Madras High Court
P.Thamilarasi vs The Director Of School Education on 6 September, 2018
Author: J.Nisha Banu
Bench: J.Nisha Banu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.09.2018
CORAM
THE HONOURABLE MRS. JUSTICE J.NISHA BANU
W.P.(MD)No.8914 of 2012
and
M.P.(MD)Nos.1 & 2 of 2012 and 1 of 2013
P.Thamilarasi .. Petitioner
Vs.
1.The Director of School Education,
College Road,
Chennai.
2.The Chief Educational Officer,
Dindigul District,
Dindigul.
3.The Headmaster,
Government Higher Secondary School,
Samuthirapatti,
Dindigul District. .. Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India
praying for issuance of a Writ of CERTIORARIFIED MANDAMUS, calling for the
entire records relating to the impugned order passed by the 2nd respondent in
his proceedings under Na.Ka.No.2121/A3/2012 dated 22.06.2012 and quash the
same and consequently, directing the respondents to permit the petitioner to
continue in service in the 3rd respondent school as Graduate Assistant
(Zoology) upto 31.05.2013 under re-employment scheme along with all
consequential monetary benefits in terms of G.O.Ms.No.281, Education
Department, dated 13.02.1981.
!For Petitioner : Mr.S.Chandrasekaran
^For Respondents : Mrs.S.Srimathy,
Special Government Pleader
:ORDER
The petitioner was appointed as Graduate Assistant by the Teachers' Recruitment Board under the first respondent Department, vide order dated 27.09.2007 and was employed as Graduate Assistant in the third respondent School. She reached the age of superannuation on 30.06.2012. The petitioner, therefore, submitted a representation dated 02.03.2012, to the second respondent for extension of her services till the end of the Academic Year, as per G.O.Ms.No.281, Education Department, dated 13.02.1981. The said representation was, however, rejected by the second respondent by way of the impugned order, citing the Government letter of the first respondent, dated 13.08.2008. Hence, she is before this Court.
2. The contention of the petitioner's Counsel is that the petitioner had served the third respondent institution without any adverse remarks and that she is entitled to the benefit of re-employment. The substance of the Government Order in G.O.Ms.No.281, Education Department, dated 13.02.1981 is that a teacher, who retires in the middle of the Academic Year shall be granted re-employment so as to continue till the end of the Academic Year. Of course, this is subject to fulfillment of the conditions:
1.that the work and conduct of the teacher was satisfactory; and
2.that the teacher is physically fit for further service.
3. According to the petitioner, she fulfills both the conditions, but, her request was negatived, citing the Government letter of the first respondent, dated 13.08.2008, stating that she did not possess ten years of service.
4. The relevant Government Order stipulates only two conditions, as stated supra. Though the petitioner satisfies the said Government Order, the second respondent, citing the Government Letter of the first respondent, has rejected the petitioner's plea. No where, in the Government Order, it is stated that a person should have completed ten years of service. Therefore, whether a Government Letter can override a Government Order or not, is the question that emerges for consideration, which has been considered and answered in more than one cases that a Government Letter cannot override a Government Order.
5. Admittedly, the said Government Letter, dated 13.08.2008, cannot override the Government Order issued in G.O.Ms.No.281, Education Department, dated 13.02.1981, which was issued in the name of the Governor under the powers vested under Article 162 of the Constitution of India. A statutory provision will prevail over the administrative instructions and the administrative instructions issued in the name of the Governor will prevail over any administrative orders issued by the Government and not in the name of the Governor.
6. The Hon'ble Supreme Court, in the decision reported in 2005 (10) SCC 244, in the case of R.P.Bharadwaj v. Union of India and others, has held that a Government Letter cannot be acted upon unless a new Office Memorandum is issued, while considering the issue as to whether a letter of the Central Ministry issued by the Secretary will override the Office Memorandum. The relevant portion of the said judgment is extracted as under:
?8. ...We have already noticed that the O.M. dated 19.07.1989 contained instructions to be noted and followed by all concerned. That position was prevailing when the proposal by means of letter dated 23.11.1989 was mooted. It was not yet issued as O.M., for compliance by all concerned as was done in respect of the O.M. dated 19.07.1989. In our view, it was still at a premature stage and before being final so as to be circulated by the Government of India for being followed by the authorities and the Departments and all concerned, it seems to have been acted upon by the Service Commission against the O.M., which was in operation. Even if any implied approval is inferred by the Public Service Commission, it would be of no consequence since then too it would be anything more than an approval would not replace an O.M., issued by the Government of India. Even after approval, the Government may not issue any O.M. The Commission wrongly acted upon the mere proposal.?
7. This Court, in an unreported decision, in W.P.No.1713 of 1988, etc., batch, dated 07.11.1990, considered the similar issue as to whether a Government Letter can override a Government Order and has held that the Government Order, having been authenticated and expressed to be taken in the name of the Governor, has the sanctity of an order issued under Article 166 of the Constitution of India and the Government letter issued subsequently cannot supersede the earlier Government Order.
8. Therefore, it is a settled principle that an executive order issued in the name of the Governor cannot be modified by another executive order, not being issued in the name of the Governor.
9. In such a view of the matter, the petitioner has to be granted re-employment, if she satisfies the relevant Government Order alone. As the petitioner was found eligible as per the Government Order, her request was recommended by the third respondent and considering the same, this Court, when the matter came up for admission, has passed an interim order in favour of the petitioner.
10. When the matter was taken up for hearing today, it is represented by the learned Special Government Pleader that in view of the interim order passed by this Court, the petitioner has been allowed to work for the academic year. He would further submit that after the completion of the term of re-employment, the petitioner retired from service.
11. At this juncture, the learned Counsel for the petitioner submitted that though the petitioner was allowed to continue her service till the end of the academic year pursuant to the interim order of this Court, she was not paid salary for the relevant period, ie., from 01.07.2012 to 31.05.2013 (eleven months) and therefore, the learned Counsel for the petitioner prayed for appropriate directions to the respondents for disbursement of salary for the said period.
12. On a query, it is represented by the learned Special Government Pleader that since the writ petition is pending before this Court, they are not able to disburse the salary to the petitioner for the relevant period.
13. In any event, since the petitioner was re-employed and after completion of the term of re-employment, she was also retired from service, the writ petition has become infructuous. However, since the petitioner has already worked during the period of re-employment, the respondents ought to have paid the salary for the period from 01.07.2012 to 31.05.2013. Despite passage of five years after the period of re-employment, the respondents did not came forward to disburse the salary, but, on the other hand, they are pointing their hands on the Court, stating that since the case is pending, they are not able to disburse the salary.
14. Perusal of the record shows that the respondents are not restrained by this Court in disbursing the salary to the petitioner for the period of re-employment. An employee is entitled for wages from his/her employer for the work done by him/her, which is a constitutional right. In the case on hand, despite passage of five years, the salary for a Government Servant was not paid, which is nothing but a denial. In the opinion of this Court, this delay violates the constitutional right of the employee. Though there is no specific provision in the Service Rules, since such delay violates the constitutional rights of the employee, this Court is of the view that the petitioner is entitled to her salary for eleven months, ie., from 01.07.2012 to 31.05.2013, with interest for the belated payment.
15. Accordingly, this writ petition is disposed of, with a direction to the respondents to disburse the salary of the petitioner for eleven months, ie., from 01.07.2012 to 31.05.2013, with interest at the rate of 7.5% per annum, within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Director of School Education, College Road, Chennai.
2.The Chief Educational Officer, Dindigul District, Dindigul.
3.The Headmaster, Government Higher Secondary School, Samuthirapatti, Dindigul District.
.