Madras High Court
The Chief Educational Officer vs P.S.Rajavel Durai on 16 March, 2021
Author: M.M.Sundresh
Bench: M.M.Sundresh, S.Ananthi
W.A.(MD)Nos.107, 566, 583, 594, 933, 1177 and 1273 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.03.2021
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)Nos.107, 566, 583, 594, 933, 1177 and 1273 of 2020
and
C.M.P.(MD)Nos.939, 3821, 3845, 3883, 5126, 6405 and 7238 of 2020
W.A.(MD)No.107 of 2020:-
1.The Chief Educational Officer,
O/o. The Chief Educational Officer,
Dindigul,
Dindigul District.
2.The District Educational Officer,
O/o. The District Educational Officer,
Palani,
Dindigul District.
3.The Headmaster,
Government High School,
Manoor – 624 618,
Palani (Taluk),
Dindigul District. ... Appellants
Vs.
P.S.Rajavel Durai ... Respondent
Appeal filed under Clause 15 of the Letters Patent, against the order
passed by this Court in W.P.(MD)No.23392 of 2019, dated 20.11.2019.
http://www.judis.nic.in
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W.A.(MD)Nos.107, 566, 583, 594, 933, 1177 and 1273 of 2020
For Appellants : Mrs.S.Srimathy
Special Government Pleader
For Respondent : Mr.S.Louis
*****
COMMON JUDGMENT
(Judgment of the Court was delivered by M.M.SUNDRESH, J.) This is an issue, which has been dealt with by the Court on numerous occasions. In G.O.(Ms)No.261, School Education (Pa.Ka.5(2)) Department, dated 20.12.2018, a policy decision was once again taken by the Government to the effect that the teachers, who retired during the academic year by reaching the age of superannuation, are not entitled for re-employment when there are surplus teachers available. It appears that notwithstanding the aforesaid Government Order, orders have been passed by the Court, granting relief to the teachers, who reached the age of superannuation during the academic year. This is for both Government and Government Aided School teachers working in Primary School, Middle School, High School and Higher Secondary School, respectively. In some of the cases, this Court considered the Government Order, nonetheless allowed the Writ Petitions.
2.The learned Special Government appearing for the appellants submitted that there is no right vested on a teacher, who reached the age of superannuation during the academic year to continue thereafter. Such a right is http://www.judis.nic.in 2/10 W.A.(MD)Nos.107, 566, 583, 594, 933, 1177 and 1273 of 2020 a qualified one, provided there is no surplus teacher post available. In other words, when there is a vacancy caused due to the superannuation having been attained, then, in the interest of Students, such a teacher will be allowed to continue. In the Government School as well as the Government Aided School, the surplus teachers will have to be re-deployed. Either the Management or the Headmaster will have to give due intimation at the earliest and without obtaining permission, such an act cannot be done. If the Management is of the view that Students' interest would be affected by deploying the excess teachers available, it is for them to make payment, as the appellants cannot be directed to make such payment due to teachers and the same logic will apply for the Government School Teachers as well.
3.In support of her contention, the learned Special Government Pleader appearing for the appellants placed reliance upon the judgment of the Division Bench of this Court in K.Ramachandran Vs. The District Elementary Education Officer, Madurai and others [W.A(MD)No.910 of 2020, dated 15.02.2010].
4.The learned counsels appearing for the respondents submitted that orders have been passed by taking into consideration the interest of the Students. Rule 22 of Right of Children to Free and Compulsory Education http://www.judis.nic.in 3/10 W.A.(MD)Nos.107, 566, 583, 594, 933, 1177 and 1273 of 2020 Rules, 2010, mandates re-deployment. Without doing re-deployment, a teacher working in re-employment cannot be denied the salary, once such surplus would mean only those who are working in the surplus post nor in the regular establishment.
5.The learned counsel appearing for the respondents submitted that there is a difference between the Government Schools and the Private Aided Schools. In the Government Schools, the Government, which have to take steps, despite the recommendations made, no steps have been taken and therefore, the writ petitioners cannot be made to suffer.
6.In support of their contentions, the learned counsels made reliance upon the following decisions:-
(i) Reynold Jayasekaran Vs. Director of School Education (Elementary Schools), Chennai – 600 006 and others reported in 2015 (4) MLJ 571.
(ii) Correspondent, Secretary and Managing Trustee, Salem Vs. M.Rajagopalan and others reported in 2008 (1) MLJ 312.
(iii) V.Manogaran Vs. The State of Tamil Nadu, Rep. by its Secretary to Government, School Education Department, Chennai and others [W.P.No.2772 of 2020, dated 06.02.2020].
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7.Heard the learned Special Government Pleader appearing for the appellants and the learned counsels appearing for the respondents.
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 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 http://www.judis.nic.in 5/10 W.A.(MD)Nos.107, 566, 583, 594, 933, 1177 and 1273 of 2020 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 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, http://www.judis.nic.in 6/10 W.A.(MD)Nos.107, 566, 583, 594, 933, 1177 and 1273 of 2020 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 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 http://www.judis.nic.in 7/10 W.A.(MD)Nos.107, 566, 583, 594, 933, 1177 and 1273 of 2020 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.
Index :Yes/No [M.M.S., J.] [S.A.I., J.] Internet :Yes 16.03.2021 Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. http://www.judis.nic.in 8/10 W.A.(MD)Nos.107, 566, 583, 594, 933, 1177 and 1273 of 2020 To
1.The Chief Educational Officer, O/o. The Chief Educational Officer, Dindigul, Dindigul District.
2.The District Educational Officer, O/o. The District Educational Officer, Palani, Dindigul District.
3.The Headmaster, Government High School, Manoor – 624 618, Palani (Taluk), Dindigul District.
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AND S.ANANTHI, J.
smn2 Common Judgment made in W.A.(MD)Nos.107, 566, 583, 594, 933, 1177 and 1273 of 2020 16.03.2021 http://www.judis.nic.in 10/10