(Prayer: Writ petitions filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus praying for the relief stated therein.
By consent of parties, the writ petitions themselves taken up for final disposal.
2. The common issue involved in these cases is relating to the right of teachers working in the Government School and Private Aided School, who retire during the middle of academic year on attaining the age of superannuation, to continue till the end of the said academic year. This is by way of reemployment scheme constituted for the purpose of enabling the students to have the benefits of service of such teachers continuously during the academic year.
3. The issue has been settled in number of cases before this Court to the effect that such right is available to the teacher subject to the conditions that (i) such teacher shall not face any disciplinary proceedings; and (ii) such teacher shall be physically fit for continuation of service and his conduct is satisfactory. When these two requirements are complied with, such teachers are given the right to continue till the end of the academic year. It is also not in dispute that the same is by way of reemployment till the end of academic year in the Management as well as Government schools. The salary to be paid during such period will be the last drawn salary less the pension payable to such teachers.
4. The brief facts involved in these writ petitions which are relevant to decide the issue are as follows:
The writ petitioner in W.P.No.22093 of 2008 was appointed on 27.10.2007 as B.T.Assistant (History) in the second respondent school, which is a Government High School. It is stated by the learned counsel for the petitioner that she was previously working in some other aided school and after appearing in the examinations for recruitment, she was appointed in the second respondent school in the year 2007. Admittedly, she was to attain the age of superannuation in the month of August, 2008, by which t
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me she had completed 58 years of age. Since her retirement falls in the middle of academic year viz., August, 2008, she has the right to work on reemployment basis upto the end of the academic year 2008-09 viz., upto 31.5.2009. She had made representation and in spite of the representation, she was not permitted to continue. According to the learned counsel, she has submitted medical certificate to show that she was medically fit for the purpose of continuation on reemployment basis and her work was found satisfactory and there is no allegation or disciplinary proceedings pending against her.4(a). The petitioner in W.P.No.25054 of 2008 who stands slightly on a different footing, was originally appointed in the 4th respondent school with effect from 3.9.1982 on part-time basis and thereafter, he was upgraded as full-time Grade-I Tamil teacher with effect from 1.9.1983 and he also completed his probation and his services were confirmed and he was made permanent with effect from 1.9.1985. The 4th respondent school is an aided minority school. There was some dispute regarding his further promotion as a Post Graduate Assistant, in respect of which a writ petition is pending. In the meantime, the petitioner is to retire on 22.10.2008 on attaining the age of superannuation. He is entitled to the extended service on reemployment basis till May, 2009. According to him, the 4th respondent has deliberately refused to grant such reemployment. 4(b). In these circumstances, the petitioners have filed the writ petitions for direction against the respondents to extend their services till the end of the academic year 2008-09, viz., till May, 2009 on reemployment basis.5. Learned counsel for the respondents would submit that as far as the first writ petitioner is concerned, she joined the second respondent school in the year 2007 and as per the relevant Pension Rules, she would not be eligible to pensionary benefits since she will not be having 10 years of completed service and therefore, according to the learned counsel, the said writ petitioner is not entitled to continue the service on reemployment basis. Her further submission is that the right of reemployment in respect of a teacher who retires in the middle of academic year is available only in case where such teacher is entitled to pensionary benefits as per the Pension Rules. She has also placed various Government Orders to show the origin of the concept of reemployment which was introduced in the teaching service. 6. It is seen that the Government of India in its letter dated 8.4.1958 [letter No.15-29/58-D1, Government of India, Ministry of Education, New Delhi] has suggested that school teacher who reaches the age of superannuation during the middle of school year should be allowed to continue till the date of closure of the school for summer vacation in order to ensure continuity of staff. It appears that the Government of Tamil Nadu, while accepting the said suggestion made by the Government of India and passed G.O.No.249, Health, Education and Local Administration Department (Education) dated 9.2.1959, which is as follows:"The Government of India in the Ministry of Education have suggested that school teachers who reach the age of superannuation during the middle of the school year should be allowed to continue till the date of closure of the school for the summer vacation in order to ensure continuity of staff. The State Government accept the above suggestion and direct that teachers employed in all schools under the control of the Education Department and under public managements who reach the age of superannuation during the middle of the school year should be continued in service on reemployment terms till the date of closure of the school for the summer vacation, provided their work and conduct are satisfactory and they are physically fit to continue in service.2. In so far as the schools under private managements are concerned, the Director of Public Instruction is requested to issue suitable instructions commending the suggestion of the Government of India, to all the managements of aided institutions in the State.3. This order is issued with the concurrence of the Finance Department -vide their U.O.Note No.8395/Pen-1, dated 30th January, 1953"7. The principle of reemployment which was enunciated for the first time in the abovesaid government Order in respect of teachers working in schools has subsequently been reiterated by various Government Orders including G.O.Ms.No.452, Education, dated 24.3.1970. The said G.O. was referred to by a learned Judge of this Court in W.P.No.20273 of 2006 by order dated 28.7.2006, which is as follows:"In G.O.Ms.No.452 Education Department, dated 24.3.1970 the Government passed the following Order,'In Memo 52041 F1/69-1 Edn. dt.8.10.1969 the Government have ordered that teachers who attain the age of superannuation in the middle of the school year should be continued on reemployment terms till the date of closure of the school for summer vacation subject to the usual conditions.Namely: 1. That their work and conduct are satisfactory2. That they are physically found fit for further service3. That no disciplinary proceedings are pending against themThe Director of School Education is informed that Teachers/Headmasters of aided Elementary and Secondary Schools who are continued in service on reemployment terms till the closure of the school for summer vacation are eligible for full vacation salary.'8. By virtue of the principle enunciated in the Government Orders passed by the Government of Tamil Nadu, the teachers who are about to retire in the middle of academic year are entitled to continue in service till the end of academic year subject to certain conditions. They should be physically fit to continue in service and their character and conduct should be satisfactory and no disciplinary proceedings are pending against them. The abovesaid principle has been reiterated in the subsequent Government Orders in G.O.Ms.No.1351, Education Department dated 28.6.1976 and G.O.Ms.No.1643, Education Department dated 27.10.1988.9. Under Article 162 of the Constitution of India relating to the extent of executive powers of the State, it is clear that in the absence of any legislative enactment regarding the principle of reemployment, the said Orders are the guiding factors and are valid in law and the same have been in fact followed by the State of Tamil Nadu throughout.10. It is seen that a Division Bench of this Court in S. Sundaram v. The Secretary, C.S.I. Diocese of Madras in W.A.No.1179 of 1993 by judgment dated 6.9.1994 has held that the analysis of the Government Orders would disclose that the reemployment is for ensuring continuity of benefit of teaching from the same teachers to the students during the academic year. The Division Bench has held that it is a case of reemployment and not continuity of service and reemployment is subject to the conditions that the work and conduct of the teacher are satisfactory and such teacher is physically fit for further service and no disciplinary proceedings is pending against such teacher. 11. Relying upon the said unreported judgment of the Division Bench, AR. Lakshmanan, J. (as He then was) in Davidthampi Dhas,C v. The Governing Body of N.M. Christian College, etc. & others, reported in (1996 WLR 259), has held that the right of such teacher for extension of service on reemployment is not for the purpose of filling up the vacancy again. This Court has referred to paragraph-16 of the judgment in W.A.No.1179 of 1993 etc. dated 6.9.1994 (S. Sundaram v. The Secretary, CSI Diocese of Madras) and held as follows:15. It is useful to refer the following passage which occurs in paragraph 16 of the judgment of the Division Bench:'We are not concerned with the filling up of vacancies nor with the appointments. It is only on reemployment 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. For the reasons stated above, point (1) is answered in the affirmative'."12. In S. Kasi v. Secretary/Correspondent A.V.M. Marimuthu Nadar H.S.School [2003(4) CTC 129], E. Padmanabhan, J., (as He then was), while holding that reemployment is subject to the abovesaid three conditions as it was laid down earlier, has held that reemployment in terms of the Government Order is not an automatic one and it is a discretion of the competent authority and such discretionary right of employment is possible when the petitioner satisfies the terms stipulated in the Government Order. The relevant portion of the judgment is as follows:"9. In the present case, it is vehemently and rightly contended by the first respondent school as well as the learned Additional Government Pleader that the petitioner has not satisfied anyone of the conditions and, therefore, he has been rightly declined re-employment. Re-employment, in terms of the Government Order, is at the discretion of the competent authority and re-employment is possible only when the petitioner satisfied the terms stipulated by the Government Order. The learned counsel for the respondents took the Court through the typed set of papers and contended that the work and conduct of the petitioner are not satisfactory and that there were disciplinary proceedings and the petitioner had never taken into consideration of the interest of the institution as well as the students for whose benefit, if at all, his re-employment is required."Even as per the said finding of the learned Judge, the discretion is exercisable in case of fulfillment of three conditions which have been consistently laid down and followed by the Government throughout.13. In Correspondent, Secretary and Managing Trustee, Salem [2008 (1) MLJ 312], a Division Bench of this Court, while referring to G.O.Ms.No.281, dated 13.2.1981, has held that such reemployment is to be given even if there was no specific request from such teacher. The Division Bench has also referred to the earlier Division Bench judgment in W.A.No.1179 of 1993 etc. dated 6.9.1994 in S. Sundaram v. The Secretary, C.S.I. Diocese of Madras and held as follows:"2. The right to continue on re-employment till the end of academic year conferred on the teachers working in the schools either Government or private, both minority or non-minority, has already been upheld by a Division Bench of this Court in W.A.No.1179 of 1993 S.Sundaram v. Secretary, C.S.I. Diocese of Madras, and the SLP preferred against the same was also dismissed. The ratio laid down by the Supreme Court has been consecutively followed by this Court in R. Muthukrishnan v. Secretary, Aided Middle School, Korranattu, Karupur, Kumbakonam and the District Elementary Educational Officer, Thanjavur, vide 1998 WLR 77.3.1. xxxx3.2. The only contention made on behalf of the appellant/Management is that the first respondent had not even made a request for re-employment after superannuation and therefore, he cannot make any complaint against the appellant/Management. But, similar contention was rejected by the Division Bench in the S. Sundaram v. Secretary, C.S.I. Diocese of Madras (Supra), whereunder is held as follows:".... We must point out here that as per the Government Order, there is no question of any teacher asking for continuation. The Government Order specifically states that the institutions are to continue them till the end of academic year, provided the teacher satisfies the three conditions laid down in the Government Order, G.O.Ms.No.452, dated 24.3.1970, which has been followed in subsequent Government Orders."14. Apart from the abovesaid judgments, the said reasonings have been followed by the Division Bench presided over by P. Sathasivam,J. (as He then was) in G. Annamalai v. The Joint Director (Higher Secondary), College Road, Madras and others in W.A.No.1226 of 2003. Of course, in that case, the Division Bench was dealing with the case where disciplinary proceedings were pending against the concerned teacher and by referring to various Government Orders, the Division Bench held that the right of reemployment is subject to the said conditions. 15. The contention raised by the learned counsel for the respondents that in respect of W.P.No.22093 of 2008, the writ petitioner was appointed only in the year 2007 and she has not even completed 10 years of service and she is not eligible for pension and therefore, she would not be entitled to have the right of reemployment deserves to be rejected as it has been enumerated in the above said Government Orders as well as the judgments pronounced on the basis of the said Government Orders that three conditions to be fulfilled for the purpose of getting the right of reemployment are, (i) the conduct of such teacher is satisfactory; (ii) the teacher concerned is physically fit to continue till the end of academic year; and (iii) no disciplinary proceedings is pending against the said teacher. Admittedly, in respect of the petitioners in both the writ petitions, all the requirements are complied with and it is not even the case of the respondents that the conditions stipulated in the Government Orders are not fulfilled. In such circumstances, there is no basis for the communication of the Director of School Education dated 13.8.2008 stating as if the teachers who are entitled to pensionary benefits, viz., the teachers who have completed 10 years of service are alone entitled to the right of reemployment, as it has been clearly asserted that the very concept of reemployment is not for the purpose of providing employment to the teacher, but for the purpose of the students having the benefit of the service of such teacher and the eligibility of teacher to get pension is not a material fact.16. Further, the contention of the learned counsel for the respondents that during the extension period the teachers are to be paid the last drawn salary less the pension payable to them and therefore, there will be difficulty for payment of salary to the petitioner in W.P.No.22093 of 2008 since she is not eligible for pension, has again no basis, since as I have held that pensionary benefit has nothing to do with the reemployment. It is the duty of the respondents to pay salary to the petitioner to which she will be eligible otherwise based on her last drawn salary. In view of the same, both the writ petitions are allowed. No costs. Connected miscellaneous petitions are closed.17. It is relevant to point out that in the State of Kerala, there has been a statutory enactment by conferring power on such teachers retiring in the middle of the academic year to continue as per Rule 60(c) of the Kerala Education Rules, 1959. While construing the rules of statutory enactment by which legal powers are conferred for reemployment, the Supreme Court in State of Kerala vs. P.V. Neelakandan Nair [(2005) 5 SCC 561] has held that such teachers whose services were extended by way of reemployment are entitled to the salary minus pension and they will be entitled for subsequent benefits which would be available for the teachers in normal course on the basis of the statutes. The following paragraphs of the judgment are relevant:"17. There is no dispute that the Service Rules are statutory. Chapter VIII deals with retirement from service and Rule 60 deals with age of superannuation. Clause (c) deals with teachers. Apart from clause (c) of Rule 60 clause (a) is also relevant. It reads as follows:"60. (a) Except as otherwise provided in these Rules the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years. He may be retained after this date only with the sanction of the Government on public grounds, which must be recorded in writing. But he must not be retained after the age of 60 years except in very special circumstances."18. A civil servant retires under the applicable rules in the afternoon of the last day of the month in which he attains the age of 55 years. Similarly a teacher is normally to retire on completing the age of 55 years. But in the specifically prescribed cases the date of retirement is postponed ?till the last day of month in which the academic year ends? so that the education of the students is not disturbed during the academic year. The legislature has denied the benefit of increment and promotion during the extended period. There is no scope for reading into the provision the benefits of pay revision. ?Increment? has a definite concept in service laws. It is conceptually different from revision of pay scale. ?Increment? is an increase or addition in a fixed scale; it is a regular increase in salary on such a scale. As noted by this Court in State Bank of India v. Presiding Officer, Central Govt. Labour Court (1972) 3 SCC 595, under the labour and industrial laws, an ?increment? is in the same scale. A promotion involves going to a higher grade. The pay of an employee is generally fixed with reference to a pay scale. On the other hand, in the case of revision, the pay scale is revised which may incidentally result into increment. Rule 60(c) does not refer to pay revision, which is conceptually different from annual increments within the prescribed pay scale. Therefore, entitlement of the teachers concerned for the benefits of pay revision cannot be doubted. The view taken by the High Court does not suffer from any infirmity to warrant interference."18. It is true that the Hon'ble Supreme Court has conferred such benefits in the light of existence of the statutory rights on the teachers who are given reemployment. However, such rights may not be available to the teachers in Tamil Nadu since no such enactment has yet been made by the State Government. It is seen that in the recent past the Courts are flooded with number of cases where the teachers who retire in the middle of academic year either from the Government or Management schools and who are not provided reemployment, seeking legal recourse. In these circumstances, it is the right time for the State Government to formulate policy and make necessary statutory rules.
"2009 (2) MLJ 925"