Madras High Court
P.Gowri vs The Director Of Elementary ... on 2 November, 2021
W.P.No.16580 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.11.2021
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.No.16580 of 2017
and
W.M.P.Nos. 17950, 17951 of 2017, 2691, 11034 of 2018
and 5197, 5198 of 2020
(Through Video Conferencing)
P.Gowri ... Petitioner
Vs
1.The Director of Elementary Education,
College Road,
Chennai – 6.
2.The Director of Elementary Educational Officer,
The District Elementary Education Office,
Nagapattinam District.
3.The Assistant Elementary Educational Officer,
Sembanarkoil,
Nagapattinam District – 609 309.
4.The Secretary,
Bharathmatha Assistant Elementary School,
Kanjanagaram,
Nagapattinam district. ... Respondents
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1/18
W.P.No.16580 of 2017
Prayer: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Mandamus, directing the Respondents to permit the
Petitioner to continue in service as Secondary Grade Teacher in the 4 th
Respondent School till the end of the academic year 2017-18, as re-
employment.
For Petitioners : Mr.S.N.Ravichandran
For R1 to R3 : Mr.L.S.M.Hasan Fizal
Government Advocate
For R4 : Mr.K.Satish Kumar
ORDER
This Petition was filed to direct the Respondents to permit the
Petitioner to continue in service as Secondary Grade Teacher in the 4th
Respondent School till the end of the academic year 2017-18, as re-
employment.
2.In this Writ Petition an interim order came to be passed by this
Court on 30.06.2017. By that time an order dated 28.06.2017 had been
passed by the 3rd Respondent and communicated to the 4th
Respondent/School, where the Petitioner was employed. By the said
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W.P.No.16580 of 2017
communication, the Respondents herein confirmed the 4th Respondent
that there is no scope for continuing the Petitioner after 30.06.2017,
being the date of superannuation. Therefore, W.M.P.No.5197 of
2020 has been filed to amend the prayer to read as follows:
“Certiorarified Mandamus, calling for the entire records
connected with the impugned order passed by the 3rd
Respondent vide Na.Ka.No.1047/A5/2017 dated 28.06.2017
and quash the same and directing the Respondents to
permit the Petitioner to continue in service as Secondary
Grade Teacher in the 4th Respondent School till the end of
the academic year 2017-18, as re-employment ”
instead of
“Mandamus, directing the Respondents to permit the
Petitioner to continue in service as Secondary Grade
Teacher in the 4th Respondent School till the end of the
academic year 2017-18, as re-employment.”
2.The Petitioner attained the age of superannuation on 30.06.2017.
Learned counsel for the Petitioner submits that 30.06.2017 would come
after the commencement of the academic year. The learned counsel for
the Petitioner submitted that Government has issued orders in the past
for allowing such teachers to continue in the school till the end of the
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W.P.No.16580 of 2017
academic year.
3.Learned counsel for the Petitioner has placed reliance on the
decision of this Court rendered in Mangaiarasi.B vs District Collector
Shivganga, reported in 1998 WLR 77, wherein, this Court taking note of
G.O.Ms.No.1643 Education (u2) dated 27.10.1988, took a view that
there cannot be any valid reasons to refuse redeployment to continue, the
Petitioners therein, especially when the District Elementary Education
Officer himself has recommended for such redeployment of the
Petitioner therein till the end of the year.
4.Learned counsel for the Petitioner has also refered an order
passed in W.P.Nos.14934 and 14935 of 2010 dated 18.01.2011 wherein
under the similar circumstances the relief was granted to the Petitioner
therein. Para 8 of the said order reads as under:
“8.Inasmuch as the right of the reemployment is almost a
matter of statutory right, I do not think that the reason
adduced by the third respondent in the impugned order as
also in the counter affidavit that the petitioner has not
rendered minimum required service for earning pension
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W.P.No.16580 of 2017
and therefore he should be denied the said right is valid.”
6.Learned counsel for the Petitioner has also placed reliance on the
order passed on 19.09.2019 in W.P.No.26689 and batch of 2019,
wherein under similar circumstances, the Court has granted relief based
on several decisions of this Court. Reference was made to
G.O.Ms.No.261 dated 20.12.2018, particularly clause 7(iii) which reads
as under:
“10. This Court perused the GOMs. 261 dated
20.12.2018. As per clause 7(iii), Which reads as follows:
“khzth;fspd; eyd; fUjp. cghpg;gzpaplk; my;yhj Mrphpah;fis
kW eph;zak; bra;af; fUJk;nghJ. murhiz (epiy) vz;/170.
gs;spf; fy;tpj; (g/f/5?2) Jiw. Ehs; 23/10/2014?y;
Mizaplg;gl;lthW. fy;tpahz;od; ,ilapy;. Xa;t[ bgWk;
Mrphpah;fSf;F tpUg;gj;jpd; mog;gilapy; kW epakdk; tH';fg;gLk;
cghpg; gzpaplk; my;yhj Mrphpah;fSf;Fk; Xa;t[ bgWtjw;F
Kd;dh; filrpahf bgw;w Cjpaj;ijna kW epakdk; Cjpakhf
tH';f ntz;Lk;/”
11. The said GO makes it clear that even the
teachers can be re-employed in the said school for the
welfare of the students and when similar issues came up for
consideration before this Court, a Division Bench of this
Court held as follows:
11. Contending that right of re-employment is
not automatic, learned counsel for Appellant placed
reliance upon the judgment in W.A.(MD) No.160 of
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W.P.No.16580 of 2017
2009 (dated 31.01.2011). In the said judgment,
referring to the judgment in W.A.No.1226/2003 dated
05.01.2007, the Division Bench of this Court held
that he/she is physically fit to be re-employed, re-
employment can be sought for?. In the said case
before the Division Bench, disciplinary proceedings
was initiated and enquiry was also held and on
conclusion of the enquiry, the School Management
imposed a minor punishment on the teacher/1st
respondent thereon. In those circumstances, the
Division Bench set aside the order of the learned
Single Judge and held that the 1st respondent
thereon is not entitled to re-employment.
12. The facts and circumstances of the case on
hand stands on different footing. As pointed out
earlier, only the Memos dated 29.07.2010 and
19.01.2011 were issued to the 1st respondent for
which 1st respondent submitted a detailed
explanation. No further proceedings was initiated
against the 1st respondent. In the counter affidavit
2nd respondent alleged that even if the 1st
respondent was not eligible for the re-employment
beyond the date of actual retirement, Appellant ought
to have placed the matter before the Appointment
Committee and ought to have sent the report to the
2nd respondent who is the authority to take final
decision on the resolution of the Appointment
Committee. Appellant does not seem to have taken
any such steps.
13. Learned counsel for the Appellant
contended that 1st respondent attained
superannuation on 31.11.2011 and she ought to have
submitted her application for re-employment much in
advance; but 1st respondent submitted her
application only on 01.11.2011. G.O. Ms.No. 1643
dated 27.8.1988 does not lay down any such
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W.P.No.16580 of 2017
condition for submitting the application in advance.
It only stipulates that pension papers are to be
submitted atleast one year in advance.
14. By perusal of the Typed set of papers, it is
seen that 1st respondent had sent her application for
re-employment on 01.11.2011 through ?Registered
Post Aknowledgement Due? enclosing her physical
fitness certificate. The cover addressed to the
Secretary of the Second was returned with an
endorsement “?addressee refused returned to
sender”. When the Secretary of the School refused to
receive the cover containing the application for re-
employment, Appellant School is not justified in
contending that application for re-employment ought
to have been sent well in advance. The materials on
record only shows that the relationship between the
1st respondent and the School Management was
strained. Regarding which the Tanjore District
Elementary Educational Officer had also issued
proceedings in Na.Ka.No.06774/A4/2010 dated
27.12.2010 stating that the School did not obey the
order of Educational Authorities and ordered for
direct payment of the salary to the teachers. Only
because of the strained relationship, Appellant seems
to have taken a rigid stand against the 1st
respondent.
15. In 2008 (1) MLJ 312 (Correspondent,
Secretary and Managing Trustee, Salem V.M.
Rajagopalan), the Division Bench of this Court held
that ?re-employment is to be given even if there was
no specific request from such teacher?. Referring to
the earlier Division Bench Judgment in W.A.No.1179
of 1993 dated 06.09.1994 (S. Sundaram v. The
Secretary, C.S.I. Diocese of Madras), in 2008 (1)
MLJ 312, the Division Bench of this Court held as
under:-
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W.P.No.16580 of 2017
?2. The right to continue on re-employment till the
end of academic year conferred on the teachers
working in the schools either Government or private,
both minority or non-minority, has already been
upheld by a Division Bench of this Court in
W.A.No.1179 of 1993 (S. Sundaram V. Secretary,
C.S.I. Diocese of Madras) and the SLP preferred
against the same was also dismissed. The ration laid
down by the Supreme Court has been consecutively
followed by this Court in R. Muthukrishnan V.
Secretary, Aided Middle School, Korranattu,
Karupur, Kumbakonam and the District Elementary
Educational Officer, Thanjavur vide 1998 WLR 77.
3.1. In S. Sundaram V. Secretary, C.S.I. Diocese of
Madras (supra), where the teacher was not permitted
to avail the benefit of re-employment after his
superannuation, the Division Bench directed the
management and authorities to pay monetary
benefits in terms of salary payable to him till the end
of the academic year.
3.2. The only contention made on behalf of the
appellant/Management is that the first respondent
had not even made a request for re-employment after
superannuation and therefore, he cannot make any
complaint against the appellant/Management. But,
similar contention was rejected by the Division
Bench in the S. Sundaram v. Secretary, C.S.I.
Diocese of Madras (supra ), whereunder it is held as
follow:
?... We must point out here as per the Government
Order, there is no question of any teacher asking for
continuation. The Government Order specifically
states that the institutions are to continue them till
the end of academic year, provided the teacher
satisfies the three conditions laid down in the
Government Order, G.O.Ms.No.452, dated
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W.P.No.16580 of 2017
24.3.1970, which has been followed subsequent
Government Orders.?
As has been enumerated in the Government
Orders as well as in various judgments, the above
said three conditions are to be fulfilled for the
purpose of getting right to re-employment. There is
nothing to show that the 1st respondent did not
satisfy the essential conditions. While so, Appellant
was not justified in refusing re-employment for the
1st respondent. Learned Judge rightly directed the
2nd respondent- The District Elementary
Educational Officer, Tanjore District, Tanjore to
permit the 1st respondent to continue in service till
the end of academic year on the 1st respondent's
production of physical fitness certificate and the
certificate of character and good conduct in terms of
G.O.Ms. No.1643 dated 27.08.1988. We do not find
any reason warranting interference with the order of
the learned single Judge.
12. Following the decisions, as above, the Writ
Petitions are allowed. The impugned orders of the
respondents 2 and 3 are set aside. The respondents are
directed to issue re-employment orders to the petitioners
till the end of academic year is over. No costs.
Consequently, connected Miscellaneous Petitions are
closed.”
7.Countering the arguments of the learned counsel for the
Petitioner, learned counsel for the Respondents submits that identical
issue was recently decided by the Hon’ble Division Bench of this Court
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W.P.No.16580 of 2017
on 16.03.2021 in W.A.(MD).Nos.107, 566, 588, 594, 933, 1177 & 1273
of 2020. In this connection, reference has been made to paras 8, 9, 10,
12 &13, which read as under:
“8.Re~employment is not a matter of right. The
fundamental issue is that, the appellants did not prevent or
prohibit re~employment. Rather, the question is to the
payment of salary for such re~employment. The
Management or the Head of the Institution certainly knows
about the situation, which might arise during the academic
year. Therefore, they have to make a request either for
re~deployment or re~employment, as the case may be, at
the starting of the academic year. If no action is
forthcoming, they must pursue their request. Therefore, if
the Management is interested in the welfare of the Students,
it could have approached the authorities to give aid for
re~employment or to take a decision on the request made
for re~deployment. They cannot either make
re~employment or make a mere request and thereafter,
undertake the said exercise.
9.When a policy decision is taken, this Court cannot either
interpret in a different way or go contrary to that. We have
already held that re~employment is not a matter of right.
The Moment, a teacher attains the age of superannuation,
the relationship between Master and Servant gets
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W.P.No.16580 of 2017
terminated. Re~employment is a fresh employment. When a
permission is either sought for a Government teacher or aid
is sought for an aided Institution, post axiomatic conditions
attached will have to be followed. In fact, it will be
appropriate, no such explanation shall be given while
seeking salary or aid for the institution without due
approval.
10.Much reliance has been made on the judgment of the
Division Bench of this Court in Reynold Jayasekaran Vs.
Director of School Education [cited supra]. In our
considered view, the Division Bench of this Court has taken
note of the earlier orders passed by this Court. As stated by
us earlier, we are dealing with the case of policy decision
made. The Government Order passed in G.O.(Ms)No.261,
School Education (Pa.Ka.5(2)) Department, dated
20.12.2018, was not available at the relevant point of time
before the learned Single Judge, who passed an order dated
06.02.2020, in W.P.No.2772 of 2020. The relevant clause
governing has not been placed. The Government Order
does not say that the question of surplus teachers will have
to be reckoned within the same School. For example, in a
Government School if surplus teachers are available, the
other Government Schools cannot be allowed to indulge in
re~employment without undertaking the process of
re~deployment. Similarly, if an aided Private School is
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W.P.No.16580 of 2017
having number of institutions, a duty is imposed upon them
to see to it that the surplus teachers available in the other
Institutions are transferred to the Institution, in which, the
teacher attains the age of superannuation during the
academic year. It is for them to adopt anyone, but they
cannot seek aid for both the posts. The same logic applies
to the Government School teachers as well. After all, the
Government is not expected to make payment for two
teachers for imparting education for one set of Students.
11.Mr.S.Xavier Rajini, learned counsel appearing for
the respondent in W.A.(MD)No.933 of 2020 submitted that
the order passed by the learned Single Judge of this Court
has been given effect to and therefore, the Writ Appeal has
become infructuous.
12.We are afraid that the said proposition of law
cannot be accepted. Compliance of an order appealed
against is the discretion of a party, who files the said
appeal. Therefore, compliance or non~compliance will not
have an effect on the order under challenge. We are also
not inclined to accept the submissions made that without
complying the mandate of Rule 22 of Right of Children to
Free and Compulsory Education Rules, 2010, a
re~employment cannot be stopped. Both stand on a
different footing, as discussed by us already. For
non~compliance of one, the other would not go
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W.P.No.16580 of 2017
automatically. If there is non~compliance, the concerned
authorities will have to pursue the compliance, but for the
alleged default, they cannot seek some other reliefs. In any
case, we have already stated that steps ought to have been
taken either by the Management or by the Headmaster at
the earliest point of time to avoid this situation,
particularly, when they have stated the interest and welfare
of the Students. Similarly, the contentions that
re~employment cannot be given only to those teachers, who
attained the age of superannuation while working in a
surplus post, cannot be accepted in the light of our
discussion as above, as the relationship gets terminated on
attaining the age of superannuation and thereafter, it is
re~entry for the teacher and therefore, the fact as to
whether one was working in an existing sanctioned post or
excess post will not make any difference.
13.In such view of the matter, the impugned orders passed
by the learned Single are set aside and the Writ Appeals are
allowed. No costs. Consequently, connected Miscellaneous
Petitions are closed.”
Learned counsel for the Respondents further submits that even
otherwise there is no justifiable reasons for continuing the Petitioner as a
Secondary Grade Teachers, particularly after Right of Children to free
and Compulsory Education Act, 2009 came into force.
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W.P.No.16580 of 2017
8.It is submitted that during the relevant period when the
Petitioner was working as a Secondary Grade teacher in the 4th
Respondent school, there were only 77 students in class one to five and
the sanctioned teachers was only 1 + 2 = 3 @ 1:30 ratio. It is submitted
that as on 30.06.2017 there were about four surplus teachers in the 4th
Respondent school and therefore, even on that count also there is no
justification saddling the official Respondents to pay salary to the
Petitioner merely because the Petitioner attained the age of
superannuation in the middle of the academic year, rather in the
beginning of the beginning of the academic year on 30.06.2017.
9.Therefore, the learned counsel for the Respondent submits that
Writ Petition and the Miscellaneous Petition for amending the prayer are
liable to be dismissed. That apart it is submitted that the Respondent
took immediate steps to vacate the interim order and had filed
W.M.P.No.2691 of 2017 to vacate the interim injunction, in the light of
order dated 28.06.2017 of the 3rd Respondent.
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W.P.No.16580 of 2017
10.It is therefore submitted that whichever way one looks at the
Writ Petition filed by the Petitioner deserves to be dismissed.
11.Heard the learned counsel for the Petitioner and the learned
counsel for the Respondents. Perused the impugned order and interim
order passed by this Court on 30.06.2017.
12.There is no dispute. In the counter affidavit filed by the
Respondents, it is stated as on 30.06.2017 there were four excess
teachers working in the 4th Respondent school. Therefore, the question
that arises for consideration is whether the Petitioner should be allowed
to continue beyond the age of superannuation, merely because the
Petitioner attained the age of superannuation after the commencement of
the academic year on 30.06.2017. The facts on record indicate that there
is no other justifiable reasons for continuing the Petitioner in service
beyond the age of superannuation, particularly in the light of the fact that
there were already four excess teachers in the 4th Respondent School. It
would have been different, if the school was starved of teachers and that
there were no surplus teachers present in the school. The purpose of
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W.P.No.16580 of 2017
allowing the teachers, who attain the age of superannuation during the
middle of the academic year was intented to ensure that the education
does not suffer and the teachers are retained in the school for the benefit
of the students and it is strictly not for the benefit of the teachers
concerned to seek reemployment.
13.The Hon’ble Division Bench of the Madurai Bench of this
Court by its order dated 16.03.2021 has categorically held that once the
teachers attain the age of superannuation, the contract of employment
stands terminated and in the matter of reemployment, a teacher cannot
have a right to be reemployed. There were overwhelming reasons in this
case for not granting the relief to the Petitioner. The 4th Respondent
ought to have properly adviced the Petitioner to not to continue in
service, even though the Petitioner attained the age of superannuation on
30.06.2017. There is therefore, no merit in the Writ Petition.
14.Therefore, the Writ Petition filed by the Petitioner stands
dismissed. Consequently, Miscellaneous Petition filed for amending the
prayer of the Writ Petition in W.M.P.No.5197 of 2020 stands dismissed
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W.P.No.16580 of 2017
and the other Miscellaneous Petitions are closed. While dismissing the
Writ Petition, liberty is given to the Petitioner to file appropriate
proceedings to recover the salary for the period between 01.07.2017 till
31.05.2018 from the 4th Respondent in the manner known to law.
However, it is made clear that if the terminal benefits of the Petitioner as
on the date of her superannuation i.e. on 30.06.2017 will have to be paid,
provided appropriate proposals are sent by the Petitioner and the 4th
Respondent. This exercise shall be carried out by the Petitioner and the
4th Respondent, within a period of 30 days from the date of receipt of a
copy of this order.
02.11.2021
jeni/sai
Index: Yes/ No
Internet : Yes/No
Speaking/Non-speaking Order
To
1.The Director of Elementary Education,
College Road,
Chennai – 6.
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W.P.No.16580 of 2017
C.SARAVANAN, J.
jeni/sai
2.The Director of Elementary Educational Officer,
The District Elementary Education Office,
Nagapattinam District.
3.The Assistant Elementary Educational Officer,
Sembanarkoil,
Nagapattinam District – 609 309.
4.The Secretary,
Bharathmatha Assistant Elementary School,
Kanjanagaram,
Nagapattinam district.
W.P.No.16580 of 2017
02.11.2021
https://www.mhc.tn.gov.in/judis
