Madras High Court

T.S.Kasthuri vs The Chief Educational Officer on 4 January, 2023

                                                                             W.P.(MD)No.130 of 2023

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 04.01.2023

                                                      CORAM

                                  THE HONOURABLE MR.JUSTICE M.DHANDAPANI

                                             W.P.(MD)No.130 of 2023
                                                     and
                                        W.M.P.(MD)Nos.128 and 129 of 2023

                     T.S.Kasthuri                                                ... Petitioner

                                                         Vs.

                     1. The Chief Educational Officer,
                        HAK Road,
                        Tallakulam,
                        Madurai.

                     2. The District Educational Officer (Secondary),
                        District Educational Office,
                        Melur,
                        Madurai District.                                      ... Respondents


                     PRAYER : Petition filed under Article 226 of the Constitution of India
                     praying for issuance of Writ of Certiorarified Mandamus, calling for the
                     records relating to the impugned order of the first respondent in Na.Ka.No.
                     10978/A3/2022 dated 22.12.2022 and quash the same as unsustainable and
                     consequently, direct the first respondent to grant re-employment to the
                     petitioner till the end of the academic year (2022-2023) and disburse all
                     monetary and service benefits to the petitioner.


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                                                                                W.P.(MD)No.130 of 2023

                                  For Petitioner     :         Mr.M.Jerin Mathiew
                                  For Respondents    :         Mr.T.Amjadkhan
                                                               Government Advocate

                                                     ORDER

This Writ Petition has been filed to call for the records of the

impugned order of the first respondent in Na.Ka.No.10978/A3/2022, dated

22.12.2022, quash the same and consequently, direct the first respondent to

grant re-employment to the petitioner till the end of the academic year

(2022-2023) and disburse all monetary and service benefits to the petitioner.

2. By consent of both parties, this Writ Petition is taken up for

final disposal at the stage of admission itself.

3. The case of the petitioner is that she was appointed as

B.T.Assistant (Science) on the basis of the Teachers Recruitment Board

Seniority on 07.11.2007 at Government High School, Chokkampatti, Melur

Educational District. Thereafter, the petitioner was transferred to the

Government Higher Secondary School, E.Malambatti on 02.08.2010. While

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she was working at E.Malambatti, her post was treated as surplus and

transferred to Government Higher School, Oomachikulam on 02.01.2012.

Once again, she was transferred to Government High School, Vandiyur in

July 2012. Her date of superannuation is 31.12.2022. In this regard, she has

applied for re-employment and the same was rejected on the ground there

were surplus Teachers available in the District and hence, the petitioner

cannot be considered for re-employment. Challenging the same, the present

Writ Petition.

4. The learned counsel appearing for the petitioner would submit

that, if the Teachers are discontinued in the middle of the academic year, it

will affect the students, who are facing the public examination at the end of

the academic year. The very same issue came up for consideration before the

Principal Seat of this Court in W.P.No.26689 of 2019 etc., batch, dated

19.09.2019. He further submitted that the Division Bench of this Court in

W.A.Nos.259 of 2020 etc., batch dated 10.12.2021, has taken a contra view

to the effect that if the posts are declared as surplus, the surplus Teachers are

not entitled for re-employment. Hence, the decision rendered by the

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Division Bench is not applicable to the present Writ Petition. Accordingly,

he prayed for allowing the Writ Petition.

5. Per contra, the learned Government Advocate appearing for the

respondents would submit that already the petitioner's post is declared as

surplus vide order, dated 23.11.2022 and the same was communicated to the

School and not to the petitioner till her retirement. The very same issue

came up for consideration before the Division Bench of this Court in

W.A.Nos.259 of 2020 etc., batch dated 10.12.2021, wherein, the Division

Bench held that when there are surplus Teachers, the Teachers, who attained

superannuation during the middle of the academic year, will not be entitled

to re-employment. Accordingly, he prayed for dismissal of the Writ Petition.

6. Heard the learned counsel appearing for the petitioner and

perused the materials placed before this Court.

7. The facts in the present case are not in dispute. Admittedly, the

petitioner entered into service as B.T.Assistant on 07.11.2007 and she got

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retired on 31.12.2022. Prior to her retirement, she made an application for

re-employment till the end of the academic year, i.e., May 2023. However,

the same was rejected by the respondents on the ground that there were

surplus Teachers available in the District. Though the respondents claimed

that the petitioner's post is declared as surplus on 23.11.2022, the same was

communicated to the petitioner only on 28.12.2022. The crucial question

that arises in the present Writ Petition is whether the Teachers, who were

declared as surplus at the verge of retirement, are entitled for re-employment

or not. The very same issue came up for consideration before this Court in

W.P.No.26689 of 2019 etc., batch, dated 19.09.2019 and the relevant portion

of the order is extracted hereunder:

"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;


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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';fntz;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 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, reemployment 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

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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

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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 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 Acknowledgement 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 reemployment, 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

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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:-

“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

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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

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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 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

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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.

8. In the present case, till the petitioner's retirement, her post was

not declared as surplus and the same was also not intimated to her. In the

absence of any declaration as to the surplus teachers, the refusal made on

the ground of availability of surplus teachers in the District and rejecting her

plea for re-employment is not sustainable one. The Division Bench has held

that the surplus teachers are not entitled for re-employment. However, in

the present case, the petitioner is not a surplus teacher. Hence, the decision

rendered by this Court (supra) is squarely applicable to the case of the

petitioner.

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9. In view of the above and following the aforesaid decision, this