Madras High Court
H.Bharathi Pradhipa … vs The District Elementary Educational ... on 2 September, 2022
Author: P.D. Audikesavalu
Bench: P.D. Audikesavalu
W.P. No. 34200 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.09.2022
CORAM
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU
W.P. No. 34200 of 2016
and
W.M.P. Nos. 29504 of 2016 and 12939 of 2017
H.Bharathi Pradhipa … Petitioner
-vs-
1. The District Elementary Educational Officer,
The Nilgiris District at Coonoor.
2. The Assistant Elementary Educational Officer,
Coonoor Range – 1,
The Nilgiris District.
3. The Correspondent,
C.S.I. Primary School,
Kodaimalai Estate,
Coonoor Range – 1,
The Nilgiris District. ... Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of India,
1950, praying to issue a Writ of Mandamus, directing the First and Second
Respondents to accord approval of appointment of the Petitioner as Secondary
Grade Teacher in the Third Respondent School from the date of her joining the
post, viz., 10.01.2012 with all consequential service and monetary benefits
within a time to be specified by this Court.
https://www.mhc.tn.gov.in/judis
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W.P. No. 34200 of 2016
For Petitioner : Mr. P.Ganesan
For Respondents : Mr. P.Balathandayutham,
Special Government Pleader
(for R1 & R2)
No appearance (for R3)
ORDER
Heard Mr. P.Ganesan, Learned Counsel for the Petitioner and Mr. P.Balathandayutham, Learned Special Government Pleader appearing for the First and Second Respondents and perused the materials placed on record, apart from the pleadings of the parties.
2. The Third Respondent is a recognized private school receiving grant-in-aid from the Government of Tamil Nadu for payment of salary to its teachers and it is not in dispute that it is a minority institution. The Petitioner was appointed as Secondary Grade Teacher on 10.01.2012 in the school of the Third Respondent, but the First and Second Respondents have not granted approval for the same as she had not passed the Teachers Eligibility Test (hereinafter referred to as 'the TET' for short) for that post as required in Section 23(1) of the Right of Children to Free and Compulsory Education Act, https://www.mhc.tn.gov.in/judis 2/10 W.P. No. 34200 of 2016 2009 (hereinafter referred to as 'the RTE Act' for short) read with notification dated 23.08.2010 (as substituted by notification dated 29.07.2011) issued by the National Council for Teacher Education (hereinafter referred to as 'the NCTE' for short) and G.O. (Ms) No. 181, School Education (C2) Department 15.11.2011 issued by the Government of Tamil Nadu. In that backdrop, the Petitioner has filed this Writ Petition for directing the First and Second Respondents to accord approval for her appointment as Secondary Grade Teacher in the school of the Third Respondent from 10.01.2012 when he joined that post with all consequential service and monetary benefits within a time limit that may be fixed by the Court by contending that there is no necessity for teachers in schools run by aided minority institutions to pass the TET.
3. In this context, reference must be made to the dictum laid down by the Constitution Bench of the Hon'ble Supreme Court of India in Pramati Educational and Cultural Trusts -vs- Union of India [(2014) 8 SCC 1] that the RTE Act does not apply to aided and unaided minority educational institutions. However, a Two Judge Bench of the Hon'ble Supreme Court of India in Ashwini Thanappan -vs- Director of Education [(2014) 8 SCC 272] after referring to the submission made by the Counsel in that case held that the Judgment in Pramati Educational and Cultural Trusts -vs- Union of India https://www.mhc.tn.gov.in/judis 3/10 W.P. No. 34200 of 2016 [(2014) 8 SCC 1] is inconsistent to the Judgment of the Larger Bench of the Hon'ble Supreme Court of India in P.A. Inamdar -vs- State of Maharashtra [(2005) 6 SCC 537], and deemed it appropriate to place the matter before the Hon'ble Chief Justice of India for appropriate directions in the matter. When this aspect of the matter was brought to the notice of the Division Bench of this Court in Secretary to Government, Government of Tamil Nadu, Chennai -vs- S. Jeyalakshmi [(2016) 5 CTC 639] in respect of persons similarly placed to the Petitioner, it was held as follows:-
“39. In the decision relied upon by the Learned Senior Counsel for the Petitioners in Ashwini Thanappan -vs- Director of Education [(2014) 8 SCC 272], the issue that arose for consideration related to the interpretation of Article 27. The matter was referred to the Bench of appropriate strength for further examination. Since the Learned Counsel submitted that the Judgment in Pramati Educational and Cultural Trust is inconsistent with the Judgment of the Constitution Bench in P.A. Inamdar -vs- State of Maharashtra [(2005) 6 SCC 537]. The matter is pending consideration.
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40. In view of the above, the contention of the Learned Additional Advocate General that the order of the Learned Single Judge directing the release of salary is not sustainable, in view of the reference of Ashwini Thanappan case to the Bench of appropriate strength, cannot be accepted, since the issue in P.A. Inamdar is with respect quota of admission of students in the unaided professional institutions, entrance test and fee structure.
Therefore, the outcome of Ashwini Thanappan has nothing to do with the case on hand.
....
58. In our opinion, non qualifying in TET by the Teachers already in service should not defeat the object of the Government to provide quality and standard education and therefore, the Government may, in the alternative, conduct a refresher course and also some interactive sessions during annual vacation, in order to ensure and enhance the quality of education. ....
60. In the light of the above, we are of the view that the Government cannot insist upon the minority institution, both aided or unaided, to abide by any Regulation framed under the https://www.mhc.tn.gov.in/judis 5/10 W.P. No. 34200 of 2016 provisions of the RTE Act. Therefore, we hold that G.O. Ms. No. 181, School Education (C2) Department dated 15.11.2011 issued by the Government of Tamil Nadu, is not applicable to the minority institutions.
....
62. However, keeping in mind the larger interest in which the Government has issued the above G.O.s, this Court feels that the minority institutions may also consider conducting a refresher course and also some interactive sessions to all the Teachers during annual vacation, in order to ensure and improve the quality of Teachers.” In view of the aforesaid legal position, it is abundantly clear that it is not necessary for the teachers in the schools run by the aided minority institutions to secure the pass in the TET for approving their appointment. The said view has been reiterated by the subsequent decisions of the Division Benches of this Court in K.Solomon Jeyaraj -vs- Secretary, Department of School Education (Order dated 25.11.2016 in W.A. (MD) No. 1437 of 2016), Y.Kanagaraj -vs- State of Tamil Nadu (Order dated 16.06.2017 in W.A. (MD) No. 724 of 2017) K.Anita -vs- State of Tamil Nadu (Order dated 26.02.2018 in W.A. (MD) No. 1090 of 2017) and P.Savarimuthu Maria George -vs- District Elementary https://www.mhc.tn.gov.in/judis 6/10 W.P. No. 34200 of 2016 Educational Officer, Virudhunagar District (Order dated 13.12.2018 in W.A. (MD) No. 948 of 2018).
4. In such circumstances, the following order is passed:-
(i) the First and Second Respondents shall immediately examine the proposal sent by the Third Respondent for approval of appointment of the Petitioner as Secondary Grade Teacher without the requirement of passing in the TET as per Section 23(1) of the RTE Act;
(ii) if it is found that any details or supporting documents satisfying the other eligibility criteria for the benefits claimed had not been produced, the deficiencies in that regard shall be informed in writing to the Petitioner requiring the same to be furnished within a time frame of not less than 15 clear working days in that regard;
(iii) in the event of not being satisfied with the requirements even thereafter, an enquiry shall be conducted affording full opportunity of personal hearing to the Petitioner to explain her position in that regard;
(iv) a reasoned order shall be passed by 31.12.2022 dealing with each of the contentions raised on merits and in accordance with law and the decision taken communicated under written acknowledgment;
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(v) if the Petitioner is found entitled to the claim made, the eligible amount of arrears of salary benefits shall be disbursed within a period of three months from the date of passing of that order, apart from salary for future months on the due dates; and
(vi) the report of completion of the aforesaid exercise shall be filed before the Registrar (Judicial) of the Court.
In fine, the Writ Petition is disposed on the aforesaid terms. Consequently, the connected Miscellaneous Petitions are closed. No costs.
02.09.2022 vjt Index: Yes/No Note: Issue order copy by 14.10.2022.
To
1. The District Elementary Educational Officer, The Nilgiris District at Coonoor.
2. The Assistant Elementary Educational Officer, Coonoor Range – 1, The Nilgiris District.
https://www.mhc.tn.gov.in/judis 8/10 W.P. No. 34200 of 2016
3. The Correspondent, C.S.I. Primary School, Kodaimalai Estate, Coonoor Range – 1, The Nilgiris District.
Copy to The Registrar (Judicial), Madras High Court, Chennai – 600 104.
https://www.mhc.tn.gov.in/judis 9/10 W.P. No. 34200 of 2016 P.D. AUDIKESAVALU, J.
vjt W.P. No. 34200 of 2016 02.09.2022 https://www.mhc.tn.gov.in/judis 10/10