“Job Security and Promotion of Senior Teachers in the Context of TET”

Avichal

The NCTE, disregarding the proviso under Section 23(2) of the RTE Act, 2009, exercised the powers granted under Section 23(1) of the RTE Act, 2009, and through its Notification dated 23/08/2010, Para 1, prescribed the minimum qualifications for appointment of teachers. According to this notification, teachers appointed before 23/08/2010 were exempted from possessing minimum qualifications under Para 4, and in Para 5, it was decided that recruitments made pursuant to advertisements issued before 23/08/2010 would continue to be governed under the NCTE Regulations, 2001.

Subsequently, in 2011, the Central Government strengthened the powers of NCTE further. The NCTE attempted to gradually bring senior and super senior teachers within the ambit of the RTE Act, because it was sympathetic towards those appointed and advertised prior to the enforcement of the RTE Act, and wanted to protect them from its rigid provisions. Furthermore, it did not want to cast a shadow of doubt over the service of any teacher protected under Article 16 of the Constitution.

However, when the NCTE, in Para 4(b) of its Notification dated 12/11/2014, required that even senior and super senior teachers must possess the minimum qualifications prescribed in Para 1 of its earlier Notification dated 23/08/2010, for the promotional cadre they held, the Government of Tamil Nadu and the senior/super senior teachers there strongly opposed it. They argued that they had already been granted exemption under Paras 4 and 5 of the 23/08/2010 Notification. They further claimed that they had their own service rules – meaning that while fresh recruitment would be done through TET, promotions would be made without TET.

In other words, the same NCTE which had ignored the proviso under Section 23(2) of the RTE Act, 2009 and issued Paras 4 and 5 in its 23/08/2010 Notification, now faced resistance from senior and super senior teachers who refused to accept Para 4(b) of the 12/11/2014 Notification.

As a result, NCTE did not place Paras 4 and 5 of its 23/08/2010 Notification in conjunction with Para 1 of the same notification before the Hon’ble Supreme Court. Consequently, the proviso under Section 23(2) of the RTE Act rendered Paras 4 and 5 of the 23/08/2010 Notification ineffective.

The Hon’ble Supreme Court, by exercising its powers under Article 142 of the Constitution, exempted super senior teachers – whose remaining service was only five years – from TET for continuing in service. However, even these super senior teachers were not exempted from TET for the purpose of promotion.

Thus, senior teachers can attempt to secure exemption from TET for continuing in service by reading Paras 4 and 5 of the 23/08/2010 Notification and Para 4(b) of the 12/11/2014 Notification together with Para 1 of the 23/08/2010 Notification, thereby bringing themselves within the ambit of Section 23(1) of the RTE Act. But if they ignore Para 4(b) of the 12/11/2014 Notification, the NCTE will be unable to defend them, since it would then have no basis to show that it was gradually bringing them under the ambit of the RTE Act through promotions.

Therefore, in order to continue in service without TET, it becomes a legal compulsion for senior teachers to accept TET for promotions.

Super senior teachers, who had only five years of service left, have been exempted from TET for continuation in service, but they can still obtain promotion by passing TET.

In reality, those teachers who advocate TET for promotions are actually in favor of continuing in service without TET. Before the Madras High Court judgment, I personally wanted that those appointed before 23/08/2010, or even those appointed later under advertisements issued prior to 23/08/2010, should be exempted from TET even for promotions.

But after the judgment of the Hon’ble Madras High Court in the Tamil Nadu matter, this was no longer possible, because thereafter, on 11/09/2023, NCTE itself issued a letter making TET mandatory for promotions, and even their continuation in service became questionable before the Hon’ble Supreme Court.

It was the very same Tamil Nadu teachers – who supported TET in promotions – who played a role in ensuring that super senior teachers were exempted from TET for continuation in service.

Now, all senior teachers should make efforts to protect their service by relying upon all NCTE notifications together, so that whatever the NCTE has stated before the single bench of any High Court, the same can also be consistently argued before the Hon’ble Supreme Court.

‎⁨@RahulGPande⁩