Madras High Court
H.Thahera Begum vs State Of Tamil Nadu Represented on 28 November, 2023
Author: R.Mahadevan
Bench: R.Mahadevan, Mohammed Shaffiq
W.A.Nos.3014 & 3023 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 28.11.2023
CORAM
THE HONOURABLE Mr.JUSTICE R.MAHADEVAN
AND
THE HONOURABLE Mr.JUSTICE MOHAMMED SHAFFIQ
W.A.Nos.3014 & 3023 of 2023
and
C.M.P.Nos.24980 & 25015 of 2023
H.Thahera Begum,
D/o. R.Himamsha,
B.T.Assistant (Science),
A.J.S. Nidhi Higher Secondary School,
Alandur, Chennai-600 016. .. Appellant in
W.A.No.3014 of 2023
P.J.Punitha,
D/o.B.Janakiraman,
B.T.Assistant (Tamil),
A.J.S. Nidhi Higher Secondary School,
Alandur, Chennai-600 016. .. Appellant in
W.A.No.3023 of 2023
Vs.
1.State of Tamil Nadu represented
by its Principal Secretary to Government,
School Education Department,
Fort St. George, Secretariat, Chennai-600 009.
1/10
https://www.mhc.tn.gov.in/judis
W.A.Nos.3014 & 3023 of 2023
2.The Commissioner,
Directorate of School Education,
DPI Campus, College Road, Chennai-600 006.
3.The Chief Educational Officer,
Chengalpet, Chengalpet District.
4.The District Educational Officer
Chrompet Education District, Chengalpet District.
5.The Secretary,
AJS Nidhi Higher Secondary School,
Alandur, Chennai-600 016.
6.The Union of India represented
by its Secretary, Ministry of Education,
124-C Shastri Bhawan,
New Delhi-110 001. .. Respondents in
both appeals
Common Prayer: Writ Appeals filed under Clause 15 of the Letters
Patent against the common order dated 07.04.2022 passed in W.P.Nos.2126
& 2128 of 2022 respectively, on the file of this Court.
For Appellants
in both appeals : Mr.S.Nedunchezhiyan
For Respondents
in both appeals : Mr.Silambannan,
Additional Advocate General
assisted by Mrs.S.Anitha,
Special Government Pleader
2/10
https://www.mhc.tn.gov.in/judis
W.A.Nos.3014 & 3023 of 2023
COMMON JUDGMENT
[Judgement of the Court was delivered by R.MAHADEVAN, J.]
These writ appeals arise out of the common order dated 07.04.2022
passed by this Court in W.P.Nos.2126 of 2022 and 2128 of 2022,
respectively.
2.The necessary facts leading to the filing of these writ appeals would
run thus:
2.1. The appellant in W.A.No.3014 of 2023 was appointed as
B.T. Assistant (Science) vide order dated 22.09.2011 and she joined duty in
the fifth respondent School on the same day, ie., on 22.09.2011. The
appellant in W.A.No.3023 of 2011 was appointed as B.T.Assistant (Tamil)
on 27.06.2011 in the fifth respondent school. While so, they have been
suddenly stopped the payment of annual increment in the post of
B.T. Assistant during the year 2019 on the premise that they have to pass
Teachers Eligibility Test (“TET” in short). The grievance of the appellants is
that TET cannot be insisted as per G.O.Ms.No.181, School Education
Department dated 15.11.2011 in respect of appointments already made prior
https://www.mhc.tn.gov.in/judis
W.A.Nos.3014 & 3023 of 2023
to the aforesaid Government Order and also duly approved by the
Department and therefore, insisting upon passing of TET is totally arbitrary
and unreasonable. With this background, they have filed writ petitions
praying to direct the authorities to sanction annual increment to them for
having acquired Post Graduation, without reference to passing of TET with
all consequential and other attendant benefits based on their representations
dated 01.11.2021.
2.2. Referring to the constitutional validity of the Right of Children
to Free and Compulsory Education Act, 2009 (“RTE Act” in short),
Notification of the Government of India dated 31.03.2010 issued under
Section 23(1) of the RTE Act and the Guidelines framed by the National
Council for Teacher Education, the Writ Court held that accepting the
recommendation and the Notification issued by the NCTE, the Government
of Tamil Nadu have issued G.O.Ms.No.181 dated 15.11.2011, which G.O.
makes it very clear that TET shall be conducted by the Teachers
Recruitment Board in accordance with the guidelines framed by NCTE and
that it has been stated in the G.O. that teachers appointed prior to the G.O.
will be given five years time to acquire the minimum qualification.
https://www.mhc.tn.gov.in/judis
W.A.Nos.3014 & 3023 of 2023
Accordingly, the learned Judge dismissed the writ petitions, by the common
order dated 07.04.2022. Challenging the same, the writ petitioners are
before this court with the present writ appeals.
3. Today, when the matters were taken up for consideration, the
learned counsel appearing for both sides, in union, submitted that the issue
involved herein is covered by a common judgment passed by the very same
Bench earlier in The Director of School Education D.P.I. Campus, College
Road, Chennai vs M. Velayutham (W.A.No.313 of 2022 etc., batch decided
on 02.06.2023). The key issues for determination and also the resultant
portion of the said judgment, read as under:
"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."
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
https://www.mhc.tn.gov.in/judis
W.A.Nos.3014 & 3023 of 2023
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
issue 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.
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 RTI 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 filed 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.
"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
https://www.mhc.tn.gov.in/judis
W.A.Nos.3014 & 3023 of 2023
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 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."
4. A reading of the above judgment would make it clear that any
appointment made to 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.
https://www.mhc.tn.gov.in/judis
W.A.Nos.3014 & 3023 of 2023
5. Applying the aforesaid ratio to the facts of the present case,
wherein, the appellants / writ petitioners joined as B.T. Assistant on
22.09.2011 and 27.06.2011, this court is of the opinion that they are entitled
for annual increments and incentives, without a pass in TET. However, for
future promotional aspects, they must necessarily possess TET. Therefore,
the order of the learned Judge is set aside and the respondent authorities are
directed to consider the representations of the appellants in the light of the
directions specified in the aforesaid judgment dated 02.06.2023, and pass
appropriate orders, as expeditiously as possible.
6. Accordingly, both the writ appeals stand disposed of. No costs.
Consequently, connected miscellaneous petitions are closed.
[R.M.D.,J.] [M.S.Q., J.]
28.11.2023
Index: Yes / No
Speaking order/ Non-speaking order
Neutral Citation: Yes / No
nsd
https://www.mhc.tn.gov.in/judis
W.A.Nos.3014 & 3023 of 2023
To
1.The Principal Secretary to Government,
School Education Department,
Fort St.George, Secretariat, Chennai-600 009.
2.The Commissioner,
Directorate of School Education,
DPI Campus, College Road, Chennai-600 006.
3.The Chief Educational Officer,
Chengalpet, Chengalpet District.
4.The District Educational Officer
Chrompet Education District, Chengalpet District.
5.The Secretary,
AJS Nidhi Higher Secondary School,
Alandur, Chennai-600 016.
6.The Secretary, Union of India,
Ministry of Education,
124-C Shastri Bhawan,
New Delhi-110 001.
https://www.mhc.tn.gov.in/judis
W.A.Nos.3014 & 3023 of 2023
R.MAHADEVAN, J.
AND
MOHAMMED SHAFFIQ, J.
nsd
W.A.Nos.3014 & 3023 of 2023
28.11.2023
https://www.mhc.tn.gov.in/judis
