As per case facts, a series of civil appeals challenged High Court judgments concerning the mandatory nature of the Teacher Eligibility Test (TET) for teachers in minority educational institutions, and ...
2025 INSC 1063 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1385/2025
ANJUMAN ISHAAT -E-TALEEM TRUST … APPELLANT
VS.
THE STATE OF MAHARASHTRA & OTHERS … RESPONDENTS
WITH
CIVIL APPEAL NO. 1386/2025,
CIVIL APPEAL NOS.1364 -1367/2025,
CIVIL APPEAL NO.1389/2025,
CIVIL APPEAL NO.1404/2025,
CIVIL APPEAL NO.1395/2025,
CIVIL APPEAL NOS.1396 -1397/2025,
CIVIL APPEAL NO.1405/2025,
CIVIL APPEAL NO.1403/2025,
CIVIL APPEAL NO.1398/2025,
CIVIL APPEAL NOS.1406 -1408/2025,
CIVIL APPEAL NO.1393/2025,
CIVIL APPEAL NO.1399/2025,
CIVIL APPEAL NO.1391/2025,
CIVIL APPEAL NO.1401/2025,
2
CIVIL APPEAL NO.1390/2025,
CIVIL APPEAL NOS.1409 -1410/2025,
CIVIL APPEAL NO.6367/2025,
CIVIL APPEAL NO.6365/2025,
CIVIL APPEAL NO.6366/2025
AND
CIVIL APPEAL NO.6364/2025
J U D G M E N T
DIPANKAR DATTA, J.
INDEX
I. INTRODUCTION .................................................................................................................................... 3
II. ORDERS PASSED BY THE RESPECTIVE HIGH COURTS, IMPUGNED IN THE APPEALS ........................... 6
IMPUGNED JUDGMENT IN THE LEAD APPEAL BEING CIVIL APPEAL NO. 1385 OF 2025
AND CIVIL APPEAL NO. 1386 OF 2025 ........................................................................................ 6
IMPUGNED JUDGMENT IN CIVIL APPEAL NOS. 6365 - 6367 OF 2025 ..................................... 7
IMPUGNED ORDER IN CIVIL APPEAL NOS. 1364 - 1367 OF 2025 ........................................... 8
IMPUGNED JUDGMENT IN CIVIL APPEAL NOS. 1389, 1390, 1391, 1393, 1395,
1396, 1397, 1398, 1399, 1401, 1403, 1404, 1405, 1406, 1407, 1408, 1409,
1410 OF 2025 ................................................................................................................................ 9
IMPUGNED JUDGMENT IN CIVIL APPEAL NO. 6364 OF 2025 ................................................... 12
SUMMARY OF THE JUDGMENTS .................................................................................................... 13
III. PREVIOUS DECISIONS CONCERNING THE RTE ACT .......................................................................... 14
SOCIETY FOR UNAIDED PRIVATE SCHOOLS OF RAJASTHAN ....................................................... 14
PRAMATI EDUCATIONAL AND CULTURAL TRUST V. UNION OF INDIA ........................................ 18
IV. ARGUMENTS OF THE PARTIES ............................................................................................................ 27
V. THE ACTS, RULES, REGULATIONS AND NOTIFICATIONS .................................................................. 40
3
VI. ANALYSIS AND REASONS .................................................................................................................. 45
A. FROM PROMISE TO RIGHT: THE CONSTITUTIONAL JOURNEY OF ARTICLE 21A AND
THE RIGHT TO ELEMENTARY EDUCATION IN INDIA ................................................................... 46
B. BREATHING LIFE INTO THE PROMISE: THE RTE ACT AND THE REALISATION OF
ARTICLE 21A ............................................................................................................................. 51
C. THE CONSTITUTIONAL GOAL OF UNIVERSAL ELEMENTARY EDUCATION AND
COMMON SCHOOLING SYSTEM ................................................................................................ 54
D. SECTION 12(1)(C), MINORITY INSTITUTIONS AND THE BEGINNING OF THE
CONUNDRUM ............................................................................................................................ 56
E. THE COST OF EXCLUSION: CONSEQUENCES OF EXEMPTING MINORITY INSTITUTIONS
FROM THE AMBIT OF THE RTE ACT .......................................................................................... 64
F. DOES ARTICLE 30(1) REALLY ENVISAGE BLANKET IMMUNITY FROM ALL FORMS OF
REGULATION TO MINORITY INSTITUTIONS? ............................................................................. 72
G. DOES THE REGULATORY FRAMEWORK UNDER THE RTE ACT, FLOWING FROM ARTICLE
21A, CLASSIFY AS A REASONABLE RESTRICTION UNDER ARTICLE 19(6)? ............................. 78
H. MINORITY INSTITUTIONS AND THE SHARED CONSTITUTIONAL RESPONSIBILITY
UNDER ARTICLE 21A ................................................................................................................ 82
I. TEACHERS’ ROLE IN IMPARTING QUALITY EDUCATION ............................................................ 84
J. APPLICABILITY OF THE TET TO IN-SERVICE TEACHERS APPOINTED PRIOR TO 2009
AND REQUIREMENT OF TET QUALIFICATION FOR PROMOTION OF TEACHERS ...................... 88
K. OUR FINDINGS .......................................................................................................................... 91
ON PERCEIVED CONFLICT BETWEEN ARTICLES 21A AND 30(1) AND THE APPLICABILITY OF
THE RTE ACT TO MINORITY INSTITUTIONS .......................................................................................... 91
ON APPLICABILITY OF SECTION 12(1)(C), RTE ACT TO MINORITY INSTITUTIONS ............................ 95
L. SUMMARY OF OUR VIEWS ON PRAMATI EDUCATIONAL AND CULTURAL TRUST .................. 99
M. REQUIREMENT OF MINIMUM QUALIFICATION – WHETHER APPLICABLE TO IN-
SERVICE TEACHERS? ............................................................................................................... 100
N. ON MINIMUM QUALIFICATIONS VERSUS ELIGIBILITY ............................................................ 103
VII. ORDER OF REFERENCE FOR CONSIDERATION BY A LARGER BENCH .............................................. 105
VIII. ORDER ON APPLICABILITY OF THE TET TO IN-SERVICE TEACHERS ............................................... 108
I. INTRODUCTION
1. These civil appeals challenge judgments/orders of two of the three
chartered high courts of the nation delivered/made on multiple
4
proceedings instituted before them. Inter alia, questions as regards
applicability of the Teacher Eligibility Test
1
to minority educational
institutions and whether qualifying in the TET i s a mandatory
prerequisite for recruitment of teachers as well as promotion of teachers
already in service, were under consideration in such proceedings. In
brief, the appellants before this Court are:
a. Minority educational institutions who are aggrieved because they
are not being allowed to recruit teachers who have not qualified in
the TET;
b. Authorities within the meaning of Article 12 of the Constitution
claiming that qualifying the TET is a mandatory requirement for
appointment of teachers not only in non-minority but also minority
institutions, whether aided or unaided; and
c. Individual teachers, who were appointed prior to the Right of
Children to Free and Compulsory Education Act, 2009
2
being
enforced, claiming that the TET qualification cannot be made a
mandatory requirement for the purposes of their promotion.
2. The present set of appeals raise questions of seminal importance. Vide
order dated 28
th
January, 2025 in the erstwhile lead matter, viz. Civil
Appeal No.1384 of 2025
3
, the issues for consideration were framed by
us. The said appeal came to be disposed of as withdrawn along with
certain other appeals, vide order dated 20
th
February 2025, as the
1
TET
2
RTE Act
3
The Director of School Education Chennai 6 & Anr. vs. B. Annie Packiarani Bai
5
appellant(s) did not wish to pursue the appeals any further; however,
the remaining tagged appeals were heard and subsequently reserved for
judgment (with the lead matter now being Civil Appeal No. 1385 of
2025).
3. Two broad issues arising for consideration were noted in the order dated
28
th
January, 2025. The first issue was framed by a coordinate Bench
vide order dated 14
th
February, 2022 in B. Annie Packiarani Bai
(supra) whereas the other was framed by us, upon hearing counsel for
the parties who had the occasion to address the Court on 28
th
January,
2025. The issues, as recast, read as under:
a. Whether the State can insist that a teacher seeking appointment
in a minority educational institution must qualify the TET? If so,
whether providing such a qualification would affect any of the
rights of the minority institution s guaranteed under the
Constitution of India?
and
b. Whether teachers appointed much prior to issuance of Notification
No.61-1/2011/NCTE (N & S) dated 29
th
July, 2011 by the National
Council for Teacher Education
4
under sub-section (1) of Section 23
of the RTE Act read with the newly inserted proviso (second
proviso) in Section 23(2) and having years of teaching experience
(say, 25 to 30 years) are required to qualify in the TET for being
considered eligible for promotion?
4
NCTE
6
II. ORDERS PASSED BY THE RESPECTIVE HIGH COURTS, IMPUGNED IN THE
APPEALS
4. At the outset, we consider it appropriate to give a brief outline of the
judgments/orders under challenge in the present surviving set of
appeals.
IMPUGNED JUDGMENT IN THE LEAD APPEAL BEING CIVIL APPEAL NO. 1385 OF 2025
AND CIVIL APPEAL NO. 1386 OF 2025
5. The judgment impugned in the lead appeal is that of the High Court of
Judicature at Bombay
5
dated 12
th
December 2017 on a writ petition
6
instituted by Azad Education Society, Miraj (a minority institution).
Under challenge was a Government Resolution dated 23
rd
August, 2013,
by which the TET qualification was made a pre-condition for appointment
of teachers in schools imparting primary education by the Government
of Maharashtra. The Bombay High Court considered the validity of such
resolution and upheld it relying on the decision of this Court in
Ahmedabad St. Xavier’s College Society v. State of Gujarat
7
. It
was held that the impugned Government Resolution did not put any
embargo on the right of the minority institutions to appoint teachers of
their own choice, if found eligible being a TET qualified candidate. The
writ petition, thus, came to be dismissed by the impugned order. Azad
Education Society, Miraj has not preferred any appeal against the said
judgment.
5
Bombay High Court
6
Writ Petition No. 4640 of 2016
7
(1974) 1 SCC 717
7
6. The appellant, Anjuman Ishaat-e-Taleem Trust (a recognised minority
education society), was not a party to the writ petition instituted by Azad
Education Society, Miraj before the Bombay High Court. It sought
permission to file the special leave petition against the said judgment,
which was granted. Its appeal is Civil Appeal No. 1385 of 2025.
7. The same judgment has also been impugned by the appellant,
Association of Urdu Education Societies (an association managing
minority educational institutions), in Civil Appeal No. 1386 of 2025 in
the same manner upon being granted permission to file the special leave
petition.
8. It has been argued that this judgment ( dated 12
th
December 2017)
failed to consider a judgment of a co-ordinate bench of the Bombay High
Court
8
which took a contrary view.
IMPUGNED JUDGMENT IN CIVIL APPEAL NOS. 6365 - 6367 OF 2025
9. The impugned judgment in these civil appeals has been passed by the
High Court of Judicature at Madras
9
, whereby the writ appeals
10
filed by
the appellants therein, i.e., the State of Tamil Nadu and officers in the
State’s Education Department, came to be dismissed.
10. The writ petitions
11
were filed by the Management of Islamiah Higher
Secondary Schools (respondent herein , being a minority institution),
8
Judgment dated 8
th
May, 2015 in W.P. No. 1164 of 2015 (Aurangabad Bench) titled
‘Anjuman Ishaat E Taleem Trust, Aurangabad and another v The State of Maharashtra and
others’
9
Madras High Court
10
Writ Appeal Nos. 1674, 1678 and 1679 of 2022
11
W.P. Nos. 11855, 11857 & 11862 of 2021
8
challenging the rejection of their proposal for appointment of teachers.
The District Educational Officer denied the proposal for appointment
observing that surplus/excess staff under the same management must
be exhausted fully before making fresh appointments.
11. A Single Judge of the High Court vide order dated 7
th
December, 2021,
allowed the writ petition by setting aside the rejection of the proposal
and held that the respondent, as a standalone institution, was not bound
by the rule of recruiting surplus staff under the same management.
12. The writ appeal against the order of the Single Judge came to be
dismissed by a Division Bench of the High Court vide judgment and order
dated 22
nd
July, 2022, which is impugned in these appeals by the State
of Tamil Nadu and its officers.
13. Interestingly, the argument regarding the TET qualification was not
raised before the Madras High Court and is being raised for the first time
in the present appeal. The State of Tamil Nadu has contended that the
teachers sought to be appointed did not possess the TET qualification
and hence, their proposal for appointment should be rejected on that
ground alone.
IMPUGNED ORDER IN CIVIL APPEAL NOS. 1364 - 1367 OF 2025
14. The common order under challenge in these appeals, dated 1
st
April
2019, was passed by the Bombay High Court on four writ petitions
12
.
Interim relief was granted thereby in favour of the writ petitioners.
12
Writ Petition Nos. 3951, 4044, 9446 and 9447 of 2016
9
15. In 2015, the Bombay Memon’s Education Society, a registered minority
society, had appointed Shikshan Sevaks/teachers for a school run by it,
viz. Shree Ram Welfare Society’s High School. In 2018, the Municipal
Corporation of Greater Mumbai
13
, through its Education Department
informed these teachers of the requirement to qualify the TET by 30
th
March, 2019 and directed the school to terminate the services of those
who failed to comply.
16. Challenging these directions, the affected teachers filed the said four
writ petitions. The Bombay High Court granted interim stay on the
MCGM’s directives and also directed that the salaries of the teachers be
released. Aggrieved thereby, the MCGM has preferred the present
appeals.
IMPUGNED JUDGMENT IN CIVIL APPEAL NOS. 1389, 1390, 1391, 1393, 1395,
1396, 1397, 1398, 1399, 1401, 1403, 1404, 1405, 1406, 1407, 1408,
1409, 1410 OF 2025
17. The common judgment dated 2
nd
June, 2023 under challenge in these
appeals was passed by the Madras High Court in its intra -court writ
appeal jurisdiction. Several individual teachers working in minority as
well as non-minority schools in Tamil Nadu petitioned the Madras High
Court aggrieved by Notification F.No.61-03/20/2010/NCTE/(N&S) dated
23
rd
August, 2010 issued by the NCTE which laid down minimum
qualification for appointment of teachers in classes I to VIII in a school
and also made the TET as the minimum qualification. By notification
13
MCGM
10
dated 29
th
July, 2011, certain amendments were made to the first
notification, without changing the requirement to qualify the TET.
Pursuant to the NCTE notifications, the Government of Tamil Nadu,
through its School Education (C2) Department, issued G.O. No.181
making the TET qualification mandatory for the State, to be conducted
by the Teachers Recruitment Board (TRB). These notifications along with
subsequent others, laying down the procedure for conduct of the TET,
were challenged before the Madras High Court.
18. The primary grievance of the petitioners — who had not cleared the TET
— was that they were being denied promotion, whilst the teachers who
possessed the TET had climbed the promotion ladder and were holding
higher posts. The petitioners, having been appointed prior to the
notification dated 23
rd
August, 2010, contended that they were not
required to possess the TET qualification either for promotion or for
continued service. According to them, the TET could not be treated as a
condition precedent for their continuation in service.
19. On the other hand, a separate batch of petitioners had approached the
Madras High Court seeking a declaration that a G.O. Ms. No.13 issued
by the School Education Department on 30
th
January, 2020, framing
Special Rules for the Tamil Nadu Elementary Education Subordinate
Service and restricting the requirement of the TET to direct recruitment,
was ultra vires the RTE Act and subsequent notifications issued
thereunder by the NCTE. It was contended that in -service candidates
11
who did not possess the TET qualification could not be conferred
promotion.
20. Several teachers, who had been promoted without possessing the TET
qualification, also approached the Madras High Court by way of separate
petitions, seeking the grant of annual increments on account of their
promotions.
21. Upon extensive analysis of the submissions and considering the relevant
law, the Madras High Court held that any teacher appointed as
secondary grade teacher or graduate teacher/BT Assistant prior to 29
th
July, 2011 could continue in service and receive increments and
incentives, however, it was mandatory for teachers aspiring for
promotion to possess the TET qualification. The Court further held that
all appointments made after 29
th
July, 2011 on the post of Secondary
Grade Teacher must be of candidates possessing the TET qualification.
Likewise, all appointments on the posts of BT Assistant/Graduate
Teacher made after 29th July, 2011 – whether by direct recruitment or
by promotion – must also meet the TET requirement.
22. The Special Rules for the Tamil Nadu School Educational Subordinate
Service, dated 30
th
January, 2020, insofar as they prescribed “a pass in
Teacher Eligibility Test (TET)” only for direct recruitment and not for
promotion were struck down, consequently holding the TET mandatory
for appointment even by promotion.
23. As regards the requirement of qualifying the TET for appointment of
teachers in minority institutions, the Court referred to the decision of
12
this Court in Pramati Educational and Cultural Trust v. Union of
India
14
which held that TET will not apply to minority institutions. It was
made clear that the principles laid down in the judgment would not apply
to minority institutions (whether aided or unaided).
IMPUGNED JUDGMENT IN CIVIL APPEAL NO. 6364 OF 2025
24. This appeal, at the instance of the Union of India
15
, arises from the
judgment and order dated 8
th
January, 2019 passed by the Madras High
Court in its intra-court appellate jurisdiction dismissing the writ appeal
16
filed by the State of Tamil Nadu. As a consequence thereof, the order of
the Single Judge (under appeal allowing the writ petition
17
filed by M.A.
Stephen Sundar Singh
18
, respondent no.1 herein, was upheld. UoI was
not a party to the writ petition before the Madras High Court, but has
carried the said judgment in this civil appeal upon being granted
permission to file the Special Leave Petition.
25. Stephen was appointed as a Secondary Grade Teacher in TDTA Primary
and Middle School
19
– an aided minority institution. The appointment of
Stephen was communicated by the school to the District Elementary
Education Officer
20
, for confirmation. The DEEO, however, refused to
approve the appointment on the ground that Stephen had not qualified
14
(2014) 8 SCC 1
15
UoI
16
W.A.(M.D.) 21 of 2019
17
W.P.(M.D.) 10196 of 2018
18
Stephen
19
School
20
DEEO
13
the TET. Aggrieved by the rejection, Stephen filed the writ petition, which
was allowed by the High Court vide order dated 28
th
April, 2018.
26. A Division Bench of the High Court upheld the said judgment and order
dated 8
th
January, 2019 in light of Pramati Educational and Cultural
Trust (supra), consistent with the view that the RTE Act does not bind
minority institutions. Consequently, Stephen was held not to be required
to have cleared the TET, and the DEEO was directed to approve his
appointment.
27. Aggrieved, UoI has approached this Court.
SUMMARY OF THE JUDGMENTS
28. A brief summary of the views taken by the Bombay and the Madras High
Courts vide different judgments is encapsulated below:
IMPUGNED
JUDGMENT
VIEW TAKEN CIVIL APPEAL NOS.
BOMBAY HIGH COURT
12
th
December
2017
Held that TET was mandatory for
minority institutions.
1385-86 of 2025
1
st
April
2019
Granted interim relief to teachers
(teaching in minority institution) by
staying the directions which mandated
TET as a qualification.
1364 - 1367 of
2025
MADRAS HIGH COURT
TET was held to be mandatory for
teachers teaching in non -minority
institutions.
1389, 1390, 1391,
1393, 1395, 1396-
99, 1401, 1403 -
1410 of 2025
14
2
nd
June,
2023
As regards minority institutions, TET
was help inapplicable, in view of the
judgement of this Court in Pramati
Educational and Cultural Trust
(supra).
8
th
January,
2019
Took the view that TET does not bind
minority institutions.
6364 of 2025
22
nd
July,
2022
Did not consider the question of TET.
The same is being argued for the first
time before this Court.
6365 - 6367 of
2025
III. PREVIOUS DECISIONS CONCERNING THE RTE ACT
SOCIETY FOR UNAIDED PRIVATE SCHOOLS OF RAJASTHAN
29. A three-Judge Bench had the occasion to consider a challenge to the
constitutionality of the RTE Act, specifically to Sections 3, 12(1)(b) and
12(1)(c) thereof, in W.P. 95 of 2010 (Society for Unaided Private Schools
of Rajasthan v. Union of India) and other connected writ petitions. Vide
order dated 6
th
September, 2010
21
, the Bench of three-Judges had
referred the matter to a larger Bench. The reference order reads thus:
“1. Since the challenge involved raises the question as to the validity
of Articles 15(5) and 21-A of the Constitution of India, we are of the
view that the matter needs to be referred to the Constitution Bench
of five Judges.
2. Issue rule nisi. The learned Solicitor General waives service of the
rule. All the respondents are before us. The counter-affidavits be filed
within four weeks.
3. These petitions be placed before the Constitution Bench for
directions on a suitable date.”
21
(2012) 6 SCC 102
15
30. However, despite the aforesaid reference, the same remained
unanswered. The three-Judge Bench then proceeded to hear and dispose
of the matter by a majority of 2:1 vide its judgment in Society for
Unaided Private Schools of Rajasthan v. Union of India
22
.
31. The issue in Society for Unaided Private Schools of Rajasthan
(supra) is well encapsulated at paragraph 69 of the minority judgment,
reading thus:
“69. …………... Controversy in all these cases is not with regard to the
validity of Article 21-A, but mainly centres around its interpretation
and the validity of Sections 3, 12(1)(b) and 12(1)(c) and some other
related provisions of the Act, which cast obligation on all elementary
educational institutions to admit children of the age 6 to 14 years
from their neighbourhood, on the principle of social inclusiveness. The
petitioners also challenge certain other provisions purported to
interfere with the administration, management and functioning of
those institutions.”
32. The issues so framed were approved by the majority, as it appears from
the following passage:
“2. The judgment of *** fully sets out the various provisions of the
RTE Act as well as the issues which arise for determination, the core
issue concerns the constitutional validity of the RTE Act.”
33. Section 3 of the RTE Act affirms the right of a child between 6 and 14
years of age, to receive free and compulsory elementary education in a
neighbourhood school. Section 12(1)(c) read with Sections 2(n)(iii) and
(iv) imposes an obligation on unaided private educational institutions,
both minority and non-minority, to admit in Class I (and in pre-school,
if available) at least 25% of their strength from among children covered
under Sections 2(d) and 2(e). Section 12(1)(b) read with Sections
22
(2012) 6 SCC 1
16
2(n)(ii) provides imposes a similar obligation on aided private
educational institutions.
34. Per curiam, challenge to the constitutionality of most of the provisions
of the RTE Act was rejected. However, difference of opinion arose as to
the applicability of the RTE Act to unaided minority and unaided non-
minority educational institutions.
35. The minority view held that the RTE Act was not applicable to any
unaided educational institution – whether minority or non-minority – as
it infringed their Fundamental Rights under Articles 19(1)(g) and 30(1)
of the Constitution.
36. The minority also took the view that the obligation under Section 12
(1)(c) cannot be cast on unaided private institutions, whether minority
or non-minority. It was emphasized that private citizens running a
private school, receiving no aid from the State, have no constitutional
duty to assume the welfare responsibilities of the State. Citing the
decisions of this Court in T.M.A. Pai Foundation v. State of
Karnataka
23
and P. A. Inamdar v. State of Maharashtra
24
, the
learned Judge concluded that compulsory seat -sharing and fee
regulation by the State constituted an unjust encroachment on the
autonomy of such institutions and their Fundamental Rights under
Articles 19(1)(g) and 30(1). Furthermore, it was held, as regards
unaided institutions (whether minority or non-minority), that Section
23
(2002) 8 SCC 481
24
(2005) 6 SCC 537
17
12(1)(c) can be implemented only on the basis of voluntariness and
consensus, as otherwise, it may violate the autonomy of such
institutions. Accordingly, Section 12(1)(c) was read down as being
merely directory qua all unaided educational institutions (minority and
non-minority).
37. The majority, while agreeing that the RTE Act could not be applied to
unaided minority institutions in view of the protection under Article
30(1), held that the RTE Act, particularly the obligation imposed by
Section 12(1)(c), was applicable to aided minority institutions. The
majority reasoned that such a provision constituted a reasonable
restriction on the Fundamental Right under Article 19(1)(g), permissible
under Article 19(6).
38. The majority further held that Section 12(1)(c) meets the test of
reasonable classification under Article 14 of the Constitution and
constitutes a reasonable restriction on the right to establish and
administer educational institutions under Article 19(1)(g). Inter alia, the
court: (i) observed that Article 21-A left it for the State to determine by
law how the obligation of providing free and compulsory education may
be fulfilled; (ii) emphasized that the Fundamental Rights must be
interpreted in conjunction with the Directive Principles of State Policy,
and that any law which limits Fundamental Rights within the limits
justified by the Directive Principles can be upheld as a “reasonable
restriction” under Articles 19(2) to 19(6); (iii) underscored that since
education is a charitable activity (and not commercial), imposing an
18
obligation on educational institutions under Section 12(1)(c) constitutes
a reasonable restriction on their Fundamental Right under Article
19(1)(g),which is a qualified right; (iv) further traced that Section
12(1)(c) is a reasonable restriction as it advances the State’s obligation
to provide education; (v) clarified that the RTE Act does not override the
rights recognized in T.M.A. Pai Foundation (supra) and P. A. Inamdar
(supra), as those decisions pertained to higher/professional education
and did not address the interpretation of Article 21-A or the provisions
of the RTE Act.
PRAMATI EDUCATIONAL AND CULTURAL TRUST V. UNION OF INDIA
39. While the matter stood thus, W.P. (C) No. 416 of 2012 ( Pramati
Educational and Cultural Trust v. Union of India ) came up for
consideration before a Bench of two-judges. This Bench comprised of a
learned Judge who was a member of the three -Judge Bench that had
decided Society for Unaided Private Schools of Rajasthan (supra).
Incidentally, the three-Judge Bench had proceeded to decide Society
for Unaided Private Schools of Rajasthan (supra) despite there
being an earlier order of reference to a Constitution Bench [noted in
paragraph 9 (supra)]. In view of such earlier reference of the issues to
a Constitution Bench [noted in paragraph 9 (supra)], the said Bench vide
its order dated 22
nd
March, 2013
25
was of the opinion that the matter
ought to be heard by a larger Bench and, accordingly, directed that the
25
(2013) 5 SCC 752
19
same be placed before the Hon’ble the Chief Justice of India for its listing
before an appropriate bench. Thus, the lead writ petition and the
accompanying petitions came to be heard by a five-Judge Constitution
Bench of this Court leading to the judgment in Pramati Educational
and Cultural Trust (supra).
40. Pramati Educational and Cultural Trust (supra) considered the
validity of the Constitution (Ninety-third Amendment) Act, 2005
inserting clause (5) in Article 15 of the Constitution, and the
Constitution (Eighty-sixth Amendment) Act, 2002, which inserted Article
21-A in Part III as an additional independent fundamental right.
41. The Constitution Bench in Pramati Educational and Cultural Trust
(supra) framed specific questions for consideration, as under:
“(i) Whether by inserting clause (5) in Article 15 of the Constitution
by the Constitution (Ninety-third Amendment) Act, 2005, Parliament
has altered the basic structure or framework of the Constitution?
(ii) Whether by inserting Article 21-A of the Constitution by the
Constitution (Eighty-Sixth Amendment) Act, 2002, Parliament has
altered the basic structure or framework of the Constitution?”
42. Notably, the validity of the Constitution (Ninety-third Amendment) Act,
2005, which inserted clause (5) in Article 15, had been considered by a
Constitution Bench of this Court in Ashoka Kumar Thakur v. Union of
India
26
to the limited extent of its application to state-maintained
institutions and aided educational institutions. Relevant passages from
the decision in Ashoka Kumar Thakur (supra) read as under:
“668. The Constitution 93
rd
Amendment Act, 2005, is valid and does
not violate the "basic structure" of the Constitution so far as it relates
26
(2008) 6 SCC 1
20
to the State maintained institutions and aided educational
institutions. Question whether the Constitution (Ninety Third
Amendment) Act, 2005 would be constitutionally valid or not so far
as ‘private unaided’ educational institutions is concerned, is not
considered and left open to be decided in an appropriate case. Justice
***, in his opinion, has, however, considered the issue and has held
that the Constitution (Ninety Third Amendment) Act, 2005 is not
constitutionally valid so far as private un -aided educational
institutions are concerned.
669. Act 5 of 2007 is constitutionally valid subject to the definition
of ’Other Backward Classes’ in Section 2(g) of the Act 5 of 2007 being
clarified as follows: If the determination of ’Other Backward Classes’
by the Central 2 Government is with reference to a caste, it shall
exclude the ’creamy layer’ among such caste.
670. Quantum of reservation of 27% of seats to Other Backward
Classes in the educational institutions provided in the Act is not
illegal.
671. Act 5 of 2007 is not invalid for the reason that there is no time
limit prescribed for its operation but majority of the Judges are of the
view that the Review should be made as to the need for continuance
of reservation at the end of 5 years.”
(emphasis ours)
Therefore, effectively, what remained to be considered, qua issue no.(i)
in Pramati Educational and Cultural Trust (supra) was, whether the
amendment inserting clause 5 in Article 15 is valid or not, insofar as
private unaided instructions are concerned.
43. To ascertain the constitutionality of the Constitution (Ninety-third
Amendment) Act, 2005, the Bench considered the objects and reasons
of the Act and opined that the insertion of clause (5) to Article 15 is an
enabling provision. It observed that the amendment was brought forth
to fructify the object of equality of opportunity provided in the Preamble
to the Constitution. The court relied on the judgment of State of Kerala
21
v. N.M. Thomas
27
which held that clause (4) of Article 16 of the
Constitution is not an exception or a proviso to Article 16. Drawing an
inference, it was observed that the opening words of clause (5) of Article
15 are similar to the opening words of clause (4) of Article 16 and thus
held that Article 15(5) cannot be read as an exception to Article 15, but
is an enabling provision intended to give equality of opportunity to
backward classes of citizens in matters of public employment.
44. The validity of clause (5) of Article 15 of the Constitution was then tested
against the right enshrined under Article 19(1)(g) of the Constitution
and the court held as thus:
“28. ………………………… . In our view, all freedoms under which Article
19(1) of the Constitution, including the freedom under Article
19(1)(g), have a voluntary element but this voluntariness in all the
freedoms in Article 19(1) of the Constitution can be subjected to
reasonable restrictions imposed by the State by law under clauses
(2) to (6) of Article 19 of the Constitution. Hence, the voluntary
nature of the right under Article 19(1)(g) of the Constitution can be
subjected to reasonable restrictions imposed by the State by law
under clause (6) of Article 19 of the Constitution. As this Court has
held in T.M.A. Pai Foundation [T.M.A. Pai Foundation v. State of
Karnataka, (2002) 8 SCC 481] and P.A. Inamdar [P.A. Inamdar v.
State of Maharashtra, (2005) 6 SCC 537] the State can under clause
(6) of Article 19 make regulatory provisions to ensure the
maintenance of proper academic standards, atmosphere and
infrastructure (including qualified staff) and the prevention of
maladministration by those in charge of the management. However,
as this Court held in the aforesaid two judgments that nominating
students for admissions would be an unacceptable restriction in
clause (6) of Article 19 of the Constitution, Parliament has stepped in
and in exercise of its amending power under Article 368 of the
Constitution inserted clause (5) in Article 15 to enable the State to
make a law making special provisions for admission of socially and
educationally backward classes of citizens or for the Scheduled Castes
and Scheduled Tribes for their advancement and to a very limited
extent affected the voluntary element of this right under Article
19(1)(g) of the Constitution. We, therefore, do not find any merit in
27
(1976) 2 SCC 310
22
the submission of the learned counsel for the petitioners that the
identity of the right of unaided private educational institutions under
Article 19(1)(g) of the Constitution has been destroyed by clause (5)
of Article 15 of the Constitution.”
45. The Court further observed that clause (5) of article 15, which excluded
the application of Article 19(1)(g), was constitutional and would not be
in violation of the decisions of this court in T.M.A. Pai Foundation
(supra), as subsequently followed in P. A. Inamdar (supra). Thus, on
this count as well, it was held that the exception provided in clause (5)
of Article 15 was reasonable, and as such this court upheld the validity
of Constitution (Ninety-third Amendment) Act, 2005, inserting clause (5)
of Article 15.
46. The Bench then considered the validity of the Constitution (Eighty-sixth
Amendment) Act, 2002.
47. It was noticed that the majority in Society for Unaided Private
Schools of Rajasthan (supra) had upheld the constitutionality of the
RTE Act with a caveat that it would be inapplicable to unaided minority
institutions. In that context, it was observed thus:
“4. Article 21-A of the Constitution reads as follows:
21-A.Right to education .—The State shall provide free and
compulsory education to all children of the age of six to fourteen
years in such manner as the State may, by law, determine.’
Thus, Article 21-A of the Constitution, provides that the State shall
provide free and compulsory education to all children of the age of
six to fourteen years in such manner as the State may, by law,
determine. Parliament has made the law contemplated by Article 21-
A by enacting the Right of Children to Free and Compulsory Education
Act, 2009 (for short “the RTE Act”). The constitutional validity of the
RTE Act was considered by a three -Judge Bench of the Court
in Society for Unaided Private Schools of Rajasthan v. Union of
23
India [(2012) 6 SCC 1]. Two of the three Judges have held the RTE
Act to be constitutionally valid, but they have also held that the RTE
Act is not applicable to unaided minority schools protected under
Article 30(1) of the Constitution. In the aforesaid case, however, the
three-Judge Bench did not go into the question whether clause (5) of
Article 15 or Article 21-A of the Constitution is valid and does not
violate the basic structure of the Constitution. In this batch of writ
petitions filed by the private unaided institutions, the constitutional
validity of clause (5) of Article 15 and of Article 21-A has to be decided
by this Constitution Bench.”
(emphasis ours)
48. The validity of the Constitution (Eighty-sixth Amendment) Act, 2002,
which inserted Article 21A to the Constitution of India, was considered
on the anvil of the basic structure doctrine as expounded in the landmark
decision of this Court in Kesavananda Bharati v. State of Kerala
28
.
Answering the issue in the negative, the Bench held that Parliament was
within its bounds to insert Article 21-A and as such, the amendment
would not be in violation of the basic structure doctrine.
49. Thereafter, the Court considered the objects and reasons of the
Constitution (Eighty-third Amendment) Bill, 1997, which ultimately
resulted in the enactment of the Constitution (Eighty-sixth Amendment)
Act, 2002, and observed that the amendment was brought in force to
satisfy the obligation under Article 45 of the Indian Constitution. The
Bench, upon extracting the objects and reasons, opined thus:
“48. …It will, thus, be clear from the Statement of Objects and
Reasons extracted above that although the directive principle in
Article 45 contemplated that the State will provide free and
compulsory education for all children up to the age of fourteen years
within ten years of promulgation of the Constitution, this goal could
not be achieved even after 50 years and, therefore, a constitutional
amendment was proposed to insert Article 21 -A in Part III of the
28
(1973) 4 SCC 225
24
Constitution. Bearing in mind this object of the Constitution (Eighty-
sixth Amendment) Act, 2002 inserting Article 21 -A of the
Constitution, we may now proceed to consider the submissions of the
learned counsel for the parties.”
50. Interpreting the word ‘State’ in Article 21A, it was held that ‘State’ would
mean the State which can make the law. This, the Bench held, was the
dicta of the 11-judge Constitution Bench of this Court in T.M.A. Pai
Foundation (supra). It was held that Article 21A must be construed
harmoniously with Article 19(1)(g) and Article 30(1). It then proceeded
to observe as follows:
“49. Article 21-A of the Constitution, as we have noticed, states that
the State shall provide free and compulsory education to all children
of the age of six to fourteen years in such manner as the State may,
by law, determine. The word ‘State’ in Article 21-A can only mean the
‘State’ which can make the law. Hence, Mr Rohatgi and Mr Nariman
are right in their submission that the constitutional obligation under
Article 21-A of the Constitution is on the State to provide free and
compulsory education to all children of the age of 6 to 14 years and
not on private unaided educational institutions. Article 21-A, however,
states that the State shall by law determine the ‘manner’ in which it
will discharge its constitutional obligation under Article 21-A. Thus, a
new power was vested in the State to enable the State to discharge
this constitutional obligation by making a law. However, Article 21-A
has to be harmoniously construed with Article 19(1)(g) and Article
30(1) of the Constitution. As has been held by this Court
in Venkataramana Devaru v. State of Mysore [AIR 1958 SC 255]:
(AIR p. 268, para 29)
‘29. … The rule of construction is well settled that when there
are in an enactment two provisions which cannot be reconciled
with each other, they should be so interpreted that, if possible,
effect could be given to both. This is what is known as the rule
of harmonious construction.’
We do not find anything in Article 21-A which conflicts with either the
right of private unaided schools under Article 19(1)(g) or the right of
minority schools under Article 30(1) of the Constitution, but the law
made under Article 21-A may affect these rights under Articles
19(1)(g) and 30(1). The law made by the State to provide free and
compulsory education to the children of the age of 6 to 14 years
should not, therefore, be such as to abrogate the right of unaided
25
private educational schools under Article 19(1)(g) of the Constitution
or the right of the minority schools, aided or unaided, under Article
30(1) of the Constitution.”
51. Thus, this Court upheld the validity of the Constitution (Eighty-sixth
Amendment) Act, 2002, and proceeded to hold that the RTE Act, insofar
it is made applicable to minority schools referred to in Article 30(1), is
ultra vires the Constitution of India. While overruling the decision in
Society of Unaided Private Schools of Rajasthan (supra) insofar as
it held that the RTE Act was applicable to aided minority schools, it was
further held that the RTE Act, insofar as it is made applicable to minority
schools covered under Article 30(1), aided or unaided, is ultra vires the
Constitution. It was concluded thus:
“55. When we look at the RTE Act, we find that Section 12(1)(b) read
with Section 2(n)(ii) provides that an aided school receiving aid and
grants, whole or part, of its expenses from the appropriate
Government or the local authority has to provide free and compulsory
education to such proportion of children admitted therein as its
annual recurring aid or grants so received bears to its annual
recurring expenses, subject to a minimum of twenty -five per cent.
Thus, a minority aided school is put under a legal obligation to provide
free and compulsory elementary education to children who need not
be children of members of the minority community which has
established the school. We also find that under Section 12(1)(c) read
with Section 2(n)(iv), an unaided school has to admit into twenty-
five per cent of the strength of Class I children belonging to weaker
sections and disadvantaged groups in the neighbourhood. Hence,
unaided minority schools will have a legal obligation to admit children
belonging to weaker sections and disadvantaged groups i n the
neighbourhood who need not be children of the members of the
minority community which has established the school. While
discussing the validity of clause (5) of Article 15 of the Constitution,
we have held that members of communities other than the m inority
community which has established the school cannot be forced upon
a minority institution because that may destroy the minority
character of the school. In our view, if the RTE Act is made applicable
to minority schools, aided or unaided, the right of the minorities
26
under Article 30(1) of the Constitution will be abrogated. Therefore,
the RTE Act insofar it is made applicable to minority schools referred
in clause (1) of Article 30 of the Constitution is ultra vires the
Constitution. We are thus of the view that the majority judgment of
this Court in Society for Unaided Private Schools of
Rajasthan v. Union of India [(2012) 6 SCC 1] insofar as it holds that
the RTE Act is applicable to aided minority schools is not correct.
56. In the result, we hold that the Constitution (Ninety -third
Amendment) Act, 2005 inserting clause (5) of Article 15 of the
Constitution and the Constitution (Eighty-sixth Amendment) Act,
2002 inserting Article 21-A of the Constitution do not alter the basic
structure or framework of the Constitution and are constitutionally
valid. We also hold that the RTE Act is not ultra vires Article 19(1)(g)
of the Constitution. We, however, hold that the RTE Act insofar as it
applies to minority schools, aided or unaided, covered under clause
(1) of Article 30 of the Constitution is ultra vires the Constitution.
Accordingly, Writ Petition (C) No. 1081 of 2013 filed on behalf of
Muslim Minority Schools Managers' Association is allowed and Writ
Petitions (C) Nos. 416 of 2012, 152 of 2013, 60, 95, 106, 128, 144-
45, 160 and 136 of 2014 filed on behalf of non -minority private
unaided educational institutions are dismissed. All IAs stand disposed
of. The parties, however, shall bear their own costs.”
(emphasis ours)
For ease of reference, the decisions of this Court in so far as the applicability
of the RTE Act, considered in Society for Unaided Private Schools of
Rajasthan (supra) and Pramati Educational & Cultural Trust (supra),
are encapsulated in the table below:
Whether the RTE Act is applicable to educational institutions:
Society for Unaided Private Schools of Rajasthan (supra)
Aided Unaided
Minority
Non-minority
Pramati Educational & Cultural Trust (supra)
27
Aided Unaided
Minority
Non-minority
IV. ARGUMENTS OF THE PARTIES
52. Learned senior counsel and counsel for the respective parties were heard
at length. We also requested Mr. Venkatram ani, learned Attorney
General for India to address us on the issue and to assist us in reaching
the correct conclusion.
53. Accordingly, in support of the issues that Pramati Educational and
Cultural Trust (supra) may be referred for reconsideration and also
that qualifying the TET is mandatory, we have heard the learned
Attorney General, Mr. Nataraj, learned Additional Solicitor General, and
a host of other senior advocates and advocates, in favour as well as
opposing the prayer for a reference and the TET being mandatory,
referred to above.
54. In order to maintain brevity and avoid repetition of the arguments by
counsel, a summary of the submissions on either side is provided
hereafter.
55. Those opposing reconsideration contended that:
a. There is no State legislation in place making the TET as mandatory
for appointment of teachers in the State of Maharashtra.
28
b. Strict TET requirement amid low pass rates and rising teacher
demand will lead to shortage of teachers which will undermine the
objectives of the RTE Act.
c. Law made in exercise of the mandate of Article 21A should not
abrogate the rights of minority educational institutions under Article
30(1) of the Constitution.
d. Section 1(4) of the RTE Act itself provides that the provisions of the
RTE Act are subject to Articles 29 and 30 of the Constitution – hence
RTE Act is not applicable to minority institutions.
e. TET is not a ‘minimum qualification’ under Section 23 of the RTE Act,
but it is merely an eligibility test to assess teaching aptitude and
should not be equated with a minimum qualification.
f. The phrase ‘appointment as a teacher’ under Section 23 of the RTE
Act should be read to mean ‘initial appointment as a teacher’ and
would not include appointment by promotion to any grades
subsequently and hence it is sufficient that the teacher concerned has
necessary minimum qualification at the time of first appointment.
g. In Section 23(1), ‘appointment as teacher’ refers to appointment
from external sources and not from internal sources.
h. TET is not mandatory but only directory as: (i) Notification dated 23
rd
August, 2010, limits TET to classes I–VIII, despite NCTE's authority
under Section 12A of the National Council for Teacher Education Act,
29
1993
29
to set qualifications up to the intermediate level; (ii) clauses 3
and 4 of the same notification allow exceptions where the TET is not
required for appointment or continuation as a teacher; and (iii)
consequences of not qualifying the TET are not provided in the RTE
Act.
i. Teachers appointed to classes I to VIII prior to the date of the
notification dated 23
rd
August 2010 (vide which NCTE laid down
minimum qualifications for appointment of teachers for classes I to V
and classes VI to VIII) would not be required to pass the TET for their
appointment to remain valid, for, the said notification does not
provide for minimum qualifications for promotions.
j. The valid and invalid provisions of the RTE Act are inseparable and,
thus, the entire RTE Act cannot apply to minorities and if, at all, the
issue must be referred to a larger Bench, the same has to be
restricted to the applicability of Section 23 of the RTE Act.
k. The Constitution Bench in Pramati Educational and Cultural Trust
(supra) upheld the exemption granted to minorities under Article
15(5), to protect the minority character of the institutions, and to
prevent the majority from making a law permitting others to be
imposed in a minority institution.
29
NCTE Act
30
l. Society for Unaided Private Schools of Rajasthan (supra) held
that minority educational institutions under Article 30(1) form a
separate category of institutions.
m. In Pramati Educational & Cultural Trust (supra), this Court, going
a step further from what was held in Society for Unaided Private
Schools of Rajasthan (supra) held that all minority institutions,
whether aided or unaided, would not fall within the purview of the
RTE Act.
n. In view of Pramati Educational & Cultural Trust (supra), the RTE
Act cannot apply to minority institutions, and would be in violation of
Article 30. Furthermore, if the RTE Act in its entirety does not apply,
the question of applying sections 12 or 23 of the RTE Act, does not
arise.
o. The subject matter in Society for Unaided Private Schools of
Rajasthan (supra) was with respect to the validity of the RTE Act,
whereas, Pramati Educational & Cultural Trust (supra)
considered the validity of both Article 15(5) and Article 21A.
p. Imposing TET qualification for promotion may cause stagnation,
which could not have been the intention of the Parliament.
Opportunity for promotion is vital in public service, for, promotion
boosts proficiency, while stagnation hampers effectiveness (see CSIR
vs. KGS Bhatt
30
);
30
(1989) 4 SCC 635
31
q. There cannot be retrospective removal of right of promotion .
Retrospectively revoking benefits acquired under existing rules would
violate Articles 14 and 16 of the Constitution (see T.R. Kapur vs.
State of Haryana
31
).
56. Supporting the plea for a reference to reconsider Pramati Educational
& Cultural Trust (supra) and that the TET qualification is mandatory,
arguments as follows were advanced:
a. The right of each and every child to be taught by qualified teachers
is integral to Right to Education. This right cannot be limited or
impeded, except to the limited extent provided for under Article 29
or Article 30 of the Constitution.
b. Laying down higher standards is the logic of enhancing knowledge
acquisition and is an independent facet of the right to education. The
management of minority educational institution has no right to
interfere with the educational rights of the children.
c. To exempt a particular category of institutions would be contrary to
Article 21A of the Constitution of India and create an artificial
distinction. The State holds a positive obligation to ensure that every
child, irrespective of caste, creed or religion, receives quality
education on equal footing.
d. Article 30, granting the minorities a right to establish and administer
educational institutions of their choice, does not override the State’s
duty to ensure that the quality of education imparted remains
31
1986 Supp SC 584
32
consistent across all institutions. Even if an educational institution is
an aided minority institution, it does not provide a constitutionally
valid exemption for applying a different eligibility criterion for the
recruitment and promotion of teachers based on religion or language.
While considering T.M.A. Pai Foundation (supra), Secy.,
Malankara Syrian Catholic College v. T. Jose
32
held that the right
of minorities to administer minority institutions under Article 30 is not
to place the minorities in a better or more advantageous position.
There cannot be reverse discrimination in favour of the minorities.
The freedom to appoint teachers and lecturers would be subject to
eligibility conditions/ qualifications.
e. A classification that seeks to differentiate the eligibility criteria for
teachers based on the religious character of an institution would
create an unreasonable distinction between children studying in
minority-aided institutions and those in other institutions, violating
Articles 14 and 21A.
f. The exemption from adhering to essential eligibility norms, i.e., the
TET, would be an arbitrary classification, based neither on intelligible
differentia nor bears any rational nexus with the objective sought to
be achieved. This would violate Article 14 and deprive the students
of the standard of education available in other institutions.
g. The burden on the State to select quality teachers lies entirely on the
State. In such process, the State has an obligation and authority to
32
(2007) 1 SCC 386
33
regulate the quality of education, including education imparted in
minority educational institutions. T.M.A. Pai Foundation (supra), as
reiterated in Brahmo Samaj Education Society & Ors. v. State of
West Bengal
33
, Sindhi Education Society v. Chief Secretary
Govt. of Delhi
34
, Chandana Das (Malkar) v. State of West
Bengal
35
, were cited.
h. The educational institutions may have the liberty to grant relaxation
to meet exigent circumstances, however, such relaxations may not
continue indefinitely; also, relaxations cannot be granted to distort
the regulation of recruitment. Reliance was placed on Committee of
Management, Vasanta College for Women v. Tribhu wan Nath
Tripathi
36
and Food Corpn. of India v. Bhanu Lodh
37
.
i. TET is a mandatory and an indispensable qualification/eligibility
criterion to ensure the maintenance of quality education, irrespective
of their classification as minority/majority or aided/un -aided
institutions. TET applies to recruitment and promotions, subject to
statutory rules.
j. The NCTE Act was amended to insert Section 12A, which gave effect
to Section 23 of the RTE Act, granting power to the Council to
determine minimum standards of education of school teachers. The
National Council for Teachers Education (Determination of Minimum
33
(2004) 6 SCC 224
34
(2010) 8 SCC 49
35
(2015) 12 SCC 140
36
(1997) 2 SCC 560
37
(2005) 3 SCC 618
34
Qualifications for Persons to be Recruited as Education Teachers and
Physical Education Teachers in Pre-primary, Primary, Upper Primary,
Secondary, Senior Secondary or Intermediate Schools or Colleges)
Regulations, 2014
38
are to be read along with Section 12A of the
NCTE Act which refers to notification relaxing qualification by
notification dated 23
rd
August, 2010 to interpret that the TET and
other minimum qualifications are mandated and could have been
obtained by teachers within 9 years as specified under the RTE Act
and the NCTE Rules/Regulations.
k. Articles 15(5), 15(6) and 21A must be treated as the trilogy of
education rights. Merely because Articles 15(5) and 15(6) exclude
minority institutions from its scope, it must not be construed that
they are relieved from their social justice obligation to aid and assist
the emancipation of weaker sections of the society. While the State
may not interfere with the right of management of the minority
institutions, it does not mean that they cannot be called upon to share
the obligations of social justice under Articles 15 and 21A of the
Constitution. Thus, the State may not insist upon minority institutions
to abide by Section 23 of the RTE Act unconditionally, but it can
subject them to other regulatory measures. Minority institutions may
be subject to absolutely minimal and negative controls. It will be a
travesty of Constitutional scheme of attainment of excellence if such
exclusions are provided.
38
2014 Regulations
35
l. A composite reading of Section 23(2) of the RTE Act along with the
proviso thereto would reveal that the RTE Act provides 9 years for
the teachers to acquire such minimum qualifications, as may be
prescribed. Right of Children to Free and Compulsory Education
Rules, 2010
39
, framed under the RTE Act, must be read along with
Section 23.
m. In exercise of powers under Section 35(1) of RTE Act, the Ministry of
Human Resource Development, Government of India
40
has issued
guidelines vide communication F No. 1 -15/2010 EE4 dated 08
th
November, 2010 for implementation and relaxation of qualifications
under Section 23(2) of the RTE Act, conveying that the condition of
passing the TET cannot be relaxed by the Central Government.
n. The National Council for Teacher Education (Determination of
Minimum Qualifications for Recruitment of Teachers in Schools)
Regulations, 2001 were framed under the NCTE Act. NCTE also issued
a notification dated 23
rd
August, 2010 mandating TET for
appointment of teachers for standards I to VIII. In furtherance of this
notification, NCTE also issued guidelines dated 11
th
February, 2011
for conducting the TET.
o. MHRD vide D.O.No.17-2/2017-EE.17 dated 03
rd
August, 2017 issued
to all States and Union Territories reiterated the last chance being
given to acquire the requisite minimum qualifications and also warned
39
RTE Rules
40
MHRD
36
that in-service teachers would not be allowed to continue beyond 01
st
April, 2019 without acquiring the requisite minimum qualifications.
p. In terms of Union of India v. Pushpa Rani
41
, as reiterated in
Hardev Singh v. Union of India
42
, the employer (being the State)
has the absolute right of fixing the qualifications for recruitment and
promotion and that the court cannot sit in appeal over the discretion
of the employer. The policy of employment and promotion is the
exclusive domain of the employer, as per J. Ranga Swamy v. Govt.
of Andhra Pradesh
43
. Also, there is no vested right to promotion is
the law settled by Union of India v. Krishna Kumar
44
.
q. Judgment of a larger Bench of this Court can be explained by a
smaller bench. Similarly, the judgment in Pramati Educational &
Cultural Trust (supra), in particular paragraph 55, can be
adequately explained in the present case by providing a context to
the RTE Act with the NCTE scheme. Only in the event that this
exercise cannot be undertaken, the question of reference to a larger
Bench may arise.
r. Paragraph 55 of Pramati Educational & Cultural Trust (supra) is
merely obiter dicta and will not lead to a conclusion insofar as
applicability/eligibility criteria for appointment of teachers is
41
(2008) 9 SCC 242
42
(2011) 10 SCC 121
43
(1990) 1 SCC 288
44
(2019) 4 SCC 319
37
concerned. Applicability of the RTE Act to minority institutions was
incidental to the main issue and not essential to the decision.
s. In Pramati Educational & Cultural Trust (supra), this Court was
never called upon to decide the constitutional validity of the entire
RTE Act or even Section 23 thereof. The Court was restricted to the
validity of the Constitution (Ninety-third) Amendment Act, 2005 and
Constitution (Eighty-sixth) Amendment Act, 2002. It cannot be said
that the Constitution Bench in Pramati Educational & Cultural
Trust (supra) was seized of the question as to whether the entire
RTE Act was unconstitutional.
t. Regulation of teachers’ qualification, such as the TET, fall within the
permissible regulatory measure as the object is to maintain
educational quality and standards. Application of paragraph 55 of
Pramati Educational & Cultural Trust (supra) as a strait-jacket
principle would lead to untenable position where students in minority
institutions would be taught by teachers who do not meet the
minimum qualification, thereby compromising educational quality.
Pramati Educational and Cultural Trust (supra) did not lay down
any binding law to hold the entirety of the RTE Act as unconstitutional
and its observations must be restricted to Section 12(1)(c).
u. As held in Zee Telefilms v Union of India
45
, judgments of this Court
should not be read like a statute or Euclid’s theorems; observations
made therein must be read in the context in which it appears. A point
45
(2005) 4 SCC 649
38
which was not raised before the Court would not be an authority on
the said question and that per B. Shama Rao v. Union Territory of
Pondicherry
46
, a decision is binding not because of its conclusion
but what is binding is its ratio and the principle laid down therein.
v. State of Orissa v. Sudhanshu Sek har Misra
47
and Director of
Settlements, Andhra Pradesh v. M.R. Appa Rao
48
were placed to
emphasize the role of this Court in interpreting its judgments.
Further, the dissenting opinion authored by Hon'ble A.P. Sen J., in
Dalbir Singh v. State of Punjab
49
was cited to emphasize on the
phrase ‘law declared’ under Article 141, to limit its application in the
facts and context of the matter in which the case was decided. On
the principle of binding value of judgment wherein a conclusion of law
was neither raised nor preceded by consideration, reference was
made to the judgment in the case of State of UP v. Synthetics &
Chemicals Ltd.
50
Further, reliance was placed on Arnit Das v. State
of Bihar
51
that a judgment rendered sub-silentio cannot be deemed
to be a law declared to have a binding effect as contemplated under
Article 141. Also, on the principle of sub-silentio, Madhav Rao Jivaji
Rao Scindia v. Union of India
52
was cited.
46
AIR 1967 SC 1480
47
(1968) 2 SCR 154
48
(2002) 4 SCC 638
49
(1979) 3 SCC 745
50
(1991) 4 SCC 139
51
(2000) 5 SCC 488
52
(1971) 1 SCC 85
39
w. Thus, this Court would be within its authority to explain the
precedential value of a larger Bench judgment, only in cases where
the ratio and the conclusions do not match. The authority that this
Court possesses to explain a previous judgment will be treated as an
integral part of its constitutionally acknowledged adjudicatory
process.
x. The authority available to the State Government under Article 309 is
a general power and must yield to the special statutory authority
enacted under the NCTE Act. Consequently, rules or executive orders
issued by the State Government to keep the application of the NCTE
Regulations out of reckoning will also be bad in law.
y. In Christian Medical College Vellore Assn. v. Union of India
53
,
considering the issue of applicability of the National Eligibility cum
Entrance Test, this Court held that minority institutions are equally
bound to comply with the conditions imposed under the relevant Act
and Regulations, which apply to all institutions. The National
Education Policy (NEP), 2020 also makes the TET mandatory for all
levels of teaching. The right to administer minority institutions does
not grant the right to mal-administer an institution to the detriment
of the students.
z. In case of transition between two realms or settings, relaxations may
be implemented. When in such a scenario the State is found to be
lacking in its policy, provisions of Article 142 may be invoked. In the
53
(2020) 8 SCC 705
40
present set of facts, Section 23 of the RTE Act read with Section 12A
of the NCTE Act have been enacted by the Legislature towards
reasonable transition process. If the teachers appointed prior to the
cut-off date fail to adhere to the statute, their case may deserve a
differential treatment but not to the extent of altering the core
meaning of the statute.
V. THE ACTS, RULES, REGULATIONS AND NOTIFICATIONS
57. After introduction of the RTE Act, the NCTE Act came to be amended to
make it in line with Article 21A of the Constitution as well as the RTE
Act. The long title of the NCTE Act was also amended to include the
regulation of qualifications of school teachers.
58. Further, Section 1 was amended to include sub-section (4), which made
the NCTE Act applicable to schools’ imparting pre -primary, primary,
upper-primary, secondary or senior secondary schools. Section 2 was
amended to include the definition of school which, among other things,
included schools not receiving any aid or grants to meet whole or part
of its expenses from a government or local authority.
59. The amendment that assumes primacy for the present issue was the
insertion of section 12A, the marginal note of which reads, ‘Power of
Council to determine minimum standards of education of school
teachers’. The aforesaid section permits the Council, i.e., the NCTE, to
determine the qualifications of teachers in schools, by way of
regulations. The further proviso to this section provides that the
41
minimum qualifications of a teacher must be acquired within the period
specified in the NCTE Act or the RTE Act.
60. Section 23 of the RTE Act authorizes the Central Government to
authorize an academic authority to lay down “minimum qualifications”
for being eligible to be appointed as a teacher:
“23. Qualifications for appointment and terms and
conditions of service of teachers. —(1) Any person
possessing such minimum qualifications, as laid down by an
academic authority, authorised by the Central Government, by
notification, shall be eligible for appointment as a teacher. …”
61. In exercise of such powers, the Central Government vide Notification No.
S.O. 750(E) dated 31
st
March, 2010 appointed NCTE as the “academic
authority” to lay down the minimum qualifications for a person to be
eligible for appointment as a teacher.
62. Pursuant thereto, NCTE vide Notification F.No. 61 -
03/20/2010/NCTE/(N&S) dated 23
rd
August, 2010 laid down minimum
qualifications for a person to be eligible for appointment as a teacher in
classes I to VIII in a school referred to in clause (n) of Section 2 of the
RTE Act
54
. This is when the TET was made mandatory for the first time.
54
1 Minimum Qualifications. –
(i) Classes I-V
(a) Senior Secondary (or its equivalent) with at least 50% marks and 2 -year
diploma in Elementary Education (by whatever name known)
OR
***********
AND
(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the
appropriate Government in accordance with the Guidelines framed by the NCTE for
the purpose.
(ii) Classes VI-VIII
(a) B.A/B.SC and 2 -year Diploma in Elementary Education (by whatever
name known)
42
Clause 3
55
of the notification provided for compulsory training for certain
categories of teachers.
Clause 4
56
excluded certain categories of teachers from the requirement
of attaining minimum qualifications specified in paragraph (1).
As per clause 5
57
, if any advertisement for appointment of teachers had
already been issued prior to the date of the notification, such
OR
****************
AND
(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the
appropriate Government in accordance with the Guidelines framed
by the NCTE for the purpose.
55
3. Training to be undergone .- A person
(a) with BA/ B.Sc. with at least 50% marks and B. Ed qualification shall also be
eligible for appointment for class I to V up to 1st January, 2012, provided he
undergoes, after appointment, an NCTE recognized 6-month special programme in
Elementary Education.
(b) with D. Ed (Special Education) or B. Ed (Special Education) qualification shall
undergo, after appointment an NCTE recognized 6 -month special programme in
Elementary Education.
56
4. Teacher appointed before the date of this Notification. - The following
categories of teachers appointed for classes I to VIII prior to date of this Notification need
not acquire the minimum qualifications specified in Para (1) above:
(a) A teacher appointed on or after the 3rd September, 2001 i.e. the date on which
the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in
Schools) Regulations, 2001 (as amended from time to time) came into force, in
accordance with that Regulation.
Provided that a teacher of class I to V possessing B. Ed qualification, or a teacher
possessing B. Ed (Special Education) or D. Ed (Special Education) qualification shall
undergo an NCTE recognized 6 - month special programme on elementary
education.
(b) A teacher of class I to V with B. Ed qualification who has completed a 6-month
Special Basic Teacher Course (Special BTC) approved by the NCTE;
(c) A teacher appointed before the 3" September 2001, in accordance with the
prevalent Recruitment Rules.
57
5. Teacher appointed after the date of this Notification in certain cases. -
Where an appropriate Government or local authority or a school has issued an
advertisement to initiate the process of appointment of teachers prior to the date of this
Notification, such appointments may be made in accordance with the NCTE (Determination
of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as
amended from time to time).
43
appointments were to be made in accordance with the NCTE
Regulations, 2001.
63. By three subsequent notifications
58
, NCTE made amendments in the
notification dated 23
rd
August, 2010. Inter alia, certain changes were
made in clause 1 (which laid down minimum qualifications for
appointment) regarding the educational requirement. Without going
much into the details of the amendment, suffice it is to mention that the
mandatory requirement of TET remained unchanged.
64. We consider it important to refer to certain parts of the notification dated
11
th
February, 2011 issued by NCTE vide which guidelines were issued
for conducting the TET examination, highlighting the rationale for
mandating the TET:
“3 The rationale for including the TET as a minimum qualification for
a person to be eligible for appointment as a teacher is as under:
i. It would bring national standards and benchmark of teacher
quality in the recruitment process;
ii. It would induce teacher education institutions and students
from these institutions to further improve their performance
standards;
iii. It would send a positive signal to all stakeholders that the
Government lays special emphasis on teacher quality”
65. On 6
th
March, 2012, the Central Board of Secondary Education (CBSE)
issued a circular stating that all teachers hired after the date of circular,
to teach classes I to VIII students in CBSE-affiliated schools must pass
the Teacher Eligibility Test (TET).
58
dated 29
th
July, 2011, 28
th
June, 2018 and 13
th
November, 2019
44
66. On 12
th
November, 2014, the NCTE laid down regulations, inter alia,
providing for qualifications for recruitment of teachers for imparting
education from pre-primary level to the senior secondary level. It will
suffice to mention that the minimum qualifications for teachers teaching
primary and upper primary (classes I to VIII) were the same as provided
in the notification dated 23
rd
August, 2010.
67. As discussed above, NCTE made the TET a mandatory requirement vide
its notification dated 23
rd
August, 2010. Be that as it may, in the year
2017, the Parliament made an amendment
59
in Section 23 of RTE Act by
introducing a proviso in section 23(2) of the Act. The proviso reads thus:
“Provided further that every teacher appointed or in position as on
the 31
st
March, 2015, who does not possess minimum qualifications
as laid down under sub-section (1), shall acquire such minimum
qualifications within a period of four years from the date of
commencement of the Right of Children to Free and Compulsory
Education (Amendment) Act, 2017.”
68. The Parliament, therefore, provided an opportunity to teachers
appointed/in service, prior to 31
st
March, 2015 and who had not attained
the minimum qualifications as prescribed (including the TET) to acquire
the said qualifications within a period of four years from the date of
commencement of the Amendment Act which was 1
st
April, 2017.
69. On 3
rd
August, 2017, the Additional Secretary, Ministry of Human
Resource Development, Department of School Education & Literacy,
issued a letter to the State secretaries, reminding that the last date to
acquire minimum qualifications is 1
st
April, 2019, and no teacher, who
59
Act No. 24 of 2017
45
did not possess minimum qualifications under the RTE Act, would be
permitted to continue in service beyond the given date.
VI. ANALYSIS AND REASONS
70. The task at our hand is indeed onerous. Pramati Educational and
Cultural Trust (supra), being a decision rendered by a Constitution
Bench of this Court, deserves due deference. While the said decision
does shed light on key issues and provides valuable insights, it also
leaves some questions open that could be explored further and
productively addressed.
71. The two issues we are tasked to decide, which are indeed very significant
for the future generations of our nation, bring in its train one more
important issue: whether the decision of the Constitution Bench of five
Judges of this Hon’ble Court in Pramati Educational and Cultural
Trust (supra), insofar as it exempts minority schools—whether aided or
unaided—falling under clause (1) of Article 30 of the Constitution from
the applicability of the RTE Act, warrants reconsideration. In course of
our analysis, we propose to consider whether Pramati Educational
and Cultural Trust (supra) should be accepted as the last word in the
matter of applicability of the RTE Act to minority institutions or whether
there is a need to explore its efficacy as a binding precedent in the
changed circumstances.
46
A. FROM PROMISE TO RIGHT : THE CONSTITUTIONAL JOURNEY OF ARTICLE 21A
AND THE RIGHT TO ELEMENTARY EDUCATION IN INDIA
72. The right to elementary education in India did not begin its journey as a
fundamental right. In the Constitution, as originally drafted, elementary
education was initially recognized only as a Directive Principle of State
Policy
60
under Article 45, which provided:
“The State shall endeavour to provide, within a period of ten years
from the commencement of this Constitution, for free and
compulsory education for all children until they complete the age
of fourteen years.”
73. Article 45 seems to be the only directive principle framed with a specific
time frame, reflecting the urgency and significance that the framers of
the Constitution placed on its implementation. This directive, though
aspirational, was unfortunately not judicially enforceable and depended
heavily on the discretion and capacity of the State. The framers of the
Constitution consciously placed ‘EDUCATION’ in Part IV, recognizing its
criticality but also acknowledging the financial and administrative
limitations of the newly independent nation.
74. The drafting history of the Constitution reveals that the inclusion of
elementary education as a fundamental right was deliberated upon but
ultimately deferred. Several members of the Constituent Assembly
advocated for a justiciable fundamental right to education, arguing that
without education, other rights and civil liberties would re main
60
“Directive Principles”
47
meaningless
61
. However, a competing viewpoint —concerned with
resource constraints and state capacity—prevailed
62
. This led to the
compromise of placing the right to elementary education as a non-
enforceable and a non-binding directive principle, to be pursued by the
State progressively over time.
75. However, through judicial pronouncements, the movement to recognize
education, particularly elementary education, as a fundamental right
gained momentum.
76. A decade before the enactment of the Constitution (Eighty -sixth
Amendment) Act, 2002 , which introduced Article 21A, a two-Judge
Bench of this Court in Mohini Jain v. State of Karnataka
63
held:
“12. … The right to education flows directly from right to life. The
right to life under Article 21 and the dignity of an individual cannot
be assured unless it is accompanied by the right to education. The
State Government is under an obligation to make endea vour to
provide educational facilities at all levels to its citizens.
17. We hold that every citizen has a ‘right to education’ under the
Constitution. The State is under an obligation to establish
educational institutions to enable the citizens to enjoy the said
right. The State may discharge its obligation through state-owned
or state-recognised educational institutions. When th e State
Government grants recognition to the private educational
institutions it creates an agency to fulfil its obligation under the
Constitution. The students are given admission to the educational
institutions — whether state-owned or state-recognised — in
recognition of their ‘right to education’ under the Constitution.
Charging capitation fee in consideration of admission to
61
Constituent Assembly of India Debates (Volume 7, 08.12.1948), 7.51.18 (Z.H. Lari);
(Volume 8, 19.11.1948), 7.56.22 (Ananthasayanam Ayyangar), 7.56.53 & 7.56.56 (K.T.
Shah)
62
Constituent Assembly of India Debates (Volume 7, 23.11.1948)
63
(1992) 3 SCC 666
48
educational institutions, is a patent denial of a citizen's right to
education under the Constitution.”
77. However, in Unni Krishnan, J. P. v. State of Andhra Pradesh
64
, the
correctness of the decision in Mohini Jain (supra) was challenged by
private educational institutions. Though the decision was not affirmed in
its entirety, the lead judgment of the five-Judge Constitution Bench of
this Court further expanded the right to elementary education and while
holding that a child up to the age of 14 years has a fundamental right to
free education, held as follows:
“171. In the above state of law, it would not be correct to contend
that Mohini Jain was wrong insofar as it declared that ‘the right to
education flows directly from right to life’. But the question is what
is the content of this right? How much and what level of education
is necessary to make the life meaningful? Does it mean that every
citizen of this country can call upon the State to provide him
education of his choice? In other words, whether the citizens of
this country can demand that the State provide adequate number
of medical colleges, engineering colleges and other educational
institutions to satisfy all their educational needs? Mohini Jain
seems to say, yes. With respect, we cannot agree with such a
broad proposition. The right to education which is implicit in the
right to life and personal liberty guaranteed by Article 21 must be
construed in the light of the directive principles in Part IV of the
Constitution. So far as the right to education is concerned, there
are several articles in Part IV which expressly speak of it. Article
41 says that the ‘State shall, within the limits of its economic
capacity and development, make effective provision for securing
the right to work, to education and to public assistance in cases
of unemployment, old age, sickness and disablement, and in other
cases of undeserved want’. Article 45 says that ‘the State shall
endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory
education for all children until they complete the age of fourteen
years’. Article 46 commands that ‘the State shall promote with
special care the educational and economic interests of the weaker
sections of the people, and, in particular, of the Scheduled Castes
64
(1993) 1 SCC 645
49
and the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation’. Education means
knowledge — and ‘knowledge itself is power’. As rightly observed
by John Adams, ‘the preservation of means of knowledge among
the lowest ranks is of more importance to the public than all the
property of all the rich men in the country’. (Dissertation on Canon
and Feudal Law, 1765) It is this concern which seems to underlie
Article 46. It is the tyrants and bad rulers who are afraid of spread
of education and knowledge among the deprived classes. Witness
Hitler railing against universal education. He said: ‘Universal
education is the most corroding and disintegrating poison that
liberalism has ever invented for its own destruction.’ (Rauschning,
The Voice of Destruction : Hitler speaks.) A true democracy is one
where education is universal, where people understand what is
good for them and the nation and know how to govern
themselves. The three Articles 45, 46 and 41 are designed to
achieve the said goal among others. It is in the light of these
Articles that the content and parameters of the right to education
have to be determined. Right to education, understood in the
context of Articles 45 and 41, means : (a) every child/citizen of
this country has a right to free education until he completes the
age of fourteen years, and (b) after a child/citizen completes 14
years, his right to education is circumscribed by the limits of the
economic capacity of the State and its development. […].
175. Be that as it may, we must say that at least now the State
should honour the command of Article 45. It must be made a
reality — at least now. Indeed, the National Education Policy 1986
says that the promise of Article 45 will be redeemed before the
end of this century. Be that as it may, we hold that a child (citizen)
has a fundamental right to free education up to the age of 14
years.”
(emphasis in original)
78. The decision in Unni Krishnan (supra), however, stands overruled by
an eleven-Judge Constitution Bench of this Hon’ble Court in T.M.A. Pai
Foundation (supra) albeit on a different point.
79. These two decisions together interpreted Article 21, i.e., the right to life,
as including the right to elementary education, providing the
groundwork for its constitutional recognition as a fundamental right. The
50
right to life and dignity was held to be incomplete without access to basic
education, thus, reading into the Constitution an implicit fundamental
right to education even before it was formally codified in 2002.
80. These judicial efforts culminated in the Constitution (Eighty -sixth
Amendment) Act, 2002, which introduced Article 21A into the
Constitution.
81. Alongside Article 21A, the amendment also substituted Article 45 to
focus on early childhood care and education and introduced a
corresponding fundamental duty under Article 51A(k), requiring parents
and guardians to ensure educational opportunities for th eir children
between the ages of 6 and 14.
82. Article 21A, thus, marked a constitutional transformation by elevating
the child’s right to free and compulsory elementary education to the
status of an enforceable fundamental right.
83. Notably, the right to education which is positioned right after the right
to life and personal liberty, underscores the intrinsic connection between
life and knowledge acquisition, to be gained through elementary
education. This sequence of rights is also reflective of Parliament’s
consciousness of the critical nexus between knowledge and human
dignity.
84. Indubitably, Pramati Educational and Cultural Trust (supra) could
not have and, as such, did not see anything objectionable in Article 21A
to hold that it trenches upon minority rights protected by Article 30.
What it said is that the power under Article 21A vesting in the State does
51
not extend to making a law to abrogate minority rights of establishing
and administering schools of their choice.
B. BREATHING LIFE INTO THE PROMISE : THE RTE ACT AND THE REALISATION OF
ARTICLE 21A
85. To give effect to the newly inserted fundamental right, i.e., Article 21A,
Parliament enacted the RTE Act. The RTE Act breathed life into Article
21A by providing a comprehensive statutory framework to ensure access
to free, compulsory, and quality elementary education for all children in
the 6–14 age group.
86. As outlined in the Statement of Objects and Reasons accompanying the
Right of Children to Free and Compulsory Education Bill, 2008
65
, the
objectives of the RTE Bill read:
“The Right of Children to Free and Compulsory Education Bill,
2008, is anchored in the belief that the values of equality, social
justice and democracy and the creation of a just and humane
society can be achieved only through provision of inclusive
elementary education to all. Provision of free and compulsory
education of satisfactory quality to children from disadvantaged
and weaker sections is, therefore, not merely the responsibility of
schools run or supported by the appropriate Governments, but
also of schools which are not dependent on Government funds.”
87. Viewed holistically, the RTE Act—contrary to the commonly held belief—
does not impose an onerous or excessive regulatory burden; rather, it
lays down the bare minimum core obligations and standards that all
schools [as defined in Section 2(n)] must follow to ensure that the
constitutional promise envisioned by Article 21A is not rendered
65
“RTE Bill”
52
meaningless. They include requirements such as trained teachers,
student-teacher ratio, adequate infrastructure, inclusive admission
policies, age-appropriate common curriculum, etc. All these are
indispensable to deliver quality elementary education.
88. At its heart, the RTE Act is an instrument for universalisation of
education, which is rooted in the values of social inclusion, national
development, and child-centric growth. It is aimed at bridging the gap
between privileged and disadvantaged, and it ensures that every child,
regardless of caste, creed, class, or community, is given a fair and equal
opportunity to learn, grow, and thrive. The RTE Act is designed not to
stifle institutional autonomy but to uphold a threshold of dignity, safety,
equity, and universality in the learning environment for a child.
89. Born of Article 21A, the RTE Act is not merely another addition to the
statute books. It is the living expression of a long-deferred promise.
When the Constitution was first adopted, the right to education could
find place only among the D irective Principles, tempered by the
economic and institutional limitations of a newly independent nation;
yet, the vision was never abandoned but merely postponed. It took the
nation over half a century of democratic maturity, social awakening, and
judicial insistence for this vision to be shaped into a fundamental right.
90. In this sense, Article 21A stands, perhaps, a shade taller than many
other rights, not merely by hierarchy but by the weight of the journey it
carries—a journey of struggle, consensus, and above all, a reaffirmation
that right to elementary education is not charity, but justice.
53
91. Against this backdrop, if a conflict were ever to arise between the two
competing fundamental rights, i.e., Article 21A and Article 30, it must
be remembered that not all rights stand on equal footing when their
purposes diverge and reconciliation is no longer possible. In such a
scenario, Article 30, though crucial in preserving cultural and educational
autonomy, must be interpreted in tandem with Article 21A, for the latter
is not merely a fundamental right but we consider it to be the foundation
upon which the other rights of the younger generation would find
meaning and voice. Article 21A is not just a right in isolation, it is an
enabler of other fundamental rights, a unifying thread that weaves
together the garland of all other fundamental rights promised by our
Constitution. Despite transition from Part IV to Part III of the
Constitution, much of the object and purpose for introduction of Article
21A would seem lost if means to provide free and compulsory education,
which is sought to be achieved by enacting the RTE Act, were withheld
for minorities for no better reason than that the RTE Act abrogates their
right protected under Article 30. Education for children aged 6–14 is
foundational for their development and the broader goals of nation
building. The right to speak freely could ring hollow, the right to vote
could become mechanical and the right to livelihood could largely be
rendered meaningless when the younger generation were to grow up
and transition to adulthood. To deny Article 21A its rightful primacy is to
reduce it to a skeletal promise—a right without fundamentals, stripped
of the very essence that animates our constitutional vision.
54
92. Any interpretation that diminishes the scope or limits the application of
the RTE Act must, therefore, be critically examined against the broader
backdrop of the constitutional evolution as traced aforesaid.
C. THE CONSTITUTIONAL GOAL OF UNIVERSAL ELEMENTARY EDUCATION AND
COMMON SCHOOLING SYSTEM
93. It is only in furtherance of its commitment to universal elementary
education that Parliament enacted the Constitution (Eighty-sixth
Amendment) Act, 2002, introducing Article 21A and elevating the right
to free and compulsory education for all children aged between 6 and
14 years to the status of a fundamental right.
94. Therefore, at the outset, we must and do recognise that under the RTE
Act, our focus is on elementary education which is the foundational
building block of a child’s journey of learning, rather than tertiary or
higher education. Since independence, Universal Elementary Education
and the idea of a common schooling system have stood among the
foremost national as well as constitutional goals. We may ask, why does
the universalisation of elementary education matter so deeply? The
answer is not far to seek. It is at this stage that the seeds of equality,
opportunity, and national integration are sown —shaping not only
individual futures but the very character of the nation.
95. Elementary education could count as the most crucial stage in the
education cycle. It lays the foundation for lifelong learning, cognitive
development, and social values. It shapes a child’s ability to think,
question, and grow with a strong beginning. The early years of education
55
lay the foundation for a child’s growth and learning, and access to quality
elementary education ensures that this foundation is strong and
equitable. Therefore, universal elementary education and a common
schooling system aim to uphold a shared curriculum and uniform quality
standards across both government and private schools, ensuring th at
every child receives an equal foundation, regardless of where they study.
Without universal access, education becomes a privilege rather than a
right, accentuating existing inequalities and denying children from
disadvantaged backgrounds the opportunity to break the cycle of
poverty.
96. Once could say that in India, by the age of 9 or 10, children are already
deeply socialized into a fixed set of norms and behaviours shaped by
their surroundings and that these patterns are not easily unlearned or
altered instantly. It is in the early years, when minds are most receptive
and identities still developing, that the foundation for learning and social
growth is most effectively established.
97. When every child receives the same minimum standard of elementary
education, society moves closer to genuine substantial equality, where
one’s start in life does not dictate his/her future potential. Moreover,
universal elementary education is the bedrock of a healthy democracy
and an empowered citizenry. It equips individuals with the basic skills of
reading, writing, and critical thinking, enabling them to participate
meaningfully in civic life, understand their rights and responsibilities,
and contribute productively to the economy. Countries that have
56
succeeded in achieving universal primary education have consistently
demonstrated higher levels of social mobility, public health, and national
cohesion.
98. This vision is clearly embedded in the RTE Act. Section 29 mandates that
the curriculum and evaluation process for elementary education must be
prescribed by an academic authority notified by the appropriate
government. The curriculum is to reflect constitutional values and focus
on the holistic development of the child—promoting creativity, physical
and mental growth, learning through play and exploration, instruction in
the child’s mother tongue where possible, and a stress-free, inclusive
learning environment with continuous assessment.
99. In view thereof, Article 21A, which guarantees the right to free and
compulsory education for all children aged 6 to 14, inherently includes
the right to universal elementary education—education that reaches
every child, regardless of background. It also embraces the idea of a
common schooling system, where children from diverse socio-economic
and cultural groups learn together in shared spaces.
D. SECTION 12(1)(C), MINORITY INSTITUTIONS AND THE BEGINNING OF THE
CONUNDRUM
100. Section 12 of the RTE Act, which is the heart and soul of the RTE Act, is
extracted hereunder:
“12. Extent of school's responsibility for free and
compulsory education. —
(1) For the purposes of this Act, a school, —
57
(a) specified in sub-clause (i) of clause (n) of section 2
shall provide free and compulsory elementary education to
all children admitted therein;
(b) specified in sub-clause (ii) of clause (n) of section 2
shall provide free and compulsory elementary education to
such proportion of children admitted therein as its annual
recurring aid or grants so received bears to its annual
recurring expenses, subject to a minimum of twenty-five per
cent.;
(c) specified in sub-clauses (iii) and (iv) of clause (n) of
section 2 shall admit in class I, to the extent of at least
twenty-five per cent of the strength of that class, children
belonging to weaker section and disadvantaged group in the
neighbourhood and provide free and compulsory elementary
education till its completion:
Provided further that where a school specified in clause (n)
of section 2 imparts pre-school education, the provisions of
clauses (a) to (c) shall apply for admission to such pre-school
education.
(2) The school specified in sub-clause (iv) of clause (n) of
section 2 providing free and compulsory elementary
education as specified in clause (c) of sub-section (1) shall
be reimbursed expenditure so incurred by it to the extent of
per-child-expenditure incurred by the State, or the actual
amount charged from the child, whichever is less, in such
manner as may be prescribed:
Provided that such reimbursement shall not exceed per -
child-expenditure incurred by a school specified in sub-clause
(i) of clause (n) of section 2:
Provided further that where such school is already under
obligation to provide free education to a specified number of
children on account of it having received any land, building,
equipment or other facilities, either free of cost or at a
concessional rate, such school shall not be entitled for
reimbursement to the extent of such obligation.
(3) Every school shall provide such information as may be
required by the appropriate Government or the local
authority, as the case may be.”
58
101. The mandate of Section 12(1)(c) is that schools shall reserve 25% of
their seats in Class I for children belonging to the “weaker sections and
disadvantaged groups from the neighbourhood” . The cost of educating
these children is reimbursed by the government, thereby enabling
access to quality education for those who might otherwise be excluded
due to economic or social barriers.
102. Section 12(1)(c), to our mind, is perhaps the closest our nation has
come to realizing the vision of an inclusive and rights-based universal
elementary education. It reflects the idea of a common school system
where children from diverse socio-economic backgrounds learn together
under the same roof. In a country as deeply divided along class, caste,
and community lines as ours, Section 12(1)(c) offers social integration
through education. It seeks to dismantle the segregated nature of our
schooling system and plant the seeds of egalitar ian and universal
learning environments.
103. It can reasonably be said that the origins of Section 12(1)(c) are rooted
in a historical context of exclusion and systemic inequity insofar as
access to education is concerned. The provision is a direct response to
generations of marginalisation, especially of dalits, adivasis, religious
minorities, and economically weaker sections, who have been pushed to
the periphery of the formal schooling system. By embedding universal
elementary education into the architecture of schooling, Section
12(1)(c) attempts to reimagine classrooms as shared, inclusive spaces
where every child has an equal claim to dignity and opportunity.
59
Importantly, the spirit of Section 12(1)(c) goes beyond mere admission
quotas and focuses on universalisation of elementary education.
104. This was also echoed by the MHRD’s clarificatory memorandum on the
provisions of the RTE
66
:
“The idea that schooling should act as a means of social cohesion
and inclusion is not new; it has been oft repeated. Inequitable and
disparate schooling reinforces existing social and economic
hierarchies, and promotes in the educated sections of society an
indifference towards the plight of the poor.
The currently used term 'inclusive' education implies, as did
earlier terms like 'common' and 'neighbourhood' schools, that
children from different backgrounds and with varying interests
and ability will achieve their highest potential if they study in a
shared classroom environment. The idea of inclusive schooling is
also consistent with Constitutional values and ideals, especially
with the ideals of fraternity, social justice and equality of
opportunity.
For children of socio-economically weaker backgrounds to feel at
home in private schools, it is necessary that they form a
substantial proportion or critical mass in the class they join. The
relevant universe in which the proportion needs to be considered
is the class/section. It is for this reason that the RTE Act provides
for admission of 25% children from disadvantaged groups and
weaker sections in class I only. This implies that these children
cannot be pooled together in a separate section or afternoon shift.
Any arrangement which segregates, or treats these children in a
differentiated manner vis-à-vis the fee-paying children will be
counter-productive.
The rationale for 25% lies in the fact that the composition of
caste/class indicated in the Census is fairly representative of the
composition of children who are seeking admission under this
provision. As per Census 2001, SCs constitute 16.2%, and STs
constitute 8.2% (total 24.4%) of the population. Further, the
Tendulkar Committee, set up by the Planning Commission to
measure poverty, has estimated the below poverty line (BPL)
population to be 37.2%. It is a fact that much of the population
that suffers economic deprivation also suffers from social
66
Ministry of Human Resource Development, Government of India, ‘Clarification on
Provisions’<https://www.education.gov.in/sites/upload_files/mhrd/files/upload_documen
t/RTE_Section_wise_rationale_rev_0.pdf > (last accessed on 31
st
August, 2025)
60
disadvantage. Thus, taken together, the figure of 25% for
admission of children from disadvantaged groups and weaker
sections is considered reasonable. Any lower proportion would
jeopardize the long-term goal of the policy which is to strengthen
social cohesion and bring out the best human resource potential
inherent in our society as a whole. A smaller proportion would
serve only a token purpose, and it will run the serious risk of
creating the feeling of alienation among the children belonging to
disadvantaged groups and weaker sections. Their participation in
classroom interaction will be neither strong nor sufficiently
manifest to enrich the overall experiential learning taking place in
any given subject area. Only a critical mass can play such a role.
The RTE Act provides for admission of 25% children from
disadvantaged groups and weaker sections in Class I, not across
the whole school. As children admitted to class I move to class II,
new children will be admitted to class I, and so on till completion
of 8 years of elementary education. The rationale for admission in
class I only must be appreciated in human terms. Teachers who
are used to a selective, homogeneous classroom environment
cannot be expected to develop the required positive attitude and
professional skills to deal with a diversified class overnight. The
same applies to children. Children who have grown up to an age
of nine or ten in a homogeneous or segregated environment have
been socialized into a structure of norms and behaviour. They
cannot be transformed on demand. Also, the overall school ethos
cannot be expected to respond to a new policy in a positive
manner all of a sudden. Education is indeed an act of faith and
social engineering – but not quick-fix social engineering. In view
of the fact that children take time to socialize and teachers take
time to develop new attitudes and pedagogic skills, the RTE Act
provides for admission of disadvantaged and poor children at the
entry level, covering pre-school and Class I. With these children
moving up, and a new cohort of children entering pre-school and
Class I in each successive year, the school will gradually have a
more diverse population spread across all classes. Progression at
this pace will allow children the opportunity to grow up together
and create bonds: bonds that can survive social walls. Progression
at this pace can allow the school to develop the professional
capacity to respond to the intellectual and emotional needs of
children from diverse backgrounds. Children who are youn ger
than eight years of age are yet to develop a stable social identity.
Their values are still forming, and their motivation to derive
meaning from experience, both concrete and social is very strong.
Therefore, it is a valid argument that the policy of mixing children
from different socio-economic strata has the best chance of
succeeding if it starts from the formative years of
nursery/kindergarten and Class I. Diversity enhances learning
61
and development, while segregation impoverishes the classroom
environment of all schools, private or government.
Admission of 25% children from disadvantaged groups and
weaker sections in the neighbourhood is not merely to provide
avenues of quality education to poor and disadvantaged children.
The larger objective is to provide a common place where children
sit, eat and live together for at least eight years of their lives
across caste, class and gender divides in order that it narrows
down such divisions in our society. The other objective is that the
75% children who have been lucky to come from better endowed
families, learn through their interaction with the children from
families who haven’t had similar opportunities, but are rich in
knowledge systems allied to trade, craft, farming and other
services, and that the pedagogic enrichment of the 75% children
is provided by such intermingling. This will of course require
classroom practices, teacher training, etc. to constantly bring out
these pedagogic practices, rather than merely make children from
these two sections sit together. The often voiced concern about
how the 25% children from disadvantaged groups and weaker
sections can cope in an environment where rich children exist can
be resolved when the teaching learning process and teachers use
these children as sources of knowledge so that their esteem and
recognition goes up and they begin to be treated as equals.”
105. Section 12(1)(c) in that manner is not just about giving disadvantaged
children access to private schools. It aims to build shared spaces where
children from all backgrounds learn and grow together. Privileged
students gain exposure to diverse life experiences, while those from
weaker sections gain confidence and opportunity. For this to succeed,
pedagogy must evolve—teachers must be trained to value every child
as a contributor to the learning process. Only then can the classroom
become a true site of equality and transformation.
106. However, following the enactment of the RTE Act, minority educational
institutions raised concerns that enforcement of Section 12(1)(c) would
disrupt their autonomy or institutional character and erode their
62
constitutionally protected rights under Article 30(1). They feared that
mandatory admissions under this provision could dilute their ability to
preserve their distinct linguistic or religious character.
107. To recapitulate, Section 12(1)(c) being challenged before this Hon’ble
Court in Society for Unaided Private Schools (supra), by a 2:1
majority, this Court upheld the constitutionality of Section 12(1)(c) of
the RTE Act insofar as it applied to aided minority schools; however,
Section 12(1)(c) was held to be ultra vires to the extent it sought to
infringe the fundamental freedoms guaranteed to unaided minority
schools under Article 30(1) of the Constitution. The Bench clarified that
all unaided minority schools are exempt from the purview of Section
12(1)(c) while holding that the mandate under Section 12(1)(c) alters
the very character of minority institutions, running contrary to the
protections guaranteed under Article 30(1). The obligations under
Section 12(1)(c) were held to be directory, not mandatory. Lastly, the
Court held that as far as aided minority schools are concerned, Section
12(1)(c) would apply to such schools as Article 30(1) is subject to Article
29(2).
108. To address these apprehensions and prevent potential constitutional
friction, the RTE Act was amended in 2012. Through this amendment,
specific sub-clauses were inserted in Section 1, explicitly stating that the
RTE Act shall apply subject to Articles 29 and 30. The newly added sub-
clauses (4) and (5) are extracted hereunder:
63
“(4) Subject to the provisions of articles 29 and 30 of the
Constitution, the provisions of this Act shall apply to conferment
of rights on children to free and compulsory education.
(5) Nothing contained in this Act shall apply to Madrasas, Vedic
Pathsalas and educational institutions primarily imparting
religious instruction.”
109. While this move quelled the anxieties of minority institutions, it also
opened the door to a series of new dilemmas concerning exclusion,
regulatory arbitrage, and the scope of the fundamental right under
Article 21A and Section 12(1)(c) vis-à-vis the rights of the minority
institutions under Article 30.
110. As noted, vide a separate order, a reference was made to a Constitution
Bench to examine the validity of Article 15(5), inserted by the
Constitution (Ninety-third Amendment) Act, 2005, and Article 21A,
inserted by the Constitution (Eighty-sixth Amendment) Act, 2002.
111. The said reference was answered in Pramati Educational and
Cultural Trust (supra), with the five-Judge Constitution Bench
unanimously holding, in paragraph 56, that “the 2009 Act insofar as it
applies to minority schools, aided or unaided, covered under clause (1)
of Article 30 of the Constitution is ultra vires the Constitution”.
112. Thus, Pramati Educational and Cultural Trust (supra) overruled
Society for Unaided Private Schools (supra) on this limited point,
while affirming the remainder of the decision. While Society for
Unaided Private Schools (supra) exempted unaided minority
institutions from the obligations of the RTE Act, Pramati Educational
and Cultural Trust (supra) went a step further by extending the
64
exemption to even those minority schools that receive government aid.
Collectively, these two judgments have placed the entire category of
minority educational institutions, whether aided or unaided, beyond the
purview of the requirements of the RTE Act.
113. The exemption granted to minority institutions has since become the
cornerstone of constitutional debates around the balance between the
right to elementary education and minority rights.
114. Against this backdrop, it is now pertinent to examine—more than a
decade later since its pronouncement —the aftermath of Pramati
Educational and Cultural Trust (supra) and to assess whether it has
truly fulfilled the purpose it set out to achieve or whether it has, in effect,
deepened the very tensions it sought to resolve.
E. THE COST OF EXCLUSION : CONSEQUENCES OF EXEMPTING MINORITY
INSTITUTIONS FROM THE AMBIT OF THE RTE ACT
115. To begin with, a study conducted by the National Commission for
Protection of Child Rights in 2021
67
reveals that only 8.76% of students
in minority schools come from socially and economically disadvantaged
sections
68
. This low representation cuts across all communities and
highlights a systemic exclusion.
116. As per the NCPCR Study, an overwhelming 62.5% of the total students
in minority schools belong to non-minority communities, and in states
67
NCPCR Study
68
NCPCR, “Impact of exemption under Article 15(5) w.r.t. article 21A of the Constitution
of India on education of children of minority communities” (March 2021, NCPCR & Quality
Council of India)
65
like Andhra Pradesh, Jharkhand, Punjab, and Delhi, this percentage was
found to be even higher. This is indicative of many institutions labelled
as “minority” not serving their communities exclusively, but continuing
to enjoy exemption from inclusionary mandates.
117. In this light, the consequences of Pramati Educational and Cultural
Trust (supra) cannot be confined merely to its holding that aided and
unaided minority institutions are exempt from the purview of the RTE
Act. To grasp the full weight of the decision, there is need to look beyond
its doctrinal contours and examine its consequences on the lives of
millions of children for whom the RTE Act was conceived.
118. As noted, in Pramati Educational and Cultural Trust (supra), the
Constitution Bench was called upon to determine two issues. For the
purposes of the present matter, our concern is confined only to the
second issue which the Bench framed. For ease of reference, we
reproduce it once again hereunder:
“5.2. (ii) Whether by inserting Article 21-A of the Constitution by
the Constitution (Eighty-sixth Amendment) Act, 2002, Parliament
has altered the basic structure or framework of the Constitution?”
119. The above issue gave rise to a connected sub -issue: whether the
provisions of the RTE Act could validly apply to minority schools, aided
or unaided, falling under Article 30(1) of the Constitution. The Bench
while holding that Article 21A, by itself, did not violate or alter the basic
structure of the Constitution, took the view while addressing the sub-
issue that the entire RTE Act, insofar as it applied to minority educational
66
institutions protected under Article 30(1), was unconstitutional and ultra
vires.
120. What is particularly striking to us is the Bench’s conclusion on the sub-
issue. Such conclusion appears to be based solely on interpretation of
Section 12 of the RTE Act by the Bench, and sub-section (1)(c) thereof
in particular, mandating reservation of 25% seats at the entry level for
children from weaker sections and disadvantaged groups. The Bench
observed that “legal obligation to admit children belonging to weaker
sections and disadvantaged groups in the neighbourhood who need not
be children of the members of the minority community which has
established the school […] cannot be forced upon a minority institution
because that may destroy the minority character of the school”
69
.
Resting thereon, it was concluded that if the RTE Act is made applicable
to minority schools, aided or unaided, the right of the minorities under
Article 30(1) of the Constitution will stand abrogated. Conspicuously
silent as it is on any examination or assessment of the other provisions
of the RTE Act such as those relating to teacher qualifications,
infrastructural norms, or child safety measures and how, if at all, they
conflict with Article 30(1) — the one aspect that eludes us is the
complete absence in Pramati Educational and Cultural Trust (supra)
of any discussion on or any analysis of any provision of the RTE Act vis-
à-vis Article 30(1) of the Constitution other than Section 12.
69
Paragraph 55
67
121. The point of concern which, therefore, arises is: if the only substantive
concern raised by the Bench was related to Section 12(1)(c), what then
justified the sweeping conclusion that the entire RTE Act was inapplicable
to minority institutions, aided or unaided? Unfortunately, Pramati
Educational and Cultural Trust (supra) does not appear to offer any
reasoning whatsoever for extending the exemption beyond Section
12(1)(c). In the absence of any analysis of the other sections of the RTE
Act vis-à-vis Article 30(1), the blanket exclusion, with respect, appears
legally suspect and questionable apart from being disproportionate.
122. We are mindful of the decision of a three-Judge Bench of this Court in
M.R. Apparao (supra) where it has been held that the decision of this
Court cannot be assailed on the ground that certain aspects had not
been considered or that the relevant provisions were not brought to the
notice of the Court. However, the relevant dictum in paragraph 7 of such
decision is primarily for the guidance of the high courts and the
subordinate courts which are bound by Article 141 to follow the law
declared, even though there could be valid reason to suspect and
conclude that law had been declared without considering all aspects or
relevant provisions. No matter what the circumstances are, the high
courts and the subordinate courts are bound to follow the decision.
123. The law declared by the Supreme Court, per Article 141 of the
Constitution, binds all courts which would include us too. Nonetheless,
our jurisdiction permits and we possess a unique authority, unlike the
high courts and the subordinate courts, to re-examine legal principles
68
laid down by previous Benches. Such re-examination, however, cannot
obviously be resorted to except for compelling reasons. Apart from the
core issues being considered by us, as to whether reconsideration of
Pramati Educational and Cultural Trust (supra) is necessitated or
not, one other compelling reason that dissuades us from blindly
following it has its roots in M.R. Apparao (supra) itself. In paragraph 7,
we find inter alia the following passage:
“7. … It is the principle found out upon a reading of a judgment
as a whole, in the light of the questions before the Court that
forms the ratio and not any particular word or sentence. To
determine whether a decision has ‘declared law’ it cannot be
said to be a law when a point is disposed of on concession and
what is binding is the principle underlying a decision. A
judgment of the Court has to be read in the context of questions
which arose for consideration in the case in which the judgment
was delivered. An ‘obiter dictum’ as distinguished from a ratio
decidendi is an observation by the Court on a legal question
suggested in a case before it but not arising in such manner as
to require a decision. Such an obiter may not have a binding
precedent as the observation was unnecessary for the decision
pronounced, but even though an obiter may not have a binding
effect as a precedent, but it cannot be denied that it is of
considerable weight. The law which will be binding under Article
141 would, therefore, extend to all observations of points
raised and decided by the Court in a given case. So far as
constitutional matters are concerned, it is a practice of the
Court not to make any pronouncement on points not directly
raised for its decision. …”
(emphasis ours)
124. To what extent Pramati Educational and Cultural Trust (supra) lays
down law which is definitive and binding under Article 141 or its
observations are to be treated as ‘obiter dictum’ would be considered
later as we progress further.
69
125. We are a bit distressed to note from the materials placed on record
including the NCPCR Study that exclusion of the RTE Act has created a
fertile ground for misuse. Since the Constitution (Ninety -third
Amendment) Act, 2006, there has been a sharp rise in schools applying
for minority status. The NCPCR Study finds that around 85% of minority
institutions received their minority status post-2006, i.e., many after the
passage of the RTE Act.
126. These trends, arguably, raise concerns that the minority status is often
claimed not to preserve identity, but to avoid compliance with
inclusionary obligations under the RTE Act. The absence of clear
guidelines on minimum enrolment of minority students has also made it
easier for institutions to claim minority status without fulfilling its spirit.
With no obligation to admit disadvantaged students, many of these
institutions remain insulated from broader constitutional goals of
equality and inclusion.
127. The RTE Act ensures children a range of entitlements like basic
infrastructure, trained teachers, books, uniforms, and mid-day meals,
which are essential for a dignified educational experience. However,
minority schools, excluded from the RTE Act’s purview, are not
necessarily bound to provide these facilities. Some minority schools
might provide a few facilities as are mandated by the RTE Act, but others
may fall short leaving their students without access to such mandated
facilities. For many of these stu dents, such benefits are not just
amenities but affirmations of belonging, equality, and recognition.
70
128. Beyond physical provisions, the RTE Act also ensures common curricular
standards through notified academic authorities
70
. These guarantee that
every child receives quality education based on constitutional values.
Minority institutions, however, operate without such uniform guidelines,
leaving children and their parents uncertain about what and how they
are taught, and often disconnected from the national framework of
universal learning.
129. For the reasons discussed above, we hasten to observe with utmost
humility at our command that the decision in Pramati Educational and
Cultural Trust (supra) might have, unknowingly, jeopardized the very
foundation of universal elementary education. Exemption of minority
institutions from the RTE Act leads to fragmentation of the common
schooling vision and weakening of the idea of inclusivity and universality
envisioned by Article 21A. We are afraid, instead of uniting children
across caste, class, creed, and community, it reinforces ‘divides’ and
‘dilutes’ the transformative potential of shared learning spaces. If the
goal is to build an equal and cohesive society, such exemptions move us
in the opposite direction. What commenced as an attempt to protect
cultural and religious freedoms has inadvertently created a regulatory
loophole, leading to a surge in institutions seeking minority status to
bypass the regime ordained by the RTE Act.
70
see, Section 29 of the RTE Act
71
130. It is trite that the State has been entrusted with the responsibility of
achieving substantive equality by the framers of the Constitution with
the introduction of Articles 14 and 15 of the Constitution. Knit neatly
together, they mandate the State to ensure that the inherent inequality
in the society is reduced by providing a level playing field to the weak
and oppressed members of the society.
131. In the wake of Pramati Educational and Cultural Trust (supra), we
are pained to observe that minority status seems to have become a
vehicle for circumventing the mandate of the RTE Act. In our humble
opinion, it has opened up a situation whereby multiple institutions have
sought to acquire minority status to become autonomous. It has also
opened the door for potential misuse. Exemption of even aided minority
institutions from the framework of the RTE Act has further encouraged
the proliferation of minority-tagged schools not necessarily for the
preservation of language, script, or culture, but to circumvent statutory
obligations. This has distorted the spirit of Article 30(1), which was never
intended to create enclaves of privilege at the cost of national
developmental goals.
132. We end the discussion by observing that the true impact and legacy of
a judicial pronouncement lies not merely in the precision of its reasoning,
but by whether it stands the test of time ; whether, years after its
pronouncement, it continues to respond meaningfully to the problem it
set out to address and serve the ends of justice or has failed to do so.
The test of such a decision is whether it has alleviated or aggravated the
72
practical challenges it sought to remedy and lived realities it
endeavoured to shape. Painfully though, we regret to observe that the
ruling in Pramati Educational and Cultural Trust (supra) strikes at
the heart of good quality universal elementary education and its
consequences are far-reaching.
F. DOES ARTICLE 30(1) REALLY ENVISAGE BLANKET IMMUNITY FROM ALL
FORMS OF REGULATION TO MINORITY INSTITUTIONS ?
133. Articles 29 and 30 of the Constitution together constitute the ‘Cultural
and Educational Rights’. The text of both provisions is reproduced below:
“29. Protection of interests of minorities.—(1) Any section of
the citizens residing in the territory of India or any part thereof
having a distinct language, script or culture of its own shall have
the right to conserve the same.
(2) No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State
funds on grounds only of religion, race, caste, language or any of
them.
30. Right of minorities to establish and administer
educational institutions.—(1) All minorities, whether based on
religion or language, shall have the right to establish and
administer educational institutions of their choice.
(1-A) In making any law providing for the compulsory acquisition
of any property of an educational institution established and
administered by a minority, referred to in clause (1), the State
shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not
restrict or abrogate the right guaranteed under that clause.]
(2) The State shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground
that it is under the management of a minority, whether based on
religion or language.”
73
134. Clause (1) of Article 29 guarantees that any section of citizens having a
distinct language, script, or culture has the right to conserve the same.
Clause (2) adds a vital equality dimension, prohibiting denial of
admission into educational institutions maintained by the State or
receiving aid from State funds on grounds of religion, race, caste,
language, or any of them.
135. Article 30(1) of the Constitution guarantees minorities the right to
establish and administer educational institutions of their choice.
However, this right is not absolute, nor does it imply blanket immunity
from all regulatory frameworks. This Court, in T.M.A. Pai Foundation
(supra), has held that while the autonomy of minority institutions must
be protected, it is not beyond the reach of reasonable regulation in the
interest of maintaining educational standards and achieving
constitutional goals.
136. The purpose of Article 30(1) is to preserve the linguistic and cultural
identity of minority communities through education , not to create
parallel systems that are insulated from universally applicable norms.
Basic requirements related to infrastructure, teacher qualifications, and
inclusive access, especially at the elementary level under Article 21A, do
not interfere with a school's minority character. On the contrary, these
norms ensure that the right to administer does not become a license to
exclude or operate without accountability. Interpreting Article 30(1) as
a blanket shield erodes the balance between autonomy and public
74
interest, and undermines the constitutional vision of inclusive, equitable
education for all.
137. A brief reference to the Constituent Assembly Debates may be apt at
this stage. The original text of Article 29(2) [Article 23(2) in the Draft
Constitution of India, 1948] read thus:
“(2) No minority whether based on religion, community or
language shall be discriminated against in regard to the admission
of any person belonging to such minority into any educational
institution maintained by the State.”
138. This language was met with concern by the assembly members. Pandit
Thakur Das Bhargava proposed three important changes: (i) replacing
“no minority” with “no citizen” to universalise the protection, (ii)
extending the provision to include not only State-maintained institutions
but also those receiving aid from the State, and (iii) broadening the
grounds of protection from just “religion, community or language” to
include “religion, race, caste, language or any of them”
71
. He stated:
“Now, Sir, it so happens that the words ‘no minority’ seek to
differentiate the minority from the majority, whereas you would
be pleased to see that in the Chapter the words of the heading
are ‘cultural and educational rights’, so that the minority rights as
such should not find any place under this section. Now if we read
Clause (2) it would appear as if the minority had been given
certain definite rights in this clause, whereas the national interests
require that no majority also should be discriminated against in
this matter. Unfortunately, there is in some matters a tendency
that the minorities as such possess and are given certain special
rights which are denied to the majority. It was the habit of our
English masters that they wanted to create discriminations of this
sort between the minority and the maj ority. Sometimes the
minority said they were discriminated against and on other
71
Constituent Assembly of India Debates (Volume 7, 08.12.1948), 7.69.35 & 7.69.36
(Pandit Thakur Dass Bhargava)
75
occasions the majority felt the same thing. This amendment
brings the majority and the minority on an equal status.
In educational matters, I cannot understand, from the national
point of view, how any discrimination can be justified in favour of
a minority or a majority. Therefore, what this amendment seeks
to do is that the majority and the minority are brought on the
same level. There will be no discrimination between any member
of the minority or majority in so far as admission to educational
institutions are concerned. So I should say that this is a charter
of the liberties for the student-world of the minority and the
majority communities equally.”
(emphasis ours)
139. Shri Bhargava’s proposed amendments were ultimately accepted, and
what we now have as Article 29(2) reflects the deliberate and inclusive
vision of the Constituent Assembly. It affirms that in matters of
admission to educational institutions funded by the State, no citizen—
minority or majority—should face discrimination on specified grounds.
The framers thus sought to establish a level playing field in education,
rooted in the principles of equality and non-discrimination.
140. Is the right conferred by Article 30(1) absolute, or does it imply blanket
immunity from all regulatory frameworks? A seven-Judge Bench of this
Court, upon reference by the President, held in In Re: Kerala
Education Bill, 1957
72
:
“20. Articles 29 and 30 are set out in Part III of our Constitution
which guarantees our fundamental rights. They are grouped
together under the sub-head ‘Cultural and Educational Rights’.
The text and the marginal notes of both the articles show that
their purpose is to confer those fundamental rights on certain
sections of the community which constitute minority communities.
Under clause (1) of Article 29 any section of the citizens residing
72
1959 SCR 995
76
in the territory of India or any part thereof having a distinct
language, script or culture of its own has the right to conserve the
same. It is obvious that a minority community can effectively
conserve its language, script or culture by and through
educational institutions and, therefore, the right to establish and
maintain educational institutions of its choice is a necessary
concomitant to the right to conserve its distinctive language,
script or culture and that is what is conferred on all minorities by
Article 30(1) which has hereinbefore been quoted in full. This
right, however, is subject to clause 2 of Article 29 which provides
that no citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State
funds on grounds only of religion, race, caste, language or any of
them.
22. … The real import of Article 29(2) and Article 30(1) seems to
us to be that they clearly contemplate a minority institution with
a sprinkling of outsiders admitted into it. By admitting a non-
member into it the minority institution does not shed its character
and cease to be a minority institution. Indeed the object of
conservation of the distinct language, script and culture of a
minority may be better served by propagating the same amongst
non-members of the particular minority community. In our
opinion, it is not possible to read this condition into Article 30(1)
of the Constitution.”
(emphasis ours)
141. As evident from the above, Article 30(1), in the context of aided minority
institutions, is subject to the mandate of Article 29(2), which expressly
prohibits denial of admission to any citizen in institutions maintained by
the State or receiving State aid, on grounds of religion, race, caste,
language, or any of them. A plain reading of Article 29(2) makes the
position clear that an educational institution maintained by the State or
receiving aid out of State funds cannot deny admission on, inter alia,
grounds of religion. Significantly, Pramati Educational and Cultural
Trust (supra) does not discuss Article 29(2) in the context of the answer
to the second issue, though raised by the Additional Solicitor General as
77
recorded in paragraph 47, while Article 29(2) is merely quoted in the
discussion while answering the first issue at paragraph 32. To our mind,
consideration of Article 29(2) in the proper perspective could have
brought about a different outcome insofar as applicability of Section
12(1)(b) of the RTE Act to schools specified in sub-clause (ii) of clause
(n) of Section 2 thereof.
142. With respect to unaided minority institutions, the interpretation of Article
30 must be guided by its underlying purpose , i.e., to preserve the
cultural, linguistic, and educational identity of minority communities and
promote their welfare. As clarified in In Re: The Kerala Education Bill
(supra), the mere admission of a “sprinkling of outsiders” neither defeats
the purpose of Article 30 nor does it dilute or alter the minority character
of such institutions.
143. It is clear on a reading of the authorities in the relevant field that Article
30(1) has never been construed as conferring blanket immunity on
minority institutions from all forms of regulation. Even at a time when
the promise to provide free and compulsory elementary education was
merely a directive principle under Article 45 and not yet elevated to a
fundamental right, this Court in In Re: The Kerala Education Bill
(supra) recognised the need to harmonise the rights under Article 30(1)
with the broader constitutional duty of the State to promote free and
compulsory education. This Court observed that apparent tensions
between these provisions must be resolved through reconciliation by
giving effect to both and achieving a constitutional synthesis. It held that
78
the right of minorities to administer educational institutions of their
choice does not preclude the State from prescribing reasonable
conditions for the grant of aid, including those intended to uphold
educational standards and promote inclusivity. With respect to unaided
minority institutions, the interpretation of Article 30 must be guided by
its underlying purpose of preserving the cultural, linguistic, and
educational identity of minority communities and promot ing their
welfare. As clarified in In Re: The Kerala Education Bill (supra), the
mere admission of a “sprinkling of outsiders” neither defeats the purpose
of Article 30 nor does it dilute or alter the minority character of such
institutions.
G. DOES THE REGULATORY FRAMEWORK UNDER THE RTE ACT , FLOWING FROM
ARTICLE 21A, CLASSIFY AS A REASONABLE RESTRICTION UNDER ARTICLE
19(6)?
144. This Court in its numerous decisions has affirmed that the right to
establish and administer educational institutions, whether for profit or
not, is protected under Article 19(1)(g) of the Constitution. For instance,
the lead judgment authored by Hon’ble B.N. Kirpal, CJI.in T.M.A. Pai
Foundation (supra) held thus:
“18. With regard to the establishment of educational institutions,
three articles of the Constitution come into play. Article 19(1)(g)
gives the right to all the citizens to practise any profession or to
carry on any occupation, trade or business; this right is subject to
restrictions that may be placed under Article 19(6). Article 26
gives the right to every religious denomination to establish and
maintain an institution for religious purposes, which would include
an educational institution. Article 19(1)(g) and Article 26,
79
therefore, confer rights on all citizens and religious denominations
to establish and maintain educational institutions.”
145. Undoubtedly so. However, Article 19(6) carves out a clear exception to
Article 19 including 19(1)(g), permitting the State to impose reasonable
restrictions in the interest of the general public. The RTE Act, enacted to
give effect to Article 21A, ought to be viewed as one such “reasonable
restriction” falling within the contours of Article 19(6), aimed at
advancing a constitutionally recognised public good, i.e., universal
elementary education for children aged 6-14 years. The objective behind
the RTE Act, one has to realize and remember, is not to curtail legitimate
exercise of rights under Articles 19(1)(g), 26 and 30, but to ensure that
the foundational rights of children are not sacrificed at the altar of
unregulated commercialisation.
146. In a constitutional framework that is animated by the values of justice,
equality, fraternity and dignity, commercial freedoms under Article
19(1)(g) must yield where they conflict with the fulfilment of
Fundamental Rights particularly those of children. We should not forget
that the RTE Act is the legislative expression of a fundamental right
under Article 21A. Its regulatory mandate, therefore, acquires
constitutional legitimacy through Article 21A, and by extension, Article
21. When tested against the standard of reasonableness under Article
19(6), the regulatory measures imposed by the RTE Act are not only not
arbitrary, they are necessary, imperative and proportionate, and in
furtherance of the larger constitutional goal and vision of Article 21A.
80
147. A six-Judge Bench of this Court in Rev. Sidhrajbhai Sabhai vs. State
of Gujarat
73
had held that:
“15. The right established by Article 30(1) is a fundamental right
declared in terms absolute. Unlike the fundamental freedoms
guaranteed by Article 19 it is not subject to reasonable
restrictions. It is intended to be a real right for the protection of
the minorities in the matter of setting up of educational
institutions of their own choice. The right is intended to be
effective and is not to be whittled down by so-called regulative
measures conceived in the interest not of the minority educational
institution, but of the public or the nation as a whole. If every
order which while maintaining the formal character of a minority
institution destroys the power of administration is held justifiable
because it is in the public or national interest, though not in its
interest as an educational institution the right guaranteed by
Article 30(1) will be but a ‘teasing illusion’ a promise of unreality.
Regulations which may lawfully be imposed either by legislative
or executive action as a condition of receiving gran t or of
recognition must be directed to making the institution while
retaining its character as a minority institution effective as an
educational institution. Such regulation must satisfy a dual test-
the test of reasonableness, and the test that it is regulative of the
educational character of the institution and is conducive to making
the institution an effective vehicle of education for the minority
community or other persons who resort to it.”
148. However, the decision in Rev. Sidhrajbhai Sabhai (supra) stands
overruled by the majority in T.M.A. Pai Foundation (supra). While so
overruling, it was held that the right under Article 30(1) cannot be
stretched to override the national interest or to prevent the Government
from framing regulations in that regard. The relevant extracts are
reproduced hereunder:
“107. The aforesaid decision does indicate that the right under
Article 30(1) is not so absolute as to prevent the Government
from making any regulation whatsoever. As already noted
73
(1963) 3 SCR 837
81
hereinabove, in Sidhajbhai Sabhai case [(1963) 3 SCR 837 : AIR
1963 SC 540] it was laid down that regulations made in the true
interests of efficiency of instruction, discipline, health, sanitation,
morality and public order could be imposed. If this is so, it is
difficult to appreciate how the Government can be prevented from
framing regulations that are in the national interest, as it seems
to be indicated in the passage quoted hereinabove. Any regulation
framed in the national interest must necessarily a pply to all
educational institutions, whether run by the majority or the
minority. Such a limitation must necessarily be read into Article
30. The right under Article 30(1) cannot be such as to override
the national interest or to prevent the Government from framing
regulations in that behalf. It is, of course, true that government
regulations cannot destroy the minority character of the
institution or make the right to establish and administer a mere
illusion; but the right under Article 30 is not so absolute as to be
above the law. It will further be seen that in Sidhajbhai Sabhai
case [(1963) 3 SCR 837 : AIR 1963 SC 540] no reference was
made to Article 29(2) of the Constitution. This decision, therefore,
cannot be an authority for the proposition canvassed before us.”
149. While the autonomy of minority institutions must be protected, it is not
beyond the reach of reasonable regulation in the interest of maintaining
educational standards and achieving constitutional goals.
150. Even before T.M.A. Pai Foundation (supra), a nine-Judge Bench of this
Court in Ahmedabad St. Xavier’s College Society (supra) held that:
“20. The right conferred on the religious and linguistic minorities
to administer educational institutions of their choice is not an
absolute right. This right is not free from regulation. Just as
regulatory measures are necessary for maintaining the
educational character and content of minority institutions similarly
regulatory measures are necessary for ensuring orderly, efficient
and sound administration. Das, C.J., in the Kerala Education Bill
case summed up in one sentence the true meaning of the right to
administer by saying that the right to administer is not the right
to mal-administer.”
(emphasis ours)
82
151. The aforesaid discussion tends to support our opinion that rights under
Article 30(1), not being absolute, cannot be claimed to the complete
exclusion of Article 21A. The former cannot be construed as overriding
the mandate of the latter. Article 30(1), which guarantees minorities the
right to establish and administer educational institutions of their choice,
is undoubtedly a vital part of the constitutional promise to preserve
linguistic and religious diversity. However, this right, like all others under
Part III, is not absolute. It must be read in harmony with other
Fundamental Rights and constitutional goals. When minority institutions
engage in the act of imparting education, particularly elementary
education, they necessarily operate within a shared co nstitutional
ecosystem. To argue that Article 30(1) grants the minority institutions
immunity from all statutory frameworks aimed at securing the right to
education under Article 21A or that there can be no restrictions imposed
under Article 19(6) would be to prioritize one right over another, thereby
undermining the right to education under Article 21A.
H. MINORITY INSTITUTIONS AND THE SHARED CONSTITUTIONAL
RESPONSIBILITY UNDER ARTICLE 21A
152. An argument which has been raised before us and which was
successfully argued in Pramati Educational and Cultural Trust
(supra) is that Article 21A casts an obligation solely on the State to
ensure full implementation of the right and, therefore, minority
institutions should not be burdened with how the State intends to carry
forward its vision of implementation of such right.
83
153. It is true that Article 21A imposes a primary duty upon the State to
ensure the provision of free and compulsory elementary education.
However, the fulfilment of this duty necessarily involves the participation
of both public and private stakeholders in the education ecosystem.
Minority institutions that voluntarily choose to engage in the public
function of imparting elementary education cannot simultaneously claim
complete insulation from regulatory frameworks that give effect to the
constitutional mandate under Article 21A. The RTE Act is one such
regulatory framework.
154. The vision of universal elementary education under Article 21A,
indubitably, cannot be achieved by the State alone, in isolation.
Education, especially at the foundational level, is a shared constitutional
responsibility. Minority institutions, while retaining their autonomy in
matters essential to their cultural and linguistic identity, do not operate
in a vacuum. Once they enter the realm of formal schooling and benefit
from recognition, affiliation, or aid from the State, they partake in the
broader constitutional project of building an inclusive and educated
society. It would therefore be constitutionally untenable to argue that
such institutions remain unaffected by frameworks such as the RTE Act
through which the State seeks to discharge its obligations. Reasonable
participation in this vision does not and cannot dilute its institutional
character.
155. We, therefore, doubt the decision in Pramati Educational and
Cultural Trust (supra) on this aspect.
84
I. TEACHERS’ ROLE IN IMPARTING QUALITY EDUCATION
156. Quality of teachers and teaching standards are integral to the
fundamental right to education under Article 21A cannot perhaps be
doubted. This Court, times without number, has emphasized that
‘education’ would be meaningless if it is not accompanied by qu ality
education, which is primarily dependent on qualified and well-trained
teachers. Further, it is the State's constitutional obligation to ensure that
educational institutions maintain high teaching standards, and
appointments of teachers should strictl y adhere to prescribed
qualifications to maintain these educational standards.
157. The importance of training for teachers was discussed by this Court in
N.M. Nageshwaramma v. State of A.P.
74
. Mushrooming of
unauthorised teacher training institutes in the State of Andhra Pradesh
was under consideration. While dismissing the writ petitions before it,
the concern expressed more than forty years back by this Court appears
to be relevant even now. It was said:
“3. … The Teachers Training Institutes are meant to teach
children of impressionable age and we cannot let loose on the
innocent and unwary children, teachers who have not received
proper and adequate training. True they will be required to pass
the examination but that may not be enough. Training for a
certain minimum period in a properly organised and equipped
Training Institute is probably essential before a teacher may be
duly launched. …”
74
1986 Supp SCC 166
85
158. This Court in Andhra Kesari Educational Society v. Director of
School Education
75
upon deciding the lis before it made the following
parting remarks:
“20. … Though teaching is the last choice in the job market,
the role of teachers is central to all processes of formal
education. The teacher alone could bring out the skills and
intellectual capabilities of students. He is the ‘engine’ of the
educational system. He is a principal instrument in awakening
the child to cultural values. He needs to be endowed and
energised with needed potential to deliver enlightened service
expected of him. His quality should be such as would inspire
and motivate into action the benefiter. He must keep himself
abreast of everchanging conditions. He is not to perform in a
wooden and unimaginative way. He must eliminate fissiparous
tendencies and attitudes and infuse nobler and national ideas
in younger minds. His involvement in national integration is
more important, indeed indispensable. It is, therefore, needless
to state that teachers should be subjected to rigorous training
with rigid scrutiny of efficiency. It has greater relevance to the
needs of the day. The ill-trained or sub-standard teachers
would be detrimental to our educational system; if not a
punishment on our children. The Government and the
University must, therefore, take care to see that inadequacy in
the training of teachers is not compounded by any extraneous
consideration.”
159. Similarly, the significance of quality training to equip teachers to mould
the future citizenry of the country, was discussed in State of
Maharashtra v. Vikas Sahebrao Roundale
76
. The relevant passage
reads thus:
“12. … The teacher plays pivotal role in moulding the career,
character and moral fibres and aptitude for educational
excellence in impressive young children. Formal education
needs proper equipping of the teachers to meet the challenges
of the day to impart lessons with latest techniques to the
students on secular, scientific and rational outlook. A well-
equipped teacher could bring the needed skills and intellectual
75
(1989) 1 SCC 392
76
(1992) 4 SCC 435
86
capabilities to the students in their pursuits. The teacher is
adorned as Gurudevobhava, next after parents, as he is a
principal instrument to awakening the child to the cultural
ethos, intellectual excellence and discipline. The teachers,
therefore, must keep abreast of ever-changing techniques, the
needs of the society and to cope up with the psychological
approach to the aptitudes of the children to perform that pivotal
role. In short teachers need to be endowed and energised with
needed potential to serve the needs of the society. The
qualitative training in the training colleges or schools would
inspire and motivate them into action to the benefit of the
students. …”
160. Then again, this Court in Chandigarh Administration. v. Rajni Vali
(Mrs.)
77
reiterated the State's obligation to maintain a certain standard
of teaching and that appointment of qualified teachers was the bare
minimum to be achieved in any institution by holding thus:
“6. The position has to be accepted as well settled that
imparting primary and secondary education to students is the
bounden duty of the State Administration. It is a constitutional
mandate that the State shall ensure proper education to the
students on whom the future of the society depends. In line
with this principle, the State has enacted statutes and framed
rules and regulations to control/regulate establishment and
running of private schools at different levels. The State
Government provides grant-in-aid to private schools with a
view to ensure smooth running of the institution and to ensure
that the standard of teaching does not suffer on account of
paucity of funds. It needs no emphasis that appointment of
qualified and efficient teachers is a sine qua non for maintaining
high standards of teaching in any educational institution. …”
161. In State of Orissa v. Mamata Mohanty
78
, the central role played by a
teacher in shaping individuals, and future citizens, was emphasized to
establish that the State must be uncompromising when it comes to
quality of teachers recruited. This Court ruled:
77
(2000) 2 SCC 42
78
(2011) 3 SCC 436
87
“33. In view of the above, it is evident that education is
necessary to develop the personality of a person as a whole
and in totality as it provides the process of training and
acquiring the knowledge, skills, developing mind and character
by formal schooling. Therefore, it is necessary to maintain a
high academic standard and academic discipline along with
academic rigour for the progress of a nation. Democracy
depends for its own survival on a high standard of vocational
and professional education. Paucity of funds cannot be a ground
for the State not to provide quality education to its future
citizens. It is for this reason that in order to maintain the
standard of education the State Government provides grant-in-
aid to private schools to ensure the smooth running of the
institution so that the standard of teaching may not suffer for
want of funds.
34. Article 21-A has been added by amending our Constitution
with a view to facilitate the children to get proper and good
quality education. However, the quality of education would
depend on various factors but the most relevant of them is
excellence of teaching staff. In view thereof, quality of teaching
staff cannot be compromised. The selection of the most suitable
persons is essential in order to maintain excellence and the
standard of teaching in the institution. It is not permissible for
the State that while controlling the education it may impinge
the standard of education. It is, in fact, for this reason that
norms of admission in institutions have to be adhered to
strictly. Admissions in mid-academic sessions are not permitted
to maintain the excellence of education.”
162. The primacy of providing elementary education and strict compliance
with teaching standards and qualifications was highlighted, in Bhartiya
Seva Samaj Trust v. Yogeshbhai Ambalal Patel
79
, in the following
words:
“26. … education and particularly that elementary/basic
education has to be qualitative and for that the trained teachers
are required. The legislature in its wisdom after consultation
with the expert body fixes the eligibility for a particular
discipline taught in a school. Thus, the eligibility so fixed
79
(2012) 9 SCC 310
88
requires very strict compliance and any appointment made in
contravention thereof must be held to be void.”
163. While reflecting on free and compulsory education, we cannot, therefore,
be oblivious of the need for quality education to be imparted to children
aged between 6 and 14 years. Compromising the quality of a teacher
would necessarily compromise quality of education, and is a direct threat
to the right of children to quality education which is a necessary
concomitant of the right guaranteed by Article 21A. This, in turn, would
render the entire object and purpose of the RTE Act meaningless. In the
sphere of primary education, a qualified teacher, at the very least, would
be an assurance of quality education. Quality of education is, therefore,
inherent in the right to education under Article 21A.
J. APPLICABILITY OF THE TET TO IN-SERVICE TEACHERS APPOINTED PRIOR TO
2009 AND REQUIREMENT OF TET QUALIFICATION FOR PROMOTION OF
TEACHERS
164. There are yet two other connected issues that require our attention. The
TET is a statutory requirement introduced under the RTE Act and the
corresponding NCTE notifications. It is aimed at ensuring minimum
professional standards in the recruitment of elementary school teachers,
in line with the mandate under Section 23 of the RTE Act.
165. Section 23 of the RTE Act vests the Central Government with the power
to designate an academic authority to prescribe minimum qualifications
for teachers. Pursuant to conferment of such power, the NCTE was
notified as the academic authority under sub -section (1) which is
89
empowered to prescribe the eligibility criteria for appointment as
teachers in schools governed by the RTE Act.
166. In exercise of its authority under Section 23(1), the NCTE issued a
Notification dated 23
rd
August, 2010, later amended by Notification
dated 29
th
July, 2011, laying down that passing the TET is a mandatory
condition for appointment of teachers in classes I to VIII in schools
covered by Section 2(n) of the RTE Act. The notifications clarify that the
TET must be conducted by the appropriate Governmen t in accordance
with the guidelines framed by the NCTE. The legal position emerging
therefrom is clear: the TET is not a mere procedural requirement but
forms an essential part of the minimum qualification criteria.
167. Importantly, the first and second provisos to Section 23(2) of the RTE
Act carve out a transitional obligation for in-service teachers who did not
possess the minimum qualifications at the time of commencement of the
RTE Act. They were required to acquire such qualifications including
passing the TET within a prescribed time frame. The second proviso
introduced by the Right of Children to Free and Compulsory Education
(Amendment) Act, 2017
80
extended this compliance period by a period
of four years from the date of commencement of the 2017 Amendment
Act, which was deemed to have come into force on 1
st
April, 2015, i.e.,
till 2019 and not 2021 if four years were calculated from the date of the
notification (i.e., 9
th
August, 2017). The express legislative intent was to
80
2017 Amendment Act
90
bring all in-service teachers within the ambit of uniform quality
standards.
168. NCTE’s notification also reinforces this requirement by stating that
teachers working in unaided private schools, or those already in position
as of 31
st
March, 2015, must qualify the TET within the stipulated period.
The language of both the RTE Act and the notification leaves no room
for ambiguity that even those teachers appointed prior to the RTE Act,
if not qualified, must meet the TET requirement within the grace period
granted. Only those appointed prior to 3
rd
September, 2001 in
accordance with applicable recruitment rules, or those covered by
specific exceptions (e.g., Special BTC or D.Ed. courses), were exempted.
169. Thus, read holistically, Section 23 of the RTE Act and the NCTE
notifications together establish the TET as a compulsory qualifying
criterion for all teachers appointed on or after 23
rd
August, 2010, and as
a time-bound compliance obligation for those appointed earlier without
the requisite qualifications. The sole object is to ensure uniform teaching
standards across institutions imparting elementary education. Viewed in
this light, the TET is not only a mandatory eligibility requirement but it
is a constitutional necessity flowing from the right to quality education
under Article 21A.
170. As a logical corollary to the above, it is axiomatic that those in-service
teachers who aspire for promotion, irrespective of the length of their
service, have to qualify the TET in order to be eligible to have their
candidature considered for promotion.
91
K. Our findings
On perceived conflict between Articles 21A and 30(1) and the
applicability of the RTE Act to minority institutions
171. The right to education cannot be deprived of substance and rendered a
right without fundamentals. It is to be noted that though Article 30 finds
place in the “Cultural and Educational Rights” section of Part III, Article
21A mandating “Right to Education” for children in the age group of 6 to
14 is not placed in that section but has been consciously placed by the
Parliament in the section “Right to Freedom”. Can Article 21A be treated
as subservient to Article 30, or for that matter, to any other
constitutional right? We do not propose to proceed for a hair-splitting
analysis to answer this question. Suffice it is for the present purpose
that both Article 21A and Article 30(1) occupy high constitutional
position and must be interpreted harmoniously by complementing each
other. In our opinion, there is no inherent conflict between Article 21A
and Article 30(1). On this score, we are in respectful agreement with
Pramati Educational and Cultural Trust (supra).
172. One, however, has to appreciate that most provisions of the RTE Act are
regulatory in nature aimed at ensuring a safe, inclusive, and meaningful
learning environment for children in the 6-14 age group. Requirements
such as trained teachers, adequate infrastructure, and prohibition of
corporal punishment are educational essentials, not ideological
impositions. Exempting minority institutions from all these obligations,
92
regardless of their relevance to minority character is, in our opinion,
neither justified nor constitutionally required.
173. The danger of such a blanket exemption is that Article 30(1) runs the
risk of being reduced to a tool for evading necessary and child-centric
regulatory standards. The constitutional guarantee under Article 30(1),
we are inclined to the view, was intended to preserve cultural and
linguistic identity and not to provide institutions unqualified immunity
from laws framed in the best interest of children.
174. In our opinion, Pramati Educational and Cultural Trust (supra) did
not carry forward its own reasoning to its logical end. First, the Court
acknowledged that whether the 25% quota affects the minority
character depends on various factors, including the institution’s nature
and the extent of impact. The relevant passage reads thus:
“33. … Thus, the law as laid down by this Court is that the minority
character of an aided or unaided minority institution cannot be
annihilated by admission of students from communities other than
the minority community which has established the institution, and
whether such admission to any particular percentage of seats will
destroy the minority character of the institution or not will depend
on a large number of factors including the type of institution.”
(emphasis ours)
175. However, later, Pramati Educational and Cultural Trust (supra) went
on to grant a sweeping exemption to all minority institutions, aided or
unaided, falling under Article 30(1) despite what the Bench
acknowledged earlier. With respect, it essentially created a dichotomy
between the right to education under Article 21A and the collective rights
93
under Article 30(1). Despite insisting on harmony, Article 30(1) seems
to have been treated as an unqualified trump card, instead of
harmonizing both rights in a manner that minimally impairs institutional
autonomy while maximally fulfilling the State’s constitutional obligations
to children, particularly those from marginalized communities.
176. Incidentally, reliance placed in Pramati Educational and Cultural
Trust (supra) by the Court on T.M.A. Pai Foundation (supra) was, in
our opinion, could be seen as misplaced. T.M.A. Pai Foundation
(supra) was about state interference in higher education, not elementary
education. It is elementary education which is recognised as a
fundamental right and not higher education. The objectives and stakes
in primary education are vastly different. At this level, the focus is on
foundational learning, inclusion, and socialization. The RTE Act itself
prohibits screening procedures and merit-based filters at the elementary
stage, which establishes its universal and inclusive intent. Despite what
is, in T.M.A. Pai Foundation (supra), the majority of the eleven-Judge
Constitution Bench clearly held that the right to administer an
educational institution does not extend to the right to maladminister it
[echoing the view of Hon’ble S.R. Das, CJI. in In Re: Kerala Education
Bill, 1957 (supra)]. The State is well within its powers to impose general
regulatory measures to ensure the proper functioning and standards of
such institutions, so long as these do not alter or destroy their minority
character. The relevant extracts are reproduced hereunder:
94
“107. … Any regulation framed in the national interest must
necessarily apply to all educational institutions, whether run by
the majority or the minority. Such a limitation must necessarily
be read into Article 30. The right under Article 30(1) cannot be
such as to override the national interest or to prevent the
Government from framing regulations in that behalf. It is, of
course, true that government regulations cannot destroy the
minority character of the institution or make the right to establish
and administer a mere illusion; but the right under Article 30 is
not so absolute as to be above the law.
122. The learned Judge then observed that the right of the
minorities to administer educational institutions did not prevent
the making of reasonable regulations in respect of these
institutions. Recognizing that the right to administer educational
institutions could not include the right to maladminister, it was
held that regulations could be lawfully imposed, for the receiving
of grants and recognition, while permitting the institution to retain
its character as a minority institution. The regulation ‘must satisfy
a dual test — the test of reasonableness, and the test that it is
regulative of the educational character of the institution and is
conducive to making the institution an effective vehicle of
education for the minority community or other persons who resort
to it’. (SCC p. 783, para 92) It was permissible for the authorities
to prescribe regulations, which must be complied with, before a
minority institution could seek or retain affiliation and recognition.
But it was also stated that the regulations made by the authority
should not impinge upon the minority character of the institution.
Therefore, a balance has to be kept between the two objectives
— that of ensuring the standard of excellence of the institution,
and that of preserving the right of the minorities to establish and
administer their educational institutions. Regulations that
embraced and reconciled the two objectives could be considered
to be reasonable. This, in our view, is the correct approach to the
problem.
136. Decisions of this Court have held that the right to administer
does not include the right to maladminister. It has also been held
that the right to administer is not absolute, but must be subject
to reasonable regulations for the benefit of the institutions as the
vehicle of education, consistent with national interest. General
laws of the land applicable to all persons have been held to be
applicable to the minority institutions also — for example, laws
relating to taxation, sanitation, social welfare , economic
regulation, public order and morality.
137. It follows from the aforesaid decisions that even though the
words of Article 30(1) are unqualified, this Court has held that at
95
least certain other laws of the land pertaining to health, morality
and standards of education apply. The right under Article 30(1)
has, therefore, not been held to be absolute or above other
provisions of the law, and we reiterate the same. By the same
analogy, there is no reason why regulations or conditions
concerning, generally, the welfare of students and teachers
should not be made applicable in order to provide a proper
academic atmosphere, as such provisions do not in any way
interfere with the right of administration or management under
Article 30(1).”
(italics in original)
(underlining ours)
177. We, therefore, have serious doubts as to whether Pramati Educational
and Cultural Trust (supra) was justified in granting a blanket
exemption to minority institutions falling under Article 30(1) from the
applicability of the RTE Act. In our considered opinion, the RTE Act ought
to apply to all minority institutions, whether aided or unaided. As
discussed, its implementation does not erode—let alone annihilate—the
minority character protected under Article 30(1). On the contrary,
applying the RTE Act aligns with the purposive interpretation of Article
30(1), which was never meant to shield institutions from reasonable
regulation in pursuit of constitutional goals. There is no inherent conflict
between Article 21A and Article 30(1); both can and mu st co-exist
mutually.
On applicability of Section 12(1)(c), RTE Act to minority
institutions
178. Section 12(1)(c), which mandates 25% reservation for children from
disadvantaged groups and weaker sections at the entry level, serves the
96
broader purpose of social inclusion in and universalisation of elementary
education. While it is true that such a provision impacts institutional
autonomy to some extent, the correct question, however, is whether it
results in the annihilation of the minority character of such institution.
As held in Pramati Educational and Cultural Trust (supra) itself, this
requires a fact-specific analysis, and not a blanket exemption.
179. Section 12(1)(c) does not alter school demographics in a way that would
compromise the minority identity of minority schools. Minority
institutions undisputedly admit students from outside their community;
doing so under a transparent, State-guided framework does not affect
any right. Moreover, Section 12(1)(c) is accompanied by a
reimbursement mechanism, which ensures financial neutrality.
180. Even assuming that a conflict exists between Section 12(1)(c) and
Article 30(1), owing to the perceived interference with the admission
autonomy of minority institutions, such a conflict can be reconciled by
reading down Section 12(1)(c) in a manner that children admitted under
Section 12(1)(c) need not necessarily be from a different religious or
linguistic community. Section 12(1)(c) does not mandate that 25% of
children admitted under the quota must belong to a different religious
or linguistic community. In fact, the requirement can be met by
admitting children from the minority community itself, provided they fall
within the definitions of “weaker section” or “disadvantaged group” as
specified under the RTE Act.
97
181. Sub-clause (d) of Section 2 defines a “child belonging to a disadvantaged
group” as:
“a child with disability or a child belonging to the Scheduled Caste,
the Scheduled Tribe, the socially and educationally backward class
or such other group having disadvantage owing to social, cultural,
economical, geographical, linguistic, gender or such other factor,
as may be specified by the appropriate Government.”
Similarly, sub-clause (e) of Section 2 defines “child belonging to
weaker section” as:
"a child belonging to such parent or guardian whose annual
income is lower than the minimum limit specified by the
appropriate Government.”
182. In many cases, children from the minority community itself may fall
within these definitions. A Christian or a Muslim school, or a school run
by a linguistic minority, for instance, may well find that a substantial
number of the 25% children admitted under Section 12(1)(c) belong to
their own religious or linguistic group but are otherwise socially or
economically disadvantaged. Hence, the idea that Section 12(1)(c)
necessarily undermines or annihilates the school’s minority character is
based on an incorrect presumption. Compliance with Section 12(1)(c)
need not come at the cost of eroding the minority character of the
school.
183. If the 25% quota is utilised by admitting children from the minority
community itself, albeit those who are economically weak or socially
disadvantaged, does the question of “annihilation” really arise at all? We
have no hesitation to answer the question in the negative for the simple
98
reason that such implementation would reinforce the minority
institution’s own constitutional mandate by serving the most
underprivileged sections of its own community. This would not only
preserve the institution’s cultural and religious identity but could also
affirm its commitment to intra-community upliftment. The exemption
granted in Pramati Educational and Cultural Trust (supra) on the
assumption of demographic dilution fails to consider this nuance and, in
our humble opinion, warrants reconsideration.
184. There is one other reason why we referred to the law laid down in M.R.
Apparao (supra) at an earlier part of our opinion. The question as to
whether any section of the RTE Act, apart from Section 12(1)(c), or for
that matter the entirety of the RTE Act is ultra vires Article 30 does not
appear from the decision to have either been directly raised before the
Constitution Bench or dealt with by it. It might appear paradoxical, but
the judiciary can only definitively address constitutional issues of such
importance when they are directly raised.
185. Thus, ultimately, a reconsideration of Pramati Educational and
Cultural Trust (supra) seems unavoidable. The minority status of an
institution must be grounded in a genuine commitment to serve its
community, and not merely operate as a vehicle for evading
constitutional duties. If the object of Article 30 is to protect identity, then
compliance with the RTE Act, insofar as it does not annihilate that
identity, ought not to be viewed as an encroachment.
99
L. SUMMARY OF OUR VIEWS ON PRAMATI EDUCATIONAL AND CULTURAL TRUST
186. Article 21A postulates primary education to be a 'public good' that must
be accessible and available to all. The RTE Act is the State's legislative
enforcement of this fundamental right.
187. The Court in Pramati Educational and Cultural Trust (supra) focused
on Section 12(1)(c) of the RTE Act and no other section and held the
entirety of the RTE Act to be inapplicable to an entire section of society.
Thereby, such section, so to say, has been totally excluded from the idea
and notion of nation building by providing education to children at the
grassroot level. Even if one were to accept that Section 12(1)(c) violated
Article 30, the same could have been read down by including at least
the children of the particular minority community who also belong to
weaker section and disadvantaged group in the neighbourhood . To hold
that the entirety of the RTE Act is inapplicable, with due respect, does
not appeal to us to be reasonable and proportionate.
188. Pramati Educational and Cultural Trust (supra), ruling that RTE Act
would not apply to minority institutions, in effect would offend the Article
21A right of students admitted in such institutions. They would stand
denied of the various statutory entitlements and benefits that the RTE
Act affords to all children between 6 and 14 years of age.
189. The RTE Act does not alter the minority character of institutions set up
under Article 30. The decision in Pramati Educational and Cultural
Trust (supra) seems to us to be doubtful on various counts, in holding
so. The decisions in T.M.A. Pai Foundation (supra), and P. A.
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Inamdar (supra) hold that even the inclusion of non-minority students
in a minority institution would not dilute the institution's minority
character. Pertinently, none of these decisions interpret Article 21A,
which is inserted subsequently, or pertain to institutions imparting
primary education.
190. Regulation in the form of norms and standards to ensure quality of
education, does not dilute the minority character of an institution, and
in fact is a necessary feature of the right to education, as understood
both domestically, and internationally.
191. In a scenario where the TET is held to be inapplicable to minority
institutions, this would additionally result in a violation of Article 14 as
differential eligibility criteria based on religious or linguistic character
would be an impermissible classification, and a violation of the general
right guaranteed under Article 21A.
M. REQUIREMENT OF MINIMUM QUALIFICATION – WHETHER APPLICABLE TO IN -
SERVICE TEACHERS ?
192. It was contended that the term ‘appointment’ used in Section 23 of the
RTE Act would mean only the initial appointment as a teacher and not
appointment by promotion. Accordingly, the minimum qualifications laid
down by the Council (including the TET) for ‘appointment of a teacher’
can only relate to ‘initial appointment’ of such teacher and not an
appointment by ‘promotion’. Therefore, it was argued that the TET is not
a mandatory requirement for promotion.
193. We find ourselves in disagreement with this proposition.
101
194. In legal parlance, the term ‘appointment’ means not only initial
appointment but also covers appointment by ‘promotion’, among others.
In this context, a profitable reference may be made to the decision of
this Court in M. Ramachandran v. Govind Ballabh
81
. Relevant
passage from such decision reads thus:
“6. … There is no dispute that appointment/recruitment to any
service can be made from different sources, i.e., by direct
appointment, by promotion or by absorption/transfer . The
source of recruitment can either be internal or external.
Internal source would relate to cases where the appointments
are made by promotion or by transfer and by absorption.
External source would conceive the recruitment of eligible
persons who are not already in service in the organisation to
which the recruitment is to be made ... .”
195. Furthermore, reference may be made to the decision of this Court in K.
Narayanan v. State of Karnataka
82
where this Court traced the
meaning of the word ‘recruitment’ and held:
“6. … ‘Recruitment’ according to the dictionary means ‘enlist’.
It is a comprehensive term and includes any method provided
for inducting a person in public service. Appointment, selection,
promotion, deputation are all well -known methods of
recruitment. Even appointment by transfer is not unknown. ….”
196. Appointment and recruitment are two distinct but not unrelated
concepts. Recruitment is the broader process of which selection is a part
that culminates in an appointment. Recruitment can be carried out from
various sources, which are broadly classified into internal and external
sources. Internal sources would comprise individuals who are already
81
(1999) 8 SCC 592
82
1994 Supp (1) SCC 44 : 1994 SCC (L&S) 392
102
employed within the organization. This would include an appointment by
promotion or transfer. External sources, on the other hand, consist of
individuals who are not currently in the service of the recruiting
organization. Direct recruitment is an appointment from external
sources or from open market, so to say.
197. Having noticed what this Court has held in relation to recruitment/
appointment, we turn to Section 23 of the RTE Act.
198. Reading Section 23 of the RTE Act, we find that the first proviso to sub-
section (2) of Section 23 thereof assumes importance for dealing with
the contention. For brevity, the proviso is reproduced below:
“Provided that a teacher who, at the commencement of this
Act, does not possess minimum qualifications as laid down
under sub-section (1), shall acquire such minimum
qualifications within a period of five years.”
199. The proviso provides for a deadline for all teachers, who are in service,
to acquire the prescribed minimum qualifications within a period of five
years. Should they fail to do so, they render themselves ineligible to
continue on their post. The objective behind introducing the proviso is
to uphold the best interest of the children by ensuring quality education,
not only through teachers who were to be appointed after the
commencement of the RTE Act but also for in-service teachers.
200. If we are to accept the contention of the in-service teachers, the
abovesaid proviso would be rendered nugatory. Obtaining the TET
qualification under the RTE Act is mandatory and the consequence of not
obtaining such qualification flowing from the scheme of the RTE Act is
103
that the in-service teachers would cease to have any right to continue
in service. Reference may also be made to letter dated 3
rd
August, 2017
(discussed in paragraph 69 above) issued by the MHRD which provided
a deadline beyond which the in-service teachers, having not qualified
the TET, would not be permitted to continue in service.
201. Having regard to the foregoing, we see no reason to hold that the
minimum qualifications prescribed by the Council would apply only for
initial appointment and not for promotion.
N. ON MINIMUM QUALIFICATIONS VERSUS ELIGIBILITY
202. Learned senior counsel opposing the TET have argued that the phrase
‘minimum qualifications’ used in Section 23 of the RTE Act will not cover
the TET in its ambit. They contend that the TET is not a qualification at
all but an eligibility criterion. Thus, prescribing the TET as a minimum
qualification under Section 23 is incorrect. There is no s tatutory
imprimatur to make the TET mandatory and the same must be done
away with.
203. We are not persuaded to agree with this argument for reasons discussed
in heading K above.
204. We reiterate and hold that the TET is indeed a qualification, necessary
to be held by a person seeking appointment as a teacher in a school.
Only upon a person obtaining such qualification can he become eligible
for appointment as a teacher.
205. Obfuscating the true import of the synonymous expressions would not
lend assistance. What must be looked into is the consequence of such
104
qualification. The eligibility criteria, among other things, also prescribes
the TET as a qualification. A person seeking appointment as a teacher
must, as a qualification, pass the TET. Only by obtaining such
qualification, he would be considered eligible to be appointed as a
teacher. In our view, there lies no difference as such between
qualification and eligibility. In this context, we may refer to a decision of
the Allahabad High Court in Arvind Kumar Shukla v. Union of India
83
,
which held thus:
“Further, submission of learned counsel for the petitioners is
that since the reserved category candidates have availed the
benefit of reservation in TET Exam, they should not be given
benefit of reservation in selection and recruitment of the
Assistant Teacher. I find no force in this submission of the
learned counsel for the petitioners. Qualifying the TET Exam as
per Rules is not a guarantee for employment. It
is eligibility qualification to participate in the selection process.
There is a difference between eligibility qualification and
selection for employment. Reservation in educational
institution is provided under Article 15 of the Constitution,
whereas reservation in employment is provided under Article
16 of the Constitution. Merely because a person has secured
admission in a course, which makes him eligible to participate
in the selection process, does not amount to secure
employment for which he becomes eligible after completing the
course. Therefore, the reservation in employment cannot be
denied to a person who belongs to reserved category and has
secured admission in a course to become eligible for such an
employment on the ground that he has already secured
admission on the basis of reservation in getting admission in a
course to acquire eligibility.”
206. Thus, we hold that the TET is one of the minimum qualifications that
may be prescribed under Section 23 of the RTE Act.
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2018 SCC OnLine All 1665
105
VII. ORDER OF REFERENCE FOR CONSIDERATION BY A LARGER BENCH
207. Sitting in a combination of two Judges, we are not oblivious to the
bounds of judicial discipline and the enduring authority of ‘precedents’.
Though a Constitution Bench decision of seven Judges of recent origin
in Aligarh Muslim University v. Naresh Agarwal
84
has upheld a
reference made by a Bench of two-Judges directly to a larger Bench of
seven-Judges while doubting a Constitution Bench decision of five -
Judges and, relying on such observations, it seems to be a permissible
course of action for us to refer the issues that we propose to formulate
hereafter to the Hon’ble the Chief Justice for a reference to a Bench of
seven-Judges, we refrain from doing so consciously. We tread this path
of making a reference with deference to all previous decisions of
Constitution Benches on the manner of making a reference, and not in
defiance of what the majority view is in Aligarh Muslim University
(supra). We are mindful that we can merely doubt the view expressed
by a larger Bench; not differ and depart from such view of a larger
Bench. Pramati Educational and Cultural Trust (supra) being a
Constitution Bench decision, we cannot render findings different to what
has been expressed therein and direct them to be treated as final. This
would only create chaos by making the same binding on all in terms of
Article 141 of the Constitution.
84
(2025) 6 SCC 1
106
208. In view of the foregoing discussions, we respectfully express our doubt
as to whether Pramati Educational and Cultural Trust (supra)
[insofar as it exempts the application of the RTE Act to minority schools,
whether aided or unaided, falling under clause (1) of Article 30 of the
Constitution] has been correctly decided.
209. We may also place on record that a coordinate Bench of this Court in
Ashwini Thanappan v. Director of Education
85
after recording the
submission of counsel for the petitioner of Pramati Educational and
Cultural Trust (supra) being inconsistent with the decision in P.A.
Inamdar (supra) and requires further examination, directed the
Registry to place the matter before the Hon’ble the Chief Justice of India.
The reference, we find, is yet to be answered.
210. We, therefore, consider it expedient to follow the decision of this Court
in Lala Shri Bhagwan v. Shri Ram Chand
86
as well as long-standing
subsequent precedents set by decisions of Constitution Benches prior to
Aligarh Muslim University (supra) and urge the Hon’ble the Chief
Justice of India to consider the desirability as to whether the issues
formulated hereunder, or such other issues as may be deemed relevant,
do warrant reference to a larger Bench:
a. Whether the judgment in Pramati Educational and Cultural
Trust (supra) exempting minority educational institutions,
whether aided or unaided, falling under clause (1) of Article 30 of
85
(2014) 8 SCC 272
86
[1965] 3 SCR 218
107
the Constitution, from the purview of the entirety of the RTE Act
does require reconsideration for the reasons assigned by us?
b. Whether the RTE Act infringes the rights of minorities, religious or
linguistic, guaranteed under Article 30(1) of the Constitution? And,
assuming that Section 12(1)(c) of the RTE Act suffers from the
vice of encroaching upon minority rights protected by Article 30 of
the Constitution, whether Section 12(1)(c) should have been read
down to include children of the particular minority community who
also belong to weaker section and disadvantaged group in the
neighbourhood, to save it from being declared ultra vires such
minority rights?
c. What is the effect of non-consideration of Article 29(2) of the
Constitution in the context of the declaration made in Pramati
Educational and Cultural Trust (supra) that the RTE Act would
not be applicable to aided minority educational institutions?
and
d. Whether, in the absence of any discussion in Pramati
Educational and Cultural Trust (supra) regarding
unconstitutionality of the other provisions of the RTE Act, except
Section 12(1)(c), the entirety of the enactment should have been
declared ultra vires minority rights protected by Article 30 of the
Constitution?
108
211. Registry is directed to place Civil Appeal Nos. 1364 - 1367, 1385 -1386
and 6364 of 2025 before the Hon’ble Chief Justice of India for
appropriate directions.
212. As regards Civil Appeal Nos. 6365-6367 of 2025, we have already noted
that the State of Tamil Nadu raised the argument regarding the TET for
the first time before this Court. The appointment proposals of the
concerned teachers were rejected on grounds other than the TET, and
the TET issue was not raised before the High Court. We are mindful of
the settled legal principles that prohibit the introduction of new grounds
for the first time before this Court. Therefore, it would have been
appropriate to dismiss the civil appeals at the outset on this basis alone.
That said, we are conscious of the fact that the institution in which the
teacher/respondent seeks appointment is a minority institution. As such,
it falls within the scope of the order of reference mentioned above.
213. In light of this, we direct that Civil Appeal Nos. 6365-6367 of 2025 too
shall be governed by the direction in paragraph 211 above.
VIII. ORDER ON APPLICABILITY OF THE TET TO IN-SERVICE TEACHERS
214. Per the detailed discussions above and resting on the same, we hold that
the provisions of the RTE Act have to be complied with by all schools as
defined in Section 2(n) of the RTE Act except the schools established
and administered by the minority – whether religious or linguistic – till
such time the reference is decided and subject to the answers to the
questions formulated above under section VII. Logically, it would follow
109
that in-service teachers (irrespective of the length of their service) would
also be required to qualify the TET to continue in service.
215. However, we are mindful of the ground realities as well as the practical
challenges. There are in-service teachers who were recruited much prior
to the advent of the RTE Act and who might have put in more than two
or even three decades of service. They have been imparting education
to their students to the best of their ability without any serious
complaint. It is not that the students who have been imparted education
by the non-TET qualified teachers have not shone in life. To dislodge
such teachers from service on the ground that they have not qualified
the TET would seem to be a bit harsh although we are alive to the settled
legal position that operation of a statute can never be seen as an evil.
216. Bearing in mind their predicament, we invoke our powers under Article
142 of the Constitution of India and direct that those teachers who have
less than five years’ service left, as on date, may continue in service till
they attain the age of superannuatio n without qualifying the TET.
However, we make it clear that if any such teacher (having less than five
years’ service left) aspires for promotion, he will not be considered
eligible without he/she having qualified the TET.
217. Insofar as in-service teachers recruited prior to enactment of the RTE
Act and having more than 5 years to retire on superannuation are
concerned, they shall be under an obligation to qualify the TET within 2
years from date in order to continue in service. If any of such teachers
fail to qualify the TET within the time that we have allowed, they shall
110
have to quit service. They may be compulsorily retired; and paid
whatever terminal benefits they are entitled to. We add a rider that to
qualify for the terminal benefits, such teachers must have put in the
qualifying period of service, in accordance with the rules. If any teacher
has not put in the qualifying service and there is some deficiency, his/her
case may be considered by the appropriate department in the
Government upon a representation being made by him/her.
218. Subject to what we have said above, it is reiterated that those aspiring
for appointment and those in-service teachers aspiring for appointment
by promotion must, however, qualify the TET; or else, they would have
no right of consideration of their candidature.
219. With the aforesaid modification of the impugned judgments/orders, all
the appeals
87
relatable to in-service teachers of non-minority schools
stand disposed of on the above terms.
………..…………………J.
(DIPANKAR DATTA)
…………..………………J.
(MANMOHAN )
NEW DELHI ;
SEPTEMBER 01, 2025.
87
Civil Appeal Nos. 1389, 1390, 1391, 1393, 1395 to 1399, 1401, 1403, 1404 to 1410 of
2025
The Supreme Court of India has recently undertaken a critical examination of the applicability of the Teacher Eligibility Test (TET) to minority educational institutions, a matter of significant constitutional and educational import. This detailed analysis, stemming from a batch of civil appeals challenging various High Court judgments, underscores the complex interplay between the Right to Education Act (RTE Act), 2009, and the fundamental rights guaranteed to minorities under Article 30(1) of the Constitution. The Court’s extensive deliberation, culminating in a reference to a larger Bench, aims to provide clarity on issues that have far-reaching implications for the future of elementary education in India. You can find the full judgment and its implications discussed in concise formats on CaseOn, making it easier for legal professionals to stay updated.
The Supreme Court framed two primary issues for consideration in this batch of appeals:
Additionally, the Court raised a pivotal question regarding the need to reconsider the decision of the Constitution Bench in Pramati Educational and Cultural Trust v. Union of India (2014), particularly its blanket exemption of minority schools (aided or unaided) from the RTE Act.
The Court expressed serious doubts about the blanket exemption granted to minority institutions from the RTE Act by the Pramati Educational and Cultural Trust judgment. It noted that Pramati primarily focused on Section 12(1)(c) (25% reservation for disadvantaged groups) and concluded that its application would destroy the minority character. However, the Court observed that Pramati did not provide reasoning for extending this exemption to the entirety of the RTE Act, including provisions related to teacher qualifications, infrastructure, and child safety. This 'blanket exclusion' was deemed disproportionate and legally suspect.
The Court highlighted that the Pramati decision relied on *T.M.A. Pai Foundation*, which dealt with higher/professional education, not elementary education, where the focus is on foundational learning and socialisation. The right to education under Article 21A, being fundamental, should not be sacrificed due to unregulated commercialisation or a misinterpretation of minority rights.
The Court reiterated that Article 21A and Article 30(1) should be interpreted harmoniously. Article 30(1) is intended to preserve cultural and linguistic identity, not to grant blanket immunity from reasonable regulations aimed at maintaining educational standards and promoting inclusivity. The Court pointed out that many institutions labeled 'minority' do not exclusively serve their communities, and the exemption has led to a surge in applications for minority status, potentially to bypass RTE Act obligations.
Furthermore, the Court noted the non-consideration of Article 29(2) in the *Pramati* judgment regarding aided minority institutions. Article 29(2) prohibits denial of admission into State-maintained or aided institutions on grounds of religion, race, caste, language, or any of them, suggesting that aided minority institutions are subject to broader constitutional duties.
For legal professionals analyzing these intricate rulings, CaseOn.in offers 2-minute audio briefs that distill the core arguments and judicial observations, making complex constitutional law accessible and saving valuable research time.
Regarding Section 12(1)(c), the Court argued that the 25% reservation mandate for disadvantaged groups does not necessarily annihilate a school's minority character. It suggested that children from the minority community itself, if they fall within the definitions of 'weaker section' or 'disadvantaged group,' could fulfill this quota. Such an approach would reinforce the institution’s commitment to intra-community upliftment and preserve its cultural/religious identity, thereby avoiding demographic dilution concerns.
The Court firmly established TET as a mandatory qualification, not merely an eligibility criterion, essential for ensuring quality education. It clarified that ‘appointment’ under Section 23 of the RTE Act includes both initial appointments and promotions. The NCTE notifications and subsequent amendments, including the 2017 Amendment Act to Section 23(2) of the RTE Act, provided a grace period for in-service teachers to acquire TET qualifications, underscoring its compulsory nature.
The Court concluded that the decision in Pramati Educational and Cultural Trust v. Union of India (2014) requires reconsideration due to its blanket exemption of minority institutions from the RTE Act, which the current Bench views as potentially undermining the constitutional vision of universal elementary education and equality.
Accordingly, the Court formulated specific questions for a larger Bench of seven Judges to consider, including:
Pending the larger Bench's decision, the Court issued interim directions regarding TET for in-service teachers:
This Supreme Court judgment is crucial for several reasons, particularly for legal practitioners, academicians, and law students:
Disclaimer: All information provided herein is for informational purposes only and does not constitute legal advice. Readers should consult with a qualified legal professional for advice on specific legal issues.
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