JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying Writ of Mandamus to direct the 3rd respondent to act upon the order of this Hon’ble court as reported in (2016) 7 MLJ 155 Secretary to government v. S.Jeyalakshmi, in the batch of writ petitions, to regularize the service of the petitioner with all service and monetary benefits from the date of the appointment of the petitioner.)

1. This writ petition has been filed to issue a Writ of Mandamus to direct the 3rd respondent to act upon the order of this Hon’ble Court as reported in (2016) 7 MLJ 155 Secretary to Government v. S.Jeyalakshmi, in the batch of writ petitions, to regularize the service of the petitioner with all service and monetary benefits from the date of the appointment of the petitioner.

2. The case of the petitioner is that he was appointed as B.T.Assistant (Social Science) in the 4th respondent School with effect from 01.12.2016. The post was a regular sanctioned post with Grant-in-Aid from the Government. The 4th respondent is a minority Institution and the minority character of educational agency was declared by this Court vide order dated 24.09.1976 in W.P.No.629 of 1975. After declaration by this Court, the 1st respondent had also issued proceedings dated 21.10.1976 certifying the minority character of the educational agency which run the 4th respondent School. The educational agency has established and has been administering number of educational Institutions and all of them are minority educational institutions governed under Article 30(1) of the Constitution of India.

3. The 4th respondent School, after the appointment of the petitioner herein on 01.09.2017, forwarded a proposal for approval of the authorities concerned on 02.01.2018. As there was no response from the authorities, the School had resubmitted the proposal on 16.03.2018. According to the School, the staff fixation for the academic year 2016-2017 revealed that the post was within the sanctioned cadre strength admissible.

4. While the matter stood thus, a G.O. was issued on 15.11.2011 (G.O.Ms.No.181) in terms of Section 23 r/w Rule 16 of the Right of Children to Free and Compulsory Education Act, 2009, which provide for acquiring Teachers Eligibility Test (TET) qualification within a period of 5 years from the date of commencement of the Act. Under the provisions of RTE Act, the Management of Private Schools have duty to insist on the teacher to acquire TET qualification within a period of 5 years from the date of coming into effect of the Act. As acquiring TET qualification was mandatory, over a period of time, there was several vacancies remained unfilled for want of eligible teachers for teaching primary and upper primary classes.

5. While so, this Court, vide order dated 24.08.2016 in W.A.Nos.213 and 572 of 2016 has held that G.O.Ms.181 is not applicable to the minority institution. The operative portion of the direction issued by this Court is extracted hereunder.

59. Insofar as minority institutions are concerned, the contention of the learned senior counsel appearing for the minority Schools is that when Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 received the assent of the President of India and it is still in force, it cannot be supplanted by an Executive Order, namely by G.O. Ms. No. 181 dated 15.11.2011. Further, the Apex Court has clearly held in Pramati Educational & Cultural Trust that RTE Act, 2009 is not applicable to the minority institutions. Therefore, we have no hesitation to hold that the right conferred under Article 30(1) of the Constitution cannot be abrogated. Consequently, G.O.Ms. No. 181 dated 15.11.2011, which was issued pursuant to the directions of NCTE, cannot be made applicable to the minority institutions.

60. In the light of the above, we are of the view that the Government cannot insist upon the minority institution, both aided or unaided, to abide by any Regulation framed under the provisions of the RTE A