Madras High Court
The Government Of Tamilnadu vs M.Johny ... 1St on 18 October, 2023
W.A.(MD) No.860 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.10.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.A.(MD) No.860 of 2019
and C.M.P.(MD) No.7548 of 2019
1.The Government of Tamilnadu,
Represented by its Principal Secretary,
Department of Elementary School Education,
Fort St. George,
Chennai – 600 009.
2.The Director of Elementary School Education,
College Road, D.P.I. Campus,
Chennai – 600 006.
3.The District Elementary School Education Officer,
Thoothukudi,
Thoothukudi District.
4.The Assistant Elementary Education Officer,
Vilathikulam Taluk,
Thoothukudi District. ... Appellants/Respondents 1 to 4
-Vs.-
1.M.Johny ... 1st Respondent/Writ Petitioner
2.The Secretary,
Hindu Nadar Primary School,
Perilovanpatti,
Vilathikulam Taluk,
Thoothukudi District. ... 2nd Respondent/5th Respondent
1/10
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.860 of 2019
PRAYER:- Writ Appeal filed under Clause 15 of Letters Patent Act, to
set aside the order dated 14.11.2018 made in W.P.(MD)No.11201 of 2013
on the file of this Court.
For Appellants : Mr.D.Sadiq Raja
Additional Government Pleader
For Respondents : Mr.S.Vinod Sahaya Lazar
for R1
No appearance for R2
****
JUDGMENT
(Judgment of the Court was delivered by S.M.SUBRAMANIAM, J.)
The Writ Appeal on hand has been instituted challenging the
the order dated 14.11.2018, passed in W.P.(MD)No.11201 of 2013.
2. The first respondent instituted Writ Proceedings, seeking
temporary approval of appointment of the first respondent with effect
from 27.04.2012 and release of grand-in-aid towards his salary along
with arrears of salary with all attendant and consequential monetary and
service benefits.
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W.A.(MD) No.860 of 2019
3. The first respondent was appointed by the second respondent
school on 27.04.2012. The first respondent possesses the educational
qualification of Diploma in Teachers Education. Admittedly, on the date
of appointment, the first respondent did not possess the requisite
qualification of Teachers Eligibility Test under Section 23(1) of the Right
of Children to Free and Compulsory Education Act, 2009.
4. The first respondent was allowed to continue in service and
the proposal submitted by the second respondent / school management
was returned by the competent educational authorities on the ground that
the first respondent teacher has not qualified by passing the Teachers
Eligibility Test, which is mandatory as per the Right of Children to Free
and Compulsory Education Act, 2009. Since the proposal submitted by
the school management was returned, the first respondent was
constrained to move the Writ Petition, seeking temporary approval. The
earlier Writ Petition filed by the first respondent, challenging the return
of the proposal was disposed of on the ground that it was an internal
communication between the school management and the educational
authorities, which would not provide cause for the first respondent to file
a Writ Petition.
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W.A.(MD) No.860 of 2019
5. Learned Additional Government Pleader appearing on behalf
of the appellants mainly contended that TET being the mandatory
qualification under Section 23(1) of the Right of Children to Free and
Compulsory Education Act, 2009, the same cannot be waived by the
competent authorities. Teachers appointed prior to the cut of date of
29.07.2011 was granted the benefit of five years of time limit to possess
the qualification of Teachers Eligibility Test. Time was extended even
thereafter, considering the hardships caused to the teachers for a long
years. Therefore, the teachers appointed prior to the cut of date must
possess the Teachers Eligibility Test within the stipulated period, failing
which they are not eligible for any further service benefits, including
promotions, increments etc. However, in the present case, the first
respondent was appointed in the second respondent school on 27.04.2012
after the cut of date, therefore, at the time of appointment, the
management ought to have verified the fact whether the teacher is
qualified for appointment by passing the Teachers Eligibility Test. Thus,
the appointment itself is irregular and not in consonance with the
provision of the Act and Rules. In other words, an unqualified teacher
was appointed in the second respondent school and therefore, the
competent educational authorities returned the proposal submitted by the
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W.A.(MD) No.860 of 2019
school.
6. Learned Additional Government Pleader drew the attention
of this Court with reference to the earlier Division Bench judgments,
wherein the issues relating to pass in Teachers Eligibility Test and the
Hon'ble Division Bench in batch of cases in Writ Appeal No.313 of 2022
etc., batch cases delivered judgment on 02.06.2023, wherein the
following observations are made:-
“74. For the sake of clarity and ease of reference, the upshot of
the abovediscussion 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
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W.A.(MD) No.860 of 2019
promotion from the post of Secondary Grade Teacher, or
transfer, must necessarily possess TET.
(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.
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.”
7. In yet another case, the Division Bench of this Court in W.P.
(MD) No.11317 of 2022 pronounced the judgment on 29.03.2023 as
under:-
“75. This Court, in extenso, has dealt with the
provisions of law and has held that the acquiring of TET
qualification for the purpose of continuance in service is
mandatory and that the teachers, who were in service, were
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W.A.(MD) No.860 of 2019
granted more than nine years to acquire TET qualification. The
petitioner having been appointed on 10.11.2010 by which time
the academic authority, viz., NCTE, has prescribed the
minimum qualification for persons to be acquired for
continuing in the post of elementary school teacher, it is
incumbent on the petitioner to have adhered to the prescription
and acquired the qualification of TET. Between the time of
appointment of the petitioner and till now, almost twelve years
have passed. Nine years relaxation was granted by the
Government itself for acquiring TET and further three years
also having passed, the petitioner has not qualified herself in
TET, but has come before this Court now to claim exemption
from acquiring TET. However, the petitioner has neither
challenged Section 23 nor rule 17, which have prescribed the
minimum qualification and in the absence of any challenge
being made to the provisions, the mandatory prescription of
TET cannot be diluted by granting any exemption to the
petitioner, which is already foreclosed by the statutory
prescription. In such view of the matter, the case of the
petitioner squarely falls within the four corners of the reference
holding that TET is mandatory and, therefore, no exemption
could be granted to the petitioner and necessarily this writ
petition deserves to be rejected.
76. For the reasons aforesaid, the reference is
answered as under :-
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W.A.(MD) No.860 of 2019
(i) The minimum qualification of a pass in TET for
being appointed as elementary school teacher is mandatory and
no exemption whatever can be claimed by any individual and
to that extent the decision in Vasudevan’s case has laid down
the correct law.
(ii) In view of the aforesaid decision, this writ
petition fails and, accordingly, the same is dismissed.
(iii) Consequently, connected miscellaneous petition
is closed. There shall be no order as to costs.”
8. In the above judgments, two different Division Benches
have concurrently held that Teachers Eligibility Test is the mandatory
qualification for appointment more specifically after the cut of date of
29.07.2011. Therefore, the appointment of the first respondent in the
second respondent school was irregular and in violation of the mandatory
provisions of the Right of Children to Free and Compulsory Education
Act, 2009 and the guidelines issued by the Government of Tamil Nadu in
G.O.Ms.No.181, School Education Department dated 15.11.2011. Since
the appointment was irregular and the issues regarding passing of
Teachers Eligibility Test is no more res-integra and made compulsory, we
are not inclined to support the order passed by the learned Single Judge.
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W.A.(MD) No.860 of 2019
9. Consequently, the order dated 14.11.2018 passed in W.P.
(MD) No.11201 of 2013 is set aside and W.A.(MD) No.860 of 2019 is
allowed. No costs. Consequently, connected Civil Miscellaneous Petition
is closed.
[S.M.S.J.,] & [V.L.N.J.,]
NCC :Yes/No 18.10.2023
Index :Yes/No
SJ
To
1.The Principal Secretary,
Department of Elementary School Education,
Government of Tamilnadu,
Fort St. George,
Chennai – 600 009.
2.The Director of Elementary School Education,
College Road, D.P.I. Campus,
Chennai – 600 006.
3.The District Elementary School Education Officer,
Thoothukudi,
Thoothukudi District.
4.The Assistant Elementary Education Officer,
Vilathikulam Taluk,
Thoothukudi District.
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.860 of 2019
S.M.SUBRAMANIAM, J.
AND
V. LAKSHMINARAYANAN, J.
SJ
W.A.(MD) No.860 of 2019
18.10.2023
https://www.mhc.tn.gov.in/judis
