CoramThe Honourable Mr v. The District Educational Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 14-9-2007CoramThe Honourable Mr.Justice K. VENKATARAMANWRIT PETITION No.23134 of 2007andM.P.Nos.1 & 2 of 2007G.Daniel Gunaseelan .. PetitionerVs.1. The District Educational Officer, Chennai North, Chennai 600 008.2. The Diocesan Educational Officer, Diocese of Madras, Chennai 600 086.3. The Correspondent, C.S.I. St. Paul's Higher Secondary School, Vepery, Chennai 600 007.4. The Bishop and the Manager of all School, Vepery, Chennai 600 007. 5. The Headmaster, C.S.I. St. Paul's Higher Secondary School, Vepery, Chennai 600 007. .. Respondents Writ Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of certiorarified mandamus callingfor the records on the file of the third respondent in connectionwith the order passed by him in his proceedings No.51/COR/ESTT/2007dated 29.6.2007 and quash the same in so far as the denial ofreemployment to the petitioner till the end of the academic year2007-2008 is concerned and direct the respondents to grant ofreemployment till the end of the academic year 2007-2008 (i.e.)till 31.5.2008. For Petitioner : Mr.S.Selvathirumurugan https://hcservices.ecourts.gov.in/hcservices/ For Respondent-1 : Mr.Pa.Kadirvel, Govt.Advocate. For R-3 & R-5 : Mr.R.Muthukumarasamy, S.C. For Mr.V.Sanjeevi ... O R D E RThe petitioner has come forward with the present WritPetition challenging the proceedings of the 3rd respondent dated29.6.2007 and quash the same in so far as denial of re-employmenttill the end of the academic year 2007-08 is concerned and directthe respondents to grant re-employment till the end of the academicyear 2007-08 (i.e.) 31.5.2008. 2. The case of the petitioner in nutshell is as follows:-The petitioner was appointed as B.T. Assistant on19.6.1972 and after working in various capacity in various schools,he was transferred to the 3rd respondent-school by an order dated1.6.2005. Since he was attaining the age of superannuation on30.6.2007, he has made a request on 27.6.2007 to the Correspondentof the 3rd respondent-School to permit him to continue in job tillthe end of the academic year, (i.e.) 31.5.2008. While so, on30.6.2007, he was served with an order dated 29.7.2007 stating thathe shall retire from service on the afternoon of 30.6.2007. Thisled to the filing of an appeal dated 2.7.2007 to the firstrespondent, but the same has not been considered so far. Hence,the petitioner has approached this Court by way of the present WritPetition for the relief set out earlier.3. Counter affidavit has been filed by the respondents 3and 5 and the brief facts narrated thereon is as follows:- The petitioner did not seek for any re-employment and hedid not evince any interest in getting re-employment. Thoughvarious G.Os. provide for re-employment of the school teachers whoreach the age of superannuation during the middle of the academicyear till the end of the academic year, the same contain certainconditions and the petitioner does not fulfill the same and hence,he is not entitled for re-employment. The petitioner's work andconduct during the period of service in the school is notsatisfactory and that he is insubordinate to the Headmaster,Correspondent and other superiors of the school and on one occasion(i.e.) 16.11.2006, a memo has been issued to the petitioner seekingexplanation from him for his misconduct. Furthermore, as soon ashe jointed in the present school on transfer on 3.6.2005, he hasapplied for medical leave from 6.6.2005 to 31.7.2005 and he has notjoined duty on 1.8.2005, but he has extended his medical leave. Hehas been referred to the medical board and after examining him on https://hcservices.ecourts.gov.in/hcservices/

12.9.2005, the petitioner has been directed to join dutyimmediately and he joined duty on 12.9.2005. He has not givenmedical certificate for the period from 1.8.2005 to 12.9.2005 andhence, his subsequent increment and other service benefits couldnot finalised. Thus, the sum and substance of the counteraffidavit of the respondents 3 and 5 is that the case of thepetitioner cannot be considered on the grounds that he has notrequested for re-employment, that his work and conduct is notsatisfactory, and that he has not sent the pension papers to theAccountant General one year before his date of retirement which arethe prerequisite conditions prescribed in various G.Os. of theGovernment. 4. Counter affidavit has not been filed by the otherrespondents. On these backdrop of the matter,Mr.S.Selvathirumurugan, the learned counsel appearing for thepetitioner and Mr.R.Muthukumarasamy, the learned senior counselappearing for the respondents 3 & 5 raised their respectivecontentions.5. I have considered the rival submissions made byMr.S.Selvathirumurugan, the learned counsel appearing for thepetitioner as well as Mr.Pa.Kadirvel, the learned GovernmentAdvocate appearing for the first rspondent andMr.R.Muthukumarasamy, the learned senior counsel appearing for therespondents 3 and 5.6. The right of the teachers to continue in service tillthe end of the academic year in case of his date of retirementfalls in the middle of the academic year cannot be disputed. Thesaid right admittedly flows from various orders of the Governmentissued from time to him and last of such order flows fromG.O.Ms.No.1643 dated 27.10.1988. The said Government Order readsas follows:-"In the order first read above, whilepermitting the continuance of the teachers inservice on re-employment terms on theirattainment of the age of superannuation in themiddle of the school year the following pre-requisite conditions have been prescribed:-1. The character and the conduct of theteacher should be satisfactory.2. They should be physically fit to continuein service.2.Now it has been brought to the notice ofthe Government that in respect of SchoolEducation Department, more than 25% of thePension proposals are being sent to theAccountant-General for settlement in a year. Toavoid delay on the part of the teachers who are https://hcservices.ecourts.gov.in/hcservices/ due to retire in preferring their claims and alsoin view of the fact that almost all the teachersare interested in getting reemployment, theDirector of School Education has suggested toincorporate another condition, viz the pensionpapers should be submitted at least one yearbefore the date of their retirement, be made asthe third pre-requisite conditions for re-employment.3.The Government accept the suggestion madeby the Director of Schools Education and directthe condition that pension applications ofTeachers working under all management under thecontrol of Education Department including publicsector institutions on re-employment terms ontheir attainment of superannuation in the middleof the school year should be sent to theAccountant General at least one year before thedate of their retirement as prescribed as a pre-requisite condition in addition to the two pre-requisite conditions prescribed in G.O.Ms.No.249,Educations, dated 9.2.59."7. Thus, the above said G.O. stipulates three conditionsfor the teachers who attain the age of superannuation in the middleof the school year till the end of the school year, namely, (i) theconduct and character of the teacher should be satisfactory; (ii)they should be physically fit to continue in service; and (iii) thepension papers should be submitted at least one year before thedate of their retirement. If the petitioner satisfies the aboveconditions, the petitioner is entitled for re-employment, otherwisehe is not entitled for any re-employment. 8. On these backdrop of the matter, it has to be seenwhether the petitioner has satisfied the above conditionsenumerated in the said G.O. and that he is entitled for re-employment. 9. The case of the petitioner is that there is not even asingle memo served on him in his entire service career and hisservice records are unblemished. He did not suffer any punishmentthroughout his service. In the year 2002-03, he produced 80%result, in the year 2003-04 he produced 100% result and in the year2004-05, he produced 80% result. 10. Counter affidavit has been filed by the respondents 3and 5 wherein it has been pointed out that the petitioner's workand conduct during the period of service in the school was notsatisfactory. He was insubordinate to the Headmaster of the schooland the Correspondent and other superiors. Three instances havebeen pointed out for the above said averments. Firstly, afterjoining in the present school, after transfer, the petitioner has https://hcservices.ecourts.gov.in/hcservices/ applied for medical leave from 6.6.2005 to 31.7.2005 and withoutmedical certificate, he has extended the medical leave for theperiod from 1.8.2005 to 12.9.2005. Secondly, one Edwin Masilamani,Retired Headmaster inspected the class handled by thepetitioner,but the petitioner threatened him and would not allowhim to inspect his class and for this mis-conduct, the thenCorrespondent issued memo dated 16.11.2006 seeking his explanation.But the petitioner did not give any reply. Thirdly, the students ofIX Std and XII std have complained to the Headmaster and theCorrespondent about his frequent absence and also about not takingclasses even during the class hours. Admittedly, for the first andthird charges against the petitioner, no action has been taken bythe management. Not even the petitioner has been put on noticeabout the said charges and explanation has been called for fromhim. For the first time, the said charges are made against thepetitioner by way of counter affidavit in the present case.Furthermore, the petitioner has specifically averred that heproduced 80% result in 2002-03, 100% result in 2003-05 and 80%result in 2004-05, which is not controverted by the respondentsin their counter. Even with regard to the second charge, though amemo has been said to have been given to the petitioner seekingexplanation from the petitioner, no action seems to have been takenagainst him till he attained the age of superannuation. In fact,in the counter affidavit, it has been stated that despite the abovefact and misconduct, the management thought it fit not to take anydisciplinary proceedings against the petitioner on the verge of hisretirement. Thus, even with regard to the second charge that hasbeen levelled against him, no action has been taken by therespondents 3 and 5. The misconduct and other allegations are nowmade for the first time before this Court.11. In this connection, it will be useful to refercertain passages in the decision reported in 1996 W.L.R. 259(DAVIDTHAMPI DHAS, C. v. THE GOVERNING BODY OF N.M.CHRISTIANCOLLEGE & OTHERS). When a similar situation has arisen, this Courtin the said decision in paragraph 9 has held as follows:-"It is contended by Mr.D.Sadhasivan, learnedcounsel for the petitioner that when nodisciplinary action has been taken against thepetitioner, it is mandatory on the part of themanagement to continue the petitioner in servicetill 31.5.1996. As rightly pointed out byMr.D.Sadhasivan, no disciplinary action has everbeen taken against the petitioner though someirregularities have been alleged to have beencommitted in the years 1987 and 1988 when thepetitioner was the Head of the Department ofBotony."Further, in paragraph 17 of the said decision, it has been held asfollows:- https://hcservices.ecourts.gov.in/hcservices/ "As far as the conduct of the petitioner isconcerned, no material is put forth by themanagement. Therefore, I am of the view, that thedecision of the management not to continue thepetitioner in service after 31.1.1996 is without anybasis and arbitrary. As rightly contended by thelearned counsel for the petitioner, there is noquestion of any teacher asking for any continuation.The Government Order specifically states that theinstitutions are to continue the teachers till theend of the academic year provided they satisfy thethree conditions laid down in the Government Order,G.O.Ms.No.452 dated 24.3.1970, which has beenfollowed in the subsequent orders."12. 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 thatcase, the Division Bench has pointed out that an analysis of theGovernment Orders would disclose that re-employment is far ensuringcontinuity of benefit of teaching from the same teachers to thestudents during the academic year, that it is a re-employment andnot continuity of service on fulfilling the conditions that thework and conduct are satisfactory, that they are physically foundfit for the further service and that no disciplinary proceedingsare pending against them. Therefore, it is clear, that it is thevery same teacher, whose work and conduct are found to be fit forfurther service and against whom no disciplinary proceeding ispending, is directed to be continued on reemployment basis duringthe remaining period of that academic year. 13. No doubt as rightly pointed out by the learned seniorcounsel appearing for the respondents 3 and 5, the teacher shouldbe a role model not only to the students and the institution, butalso to the society. But at the same time, the respondents 3 and 5cannot stall the petitioner to avail the benefits that have beenconferred by the Government, namely, allowing the teacher to be inre-employment till the end of the academic year. The petitionerseems to have been aggrieved against his transfer from the otherschool to the present school and also filed writ petitionchallenging the same. Furthermore, he seems to have addressedcommunication to the concerned District Collector bringing to hisnotice about the ill-treatment caused to him, since he belonged toscheduled caste. Perhaps this would have been weighed in the mindof the school authorities in refusing reemployment to thepetitioner till the end of the academic year. For the same,reasons seem to have been culled out to deny the said right.14. As regards the failure to submit pension papers tothe Accountant General one year prior to the date of retirement, itis not the case of the respondents 3 and 5 that even though priorto one year, the petitioner has been reminded about the same, but https://hcservices.ecourts.gov.in/hcservices/ he has not chosen to do so. In para 5 of the counter affidavit,the respondents 3 and 5 have averred as follows:-Apart from that, he did not co-operate with the HeadMaster of the School to prepare the pension papers andsent it to the Accountant General at least one yearbefore the date of his retirement as prescribed as apre-requisite condition for re-employment. As a matterof fact, his pension papers could not be submitted tilltoday because of his non co-operation and his failureto return his T.S.R. Book.No doubt the 5th respondent has stated that the petitioner did notco-operative with the Headmaster of the school to prepare thepension papers to be sent to the Accountant General at least oneyear before the date of his retirement, as a prerequisite conditionfor re-employment. The 5th respondent has not produced anycommunication from its end to show that the petitioner has beendirected to prepare the pension papers so as to send it to theAccountant General one year prior to the date of his retirement.The allegation in this respect has been made for the first time inthe present counter affidavit. In the impugned order rejecting therequest of the petitioner for re-employment does not contain suchreason.15. Furthermore, the reading of the counter affidavitwill show that the school management has taken a ground that thepetitioner has not sought for re-employment till the end of thenext academic year. This statement has been denied by thepetitioner. Moreover, as rightly pointed out by the learnedcounsel appearing for the petitioner, the petitioner need notrequest for re-employment. Re-employment flows from variousGovernment Orders and in fact, in G.O.No.249, Education dated9.2.1959, it has been stated as under:-"The State Government accept the above suggestionsand direct that teachers employed in all schoolsunder the control of the Education Department andunder public Management who reach the age ofsuperannuation during the middle of the school yearshould be continued in service of re-employmentterms till the date of closure of the school for thesummer vacation." Thus, the said Government Order states that the teacher should becontinued in service of re-employment terms till the date ofclosure of the school for the summer vacation. This does not implythat permission must be specifically sought for.16. Further, though on the side of the school managementseveral reasons have been attributed for refusing to providereemployment to the petitioner till the end of the academic year, a https://hcservices.ecourts.gov.in/hcservices/ perusal of the impugned rejection order dated 29.6.2007 will showthat no reason whatsoever has been mentioned thereon. The impugnedorder dated 29.6.2007 reads as follows:-"Thiru G.Daniel Gunaseelan, P.G. Assistant(History) of St.Pauls Higher Secondary School,Chennai-7 shall retire from service on attaining theage of superannuation with effect from 30.6.2007afternoon. No re-employment shall be given by theManagement, till the end of the academic year of2007-2008 to the above said individual."The above impugned order thus shows that the school management hasnot assigned any reason for rejecting the request of the petitionerfor re-employment.17. For all the reasons stated above, I am constrained tohold that the denial of re-employment to the petitioner till theend of the academic year is unjust and unreasonable. 18. In the result, the order of the 3rd respondent in hisproceedings dated 29.6.2007 is liable to be quashed andaccordingly, quashed. The Writ Petition stands allowed.Consequently, the connected M.Ps. are closed. No costs.19. Before parting with the present case, I express myanguish over the present matter in issue which prevails every yearin some of the schools. The teachers are rated above God in theline of succession, namely, khjh, gpjh, FU, bja;tk; [Madha, Pitha,Guru, Deivam]. When such is the position, it is expected morefrom the teachers at large. It is required that the students shallbehave properly, more required is the behaviour of the teachersand the most required is the welfare of the society. As rightlypointed out by the learned senior counsel appearing for therespondents 3 and 5, the teacher should be a role model not only tothe students and the institution, but also to the society at large.Much is expected from them, since the future of this countrydepends on the future generation of the students which entirelylies in the hands of the teacher community. I am constrained to saythis since the petitioner shall not think that he has waged a waragainst the institution and succeeded in the same. He should feelthat an opportunity has been given to him to prove before theschool management that the action taken by them is totallyerroneous. The petitioner can prove the same by his hard work, byhis excellent teaching to the students and by his good behaviour.At the end of the academic year, the petitioner shall make therespondent-school management feel that they have taken a wrongdecision in not permitting him re-employment till the end of the https://hcservices.ecourts.gov.in/hcservices/ academic year and that they should also feel for the petitionerleaving the school after completing his term. This is possible andthe same lies with the petitioner. I hope that it should come truein the end of the academic year when the petitioner leaves theschool.Sd/Asst.Registrar/true copy/Sub Asst.Registrar dpp ToThe District Educational Officer,Chennai North,Chennai 600 008.+1cc to Mr.V.Sanjeevi, Advocate Sr 57454+1cc to Mr.Selva Thirumurugan, Advocate Sr 57453+1cc to Govt. Pleader Sr 57673SSV (CO)km/25.9.W.P.No.23134 of 2007;&M.P.Nos.1 & 2 of 2007