D. Buela Ananthi vs The Government of Tamil Nadu and Others

N. Paul Vasanthakumar, J.—Heard Mr. R. Sureshkumar, learned counsel appearing for the petitioner and Mr. V. Subbiah, learned Special Government Pleader appearing for the respondents.

This writ petition is filed to quash the order dated 30.8.2010 passed by the 3rd respondent and direct the respondents to sanction and pay arrears of salary payable to the petitioner''s husband from 01.3.2008 to 10.6.2010 and also sanction and pay family pension to the petitioner, who is widow of the deceased teacher viz., John Jayakumar from 11.6.2010, since he had served as a permanent Secondary Grade Teacher in an aided school from 3.2.2003, who died on 10.6.2010 while in service.

Brief facts of the case as stated in the affidavit filed in support of the writ petition are that petitioner''s husband passed SSLC in March, 1985, Higher Secondary in March, 1993 and Diploma in Teacher Education in the year 2001. Petitioner''s husband was appointed as a Secondary Grade Teacher in TELC Primary School in Karkkoil, Seerkazhi Taluk, Nagapattinam District, which is a private minority aided school on 03.2.2003 in a permanently sanctioned vacancy. The said appointment was also approved by the Assistant Elementary Education Officer by his Proceedings dated 05.2.2004 and the petitioner''s husband was paid salary and other benefits from the date of appointment that was from 03.2.2003. The annual increment was also paid from 01.1.2004. Service Register was opened and necessary endorsements were also made in the Service Register.

Petitioner''s husband was transferred to TELC Middle School at Villupuram from 28.2.2007 and the said school is also managed by the same Management. The said transfer was also approved by the Assistant Elementary Education Officer, Villupuram by an order dated 17.10.2007. Again, the petitioner''s husband was transferred by an order dated 29.2.2008 to TEELC Middle School at Thuraimangalam of the same Management with effect from 01.3.2008 and he was relieved from the earlier school at Villupuram on 29.2.2008. The said transfer and the relieving was also counter-signed by the Assistant Elementary Education Officer, Villupuram on 12.9.2008. The Management also permitted the petitioner''s husband to join duty in the transferred school from 01.3.2008, however, the salary payable to the petitioner''s husband from 01.3.2008 was not paid on the alleged ground that the 5th respondent school was not having sufficient strength to retain the post in which the petitioner''s husband was transferred and posted. The Management filled up the vacancy arose due to the transfer of the petitioner''s husband in TELC Middle School at Villupuram by transferring one Nagomi Saral and further promoted her as Tamil Pandit. The said transfer was also approved and she was paid salary before paying salary to the petitioner''s husband, in which vacancy the said Nagomi Saral was posted. The petitioner''s husband was not paid the salary even though he was permanently appointed and posted in a fully aided minority school. Thus, the petitioner''s husband served without salary from 01.3.2008 and died on 10.6.2010 and the petitioner, who is a widow of the said John Jayakumar claimed salary payable to the petitioner''s husband from 01.3.2008 to 10.6.2010 and prayed for sanction of family pension from 11.6.2010, which is payable under the Tamil Nadu Pension Rules, 1978.

The impugned order is challenged on the ground that an approved teacher serving in an aided school even if the post was found surplus for any reason, should be absorbed in a needy school by deployment and if deployment is not possible, should be allowed to be served in the school till retirement and is entitled to get salary and other benefits in terms of Section 26 of Tamil Nadu Recognised Private Schools (Regulation) Act, 1973.

The learned counsel appearing for the petitioner relied on the said statutory provision also relied on the Government Order issued in G.O. Ms. No. 525 School Education Department, dated 29.12.1997 and contended that even while fixing new staff/teacher strength of the school, with effect from 01.6.1998, the Government has ordered that excess staff/teacher in aided schools shall be deployed in a needy school and if deployment is not possible, the approved teacher should be retained in service of the school where the teacher is working till retirement and pay salary. Based on the said Government Order as well as the statutory provision u/s 26 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, which guaranteed payment of salary to approved teacher in aided schools, the petitioner has challenged the impugned order with the above said prayer.

The learned counsel for the petitioner further argued that as per Rule 49(2)(a) of the Tamil Nadu Pension Rules, 1978, if a Government Servant dies after completion of not less than one year continuous service or at any time during his service, the widow is entitled to get family pension and the petitioner''s husband having served for over 7 years and 3 months, as widow, she is entitled to get sanction of family pension from 11.6.2010.

3rd respondent has filed the counter-affidavit. The learned Special Government Pleader appearing for the respondents has submitted that the school where the petitioner''s husband was transferred by the Management was not eligible to retain the post and therefore, the Management alone has to pay the salary.

In the counter-affidavit, the department has not stated about any direction given to the Management to deploy the petitioner''s husband to any aided private school where the post is available and admittedly, no such direction was ever issued by the department to the 5th respondent Management.

The learned Special Government Pleader submits that the Management alone has committed the mistake in transferring the petitioner''s husband to the 5th respondent school, where there was no post available.

We have considered the rival submissions and perused the materials available on record and also relevant rules and Government Order.

It is not in dispute that petitioner''s husband possessed required qualifications for appointment as Secondary Grade Teacher and he was appointed as Secondary Grade Teacher on 03.2.2003 and the said appointment was also approved by the Assistant Elementary Education Officer and salary was paid from 03.2.2003 and increments were also sanctioned to the petitioner''s husband. Thus, he became the approved teacher in an aided school from 03.2.2003

Section 26 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 mandates continuous payment of salary to the permanently appointed teacher in an aided school, if deployment is not possible even if the post is found surplus. G.O. Ms. No. 525, School Education Department, dated 29.12.1997 states that while assessing the staff strength of aided schools, if any of the school is having excess teachers, such teachers are bound to be deployed to needy schools and if it is not possible, the said teachers shall be retained in the said schools till retirement and have to be paid salary. The said two aspects have not been considered by the 3rd respondent, while passing the impugned order. The 3rd respondent also cannot blame the Management as the teacher who was posted in the school where from the petitioner''s husband was transferred was paid salary, and no direction was given to the Management to post the petitioner''s husband by showing the vacancy.

Hence, the impugned order passed by the 3rd respondent is liable to be set aside and the petitioner''s husband is entitled to get salary for the period for which he worked i.e. from 01.3.2008 to 10.6.2010. The petitioner''s husband died on 10.6.2010 and the petitioner being his widow, is also entitled to get sanction of family pension from 11.6.2010. Rule 49(1)(a) of the Tamil Nadu Pension Rules, 1978 states that if a person served in a pensionable post for more than a year, the family pension is bound to be sanctioned to the widow. The said statutory provision cannot be disputed as the said Rule is still in force and the petitioner''s husband was also appointed prior to the introduction of new Pension Scheme, which came into force from 01.4.2004, as the appointment of the petitioner''s husband was way back on 03.2.2003, which was also approved by the Assistant Elementary Education Officer from 03.2.2003.

In fine, the impugned order of the 3rd respondent dated 30.8.2010 is set aside and this writ petition is allowed as prayed for. The respondents are directed to implement the order of this Court within a period of two months from the date of receipt of a copy of this order, failing which, the 3rd respondent is bound to pay interest at the rate of 9% per annum for the arrears of salary payable from 01.3.2008 to 10.6.2010 and family pension payable from 11.6.2010 onwards till the amounts are paid. No costs. Consequently, M.P.No.1 of 2013 is closed.