Madras High Court
The Correspondent vs The Director Of School Education on 4 February, 2025
2025:MHC:349
W.P.No.3940 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.02.2025
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.No.3940 of 2025
The Correspondent,
Athar Jamath High School,
MCR Nagar, Muthu Colony,
Karumbukkadai,
Coimbatore District. ... Petitioner
Vs.
1.The Director of School Education,
DPI Campus, College Road,
Chennai 600 006.
2.The Chief Educational Officer,
Coimbatore,
Coimbatore District.
3.The District Educational Officer (Secondary),
Coimbatore,
Coimbatore District.
... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the records
relating to the proceedings issued by the second respondent by
proceeding in O.Mu.No.8139/A4/2024 dated 10.09.2024 and to quash
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W.P.No.3940 of 2025
the same and consequently, direct the respondents to approve the
appointment of the petitioner in the post of B.T.Assistant (English) in the
petitioner's School, from the date of appointment on 01.06.2018 with all
consequential and attendant benefits including the payment of salary
from the date of appointment along with interest within a time frame to
be fixed by this Court.
For Petitioner : Ms.M.Kaviya
For Respondents : Mrs.P.Rajarajeswari, Govt. Advocate
ORDER
This Writ Petition has been filed to issue a Writ of Certiorarified
Mandamus, to call for the records relating to the proceedings issued by
the second respondent by proceeding in O.Mu.No.8139/A4/2024 dated
10.09.2024 and to quash the same and consequently, direct the
respondents to approve the appointment of the individual in the post of
B.T.Assistant (English) in the petitioner's School, from the date of
appointment on 01.06.2018 with all consequential and attendant benefits
including the payment of salary from the date of appointment along with
interest within a time frame to be fixed by this Court.
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2. Heard Ms.M.Kaviya, learned counsel for the petitioner,
Mrs.P.Rajarajeswari, learned Government Advocate for the respondents
and perused the materials available on record.
3. The petitioner School is a religious minority institution and it is
the Government Aided School. One Mr.A.L.Abdul Rahim has been
appointed to the post of B.T.Assistant (English) in the petitioner School
and the proposal for his appointment has been sent to the second
respondent through the third respondent for getting approval. But the
approval was rejected by citing the reason that the appointee is not
qualified by passing the Teacher Eligibility Test.
4. Time and again it has been held in several of the earlier judicial
pronouncements that passing of Teacher Eligibility Test is not a
mandatory requirement for appointments made in the minority
institutions. The very same issue is surfacing repeatedly before the
Courts. The position of law on this issue has been well settled by the
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Division Bench of this Court in W.A.No.313 of 2022 and batch. And the
same is followed in various judgments. In this regard, it is also
appropriate to refer the judgment of this Court held in W.P. (MD)
Nos.8928 & 8929 of 2024 dated 17.04.2024 and in which, the following
orders have been passed:
"5. Therefore, the petitioners and others had
challenged the order made in W.P(MD)No.2527 of 2022
and preferred an appeal in W.A(MD)No.1177 of 2023
and the same is pending. In the meanwhile, the legal
position as to whether TET qualification is mandate for
the Teachers appointed by the minority institutions have
been settled by the Division Bench of this Court in
W.A.313 of 2022 etc., batch by its order dated
02.06.2023. In the said judgment, the following legal
position have been crystallized under paragraph
Nos.71.1, 72 and 73 as to whether TET is mandatory for
the Teachers in minority school. The same is extracted
hereunder:
“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
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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. 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
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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 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
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29.07.2011, will have to necessarily adhere
to the minimum eligibility criteria of passing
TET ."
6. Though it is held in the above judgment that
pass in TET is an essential eligibility for the direct
recruitment to the post of Secondary Grade Teachers
and BT Assistants, the said mandate is not applicable to
minority schools both aided and unaided schools. It is in
view of the special status and privilege given to the
minority institutions under Article 30 of the Constitution
of India. Since the pass in TET for minority institutions
has been held to be not necessary, the respondents need
not wait for the outcome of the W.A(MD)No.1177 of
2023 filed by the petitioners. Even the petitioners have
filed an appeal and the same is pending, the respondent
cannot deny the applicability of the advantage of the
Division Bench order dated 02.06.2023 held in
W.A.No.313 of 2022 etc., batch.
7. The law has been settled in W.A.No.313 of 2022
etc., batch and hence the 4th respondent ought to have
passed an order not only granting the monetary benefits
other than the salary which was withheld earlier for
want of TET pass and also to accommodate the approval
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for appointing the petitioners for the post of PG
Assistant on promotion. Even though the Government
has challenged the order passed in W.A.No.313 of 2022
etc., batch by filing SLP.No.45649 of 2023, the subject
matter of the challenge is not in respect of excluding the
minority institutions from the mandate of pass in TET
but for making the pass in TET as a mandate for the
promotion to the post of PG Assistant/Headmasters in
the Government and aided Schools.
8. In view of the above stated reasons the
impugned orders passed by the 4th respondent/District
Educational officer in Na.Ka.No.3435/A3/2023 dated
20.07.2023 and Na.Ka.No. 2071/A3/2022 dated
30.06.2023 are hereby set aside. The fourth respondent
is directed to pass appropriate order within a period of
eight weeks from the date of receipt of a copy of this
order."
5. In view of the above stated reasons, this Writ Petition is allowed
and the order passed by the second respondent in
O.Mu.No.8139/A4/2024 dated 10.09.2024 is set aside and the second
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respondent is directed to pass a positive order in the light of the earlier
judicial pronouncements as observed above and grant an order of
approval to the petitioner School within a period of four weeks from the
date of receipt of a copy of this order. No costs.
Index : Yes 04.02.2025
Speaking
Neutral Citation : Yes
gsk
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R.N.MANJULA, J.
gsk
To
1.The Principal Secretary to Government,
Department of School Education,
Secretariat, Chennai 600 009.
2.The Principal Secretary,
Personnel and Administrative Department,
Secretariat, Chennai 600 009.
3.The Chairman,
Teacher Recruitment Board,
Nungambakkam, Chennai - 6.
4.The Director,
The Director of School Education,
Chennai.
04.02.2025
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