Madras High Court
P. Savarimuthu Maria George vs The District Elementary Educational ... on 13 December, 2018
Author: P.D. Audikesavalu
Bench: K.K. Sasidharan, P.D. Audikesavalu
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE K.K. SASIDHARAN
and
THE HONOURABLE MR.JUSTICE P.D. AUDIKESAVALU
W.A. (MD) No. 948 of 2018
P. Savarimuthu Maria George ... Appellant/Petitioner
-vs-
1. The District Elementary Educational Officer,
Virudhunagar District.
2. The Assistant Elementary Educational Officer,
Vatrayiruppu, Virudhunagar District.
3. The Correspondent,
RC Primary School,
Elanthikulam, Vatrayiruppu,
Virudhunagar District. ... Respondents/Respondents
PRAYER : Writ Appeal filed under Clause 15 of Letter Patent, praying to set
aside the order dated 14.07.2016 in W.P. (MD) No. 13168 of 2014.
For Appellant : Mr. S. Manikandan
For Respondents : Mrs. S. Srimathy
http://www.judis.nic.in
2
JUDGMENT
(Judgment of the Court was delivered by P.D. AUDIKESAVALU, J.) The Appellant, who has completed diploma in Teacher Education, was appointed as Secondary Grade Teacher in the school of the Third Respondent, which is an aided minority institution, by order dated 30.10.2010 in a sanctioned vacancy.
2. The Government of Tamil Nadu issued G.O. Ms. No. 181, School Education (C2) Department dated 15.11.2011, in pursuance of Section 23(1) of the Right of Children to Free and Compulsory Education Act, 2009, that the teaches who passed the Teacher Eligibility Test were alone made eligible to become teacher. It is also stated therein that in view of the specific provisions of that enactment, those who do not possess the qualification of pass in Teacher Eligibility Test at the time of its commencement on 01.04.2010, would have to acquire that minimum qualification within a period of 5 years. When the appointment of the Appellant by the school of the Third Respondent was sent to the First Respondent for approval for the purpose of receiving aid, the First Respondent by proceedings in O. Mu. No. 924/A1/2012 dated 27.09.2013 held that since the Appellant did not possess the requirement of pass in Teacher Eligibility Test, her appointment could not be approved. Aggrieved http://www.judis.nic.in 3 thereby, the Appellant filed W.P. (MD) No. 13618 of 2014 before this Court challenging the said order of the First Respondent refusing to accept the appointment of the Appellant and for further direction directing the Third Respondent to re-submit the proposal to the First Respondent and for directing the First Respondent to grant approval to the appointment of the Appellant as Secondary Grade Teacher in the school of the Third Respondent with effect from 01.11.2010.
3. In the meanwhile, a Constitution Bench of the Hon'ble Supreme Court of India in Pramati Educational and Cultural Trusts -vs- Union of India [(2014) 8 SCC 1] held that the Right of Children to Free and Compulsory Education Act, 2009, 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 [(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 the Writ Petition was taken up before the Writ Court along with a batch of similar http://www.judis.nic.in 4 cases, the Writ Court by order dated 14.07.2016 disposed the same with following directions:-
“The Petitioners shall be given salary in the course of their employment within a period of four weeks from the date of receipt of a copy of this order and no steps to remove them from service shall be taken. However, it is made clear that this order is subject to the final outcome of the case pending before the Supreme Court in Aswini Thanappan -vs- Director of Education and another (2014) 8 SCC 272. It is further made clear that the Petitioners shall not claim any equity on account of this order, without prejudice to the rights and contentions of the parties.” The Appellant has preferred this intra-Court Appeal aggrieved by the aforesaid order of the Learned Judge to the extent of not granting approval to her appointment by the First Respondent.
4. Shortly after the disposal of the Writ Petition which is the subject matter of this appeal, a Division Bench of this Court in Secretary to Government, Government of Tamil Nadu, Chennai -vs- S. Jeyalakshmi http://www.judis.nic.in 5 [(2016) 5 CTC 639], held in paragraph nos. 39 and 40, 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.
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 http://www.judis.nic.in nothing to do with the case on hand.” 6 It would also be relevant to refer the following paragraphs in that Judgment of the Division Bench of this Court:-
“52. However, the Government, before issuing G.O. Ms. No. 181 dated 15.11.2011, lost sight of one important fact, namely imposition of a condition on the Teachers, who were appointed prior to the issue of G.O., in non minority Schools, both aided and unaided, to qualify themselves with TET within a period of five years, in order to continue in service, would cause great hardship to them. Moreover, if the Teachers who have put in more number of years of service, could not pass TET within five years, their contribution in service would be in jeopardy. Further, it is seen that the percentage of pass in the TET examination conducted in 2012 and 2013 was very minimal.
56. We are, therefore, of the considered view that the Government may seek a clarification from the NCTE, in the light of what is stated in the preceding paragraph, whether the prescription of minimum qualification of TET can be made applicable prospectively for the Teachers who were appointed http://www.judis.nic.in 7 subsequent to the date of issue of G.O., in both non minority and minority institutions and not retrospectively as the same would cause undue hardship to the Teachers who have been serving for a quite a long time.
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 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 http://www.judis.nic.in the minority institutions may also consider conducting a 8 refresher course and also some interactive sessions to all the Teachers during annual vacation, in order to ensure and improve the quality of Teachers.” The resultant effect of that decision is that it is not necessary for teachers in schools run by aided minority institutions to secure a pass in Teacher Eligibility Test 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 (Judgment dated 25.11.2016 in W.A. (MD) No. 1437 of 2016), Y. Kanagaraj -vs- State of Tamil Nadu (Judgment dated 16.06.2017 in W.A. (MD) No. 724 of 2017) and K. Anita
-vs- State of Tamil Nadu (Judgment dated 26.02.2018 in W.A. (MD) No. 1090 of 2017)
5. In the light of this consistent view taken by the Division Benches of this Court, the order dated 14.07.2016 in W.P. (MD) No. 13168 of 2014 passed by the Writ Court to the aforesaid extent, which is the subject matter of this appeal, cannot be sustained and accordingly the same is set aside. Resultantly, the order in O. Mu. No. 924/A1/2012 dated 27.09.2013 passed by the First Respondent is quashed and there shall be a direction to the Third Respondent http://www.judis.nic.in 9 to re-submit the papers relating to the appointment of the Appellant by 31.12.2018 for approval before the First Respondent, who shall consider the same on merits and in accordance with law and communicate the decision taken to the concerned parties by 31.01.2019. The Writ Appeal is allowed on the aforesaid terms. No costs.
(K.K. SASIDHARAN, J.) (P.D. AUDIKESAVALU, J.)
13.12.2018
vjt
Index : Yes / No
Internet : Yes / No
Note: Issue order copy on 19.12.2018.
To
1. The District Elementary Educational Officer, Virudhunagar District.
2. The Assistant Elementary Educational Officer, Vatrayiruppu, Virudhunagar District.
3. The Correspondent, RC Primary School, Elanthikulam, Vatrayiruppu, Virudhunagar District.
http://www.judis.nic.in 10 K.K. SASIDHARAN, J.
and P.D. AUDIKESAVALU, J.
vjt W.A. (MD) No. 948 of 2018 13.12.2018 http://www.judis.nic.in