ANJUMAN ISHAAT-E-TALEEM TRUST v. THE STATE OF MAHARASHTRA AND OTHERS

Citation: [2025] 9 S.C.R. 410, 2025 INSC 1063

Court: Supreme Court of India

Bench: Dipankar Dutta and Manmohan, JJ.

Judgment text

SUPREME COURT OF INDIA Anjuman Ishaat-E-Taleem Trust v. The State of Maharashtra and Others Civil Appeal No. 1385 of 2025 [2025] 9 S. C. R. 410 : 2025 INSC 1063 Anjuman Ishaat-E-Taleem Trust v. The State of Maharashtra and Others (Civil Appeal No. 1385 of 2025) 01 September 2025 [Dipankar Dutta* and Manmohan, JJ. ] Issue for Consideration 1) Whether the State can insist that a teacher seeking appointment in a minority educational institution must qualify the Teacher Eligibility Test (TET); If so, whether providing such a qualification would affect any of the rights of the minority institutions guaranteed under the Constitution of India; and 2) Whether teachers appointed much prior to issuance of Notification dated 29th July, 2011 by the National Council for Teacher Education (NCTE) u/s. 23(1) of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) read with the newly inserted proviso (second proviso) in s.

23(2) and having years of teaching experience (25 to 30 years) are required to qualify in the TET for being considered eligible for promotion. Headnotes† Right of Children to Free and Compulsory Education Act, 2009 - s. 23 - Teacher Eligibility Test (TET) - Whether mandatory: Held: Obtaining the TET qualification under the RTE Act is mandatory - 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. [Para 200] Right of Children to Free and Compulsory Education Act, 2009 - s.

2(n) - Applicability of Teacher Eligibility Test (TET) to In-Service Teachers - Directions issued under Article 142 of the Constitution: Held: 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 by this Court - Logically, in-service teachers (irrespective of the length of their * Author Anjuman Ishaat- E- Taleem Trust v.

The State of Maharashtra and Others service) would also be required to qualify the TET to continue in service - However, there are in-service teachers who were recruited much prior to the advent of the RTE Act and have been imparting education to their students to the best of their ability without any serious complaint - To dislodge such teachers from service on the ground that they have not qualified the TET would seem to be a bit harsh although operation of a statute can never be seen as an evil - Bearing in mind their predicament, directions issued by invoking Art.

142 of the Constitution that teachers having 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, if any such teacher (having less than five years' service left) aspires for promotion, he will not be considered eligible without having qualified the TET - 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 that time, they shall have to quit service - They may be compulsorily retired; and paid whatever terminal benefits they are entitled to - 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 - 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.

[Paras 214-217] Constitution of India - Article 30 - Right of Children to Free and Compulsory Education Act, 2009 s. 12(1)(c) - Constitution Bench decision in Pramati Educational and Cultural Trust, exempting minority educational institutions, whether aided or unaided, falling under clause (1) of Article 30 of the Constitution, from purview of entirety of the RTE Act - Correctness of - Doubted: Held: 1.

In the wake of Pramati Educational and Cultural Trust, minority status seems to have become a vehicle for circumventing the mandate of the RTE Act - It has opened up a situation whereby multiple institutions have sought to acquire minority status to 412 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 - The ruling in Pramati Educational and Cultural Trust strikes at the heart of good quality universal elementary education and its consequences are far-reaching - A reconsideration of Pramati Educational and Cultural Trust 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 - The Court in Pramati Educational and Cultural Trust focused on s.

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 s. 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 is not reasonable and proportionate - Pramati Educational and Cultural Trust, 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.

[Paras 131, 132, 185, 187, 188] 2. It is doubtful as to whether Pramati Educational and Cultural Trust [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 - A coordinate Bench in Ashwini Thanappan v. Director of Education after recording the submission of counsel for the petitioner of Pramati Educational and Cultural Trust being inconsistent with the decision in P. A. Inamdar and requires further examination, directed Anjuman Ishaat- E- Taleem Trust v. The State of Maharashtra and Others the Registry to place the matter before the Hon'ble the Chief Justice of India - The reference is yet to be answered - Hon'ble the Chief Justice of India to consider the desirability as to whether the following issues, namely, a.

Whether the judgment in Pramati Educational and Cultural Trust 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 re-consideration? ; b. Whether the RTE Act infringes the rights of minorities, religious or linguistic, guaranteed under Article 30(1) of the Constitution? And, assuming that s. 12(1)(c) of the RTE Act suffers from the vice of encroaching upon minority rights protected by Article 30 of the Constitution, whether s. 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 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 regarding unconstitutionality of the other provisions of the RTE Act, except s. 12(1)(c), the entirety of the enactment should have been declared ultra vires minority rights protected by Article 30 of the Constitution? , or such other issues as may be deemed relevant, do warrant reference to a larger Bench.

[Paras 208-210] Constitution of India - Article 21A - Constitutional goal of Universal Elementary Education and Common Schooling System: Held: 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 - Under the RTE Act, focus is on elementary education which is the foundational building block of a child's journey of learning, rather than tertiary or higher education - Elementary education could count as the most crucial stage in the education cycle - Universal elementary education and a common schooling system aim to uphold a shared curriculum and uniform quality standards across 414 both government and private schools, ensuring that 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 - 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 - Countries that have succeeded in achieving universal primary education have consistently demonstrated higher levels of social mobility, public health, and national cohesion - This vision is clearly embedded in the RTE Act - s.

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 - 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.

[Paras 93, 95, 98, 99] Constitution of India - Whether Article 30(1) envisages blanket immunity from all forms of regulation to minority institutions: Held: Article 30(1) has never been construed as conferring blanket immunity on minority institutions from all forms of regulation - 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 promoting their welfare - 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. [Para 143] Constitution of India - Does the Regulatory framework under the RTE Act, flowing from Article 21A, classify as a reasonable Anjuman Ishaat- E- Taleem Trust v.

The State of Maharashtra and Others restriction under Article 19(6) - Right of Children to Free and Compulsory Education Act, 2009: Held: 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 - 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 - 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 - 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 constitutional 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.

[Paras 146, 149, 151] Constitution of India - Article 21A - Quality of education is inherent in the right to education - Teachers' role in imparting quality education - Discussed: Held: While reflecting on free and compulsory education, one cannot be oblivious of the need for quality education to be imparted to children aged between 6 and 14 years - Compromising the quality 416 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.

[Para 163] Constitution of India - No inherent conflict between Article 30 and 21A: Held: Both Article 21A and Article 30(1) occupy high constitutional position and must be interpreted harmoniously by complementing each other - There is no inherent conflict between Article 21A and Article 30(1). [Para 171] Minority institution - Applicability of Right of Children to Free and Compulsory Education Act, 2009 - Discussed: Held: 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 of the Constitution 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.

[Para 185] Service Law - Appointment and Recruitment - Meaning of the terms: Held: The term 'appointment' means not only initial appointment but also covers appointment by 'promotion', among others - 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. [Paras 194, 196] Anjuman Ishaat- E- Taleem Trust v.

The State of Maharashtra and Others Constitution of India - Judicial discipline - Precedents - Article 141: Held: The law declared by the Supreme Court binds all courts which would include itself too - Nonetheless Supreme Court possess a unique authority, unlike the high courts and the subordinate courts, to re-examine legal principles laid down by previous Benches - Such re-examination, however, cannot obviously be resorted to except for compelling reasons - Two judges Supreme Court Bench can merely doubt the view expressed by a larger Bench; not differ and depart from such view of a larger Bench.

[Paras 123, 207] Judicial Pronouncement - True impact and legacy - Principle: Held: 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 practical challenges it sought to remedy and lived realities it endeavoured to shape. [Para 132] Service Law - No difference as such between qualification and eligibility. [Para 205] Case Law Cited Pramati Educational and Cultural Trust v. Union of India [2014] 11 SCR 712 : (2014) 8 SCC 1 - doubted. Lala Shri Bhagwan v. Shri Ram Chand [1965] 3 SCR 218; In Re: Kerala Education Bill, 1957 [1959] 1 SCR 995; T. M. A. Pai Foundation v. State of Karnataka [2002] Supp. 3 SCR 587 : (2002) 8 SCC 481; Ahmedabad St.

Xavier's College Society v. State of Gujarat [1975] 1 SCR 173 : (1974) 1 SCC 717 followed. M. Ramachandran v. Govind Ballabh [1999] Supp. 3 SCR 38 : (1999) 8 SCC 592; K. Narayanan v. State of Karnataka [1994] Supp. 2 SCR 105 : (1994) Supp. 1 SCC 44 : 1994 SCC (L&S) 392 - relied on. Society for Unaided Private Schools of Rajasthan v. Union of India [2012] 2 SCR 715 : (2012) 6 SCC 102; Society for Unaided Private Schools of Rajasthan v. Union of India [2012] 2 SCR 715 : (2012) 6 SCC 1; P. A. Inamdar v. State of Maharashtra [2005] Supp. 2 418 SCR 603 : (2005) 6 SCC 537; Ashoka Kumar Thakur v. Union of India [2008] 4 SCR 1 : (2008) 6 SCC 1; State of Kerala v. N. M. Thomas [1976] 1 SCR 906 : (1976) 2 SCC 310; Kesavananda Bharati v. State of Kerala [1973] Supp. 1 SCR 1 : (1973) 4 SCC 225; CSIR v. KGS Bhat (1989) 4 SCC 635; T. R. Kapur v. State of Haryana [1987] 1 SCR 584 : (1986) Supp. SC 584; Secy. , Malankara Syrian Catholic College v. T. Jose [2006] Supp.

9 SCR 644 : (2007) 1 SCC 386; Brahmo Samaj Education Society & Ors. v. State of West Bengal [2004] Supp. 2 SCR 214 : (2004) 6 SCC 224; Sindhi Education Society v. Chief Secretary Govt. of Delhi [2010] 8 SCR 81 : (2010) 8 SCC 49; Chandana Das (Malkar) v. State of West Bengal [2014] 13 SCR 796 : (2015) 12 SCC 140; Committee of Management, Vasanta College for Women v. Tribhuwan Nath Tripathi [1996] Supp. 9 SCR 56 : (1997) 2 SCC 560; Food Corpn. of India v. Bhanu Lodh [2005] 2 SCR 350 : (2005) 3 SCC 618; Union of India v. Pushpa Rani [2008] 11 SCR 440 : (2008) 9 SCC 242; Hardev Singh v. Union of India (2011) 10 SCC 121; J. Ranga Swamy v. Govt. of Andhra Pradesh (1990) 1 SCC 288; Union of India v. Krishna Kumar [2019] 1 SCR 982 : (2019) 4 SCC 319; Zee Telefilms v Union of India [2005] 1 SCR 913 : (2005) 4 SCC 649; B. Shama Rao v. Union Territory of Pondicherry [1967] 2 SCR 650 : AIR 1967 SC 1480; State of Orissa v.

Sudhanshu Sekhar Misra [1968] 2 SCR 154; Director of Settlements, Andhra Pradesh v. M. R. Appa Rao [2002] 2 SCR 661 : (2002) 4 SCC 638; Dalbir Singh v. State of Punjab [1979] 3 SCR 1059 : (1979) 3 SCC 745; State of UP v. Synthetics & Chemicals Ltd. [1991] 3 SCR 64 : (1991) 4 SCC 139; Arnit Das v. State of Bihar [2000] Supp. 1 SCR 69 : (2000) 5 SCC 488; Madhav Rao Jivaji Rao Scindia v. Union of India [1971] 3 SCR 9 : (1971) 1 SCC 85; Christian Medical College Vellore Assn. v. Union of India [2020] 5 SCR 516 : (2020) 8 SCC 705; Mohini Jain v. State of Karnataka [1992] 3 SCR 658 : (1992) 3 SCC 666; Unni Krishnan, J. P. v. State of Andhra Pradesh [1993] 1 SCR 594 : (1993) 1 SCC 645; Rev. Sidhrajbhai Sabhai v. State of Gujarat [1963] 3 SCR 837; N. M. Nageshwaramma v. State of A. P. (1986) Supp. 1 SCC 166; Andhra Kesari Educational Society v. Director of School Education [1988] Supp. 3 SCR 893 : (1989) 1 SCC 392; State of Maharashtra v.

Vikas Sahebrao Roundale [1992] 3 SCR 792 : (1992) 4 SCC 435; Chandigarh Administration. v. Rajni Vali (Mrs. ) [2000] 1 SCR 158 : (2000) 2 SCC 42; State of Orissa v. Mamata Mohanty [2011] 2 SCR 704 : (2011) 3 SCC 436; Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel [2012] 7 SCR 1054 : Anjuman Ishaat- E- Taleem Trust v. The State of Maharashtra and Others (2012) 9 SCC 310; Aligarh Muslim University v. Naresh Agarwal [2024] 11 SCR 1647 : (2025) 6 SCC 1; Ashwini Thanappan v. Director of Education (2014) 8 SCC 272 - referred to. Arvind Kumar Shukla v. Union of India, 2018 SCC OnLine All 1665 - referred to. Books and Periodicals Cited Constituent Assembly of India Debates (Volume 7, 08. 12. 1948), 7. 69. 35 & 7. 69. 36 (Pandit Thakur Dass Bhargava) List of Websites upload_document/RTE_Section_wise_rationale_rev_0.

pdf> List of Acts The Right of Children to Free and Compulsory Education Act, 2009; The Right of Children to Free and Compulsory Education (Amendment) Act, 2017; The Constitution (Eighty-sixth Amendment) Act, 2002; The Constitution (Ninety-third Amendment) Act, 2005; Right of Children to Free and Compulsory Education Rules, 2010; The Special Rules for the Tamil Nadu School Educational Subordinate Service, 2020; The National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001; The National Council for Teachers Education (Determination of Minimum 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.

List of Keywords Minority educational institution; National Council for Teacher Education; Teacher Eligibility Test; in-service teachers; Qualification; Recruitment; Appointment; Right to education; Pramati Educational and Cultural Trust; Minority status; National developmental goals; Minority schools; P. A. Inamdar; Ashwini Thanappan; Minority rights; Minority community; Referred to larger bench; Universal elementary education; Common schooling system; Free and compulsory education. 420 Case Arising From CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1385 of 2025 From the Judgment and Order dated 12. 12. 2017 of the High Court of Judicature at Bombay in WP No. 4640 of 2016 With Civil Appeal No(s). 1386, 1364-1367, 1389, 1404, 1395, 1396-1397, 1405, 1403, 1398, 1406-1408, 1393, 1399, 1391, 1401, 1390, 1409-1410, 6367, 6365, 6366, and 6364 of 2025 Appearances for Parties Advs. for the Appellant: S. Nagamuthu, P. Wilson, Shankaran, Ans Nadkarni, K. radhakrishnan, Jaideep Gupta, Sr.

Advs. , M. P. Parthiban D. Kumanan, Amol Chitale, Sarthak Sharma, Mrs. Pragya Baghel, Apoorv Malhotra, Lokesh Krishna, M/S. Shakil Ahmad Syed, Ms. Asha Gopalan Nair, Ms. Nivedita Nair, Sudarshan Lamba, Sabarish Subramanian, Ms. Jahnavi Taneja, C. Kranthi Kumar, Vishnu Unnikrishnan, Riddi Bose, Ms. Racheeta Chawla, Ms. Sampriti Bakshi, Danish Saifi, Ms. Rishi Agarwal. Advs. for the Respondents: R Venkataramani, Attorney General for India, K M Nataraj, A. S. G. , Gopal Sankarnarayanan, Ms. Manisha T Karia, K Parameshwar, Nachiketa Joshi, Sr. Advs. , A. S. Rajnarayan, Ms. Neelam Singh, Krishan Kant Kumar, Sudarshan Lamba, Vatsal Joshi, Ms. Satvika Thakur, Kanu Agrawal, Raman Yadav, Chitvan Singhal, Kartikay Aggarwal, Abhishek Kumar Pandey, Ms. Ameya Vikrma Thanvi, Oorjaswi Goswani, K. Paari Vendhan, Vishal Sinha, Tushar Srivastava, Shashibhushan P. Adgaonkar, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Ms. Shalini Chandra, Deepin Deepak Sahni, Ms. Ananya Arora, Ms.

Shreya Gupta, Ms. Asha Gopalan Nair, Abdulrahiman Tamboli, Rahul Joshi, Mrs. N. Kavitha Rameshwar, A. Rajarajan, Mrs. L. Vasuki Rajarajan, R. Ramachandran, M. Yogesh Kanna, Mohd Parvez Dabas, Uzmi Jameel Husain, Syed Mehdi Imam, Vinamra Kopariha, Yash S. Vijay, Sanjay Kumar Dubey, T. Bhaskar Gowtham, Ms. Shuchi Singh, Vivek Kumar Pandey, Ms. Shivani Mishra, Alabhya Dhamija, Aditya Kashyap, Santosh Kumar, Ayush Anand, Sai Shashank V, Praneet Pranav, Bhaskar Gautam, Dr. G Babu, Mugundhan, Monu Kumar, Dr. Vinod Kumar Tewari, Sandeep Kumar Dwivedi, Bhoopesh Pandey, Jitesh Sharma, Ms. Anjuman Ishaat- E- Taleem Trust v. The State of Maharashtra and Others Saumya Mishra, Bharat Bhushan Mishra, Ms. Nidhi Jain, Ankit Goel, Rakesh Mishra, Ms. Deepika Kalia, Ms. Vasudha Singh, Ms. Vaishnavi, Ms. Madhumeet Kaur, Sudeep Chandra, Pratyaksh Semwal, Mohnish Nirwan, Ashok Kumar, Vipin Tiwari, Umesh Dubey, Ms. N. Kavitha Rameshwar, A. Rajarajan, Ms. L. Vasuki Rajarajan, R.

Ramchandran, Parth Sarathi, Gyanendra Vikram Singh, Ms. Soumya Gulati, Sanjay Kumar Visen, Mrs. Shantha Devi Raman, Garvesh Kabra, Parth Kaushik, Arihant Jain, Ms. Tanisha Gopal, Sameer Shrivastava, Palak Mathur, Ms. Yashika Varshney. Judgment / Order of the Supreme Court Judgment Dipankar Datta, J. INDEX* I. Introduction .................................................................................. 3 II. Orderspassedbytherespective High Courts, impugnedinthe appeals ........................................................................................... 6 Impugned Judgmentintheleadappealbeing Civil Appeal No. 1385 of 2025 and Civil Appeal No. 1386 of 2025 ................................ 6 Impugned Judgmentin Civil Appeal Nos. 6365 - 6367 of 2025 .... 7 Impugned Orderin Civil Appeal Nos. 1364 - 1367 of 2025 ......... 8 Impugnedjudgmentin Civil Appeal Nos.

1389, 1390, 1391, 1393, 1395, 1396, 1397, 1398, 1399, 1401, 1403, 1404, 1405, 1406, 1407, 1408, 1409, 1410 of 2025 ............................................................ 9 Impugnedjudgmentin Civil Appeal No. 6364 of 2025 ................. 12 Summaryofthejudgments ........................................................... 13 III. Previousdecisionsconcerningthe RTE Act .............................. 14 Societyfor Unaided Private Schoolsof Rajasthan ................... 14 Pramati Educationaland Cultural Trustv. Unionof India ......... 18 IV. Argumentsofthe Parties ............................................................ 27 V. The Acts, Rules, Regulationsand Notifications .............................. 40 VI. Analysisand Reasons ................................................................... 45 A. Frompromisetoright: theconstitutionaljourneyofarticle 21A andtherighttoelementaryeducationin India ............. 46 * Ed. Note: Pagination as per the original Judgment. 422 B.

Breathing life into the promise: the RTE Act and the realisationof Article 21A ..................................................... 51 C. Theconstitutionalgoalofuniversalelementaryeducation andcommonschoolingsystem .............................................. 54 D. Section 12(1)(c), minorityinstitutionsandthebeginningof theconundrum ....................................................................... 56 E. Thecostofexclusion: consequencesofexemptingminority institutionsfromtheambitofthe RTE Act ......................... 64 F. Does Article 30(1) reallyenvisageblanketimmunityfromall formsofregulationtominorityinstitutions? ..................... 72 G. Doestheregulatoryframeworkundertherteact, flowing from Article 21A, classifyasareasonablerestrictionunder article 19(6)? ......................................................................... 78 H. Minority institutions and the shared constitutional responsibilityunder Article ..................................................

82 I. Teachers' roleinimpartingqualityeducation ..................... 84 J. Applicabilityofthe TET toin-serviceteachersappointed priorto 2009 andrequirementof TET qualificationfor promotionofteachers .......................................................... 88 K. Ourfindings ........................................................................... 91 Onperceivedconflictbetween Articles 21A and 30(1) and theapplicabilityofthe RTE Acttominorityinstitutions.... 91 Onapplicabilityof Section 12(1)(c), RTE Acttominority institutions.............................................................................. 95 L. Summaryofourviewson Pramati Educationaland Cultural Trust ...................................................................................... 99 M. Requirementofminimumqualification - whetherapplicable toin-serviceteachers? ......................................................... 100 N. Onminimumqualificationsversuseligibility ......................... 103 VII.

Orderofreferenceforconsiderationbyalargerbench ......... 105 VIII. Orderonapplicabilityofthe TET toin-serviceteachers ......... 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 proceedings instituted before them. Inter alia, questions as regards Anjuman Ishaat- E- Taleem Trust v. The State of Maharashtra and Others applicability of the Teacher Eligibility Test1 to minority educational institutions and whether qualifying in the TET is 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, 20092 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 28th January, 2025 in the erstwhile lead matter, viz. Civil Appeal No. 1384 of 20253, 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 20th February 2025, as the 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 28th January, 2025. The first issue was framed by a coordinate Bench vide order dated 14th 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 28th 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 1 TET 2 RTE Act 3 The Director of School Education Chennai 6 & Anr. vs. B.

Annie Packiarani Bai 424 so, whether providing such a qualification would affect any of the rights of the minority institutions 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 29th July, 2011 by the National Council for Teacher Education4 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? II. Orderspassedbytherespective High Courts, impugned in theappeals 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 Bombay5 dated 12th December 2017 on a writ petition6 instituted by Azad Education Society, Miraj (a minority institution). Under challenge was a Government Resolution dated 23rd 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 AhmedabadSt. Xavier's College Society v. State of Gujarat7. 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 4 NCTE 5 Bombay High Court 6 Writ Petition No. 4640 of 2016 7 (1974) 1 SCC 717 Anjuman Ishaat- E- Taleem Trust v.

The State of Maharashtra and Others the impugned order. Azad Education Society, Miraj has not preferred any appeal against the said judgment. 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 12th December 2017) failed to consider a judgment of a co-ordinate bench of the Bombay High Court8 which took a contrary view. Impugned Judgmentin 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 Madras9, whereby the writ appeals10 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 petitions11 were filed by the Management of Islamiah Higher Secondary Schools (respondent herein, being a minority institution), 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 7th December, 2021, allowed the writ petition by setting aside the rejection of the proposal and held that the respondent, as a standalone institution, 8 Judgment dated 8th 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 426 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 22nd 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 Orderin Civil Appeal Nos.

1364 - 1367 of 2025 14. The common order under challenge in these appeals, dated 1st April 2019, was passed by the Bombay High Court on four writ petitions12. Interim relief was granted thereby in favour of the writ petitioners. 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 Mumbai13, through its Education Department informed these teachers of the requirement to qualify the TET by 30th 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. Impugnedjudgmentin Civil Appeal Nos.

1389, 1390, 1391, 1393, 1395, 1396, 1397, 1398, 1399, 1401, 1403, 1404, 1405, 1406, 1407, 1408, 1409, 1410 of 2025 12 Writ Petition Nos. 3951, 4044, 9446 and 9447 of 2016 13 MCGM Anjuman Ishaat- E- Taleem Trust v. The State of Maharashtra and Others 17. The common judgment dated 2nd 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 23rd 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 dated 29th 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 23rd 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 30th 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 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 29th 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 29th 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 30th 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 this Court in Pramati Educational and Cultural Trust v. Union of India14which 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). Impugnedjudgmentin Civil Appeal No. 6364 of 2025 24.

This appeal, at the instance of the Union of India15, arises from the judgment and order dated 8th January, 2019 passed by the Madras High Court in its intra-court appellate jurisdiction dismissing the writ appeal16 filed by the State of Tamil Nadu. As a consequence thereof, the order of the Single Judge (under appeal allowing the writ petition17 filed by M. A. Stephen Sundar Singh18, respondent no. 1 herein, was upheld. UoI was not a party to the writ petition 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 Anjuman Ishaat- E- Taleem Trust v. The State of Maharashtra and Others 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 School19 - an aided minority institution.

The appointment of Stephen was communicated by the school to the District Elementary Education Officer20, for confirmation. The DEEO, however, refused to approve the appointment on the ground that Stephen had not qualified the TET. Aggrieved by the rejection, Stephen filed the writ petition, which was allowed by the High Court vide order dated 28th April, 2018. 26. A Division Bench of the High Court upheld the said judgment and order dated 8th 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. Summaryofthejudgments 28. A brief summary of the views taken by the Bombay and the Madras High Courts vide different judgments is encapsulated below: Impugned Viewtaken Civil Appeal judgment Nos.

BOMBAY HIGH COURT 12th Held that TET was mandatory for minority 1385-86 of December institutions. 2025 2017 1st April Granted interim relief to teachers 1364 - 1367 2019 (teaching in minority institution) by staying of 2025 the directions which mandated TET as a qualification. 19 School 20 DEEO 430 MADRAS HIGH COURT 2nd June, TET was held to be mandatory for 1389, 1390, 2023 teachers teaching in non-minority 1391, 1393, institutions. 1395, 1396- 99, 1401, As regards minority institutions, TET 1403-1410 of was help inapplicable, in view of the 2025 judgement of this Court in Pramati Educational and Cultural Trust (supra). 8th January, Took the view that TET does not bind 6364 of 2025 2019 minority institutions. 22nd July, Did not consider the question of TET. The 6365 - 6367 2022 same is being argued for the first time of 2025 before this Court. III. Previousdecisionsconcerningthe RTE Act Societyfor Unaided Private Schoolsof 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 6th September, 201021, 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 Anjuman Ishaat- E- Taleem Trust v.

The State of Maharashtra and Others 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 India22. 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 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 22 (2012) 6 SCC 1 432 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 Karnataka23 and P. A. Inamdar v. State of Maharashtra24, 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 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 23 (2002) 8 SCC 481 24 (2005) 6 SCC 537 Anjuman Ishaat- E- Taleem Trust v.

The State of Maharashtra and Others 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 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 Educationaland Cultural Trustv. Unionof 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 beforea 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 22nd March, 201325 was of the opinion that the matter ought to be heard by a larger Bench and, accordingly, directed that the 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). 25 (2013) 5 SCC 752 434 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 India26 to the limited extent of its application to statemaintained institutions and aided educational institutions. Relevant passages from the decision in Ashoka Kumar Thakur (supra) read as under: "668.

The Constitution 93rd Amendment Act, 2005, is valid and does not violate the "basic structure" of the Constitution so far as it relates 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. 26 (2008) 6 SCC 1 Anjuman Ishaat- E- Taleem Trust v. The State of Maharashtra and Others 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 v. N. M. Thomas27 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. 27 (1976) 2 SCC 310 436 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 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 Anjuman Ishaat- E- Taleem Trust v. The State of Maharashtra and Others 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 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) 438 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 Kerala28. 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 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 28 (1973) 4 SCC 225 Anjuman Ishaat- E- Taleem Trust v. The State of Maharashtra and Others 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 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 440 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 in 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 minority 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 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 Anjuman Ishaat- E- Taleem Trust v. The State of Maharashtra and Others 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 PramatiEducational & Cultural Trust (supra), are encapsulated in the table below: Whether the RTE Act is applicable to educational institutions: Society forUnaided Private Schools of Rajasthan (supra) Aided Unaided Minority √ x Non-minority √ √ Pramati Educational & Cultural Trust (supra) Aided Unaided Minority x x Non-minority √ √ 442 IV. Argumentsofthe Parties 52. Learned senior counsel and counsel for the respective parties were heard at length.

We also requested Mr. Venkatramani, 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. 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 Anjuman Ishaat- E- Taleem Trust v.

The State of Maharashtra and Others 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 23rd August, 2010, limits TET to classes I-VIII, despite NCTE's authority under Section 12A of the National Council for Teacher Education Act, 199329 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 23rd 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. l.

Society forUnaided 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 forUnaided Private Schools of Rajasthan (supra) held that all minority 29 NCTE Act 444 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 forUnaided 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 Bhatt30); 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 Haryana31). 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. 30 (1989) 4 SCC 635 31 1986 Supp. SC 584 Anjuman Ishaat- E- Taleem Trust v. The State of Maharashtra and Others 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 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. Jose32 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 regulate the quality of education, including education imparted in minority educational institutions. T. M. A. Pai Foundation (supra), as reiterated in Brahmo Samaj Education 32 (2007) 1 SCC 386 446 Society & Ors. v. State of West Bengal33, Sindhi Education Society v. Chief Secretary Govt. of Delhi34, Chandana Das (Malkar) v. State of West Bengal35, 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. Tribhuwan Nath Tripathi36 and Food Corpn. of India v. Bhanu Lodh37. 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 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, 201438 are to be read along with Section 12A of the NCTE Act which refers to notification relaxing qualification by notification dated 23rd 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