Madras High Court
K.Geethanjali vs The Director Of School Education on 5 November, 2019
Author: M.Dhandapani
Bench: M.Dhandapani
W.P. Nos. 30141 & 30148 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.11.2019
CORAM
THE HON'BLE MR.JUSTICE M.DHANDAPANI
W.P. Nos. 30141 & 30148 of 2019
and
W.M.P. Nos. 30100 & 30101, 30104 & 30106 of 2019
W.P. No. 30141 of 2019
K.Geethanjali ... Petitioner
Vs.
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,
Tiruttani Educational District,
Thiruvallur District.
4. The Head Master,
Government Higher Secondary School,
K.G.Kandigai, Tiruvallure District. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India to issue a
Writ of Certiorarified Mandamus, call for the records relating to the impugned
order bearing Na.Ka.No.116/2019 dated 05.07.2019, served on the Petitioner
on 15.07.2019 issued by the Fourth Respondent school rejecting the claim of
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W.P. Nos. 30141 & 30148 of 2019
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 Assistant (Telegu Pandit) working in the School
Education.
For Petitioner : Mr. G. Sankaran
For Respondents : Ms. P. Kavitha
Government Advocate
W.P.No. 30148 of 2019:
D. Kathrinal Punithambal ... Petitioner
Vs.
1. The Chief Educational Officer,
Egmore, Chennai – 600 068.
2. The District Educational Officer,
Chennai West Education District,
DPI Campus, College Road,
Chennai – 600 006.
3. The Chairman,
Education Board,
Tamil Evangelical Lutheran Church,
P.B.No. 86, Tranquebar House,
Trichirapalli – 620 001.
4. The Correspondent,
TELC Magdalene Girls' Higher Secondary School,
Purasawalkam, Chennai – 600 007. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India to issue a
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W.P. Nos. 30141 & 30148 of 2019
Writ of Certiorarified Mandamus, call for the records relating to the impugned
order bearing O.Mu.No.1857/A1/2019 dated 20.06.2019 issued by the Second
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 Fourth Respondent school.
For Petitioner : Mr. G. Sankaran
For Respondents : Ms. P. Kavitha
Government Advocate
COMMON ORDER
These Writ Petitions are taken up for final disposal and disposed of by way of this common order, since the issues involved in these Writ Petitions are similar in nature.
2. The petitioners are teachers and after serving for more than three decades in respective posts, they are at the verge of retirement on attaining age of superannuation during the middle of the academic year and therefore their plea is that they are entitled to continue in the service till the end of the academic year in the same school itself.
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3. The said practice of providing re-employment to teachers till the end of academic year is continued right from the year 1970 onwards. However, on the contrary, the request of the petitioners to grant re-employment till the end of academic year is negatived, against which the present Writ Petitions are filed.
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-requisite conditions, the teachers who were due to retire on attaining age of 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 4/15 http://www.judis.nic.in W.P. Nos. 30141 & 30148 of 2019 students who are facing the public examination at the end of academic year. A similar issue was considered by the Division Bench of this Court reported in 2012 SCC Online Mad 1622.
6. 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 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.
7. 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 the 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 middle of the academic year, to be re-employed till the end of the academic year.
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8. The learned counsel for the petitioners would contend that till the date of retirement, petitioners were not declared as surplus teachers and therefore they are allowed to continue in the same school, till the end of academic year and accordingly, they are not surplus teachers.
9. 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 all the Writ Petitions.
10. This Court perused the G.O.Ms.No.261, School Education Department, dated 20.12.2018. Clause 7(iii) of the said G.O. reads as follows:
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11. 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, a Division Bench of this Court held as follows:
“11. Contending that right of reemployment 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.
7/15http://www.judis.nic.in W.P. Nos. 30141 & 30148 of 2019 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 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 8/15 http://www.judis.nic.in W.P. Nos. 30141 & 30148 of 2019 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 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 9/15 http://www.judis.nic.in W.P. Nos. 30141 & 30148 of 2019 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 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 10/15 http://www.judis.nic.in W.P. Nos. 30141 & 30148 of 2019 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 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 11/15 http://www.judis.nic.in W.P. Nos. 30141 & 30148 of 2019 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. Considering the facts and circumstances of the case, there were no disciplinary proceedings pending against the petitioners and the petitioners posts were not declared as surplus and also they are not the junior most teachers in that school. Even when the posts 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 petitioners by the respondents is unsustainable.12/15
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13. Following the decisions, as above, the Writ Petitions are allowed.
The impugned orders of the respondents 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.
05.11.2019
arb
Index :Yes / No
Internet : Yes / No
Speaking / Non-Speaking order
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, Tiruttani Educational District, Thiruvallur District.
4. The Head Master, Government Higher Secondary School, K.G.Kandigai, Tiruvallure District.
5. The Chief Educational Officer, 13/15 http://www.judis.nic.in W.P. Nos. 30141 & 30148 of 2019 Egmore, Chennai – 600 068.
6. The District Educational Officer, Chennai West Education District, DPI Campus, College Road, Chennai – 600 006.
7. The Chairman, Education Board, Tamil Evangelical Lutheran Church, P.B.No. 86, Tranquebar House, Trichirapalli – 620 001.
8. The Correspondent, TELC Magdalene Girls' Higher Secondary School, Purasawalkam, Chennai – 600 007.
14/15http://www.judis.nic.in W.P. Nos. 30141 & 30148 of 2019 M.DHANDAPANI,J., arb W.P. Nos. 30141 & 30148 of 2019 and W.M.P. Nos. 30100 & 30101, 30104 & 30106 of 2019 05.11.2019 15/15 http://www.judis.nic.in