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2016 DIGILAW 2242 (MAD)

C. POOMANI v. STATE OF TAMILNADU

2016-07-14

T.RAJA

body2016
ORDER : These petitioners have come to this Court challenging G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011, passed by the 1st respondent and the consequential order passed by the respective District Educational Officers/Assistant Elementary Educational Officers, refusing the requests of the petitioners to approve their appointments as B.T Assistants/Secondary Grade Teachers in the minority school on the ground that the impugned G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011, is in violation of Article 30(1) of the Constitution of India as it is not applicable to minority institutions. 2. Placing heavy reliance on a judgment of the Hon'ble Supreme Court in Pramati Educational and Cultural Trust and others vs. Union of India and others, reported in 2014 (4) MLJ 486 (SC), learned counsel for the petitioners have contended that when the Apex Court has given an authoritative pronouncement making it clear that Right of Children to Free and Compulsory Education Act 2009 Act, in so far as it is made applicable to minority schools referred in Clause (1) of Article 30 of the Constitution is ultra vires of the Constitution, the 1st respondent ought not to have refused to grant approval of the petitioners' appointment on the basis of G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011, therefore, both G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011 and the consequential order passed by the District Educational Officers/Assistant Elementary Educational Officers, he pleaded, are liable to be set aside. 3. Mr. V.R. Shanmuganathan, learned Special Government Pleader appearing for the respondents, would fairly submit that as per Section 23 of the Right of Children to Free and Compulsory Education Act 2009, which states that any person possessing minimum qualification as laid down by an academic authority authorised by the Central Government by notification, shall be eligible for appointment as teachers, National Council for Teacher Education has been appointed as the academic authority by the Government of India. He further submitted that subsequently, the National Council for Teacher Education has issued a Notification dated 23.08.2010 prescribing Teacher Eligibility Test as minimum educational qualification for appointment of teachers in schools. He further submitted that subsequently, the National Council for Teacher Education has issued a Notification dated 23.08.2010 prescribing Teacher Eligibility Test as minimum educational qualification for appointment of teachers in schools. Accepting the recommendation and the Notification issued by the National Council for Teacher Education, the Government of Tamil Nadu have also issued G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011 making it clear that Teacher Eligibility Test shall be conducted by the Teachers Recruitment Board in accordance with the guidelines framed by the National Council for Teacher Education and in view of the said G.O., the teachers who passed the Teacher Eligibility Test alone were made eligible to become teacher. 4. Adding further, he would submit that the issue as to whether the provisions of the Right of Children to Free and Compulsory Education Act 2009 would be applicable to a minority institution, is pending consideration in Ashwini Thanappan vs. Director of Education and another, reported in (2014) 8 SCC 272 . It is also submitted that following the abovesaid reference order, the Hon'ble Division Bench also, in W.A. No. 1299 of 2015 has passed an order dated 14.09.2015 directing the Educational authorities to pay only the salary with a further direction not to remove the concerned teacher till the issue referred to before the Supreme Court is decided. 5. At this juncture, it is necessary to extract paragraphs 4 to 8 of the order passed by the Hon'ble Division Bench in W.A. No. 1299 of 2015, dated 14.09.2015, which are given as under:- ''4. Be that as it may, the issue as to whether the provisions of the Act, will be applicable to a minority institution, is pending consideration in Aswinithanappan Vs. Director of Education and another - (2014) 8 SCC 272 . 5. In view of the above, without going into the merits of the case as to whether a teacher appointed in a minority school is required to have TET qualification, as the same is the subject matter of the Writ petition, we are of the considered view that interest justice would sub-serve, if the appointment of the first respondent is protected, without giving any direction to the State Government to grant temporary approval. 6. Mr. 6. Mr. D. Krishnakumar, learned Special Government Pleader (Education) appearing for the appellants fairly submits that the first respondent shall not be terminated during the pendency of the said writ petition being W.P. No. 14072 of 2015. 7. Accordingly, we direct that the first respondent shall be given her salary in the course of her employment and no steps to remove her from service shall be taken till the disposal of the writ petition. However, it is made clear that this order is subject to the final outcome of the pending writ petition. It is further made clear that the first respondent shall not claim any equity on account of this order, without prejudice to the rights and contentions of the parties, therein. 8. This intra-Court appeal is disposed of accordingly. No costs. Connected Miscellaneous Petition is closed.” 6. In the light of the above, in the present case, the petitioners were appointed without possessing the Teacher Eligibility Test qualification, hence, they have filed these writ petitions challenging G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011, however, as the Apex Court in Pramati Educational and Cultural Trust and others vs. Union of India and others, reported in 2014 (4) MLJ 486 (SC), has made it clear that 2009 Act is not applicable to the minority institutions, further, the private respondent in these cases being minority educational institutions, in which, the petitioners have been appointed as B.T Assistants/Secondary Grade Teachers, the said G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011 cannot be made applicable to the present case. 7. It may be mentioned herein that the petitioners no doubt were appointed in a sanctioned posts arising out of the retirement of vacancies. However, as the issue as to whether the provisions of the Right of Children to Free and Compulsory Education Act 2009, would not be applicable to a minority institution, is pending consideration in Aswinithanappan Vs. Director of Education and another - (2014) 8 SCC 272 , following the abovesaid order passed by the Hon'ble Division Bench in W.A. No. 1299 of 2015 dated 14.09.2015, these writ petitions are disposed of with the following directions:- The petitioners shall be given salary in the course of their employment within a period of four weeks from the date of receipt of a copy of this order and no steps to remove them from service shall be taken. However, it is made clear that this order is subject to the final outcome of the case pending before the Supreme Court in Aswini Thanappan Vs. Director of Education and another - (2014) 8 SCC 272 . It is further made clear that the petitioners shall not claim any equity on account of this order, without prejudice to the rights and contentions of the parties. No costs. Consequently connected Miscellaneous Petitions are closed.