Madras High Court
D.Sironmani Josephine vs The District Elementary Educational ... on 11 November, 2009
Author: K.N.Basha
Bench: K.N.Basha
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/11/2009 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA W.P(MD)No.11497 of 2009 and M.P(MD)Nos.1 and 2 of 2009 D.Sironmani Josephine .. Petitioner Vs. 1.The District Elementary Educational Officer, Trichirapalli District, Trichirapalli. 2.The Assistant Elementary Educational officer, Pullampadi, Trichirapalli District. 3.The Correspondent, R.C.St.Xavier Middle School, Kallakudi-621 652, Trichy District. .. Respondents Prayer Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the order dated 31.08.2009 passed by the second respondent in his proceedings Na.Ka.No.911/n/2009 and quash the same as illegal and consequentially to re- employ the petitioner as Secondary Grade Teacher in the third respondent school in the completion of academic year viz up to 31.05.2010 and pay the salary for the said period of reemployment. !For Petitioner ...Mr.M.Ajmal Khan ^For Respondents...Mr.V.Rajasekaran Special Government Pleader :ORDER
Mr.V.Rajasekaran, learned Special Government Pleader takes notice on behalf of the respondents.
2. By mutual consent of the learned counsel for the petitioner and the learned Special Government Pleader, this writ petition is taken up for final disposal at the admission stage itself.
3. The petitioner has come forward with this writ petition seeking for the relief of quashing the order dated 31.08.2009 passed by the second respondent in his proceedings Na.Ka.No.911/n/2009 with a prayer to re-employ the petitioner as Secondary Grade Teacher in the third respondent school in the completion of academic year viz up to 31.05.2010 and pay the salary for the said period of reemployment.
4. The case of the petitioner is that she was working as Secondary Grade Teacher in the third respondent school and on attaining the age of superannuation, she has retired from service on 31.08.2009. As the petitioner is entitled to continue as Secondary Grade Teacher on re-employment, till the completion of the academic year i.e. 31.05.2010, by virtue of the Government Order in G.O.Ms.No.1369, Education Department, dated 25.08.1973, the petitioner preferred an application to the third respondent to re-employ her as Secondary Grade Teacher till the completion of academic year. On the strength of the petitioner's application, the third respondent management, being a minority institution, permitted the petitioner to continue to work as Secondary Grade Teacher in the third respondent school till date. Accordingly, the third respondent sent a proposal for approval to the respondents 1 and 2 in respect of the re-employment of the petitioner as Secondary Grade Teacher by placing reliance on the above said Government Order and also for claiming salary for the period of the petitioner's re-employment. But, the second respondent rejected the said proposal by order, dated 31.08.2009. Being aggrieved against the said order, the petitioner has come forward with this writ petition with the above said prayer.
5.1. Mr.M.Ajmal Khan, learned counsel for the petitioner contended that as per G.O.Ms.No.1369 Education Department, dated 25.08.1973, the petitioner is entitled to continue till the end of the academic year even after attaining the age of superannuation and the second respondent has ignored and overlooked the said Government Order while considering the proposal sent by the third respondent for the approval of the re-employment of the petitioner as a Secondary Grade Teacher till the end of the academic year, i.e., upto 31.05.2010. It is contended that the said Government Order is in force till date and the second respondent has erred in rejecting the proposal for approval of re-employment on the ground of excess staff strength stating that instead of nine 9 teachers 10 teachers are working as on date and such reason given by the second respondent is unsustainable in law in view of the Government Order in G.O.Ms.No.1369, Education Department, dated 25.08.1973. It is contended by the learned counsel for the petitioner that the petitioner is continuing as teacher as on date on the strength of the above said Government Order and as such, there is no legal impediment for the second respondent to accord approval for the re- employment of the petitioner.
5.2. The learned counsel for the petitioner, in support of his contention, would place reliance on a Division Bench decision of this Court reported in Correspondent, Secretary and Managing Trustee v. M.Rajagopalan reported in (2008) 1 MLJ 312.
6. Per contra, the learned Special Government Pleader appearing for the respondents would contend that there is no infirmity in the impugned order as the same was passed by the second respondent on the ground of excess staff strength as on date. It is contended that in view of excess staff strength, the question of applicability of the above said Government Order relied on by the petitioner does not arise.
7. I have carefully considered the rival contentions and also perused the materials available on record.
8. The fact remains that, admittedly, the petitioner was working as Secondary Grade Teacher in the third respondent School and she had attained the age of superannuation on 31.08.2009. However, in view of the Government Order in G.O.Ms.No.1369, Education Department, dated 25.08.1973, the petitioner was allowed to continue as Secondary Grade Teacher by way of re-employment by the third respondent herein on the ground that the age of superannuation of the petitioner comes in the middle of the academic year and as such, she is entitled to be reemployed to continue till the end of the academic year, i.e., on 31.05.2010. Accordingly, the third respondent sent a proposal for approval of the reemployment of the petitioner to the respondents 1 and 2 claiming salary for the respective period. But, the second respondent rejected the proposal through the impugned order. It is seen that only ground shown in the impugned order is to the effect that due to the excess staff strength, the petitioner cannot be re-employed.
9. It is pertinent to note that the second respondent has simply brushed aside the Government Order in G.O.Ms.No.1369, Education Department, dated 25.08.1973. The Government Order mentioned in the impugned order, i.e. G.O.Ms.No.525 dated 19.07.1994 is nothing to do with the ground on which the petitioner was re-employed by the third respondent herein. The said Government Order mentioned in the impugned order is in respect of ratio between student and staff strength and the same is nothing to do with the question of re-employment on the ground of reaching the age of superannuation in the middle of the academic year. It is pertinent to note that till date the petitioner is continuing to work in the third respondent school even after reaching the age of superannuation on the strength of the above said Government Order and as such, it cannot be stated that there is excess staff strength.
10. The learned counsel for the petitioner has rightly placed reliance on the Division Bench decision of this Court in Correspondent, Secretary and Managing Trustee v. M.Rajagopalan reported in (2008) 1 MLJ 312 and the Division Bench in that decision held as follows :
"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 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, Tanjavur, 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 Division Bench of this Court in S.Sundaram V. Secretary, C.S.I.Diocese of Madras (supra), whereunder it is held as follows :
".... We must point out here that 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 24.03.1970, which has been followed in subsequent Government Orders." "
11. It is pertinent to note that this Court in W.Emymmal Lalitha V. Chief Educational Officer reported in (2009) 2 MLJ 925 held as follows :
"6. It is seen that the Government of India in its letter dated 8.4.1958 [letter No.15-29/58-D1, Government of India, Ministry of Education, New Delhi] has suggested that school teacher who reaches the age of superannuation during the middle of school year should be allowed to continue till the date of closure of the school for summer vacation in order to ensure continuity of staff. It appears that the Government of Tamil Nadu, while accepting the said suggestion made by the Government of India and passed G.O.No.249, Health, Education and Local Administration Department (Education) dated 9.2.1959, which is as follows:
"The Government of India in the Ministry of Education have suggested that school teachers who reach the age of superannuation during the middle of the school year should be allowed to continue till the date of closure of the school for the summer vacation in order to ensure continuity of staff. The State Government accept the above suggestion and direct that teachers employed in all schools under the control of the Education Department and under public managements who reach the age of superannuation during the middle of the school year should be continued in service on reemployment terms till the date of closure of the school for the summer vacation, provided their work and conduct are satisfactory and they are physically fit to continue in service.
2. In so far as the schools under private managements are concerned, the Director of Public Instruction is requested to issue suitable instructions commending the suggestion of the Government of India, to all the managements of aided institutions in the State.
3. This order is issued with the concurrence of the Finance Department vide their U.O.Note No.8395/Pen-1, dated 30.01.1953"
7. The principle of reemployment which was enunciated for the first time in the abovesaid government Order in respect of teachers working in schools has subsequently been reiterated by various Government Orders including G.O.Ms. No.452, Education, dated 24.3.1970. The said G.O. was referred to by a learned Judge of this Court in W.P.No.20273 of 2006 by order dated 28.7.2006, which is as follows:
"In G.O.Ms.No.452 Education Department, dated 24.3.1970 the Government passed the following Order, 'In Memo 52041 F1/69-1 Edn. dt.8.10.1969 the Government have ordered that teachers who attain the age of superannuation in the middle of the school year should be continued on reemployment terms till the date of closure of the school for summer vacation subject to the usual conditions.
Namely: 1. That their work and conduct are satisfactory
2. That they are physically found fit for further service
3. That no disciplinary proceedings are pending against them The Director of School Education is informed that Teachers/Headmasters of aided Elementary and Secondary Schools who are continued in service on reemployment terms till the closure of the school for summer vacation are eligible for full vacation salary.'
8. By virtue of the principle enunciated in the Government Orders passed by the Government of Tamil Nadu, the teachers who are about to retire in the middle of academic year are entitled to continue in service till the end of academic year subject to certain conditions. They should be physically fit to continue in service and their character and conduct should be satisfactory and no disciplinary proceedings are pending against them. The abovesaid principle has been reiterated in the subsequent Government Orders in G.O.Ms.No.1351, Education Department dated 28.6.1976 and G.O.Ms.No.1643, Education Department dated 27.10.1988.
9. Under Article 162 of the Constitution of India relating to the extent of executive powers of the State, it is clear that in the absence of any legislative enactment regarding the principle of reemployment, the said Orders are the guiding factors and are valid in law and the same have been in fact followed by the State of Tamil Nadu throughout.
10. It is seen that a Division Bench of this Court in S.Sundaram v. The Secretary, C.S.I. Diocese of Madras in W.A.No.1179 of 1993 by judgment dated 6.9.1994 has held that the analysis of the Government Orders would disclose that the reemployment is for ensuring continuity of benefit of teaching from the same teachers to the students during the academic year. The Division Bench has held that it is a case of reemployment and not continuity of service and reemployment is subject to the conditions that the work and conduct of the teacher are satisfactory and such teacher is physically fit for further service and no disciplinary proceedings is pending against such teacher.
12. The Yet another Division Bench presided over by Hon'ble Mr.Justice P.Sathasivam (as He then was) in G.Aannamalai V. Joint Director (Higher Secondary), College Road, Madras and Others in W.A.No.1226 of 2003 took a similar view.
13. The above principle laid down by the Division Benches of this Court as followed by the learned single Judge of this Court is squarely applicable to the facts of the instant case. In the instant case, it is not the case of the respondents that the petitioner is medically unfit or cannot continue to work on account of her conduct or any disciplinary proceedings are pending against her. Therefore, the petitioner is entitled to reemployment on the strength of the Government Order in G.O.Ms.NO.1369, Education Department, dated 25.08.1973 and the third respondent rightly allowed the petitioner to continue to work as Secondary Grade Teacher in the third respondent school by way of reemployment and this Court is of the considered view that there is absolutely no legal impediment for affording the benefit of re-employment to the petitioner in view of the aforesaid reasons.
14. In view of the foregoing reasons, this Court is constrained to quash the impugned order and accordingly, the impugned order dated 31.08.2009 passed by the second respondent in his proceedings Na.Ka.No.911/n/2009 is hereby quashed. Consequently, the respondents 1 and 2 are directed to approve the reemployment of the petitioner and sanction the monetary benefits as per the existing rules till the end of the academic year, i.e., on 31.05.2010.
This writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
JIKR/gg To
1.The District Elementary Educational Officer, Trichirapalli District, Trichirapalli.
2.The Assistant Elementary Educational officer, Pullampadi, Trichirapalli District.
3.The Correspondent, R.C.St.Xavier Middle School, Kallakudi-621 652, Trichy District.