Madras High Court

N.Malarvizhi vs 3 The Devangar Higher Secondary ... on 3 December, 2021

                                                                                   W.P.No.7068 of 2010

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 3.12.2021

                                                           CORAM:

                                    THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR

                                                  W.P.No.7068 of 2010

                          N.MALARVIZHI
                          W/O.B.BASKARAN,
                          NO.5 JAMUNA ILLAM, 1ST FLOOR,
                          MULLAI STREET, SADHASIVAM NAGAR,
                          CHINNALAPATTI-624 301, DINDIGUL DISTRICT       ...       PETITIONER

                                                     Vs.

                     1     THE JOINT DIRECTOR OF SCHOOL EDUCATION
                            (PERSONNEL), COLLEGE ROAD, CHENNAI-6.

                     2     THE DISTRICT EDUCATIONAL OFFICER,
                           DINDIGUL DISTRICT DINDIGUL.

                     3    THE DEVANGAR HIGHER SECONDARY SCHOOL,
                           REP. BY ITS SECRETARY,
                          CINNAPATTI, DINDIGUL DISTRICT 624301 ...                 RESPONDENTS



                     Prayer : Writ petition filed under Article 226 of the Constitution of India,
                     praying for the issuance of a Writ of Certiorari, Calling for the records relating
                     to the proceedings No.64/2008-09 dt.16.2.2009 of the 3rd respondent herein
                     and quash the same and to direct the respondents to pay immediately the
                     Salary and Allowance due to the petitioner for the duties discharged by the
                     petitioner in her capacity as B.T.Assistant in the 3rd respondent School for the
                     period from 9.6.1992 to 23.8.1995 with 15% interest.

                     1/10


https://www.mhc.tn.gov.in/judis
                                                                                  W.P.No.7068 of 2010

                                    For Petitioner             : Mr.R.Muthukannu
                                    For Respondents 1 & 2      : Mr.V.Nanmaran, A.G.P.(Edn.)
                                    For Respondent No.3        : Mr.Ashok menon
                                                           *****
                                                         ORDER

According to the petitioner, the petitioner was appointed as B.T.

Assistant (Maths) on 9.6.1992 in the third respondent School. The third

respondent School forwarded a proposal to the second respondent for approval

of appointment of the petitioner on 15.10.1992. Pending approval, the

petitioner submitted a complaint to the third respondent about the

misbehaviour of the Headmaster. The petitioner was removed from service by

issuing relieving order to the petitioner. The petitioner preferred an appeal

before the Joint Director of School Education. Subsequently, the petitioner

was appointed as B.T. Assistant in Government High School, Dindigul. Based on

the undertaking given by the third respondent in the letter, dated 18.12.1999

that the Management is responsible for the payment of arrears and salary and

allowance, the first respondent has stated that in respect of payment of

arrears of salary and allowance, the matter is between the third respondent

school and the petitioner and the same would be settled as per the order of

the Court. Therefore, based on the aforesaid undertaking given by the third

respondent School, the School Management Appeal was dismissed as

infructuous.

https://www.mhc.tn.gov.in/judis W.P.No.7068 of 2010

2. According to the learned counsel appearing for the petitioner,

pursuant to the said order, he made representation to the School to settle the

arrears of salary payable to the petitioner for the service rendered by the

petitioner for a period from 9.6.1992 to 23.8.1995 within a month. Since the

representation does not evoke any response, the petitioner has filed a

W.P.No.4107 of 2001 before this Court to direct the respondents to pay arrears

of salary to the petitioner. This Court by its order, dated 8.9.2008 directed

the third respondent School to dispose of the representation of the petitioner,

dated 25.10.2000. On receipt of the Court order, the third respondent passed

the impugned order stating that the School Committee has decided to file Writ

petition to get approval of the petitioner's appointment for claiming arrears of

salary. Therefore, the petitioner has preferred the present writ petition

before this Court.

3. Counter affidavit filed by the third respondent School

Management wherein it is stated that the second respondent has not approved

the appointment of the petitioner and therefore, not able to settle the arrears

of salary payable to the petitioner. It is only the State Government that has to

make the payment to the petitioner. Further, it is stated by the Secretary of

the third respondent School that he has no personal knowledge of what had

transpired between the then Headmaster of the third respondent School and

https://www.mhc.tn.gov.in/judis W.P.No.7068 of 2010

the petitioner. Therefore, according to the school Management, arrears of

salary has to be paid by the Government not by the School.

4. The learned Additional Govt. Pleader appearing for the

respondent would submit that the order passed by the Joint Director of School

Education recording the undertaking given by the Secretary of the third

respondent School, has stated that the said dispute for payment of arrears of

salary has to be settled as per the orders of the Court. Therefore, the

department is no way held responsible for payment of arrears of salary. It is

further submitted that the third respondent while forwarded a proposal to the

educational authorities for approval of appointment of the petitioner, has

passed the order of termination as against the petitioner without getting any

approval from the educational authorities. Therefore, the issue of settling the

arrears of salary is only between the petitioner and the third respondent

School.

5. Heard the rival submissions of the parties and perused the

materials available on record.

https://www.mhc.tn.gov.in/judis W.P.No.7068 of 2010

6. The point for consideration in the instant writ petition is that

whether the third respondent School Management is liable to pay arrears of

Salary due to the petitioner for the service rendered by the petitioner during

relevant period in the School as Teacher.

7. According to the counsel appearing for the petitioner, the

petitioner was served as B.T. Assistant Teacher in the third respondent School

and as per the Rules, the petitioner is entitled to get salary for the duties

discharged by him as B.T. Assistant for the period from 9.6.1992 to 23.8.1995.

The counsel for the petitioner also relied on the decision of the Division Bench

of this Court reported in (2006) 4 MLJ 1125 [Bharath Primary School run by

Sri Bhathrakaliamman Trust rep. By its Secretary vs. A.Pauldurai and others]

wherein the Division Bench of this Court has held as under:

“9. We do not know as to how the earlier judgment of the Division Bench cited by the learned counsel for the appellant is helpful to him. On the contrary, as authoritatively pointed out by the Supreme Court, when there is a contract between the management and the teacher, the liability to pay the salary completely vests on them. If the stand of the Management is accepted, then the poor teacher, who worked as a Head Master for the period between 23.9.1998 and 07.6.2000, will have to go without

https://www.mhc.tn.gov.in/judis W.P.No.7068 of 2010

any salary notwithstanding the fact that his appointment was not approved by the Department.

10. Article 23 of the Constitution of India prohibits forced labour. It is not as if the Management took a contra stand before the learned Judge with reference to the appointment of the first respondent. On the contrary, they have supported the appointment throughout and only when they were mulcted with financial liability, they have come forward to file the present appeal. Therefore, the stand of the Management cannot be approved.”

8. In another judgment relied on by the counsel for the petitioner

rendered by the Hon'ble Supreme Court reported in 2012 (1) SLJ (SC) 128

[VISHWA MOHINI VS. DISRTRICT INSPECTOR OF SCHOOLS & OTHERS] wherein

the hon'ble Supreme Court has held as under:

“6. In the peculiar facts and circumstances of this case, we are of the considered view that interest of justice would meet if the appellant is paid for the period she worked with the concerned school. Accordingly, we direct respondent Nos.1 to 4 to pay the salary of the appellant for the period she worked, within eight weeks from today.

However, the District Inspector of Schools and the State of U.P. would be at liberty to recover that amount from the management of the school or from any other individual.”

https://www.mhc.tn.gov.in/judis W.P.No.7068 of 2010

9. Yet another decision relied on by the counsel appearing for the

petitioner reported in 2012 (5) MLJ 139 [DIRECTOR OF ELEMENTARY

EDUCATION AND OTHERS VS. A.SUSAI MICHAEL AND ANOTHER ] wherein the

Division Bench of this Court has held as under:

“5.The Government had specifically stated that the Writ Petitioner's services were availed by the second respondent/School from 2.6.1997 to 28.2.2000. The approval was not granted by the appellants for the reason that the Writ Petitioner did not have undergone the one month Course in Child Psychology. Since he did not have the required qualification, he was terminated from service. However, the fact remains that the first respondent/Writ Petitioner had served in the second respondent/School between 2.6.1997 and 28.2.2000.

6.In the light of the above facts, it would be appropriate to direct the second respondent/ School to pay the salary to the Writ Petitioner for the period from 2.6.1997 to 28.2.2000. Already the learned Single Judge had awarded 6% interest per annum on the said amount from the date on which it became due till the date of realisation.

7.Accordingly, there will be a direction to the second respondent/School to pay the salary to the first respondent/Writ Petitioner as indicated above with interest at the rate of 6% per annum from the date on which it became due till the date of realization. It is held that the

https://www.mhc.tn.gov.in/judis W.P.No.7068 of 2010

appellants 1 to 4 are not liable to pay the salary to the Writ Petitioner. The learned counsel for the first respondent requested that the said period of his service from 2.6.1997 to 28.2.2000 may be considered for the pensionary benefits.It is open to him to make appropriate representation to the authorities concerned in this regard.”

10. Curiously reading the aforesaid judgments of the Hon'ble

Supreme Court as well as the Division Bench of this Court, it is clearly held that

the School Management has to pay the arrears of salary to the petitioner for

the services utilized by the School Management.

11. Coming to the facts of the case on hand, the third respondent

School Management has gave an undertaking before the first respondent that

the arrears of salary payable to the petitioner will be settled as per the Court

order. But in reply to the petitioner's representation, 25.10.2000, the third

respondent School has stated that the School Committee has taken steps to

challenge the order passed by the Joint Director of School Education.

However, in the counter affidavit filed by the third respondent School, there is

no whisper about filing writ petition challenging the order of the Joint Director

of School Education.

https://www.mhc.tn.gov.in/judis W.P.No.7068 of 2010

12. In the light of the above, third respondent School cannot absolve

the responsibility of settling the arrears of salary payable to the petitioner for

the duties discharged by the petitioner from 9.6.1992 to 23.8.1995. Further,

the petitioner is entitled for interest at the rate of 6% p.a.

13. In view of foregoing discussion, this Court pass the following

order:

i) The impugned order passed by the third respondent School is set

aside.

ii) The petitioner shall make representation to the first respondent

along with copy of this order seeking suitable direction to the third respondent

School for settlement of arrears of salary payable to the petitioner for the

period from 9.6.1992 to 23.8.1995 along with interest at the rate of 6% p.a.

iii) On receipt of such representation, the first respondent is

directed to issue appropriate direction to the third respondent School to

comply with the undertaking given by the third respondent School Management

and pay arrears of salary to the petitioner, within a period of 12 weeks from

the date of receipt of communication to be issued by the first respondent.

14. In the result, the writ petition stands allowed with the above

directions. No costs.

3.12.2021

https://www.mhc.tn.gov.in/judis W.P.No.7068 of 2010

D.KRISHNAKUMAR, J.

                                                                                   vaan

                     Speaking / Non Speaking order
                     Index       : Yes/No
                     Internet    : Yes/No
                     vaan
                     To

1 THE JOINT DIRECTOR OF SCHOOL EDUCATION (PERSONNEL), COLLEGE ROAD, CHENNAI-6.

                     2     THE DISTRICT EDUCATIONAL OFFICER,
                           DINDIGUL DISTRICT DINDIGUL.

                     3     THE SECRETARY,
                           DEVANGAR HIGHER SECONDARY SCHOOL,
                           CINNAPATTI, DINDIGUL DISTRICT 624301
                                                                    W.P.No.7068 of 2010




                                                                      Dated: 3.12.2021







https://www.mhc.tn.gov.in/judis
                                                                                  W.P.No.7068 of 2010

According to the learned counsel appearing for the petitioner, the petitioner

was appointed as B.T. Assistant (Maths) on 9.6.1992 in the third respondent

School and the third respondent School forwarded a proposal to the second

respondent for approval of appointment of the petitioner on 15.10.1992 and

the same is pending with the second respondent. Pending approval, the third

respondent Management has passed the order relieving the petitioner as B.T.

Assistant in the School on 3.4.1995. Challenging the said order, the petitioner

has preferred an appeal before the Joint Director of School Education, the first

respondent herein. The first respondent herein has passed an order dated

16.8.2000 by recording the undertaking given by the third respondent School in

its letter, dated 18.12.1999, has stated that in the matter of the payment of

arrears of salary and allowance for the service rendered by the petitioner