The article is an excerpt from the judgment Anjuman Ishaat E. Taleem Trust v. The State of Maharashtra and ors. (2025 SCC Online SC 1912)
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 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 23rd August, 2010, later amended by Notification dated 29th 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 Government 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 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 1st April, 2015, i.e., till 2019 and not 2021 if four years were calculated from the date of the notification (i.e., 9th August, 2017). The express legislative intent was to 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 31st 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 3rd 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 23rd 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.
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, 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 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:
“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 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 must 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 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.
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 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.
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 grass-root 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. 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.
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, (1999) 8 SCC 592. 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, 1994 Supp (1) SCC 44 : 1994 SCC (L&S) 392 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 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 that the in-service teachers would cease to have any right to continue in service. Reference may also be made to letter dated 3rd 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 v. 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 statutory 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 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, 2018 SCC Online All 1665, 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.
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, (2025) 6 SCC 1 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.
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, (2014) 8 SCC 272 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, [1965] 3 SCR 218 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 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?
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 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 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.
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 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.