Madras High Court
The State Of Tamil Nadu vs K.Bashiri on 2 April, 2025
Author: S.Srimathy
Bench: J. Nisha Banu, S.Srimathy
W.A.(MD)No.429 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 04.03.2025
PRONOUNCED ON : 02.04.2025
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.429 of 2025
and
C.M.P.(MD)No.3278 of 2025
1.The State 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,
Madurai, Madurai District.
4.The District Educational Officer,
Melur, Madurai District. ... Appellants
Vs.
1.K.Bashiri
2.The Correspondent,
Melur Al-Ameen Urudu Tamil Muslim
High School,
Melur, Madurai District. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent against the order
of this Court in W.P.(MD)No.9299 of 2024, dated 16.04.2024.
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1/30
W.A.(MD)No.429 of 2025
For Appellants :Mr.J.Ashok
Additional Government Pleader
For R1 :Mr.J.Lawrance
***
JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.)
The present writ appeal is filed by the respondents in the writ petition
against the order dated 16.04.2024 passed in W.P.(MD)No.9299 of 2024.
2. The writ petition was filed for issuance of a writ of Certiorarified
Mandamus, to quash the order, dated 01.02.2024, passed by the 3rd respondent and
consequently, to direct the 3rd respondent to approve forthwith the petitioner's
promotion as B.T. Assistant (Tamil) in the 5th respondent school with effect from
the date of promotion on 13.06.2022 with all attendant benefits including the
arrears of salary and allowance and the retirement benefits including pension from
the date of retirement, dated 30.04.2023.
3. The writ petitioner was appointed in the school namely, Al Ameen
Urudu Tamil Muslim High School as a Secondary Grade Teacher in the promoted
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vacancy on 22.03.1996 in the scale of pay of Rs.1200-30-1560-40-2040. The said
school was a private aided minority school governed by Tamil Nadu Recognized
Private Schools (Regulation Act), 1974 and rules made thereunder and the Tamil
Nadu Minority School (Recognition and Payments of Grant) Rules, 1977. The
writ petitioner was promoted as BT Assistant (Tamil) on 13.06.2022. Thereafter,
she attained superannuation on 30.04.2023.
4. The management, 2nd respondent herein, has submitted the proposal
through the District Educational Officer on 02.08.2023 requesting to approve the
promotion of the writ petitioner. The appellants sought clarification and
particulars. The school has resubmitted the proposal with clarification along with
particulars. The Chief Educational Officer has returned the proposal, vide
proceedings, dated 01.02.2024 directing to enclose the Teachers Eligibility Test
Paper II (TET) certificate. The writ petitioner was not possessing the said
certificate. However, the writ petitioner claimed that she is working in a private
aided minority school and the Right of Children to Free and Compulsory
Education Act, 2009, is not applicable to the minority schools and hence TET is
not applicable to the minority schools.
5. The further contention of the writ petitioner is that the said Central
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Act is not applicable, since the State Government has issued G.O.(Ms)No.181,
(School Education-C2), dated 15.11.2011 and has granted 5 years of time to
complete the TET qualification. Further, it was made compulsory from the date of
G.O.(Ms)No.181, (School Education-C2), dated 15.11.2011. In the meanwhile,
the writ petitioner had attained superannuation and retired from service.
Therefore, the said period for acquiring pass in Teachers Eligibility Test was
available, hence the petitioner cannot be compelled to complete the Teachers
Eligibility Test for the promotion of B.T. Assistant.
6. After considering the rival contentions, the Writ Court has relied on
the judgment rendered in W.A.(MD)No.313 of 2022 and batch in the case of the
Director of School Education and Others Vs. M. Velayutham and Another,
dated 02.06.2023, wherein it is held that the TET qualification was not required
for appointment of teachers in minority institutions. The Division Bench in turn
had relied on the Constitutional Bench of the Hon'ble Supreme Court in the case
of Pramati Educational and Cultural Trust and Others Vs. Union of India
reported in (2014) 8 SCC 1. Following the aforesaid judgments, the Writ Court
held that it is not mandatory to possess TET qualification in a minority institution,
consequently the Writ Court allowed the writ petition and directed to pay the
consequential monetary benefits to the writ petitioner. Aggrieved over the same,
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the present writ appeal is filed by the State.
7. The contention of the State is that in Pramati’s case “whether TET is
necessary for minority institution” was not the issue raised and was not dealt with
by the Hon’ble Supreme Court at all. Therefore, the State had preferred SLP (C)
No.2691 of 2022 and the same is pending. Further, stated that the judgment
rendered in W.A.(MD)No.313 of 2022, dated 02.06.2023 is placing reliance on
the judgment of Pramati’s case. But the said Pramati’s case is referred to a Larger
Bench in Ashwini Thanappan -vs- Director of Education reported in (2014) 8 SCC
272. Since the issue was sub judice before the Hon'ble Apex Court, the appellants
stated that the writ petitioner is not entitled to claim the monetary benefits.
However, the writ petitioner submitted that following Pramati’s case several
judgements were rendered by Courts and had consistently held TET is not
necessary for minority institution. Especially the judgment dated 02.06.2023
rendered in W.A.No.313 of 2022 in the case of Director of School Education and
Others Vs. M. Velayutham and Another, has held that as per judgment in
Pramati’s case, the RTE Act, 2009 is not applicable to minority institution. When
TET which is prescribed under RTE Act, 2009, then TET is not applicable to
minority institution. In order to consider the rival submissions, it is necessary to
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refer to relevant provisions and the aforesaid judgments.
8. The Right of Children to Free and Compulsory Education Act, 2009
(in short RTE Act, 2009) direct the schools to impart free education to children in
the age group from 6 to 14 years in schools run by government, local body, private
aided minority and non-minority, private unaided minority and non-minority and
school belonging to specified category. The Act has various provisions regarding
the duties of parents, schools, government and has dealt with qualifications and
other aspects covering the education to children.
9. The validity / vires of the Act was challenged and considered in the
case of Society for Unaided Private Schools of Rajasthan Vs. Union of India
and Another reported in (2012) 6 SCC 102 by a Three-Judges Bench of Hon’ble
Supreme Court, wherein by majority two Learned Judges S.H. Kapadia C.J. and
Swatanter Kumar J. held that the RTE Act, 2009 Act is constitutionally valid and
shall apply to the following schools:
(i) a school established, owned or controlled by the appropriate
Government or a local authority;
(ii) an aided school including aided minority school receiving aid
or grants to meet whole or part of its expenses from the appropriate
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Government or the local authority;
(iii) a school belonging to specified category; and
(iv) an unaided non-minority school not receiving any kind of aid
or grants to meet its expenses from the appropriate Government or
the local authority.
But held Sections 12(1)(c) and Section 18(3) of the RTE Act, 2009 infringe the
fundamental rights guaranteed to unaided minority schools under Article
30(1) of the Constitution and therefore the RTE Act, 2009 shall not apply to such
unaided minority schools. Differing from the majority opinion, the Learned
Judge Radhakrishnan J. held that Article 21A casts an obligation on the State and
not on unaided non-minority and unaided minority schools to provide free and
compulsory education to children of the age of six to fourteen years. After the
aforesaid judgment the RTE Act, 2009 was amended by the Right of Children to
Free and Compulsory Education Act 2009 (Amendment Act, 2012) and it was
provided in Section 1(4) of the RTE Act, 2009, that subject to the provisions of
Articles 29 and 30 of the Constitution, the provisions of the RTE 2009 Act shall
apply to conferment of rights on children to free and compulsory education.
Therefore, the effect of the judgment and the said amendment, 2012 is that the
section 12(1)(c) and Section 18(3) of the RTE Act, 2009 is not applicable unaided
minority institutions since the same infringe the fundamental rights as per the
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judgment. The Act 2009 is applicable to minority institutions however when the
provisions affect the rights guaranteed under Article 29 and 30 alone would not be
applicable.
10. It is pertinent to state that the test which are the provisions would
affect the fundamental rights was dealt with and there was divergent opinion in
various judgments, hence a reference was made in Pramati’s case reported in
(2014) 8 SCC 1.
11. The brief background of the case is that the constitutional
amendment in Article 15(5) and Article 21A of Constitution of India was
challenged. Based on the constitutional amendment under Article 15(5) and
Article 21A, Sections 12(1)(b) and 12(1)(c) of RTE Act, 2009 was incorporated,
wherein it mandates all schools to grant admission at least 25% of its strength to
the children belonging to “weaker section and disadvantaged group in the
neighbourhood” to provide free and compulsory elementary education till its
completion and the government would bear the entire cost for the said education.
The said mandate is applicable to all schools namely,
i. Schools run by government, local body,
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ii. private aided minority and non-minority,
iii. private unaided minority and non-minority and
iv. school belonging to specified category.
12. The private unaided minority schools, the private aided minority
schools and the private unaided non-minority schools feeling aggrieved by the
25% compulsory admission, challenged the constitutional amendment under
Article 15(5) and Article 21A. Because of two divergent views, a constitutional
reference to Five Judges Bench was made in Pramati’s case and the reference is
extracted hereunder:
“i) Whether by inserting clause (5) in Article 15 of the Constitution by
the Constitution (Ninety-Third Amendment) Act, 2005, Parliament has
altered the basic structure or framework of the Constitution.
ii) Whether by inserting Article 21A of the Constitution by the
Constitution (Eighty-Sixth Amendment) Act, 2002, Parliament has
altered the basic structure or framework of the Constitution.”
The Constitutional Bench has answered the reference. The contention of the
minority schools and teachers working thereunder is that the entire RTE Act, 2009
itself was held as not applicable to the minority schools, hence the TET
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qualification prescribed under the RTE Act, 2009 is not applicable to minority
schools. On the other hand, the State submitted that the only two sections were
held as not applicable to minority schools and not the entire RTE Act, 2009.
13. In order to consider the rival contentions and the issue raised before
this Court, it is necessary to refer to Article 15(5) which reads as under:
“Article 15(5). Nothing in this article or in sub-clause (g) of clause (1)
of article 19 shall prevent the State from making any special provision,
by law, for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes or the Scheduled Tribes in
so far as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions
referred to in clause (1) of article 30.”
14. The Constitutional Bench of Five Judges in Pramati’s case had
considered the Article 15(5) and has held as under:
“16. We have considered the submissions of learned counsel for the
parties and we find that the object of clause (5) of Article 15 is to enable
the State to give equal opportunity to socially and educationally
backward classes of citizens or to the Scheduled Castes and the
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Scheduled Tribes to study in all educational institutions other than
minority educational institutions referred in clause (1) of Article 30 of
the Constitution.
…
21. The reasoning adopted by this Court in P.A.Inamdar (2005) 6 SCC
537, therefore, is that the appropriation of seats by the State for
enforcing a reservation policy was not a regulatory measure and not
reasonable restriction within the meaning of clause (6) of Article 19 of
the Constitution. As there was no provision other than clause (6) of
Article 19 of the Constitution under which the State could in any way
restrict the fundamental right under Article 19(1)(g) of the Constitution,
Parliament made the Constitution (Ninety-Third Amendment), 2005 to
insert clause (5) in Article 15 of the Constitution to provide that nothing
in Article 19(1)(g) of the Constitution shall prevent the State from
making any special provision, by law, for the advancement of any
socially and educationally backward classes of citizens or for the
Scheduled Castes or the Scheduled Tribes in so far as such special
provisions relate to their admission to educational institutions including
private educational institutions, whether aided or unaided by the State.
Clause (5) in Article 15 of the Constitution, thus, vests a power on the
State, independent of and different from, the regulatory power under
clause (6) of Article 19, and we have to examine whether this new power
vested in the State which enables the State to force the charitable
element on a private educational institution destroys the right
under Article 19(1)(g) of the Constitution.”
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15. Finally, the Constitutional Bench held that the minority
educational institutions, by themselves, are a separate class and their rights are
protected under Article 30 of the Constitution, and, therefore, the exclusion of
minority educational institutions from Article 15(5) is not violative of Article
14 of the Constitution, thereby affirmed the judgment of another Constitution
Bench judgement rendered in Ashoka Kumar Thakur v Union of India reported
in (2008) 6 SCC 1.
16. As far as the unaided institutions are concerned, it was held that
none of the rights under Articles 14, 19(1)(g) and 21 of the Constitution have been
abrogated by clause (5) of Article 15 of the Constitution, hence the (Ninety-Third
Amendment, 2005 of the Constitution inserting clause (5) of Article 15 of the
Constitution is valid. And also held that the view taken by Bhandari, J. in Ashoka
Kumar Vs. Union of India that the imposition of reservation on unaided
institutions by the Ninety-Third Amendment has abrogated Article 19(1)(g), a
basic feature of the Constitution is not correct. Thereby upheld that the Article
15(5) is applicable to unaided non-minority institutions are concerned.
17. In effect the Article 15(5) is not applicable to unaided minority
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institutions as per Society for Unaided Private Schools of Rajasthan Vs. Union
of India and Another reported in (2012) 6 SCC 102. Likewise, Article 15(5) is
not applicable to aided minority institutions as per Pramati’s case. Both the
judgments had affirmed that Article 15(5) is applicable to unaided non-minority
institutions and also to aided non-minority institutions.
18. Thereafter in Pramati’s case the Article 21A was considered and the
said Article reads as under:
“21A. The State shall provide free and compulsory education to all
children of the age of six to fourteen years in such manner as the State
may, by law, determine.”
19. The Constitutional Bench after considering various submissions of
the contesting parties had held as under:
“44. When we examine the 2009 Act, we find that under Section 12(1)(c)
read with Section 2(n)(iv) of the Act, an unaided school not receiving
any kind of aid or grants to meet its expenses from the appropriate
Government or the local authority is required to admit in class I, to the
extent of at least twenty-five per cent of the strength of that class,
children belonging to weaker section and disadvantaged group in the
neighbourhood and provide free and compulsory elementary education
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till its completion. We further find that under Section 12(2) of the 2009
Act such a school shall be reimbursed expenditure so incurred by it to
the extent of per- child-expenditure incurred by the State, or the actual
amount charged from the child, whichever is less, in such manner as
may be prescribed. Thus, ultimately it is the State which is funding the
expenses of free and compulsory education of the children belonging to
weaker sections and several groups in the neighbourhood, which are
admitted to a private unaided school. These provisions of the 2009 Act,
in our view, are for the purpose of providing free and compulsory
education to children between the age group of 6 to 14 years and are
consistent with the right under Article 19(1)(g) of the Constitution, as
interpreted by this Court in T.M.A.Pai Foundation case reported
in (2002) 8 SCC 481 and are meant to achieve the constitutional goals of
equality of opportunity in elementary education to children of weaker
sections and disadvantaged groups in our society. We, therefore, do not
find any merit in the submissions made on behalf of the non-minority
private schools that Article 21A of the Constitution and the 2009 Act
violate their right under Article 19(1)(g) of the Constitution.
45. Under Article 30(1) of the Constitution, all minorities, whether
based on religion or language, shall have the right to establish and
administer educational institutions of their choice. Religious and
linguistic minorities, therefore, have a special constitutional right to
establish and administer educational schools of their choice and this
Court has repeatedly held that the State has no power to interfere with
the administration of minority institutions and can make only regulatory
measures and has no power to force admission of students from amongst
non- minority communities, particularly in minority schools, so as to
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affect the minority character of the institutions. Moreover, in
Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. (1973) 4
SCC 225 Sikri, CJ., has even gone to the extent of saying that
Parliament cannot in exercise of its amending power abrogate the rights
of minorities. To quote the observations of Sikri, CJ. in Kesavananda
Bharati Sripadagalvaru v. State of Kerala & Anr.:
“178. The above brief summary of the work of the Advisory Committee
and the Minorities Sub-committee shows that no one ever contemplated
that fundamental rights appertaining to the minorities would be liable to
be abrogated by an amendment of the Constitution. The same is true
about the proceedings in the Constituent Assembly. There is no hint
anywhere that abrogation of minorities’ rights was ever in the
contemplation of the important members of the Constituent Assembly. It
seems to me that in the context of the British plan, the setting up of
Minorities Sub- committee, the Advisory Committee and the proceedings
of these Committees, as well as the proceedings in the Constituent
Assembly mentioned above, it is impossible to read the expression
“Amendment of the Constitution” as empowering Parliament to
abrogate the rights of minorities.” Thus, the power under Article 21A of
the Constitution vesting in the State cannot extend to making any law
which will abrogate the right of the minorities to establish and
administer schools of their choice.
46. When we look at the 2009 Act, we find that Section 12(1)(b) read
with Section 2(n)(iii) provides that an aided school receiving aid and
grants, whole or part, of its expenses from the appropriate Government
or the local authority has to provide free and compulsory education to
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such proportion of children admitted therein as its annual recurring aid
or grants so received bears to its annual recurring expenses, subject to a
minimum of twenty-five per cent. Thus, a minority aided school is put
under a legal obligation to provide free and compulsory elementary
education to children who need not be children of members of the
minority community which has established the school. We also find that
under Section 12(1)(c) read with Section 2(n)(iv), an unaided school has
to admit into twenty-five per cent of the strength of class I children
belonging to weaker sections and disadvantaged groups in the
neighbourhood. Hence, unaided minority schools will have a legal
obligation to admit children belonging to weaker sections and
disadvantaged groups in the neighbourhood who need not be children of
the members of the minority community which has established the
school. While discussing the validity of clause (5) of Article 15 of the
Constitution, we have held that members of communities other than the
minority community which has established the school cannot be forced
upon a minority institution because that may destroy the minority
character of the school. In our view, if the 2009 Act is made applicable
to minority schools, aided or unaided, the right of the minorities
under Article 30(1) of the Constitution will be abrogated. Therefore, the
2009 Act insofar it is made applicable to minority schools referred in
clause (1) of Article 30 of the Constitution is ultra vires the Constitution.
We are thus of the view that the majority judgment of this Court in
Society for Unaided Private Schools of Rajasthan Vs. Union of India
and Another reported in (2012) 6 SCC 102 insofar as it holds that the
2009 Act is applicable to aided minority schools is not correct.
47. In the result, we hold that the Constitution by the Constitution
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(Ninety-Third Amendment) Act, 2005 inserting clause (5) of Article 15 of
the Constitution by the Constitution (Eighty-Sixth Amendment) Act,
2002 inserting Article 21A of the Constitution do not alter the basic
structure or framework of the Constitution and are constitutionally valid.
We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the
Constitution. We, however, hold that the 2009 Act insofar as it applies to
minority schools, aided or unaided, covered under clause (1) of Article
30 of the Constitution is ultra vires the Constitution.”
20. In effect the Article 21A is not applicable to unaided minority
institutions as per Society for Unaided Private Schools of Rajasthan Vs. Union
of India and Another reported in (2012) 6 SCC 102. Likewise, Article 21A is not
applicable to aided minority institutions as per Pramati’s case. Both the
judgments had affirmed that Article 21A is applicable to unaided non-minority
institutions and also to aided non-minority institutions.
21. Therefore, the conclusion is that the Article 15(5) wherein it
prescribes reservation for admission to educational institutions is valid. The
Article 21A wherein it grants free and compulsory education to all children of the
age of six to fourteen years is valid. The sections 12(1)(b), 12(1)(c) read with
sections 2(n)(iii) and 2(n)(iv) enacted based on the power under Article 15(5) and
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Article 21A are valid. However, the same is applicable to educational institutions
based on the minority and non-minority status, which in nut shell are as under:
i. Both Article 15(5) and Article 21A read with sections 12(1)
(b), 12(1)(c) and read with sections 2(n)(iii) and 2(n)(iv) of
RTE Act, 2009 are applicable to private aided non-minority
institutions.
ii. Both Article 15(5) and Article 21A read with sections 12(1)
(b), 12(1)(c) and read with sections 2(n)(iii) and 2(n)(iv) of
RTE Act, 2009 are applicable to private unaided non-
minority institutions.
iii. Both Article 15(5) and Article 21A read with sections 12(1)
(b), 12(1)(c) and read with sections 2(n)(iii) and 2(n)(iv) of
RTE Act, 2009 are not applicable to private aided minority
institutions.
iv. Both Article 15(5) and Article 21A read with sections 12(1)
(b), 12(1)(c) and read with sections 2(n)(iii) and 2(n)(iv) of
RTE Act, 2009 are not applicable to private unaided
minority institutions.
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22. From the above discussions, it is evident that the Pramati’s case
had never dealt with the section 23 of RTE Act, 2009 at all. It is under section
23 of RTE Act, 2009 the qualifications for teachers are prescribed, wherein it
states the Central Government is the Appropriate Authority to prescribe minimum
qualifications for teachers which is extracted hereunder:
“Section 23: Qualifications for appointments 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.”
23. The Central Government has notified National Council for Teachers
Education (NCTE) as the “Academic Authority” for prescribing teacher
qualifications. The NCTE has laid down the requisite qualifications for teachers
as per its notification dated 23.08.2010, wherein it is stated that along with other
educational qualifications, the teacher should possess Teacher Eligibility Test
(TET) qualification and the same is extracted hereunder:
“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”.
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24. It is seen that the NCTE had granted five-years for the serving
teachers to qualify themselves with TET qualification and extended for further
four years, thereby nine years were granted. Thereafter, the appointments ought to
be made only based on the TET qualification alone and promotion ought to be
granted to teachers who are possessing TET qualification alone.
25. Further, the validity of the RTE Act, 2009 was upheld by majority
judgment in Society for Unaided Private Schools of Rajasthan Vs. Union of
India and Another reported in (2012) 6 SCC 102, wherein it is held Sections
12(1)(c) and Section 18(3) of the RTE Act, 2009 infringe the fundamental rights
guaranteed to aided and unaided minority schools under Article 30(1) of the
Constitution and therefore Sections 12(1)(c) and Section 18(3) of RTE Act, 2009
alone shall not apply to such aided and unaided minority schools. And as far as
other provisions of RTE Act, 2009 is concerned the same is upheld even for
aided minority schools. Infact in W.A.No.76 of 2019 dated 31.03.2021, the
Division Bench has held that the staff fixation shall be based as per RTE, Act
2009 read with G.O. passed in this regard and the said portion of the order is
extracted hereunder:
“(a) For the purpose of fixing the students-teacher ratio, the provisions
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of RTE, Act followed by the G.O. passed in this regard shall be taken the
basis and the student pupil ratio shall be either 1:30 of 1:25 as the case
may be as per the provisions of RTE, Act.”
The Government has passed G.O.Ms.No.231 School Education Department, dated
11.08.2010 following RTE Act, 2009. Therefore, it is further evident that for staff
fixation the State shall follow the RTE Act, 2009 and the same is applicable for
minority institutions also. In such circumstances, the other provisions of the RTE
Act, 2009 is applicable for all the schools. Hence this Court is of the considered
opinion that the argument that the entire RTE Act, 2009 is not applicable to
minority institutions and hence TET prescribed under RTE Act, 2009 is absolutely
incorrect.
26. When the Constitutional Bench in Pramati’s case had specifically
dealt with Article 15(5) and Article 21A read with sections 12(1)(b), 12(1)(c) and
sections 2(n)(iii) and 2(n)(iv) of RTE Act, 2009, wherein it speaks of 25%
reservation for the weaker section and downtrodden children and when the
Constitutional Bench in Pramati’s case had never dealt with section 23 of RTE
Act, 2009, wherein the said section prescribe qualifications for teachers to be
appointed in Secondary Grade Teacher and B.T. Assistant, then it is absolutely
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incorrect to say that in Pramati’s case it has been held that “TET is not applicable
to minority institution”.
27. Even if for argument sake, it is taken that TET is not applicable for
minority institution, then such argument is affront to the judgment of
Constitutional Bench of Eleven Judges Bench in T.M.A.Pai Foundation case,
wherein it has been held that the State or other controlling authorities can always
prescribe the minimum qualifications, salaries, experience and other conditions
bearing on the merit of an individual for being appointed as a teacher of an
educational institution. The relevant portion is culled out hereunder:
“Q 5 (c) Whether the statutory provisions which regulate the facets of
administration like control over educational agencies, control over
governing bodies, conditions of affiliation including recognition /
withdrawal thereof, and appointment of staff, employees, teachers and
principals including their service conditions and regulation of fees etc.
would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of
administration are concerned, in case of an unaided minority
educational institution, the regulatory measure of control should be
minimal and the conditions of recognition as well as conditions of
affiliation to a university or board have to be complied with, but not the
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matter of day-to-day management, like appointment of staff, teaching
and non-teaching and administrative control over them, the management
should have the freedom and there should not be any external
controlling agency. However, a rational procedure for selection of
teaching staff and for taking disciplinary action has to be evolved by the
management itself. For redressing the grievances of such employees who
are subjected to punishment or termination from service, a mechanism
will have to be evolved and in our opinion, appropriate tribunals could
be constituted and till then such tribunal could be presided over by a
judicial officer of the rank of District Judge. The State or other
controlling authorities, however can always prescribe the minimum
qualifications, salaries, experience and other conditions bearing on
the merit of an individual for being appointed as a teacher of an
educational institution.”
28. When the Constitutional Bench of Eleven Judges had held that the
government is empowered to prescribe educational qualifications to teachers to be
appointed in any schools including minority institutions and the same still holds
good, then the TET qualifications prescribed for teachers is applicable to all
schools including minority institutions. In nut shell, the TET is applicable for the
following schools,
i. Schools run by government, local body,
ii. private aided and unaided minority institutions
iii. private aided and unaided non-minority institutions
iv. school belonging to specified category.
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29. Therefore, this is Court is of the considered opinion there cannot be
any contra opinion regarding educational qualifications prescribed for teachers
and no institution is exempted from such prescription of qualification to teachers.
30. At this point it is relevant to state that, if the TET is mandated to
non-minority schools alone and TET is dispensed with minority schools, then a
clear discrimination prevails over teachers working in minority school and
teachers working in non-minority institutions. Infact the teachers in non-minority
institutions are either losing job or losing their promotion without TET. But the
teachers in minority institutions are granted appointments, salary, incentive
increments, other service benefits and promotion without TET, thereby it is clear
discrimination and the same is against Article 14.
31. It is also pertinent to state that such discrimination has become one
of the reasons that the surplus teacher issue could not be resolved by the
Education Department. Whenever the surplus teacher ought to be transferred or
posted under deputation, the minority school teacher without TET could not be
accommodated in non-minority or government school. Therefore, the Education
Department is facing several problems in handling the surplus teachers,
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transferring the surplus teachers etc.
32. In fact, the State Government had preferred SLP in Civil Appeal No.
1384 of 2025 and eight appeals batch regarding the issue of applicability of TET
in minority institutions, but unfortunately the said appeals were withdrawn and
the same was dismissed as withdrawn. Now the question that arises whether the
withdrawal of the appeals by the State would lead a conclusion that the TET is not
necessary to minority institutions, then the answer is a big “No”. Since the
validity of RTE Act, 2009 is upheld in Society for Unaided Private Schools of
Rajasthan Vs. Union of India and Another reported in (2012) 6 SCC 102 by a
Three-Judges Bench of Hon’ble Supreme Court except Sections 12(1)(c) and
Section 18(3) of the RTE Act, 2009 which infringes the fundamental rights
guaranteed to unaided minority. In Pramati’s case the Constitutional Bench had
concurred with the order passed in 2012 6 SCC 102 as far as unaided minority
and further held 12(1)(b) and 12(1)(c) of RTE Act, 2009 infringes the fundamental
rights of aided minority institutions. When both the judgments is not dealing
with Section 23 of RTE Act, 2009 under which the TET is prescribed as
qualifications coupled with the fact that the TMA Pai Foundation case had
upheld that the educational qualifications shall be prescribed for aided minority
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institutions, then the withdrawal of the case by State will not lead to a conclusion
that the TET is not applicable to minority institutions.
33. The next question that arises is that whether by withdrawing the
appeal the State can confer any benefits to minorities institutions that TET is not
applicable to them, again the answer is big “No”. Since the RTE Act, 2009 is a
Central Act, the State has no power to grant any benefits. If granted it is directly
against the RTE Act, 2009, besides being affront to the judgment of Eleven Judges
Bench in TMA Pai Foundation case, wherein it categorically held educational
qualifications shall be prescribed. Further, if granted it will be without jurisdiction
and hence illegal.
34. In fact, even the Central Government also is not having power to
grant any such benefits which would be against the RTE Act, 2009, since
Parliament alone is empowered to amend the provisions. This is evident from the
provisions under Section 23 the same is extracted hereunder:
“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.
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(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:
*[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).]
(3) The salary and allowances payable to, and the terms and conditions
of service of, teachers shall be such as may be prescribed.”
The proviso to Section 23 states that if the teacher is not having such
qualification, then the teacher shall acquire the said qualification within a period
of five years from the date of commencement of the RTE Act. When the question
arose for extension of time, then Central Government did not extent the time. It is
the Parliament which had amended the Act and granted extension of four more
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years. And the proviso was inserted by the Amendment Act 24 of 2017 dated
09.08.2017 and published in gazette on 20.08.2017, but had given retrospective
effect from 01.04.2015 onwards. From the above amendment it is evident that
neither the Central Government nor the State Government has power to grant any
exemption from the prescription of basic minimum qualification, one among them
is TET qualification. If granted by State, then it will be directly interfering with
the power of the Parliament. Therefore, the withdrawal of appeal by the State will
not confer any benefits to the teachers in minority institutions from possessing
TET qualifications. And also by withdrawing the appeal the State cannot confer
any benefits to the teachers in minority institutions from possessing TET
qualifications. In effect the withdrawal of appeal has no impact at all.
35. Therefore, this Court after perusing the facts, provisions and by
relying on the judgments rendered in Pramati’s case and T.M.A.Pai Foundation
case is of the considered opinion that the Government has power to prescribe
minimum educational qualifications for teachers to be appointed in the
educational institutions including minority institutions. The government had
appointed NCTE as “Academic Authority” to prescribe qualifications. And NCTE
has prescribed TET as one of the qualifications. Therefore, TET qualification is
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applicable to all educational institutions including minority institutions also.
36. In the present case, since the candidate is not having TET
qualification, the approval of appointment cannot be granted. The order passed by
the Educational Department denying the approval is valid as far as TET
qualification is concerned. Therefore, the order passed by the Writ Court is set
aside and the writ appeal is allowed. No costs. Consequently, connected
miscellaneous petition is closed.
[J.N.B., J.] [S.S.Y., J.]
02.04.2025
Index : Yes / No
Tmg
To:
1.The 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,
Madurai, Madurai District.
4.The District Educational Officer,
Melur, Madurai District.
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J.NISHA BANU, J.
and
S.SRIMATHY, J.
Tmg
02.04.2025
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