others [MANU/AP/0696/2001], and
(viii)Tamilnadu Co-operative Subordinate Officers’ Association v.
Government of Tamil Nadu [MANU/TN/0876/2003]
31. While it may not be necessary to extract all the above judgments, the
law laid down in State Bank of Bikaner's case (cited above) by this court,
succinctly states as follows:
“8.Before the learned single Judge, several contentions were raised, one
with respect to the defence of party, the other with respect to the nature of
the relief and the third with respect to any right of the members of the writ
petitioner-Association to claim anything in the name of interest beyond
what had been stipulated under Regulation 12 aforesaid. Learned Single
Judge has held :
"Keeping in trend with the pronouncements of the Supreme Court, it
is not possible to throw out the writ petition at the threshold itself on
the sole ground that it has been filed by an association of
employees, without going into the merits of the other contentions.
Even otherwise, the second petitioner is an individual employees
and he must be deemed to be directly interested in and affected by
the proposed action of the respondents. Besides, the first petitioner
is a registered trade union, and it is stated that it has got
membership of about 5,000, who are all employees of the second
respondent all over India. It cannot be stated that the rights of its
members would not be affected by the proposed action of the
respondent. The writ laid by the first petitioner, as representing a
large body of employees of the second respondent whose rights and
interest are likely to be affected, must be held to be competent.
Representative actions even in Writ jurisdiction cannot be thrown
out on the simple ground that the body which represents the cause
of its members on roll is not by itself affected. It would suffice the
purpose if the rights of its members are affected; and then, as
observed by the Supreme Court, collective proceedings are
permissible instead of driving each individual employee affected to
file an independent writ, which would result only in plurality of
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litigation on the common question. The Supreme Court was
prepared to countenance a non-recognised association maintaining
a writ petition. As observed earlier, the first petitioner is a
Registered trade union and it can legitimately, as representing its
member, employees of the second respondent, give vent to their
grievance and seek redress and relief, as representing their cause."
For us to say, if at all it is necessary, that, this is the most correct view is
not a mere formality. Learned single Judge has not come to the said
conclusion without examining the scope of the writ action by a body of
individual members, who together joined as an Association for such
action, which is in the interest of all the members. He has rightly
distinguished the cases of N.A. District Pawn Brokers' Association v.
Secretary to Government of India, 1975 I MLJ 290; C. I. Kannan v. E.S.I.
Corporation MANU/TN/0205/1968 : (1968) I LLJ 770 Mad and M.
Ramaswami v. Government of Tamil Nadu (Writ Appeal No. 472 of 1976,
Judgment dated August 11, 1980) and relied upon the statement of law in
the case of F.C.K.U. (Registered). Sindri v. Union of India
MANU/SC/0010/1980 : (1981) I LLJ 193 SC and A.B.S.K. Sangh (Rly.) v.
Union of India MANU/SC/0058/1980 : (1981) I LLJ 209 SC . The law on
the subject has been candidly stated by the Supreme Court in the last of
them that MANU/SC/0058/1980 : (1981) I LLJ 209 SC at 230" a technical
point of this kind has to be overruled for the reasons that a large body of
persons with a common grievance can always approach the Court on
principle, "our current procedural jurisdiction is not of individualistic
Anglo-Indian mould. It is broad-based and people-oriented and envisions
access to justice through 'class actions,' 'public interest litigation' and
'representative proceedings'. Indeed, little Indians in large numbers
seeking remedies in Court through collective proceedings; instead of being
driven to an expensive plurality of litigations, is an affirmation of
participative justice in our democracy. We have no hesitation in holding
that the narrow concept of 'cause of action', and 'person aggrieved' and
individual litigation is becoming obsolescent in some jurisdictions. It must
fairly be stated that the learned Attorney General has taken no objection to
a non-recognised association maintaining the writ petitions." In the instant
case, the Association is a recognised body as a trade union of the
employees.”
Thus, the principle that emerges from the above is that a body of individuals,
who have a common grievance and by reason of some disability, or incapacity,
are not in a position to approach the court individually, a writ petition is
certainly maintainable by an association.
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32. In the present case, the writ petition has been filed by an association
which espouses the cause of its members who are all persons who have cleared
the teacher eligibility test and have been unemployed while waiting for direct
recruitment to the post of BT Assistant for more than a decade now. It has also
been mentioned in the affidavit that it is one of the most prominent associations
whose members are qualified persons eligible to be appointed as teachers and
who possess a pass in TET. When the grievance of all the members of the
petitioner Association is common, it would be to stand on technicality to say
that each one of those members and each one of the members of the public
who have a common grievance should have approached the court individually,
and that the Association cannot represent its members in a case of this nature.
Such a hyper technical approach would amount to a negation of justice and this
Court is clearly not in favour of such an approach, especially in the light of the
pronouncements of the Hon'ble Supreme Court in this regard.
33. With respect to the other writ petition filed by an individual who is
an aspirant for direct recruitment to the post of Graduate Teacher/BT Assistant,
the objection raised by the State Government was that as the Rules stipulate a
quota of 50% for direct recruitment and the remaining for appointment by
promotion and transfer, the petitioner cannot have any grievance with respect
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to the manner in which appointment is made by promotion from the post of
Secondary Grade Teacher to the post of Graduate Teacher/BT Assistant. In this
regard, the counsel for the petitioner had stated that while the Rules specify a
quota of 50% for direct recruitment, it is a fact that in the state of Tamil Nadu,
as admitted by the state government, direct recruitment to the post of Graduate
Teachers/BT Assistants, after the coming into force of the RTE Act and NCTE
notifications, has not been made after 2013. The state government also has not
come out with a clear picture as to the number of vacancies available in the
post of Graduate teachers and the number of posts for direct recruitment as
against the number of posts/vacancies available for promotion. It is the case of
the petitioner that while the state government is wanting to promote more and
more secondary grade teachers as graduate teachers without insistence on TET,
while also filling up several vacancies by temporary appointments without
insistence on TET, the posts which are supposed to be earmarked for direct
recruitment to the post of graduate teachers are also being taken up, and by
reason of their being qualified and yet being unemployed for the past 10 years
and more, and inspite of which, when the impugned Rules stipulate that TET is
an essential criterion for appointment only for direct recruitment and not for
promotion or other modes of appointment, it will definitely affect their rights.
After giving our anxious consideration to the grievances expressed by the
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petitioners in the writ petitions, this court is convinced that the writ by an
association which is espousing the common grievances of all similarly placed
persons who are qualified and unemployed, as well as the writ petitioner in WP
No.3368 of 2023, is maintainable and the said writ petitions cannot be thrown
out at the threshold on the ground of non-maintainability. Besides, the right to
equality of opportunity in public employment under Article 16 as a facet of
Article 14, is a cherished fundamental right that furthers the solemn ideals of
equality and justice as envisaged in our Constitution. This Court while dealing
with a matter of public employment under Article 16, cannot reject the petitions
on hyper technical ground of non-maintainability.
VALIDITY OF THE IMPUGNED RULES
34. Coming to the merits of the case, the validity of the impugned Rules
has to be tested on the anvil of the legislative competence of the State
Legislature to issue them in the teeth of the parliamentary legislation, viz. the
RTE Act 2009 and the NCTE notifications prescribing the minimum eligibility
requirement for the post of Graduate Teacher, the NCTE being the designated
academic authority under the Act. It is seen that under Entry 66 of List I in
Schedule VII to the Constitution, the legislative head mentioned is –
‘Coordination and determination of standards in institution for higher
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education or research and scientific and technical institutions’. Also,
‘Education, including technical education, medical education and universities,
subject to the provisions of entries 63,64,65 and 66 of List I; vocational and
technical training of labour’, as a head of legislation is found in Entry 25 of
List III (Concurrent list) under Schedule VII to the Constitution of India. Entry
66 of List I deals with coordination and determination of standards of higher
education. Teacher education has been legislated upon by the Union
government by way of parliamentary legislation by virtue of the RTE Act 2009.
Under the Act, the NCTE which has been designated as the academic authority,
has issued notifications prescribing the minimum eligibility criteria for the post
of Graduate Teacher/BT Assistant and the same is binding on all state
governments unless the law to the contrary has been made by the state
government in accordance with Article 254 of the Constitution. Here again, the
legislative head as stated in Entry 25 of List III, has been made subject to Entry
66, List I and hence, the area available for the State to legislate in the arena of
teacher education is diminished to the point of non-availability. In the present
case, it is seen that the state of Tamil Nadu is not governed by any specific
legislation or statute dealing with teacher education and therefore, the further
question of the same being either contrary or repugnant to the provisions of the
RTE Act and the consequential or pursuant subordinate legislation does not
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arise. In other words, the parliamentary legislation as well as the subordinate
legislation made pursuant thereto are binding on the state government in the
absence of a plenary legislation made by the state legislature pursuant to its
power under the Concurrent List, which again is subject to the parliamentary
legislation made under Entry 66, List I. It is in this background that one will
have to test the validity of the impugned Rules. A perusal of the NCTE
notification made pursuant to the RTE Act would make it clear that the NCTE
has prescribed eligibility criteria in terms of educational qualification as also a
pass in the teacher eligibility test for appointment to the post of graduate
teacher. As pointed out rightly by the counsel for the petitioners in the writ
petitions challenging the vires of the impugned Rules, the mode of appointment
or the channel of appointment whether by direct recruitment or promotion or
transfer has not been specified in any of the prescribed qualifications made by
the NCTE. What has been prescribed by the NCTE is the eligibility criteria for
appointment by whatever means/mode to the posts of Graduate Teacher/BT
Assistant. On the contrary, it is seen that the impugned Rules while apparently
adopting the eligibility criteria as mentioned by the NCTE, has now attempted
to restrict the eligibility criteria of passing the teacher eligibility test only to
direct recruitment. The very same impugned Rules also specify that 50% of the
appointments to the postgraduate teacher are to be made by direct recruitment,
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while 48% is to be made by promotion and the remaining 2% by transfer from
other posts as specified in the Rules made therein. When the Academic
Authority designated under the parliamentary legislation has not made
distinction in the eligibility criteria on the basis of the channel or mode of
appointment, it is not legally permissible for the state government to prescribe
or make modifications which are contrary to what has been prescribed by
subordinate legislation made pursuant to the parliamentary legislation which
holds the field.
35. In this context, the judgment of the Hon'ble Supreme Court in Union
of India (UOI) and Ors. v. Shah Goverdhan L. Kabra Teachers College
[(23.10.2002 - SC) : MANU/SC/0882/2002], where the issue was one related
to legislative competence of the State to alter or dilute the parliamentary
legislative provisions in teacher education, is of relevance and is extracted
hereunder for easy reference:
“6. In view of the rival submissions at the bar, the question that arises for
consideration is whether the impugned legislation can be held to be a law
dealing with coordinated development of education system within Entry 66
of the List I of the Seventh Schedule or it is a law dealing with the service
conditions of an employee under the State Government. The power to
legislate is engrafted under Article 246 of the Constitution and the various
entries for the three lists of the Seventh Schedule are the "fields of
legislation". The different entries being legislative heads are all of
enabling character and are designed to define and delimit the respective
areas of legislative competence of the Union and the State legislature.
They neither impose any restrictions on the legislative powers nor
prescribe any duty for exercise of the legislative power in any particular
manner. It has been a cardinal principle of construction that the language
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fairly capable and while interpreting an entry of any List it would not be
reasonable to import any limitation therein. The rule of widest
construction, however, would not enable the legislature to make a law
relating to a matter which has no rational connection with the subject
matter of an entry. When the vires of enactment is challenged, the court
primarily presumes the constitutionality of the statute by putting the most
liberal construction upon the relevant legislative entry so that it may have
the widest amplitude and the substance of the legislation will have to be
looked into. The Court sometimes is duty bound to guard against
extending the meaning of the words beyond their reasonable connotation
in anxiety to preserve the power of the legislature.
7. It is further a well-settled principle that entries in the different lists
should be read together without giving a narrow meaning to any of them.
Power of the Parliament as well as the State legislature are expressed in
precise and definite terms. While an entry is to be given its widest meaning
but it cannot be so interpreted as to over-ride another entry or make
another entry meaningless and in case of an apparent conflict between
different entries, it is the duty of the court to reconcile them. When it
appears to the Court that there is apparent overlapping between the two
entries the doctrine of "pith and substance" has to be applied to find out
the true nature of a legislation and the entry with which it would fall. In
case of conflict between entries in List I and List II, the same has to be
decided by application of the principle of "pith and substance". The
doctrine of "pith and substance" means that if an enactment substantially
falls within the powers expressly conferred by the Constitution upon the
legislature which enacted it, it cannot be held to be invalid, merely because
it incidentally encroaches on matters assigned to another legislature.
When a law is impugned as being ultra-vires of the legislative competence,
what is required to be ascertained is the true character of the legislation.
If on such an examination it is found that the legislation is in substance
one on a matter assigned to the legislature then it must be held to be valid
in its entirety even though it might incidentally trench on matters which are
beyond its competence. In order to examine the true character of the
enactment, the entire Act, its object and scope and effect, is required to be
gone into. The question of invasion into the territory of another legislation
is to be determined not by degree but by substance. The doctrine of "pith
and substance' has to be applied not only in cases of conflict between the
powers of two legislatures but in any case where the question arises
whether a legislation is covered by particular legislative power in exercise
of which it is purported to be made.
8. Bearing in mind the aforesaid principles of rule of construction if the
provisions of the impugned statute, namely, the National Council of
Teacher Education Act, 1993 are examined and more particularly Section
17(4) thereof which we have already extracted, the conclusion is
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determination of standards in institutions for higher education within the
meaning of Entry 66 of List I of the Seventh Schedule. Both Entries 65 and
66 of List I empower the Central Legislature to secure the standards of
research and the standards of higher education. The object behind being
that the same standards are not lowered at the hands of the particular
State or States to the detriment of the national progress and the power of
the State legislature must be so exercised as not to directly encroach upon
power of Union under Entry 66. The power to coordinate does not mean
merely the power to evaluate but it means to harmonics or secure
relationship for concerted action. A legislation made for the purpose of
coordination of standards of higher education is essentially a legislation
by the Central legislature in exercise of its competence under Entry 66 of
List I of the Seventh Schedule and Sub-section (4) of Section 17 merely
provides the consequences if an institution offers a course or training in
teacher education in contravention of the Act though the ultimate
consequences under Sub-section (4) of Section 17 may be that unqualified
teacher will not be entitled to get an employment under the State or
Central Government or in a university or in a college. But by no stretch of
imagination the said provision can be construed to mean a law dealing
with employment as has been held by the High Court in the impugned
judgment.
9. In our considered opinion, the High Court committed gross error in
construing the provisions of Sub-section (4) of Section 17 of the Act to
mean that it is a legislation dealing with recruitment and conditions of
services of persons in the State service within the meaning of Proviso to
Article 309 of the Constitution. The High Court committed the aforesaid
error by examining the provisions of Sub-section (4) on its plain terms
without trying to examine the true character of the enactment which has to
be done by examining the enactment as a whole, its object and scope and
effect of the provisions. Even, the High Court does not appear to have
applied the doctrine of "pith and substance" and, thus, committed the
error in interpreting the provisions of Sub-section (4) of Section 17 to
mean to be a provision dealing with conditions of service of an employee
under the State Government.
10. In the aforesaid premises, the conclusion of the High Court that
Section 17(4) is ultra-vires being beyond the competence of the Union
legislature cannot be sustained and the said conclusion is accordingly set
aside. On examining the statute as a whole and on scrutiny of the object
and scope of the statute, we have no manner of doubt that even Sub-
section (4) of Section 17 is very much a law dealing with the coordination
and determination of standards in institution for higher education coming
within Entry 66 of the List III of the Seventh Schedule and, thus, the Union
legislature did have the competence for enacting the said provision.
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11. We are also of the further opinion that the de-recognition of the B.Ed
(Vacation Course) cannot be nullified on the ground of failure to comply
with the principle of natural justice. In the judgment under challenge, the
High Court has held also that when the institution is imparting the B.Ed.
(Vacation Course) then National Council for Teacher Education could not
have refused to recognise the said course. We are unable to accept this
reasoning inasmuch as the NCTE is an expert body created under the
provisions of the National Council for Teacher Education Act, 1993 and
the Parliament has imposed upon such expert body the duty to maintain
the standards of education, particularly, in relation to the teachers
education. Education is the backbone of every democracy and any
deterioration in the Standard of teaching in the B.Ed course would
ultimately produce sub-standard prospective teachers who would be
teaching in schools and colleges throughout the country and on whose
efficiency the future of the country depends. Inasmuch as the teacher
himself has received a sub-standard education it is difficult to expect from
him a higher standard of teaching to the students of the schools or other
institutions. It is from this perspective, the conclusion of an expert body
should not be lightly tinkered with by court of law without giving due
weightage to the conclusion arrived at by such expert body. From this
standpoint, we are of the considered opinion that the High Court
committed error in holding that there was no reasonable justification for
not recognising the B.Ed (Vacation course) which was being imparted by
the institution of Shah Goverdhan Lal Kabra Teachers College. In the
aforesaid premises, we set aside the impugned Judgment of High Court
and allow this appeal.”
36. Also, in State of Maharashtra v. Sant Dyaneshwar Shikshan
Shastra Mahavidyalaya and Ors. [(31.03.2006 - SC):
MANU/SC/1756/2006], it has been stated by the Hon'ble Supreme Court as
follows:
“20. The learned Counsel for various colleges supported Mr. Raju
Ramachandran on interpretation and application of the provisions of the
Act and final decision of the High Court. They, however, had taken other
contentions as well. According to them, the State has no locus standi to
challenge the decision of NCTE. The State cannot be said to be "person
aggrieved" or "aggrieved party" so as to challenge the decision of NCTE.
If the decision is against the college, it is only the college which has
'standing' to impugn the said decision. The High Court, therefore, in the
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submission of the learned Counsel for colleges, ought to have dismissed
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the petition filed by the State as not maintainable without entering into the
merits of the matter. It was also submitted that under the scheme of the
Constitution, particularly Articles 245, 246, 248 and 254 read with
Schedule VII thereof, only Parliament has power of co-ordination and
determination of standards in institutions for higher education or
research, scientific and technical institutions. State Legislatures have no
authority to enact any law in the field covered by Entry 66 of List I of
Schedule VII. Obviously, therefore, State Government has no authority to
take a policy decision in respect of the subjects covered by Entry 66 of List
I of Schedule VII for which a specific enactment has been made by
Parliament and under the said Act authority has been granted to NCTE to
take an action. As to Regulations and Guidelines, it was submitted that
under the Act power has been conferred on NCTE. It is, therefore, only
NCTE, which can consider the question and take appropriate decision
under the Act and it is not open to NCTE to make Regulations or frame
Guidelines empowering the State Government to undertake such exercise.
According to the counsel, therefore, even if Regulations are framed or
Guidelines made, they are not in consonance with the Act and there is
abdication of power by NCTE in favour of State Government which is hit
by the doctrine of impermissible and excessive delegation. Regulations
permitting such excessive / impermissible delegation must be declared
inconsistent with the parent Act as also ultra vires and unconstitutional.
The counsel also submitted that so-called policy decision of the State
Government is arbitrary and unreasonable and would be hit by Clause (g)
of Article 19(1) of the Constitution which allows all citizens to have the
right to practise any profession, or to carry on any occupation, trade or
business, otherwise legal and lawful. Article 19(6) cannot be invoked by
the State as total prohibition to open B.Ed. college can never be said to be
in the interest of general public and would not fall within "reasonable
restriction" permissible under the said provision. It is also violative of
Article 21A as inserted by the Constitution (Eighty-sixth Amendment) Act,
2002. Over and above constitutional inhibitions, the order dated 28th
December, 2004 is arbitrary and unreasonable inasmuch as
considerations which weighed with the State Government relating to
employment of B.Ed. teachers were totally irrelevant and extraneous.
Taking education and getting employment are two different things. The
colleges are not claiming any grant or financial aid from the State, nor do
they give any assurance or guarantee to students admitted to B.Ed.
colleges that the State will give them employment. It is, therefore, not
open to the State Government to refuse to grant NOC because the State is
not able to give employment to teachers after they get B.Ed. degree. There
are several Arts, Commerce and Science colleges in the State in which
students take education and get degrees of B.A., B.Com. or B.Sc. It is not
even the case of the State that all those students got employment at one or
the other place. Thus, the so-called policy decision of the State
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was also submitted by the respondents that they had made huge
investments and if at this stage they will be refused permission,
irreparable injury and loss would be caused to them. Finally, it was
submitted that since the decision of NCTE is legal, lawful and in
consonance with the provisions of the Act as also consistent with the law
laid down by this Court in several judgments, the order passed by the
High Court deserves to be upheld by allowing the institutions to open
B.Ed. colleges from the year 2005-06 as has been done by NCTE. If this
Court considers it appropriate, specific direction may be issued to the
respondents to conduct extra classes/lectures and to hold
supplementary/additional examination. Once the action of NCTE is found
to be lawful and the decision of the State Government bad, no prejudice
should be caused to the institutions.
21. Before we deal with the contentions of the parties, it would be
appropriate if we refer to the relevant provisions of law. Part XI of the
Constitution deals with relations between Union and States. Chapter I
thereof relates to legislative relations and distribution of legislative
powers. Article 245 enables Parliament to make laws for the whole or any
part of territory of India. Similarly, a Legislature of a State has power to
make laws for the whole or any part of the State. Article 246 provides for
distribution of legislative power between Parliament and Legislatures of
States and reads thus:
246. Subject-matter of laws by Parliament and by the Legislatures
of States-(1) Notwithstanding anything in clauses (2) and (3),
Parliament has exclusive power to make laws with respect to any
of the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament and,
subject to clause (1), the Legislature of any State also, have power
to make laws with respect to any of the matters enumerated in List
III in the Seventh Schedule (in this Constitution referred to as the
"Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State has
exclusive power to make laws for such State or any part thereof
with respect to any of the mattes enumerated in List II in the
Seventh Schedule (in this Constitution referred to as the 'State
List').
(4) Parliament has power to make laws with respect to any matter
for any part of the territory of India not included [in a State]
notwithstanding that such matter is a matter enumerated in the
State List.
Whereas Article 248 provides for residuary power of Legislature,
Article 254 covers cases of inconsistency between laws made by
Parliament and by Legislatures of States.
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22. Schedule VII to the Constitution comprises of three Lists: (i) Union
List, (ii) State List and (iii) Concurrent List. While exclusive power to
enact laws lies with Parliament under List I, the power to enact laws
under List II is with the State Legislatures. In respect of subjects falling
under List III, it is open to Parliament as well as State Legislatures to
enact laws subject to the provisions of Articles 254.
22.1 Entries 63 to 66 of List I of Schedule VII relate to higher education.
Entry 66 which is relevant reads thus:
66. Co-ordination with determination of standards in institutions for
higher education or research and scientific and technical intuitions
22.2 Entry 11 of List II inter alia included university education. It was
omitted by the Constitution (42nd Amendment) Act, 1976 and became part
of Entry 25 of List III (Concurrent List). Entry 25, as originally stood
read as under:
25. The vocational and technical training of labour.
After the amendment of 1976, the Entry as it stands now reads thus:
25. Education, including technical education medical education and
universities, subject to the provisions of entries 63, 64, 65 and 66 of List
I; vocational and technical training of labour.
23. The National Council for Teacher Training Act, 1993 has been
enacted by Parliament and deals with teacher's education. It came into
force with effect from July 1, 1995. The Preamble of the Act is relevant
and reads thus:
An Act to provide for the establishment of a National Council for
Teacher Education with a view to achieving planned and co-
ordinated development of the teacher education system throughout
the country, the regulation and proper maintenance of norms and
standards in the teacher education system and for matters
connected therewith.
24. Section 2 is definition clause wherein various terms have been
defined. "Council" is defined as the National Council for Teacher's
Education established under Sub-section (1) of Section 3 of the Act.
"Institution" has been defined as "an institution which offers courses for
training in teacher's education". "Teacher education" is defined thus:
Teacher education means programmes of education, research or training
of persons for equipping them to teach at pre-primary, primary,
secondary and senior secondary stages in schools, and includes non-
formal education, part-time education, adult education and
correspondence education.”
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37. In Maa Vaishno Devi Mahila Mahavidyalaya v. State of U.P. and
Ors. [(13.12.2012 - SC) : MANU/SC/1102/2012], it has been held by the
Hon'ble Supreme Court that
“43.Now, we may examine some of the judgments of this Court which
have dealt with these aspects. In the case of State of Tamil Nadu and Anr.
v. Adhiyaman Educational and Research Institute and Ors.
MANU/SC/0709/1995 : (1995) 4 SCC 104, the Supreme Court while
discussing various aspects in regard to constitutional validity of Tamil
Nadu Private College Regulation Act, 1976 and the provisions of the All
India Council for Technical Education Act clearly spelled out the
preferential role of the Council as under:
22. The aforesaid provisions of the Act including its preamble
make it abundantly clear that the Council has been established
under the Act for coordinated and integrated development of the
technical education system at all levels throughout the country and
is enjoined to promote qualitative improvement of such education
in relation to planned quantitative growth. The Council is also
required to regulate and ensure proper maintenance of norms and
standards in the technical education system. The Council is
further to evolve suitable performance appraisal system
incorporating such norms and mechanisms in enforcing their
accountability. It is also required to provide guidelines for
admission of students and has power to withhold or discontinue
grants and to de-recognise the institutions where norms and
standards laid down by it and directions given by it from time to
time are not followed. This duty and responsibility cast on the
Council implies that the norms and standards to be set should be
such as would prevent a lopsided or an isolated development of
technical education in the country.
...It is necessary to bear this aspect of the norms and standards to
be prescribed in mind, for a major debate before us centered
around the right of the States to prescribe standards higher than
the one laid down by the Council. What is further necessary to
remember is that the Council has on it representatives not only of
the States but also of the State Universities. They have, therefore,
a say in the matter of laying down the norms and standards which
may be prescribed by the Council for such education from time to
time. The Council has further the Regional Committees, at
present, at least, in four major geographical zones and the
constitution and functions of the Committees are to be prescribed
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has the representation of the States and the provisional bodies on
it which have also representation from different States and
regions, they have a say in the constitution and functions of these
Committees as well....
44. Further, the Court, while noticing the inconsistency between the
Central and State statutes or the State authorities acting contrary to the
Central statute, held as under:
41. (vi) However, when the situations/seats are available and the
State authorities deny an applicant the same on the ground that
the applicant is not qualified according to its standards or
qualifications, as the case may be, although the applicant satisfies
the standards or qualifications laid down by the Central law, they
act unconstitutionally. So also when the State authorities de-
recognise or disaffiliate an institution for not satisfying the
standards or requirement laid down by them, although it satisfied
the norms and requirements laid down by the Central authority,
the State authorities act illegally.
XXX
43. As a result, as has been pointed out earlier, the provisions of
the Central statute on the one hand and of the State statutes on the
other, being inconsistent and, therefore, repugnant with each
other, the Central statute will prevail and the de-recognition by the
State Government or the disaffiliation by the State University on
grounds which are inconsistent with those enumerated in the
Central statute will be inoperative.
45. Still, in another case of Jaya Gokul Educational Trust v.
Commissioner and Secretary to Government Higher Education Deptt.,
Thiruvananthapuram, Kerala State and Anr. MANU/SC/0269/2000 :
(2000) 5 SCC 231, the Court reiterating the above principle, held as
under:
22. As held in the Tamil Nadu case AIR 1995 SCW 2179, the
Central Act of 1987 and; in particular, Section 10(K) occupied the
field relating the `grant of approvals' for establishing technical
institutions and the provisions of the Central Act alone were to be
complied with. So far as the provisions of the Mahatma Gandhi
University Act or its statutes were concerned and in particular
statute 9(7), they merely required the University to obtain the
`views' of the State Government. That could not be characterised
as requiring the "approval" of the State Government. If, needed,
the University statute could be so interpreted, such a provision
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the provisions of Section 10(K) of the AICTE Act, 1987 and would
again be void. As pointed out in the Tamil Nadu case there were
enough provisions in the Central Act for consultation by the
Council of the AICTE with various agencies, including the State
Governments and the Universities concerned. The State Level
Committee and the Central Regional Committees contained
various experts and State representatives. In case of difference of
opinion as between the various consultees, the AICTE would have
to go by the views of the Central Task Force. These were sufficient
safeguards for ascertaining the views of the State Governments
and the Universities. No doubt the question of affiliation was a
different matter and was not covered by the Central Act but in the
Tamil Nadu case, it was held that the University could not impose
any conditions inconsistent with the AICTE Act or its Regulation
or the conditions imposed by the AICTE. Therefore, the procedure
for obtaining the affiliation and any conditions which could be
imposed by the University, could not be inconsistent with the
provisions of the Central Act. The University could not, therefore,
in any event have sought for `approval' of the State Government.
46. This view of the Supreme Court was reiterated with approval by a
larger Bench of the Supreme Court in the case of State of Maharashtra v.
Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Ors.
MANU/SC/1756/2006 : (2006) 9 SCC 1. While discussing in detail the
various legal issues in relation to grant of affiliation/ recognition to the
institution and permission to start a new college, the Court held as under:
53. The Court then considered the argument put forward on behalf
of the State that while it would be open for the Council to lay down
minimum standards and requirements, it did not preclude the State
from prescribing higher standards and requirements.
54. Negativing the contention, the Court quoted with approval the
following observations of B.N. Rau, J. in G.P. Stewart v. Brojendra
Kishore Roy Chaudhury (MANU/WB/0202/1939 : AIR 1939 Cal.
628 : 43 CWN 913):
It is sometimes said that two laws cannot be said to be properly
repugnant unless there is direct conflict between them, as when one
says `do' and the other 'don't', there is no true repugnancy,
according to this view, if it is possible to obey both the laws. For
reasons which we shall set forth presently, we think that this is too
narrow a test; there may well be cases of repugnancy where both
laws say `don't' but in different ways. For example, one law may
say `no person shall sell liquor by retail, that is, in quantities of
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person shall sell liquor by retail, that is, in quantities of less than
ten gallons at a time'. Here, it is obviously possible to obey both
laws, by obeying the more stringent of the two, namely, the second
one; yet it is equally obvious that the two laws are repugnant, for
to the extent to which a citizen is compelled to obey one of them,
the other, though not actually disobeyed, is nullified.
XXX
64. Even otherwise, in our opinion, the High Court was fully
justified in negativing the argument of the State Government that
permission could be refused by the State Government on "policy
consideration". As already observed earlier, policy consideration
was negatived by this Court in Thirumuruga Kirupananda Variyar
Thavathiru Sundara Swamigal Medical Educational and
Charitable Trust v. State of Tamil Nadu MANU/SC/0601/1996 :
1996 DGLS (soft) 327 : 1996 (3) SCC 15 : JT 1996 (2) SC. 692 as
also in Jaya Gokul Educational Trust.
XXX
74. It is thus clear that the Central Government has considered the
subject of secondary education and higher education at the
national level. The Act of 1993 also requires Parliament to
consider teacher-education system "throughout the country".
NCTE, therefore, in our opinion, is expected to deal with
applications for establishing new Bed colleges or allowing increase
in intake capacity, keeping in view the 1993 Act and planned and
coordinated development of teacher-education system in the
country. It is neither open to the State Government nor to a
university to consider the local conditions or apply "State policy"
to refuse such permission. In fact, as held by this Court in cases
referred to hereinabove, the State Government has no power to
reject the prayer of an institution or to overrule the decision of
NCTE. The action of the State Government, therefore, was
contrary to law and has rightly been set aside by the High Court.
47. The above enunciated principles clearly show that the Council is the
authority constituted under the Central Act with the responsibility of
maintaining education of standards and judging upon the infra-structure
and facilities available for imparting such professional education. Its
opinion is of utmost importance and shall take precedence over the views
of the State as well as that of the University. The concerned Department
of the State and the affiliating University have a role to play but it is
limited in its application. They cannot lay down any guideline or policy
which would be in conflict with the Central statute or the standards laid
down by the Central body. State can frame its policy for admission to
such professional courses but such policy again has to be in conformity
with the directives issued by the Central body. In the present cases, there
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State grants its approval, and University its affiliation, for increased
intake of seats or commencement of a new course/college, its directions
should not offend and be repugnant to what has been laid down in the
conditions for approval granted by the Central authority or Council.
What is most important is that all these authorities have to work ad idem
as they all have a common object to achieve i.e. of imparting of education
properly and ensuring maintenance of proper standards of education,
examination and infrastructure for betterment of educational system.
Only if all these authorities work in a coordinated manner and with
cooperation, will they be able to achieve the very object for which all
these entities exist.
48. The NCTE Act has been enacted by the Parliament with reference to
Entry 66 of List I of Schedule VII of the Constitution. There is no such
specific power vested in the State Legislature under List II of the Seventh
Schedule. Entry 25 of List III of the Seventh Schedule is the other Entry
that provides the field for legislation both to the State and the Centre, in
relation to education, including technical education, medical education
and Universities; vocational and technical training and labour. The field
is primarily covered by the Union List and thus, the State can exercise
any legislative power under Entry 25, List III but such law cannot be
repugnant to the Central law. Wherever the State law is irreconcilable
with the Central law, the State Law must give way in favour of the Central
law to the extent of repugnancy. This will show the supremacy of the
Central law in relation to professional education, including the teacher
training programmes. In the case of Medical Council of India v. State of
Karnataka MANU/SC/0424/1998 : (1998) 6 SCC 131, the Court had the
occasion to discuss this conflict as follows:
27. The State Acts, namely, the Karnataka Universities Act and
the Karnataka Capitation Fee Act must give way to the Central
Act, namely, the Indian Medical Council Act, 1956. The
Karnataka Capitation Fee Act was enacted for the sole purpose of
Regulation in collection of capitation fee by colleges and for that,
the State Government is empowered to fix the maximum number
of students that can be admitted but that number cannot be over
and above that fixed by the Medical Council as per the
Regulations. Chapter IX of the Karnataka Universities Act, which
contains provision for affiliation of colleges and recognition of
institutions, applies to all types of colleges and not necessarily to
professional colleges like medical colleges. Sub-section (10) of
Section 53, falling in Chapter IX of this Act, provides for
maximum number of students to be admitted to courses for
studies in a college and that number shall not exceed the intake
fixed by the university or the Government. But this provision has
again to be read subject to the intake fixed by the Medical Council
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primarily responsible for fixing standards of medical education
and overseeing that these standards are maintained. It is the
Medical Council which is the principal body to lay down
conditions for recognition of medical colleges which would
include the fixing of intake for admission to a medical college. We
have already seen in the beginning of this judgment various
provisions of the Medical Council Act. It is, therefore, the Medical
Council which in effect grants recognition and also withdraws the
same. Regulations under Section 33 of the Medical Council Act,
which were made in 1977, prescribe the accommodation in the
college and its associated teaching hospitals and teaching and
technical staff and equipment in various departments in the
college and in the hospitals. These Regulations are in
considerable detail. Teacher-student ratio prescribed is 1 to 10,
exclusive of the Professor or Head of the Department.
Regulations further prescribe, apart from other things, that the
number of teaching beds in the attached hospitals will have to be
in the ratio of 7 beds per student admitted. Regulations of the
Medical Council, which were approved by the Central
Government in 1971, provide for the qualification requirements
for appointments of persons to the posts of teachers and visiting
physicians/surgeons of medical colleges and attached hospitals.
XXX
29. A medical student requires gruelling study and that can be
done only if proper facilities are available in a medical college
and the hospital attached to it has to be well equipped and the
teaching faculty and doctors have to be competent enough that
when a medical student comes out, he is perfect in the science of
treatment of human beings and is not found wanting in any way.
The country does not want half-baked medical professionals
coming out of medical colleges when they did not have full
facilities of teaching and were not exposed to the patients and
their ailments during the course of their study. The Medical
Council, in all fairness, does not wish to invalidate the
admissions made in excess of that fixed by it and does not wish to
take any action of withdrawing recognition of the medical
colleges violating the Regulation. Henceforth, however, these
medical colleges must restrict the number of admissions fixed by
the Medical Council. After the insertion of Sections 10A, 10B and
10C in the Medical Council Act, the Medical Council has framed
Regulations with the previous approval of the Central
Government which were published in the Gazette of India dated
29-9-1993 (though the notification is dated 20-9-1993). Any
medical college or institution which wishes to increase the
admission capacity in MBBS/higher courses (including
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Government for permission along with the permission of the State
Government and that of the university with which it is affiliated
and in conformity with the Regulations framed by the Medical
Council. Only the medical college or institution which is
recognised by the Medical Council can so apply.
49. A Constitution Bench of this Court in the case of Dr. Preeti Srivastava
and Anr. v. State of Madhya Pradesh and Ors. MANU/SC/1021/1999 :
(1999) 7 SCC 120, while dealing with the provisions of the Medial
Council of India Act and referring to Entry 25 of List III and Entry 66 of
List I with reference to the Articles 245, 246, 254 and 15(4) of the
Constitution, spelled out the supremacy of the Council and the provisions
of the Central Act, particularly in relation to the control and Regulation
of higher education. It also discussed providing of the eligibility
conditions and qualifications and determining the standards to be
maintained by the Institutions. The Court in paragraph 36 of the
judgment held as under:
36. It would not be correct to say that the norms for admission
have no connection with the standard of education, or that the
rules for admission are covered only by Entry 25 of List III.
Norms of admission can have a direct impact on the standards of
education. of course, there can be rules for admission which are
consistent with or do not affect adversely the standards of
education prescribed by the Union in exercise of powers under
Entry 66 of List I. For example, a State may, for admission to the
postgraduate medical courses, lay down qualifications in addition
to those prescribed under Entry 66 of List I. This would be
consistent with promoting higher standards for admission to the
higher educational courses. But any lowering of the norms laid
down can and does have an adverse effect on the standards of
education in the institutes of higher education. Standards of
education in an institution or college depend on various factors.
Some of these are:
(1) the calibre of the teaching staff;
(2) a proper syllabus designed to achieve a high level of
education in the given span of time;
(3) the student-teacher ratio;
(4) the ratio between the students and the hospital beds available
to each student;
(5) the calibre of the students admitted to the institution;
(6) equipment and laboratory facilities, or hospital facilities for
training in the case of medical colleges;
(7) adequate accommodation for the college and the attached
hospital; and
(8) the standard of examinations held including the manner in
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performance is judged.”
38. As such, the principle that the field of teacher education is the
exclusive preserve of Parliamentary legislation, has been stressed upon in all
cases where the NCTE act has been considered, and it has been held that all
issues pertaining to teacher education will fall within Entry 66 of List I and
hence, within the legislative competence of Parliament. In the present case, the
issue relates to school education where the NCTE has been designated as the
authority to prescribe the essential eligibility criteria for appointment to the
post of graduate teachers. In this context, the judgement of the Hon'ble
Supreme Court cited supra is relevant to point out that the essential eligibility
criteria prescribed by the designated authority under the RTE Act cannot be
treated as one that deals with the recruitment and conditions of service of
persons in a State under Article 309 of the Constitution, but is one which is
made in exercise of the powers conferred upon the NCTE by a parliamentary
legislation in the subject of teacher education which falls within Entry 66 of
List I. The above judgement thus squarely covers the issue and once, it is
established that the subject matter is one that falls within the legislative head of
‘education’ as well as ‘higher education’, and when Parliament has made a law
governing the said field, it is not open to the State government in exercise of its
powers under Article 309 to issue Rules that alter, modify, or dilute the
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standards or in any manner tamper with the same except in accordance with
the provisions relating to the constitutional provisions governing the
overcoming of repugnancy between Parliamentary and State legislation, which
again is open only in cases where the legislative head falls under the
Concurrent List. In the present case, as the subject – ‘Teacher Education’ falls
within the domain of parliamentary legislation, seeking to set uniformly high
standards for all teachers throughout the country, under the RTE Act, 2009, the
further question of the State coming up with a repugnant law will not arise.
39. Further, we find force in the submissions of the counsel for the writ
petitioner that the impugned Rules are a piece of colourable legislation to the
extent that they seek to tweak the mandate of the NCTE Regulations that
applies the minimum eligibility criteria to all appointments to BT Assistants,
irrespective of the mode of appointment. The doctrine of Colourable Legislation
came to be examined by a Constitution Bench of this Court in K.C. Gajapati
Narayan Deo and Ors. v. State of Orissa [(1954) 1 SCR 1], in which, it was
held that the doctrine of colourable legislation does not involve any question of
'bona fides' or 'mala fides' on the part of the Legislature. The whole doctrine
revolves around the question of competence of a particular Legislature to enact
a particular law. If the Legislature is competent to pass a particular law, the
motives, which impelled it to act, are really irrelevant. On the other hand, if the
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Legislature lacks competency, the question of motive does not arise at all.
Whether a statute is constitutional or not, is thus always a question of power
(Vide Cooley's Constitutional Limitations, Vol. 1, p. 379). The crucial question
to be asked is whether there has been a transgression of legislative authority as
conferred by the Constitution which is the source of all powers as also the
separation of powers. A legislative transgression may be patent, manifest or
direct or may also be disguised, covert and indirect. It is to this latter class of
cases that the expression 'colourable legislation' has been applied in certain
judicial pronouncements. The expression 'colourable legislation' means that
although apparently a Legislature in passing a statute which purports to act
within the limits of its powers, yet, in substance and in reality, it transgresses
those powers, the transgression being veiled by what appears, on proper
examination, to be a mere pretence or disguise. The discerning test is to find
out the substance of the act and not merely the form or outward appearance. If
the subject matter in substance is something which is beyond the legislative
power, the form in which the law is clothed, would not save it from
condemnation. The constitutional prohibitions cannot be allowed to be violated
by employing indirect methods. To test the true nature and character of the
challenged legislation, the investigation by the Court should be directed
towards examining (i) the effect of the legislation; and (ii) its object,
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purpose or design. While doing so, the Court cannot enter into investigating the
motives, which induced the Legislature to exercise its power.
40. The abovesaid view was reiterated by Larger Bench (Seven Judges)
in R.S. Joshi, S.T.O. v. Ajit Mills Ltd. [(1978) 1 SCR 338], and by
Constitution Bench in Naga People's Movement of Human Rights v. Union
of India [AIR 1998 SC 465] and has been the law applied in a catena of
decisions thereafter.
41. In order to further support her case, the learned counsel for the
petitioners also relied upon the NCTE Regulations of the year 2001 which
make it rather clear that even for movement from one level to a higher level
post, the minimum qualifications as given or prescribed in the concerned
promotional level post would also require to be fulfilled. If there was any doubt
on this score, the said Regulations bring out the intention of the NCTE in this
regard and the said principle applied in consonance with the NCTE
Regulations, 2010, prescribing qualifications and eligibility criteria for
Graduate Assistants, without making any distinction in the qualifications so
prescribed on the basis of mode/channel of appointment, will lead to the
inevitable conclusion that as on date, any person aspiring to be appointed as a
Graduate Assistant/BT Assistant, by whatever mode of appointment, be it by
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direct recruitment, promotion or transfer, would have to necessarily fulfil the
eligibility criteria as prescribed by the NCTE Regulations, 2010, under which a
pass in TET is clearly mandatory. It is also seen from the additional documents
filed in the writ petition impugning the Special Rules that in several other
States where the NCTE notifications have been adopted, the essential eligibility
criteria of passing TET has been stressed upon in all appointments irrespective
of the channel of appointment that is by direct recruitment or by promotion.
Further, in an identical case before the Division Bench of the Allahabad High
Court in Subedar Yadav and Ors. v. State of U.P. and Ors. [Special Appeal
no. 737 of 2018 dated 04.09.2018], it has been pleased to hold that the
requirement of passing TET is mandatory for selection, promotion or for any
other mode of appointment and it is not only confined to selection from open
recruitment.
42. The reliance of the appellants on the order passed by the Hon'ble
Supreme Court in C. A. Nos. 6186-6187 of 2008 dated 05.09.2013 that the
teachers who were appointed prior to G.O. Ms. No. 181 dated 15.11.2011 will
remain protected, is misplaced in the context of the present issue. As rightly
held by the Learned Judge in the order under appeal, the said appeals before
the Hon'ble Supreme Court arose out of different facts and circumstances,
where essentially the question was with respect to the initial methods of
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recruitment and the zone of consideration for appointment, that is, whether
there should be a state-wide selection or district-wise selection and it is in those
circumstances that after the coming into force of the RTE Act, the Hon'ble
Supreme Court while disposing of the said appeals, had held that those who
had already been appointed prior to the coming into force of G.O. Ms. No.
181 dated 15.11.2011 shall remain protected. This observation/ direction of the
Hon’ble Supreme Court cannot, by any stretch of imagination, be deemed to be
understood as meaning that all those appointed prior to the date of the said
G.O. Ms. No. 181 dated 15.11.2011 would not have to pass the Teacher
Eligibility Test even if they aspire for a promotion to the higher post of
Graduate Teacher, when at present the qualifications prescribed by the NCTE
require a pass in TET, apart from the other essential educational qualifications.
As such, the contention that the observation in the civil appeals would exempt
the writ appellants from passing the teacher eligibility test while seeking for
promotion to the postgraduate teacher, is hereby negatived.
43. At the risk of repetition, it must be stated that while the NCTE
notifications had clearly protected those who had already been appointed prior
to the date of the notification from passing TET, there is nothing in the said
notification which affords an exemption from passing TET when they aspire for
fresh appointments by way of direct recruitment, promotion or otherwise to the
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post of Graduate Teacher. The principle of interpretation that when the
language of the statute is clear and unambiguous, it is not for the courts to
substitute their opinion or inject their philosophy into the provisions, is trite
law and the same is to be applied. The principle of literal interpretation would
lead to the inevitable conclusion that only those who have been appointed prior
to the date of issuance of the NCTE notifications are protected and exempted
from passing TET for continuance in the respective posts against which they
have been appointed. Hence, we conclude that those appointed prior to
29.07.2011 and in order to extend the benefit to the date of passing of G.O.
Ms. No. 181 dated 15.11.2011, those appointed prior to that date,
i.e.15.11.2011 either in the post of Secondary Grade teacher or Graduate
Teacher/BT Assistant are exempted from passing TET for continuance in the
said posts. However, for promotion to the post of Graduate Teacher from the
post of Secondary Grade teacher or appointment to the post of Secondary
Grade teacher or Graduate teacher/BT Assistant by any channel or mode of
appointment by either direct recruitment or promotion or by transfer, a pass in
Teacher Eligibility Test is mandatory in accordance with the RTE Act read with
the NCTE notifications.
44. In the result, the writ petitions challenging the vires of the impugned
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Special Rules are hereby allowed, and the Special Rules for the Tamilnadu
School Educational Subordinate Service issued in GO Ms. No.13 School
Education (S.E3(1)) Department dated 30.01.2020 insofar as it prescribes “a
pass in Teacher Eligibility Test (TET)” only for direct recruitment for the post
of BT Assistant and not for promotion thereto in Annexure-I (referred to in
Rule 6) is illegal being ultravires the Right of Children to Free and
Compulsory Education Act 2009 and the Rules framed thereunder and the
NCTE Notifications dated 23.08.2010 and 29.07.2011. Accordingly, W.A.No.
2795/2022 is hereby dismissed.
B. WA Nos. 313, 833, 1891, 2050, 2082, 2617 of 2022
RIGHT OF THOSE APPOINTED PRIOR TO THE RTE ACT, NCTE
NOTIFICATIONS TO CONTINUE IN SERVICE WITHOUT INSISTENCE
ON TET.
45. The next question relates to whether those already in service prior to
the commencement of the Act are obliged to acquire a pass in TET for
continuance in service as Secondary Grade Teachers without seeking any
further promotion. Here, a reading of Section 23 of the RTE Act would reveal
the following:
(a) The sub-clause (1) to Section 23 of the Act provides that any person
would be eligible “for appointment” as a teacher provided he possesses
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minimum qualification as laid down by an academic authority authorized
by the central government namely NCTE. As a matter of fact, pursuant
to Section 23 of the Act, a notification was issued by NCTE dated
23.08.2010 that teachers shall be eligible for appointment from among
those who have passed Teachers Eligibility Test (TET).
(b) The expression “for appointment” employed in Subsection (1) to
Section 23 of the Act is indicative of the fact that the provision was
intended to impose conditions for appointments of teachers to be
appointed subsequent to the introduction of the Act and notification.
(c) Subsection (2) to Section 23 of the Act provides for certain relaxation
in cases of States where there are no adequate institutions offering
courses or training in teacher education or States where there are no
adequate number of teachers possessing minimum qualification as laid
down in subsection (1) to section 23 viz., TET. In such cases the central
government may by notification relax the minimum qualifications
required for appointment as a teacher for a period not exceeding five
years.
(d) It is important to note that Subsection (2) to Section 23 of the Act
also governs future appointments and does not intend to touch upon the
rights of teachers or impair the rights of teachers who are already in
service to continue in service.
46. Reliance was sought to be placed on the proviso to sub section (2) to
Section 23 of the Act to suggest that the qualification test is not only with
reference to teachers who are to be appointed but also teachers who were
already in service ought to pass TET test to remain in service. This is in view of
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the fact that the proviso “a teacher who had at the commencement of this Act
does not possess minimum qualification would be required to acquire the
minimum qualification within a period of five years”. The expression “teacher”
here would not include those, who are already in service but is meant to cover
candidates who intend or who desire to be appointed as teachers. This would
be evident from a reading of sub section (2) to Section 23 of the Act which
provides that “teachers possessing minimum qualification” which qualifies the
expression “for appointment” as a teacher. It is thus clear that the expression
“teacher” employed in Section 23 of the Act does not cover teachers who are
already in appointment/in service but those who intend or desire to be
appointed as teachers.
47. Secondly, a proviso is normally only a carve out or an exception to
the main provision and there is no reason to take a different view. There is
consistency between the proviso and sub section (2) to section 23 inasmuch as
both look to a period of five years for the purpose of acquiring a qualification
viz., passing the TET test within a period of five years, under the circumstances
set-out therein.
48. Any doubt as to whether the first proviso would govern teachers who
are already in service is put to rest through the proviso introduced by the Right
of Children to Free and Compulsory Education (Amendment) Act, 2017, which
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reads as under;
“Provided further that every teacher appointed or in position as on the
31st March, 2015, who does not possess minimum qualifications as laid
down under sub-section (1), shall acquire such minimum qualifications
within a period of four years from the date of commencement of the Right
of Children to Free and Compulsory Education (Amendment) Act, 2017
(24 of 2017)”
49. A reading of the above proviso would make it clear that every teacher
appointed or in position as on 31.04.2015 and not possessing the minimum
qualification shall acquire such minimum qualification within a period of four
years from 2017. The expression “for appointment” employed in sub sections
(1) and (2) to Section 23 when contrasted with every teacher “appointed”
would clearly indicate the fact that when the provisions were first introduced in
2010 they were only looking at future appointments. However, the proviso
introduced in the year 2017 also looks to teachers “who are already in
service”. The expression “for appointment” is indicative of the fact that the
teachers shall qualify for appointment which is to be made in future and
therefore it has to be prospective. If so, sub section (2) to Section 23 of the Act
having found to cover appointments made after the introduction, the proviso
must also apply only to the said class of candidates/teachers covered by sub
section (2) to Section 23 of the Act.
50. Section 23 of the Act would make it clear that the intention of the
Legislature to prescribe minimum qualifications for teachers was made while
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being alive to the fact that there may be certain States which do not have
adequate institutions offering courses or training in teacher education, or where
teachers possessing minimum qualifications are not available in sufficient
numbers. It is in this context that the Proviso to Section 23(2) states that a
teacher who, at the commencement of this Act (understood to mean those
appointed after the commencement of the Act), does not possess minimum
qualifications as laid down under sub section (1), shall acquire such minimum
qualification from five years. The legislature therefore has made it mandatory
for every teacher who at the time of commencement of the Act does not possess
minimum qualifications as prescribed under the Act, to acquire the said
minimum qualifications within a period of 5 years. The emphasis is on the
words “at the commencement of this Act” and hence, it needs to be examined
whether the legislature intended to apply the new qualifications to teachers
who are already in service at the commencement of the Act, or only to those to
be appointed after the commencement of the Act. Pursuant to the provisions of
the Act, the National Council Teacher Education (NCTE) issued a notification
dated 23.08.2010 prescribing the minimum qualifications for teachers from
Classes I to V- ‘Secondary Grade Teachers’ as well as for Classes VI to VIII-
‘BT Assistant’. Apart from prescribing the minimum educational qualifications,
the important eligibility criteria added by way of the notification is – “Pass in
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Teacher Eligibility Test (TET)”. This notification stated under paragraph 4 that
teachers appointed prior to the date of this notification need not acquire the
minimum qualification prescribed by the notifications. Under para 5 it has been
stated that those teachers appointed after date of this notification but in whose
case the process of appointment was initiated prior to the date of this
notification would also be exempt from acquiring the minimum qualifications
including Teacher Eligibility Test (TET) as prescribed under Para 1 of the
notification. The said Para 5 of the notification dated 23.08.2010 came to be
amended by the notification of the NCTE dated 29.07.2011 whereby Para 5
was substituted by Para 5(a) with the same provision while shifting the cut off
date from 23.08.2010 to 29.07.2011, meaning thereby that where the
Government, Local Authority or School issued the advertisement to initiate the
process of appointment prior to the date of this notification i.e., 29.07.2011
such appointments may also be made in accordance with the NCTE
Regulations 2001 i.e., exempting them from acquiring TET for appointment as
the teacher.
51. At this juncture, we may refer to some of the legal principles relating
to the issue involved herein, qua the nature of employment under the
Government and interpretation of provisions in a manner as to cause least
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hardship to existing employees, the rule against retrospectivity, and in this
context, whether the possession of TET is mandatory for those, who were
already appointed as secondary grade teachers prior to the notification dated
29.07.2011 for continuance in service and getting annual increment, incentive,
etc. They are as follows:
Employment by State and its instrumentalities as a right under Article 16
52. We may now examine the nature of state employment and the legal
status of the teachers appointed by the State. Article 16 of the Constitution
provides that there should be equality of opportunity for all citizens for the
matters relating to employment or appointment to any office under the state.
Public employment in a sovereign socialist secular Democratic Republic has to
be a set down by the Constitution and the laws made under the constitution
vis-à-vis the employment by the government and its instrumentalities on the
basis of procedure established on that behalf.
53. The expression employment or appointment covers not only the
initial appointment but also attributes of service like promotion and age of
superannuation etc. The expression ‘matters relating to employment’ used in
Article 16 is not confined to initial matters prior to the act of employment but
to cover all matters in relation to employment both prior and subsequent. It
would cover salary, leave, gratuity, pension, superannuation, promotion and
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termination of employment as held in Girish Jayanthilal Vaghela [2006 2
SCC 482] and cited with approval by Balasubramanyan, J in State of
Karnataka v. Umadevi [(2006) 4 SCC 1)].
54. In Union Public Service Commission v. Girish Jayanti Lal
Vaghela [(2006) 2 SCC 482], the Apex court observed that:
“12. Article 16 which finds place in Part III of the Constitution relating
to fundamental rights provides that there shall be equality of opportunity
for all citizens in matters relating to employment or appointment to any
office under the State. The main object of Article 16 is to create a
constitutional right to equality of opportunity and employment in public
offices. The words ‘employment’ or ‘appointment’ cover not merely the
initial appointment but also other attributes of service like promotion and
age of superannuation, etc. The appointment to any post under the State
can only be made after a proper advertisement has been made inviting
applications from eligible candidates and holding of selection by a body
of experts or a specially constituted committee whose members are fair
and impartial through a written examination or interview or some other
rational criteria for judging the inter se merit of candidates who have
applied in response to the advertisement made. A regular appointment to
a post under the State or Union cannot be made without issuing
advertisement in the prescribed manner which may in some cases include
inviting applications from the employment exchange where eligible
candidates get their names registered. Any regular appointment made on
a post under the State or Union without issuing advertisement inviting
applications from eligible candidates and without holding a proper
selection where all eligible candidates get a fair chance to compete would
violate the guarantee enshrined under Article 16 of the Constitution.”
State Employment is not mere contract
55. The employment in the state is not only a contract, but also a status
acquired by the employee. The salary and duration of work by the government
servant are governed by statute or statutory rules which may be framed by the
Government. In this context, the following decisions of the Hon'ble Supreme
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court are of relevance and the observations made thereunder are usefully
extracted below:
(i) Dinesh Chandra Sangma v. State of Assam [(1977) 4 SCC 441]
”The above is a special provision which deals with a special situation
where a contract is entered into between the Government and a person
appointed under the Constitution to hold a civil post. But simply because
there may be, in a given case, a contractual employment, as envisaged
under Article 310(2) of the Constitution, the relationship of all other
government servants, as a class, and the Government, cannot be said to
be contractual. It is well-settled that except in the case of a person who
has been appointed under a written contract, employment under the
Government is a matter of status and not of contract even though it may
be said to have started, initially, by a contract in the sense that the offer
of appointment is accepted by the employee.”
(ii) Roshan Lal Tandon v. Union of India [(1968) 1 SCR 185]
“It is true that the origin of Government service is contractual. There is
an offer and acceptance in every case. But once appointed to his post or
office the Government servant acquires a status and his rights and
obligations are no longer determined by consent of both parties, but by
statute or statutory rules which may be framed and altered unilaterally by
the Government. In other words, the legal position of a Government
servant is more one of status than of contract. The hallmark of status is
the attachment to a legal relationship of rights and duties imposed by the
public law and not by mere agreement of the parties. The emolument of
the Government servant and his terms of service are governed by statute
or statutory rules which may be unilaterally altered by the Government
without the consent of the employee. It is true that Article 311 imposes
constitutional restrictions upon the power of removal granted to the
President and the Governor under Article 310. But it is obvious that the
relationship between the Government and its servant is not like an
ordinary contract of service between a master and servant. The legal
relationship is something entirely different, something in the nature of
status. It is much more than a purely contractual relationship voluntarily
entered into between the parties. The duties of status are fixed by the law
and in the enforcement of these duties society has an interest. In the
language of jurisprudence status is a condition of membership of a group
of which powers and duties are exclusively determined by law and not by
agreement between the parties concerned. The matter is clearly stated by
Salmond and Williams on Contracts as follows:
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“So we may find both contractual and status-obligations
produced by the same transaction. The one transaction may result
in the creation not only of obligations defined by the parties and
so pertaining to the sphere of contract but also and concurrently
of obligations defined by the law itself, and so pertaining to the
sphere of status. A contract of service between employer and
employee, while for the most part pertaining exclusively to the
sphere of contract, pertains also to that of status so far as the law
itself has seen fit to attach to this relation compulsory incidents,
such as liability to pay compensation for accidents. The extent to
which the law is content to leave matters within the domain of
contract to be determined by the exercise of the autonomous
authority of the parties themselves, or thinks fit to bring the
matter within the sphere of status by authoritatively determining
for itself the contents of the relationship, is a matter depending on
considerations of public policy. In such contracts as those of
service the tendency in modern times is to withdraw the matter
more and more from the domain of contract into that of status.”
(Salmond and Williams on Contracts, 2nd Edn. p. 12).
(iii) State of H.P. v. Raj Kumar [(2023) 3 SCC 773]
“26. Though the relationship between the employee and the State
originates in contract, but by virtue of the constitutional constraint,
coupled with the legislative and executive rules governing the service, the
relation attains a unique position. Identifying such a relationship as
being a “status”, as against a contract, this Court in Roshan Lal Tandon
v. Union of India [Roshan Lal Tandon v. Union of India, (1968) 1 SCR
185 : AIR 1967 SC 1889], explained what such a “status” constitutes.
We have extracted hereinbelow the exposition of the concept of “status”
as explained by the Constitution Bench for ready reference. .......It is true
that the origin of government service is contractual. There is an offer and
acceptance in every case. But once appointed to his post or office the
government servant acquires a status and his rights and obligations are
no longer determined by consent of both parties, but by statute or
statutory rules which may be framed and altered unilaterally by the
Government. In other words, the legal position of a government servant
is more one of status than of contract. The hallmark of status is the
attachment to a legal relationship of rights and duties imposed by the
public law and not by mere of the parties. The emolument of the
government servant and his terms of service are governed by statute or
statutory rules which may be unilaterally altered by the Government
without the consent of the employee. It is true that Article 311 imposes
constitutional restrictions upon the power of removal granted to the
President and the Governor under Article 310. But it is obvious that the
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relationship between the Government and its servant is not like an
ordinary contract of service between a master and servant. The legal
relationship is something entirely different, something in the nature of
status. It is much more than a purely contractual relationship voluntarily
entered into between the parties. The duties of status are fixed by the law
and in the enforcement of these duties, society has an interest.”
State as a Model Employer
56. The Government being an employer, must act in accordance with the
rules and regulations framed by it. It should respond the legitimate aspirations
of the employees and create trustworthiness to them. The Hon'ble Supreme
Court in Bhupendra Nath Hazarika v. State of Assam [(2013) 2 SCC 516]
pointed out the same in the following ways:
“State is a model employer and it is required to act fairly giving due
regard and respect to the rules framed by it. We have stated the role of
the State as a model employer with the fond hope that in future a
deliberate disregard is not taken recourse to and deviancy of such
magnitude is not adopted to frustrate the claims of the employees. It
should always be borne in mind that legitimate aspirations of the
employees are not guillotined and a situation is not created where hopes
end in despair. Hope for everyone is gloriously precious and a model
employer should not convert it to be deceitful and treacherous by playing
a game of chess with their seniority. A sense of calm sensibility and
concerned sincerity should be reflected in every step. An atmosphere of
trust has to prevail and when the employees are absolutely sure that their
trust shall not be betrayed and they shall be treated with dignified
fairness then only the concept of good governance can be concretised.
That public employment is a facet of right to equality envisaged under
Article 16 of the Constitution of India and that the recruitment rules are
framed with a view to give equal opportunity to all the citizens of India
entitled for being considered for recruitment in the vacant posts. As a
model employer the Government must conduct itself with high probity
and candour with its employees, The main concern of the court in such
matters is to ensure the rule of law and to see that the Executive acts
fairly and gives a fair deal to its employees consistent with the
requirements of Articles 14 and 16.”
(emphasis supplied)
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Rule against retrospectivity
57. It would be evident that the teachers who were appointed on the
basis of eligibility criteria set out during their employment prior to the
introduction of the Act and having secured employment and having been in the
employment for decades cannot now be required to satisfy the eligibility
criterion which is introduced in the year 2010. Any attempt to do so would
result in giving retrospective effect to the Act. This would warrant an
examination, whether the provisions under consideration can be given
retrospective operation, when it does not expressly provide for the same. There
is a presumption of prospectivity articulated in the legal maxima Nova
Constitutio Futuris Formam Imponere Debet, Non Praeteritis that is “a new
law ought to regulate what is to follow, not the past”. It is trite law that any
provision or statute dealing with substantive rights is prospective unless it is
expressly or by necessary implication made to have retrospective operation as
held in Mahadeolal Kanodia v. Administrator-General of W.B., (1960) 3
SCR 578 and CIT v. Vatika Township (P) Ltd., (2015) 1 SCC 1 at page 21,
the relevant passage of which are quoted below for ready reference:
(i) Mahadeolal Kanodia v. Administrator-General of W.B. [(1960) 3 SCR
578]
“8.The principles that have to be applied for interpretation of statutory
provisions of this nature are well-established. The first of these is that
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statutory provisions creating substantive rights or taking away
substantive rights are ordinarily prospective; they are retrospective only if
by express words or by necessary implication the legislature has made
them retrospective; and the retrospective operation will be limited only to
the extent to which it has been so made by express words, or necessary
implication. The second rule is that the intention of the legislature has
always to be gathered from the words used by it, giving to the words their
plain, normal, grammatical meaning. The third rule is that if in any
legislation, the general object of which is to benefit a particular class of
persons, any provision is ambiguous so that it is capable of two
meanings, one which would preserve the benefit and another which would
take it away, the meaning which preserves it should be adopted. The
fourth rule is that if the strict grammatical interpretation gives rise to an
absurdity or inconsistency such interpretation should be discarded and an
interpretation which will give effect to the purpose the Legislature may
reasonably be considered to have had will be put on the words, if
necessary even by modification of the language used.”
(ii) CIT v. Vatika Township (P) Ltd. [(2015) 1 SCC 1 at page 21]
“28. Of the various rules guiding how a legislation has to be interpreted,
one established rule is that unless a contrary intention appears, a
legislation is presumed not to be intended to have a retrospective
operation. The idea behind the rule is that a current law should govern
current activities. Law passed today cannot apply to the events of the past.
If we do something today, we do it keeping in view the law of today and in
force and not tomorrow's backward adjustment of it. Our belief in the
nature of the law is founded on the bedrock that every human being is
entitled to arrange his affairs by relying on the existing law and should not
find that his plans have been retrospectively upset. This principle of law is
known as lex prospicit non respicit: law looks forward not backward. As
was observed in Phillips v. Eyre [(1870) LR 6 QB 1] , a retrospective
legislation is contrary to the general principle that legislation by which the
conduct of mankind is to be regulated when introduced for the first time to
deal with future acts ought not to change the character of past
transactions carried on upon the faith of the then existing law.”
58. Thus, it could be inferred from the above that when Parliament in its
wisdom has made the provisions of the Act only prospective, it would not be
open through a process of interpretation by courts or on the basis of
interpretation/understanding by the executive or a subordinate legislation to
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give a retrospective effect though the plenary legislation does not either
expressly or by necessary implication provide for retrospective operation of its
provisions.
Subordinate legislation to be in conformity with plenary legislation
59. Any attempt to suggest that the subordinate legislation must be
understood as imposing a condition which requires the teachers who were in
service to clear the test despite the fact that plenary legislation in the form of
RTE Act does not provide for the same would render the subordinate legislation
bad for it is settled principle that any subordinate legislation ought to be in
confirmity with the parent Act as well as other plenary legislation. The
decisions of the Hon'ble Supreme Court referred to below explained the same.
(i) Shri Sitaram Sugar Ltd v. Union of India [(1990) 3 SCC 223)]
“45. Power delegated by statute is limited by its terms and subordinate to
its objects. The delegate must act in good faith, reasonably, intra vires the
power granted, and on relevant consideration of material facts. All his
decisions, whether characterised as legislative or administrative or quasi-
judicial, must be in harmony with the Constitution and other laws of the
land. They must be "reasonably related to the purposes of the enabling
legislation". See Leila Mourning v. Family Publications Service, 411 US
356, 36 L Ed. 2d 318. If they are manifestly unjust or oppressive or
outrageous or directed to an unauthorised end or do not tend in some
degree to the accomplishment of the objects of delegation, courts might
well say, "Parliament never intended to give authority to make such rules;
they are unreasonable and ultra vires", per Lord Russel of Killowen, C.J.
in Kruse v. Johnson, [1988] 2 Q.B. 91.”
(ii) State of Tamil Nadu & Ors. vs P. Krishnamurthy & Ors [(2006) 4 SCC
517]
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“12. There is a presumption in favour of constitutionality or validity of a
sub-ordinate Legislation and the burden is upon him who attacks it to
show that it is invalid. It is also well recognized that a sub-ordinate
legislation can be challenged under any of the following grounds:-
a) Lack of legislative competence to make the sub-ordinate legislation.
b) Violation of Fundamental Rights guaranteed under the Constitution of
India.
c) Violation of any provision of the Constitution of India.
d) Failure to conform to the Statute under which it is made or exceeding
the limits of authority conferred by the enabling Act.
e) Repugnancy to the laws of the land, that is, any enactment.
f) Manifest arbitrariness/unreasonableness (to an extent where court
might well say that Legislature never intended to give authority to make
such Rules).
60. The court considering the validity of a subordinate Legislation, will
have to consider the nature, object and scheme of the enabling Act, and also the
area over which power has been delegated under the Act and then decide
whether the subordinate Legislation conforms to the parent Statute. Where a
Rule is directly inconsistent with a mandatory provision of the Statute, then, of
course, the task of the court is simple and easy. But where the contention is
that the inconsistency or non-conformity of the Rule is not with reference to
any specific provision of the enabling Act, but with the object and scheme of
the Parent Act, the court should proceed with caution before declaring
invalidity.
Arbitrariness violates Article 14: Construction that avoids unjust, arbitrary and
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absurd results to be adopted
61. It may be relevant to note that parliament would make laws which
are just and reasonable, and that, there is also a presumption that Parliament
would frame laws which are constitutionally valid. To assume that the
provisions of Section 23 of the Act are effective retrospectively, would result in
rendering the provision vulnerable to challenge as offending Article 14 of the
Constitution. In this regard, it may be useful to note that manifest arbitrariness
by itself is a ground to invalidate even plenary legislation as held in Shayara
Bano v. Union of India, [(2017) 9 SCC 1], the relevant passage of which is
usefully extracted below:
“95...In particular, which stated that legislation can be struck down on the
ground that it is “arbitrary” under Article 14, went on to conclude that
“arbitrariness” when applied to legislation cannot be used loosely.
Instead, it broad based the test, stating that if a constitutional infirmity is
found, Article 14 will interdict such infirmity. And a constitutional
infirmity is found in Article 14 itself whenever legislation is “manifestly
arbitrary” i.e. when it is not fair, not reasonable, discriminatory, not
transparent, capricious, biased, with favouritism or nepotism and not in
pursuit of promotion of healthy competition and equitable treatment.
Positively speaking, it should conform to norms which are rational,
informed with reason and guided by public interest, etc.,”
Hardship, inconvenience, injustice, absurdity and anomaly to be avoided
62. The Court will adopt that which is just, reasonable and sensible
rather than what is none of those things. In Modern School v. Union of India,
(2004) 5 SCC 583, the Hon'ble Supreme Court has observed that a
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construction that results in hardship, serious inconvenience, injustice, absurdity
or anomaly or which leads to inconsistency or uncertainty and friction in the
system which the statute purports to regulate has to be rejected and preference
should be given to that construction which avoids such results. This rule has no
application, when the words are susceptible to only one meaning and no
alternative construction is reasonably open.
63. In selecting out of different interpretations ‘the court will adopt that
which is just, reasonable and sensible rather than that which is none of those
things’ as it may be presumed that 'the legislature should have used the word in
that interpretation which least offends our sense of justice’. If the grammatical
construction leads to some absurdity or some repugnance or inconsistency with
the rest of the instrument, it may be departed from so as to avoid that
absurdity, and inconsistency. Similarly, a construction giving rise to anomalies
should be avoided as noted by the Supreme Court in N.T. Veluswami Thevar
v. G. Raja Nainar [1959 Supp (1) SCR 623]
“12.…… It is no doubt true that if on its true construction, a statute leads
to anomalous results, the courts have no option but to give effect to it and
leave it to the legislature to amend and alter the law. But when on a
construction of a statute, two views are possible, one which results in an
anomaly and the other, not, it is our duty to adopt the latter and not the
former, seeking consolation in the thought that the law bristles with
anomalies. Anomalies will disappear, and the law will be found to be
simple and logical, if it is understood that when a question is raised in an
election petition as to the propriety of the rejection of a nomination paper,
the point to be decided is about the propriety of the nomination and not
the decision of the Returning Officer on the materials placed before him,
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and is not subject to any disqualifications as provided in Section 36(2).
Further, as approved by Venkatarama Aiyar, J., in Tirath Singh v.
Bachittar Singh, (1955) 2 SCR 457
“….Where the language of a statute, in its ordinary meaning
and grammatical construction, leads to a manifest contradiction
of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice, presumably not
intended, a construction may be put upon it which modifies the
meaning of the words, and even the structure of the sentence”.
(Maxwell's Interpretation of Statutes, 10th Edn., p. 229). Reading
the proviso along with clause (b) thereto, and construing it in its
setting in the section, we are of opinion that notwithstanding the
wideness of the language used, the proviso contemplates notice
only to persons who are not parties to the petition.”
64. Legislature must be presumed to enact laws that are just, fair and
reasonable and in society's interest, unless it is explicitly intended to result in
any harsh or ridiculous effect. The words of K.S. Hedge, J. as held in Bhudan
Singh v. Nabi Bux, [(1969) 2 SCC 481 at page 485], reads as under:
“9.Before considering the meaning of the word “held” in Section 9, it is
necessary to mention that it is proper to assume that the law makers who are
the representatives of the people enact laws which the society considers as
honest, fair and equitable. The object of every legislation is to advance public
welfare. In other words as observed by Crawford in his book on “Statutory
Constructions” that the entire legislative process is influenced by
considerations of justice and reason. Justice and reason constitute the great
general legislative intent in every peace of legislation. Consequently where the
suggested construction operates harshly, ridiculously or in any other manner
contrary to prevailing conceptions of justice and reason, in most instance, it
would seem that the apparent or suggested meaning of the statute, was not the
one intended by the law makers. In the absence of some other indication that
the harsh or ridiculous effect was actually intended by the legislature, there is
little reason to believe that it represents the legislative intent.”
Any interpretation that would lead to absurdity has to be avoided, according to
the rules of interpretation (Central India Spg., Wvg. & Mfg. Co. Ltd. v.
Municipal Committee, 1958 SCR 1102). Therefore, a construction resulting in
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unreasonable, harsh and unjust result ought to be avoided.
Data relating to TET
65. It may also be useful to refer to the following data to understand the
consequences of treating RTE to be retrospective insofar as it requires teachers
to pass the TET exam.
TET Paper Examination Date No. of No. of Pass
Candidates candidates Percen
Appeared passed tage
2012 I 12.07.2012 F.N. 305405 1735 0.56
2012 II 12.07.2012 A.N. 409121 713 0.17
Supplementary I 14.10.2012 F.N. 278725 10397 3.73
Supplementary II 14.10.2012 A.N. 364370 8864 2.43
2013 I 17.08.2013 262187 30592 11.67
2013 II 18.08.2013 400311 42124 10.52
PWD II 21.05.2014 4693 945 20.14
PWD II 21.05.2014 4693 945 20.14
2017 I 29.04.2017 241555 16197 6.71
2017 II 30.04.2017 5122260 18578 3.63
2019 I 08.06.2019 162316 551 0.33
2019 II 09.06.2019 379735 316 0.08
Total 3320678 131012
The data from the website of TRB would reveal that between 2012 to 2019,
33,20,678 had taken part in TET exams, out of which only 1,31,012 numbers
have cleared resulting in an overall average of 3.95 percentage. The
consequence of treating the passing of TET exams as mandatory even to
continue in service apart from rendering the provision as being arbitrary,
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produces results which are absurd / obnoxious in as much as it could result in
more than a lakh of teachers being unemployed. It would also have the ripple
effect of affecting the careers of students inasmuch as it is impossible to find
adequate alternate hands to impart education. Inasmuch as applying the above
data, it would require at least 30,00,000 people to take part in TET exams to
have a lakh of teachers clearing TET thereby qualifying for appointment.
66. It is also relevant to note that the legislature is presumed to
understand and appreciate the needs of its own people and that its laws are
directed towards problems realized through experience [Refer: Ram Krishna
Dalmia v. SR Tendolkar, 1959 SCR 279 para 11]. It cannot be
overemphasized that experience is also important and Parliament must be
imputed with the wisdom that experience is relevant and therefore the
legislature ensured that the provisions are only prospective and not
retrospective, if we bear the above data in mind, the consequences that could
possibly result in treating TET examinations as applying even in respect of
teachers who are already in services at the time of introduction of TET, would
produce results which are absurd and obnoxious something which ought to be
avoided. In this regard it may be useful to refer to the judgment of the Supreme
Court in Sirsi Municipality v. Cecelia Kom Francis Tellis, [(1973) 1 SCC
409], to understand what is their nature of appointment and the consequences
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of terminating them in view of the non-fulfillment of an eligibility criteria
introduced subsequent to their appointment.
Hardship to those in employment to be avoided
67. The Hon'ble Supreme Court in Girjesh Shrivastava v. State of M.P.
[(2010) 10 SCC 707] found that cancellation of appointment after long period
which would result in large number of people being unemployed is arbitrary
and undesirable also in view of the fact that they would have left their previous
employment and would have reached an age where the prospects of them
finding another job are rather dim and all this if taken into account
cumulatively would indicate that the provisions of the Act in the first place is
only prospective on a plain reading of the provisions and any attempt to
suggest that it must be given retrospective effect ought to be rejected for it
would fall foul of Article 14, 16 and 19 (1)(g) of the Constitution. The relevant
paragraph of the said decision is profitably reproduced as under:
“31. More importantly, in deciding these issues, the High Court should
have been mindful of the fact that an order for cancellation of
appointment would render most of the appellants unemployed. Most of
them were earlier teaching in non-formal education centres, from where
they had resigned to apply in response to the advertisement. They had left
their previous employment in view of the fact that for their three-year
long teaching experiences, the interview process in the present selection
was awarding them grace marks of 25%. It had also given them a
relaxation of 8 years with respect to their age. Now, if they lose their jobs
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as a result of the High Court's order, they would be effectively
unemployed as they cannot even revert to their earlier jobs in the non-
formal education centres, which have been abolished since then. This
would severely affect the economic security of many families. Most of
them are between the age group of 35-45 years, and the prospects for
them of finding another job are rather dim. Some of them were in fact
awaiting their salary raise at the time of quashing of their appointment by
the High Court.”
68. Reverting to the present case, pursuant to the said Act as well as
notification issued by the NCTE the State Government issued G.O.Ms.No.181
School Education (C2) Department dated 15.11.2011, wherein, in paragraph 3,
it has been mentioned as follows:
“3.The said section clearly specifies that teachers who at the
commencement of this Act, do not possess minimum qualifications as
prescribed by the academic authority authorized by the central
government shall acquire such minimum qualifications within a period of
5 years. Hence, the “Teacher Eligibility Test (TET)” would have to be
conducted for recruiting teachers for the primary and upper primary
classes. The teachers working in unaided private schools are required to
pass teacher Eligibility Test within 5 years. In the State of Tamil Nadu,
Secondary Grade teachers (those teaching classes I to V) are required to
have minimum qualifications of D.T.Ed. and graduate Assistants (BT
Assistant) (those teaching classes VI to VIII) are required to have
minimum qualifications of B.Ed. they should also pass Teacher Eligibility
Test forthwith.”
69. A reading of the provisions of the Act read with the NCTE
Notifications as stated above would make it clear that all those appointed prior
to the notification dated 29.07.2011 can continue in service as Secondary
Grade Teachers or BT Assistants as the case may be, without acquiring TET.
They can be granted their increments and other monetary benefits. To this
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extent, the language employed in G.O.(Ms.)No.181 dated 15.11.2011 is to be
read and understood to the effect that for continuance in service without
promotional prospects, TET is not mandatory. The time-limit granted for
acquiring a pass in TET is applicable only for those who have been appointed
after the commencement of the Act, and who for the reasons stated in Section
23(2) of the Act, were appointed without qualifying in TET. The amendment to
the RTE Act on 09.08.2017 by Act No. 24 of 2017 with effect from 01.04.2015
by inserting the following Second proviso to the Section 23(2) of the RTE Act,
reads as follows:
“23(2) …
Provided further that every teacher appointed or in position as on the
31st March 2015, who does not possess minimum qualifications as laid
down under sub-section(1), shall acquire such minimum qualifications
within a period of four years from the date of commencement of the
Right of Children to Free and Compulsory Education (Amendment) Act,
2017”.
The aforesaid proviso is also to be read in the same manner as being applicable
only for those who have been appointed after the commencement of the Act,
and who for the reasons stated in Section 23(2) of the Act, were appointed
without qualifying in TET. The words “every teacher appointed or in position
as on the 31st March 2015” would clear any semblance of doubt as to the
category of persons whom it refers to, meaning thereby that every teacher
appointed after the Act and who is in service as on 31st March 2015 has been
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mandated under the Act to acquire the minimum qualifications within a period
of four years from the date of commencement of the amendment Act of 2017
(.i.e., Act 24 of 2017) to the RTE Act w.e.f 01.04.2015. It is to be seen that the
question whether teachers appointed prior to the notification of the NCTE
dated 29.07.2011 would require to pass the TET for continuing in service came
up for consideration in M.Maharani v. The State of Tamilnadu and Ors.
[MANU/TN/0608/2019] wherein it has been held as follows:
“….
10. However, there is no cut-off date specified in the said G.O. Ms. No.
181, with regard to acquiring the qualification of pass TET to continue in
service as B.T. Assistants /Secondary Grade Teachers, who are working as
such in the respondent Schools. In this regard, a cursory glance at Clause
(5) of the notification dated 23.08.2010 and its amended notification dated
29.07.2011 issued by the NCTE, the contents of which are reproduced at
paragraph nos. 8.2 and 8.4 above, would reveal that if the process of
appointment of teachers was initiated prior to the date of notification by
issuing advertisement, such appointments have to be made in accordance
with NCTE (Determination of Minimum Qualifications for Recruitment of
Teachers in Schools) Regulations, 2001 and the same was amended with
effect from 29.07.2011. As per the said NCTE Regulations 2001, there is
no qualification prescribed with regard to possession of TET certificate,
for appointment to the post of B.T Assistant and Secondary Grade
Teachers. The qualification of passing TET was first introduced by the
notification dated 23.08.2010 and it was amended vide notification dated
27.09.2011. Thus, it could be inferred that the cut-off date for acquiring
the TET qualification is 27.09.2011 and the teachers, who were appointed
prior to that date need not pass TET and even in the case of the teachers
who were appointed after that date, if the advertisement to initiate the
process of appointment of teachers was made prior to that date, then,
their appointments also can be in accordance with the NCTE Regulations
2001 and they need not acquire the TET qualification.
12. In the ultimate analysis, this Court has no hesitation to hold that the
petitioners are entitled to seek exemption from passing TET, as they were
appointed prior to the cut-off date and the respondents are directed not to
insist TET certificate from the petitioners as a pre-condition for their
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70. The aforesaid judgment was also followed in V.Fathima Riswana
and others v The Chief Educational Officer, Tirunelveli and Others
[MANU/TN/4852/2020 dated 13.08.2020].
71. In line with above reasoning, the orders of the learned Judge holding
that even those appointed prior to the commencement of the Act must acquire a
pass in TET is liable to be set aside. The Secondary Grade Teachers only
seeking continuance in service with increments, are fundamentally a different
class of persons from those seeking promotion to B.T.Assistant from Secondary
Grade Teacher.
*C. W.A. Nos.19, 31, 32, 36 of 2023
WHETHER TET IS A NECESSARY MANDATE FOR TEACHERS
APPOINTED IN MINORITY SCHOOLS
71.1. A perusal of the orders impugned in the writ petitions leading to
these writ appeals would indicate that the fact that the teachers, in respect
of whom approval of appointment was sought for by the school, did not
possess TET pass eligibility was not a ground for refusal for grant of
appointment approval, nor was it an issued raised before the Learned
Single Judge at the time of disposal of the writ petitions. Only in the writ
appeals, the State Government has raised an additional ground that the
teachers whose appointment approval was sought for, did not possess TET.
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Notwithstanding the same, it is hereby clarified that by virtue of the
judgment of the Constitution Bench of the Hon’ble Supreme Court in
Pramati Educational and Cultural Trust & Ors. v. Union of India, [(2014) 8
SCC 1], wherein it was held that the RTE Act, 2009 insofar as it applies to
minority schools, aided or unaided, covered under Article 30(1) is
ultravires the Constitution, meaning thereby that the 2009 Act will not
apply to minority schools, the eligibility of TET pass as required for
appointment of teachers in non-minority schools, will not apply to minority
schools. In other words, the approval of appointment of teachers in
minority schools, both aided and unaided, cannot be refused or rejected on
the ground that they do not possess a pass in TET. Further this specific
issue is also pending consideration before the Supreme Court and the law
laid down by the Supreme Court in Pramati Educational and Cultural
Trust, cited supra, holds the field as on today. For these reasons, the order
of the Learned Judge in the writ petitions is affirmed and the above four
writ appeals are dismissed.
72. In the light of the above narration, taking note of the factual
background, the legal provisions spelling out the intention of the legislature
and the effect of the subordinate legislation pursuant thereto, the inescapable
conclusion of this court would be that every teacher whether Secondary Grade
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or BT Assistant, whether appointed by direct recruitment or promotion in the
case of BT Assistant, after the coming into force of the RTE Act and the NCTE
notifications must necessarily possess/acquire the eligibility of a pass in TET.
Therefore, the claim that Secondary Grade Teachers appointed prior to the
commencement of the Act and notifications will now be eligible for promotion
to the post of BT Assistant without passing TET, cannot be countenanced. For
any fresh appointments, whether by direct recruitment in the case of Secondary
Grade Teachers, or by either direct recruitment or promotion or transfer in the
Graduate Assistants/BT Assistants, a pass in TET is an essential eligibility
criteria to be fulfilled.
73. Further, it is made clear that all those appointed prior to 29.07.2011
are exempt from passing TET only for the purpose of continuance in the post of
secondary grade teacher or BT Assistant without promotional prospects. Any
appointments whether by direct recruitment or promotion or transfer made
after 29.07.2011, will have to necessarily adhere to the minimum eligibility
criteria of passing TET. *The principles laid down in this judgment will not
have application to minority schools, both aided and unaided as explained
in paragraph no.71.1.
CONCLUSION
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74. For the sake of clarity and ease of reference, the upshot of the above
discussion is as under:
(a) Any teacher appointed as Secondary Grade Teacher or Graduate
Teacher/BT Assistant prior to 29.07.2011 shall continue in service and also
receive increments and incentives, even if they do not possess/acquire a pass in
TET. At the same time, for future promotional prospects like promotion from
secondary grade teacher to B.T. Assistant as well as for promotion to
Headmasters, etc., irrespective of their dates of original appointment, they must
necessarily possess TET, failing which they will not be eligible for promotion.
(b) Any appointment made to the post of Secondary Grade Teacher
after 29.07.2011 must necessarily possess TET.
(c) Any appointment made to Graduate Teacher/BT Assistant, after
29.07.2011, whether by direct recruitment or promotion from the post of
Secondary Grade Teacher, or transfer, must necessarily possess TET. *The
principles laid down in this judgment will not have application to minority
schools, both aided and unaided as explained in paragraph no.71.1.
(d) The Special Rules for the Tamil Nadu School Educational
Subordinate Service issued in GO (Ms.) No.13 School Education (S.E3(1))
Department dated 30.01.2020 insofar as it prescribes “a pass in Teacher
Eligibility Test (TET)” only for direct recruitment for the post of BT Assistant
https://www.mhc.tn.gov.in/judis
WA. No. 313 of 2022 etc batch
and not for promotion thereto in Annexure-I (referred to in Rule 6) is struck
down, thereby meaning that TET is mandatory/essential eligibility criterion for
appointment to the post of BT Assistant even by promotion from Secondary
Grade Teachers.
(e) The language employed in G.O. (Ms) No. 181 dated 15.11.2011
is to be read and understood to the effect that for continuance in service
without promotional prospects, TET is not mandatory.
75. The narration of facts which propelled this case would indicate that
the teachers have not been appointed for the last ten years inspite of being
qualified with a pass in TET. On the basis of the above findings and
observations made, the State Government is directed to conduct TET
periodically and make direct recruitment of teachers and promotion from
among TET qualified candidates at the earliest.
76. With these observations, Writ Petition Nos.3364 and 3368 of 2023
are allowed, Writ Appeal Nos. 313, 833, 1891, 2050, 2082, 2795 of 2022 &
Writ Appeal Nos.19, 31, 32, 36 of 2023 are dismissed. WA.No.2617/2022 is
allowed. No costs. Consequently, connected miscellaneous petitions are closed.
[R.M.D., J] [M.S.Q., J]
02.06.2023
*Added as per the clarificatory order
https://www.mhc.tn.gov.in/judis
WA. No. 313 of 2022 etc batch
of this court dated 14.06.2023
rsh
Index: Yes / No
Speaking Order / Non-speaking Order
Neutral Citation : Yes / No
To
1. The Director of School Education
D.P.I. Campus, College Road
Chennai - 600 006
2. The Chief Educational Officer
Kancheepuram District
Kancheepuram
3. The District Educational Officer
Chengalpattu Education District
Kancheepuram District
https://www.mhc.tn.gov.in/judis
WA. No. 313 of 2022 etc batch
R. MAHADEVAN, J
and
MOHAMMED SHAFFIQ, J
rsh
Pre-delivery Judgement in
WA No. 313 of 2022 etc., batch
02.06.2023
https://www.mhc.tn.gov.in/judis
