By Krishnadas Rajagopal

Copyright thehindu

The story so far: The State of Tamil Nadu has sought a review of a Supreme Court judgment requiring in-service teachers from Classes 1-8 in non-minority schools across the country to clear the Teachers’ Eligibility Test (TET) in two years or be “compulsorily retired”. Other States have equally voiced concern about the September 1 judgment and its harsh lesson to lakhs of teachers validly employed in government, aided, unaided and private schools mentioned under Section 2(n) of the Right of Children to Free and Compulsory Education (RTE) Act, 2009. They are likely to follow Tamil Nadu to the top court.

What is the situation in Tamil Nadu?

Tamil Nadu alone employs 4,49,850 teachers in government and aided schools, of whom 3,90,458 are not TET-qualified. The States have argued that if the judgment is implemented, the entire school system faces the imminent prospect of collapse, with mass disqualification of teachers and denial of classroom instruction to millions of children. Tamil Nadu argues that the judgment provokes a direct conflict with Article 21A (fundamental right to free and compulsory education for children aged six to 14) of the Constitution. The State has sought a balance between ensuring quality of education and safeguarding the right to education.

What did the judgment mandate?

The two-judge Bench of Justices Dipankar Datta and Manmohan is not unaware of the ground realities. Justice Datta, who authored the September 1 judgment, acknowledged the contributions of non-TET qualified teachers appointed prior to the RTE Act. The court agreed that dislodging elementary school teachers was a “bit harsh” as they have taught students for decades without any serious complaints. Hence, the court, invoking Article 142 of the Constitution, has exempted teachers with less than five years left to retire from taking the TET. However, they would have to clear the TET if they seek promotion. But teachers who have more than five years of service must mandatorily qualify for the TET within two years from the date of the judgment. If they fail, they would have to quit service or be retired with terminal benefits.

Future appointments or promotions for teachers in non-minority schools would necessarily require TET qualification.

Further, the two-judge Bench judgment referred to a larger Bench the question whether minority educational institutions ought to be also included under the purview of the RTE Act. The court noted that the minority status was being misused by school managements to circumvent the mandate of the RTE Act to have TET-qualified teachers conduct elementary education. The judgment was based on a batch of appeals questioning school education departments’ insistence on faculty clearing the TET in minority institutions.

The two-judge Bench criticised a 2014 Constitution Bench judgment in the Pramati Educational and Cultural Trust case, which took minority institutions entirely outside the ambit of the RTE Act. The September 1 judgment made a strong pitch to bring schools run by minorities — whether religious or linguistic — into the RTE fold as the 2014 judgment had “unknowingly jeopardised the very foundation of universal elementary education”. It said the exemption of minority institutions from the RTE Act has led to “fragmentation of the common schooling vision and weakening of the idea of inclusivity and universality envisioned by Article 21A”.

What do the review petitions argue?

Review petitions filed by Tamil Nadu and a Kerala-based teacher’s union, Deseeya Adhyapakha Parishad (NTU) Kerala, argues that “even if the objective of enhancing teaching quality is accepted as legitimate, compelling pre-RTE Act appointees to pass TET on pain of disqualification is manifestly disproportionate”. Tamil Nadu recommended “less intrusive alternatives” like in-service training, capacity building, refresher courses, or bridging programmes to achieve the same goal without destabilising the education system.

At the centre of the controversy is the interpretation of Section 23 of the RTE Act. As per 23 (1), the National Council for Teacher Education (NCTE) has laid down minimum qualifications for a person to be eligible for appointment as a teacher in Classes one to eight, through its notification on August 23, 2010. An essential qualification is passing the TET conducted by the appropriate government. The rationale for including the TET is to bring national standards and the benchmark of teacher quality in the recruitment process.

In its review petition, Tamil Nadu contended that Section 23(1) would apply only to future recruitment of teachers. The State refers to Section 23(2) which empowers the Centre, through notification, to relax the minimum educational qualifications for appointment of teachers for a limited period not exceeding five years in case States have to deal with contingencies of dearth of teachers or institutional shortages. A proviso appended to Section 23 also makes it clear that any teacher who, at the commencement of the RTE Act, did not possess the minimum qualifications (TET) must acquire such qualifications within a period of five years. Section 23 does not call for a “blanket mandate” for TET nor could the interpretation of the provision be stretched to retrospectively disqualify teachers who were validly appointed before the notification of minimum qualifications (TET), Tamil Nadu submitted in its review plea.

The State said the September 1 judgment raises the spectre of “empty classrooms” and distracted teachers scrambling to save their livelihood for the next two years.