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2016 Supreme(Mad) 2735

IN THE HIGH COURT OF JUDICATURE AT MADRAS
HULUVADI G. RAMESH & M.V. MURALIDARAN, JJ.
The Secretary to Government, Government of Tamil Nadu Education Department & Ors. - Appellants
Vs.
S. Jeyalakshmi & Ors. - Respondents
W.A.Nos.213 & 572 of 2016, W.P.Nos.11983, 17799, 17800, 17941 to 17944, 18885, 20929 to 20931, 21076, 21078, 21080, 21229, 21388, 21400, 21677, 21678, 21914, 21989, 22166, 22178, 22208, 22209, 22210, 22211, 22364, 22368, 22612 to 22615, 22797, 22831, 22832, 23084, 23086, 23087, 23301 to 23305, 23405, 23892, 23895, 23896, 23897 to 23899, 23901, 24067, 24069 to 24073, 24100, 24101, 32098, 32099, 32100 to 32102, 32104, 32105, 32543 to 32545, 32554 to 32556, 34581 to 34584 of 2013, 10884, 11277, 12371 to 12374, 25766, 28724, 28726, 31384 to 31386, 32693 of 2014, 6193, 6780 to 6786, 6843 to 6849, 6850 to 6856, 7832, 7833, 7837, 7838, 7855, 8101, 10212 to 10217, 11922 to 11925, 11926 to 11928, 11929 to 11931, 12306, 12406, 12566 to 12570, 12571 to 12576, 12673 to 12677, 12718, 12733 to 12738, 12798 to 12800, 12998 to 13002, 13970, 16219, 16220, 19071, 19156 to 19158, 20620, 20602, 20721 to 20723, 21943, 23319, 33133, 33134, 34082, 34083, 38629, 39286, 39287, 23507, 23508, 16225 to 16227, 25977, 25978 & 12339 of 2015, 2909 to 2911, 4267, 4268, 6108, 6109, 7332, 7333, 8557, 12095 to 12098, 16590, 469, 1237 to 1239, 3474, 9839, 9840, 14093 to 14095, 16320 to 16325, 17099 of 2016 and W.A.(MD)No.921 of 2013, W.P.(MD)Nos.17051 of 2012, 1862, 1866, 5423 to 5425, 6417 to 6419, 6420, 7040, 7042, 7043, 7044, 7046, 7047, 7078, 7340, 7341, 7573, 7574, 7613, 7661, 7662, 7663, 7666, 12502, 18165, 18642, 18643, 19036 to 19039, 19040 to 19064, 19114, 19134, 19163, 19165, 19166, 19141 to 19147, 19154, 19164, 19176, 19177, 19178, 19179, 19187, 19265, 19270 to 19272, 19303, 19370, 19371, 19385 to 19387, 19444, 19456, 19476 to 19482, 19505, 19510, 19531, 18702, 19151, 11668 of 2013, 3683, 5262, 6070, 6192, 6271, 7417, 11049, 10001, 11111, 16887 to 16895, 20411, 20412, 21487 of 2014, 1328, 1711, 2404, 3762, 4137 to 4140, 4711, 6929, 7201, 7202, 7236, 7247 to 7249, 10258 to 10260, 10319, 11022, 11171, 11172, 11173, 11174, 11175, 11176, 11211, 15260, 15261, 15263, 15299, 15318, 16621 to 16623, 16650, 22079, 22080, 22081, 22082, 22083, 22084, 22085, 22212, 22214, 22215, 22216, 22219, 22315, 22316, 22317, 22608, 23555, 23565 of 2015, 16, 17, 978, 1276, 1278, 1279, 1367, 1668, 1669, 1763, 1784, 1787, 1798, 1808, 1818, 1854, 1902, 2167, 6729, 6730, 6750 of 2016 & Connected Miscellaneous Petitions
Decided On : 24-8-2016

Advocates Appeared:
For the Appellants :Mr. P.H. Arvind Pandian Addl. Advocate General Assisted by Mr. T.N. Rajagopalan, Spl. G.P., Mr. K. Karthikeyan, G.A., Dr. Fr. A. Xavier Arulraj, S.C. For Ms. A. Arul Mary, Mr. M. Ajmal Khan, S.C., For M/s. Ajmal Associates, Mr. K.H. Ravikumar, Mr. S. Sounthar, Mr. Godson Swaminathan.
For the Respondents:Mr. P.H. Arvind Pandian Addl. Advocate General Assisted by Mr. T.N. Rajagopalan, Spl. G.P., Mr. K. Karthikeyan, G.A.

Headnote:

Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 - Section 19 - Rules, 1974 - Teacher Eligibility Test - Challenging rejection of approval of appointment of Teachers who did not qualify themselves with Teacher Eligibility Test and consequently to accord approval of their appointment - Seeking approval of Teachers who had not qualified themselves with Teacher Eligibility Test and whose appointments were made prior to prescription of Teacher Eligibility Test - Contesting respondents in writ appeals and writ petitioners are Teachers employed in minority aided Schools - Writ petitioners and contesting respondents in appeals are working as Teachers in minority schools, appointed as against sanctioned posts - When minority Schools sought approval of such appointment of Teachers authorities rejected same on ground that Teachers who were appointed did not qualify themselves with Teacher Eligibility Test - However appointment of some of Teachers who were not qualified with TET was approved and they are receiving salary - Thereafter authorities cancelled approval of some of teachers - Some of the appointments were pending approval for long time without any order of rejection - Held, Contention of learned senior counsel appearing for minority Schools is that when Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 received assent of President of India and it is still in force it cannot be supplanted by an Executive Order by G.O.Ms - Further Apex Court has clearly held in Educational & Cultural Trust that RTE Act, 2009 is not applicable to minority institutions – Therefore court have no hesitation to hold that right conferred under Article 30(1) of Constitution cannot be abrogated Consequently G.O.Ms. which was issued pursuant to directions of NCTE cannot be made applicable to minority institution - Government cannot insist upon minority institution both aided or unaided to abide by any Regulation framed under the provisions of RTE Act - Therefore court hold that G.O.Ms School Education (C2) Department issued by Government of Tamil Nadu is not applicable to minority institutions - Writ Appeals are dismissed

JUDGMENT :

HULUVADI G. RAMESH, J.

The writ appeals have been filed by the Government challenging the interim direction of a learned single Judge directing the respondents therein/ educational authorities to grant temporary approval to the writ petitioners for a period of five years to pay the salary for the teachers employed by them.

2. The writ petitions, including the writ petitions before the Madurai Bench, have been filed-

(i) challenging the rejection of approval of appointment of Teachers who did not qualify themselves with Teacher Eligibility Test and consequently, to accord approval of their appointment;

(ii) seeking approval of Teachers who had not qualified themselves with Teacher Eligibility Test and whose appointments were made prior to the prescription of Teacher Eligibility Test;

(iii) challenging the order of stoppage of salary and termination and obtained an interim direction to pay salary till five years;

(iv) challenging G.O.Ms.No.181, School Education, dated 15.11.2011 and the consequential order refusing to grant approval;

(v) challenging G.O.Ms.No.181, School Education, dated 15.11.2011 and also challenging the order of the educational authority refusing to grant approval by persons who passed Teachers Eligibility Test;

(vi) challenging G.O.Ms.No.181, School Education, dated 15.11.2011 and seeking approval of appointment of Teachers;

(vii) challenging G.O.Ms.No.181, School Education, dated 15.11.2011 and the consequential order directing the Teachers whose appointments were already approved, to complete Teachers Eligibility Test before 31.3.2015;

(viii) challenging G.O.Ms.No.181, School Education, dated 15.11.2011 as not applicable to the Minority Educational Institutions; and

(ix) challenging G.O.Ms.No.76 dated 18.3.2015 issued by the Puducherry Government.

3. The contesting respondents in the writ appeals and the writ petitioners are Teachers employed in the minority aided Schools. The writ petitioners and the contesting respondents in the appeals are working as Teachers in the minority schools, appointed as against the sanctioned posts. When the minority Schools sought approval of such appointment of Teachers, the authorities rejected the same on the ground that the Teachers who were appointed did not qualify themselves with Teacher Eligibility Test (in short "TET"). However, appointment of some of the Teachers who were not qualified with TET, was approved and they are receiving salary. Thereafter, the authorities cancelled the approval of some of the teachers. Some of the appointments were pending approval for long time, without any order of rejection. In some cases, they are receiving salary after obtaining an order of interim direction directing to pay salary to them and to qualify themselves with TET within five years. In three cases, approval of the appointment of Teachers in the Union Territory of Puducherry was not granted pursuant to G.O.Ms.No.76 dated 18.3.2015.

4. In the above backdrop, writ petitions are filed by the Teachers and minority Schools, either challenging the order of rejection of approval or challenging G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011, or challenging the order directing stoppage of salary or seeking approval of appointment, or challenging G.O.Ms.No.76 dated 18.3.2015, etc. and the present writ appeals are filed by the Government challenging the interim direction to grant temporary approval and to release the salary.

5. The main contention of Dr.Fr.A.Xavier Arulraj, learned senior counsel appearing for some of the writ petitioners is that any order emanated from the RTE Act, 2009 is not applicable to the minority Schools, both aided and unaided, as per the judgment of the Apex Court in Pramati Educational & Cultural Trust v. Union of India [(2014) 8 SCC 1] and therefore, G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011 prescribing the minim


















































































































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