Madras High Court

The Director Of School Education vs M. Velayutham on 2 June, 2023

Author:
R. Mahadevan

Bench:
R. Mahadevan
,
Mohammed Shaffiq

WA. No. 313 of 2022 etc batch

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.06.2023

CORAM :

THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ

Writ Appeal Nos. 313, 833, 1891, 2050, 2082, 2617, 2795 of 2022
&
Writ Appeal Nos. 19, 31, 32, 36 of 2023
&
Writ Petition Nos. 3364 and 3368 of 2023
and
CMP. Nos. 22724, 22726 and 5628 of 2022, 335 and 6349 of 2023, 15716,
20772, 13862, 2384 of 2022, 330, 342, 6050 of 2023, 15447 of 2022,
268 of 2023 and WMP. Nos. 3434 and 3436 of 2023
---

WA No. 313 of 2022
1. The Director of School Education
D.P.I. Campus, College Road
Chennai - 600 006

2. The Chief Educational Officer
Kancheepuram District
Kancheepuram

3. The District Educational Officer
Chengalpattu Education District
Kancheepuram District .. Appellants

Versus
1. M. Velayutham
Son of V. Murugesan
B.T. Assistant (English)
Jaigopal Garodia National Higher Secondary School
East Tambaram, Chennai - 600 059
https://www.mhc.tn.gov.in/judis

1/134
WA. No. 313 of 2022 etc batch

2. The Secretary
Jaigopal Garodia National Higher Secondary School
East Tambaram, Chennai - 600 059 .. Respondents

WA No. 833 of 2022

1. The Director of School Education
D.P.I. Campus, College Road
Chennai - 600 006

2. The Chief Educational Officer
Presidency Girls Higher Secondary School Campus
Gangureddy Road, Egmore
Chennai - 600 008

3. The District Educational Officer
Chennai East
Chennai - 600 094 .. Appellants
Versus
1. A. Choodamani
Wife of M. Govindan
B.T. Assistant (Science)
K. Ramaiah Chetty ARC Girls Hr. Sec. School
New No.26 (Old No.38) Saivamuthu Street
Chennai - 600 001

2. The Secretary
K. Ramaiah Chetty ARC Girls Hr. Sec. School
New No.26 (Old No.38) Saivamuthu Street
Chennai - 600 001 .. Respondents

WA No. 1891 of 2022

1.State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George, Secretariat
Chennai - 600 009

https://www.mhc.tn.gov.in/judis

2/134
WA. No. 313 of 2022 etc batch

2. The Commissioner of School Education
D.P.I. Campus, College Road
Chennai - 600 006

3. The Chief Educational Officer
Salem, Salem District

4. The District Educational Officer
Salem Educational District
Salem .. Appellants

Versus
1. K.A. Karpagam
D/o. K.S. Anbalagan
B.T. Assistant (Science)
Sri Sarada Vidyalaya Higher Secondary School for Girls
Fairlands, Salem - 636 016

2. The Correspondent/Secretary
Sri Sarada Vidyalaya Higher Secondary School for Girls
Fairlands, Salem - 636 016 .. Respondents

WA No. 2050 of 2022

1. State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George, Secretariat
Chennai - 600 009

2. The Director of School Education
D.P.I. Campus, College Road
Chennai - 600 006

3. The Chief Educational Officer
Chengalpet
Chengalpet District

https://www.mhc.tn.gov.in/judis

3/134
WA. No. 313 of 2022 etc batch

4. The District Educational Officer
Chromepet Educational District
Chromepet - 600 044
Chengalpet District .. Appellants

Versus

1. R. Varun
B.T. Assistant (Maths)
A.J.S. Nidhi Higher Secondary School
Alandur, Chennai - 600 016

2. The Secretary
A.J.S. Nidhi Higher Secondary School
Alandur, Chennai - 600 016 .. Respondents

WA No. 2082 of 2022

1. State of Tamil Nadu
represented by its Principal Secretary to Government
School Education Department
Fort St. George, Secretariat
Chennai - 600 009

2. The Commissioner of School Education
D.P.I. Campus, College Road
Chennai - 600 006

3. The Chief Educational Officer
Chengalpet
Chengalpet District

4. The District Educational Officer
Chromepet Educational District
Chromepet - 600 044
Chengalpet District .. Appellants

Versus
https://www.mhc.tn.gov.in/judis

4/134
WA. No. 313 of 2022 etc batch

1. P. Sureshkumar
Son of T. Palanivelu
B.T. Assistant (Maths)
A.J.S. Nidhi Higher Secondary School
Alandur, Chennai - 600 016

2. The Secretary
A.J.S. Nidhi Higher Secondary School
Alandur, Chennai - 600 016 .. Respondents

W.A. No. 2617 of 2022

1. G.S. Senthilkumar
Son of G. Subbaiyan
B.T. Assistant (Science)
Sri Krishna Middle School
Thappalampuliyur
Thiruvarur District - 610 016

2. T. Vanniyarajathi
Wife of Rajaiah
B.T. Assistant (Science)
Sri Krishna Middle School
Thappalampuliyur
Thiruvarur District - 610 016

3. S. Karthikeyan
Son of Subramanian
Secondary Grade Teacher
Sri Krishna Middle School
Thappalampuliyur
Thiruvarur District - 610 016 .. Appellants

Versus

1. The Director of School Education
DPI Campus, College Road
Chennai - 600 006
https://www.mhc.tn.gov.in/judis

5/134
WA. No. 313 of 2022 etc batch

2. The Chief Educational Officer
Thiruvarur District, Thiruvarur

3. The District Educational Officer
Thiruvarur Educational District
Thiruvarur

4. The Block Development Officer
Thiruvarur Education Block
Thiruvarur District

5. The Correspondent
Sri Krishna Middle School
Thappalampuliyur
Thiruvarur District - 610 016

6. Teachers Recruitment Board
rep. by its Chairman
College Road, Nungambakkam
Chennai - 600 006

7. Union of India
rep. by its Secretary to Government
Department of School Educational and Literacy
Ministry of Human Resource Department
217-C, Shastri Bhawan
New Delhi - 110 001

8. National Council for Teacher Education (NCTE)
rep. by its Member Secretary
G-7, Sector-10, Dwarka
New Delhi - 110 075 .. Respondents

W.A. No. 2795 of 2022

1. V. Vanaja
2. K. Prabhu
3. P. Prabhakar
4. P. Subramanian
https://www.mhc.tn.gov.in/judis

6/134
WA. No. 313 of 2022 etc batch

5. V. Manonmani
6. B. Sridhaladevi
7. G. Arumugam
8. R. Vasanthi
9. R. Manimegalai
10. P. Vijayalakshmi
11. R. Lakshmi
12. J. Malathi
13. R. Chitra
14. D. Amudha
15. J. Geetha Sahayarani
16. S. Arokkiya Lurthuraj
17. R. Jayanthi
18. R. Kavitha
19. M. Prema
20. G. Karivaradharajan
21. R. Dhavamani
22. P. Shenbagam
23. V. Kalaiselvi
24. S. Abraham
25. P. Selvambal
26. M. Emreen Haseen
27. V. Senthamarai
28. V. Prema
29. S. Santhi
30. S. Dhanasekaran
31. S. Selvarani
32. G. Annamailee
33. R. Jayaraman
34. K. Subramaniyan
35. V. Rajeshkannan
36. S. Manigandan
37. V. Vijayalakshmi
38. V. Selvarani
39. P. Dhanalakshmi
40. C. Thangarasu
41. R. Moorthi .. Appellants

Versus
https://www.mhc.tn.gov.in/judis

7/134
WA. No. 313 of 2022 etc batch

1. The State of Tamil Nadu
rep. by its Principal Secretary to Government
School Education Department
Fort St. George, Chennai - 600 009

2. The Commissioner of School Education
Directorate of School Education
DPI Campus, College Road
Chennai - 600 006

3. The Joint Director of School Education (Personnel)
DPI Campus, College Road
Chennai - 600 006

4. The Director of Elementary Education
Directorate of School Education (Personnel Department)
DPI Campus, College Road, Chennai - 600 006\

5. R. Sakthivel

6. TET Passed Candidates Welfare Association
rep. by its Secretary K. Shanmuga Priya
having office at No.389/2, Rose Valley
Opposite to Bismillah Nagar
Hosur - 635 109

7. Muthamizh Selvan
Son of Saminathan
Secondary Grade Teacher
Panchayat Union Middle School
Kaduvettankurichi
T. Palur Block, Ariyalur District

(RR5 to 7 were impleaded as party
respondents as per order dated 10.02.2023
in CMP.Nos.2403, 2404 and 2596 of 2022) .. Respondents

https://www.mhc.tn.gov.in/judis

8/134
WA. No. 313 of 2022 etc batch

WA No. 19 of 2023

1. The Government of Tamil Nadu
represented by its Secretary
Department of School Education
Fort St. George
Chennai - 600 009

2. The Director of School Education
College Road, Chennai - 600 006

3. The Chief Educational Officer
Chief Educational Office
Government Girls Hr. Secondary School Campus
Chengalpet District - 603 001

4. The District Educational Officer
District Educational Office
St. Thomas Mount
Government Boys Hr. Sec. School Campus
Chromepet, Chennai - 600 044
Kanchipuram .. Appellants
Versus

The Headmistress & Correspondent
St. Joseph's Higher Secondary School
Vettuvankeni
Chennai - 600 115 .. Respondent

WA No. 31 of 2023

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

2. The Director of School Education
College Road, Chennai - 600 006

https://www.mhc.tn.gov.in/judis

9/134
WA. No. 313 of 2022 etc batch

3. The Chief Educational Officer
Chief Educational Office
Government Girls Hr. Secondary School Campus
Chengalpet District - 603 001

4. The District Educational Officer
District Educational Office
St. Thomas Mount
Government Boys Hr. Sec. School Campus
Chromepet, Chennai - 600 044
Kanchipuram .. Appellants

Versus

The Headmistress & Correspondent
St. Joseph's Higher Secondary School
Vettuvankeni
Chennai - 600 115 .. Respondent

WA No. 32 of 2023

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

2. The Director of School Education
College Road, Chennai - 600 006

3. The Chief Educational Officer
Chief Educational Office
Government Girls Hr. Secondary School Campus
Chengalpet District - 603 001

4. The District Educational Officer
District Educational Office
St. Thomas Mount
Government Boys Hr. Sec. School Campus
Chromepet, Chennai - 600 044
Kanchipuram .. Appellants
https://www.mhc.tn.gov.in/judis

10/134
WA. No. 313 of 2022 etc batch

Versus
The Headmistress & Correspondent
St. Joseph's Higher Secondary School
Vettuvankeni
Chennai - 600 115 .. Respondent

WA No. 36 of 2023

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

2. The Director of School Education
College Road, Chennai - 600 006

3. The Chief Educational Officer
Chief Educational Office
Government Girls Hr. Secondary School Campus
Chengalpet District - 603 001

4. The District Educational Officer
District Educational Office
St. Thomas Mount
Government Boys Hr. Sec. School Campus
Chromepet, Chennai - 600 044
Kanchipuram .. Appellants

Versus

The Headmistress & Correspondent
St. Joseph's Higher Secondary School
Vettuvankeni
Chennai - 600 115 .. Respondent

https://www.mhc.tn.gov.in/judis

11/134
WA. No. 313 of 2022 etc batch

Writ Petition No. 3364 of 2023

TET Passed Candidates Welfare Association
rep. by its Secretary K. Shanmuga Priya
having office at No.389/2, Rose Valley
Opposite to Bismillah Nagar
Hosur - 635 109 .. Petitioner

Versus

1. Union of India
Through its Secretary to Government
Ministry of Human Resource and Development
(Department of School Education)
New Delhi

2. National Council for Teacher Education
G-7, Sector-10, Dwarka
New Delhi - 110 075

3. The State of Tamil Nadu
rep. by its Principal Secretary to Government
School Education Department
Fort St. George, Chennai - 600 009

4. The Commissioner of School Education
Directorate of School Education
DPI Campus, College Road
Chennai - 600 006

5. The Joint Director of School Education (Personnel)
DPI Campus, College Road
Chennai - 600 006

6. The Director of School Education
Directorate of School Education
DPI Campus, College Road
Chennai - 600 006 .. Respondents

https://www.mhc.tn.gov.in/judis

12/134
WA. No. 313 of 2022 etc batch

WA No. 313 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 29.07.2021 passed in WP No. 23999 of 2019 on
the file of this Court.
WA No. 833 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 29.07.2021 passed in WP No. 24003 of 2019 on
the file of this Court.
WA No. 1891 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 22.10.2021 passed in WP No. 22221 of 2021 on
the file of this Court.
WA No. 2050 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 29.09.2021 passed in WP No. 20911 of 2021 on
the file of this Court.
WA No. 2082 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 29.09.2021 passed in WP No. 20913 of 2021 on
the file of this Court.
WA No. 2617 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 28.04.2022 passed in WP No. 35487 of 2022 on
the file of this Court.
WA No. 2795 of 2022:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 20.10.2022 passed in WP No. 19587 of 2019 on
the file of this Court.
WA No. 19 of 2023:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 22.10.2021 passed in WP No. 22545 of 2021 on
the file of this Court.
WA No. 31 of 2023:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 22.10.2021 passed in WP No. 22550 of 2021 on
the file of this Court.
WA No. 32 of 2023:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 22.10.2021 passed in WP No. 22554 of 2021 on
the file of this Court.
WA No. 36 of 2023:- Writ Appeal filed Clause 15 of Letters
Patent against the order dated 22.10.2021 passed in WP No. 22556 of 2021 on
the file of this Court.
Writ Petition No. 3364 of 2023:- Writ Petition filed under
Article
of The Constitution of India praying to issue a Writ of Declaration
declaring that the Special Rules for the Tamil Nadu School Educational
Subordinate Service issued in G.O. 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 B.T. Assistant
and not for promotion thereto in Annexure-1 (referred to in Rule 6) is illegal
https://www.mhc.tn.gov.in/judis

13/134
WA. No. 313 of 2022 etc batch

being ultravires the
Right of Children to Free and Compulsory Education Act,
and the Rules framed thereunder and the NCTE notification dated
23.08.2010 and 29.07.2011.

Writ Petition No. 3368 of 2023:- Writ Petition filed under
Article
of The Constitution of India praying to issue a Writ of Declaration
declaring that the Special Rules for the Tamil Nadu School Educational
Subordinate Service issued in G.O. 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 B.T. Assistant
and not for promotion thereto in Annexure-1 (referred to in Rule 6) is illegal
being ultravires the
Right of Children to Free and Compulsory Education Act,
and the Rules framed thereunder and the NCTE notification dated
23.08.2010 and 29.07.2011.

W.A. No. 313 of 2022

For Appellant (s) : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate

For Respondent (s) : Mr. G. Sankaran, Senior Advocate
for Mr. S. Nedunchezhiyan for R1

Mr. N. Ganesh for R2
W.A. No. 833 of 2022

For Appellant (s) : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate

https://www.mhc.tn.gov.in/judis

14/134
WA. No. 313 of 2022 etc batch

W.A. No. 1891 of 2022

For Appellant (s) : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate
For Respondent (s) : Mr. G. Sankaran, Senior Advocate
for Mr. S. Nedunchezhiyan for R1
W.A. No. 2050 of 2022

For Appellant (s) : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate

For Respondent (s) : Mr. G. Sankaran, Senior Advocate
for Mr. S. Nedunchezhiyan for R1

No representation for R2
W.A. No. 2082 of 2022:-

For Appellant (s) : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate

For Respondent (s) : Mr. G. Sankaran, Senior Advocate
for Mr. S. Nedunchezhiyan for R1

W.A. No. 2617 of 2022

For Appellant (s) : Mr. G. Sankaran, Senior Advocate
for Mr. S. Nedunchezhiyan
https://www.mhc.tn.gov.in/judis

15/134
WA. No. 313 of 2022 etc batch

For Respondent (s) : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate for RR1 to 4
Mr. Su. Sreenivasan for R7
Mr. V.Ashok Kumar, CGSC for R8
Mr. K.Sathish for R6 (No appearance)
W.A. No. 2795 of 2022:-

For Appellant (s) : Mrs. Nalini Chidambaram, Senior Advocate
for Mrs. C. Uma

For Respondents : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate for RR1 to 4

Mr. E. Viswanathan for R5

Mrs. Kavitha Rameshwar for RR6 & 7

Mr. Karthikeyan for Implead Petitioners in
CMP Nos. 6349 & 6050 of 2023

W.A. Nos. 19, 31, 32 & 36 of 2023

For Appellants : Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate

https://www.mhc.tn.gov.in/judis

16/134
WA. No. 313 of 2022 etc batch

WP No. 3364 of 2023

For Petitioner (s) : Ms. N. Kavitha Rameshwar

For Respondents : Mr. V. Ashokkumar
Central Government Standing Counsel for R2

Mr. Su. Srinivasan
Standing Counsel for R1

Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate for RR3 to 6

WP No. 3368 of 2023

For Petitioner (s) : Ms. N. Kavitha Rameshwar

For Respondents : Mr. V. Ashokkumar
Central Government Standing Counsel for R1

Mr. Su. Srinivasan
Standing Counsel for R2

Mr. S. Silambannan
Additional Advocate General
assisted by Mr. G. Nanmaran
Special Government Pleader &
Mr. Babu Barveez
Government Advocate for R3 to R6

https://www.mhc.tn.gov.in/judis

17/134
WA. No. 313 of 2022 etc batch

COMMON JUDGMENT

R. MAHADEVAN, J

I. INTRODUCTION, FACTUAL BACKGROUND AND PLEADINGS

1. The key issues that arise for determination in these batch of writ

appeals and writ petitions are:

(i) whether passing of the Teacher Eligibility Test (TET) is mandatory

for promotion to the post of B.T. Assistant/Graduate Teacher, from the cadre of

Secondary Grade Teacher (already in service).

(ii) whether non-possession/non-acquisition of a pass in TET by a

teacher appointed prior to 29.07.2011 would affect his/her continuance in

service and drawal of increment, without seeking for further promotion to the

post of BT Assistant/Graduate Teacher.

2. By a notification dated 23.08.2010 issued in exercise of powers

conferred under sub-section (1) of
Section 23
of the Right of Children to Free

and Compulsory Education Act, 2009 (Act 35 of 2009) (in short, "
RTE Act
")

and in pursuance of Notification No. S.O. 750 (E) dated 31.03.2010 issued by

the Department of School Education and Literacy, Ministry of Human

Resources Development, Government of India, the National Council for

Teacher Education (in short, "the NCTE") laid down certain minimum
https://www.mhc.tn.gov.in/judis

18/134

WA. No. 313 of 2022 etc batch

qualifications for a person to be eligible for appointment as a Teacher in

Classes I to VIII in a school. Subsequently, by notification dated 29.07.2011,

the NCTE made certain amendments to the said principal notification. The

relevant clauses of the amended notification read thus:

1. Minimum Qualifications:~

(i) Classes I to V

(a) Senior Secondary (or its equivalent) with at least 50% marks and 2 - year
Diploma in Elementary Education (by whatever name known)
OR
Senior Secondary (or its equivalent) with at least 45% marks and 2-year
Diploma in Elementary Education (by whatever name known), in accordance
with the NCTE (Recognition Norms and Procedure) Regulations, 2002.

OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 - year
Bachelor in Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 2 - year
Diploma in Education (Special Education)
OR
Graduation and two year Diploma in Elementary Education (by whatever
name known)
AND

(b)Pass in the Teacher Eligibility Test (TET), to be conducted by the
appropriate Government in accordance with the Guidelines framed by the
NCTE for the purpose.

(ii) Classes VI-VIII

(a)Graduation and 2 - year Diploma in Elementary Education (by whatever
name known)
OR
Graduation with atleast 50% marks and 1 - year Bachelor in Education
(B.Ed.)
OR
Graduation with at least 45% marks and 1 - year Bachelor in Education
(B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure)
Regulations issued from time to time in this regard
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 - year
Bachelor in Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4 - year
https://www.mhc.tn.gov.in/judis

19/134

WA. No. 313 of 2022 etc batch

B.A./B.Sc.Ed. or B.A.Ed./B.Sc.Ed.

OR
Graduation with at least 50% marks and 1 - year B.Ed. (Special Education)
AND

(b)Pass in the Teacher Eligibility Test (TET), to be conducted by the
appropriate Government in accordance with the Guidelines framed by the
NCTE for the purpose.

4.Teacher appointed before the date of this Notification:- The following
categories of teachers appointed for Classes I to VIII prior to date of this
Notification need not acquire the minimum qualifications specified in Para
(1) above:

(a)A teacher appointed on or after the 3rd September, 2001 i.e. the date on
which the NCTE (Determination of Minimum Qualifications for Recruitment
of Teachers in Schools) Regulations, 2001 (as amended from time to time)
came into force, in accordance with that Regulation.

Provided that a teacher of class I to V possessing B.Ed qualification, or a
teacher possessing B.Ed (Special Education) or D.Ed (Special Education)
qualification shall undergo an NCTE recognized 6 - month special
programme on elementary education.

(b)A teacher of class I to V with B.Ed qualification who has completed a 6-
month Special Basic Teacher Course (Special BTC) approved by the NCTE;

(c)A teacher appointed before the 3rd September, 2001, in accordance with
the prevalent Recruitment Rules.

5.(a) Teacher appointed after the date of this Notification in certain cases:-

Where an appropriate Government or local authority or a school has issued
an advertisement to initiate the process of appointment of teachers prior to
the date of this Notification, such appointments may be made in accordance
with the NCTE (Determination of Minimum Qualifications for Recruitment of
Teachers in Schools) Regulations, 2001 (as amended from time to time).

(b)The minimum qualification norms referred to in this Notification shall
apply to teachers of Languages, Social Studies, Mathematics, Science, etc. In
respect of teachers for Physical Education, the minimum qualification norms
for Physical Education teachers referred to in NCTE Regulation dated 3rd
November, 2001 (as amended from time to time) shall be applicable. For
teachers of Art Education, Craft Education, Home Science, Work Education,
etc. the existing eligibility norms prescribed by the State Governments and
other school managements shall be applicable till such time the NCTE lays
down the minimum qualification in respect of such teachers."

3. Pursuant to the aforesaid notification, the Government of Tamil Nadu
https://www.mhc.tn.gov.in/judis

20/134

WA. No. 313 of 2022 etc batch

issued G.O. (Ms) No. 181, School Education (C2) Department 15.11.2011, in

which the Teachers Recruitment Board (in short, “the TRB”) was designated as

the Nodal Agency for conducting the Teachers Eligibility Test (TET) in the

State of Tamil Nadu. Subsquently, another G.O., viz., G.O. (Ms) No. 90,

School Education (Q) Department 28.03.2012, came to be passed, to the

following effect:

"....In the G.O. (Ms) No. 181, School Education (C2) Department, dated
15.11.2011, the Government has changed the recruitment policy for
recruitment of Secondary Grade Teachers and Graduate Assistants.
Henceforth, the recruitment will be based on written examination, namely,
Teacher Eligibility Test in accordance with the guidelines issued by the
National Council for Teacher Education. The qualifying candidates of the
Teacher Eligibility Test will be recruited based on marks, communal rotation
and certificate verification.

2.However, with respect to the recruitment of Secondary Grade Teachers, the
state-wide seniority in employment exchange registration will continue till the
disposal of the Special Leave Petition filed in the Supreme Court."

Subsequently, in GO. Ms. No. 244 School Education [EE(3)2] Department

dated 30.11.2013, it was clarified that the Government has examined the

matter and directed the Teachers Recruitment Board to follow the procedure for

selection of Secondary Grade Teachers also on the basis of the marks obtained

in TET.

4. Thus, as per the G.Os. referred to above, possessing TET

qualification has become essential and mandatory for the teaching faculties

from 23.08.2010 (subsequently extended by NCTE notification to 29.07.2011)
https://www.mhc.tn.gov.in/judis

21/134

WA. No. 313 of 2022 etc batch

in the State.

5. The Nodal Agency (TRB) in the State of Tamil Nadu, has conducted

TET examination for the first time on 12.07.2012 from which it could be

inferred that no person, who had passed the TET, would have been available to

be appointed during the period from 23.08.2010 to 12.07.2012 as a teacher. It

is in that backdrop that the first and second proviso to clause (2) of
Section 23

of the RTE Act enable those teachers, who were appointed during that period,

to pass the TET by 31.03.2019 for their continuance in the post.

6. Though there is a requirement in the Notification No.76-4/2010

/NCTE/Acad dated 11.02.2011 published by the NCTE that the TET should be

conducted atleast once in every year and there will be no restriction on the

number of attempts a person can take for acquiring a TET Certificate and a

person who has qualified the TET may also appear again for improving his/her

score, it has been brought to notice that the TET has not been conducted

annually in the State of Tamil Nadu except on 14.10.2012, 17.08.2013,

18.08.2013, 29.04.2017, 30.04.2017, 08.06.2019 and 09.06.2019. Thus,

taking this situation that TET had not been conducted in the years 2014, 2015,

2016 and 2018, the persons appointed during the period from 23.08.2010 to

12.07.2012 have claimed exemption from passing TET, particularly when it is

not in dispute that the TET has been conducted during the years 2012, 2013
https://www.mhc.tn.gov.in/judis

22/134

WA. No. 313 of 2022 etc batch

and 2017 and they have had sufficient opportunity to prepare and appear for

the TET during the said period.
In this context, the Division Bench of this

Court in
State of Tamil Nadu v. R.Arivazhagan (Order
dated 24.01.2017 in

W.A. No. 1126 of 2016 etc., batch) had taken note of those aspects of the

matter and held as follows:

"42.Accordingly, to meet the ends of justice, the writ appeals and the writ
petitions are disposed with the following directions:

(i)The Teachers herein, who have been appointed subsequent to the
issuance of the Government Order, are granted one opportunity to appear
for the Teacher Eligibility Test to be conducted by the Teachers Recruitment
Board and in the event of their passing in the Teacher Eligibility Test, their
appointments shall be approved else, they have no other option but to quit
the service/ousted from service;

(ii)Till the results are published, the Government shall pay the salary to the
Teachers, who are in service of the aided institutions, for the service
rendered by them and in the cases where salary was not paid the same
shall be paid along with arrears, if any, forthwith;

(iii)Learned Advocate General submitted that salary has been paid to most
of the Teachers and only a few were not paid, for want of particulars. In
such a case, the Teachers whose salary have not been paid for want of
particulars, they shall furnish the requisite particulars immediately, so as
to enable the Government pay the salary immediately.

(iv)Insofar as W.P. No. 7953 of 2015 is concerned, though the writ
petitioner has qualified with a pass in Teacher Eligibility Test during 2013,
she has not been paid the difference of salary from the date of
appointment, till the date of passing of the Teacher Eligibility Test. In view
of the discussions aforesaid, the Government is directed to pay the
difference of salary within a period of four weeks from the date of receipt
of a copy of this order; and

(v)The Teachers Recruitment Board is directed to take note of the above
observations and to issue notification for conducting Teacher Eligibility
Test on or before the end of February 2017, indicating the date of exam to
be either in the last week of March 2017 or in the first week of April 2017."

7.

https://www.mhc.tn.gov.in/judis With this introductory background, the averments raised in the

23/134

WA. No. 313 of 2022 etc batch

appeals as well as the writ petitions are required to be dealt with,

independently. The pleadings have been arranged for narration on the basis of

the issues that arise for consideration as referred to at the first instance, Issue

No. (i) being covered by W.A.No. 2795/2022, W.P. Nos.3364 & 3368 of 2023,

and Issue No. (ii) being covered by W.A.Nos.313, 833, 1891, 2050, 2082,

2617 of 2022 & WA.Nos.19, 31, 32 & 36 of 2023.

8. W.A. No. 2795 of 2022

8.1. The appellants are aggrieved by the order dated 20.10.2012 passed

by the learned Judge in WP No. 19587 of 2022 filed by them.

8.2. The appellants have filed WP No. 19587 of 2022 praying to quash

the order dated 11.07.2022 of the second respondent insofar as it relates to

postponing of the promotion counselling scheduled to be held on 14.07.2022

and 15.07.2022 for the post of B.T. Assistant from among the Secondary

Grade Teachers and after quashing the said order dated 11.07.2022, sought for

a consequential direction to the second respondent to instruct all the Chief

Educational Officers to conduct the promotion counselling for the post of B.T.

Assistant in High Schools and Higher Secondary Schools from the post of

Secondary Grade Teachers, within a time frame.

8.3. Even though the learned Judge allowed the writ petition and quashed
https://www.mhc.tn.gov.in/judis

24/134

WA. No. 313 of 2022 etc batch

the order dated 11.07.2022 of the second respondent with a further direction to

conduct promotion counselling, the appellants are aggrieved by the observation

made by the learned Judge to the effect that teachers without TET are not

entitled to continue in service in the schools/educational institutions and are not

entitled for promotion to BT Assistants from the cadre of secondary grade

teachers unless they qualify for TET.

8.4. According to the appellants, the learned Judge went beyond the

scope of the writ petition and issued such directions which had adversely

affected their right to continue in service. The appellants have filed the writ

petition only against the postponement of the promotion counselling inasmuch

as they are continuing in the post of Secondary Grade Teachers without being

promoted to the post of B.T. Assistant by citing the non-possession of TET.

When the appellants sought for a direction to the respondents to expeditiously

conduct the promotion counselling, the learned Judge overstepped and held

that those who did not possess TET are not entitled to promotion and continue

in service. Such finding will have a cascading effect in their continuing in

service. The appellants further stated that they were appointed from 1991 to

2011 on various dates and they are continuing in service without promotion.

On the other hand, those who were appointed after the appellants have climbed

the promotion ladder and are holding higher posts. It is also stated by the
https://www.mhc.tn.gov.in/judis

25/134

WA. No. 313 of 2022 etc batch

appellants that they are not required to pass TET at all inasmuch as they were

appointed much prior to the issuance of G.O. Ms. No.181 dated 15.11.2011 as

well as the conduct of TET for the first time in the State; and that, this

Honourable Court had passed several orders holding that pass in TET is

compulsory only for direct recruitment to the post of B.T. Assistants and not

for those who are seeking promotion to the said post. The appellants further

stated that there was no condition imposed in their order of appointment.

However, by virtue of the notification dated 23.08.2010, they are required to

pass TET as a condition precedent for promoting them to higher post. Such a

condition is conspicuously absent in the order of appointment issued to the

appellants and therefore, they cannot be directed to complete TET as a

condition precedent for conferment of promotion or for the purpose of

continuing in service. In any event, when there are several orders cited on

behalf of the appellants and the learned Judge did not agree with the decisions

rendered by this Court in the earlier orders, judicial discipline demands that the

matter ought to have been referred to a Division Bench. Instead, the learned

Judge observed that those who did not possess TET has to be shown the exit

door and they are not having any right to remain in service. Such an

observation made by the learned Judge is legally not sustainable. Further, the

Government issued G.O. (Ms.) No. 13, School Education [S.E 3(1)]
https://www.mhc.tn.gov.in/judis

26/134

WA. No. 313 of 2022 etc batch

Department dated 30.01.2020 whereby the Special Rules for the Tamil Nadu

School Educational Subordinate Service, was published. Even in the said

Government Order, it was only stated that TET is necessary for appointment of

a graduate teacher, however, it cannot be insisted in the case of promotion to

the post of B.T. Assistant. The said Government Order in G.O. (Ms.) No.13,

School Education Department dated 30.01.2020 was not challenged and

therefore also, the order passed by the learned Judge required to be interfered

with by this Court. Accordingly, the appellants prayed for allowing this appeal.

8.5. The learned counsel appearing for the appellants in W.A.No.2795 of

2022 would contend that the appellants were appointed as Secondary Grade

Teachers between 1991 and 2011 on various dates and they have rendered

more than two decades of service without any promotion. However, during the

course of their service, NCTE has made TET qualification mandatory for all

appointments from the date of the notification on 23.08.2010. It was also made

clear that for appointments made prior to the notification, possessing TET is

not required.

9. WP Nos. 3364 & 3368 of 2023:

9.1. WP No. 3364 of 2023 is filed by TET Passed Candidates Welfare

Association, while WP No. 3368 of 2023 has been filed by one Sakthivel. Both

these writ petitions have been filed to issue a Writ of Declaration declaring that
https://www.mhc.tn.gov.in/judis

27/134

WA. No. 313 of 2022 etc batch

the Special Rules for the Tamilnadu School Educational Subordinate Service

issued in G.O. Ms. No.13, School Education Department dated 30.01.2020

insofar as it prescribes "a pass in 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 illegal being ultra vires the
Right of Children to Free and Compulsory

Education Act, 2009
and the Rules framed thereunder and the NCTE

notifications dated 23.08.2010 and 29.07.2011.

9.2. According to the petitioner in WP No.3364 of 2023, it is a registered

association and they have been espousing the cause of candidates who have

passed TET. It is stated that NCTE issued the notification dated 23.08.2010

prescribing minimum qualification for being appointed as a Teacher for

imparting teaching to students studying Classes I to V (secondary grade

teachers) and Classes VI to VIII (B.T. Assistants). As per the notification dated

23.08.2010, the teachers appointed prior to the notification need not pass TET.

However, by a subsequent notification dated 29.07.2011, amendments were

made to the notification dated 23.08.2010 in which also, the requirement to

pass TET has become necessary for the purpose of appointment. The

Government also issued G.O. Ms. No.173, dated 08.11.2011 framing the Tamil

Nadu Right of Free and Compulsory Education Rules, 2011 followed by

another order in G.O. (Ms.) No.181 dated 15.11.2011 appointing TRB as the
https://www.mhc.tn.gov.in/judis

28/134

WA. No. 313 of 2022 etc batch

nodal agency to conduct TET exam. As per the orders of the Government,

passing TET is mandatory for all secondary grade teachers as well as BT

Assistants in the State.

9.3. It is further stated by the petitioners that pursuant to the orders of the

Government, TRB has conducted several TET exams and the results declared

in those examinations were the subject matter of various litigations before this

Court. However, it is clear that no selection shall be made to the post of

Secondary Grade Teachers and BT Assistants without the TET qualification

and no approval for any appointment was given by the educational agency in

favour of those who do not pass TET.

9.4. The petitioners, in unison, would state that the Government of Tamil

Nadu has now framed Special Rules for Tamil Nadu Elementary Education

Subordinate Service in GO Ms. No.12, School Education [EE1(1)] Department

dated 30.01.2020 and Special Rules for the Tamil Nadu School Educational

Subordinate Service vide G.O. Ms. No.13, School Education [S.E 3(1)]

Department dated 30.01.2020. In the aforesaid Government Orders, while

prescribing qualification for the post of Graduate Teacher (BT Assistant) in

Annexure I (as referred to in Rule 6) of the Special Rules, it was specified that

"a pass in TET" is mandatory only for direct recruitment. As far as the mode of

appointment, it was stated that the post of BT Assistant/Graduate Teacher can
https://www.mhc.tn.gov.in/judis

29/134

WA. No. 313 of 2022 etc batch

be filled by way of transfer, promotion or direct recruitment, meaning thereby,

for transfer and promotion, the in-service candidates in the post of Secondary

Grade Teachers can be considered even without TET qualification for

promotion to the post of BT Assistant.

9.5. The grievance of the writ petitioners is that such a prescription to

promote the in-service candidates to the higher post without TET qualification

is against the spirit of
RTE Act
and the Rules made thereunder. Therefore,

challenging G.O. Ms. No.12, School Education Department dated 30.01.2020,

the petitioner Association has earlier filed WP (MD) No. 9707 of 2022 before

this Court. Similarly, another writ petition in WP (MD) No. 9708 of 2022 was

filed by one K. Rajasekaran. Both the writ petitions were taken up for hearing

on 11.05.2020 and an interim order was granted to the effect that any

promotion order passed by the official respondents will be subject to the

outcome of the final order to be passed in the writ petitions.

9.6. During the pendency of the writ petitions, the Commissioner of

School Education has passed an order dated 30.06.2022 directing all the Chief

Educational Officers to prepare a panel in the category of Secondary Grade

Teacher for promotion to the post of BT Assistant. Challenging the said order

dated 30.06.2022, the petitioner in WP No. 3368 of 2023 has earlier filed WP

No. 17895 of 2022 to quash the proceedings dated 30.06.2022 of the
https://www.mhc.tn.gov.in/judis

30/134

WA. No. 313 of 2022 etc batch

Commissioner of School Education, Chennai, insofar as it relates to promotion

to the post of B.T. Assistant from those unqualified candidates without passing

TET by conducting promotion counselling. In connection with the same

dispute, some of the in-service candidates have also filed WP No. 19587 of

2022 challenging the order dated 11.07.2022 of the Commissioner of School

Education, Chennai postponing the promotion counselling scheduled to be held

on 14.07.2022 and 15.07.2022 for the post of B.T. Assistant from the post of

Secondary Grade Teacher as per the proceedings dated 30.06.2022 and to

direct the Commissioner of School Education to instruct all the Chief

Educational Officers to conduct promotion counselling for promotion to the

post of B.T. Assistant. Both the WP No.17895 of 2022 and WP No. 19587 of

2022 were taken up for hearing and by order dated 20.10.2022, WP No. 17895

of 2022 filed by the TET passed candidate Sakthivel was allowed and WP No.

19587 of 2022 was dismissed.

9.7. As against the common order dated 20.10.2022, the petitioners in

WP No. 19587 of 2022 have filed Writ Appeal No. 2795 of 2022 before this

Court, wherein the petitioner in WP No. 3364 of 2023 impleaded themselves as

party respondent and opposed the writ appeal by stating that in-service

candidates, who do not possess TET qualification cannot be conferred with

further promotion. According to the writ petitioners, number of in-service
https://www.mhc.tn.gov.in/judis

31/134

WA. No. 313 of 2022 etc batch

candidates do not possess TET qualification, however, they are asserting a right

for promotion to the post of B.T. Assistant. If promotion to the post of B.T.

Assistant is made from among unqualified secondary grade teachers, who do

not pass TET, the qualified persons, who have passed TET, will be deprived of

their legitimate right of appointment and promotion. The unqualified in-service

candidates solely rely upon G.O. Ms. Nos. 12 and 13 dated 30.01.2020 for

conferment of promotion to the post of B.T. Assistant without possession of

TET and therefore, challenging the aforesaid orders of the Government, these

writ petitions in WP Nos. 3364 & 3368 of 2023 have been filed.

9.8. A counter affidavit has been filed in WP No. 3368 of 2023 by the

Joint Director (Personnel), Commissioner of School Education, Chennai

contending inter alia that number of candidates, who do not possess the

mandatory TET, have been appointed in Government aided school and

therefore, their appointments are not approved by the Department. However,

on the basis of interim order passed by this Court in the writ petitions filed by

such candidates, they continue to remain in service and on the basis of such

orders, temporary appointments have been given by the Department to the

nonqualified teachers. It is stated in the counter affidavit that the nodal agency

namely TRB has conducted TET examination on 03.06.2012 in which

3,05,405 candidates appeared, but only 1735 passed the examination.

https://www.mhc.tn.gov.in/judis

32/134

WA. No. 313 of 2022 etc batch

Subsequently, TET examination was conducted on various dates in which very

few have passed the examination. It is further stated that the State Government

strictly adheres to the provisions of
RTE Act, 2009
which made it mandatory

for all those teachers, both secondary grade teachers as well as B.T. Assistant

appointed on or after 01.04.2020 to acquire TET qualification. As far as

Government Schools are concerned, only those candidates, who passed TET,

alone are appointed after the coming into force of the said Act. The teachers

appointed in the minority aided schools claim that they need not acquire TET

in view of the order passed by the Constitutional Bench of the Honourable

Supreme Court in
Pramati Educational and Cultural Trust and others v.

Union of India
[(2014) 8 SCC 1]. However, the issue that was dealt with
in

that case
relates to reservation of 25% of seats in the schools for the children

belonging to weaker and disadvantaged sections of the society and
the said

decision
has no application to their case.

9.9. With reference to the Judgment passed in W.A.(MD)No.859 of 2019

filed by Tmt. B. Annie Packiarani Bai, the Department has filed SLP (C) Diary

No. 17702 of 2021 before the Honourable Supreme Court and it is pending. In

another batch of cases in W.A. No. 1723 of 2019 filed against the order dated

30.04.2019 in WP No. 13306 of 2019, the Division Bench of this Court has

directed the Department to issue show cause notice to those who have not
https://www.mhc.tn.gov.in/judis

33/134

WA. No. 313 of 2022 etc batch

passed TET. However, this Court, by an order dated 16.05.2019, granted

interim injunction restraining the Educational authorities from terminating the

teachers pending disposal of the writ appeals. Thus, according to the

respondent authorities, the prayer made in the writ petitions is devoid of merits

and is liable to be rejected.

10. Writ Appeal Nos. 313 and 833 of 2022

10.1. These appeals arise out of the common order dated 29.07.2021

passed by the learned Judge in WP Nos. 23999 and 24003 of 2019.

10.2. Both the aforesaid writ petitions have been filed for issuing a Writ of

Mandamus forbearing the respondents therein from insisting passing of TET

and to direct the respondents to continue to make salary, including annual

increment, incentive increment and other service benefits to them.

10.3. According to the writ petitioners, they were appointed as B.T.

Assistant on 15.06.2011 and 29.07.2011 respectively and their appointment

has also been approved by the educational agency. While so, after their

appointment, the Government issued G.O. Ms. No.181, School Education

Department dated 15.11.2011 appointing TRB as nodal agency to conduct

TET. Therefore, the writ petitioners who were appointed prior to the issuance

of G.O. Ms. No.181 dated 15.11.2011, are not required to complete TET or the
https://www.mhc.tn.gov.in/judis

34/134

WA. No. 313 of 2022 etc batch

acquisition of TET qualification cannot be put against them for the purpose of

conferment of annual increment, incentive and other service benefits. However,

the school, where they were employed, are refusing to pay salary and other

monetary benefits to them by citing non-possession of TET.

10.4. The learned Judge, on considering the rival submissions, held that

the petitioners, who were appointed on 15.06.2011 and 29.07.2011, cannot be

insisted to possess TET qualification as prescribed by NCTE. The learned

Judge also, by placing reliance on the order dated 30.07.2020 passed by this

Court in WP (MD) Nos. 8313 of 2020 etc., batch in Mrs. D. Raja Malar vs.

The State of Tamil Nadu, Department of School Education and others, held

that the writ petitioners were appointed prior to issuance of G.O. Ms. No.181

dated 15.11.2011 and they are not required to pass TET as a condition

precedent for payment of salary and other monetary benefits. Accordingly, a

direction was issued to the respondents therein to pay the salary, including

annual increment and other incentives payable to the writ petitioners within a

period of eight weeks. Aggrieved by the common order dated 29.07.2021

passed by the learned Judge in WP Nos. 23999 and 24003 of 2019, the present

intra-court appeals in W.A. Nos. 313 and 833 of 2022 are filed.

10.5. Assailing the order dated 29.07.2021 of the learned Judge, it is
https://www.mhc.tn.gov.in/judis

35/134

WA. No. 313 of 2022 etc batch

contended by the appellants that the appointment of the writ petitioners

without possession of TET would be considered as without adequate

qualification and it is against the prescription of minimum qualification under

the
RTE Act, 2009
. The learned Judge, while allowing the writ petitions, did

not consider that sufficient and adequate time has been given to the teachers

like the writ petitioners to acquire TET, however, they did not possess such

qualification. After coming into force of the
RTE Act, 2009
, acquisition of TET

qualification is mandatory for appointment as teachers. Even though the writ

petitioners were appointed in the year 2011, till this date, they have not chosen

to acquire such qualification and therefore, it shall be deemed that they are

continuing in service as B.T. Assistant without the mandatory qualification

prescribed under the
RTE Act, 2009
. While so, the order passed by the learned

Judge, directing the appellants to pay the writ petitioners their salary, annual

increments and other incentives is not proper and hence, prayed for setting

aside the same by allowing the writ appeals.

11. W.A. No. 1891 of 2022

11.1. This appeal arises out of the order dated 22.10.2021 passed by the

learned Judge in WP No. 22221 of 2021.

11.2. The aforesaid writ petition was filed by one K.A. Karpagam, praying
https://www.mhc.tn.gov.in/judis

36/134

WA. No. 313 of 2022 etc batch

to issue a Writ of Mandamus directing the appellants to sanction annual

increment to her in the post of B.T. Assistant (Science-Zoology) in the second

respondent school from the year 2016 without reference to passing TET with

all consequential benefits.

11.3. According to the writ petitioner, she was appointed as B.T. Assistant

in Sri Sarada Vidyalaya Higher Secondary School for Girls, Fairlands, Salem

on 19.03.2011 and her appointment was also approved by the educational

authorities on 24.05.2011. In the meanwhile, based on G.O. Ms. No.181 dated

15.11.2011, making TET qualification mandatory, the writ petitioner has not

been paid annual increments payable to her. The writ petitioner further stated

that she was appointed on 19.03.2011, prior to issuing G.O. Ms. No.181 dated

15.11.2011 and therefore insisting her to pass TET. as a condition precedent

for payment of annual increment and other benefits. is illegal.

11.4. The learned Judge, by the order dated 22.10.2021, allowed WP No.

22221 of 2021 filed by the writ petitioner by placing reliance on the earlier

order passed by this Court in WP No. 20013 of 2021 and held that as per

Section 23
of the RTE Act, a teacher, who did not possess the minimum

qualification shall acquire it within a period of five years, however,

consequences of not obtaining such qualification has neither been prescribed in

the Act nor the Rules and Government Orders. It was further held that as long
https://www.mhc.tn.gov.in/judis

37/134

WA. No. 313 of 2022 etc batch

as the petitioner was working as a teacher, she is entitled to all the benefits that

are available to the regular teachers as per the Rules.

11.5. Assailing the order dated 22.10.2021 passed in WP No. 22221 of

2021, it is contended on behalf of the appellants that minimum qualification to

be possessed by a Teacher has been laid down by NCTE in exercise of powers

conferred under
Section 23(1)
of The Right of Children to Free and

Compulsory Education Act, 2009. The writ petitioner admittedly did not

possess the minimum qualification prescribed by NCTE within five years from

the date of commencement of the Act in the year 2009. Even the Government

has passed the order in G.O. Ms. No.181, School Education Department dated

15.11.2011 to the effect that teachers to be recruited in future for the

elementary segment must have passed TET. Therefore, as per the order of the

Government, it is mandatory for the writ petitioner to possess TET and she

cannot be permitted to state that her appointment was made prior to the

issuance of the Government Order. Even the five years time limit prescribed

under
Section 23 (2)
has lapsed but the writ petitioner did not acquire TET

qualification. When the continuance of the writ petitioner in service itself is

illegal, the learned Judge ought not to have issued a Mandamus directing the

appellants herein to confer her all the consequential monetary benefits such as

annual increment etc.
In this context, the appellants have relied on the order
https://www.mhc.tn.gov.in/judis

38/134

WA. No. 313 of 2022 etc batch

dated 24.03.2022 passed by this Court in WP No. 28284 of 2021 etc., in

K. Vasudevan v. The Principal Secretary, School Education Department and

others
, wherein it was held that merely because the writ petitioners'

appointment was made prior to the issuance of the Government Order and their

appointments were also ratified by the educational authorities, it will not confer

them the right to get annual increment etc. Thus, according to the appellants,

when the writ petitioner did not possess the requisite mandatory qualification,

she is not entitled to annual increment and other incentives and hence, the

order of the learned Judge dated 22.10..2021 made in WP.No.22221 of 2021

will have to be set aside by allowing this appeal.

12. W.A. No. 2050 of 2022

12.1. This appeal arises out of the order dated 29.09.2021 passed by the

learned Judge in WP No. 20911 of 2021.

12.2. The aforesaid writ petition has been filed praying to issue a Writ of

Mandamus directing the appellants to sanction annual increment to the writ

petitioner in the post of B.T. Assistant (Maths) from the year 2018 and also to

pay incentive increment for having acquired M.Sc., Mathematics without

reference to passing of TET.

12.3. According to the writ petitioner, he was appointed as B.T. Assistant
https://www.mhc.tn.gov.in/judis

39/134

WA. No. 313 of 2022 etc batch

on 12.09.2011 and he joined the said post on 12.12.2011 and that, his

appointment was also approved by the educational authorities. It was further

stated that after his appointment as B.T. Assistant, on 12.09.2011, the

Government issued G.O. Ms. No.181 dated 15.11.2011 making it mandatory

for the Secondary Grade Teachers and B.T. Assistant to possess TET. In any

event, when he was appointed much earlier to the passing of the Government

Order, the writ petitioner cannot be insisted to pass TET as a condition

precedent for continuing in service or payment of his annual increment and

other incentives.

12.4. The learned Judge, on consideration of the rival submissions, held

that
Section 23
of the RTE Act makes it clear that a Teacher, who, at the

commencement of the Act did not possess the minimum qualification, shall

acquire such qualification within five years. However, the consequences of not

obtaining such qualification has neither been prescribed in the Act nor in the

Rules or the Government Orders. As long as the writ petitioner continues to

work as a Teacher, he is entitled for his salary and other incentives.

Accordingly, the learned Judge allowed the writ petition No. 20911 of 2021 on

29.09.2021. Aggrieved by the same, W.A. No. 2050 of 2022 is filed by the

appellants.

12.5. In the grounds of writ appeal, it is stated that the learned Judge did
https://www.mhc.tn.gov.in/judis

40/134

WA. No. 313 of 2022 etc batch

not consider the fact that adequate time has been granted to the candidates,

including the writ petitioner, to acquire TET qualification. The writ petitioner,

who joined services on 12.09.2011, did not pass TET till the date of filing the

writ petition. When a statute prescribes a particular qualification as a minimum

qualification for holding a post, the writ petitioner cannot be given any

exemption from possessing such qualification. In any event, the appointment of

the writ petitioner or continuance of his service without the mandatory TET

qualification cannot be countenanced. In such circumstances, the learned Judge

ought not to have directed the appellants to confer all the monetary benefits

payable to the writ petitioner. Therefore, the appellants sought to allow this

writ appeal.

13. W.A. No. 2082 of 2022

13.1. This appeal arises out of the order dated 29.09.2021 passed by the

learned Judge in WP No. 20913 of 2021.

13.2. The aforesaid writ petition has been filed praying to issue a Writ of

Mandamus directing the appellants to sanction annual increment to the writ

petitioner in the post of B.T. Assistant (Maths) from the year 2018 and also to

pay incentive increment for having acquired M.Sc., Mathematics without

reference to passing of TET.

13.3. According to the writ petitioner, he was appointed as B.T. Assistant
https://www.mhc.tn.gov.in/judis

41/134

WA. No. 313 of 2022 etc batch

on 08.09.2011 and his appointment was also duly approved by the educational

authorities on 27.12.2011. However, just prior to his appointment on

08.09.2011, the NCTE has issued the notification dated 27.09.2011, amending

the earlier notification dated 28.08.2010. As per the notification dated

27.09.2011, passing of TET is considered as one of the eligibilities for

appointment to the post of teacher taking classes from Standards I to VIII. It is

the stand of the writ petitioner that after his appointment to the post of B.T.

Assistant, the notification dated 27.09.2011 has been issued by NCTE and

therefore, he is not required to pass TET.

13.4. The learned Judge allowed the writ petition by stating that as long as

the writ petitioner is in service, he is entitled for all the monetary benefits

attached to the post and he cannot be deprived of the same. Therefore, the

learned Judge allowed the writ petition and directed the appellants to confer all

the monetary benefits to the writ petitioner.

13.5. Assailing the order passed by the learned Judge, it is contended on

behalf of the appellants that adequate time has been granted to the candidates

including the writ petitioner, to acquire TET qualification. The writ petitioner

who joined the service during the year 2011, did not pass TET till the date of

filing the writ petition. When a statute prescribes a particular qualification as a

minimum qualification for holding a post, the writ petitioner cannot be given
https://www.mhc.tn.gov.in/judis

42/134

WA. No. 313 of 2022 etc batch

any exemption from possessing such qualification. In any event, the

appointment of the writ petitioner or continuance in service without the

mandatory TET qualification cannot be countenanced. In such circumstances,

the learned Judge ought not to have directed the appellants to confer all the

monetary benefits payable to the writ petitioner and hence, prayed for quashing

the same.

14. W.A. No. 2617 of 2022

14.1. The appellants are aggrieved by the order dated 28.04.2022 passed

by the learned Judge, dismissing their writ petition No. 35487 of 2019.

14.2. The appellants have filed the aforesaid writ petition praying to issue

a Writ of Mandamus forbearing the respondents from insisting passing of TET

for their appointment in the fifth respondent school on 10.12.2010 and

22.01.2011 respectively prior to G.O. Ms. No.181, School Education

Department dated 15.11.2011 and consequently direct the respondents to

continue to make payment of salary, including other service benefits with

annual increment.

14.3. Before the learned Judge, on behalf of the writ petitioners-appellants,

it was contended that the Government of Tamil Nadu issued G.O. (Ms.)

No.244, School Education (EE3(2)) Department dated 30.11.2013 in

compliance with the order passed by the Honourable Supreme Court and
https://www.mhc.tn.gov.in/judis

43/134

WA. No. 313 of 2022 etc batch

therefore, they are not required to pass TET as a condition precedent for

continuing in the post to which they are appointed. However, the learned Judge

refused to accept such a plea by holding that the writ petitioners were

appointed in an Aided School, which is receiving aid from the State

Government. On the other hand, the order passed by the Honourable Supreme

Court confers certain protection to the teachers appointed through the TRB in

Government Schools. It was further held that TET has become mandatory to be

acquired and the writ petitioners cannot claim exemption on any ground. The

appointment of the writ petitioners as teachers in the fifth respondent school

has been made on 10.12.2010, 10.12.2010 and 22.01.2011 respectively, after

the notification dated 23.08.2010 was issued by the NCTE under
Section 23

(1)
of the RTE Act. Therefore, the writ petitioners cannot be granted exemption

from passing TET and they are equally governed by the mandate contained in

clause 5 (a) of the notification dated 23.08.2010 issued by the NCTE. Further,

the writ petitioners have not passed the TET till the extended time on

31.03.2019 or on 08.06.2019 and 09.06.2019. Therefore, the learned Judge

dismissed the writ petition filed by the writ petitioners/appellants.

14.4. According to the appellants, they were appointed in accordance with

the Special Rules which was in force, without reference to TET. The

appointment of the writ petitioners were also approved by the educational
https://www.mhc.tn.gov.in/judis

44/134

WA. No. 313 of 2022 etc batch

authority. The appellants have also received salary and other monetary benefits,

as applicable till December 2019. However, the fourth respondent orally

intimated the writ petitioners that they will not be paid the monetary benefits

attached to the post due to non-passing of TET. The notification issued by

NCTE on 11.02.2011 specifically states in Clause 9 that the Government

should give weightage to the TET scores in the recruitment process, meaning

thereby, passing of TET is mandatory during the selection for recruitment of

the post and it is not applicable to those who were already appointed, like the

writ petitioners-appellants. Therefore, the qualification prescribed under

Section 23 (1)
cannot be put against the writ petitioners who were appointed

much prior to the conduct of TET by the nodal agency for the first time in the

State. Even thereafter, the Government issued G.O. Ms. No.90 dated

28.03.2012 changing the policy for recruitment of secondary grade teacher and

Graduate Assistant by stating that "henceforth the recruitment will be based

on written examination in TET in accordance with guidelines framed by

NCTE." Thus it is evident that the notification issued by the NCTE as well as

the Government would indicate that TET cannot be insisted against those

candidates like the writ petitioners-appellants, who were appointed much prior

to G.O. Ms. No. 181 dated 15.11.2011, G.O. Ms. No.90 dated 28.03.2012 and

prior to conducting TET in the State for the first time. Therefore also, the writ
https://www.mhc.tn.gov.in/judis

45/134

WA. No. 313 of 2022 etc batch

petitioners- appellants are not required to pass TET.

14.5. On behalf of the appellants, reference was made to the earlier orders

passed by this Court in WP No. 1126 of 2016 dated 24.01.2017 wherein it was

held that TET cannot be insisted to those candidates who were appointed much

after the issuance of G.O. Ms. No.181 dated 15.11.2011. Further, the

Honourable Supreme Court passed an order protecting those teachers

appointed prior to G.O. Ms. No.181 dated 15.11.2011 and therefore, the

learned Judge ought to have allowed the writ petition filed by the writ

petitioners-appellants.

15. Writ Appeal Nos. 19, 31, 32 and 36 of 2023

15.1. These four appeals are filed by the State, assailing the common order

dated 22.10.2021 passed by the learned Judge in WP Nos.22545, 22550,

22554 and 22556 of 2021 respectively.

15.2. The writ petitions namely WP Nos. 22545, 22550, 22554 and 22556

of 2021 have been filed by The Headmistress and Correspondent of St.

Joseph's Higher Secondary School, Chennai against an order dated 02.09.2021

passed by the District Educational Officer, St. Thomas Mount, Chennai,

refusing to approve the appointment of the Teachers appointed by the writ

petitioner to the post of B.T. Assistant for non-possessing TET.

15.3. According to the writ petitioner, St. Joseph's Higher Secondary
https://www.mhc.tn.gov.in/judis

46/134

WA. No. 313 of 2022 etc batch

School, Vettuvankeni, Chennai - 600 115, is one among the several schools

founded and administered by Congregation of the Sisters of St. Anne,

Tiruchirapalli. The said school, which is a minority educational institution, was

established in the year 1978 and presently it is imparting education to children

from Standards VI to XII. It was further stated that there are 31 teachers viz., 1

Headmistress, 2 Tamil Pandits, 10 BT Assistants, 15 Secondary Grade

Teachers, 2 Physical Education Teachers and 1 Sewing Mistress working in the

school. The teaching staff working in the school is in accordance with the

student strength and staff fixation done during the academic year 2019-2020.

While so, due to retirement of the teaching staff, they have appointed four

teaching staff in the sanctioned post and upon their appointment, necessary

proposal was sent for ratification of their appointment. While so, the District

Educational Officer, St. Thomas Mount returned the proposal submitted by the

petitioner School by citing an interim order dated 09.04.2019 passed by the

Madurai Bench of this Court in WA (MD)No. 76 of 2019 etc., batch and also

G.O. Ms. No.165, School Education Department dated 17.09.2019. According

to the writ petitioner, the reliance made to the interim order dated 09.04.2019

is legally not sustainable inasmuch as it has culminated in passing final order

dated 31.03.2021 in WA (MD) No. 76 of 2019 etc., batch upholding the

validity of G.O. Ms. No.165, School Education Department dated 17.09.2019
https://www.mhc.tn.gov.in/judis

47/134

WA. No. 313 of 2022 etc batch

as not operative.

15.4. The learned Judge, upon hearing the counsel for both sides, placing

reliance on the earlier order dated 31.03.2021 in WA (MD) No. 76 of 2019,

allowed the writ petitions filed by the Writ Petitioner School by a common

order dated 22.10.2021. Aggrieved by the same, the present intra-court appeals

are filed.

15.5. The appellants would state that the learned Judge allowed the writ

petitions on the ground that G.O. Ms. No.165, School Education Department

dated 17.09.2019 was ordered to be in-operative by the judgment dated

30.03.2021 in W.A. (MD) No. 76 of 2019 etc. batch. However, the

Government has filed Special Leave Petition before the Honourable Supreme

Court in which an order of interim stay was granted on 14.03.2022. Even

otherwise, the teachers appointed by the writ petitioner/School did not possess

TET qualification when they were appointed during the year 2020-2021. When

the minimum educational qualification prescribed for a teaching faculty is a

pass in TET and it is being adopted at the national level, the writ petitioner

cannot seek to dispense with such mandatory qualification to be possessed by

the teaching faculty. It is in those circumstances, the District Educational

Officer, St. Thomas Mount has rightly returned the proposals sent by the writ
https://www.mhc.tn.gov.in/judis

48/134

WA. No. 313 of 2022 etc batch

petitioner School for approval of appointment of their teacher.

15.6. The appellants would further state that this Court, in the order dated

07.04.2022 made in WP No. 28284 of 2021 referred to the decision of

Honourable Supreme Court in
Unaided Private School of Rajasthan v. Union

of India
[2012 (6) Supreme Court Cases 1] wherein it was held that the

Rights of Children to Free and Compulsory Education Act, 2009
is

constitutionally valid.
The Act
is applicable to the writ petitioner school and the

appointment of the teachers without the mandatory TET qualification cannot be

ratified by the educational authorities. Therefore, the appellants would pray for

setting aside the common order dated 22.10.2021 passed by the learned Judge

in the writ petitions.

II. SUBMISSIONS OF COUNSELS

16.1. Mrs. Nalini Chidambaram, learned Senior counsel appearing for the

appellants in W.A. No. 2795 of 2022 submitted that the appellants were

appointed as Secondary Grade Teachers on various dates between the years

1991 and 2011. Their appointment is governed by the Tamil Nadu Educational

Subordinate Service. While so, after two decades of the appointment of the

appellants, on 26.08.2009, Parliament has passed the
Right of Children to Free

and Compulsory Education Act, 2009
(Act 35 of 2009) to provide for free and
https://www.mhc.tn.gov.in/judis

49/134

WA. No. 313 of 2022 etc batch

compulsory education to all children of the age 6 to 14 year.
The Act
received

the assent of the President on 26.08.2009. Thereafter, on 23.08.2010, in

exercise of powers conferred under
Section 23(1)
of the RTE Act, the NCTE

issued a notification dated 23.08.2010 prescribing minimum educational

qualification for appointment of teacher to impart classes to students studying

in Classes I to VIII. However, even as per the NCTE Regulations which was in

force in the year 2001, TET was not mandatory.

16.2. In line with the enactment of the
RTE Act
, the Government of Tamil

Nadu issued G.O. Ms. No.181, School Education Department dated

15.11.2011 making TET mandatory for appointment of teacher. It is in those

circumstances, when Civil Appeal Nos. 6186 to 6187 of 2008 were taken up

for hearing by the Honourable Supreme Court on 05.09.2013, it was held that

"the Teachers who were appointed prior to G.O. dated 15.11.2011 will remain

protected". Thus, all the teachers appointed prior to 15.11.2011 are protected

and their services shall not be terminated for not passing TET as per the order

passed by the Honourable Supreme Court.

16.3. Notwithstanding the above position, the Directorate of School

Education issued a notification dated 01.10.2014 stating that TET is

compulsory for all the teachers in service and directed that within five years of

their appointment as BT Assistant, they should pass TET. According to the
https://www.mhc.tn.gov.in/judis

50/134

WA. No. 313 of 2022 etc batch

learned Senior counsel for the appellants, TET can be insisted to those who are

directly recruited to a teaching post and it cannot be insisted on the appellants

who have been appointed between 1991 to 2011 and had completed two

decades of service. While so, the observation made by the learned Judge in the

order dated 20.10.2022, which is impugned in Writ Appeal No. 2795 of 2022

that the teachers who do not possess the minimum qualification of pass in TET

are not entitled to continue in service in the schools/educational institutions is

legally not sustainable.

16.4. The learned Senior counsel for the appellants further referred to the

order dated 05.09.2013 passed by the Honourable Supreme Court in Civil

Appeal Nos.6186 and 6187 of 2008 (State of Tamil Nadu and another v.

Unemployed Sec. Grade Teach. Welfare Association and others) wherein it

was held as follows:

"That the teachers who were appointed prior to the G.O. dated 15.11.2011
will remain protected and as far as the transfers sought by the teachers
outside their Districts are concerned, it is for them to apply to the authority
concerned and the authority concerned will consider their applications in
accordance with law.

16.5. According to the learned Senior counsel, in the light of the above

observations made by the Honourable Supreme Court, the Teachers, who did

not pass TET and who were appointed prior to 15.11.2011 are protected and

that, insisting them to pass TET as a condition precedent for conferring
https://www.mhc.tn.gov.in/judis

51/134

WA. No. 313 of 2022 etc batch

promotion to higher post is unjustified.

16.6. The learned Senior counsel also placed reliance on the decision of the

Division Bench of this Court in The Secretary to Government, Government of

Tamil Nadu, Education Department, Fort St. George and others v. S.

Jeyalakshmi and others [(2016) 4 Law Weekly 841] wherein it was

categorically held in para No.55 that when once a person is appointed as

teacher after being found eligible as on the date of his or her appointment, he

cannot be expected to write an examination and to qualify himself in such

examination at a later point of time. The Division Bench also directed the

Government to seek necessary clarification from the NCTE in the light of such

observation made inter alia as to whether the prescription of minimum

qualification of TET can be made applicable prospectively for the Teachers who

were appointed subsequent to the date of the issue of Government Order in

both non-minority and minority institutions so as to benefit the Teachers who

have been serving for quite a long time. This observation of the Division Bench

of this Court would make it very clear that insisting TET for those who were

appointed long back, prior to the advent of
RTE Act
or to deny them the

legitimate promotion, is uncalled for.

16.7. The learned Senior counsel for the appellant further relied on the
https://www.mhc.tn.gov.in/judis

52/134

WA. No. 313 of 2022 etc batch

order dated 08.03.2019 passed by one of us (R. Mahadevan, J) in WP (MD)

Nos. 5626 to 5630 of 2017 etc., batch, wherein it was held that the cut off date

for acquiring the TET qualification is 27.09.2011 and the teachers who were

appointed prior to that date need not pass TET. Even in the case of teachers

who were appointed after that date, if the advertisement to initiate the process

of appointment of teachers was made prior to that date, then their

appointments can also be in accordance with NCTE Regulations, 2001 and

they need not acquire the TET qualification. Thus, the learned senior counsel

sought to quash the order of the learned Judge by allowing this writ appeal.

17.1. Ms. N. Kavitha Rameshwar, learned counsel appearing for the TET

passed Candidates Welfare Association/Petitioners in WP Nos. 3364 and 3368

of 2023, as also the impleaded respondents in W.A.No. 2795 of 2022, would

contend that a BT Assistant or a Graduate Teacher could be appointed either by

direct recruitment or by transfer or by promotion. Adding further, the learned

counsel submitted that the necessary qualification for the post of BT Assistant

is an Under graduation and B.Ed. degree and a pass in TET. The Tamilnadu

government has now framed Special Rules for Tamilnadu Elementary

Educational Subordinate Service vide GO.Ms.No. 12 School Education (EE(1))

Department dated 30.01.2020 and Special Rules for the Tamilnadu School

Educational Subordinate Service vide GO Ms. No.13 School Education
https://www.mhc.tn.gov.in/judis

53/134

WA. No. 313 of 2022 etc batch

(S.E3(1)) Department dated 30.01.2020. The said Rules while prescribing

qualifications for Graduate Teacher (BT Assistant) in its Annexure I (as

referred to in Rule 6) of the Special Rules specifies “a pass in TET” only for

direct recruitment. However, the mode of appointment to the said post of BT

Assistant/ Graduate Teacher is mentioned as transfer, promotion or direct

recruitment. This would mean that for transfer and promotion, the Government

is open to promoting Secondary Grade Teachers without TET qualification as

BT Assistants. The same is against the
RTE Act
and the Rules framed

thereunder and the notifications issued by the respondents 2 and 3 from time to

time apart from being unconstitutional.

17.2. The learned counsel also submitted that as the NCTE Notifications

prescribing the qualifications did not mention or make any distinction in the

qualifications on the basis of the mode/channel of appointment, the State

Government cannot make such an artificial distinction and that, it would be

beyond the competence of the State Legislature to do the same as the field is

already occupied by Parliamentary legislation under Entry 66 of the Union

List. In this context, the learned counsel contended that when once the field is

occupied by Parliamentary legislation and the subject relates to an entry falling

within the exclusive domain of the Parliament under the Union List, the State

Legislature has intended to legislate on a subject in respect of which it has no
https://www.mhc.tn.gov.in/judis

54/134

WA. No. 313 of 2022 etc batch

legislative competence, and thus the doctrine of colorable legislation is

attracted to the present case. The learned counsel relied on the Constitution

Bench judgment of the Supreme Court in
K.C. Gajapati Narayan Deo and

Ors. v. State of Orissa
[(1954) 1 SCR 1], to substantiate her argument that

once a legislature does not have competence to enact law on a particular

subject, it cannot do indirectly what cannot be done directly. She further

submitted that the impugned Rules are illegal and ultravires the
RTE Act
and

the Rules framed thereunder and also the notifications dated 23.08.2010 &

29.07.2011, issued by the NCTE which prescribe TET as a mandatory

eligibility criteria for the post of BT Assistant and that, the impugned

provisions while prescribing the mode of appointment to the post of Graduate

Teacher as either by transfer, promotion or by direct recruitment, cannot

restrict TET as an essential eligibility criteria only for direct recruitment, when

the NCTE notifications issued under the
RTE Act
make TET mandatory for

appointment to the post of BT Assistant/Graduate Teacher.

17.3. The learned counsel would further contend that the impugned Rules

are a colourable exercise of legislative power to the extent that 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) as the same ultravires the Right of Children to Free and Compulsory
https://www.mhc.tn.gov.in/judis

55/134

WA. No. 313 of 2022 etc batch

Education Act
2009 and the Rules framed thereunder and the NCTE

Notification dated 23.08.2010 & 29.07.2011, and hence violative of
Articles 14

and
of the Constitution of India.
Section 23
of the RTE Act makes it

mandatory that the minimum qualification prescribed by the academic

authority is necessary for being appointed as teacher to teach classes 1 to 8. A

graduate Teacher to teach classes 6 to 8 must also possess the necessary

qualification prescribed by the academic authority. The NCTE, the academic

authority had prescribed TET as minimum qualification for being appointed as

teacher. The impugned provisions are directly contrary to the above legal

provisions and hence, liable to be declared as illegal.

17.4. The learned counsel also placed reliance on the NCTE Regulations

2001 to buttress her case that even earlier the NCTE has intended to follow the

qualifications for the respective posts in cases where there is movement from a

lower to a higher or next level post in cases of already appointed persons.

Further, a perusal of the Rules made by various States on the basis of the

NCTE Notifications prescribing qualifications, including a pass in TET, would

show that the said qualifications have been applied to both direct recruitment

as well as to promotion to the post of BT Assistants. Also, the Order in Special

Appeal No.737/2018, (Allahabad High Court) dated 04.09.2018 has been

pressed in to service by the learned counsel to contend that the very same
https://www.mhc.tn.gov.in/judis

56/134

WA. No. 313 of 2022 etc batch

question arose before the Allahabad High Court and the Court has affirmed

that the qualifications prescribed by the NCTE including a pass in TET apply

to all appointments made after the cutoff date, i.e. 29.07.2011, including to

promotion to BT Assistant/Graduate Teacher.

17.5. The learned counsel submitted that the impugned Rules would create

a situation where those appointed by direct recruitment to the post of BT

Assistant would be TET qualified while those appointed through promotion

would be unqualified in respect of TET, thereby defeating the provisions of the

RTE Act
that seeks to uniformly increase the standard of teaching and

education while ensuring the right to education under
Article 21-A
of the

Constitution of India.

17.6. Lastly, the learned counsel would contend that though all the

members of the petitioner Association aspire for direct recruitment and the

Rules contemplate 50 percent of appointments to BT Assistant through direct

recruitment and 48 percent through promotion and the remaining 2 per cent by

transfer from among categories mentioned therein, the writ petitioners and

others are aggrieved by the impugned Rules on account of the fact that while

the Government has not made any direct recruitment for a decade, it keeps

filling up all vacant positions of BT/Graduate Assistants through promotion

from among candidates not possessing a pass in TET and that, the Government
https://www.mhc.tn.gov.in/judis

57/134

WA. No. 313 of 2022 etc batch

has not maintained the requisite quota for direct recruits, thereby meaning that

unqualified candidates are being promoted while qualified candidates are

waiting in the queue endlessly without employment and thus, the challenge is

to the Rules relating to promotion.

17.7. That apart, Ms. Kavitha Rameshwar, learned counsel for the writ

petitioners, placed reliance on several judgments with regard to the issue

relating to the maintainability of the writ petition filed by a registered

Association. It is her contention that the Association represents the unemployed

teachers who are eligible and qualified and cannot be expected to individually

knock the doors of the Court as they suffer from financial disability and the

nature of their grievances are the same.

18.1. Mr. Silambannan, learned Additional Advocate General appearing for

the State would contend that after the advent of
RTE Act
and appointment of

TRB as nodal agency to conduct TET in the State, the teachers were required to

pass the examination conducted by TRB within five years from 01.04.2010 to

31.03.2015. However, the deadline to pass the TET has been extended until

31.03.2019. Thus, nine years’ time was given to the teachers to acquire the

qualification, but several teachers have not acquired the TET qualification. He

would also submit that without such qualification, appointments were made in
https://www.mhc.tn.gov.in/judis

58/134

WA. No. 313 of 2022 etc batch

Government Aided Schools and therefore, the educational agency did not

approve their appointment. But, those teachers whose appointments have not

been approved or who were not paid the monetary benefits such as annual

increment etc., have approached this Court with various writ petitions and

obtained orders in their favour.

18.2. According to the learned Additional Advocate General, the State

Government scrupulously adheres to the provisions of
RTE Act
and insists the

teaching faculty to pass TET as mandated under the
RTE Act
. So far as the

Government Schools are concerned, only the TET passed teachers are

appointed through TRB after the coming into force of the
RTE Act
. At the same

time, the learned Additional Advocate General made reference to clauses 4 and

5 of the notification dated 23.08.2010 issued by NCTE stating that those

teachers appointed on or after 3rd September 2001 i.e., the date on which the

NCTE (Determination of Minimum Qualification for Recruitment of Teachers

in Schools) Regulations, 2001 (as amended from time to time) came into force

in accordance with that Regulation.

18.3. The learned Additional Advocate General further submitted that

promotion to the teachers in Government Schools is governed by the relevant

Service Rules namely Tamil Nadu School Education Subordinate Service Rules

or Tamil Nadu Higher Secondary Educational Service Rules. In none of the
https://www.mhc.tn.gov.in/judis

59/134

WA. No. 313 of 2022 etc batch

aforesaid Rules it was prescribed that passing of TET for promotion of teachers

to other categories is mandatory. Therefore, the teachers appointed before

01.04.2010 were exempted from passing TET. At the same time, those who are

recruited directly to the post of B.T. Assistant after the said date must have

passed TET. It is further submitted by the learned Additional Advocate General

that whenever a new legislation or rule is introduced, it will only have

prospective effect unless otherwise specifically notified that it will come into

force from a particular date. In the present case, the
RTE Act
was enacted on

and from 01.04.2010. Therefore, the teachers appointed much prior to the

coming into force of the said Act are not required to clear TET and they are

exempted from passing the TET.

18.4. With respect to promotion, it is submitted by the learned Additional

Advocate General that once a teacher has been directly recruited under the

governing Service Rules, his or her promotion or career prospects have to be

decided only based on the Rules which were in force on the date of his or her

appointment. As such, those who were appointed much prior to the coming

into force of the Act are exempted from passing TET and consequently, they

are entitled for further promotion based on their seniority and merits.

19.1. Mr. G. Sankaran, learned Senior counsel appearing for the appellants
https://www.mhc.tn.gov.in/judis

60/134

WA. No. 313 of 2022 etc batch

in W.A. No. 2617 of 2022 submitted that the appellants were appointed on

10.12.2010, 10.12.2010 and 22.01.2011 in the fifth respondent school. They

were appointed in the vacancies that arose on 01.06.2009 due to retirement of

teachers. The fifth respondent school, upon obtaining permission during

September 2010 and on 28.12.2010 respectively appointed the appellants. The

appointment of the appellants were also approved by the educational

authorities on 24.02.2011. Thus, the appellants were appointed in accordance

with the Special Rules without reference to TET. In the orders of appointment

issued to the appellants, there was no pre-condition imposed to pass TET.

While so, in the year 2019, the appellants were orally informed that they will

not be eligible for payment of annual increment etc., for not passing TET.

19.2. The learned Senior counsel for the appellants invited the attention of

this Court to the notifications dated 23.08.2010 and 11.02.2011 issued by

NCTE and submitted that the directions contained therein can be made

applicable only to the appointments to be made and not to those who were

already appointed. He had drawn the attention of this Court to clause 9 of the

notification dated 11.02.2011 of the NCTE wherein it was stated that the

Government should give weightage to the TET scores in the recruitment

process, meaning thereby, TET can be insisted only to those who are newly

recruited or appointed. Even the State Government in G.O. Ms. No. 90, School
https://www.mhc.tn.gov.in/judis

61/134

WA. No. 313 of 2022 etc batch

Education Department dated 28.03.2012 has directed that "henceforth, the

recruitment will be based on written examination, namely TET in accordance

with the guidelines issued by NCTE." The words "henceforth" employed in

G.O. (Ms) No. 90, dated 28.03.2012 will make it amply clear that TET can be

insisted only for the appointments to be made by resorting to a recruitment

process and not to those who were already recruited and are in service.

However, the learned Judge had concluded that the appointment of the

appellants is after 23.08.2010, the date on which the NCTE issued the

notification prescribing minimum educational qualification to be possessed by

the Teachers in Classes I to VIII. The learned Judge further held that the

process of appointment was initiated after 23.08.2010 and therefore, the

appellants will not fall under the exempted category of cases. However, the

learned Judge did not take note of the fact that as on 23.08.2010, the TRB has

not conducted any TET examination and there are no qualified person available

with TET qualification to be appointed as Teacher. While so, the learned Senior

counsel submits that the appellants will come under the exempted category and

consequently, passing of TET cannot be insisted against them.

19.3.
In support of his contention, the learned Senior counsel invited the

attention of this Court to the decision of this Court dated 30.07.2020 passed in
https://www.mhc.tn.gov.in/judis

62/134

WA. No. 313 of 2022 etc batch

WP (MD) No. 8313 of 2020 etc., in the case of
D.Raja Malar v. State of

Tamil Nadu and others
, where, in similar circumstances, this Court held as

follows:

"15.Therefore, it has become quite clear that the appointment of the
petitioners as on 17.09.2010, 20.06.2011 and 20.06.2011 having been
approved by the third respondent through the said approval order, the
applicability of the prescription made by NCTE to have such qualification,
insofar as the petitioners are concerned, cannot be made or applied.
Therefore, the said reason cited in the impugned order by the third
respondent, in the considered opinion of this Court, may not hold good.
Therefore, on that reason, the petitioners service benefit like annual
increment cannot be denied.

16.Moreover, once the appointments are approved by the authority and the
same still holds good, the petitioners have been brought under regular time
scale of pay. When that being the position, the annual increment is part and
parcel of the time scale of pay system being adopted for government
employees/Teachers of the Government is concerned and when such is the
position, the third respondent cannot insist upon any Government Order,
which cannot be created by the petitioners.

17.Moreover, if at all any such request is made by the petitioners for annual
increment, that should have been decided by the respondents by taking into
account the relevant Rule position, Service Law and the Government Order,
if any available with the respondents, instead, off late, it has become a
practice that some of the officials/authorities would raise a question that, in
order to get the benefit sought for by the employees/Teacher/incumbent,
whether any Government Order is available in their favour.

19.4. The learned Senior counsel also placed reliance on the order dated

29.09.2021 passed in WP No. 20911 of 2021 as well as the order dated

20.12.2021 passed in WP No. 25138 of 2021, wherein this Court issued a

Mandamus directing the respondents therein to continue to pay the annual

increment and other monetary benefits to the petitioners therein without

insisting TET.

https://www.mhc.tn.gov.in/judis

63/134

WA. No. 313 of 2022 etc batch

19.5. The learned Senior counsel for the appellants further relied on the

order passed by the Madurai bench of this Court in WP (MD) Nos. 5626 to

5630 of 2017 etc., batch. According to the learned Senior counsel, the common

prayer sought for in those writ petitions is to issue a Writ of Mandamus to

forbear the official respondents from insisting the writ petitioners to pass TET

for continuing their service as B.T. Assistant in the respondents schools. All the

writ petitioners in those cases were admittedly appointed before issuance of

notification and their appointments were also approved by the Educational

Authorities. While so, it was contended on their behalf that when their

appointment is proper, they cannot be compelled to write TET as a condition

precedent for continuing in their service. This Court, upon examining the fact

as to whether the writ petitioners, who were appointed before the cutoff date

are entitled to get exemption from passing TET, after an in-depth analysis of

the same, held that the writ petitioners are entitled to seek exemption from

passing TET, as they were appointed prior to the cutoff date and the

respondents were directed not to insist TET certificate from the writ petitioners

as a condition precedent for their continuance in service as B.T. Assistants.

19.6. Reliance was also placed on the decision of the Division Bench of

this Court in
The Secretary to Government, Government of Tamil Nadu,

Education Department and others v. S. Jeyalakshmi and another
[2016 (4)
https://www.mhc.tn.gov.in/judis

64/134

WA. No. 313 of 2022 etc batch

Law Weekly 841]. In that case, this Court had an occasion to consider as to

whether the teachers, who were appointed prior to the Government Order

introducing TET as a condition, are required to acquire TET qualification

within a period of five years so as to continue in their service. The Division

Bench of this Court, in Para Nos. 55 to 58 held as follows:

"55. A reading of the qualifications extracted above would clearly show that
the B.T. Assistants are being appointed only if they are qualified and
possessed with Teachers Training Certificate. As per G.O. Ms. No.181
dated 18.11.2011, Secondary Grade Teachers are being appointed only if
they are qualified and possessed with Diploma in Teachers Education. Thus,
it is evident that the persons who underwent either Teachers Training course
or Diploma in Teachers Education alone are eligible for appointment either
as B.T. Assistants or Secondary Grade Teachers as the case may be.
Therefore, there cannot be an iota of doubt as to their eligibility for
appointment as Teachers. Once they are appointed as Teachers after having
been found eligible as on the said date of their appointment, they cannot be
expected to write an examination and to qualify in such examination at a
much later point of time.

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
subsequent to the date of the 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.

57. In case of NCTE clarifying that G.O. can be given prospective effect, the
Government, in its wisdom, may think of conducting refresher course for the
Teachers who were appointed prior to the issue of G.O., during the annual
vacation, instead of insisting for qualifying in TET, since the Teachers have
already undergone either Teachers Training Course or Diploma in Teachers
Education, as the case may be, as per the
Education Act
of the State.
Moreover, we are of the opinion that asking the Teachers who have been
appointed after having found eligible and working for quite a long time, to
undergo TET examination and to pass the same at this stage, would be
nothing but imposing upon them a task, which they have already achieved
by passing the requisite tests for getting appointed. Further, an uncertainty
also would get created in the minds of the Teachers that lest they pass the
https://www.mhc.tn.gov.in/judis

65/134

WA. No. 313 of 2022 etc batch

TET examination, their career would be hanging in balance as the
Damocles Sword. Keeping the above in mind, the Government may, in
consultation with NCTE, formulate a scheme for conducting refresher
course for those Teachers who were appointed prior to the issue of G.O., as
this would set at rest the uncertainty that would otherwise get created in the
minds of the persons already in employment.

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."

19.7. By placing reliance on the aforesaid decision, the learned Senior

counsel for the appellants submitted that the appellants are governed by the

conditions imposed or the Rule prevailing as on the date of their appointment

and hence, they cannot be compelled to pass TET which was introduced much

after their appointment. With these submissions, the learned Senior counsel

prayed for allowing this appeal.

20. Mr. V. Ashok Kumar, learned Central Government Counsel

appearing for the first respondent in WP Nos. 3364 and 3368 of 2023 would

submit that the
Right of Children to Free and Compulsory Education Act, 2009

(Amendment Act, 2012
) which represents the consequential legislation

envisaged under
Article 21-A
of the Constitution of India came into force on

01.04.2010. Subsequently, the Central Government formulated the Central

RTE Rules, 2010 which could be adopted by the Union Territories not having

the legislative Assembly. The Government of India also formulated the model

RTE Rules, which were to be adopted by the concerned State based on the
https://www.mhc.tn.gov.in/judis

66/134

WA. No. 313 of 2022 etc batch

ground realities prevailing in the particular State.
Section 23
of the RTE Act,

prescribes the qualification for appointment and the terms and conditions of

service of teachers.
Section 23 (2)
confers relaxation for teachers who were

appointed or in position as on 31st March 2015, which means that this clause

applies on those teachers who are in-service as on 31st March 2015. Further,

as per
Section 23 (2)
, the relaxation can be given only in academic

qualifications in a case where a State does not have adequate institutions

offering course or training in Teachers Education. Even such relaxation can be

conferred till 31st March 2019 and not thereafter. He would further submit that

TET is mandated by NCTE and therefore, the question of relaxation in TET is

not covered under the above mentioned sections of the
RTE Act
. The Central

Government has authorised the NCTE to lay down certain minimum

qualification to be possessed by a person to become eligible for appointment of

a teacher. Accordingly, the NCTE issued a notification dated 23.08.2010 and

one of the essential qualifications for a person to be eligible for appointment as

a teacher is that he or she should pass TET which will be conducted by the

appropriate Government. In effect, the learned Central Government Counsel

submitted that the recruitment, service conditions and deployment of teachers

are primarily in the domain of respective State Governments and Union

Territory Administrations. As per the
RTE Act
, it is for the appropriate
https://www.mhc.tn.gov.in/judis

67/134

WA. No. 313 of 2022 etc batch

Government to take a decision on employment of teachers in accordance with

the provisions of the
RTE Act, 2017
.

21. Mr. Karthikeyan, learned counsel appearing for the petitioners in

CMP Nos. 6050 and 6349 of 2023, which were filed to implead themselves as

party respondents in W.A. No. 2795 of 2022, would contend that the

petitioners were appointed as Teachers during 1995 to 2001 on various dates

and they cannot be brought within the fold of TET. The petitioners are working

as such for more than 25 years and are waiting for their legitimate promotion

to the post of B.T. Assistant. However, by citing the non-passing of TET, they

are deprived of their legitimate promotion, which is unjustified. The provisions

contained under the
RTE Act
or the notifications issued by NCTE prescribing

minimum educational qualification vis-a-vis a pass in TET cannot be put

against the petitioners to deny them their legitimate promotion. He placed

reliance on the order passed by the Government in G.O. Ms. No.171, School

Education Department dated 18.08.2008 and contends that if the petitioners

are given promotion from the post of Secondary Grade Teacher to B.T.

Assistant, the post which they have held (Secondary Grade Teacher) will

automatically be converted as B.T. Assistant in which event no one will be

prejudiced. The learned counsel therefore prayed for allowing the impleading

petitions and to direct the Government to conduct the promotion counselling to
https://www.mhc.tn.gov.in/judis

68/134

WA. No. 313 of 2022 etc batch

the petitioners to the post of B.T. Assistant without insisting TET.

22. We have heard the learned counsel appearing for all the parties at

length and also perused the materials placed on record.

III. DISCUSSION & FINDINGS

A. W.A. No. 2795/2022 & W.P. Nos. 3364 and 3368/2023

23. The writ appeal arises out of the order of the Learned Judge wherein

it has been held that the Teacher Eligibility Test (TET) shall be an essential

eligibility criteria for those aspiring to be promoted as Graduate Teachers/ BT

Assistants from the post of Secondary Grade Teachers. Apart from the various

submissions made by the appellants, who were the writ petitioners originally,

seeking promotion to the post of BT Assistant from the post of Secondary

Grade teacher without insistence on TET, it is pertinent to mention that under

the Special Rules for the Tamil Nadu School Educational Subordinate Service

issued vide GO. Ms. No. 13 School Education [S.E.3 (1)] dated 30.01.2020, it

has been stipulated that for the post of Graduate Teacher/ B.T. Assistant, a pass

in Teacher Eligibility Test (TET) is mandatory only for direct recruitment as

mentioned in Annexure I to the Special Rules, as referred to in Rule 6 of the

said Rules. The said Rules have been made by the State Government under

Article 309
of the Constitution.

https://www.mhc.tn.gov.in/judis

69/134

WA. No. 313 of 2022 etc batch

24. It is also pertinent to mention that while heavy reliance has been

placed by the appellants on the said Rules which lends assistance to the sheet

anchor of their case that TET as an eligibility criteria is required to be fulfilled

only in the case of direct recruitment to the post of BT Assistant, the Learned

Judge has, even in the face of the said Special Rules, adopted the view that it is

mandatory even for promotion to the post of BT Assistant from the category of

secondary grade teacher after the coming into force of the
RTE Act, 2009
and

the NCTE notifications issued pursuant thereto. In the light of the operation of

the Special Rules as stated above, stating that a pass in TET is required only

for direct recruitment to the post of Graduate Teacher/BT Assistant, the natural

outcome should be that in the absence of a challenge to the Rules, the position

stated in the Rules would have to be applied. However, while the said Rules

had not been subject to challenge before the Learned Judge, the said Rules

have now been challenged by way of two writ petitions and therefore, the moot

question would now be on the validity or otherwise of the said Special Rules.

The entire issue therefore now narrows down to the validity or otherwise of the

said Special Rules which have now been challenged before us. Once we

pronounce upon the validity of the said rules, all the issues including the

correctness of the order passed by the Learned Judge in the present writ
https://www.mhc.tn.gov.in/judis

70/134

WA. No. 313 of 2022 etc batch

appeal, would stand settled.

25. The essential question therefore relates to the determination of the

validity of the Special Rules (hereinafter referred to as “the impugned Rules”)

by which it has been prescribed that for the post of Graduate Teacher/BT

Assistant, a pass in Teacher Eligibility Test (TET) is mandatory for direct

recruitment alone. Two writ petitions have been filed challenging the vires of

the said Rules, one of them being by a registered Association that espouses the

cause of all candidates who have passed TET, and the other petition by an

individual who is an aspirant for the post of Graduate Teacher/BT Assistant, by

direct recruitment.

THE RTE ACT, 2009 & THE LEGAL FRAMEWORK ON TET AS AN

ELIGIBILITY CRITERIA

26.
The Right of Children to Free and Compulsory Education Act, 2009

was passed with the avowed objective of ensuring free and compulsory

education to all children in the age group of 6 to 14 years, pursuant to
Article

21-A
inserted by the Constitution (86th amendment) 2002 which provides for

free and compulsory education of all children in the age group of 6 to 14 years

as a fundamental right.
The RTE Act
also aimed at raising the standard of

education, and came into force on 01.04.2010.
Under the Act
, the term ‘school’

is defined as follows:

https://www.mhc.tn.gov.in/judis

71/134

WA. No. 313 of 2022 etc batch

“2(n) “School” means any recognized school imparting elementary
education and includes –

(i)a school established, owned or controlled by the appropriate
Government or a local authority;

(ii)an aided school receiving aid or grants to meet whole or part of its
expenses from the appropriate Government or the local authority;

(iii)a school belonging to specified category; and (iv) an unaided school
not receiving any kind of aid or grants to meet its expenses from the
appropriate Government or the local authority.”

27. At the commencement of the Act, under
Section 23
of the Act, it has

been stated 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 institutions offering courses or
training in teacher 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.”

28. Thereafter, by Notification dated 31.03.2010, the 1st respondent

appointed the 2nd respondent NCTE as the academic authority to lay down the

minimum qualifications for a person to be eligible to be appointed as a teacher.

On 08.10.2010, the 1st respondent by virtue of powers conferred under
Section
of the Act, framed Right of Children to Free and Compulsory Education

Rules 2010. Pursuant to the provisions of the Act, the National Council
https://www.mhc.tn.gov.in/judis

72/134

WA. No. 313 of 2022 etc batch

Teacher Education (NCTE) issued a notification dated 23.08.2010 prescribing

the minimum qualifications for teachers from Classes I to V- ‘Secondary Grade

Teachers’ as well as for Classes VI to VIII- ‘BT Assistant’. Apart from

prescribing the minimum educational qualifications, the important eligibility

criteria added by way of the notification is – “Pass in Teacher Eligibility Test

(TET)”. This notification stated under paragraph 4 that teachers appointed

prior to the date of this notification need not acquire the minimum qualification

prescribed by the notifications. Under para 5 it has been stated that those

teachers appointed after date of this notification, but in whose case the process

of appointment was initiated prior to the date of this notification would also be

exempt from acquiring the minimum qualifications including Teacher Eligibility

Test (TET) as prescribed under Para 1 of the notification. The said Para 5 of

the notification dated 23.08.2010 came to be amended by the notification of

the NCTE dated 29.07.2011 whereby Para 5 was substituted by Para 5(a) with

the same provision while shifting the cut off date from 23.08.2010 to

29.07.2011, meaning thereby that where the Government, Local Authority or

School issued the advertisement to initiate the process of appointment prior to

the date of this notification i.e., 29.07.2011, such appointments may also be

made in accordance with the NCTE Regulations 2001 i.e., exempting them

from acquiring TET for appointment as the teacher. The NCTE Notification
https://www.mhc.tn.gov.in/judis

73/134

WA. No. 313 of 2022 etc batch

dated 11.02.2011 issued guidelines relating to conduct of TET. In Para 3 of the

said Guidelines (though subsequently amended in notification dated

29.07.2011 and the reason for same is not understood), the rationale for

including the TET as minimum qualification can be seen, and the same is

reproduced:

“3. The rationale for including the TET as a minimum qualification for a
person to be eligible to be appointed as a teacher is as under:

(i) It would bring national standards and benchmark of teacher quality in the
recruitment process;

(ii) It would induce teacher education institutions and students from these
institutions to further improve their performance standards;

(iii) It would send a positive signal to all stakeholders that the Government lays
special emphasis on teacher quality.”

29. Thereafter, the State Government framed the Tamil Nadu Right of

Children to Free and Compulsory Education Rules, 2011 vide GO. Ms. No.

173 dated 08.11.2011. The State Government issued GO.Ms.No. 181 dated

15.11.2011, appointing Teachers Recruitment Board (hereinafter called ‘TRB’)

as the nodal agency to conduct TET exams. The said GO makes it very clear in

categorical terms that passing of TET is mandatory for all Secondary Grade

Teachers and BT Assistants in Tamil Nadu.

MAINTAINABLITY OF THE WRIT PETITIONS IMPUGNING THE

SPECIAL RULES

30. At the outset, as an objection has been raised to the maintainability
https://www.mhc.tn.gov.in/judis

74/134

WA. No. 313 of 2022 etc batch

of the writ petition by an Association, it is only appropriate that we deal with

the said issue first. The issue whether a writ petition is maintainable at the

instance of an Association is now no longer res integra and the Hon'ble

Supreme Court has made authoritative pronouncements laying down broad

guidelines on the said issue in various judgements, most of which have been

relied upon by the counsel for the petitioner in the writ petition impugning the

Special Rules. The following judgments have been referred to by the Learned

counsel for the writ petitioner:

(i)Akhil Bharatiya Soshit Karamchari Sangh (Railway)

represented v. Union of India and Others [1981 (1) SCC 246]

(ii)West Bengal Head masters’ Association and ors. v. Union of

India (UOI) and Others [AIR 1983 Cal 448]

(
iii)Umesh Chand Vinod Kumar and others v. Krishi Utpadan

Mandi Samiti and others
[AIR 1984 All 46]

(
iv)D.C.Wadhwa and others v. State of Bihar and others
[AIR

1987 SC 579]

(
v)State Bank of Bikaner and Jaipur v. State Bank of Bikaner and

Jaipur Employees Association and others
[MANU/TN/0293/1991]

(vi)Confederation of Ex-servicemen Associations and Others v.

https://www.mhc.tn.gov.in/judis

75/134

WA. No. 313 of 2022 etc batch

Union of India (UOI) and Others [AIR 2006 SC 2945]

(vii)Andhra Pradesh Scheduled Tribes Employees Association v.

Aditya Pratap Bhanj Dev and Others [MANU/AP/0696/2001], and

(
viii)Tamilnadu Co-operative Subordinate Officers’ Association v.

Government of Tamil Nadu [MANU/TN/0876/2003
]

31. While it may not be necessary to extract all the above judgments, the

law
laid down in

State Bank of Bikaner
's case (cited above) by this court,

succinctly states as follows:

“8.Before the learned single Judge, several contentions were raised, one
with respect to the defence of party, the other with respect to the nature of
the relief and the third with respect to any right of the members of the writ
petitioner-Association to claim anything in the name of interest beyond
what had been stipulated under
Regulation 12
aforesaid. Learned Single
Judge has held :

"Keeping in trend with the pronouncements of the Supreme Court, it
is not possible to throw out the writ petition at the threshold itself on
the sole ground that it has been filed by an association of
employees, without going into the merits of the other contentions.
Even otherwise, the second petitioner is an individual employees
and he must be deemed to be directly interested in and affected by
the proposed action of the respondents. Besides, the first petitioner
is a registered trade union, and it is stated that it has got
membership of about 5,000, who are all employees of the second
respondent all over India. It cannot be stated that the rights of its
members would not be affected by the proposed action of the
respondent. The writ laid by the first petitioner, as representing a
large body of employees of the second respondent whose rights and
interest are likely to be affected, must be held to be competent.
Representative actions even in Writ jurisdiction cannot be thrown
out on the simple ground that the body which represents the cause
of its members on roll is not by itself affected. It would suffice the
purpose if the rights of its members are affected; and then, as
observed by the Supreme Court, collective proceedings are
permissible instead of driving each individual employee affected to
file an independent writ, which would result only in plurality of
https://www.mhc.tn.gov.in/judis

76/134

WA. No. 313 of 2022 etc batch

litigation on the common question. The Supreme Court was
prepared to countenance a non-recognised association maintaining
a writ petition. As observed earlier, the first petitioner is a
Registered trade union and it can legitimately, as representing its
member, employees of the second respondent, give vent to their
grievance and seek redress and relief, as representing their cause."

For us to say, if at all it is necessary, that, this is the most correct view is
not a mere formality. Learned single Judge has not come to the said
conclusion without examining the scope of the writ action by a body of
individual members, who together joined as an Association for such
action, which is in the interest of all the members. He has rightly
distinguished the cases of
N.A. District Pawn Brokers' Association v.
Secretary to Government of India
, 1975 I MLJ 290;
C. I. Kannan v. E.S.I.
Corporation MANU/TN/0205/1968
: (1968) I LLJ 770 Mad and M.
Ramaswami v. Government of Tamil Nadu (Writ Appeal No. 472 of 1976,
Judgment dated August 11, 1980) and relied upon the statement of law in
the case of F.C.K.U. (Registered).
Sindri v. Union of India
MANU/SC/0010/1980 : (1981) I LLJ 193 SC and A.B.S.K. Sangh (Rly.) v.
Union of India MANU/SC/0058/1980 : (1981) I LLJ 209 SC . The law on
the subject has been candidly stated by the Supreme Court in the last of
them that MANU/SC/0058/1980 : (1981) I LLJ 209 SC at 230" a technical
point of this kind has to be overruled for the reasons that a large body of
persons with a common grievance can always approach the Court on
principle, "our current procedural jurisdiction is not of individualistic
Anglo-Indian mould. It is broad-based and people-oriented and envisions
access to justice through 'class actions,' 'public interest litigation' and
'representative proceedings'. Indeed, little Indians in large numbers
seeking remedies in Court through collective proceedings; instead of being
driven to an expensive plurality of litigations, is an affirmation of
participative justice in our democracy. We have no hesitation in holding
that the narrow concept of 'cause of action', and 'person aggrieved' and
individual litigation is becoming obsolescent in some jurisdictions. It must
fairly be stated that the learned Attorney General has taken no objection to
a non-recognised association maintaining the writ petitions." In the instant
case, the Association is a recognised body as a trade union of the
employees.”

Thus, the principle that emerges from the above is that a body of individuals,

who have a common grievance and by reason of some disability, or incapacity,

are not in a position to approach the court individually, a writ petition is

certainly maintainable by an association.

https://www.mhc.tn.gov.in/judis

77/134

WA. No. 313 of 2022 etc batch

32. In the present case, the writ petition has been filed by an association

which espouses the cause of its members who are all persons who have cleared

the teacher eligibility test and have been unemployed while waiting for direct

recruitment to the post of BT Assistant for more than a decade now. It has also

been mentioned in the affidavit that it is one of the most prominent associations

whose members are qualified persons eligible to be appointed as teachers and

who possess a pass in TET. When the grievance of all the members of the

petitioner Association is common, it would be to stand on technicality to say

that each one of those members and each one of the members of the public

who have a common grievance should have approached the court individually,

and that the Association cannot represent its members in a case of this nature.

Such a hyper technical approach would amount to a negation of justice and this

Court is clearly not in favour of such an approach, especially in the light of the

pronouncements of the Hon'ble Supreme Court in this regard.

33. With respect to the other writ petition filed by an individual who is

an aspirant for direct recruitment to the post of Graduate Teacher/BT Assistant,

the objection raised by the State Government was that as the Rules stipulate a

quota of 50% for direct recruitment and the remaining for appointment by

promotion and transfer, the petitioner cannot have any grievance with respect
https://www.mhc.tn.gov.in/judis

78/134

WA. No. 313 of 2022 etc batch

to the manner in which appointment is made by promotion from the post of

Secondary Grade Teacher to the post of Graduate Teacher/BT Assistant. In this

regard, the counsel for the petitioner had stated that while the Rules specify a

quota of 50% for direct recruitment, it is a fact that in the state of Tamil Nadu,

as admitted by the state government, direct recruitment to the post of Graduate

Teachers/BT Assistants, after the coming into force of the
RTE Act
and NCTE

notifications, has not been made after 2013. The state government also has not

come out with a clear picture as to the number of vacancies available in the

post of Graduate teachers and the number of posts for direct recruitment as

against the number of posts/vacancies available for promotion. It is the case of

the petitioner that while the state government is wanting to promote more and

more secondary grade teachers as graduate teachers without insistence on TET,

while also filling up several vacancies by temporary appointments without

insistence on TET, the posts which are supposed to be earmarked for direct

recruitment to the post of graduate teachers are also being taken up, and by

reason of their being qualified and yet being unemployed for the past 10 years

and more, and inspite of which, when the impugned Rules stipulate that TET is

an essential criterion for appointment only for direct recruitment and not for

promotion or other modes of appointment, it will definitely affect their rights.

After giving our anxious consideration to the grievances expressed by the
https://www.mhc.tn.gov.in/judis

79/134

WA. No. 313 of 2022 etc batch

petitioners in the writ petitions, this court is convinced that the writ by an

association which is espousing the common grievances of all similarly placed

persons who are qualified and unemployed, as well as the writ petitioner in WP

No.3368 of 2023, is maintainable and the said writ petitions cannot be thrown

out at the threshold on the ground of non-maintainability. Besides, the right to

equality of opportunity in public employment under
Article 16
as a facet of

Article 14
, is a cherished fundamental right that furthers the solemn ideals of

equality and justice as envisaged in our Constitution. This Court while dealing

with a matter of public employment under
Article 16
, cannot reject the petitions

on hyper technical ground of non-maintainability.

VALIDITY OF THE IMPUGNED RULES

34. Coming to the merits of the case, the validity of the impugned Rules

has to be tested on the anvil of the legislative competence of the State

Legislature to issue them in the teeth of the parliamentary legislation, viz. the

RTE Act
2009 and the NCTE notifications prescribing the minimum eligibility

requirement for the post of Graduate Teacher, the NCTE being the designated

academic authority under the Act. It is seen that under Entry 66 of List I in

Schedule VII to the Constitution, the legislative head mentioned is –

‘Coordination and determination of standards in institution for higher
https://www.mhc.tn.gov.in/judis

80/134

WA. No. 313 of 2022 etc batch

education or research and scientific and technical institutions’. Also,

‘Education, including technical education, medical education and universities,

subject to the provisions of entries 63,64,65 and 66 of List I; vocational and

technical training of labour’, as a head of legislation is found in Entry 25 of

List III (Concurrent list) under Schedule VII to the Constitution of India. Entry

66 of List I deals with coordination and determination of standards of higher

education. Teacher education has been legislated upon by the Union

government by way of parliamentary legislation by virtue of the
RTE Act
2009.

Under the Act
, the NCTE which has been designated as the academic authority,

has issued notifications prescribing the minimum eligibility criteria for the post

of Graduate Teacher/BT Assistant and the same is binding on all state

governments unless the law to the contrary has been made by the state

government in accordance with
Article 254
of the Constitution. Here again, the

legislative head as stated in Entry 25 of List III, has been made subject to Entry

66, List I and hence, the area available for the State to legislate in the arena of

teacher education is diminished to the point of non-availability. In the present

case, it is seen that the state of Tamil Nadu is not governed by any specific

legislation or statute dealing with teacher education and therefore, the further

question of the same being either contrary or repugnant to the provisions of the

RTE Act
and the consequential or pursuant subordinate legislation does not
https://www.mhc.tn.gov.in/judis

81/134

WA. No. 313 of 2022 etc batch

arise. In other words, the parliamentary legislation as well as the subordinate

legislation made pursuant thereto are binding on the state government in the

absence of a plenary legislation made by the state legislature pursuant to its

power under the Concurrent List, which again is subject to the parliamentary

legislation made under Entry 66, List I. It is in this background that one will

have to test the validity of the impugned Rules. A perusal of the NCTE

notification made pursuant to the
RTE Act
would make it clear that the NCTE

has prescribed eligibility criteria in terms of educational qualification as also a

pass in the teacher eligibility test for appointment to the post of graduate

teacher. As pointed out rightly by the counsel for the petitioners in the writ

petitions challenging the vires of the impugned Rules, the mode of appointment

or the channel of appointment whether by direct recruitment or promotion or

transfer has not been specified in any of the prescribed qualifications made by

the NCTE. What has been prescribed by the NCTE is the eligibility criteria for

appointment by whatever means/mode to the posts of Graduate Teacher/BT

Assistant. On the contrary, it is seen that the impugned Rules while apparently

adopting the eligibility criteria as mentioned by the NCTE, has now attempted

to restrict the eligibility criteria of passing the teacher eligibility test only to

direct recruitment. The very same impugned Rules also specify that 50% of the

appointments to the postgraduate teacher are to be made by direct recruitment,
https://www.mhc.tn.gov.in/judis

82/134

WA. No. 313 of 2022 etc batch

while 48% is to be made by promotion and the remaining 2% by transfer from

other posts as specified in the Rules made therein. When the Academic

Authority designated under the parliamentary legislation has not made

distinction in the eligibility criteria on the basis of the channel or mode of

appointment, it is not legally permissible for the state government to prescribe

or make modifications which are contrary to what has been prescribed by

subordinate legislation made pursuant to the parliamentary legislation which

holds the field.

35.
In this context, the judgment of the Hon'ble Supreme Court in
Union

of India (UOI) and Ors. v. Shah Goverdhan L. Kabra Teachers College

[(23.10.2002 - SC) : MANU/SC/0882/2002], where the issue was one related

to legislative competence of the State to alter or dilute the parliamentary

legislative provisions in teacher education, is of relevance and is extracted

hereunder for easy reference:

“6. In view of the rival submissions at the bar, the question that arises for
consideration is whether the impugned legislation can be held to be a law
dealing with coordinated development of education system within Entry 66
of the List I of the Seventh Schedule or it is a law dealing with the service
conditions of an employee under the State Government. The power to
legislate is engrafted under
Article 246
of the Constitution and the various
entries for the three lists of the Seventh Schedule are the "fields of
legislation". The different entries being legislative heads are all of
enabling character and are designed to define and delimit the respective
areas of legislative competence of the Union and the State legislature.
They neither impose any restrictions on the legislative powers nor
prescribe any duty for exercise of the legislative power in any particular
manner. It has been a cardinal principle of construction that the language
https://www.mhc.tn.gov.in/judis of the entries should be given the widest scope of which their meaning is

83/134

WA. No. 313 of 2022 etc batch

fairly capable and while interpreting an entry of any List it would not be
reasonable to import any limitation therein. The rule of widest
construction, however, would not enable the legislature to make a law
relating to a matter which has no rational connection with the subject
matter of an entry. When the vires of enactment is challenged, the court
primarily presumes the constitutionality of the statute by putting the most
liberal construction upon the relevant legislative entry so that it may have
the widest amplitude and the substance of the legislation will have to be
looked into. The Court sometimes is duty bound to guard against
extending the meaning of the words beyond their reasonable connotation
in anxiety to preserve the power of the legislature.

7. It is further a well-settled principle that entries in the different lists
should be read together without giving a narrow meaning to any of them.

Power of the Parliament as well as the State legislature are expressed in
precise and definite terms. While an entry is to be given its widest meaning
but it cannot be so interpreted as to over-ride another entry or make
another entry meaningless and in case of an apparent conflict between
different entries, it is the duty of the court to reconcile them. When it
appears to the Court that there is apparent overlapping between the two
entries the doctrine of "pith and substance" has to be applied to find out
the true nature of a legislation and the entry with which it would fall. In
case of conflict between entries in List I and List II, the same has to be
decided by application of the principle of "pith and substance". The
doctrine of "pith and substance" means that if an enactment substantially
falls within the powers expressly conferred by the Constitution upon the
legislature which enacted it, it cannot be held to be invalid, merely because
it incidentally encroaches on matters assigned to another legislature.
When a law is impugned as being ultra-vires of the legislative competence,
what is required to be ascertained is the true character of the legislation.
If on such an examination it is found that the legislation is in substance
one on a matter assigned to the legislature then it must be held to be valid
in its entirety even though it might incidentally trench on matters which are
beyond its competence. In order to examine the true character of the
enactment, the entire Act, its object and scope and effect, is required to be
gone into. The question of invasion into the territory of another legislation
is to be determined not by degree but by substance. The doctrine of "pith
and substance' has to be applied not only in cases of conflict between the
powers of two legislatures but in any case where the question arises
whether a legislation is covered by particular legislative power in exercise
of which it is purported to be made.

8. Bearing in mind the aforesaid principles of rule of construction if the
provisions of the impugned statute, namely, the
National Council of
Teacher Education Act, 1993
are examined and more particularly
Section
17(4)
thereof which we have already extracted, the conclusion is
https://www.mhc.tn.gov.in/judis irresistible that the statute is one squarely dealing with coordination and

84/134

WA. No. 313 of 2022 etc batch

determination of standards in institutions for higher education within the
meaning of Entry 66 of List I of the Seventh Schedule. Both Entries 65 and
66 of List I empower the Central Legislature to secure the standards of
research and the standards of higher education. The object behind being
that the same standards are not lowered at the hands of the particular
State or States to the detriment of the national progress and the power of
the State legislature must be so exercised as not to directly encroach upon
power of Union under Entry 66. The power to coordinate does not mean
merely the power to evaluate but it means to harmonics or secure
relationship for concerted action. A legislation made for the purpose of
coordination of standards of higher education is essentially a legislation
by the Central legislature in exercise of its competence under Entry 66 of
List I of the Seventh Schedule and Sub-section (4) of
Section 17
merely
provides the consequences if an institution offers a course or training in
teacher education in contravention of the Act though the ultimate
consequences under Sub-section (4) of
Section 17
may be that unqualified
teacher will not be entitled to get an employment under the State or
Central Government or in a university or in a college. But by no stretch of
imagination the said provision can be construed to mean a law dealing
with employment as has been held by the High Court in the impugned
judgment.

9. In our considered opinion, the High Court committed gross error in
construing the provisions of Sub-section (4) of
Section 17
of the Act to
mean that it is a legislation dealing with recruitment and conditions of
services of persons in the State service within the meaning of Proviso to

Article 309
of the Constitution. The High Court committed the aforesaid
error by examining the provisions of Sub-section (4) on its plain terms
without trying to examine the true character of the enactment which has to
be done by examining the enactment as a whole, its object and scope and
effect of the provisions. Even, the High Court does not appear to have
applied the doctrine of "pith and substance" and, thus, committed the
error in interpreting the provisions of Sub-section (4) of
Section 17
to
mean to be a provision dealing with conditions of service of an employee
under the State Government.

10. In the aforesaid premises, the conclusion of the High Court that

Section 17(4)
is ultra-vires being beyond the competence of the Union
legislature cannot be sustained and the said conclusion is accordingly set
aside. On examining the statute as a whole and on scrutiny of the object
and scope of the statute, we have no manner of doubt that even Sub-
section (4) of
Section 17
is very much a law dealing with the coordination
and determination of standards in institution for higher education coming
within Entry 66 of the List III of the Seventh Schedule and, thus, the Union
legislature did have the competence for enacting the said provision.
https://www.mhc.tn.gov.in/judis

85/134

WA. No. 313 of 2022 etc batch

11. We are also of the further opinion that the de-recognition of the B.Ed
(Vacation Course) cannot be nullified on the ground of failure to comply
with the principle of natural justice. In the judgment under challenge, the
High Court has held also that when the institution is imparting the B.Ed.
(Vacation Course) then National Council for Teacher Education could not
have refused to recognise the said course. We are unable to accept this
reasoning inasmuch as the NCTE is an expert body created under the
provisions of the National Council for
Teacher Education Act, 1993
and
the Parliament has imposed upon such expert body the duty to maintain
the standards of education, particularly, in relation to the teachers
education. Education is the backbone of every democracy and any
deterioration in the Standard of teaching in the B.Ed course would
ultimately produce sub-standard prospective teachers who would be
teaching in schools and colleges throughout the country and on whose
efficiency the future of the country depends. Inasmuch as the teacher
himself has received a sub-standard education it is difficult to expect from
him a higher standard of teaching to the students of the schools or other
institutions. It is from this perspective, the conclusion of an expert body
should not be lightly tinkered with by court of law without giving due
weightage to the conclusion arrived at by such expert body. From this
standpoint, we are of the considered opinion that the High Court
committed error in holding that there was no reasonable justification for
not recognising the B.Ed (Vacation course) which was being imparted by
the institution of Shah Goverdhan Lal Kabra Teachers College. In the
aforesaid premises, we set aside the impugned Judgment of High Court
and allow this appeal.”

36. Also, in
State of Maharashtra v. Sant Dyaneshwar Shikshan

Shastra Mahavidyalaya and Ors.
[(31.03.2006 - SC):

MANU/SC/1756/2006], it has been stated by the Hon'ble Supreme Court as

follows:

“20. The learned Counsel for various colleges supported Mr. Raju
Ramachandran on interpretation and application of the provisions of the
Act and final decision of the High Court. They, however, had taken other
contentions as well. According to them, the State has no locus standi to
challenge the decision of NCTE. The State cannot be said to be "person
aggrieved" or "aggrieved party" so as to challenge the decision of NCTE.
If the decision is against the college, it is only the college which has
'standing' to impugn
the said decision
. The High Court, therefore, in the
https://www.mhc.tn.gov.in/judis
submission of the learned Counsel for colleges, ought to have dismissed

86/134

WA. No. 313 of 2022 etc batch

the petition filed by the State as not maintainable without entering into the
merits of the matter. It was also submitted that under the scheme of the
Constitution, particularly
Articles 245
, 246
, 248
and
read with
Schedule VII thereof, only Parliament has power of co-ordination and
determination of standards in institutions for higher education or
research, scientific and technical institutions. State Legislatures have no
authority to enact any law in the field covered by Entry 66 of List I of
Schedule VII. Obviously, therefore, State Government has no authority to
take a policy decision in respect of the subjects covered by Entry 66 of List
I of Schedule VII for which a specific enactment has been made by
Parliament and under the said Act authority has been granted to NCTE to
take an action. As to Regulations and Guidelines, it was submitted that
under the Act power has been conferred on NCTE. It is, therefore, only
NCTE, which can consider the question and take appropriate decision
under the Act and it is not open to NCTE to make Regulations or frame
Guidelines empowering the State Government to undertake such exercise.
According to the counsel, therefore, even if Regulations are framed or
Guidelines made, they are not in consonance with the Act and there is
abdication of power by NCTE in favour of State Government which is hit
by the doctrine of impermissible and excessive delegation. Regulations
permitting such excessive / impermissible delegation must be declared
inconsistent with the parent Act as also ultra vires and unconstitutional.
The counsel also submitted that so-called policy decision of the State
Government is arbitrary and unreasonable and would be hit by Clause (g)
of
Article 19(1)
of the Constitution which allows all citizens to have the
right to practise any profession, or to carry on any occupation, trade or
business, otherwise legal and lawful.
Article 19(6)
cannot be invoked by
the State as total prohibition to open B.Ed. college can never be said to be
in the interest of general public and would not fall within "reasonable
restriction" permissible under the said provision. It is also violative of

Article 21A
as inserted by the
Constitution (Eighty-sixth Amendment) Act,
. Over and above constitutional inhibitions, the order dated 28th
December, 2004 is arbitrary and unreasonable inasmuch as
considerations which weighed with the State Government relating to
employment of B.Ed. teachers were totally irrelevant and extraneous.
Taking education and getting employment are two different things. The
colleges are not claiming any grant or financial aid from the State, nor do
they give any assurance or guarantee to students admitted to B.Ed.
colleges that the State will give them employment. It is, therefore, not
open to the State Government to refuse to grant NOC because the State is
not able to give employment to teachers after they get B.Ed. degree. There
are several Arts, Commerce and Science colleges in the State in which
students take education and get degrees of B.A., B.Com. or B.Sc. It is not
even the case of the State that all those students got employment at one or
the other place. Thus, the so-called policy decision of the State
https://www.mhc.tn.gov.in/judis Government not to grant NOC to B.Ed. colleges is totally irrational. It

87/134

WA. No. 313 of 2022 etc batch

was also submitted by the respondents that they had made huge
investments and if at this stage they will be refused permission,
irreparable injury and loss would be caused to them. Finally, it was
submitted that since the decision of NCTE is legal, lawful and in
consonance with the provisions of the Act as also consistent with the law

laid down by
this Court in several judgments, the order passed by the
High Court deserves to be upheld by allowing the institutions to open
B.Ed. colleges from the year 2005-06 as has been done by NCTE. If this
Court considers it appropriate, specific direction may be issued to the
respondents to conduct extra classes/lectures and to hold
supplementary/additional examination. Once the action of NCTE is found
to be lawful and the decision of the State Government bad, no prejudice
should be caused to the institutions.

21. Before we deal with the contentions of the parties, it would be
appropriate if we refer to the relevant provisions of law. Part XI of the
Constitution deals with relations between Union and States. Chapter I
thereof relates to legislative relations and distribution of legislative
powers.
Article 245
enables Parliament to make laws for the whole or any
part of territory of India. Similarly, a Legislature of a State has power to
make laws for the whole or any part of the State.
Article 246
provides for
distribution of legislative power between Parliament and Legislatures of
States and reads thus:

246. Subject-matter of laws by Parliament and by the Legislatures
of States-(1) Notwithstanding anything in clauses (2) and (3),
Parliament has exclusive power to make laws with respect to any
of the matters enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the "Union List").

(2) Notwithstanding anything in clause (3), Parliament and,
subject to clause (1), the Legislature of any State also, have power
to make laws with respect to any of the matters enumerated in List
III in the Seventh Schedule (in this Constitution referred to as the
"Concurrent List").

(3) Subject to clauses (1) and (2), the Legislature of any State has
exclusive power to make laws for such State or any part thereof
with respect to any of the mattes enumerated in List II in the
Seventh Schedule (in this Constitution referred to as the 'State
List').

(4) Parliament has power to make laws with respect to any matter
for any part of the territory of India not included [in a State]
notwithstanding that such matter is a matter enumerated in the
State List.

Whereas
Article 248
provides for residuary power of Legislature,

Article 254
covers cases of inconsistency between laws made by
Parliament and by Legislatures of States.

https://www.mhc.tn.gov.in/judis

88/134

WA. No. 313 of 2022 etc batch

22. Schedule VII to the Constitution comprises of three Lists: (i) Union
List, (ii) State List and (iii) Concurrent List. While exclusive power to
enact laws lies with Parliament under List I, the power to enact laws
under List II is with the State Legislatures. In respect of subjects falling
under List III, it is open to Parliament as well as State Legislatures to
enact laws subject to the provisions of
Articles 254.

22.1 Entries 63 to 66 of List I of Schedule VII relate to higher education.
Entry 66 which is relevant reads thus:

66. Co-ordination with determination of standards in institutions for
higher education or research and scientific and technical intuitions

22.2 Entry 11 of List II inter alia included university education. It was
omitted by the Constitution (42nd Amendment) Act, 1976 and became part
of Entry 25 of List III (Concurrent List). Entry 25, as originally stood
read as under:

25. The vocational and technical training of labour.
After the amendment of 1976, the Entry as it stands now reads thus:

25. Education, including technical education medical education and
universities, subject to the provisions of entries 63, 64, 65 and 66 of List
I; vocational and technical training of labour.

23. The National Council for Teacher Training Act, 1993 has been
enacted by Parliament and deals with teacher's education. It came into
force with effect from July 1, 1995. The Preamble of the Act is relevant
and reads thus:

An Act
to provide for the establishment of a National Council for
Teacher Education with a view to achieving planned and co-
ordinated development of the teacher education system throughout
the country, the regulation and proper maintenance of norms and
standards in the teacher education system and for matters
connected therewith.

24.
Section 2
is definition clause wherein various terms have been
defined. "Council" is defined as the National Council for Teacher's
Education established under Sub-section (1) of
Section 3
of the Act.

"Institution" has been defined as "an institution which offers courses for
training in teacher's education". "Teacher education" is defined thus:

Teacher education means programmes of education, research or training
of persons for equipping them to teach at pre-primary, primary,
secondary and senior secondary stages in schools, and includes non-
formal education, part-time education, adult education and
correspondence education.”

https://www.mhc.tn.gov.in/judis

89/134

WA. No. 313 of 2022 etc batch

37.
In
Maa Vaishno Devi Mahila Mahavidyalaya v. State of U.P. and

Ors.
[(13.12.2012 - SC) : MANU/SC/1102/2012], it has been held by the

Hon'ble Supreme Court that

“43.Now, we may examine some of the judgments of this Court which
have dealt with these aspects. In the case of State of Tamil Nadu and Anr.

v. Adhiyaman Educational and Research Institute and Ors.
MANU/SC/0709/1995 : (1995) 4 SCC 104, the Supreme Court while
discussing various aspects in regard to constitutional validity of
Tamil
Nadu Private College Regulation Act, 1976
and the provisions of the All
India Council for Technical Education Act clearly spelled out the
preferential role of the Council as under:

22. The aforesaid provisions of the Act including its preamble
make it abundantly clear that the Council has been established
under the Act for coordinated and integrated development of the
technical education system at all levels throughout the country and
is enjoined to promote qualitative improvement of such education
in relation to planned quantitative growth. The Council is also
required to regulate and ensure proper maintenance of norms and
standards in the technical education system. The Council is
further to evolve suitable performance appraisal system
incorporating such norms and mechanisms in enforcing their
accountability. It is also required to provide guidelines for
admission of students and has power to withhold or discontinue
grants and to de-recognise the institutions where norms and
standards
laid down by
it and directions given by it from time to
time are not followed. This duty and responsibility cast on the
Council implies that the norms and standards to be set should be
such as would prevent a lopsided or an isolated development of
technical education in the country.

...It is necessary to bear this aspect of the norms and standards to
be prescribed in mind, for a major debate before us centered
around the right of the States to prescribe standards higher than
the one
laid down by
the Council. What is further necessary to
remember is that the Council has on it representatives not only of
the States but also of the State Universities. They have, therefore,
a say in the matter of laying down the norms and standards which
may be prescribed by the Council for such education from time to
time. The Council has further the Regional Committees, at
present, at least, in four major geographical zones and the
constitution and functions of the Committees are to be prescribed
https://www.mhc.tn.gov.in/judis by the Regulations to be made by the Council. Since the Council

90/134

WA. No. 313 of 2022 etc batch

has the representation of the States and the provisional bodies on
it which have also representation from different States and
regions, they have a say in the constitution and functions of these
Committees as well....

44. Further, the Court, while noticing the inconsistency between the
Central and State statutes or the State authorities acting contrary to the
Central statute, held as under:

41. (vi) However, when the situations/seats are available and the
State authorities deny an applicant the same on the ground that
the applicant is not qualified according to its standards or
qualifications, as the case may be, although the applicant satisfies
the standards or qualifications
laid down by
the Central law, they
act unconstitutionally.
So also when the State authorities de-

recognise or disaffiliate an institution for not satisfying the
standards or requirement
laid down by
them, although it satisfied
the norms and requirements
laid down by
the Central authority,
the State authorities act illegally.

XXX

43. As a result, as has been pointed out earlier, the provisions of
the Central statute on the one hand and of the State statutes on the
other, being inconsistent and, therefore, repugnant with each
other, the Central statute will prevail and the de-recognition by the
State Government or the disaffiliation by the State University on
grounds which are inconsistent with those enumerated in the
Central statute will be inoperative.

45. Still, in another case of
Jaya Gokul Educational Trust v.
Commissioner and Secretary to Government Higher Education Deptt.,
Thiruvananthapuram, Kerala State and Anr. MANU/SC/0269/2000
:

(2000) 5 SCC 231, the Court reiterating the above principle, held as
under:

22. As held in the
Tamil Nadu
case AIR 1995 SCW 2179, the
Central Act of 1987 and; in particular,
Section 10(K)
occupied the
field relating the `grant of approvals' for establishing technical
institutions and the provisions of the Central Act alone were to be
complied with. So far as the provisions of the
Mahatma Gandhi
University Act
or its statutes were concerned and in particular
statute 9(7), they merely required the University to obtain the
`views' of the State Government. That could not be characterised
as requiring the "approval" of the State Government. If, needed,
the University statute could be so interpreted, such a provision
https://www.mhc.tn.gov.in/judis requiring approval of the State Government would be repugnant to

91/134

WA. No. 313 of 2022 etc batch

the provisions of
Section 10(K)
of the AICTE Act, 1987 and would
again be void.

As pointed out in the
Tamil Nadu
case there were
enough provisions in the Central Act for consultation by the
Council of the AICTE with various agencies, including the State
Governments and the Universities concerned. The State Level
Committee and the Central Regional Committees contained
various experts and State representatives. In case of difference of
opinion as between the various consultees, the AICTE would have
to go by the views of the Central Task Force. These were sufficient
safeguards for ascertaining the views of the State Governments
and the Universities.

No doubt the question of affiliation was a
different matter and was not covered by the Central Act but in the

Tamil Nadu
case, it was held that the University could not impose
any conditions inconsistent with the
AICTE Act
or its Regulation
or the conditions imposed by the AICTE. Therefore, the procedure
for obtaining the affiliation and any conditions which could be
imposed by the University, could not be inconsistent with the
provisions of the Central Act. The University could not, therefore,
in any event have sought for `approval' of the State Government.

46. This view of the Supreme Court was reiterated with approval by a
larger Bench of the Supreme Court in the case of
State of Maharashtra v.
Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and Ors.
MANU/SC/1756/2006
: (2006) 9 SCC 1. While discussing in detail the
various legal issues in relation to grant of affiliation/ recognition to the
institution and permission to start a new college, the Court held as under:

53. The Court then considered the argument put forward on behalf
of the State that while it would be open for the Council to lay down
minimum standards and requirements, it did not preclude the State
from prescribing higher standards and requirements.

54. Negativing the contention, the Court quoted with approval the
following observations of B.N. Rau, J. in
G.P. Stewart v. Brojendra
Kishore Roy Chaudhury (MANU/WB/0202/1939
: AIR 1939 Cal.
628 : 43 CWN 913):

It is sometimes said that two laws cannot be said to be properly
repugnant unless there is direct conflict between them, as when one
says `do' and the other 'don't', there is no true repugnancy,
according to this view, if it is possible to obey both the laws. For
reasons which we shall set forth presently, we think that this is too
narrow a test; there may well be cases of repugnancy where both
laws say `don't' but in different ways. For example, one law may
say `no person shall sell liquor by retail, that is, in quantities of
https://www.mhc.tn.gov.in/judis less than five gallons at a time' and another law may say, 'no

92/134

WA. No. 313 of 2022 etc batch

person shall sell liquor by retail, that is, in quantities of less than
ten gallons at a time'. Here, it is obviously possible to obey both
laws, by obeying the more stringent of the two, namely, the second
one; yet it is equally obvious that the two laws are repugnant, for
to the extent to which a citizen is compelled to obey one of them,
the other, though not actually disobeyed, is nullified.
XXX

64. Even otherwise, in our opinion, the High Court was fully
justified in negativing the argument of the State Government that
permission could be refused by the State Government on "policy
consideration". As already observed earlier, policy consideration
was negatived by this Court in Thirumuruga Kirupananda Variyar
Thavathiru Sundara Swamigal Medical Educational and
Charitable Trust v. State of Tamil Nadu MANU/SC/0601/1996 :

1996 DGLS (soft) 327 : 1996 (3) SCC 15 : JT 1996 (2) SC. 692 as
also in Jaya Gokul Educational Trust.

XXX

74. It is thus clear that the Central Government has considered the
subject of secondary education and higher education at the
national level.
The Act
of 1993 also requires Parliament to
consider teacher-education system "throughout the country".

NCTE, therefore, in our opinion, is expected to deal with
applications for establishing new Bed colleges or allowing increase
in intake capacity, keeping in view the 1993 Act and planned and
coordinated development of teacher-education system in the
country. It is neither open to the State Government nor to a
university to consider the local conditions or apply "State policy"

to refuse such permission. In fact, as held by this Court in cases
referred to hereinabove, the State Government has no power to
reject the prayer of an institution or to overrule the decision of
NCTE. The action of the State Government, therefore, was
contrary to law and has rightly been set aside by the High Court.

47. The above enunciated principles clearly show that the Council is the
authority constituted under the Central Act with the responsibility of
maintaining education of standards and judging upon the infra-structure
and facilities available for imparting such professional education. Its
opinion is of utmost importance and shall take precedence over the views
of the State as well as that of the University. The concerned Department
of the State and the affiliating University have a role to play but it is
limited in its application. They cannot lay down any guideline or policy
which would be in conflict with the Central statute or the standards laid
down by the Central body. State can frame its policy for admission to
such professional courses but such policy again has to be in conformity
with the directives issued by the Central body. In the present cases, there
https://www.mhc.tn.gov.in/judis is not much conflict on this issue, but it needs to be clarified that while the

93/134

WA. No. 313 of 2022 etc batch

State grants its approval, and University its affiliation, for increased
intake of seats or commencement of a new course/college, its directions
should not offend and be repugnant to what has been laid down in the
conditions for approval granted by the Central authority or Council.
What is most important is that all these authorities have to work ad idem
as they all have a common object to achieve i.e. of imparting of education
properly and ensuring maintenance of proper standards of education,
examination and infrastructure for betterment of educational system.
Only if all these authorities work in a coordinated manner and with
cooperation, will they be able to achieve the very object for which all
these entities exist.

48.
The NCTE Act
has been enacted by the Parliament with reference to
Entry 66 of List I of Schedule VII of the Constitution. There is no such
specific power vested in the State Legislature under List II of the Seventh
Schedule. Entry 25 of List III of the Seventh Schedule is the other Entry
that provides the field for legislation both to the State and the Centre, in
relation to education, including technical education, medical education
and Universities; vocational and technical training and labour. The field
is primarily covered by the Union List and thus, the State can exercise
any legislative power under Entry 25, List III but such law cannot be
repugnant to the Central law. Wherever the State law is irreconcilable
with the Central law, the State Law must give way in favour of the Central
law to the extent of repugnancy. This will show the supremacy of the
Central law in relation to professional education, including the teacher
training programmes. In the case of Medical Council of India v. State of
Karnataka MANU/SC/0424/1998 : (1998) 6 SCC 131, the Court had the
occasion to discuss this conflict as follows:

27. The State Acts, namely, the Karnataka Universities Act and
the Karnataka Capitation Fee Act must give way to the Central
Act, namely, the
Indian Medical Council Act, 1956
. The
Karnataka Capitation Fee Act was enacted for the sole purpose of
Regulation in collection of capitation fee by colleges and for that,
the State Government is empowered to fix the maximum number
of students that can be admitted but that number cannot be over
and above that fixed by the Medical Council as per the
Regulations.
Chapter IX of the Karnataka Universities Act
, which
contains provision for affiliation of colleges and recognition of
institutions, applies to all types of colleges and not necessarily to
professional colleges like medical colleges. Sub-section (10) of
Section 53, falling in Chapter IX of this Act, provides for
maximum number of students to be admitted to courses for
studies in a college and that number shall not exceed the intake
fixed by the university or the Government. But this provision has
again to be read subject to the intake fixed by the Medical Council
https://www.mhc.tn.gov.in/judis under its Regulations. It is the Medical Council which is

94/134

WA. No. 313 of 2022 etc batch

primarily responsible for fixing standards of medical education
and overseeing that these standards are maintained. It is the
Medical Council which is the principal body to lay down
conditions for recognition of medical colleges which would
include the fixing of intake for admission to a medical college. We
have already seen in the beginning of this judgment various
provisions of the
Medical Council Act
. It is, therefore, the Medical
Council which in effect grants recognition and also withdraws the
same. Regulations under
Section 33
of the Medical Council Act,
which were made in 1977, prescribe the accommodation in the
college and its associated teaching hospitals and teaching and
technical staff and equipment in various departments in the
college and in the hospitals. These Regulations are in
considerable detail. Teacher-student ratio prescribed is 1 to 10,
exclusive of the Professor or Head of the Department.

Regulations further prescribe, apart from other things, that the
number of teaching beds in the attached hospitals will have to be
in the ratio of 7 beds per student admitted. Regulations of the
Medical Council, which were approved by the Central
Government in 1971, provide for the qualification requirements
for appointments of persons to the posts of teachers and visiting
physicians/surgeons of medical colleges and attached hospitals.
XXX

29. A medical student requires gruelling study and that can be
done only if proper facilities are available in a medical college
and the hospital attached to it has to be well equipped and the
teaching faculty and doctors have to be competent enough that
when a medical student comes out, he is perfect in the science of
treatment of human beings and is not found wanting in any way.
The country does not want half-baked medical professionals
coming out of medical colleges when they did not have full
facilities of teaching and were not exposed to the patients and
their ailments during the course of their study. The Medical
Council, in all fairness, does not wish to invalidate the
admissions made in excess of that fixed by it and does not wish to
take any action of withdrawing recognition of the medical
colleges violating the Regulation. Henceforth, however, these
medical colleges must restrict the number of admissions fixed by
the Medical Council. After the insertion of Sections 10A, 10B and
10C in the
Medical Council Act
, the Medical Council has framed
Regulations with the previous approval of the Central
Government which were published in the Gazette of India dated
29-9-1993 (though the notification is dated 20-9-1993). Any
medical college or institution which wishes to increase the
admission capacity in MBBS/higher courses (including
https://www.mhc.tn.gov.in/judis diploma/degree/higher specialities), has to apply to the Central

95/134

WA. No. 313 of 2022 etc batch

Government for permission along with the permission of the State
Government and that of the university with which it is affiliated
and in conformity with the Regulations framed by the Medical
Council. Only the medical college or institution which is
recognised by the Medical Council can so apply.

49. A Constitution Bench of this Court in the case of
Dr. Preeti Srivastava
and Anr. v. State of Madhya Pradesh and Ors. MANU/SC/1021/1999
:

(1999) 7 SCC 120, while dealing with the provisions of the Medial
Council of India Act and referring to Entry 25 of List III and Entry 66 of
List I with reference to the
Articles 245
, 246
, 254
and
15(4)
of the
Constitution, spelled out the supremacy of the Council and the provisions
of the Central Act, particularly in relation to the control and Regulation
of higher education. It also discussed providing of the eligibility
conditions and qualifications and determining the standards to be
maintained by the Institutions. The Court in paragraph 36 of the
judgment held as under:

36. It would not be correct to say that the norms for admission
have no connection with the standard of education, or that the
rules for admission are covered only by Entry 25 of List III.

Norms of admission can have a direct impact on the standards of
education. of course, there can be rules for admission which are
consistent with or do not affect adversely the standards of
education prescribed by the Union in exercise of powers under
Entry 66 of List I. For example, a State may, for admission to the
postgraduate medical courses, lay down qualifications in addition
to those prescribed under Entry 66 of List I. This would be
consistent with promoting higher standards for admission to the
higher educational courses. But any lowering of the norms laid
down can and does have an adverse effect on the standards of
education in the institutes of higher education. Standards of
education in an institution or college depend on various factors.
Some of these are:

(1) the calibre of the teaching staff;

(2) a proper syllabus designed to achieve a high level of
education in the given span of time;

(3) the student-teacher ratio;

(4) the ratio between the students and the hospital beds available
to each student;

(5) the calibre of the students admitted to the institution;
(6) equipment and laboratory facilities, or hospital facilities for
training in the case of medical colleges;

(7) adequate accommodation for the college and the attached
hospital; and
(8) the standard of examinations held including the manner in
https://www.mhc.tn.gov.in/judis which the papers are set and examined and the clinical

96/134

WA. No. 313 of 2022 etc batch

performance is judged.”

38. As such, the principle that the field of teacher education is the

exclusive preserve of Parliamentary legislation, has been stressed upon in all

cases where the NCTE act has been considered, and it has been held that all

issues pertaining to teacher education will fall within Entry 66 of List I and

hence, within the legislative competence of Parliament. In the present case, the

issue relates to school education where the NCTE has been designated as the

authority to prescribe the essential eligibility criteria for appointment to the

post of graduate teachers. In this context, the judgement of the Hon'ble

Supreme Court cited supra is relevant to point out that the essential eligibility

criteria prescribed by the designated authority under the
RTE Act
cannot be

treated as one that deals with the recruitment and conditions of service of

persons in a State under
Article 309
of the Constitution, but is one which is

made in exercise of the powers conferred upon the NCTE by a parliamentary

legislation in the subject of teacher education which falls within Entry 66 of

List I. The above judgement thus squarely covers the issue and once, it is

established that the subject matter is one that falls within the legislative head of

‘education’ as well as ‘higher education’, and when Parliament has made a law

governing the said field, it is not open to the State government in exercise of its

powers under
Article 309
to issue Rules that alter, modify, or dilute the
https://www.mhc.tn.gov.in/judis

97/134

WA. No. 313 of 2022 etc batch

standards or in any manner tamper with the same except in accordance with

the provisions relating to the constitutional provisions governing the

overcoming of repugnancy between Parliamentary and State legislation, which

again is open only in cases where the legislative head falls under the

Concurrent List. In the present case, as the subject – ‘Teacher Education’ falls

within the domain of parliamentary legislation, seeking to set uniformly high

standards for all teachers throughout the country, under the
RTE Act, 2009
, the

further question of the State coming up with a repugnant law will not arise.

39. Further, we find force in the submissions of the counsel for the writ

petitioner that the impugned Rules are a piece of colourable legislation to the

extent that they seek to tweak the mandate of the NCTE Regulations that

applies the minimum eligibility criteria to all appointments to BT Assistants,

irrespective of the mode of appointment. The doctrine of Colourable Legislation

came to be examined by a Constitution Bench of this Court in
K.C. Gajapati

Narayan Deo and Ors. v. State of Orissa
[(1954) 1 SCR 1], in which, it was

held that the doctrine of colourable legislation does not involve any question of

'bona fides' or 'mala fides' on the part of the Legislature. The whole doctrine

revolves around the question of competence of a particular Legislature to enact

a particular law. If the Legislature is competent to pass a particular law, the

motives, which impelled it to act, are really irrelevant. On the other hand, if the
https://www.mhc.tn.gov.in/judis

98/134

WA. No. 313 of 2022 etc batch

Legislature lacks competency, the question of motive does not arise at all.

Whether a statute is constitutional or not, is thus always a question of power

(Vide Cooley's Constitutional Limitations, Vol. 1, p. 379). The crucial question

to be asked is whether there has been a transgression of legislative authority as

conferred by the Constitution which is the source of all powers as also the

separation of powers. A legislative transgression may be patent, manifest or

direct or may also be disguised, covert and indirect. It is to this latter class of

cases that the expression 'colourable legislation' has been applied in certain

judicial pronouncements. The expression 'colourable legislation' means that

although apparently a Legislature in passing a statute which purports to act

within the limits of its powers, yet, in substance and in reality, it transgresses

those powers, the transgression being veiled by what appears, on proper

examination, to be a mere pretence or disguise. The discerning test is to find

out the substance of the act and not merely the form or outward appearance. If

the subject matter in substance is something which is beyond the legislative

power, the form in which the law is clothed, would not save it from

condemnation. The constitutional prohibitions cannot be allowed to be violated

by employing indirect methods. To test the true nature and character of the

challenged legislation, the investigation by the Court should be directed

towards examining (i) the effect of the legislation; and (ii) its object,
https://www.mhc.tn.gov.in/judis

99/134

WA. No. 313 of 2022 etc batch

purpose or design. While doing so, the Court cannot enter into investigating the

motives, which induced the Legislature to exercise its power.

40. The abovesaid view was reiterated by Larger Bench (Seven Judges)

in
R.S. Joshi, S.T.O. v. Ajit Mills Ltd.
[(1978) 1 SCR 338], and by

Constitution Bench in
Naga People's Movement of Human Rights v. Union

of India
[AIR 1998 SC 465] and has been the law applied in a catena of

decisions thereafter.

41. In order to further support her case, the learned counsel for the

petitioners also relied upon the NCTE Regulations of the year 2001 which

make it rather clear that even for movement from one level to a higher level

post, the minimum qualifications as given or prescribed in the concerned

promotional level post would also require to be fulfilled. If there was any doubt

on this score, the said Regulations bring out the intention of the NCTE in this

regard and the said principle applied in consonance with the NCTE

Regulations, 2010, prescribing qualifications and eligibility criteria for

Graduate Assistants, without making any distinction in the qualifications so

prescribed on the basis of mode/channel of appointment, will lead to the

inevitable conclusion that as on date, any person aspiring to be appointed as a

Graduate Assistant/BT Assistant, by whatever mode of appointment, be it by
https://www.mhc.tn.gov.in/judis

100/134

WA. No. 313 of 2022 etc batch

direct recruitment, promotion or transfer, would have to necessarily fulfil the

eligibility criteria as prescribed by the NCTE Regulations, 2010, under which a

pass in TET is clearly mandatory. It is also seen from the additional documents

filed in the writ petition impugning the Special Rules that in several other

States where the NCTE notifications have been adopted, the essential eligibility

criteria of passing TET has been stressed upon in all appointments irrespective

of the channel of appointment that is by direct recruitment or by promotion.

Further, in an identical case before the Division Bench of the Allahabad High

Court in Subedar Yadav and Ors. v. State of U.P. and Ors. [Special Appeal

no. 737 of 2018 dated 04.09.2018], it has been pleased to hold that the

requirement of passing TET is mandatory for selection, promotion or for any

other mode of appointment and it is not only confined to selection from open

recruitment.

42. The reliance of the appellants on the order passed by the Hon'ble

Supreme Court in C. A. Nos. 6186-6187 of 2008 dated 05.09.2013 that the

teachers who were appointed prior to G.O. Ms. No. 181 dated 15.11.2011 will

remain protected, is misplaced in the context of the present issue. As rightly

held by the Learned Judge in the order under appeal, the said appeals before

the Hon'ble Supreme Court arose out of different facts and circumstances,

where essentially the question was with respect to the initial methods of
https://www.mhc.tn.gov.in/judis

101/134

WA. No. 313 of 2022 etc batch

recruitment and the zone of consideration for appointment, that is, whether

there should be a state-wide selection or district-wise selection and it is in those

circumstances that after the coming into force of the
RTE Act
, the Hon'ble

Supreme Court while disposing of the said appeals, had held that those who

had already been appointed prior to the coming into force of G.O. Ms. No.

181 dated 15.11.2011 shall remain protected. This observation/ direction of the

Hon’ble Supreme Court cannot, by any stretch of imagination, be deemed to be

understood as meaning that all those appointed prior to the date of the said

G.O. Ms. No. 181 dated 15.11.2011 would not have to pass the Teacher

Eligibility Test even if they aspire for a promotion to the higher post of

Graduate Teacher, when at present the qualifications prescribed by the NCTE

require a pass in TET, apart from the other essential educational qualifications.

As such, the contention that the observation in the civil appeals would exempt

the writ appellants from passing the teacher eligibility test while seeking for

promotion to the postgraduate teacher, is hereby negatived.

43. At the risk of repetition, it must be stated that while the NCTE

notifications had clearly protected those who had already been appointed prior

to the date of the notification from passing TET, there is nothing in the said

notification which affords an exemption from passing TET when they aspire for

fresh appointments by way of direct recruitment, promotion or otherwise to the
https://www.mhc.tn.gov.in/judis

102/134

WA. No. 313 of 2022 etc batch

post of Graduate Teacher. The principle of interpretation that when the

language of the statute is clear and unambiguous, it is not for the courts to

substitute their opinion or inject their philosophy into the provisions, is trite

law and the same is to be applied. The principle of literal interpretation would

lead to the inevitable conclusion that only those who have been appointed prior

to the date of issuance of the NCTE notifications are protected and exempted

from passing TET for continuance in the respective posts against which they

have been appointed. Hence, we conclude that those appointed prior to

29.07.2011 and in order to extend the benefit to the date of passing of G.O.

Ms. No. 181 dated 15.11.2011, those appointed prior to that date,

i.e.15.11.2011 either in the post of Secondary Grade teacher or Graduate

Teacher/BT Assistant are exempted from passing TET for continuance in the

said posts. However, for promotion to the post of Graduate Teacher from the

post of Secondary Grade teacher or appointment to the post of Secondary

Grade teacher or Graduate teacher/BT Assistant by any channel or mode of

appointment by either direct recruitment or promotion or by transfer, a pass in

Teacher Eligibility Test is mandatory in accordance with the
RTE Act
read with

the NCTE notifications.

44. In the result, the writ petitions challenging the vires of the impugned
https://www.mhc.tn.gov.in/judis

103/134

WA. No. 313 of 2022 etc batch

Special Rules are hereby allowed, and the Special Rules for the Tamilnadu

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 illegal being ultravires the
Right of Children to Free and

Compulsory Education Act
2009 and the Rules framed thereunder and the

NCTE Notifications dated 23.08.2010 and 29.07.2011. Accordingly, W.A.No.

2795/2022 is hereby dismissed.

B. WA Nos. 313, 833, 1891, 2050, 2082, 2617 of 2022

RIGHT OF THOSE APPOINTED PRIOR TO THE RTE ACT, NCTE

NOTIFICATIONS TO CONTINUE IN SERVICE WITHOUT INSISTENCE

ON TET.

45. The next question relates to whether those already in service prior to

the commencement of the Act are obliged to acquire a pass in TET for

continuance in service as Secondary Grade Teachers without seeking any

further promotion. Here, a reading of
Section 23
of the RTE Act would reveal

the following:

(a) The sub-clause (1) to
Section 23
of the Act provides that any person
would be eligible “for appointment” as a teacher provided he possesses
https://www.mhc.tn.gov.in/judis

104/134

WA. No. 313 of 2022 etc batch

minimum qualification as laid down by an academic authority authorized
by the central government namely NCTE. As a matter of fact, pursuant
to
Section 23
of the Act, a notification was issued by NCTE dated
23.08.2010 that teachers shall be eligible for appointment from among
those who have passed Teachers Eligibility Test (TET).

(b) The expression “for appointment” employed in Subsection (1) to

Section 23
of the Act is indicative of the fact that the provision was
intended to impose conditions for appointments of teachers to be
appointed subsequent to the introduction of the Act and notification.

(c) Subsection (2) to
Section 23
of the Act provides for certain relaxation
in cases of States where there are no adequate institutions offering
courses or training in teacher education or States where there are no
adequate number of teachers possessing minimum qualification as laid
down in subsection (1) to
section 23
viz., TET. In such cases the central
government may by notification relax the minimum qualifications
required for appointment as a teacher for a period not exceeding five
years.

(d) It is important to note that Subsection (2) to
Section 23
of the Act
also governs future appointments and does not intend to touch upon the
rights of teachers or impair the rights of teachers who are already in
service to continue in service.

46. Reliance was sought to be placed on the proviso to sub section (2) to

Section 23
of the Act to suggest that the qualification test is not only with

reference to teachers who are to be appointed but also teachers who were

already in service ought to pass TET test to remain in service. This is in view of
https://www.mhc.tn.gov.in/judis

105/134

WA. No. 313 of 2022 etc batch

the fact that the proviso “a teacher who had at the commencement of this Act

does not possess minimum qualification would be required to acquire the

minimum qualification within a period of five years”. The expression “teacher”

here would not include those, who are already in service but is meant to cover

candidates who intend or who desire to be appointed as teachers. This would

be evident from a reading of sub section (2) to
Section 23
of the Act which

provides that “teachers possessing minimum qualification” which qualifies the

expression “for appointment” as a teacher. It is thus clear that the expression

“teacher” employed in
Section 23
of the Act does not cover teachers who are

already in appointment/in service but those who intend or desire to be

appointed as teachers.

47. Secondly, a proviso is normally only a carve out or an exception to

the main provision and there is no reason to take a different view. There is

consistency between the proviso and sub section (2) to
section 23
inasmuch as

both look to a period of five years for the purpose of acquiring a qualification

viz., passing the TET test within a period of five years, under the circumstances

set-out therein.

48. Any doubt as to whether the first proviso would govern teachers who

are already in service is put to rest through the proviso introduced by the
Right

of Children to Free and Compulsory Education (Amendment) Act, 2017
, which
https://www.mhc.tn.gov.in/judis

106/134

WA. No. 313 of 2022 etc batch

reads as under;

“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

(24 of 2017)”

49. A reading of the above proviso would make it clear that every teacher

appointed or in position as on 31.04.2015 and not possessing the minimum

qualification shall acquire such minimum qualification within a period of four

years from 2017. The expression “for appointment” employed in sub sections

(1) and (2) to
Section 23
when contrasted with every teacher “appointed”

would clearly indicate the fact that when the provisions were first introduced in

2010 they were only looking at future appointments. However, the proviso

introduced in the year 2017 also looks to teachers “who are already in

service”. The expression “for appointment” is indicative of the fact that the

teachers shall qualify for appointment which is to be made in future and

therefore it has to be prospective. If so, sub section (2) to
Section 23
of the Act

having found to cover appointments made after the introduction, the proviso

must also apply only to the said class of candidates/teachers covered by sub

section (2) to
Section 23
of the Act.

50.
Section 23
of the Act would make it clear that the intention of the

Legislature to prescribe minimum qualifications for teachers was made while
https://www.mhc.tn.gov.in/judis

107/134

WA. No. 313 of 2022 etc batch

being alive to the fact that there may be certain States which do not have

adequate institutions offering courses or training in teacher education, or where

teachers possessing minimum qualifications are not available in sufficient

numbers. It is in this context that the Proviso to
Section 23(2)
states that a

teacher who, at the commencement of this Act (understood to mean those

appointed after the commencement of the Act), does not possess minimum

qualifications as laid down under sub section (1), shall acquire such minimum

qualification from five years. The legislature therefore has made it mandatory

for every teacher who at the time of commencement of the Act does not possess

minimum qualifications as prescribed under the Act, to acquire the said

minimum qualifications within a period of 5 years. The emphasis is on the

words “at the commencement of this Act” and hence, it needs to be examined

whether the legislature intended to apply the new qualifications to teachers

who are already in service at the commencement of the Act, or only to those to

be appointed after the commencement of the Act. Pursuant to the provisions of

the Act, the National Council Teacher Education (NCTE) issued a notification

dated 23.08.2010 prescribing the minimum qualifications for teachers from

Classes I to V- ‘Secondary Grade Teachers’ as well as for Classes VI to VIII-

‘BT Assistant’. Apart from prescribing the minimum educational qualifications,

the important eligibility criteria added by way of the notification is – “Pass in
https://www.mhc.tn.gov.in/judis

108/134

WA. No. 313 of 2022 etc batch

Teacher Eligibility Test (TET)”. This notification stated under paragraph 4 that

teachers appointed prior to the date of this notification need not acquire the

minimum qualification prescribed by the notifications. Under para 5 it has been

stated that those teachers appointed after date of this notification but in whose

case the process of appointment was initiated prior to the date of this

notification would also be exempt from acquiring the minimum qualifications

including Teacher Eligibility Test (TET) as prescribed under Para 1 of the

notification. The said Para 5 of the notification dated 23.08.2010 came to be

amended by the notification of the NCTE dated 29.07.2011 whereby Para 5

was substituted by Para 5(a) with the same provision while shifting the cut off

date from 23.08.2010 to 29.07.2011, meaning thereby that where the

Government, Local Authority or School issued the advertisement to initiate the

process of appointment prior to the date of this notification i.e., 29.07.2011

such appointments may also be made in accordance with the NCTE

Regulations 2001 i.e., exempting them from acquiring TET for appointment as

the teacher.

51. At this juncture, we may refer to some of the legal principles relating

to the issue involved herein, qua the nature of employment under the

Government and interpretation of provisions in a manner as to cause least
https://www.mhc.tn.gov.in/judis

109/134

WA. No. 313 of 2022 etc batch

hardship to existing employees, the rule against retrospectivity, and in this

context, whether the possession of TET is mandatory for those, who were

already appointed as secondary grade teachers prior to the notification dated

29.07.2011 for continuance in service and getting annual increment, incentive,

etc. They are as follows:

Employment by State and its instrumentalities as a right under
Article 16

52. We may now examine the nature of state employment and the legal

status of the teachers appointed by the State.
Article 16
of the Constitution

provides that there should be equality of opportunity for all citizens for the

matters relating to employment or appointment to any office under the state.

Public employment in a sovereign socialist secular Democratic Republic has to

be a set down by the Constitution and the laws made under the constitution

vis-à-vis the employment by the government and its instrumentalities on the

basis of procedure established on that behalf.

53. The expression employment or appointment covers not only the

initial appointment but also attributes of service like promotion and age of

superannuation etc. The expression ‘matters relating to employment’ used in

Article 16
is not confined to initial matters prior to the act of employment but

to cover all matters in relation to employment both prior and subsequent. It

would cover salary, leave, gratuity, pension, superannuation, promotion and
https://www.mhc.tn.gov.in/judis

110/134

WA. No. 313 of 2022 etc batch

termination of employment as held in Girish Jayanthilal Vaghela [2006 2

SCC 482] and cited with approval by Balasubramanyan, J in
State of

Karnataka v. Umadevi
[(2006) 4 SCC 1)].

54.
In
Union Public Service Commission v. Girish Jayanti Lal

Vaghela
[(2006) 2 SCC 482], the Apex court observed that:

“12.
Article 16
which finds place in Part III of the Constitution relating
to fundamental rights provides that there shall be equality of opportunity
for all citizens in matters relating to employment or appointment to any
office under the State. The main object of
Article 16
is to create a
constitutional right to equality of opportunity and employment in public
offices. The words ‘employment’ or ‘appointment’ cover not merely the
initial appointment but also other attributes of service like promotion and
age of superannuation, etc. The appointment to any post under the State
can only be made after a proper advertisement has been made inviting
applications from eligible candidates and holding of selection by a body
of experts or a specially constituted committee whose members are fair
and impartial through a written examination or interview or some other
rational criteria for judging the inter se merit of candidates who have
applied in response to the advertisement made. A regular appointment to
a post under the State or Union cannot be made without issuing
advertisement in the prescribed manner which may in some cases include
inviting applications from the employment exchange where eligible
candidates get their names registered. Any regular appointment made on
a post under the State or Union without issuing advertisement inviting
applications from eligible candidates and without holding a proper
selection where all eligible candidates get a fair chance to compete would
violate the guarantee enshrined under
Article 16
of the Constitution.”

State Employment is not mere contract

55. The employment in the state is not only a contract, but also a status

acquired by the employee. The salary and duration of work by the government

servant are governed by statute or statutory rules which may be framed by the

Government. In this context, the following decisions of the Hon'ble Supreme
https://www.mhc.tn.gov.in/judis

111/134

WA. No. 313 of 2022 etc batch

court are of relevance and the observations made thereunder are usefully

extracted below:

(
i) Dinesh Chandra Sangma v. State of Assam
[(1977) 4 SCC 441]

”The above is a special provision which deals with a special situation
where a contract is entered into between the Government and a person
appointed under the Constitution to hold a civil post. But simply because
there may be, in a given case, a contractual employment, as envisaged
under
Article 310(2)
of the Constitution, the relationship of all other
government servants, as a class, and the Government, cannot be said to
be contractual. It is well-settled that except in the case of a person who
has been appointed under a written contract, employment under the
Government is a matter of status and not of contract even though it may
be said to have started, initially, by a contract in the sense that the offer
of appointment is accepted by the employee.”

(
ii) Roshan Lal Tandon v. Union of India
[(1968) 1 SCR 185]

“It is true that the origin of Government service is contractual. There is
an offer and acceptance in every case. But once appointed to his post or
office the Government servant acquires a status and his rights and
obligations are no longer determined by consent of both parties, but by
statute or statutory rules which may be framed and altered unilaterally by
the Government. In other words, the legal position of a Government
servant is more one of status than of contract. The hallmark of status is
the attachment to a legal relationship of rights and duties imposed by the
public law and not by mere agreement of the parties. The emolument of
the Government servant and his terms of service are governed by statute
or statutory rules which may be unilaterally altered by the Government
without the consent of the employee. It is true that
Article 311
imposes
constitutional restrictions upon the power of removal granted to the
President and the Governor under
Article 310.
But it is obvious that the
relationship between the Government and its servant is not like an
ordinary contract of service between a master and servant. The legal
relationship is something entirely different, something in the nature of
status. It is much more than a purely contractual relationship voluntarily
entered into between the parties. The duties of status are fixed by the law
and in the enforcement of these duties society has an interest. In the
language of jurisprudence status is a condition of membership of a group
of which powers and duties are exclusively determined by law and not by
agreement between the parties concerned. The matter is clearly stated by
Salmond and Williams on Contracts as follows:

https://www.mhc.tn.gov.in/judis

112/134

WA. No. 313 of 2022 etc batch

“So we may find both contractual and status-obligations
produced by the same transaction. The one transaction may result
in the creation not only of obligations defined by the parties and
so pertaining to the sphere of contract but also and concurrently
of obligations defined by the law itself, and so pertaining to the
sphere of status. A contract of service between employer and
employee, while for the most part pertaining exclusively to the
sphere of contract, pertains also to that of status so far as the law
itself has seen fit to attach to this relation compulsory incidents,
such as liability to pay compensation for accidents. The extent to
which the law is content to leave matters within the domain of
contract to be determined by the exercise of the autonomous
authority of the parties themselves, or thinks fit to bring the
matter within the sphere of status by authoritatively determining
for itself the contents of the relationship, is a matter depending on
considerations of public policy. In such contracts as those of
service the tendency in modern times is to withdraw the matter
more and more from the domain of contract into that of status.”
(Salmond and Williams on Contracts, 2nd Edn. p. 12).

(
iii) State of H.P. v. Raj Kumar
[(2023) 3 SCC 773]

“26. Though the relationship between the employee and the State
originates in contract, but by virtue of the constitutional constraint,
coupled with the legislative and executive rules governing the service, the
relation attains a unique position.
Identifying such a relationship as
being a “status”, as against a contract, this Court in Roshan Lal Tandon
v. Union of India [Roshan Lal Tandon v. Union of India, (1968) 1 SCR
185 : AIR 1967 SC 1889], explained what such a “status” constitutes.

We have extracted hereinbelow the exposition of the concept of “status”
as explained by the Constitution Bench for ready reference. .......It is true
that the origin of government service is contractual. There is an offer and
acceptance in every case. But once appointed to his post or office the
government servant acquires a status and his rights and obligations are
no longer determined by consent of both parties, but by statute or
statutory rules which may be framed and altered unilaterally by the
Government. In other words, the legal position of a government servant
is more one of status than of contract. The hallmark of status is the
attachment to a legal relationship of rights and duties imposed by the
public law and not by mere of the parties. The emolument of the
government servant and his terms of service are governed by statute or
statutory rules which may be unilaterally altered by the Government
without the consent of the employee. It is true that
Article 311
imposes
constitutional restrictions upon the power of removal granted to the
President and the Governor under
Article 310.
But it is obvious that the
https://www.mhc.tn.gov.in/judis

113/134

WA. No. 313 of 2022 etc batch

relationship between the Government and its servant is not like an
ordinary contract of service between a master and servant. The legal
relationship is something entirely different, something in the nature of
status. It is much more than a purely contractual relationship voluntarily
entered into between the parties. The duties of status are fixed by the law
and in the enforcement of these duties, society has an interest.”

State as a Model Employer

56. The Government being an employer, must act in accordance with the

rules and regulations framed by it. It should respond the legitimate aspirations

of the employees and create trustworthiness to them. The Hon'ble Supreme

Court in
Bhupendra Nath Hazarika v. State of Assam
[(2013) 2 SCC 516]

pointed out the same in the following ways:

“State is a model employer and it is required to act fairly giving due
regard and respect to the rules framed by it. We have stated the role of
the State as a model employer with the fond hope that in future a
deliberate disregard is not taken recourse to and deviancy of such
magnitude is not adopted to frustrate the claims of the employees. It
should always be borne in mind that legitimate aspirations of the
employees are not guillotined and a situation is not created where hopes
end in despair. Hope for everyone is gloriously precious and a model
employer should not convert it to be deceitful and treacherous by playing
a game of chess with their seniority. A sense of calm sensibility and
concerned sincerity should be reflected in every step. An atmosphere of
trust has to prevail and when the employees are absolutely sure that their
trust shall not be betrayed and they shall be treated with dignified
fairness then only the concept of good governance can be concretised.
That public employment is a facet of right to equality envisaged under

Article 16
of the Constitution of India and that the recruitment rules are
framed with a view to give equal opportunity to all the citizens of India
entitled for being considered for recruitment in the vacant posts. As a
model employer the Government must conduct itself with high probity
and candour with its employees, The main concern of the court in such
matters is to ensure the rule of law and to see that the Executive acts
fairly and gives a fair deal to its employees consistent with the
requirements of
Articles 14
and 16.”
(emphasis supplied)
https://www.mhc.tn.gov.in/judis

114/134

WA. No. 313 of 2022 etc batch

Rule against retrospectivity

57. It would be evident that the teachers who were appointed on the

basis of eligibility criteria set out during their employment prior to the

introduction of the Act and having secured employment and having been in the

employment for decades cannot now be required to satisfy the eligibility

criterion which is introduced in the year 2010. Any attempt to do so would

result in giving retrospective effect to the Act. This would warrant an

examination, whether the provisions under consideration can be given

retrospective operation, when it does not expressly provide for the same. There

is a presumption of prospectivity articulated in the legal maxima Nova

Constitutio Futuris Formam Imponere Debet, Non Praeteritis that is “a new

law ought to regulate what is to follow, not the past”. It is trite law that any

provision or statute dealing with substantive rights is prospective unless it is

expressly or by necessary implication made to have retrospective operation as

held in
Mahadeolal Kanodia v. Administrator-General of W.B.
, (
1960) 3

SCR 578 and CIT v. Vatika Township (P) Ltd.
, (2015) 1 SCC 1 at page 21,

the relevant passage of which are quoted below for ready reference:

(
i) Mahadeolal Kanodia v. Administrator-General of W.B.
[(1960) 3 SCR

578]

“8.The principles that have to be applied for interpretation of statutory
provisions of this nature are well-established. The first of these is that
https://www.mhc.tn.gov.in/judis

115/134

WA. No. 313 of 2022 etc batch

statutory provisions creating substantive rights or taking away
substantive rights are ordinarily prospective; they are retrospective only if
by express words or by necessary implication the legislature has made
them retrospective; and the retrospective operation will be limited only to
the extent to which it has been so made by express words, or necessary
implication. The second rule is that the intention of the legislature has
always to be gathered from the words used by it, giving to the words their
plain, normal, grammatical meaning. The third rule is that if in any
legislation, the general object of which is to benefit a particular class of
persons, any provision is ambiguous so that it is capable of two
meanings, one which would preserve the benefit and another which would
take it away, the meaning which preserves it should be adopted. The
fourth rule is that if the strict grammatical interpretation gives rise to an
absurdity or inconsistency such interpretation should be discarded and an
interpretation which will give effect to the purpose the Legislature may
reasonably be considered to have had will be put on the words, if
necessary even by modification of the language used.”

(
ii) CIT v. Vatika Township (P) Ltd.
[(2015) 1 SCC 1 at page 21]

“28. Of the various rules guiding how a legislation has to be interpreted,
one established rule is that unless a contrary intention appears, a
legislation is presumed not to be intended to have a retrospective
operation. The idea behind the rule is that a current law should govern
current activities. Law passed today cannot apply to the events of the past.

If we do something today, we do it keeping in view the law of today and in
force and not tomorrow's backward adjustment of it. Our belief in the
nature of the law is founded on the bedrock that every human being is
entitled to arrange his affairs by relying on the existing law and should not
find that his plans have been retrospectively upset. This principle of law is
known as lex prospicit non respicit: law looks forward not backward. As
was observed in Phillips v. Eyre [(1870) LR 6 QB 1] , a retrospective
legislation is contrary to the general principle that legislation by which the
conduct of mankind is to be regulated when introduced for the first time to
deal with future acts ought not to change the character of past
transactions carried on upon the faith of the then existing law.”

58. Thus, it could be inferred from the above that when Parliament in its

wisdom has made the provisions of the Act only prospective, it would not be

open through a process of interpretation by courts or on the basis of

interpretation/understanding by the executive or a subordinate legislation to
https://www.mhc.tn.gov.in/judis

116/134

WA. No. 313 of 2022 etc batch

give a retrospective effect though the plenary legislation does not either

expressly or by necessary implication provide for retrospective operation of its

provisions.

Subordinate legislation to be in conformity with plenary legislation

59. Any attempt to suggest that the subordinate legislation must be

understood as imposing a condition which requires the teachers who were in

service to clear the test despite the fact that plenary legislation in the form of

RTE Act
does not provide for the same would render the subordinate legislation

bad for it is settled principle that any subordinate legislation ought to be in

confirmity with the parent Act as well as other plenary legislation. The

decisions of the Hon'ble Supreme Court referred to below explained the same.

(
i) Shri Sitaram Sugar Ltd v. Union of India
[(1990) 3 SCC 223)]

“45. Power delegated by statute is limited by its terms and subordinate to
its objects. The delegate must act in good faith, reasonably, intra vires the
power granted, and on relevant consideration of material facts. All his
decisions, whether characterised as legislative or administrative or quasi-
judicial, must be in harmony with the Constitution and other laws of the
land. They must be "reasonably related to the purposes of the enabling
legislation".
See Leila Mourning v. Family Publications Service, 411 US
356, 36 L Ed. 2d 318. If they are manifestly unjust or oppressive or
outrageous or directed to an unauthorised end or do not tend in some
degree to the accomplishment of the objects of delegation, courts might
well say, "Parliament never intended to give authority to make such rules;
they are unreasonable and ultra vires", per Lord Russel of Killowen, C.J.
in Kruse v. Johnson, [1988] 2 Q.B. 91.”

(
ii) State of Tamil Nadu & Ors. vs P. Krishnamurthy & Ors
[(2006) 4 SCC

517]
https://www.mhc.tn.gov.in/judis

117/134

WA. No. 313 of 2022 etc batch

“12. There is a presumption in favour of constitutionality or validity of a
sub-ordinate Legislation and the burden is upon him who attacks it to
show that it is invalid. It is also well recognized that a sub-ordinate
legislation can be challenged under any of the following grounds:-

a) Lack of legislative competence to make the sub-ordinate legislation.

b) Violation of Fundamental Rights guaranteed under the Constitution of
India.

c) Violation of any provision of the Constitution of India.

d) Failure to conform to the Statute under which it is made or exceeding
the limits of authority conferred by the enabling Act.

e) Repugnancy to the laws of the land, that is, any enactment.

f) Manifest arbitrariness/unreasonableness (to an extent where court
might well say that Legislature never intended to give authority to make
such Rules).

60. The court considering the validity of a subordinate Legislation, will

have to consider the nature, object and scheme of the enabling Act, and also the

area over which power has been delegated under the Act and then decide

whether the subordinate Legislation conforms to the parent Statute. Where a

Rule is directly inconsistent with a mandatory provision of the Statute, then, of

course, the task of the court is simple and easy. But where the contention is

that the inconsistency or non-conformity of the Rule is not with reference to

any specific provision of the enabling Act, but with the object and scheme of

the
Parent Act
, the court should proceed with caution before declaring

invalidity.

Arbitrariness violates
Article 14:
Construction that avoids unjust, arbitrary and
https://www.mhc.tn.gov.in/judis

118/134

WA. No. 313 of 2022 etc batch

absurd results to be adopted

61. It may be relevant to note that parliament would make laws which

are just and reasonable, and that, there is also a presumption that Parliament

would frame laws which are constitutionally valid. To assume that the

provisions of
Section 23
of the Act are effective retrospectively, would result in

rendering the provision vulnerable to challenge as offending
Article 14
of the

Constitution.
In this regard, it may be useful to note that manifest arbitrariness

by itself is a ground to invalidate even plenary legislation as held in
Shayara

Bano v. Union of India
, [(2017) 9 SCC 1], the relevant passage of which is

usefully extracted below:

“95...In particular, which stated that legislation can be struck down on the
ground that it is “arbitrary” under
Article 14
, went on to conclude that
“arbitrariness” when applied to legislation cannot be used loosely.
Instead, it broad based the test, stating that if a constitutional infirmity is
found,
Article 14
will interdict such infirmity. And a constitutional
infirmity is found in
Article 14
itself whenever legislation is “manifestly
arbitrary” i.e. when it is not fair, not reasonable, discriminatory, not
transparent, capricious, biased, with favouritism or nepotism and not in
pursuit of promotion of healthy competition and equitable treatment.
Positively speaking, it should conform to norms which are rational,
informed with reason and guided by public interest, etc.,”

Hardship, inconvenience, injustice, absurdity and anomaly to be avoided

62. The Court will adopt that which is just, reasonable and sensible

rather than what is none of those things.
In
Modern School v. Union of India
,

(2004) 5 SCC 583, the Hon'ble Supreme Court has observed that a

https://www.mhc.tn.gov.in/judis

119/134

WA. No. 313 of 2022 etc batch

construction that results in hardship, serious inconvenience, injustice, absurdity

or anomaly or which leads to inconsistency or uncertainty and friction in the

system which the statute purports to regulate has to be rejected and preference

should be given to that construction which avoids such results. This rule has no

application, when the words are susceptible to only one meaning and no

alternative construction is reasonably open.

63. In selecting out of different interpretations ‘the court will adopt that

which is just, reasonable and sensible rather than that which is none of those

things’ as it may be presumed that 'the legislature should have used the word in

that interpretation which least offends our sense of justice’. If the grammatical

construction leads to some absurdity or some repugnance or inconsistency with

the rest of the instrument, it may be departed from so as to avoid that

absurdity, and inconsistency. Similarly, a construction giving rise to anomalies

should be avoided as noted by the Supreme Court in
N.T. Veluswami Thevar

v. G. Raja Nainar
[1959 Supp (1) SCR 623]

“12.…… It is no doubt true that if on its true construction, a statute leads
to anomalous results, the courts have no option but to give effect to it and
leave it to the legislature to amend and alter the law. But when on a
construction of a statute, two views are possible, one which results in an
anomaly and the other, not, it is our duty to adopt the latter and not the
former, seeking consolation in the thought that the law bristles with
anomalies. Anomalies will disappear, and the law will be found to be
simple and logical, if it is understood that when a question is raised in an
election petition as to the propriety of the rejection of a nomination paper,
the point to be decided is about the propriety of the nomination and not
the decision of the Returning Officer on the materials placed before him,
https://www.mhc.tn.gov.in/judis and that decision must depend on whether the candidate is duly qualified

120/134

WA. No. 313 of 2022 etc batch

and is not subject to any disqualifications as provided in
Section 36(2)
.

Further, as approved by Venkatarama Aiyar, J., in
Tirath Singh v.
Bachittar Singh
, (1955) 2 SCR 457
“….Where the language of a statute, in its ordinary meaning
and grammatical construction, leads to a manifest contradiction
of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice, presumably not
intended, a construction may be put upon it which modifies the
meaning of the words, and even the structure of the sentence”.
(Maxwell's Interpretation of Statutes, 10th Edn., p. 229). Reading
the proviso along with clause (b) thereto, and construing it in its
setting in the section, we are of opinion that notwithstanding the
wideness of the language used, the proviso contemplates notice
only to persons who are not parties to the petition.”

64. Legislature must be presumed to enact laws that are just, fair and

reasonable and in society's interest, unless it is explicitly intended to result in

any harsh or ridiculous effect. The words of K.S. Hedge, J. as held in
Bhudan

Singh v. Nabi Bux
, [(1969) 2 SCC 481 at page 485], reads as under:

“9.Before considering the meaning of the word “held” in
Section 9
, it is
necessary to mention that it is proper to assume that the law makers who are
the representatives of the people enact laws which the society considers as
honest, fair and equitable. The object of every legislation is to advance public
welfare. In other words as observed by Crawford in his book on “Statutory
Constructions” that the entire legislative process is influenced by
considerations of justice and reason. Justice and reason constitute the great
general legislative intent in every peace of legislation. Consequently where the
suggested construction operates harshly, ridiculously or in any other manner
contrary to prevailing conceptions of justice and reason, in most instance, it
would seem that the apparent or suggested meaning of the statute, was not the
one intended by the law makers. In the absence of some other indication that
the harsh or ridiculous effect was actually intended by the legislature, there is
little reason to believe that it represents the legislative intent.”

Any interpretation that would lead to absurdity has to be avoided, according to

the rules of interpretation (Central India Spg., Wvg. & Mfg. Co. Ltd. v.

Municipal Committee, 1958 SCR 1102). Therefore, a construction resulting in
https://www.mhc.tn.gov.in/judis

121/134

WA. No. 313 of 2022 etc batch

unreasonable, harsh and unjust result ought to be avoided.

Data relating to TET

65. It may also be useful to refer to the following data to understand the

consequences of treating RTE to be retrospective insofar as it requires teachers

to pass the TET exam.

TET Paper Examination Date No. of No. of Pass
Candidates candidates Percen
Appeared passed tage
2012 I 12.07.2012 F.N. 305405 1735 0.56
2012 II 12.07.2012 A.N. 409121 713 0.17
Supplementary I 14.10.2012 F.N. 278725 10397 3.73
Supplementary II 14.10.2012 A.N. 364370 8864 2.43
2013 I 17.08.2013 262187 30592 11.67
2013 II 18.08.2013 400311 42124 10.52
PWD II 21.05.2014 4693 945 20.14
PWD II 21.05.2014 4693 945 20.14
2017 I 29.04.2017 241555 16197 6.71
2017 II 30.04.2017 5122260 18578 3.63
2019 I 08.06.2019 162316 551 0.33
2019 II 09.06.2019 379735 316 0.08
Total 3320678 131012

The data from the website of TRB would reveal that between 2012 to 2019,

33,20,678 had taken part in TET exams, out of which only 1,31,012 numbers

have cleared resulting in an overall average of 3.95 percentage. The

consequence of treating the passing of TET exams as mandatory even to

continue in service apart from rendering the provision as being arbitrary,
https://www.mhc.tn.gov.in/judis

122/134

WA. No. 313 of 2022 etc batch

produces results which are absurd / obnoxious in as much as it could result in

more than a lakh of teachers being unemployed. It would also have the ripple

effect of affecting the careers of students inasmuch as it is impossible to find

adequate alternate hands to impart education. Inasmuch as applying the above

data, it would require at least 30,00,000 people to take part in TET exams to

have a lakh of teachers clearing TET thereby qualifying for appointment.

66. It is also relevant to note that the legislature is presumed to

understand and appreciate the needs of its own people and that its laws are

directed towards problems realized through experience [Refer:
Ram Krishna

Dalmia v. SR Tendolkar
, 1959 SCR 279 para 11]. It cannot be

overemphasized that experience is also important and Parliament must be

imputed with the wisdom that experience is relevant and therefore the

legislature ensured that the provisions are only prospective and not

retrospective, if we bear the above data in mind, the consequences that could

possibly result in treating TET examinations as applying even in respect of

teachers who are already in services at the time of introduction of TET, would

produce results which are absurd and obnoxious something which ought to be

avoided.

In this regard it may be useful to refer to the judgment of the Supreme

Court in
Sirsi Municipality v. Cecelia Kom Francis Tellis
, [(1973) 1 SCC

409], to understand what is their nature of appointment and the consequences
https://www.mhc.tn.gov.in/judis

123/134

WA. No. 313 of 2022 etc batch

of terminating them in view of the non-fulfillment of an eligibility criteria

introduced subsequent to their appointment.

Hardship to those in employment to be avoided

67. The Hon'ble Supreme Court in Girjesh Shrivastava v. State of M.P.

[(2010) 10 SCC 707] found that cancellation of appointment after long period

which would result in large number of people being unemployed is arbitrary

and undesirable also in view of the fact that they would have left their previous

employment and would have reached an age where the prospects of them

finding another job are rather dim and all this if taken into account

cumulatively would indicate that the provisions of the Act in the first place is

only prospective on a plain reading of the provisions and any attempt to

suggest that it must be given retrospective effect ought to be rejected for it

would fall foul of
Article 14
, 16
and
19 (1)(g)
of the Constitution. The relevant

paragraph of the said decision is profitably reproduced as under:

“31. More importantly, in deciding these issues, the High Court should
have been mindful of the fact that an order for cancellation of
appointment would render most of the appellants unemployed. Most of
them were earlier teaching in non-formal education centres, from where
they had resigned to apply in response to the advertisement. They had left
their previous employment in view of the fact that for their three-year
long teaching experiences, the interview process in the present selection
was awarding them grace marks of 25%. It had also given them a
relaxation of 8 years with respect to their age. Now, if they lose their jobs
https://www.mhc.tn.gov.in/judis

124/134

WA. No. 313 of 2022 etc batch

as a result of the High Court's order, they would be effectively
unemployed as they cannot even revert to their earlier jobs in the non-
formal education centres, which have been abolished since then. This
would severely affect the economic security of many families. Most of
them are between the age group of 35-45 years, and the prospects for
them of finding another job are rather dim. Some of them were in fact
awaiting their salary raise at the time of quashing of their appointment by
the High Court.”

68. Reverting to the present case, pursuant to the said Act as well as

notification issued by the NCTE the State Government issued G.O.Ms.No.181

School Education (C2) Department dated 15.11.2011, wherein, in paragraph 3,

it has been mentioned as follows:

“3.The said section clearly specifies that teachers who at the
commencement of this Act, do not possess minimum qualifications as
prescribed by the academic authority authorized by the central
government shall acquire such minimum qualifications within a period of
5 years. Hence, the “Teacher Eligibility Test (TET)” would have to be
conducted for recruiting teachers for the primary and upper primary
classes. The teachers working in unaided private schools are required to
pass teacher Eligibility Test within 5 years. In the State of Tamil Nadu,
Secondary Grade teachers (those teaching classes I to V) are required to
have minimum qualifications of D.T.Ed. and graduate Assistants (BT
Assistant) (those teaching classes VI to VIII) are required to have
minimum qualifications of B.Ed. they should also pass Teacher Eligibility
Test forthwith.”

69. A reading of the provisions of the Act read with the NCTE

Notifications as stated above would make it clear that all those appointed prior

to the notification dated 29.07.2011 can continue in service as Secondary

Grade Teachers or BT Assistants as the case may be, without acquiring TET.

They can be granted their increments and other monetary benefits. To this
https://www.mhc.tn.gov.in/judis

125/134

WA. No. 313 of 2022 etc batch

extent, 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. The time-limit granted for

acquiring a pass in TET is applicable only for those who have been appointed

after the commencement of the Act, and who for the reasons stated in
Section

23(2)
of the Act, were appointed without qualifying in TET. The amendment to

the
RTE Act
on 09.08.2017 by Act No. 24 of 2017 with effect from 01.04.2015

by inserting the following Second proviso to the
Section 23(2)
of the RTE Act,

reads as follows:

“23(2) …
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,
”.

The aforesaid proviso is also to be read in the same manner as being applicable

only for those who have been appointed after the commencement of the Act,

and who for the reasons stated in
Section 23(2)
of the Act, were appointed

without qualifying in TET. The words “every teacher appointed or in position

as on the 31st March 2015” would clear any semblance of doubt as to the

category of persons whom it refers to, meaning thereby that every teacher

appointed after the Act and who is in service as on 31st March 2015 has been

https://www.mhc.tn.gov.in/judis

126/134

WA. No. 313 of 2022 etc batch

mandated under the Act to acquire the minimum qualifications within a period

of four years from the date of commencement of the amendment Act of 2017

(.i.e., Act 24 of 2017) to the
RTE Act
w.e.f 01.04.2015. It is to be seen that the

question whether teachers appointed prior to the notification of the NCTE

dated 29.07.2011 would require to pass the TET for continuing in service came

up for consideration in
M.Maharani v. The State of Tamilnadu and Ors
.

[MANU/TN/0608/2019] wherein it has been held as follows:

“….

10. However, there is no cut-off date specified in the said G.O. Ms. No.
181, with regard to acquiring the qualification of pass TET to continue in
service as B.T. Assistants /Secondary Grade Teachers, who are working as
such in the respondent Schools. In this regard, a cursory glance at Clause
(5) of the notification dated 23.08.2010 and its amended notification dated
29.07.2011 issued by the NCTE, the contents of which are reproduced at
paragraph nos. 8.2 and 8.4 above, would reveal that if the process of
appointment of teachers was initiated prior to the date of notification by
issuing advertisement, such appointments have to be made in accordance
with NCTE (Determination of Minimum Qualifications for Recruitment of
Teachers in Schools) Regulations, 2001 and the same was amended with
effect from 29.07.2011. As per the said NCTE Regulations 2001, there is
no qualification prescribed with regard to possession of TET certificate,
for appointment to the post of B.T Assistant and Secondary Grade
Teachers. The qualification of passing TET was first introduced by the
notification dated 23.08.2010 and it was amended vide notification dated
27.09.2011. Thus, it could be inferred that the cut-off date for acquiring
the TET qualification is 27.09.2011 and the teachers, who were appointed
prior to that date need not pass TET and even in the case of the teachers
who were appointed after that date, if the advertisement to initiate the
process of appointment of teachers was made prior to that date, then,
their appointments also can be in accordance with the NCTE Regulations
2001 and they need not acquire the TET qualification.

12. In the ultimate analysis, this Court has no hesitation to hold that the
petitioners are entitled to seek exemption from passing TET, as they were
appointed prior to the cut-off date and the respondents are directed not to
insist TET certificate from the petitioners as a pre-condition for their
https://www.mhc.tn.gov.in/judis continuance in service as B.T. Assistants.”

127/134

WA. No. 313 of 2022 etc batch

70. The aforesaid judgment was also followed in
V.Fathima Riswana

and others v The Chief Educational Officer, Tirunelveli and Others

[MANU/TN/4852/2020 dated 13.08.2020].

71. In line with above reasoning, the orders of the learned Judge holding

that even those appointed prior to the commencement of the Act must acquire a

pass in TET is liable to be set aside. The Secondary Grade Teachers only

seeking continuance in service with increments, are fundamentally a different

class of persons from those seeking promotion to B.T.Assistant from Secondary

Grade Teacher.

*C. W.A. Nos.19, 31, 32, 36 of 2023

WHETHER TET IS A NECESSARY MANDATE FOR TEACHERS
APPOINTED IN MINORITY SCHOOLS

71.1. A perusal of the orders impugned in the writ petitions leading to

these writ appeals would indicate that the 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.
https://www.mhc.tn.gov.in/judis

128/134

WA. No. 313 of 2022 etc batch

Notwithstanding the same, it is hereby clarified that by virtue of the

judgment of the Constitution Bench of the Hon’ble Supreme Court in

Pramati Educational and Cultural Trust & Ors. v. Union of India
, [(2014) 8

SCC 1], wherein it was held that the
RTE Act, 2009
insofar as it applies to

minority schools, aided or unaided, covered under
Article 30(1)
is

ultravires the Constitution, meaning thereby that the 2009 Act will not

apply to minority schools, the eligibility of TET pass as required for

appointment of teachers in non-minority schools, will not apply to minority

schools. In other words, the approval of appointment of teachers in

minority schools, both aided and unaided, cannot be refused or rejected on

the ground that they do not possess a pass in TET. Further this specific

issue is also pending consideration before the Supreme Court and the law

laid down by
the Supreme Court in Pramati Educational and Cultural

Trust, cited supra, holds the field as on today. For these reasons, the order

of the Learned Judge in the writ petitions is affirmed and the above four

writ appeals are dismissed.

72. In the light of the above narration, taking note of the factual

background, the legal provisions spelling out the intention of the legislature

and the effect of the subordinate legislation pursuant thereto, the inescapable

conclusion of this court would be that every teacher whether Secondary Grade
https://www.mhc.tn.gov.in/judis

129/134

WA. No. 313 of 2022 etc batch

or BT Assistant, whether appointed by direct recruitment or promotion in the

case of BT Assistant, after the coming into force of the
RTE Act
and the NCTE

notifications must necessarily possess/acquire the eligibility of a pass in TET.

Therefore, the claim that Secondary Grade Teachers appointed prior to the

commencement of the Act and notifications will now be eligible for promotion

to the post of BT Assistant without passing TET, cannot be countenanced. For

any fresh appointments, whether by direct recruitment in the case of Secondary

Grade Teachers, or by either direct recruitment or promotion or transfer in the

Graduate Assistants/BT Assistants, a pass in TET is an essential eligibility

criteria to be fulfilled.

73. Further, it is made clear that all those appointed prior to 29.07.2011

are exempt from passing TET only for the purpose of continuance in the post of

secondary grade teacher or BT Assistant without promotional prospects. Any

appointments whether by direct recruitment or promotion or transfer made

after 29.07.2011, will have to necessarily adhere to the minimum eligibility

criteria of passing TET. *The principles
laid down in
this judgment will not

have application to minority schools, both aided and unaided as explained

in paragraph no.71.1.

CONCLUSION
https://www.mhc.tn.gov.in/judis

130/134

WA. No. 313 of 2022 etc batch

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.

(c) Any appointment made to Graduate Teacher/BT Assistant, after

29.07.2011, whether by direct recruitment or promotion from the post of

Secondary Grade Teacher, or transfer, must necessarily possess TET. *The

principles
laid down in
this judgment will not have application to minority

schools, both aided and unaided as explained in paragraph no.71.1.

(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
https://www.mhc.tn.gov.in/judis

131/134

WA. No. 313 of 2022 etc batch

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.

75. The narration of facts which propelled this case would indicate that

the teachers have not been appointed for the last ten years inspite of being

qualified with a pass in TET. On the basis of the above findings and

observations made, the State Government is directed to conduct TET

periodically and make direct recruitment of teachers and promotion from

among TET qualified candidates at the earliest.

76. With these observations, Writ Petition Nos.3364 and 3368 of 2023

are allowed, Writ Appeal Nos. 313, 833, 1891, 2050, 2082, 2795 of 2022 &

Writ Appeal Nos.19, 31, 32, 36 of 2023 are dismissed. WA.No.2617/2022 is

allowed. No costs. Consequently, connected miscellaneous petitions are closed.

[R.M.D., J] [M.S.Q., J]
02.06.2023
*Added as per the clarificatory order
https://www.mhc.tn.gov.in/judis

132/134

WA. No. 313 of 2022 etc batch

of this court dated 14.06.2023

rsh
Index: Yes / No
Speaking Order / Non-speaking Order
Neutral Citation : Yes / No

To

1. The Director of School Education
D.P.I. Campus, College Road
Chennai - 600 006

2. The Chief Educational Officer
Kancheepuram District
Kancheepuram

3. The District Educational Officer
Chengalpattu Education District
Kancheepuram District

https://www.mhc.tn.gov.in/judis

133/134

WA. No. 313 of 2022 etc batch

R. MAHADEVAN, J
and
MOHAMMED SHAFFIQ, J

rsh

Pre-delivery Judgement in
WA No. 313 of 2022 etc., batch

02.06.2023

https://www.mhc.tn.gov.in/judis

134/134