Madras High Court

M.D. Aided Primary School vs The Government Of Tamil Nadu on 24 March, 2025

Author: V.Bhavani Subbaroyan

Bench: V.Bhavani Subbaroyan

                                                                                          W.P.No.29414 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 24.03.2025

                                                         CORAM

                          THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                              W.P.No.29414 of 2023
                                                      and
                                             W.M.P.No.29039 of 2023

                     M.D. Aided Primary School,
                     Sevoor, Kadpadi Union, Vellore District,
                     Rep. by its Correspondent,
                     Mr. A. Rajamanickam                                               ... Petitioner


                                                              Vs.


                     1. The Government of Tamil Nadu,
                        Rep. by its Secretary,
                        School Education Department,
                        Fort. St. George,
                        Chennai – 600 009.

                     2. The Director of Elementary Education,
                        College Road,
                        Chennai – 600 006.

                     3. The District Educational Officer,
                        District Collectorate Office,
                        Sathuvachari, Vellore,
                        Vellore District – 632 009.

                     4. The Block Educational Officer,
                        Kadpadi Union, Vellore District – 632 007                      ... Respondents


                     1/12


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                                                                                              W.P.No.29414 of 2023




                                  Writ Petition is filed under Article 226 of the Constitution of India,

                     to issue a Writ of Mandamus, directing the 3rd respondent to approve the

                     appointment of V.K.Kavitha as a Secondary Grade Teacher in the

                     petitioner school with salary and all other attendant benefits from

                     04.02.2022 as per the proposal submitted through the 4th respondent in

                     Na.Ka.No.099/A1/2022 dated 23.02.2022 which was re-submitted on

                     06.02.2023.



                                              For Petitioner          : Mr.P.Ebenezer Paul

                                              For Respondents : Mr.E.Prabhakaran
                                                                Government Advocate



                                                                ORDER

This Writ Petition has been filed seeking a direction to the 3rd

respondent to approve the appointment of V.K.Kavitha as a Secondary

Grade Teacher in the petitioner school with salary and all other attendant

benefits from 04.02.2022 as per the proposal submitted through the 4th

respondent in Na.Ka.No.099/A1/2022 dated 23.02.2022 which was re-

submitted on 06.02.2023.

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2. The case of the petitioner is that, one Secondary Grade Teacher

post become vacant due to transfer of one of the teachers, namely

J.Anitha Priyadharshini. The school was sanctioned with two posts i.e.

one Headmaster and one Secondary Grade Teacher. The management

appointed one V.K.Kavitha as a Secondary Grade Teacher in the vacant

post on 01.02.2022 and she joined in the said post on the forenoon of

04.02.2022. The said teacher V.K.Kavitha passed SSLC in 1995, HSC in

1997, Diploma in Teacher Education in 2010 from the Department of

Government Examination, Chennai – 600 006. A proposal for approval of

the appointment of V.K.Kavitha from 04.02.2022 as Secondary Grade

Teacher was sent to the 3rd respondent through the 4th respondent on

04.02.2022. The 4th respondent vide his proceedings dated 23.02.2022 in

Na.Ka.No.099/A1/2022 forwarded the said proposal of the management

for approval specifically stating that, the said teacher was appointed in the

vacant Secondary Grade Teacher post and the school being a minority

school getting a pass in TET does not arise. The said proposal submitted

was returned by the 3rd respondent vide his proceedings dated 15.06.2022

stating that, in the Corporate Management Schools of CSI Diocese of

Vellore, there is no surplus post available and a certificate to that effect

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has to be enclosed apart from submitting sanitary certificate, fire service

certificate, structural soundness candidate and the recognition order. The

Educational agency of the petitioner school has already obtained interim

stay against the validity of Rule 32 of the Tamil Nadu Private School

Regulations Rules 2023 which deals with deployment of teacher from

non minority schools to minority schools. Also, in a batch of Writ

Petition in W.P.(MD) Nos. 6340 of 2018 etc. batch dated 02.09.2022, this

Court, following the earlier decisions of this Court and other judgments,

directed the authorities to approve the proposals which are pending and

pass approval orders subject to the outcome of the final decision in

SLP(C) Nos.15702 of 2021 and 12693 of 2022 pending before the

Hon'ble Supreme Court. Thus, the petitioner school is entitled to get

approval of the appointment of V.K.Kavitha as Secondary Grade Teacher

from 04.02.2022 with salary and other benefits. However, no approval

has been granted till date. Hence, the present writ petition has been filed.

3. The 3rd respondent has filed a counter affidavit, wherein it is

stated that, the minimum qualification of TET i.e. Teacher Eligibility Test

is mandatory according to the Right of Children to Free and Compulsory

Education Act, 2009 (RTE Act 2009). However, it has been held in

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several judgments that, TET is not applicable to minority institutions, as

it has been held in Paramathi Educational & Cultural Trust and others

Vs. Union of India reported in 2014 (4) MLJ 486 (SC) case that, RTE

Act is not applicable to minority institutions. However, in Paramathi case,

the reference is made to see the validity of clause (5) of Article 15 of the

Constitution inserted by the Constitution (Ninety-third Amendment) Act,

2005 with effect from 01.04.2010. The issue was that whether the

inserting clause (5) in Article 15 and 21 A is applicable to minority

institutions. This amendment read with RTE Act, 2009 has directed the

school to admit 25% children belonging to weaker sections and

disadvantaged groups in the neighbourhood and whether such direction

shall be given to minority institutions. The Hon'ble Court has held that,

such directions cannot be issued since it alters basic structure of

constitution. The Hon'ble Supreme Court has not considered the issue

whether the TET is applicable for minority institutions. In such

circumstances, the Hon'ble Court ought to have held that, TET is

applicable to minority institutions. Under RTE Act, there is no specific

section for exemption from TET for minority institutions. Hence, the

Learned Government Advocate appearing for the respondents submits

that, this Writ Petition is devoid of merit and is liable to be dismissed.

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4. The correspondent of the petitioner school has filed a reply

affidavit, wherein it is stated that, the Hon'ble Division Bench of this

Court in Government of Tamil Nadu vs S. Jeyalakshmi reported in

[2016 (5) CTC 639] (DB)(Mad) held that, TET pass is not required for

appointment of teachers in Minority Institutions. The Hon'ble Division

Bench followed the judgment of the Hon'ble Supreme Court in Pramati

Educational and Cultural Trust & Ors. vs Union of India reported in

2014 (8) SCC 1, wherein it is clearly held that, provisions of the Right to

Education Act 2009 will not be applicable to minority institutions and in

Paragraph 59 of the Division Bench Judgment of this Court, declaration

was made. Hence, the contention of the 3rd respondent that, RTE Act is

applicable to minority institutions is legally unsustainable in law. It is

further stated that, the same view was reiterated by the Hon'ble Supreme

Court in Society for Unaided Private School of Rajasthan vs Union of

India reported in 2012 (6) SCC 1. Hence, the TET exam which is

conducted as per the RTE Act 2009 and Rules 2011 is not applicable to

the petitioner institution as it is a minority school within the meaning of

Article 30(1) of the Constitution of India. Again, recently the Hon'ble

Division Bench of this Court in judgment dated 02.06.2023 in W.A.No's

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313 of 2022 etc. batch in the matter of The Director of School Education

and 2 others vs M.Velayutham and another held in Paragraph 71.1 that,

TET is inapplicable to minority institutions by following the dictum made

by the Hon'ble Supreme Court in Pramati Educational and Cultural Trust

Case. Hence, the Learned Counsel appearing for the petitioner prays to

allow this writ petition, by issuing a direction to the 3rd respondent to

approve the appointment of V.K.Kavitha as a Secondary Grade Teacher

in the petitioner school as per the proposal submitted by the petitioner.

5. Heard both sides and perused the materials available on record.

6. The issue involved in the present writ petition is squarely

covered by the Judgment of the Hon'ble Division Bench of this Court in

W.A.No's 313 of 2022 etc. batch, dated 02.06.2023. The Hon'ble Division

Bench, following the dictum made by the Hon'ble Supreme Court in

Pramati Educational and Cultural Trust & Ors. vs Union of India

reported in [2014 (8) SCC 1], has categorically held that, TET is not

applicable to teachers appointed in minority schools. The relevant

portions are extracted hereunder :-

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“71.1. A perusal of the orders impugned in the writ petitions leading to these writ appeals would indicate that the 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

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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 the above four writ appeals are dismissed.”

7. The above reasoning given by this Court will squarely apply to

the facts of this case also. Hence, this Court is inclined to remit the matter

back to the file of the 3rd respondent to accord approval for the

appointment of V.K.Kavitha.

8. Accordingly, the matter is remitted back to the file of the 3rd

respondent and the 3rd respondent is directed to accord approval for the

appointment of V.K.Kavitha, if she is otherwise eligible. It is made clear

that, the 3rd respondent should not once again put against the petitioner

the TET eligibility for according approval. This process shall be

completed within a period of six weeks from the date of receipt of a copy

of this order.

9. With the above directions, this Writ Petition stands allowed.