Madras High Court
M.Vadivelu vs The Director Of School Education on 22 November, 2019
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.21201 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.11.2019
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.No.21201 of 2019
And
W.M.P.Nos.20407 to 20409 of 2019
M.Vadivelu ... Petitioner
Vs.
1.The Director of School Education,
D.P.I.Campus,
College Road, Nungambakkam,
Chennai – 600 006.
2.The Chief Educational Officer,
Erode.
3.The District Educational Officer,
Perundurai,
Erode District.
4.The Headmaster,
Government High School,
Peththampalayam,
Perundurai Taluk,
Erode District. ... Respondents
Prayer:
Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus calling for the records
pertaining to the impugned order passed by the 3rd respondent in
Moo.Mu.No.2426/A2/2019, dated 30.06.2019, quash the same and
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http://www.judis.nic.in
W.P.No.21201 of 2019
direct the respondents 2 and 3 to grant re-employment to the
petitioner till the end of academic year i.e., 31.05.2020.
For Petitioner : Mr.R.Subramanian
For Respondents : Ms.P.Kavitha
Government Advocate
ORDER
The petitioner has filed this writ petition seeking issuance of Writ of Certiorarified Mandamus calling for the records pertaining to the impugned order passed by the third respondent in Moo.Mu.No.2426/ A2/2019, dated 30.06.2019, to quash the same and to direct the respondents 2 and 3 to grant re-employment to the petitioner till the end of academic year i.e., 31.05.2020.
2.The petitioner was appointed as B.T. Assistant in the fourth respondent School vide order of the Joint Director of School Education dated 23.06.2012 and on reaching the age of superannuation was due to retire on 30.06.2019. According to the petitioner he is entitled for re-employment till the end of the academic year i.e., 31.05.2020.
Hence, on 07.06.2019, the petitioner gave application to the fourth respondent for re-employment along with Fitness Certificate and the same was forwarded by the fourth respondent to the third respondent, however, the third respondent vide proceedings dated 30.06.2019 had 2/15 http://www.judis.nic.in W.P.No.21201 of 2019 directed the fourth respondent not to give re-employment to the petitioner and directed the fourth respondent to relieve the petitioner from service. However, the fourth respondent neither relieved the petitioner from service nor provided any work. Hence, this writ petition.
3.The learned counsel appearing for the petitioner would submit that the practice of providing re-employment to Teachers till the end of the academic year is continued right from the year 1970 onwards.
The Teachers who were at the verge of retirement during the academic year are allowed to continue on two conditions namely, the conduct and character of the Teacher shall be satisfactory and the Teacher should be physically fit to continue in service. Subject to the fulfilment of the above two pre-requisite conditions, the Teachers who were due to retire on attaining the age of superannuation during the middle of the academic year, were permitted to continue in service till the end of the academic year.
4.The learned counsel appearing for the petitioner would further submit that in the present case, the request of the petitioner to 3/15 http://www.judis.nic.in W.P.No.21201 of 2019 continue in service till the end of academic year was rejected on the ground that the petitioner Teacher post is surplus.
5.The learned counsel appearing for the petitioner would further submit that if the petitioner is discontinued in the middle of the academic year, it will affect the students who are facing the public examination at the end of academic year. He would further submit that similar issue was considered by the Hon'ble Division Bench of this Court in the decision reported in 2012 SCC Online Mad 1622.
6.The third respondent has filed counter affidavit, wherein, paragraph no.6 reads as follows:
“6.It is respectfully submitted that various grounds raised by the petitioner are not acceptable one. The petitioner is surplus staff in the Erode Educational District and as per the G.O.Ms.No.261, School Education (Pa.Ka.5(2) dated 20.12.2018, the petitioner cannot claim re-employment inasmuch as he was not retired in the middle of the academic year, the petitioner retired due to age of superannuation is 30.06.2019 and on taking into consideration of the surplus staff and they may be deployed, hence the petitioner's claim 4/15 http://www.judis.nic.in W.P.No.21201 of 2019 for re-employment could not be considered and he was relieved. For the reasons stated above, the writ petition filed by the petitioner is not maintainable and the same is liable to be dismissed.”
7.On perusal of the records, it is seen that the rejection for re-
employment was on the ground that the petitioner is surplus Teacher.
In this behalf, reliance is placed on G.O.Ms.No.261, School Education Department, dated 20.12.2018. The said Government Order specifically says that surplus posts of Teachers in all Schools are identified and such excess Teachers are posted in the School, wherever there is need and this process would be completed before 31st December of every academic year.
8.The Government Order further says that the process of extending the tenure of Teachers till the end of academic year was considered keeping in mind the interest of children. Thus, as per G.O.Ms.No.261, School Education Department, dated 20.12.2018, regulating the surplus position by identifying the surplus Teachers in all the aided Schools and the Teachers who are due to retire during the 5/15 http://www.judis.nic.in W.P.No.21201 of 2019 middle of the academic year, to be re-employed till the end of the academic year.
9.The learned counsel for the petitioner would contend that till the date of retirement, the petitioner was not declared as surplus Teacher and therefore he is to be allowed to continue in the same School till the end of the academic year and accordingly, he is not surplus Teacher.
10.The learned Government Advocate appearing for the respondents would submit that a perusal of the decision of the Division Bench of this Court clearly reveals that the Division Bench of this Court refused to grant re-employment to the appellant on the ground that he was placed under suspension and he was reinstated in service without prejudice to the disciplinary proceedings and hence, prayed for dismissal of the writ petition.
11.This Court perused G.O.Ms.No.261, School Education Department, dated 20.12.2018. Clause 7(iii) of the said G.O. reads as 6/15 http://www.judis.nic.in W.P.No.21201 of 2019 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';fntz;Lk;/”
12. The said Government Order 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, the Hon'ble 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 7/15 http://www.judis.nic.in W.P.No.21201 of 2019 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 8/15 http://www.judis.nic.in W.P.No.21201 of 2019 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 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 School 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 9/15 http://www.judis.nic.in W.P.No.21201 of 2019 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:-
“2. The right to continue on re-employment till the end of academic year conferred on the teachers working in the schools either 10/15 http://www.judis.nic.in W.P.No.21201 of 2019 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 ratio 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. 11/15 http://www.judis.nic.in W.P.No.21201 of 2019 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 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 12/15 http://www.judis.nic.in W.P.No.21201 of 2019 dated 27.08.1988. We do not find any reason warranting interference with the order of the learned single Judge.”
13.There is no disciplinary proceedings pending against the petitioner and the petitioner's post was not declared as surplus and he is also not the junior most Teacher in that school. Even when the posts are found surplus, the senior-most Teacher should not be sent out and the junior most alone can be transferred to a needy school. Hence, refusing re-employment to the petitioner by the respondents is unsustainable.
14.Following the decisions, as above, the writ petition is allowed.
The impugned order is set aside. The respondents are directed to issue re-employment order to the petitioner till the end of the academic year. No costs. Consequently, the connected miscellaneous petitions are also closed.
22.11.2019 pri Speaking Order/ Non Speaking Order Index: Yes/ No Internet: Yes/ No 13/15 http://www.judis.nic.in W.P.No.21201 of 2019 To
1.The Director of School Education, D.P.I.Campus, College Road, Nungambakkam, Chennai – 600 006.
2.The Chief Educational Officer, Erode.
3.The District Educational Officer, Perundurai, Erode District.
4.The Headmaster, Government High School, Peththampalayam, Perundurai Taluk, Erode District.
14/15http://www.judis.nic.in W.P.No.21201 of 2019 M.DHANDAPANI,J.
pri W.P.No.21201 of 2019 And W.M.P.Nos.20407 to 20409 of 2019 22.11.2019 15/15 http://www.judis.nic.in