Madras High Court
The Director Of Elementary Education vs A.P.Shantha ... 1St on 8 December, 2015
Author: V.Ramasubramanian
Bench: V.Ramasubramanian, N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.12.2015
CORAM
THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN
AND
THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN
W.A.(MD)No.872 of 2014
and
M.P(MD)No.2 of 2014
1.The Director of Elementary Education,
College Road, Chennai.
2.The District Elementary Educational Officer,
Trichy District.
3.The Assistant Elementary Educational Officer,
Manikandam, Trichy District. ... Appellants/
Respondents 1 to 3
Vs.
1.A.P.Shantha ... 1st Respondent/
Writ Petitioner
2.The Correspondent,
St. Joseph's Middle School,
Punganur ? 620 009. ... 2nd Respondent/
4th Respondent
Prayer: Appeal filed under Clause 15 of the Letters Patent, against the order
dated 02.08.2013 made in W.P(MD)No.8556 of 2009.
!For Appellants ... Mr.VR.Shanmuganathan
Special Govt. Pleader
^For Respondents ... Mr.Ajay Gose
for Mr.S.Arunachalam for R.1
Mr.S.P.Maharajan for R.2
:JUDGMENT
(Judgment of the Court was delivered by V.RAMASUBRAMANIAN,J.) This appeal is by the Director of Elementary Education as well as by the District and Assistant Elementary Educational Officers, challenging the order of the learned Judge, directing the appellants to count the period of non-employment of the first respondent herein during the period from 28.08.1991 to 31.10.1999 as pensionable service.
2. Heard Mr.VR.Shanmuganathan, learned Special Government Pleader for the appellants, Mr.Ajay Gose, learned Counsel for the first respondent and Mr.S.P.Maharajan, learned Counsel for the second respondent.
3. The first respondent herein was employed as a Secondary Grade Teacher, in the second respondent school. The second respondent school is a private aided minority school. The post to which the first respondent was appointed, was a sanctioned post.
4. In the year 1991, the Management of the second respondent school initiated disciplinary action and terminated the services of the first respondent by an order dated 28.08.1991. The order of termination was challenged by the first respondent in a writ petition in W.P.No.17370 of 1991.
5. During the pendency of the writ petition, the respondents 1 and 2 entered into a Memo of Compromise. They filed a Joint Memo of Compromise before the Court. Accepting the Joint Memo of Compromise, a learned Judge of this Court passed an order dated 15.10.1999, dismissing the writ petition with a direction to the official respondents, who were not parties to the Joint Memo of Compromise.
6. Since the entire controversy revolves around the order passed in the said writ petition, we extract the order passed in W.P.No.17370 of 1991, dated 15.10.1999, as follows:
"During the pendency of the above writ petition, the petitioner and the third respondent have entered into a joint memo of compromise, which reads as follows:
The petitioner and the third respondent after having discussed the subject matter of the above writ petition agreed to compromise the matter and the agreed memo of compromise is filed hereunder.
1.The third respondent agreed to cancel the termination order dated 28.8.91 and reinstate the petitioner w.e.f. 1.11.99 with continuity of service.
2.The petitioner will not be entitled to get the benefit of backwages.
However the respondent will treat the period of non-employment of the petitioner (from 28.8.91 to 31.10.99) as one of service for all terminal benefits including pension, gratuity, provident fund, etc.
3.The petitioner agrees that on her reinstatement she will not give room for any complaint whatsoever and will discharge her duties sincerely.
4.Both parties to the joint memo agree to file the memo before this Hon'ble Court and will pray for an order in terms of the memo in W.P.No.17370 of 1991.
5.Both parties to the Memo prays for an order accordingly.
Dated at Chennai on this the 15th day of October, 1999.
2 . Therefore, no further order is required in the above writ petition, except to direct all the respondents herein to give effect to the memo of compromise in spirit and substance.
In the result, the writ petition is dismissed. No costs."
7. It appears that pursuant to the said order, the first respondent was reinstated into service on 01.11.1999. She attained superannuation and was allowed to retire on 31.01.2001.
8. Thereafter, the first respondent started making representations for counting the period of non-employment for the purpose of calculating the pensionary benefits as per clause (2) of the Joint Memo of Compromise filed in the first writ petition. Without real application of mind, the authorities seem to have suggested to the first respondent that she had not paid the contribution towards the pension funds during the said period. Therefore she came up with a writ petition in W.P(MD)No.8556 of 2009.
9. During the pendency of the writ petition, a learned Judge of this Court appears to have directed the appellants to calculate the contribution that should have been paid by the first respondent had she continued in service during the aforesaid period. The second respondent filed a calculation memo. Therefore, accepting the calculation memo and recording the readiness of the first respondent, to pay the said amount, the learned Judge disposed of the writ petition in W.P(MD)No.8556 of 2009 on 02.08.2013, to the following effect:
"8. In the light of the said submission, the fourth respondent is directed to calculate the contribution payable by the petitioner for treating the period from 28.08.1991 to 31.10.1999 as pensionable service and inform the same to the petitioner within a period of two weeks from the date of receipt of a copy of this order and on receipt of the same, the petitioner is directed to remit the said amount within a period of two weeks thereafter. After remitting the amount, the fourth respondent is directed to send the revised pension proposal to the second respondent, who in turn, is directed to forward the same to the sanctioning authority for revision of pension proposals. The said exercise is to be completed by the respondents within a period of three months from the date of receipt of a copy of this order."
10. As against the said order, the State has come up with the above appeal.
11. The main grievance of the appellants is that the effect of compromise entered into between the Teacher and the Management of a private aided school cannot fall upon the Government.
12. However it is contended by Mr.Ajay Gose, learned Counsel for the first respondent that the compromise, though entered into only between the respondents 1 and 2, received a seal of approval from this Court and that therefore the appellants who were parties to the writ petition and who suffered the order without questioning the same in any appeal, cannot now go back on the terms of the compromise which now finds part of the order.
13. But we do not accept the above contention for two reasons. The first reason is that clause (2) of the Joint Memo of Compromise which we shall take as having received the seal of approval of this Court, merely made the first respondent entitled to count the period of service for all terminal benefits including pension and gratuity. Neither clause (2) of the Joint Memo of Compromise nor the order of the learned Judge decided as to the person upon whom such liability fell. Under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, a liability can fall upon the Government in respect of a sanctioned post or even upon the Management of the aided school under certain circumstances. For instance, the suspension of a Teacher working in a recognized private school which received grant in aid cannot extend beyond a particular period as per the statute. The statute itself stipulates that if the suspension was unwarranted or extends beyond the period, it is the Management which should make payment. Therefore clause (2) of the Joint Memo of Compromise which received the seal of approval from this Court, merely makes the first respondent entitled to count the period. It does not fasten the liability upon the Government. Therefore the Government had no occasion to challenge the order passed in the writ petition.
14. The second reason as to why the Government could not have filed the appeal against the said order is that ultimately the order reads as though the writ petition was dismissed. Therefore we do not think that the Joint Memo of Compromise recorded in the order dated 15.10.1999 passed in W.P.No.17370 of 1991, can be taken to fasten a liability upon the Government.
15. The second contention of Mr.Ajay Gose, learned Counsel for the first respondent is that the appellants virtually understood the order of the learned Judge and agreed to implement the same, but for the reason that the contribution for the period had not been paid. When this Court directed the appellants to work out the contribution payable, the second respondent calculated the arrears of contribution as Rs.14,229/- (Rupees Fourteen Thousand Two Hundred and Twenty Nine only). Therefore, the learned Counsel drawing our attention to paragraph 5 of the order of the learned Judge contended that even the learned Special Government Pleader who represented the appellants at that time, raised only one objection namely that unless the contribution was paid for the period, benefits will not be granted. Therefore after having directed the first respondent to believe that if contribution was paid, the period can be counted for pensionary benefits, it is not open to the appellants to go back on the stand taken earlier.
16. But even the aforesaid contention cannot be accepted. The statement made by the learned Special Government Pleader which is recorded in paragraph 5 of the order of the learned Judge, cannot be taken to be a concession made by the learned Special Government Pleader. Any matter having financial implication upon the Government cannot be agreed to or consented even by the learned Special Government Pleader without written authority. The law on the point is very clear. Therefore the statement cannot be put against the appellants.
17. Drawing our attention to Rule 22 of the Tamil Nadu Pension Rules, 1978, it is next contended by Mr.Ajay Gose, learned Counsel for the first respondent that if a Government servant who is dismissed, removed or compulsorily retired, is reinstated on appeal or review, he is entitled to count his past service as qualifying service. Therefore he contended that the demand made by the first respondent is a corollary of the order for reinstatement. But we do not think that the reliance placed upon Rule 22(1) of the Tamil Nadu Pension Rules, 1978, is correct. If an order of dismissal, removal or compulsory retirement is set aside by the Court, the said Rule will have an application. We have to understand the Rule in a different context. The Teachers of private aided schools are, for some purposes, treated as similar to Government servants. But they are not actual Government servants. Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, mandates that any order of dismissal or removal of a Teacher working in a sanctioned post should receive the approval of the State. But insofar as the minority institutions are concerned, there is no requirement for getting the approval for the dismissal.
18. In case the first respondent had succeeded in the writ petition on merits, after contest by the official respondents and the management of the aided school, the first respondent would have been entitled to whatever benefits that will normally flow out of such order or whatever benefits to which the reliefs granted by the Court were restricted. But in this case, the official respondents had no occasion even to test the correctness of the order of the dismissal from service. The order of dismissal did not go to the official respondents for approval, since it is not necessary for minority institution. The order of approval could not also be tested in Court because the respondents 1 and 2 entered into a compromise. To fasten the liability upon the appellants, for a mistake committed by the Management in dismissing the first respondent or the mistake made by the Management in entering into a compromise is unfair. Therefore the said contention cannot also be accepted.
19. We have one more reason as to why the order in favour of the first respondent cannot be sustained.
20. The appellants have produced the copies of the relevant pages of the Service Register of the first respondent. The entries in the Service Register have also been endorsed by the District Elementary Educational Officer. They show that upon reinstatement of the first respondent, another Secondary Grade Teacher by name K.Chandra had to be sent on redeployment. This shows that someone was actually working in the post in which the first respondent was earlier working and that such a person had to go out to accommodate the first respondent. In other words, a person has actually occupied the vacancy created due to the termination of the first respondent. In such circumstances, a direction to the appellants to pay the pensionary benefits to the first respondent would impose two liabilities, one in respect of the first respondent and another in respect of the person, who worked in that vacancy.
21. Mr.S.P.Maharajan, learned Counsel for the second respondent, vociferously contended that the very Joint Memo of Compromise entered into in the year 1999, was with an understanding that no monetary liability will be fastened upon the Management of the school. He also contended that in respect of a private aided school, it is unheard of fastening the liability on the Management of the school with regard to the pensionary benefits. According to the learned Counsel, if the Joint Memo of Compromise is to be rejected, it should be rejected in toto and not partially. All the above three contentions are stated only to be rejected.
22. The contention that the Joint Memo of Compromise was entered into only on the understanding that no liability will be fastened on the Management cannot be raised at all. We do not know with whom the Management had such an understanding. When the Government was not a party, there could have been no understanding that all the monetary impacts will only fall upon the Government. Therefore the first contention is completely misconceived.
23. The second contention that no pensionary benefits can ever be fastened on the Management is also ill-founded. We are not fastening the liability of payment of pensionary benefits upon the Management. All that we are saying is that if the first respondent is entitled to a pension over and above what is fixed by the Government, the difference in that pensionary amount should be paid by the Management. We are not asking the Management to pay the whole of the pension. We are asking the Management to pay the difference arising on account of a Joint Memo of Compromise that they consciously entered into with the first respondent. Hence the second contention is also not correct.
24. The third contention attacks the very validity of the Joint Memo of Compromise. The learned Counsel stated that if the principle of the law of contracts is applied, the Joint Memo of Compromise will be null and void. We will not allow such an argument to be advanced by a person who entered into a compromise, who allowed the Court to dispose of a writ petition on the basis of the compromise and who supported the case of the first respondent all along on the strength of the compromise.
25. It is contended by the learned Counsel for the second respondent that the only intention of the Management in supporting the first respondent was to ensure that they do not act as stumbling block for an employee receiving the benefits. Such noble intention on the part of the second respondent should not ultimately turn against the Management.
26. But even the above contention completely lacks merit. If the Management has any noble intention, they must not make the Government to pay for it. All noble intentions should begin at home. Therefore, all the contentions of the learned Counsel for the second respondent are rejected.
27. Therefore we are of the view that the first respondent is not entitled to the benefits claimed by him as against the appellants. She may be entitled to claim the benefits as against the Management. Leaving it open to the first respondent to claim the benefits from the second respondent Management, we allow the writ appeal and set aside the order of the learned Judge. Since the second respondent is a party to the Joint Memo of Compromise and to the order, based on Joint Memo of Compromise, the second respondent is entitled to collect the contribution and pay the benefits to the first respondent. No costs. Consequently, the connected miscellaneous petition is closed. .