Madras High Court
R.Sakthivel vs Union Of India on 19 August, 2024
Author: N.Anand Venkatesh
Bench: N. Anand Venkatesh
WP No.7639 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.08.2024
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
WP No. 7639 of 2023
and WP Nos.7796, 7797 and 7799 of 2023
R.Sakthivel ... Petitioner
vs.
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 Tamilnadu,
Rep. by its Principal Secretary to Government,
School Education (Pa.Ka5(1) Department,
Fort St.George, Chennai 600 009.
4. Teachers Recruitment Board (TRB),
4th Floor, DPI Campus,
College Road, Chennai 600 006.
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https://www.mhc.tn.gov.in/judis
WP No.7639 of 2023
5. The Commissioner of School Education,
Directorate of School Education,
DPI Camus, College Road,
Chennai 600 006.
6. The Joint Director of School Education (Personnel)
DPI Campus, College Road,
Chennai 600 006.
7. The Director of School Education,
Directorate of School Education,
DPI Campus, College Road,
Chennai 600 006.
8. The State Project Director,
Samagra Shiksha,
DPI Campus, Nungambakkam,
Chenna 600 006. ... Respondents
Prayer:- Writ petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, to call for the records
of the third respondent in his G.O.(1D) No.134 School Education
[Pa.Ka5(1)] Department dated 18.08.2021 and to quash the same as being
illegal as it is ultravires the Right of Children to Free and Compulsory
Eduction Act 2009 and the Rules framed thereunder and the NCTE
Notification dated 23.08.2010 & 29.07.2011, and for a consequential
forbearing the respondents from transferring Block Resource Teacher
Educators [BRTE)] as BT Assistants without possession of TET pass
eligibility.
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https://www.mhc.tn.gov.in/judis
WP No.7639 of 2023
For Petitioner : Ms.N.Kavitha Rameshwar
For Respondents : Ms. P.J.Anitha
CGSC for R1
Mr.J.Harikrishna
Standing Counsel for R2
Mr.K.H.Ravikumar,
Government Advocate, for RR3, 5 to 8
Mr.C.Kathiravan
Standing Counsel, for R4
ORDER
This Writ Petition has been filed challenging the proceedings of the
third respondent in G.O.[ID]No.134 School Education [Pa.Ka5(1)]
Department dated 18.08.2021 as ultravires the Right to Children to Free
and Compulsory Education Act, 2009 and the Rules framed thereunder and
also the NCTE Notification dated 23.08.2010 and 29.07.2011 and for a
consequential direction to the respondents forbearing them for transferring
the Block Resource Teacher Educators (BRTE) as B.T. Assistants without
possessing of TET pass eligibility.
https://www.mhc.tn.gov.in/judis
2. The grievance of the petitioner in the present Writ Petition is that
as per G.O. Ms.No.16 dated 05.02.2002, the BRTEs appointed under Sarva
Shiksha Abhiyan Scheme are interchangeable with BT Assistant in
Government School. Accordingly, the third respondent Government has
been appointing 500 BRTEs as B.T. Assistants by transfer every year. The
requisite essential qualifications for both BRTEs and B.T. Assistants are the
same. However, after passing of the RTE Act and notifications issued by
the NCTE, a TET pass is mandatory for appointment/promotion/transfer as
B.T. Assistant. Therefore, according to the petitioner, the BRTEs, who do
not have TET qualification cannot be transferred and appointed as
B.T.Assistants by the Government year after year without possessing TET
pass. It is under these circumstances, the Government Order in G.O.(1D)
No.134 dated 18.08.2021 has been put to challenge.
3. The sixth respondent has filed a counter affidavit. The relevant
portions in the counter affidavit are extracted hereunder:
6. I submit that it is pertinent to note that Block
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Resource Teachers Educators BRTES) were appointed
under Sarva Shiksha Abhiyan (SSA) scheme from the
year 2002 until 2010 under G.O.Ms.No. 16, School
Education Department, dated 05.02.2002 onwards in
the cadre of B.T. Assistants at Block Resource Centers
and Cluster Resource Centers. It is also pertinent to
note that they were all recruited through a selection
process conducted by the Teachers Recruitment Board
by following norms prevailing at the relevant point of
time. I submit that all the Block Resource Teachers
Educators (BRTEs) were appointed with qualification of
degree in respective subjects along with B.Ed degree.
7 I submit that as per G.O.Ms.No.52, School
Education (c2) Department, dated 30.03.2006 the post
of B.T. Assistant working in government schools and
Block Resources Teacher Educators (BRTES) are
interchangeable in nature by following the General and
Special Rules applicable to permanent post of School
Assistants in category 1 Class I of the Tamil Nadu
School Education Subordinate Service. It shall apply to
the holder of the temporary post of Block Resource
Teacher Educators (BRTEs) under Sarva Shiksha
Abhiyan Scheme sanctioned from time to time.
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Accordingly the senior most Block Resource Teacher
Educators (BRTES) have been included in the eligible
list of Block Resource Teacher Educators transfer to the
post of B.T. Assistant in government schools based on
needs for teaching 9th and 10th standard students
8 I submit that transfer of Block Resource
Teacher Educators to B.T. Assistant at government
school is like routine transfer. I submit that TET was
made mandatory to the post of Graduate Assistant and
B.T. Assistant pursuant to introduction of Right of
Children to Free and Compulsory Education Act as
rightly held by this Hon'ble Court and Hon'ble Apex
Court, TET cannot be made mandatory for the teachers
who were appointed before introduction of the said act.
Accordingly in the present case Block Resource Teacher
Educators were recruited from the year 2002-2010 i.e.
prior to implementation of Right of Children to Free
and Compulsory Education Act and therefore TET is
exempted to Block Resource Teacher Educators as they
were appointed much before the implementation of the
said Act. I submit that it is pertinent to note that in the
last recruitment conducted for the post of Block
Resource Teacher Educators nearly 1000 candidates
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have been selected and the said selection process were
completed before introduction of Right of Children to
Free and Compulsory Education Act ie. 23.08.2010 and
subsequently due to administrative reasons there was
delay in issuing posting orders. Infact by G.O.(Ms)
No.181 School Education (C2) Department Dated
15.11.2011.government while issuing posting orders
have elaborately dealt with the issue and granted
exemption to the persons whose selection process were
completed before 23.08.2010 and granted five years'
time to clear TET exams for the persons whose selection
process were not completed. In the present case all the
BRTEs selection was completed before 23.08.2010 and
they were exempted from passing TET exams.
11. I submit that the only issue is that Block
Resource Teacher Educators can be transferred and
posted as B.T. Assistant at Government Schools without
TET or not. I submit that TET was made as mandatory
qualification to the post of Secondary Grade Teacher
and B.T. Assistant pursuant to introduction of Right of
Children to Free and Compulsory Education Act which
came to effect w.e.f. 23.08.2010. After introduction TET
any person who is appointed as Secondary Grade
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Teacher and B.T. Assistant in government schools or in
government aided schools, has been directed to pass
TET exams conducted by the Tamil Nadu Teacher
Recruitment Board within a period of s years and now
persons who possess TET qualification and other
educational qualifications are alone eligible to
participate in the selection process. I submit that when
the issue, was raised before this Hon'ble Court whether
the persons who were selected prior to introduction of
Right of Children to Free and Compulsory Education
Act need to pass TET, this Hon'ble Court held that the
TET is exempted for the persons who were selected or
appointed prior to 23.08.2010. Accordingly government
granted exemption to the respective candidates who
were either appointed or got selected to the post of
Secondary Grade Teacher or B.T. Assistant from
passing TET and their services were also regularized.
12. I submit that in the present case admittedly
BRTEs who were now been transferred to the post of
B.T. Assistant in government schools were recruited
between 2002-2010 and they were either selected or got
appointed to their respective post before 23.08.2010
and therefore TET is not applicable to them. I submit
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that pursuant to issuance of said G.O. (1D). No.134,
School Education [Pa.Ka5(1)] Department, dated
18.08.2021 they were only been transferred to the
interchangeable post as per adhoc rules framed under
G.O. (Ms)No.52, School Education (C2) Department,
dated 30.03.2006, for which TET cannot be made as
mandatory as claimed by the writ petitioner herein. If
TET is made applicable to them, then it would also
applicable to all teachers who got appointment prior to
23.08.2010 without TET, which is against the orders
passed by this Hon'ble Court.
4. Heard Ms.N.Kavitha Rameshwar, learned counsel appearing for
the petitioner, Ms. P.J.Anitha, learned CGSC appearing for the first
respondent, Mr.J.Harikrishna, learned Standing Counsel appearing for
the second respondent, Mr.K.H.Ravikumar, learned Government Advocate
appearing for respondents 3, 5 to 8 and Mr.C.Kathiravan, learned Standing
Counsel, appearing for the fourth respondent.
5. The counter filed by the sixth respondent confines itself to the facts
of the appointments made prior to 23.08.2010. The stand taken is that the
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BRTEs, who have been transferred to the post of B.T. Assistants in
Government Schools were all recruited between 2002 to 2010 and they were
either selected or appointed to the respective post before 23.08.2010.
Therefore, it has been contended that TET is not applicable to them.
6. The issue that is involved in the present case is no longer res
integra and it has now been considered by the Division Bench of this Court
in Writ Appeal Nos.313 of 2022 etc. dated 02.06.2023. For proper
appreciation, paragraph 73 & 74 of the judgment are extracted hereunder:
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.
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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
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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.
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 the facts of the present case, there is no scope for interfering with
the action taken by the respondents in transferring BRTEs to the post of
B.T. Assistants for those who were all recruited between 2002 to 2010 and
were selected to the respective post before 23.08.2010. The problem arises
only in those cases where such appointment/promotion/transfer has been
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made after 29.07.2011. The learned Government Advocate appearing on
behalf of the respondents relied upon the adhoc arrangement that was made
under G.O.Ms.52 dated 30.03.2006. This adhoc arrangement that was made
will not override the judgment of the Division Bench which categorically
holds that any appointment made to the post of B.T.Assistant after
29.07.2011, whether by direct recruitment or promotion or by way of
transfer, must necessarily pass TET. In view of the same, when a BRTE is
interchanged and transferred as a B.T.Assistant after 29.07.2011, to hold the
position of the B.T. Assistant, the concerned candidate must have passed
TET.
8. Even though the post of BRTE and B.T.Assistant are
interchangeable, it is not as if the same person will be holding a dual post.
At any given point of time, the concerned person may be holding the post as
BRTE or as B.T.Assistant. Therefore, when the person is adorning the role
of BRTE and is intended to be changed as B.T.Assistant, it involves a
transfer to the post of B.T.Assistant. Once that happens, automatically the
mandate prescribed by the Division Bench will come into operation and for
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all those transfers made after 29.07.2011, for holding the post of
B.T.Assistant, TET becomes mandatory.
9. The above clarification will suffice and the same is to be kept in
mind by the official respondents when they undertake the exercise of
interchangeability between BRTEs and B.T.Assistants.
10. This Writ Petition is disposed of with the above observation.
There shall be no order as to costs. Consequently, the connected
miscellaneous petitions are closed.
19.08.2024
jv
Index: Yes/No
Internet: Yes/No
speaking order/ Non Speaking order
Neutral Citation: Yes/No
To
1. The Secretary to Government,
Union of India,
Ministry of Human Resource and Development,
(Department of School Education),
New Delhi.
https://www.mhc.tn.gov.in/judis
2. National Council for Teacher Education,
G-7, Sector -10, Dwarka,
New Delhi 110 075.
3. The Principal Secretary to Government,
Government of Tamilnadu,
School Education (Pa.Ka5(1) Department,
Fort St.George, Chennai 600 009.
4. Teachers Recruitment Board (TRB),
4th Floor, DPI Campus,
College Road, Chennai 600 006.
5. The Commissioner of School Education,
Directorate of School Education,
DPI Camus, College Road,
Chennai 600 006.
6. The Joint Director of School Education (Personnel)
DPI Campus, College Road,
Chennai 600 006.
7. The Director of School Education,
Directorate of School Education,
DPI Campus, College Road,
Chennai 600 006.
8. The State Project Director,
Samagra Shiksha,
DPI Campus, Nungambakkam,
Chenna 600 006.
https://www.mhc.tn.gov.in/judis
N.ANAND VENKATESH, J.
jv
19.08.2024
https://www.mhc.tn.gov.in/judis
