Madras High Court
K. Narayanasamy vs The Director Of School Education on 19 September, 2019
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.26689 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :19.09.2019
CORAM
THE HON'BLE MR.JUSTICE M.DHANDAPANI
W.P.Nos. 26689, 27276, 24282, 24288, 24291, 24294,
27700 and 27704 of 2019
and
WMP.Nos. 26068, 24045 to 24048, 24050, 24052, 24053, 24054, 26051, 26699,
26717, 26821, 26861, 27218, 27819, 27220, 27226 and 27227
1. K. Narayanasamy
S/o. Kuppusamy,
B.T. Assistant (Maths),
Government Higher Secondary School,
Kathivakkam, Chennai – 600 057.
...Petitioner in W.P.No. 26689 of 2019
2. K. Vasuki
..Petitioner in W.P.No.27276 of 2019
3. R. Padmini
..Petitioner in W.P.No.24282 of 2019
4. R. Vijayalakshmi
..Petitioner in W.P.No.24288 of 2019
5. K. Sekar
..Petitioner in W.P.No.24291 of 2019
6. T. Narasimha Bharathi
..Petitioner in W.P.No.24294 of 2019
7. K. Venkatesan(Retired)
B.T. Assistant (Mathematics)
Son of Kannu Naidu
Government Higher Secondary School
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W.P.No.26689 of 2019
Ariyalur
Villupuram District.
..Petitioner in W.P.No.27700 of 2019
8. Pandurangan
Son of Srinivasan
B.T. Assistant (History)
Government High School
South Siruvalur
Thiruvannamalai Educational District
..Petitioner in W.P.No.27704 of 2019
vs
1. The Director of School Education,
DPI Campus, College Road, Chennai- 600 006.
... R1 in W.P.No.26689 of 2019
...R2 in W.P.No. 27276 of 2019
...R1 in W.P.No.24282 of 2019
...R1 in W.P.No.24288 of 2019
...R1 in W.P.No.24291 of 2019
...R1 in W.P.No.24294 of 2019
...R1 in W.P.No.27700 of 2019 &
... R1 in W.P.No.27704 of 2019
2. The Chief Educational Officer,
Thiruvallur District, Thiruvallur.
...R2 in W.P.No. 26689 of 2019
3. The District Educational Officer,
Ambattur Educational District,
Thiruvallur District.
...R3 in W.P.No. 26689 of 2019
4. The State of Tamil Nadu
Represented by its Secretary to Government,
School Education Department,
Fort. St' George,
Chennai- 9.
R1 in W.P.No. 27276 of 2019.
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W.P.No.26689 of 2019
5. The District Education Officer,
District Education Office,
Chidambaram.
R3 in W.P.No.27276 of 2019
6. The Head Master,
B. Mutloor Higher Secondary School,
Bhuvanagiri Taluk,
Chidambaram District.
R4 in W.P.No.27276 of 2019
7. The Chief Educational Officer
Villupuram.
R2 in W.P.No.24282 of 2019
8. The District Educational Officer
Villupuram
R3 in W.P.No.24282 of 2019
9. The Chief Educational Officer,
Thiruvannamalai
R2 in W.P.No.24288 of 2019
R2 in W.P.No.24291 of 2019
R2 in W.P.No.24291 of 2019
10. The District Educational Officer,
Thiruvanamalai.
R3 in W.P.No.24288 of 2019
R3 in W.P.No.24291 of 2019
R3 in W.P.No.24294 of 2019
11. The Chief Educational Officer,
Ariyalur.
R2 in W.P.No.24291 of 2019
R2 in W.P.No.27700 of 2019
12. The District Education Officer,
Thirukkovilur Education District.
R3 in W.P.No.27700 of 2019
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W.P.No.26689 of 2019
13. The Head Master
Government Higher Secondary School
Ariyalur.
R4 in W.P.No.27700 of 2019
14. The Educational Officer
Villupuram District
R2 in W.P.No.27704 of 2019
15. The District Educational Officer
Thindivanam
Villupuram District.
R3 in W.P.No.27704 of 2019
Prayer in W.P.No.26689 of 2019: Writ Petition filed under Article 226 of the
Constitution of India praying to issue a writ, order, or direction more particularly
a writ in the nature of Writ of Certiorarified Mandamus to call for the records
relating to the impugned order bearing Na.Ka.No.1709/A5/2019 dated
31.07.2019 served on the petitioner on 08.08.2019 issued by the third
respondent rejecting the claim of the petitioner for re-employment till the end of
academic year and to quash the same and consequently direct the respondents
to allow the petitioner for re-employment till the end of academic year on
superannuation on par with other similarly placed B.T. Assistants working in the
School Education and to pass such further or other orders.
Prayer in W.P.No.27276 of 2019: Writ Petition filed under Article 226 of the
Constitution of India praying to issue an order or direction or writ in the nature of
Writ of Certiorarified Mandamus, to call for the records pertaining to the
impugned order passed by the 4th respondent in his proceedings in
Na.Ka.No.107/2019 dated 31.07.2019 and quash the same and consequently
direct the respondents to approve the re-employment of the petitioner from
01.08.2019 till 31.05.2020 i.e., end of academic year in the post of B.T. Assistant
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W.P.No.26689 of 2019
(English) with all monetary benefits and pass such further or other order.
Prayer in W.P.No.24282 of 2019: Writ Petition filed under Article 226 of the
Constitution of India praying to issue a writ, Order or direction more so in the
nature of a Writ of Certiorarified Mandamus calling for the records on the file of
the third respondent in relation to the impugned Proceedings
No.Na.Ka.3322/A2/2019 dated 29.07.2019, quash the same and consequentially
direct the respondents to permit the petitioner to work as B.T. Assistant (Tamil)
till 31.05.2020 as per the orders of the third respondent in
Na.Ka.No.3322/A2/2019 dated 29.06.2019 with all service and monetary
benefits.
Prayer in W.P.No.24288 of 2019: Writ Petition filed under Article 226 of the
Constitution of India praying to issue a Writ, Order or Direction more so in the
nature of a Writ of Certiorarified Mandamus calling for the records on the file of
the second respondent in relation to the impugned proceedings
No.Na.ka.5860/A4/2019 dated 28.06.2019, quash the same and consequentilly
direct the respondents to permit the petitioner to work as B.T.Assistant (Tamil)
till 31.05.2020 with all service and monetary benefits.
Prayer in W.P.No.24291 of 2019: Writ Petition filed under Article 226 of the
Constitution of India praying to issue a Writ, Order or Direction more so in the
nature of a Writ of Certiorarified Mandamus calling for the records on the file of
the second respondent in relation to the impugned proceedings
No.Na.Ka.5860/A4/2019 dated 28.06.2019 quash the same and consequentially
direct the respondents to permit the petitioner to work as B.T. Assistant (Tamil)
till 31.05.2020 with all service and monetary benefits and to pass such further or
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W.P.No.26689 of 2019
other orders.
Prayer in W.P.No.24294 of 2019: Writ Petition filed under Article 226 of the
Constitution of India praying to issue a Writ, Order or Direction more so in the
nature of a Writ of Certiorarified Mandamus calling for the records on the file of
the third respondent in relation to the impugned proceedings
No.Na.Ka.5800/A4/2019 dated 28.06.2019 quash the same and consequentially
direct the respondents to permit the petitioner to work as B.T. Assistant (Tamil)
till 31.05.2020 as per the orders of the third respondent in
Na.Ka.No.5941/A4/2019 dated 17.06.2010 with all service and monetary benefits
and to pass such orders.
Prayer in W.P.No.27700 of 2019: Writ Petition filed under Article 226 of the
Constitution of India praying to issue a Writ, Order or Direction more so in the
nature of a Writ of Certiorarified Mandamus calling for the records of the third
respondent in relation to the impugned order in Na.Ka.No.1862/A1/2019 dated
19.07.2019, quash the same and consequently direct the respondents to permit
the petitioner to continue to work as B.T. Assistant (Mathematics) for the period
from 1.7.2019 to 31.5.2020 with all monetary and service benefits and to pass
such further orders.
Prayer in W.P.No.27704 of 2019: Writ Petition filed under Article 226 of the
Constitution of India praying to issue a Writ, Order or Direction more so in the
nature of a Writ of Certiorarified Mandamus calling for the records of the third
respondent in Na.Ka.No.3884/A3/2019 dated 29.08.2019, quash the same and
consequently direct the respondents to grant re-employment to the petitioner for
the period from 1.09.2019 till 31.5.2020 with all monetary and service benefits
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W.P.No.26689 of 2019
applicable to the petitioner and to pass such further or other orders.
For Petitioners : Mr. Dhakshayani Reddy
For Respondents : Ms.V. Annalakshmi, Government Advocate
COMMONORDER
These Writ Petitions are taken up and disposed of by way of common order, since the issue involved in these Writ Petitions is common.
2. The petitioners are teachers and they served in respective posts and after serving for more than two decades, they are at the verge of retirement during the middle of the academic year and therefore their plea is that they are entitled to continue the service till the end of the academic year on superannuation.
3. The said practice of providing re-employment to teachers till the end of academic year is continued right from 1970 onwards. However, on the contrary, the request of the petitioners to grant re-employment till the end of academic year, negatived against which the present Writ Petitions are filed.
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4. The learned counsel for the petitioners would submit that the teachers who were at the verge of retirement during the academic year are allowed to continue on two conditions namely, that the conduct and character of the teacher shall be satisfactory and would be physically fit to continue in service.
Subject to the fulfilment of the above two pre-requiste conditions, the teachers who were due to retire on superannuation during the middle of the academic year, were permitted to continue in service till the end of the academic year.
But, in the present case, the request of the petitioners to continue in service till the end of academic year was rejected on the ground of surplus teachers.
5. It is further contended on behalf of the petitioners 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 academic year. Similar issue was considered by Division Bench of this Court reported in 2012 SCC Online Mad 1622.
6. The learned Government Advocate appearing for the third respondent filed a counter affidavit. The relevant portion of the counter affidavit are extracted below:
8/21http://www.judis.nic.in W.P.No.26689 of 2019 “5. Regarding the vernment of the petitioner in par (3) of the affidavit it is submitted that, to safe guard the educational interest of students Government as a matter of Policy issued Government Order extending the service of those teachers retiring in the middle of the academic year till the end of the academic year subject to certain conditions (viz)
(i) The conduct and character of the teacher are satisfactory.
(ii) There should be no disciplinary proceeding pending.
(iii) He is Physically fit to discharge his duties.
Accordingly the teachers are granted re-
employment till the end of academic year.
6. It is submitted that Writ Petitions were filed before Hon'ble Madurai Bench of Madras High Court challenging the rejecting of re-employment on the grounds the incumbent was serving in surplus post, with no period allocation for class room teaching. In this regard the Hon'ble High Court in W.P.(MD) 18902/18 & 17894/2018 has issued orders in the 9/21 http://www.judis.nic.in W.P.No.26689 of 2019 form of advice the relevant position are extracted here under.
“Hon'ble Court directed to verify whether any G.O. Is there to deny re-employment and it not, based on earlier G.O. The Writ Petition would be allowed. The Hon'ble court was pleased to direct the Government to issue G.O. In this issue of re-
employment. Therefore, it is advised to issue Government Order in the issue of surplus teachers need not be granted re-employment until the end of academic year.
7. It is submitted that as directed by the Hon'ble the 1st respondent has recommended to Government to issue suitable G.O. With the following remarks:
“ As surplus post of teachers in all categories are identified at the time of staff fixation with curcial date of 1.8. In accordance with Teacher Pupil ration it is constructed that the educational interest of students are not affected due to the service rendered by teachers in surplus posts. Further due to non 10/21 http://www.judis.nic.in W.P.No.26689 of 2019 allocating of periods as per norms their service is not helpful in rendering educational interest of students.
Contrary to this it would cause huge financial burden to state exchequer. Hence, those teachers who re rendered surplus need not be granted re-employment till the end of academic year and they may be relieved on the date of attaining superannuation.”
7. On perusal of the records, it is seen that the rejection for re-
employment was on the ground that the petitioners were surplus teachers. In this behalf, reliance is placed on GOMs. 261 dated 20.12.2018. The said G.O. Specifically say 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 ever academic year.
8. The G.O. 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 the G.O., by regulating the surplus position, identifying the surplus teachers in all the aided schools, the teachers, who are due to retire during the middle of the academic year, to be re-employed till the end of the academic year.
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9. The learned counsel for the petitioners would contend that till the date of retirement petitioners were not declared as surplus teacher and therefore they are allowed to continue in the same school, till the end of academic year and accordingly they are not surplus teachers.
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 ephz ; ak; 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;/”
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 12/21 http://www.judis.nic.in W.P.No.26689 of 2019 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, 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 13/21 http://www.judis.nic.in W.P.No.26689 of 2019 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 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 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 re- employment, Appellant School is not justified in 14/21 http://www.judis.nic.in W.P.No.26689 of 2019 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 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, 15/21 http://www.judis.nic.in W.P.No.26689 of 2019 C.S.I. Diocese of Madras) and the SLP preferred against the same was also dismissed. The ration 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. 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 16/21 http://www.judis.nic.in W.P.No.26689 of 2019 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 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 17/21 http://www.judis.nic.in W.P.No.26689 of 2019 year is over. No costs. Consequently, connected Miscellaneous Petitions are closed.
19.09.2019 Index:Yes / No Internet: Yes / No Speaking / Non-Speaking order mrn To
1. The Director of School Education, DPI Campus, College Road, Chennai- 600 006
2. The Chief Educational Officer, Thiruvallur District, Thiruvallur.
3. The District Educational Officer, Ambattur Educational District, Thiruvallur District.
4. The State of Tamil Nadu Represented by its Secretary to Government, School Education Department, Fort. St' George, Chennai- 9.
5. The District Education Officer, District Education Office, Chidambaram.18/21
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6. The Head Master, B. Mutloor Higher Secondary School, Bhuvanagiri Taluk, Chidambaram District.
7. The Chief Educational Officer Villupuram.
8. The District Educational Officer Villupuram
9. The Chief Educational Officer, Thiruvannamalai
10. The District Educational Officer, Thiruvanamalai.
11. The Chief Educational Officer, Ariyalur.
12. The District Education Officer, Thirukkovilur Education District.
13. The Head Master Government Higher Secondary School Ariyalur.
14. The Educational Officer Villupuram District
15. The District Educational Officer Thindivanam Villupuram District.
19/21http://www.judis.nic.in W.P.No.26689 of 2019 M.DHANDAPANI, J., mrn W.P.Nos. 26689, 27276, 24282, 24288, 24291, 24294, 27700 and 27704 of 2019 and WMP.Nos. 26068, 24045 to 24048, 24050, 24052, 24053, 24054, 26051, 26699, 26717, 26821, 26861, 27218, 27819, 27220, 27226 and 27227 20/21 http://www.judis.nic.in