Sagar Dattatray Chorghe vs the State of Maharashtra Throu the Sec. Dept of Education and Sports and Ors.

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Digitally signed SUNNY by SUNNYANKUSHRAO ANKUSHRAO THOTE THOTE Date: 2025.09.11 20:11:12 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 7943 OF 2024

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Sagar Dattatray Chorghe, Age : 34 yrs., Presently residing at post Kenjal, Taluka Bhor, Dhanori Road Pune 412205 ...Petitioner

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Versus

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The State of Maharashtra Through the Secretary, Department of Education and Sports, Mantralaya, Mumbai – 400 032.

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The Union of India, Department of School Education and Literacy, Ministry of Human Resources Development, Through the Central Government Advocate, Aaykar Bhavan, Mumbai – 400 020.

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The National Council for Teachers Education, Through the Central Government Advocate, Aaykar Bhavan, Mumbai – 400 020.

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The Director of Education, Dr. Annie Besant Marg, Madhyavarti Building, Pune 411 001.

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The Deputy Director of Education Primary Kolhapur Region, Kolhapur.

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The Education Officer (Primary) Satara Zilla Parishad, Satara.

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The President, Maharashi Karve Stree Shikshan Sanstha, Karve Nagar, Pune 411 052. 8. The Principal, Navin Marathi Shala, Maharshi Karve Road, 379, 410, Madhali Aali, Taluka : Wai, District : Satara. ...Respondents AND WRIT PETITION NO. 861 OF 2025 Sangeeta Ramchandra Salunke, Age : 40 years, Presently residing at Swapna Deep Survey No.55/3, Bhairav Nagar, Vishrantwadi Dhanori Road, Pune 411 015 ...Petitioner Versus 1. The State of Maharashtra Through the Secretary, Department of Education and Sports, Mantralaya, Mumbai – 400 032. 2. The Union of India, Department of School Education and Literacy, Ministry of Human Resources Development, Through the Central Government Advocate, Aaykar Bhavan, Mumbai – 400 020. 3. The National Council for Teachers Education, Through the Central Government Advocate, Aaykar Bhavan, Mumbai – 400 020.

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The Director of Education, Dr. Annie Besant Marg, Madhyavarti Building, Pune 411 001.

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The Deputy Director of Education Primary Kolhapur Region, Kolhapur.

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The Education Officer (Primary) Satara Zilla Parishad, Satara.

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The Pay and Provident Fund Unit, Pune Zilla Parishad, Pune

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The President, Maharashi Karve Stree Shikshan Sanstha, Karve Nagar, Pune 411 052

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The Principal, Navin Marathi Shala, Maharshi Karve Road, 379, 410, Madhali Aali, Taluka : Wai, District : Satara.

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...Respondents

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Mr. Suresh S. Pakale, Senior Advocate a/w Mr. Saurabh Pakale i/by Ms. Padmaja Malgaonkar, Advocate for the Petitioners.

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Mr. Rui Rodrigues a/w Ms. Naveen Kumari, Ms. Aparna Rajeshwari S., Advocate for Respondent No.2/UOI.

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Mr. Sandeep Waghmare, Advocate for Respondent Nos.7 & 8 in WP/7943/2024 & Respondent Nos.8 & 9 in WP/861/2025.

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Mr. V.G. Badgujar, AGP for the Respondent/State.

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Mr. Ashok Misal, Advocate for Respondent No.6.

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CORAM : RAVINDRA V. GHUGE & GAUTAM A. ANKHAD, JJ. RESERVED ON : 4^th SEPTEMBER, 2025 PRONOUNCED ON : 11^th SEPTEMBER, 2025

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JUDGMENT (PER : RAVINDRA V. GHUGE)

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Rule. Rule made returnable forthwith and heard finally by the consent of the parties, in both these matters.

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In the first Petition, the Petitioner has put forth Prayer

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Clauses (a) and (b), as under :-

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“(a) The impugned Order and directions dated 30^th September 2022 rejecting the Petitioner's approval (to the Petitioner's transfer on a sanctioned legal post) and the illegal withholding/stopping of salaries by placing reliance on the Govt. Resolution dated 24^th August 2018 is illegal, bad in law and is contrary to the Orders and directions passed by this Court as well as the Apex Court.

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(b) The impugned actions proposed are illegal, bad in law and not at all sustainable in the eyes of law. While doing so, the Authority has failed to appreciate that the Petitioner is TET qualified and is therefore, eligible and entitle to continue as a primary teacher.”

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In the second Petition, the Petitioner has put forth

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Prayer Clauses (a) and (b), as under :-

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“a. this Hon'ble Court be pleased to exercise powers vested in it under Article 226 of the Constitution of India and issue a Writ of Mandamus and/or Writ in the nature of Mandamus, Order and direction directing Respondent No.9 to accord approval to the appointment (transfer) of the Petitioner as an Assistant Teacher w.e.f. 19th November 2018 in the aided Respondent No. 9 School run by Respondent No. 8, and thereafter release the full salary in favour of the Petitioner in the admissible payscale after issuing her Shalarth ID w.e.f. November 2018 and after taking into consideration her seniority and qualifications, and further continue to pay the same in future from month to month.

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b. This Hon'ble Court be pleased to exereise powers vested in it under Article 226 of the Constitution of Indian and issue a writ of Certiorari and/or Writ, Order and/or direction in the nature of Certiorari, and call for the papers and proceedings in respect of the impugned Order dated 30^th September 2022, and examining its legality, validity and judicial propriety, quash and set aside the same, and thereafter direct Respondent No. 9 to accord approval to the appointment (transfer) of the Petitioner as an Assistant Teacher w.e.f. 19^th November 2018 in the aided. Respondent No. 9 School run by Respondent No. 8, and thereafter release the full salary in favour of the Petitioner in the admissible pay scale after issuing his Shalarth ID w.e.f Nov. 2018 and after taking into consideration his seniority and (CTET) qualifications, and further continue to pay the same in future from month to month.”

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4. In the first Petition, the Petitioner, Sagar Dattatray

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Chorghe, was initially appointed on the unaided division in the school on 1^st September, 2013. He did not have the Teachers

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Eligibility Test (TET) qualification, which was mandated by the National Council for Teachers Education (NCTE) for all the teachers. The State of Maharashtra directed that the TET shall be mandatory w.e.f. 2013. He cleared the Central Teacher Eligibility Test (CTET) examination (similar to the State TET) in 2021. It is undisputed that those candidates, who did not have the TET qualifications when they joined employment after the cut-off date mandating TET, and did not acquire the same on or before 31^st March 2019, cannot continue in employment.

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In the second Petition, the Petitioner Sangeeta Ramchandra Salunke, was appointed on 1^st August, 2013. Approval to her appointed was granted. She did not possess the TET qualification. She cleared the CTET examination in 2021.

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By a Judgment dated 11^th June, 2021, delivered in Writ Petition No.4904 of 2020 and a group of Petitions (Sagar Gopichand Bahire V/s. The State of Maharashtra & Others) , it was concluded that those who did not have the TET qualifications after 31^st March, 2019, would not be entitled to continue in employment. Their Petitions challenging the adverse orders/communications on

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their failure to possess TET qualifications, were dismissed. However, since the Petitioners were in employment, this Court granted status quo and continued the interim protective orders for a period of four weeks. There is no dispute that several such litigants approached the Hon’ble Supreme Court, and status quo with regard to their service conditions was directed to be maintained.

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The Hon’ble Supreme Court has recently delivered a Judgment on 1^st September, 2025 (110 Pages) in Civil Appeal No. 1385 of 2025 and connected Appeals (Anjuman Ishaat-E-Taleem Trust V/s. The State of Maharahstra & Others) . The Hon’ble Supreme Court concluded that NCTE has laid down the regulations, inter alia , providing for qualifications for recruitment of teachers for imparting education from pre-primary level to the senior secondary level. NCTE made TET a mandatory requirement by its notification dated 23^rd August, 2010.

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In 2017, the Parliament made an amendment by the Act No.24 of 2017, in Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as ‘RTE Act’), by introducing a proviso to Section 23(2) of the RTE Act. By

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the said proviso, the cut-off date for acquiring TET, which was 31^st March, 2015, was extended for a period of four years. Subsequently, the Additional Secretary, Ministry of Human Resources Development, Department of School Education and Literacy, issued a letter to the State Secretaries, reminding them that the last date for acquiring the minimum qualification of TET, is 1^st April, 2019 and no teacher, who does not possess minimum qualifications under the RTE Act, would be permitted to continue in service.

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The Hon’ble Supreme Court further held in Anjuman

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Ishaat-E-Taleem Trust (Supra), in Paragraph Nos.194 to 218, as under :-

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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 Ballabh⁸¹ . Relevant passage from such decision reads thus:

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“ 6. ... There is no dispute that appointment/recruitment to any service can be made from different sources, l.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

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recruitment of eligible persons who are not already in service in the organisation to which the recruitment is to be made …”

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195. Furthermore, reference may be made to the decision of this Court in K. Narayanan v. State of Karnataka⁸² where this Court traced the meaning of the word ‘recruitment’ and held:

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“ 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. ….”

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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 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.

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197. Having noticed what this Court has held in relation to recruitment/appointment, we turn to Section 23 of the RTE Act.

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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:

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commencement of this Act, does not possess minimum qualifications as laid down under subsection (1), shall acquire such minimum qualifications within a period of five years.”

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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 inservice teachers.

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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 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.

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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.

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N. ON MINIMUM QUALIFICATIONS VERSUS ELIGIBILITY

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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

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Section 23 is incorrect. There is no statutory imprimatur to make the TET mandatory and the same must be done away with.

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203. We are not persuaded to agree with this argument for reasons discussed in heading K above.

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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.

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205. Obfuscating the true import of the synonymous expressions would not lend assistance. What must be looked Into is the consequence of such 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 India⁸³ , which held thus:

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“Further, submission of learned counsel for the petitioners is that since the reserved category candidates have avalled 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 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

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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.”

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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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VII. ORDER OF REFERENCE FOR CONSIDERATION BY A LARGER BENCH

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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 Agarwal⁸⁴ 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 fiveJudges 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.

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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.

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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 alded or unaided, falling under clause (1) of Article 30 of the Constitution] has been correctly decided.

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209. We may also place on record that a coordinate Bench of this Court in Ashwini Thanappan v. Director of Education⁸⁵ 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.

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210. We, therefore, consider it expedient to follow the decision of this Court in Lala Shri Bhagwan v. Shri Ram Chand⁸⁶ 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:

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a. Whether the judgment in Pramati Educational and Cultural Trust (supra) exempting minority educational institutions, whether alded or unaided, falling under clause (1) of Article 30 of the Constitution, from the purview of the entirety of the RTE Act does require reconsideration for the reasons assigned by us?

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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?

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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?

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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?

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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.

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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

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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.

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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.

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VIII. ORDER ON APPLICABILITY OF THE TET TO INSERVICE TEACHERS

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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 that in-service teachers (irrespective of the length of their service) would also be required to qualify the TET to continue in service.

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215. However, we are mindful of the ground realities as well as the practical challenges. There are inservice 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.

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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 superannuation 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.

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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 fall to qualify the TET within the time that we have allowed, they shall 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.

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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.

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As such, the contentions of the in-service teachers, who did not have the TET qualifications, were rejected by the Hon’ble Supreme Court and it was recorded in Paragraph Nos.200 and 201

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that obtaining the TET qualification under the RTE Act is mandatory. If a candidate does not obtain such qualification and is an in-service teacher, he would cease to have any right to continue in service. The conclusions in Paragraph Nos.204, 205 and 206 make things clear that TET is one of the minimum qualifications that is prescribed under Section 23 of the RTE Act.

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In view of the said Judgment delivered in Anjuman Ishaat-E-Taleem Trust (Supra), the Hon’ble Supreme Court concluded as under :-

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a) In-service teachers (irrespective of the length of their service), would be required to qualify the TET to continue in service.

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b) By invoking Article 142 of the Constitution of India, those teachers who are in service prior to the advent of the RTE Act, having less than five years service left on the date of the Judgment of the Hon’ble Supreme Court (1^st September, 2025), may continue in service till the age of superannuation without qualifying the TET. Such teachers would not be entitled for promotion. If such teacher aspires

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for promotion, he will have to qualify the TET.

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c) In-service teachers recruited prior to the enactment

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of the RTE Act and having more than five years for superannuation, shall be obliged to qualify the TET within two years from the date of the order (1^st September, 2025), in order to continue in service. If any such teacher fails to qualify the TET within the two years, he shall have to quit service or he may be compulsorily retired with payment of terminal benefits. To qualify for the terminal benefits, such teacher must have put in the qualifying period of service, as is required under 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.

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d) Candidates aspiring for appointment or those inservice teachers aspiring for promotion, must qualify the TET.

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The issue raised before us is as to what would be the

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fate of those in-service candidates, who joined employment without

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the TET/CTET qualifications, after TET was made compulsory and have not acquired the said qualification till today or have acquired it before the Judgment of the Hon’ble Supreme Court in Anjuman (Supra) ?

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The Judgment of the Hon’ble Supreme Court in Anjuman Ishaat-E-Taleem Trust (Supra), does not reveal that this aspect was addressed to the Hon’ble Supreme Court. While dealing with cases of in-service candidates, who joined prior to the said test becoming mandatory, the Hon’ble Supreme Court ruled that those teachers, who have less than five years service left, need not acquire the qualification, unless they desire promotion. Those having more than five years to retire, shall acquire the TET qualification within two years from the date of the Judgment. If they fail to qualify the TET within the said time, they shall be removed from employment or can be compulsorily retired.

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Drawing guidance from this conclusion, we are of the view that ends of justice would be met and the dictum of the Hon’ble Supreme Court in Anjuman Ishaat-E-Taleem Trust (Supra), would stand followed, if we hold that those candidates who have

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acquired the TET before the judgement in Anjuman (supra) was delivered, can safely continue in employment, keeping in view the direction of the Hon’ble Supreme Court granting 2 years period to acquire the said qualification. If 2 years time from the date of the said Judgment has been granted to such candidates, then, those who have acquired the said qualification before the pronouncement of the judgment in Anjuman (supra), can surely be protected.

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We, therefore, conclude that in cases wherein, teachers who joined service after the introduction of the mandate of TET, did not acquire the TET qualification prior to 31^st March, 2019 and have acquired the qualifications prior to the Judgment of the Hon’ble Supreme Court in Anjuman Ishaat-E-Taleem Trust (Supra), dated 1^st September, 2025, can be continued in service and they would also be entitled for promotion.

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Needless to state, in all above cases, what is said about

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the State TET, would also apply to the CTET, meaning that candidates who have acquired CTET will be at par with the candidates who have acquired the State TET.

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In view of the above, both these Writ Petitions are

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partly allowed . The impugned orders refusing approval to their transfer from the unaided establishment to the aided establishment, on account of failing to acquire TET prior to 31^st March, 2019, shall stand quashed and set aside, in cases wherein the Petitioners have acquired the TET/CTET qualification. As both these Petitioners have acquired the TET/CTET qualification even prior to the Judgment of the Hon’ble Supreme Court in Anjuman Ishaat-ETaleem Trust (Supra), they would be entitled for approval to such transfer from the unaided to the aided establishment, and also the Shalarth-ID, provided there is no other legal impediment. We, therefore, direct the concerned authority to consider each of these cases, independently and pass a ‘fresh order’ with reasons, at the earliest.

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We record that those cases in which the candidates are alleged to have participated in the 2019 TET exam results scam, would not be ipso facto covered by the view taken in this Judgment. In short, each of such type of cases, would be scrutinized by the Court, independently, on the facts and circumstances of each case.

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