K.Karuppasamy vs The Secretary on 31 October, 2011

Madras High Court
K.Karuppasamy vs The Secretary on 31 October, 2011




DATED: 31/10/2011


W.P.(MD)NO.11795 of 2011
M.P.(MD)Nos.1 and 2 of 2011

K.Karuppasamy				..  Petitioner


1.The Secretary,
   K.Natarajapillai Memorial
    Madurai Pillaimar Sangam Higher
    Secondary School,
   Madurai-625 010.
2.The District Educational Officer,
   Madurai.				..  Respondents

	This writ petition has been preferred under Article 226 of the
Constitution of India praying for the issue of a writ of mandamus to direct the
respondents to allow the petitioner to be in continuous service on reemployment
terms as B.T. Assistant till the end of academic year 2011-2012 ending on
31.5.2012 and also to continue to pay the salary to the petitioner as applicable
to the B.T. Assistant under reemployment terms till the end of academic year
2011-2012 on 31.5.2012.

!For Petitioner 	... Mr.K.Vellaiswamy
^For Respondents  	... Mr.M.E.Elango for R-1
			    Mr.M.Govindan, Spl.G.P. For R-2

- - - -


The petitioner has filed the present writ petition seeking for a
direction to allow him to continue in service on reemployment as a Graduate
Assistant till the end of the academic year, i.e., on 31.5.2012 and to pay
salary as applicable to the Graduate Teacher.

2.In the writ petition when it came up for admission, notice was directed
to be issued to the respondents on 13.10.2011. This court also directed the
petitioner to continue in service till further orders and a direction was given
to the respondents to file counter. The first respondent has filed a vacate stay
application in M.P.(MD)No.2 of 2011 together with supporting counter affidavit
and also filed a typed set of papers in support of the averments in the counter

3.It is seen from the records that the petitioner joined the service as a
Junior Assistant in the year 1974. Subsequently, he was promoted as a Graduate
Assistant on 4.6.2004. During his tenure, he also got appreciation certificate
for 100% pass in the Science subject for the academic year 2007-2008. In the
Science subject handled by him, the students had secured 100% pass. He reached
the age of superannuation on completing 58 years of age on 31.10.2011. As per
the order of the Government, he is eligible for reemployment till the end of the
academic year 2011-2012 ending on 31.5.2012. The petitioner made a
representation, dated 23.6.2011 requesting permission to continue him in service
till the end of academic year. A further representation was also made on
6.9.2011. He also enclosed the medical fitness certificate by a further letter
dated 02.10.2011. Since there was no response from the first respondent, he has
filed the present writ petition.

4.In the counter affidavit filed by the first respondent, it was stated
that the 9th standard students had secured low marks during April, 2007 and he
was given a show cause notice. During 2009-2010, the school had produced only
88% pass in 10th standard. When enquired about the law percentage marks, the
petitioner had abused the Headmaster in front of other staff. But, no further
action was taken. It is admitted in the counter affidavit that on 31.10.2011,
the management allowed him to retire and there was no proceedings pending on the
petitioner. It was contended that the School Committee meeting was held on
10.10.2011 and it was decided unanimously to reject the petitioner’s request.
The decision of the committee was also sent to the petitioner by a registered

5.The typed set produced by the first respondent showed that the school
committee in their resolution had relied upon a letter, dated 20.4.2007 (4 years
ago), in which an explanation was called for and the petitioner had agreed to
improve his performance. Similarly, in 2009-2010, there was actually 88% pass in
the 10th standard and also as the petitioner had misbehaved with the Headmaster,
his conduct was not good. Hence it was decided not to grant him extension of
service. These facts were also communicated by a letter dated 11.10.2011.

6.But, however the grant of reemployment is conceived by the Government
only in the interest of students. If a teacher retires during the middle of the
academic year, the academic continuity may be lost, which may directly affect
the performance of students. The relevant Government Order which is enforceable
stipulated two conditions, i.e. (a) there must be physical fitness and (b) the
conduct and character must be good.

7.In the present case, the petitioner has given medical certificate about
his fitness and there is no dispute about the same. The question that his
character not being good so as to grant him reemployment cannot be accepted as
there was no proceedings initiated against the petitioner at the relevant time
and no penalty was imposed on him. The management cannot rely on the show cause
notice which was issued four years before. Further relying upon some
unsubstantial allegations that he had abused the Headmaster in the presence of
others and relying on some contemporaneous records that his conduct was not good
cannot be accepted. Further, the reasons cannot be informed at the tail end of
his service, especially considering that the petitioner has been working in the
school for the last 37 years. This question is no longer res integra.

8.This Court in G.Menaka Vs. The Chief Educational Officer, Chennai and
others in W.P.No.14014 of 2009, dated 20.7.2011 in paragraphs 16 to 18 had
observed as follows:

“16.Thus, the matter is before this Court for final disposal. Mr.R.Yashod
Vardhan, learned Senior Counsel appearing for the petitioner submitted that the
question relating to the right of the teachers for having re-employment benefits
granted as per the Government Orders and also whether the Management can plead
that the conduct and character of the teacher were not satisfactory at the tail
end of the service came up for consideration before a Division Bench of this
Court in W.A.No.1179 of 1993 and batch cases in S.Sundaram v. The Secretary,
C.S.I.Diocese of Madras, Madras
-86, dated 06.09.1994. The Division Bench, in
paragraph 11 and 16 observed as follows:-

“11. … It is the very same teacher who has been selected by the private
management and continued in their service upto the age of superannuation and has
been found fit for further continuation, is directed to be re-employed in order
to ensure that the benefit of their service is available to the students during
the rest of the academic year. The Government Order serves a great purpose,
because a new teacher who would be recruited during the middle of the academic
year, would not be able to immediately assess the standard of the class and also
the ability of each of the students in the class and it is possible that the
rest of the academic year would be lost in getting to know the same time which
is necessary for proper teaching. As a result of new appointment in the middle
of the academic year, the students will be deprived of the benefit of teaching
by the old and experienced teacher during the rest of the academic year which
may affect their performance in the examinations to be held at the end of the
academic year and it would also tell upon the standards and the results of the
examinations of the students.

16. …It is only on re-employment with a view to ensure continuity of the
benefit of teaching by the teachers who attain the age of superannuation during
the middle of the year, for the rest of the academic year. Therefore, the
measure itself is for a short period till the end of the academic year
applicable to such of the teachers who retire during the academic year. It does
not take away the right of the Management to fill up the said post by
recruitment at the end of the academic year.”

With these above observation, the Division Bench held that the measure of re-
employment as introduced by the Government Order is applicable even to minority
institutions having protection under Article 30(1) of the Constitution.

17. In the very same case, on behalf of some other school management, it
was pleaded that the teacher who was before the Court and whose character and
conduct was not satisfactory, the Division Bench observed in Paragraph 17, which
is as follows:-

“17. …It has been stated that after due consideration, it was decided by the
Committee not to re-appoint him from 1.09.1993 in view of his work and conduct
not being satisfactory. This decision, in our view, has been taken without
looking into the records of the teacher. The petitioner has produced merit
certificates issued to him by the very same Management at pages 35 to 40 which
cover the period upto March, 1992, whereas he attained the age of superannuation
in August, 1993. These merit certificates are not disputed. As far as the
conduct is concerned, no material is put forth. ”

18. Therefore, in the light of the above, the learned Senior Counsel
submitted that the grounds urged by the third respondent after the age of
retirement of the petitioner cannot be taken into account and they were invented
for the purpose of denying her the right of re-employment. A similar contention
that the appointment of the successor will be delayed if re-employment is
granted to the petitioner as pleaded in the counter affidavit was rejected by
the Division Bench in Sundaram’s Case (cited supra).

9.In the light of the above, the writ petition will stand allowed. The
respondents are directed to continue the service of the petitioner till
31.5.2012 and claim salary for the said period from the Government grant and pay
it to the petitioner without fail. No costs. Consequently connected
miscellaneous petitions stand closed.

The District Educational Officer,

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