Madras High Court
The Government Of Tamil Nadu vs Muthaleefkairunissa on 8 February, 2022
W.A.No.788 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE J.MOHAMMED SHAFFIQ
W.A.No. 788 of 2021 and
C.M.P.No.6064 of 2021
1. The Government of Tamil Nadu,
Represented by its Principal Secretary to Government,
School Education Department,
Chennai-600 009.
2. The Director of School Education,
College Road, Nungambakkam,
Chennai-600 006.
3. The Chief Educational Officer,
Erode,
Erode District.
4. The Headmaster,
M.Pe. The Government Higher Secondary School,
Thingalur,
Erode District. ... Appellants
-vs-
Muthaleefkairunissa. .... Respondent
1/8
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W.A.No.788 of 2021
Prayer: Writ Appeal filed under Clause 15 of Letters Patent, to set aside the order
dated 13.11.2019 made in W.P.No.31890 of 2019 and allow this Writ Appeal.
For Appellants : Mrs.Mythreyi Chandru
Special Government Pleader (Education)
*****
JUDGMENT
S.VAIDYANATHAN, J.
and
MOHAMMED SAFFIQ, J.
This Writ Appeal has been directed against the order passed by the learned Single
Judge in W.P.No.31890 of 2019 dated 13.11.2019, in allowing the Writ Petition filed by
the respondent herein and in directing the Appellants herein to issue reemployment
orders to the petitioners till the end of academic year is over.
2. When the matter is taken up for hearing, Mrs.Mythreyi Chandru, learned
Special Government Pleader (Education) appearing for the Appellants submits that this
matter is already covered by the decision of the Division Bench of this Court in which
one of us (SVNJ) was a party, in W.A.Nos.259 of 2019 etc. batch on 10.12.2021. The
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W.A.No.788 of 2021
relevant operative portion of the order is extracted hereunder:
"19.A reading of the said G.O, will
clearly support the case of the
appellants. The District Level
Authorities are under an obligation to
prepare a seniority list of surplus
teachers only subjectwise and not taking
teachers as a whole. Hence, this
contention of the writ petitioners that
State Government has not decided the
subjectwise surplus teachers is also
devoid of any merit.
20.The learned counsel for the writ
petitioners further contended that they
are senior most teachers and they have
been wrongly declared as surplus and
denied re-employment.
21.A reading of the impugned orders
will clearly indicate that this
contention of the writ petitioners is
clearly based upon misconception. The
impugned orders clearly pointed out that
there are surplus teachers for the same
subject in the district and hence, the
writ petitioners cannot be re-employed.
More over, the writ petitioners have not
been declared to be surplus teachers.
Due to availability of subjectwise
junior most surplus teachers in the
district, re-employment to the
superannuated senior teachers has been
rejected. Moreover, G.O(Ms).No.261
School Education Department dated
20.12.2018 has been passed to decide
about the mode of granting re-employment
to the teachers, who attained
superannuation during the middle of the
academic year. In the said G.O., Clause
7(ii) will clearly indicate that when
surplus teachers are available, there
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W.A.No.788 of 2021
cannot be any re-employment. This G.O,
was considered by a Division Bench of
our High Court in W.A.(MD)No.107 of 2020
dated 16.03.2021. The Division Bench has
held as follows:
“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 reemployment or
make a mere request and therefore,
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 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
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W.A.No.788 of 2021
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.Ka5(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 06.02.202, 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 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 and
for both the posts. The same logic
applies to the Government School
teachers as well After all, the
Government is not expected to make
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W.A.No.788 of 2021
payment for two teachers for imparting
education for one set of students.”
22.Therefore, the said
G.O.Ms.No.261,School Education
(Pa.Ka.5(2)) Department, dated
20.12.2018 has been considered and
approved by the Coordinate Bench of this
Court. As stated supra, the petitioners
have also not chosen to question the G.O
(Ms).No.261 dated 20.12.2018. Hence, the
contention of the writ petitioners that
even though there are surplus teachers,
they should be re-employed, is not
legally sustainable.
23.The Coordinate Bench of this
Court in W.A.No.107 of 2020 dated
16.03.2021 has categorically held that
G.O(Ms).No.261, School Education
Department, dated 20.12.2018, the
Government has taken a policy decision
to the effect that the teachers who
attained superannuation during the
middle of the academic year, will not be
entitled to reemployment, when there are
surplus teachers. The Coordinate Bench
has further held that the re-employment
is not a matter of right and once the
teacher attains the age of
superannuation, the relationship between
master and servant ceases. The
Coordinate Bench has further held that
the re-employment is a fresh employment
and when a permission is sought to re-
employ a Government teacher or a teacher
of an aided institution, conditions will
always be attached. We are in respectful
agreement with the findings of the
Coordinate Bench.
24.In view of the above discussions,
the order of the learned Single Judge
needs interference and we set aside the
order of the learned Single Judge.
Accordingly, the writ petitions are
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W.A.No.788 of 2021
dismissed and the Writ Appeals are
allowed. No costs. Consequently,
connected Miscellaneous Petitions are
closed."
3. Despite private notice being served on the respondent, there is no
representation on her behalf.
4. Finding that the decision cited by the learned Special Government Pleader is
squarely applicable to the case on hand and following the same, this writ appeal is
allowed on the same lines thereby the order of the learned single Judge dated
13.11.2019 is hereby set aside. No costs. Consequently connected Miscellaneous
Petition is closed.
[S.V.N., J.,] [M.S.Q., J]
08.02.2022
Index: Yes / No
Internet: Yes / No
arr
https://www.mhc.tn.gov.in/judis
W.A.No.788 of 2021
S. VAIDYANATHAN,J.
and
J.MOHAMMED SHAFFIQ, J.
arr
W.A.No. 788 of 2021
08.02.2022
https://www.mhc.tn.gov.in/judis
