CoramThe Honourable Mr v. The Management, Nirmala Hr.Sec.School, Kolathur, Salem.2. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 14-9-2007CoramThe Honourable Mr.Justice K. VENKATARAMANWRIT PETITION No.22114 of 2007andM.P.Nos.1 and 2 of 2007A.Arockiasamy .. PetitionerVs.1. The Management, Nirmala Hr.Sec.School, Kolathur, Salem.2. The State of Tamilnadu, rep. by the Secretary, Department of Education, Fort St. George, Chennai-9.3. The Director of School Education, Chennai 600 006.4. The District Educational Officer, Sangagiri, Salem. .. Respondents Writ Petition filed under Article 226 of the Constitution of Indiapraying to issue a writ of mandamus directing the respondents tocontinue the petitioner in employment in the post of Post GraduateAssistant from 1.7.2007 till the end of the present academic year inaccordance with the G.O.Ms.No.1643 dated 27.10.1988 of the firstrespondent in the same school, namely, Nirmala Higher Secondary Schoolunder the control of the third respondent. For Petitioner : Mr.S.Soundarajan For Respondent-1: Mr.S.Doraisamy For R-2 to R-4 : Mr.Pa.Kadirvel, Govt.Advocate.O R D E RThe petitioner has come forward with the present Writ Petitionfor mandamus directing the respondents to continue the petitioner inemployment in the post of Post Graduate Assistant from 1.7.2007 till theend of the present academic year in accordance with G.O.No.1643 dated20.10.1988 in the same school, namely, Nimala Higher Secondary Schoolunder the control of the third respondent. https://hcservices.ecourts.gov.in/hcservices/

2. The facts in nutshell for the disposal of the present WritPetition are as follows:- The petitioner was working as P.G. Assistant in the firstrespondent school. He has not received any black mark in his career.He is due to retire on 30.6.2007 on attaining the age of superannuation.Since the academic year has commenced from 1.6.2007, the petitioner hasrequested the school management to issue a letter of re-employment towork till the end of the present academic year, namely, 31.5.2008.Since the third respondent has not considered his case, he wasconstrained to write to the first and fourth respondents on 7.6.2007 forissuing necessary orders re-employing him till the end of presentacademic year as per the Government Orders prevailing. Since no orderhas been communicated either by the respondents 1 and 4 or by the thirdrespondent, he has approached this Court for the relief set out earlier.3. After notice, the first respondent-school management hasfiled counter affidavit wherein it has been set out that the parents andthe students were demanding for a long period that a suitable fullyqualified P.G. Assistant in Chemistry to be appointed in the place ofthe petitioner, since there were lot of complaint from the students thatthe petitioner was not teaching properly and he has not equipped himselffor the recent revised syllabus introduced by the Government from timeto time. From the academic year 2005-06, he has withdrawn from teachingPlus One and Plus Two students and from the academic year 2005, he hasbeen asked to teach English in XI Standard and Science in IX and Xstandards, but his teaching even for the X Standard is also not uptomark. That apart, in the academic year 2006-07, out of total workingdays of 200, the petitioner had worked only for 132 days. Further, hishealth condition is also not good. In the academic year 2006-07, outof 200 working days, he has taken 45 days of medical leave. That apart,several written complaints have been received from the student communitythat his conduct in the class room is very indecent. He used to beatstudents as and when he was not able to teach the students from the newsyllabus. Thus, the sum and substance of the counter affidavit is thatthe petitioner is not entitled for any re-employment in view of thereasons stated above.4. On the above facts, Mr.S.Soundararajan, the learned counselappearing for the petitioner, Mr.S.Doraisamy, the learned counselappearing for the first respondent and Mr.Pa.Kadirvel, the learnedGovernment Advocate appearing for respondents 2 to 4 have placed theirsubmissions.5. Mr.S.Soundararaj, the learned counsel appearing for thepetitioner, contended that the petitioner shall be re-employed till thenext academic year as per G.O.Ms.No.1643 Education Department dated27.10.1988. The allegations that have been made in the counteraffidavit were not at all made when the petitioner was in employmentbefore attaining the age of superannuation. So far no disciplinaryproceeding has been initiated against the petitioner about hischaracter, physical fitness or teaching capacity. For the first time, https://hcservices.ecourts.gov.in/hcservices/ such allegations have been made against the petitioner in the counteraffidavit. Since it is an afterthought, the same has to be rejected.6. Per contra, Mr.S.Doraisamy, the learned counsel appearingfor the first respondent-school management, contended that there werecomplaints from the parents and the students about the petitionerbehaviour and his teaching capacity. Hence, if the petitioner isallowed to continue till the next academic year, it will unnecessarilycause problems to the student community.7. The right of the teachers to continue in service till theend of the academic year in case of his date of retirement falls in themiddle of the academic year cannot be disputed. The said rightadmittedly flows from various orders of the Government issued from timeto him and last of such order flows from G.O.Ms.No.1643 dated27.10.1988. The said Government Order reads as follows:-"In the order first read above, while permittingthe continuance of the teachers in service on re-employment terms on their attainment of the age ofsuperannuation in the middle of the school year thefollowing pre-requisite conditions have beenprescribed:-1. The character and the conduct of the teachershould be satisfactory.2. They should be physically fit to continue inservice.2.Now it has been brought to the notice of theGovernment that in respect of School EducationDepartment, more than 25% of the Pension proposals arebeing sent to the Accountant-General for settlement ina year. To avoid delay on the part of the teachers whoare due to retire in preferring their claims and alsoin view of the fact that almost all the teachers areinterested in getting reemployment, the Director ofSchool Education has suggested to incorporate anothercondition, viz the pension papers should be submittedat least one year before the date of their retirement,be made as the third pre-requisite conditions for re-employment.3.The Government accept the suggestion made by theDirector of Schools Education and direct the conditionthat pension applications of Teachers working under allmanagement under the control of Education Departmentincluding public sector institutions on re-employmentterms on their attainment of superannuation in themiddle of the school year should be sent to theAccountant General at least one year before the date oftheir retirement as prescribed as a pre-requisitecondition in addition to the two pre-requisiteconditions prescribed in G.O.Ms.No.249, Educations,dated 9.2.59." https://hcservices.ecourts.gov.in/hcservices/

8. Thus, the above said G.O. stipulates three conditions forthe teachers who attain the age of superannuation in the middle of theschool year till the end of the school year, namely, (i) the conduct andcharacter of the teacher should be satisfactory; (ii) they should bephysically fit to continue in service; and (iii) the pension papersshould be submitted at least one year before the date of theirretirement. If the petitioner satisfies the above conditions, thepetitioner is entitled for re-employment, otherwise he is not entitledfor any re-employment. 9. On these backdrop of facts, it has to be seen whether thepetitioner has satisfied the above conditions enumerated in the saidG.O. and that he is entitled for re-employment. 10. The case of the petitioner is that he has worked in theinstitution with an unblemished record for the last 35 years and he hadvery good relations with the students. There is no adverse remarksthroughout his service and his service record itself will prove thesame. While so, without assigning any reason whatsoever, the schoolmanagement refused re-employment to the petitioner. It is not the caseof the school management that on earlier occasions, (i.e.) prior to thepetitioner's attaining the age of superannuation, disciplinaryproceedings have been initiated against the petitioner for hismisbehaviour or irregularities. For the first time in the counteraffidavit, the school management has made certain allegations againstthe petitioner. If really there were certain irregularities against thepetitioner, definitely the school management would have taken somedisciplinary proceedings against the petitioner, but nothing of suchkind has been taken against him. The question that has to be consideredis whether a person who has not been been served with any charge memo ordisciplinary proceedings can be refused re-employment till the nextacademic year. 11. No doubt the G.O. referred to above states that aprerequisite condition for re-employment is that the character andconduct of the teacher should be satisfactory and that he should havephysical fitness to continue in service. From the records, it could beseen that no action seems to have been taken against the petitioner forany of the irregularities. Though in the counter affidavit filed by thefirst respondent-school management, it has been stated that there werecomplaints against the petitioner by the students and the parents, thepetitioner till he attained the age of superannuation has been calledupon to explain the same and that no charge memo on those complaints hasbeen issued to him and equally there was no enquiry. The petitioner hasasserted in the reply affidavit that the petitioner was not called uponto explain and there was no charge sheet and an enquiry against suchcomplaints. This will show that the misconduct and other allegationshave been now made against the petitioner for the first time in thecounter affidavit filed before this Court. https://hcservices.ecourts.gov.in/hcservices/

12. It is no doubt true that the teacher should be a rolemodel not only to the students and the institution, but also to thesociety. But, at the same time, the school management shall not stallthe petitioner to avail the benefits that have been conferred by theGovernment, namely, allowing the teacher to be in re-employment till theend of the academic year, if the conduct and character of the teacher issatisfactory and that he is physically fit.13. In this connection, it will be useful to refer certainpassages in the decision reported in 1996 W.L.R. 259 (DAVIDTHAMPI DHAS,C. v. THE GOVERNING BODY OF N.M.CHRISTIAN COLLEGE & OTHERS). When asimilar situation has arisen, this Court in the said decision inparagraph 9 has held as follows:-"It is contended by Mr.D.Sadhasivan, learnedcounsel for the petitioner that when no disciplinaryaction has been taken against the petitioner, it ismandatory on the part of the management to continue thepetitioner in service till 31.5.1996. As rightlypointed out by Mr.D.Sadhasivan, no disciplinary actionhas ever been taken against the petitioner though someirregularities have been alleged to have been committedin the years 1987 and 1988 when the petitioner was theHead of the Department of Botany."Further, in paragraph 17 of the said decision, it has been held asfollows:-"As far as the conduct of the petitioner isconcerned, no material is put forth by the management.Therefore, I am of the view, that the decision of themanagement not to continue the petitioner in serviceafter 31.1.1996 is without any basis and arbitrary. Asrightly contended by the learned counsel for thepetitioner, there is no question of any teacher askingfor any continuation. The Government Order specificallystates that the institutions are to continue the teacherstill the end of the academic year provided they satisfythe three conditions laid down in the Government Order,G.O.Ms.No.452 dated 24.3.1970, which has been followed inthe subsequent orders."14. In fact, reliance has been placed on decision of theDivision Bench of this Court in W.A.No.1179 of 1993 dated 6.9.1994(S.SUNDARAM v. THE SECRETARY, C.S.I. DIOCESE OF MADRAS). In that case,the Division Bench has pointed out that an analysis of the GovernmentOrders would disclose that re-employment is far ensuring continuity ofbenefit of teaching from the same teachers to the students during theacademic year, that it is a re-employment and not continuity of serviceon fulfilling the conditions that the work and conduct are satisfactory,that they are physically found fit for the further service and that nodisciplinary proceedings are pending against them. Therefore, it is https://hcservices.ecourts.gov.in/hcservices/ clear, that it is the very same teacher, whose work and conduct arefound to be fit for further service and against whom no disciplinaryproceeding is pending, is directed to be continued on reemployment basisduring the remaining period of that academic year.15. Furthermore, as stated already, the petitioner was notserved with any charge memo about the irregularity or misconduct duringhis entire tenure of service. If the statements made in the counteraffidavit are true, there would be an order passed by the respondentrefusing to re-employ the petitioner citing those reasons. But, no suchorder has been passed by the school authorities.16. For all the reasons stated above, I am constrained to holdthat the denial of re-employment to the petitioner till the end of theacademic year is unjust and unreasonable. Hence, the respondents aredirected to continue the petitioner in employment in the post of PostGraduate Assistant till the end of the present academic year in thefirst respondent-school.17. In the result, the Writ Petition stands allowed.Consequently, the connected M.Ps. are closed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrardpp To1. The Secretary, Department of Education, Fort St. George, Chennai-9.2. The Director of School Education, Chennai 600 006.3. The District Educational Officer, Sangagiri, Salem. 1 cc To Mr.S.Soundararajan, Advocate, SR.57854.1 cc To Mr.S.Doraisamy, Advocate, SR.57488.1 cc To The Government Pleader, SR.57671. W.P.No.22114 of 2007;& M.P.Nos.1 and 2 of 2007 TEJ(CO)RVL 21.09.2007