Mrs.A.V.Bhara v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 14-08-2009CORAMTHE HONOURABLE MR.JUSTICE V.DHANAPALANWRIT PETITION No.28329 OF 2008T.Glorymathi...Petitioner-vs-1.The State of Tamil Nadu, rep.by Secretary, School Education Department, Fort St.George, Chennai-600 009.2.The Director of School Education,College Road, Chennai-600 006.3.The Chief Educational Officer,Nagarcoil, Kanyakumari District.4.The Headmaster,Government High School,Peruvilai, Nagercoil – 629 003,Kanyakumari District....RespondentsPetition under Article 226 of the Constitution of India.For petitioner : Mrs.A.V.Bharathi, for Mr.E.Martin JeyakumarFor respondents : Mrs.Dakshayani Reddy, Govt.Advocate (Education).O R D E RThis Writ Petition has been filed, praying for issuance of awrit of mandamus, directing the second respondent to continue thepetitioner's services in the Government High School, Peruvilai,Nagercoil-629 003, Kanyakumari District, in accordance with theproceedings of the 3rd respondent in No.3215/A3/08, dated 26.06.2008. 2. According to the petitioner, she was appointed as Historyteacher on 18.12.1998 in Government High School, Mundiampakkam,Villupuram District; she worked in various places and finally with https://hcservices.ecourts.gov.in/hcservices/ the fourth respondent school from 27.06.2003 to 30.06.2008, which isthe date of superannuation; as per the proceedings of the secondrespondent, dated 16.08.2008, where a teacher attains the age of 58years after 31st May in an academic year, he/she shall continue torender his/her service till the end of that academic year; by theproceedings of the third respondent, dated 26.06.2008, the petitionerwas permitted to continue in service from 01.07.2008 up to 31.05.2009in the fourth respondent school and when she was rendering herservice in the fourth respondent school on the basis of extension ofservice, the fourth respondent, in his proceedings dated 20.11.2008,relieved her from service, which was without putting her on notice orafter providing her with an opportunity of being heard. Hence, shefiled this Writ Petition.3. Respondents have filed a counter, stating that the petitionerattained the age of superannuation on 30.06.2008 while she wasworking in the fourth respondent school; without taking into accountthe service rendered by the petitioner, she was permitted to be re-employed till the close of the academic year 2008-2009 videproceedings of the third respondent dated 26.06.2008; as per sub-rule(2) of rule 43 in Chapter 6 of the Tamil Nadu Pension Rules, theGovernment servants retiring or retired from service after completingthe net qualifying service of 10 years and above are eligible to earnpension, but, the petitioner has not completed the same; the proposalfor grant of pension, pertaining to the petitioner, was submitted bythe Headmaster of the school in which the petitioner was working atthe time of re-employment to the Accountant General, who, in hisproceedings dated 11.03.2008, indicated that the net qualifyingservice of the said teacher was 9 years 6 months and 14 days only andthe average emolument was indicated as 0..0.; the service gratuity ofRs.1,49,198/- in lumpsum only was sanctioned to the petitioner but,no service pension was sanctioned to her inasmuch as she did notpossess the minimum required qualifying service of 10 years; as perrules, while on re-employment, the re-employed teacher will be paidre-employment pay i.e., pay last drawn, less pension eligible; noteacher is eligible for payment of pay last drawn prior to retirementas re-employment pay; hence, as the petitioner was not granted anypension on the ground of not having the minimum net qualifyingservice, no re-employment pay would be fixed and therefore she couldnot be granted re-employment; instructions were issued by theDirector of School Education to ensure, before granting re-employment, as to whether the retired teachers have 10 years ofqualifying service, entitling them for pension and in respect of notfulfilling this requirement, such teachers should not be granted re-employment till the close of the academic year and, on receipt of thesaid instructions, the order issued, granting re-employment to thepetitioner, was cancelled by an order dated 17.11.2008 of the thirdrespondent, pursuant to which the fourth respondent, by hisproceedings dated 20.11.2008, relieved the petitioner of her service, https://hcservices.ecourts.gov.in/hcservices/ which was in accordance with the relevant rules and the governmentorders and as such, the writ petition, is liable to be dismissed.4. Petitioner has filed a rejoinder to the counter filed by therespondents, stating that she has strictly complied with all therequirements enumerated in G.O.Ms.No.1643, Education, dated27.10.1988, including the one that the proposal for retirementbenefits be submitted one year before the date of retirement, and,therefore, she is entitled for grant of re-employment for the periodfrom 01.07.2008 to 31.05.2009.5. The foremost contention of the learned counsel for thepetitioner is that the petitioner has satisfied two of the pre-requisite conditions that the character and conduct of the teachershould be satisfactory and that the teacher should be physically fitto continue in service. However, the guideline that the pensionpapers should be submitted at least one year before the date ofretirement, which is made as the third pre-requisite condition forre-employment, cannot be made applicable to the case of thepetitioner, who has put in lesser service than the service requiredfor pensionary benefits.6. Per contra, learned Government Advocate for the respondentswould contend that the third pre-requisite condition has not beensatisfied by the petitioner and, therefore, her service had beenterminated before the completion of the academic year i.e.,31.05.2009.7. On the above pleadings, I have heard the submissions made bythe learned counsel on either side; gone through the entire materialdocuments as well as the government orders.8. A perusal of the records would reveal that the petitioner wasappointed as History teacher on 18.12.1998 and she was to besuperannuated on 30.06.2008. As such, her service had to be extendedup to the end of the academic year i.e., 31.05.2009, which was,accordingly extended by the third respondent by his proceedings dated26.06.2008. However, the fourth respondent, on the subsequentdirectives of the third respondent, terminated the service of thepetitioner on 20.10.2008, even prior to the completion of herextended service. 9. Now, the question is, whether the third pre-requisitecondition viz., submitting the pension papers one year before thedate of retirement, as stipulated by the Government Order inG.O.No.1643, dated 27.10.1988, is applicable to the case on hand. 10. It is the underlined principle that in order to provideproper education to the students, there cannot be any disturbance or https://hcservices.ecourts.gov.in/hcservices/ discontinuance of the teaching subject during the relevant academicperiod. If any teacher retires in the middle of the academic year,his/her service has to be extended up to the end of the academic yeari.e., till 31st May of that year. The avowed object of this scheme toprovide extension of service is to maintain and improve theeducational standard of the students and not for any other purpose.Therefore, the same had been taken into account and the service ofthe petitioner extended. However, the respondents have misconstruedthe above Government Order as if ten years of service is necessaryfor extension of service and that pension papers should be submittedat least one year before the date of retirement. In cases where theteachers have put in less than ten years of service, the thirdcondition, in my view, would not be applicable, as no pre-requisitecould be complied with.11. One more contention of the learned counsel for thepetitioner that in case of one Theelenammal, where she put in serviceof 9 years 2 months and 6 days, had been given extension of service,but, the petitioner has been discriminated in this regard, istenable. 12. In the light of the above position, I am of the consideredopinion that the third pre-requisite condition cannot be madeapplicable to the petitioner in general and to the teachers, wherethey are not having required service for pensionary benefits, inparticular. Therefore, the order of termination, dated 20.11.2008,passed by the fourth respondent, on the directives of the thirdrespondent, is illegal and the same is set aside. 13. It is seen that this Court, at the time of admission of theWrit Petition, by an order, dated 27.11.2008, passed an interimdirection, directing the second respondent to continue thepetitioner's service in the fourth respondent school, in accordancewith the proceedings of the third respondent, dated 26.06.2008,pursuant to which the petitioner was entitled for continuance ofservice till 31.05.2009. In spite of such a direction, it isunfortunate to note that the petitioner was not permitted to continuein service.14. Now, the bottomline grievance of the petitioner is that shehad already superannuated from service and worked up to 20.11.2008and subsequently there was a direction by this Court as prayed forextension of her service and, therefore, she is entitled for monetarybenefits up to 31.05.2009, which are unpaid till-date. The saidgrievance, in my considered opinion, holds good. Therefore, themonetary benefits due to the petitioner for the above period have tobe considered in the light of the extension of service as well as theinterim direction of this Court. Accordingly, the respondents aredirected to pay the monetary benefits due to the petitioner for the https://hcservices.ecourts.gov.in/hcservices/ extended period of service i.e., up to 31.05.2009, within a period offour weeks from the date of receipt of a copy of this order, if thesame are not paid.15. Writ Petition is disposed of accordingly. No costs.Consequently, the connected M.P.Nos.1 of 2008 and 1 of 2009 areclosed.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrardixitTo1 The Secretary,State of Tamil Nadu, School Education Department,Fort St.George, Chennai-600 009.2 The Director of School Education,College Road, Chennai-600 006.3 The Chief Educational Officer,Nagarcoil, Kanyakumari District.4 The Headmaster,Government High School,Peruvilai, Nagercoil – 629 003,Kanyakumari District.+1 CC to Mr.E.Martin Jeyakumar, Advocate Sr.No.38572 W.P.No.28329 OF 2008GG (CO)BMD 28/08/2009