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Madras High CourtWP(MD)/13956/2015disposed of

T.K.Saseema Banu v. The Secretary To Govt.,

2016-10-19Honourable Dr. Justice S. Vimala4 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.10.2016

CORAM

THE HON'BLE Dr.JUSTICE S.VIMALA W.P(MD) No.13956 of 2015 T.K.Saseema Banu ... Petitioner -vs1.The Secretary to Government, 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, Tirunelveli.

4.The District Educational Officer, Tenkasi, Tirunelveli District.

5.The Manager, Hidayathul Islam School, Kadayanallur, Tirunelveli District.

... Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certioriarified Mandamus writ calling for the records relating to the impugned order issued by the 4th respondent in Na.Ka.No. 0862/Aa4/2014 dated 11.3.15 declining to approve the appointment of the petitioner as B.T.Assistant in Tamil in the 5th respondent school and quash the same and further direct the 4th respondent to approve forthwith the appointment of the petitioner as B.T.Assistant in Tamil in the 5th respondent school w.e.f. the date of appointment on 13.2.15 with all attendant benefits including the arrears of salary and allowance.

For Petitioner : Mr.E.V.N.Siva For Respondents : Mr.V.R.Shanmuganathan 1 to 4 Special Government Pleader

O R D E R

This writ petition has been filed to quash the impugned proceedings issued by the fourth respondent dated 11.03.2015 and consequently direct the fourth respondent to approve the

petitioner's appointment as BT Assistant (Tamil) in the 5th respondent School with effect from 13.02.2015 with all attendant benefits including the arrears of salary and allowance. 2.The 5th respondent school is an aided minority educational institution; one post of B.T. Assistant (Tamil) in the 5th respondent school fell vacant due to promotion of the previous incumbent; in that vacancy, the 5th respondent school appointed the petitioner and till date, she continues to work in the school as B.T. Assistant (Tamil).

3.The school submitted a proposal to the fourth respondent requesting to approve the petitioner's appointment as B.T. Assistant(Tamil) from 13.02.2015 and to disburse grant-in-aid towards her salary. The fourth respondent by the proceedings dated 11.03.2015, returned the proposal, stating that the document relating to the passing of TET by the petitioner, should be enclosed for approval of her appointment. Hence, the petitioner has filed this writ petition.

4.The learned counsel for the petitioner has brought to the attention of this Court to the Judgment of the Division Bench of this Court in W.A.Nos.213 and 572 of 2016 etc. batch, dated 24.08.2016, wherein a direction was issued to the Government to release the salary of the Teachers and also to pay the arrears of salary within a period of two months.

5.Article 45 of the Constitution of India directed the States to endure to provide free and compulsory education to all children until they complete the age of 14 years and this should be done within a period of 10 years from the commencement of the Constitution. Article 45 was amended by the 86th Constitution Amendment Act, 2002 and it reads "the State shall endeavour to provide early childhood care and education for all children until they complete the age of 14 year". Under the very same enactment, the right to education became a fundamental right to the children between the age group of 6 to 14. Thereafter, parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter called "RTE Act") with the object of providing free education, which came into force from 01.04.2010. 6.

With the view to improve the quality of education and to provide quality education to children, Section 23 of the RTE Act makes it mandatory for a person, who seeks appointment in the schools covered under RTE Act to possess minimum qualification as laid down by the Academic Authority. As per Section 23 (1) of RTE Act National Council for Teacher Education (NCTE) was notified as the Academic Authority. The authority, while providing for guidelines to conduct Teacher Eligibility Test indicated that the teacher should have passed Teacher Eligibility Test (in short "TET") to be conducted by the appropriate Government in accordance with the guidelines in order to get appointment as Teacher.

6.1.Accepting this recommendation, the Government of Tamil Nadu issued G.O.Ms.No.181 School Education Department dated 15.11.2011. The Government also passed G.O.Ms.25 dated 06.02.2014, under which, the minimum marks to be obtained by various categories were prescribed was also quashed by the Hon'ble Division Bench. The constitutional validity of RTE Act was under challenge before the Supreme Court in the case of Society for Unaided Private Schools of Rajasthan vs. Union of India, 2012 (6) SCC 1. The Apex Court while upholding the constitutional validity held that the Act is applicable to all schools, except the unaided minority schools.

6.2. In the case of Pramati Educational and Cultural Trust vs. Union of India, 2014 (4) MLJ 486, the Hon'ble Supreme Court held that under Article 31 of the Constitution of India, all minorities, whether based on religion or language shall have the right to establish and administer educational institutions of their choice and therefore, those institutions have a special constitutional right to establish and administer educational schools of their choice.

7.The Hon'ble Division Bench of this Court in the case of W.A. (MD) No.213 and 572 of 2016, based on the judgment in Pramati's case, held that G.O.181 dated 15.11.2011, which was issued prior to the directions of NCET, cannot be made applicable to minority institutions. The Hon'ble Division Bench of this Court in the said decision has only suggested that the minority institution may consider conducting a refresher course and also some interactive sessions in order to ensure the quality of teachers. Therefore, it is clear that the impugned order passed is liable to be set aside in view of the legal position enunciated in W.A.(MD) No.213 and 572 of 2016.

8. Accordingly, the impugned order passed by the fourth respondent dated 11.03.2015 is set aside and the 4th respondent is directed to approve the appointment of the petitioner as BT Assistant (Tamil) in the 5th respondent school with effect from 13.02.2015 with all attendant benefits including the arrears of salary and allowance within a period of two months from the date of receipt of a copy of this order.

9.With the above observation and direction, this Writ Petition is disposed of. No costs. Consequently, MP(MD)Nos.1 and 2 of 2015 are closed.

Sd/- Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar

To 1.The Secretary to Government, 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, Tirunelveli.

4.The District Educational Officer, Tenkasi, Tirunelveli District.

+1cc to Mr.E.V.N.Siva,Advocate,SR No.61825 +1cc to Special Government Pleader,Sr No.62337 W.P(MD)No.13956 of 2015 19.10.2016 mj ms/rsk/17.2.2017/4p.7c