Madras High Court

D. Gopalakrishnan vs The State Of Tamil Nadu on 29 September, 2021

W.A.No. 2485 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.09.2021

CORAM:

THE HONOURABLE MR.JUSTICE S. VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE A.A. NAKKIRAN

W.A.No. 2485 of 2021 and
C.M.P. No 16114 of 2021

D. Gopalakrishnan ...Appellant

Vs.

1.The State of Tamil Nadu
Rep. by its Secretary
Department of School Education
Fort St. George, Chennai-600 009.

2. The Director of School Education
College Road,
Chennai – 600 006.

3. The Chief Education Officer
Coimbatore, Coimbatore District

4. The Headmaster
A.A. Muthu Kowndar Government
Higher Secondary School
Annoor – 641 653
Coimbatore District. ....Respondents

1/12

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W.A.No. 2485 of 2021

Prayer: Writ Appeal filed under Clause 15 of Letter Patent Act, to set aside
the order of this Court dated 05.02.2019 passed by this Court in
W.P.No.2459 of 2018 and allow the Writ Petition.

For Appellant : Mr.Godson Swaminathan for
M/s. Isaac chambers.

For Respondents : Mr.K.V. Sajeev Kumar
Government Advocate
*****
JUDGMENT

(Judgment of the Court was delivered by S.VAIDYANATHAN,J)

This Writ Appeal is directed against the order of the learned Single

Judge passed in W.P.No.2459 of 2018, dated 05.02.2019, in dismissing

the Writ Petition.

2. Mr.Godson Swaminathan, learned counsel appearing for the

Appellant submitted that the Appellant has attained the age of

superannuation on 30.06.2017 and that he was relieved from service in the

middle of the academic year 2017- 2018 by the proceedings in Moo.Mu.

4374/Aa3/2017-1, dated 31.07.2017 issued by the 3 rd Respondent/Chief

Education Officer, Coimbatore District. According to the learned counsel

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for the Appellant, though the Appellant/Writ Petitioner was entitled to re-

employment, no order was passed regarding the same and subsequently the

Appellant/Writ Petitioner was referred to the Medical Board and no decision

has been taken till now, which runs contrary to the decision of this Court in

the case of Correspondent, Secretary and Managing Trustee, Salem Vs.

M. Rajagopalan and others reported in 2008 (1) MLJ 312 wherein this

Court, by referring to the Judgment of the Division Bench of this Court in

the case of S. Sundaram Vs. Secretary, C.S.I. Diocese of Madras,

(W.A.No.1179 of 1993 dated 06.09.1994), held that the right to continue of

re-employment till the end of Academic year is conferred on the teachers

working in the school either Government or Private, both minority or non

minority and the SLP filed against the same was also dismissed. He further

submitted that, as per the report of the Medical Board dated 17.07.2017 the

Appellant was fit for duty from 01.07.2017 to 31.05.2018,

3. The learned counsel for the Respondent contended that the

Appellant was physically unfit and left the service. He further submitted

that the Government has passed an order in G.O.Ms.No.249 dated

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09.02.1959 to sanction re-employment to the teacher who retire in the

middle of the Academic Year subject to certain pre-requisite conditions viz.,

(1) The Character and conduct of the teacher should be satisfactory and

(2) They should be physically fit to continue in service and the said

Government Order is not applicable to the writ petitioner as could be seen

from the proceedings of the fourth respondent dated 05.06.2017, in which it

is stated that the Writ Petitioner could not walk by himself, that a separate

room was allotted for him in the School and that he was not spared for any

exam purpose. Moreover,he was not conducting any class to teach the

students and he is not fit for doing any educational work. He further

submitted that the re-employment is not the matter of right and the decision

relied on by the learned counsel for the Appellant will not be applicable to

the facts of the case.

4. Heard both sides. Perused the records.

5. It is not in dispute that the writ petitioner retired from service in the

middle of the Academic year and further, the Medical Board has opined that

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he was fit for duty, but as per Government Order No.249 referred to above,

the Government has emphasised two conditions to sanction re-employment

to the teacher, who retire in the middle of the Academic Year. Further, the

re-employment is not a matter of right and similarly there is no need for the

teacher to seek re-employment and it is the duty cast upon the institution to

allow teachers to continue in service till the end of the academic year,

provided the teacher satisfies three conditions laid down in G.O.Ms.No.452

dated 24.03.1970 which has been followed in subsequent orders.

6. In the considered view of this Court, the aforesaid decision relied

upon by the learned counsel for the Appellant will not be applicable to the

case on hand,wherein it has been categorically held that unless the teacher is

unfit for teaching, he/she is entitled to continue till the end of the academic

year. Even assuming for the sake of arguments there is medical fitness

certificate,as per the proceedings of the fourth respondent dated 05.06.2017,

the Appellant/Writ Petitioner is not fit for doing any educational work and a

separate room was allotted to him and he is not going to take classes. In

such a case, the Writ Petitioner is not entitled to claim re-employment as a

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matter of right. Further, G.O.(Ms).No.261 dated 20.12.2018, has been

issued , by considering the advice given by the Madurai Bench of this Court

in W.P. (MD) No.19848 of 2018 dated 19.09.2018 and the Director of the

School Education dated 11.09.2018 and 07.12.2018 has issued certain

guidelines for grant of re-employment to the teachers serving at the

Government, Government Aided, Primary, Middle, High, Higher Secondary

Schools and retiring in the middle of the Academic year. For the sake of

convenience the guidelines issued by the Government are extracted

hereunder:

(i) If in the middle of academic year, on attaining the age of superannuation an while retiring from service, the interest of students should not be affected without teacher keeping this in mind to such teachers re-employment can be granted with the following conditions. * the virtue and conduct of the teacher should be satisfactory.

* should have physical fitness to render continuous service.

(ii) on considering the interest of the students, as per the policy of the Government, the teachers having completed of the age of 58, while granting them re-employment until the end of

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academic year when there is surplus teacher posts, no re-employment should be done.

(iii) on considering the interest of the students, where there is no surplus post when intended to re-employ such teachers, in view of the G.O.No. 170, School Education (Pa.Ka.5-2) Department dated 23.10.2014, with the consent of the retiring teachers, the teacher retiring in the middle of academic year when there is no surplus teacher post existing therein on that basis while granting re-employment the salary that was received lastly before the date of retirement shall be granted as pay to the re-employment.

(iv) with regard to the surplus post, with regard to the High Schools, the District Educational Officer, and with regard to the Higher Secondary School the Chief Educational Officer, with regard to the Elementary Schools, District Elementary Educational Officer, should prepare report in fixation of staff with regard to the average number of students in view of the advise that is being issued now and then every year before 30th day of September.

(v) With regard to the Joint Management Schools, all the Schools administered under its control should be terms as one unit. Further, as the number of students studying therein on calculating the ratio of

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teacher, students if there is surplus teachers post, it should be informed to the Management.

(vi) as per the number of students studying in the Joint Management schools, the report of fixation of staff should be calculated the excess teachers serving in the surplus post, the other schools that come under the said management it is advised that by closure of service, through competent officer, after such closure of service, the report should be forwarded to the concerned officer.

(vii) The report of fixation of staff by the District Educational Officer, Chief Educational Officer and District Elementary Educational Officer, should be submitted to the Director of School Education and Director of Elementary Education before 31st October.

(viii) The report pertaining to the Fixation of Staff by the Lower grade officials in which if it has been sated as surplus, on identifying such schools, the teachers who are serving in the surplus post in that school they shall e transfer to the schools where the requirement is necessary, with regard to the aided schools is concerned the Manager/Correspondent of that schools by sending notice to them should take proceedings within 2 moths. i.e., in every academic year the proceedings

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should be taken before 31st day of December.

(ix) while such teachers serving in the said school and found that it is surplus post is identified and the said service is closed by the competent officer and on passing the order, either at the beginning of next academic year or before the order issued to the closure of service, should join in the service of the said school.

(x) in the forthcoming years to the concerned schools in the event of increase of students strength the said management should apply to the concerned officers, after due inspection the said post to be granted to the old school either at the beginning of the academic year or before.

(xi) at the Government Aided School. The grant which is being given continuously in such situation the teachers found to be surplus, if the Management refused to transfer such teacher to other schools, proceedings to be initiated to stop the grant to the said school. Further on finding the surplus teacher post to be closed, and where the requirement of teacher exists to be transfer to that school. If after the relieving from the said service, if the teacher refused to abide to go on transfer from the school where the closure of service has been effected. The monetary benefits should not be granted from the

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date of relieving and period of serving in the surplus post.

(xii) The above said regulations will come into force during the academic year 2019-

6. In view of the aforesaid facts and circumstances of the case, we find

no reason to interfere with the order of the learned Single Judge. Hence the

Writ Appeal stands dismissed, confirming the order of the learned

Single Judge dated 05.02.2019 in W.P.No.2459 of 2018. No costs.

Consequently, connected Miscellaneous Petition is closed.

[S.V.N., J.,] [A.A.N., J] 29.09.2021

Index: Yes/no Internet: Yes/no arr/shk

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1.The Secretary Department of School Education Fort St. George, Chennai-600 009.