Teachers Appointed Prior To July 2011 Also Need To Possess TET For Future Promotions: Madras High Court

The National Council for Teacher Education (NCTE) on July 29, 2011 had made TET mandatory under the amendments to the notification laying down the minimum qualifications for a person to be eligible for appointment as a Teacher.

The division bench of Justice R Mahadevan and Justice Mohammed Shaffiq passed the ruling on a batch of pleas to determine whether non-possession/acquisition of TET would affect a teacher’s appointment and continuity in service and whether the passing of TET is mandatory for promotion to the post of BT Assistant/Graduate Teacher.

While answering this question, the court struck down a Government Order issued by the School Education Department prescribing that a pass in TET was mandatory only for direct recruitment to the post of BT Assistant and not for promotion. The court said that TET is mandatory for all teachers appointed after July 29, 2011, whether by direct recruitment or by promotion.

"The legal provisions spelling out the intention of the legislature and the effect of the subordinate legislation pursuant thereto, the inescapable conclusion of this court would be that every teacher whether Secondary Grade or BT Assistant, whether appointed by direct recruitment or promotion in the case of BT Assistant, after the coming into force of the RTE Act and the NCTE notifications must necessarily possess/acquire the eligibility of a pass in TET," the court observed.

The court added that mandating the teachers to satisfy the eligibility criterion set out under the Right to Education Act which came into force after their appointments would amount to giving a retrospective effect to the Act. The court noted that any Act could not be given retrospective effect when the provisions do not expressly provide for the same.

"It would be evident that the teachers who were appointed on the basis of eligibility criteria set out during their employment prior to the introduction of the Act and having secured employment and having been in the employment for decades cannot now be required to satisfy the eligibility criterion which is introduced in the year 2010. Any attempt to do so would result in giving retrospective effect to the Act. This would warrant an examination, whether the provisions under consideration can be given retrospective operation, when it does not expressly provide for the same."

The court also took into account the fact that if TET is made mandatory, it would result in a situation where lakhs of teachers would be unemployed, thus affecting the career of the students as well as the lives of the teachers.

"The consequence of treating the passing of TET exams as mandatory even to continue in service apart from rendering the provision as being arbitrary, produces results which are absurd / obnoxious in as much as it could result in more than a lakh of teachers being unemployed. It would also have the ripple effect of affecting the careers of students inasmuch as it is impossible to find adequate alternate hands to impart education."

The court thus observed that the secondary grade teachers, who are seeking continuance in service with increments, are a different class of persons from those seeking promotion to BT Assistant from Secondary Grade Teacher. The court also noted that even previously the courts have considered this question and have held that the teachers appointed prior to the cut off date issued by the NCTE may be exempted from passing TET.

The court also noted that for the past ten years, teachers have not been appointed despite being qualified with TET. The court, thus, directed the State to conduct TET periodically and conduct recruitment of teachers at the earliest.

"The narration of facts which propelled this case would indicate that the teachers have not been appointed for the last ten years inspite of being qualified with a pass in TET. On the basis of the above findings and observations made, the State Government is directed to conduct TET periodically and make direct recruitment of teachers and promotion from among TET qualified candidates at the earliest," it said.

Case Title: The Director of School Education and Others v. M Velayutham and others

Citation: 2023 LiveLaw (Mad) 160