[Order of the Court was made by J.NISHA BANU,J.] The above Writ Petition has been filed challenging the rejection of the approval of the appointment of the petitioner as B.T.Assistant (Mathematics) w.e.f.16.6.2011 by the fourth respondent school on the ground that she did not possess the teacher eligibility test (in short 'TET').
2. The case of the petitioner is that the fifth respondent school is an aided minority institution and it is governed by some of the provisions of the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 and the rules framed thereunder. She passed B.Sc (mathematics) on 03.04.2005 from St.Mary's College, Tuticorin and completed B.Ed from St.Justin Teachers College for Women affiliated to Madurai Kamaraj University in April, 2006. She was initially appointed as B.T.Assistant on 16.06.2011 in the fifth respondent School in a vacancy caused on account of the transfer of one Alociyas Paulraj and has been working in that school. At the time of her appointment, she qualified B.Sc (mathematics) with B.Ed.
3. The official respondent would file a counter stating that the subject matter in issue was referred to before the Larger Bench of this Court and the same is kept pending and therefore, prayed for the dismissal of the Writ Petition.
4. However, when the matter came up for consideration, both the parties would contend that the Division Bench of this Court has considered the issue in question in the case of The Secretary to Government, Government of Tamil Nadu and others v. S.Jeyalakshmi and another reported in 2016 Writ L.R. 769, and has held as follows:
?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 Act. Therefore, we hold that G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011 issued by the Government of Tamil Nadu, is not applicable to the minority institutions. Similarly, G.O.Ms.No.76 dated 18.3.2015 issued by the Government of Puducherry, is also not applicable to the minority institutions.
61. *** ***
62. However, keeping in mind the larger interest in which the Government has issued the above G.Os., this Court feels that the minority institutions may also consider conducting a refresher course and also some interactive sessions to all the Teachers during annual vacation, in order to ensure and improve the quality of Teachers.
63. In the result, the writ petitions are allowed and the writ appeals are dismissed with a direction to the Government to release the salary of the Teachers and also to pay the arrears of salary within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs. Consequently, connected M.Ps., are closed.?
5. In the light of the afore-cited judgment and since the approval of the appointment has been rejected on the ground that the petitioner did not possess TET, this Court is of the considered view that the ratio laid down by the Division Bench of this Court would certainly apply to the case on hand. In other words, the Government cannot insist upon the minority institution, both aided or unaided, to abide by any Regulation framed under the provisions of the RTE Act and as per the observation made in the afore- said judgement, G.O.Ms.No.181, School Education (C2) Department, dated 15.11.2011 issued by the Government of Tamil Nadu is not applicable to the minority institutions.
6. In the result, the order impugned in this writ petition stands set aside and this writ petition is allowed as prayed for. Consequently, the fourth respondent is directed to approve the appointment of the petitioner as B.T.Assistant (mathematics) with effect from 16.06.2011 within a period of four weeks from the date of receipt of a copy of this order. No costs.
To
1.The Secretary to Government, The State of Tamil Nadu, School Education Department, Secretariat, Chennai-600 009.
2.The Director of Elementary Education, O/o.the Director of Elementary Education Office, College Road, Nungambakkam, Chennai.
3.The District Elementary Educational Officer, O/o.the District Elementary Educational Office, Tirunelveli District, Tirunelveli.
4.The Assistant Elementary Educational Officer, O/o.Assistant Elementary Educational Office, Vasudevanallur, Tirunelveli District..