Madras High Court
G.Jansi Helen Mary … vs The Union Territory Of Puducherry on 30 April, 2024
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 19.03.2024
Pronounced On 30.04.2024
CORAM
THE HONOURABLE MR. JUSTICE R.SURESH KUMAR
AND
THE HONOURABLE MR. JUSTICE K.KUMARESH BABU
W.A.Nos.2842, 2176, 2214, 2557, 2848, 2040 of 2018
&768, 873 of 2019 and 125 of 2021
and W.P.Nos.10371 to 10374 of 2014 & 12940 to 12942 of 2015
& 21850 to 21854 of 2015 & 22129 & 22130 of 2015 and 27170 to 27173
& 21062 of 2015
and W.M.P.Nos.1822 to 1824 of 2016 & 32250 to 32253 of 2017
and C.M.P.Nos.16876, 16877, 16087, 17378, 19006, 20628, 20909, 23692,
23693, 16086, 23640, 23638 of 2018 and 6060, 6062, 6718, 6720 of 2019
and 701 & 702 of 2021
W.A.No.2842 of 2018
G.Jansi Helen Mary … Appellant
Vs
1.The Union Territory of Puducherry,
by its Secretary,
Department of Education
Secretariat, Puducherry – 605 001.
2.The Director of School Education,
Government of Puducherry,
Directorate of School Education,
Puducherry – 605 005.
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3.The Senior Accounts Officer,
Government of Puducherry,
Directorate of School Education,
Puducherry – 605 005.
4.The Joint – Director of School Education,
Government of Puducherry,
Directorate of School Education,
Puducherry – 605 005.
5.The Correspondent/ Manager,
Immaculate Heart of Mary Higher Secondary School,
275, Mission Street,
Puducherry – 605 001. … Respondents
PRAYER:-Writ Appeals have been filed under Clause 15 of Letter Patent
against the order dated 13.12.2018 made in W.P.Nos.21117 of 2015.
W.A.Nos.2842, 2176, 2557, 2848 & 2040 of 2018 and 768, 873 of 2019
and 125 of 2021 and for R2 in W.A.No.2214 of 2018 and in all Writ
Petitions
For Appellants : Dr.Father Xavier Arul Raj
Senior Counsel
for M/s.Father Xavier Associate
For R1 in
W.A.No.2214 of 2018 : Mr.G.Sankaran
Senior Counsel
for Mr.S.Nedunchezhiyan
W.A.Nos.2842, 2176, 2557, 2848 & 2040 of 2018 and 768, 873 of 2019
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and 125 of 2021 for respondents 1 to 4 and for appellant in
W.A.No.2214 of 2018 and in all Writ Petitions
For Respondents : Mr.AR.L.Sundaresan
Additional Solicitor General
for Mr.R.Syed Mustafa
Special Government Pleader (Pondy)
For fifth respondent in all W.As and W.Ps except in W.A.No.2214 of
2018
For R5 : Mr.V.John Kennedy
COMMON JUDGMENT
K.KUMARESH BABU, J.
The lis that is involved in these batch of cases is as to the grant of
approval of appointments made by the private aided minority institutions.
These appointed Teachers by the respective minority institutions had
approached this Court seeking for a Mandamus to direct the Department of
School Education to accord approval for their appointments. In one Writ
Appeal the respondent had approached this Court challenging the order of
the Department, wherein, it was informed to the Institution that her case
could be considered only after the Recruitment Rules are framed and
approved by the Director.
2. It is pertinent to note that in none of the cases, the Management of
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the minority institutions had initiated any proceedings on the proposals that
have been submitted in respect of the appointments made. Only the
appointed Teachers had approached this Court.
3. The learned Single Judge of this Court, by his orders, dated
13.12.2017 and 26.06.2018 in the Writ Petitions that had been listed before
him had passed orders directing the respective Managements to submit a
fresh proposal to the Department for its consideration for grant of approval
of appointments. However, inter alia, he had also discussed various issues
relating to the qualifications and age limit. Even though, he had held that
the authority under the Recruitment Rules can provide relaxations of the age
limit by considering the facts placed before it, he had held that such
relaxation ought to have been granted in a way that it does not derogate the
Recruitment Rules. Further, the learned Single Judge had also held that
Teachers’ Eligibility Test (hereinafter referred to as ‘TET’) is a necessary
qualification which cannot be relaxed even invoking the powers of
relaxation under the Recruitment Rules. Against the said findings, these
Writ Appeals have been preferred by the respective Writ Petitioners.
4. These Writ Petitions on board before us had all been tagged
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together with these batch of Writ Appeals as the relief sought for in those
Writ Petitions was for a Mandamus to the respective authority to grant
approval of the appointments of the respective Writ Petitioners.
5. As regards to the Writ Appeal No.2214 of 2018 , a proposal had
been sent by the Management seeking approval of the appointment of the
first respondent. The Directorate of School Education in its proceedings
dated 18.07.2012 had indicated that the resulted vacancy in which the first
respondent had been appointed, could be filled up only after the
Recruitment Rules are framed and approved by the Director. The said
communication which was under challenge was set aside by the learned
Single Judge with a direction to grant approval to the appointment of the
respondent from the date of initial appointment.
6. It is pertinent to note that under Rule 43 (1) of the Pondicherry
School Education Rules 1996, a Teacher could be appointed in accordance
with the Recruitment Rules framed by the Management, as approved by the
Director. It is also brought to our notice that the said Rules had been the
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subject matter of a Writ Petition in W.P.No.35996 of 2007, which is still
pending consideration of this Court.
7. Heard Dr.Father Xavier Arul Raj, learned Senior Counsel
appearing for appellants/Teachers, Mr.G.Sankaran learned Senior Counsel
for Mr.S.Nedunchezhiyan, learned counsel appearing for the first
respondent in W.A.No. 2214 of 2018 and Mr.A.R.L.Sundaresan learned
Additional Solicitor General for Mr.R.Syed Mustafa learned Special
Government Pleader appearing for the Union Territory of Puducherry.
8. The broad arguments of the respective counsels appearing for the
respective appointees and the School Managements are that;
(a) The Management is an aided minority school.
(b) TET had been prescribed as an essential
qualification under the Rules framed by the National Council
for Teacher Education (hereinafter referred to as ‘NCTE’) in
exercise of the authority vested with it by the Central
Government under Section 23 of the Right of Children to Free
and Compulsory Education Act, 2009 (hereinafter referred to
as Act 2009)
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(c) The said Rules cannot be applied to the
minority institutions, as the same had been framed under the
Act, 2009 which had been held to be abrogate the rights of the
minorities and would not be applicable to the minority schools
both aided and unaided.
(d) Alternatively, an argument had also been
advanced that in the event this Court holds that the said Rules
are applicable even to the minority aided/ unaided institutions.
The prescription of TET cannot be sought to be applied to the
appointments made prior to 2010 that is when such Rules
requiring the TET was notified.
(e) When the power of relaxation had been vested with
the Authority, the Authority ought to have given such power to
exercise such relaxation in its own wisdom and the order of
the learned Single Judge indicating that the parameters of
relaxation would weigh the mind of the Authority and
therefore, such findings given by the learned Single Judge
ought to be set aside.
9. In support of their contention various judgments had also been
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relied upon which are as follows;
(a) 2014 (8) SCC 1 – Pramati’s case.
(b) 2016 (7) MLJ 155 – Jayalakshmi’s case.
(c) 2013 (5) LW 514 – Ravichandran’s case
(d) Order made in W.A.No.313 of 2002 – M.Velayudam’s
case.
10. Even though, various other judgments were also cited before us,
since, those cases were made by the learned Single Judges of this Court, we
do not wish to look into the same, as they could only be relied upon to
persuade this Court.
11. On the side of Government of Puducherry, the following
submissions have been made.
(a) The Hon’ble Apex Court’s judgment in
Pramati’s case could not be extended to the facts of this
case, as the issue involved is predominantly on the
qualifications of a teacher that is to be recruited and not the
establishment or administration of the school concerned.
(b) The Rules, even though framed under the
Act, 2009 when the qualifications have been prescribed for
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the appointment of Teachers in any school, then such
qualifications are necessary qualifications.
(c) When the qualifications have been
prescribed, it is for the respective schools to adhere to the
said qualifications, since the qualifications of Teachers fixed
cannot be restricted only to a non-minority institution. The
qualification fixed are to achieve higher standards of
imparting education and therefore, to contend that it would
not apply to a minority institution and would affect the
children who are the future of India.
(d) The power of relaxation cannot be extended to
relax the essential qualifications required for appointment of
a Teacher. If such relaxation is given to the qualification,
then it would only displace the merits or the teaching
capability of a teacher which would directly affect the
interest of the students. Therefore, the findings of the learned
Single Judge, according to them need not have to be set
aside.
(e) However, the issue relating to the age relaxation, it
had been fairly submitted that it could be referred to the
authority for him to take an independent decision without
being influenced by the observations made by the learned
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Single Judge.
(f) Relying upon the judgment of the Hon’ble Apex
Court in the case of Sk.Mohd. Rafique vs. Managing
Committee, Contai Rahamania High Madrasah & Ors.,
reported in 2020 (6) SCC 689 which had been affirmed in a
judgment in the case of Christian Medical College Vellore
Association vs. UOI & Ors. reported in 2020 (8) SCC 705,
the learned Additional Solicitor General had contended that
when a qualification or a process of selection has been
envisaged, the same could not be considered to infringe the
power of the minority as regards to the establishment and
administration of its institution. It was further contended
that, such Rules or Regulations would not affect the rights of
the minority institutions vested with it under Article 30(1) of
the Constitution of India. The Rules that is in force on the
date of consideration alone would be applicable and not the
Rules that was previously available.
(g) It was further contended that a Division Bench of
this Court in Writ Appeal (MD).No.43 of 2023 had held that
the Rules made by the NCTE requiring TET qualification
would also cover the Teachers who were appointed prior to
2010. The subsequent judgment of this Court relied upon by
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the other side was made subsequent to the Division Bench
judgment of the Madurai Bench earlier and the same was not
placed before the subsequent Division Bench which had
taken a contradictory view. It was also pointed out to this
Court that a Division Bench of this Court noting down the
contradictory view expressed by the two Division Bench
judgments of this Court had referred the matter before the
Hon’ble Chief Justice to resolve the controversy to refer the
lis to a Larger Bench.
12. We have heard the rival submissions made by the learned
counsels appearing for their respective parties and perused the materials
available on record before this Court.
13. According to us, to decide the controversy in the lis before us, the
following questions would arise for consideration:-
(a) Whether the Rules 2010 of NCTE framed under
the Act 2009 would apply to a minority institution both aided
and unaided?
(b) If the Rules are applicable to aided minority
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institution, whether the 2010 Rules would be applicable to theteachers appointed prior to its notification?
(c) Whether the authority under the Recruitment
Rules would have power to relax the age and qualification?
14. The learned Single Judge in the orders impugned before us had
held that the law laid down by the Hon’ble Apex Court in Pramati’s case
cannot be extended to the present facts on hand, as the present issue relates
to the qualification of a teacher to be appointed, which no way interferes
with the rights of the minority to establish and administer the education
institution. The learned Single Judge had placed reliance upon the
judgment of the Hon’ble Apex Court to come to a conclusion that the norms
fixing the qualification or a procedure of appointment cannot be set aside
infringing the rights of minority institutions both aided and unaided under
Article 30(1) of Constitution of India.
15. In that context, it would be useful to analyse the judgment of the
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Hon’ble Supreme Court in the Pramati’s case referred supra. For better
appreciation, the relevant paragraphs of the aforesaid judgment is extracted
hereunder:-
“54. 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 affect the minority character of the institutions.
Moreover, in Kesavananda Bharati v. State of Kerala
[(1973) 4 SCC 225] Sikri, C.J., 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, C.J. In Kesavananda Bharati v. State
of Kerala [(1973) 4 SCC 225] : (SCC p. 339, para 178)
“178. The above brief summary of the work of the
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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 21-A 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.
55. When we look at the 2009 Act, we find that
Section 12(1)(b) read with Section 2(n)(ii) provides that an
aided school receiving aid and grants, whole or part, of itsexpenses from the appropriate Government or the local
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authority has to provide free and compulsory education to
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
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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 v. Union of India [(2012) 6
SCC 1] insofar as it holds that the 2009 Act is applicable to
aided minority schools is not correct.
56. In the result, we hold that the Constitution
(Ninety-third Amendment) Act, 2005 inserting clause (5) of
Article 15 of the Constitution and the Constitution (Eighty-
sixth Amendment) Act, 2002 inserting Article 21-A 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. Accordingly, Writ Petition (C)
No. 1081 of 2013 filed on behalf of Muslim Minority
Schools Managers’ Association is allowed and Writ
Petitions (C) Nos. 416 of 2012, 152 of 2013, 60, 95, 106,
128, 144-45, 160 and 136 of 2014 filed on behalf of non-
minority private unaided educational institutions are
dismissed. All IAs stand disposed of. The parties, however,
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shall bear their own costs.”
16. The Hon’ble Apex Court had in clear terms held that the rights of
a minority available under Article 30(1) of Constitution of India cannot be
abrogated in any manner.
17. The Act, 2009 was introduced with an avowed object of providing
compulsory free education to all children upto the age of 14 years, as it was
found that children from disadvantage groups and weaker sections dropped
out of school before completing elementary education. Section 1 of the Act
2009 reads as thus:-
“ 1. This Act may be called The Right of Children
to Free and Compulsory Education Act, 2009.
(2) It shall extend to the whole of India
(3)It shall come into force on such date as the Central
Government may, by notification in the Official Gazette,
appoint.
(4)
(4)Subject to the provisions of articles 29 and 30
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apply to conferment of rights on children to free and
compulsory education.
(5) Nothing contained in this Act shall apply to
Madrasas, Vedic Pathsalas and educational institutions
primarily imparting religious instruction.”
18. It is pertinent to note that Sub Section (4) and (5) were brought in
by way of amendment Act 30 of 2012. The said provisions had been inserted
under the said amendment. It was mandated that the provisions of the Act
were to apply subject to Articles 29 and 30 of the Constitution of India.
Section 23 of the Enactment envisages the qualification for appointment and
terms and conditions of services of a Teacher. The said provision reads as
follows:-
“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.
(2) Where a State does not have adequate
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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.]
(3)The salary and allowances payable to, and the
terms and conditions of service of, teachers shall be such
as may be prescribed.”
19. Section 23 envisages that such minimum qualifications can be laid
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down by an Academic Authority which is authorised by the Central
Government. The Central Government by its notification, dated 31.03.2010
published in the Gazette on 05.04.2010, in exercise of its power under
Section 23 of the Act, 2009 had authorised the NCTE as the Academic
Authority to lay down the minimum qualifications for the person to be
eligible for appointment as a Teacher. Pursuant to the said notification, the
NCTE issued its notification prescribing the minimum qualification on
23.08.2010 which had been amended by subsequent notifications. As per the
said notification, TET had been prescribed as an essential qualification for
appointment of the Teachers.
20. It is very shocking that none of the parties to the lis had placed
before us the subsequent notification, dated 12.11.2014, issued by the NCTE
in exercise of its power conferred under Clause (dd) of Sub Section (2) of
Section 32 read with Section 12A of the National Council for Teacher
Education Act, 1993. The said notification was issued in super-session of
the National Council for Teacher Education (Determination of Minimum
Qualification for Recruitment of Teachers in Schools) Regulation, 2001. The
said Rules of the year 2014 was titled as “ National Council for Teacher
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Education (Determination of Minimum Qualification of persons to be
Recruited as Education Teachers and Physical Education Teachers in Pre-
Primary, Primary, Upper Primary, Secondary, Senior Secondary or
Intermediate Schools or Colleges) Regulation, 2014” . The said Regulations
were to come into force on the date of its publication in the official Gazette.
The said notification had also been published by the Government in its
Gazette dated 16.12.2014. The Regulation 2 deals with ‘the applicability of
the Regulation. The Regulations were to be applicable for recruitment of
Teachers and Physical Education Teachers in a recognised school
imparting pre-primary, primary, upper primary, secondary, senior
secondary or intermediate schools or colleges imparting senior secondary
education, explanation of the school for the purpose of the regulation has
also been appended to the said Rules which includes every school. There is
no distinction of minority and non-minority institutions. The Regulation 4
deals with ‘the qualifications for recruitment’. The Schedule of the
Regulations particularly the Schedule-I deals with the minimum
qualification in respect of education Teachers.
21. From a reading of the Schedule-I, it could be seen that there are
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five categories, which are as follows:-
(a) Pre-school/ Nursery (for the children in the age group of 4 to 6
years)
(b) Pre-school/ Nursery followed by the first two years in formal
school.
(c) Primary and upper primary for classes I to VII
(d) Secondary/ High School for classes IX and X
(e) Senior Secondary/ Intermediate for classes XI and XII
22. From the minimum academic and professional qualification that
had been prescribed, except for Clause 3, there is no prescription for TET
qualification. For the 3rd category, the minimum qualification as prescribed
under Regulation of the year 2010 framed under Act, 2009 was adopted.
The said Regulation, 2010 mandates a TET qualification for a Teacher to be
appointed to a primary and upper-primary classes is classes I to VIII. Since,
these Regulations have not at all been addressed to us and now that these
Regulations have been notified by the NCTE under the provisions of NCTE
Act, we are of the view that the contentions raised by the respective counsels
as to the applicability of TET, which had been mandated under the
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Regulations 2010, whether would be applicable to the minority institutions
or not, need not be addressed at all, in view of Regulation, 2014.
23. The aforesaid Regulations of the year 2014 of NCTE had been
made in exercise of their powers vested with it under the National Council
for Teacher Education Act, 1993. Section 12 envisages the functions of the
Council. Section 12(d) empowers the Council to lay down guidelines in
respect of minimum qualifications for a person to be employed as a Teacher
in recognised institutions.
24. It is to be noted that the said Clause had underwent an
amendment in the year 2012, wherein, the words “ in schools” have been
omitted from the aforesaid provision. Therefore, prior to the said
amendment, the said Clause would have to be read as empowering the
Council to lay down guidelines in respect of minimum qualifications for a
person to be employed as a teacher even in schools .
25. It is to be noted that pursuant to the said power, the Council had
in fact promulgated the National Council for Teacher Education
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(Determination of Minimum Qualification for Recruitment of Teachers in
School) Regulations, 2001. Under the amendment of the year 2012, Section
12A was also inserted. Section 12A reads as under:-
[12A. Power of Council to determine minimum
standards of education of school teachers.– For the purpose
of maintaining standards of education in schools, the Council
may, by regulations, determine the qualifications of persons
for being recruited as teachers in any pre-primary, primary,
upper primary, secondary, senior secondary or intermediate
school or college, by whatever name called, established, run,
aided or recognised by the Central Government or a State
Government or a local or other authority:
Provided that nothing in this section shall adversely
affect the continuance of any person recruited in any pre-
primary, primary, upper primary, secondary, senior
secondary or intermediate schools or colleges, under any
rule, regulation or order made by the Central Government, a
State Government, a local or other authority, immediately
before the commencement of the National Council for
Teacher Education (Amendment) Act, 2011 (18 of 2011)
solely on the ground of non-fulfilment of such qualifications
as may be specified by the Council:
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Provided further that the minimum qualifications of a
teacher referred to in the first proviso shall be acquired
within the period specified in this Act or under the Right of
Children to Free and Compulsory Education Act, 2009 (35 of
2009).]
26. The said provision is with the object of maintaining standard of
Education in schools by determining the qualification of persons for being
recruited as Teachers in various schools. The term “ School” had been
defined under Sub Section (ka) to Section 2 of the NCTE Act, which reads as
under:-
“ Section 2:-…..
…….
(ka) [“School” means any recognised school
imparting pre-primary, primary, upper primary, secondary
or senior secondary education or senior secondary
education, or a college imparting senior secondary
education, and includes- (Inserted by Act 18 of 2011,
Section4).]
27. It is to be noted that prior to the aforesaid amendment, the NCTE
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had in fact framed Regulations in the year 2001 viz., National Council for
Teacher Education (Determination of Minimum qualifications for
Recruitment of Teachers in School), Regulations 2001, the qualification for
recruitment of a Teacher for teaching subjects have been prescribed in the
Schedule-I. Further, Regulation 4, mandated modification of Recruitment
Rules to be in conformity with the qualifications prescribed in the Schedule.
It had also mandated that Teachers who are appointed as per the existing
recruitment qualifications, have to acquire the required qualifications as
per the Schedule. The Schedule had prescribed various qualifications in
respect of various categories of school Teachers.
28. A reading of the same would indicate that the categories of
Teachers have been made based on the classes which they are required to
teach. A note appended to the Schedule also indicates that the appointment
of Teachers for primary classes, the basic Teachers Training Programme of
two years duration is required and that the B.Ed degree cannot be a
substitute for basic teachers training. The aforesaid Regulations had been
superseded by the Regulations 2014, which was notified by the NCTE on
12.11.2014 and the same had been published in the Gazette on 16.12.2014,
which we had already discussed supra .
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29. The next question that would arise as to whether these
Regulations would apply to the minority institutions. We had posed this
question, since it has been a categorical case for the minority institutions
that no Regulations can be made whatsoever which would make inroad into
the establishment and administration of the institution by them as being
protected under Article 30(1) of the Constitution of India, including
appointment of Teachers.
30. The object of these Regulations framed under the NCTE Act is to
ensure the standard of excellence of institutions and also to maintain the
standard of education in schools. The Hon’ble Apex Court in various
judgments had held that the Regulations seeking to ensure the standard of
excellence of institutions would be permitted and that the right of the
minority to establish or administer the institution will not be whittled down
by such Regulations.
31. Even though, we may venture upon to place on record the various
judgments of the Hon’ble Apex Court in this regard, for brevity we refrain to
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do so and we only place reliance to the order of the Hon’ble Apex Court in
the case of Sk.Mohd. Rafique vs. Managing Committee, Contai
Rahamania High Madrasah & Ors., reported in 2020 (6) SCC 689. In the
said judgment, the Hon’ble Apex Court had analysed the various judgments
in that regard while upholding the provisions of the West Bengal Madrasah
Service Commission Act, 2008. The said Enactment which was the subject
matter of the aforesaid reported decision dealt with the appointment of
Teachers also. Having analysed the right of minority Institution under
Article 30(1) of the Constitution of India, on the basis of various judgments
of the Hon’ble Apex Court including the Larger Bench decision in the case
of T.M.A. Pai’s Foundation case reported in 2002 (8) SCC 481, had held
that the selection of Teachers for their nomination by their Commission
would satisfy the national interest as well as the interest of the minority
educational institutions and that the said provisions are not violative of the
rights of the minority as enshrined under Article 30(1) of the Constitution of
India. It is also noted that the aforesaid judgment had also been affirmed by
a subsequent judgment which had also been reported in 2002 (8) SCC 705.
32. In the light of the pronunciation of law by the Hon’ble Apex Court
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in the aforesaid judgments, the minority educational institutions both aided
and unaided are bound to follow the Regulations framed by the NCTE under
its enactment prescribing qualification of the Teachers.
Question No.2
33. Since, the NCTE Regulations of the year 2001 and 2014 would be
applicable to recruitment of Teachers even in the minority schools, the next
question that we framed would have to be recasted as to whether the said
Rules would be prospective or retrospective?
34. Firstly, Section 12A under the first Proviso had provided that
nothing in Section 12A would adversely affect the continuance of any person
who had been recruited as a Teacher before the commencement of the Act,
2011 by which Section 12A came to be inserted. However, under the second
Proviso, the minimum qualification of a Teacher referred to in first Proviso
should be acquired, within a period as specified in the Act or under the Act,
2009. The Regulations of the year 2001, which was originally notified, had
mandated that the Teachers who are appointed as per the existing
recruitment qualification, subsequent to the issue of these Regulations
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would have to acquire such qualifications as prescribed in the Schedule.
However, there is no prescription of acquiring qualifications prescribed in
the Schedule under the Regulations 2014. For better appreciation, the
relevant Section 12A is extracted hereunder:-
“12A. For the purpose of maintaining standards
of education in schools, the Council may, by regulations,
determine the qualifications of persons for being recruited as
teachers in any pre-primary, primary, upper primary,
secondary, senior secondary or intermediate school or
college, by whatever name called, established, run, aided or
recognized by the Central Government or a State
Government or a local other authority:
Provided that nothing in this section shall
adversely affect the continuance of any person recruited in
any pre-primary, primary, upper primary, secondary, senior
secondary or intermediate schools or colleges, under any
rule, regulation or order made by the Central Government, a
State Government, a local or other authority, immediately
before the commencement of the National Council for
Teacher Education (Amendment) Act, 2011 solely on the
ground of non-fulfilment of such qualifications as may be
specified by the Council;
Provided further that the minimum
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shall be acquired within the period specified in this Act or
under the Right of Children to Free and Compulsory
Education Act, 2009.”
35. From a reading of the first Proviso, it could be seen that the
introduction of Section 12A should not adversely affect the continuance of
any person recruited in the schools as Teachers. Even though, the second
Proviso provided that such Teacher referred to in first Proviso shall
acquire the minimum qualification, within a period specified under the Act,
the NCTE either under the Enactment or under the subsequent Regulations
had fixed any time limit for the existing Teachers to fulfill the minimum
qualifications. It is not known that on what wisdom such time limit had not
been prescribed by the statutory authority either under the Enactment or
under Regulations.
36. Be that as it may, a Division Bench of this Court (G.R.S.J and
M.D.I.J) by its judgment in W.P.(MD).No.11317 of 2022, dated
29.03.2023, which arose out of a reference in view of the contradictory
decisions of the learned Single Judges of this Court after dealing with the
provisions of the Regulations, 2010 made under Act 2009 and the
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subsequent amendments to the said Regulations 2010, had held that the
Teachers who are in service on the date of commencement of the Act 2009,
would have to qualify them in TET. For better appreciation, the relevant
paragraphs are extracted hereunder:-
“66. When the intent of the Parliament is clear that any
teacher, irrespective of the person being in-service on the date
of commencement of the Act or to be appointed at a later point
of time, the individuals adorning the said post should be
possessed of the minimum qualification notified by the
academic authority and when the same has not been challenged
insofar as non-minority schools is concerned, be it aided or
unaided, the exemption sought for from acquiring a pass in TET
being not within the domain of the State Government nor the
Central Government could grant relaxation to any individual
request, but only a relaxation insofar as claim is made by the
State and that too, after 2019, the said door having been closed
by the Central Government citing that no further extension
could be granted, to claim that TET is not mandatory and that
teachers, who were appointed on the basis of NCTE
Regulations, 2001, should be allowed to continue and TET
cannot be enforced on such of those persons as a minimum
qualification for the purpose of continuance in the said post is
wholly an erroneous interpretation of Section32/53
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23 and Rule 17 and such an erroneous interpretation would
strike at the roots of the statutory provision, which cannot be
permitted, more so, when a policy decision has been taken by
the Government to have a uniform minimum qualification for
teachers functioning in the elementary schools for the welfare
of the children, the same cannot be whittled out by holding that
exemption ought to be granted to the teachers, who were
functioning prior to the coming into force of the Act and in the
absence of any challenge being made to Section 23 and Rule
17, the claim of the persons holding the post of teachers seeking
exemption would be nothing but an attempt in futility and would
be against the policy formulated by the Government for the
purpose of its future generation.”
37. A subsequent judgment of a further Division Bench of this Court
made in W.A.No.313 of 2022 and etc., batch, dated 02.06.2023 was also
placed before us. A perusal of the aforesaid judgment would show that a
diametric conflicting decision has been rendered by a subsequent Division
Bench, wherein, it had held that the Act, 2009, the Regulations framed
thereunder in the year 2010 could only be prospectively held to be
applicable and would not apply to Teachers who had been appointed prior
to the commencement of the Act, 2009. But, however the Hon’ble Division
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Bench had also held that the persons who are appointed prior to the Act,2009 without having TET qualification cannot seek further promotion. For
better appreciation, the conclusion that had been arrived at by the Hon’ble
Division Bench is extracted hereunder:-
“CONCLUSION
74. For the sake of clarity and ease of reference,
the upshot of the above discussion is as under:
(a) Any teacher appointed as Secondary Grade
Teacher or Graduate Teacher/BT Assistant prior to 29.07.2011
shall continue in service and also receive increments and
incentives, even if they do not possess/acquire a pass in TET. At
the same time, for future promotional prospects like promotion
from secondary grade teacher to B.T. Assistant as well as for
promotion to Headmasters, etc., irrespective of their dates of
original appointment, they must necessarily possess TET,
failing which they will not be eligible for promotion.
(b) Any appointment made to the post of
Secondary Grade Teacher after 29.07.2011 must necessarily
possess TET.
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recruitment or promotion from the post of Secondary Grade
Teacher, or transfer, must necessarily possess TET.
(d) The Special Rules for the Tamil Nadu School
Educational Subordinate Service issued in GO (Ms.) No.13
School Education (S.E3(1)) Department dated 30.01.2020
insofar as it prescribes “a pass in Teacher Eligibility Test
(TET)” only for direct recruitment for the post of BT Assistant
and not for promotion thereto in Annexure-I (referred to in
Rule 6) is struck down, thereby meaning that TET is
mandatory/essential eligibility criterion for appointment to the
post of BT Assistant even by promotion from Secondary Grade
Teachers.
(e) The language employed in G.O. (Ms) No. 181
dated 15.11.2011 is to be read and understood to the effect that
for continuance in service without promotional prospects, TET
is not mandatory”
38. From the analysis of the aforesaid two judgments, it is
categorically clear that for any appointment that had been made subsequent
to the Act, 2009 and the Regulations 2010, the Teachers who had been
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appointed should necessarily qualify themselves with TET. The only
contradiction was that as to whether a Teacher who had already been
appointed as a Teacher prior to the Act, 2009 would require TET.
39. Since, the contradiction was noted by another Hon’ble Division
Bench of this Court in W.A.(MD).No.432 of 2023, by order dated
08.06.2023, had directed the Registry to place the issue before the Hon’ble
Chief Justice for constituting a Larger Bench to resolve the conflict.
40.Firstly, it is very unfortunate that the earlier Division Bench judgments
of this Court had not been placed before the Hon’ble Division Bench who
had subsequently dealt with the issue. From the cause title in respective
cases, it could be seen that the State of Tamil Nadu, was represented by its
Principal Secretary to Government, School Education Department in both
the Writ Petitions and similarly, the Director of Elementary Education,
Chennai, the Chairman, Teachers Recruitment Board, were also parties in
both the batch of cases. It is not known as to why they or their Officers had
not instructed their Law Officers to place the earlier judgment of the
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Division Bench before the subsequent Division Bench. This conduct of not
placing the aforesaid judgment had led to this contradiction.
41. Be that as it may, since, we have already held that the
Regulations prescribing qualifications for recruitment of Teachers under
the NCTE Act is binding on all schools including the minority schools, we
shall analyse the said provisions of the said Regulations which have not
been placed before the earlier Hon’ble Division Benches.
42. Even though, a reading of Section 12A indicates that there was no
bar for continuance of a Teacher who had been appointed prior to the
amendment under the first Proviso, the second Proviso indicates that the
Teachers referred to in the first Proviso would have to qualify themselves as
per the Regulations within a time frame. There has been no notification
issued by the statutory body prescribing any time limit as indicated in the
second Proviso to Section 12A. The Regulation 4 of Regulations 2001
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envisages that Teachers who are appointed under any of the existing
Recruitment Rules after the Regulations were notified, such Teachers would
have to qualify themselves as per the qualifications prescribed in the
Schedule to the said Regulations. There was no mandate that the Teachers
who were appointed prior to notifying of Regulation, 2001 should also
acquire the qualifications in the Schedule to the Regulation, 2001. This
Regulation has been superseded in the year 2014. Regulations, 2014
mandates that as regards to the primary Teachers, the qualification
prescribed to the Teachers under Regulations 2010, framed under the Act,
2009, will have to be followed. The Regulations framed under Act, 2009
envisages mandatory qualification of TET. Therefore, for a recruitment of
a Teacher in a primary school or upper primary school that is for the
classes I to VII, TET is a mandatory qualification. The Regulation does not
envisage any condition that the Teachers appointed prior to the
introduction of these Regulation should acquire the TET qualification
within a said period.
43. It is well established principle of law that any law or Regulations
which come into force except when specifically applied with retrospective
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effect would only have effect prospectively. Neither the application of
Regulation, 2014 had been made with retrospective effect nor does it
mandate the Teachers appointed prior to notification of Regulation, 2014
were required to acquire the qualification of TET.
44. In such an event, we are of the considered view that the Teachers
who are recruited only after the year 2014 in any school including the
minority (aided and unaided) should have to fulfill the essential
qualification of TET. It is also made clear that the Teachers appointed prior
to 2014 would have to necessarily satisfy the qualifications prescribed by
the NCTE under its Regulation, 2001. If the Teachers do not possess the
qualification as prescribed under the Regulation, 2001 their appointment
cannot be a valid one.
Question No.3:-
45. When the minimum qualifications are prescribed by a Statutory
Authority under the provisions of an Enactment and such minimum
qualifications had been made in national interest for betterment of
education to maintain the standards of education, relaxation of such
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mandate cannot be granted by any other Authority. It is pertinent to note
that under Regulation 5 of Regulations, 2014, the power to relax the
qualification has been vested with the NCTE. The Proviso to the said
Regulation clearly excludes the grant of relaxation in respect of minimum
qualification of appointment of Teacher to classes I to VIII. For better
appreciation, the relevant provision is extracted hereunder:-
“Power to relax:
Where the Council is satisfied on receipt of reference
from the concerned State Government that special
circumstances exist warranting relaxations of some of the
provisions of the Regulations, it may grant relaxation of
that provision to such extent, for such time period and
subject to such conditions and limitations as if may
consider necessary, in a just and equitable manner;
Provided, that no relaxation, shall be granted under
these Regulations with regard to the minimum
qualifications for appointment of teachers for Level 3
(Class I to VII) as specified in the First Schedule.”
46. Hence, the relaxation that is claimed under Rule 6 of the
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Recruitment Rules cannot be exercised for grant of relaxation of the
minimum qualification.
47. However, as regard to the relaxation of age, it is always open to
the Authority under the Recruitment Rules to grant relaxation of age. But,
the same should be made in conformity with Rule 6 of the Recruitment Rules
by carving out a class of people who would be entitled for such relaxation.
48. During the earlier hearing, it had been brought to the notice of
this Court that a Special committee had been constituted to examine the
credentials of the claims made by the respective Teachers and the School
Management have been invited to attend a meeting on 25.09.2023, for the
purpose of taking a decision based on the credentials of Teachers. In view
of the said statement, a direction was issued by us to place the Report of the
meeting of the Committee. The said Report of the Committee was also
placed before us. The Special Committee in its Report dated 16.10.2023, the
following were observed:-
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“…The Special committee, on scrutinizing the particulars
submitted by the school management observed the
following:
(i)The candidates listed in Sl.No.2,7,11 have already
retired and Sl.no.13,20,27 have resigned from service and
Sl.No.30,31 are not in service at present.
(ii)The Candidates listed in
Sl.No.2,3,5,7,8,9,10,11,12,13,14,16,19,21,27 were over
aged at the time of the alleged engagement on consolidated
basis by the School Management.
(iii)The Candidates listed in Sl.No.2,3,6,21,23,26 have not
completed minimum qualifying service (i.e. 5 years of
experience as PST) for promotion but they have been
promoted as TGT.
(iv)It is noted that none of the teachers have qualified
TET/CTET which is mandatory qualification as per NCTE
guidelines. Hence none of the below teachers except
candidates mentioned in Sl.No.12 and 22 (Music Teacher
and Physical Education Teacher for whom TET is not
applicable) are found to be eligible.
(v)The committee has also observed that some documents
produced by the schools are not reliable since many
teachers have produced appointment order in the post of
TGT during 2006 but the post of School Asst. Gr-II was re-
designated as TGT during the year 2008. Hence from the
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above observations the committee reports that the
Government Aided schools have engaged the teachers
without prescribed eligibility criteria which is a clear
violation of Recruitment Rules…”
49. A table showing the respective candidates along with the details
have also been placed on record. The Special Committee had also placed its
suggestion in its Report. For better appreciation, the relevant portion of the
Report is extracted hereunder:-
“…Suggestion of the Special Committee:
(i) The Student strength of all the schools except Immaculate
High School, Mission Street, Puducherry has gradually reduced
and hence ratification may be done and the posts in the Grant-
in-aid school may be reduced according to the student strength
of the school.
(ii)The School Managements may be advised to recruit teacher
in a fair and transparent manner so as to appoint well qualified
teacher with prior approval of the Director of School Education.
(iii)The candidates listed in Sl.No.12 and 22 (Music Teacher and
Physical Education Teacher for whom TET is not applicable)
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may be consideration for appointment. However the appointment
is subject to the policy decision of the Government on
verification of certificates of the candidate, examination of
Medical fitness, obtaining of vigilance clearance certificate.
(iv)The appointment and relaxation of age/TET qualification
may be operated with the policy Decision of the Government
since it involves appointment of Group-B Staff which need
approval from the Government…”
50. In view that the respective Teachers who are before us, a table
had been prepared and given to us, we are of the view that it would be
relevant if the said table also forms a part of this order. From the Report, it
could be seen that the candidates in Sl.No.2, 7, & 11 have already retired
and that the candidates in Sl.No.13, 20 & 27 had voluntarily retired from
services and the candidates in Sl.No.30 & 31 are not in service on the date
given against them. Similarly, in Clauses 2, it has been noted that various
persons were over aged and in Clause 3 certain number of candidates
according to the Committee did not have minimum qualifying service of 5
years experience, as a primary school Teacher for appointment as a
Trained Graduate Teacher.
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51.It is to be noted that two (2) of the candidates in Sl.No. 12 & 22 do
not acquire any TET. But, however, the candidate in Sl.No.12, according to
the Special committee is over aged. In respect of the candidates who are
over aged, the Authority under the Recruitment Rules can consider their
cases and grant appropriate age relaxation.
52. Since, the direction had been issued by the learned Single Judge
to consider the cases of the petitioners therein by directing the
Managements concerned to submit a fresh proposal and since, the said
exercise is yet to be carried out, we deem it fit that the Government of
Puducherry shall consider all the pending applications for grant of
approval for the respective Management, within a period of three (3)
months from the date of receipt of a copy of this order.
53. We are conscious that there will be huge financial implications, if
the applications for grant of approval is positively considered. Hence, such
grant of approvals shall relate back to the date on which the concerned
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Teacher had been appointed, but, such grant shall be a notional grant and
the monetary benefits that is to be paid to the Teachers will be made from
the date of this order. Since, we have held that the Teachers will be entitled
to the monetary benefits only from the date of this order, we are of the
considered view that the Teachers who had retired, resigned and left the
services of the Management would not be entitled to be considered for grant
of approval as such consideration would not entitle them any benefits
whatsoever. As it has been suggested by the Special Committee that the
candidates in Sl.No.12 & 22 can be considered for appointment as the TET
is not applicable, relaxation of the relevant Rules which otherwise stand in
their way can be positively exercised and appointments be granted. It is
made clear that even in their respect they would be entitled to monetary
benefits only from the date of this order.
54. In W.A.No.2214 of 2018, the learned Single Judge had in fact
issued a positive direction to grant approval of the teacher concerned. A
perusal of the said judgment does not indicate that the learned Single Judge
was satisfied with the qualifications that the teacher had possessed for
entitlement for grant of approval. Even if it so, we are of the view that the
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learned Single Judge ought to have remitted the matter back to the
Authorities for fresh consideration. Further, there was no rejection of
approval by the Department. It had only indicated that such approval could
be considered if the Regulation as approved by the Director is in place. For
the said reasons, we are inclined to interfere with the positive direction
issued by the learned Single Judge to grant approval. The Department shall
also consider the case of the respondent therein on the basis of the
directions and findings given above.
55. In view of the aforesaid discussions, we dispose of these batch of
cases in W.A.Nos.2842, 2176, 2557, 2848, 2040 of 2018 &768, 873 of 2019
and 125 of 2021 and W.P.Nos.10371 to 10374 of 2014 & 12940 to 12942 of
2015 & 21850 to 21854 of 2015 & 22129 & 22130 of 2015 and 27170 to
27173 & 21062 of 2015 with the following directions:-
(a) The Authority is directed to consider the
application for grant of approval submitted by the respective
Managements and pass appropriate orders within a period of
three (3) months from the date of receipt of a copy of this
order.
(b) While carrying out such exercises, the cases in
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which the appointed Teachers have either resigned or
superannuated need not be considered for grant of approval.
(c) While considering the approval of teachers
who are appointed after 2001 but before 16.12.2014 they shall
necessarily fulfill the qualifications prescribed under the
Schedule to Regulations, 2001.
(d) As regards to the applications for grant of
approval for Teachers who have been appointed either
through direct recruitment or by way of promotion after
16.12.2014 will have to fulfill the minimum qualifications
prescribed under the Regulations, 2014.
56.The Writ Appeal in W.A.No.2214 of 2018, for the reasons stated
supra is allowed. A further direction is issued to the Authority to consider
the case of the first respondent for grant of approval submitted by the
Management School, within a period of three (3) months from the date of
receipt of a copy of this order. In considering so, the Clauses (b), (c) and (d)
of the earlier paragraph would also apply to the case of the first respondent
also.
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57. It is also made clear that if any grant of approval is made, then
such approval shall be notionally granted to the respective Teachers from
the date of appointment. They will be entitled to monetary benefits only from
the date of this order.
58. From the narration of facts, we have found that there is no
co-ordination between the Officers of the Government in respect of the
disposal of the cases, that is a decision made by the Co-ordinate Bench of
this Court are not being placed before another Co-ordinate Bench, be that
in the Principal Seat at Madras or the Bench at Madurai. The Chief
Secretary of the State of Tamil Nadu is hereby directed to issue necessary
circular to both its Officers and also the Law Officers to circulate the
judgments made by the High Court when such cases involve a State wide
ratification.
59. Registry is also directed to mark a copy of this order to the Chief
Secretary of Tamil Nadu.
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60. With the aforesaid directions, these Writ Petitions are disposed of.
However, there shall be no order as to costs. Consequently, connected
miscellaneous petitions are also closed.
61. During the course of the arguments, it was pointed out that two
Writ Petitions in W.P.No.19445 of 1998 & W.P.No.35996 of 2007,
challenging the provisions of the Pondicherry School Education Act, 1984
and Rules 1996 are pending consideration of this Court. We are shocked to
see that the first Writ Petition had been filed in the year 1998 and the
second Writ Petition had been filed in the year 2007. It is also noted that
certain provisions of the Enactment have been injuncted to be applied in
the case of minority institutions. In that aspect, we direct the Registry to
place these Writ Petitions immediately before the appropriate Bench
dealing with the roster, after obtaining necessary permission from His
Lordship The Chief Justice.
(R.S.K.,J.) (K.B., J.)
30.04.2024
Index: Yes/No
Speaking Order/Non Speaking Order
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Neutral Citation:Yes/No
Gba
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To
1.The Union Territory of Puducherry,
by its Secretary,
Department of Education
Secretariat, Puducherry – 605 001.
2.The Director of School Education,
Government of Puducherry,
Directorate of School Education,
Puducherry – 605 005.
3.The Senior Accounts Officer,
Government of Puducherry,
Directorate of School Education,
Puducherry – 605 005.
4.The Joint – Director of School Education,
Government of Puducherry,
Directorate of School Education,
Puducherry – 605 005.
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R.SURESH KUMAR, J.
and
K.KUMARESH BABU, J.
Gba
A Pre-delivery Common Judgment made in
W.A.Nos.2842, 2176, 2214, 2557, 2848, 2040 of 2018
&768, 873 of 2019 and 125 of 2021
and W.P.Nos.10371 to 10374 of 2014 & 12940 to 12942 of 2015
& 21850 to 21854 of 2015 & 22129 & 22130 of 2015 and 27170 to 27173
& 21062 of 2015
30.04.2024
53/53
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/03/2026 03:58:22 pm )