Anjuman Ishaat-E-Taleem Trust vs The State of Maharashtra and Others

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 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 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 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 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 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 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]

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]