Madras High Court
N.P.Sudha vs Karuppusamy on 22 February, 2021
Cont.P.Nos.1141 and 1142 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
Cont.P.Nos.1141 and 1142 of 2019
N.P.Sudha .. Petitioner in Cont.P.No.1141/2019
K.S.Balaji .. Petitioner in Cont.P.No.1142/2019
Vs.
1.Karuppusamy,
Director of School Education,
College Road, Chennai 6
2.Ganeshamoorthy,
Chief Education Officer,
Salem
3.A.Vijaya,
District Education Officer,
Shankakiri, Salem
4.Chakaravarthy,
Secretary,
Vaitheswara Higher Secondary School,
Mettur R.S. .. Respondents
__________
https://www.mhc.tn.gov.in/judis/
Cont.P.Nos.1141 and 1142 of 2019
Prayer: Petitions filed under Section 11 of the Contempt of Courts Act,
1971 to punish the respondents for wilfully disobeying the common
order passed in W.P.Nos.837 and 838 of 2014, dated 24.01.2017.
For Petitioners :: Mr.S.N.Ravichandran
For Respondents :: Mr.C.Munusamy, Spl.G.P.
For respondents 1 to 3
Mr.Sai Prasad,
for M/s.Sai Raj Association
for 4th respondent
COMMON ORDER
(made by the Hon'ble Chief Justice)
The petitioners complain of the wilful and deliberate violation of
an order of January 24, 2017, passed in a batch of writ appeals
headed by W.A.No.1126 of 2015.
2. The matter pertains to the entitlement of teachers in
government-aided schools and whether such teachers could continue
in service and be entitled to receive salaries without passing the
Teacher Eligibility Test (for short, ‘TET’) after the issuance of
Government order no.181 dated November 15, 2011. The batch of
appeals was disposed of with the following operative order at
paragraph 42 of the judgment delivered on January 24, 2017:
__________
https://www.mhc.tn.gov.in/judis/
Cont.P.Nos.1141 and 1142 of 2019
42. Accordingly, to meet the ends of
justice, the writ appeals and the writ petitions
are disposed with the following directions :
“(i) The Teachers herein, who have been
appointed subsequent to the issuance of the
Government Order, are granted one
opportunity to appear for the Teacher Eligibility
Test to be conducted by the Teachers
Recruitment Board and in the event of their
passing in the Teacher Eligibility Test, their
appointments shall be approved else, they
have no other option but to quit the
service/ousted from service;
(ii) Till the results are published, the
Government shall pay the salary to the
Teachers, who are in service of the aided
institutions, for the services rendered by them
and in the cases where salary was not paid the
same shall be paid along with arrears, if any,
forthwith;
(iii) Learned Advocate General
submitted that salary has been paid to most of
the Teachers and only a few were not paid, for
want of particulars. In such a case, the
Teachers whose salary have not been paid for
want of particulars, they shall furnish the
requisite particulars immediately, so to enable
the Government pay the salary immediately;
(iv) Insofar as W.P.No.7593 of 2015 is
concerned, though the writ petitioner has
qualified with a pass in Teacher Eligibility Test
during 2013, she has not been paid the
difference of salary from the date of
__________
https://www.mhc.tn.gov.in/judis/
Cont.P.Nos.1141 and 1142 of 2019
appointment, till the date of passing of the
Teacher Eligibility Test. In view of the
discussions aforesaid, the Government is
directed to pay the difference of salary within
a period of four weeks from the date of receipt
of a copy of this order; and
(v) The Teachers Recruitment Board is
directed to take note of the above observations
and to issue notification for conducting Teacher
Eligibility Test on or before the end of February
2017, indicating the date of exam to be either
in the last week of March 2017 or in the first
week of April 2017.”
3. It will be evident from clause(i) of paragraph 42 of the
judgment that for those teachers appointed subsequent to the
issuance of the government order of November 15, 2011, they were to
be entitled to an opportunity to appear for the TET and if they passed
the same, their appointments would stand approved; or else, they
would have to quit or be ousted from service. The first clause of the
said operative part may reasonably be read and understood to imply
that all teachers who were appointed in government-aided schools and
who had not obtained TET qualification but whose appointments were
made after the government order of November 15, 2011 was
published were to be entitled to appear at the next TET and, if they
__________
https://www.mhc.tn.gov.in/judis/
Cont.P.Nos.1141 and 1142 of 2019
qualified, their appointments would stand approved or else, they would
have to go out.
4. It is not in dispute that petitioner K.S.Balaji cleared the next
TET. However, petitioner N.P.Sudha not only did not clear the next TET
but she has not even cleared any subsequent TET.
5. K.S.Balaji claims that in terms of the order of January 24,
2017, his appointment was not only to be approved, but he would be
entitled to the salary at the appropriate rate from the date of his
appointment. It appears that some time in 2013, both K.S.Balaji and
N.P.Sudha may have been removed from service because the
government did not provide their salary and the relevant school could
not afford paying these teachers out of its own resources. It is evident
that K.S.Balaji rejoined some time on March 4, 2020 after successfully
completing the TET and N.P.Sudha has joined in March, 2020, though
without passing the TET. It appears that both K.S.Balaji and N.P.Sudha
are being paid since March, 2020.
__________
https://www.mhc.tn.gov.in/judis/
Cont.P.Nos.1141 and 1142 of 2019
6. K.S.Balaji says that since he has passed the TET and is being
paid from March 2020, he should be paid for the previous period also.
N.P.Sudha claims that since she is being paid from March 2020, she is
also entitled to be paid for the previous period.
7. There is no doubt that K.S.Balaji’s right to the approval of his
appointment is indisputable. That is the effect of the order dated
January 24, 2017. However, nothing in such order deals with the case
of a teacher who may have been appointed after the issuance of the
government order dated November 15, 2011 but who was
discontinued from service some time thereafter and only in pursuance
of the order dated January 24, 2017, took the TET, qualified and
became entitled to approval of the appointment. The order proceeds
on the basis that teachers who had been appointed subsequent to the
government order dated November 15, 2011, continued in service
and, thus, were entitled to their appointment being approved upon
them qualifying at TET and being paid. The order did not contemplate
a situation where there would be a break in service and resumption of
service on the basis of the said order.
__________
https://www.mhc.tn.gov.in/judis/
Cont.P.Nos.1141 and 1142 of 2019
8. It is elementary that a person is not entitled to be paid for the
period that the person did not render any services unless the Court
directs such payment to be made upon the Court reaching a finding
that the concerned person had been unfairly kept out of service and
such person did not have any alternative source of income during the
period that the person had been kept unfairly away from service. Both
in labour and service jurisprudence, back wages is not an absolute
right and to obtain back wages, whether for illegal retrenchment or for
arbitrary dismissal or removal from service in departmental action, the
Court considers the nature of the prejudice and whether the employee
had any alternative source of income at the relevant point of time. In
service jurisprudence, even if the employee did not have any
alternative employment, merely because he did not work – though it
may not have been a fault on his part – to ensure that the government
funds are not dealt with in a wanton manner, the Court passes an
order which provides for an extent of payment but which is invariably
less than what the employee would have got if the employee was
actually in service.
__________
https://www.mhc.tn.gov.in/judis/
Cont.P.Nos.1141 and 1142 of 2019
9. Thus, nothing in the order dated January 24, 2017 may be
read to imply that even if a teacher was employed one day after the
government order of November 15, 2011, came into effect and such
teacher was not permitted to work from the following day and only got
a right pursuant to the order dated January 24, 2017 being passed,
such teacher would be entitled to the salary for the period that the
teacher did not have to render any service. This aspect of the matter is
not covered by the order and it was open to the parties to have urged
the Court while passing the order dated January 24, 2017 to have
covered such aspect.
10. There is a distinction between a petition filed to assert one’s
rights and a petition filed for contempt of Court. In a petition filed for
contempt, the only relevant consideration is whether there has been
any violation of the order. If there is any violation, the Court assesses
whether the violation is deliberate or wilful. It is only when the
violation is found to be deliberate or wilful that the Court proceeds to
take action against the contemnor. If a particular order is capable of
two meanings and one of the possible meanings has been ascribed to
the order by the alleged contemnor, the benefit of the doubt in the
__________
https://www.mhc.tn.gov.in/judis/
Cont.P.Nos.1141 and 1142 of 2019
quasi-criminal jurisdiction goes to the contemnor and, though he may
be permitted to correct himself, no action is taken against such person.
11. The petitioner in either case submits that subsequent writ
petitions have been filed by similarly placed persons and by virtue of
orders passed therein or otherwise, persons who did not qualify for
TET after the order of January 24, 2017 was passed have continued in
service and are being paid. Just as N.P.Sudha is being paid in the
present case despite N.P.Sudha not having qualified at TET, but having
rejoined services from March, 2020. It is not the court's concern,
within the limited ambit of the present lis, to determine the right or
entitlement of the petitioners in the absolute sense. The consideration
in contempt proceedings is confined to whether the relevant order
granted a benefit which has been deliberately or wilfully denied. In the
present case, there is nothing in the order of January 24, 2017 that
expressly directs payment to be made to the petitioners herein even
during the time when they may not have rendered any service. As a
consequence, it cannot be held that the alleged contemnors herein
have acted in derogation of the order dated January 24, 2017.
__________
https://www.mhc.tn.gov.in/judis/
Cont.P.Nos.1141 and 1142 of 2019
12. Accordingly, the contempt proceedings are dropped and the
petitioners are left free to pursue their rights in terms of their
perceived entitlement in accordance with law. The only emphasis that
needs be made in the present case is that in contempt proceedings, it
is only the ambit of the relevant order which has to be looked into and
not the right or entitlement of a party to the order that be otherwise
desires.
13. Contempt Petition Nos.1141 and 1142 of 2019 are dropped.
There will be no order as to costs.
(S.B., CJ.) (S.K.R., J.)
22.02.2021
Index : yes
tar
__________
https://www.mhc.tn.gov.in/judis/
Cont.P.Nos.1141 and 1142 of 2019
THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY, J.
(tar)
Cont.P.Nos.1141 and 1142 of 2019
22.02.2021
__________
https://www.mhc.tn.gov.in/judis/
