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Judgment
The petitioner prays for the issue of a writ of certiorarified mandamus to call for the records from the file of the third respondent in
Ref.No.1551/KR/96-97, quash the same and consequently direct the respondents to continue the services of the petitioner till the end of the
academic year 1996-97 (31.5.1997) and award exemplary costs.
The petitioner who was employed as a B.T.Asssitant in the third respondent, a minority school, reached the age of superannuation during June
1996. The petitioner requested re employment till the end of the academic year. The third respondent by reply dated 27.3.1996 intimated the
petitioner that as the District Educational officer required production of the Medical Fitness Certificate in connection with the petitioner''s for
reemployment for the academic year 1996-97, the petitioner was required to appear before Dr. Hisamuddin Papa, HUMA Hospital on 12.4.1996
at 11.00 A.M., for medical check up. But the petitioner did not appear before the Medical Officer indicated by the third respondent School, but
he has secured a Medical Certificate from a Doctor of his choice and forwarded the same on 26.6.1996 and requested that he be reappointed
after superannuation and retained till the end of the academic year.
On 28.6.1996 the third respondent passed a relieving order relieving the petitioner from his duties on superannuation with effect from 30th June
1996 indicating that the request for reemployment is declined. On being relieved the petitioner has approached this court to quash the said
communication dated 28.6.1996 and for direction to continue the petitioner in service till 31.5.1997 (1996-97 academic year end). The petitioner
has prayed for the writ of mandamus on the ground that he has got a right to be reemployed. The period for which reemployment was sought for
had come to an end but according to Mr. Hariparanthaman, the petitioner is entitled to monetary benefits even if he is not reemployed.
Per contra the respondent filed a typed set of papers pointing out that the conduct of the petitioner was not satisfactory during the past several
years, that the petitioner has not appeared before the Medical Board constituted by the third respondent, that the petitioner has absented himself
on a number of days and that well in advance on 14.7.1995, the pension papers have been submitted to the District Educational Officer and
according to the third respondent, the petitioner''s character and conduct not being satisfactory and his retirement being not during the middle of the
year, he is not entitled for reemployment. It is also contended that the retirement in the case of the petitioner fell on 30th June 1996 which is not the
middle of the academic year and the petitioner cannot compel the respondents to reemploy him.
It is also contended by the third respondent that the petitioner has no right much less a fundamental right to compel the respondents to reemploy
him. The third respondent further pointed out that it is not as if the petitioner is retiring during the middle of the year, but he has to demit his office
even in the beginning of the academic year, which date is well known and therefore the claim of the petitioner if sustained would defeat the very
object of the Government Order namely the student shall not suffer by a teacher being allowed to retire during the middle of the academic year. It
is further contended that the petitioner is not entitled to monetary relief as a Teacher was appointed in the place of the petitioner.
Mr. D.Hari Paranthaman, learned counsel appearing for the writ petitioner contended that the order impugned is liable to be quashed and and
the respondents should be directed to pay full salary for the period ending with the academic year. According to the petitioner academic year starts
on the first day of June and the learned counsel also refers to the definition ""academic year"" in Section 2(1) of the Tamil Nadu Recognised Private
School (Regulation) Act, 1973. According to which ""academic year"" means ""the year commencing on the first day of January or June"". Admittedly
the third respondent school commences on the first day of June of the year. But by virtue of the said definition it cannot be argued that 30th of June
falls in the middle of the academic year.
By G.O.Ms.No. 249, Education dated 9.2.1959 the Government provided for the continuance of the Teachers in service on reemployment
terms on their attainment of the age of superannuation in the middle of the school year. The G.O refers to the school year and not academic year.
The object of the G.O., being that by a Teacher being allowed to retire during the middle of the school year when the students are preparing for
the examinations for the year in question or likely to appear for examination, they shall not suffer for want of a teacher or they shall not suffer by
another teacher differently handling the subject. On a fair construction of the G.O., it has to be taken that the retirement should be in the middle of
the school year.
The word ""middle"" means equal distance in measurement or in number of steps from the extreme ends-intermediate, intervening etc., Therefore
the popular meaning of the word ""middle of the school year"" means any time around December and thereafter. In other words, a Teacher who
retires in the month of November or December in a school year or thereafter is entitled to claim that he is retiring in the middle of the year and not a
person who retires in the beginning of the school year which is not the middle of the year, 30th of June is the beginning of the year alone. Therefore
it is rightly contended by the respondent that the petitioner is not entitled to the benefit of the G.O.Ms.No.259 Education dated 9.2.1959 as
modified by G.O.Ms.No1643 Education dated 27.10.1988.
The learned counsel for the third respondent also pointed out that assuming for the purpose of arguments that the retirement in the case of the
petitioner falls in the middle of the school year, unless he satisfies the following prerequisite conditions he will not be entitled to reemployment as
sought for by him. The prerequisite conditions being (i) The character and conduct of the Teacher should be satisfactory (ii) The teacher should be
physically fit to continue in service.
It is pointed out and rightly too by the third respondent that the character and conduct of the teacher was not satisfactory. As against the
petitioner, there were complaints and he has not been regular in attending the classes as he has not only absented himself on number of days during
the last three years preceding 30th June 1996, but also during those years he had not been sincere and he has availed leave too frequently. Even
during the year 1993, out of total working days of 139 days he has attended school for 62 "" of days. He availed 5 "" days Casual Leave, 1 day as
restricted holiday, 27 days as Medical Leave, and absented himself for 43 days without any information. In all during the said year the petitioner
has not attended the school for 76 "" days out of 139 days. The petitioner was continuously absenting himself and therefore he was on leave on loss
of pay which has also been entered in the Service Register. This shows that the petitioner was not sincere, nor he had concern for the students and
their education.
That apart, there has been some complaints. The petitioner also has not chosen to appear before the Medical Officer as indicated by the third
respondent-management. But he has secured a Certificate from a Doctor of his choice. The cumulative effect of the above would show that the
petitioner''s service is not satisfactory. So also the character and conduct of the petitioner as has been pointed out by the counsel for the third
respondent as seen from few complaints which were received by the third respondent-school. Mr. Hariparanthaman, learned counsel contends that
those are complaints and so long as it has not been enquired into and a finding is rendered those complaints cannot be looked into or taken for
consideration. In my considered view, such a contention is too wide a proposition.
To adjudge the character and conduct of a Teacher it is not necessary that the management or the employer has to conduct an enquiry and
thereafter depending upon the truth or otherwise of the complaints, his character and conduct should be adjudged. It is the subjective satisfaction
of the third respondent school as to the conduct and character of the petitioner, which the third respondent school has to assess.
That apart even one year prior to the date of superannuation, pension papers have been submitted and it has been processed.
The petitioner has also suffered a heart attack during 1993-94 and his attendance was very low or very thin after that. The cumulative effect
would naturally reflect on the character and conduct of the teacher and not his being sincere to serve the student community. The petitioner has not
chosen to appear for the Medical examination before the Doctor nominated by the School. This again is a point to be commented adversely
against the petitioner as he has avoided the Doctor nominated by the School. Taking into consideration of the physical fitness for continuing in
service, the character and conduct and he being insincere, the third respondent has chosen to relieve him on 30th June 1996.
The petitioner not having performed or discharged his duties sincerely and efficiently cannot complain. The petitioner has absented himself. He
was on loss of pay, besides he has suffered a heart attack also. Naturally, the third respondent-school was not prepared to accept the petitioner as
a person with good character and conduct sincere to take care of the students. This court finds that there is nothing wrong with the view taken by
the third respondent-School.
Reemployment is not a matter of right. It is governed by the G.O.s issued. The petitioner has been actually relieved on 30th June 1996 as the
management has come to the conclusion that his performance was not satisfactory and his physical condition is not satisfactory and therefore, the
management has taken the decision not to reemploy the petitioner in the interest of the school. It is not as if the petitioner has got an absolute right
or fundamental right to compel the respondents to reemploy him. The petitioner''s claim fro reemployment is subject to the conditions enumerated
in the said G.Os which the petitioner has miserably failed to satisfy.
A Division Bench of this Court in W.A.No:1179 of 1993 etc., batch, dated 6.9.1994 (Sundaram Vs. Secretary CSI Diocese of Madras)
while analysing the purpose behind the G.O., held thus:-
We have already reproduced the relevant Government Orders. Those Government Orders are to be read as a whole. An analysis of the
aforesaid Government Orders would disclose that reemployment is for ensuring continuity of benefit of teaching from the same teachers to the
students during the academic year, that it is a reemployment and not continuity of service on fulfilling the conditions that the work and conduct are
satisfactory, that they are physically found fit for further service and that no disciplinary procedures are pending against them. Thus, it is clear that
neither a fresh teacher nor a teacher who is not fit to be continued, is imposed upon the institution. It in the very same teachers whose work and
conduct are found to be satisfactory and who is physically found to be fit for further service and against whom no disciplinary proceeding is
pending, is directed to be continued on reemployment basis during the remaining period of that academic year. Further, Section 14 of the Tamil
Nadu Recognised Private Schools (Regulation) Act, 1973 makes it incumbent upon the management which receives aid from the State
Government to abide by the orders that are issued from time to time by the State Government of course subject to them being in conformity with
the right guaranteed on the minority institutions under Art.30 of the Constitution.
The object of the G.O., has been highlighted by the Division Bench and in that background for valid reasons, the third respondent school ;has
declined to continue he petitioner on reemployment. The emphasis is reemployment is provided with a view to ensure continuity or benefit for the
teachers who attain the age of superannuation during the middle of the year for the rest of the academic year/school year. The Division Bench also
laid down that the Government Order specifically states that the institutions are to continue the teachers till the end of the academic year provided
the teachers satisfy the three conditions laid down in the G.O.Ms.No:452, Education dated 24.3.1970 which has been reiterated in the subsequent
Government Orders.
In the light of the above discussion, this court holds that the petitioner cannot compel the respondents to reemploy him as the respondent has
rightly declined reemployment for valid reasons as has been provided in the G.Os.
Though the learned counsel for the petitioner relied upon the decision reported in 1998 WLR 77 (R.Muthukrishnan Vs. The Secretary, Hyder
Middle School) as well as 1996 WLR 259 (David Thampi Dhas Vs. The Governing Board of N.M.Christian College, Marthandam and others)
and the judgement in Writ Appeal NO.1179/93 etc., batch dated 6.9.1994, on the facts of this case, those pronouncements are clearly
distinguishable and have no application. The petitioner whose conduct was not satisfactory who has absented himself for a considerable period,
who had not taken interest in the student community and who had also suffered a heart attack during the last two years, the management was well
founded in turning down the request of the petitioner for reemployment. The action of the third respondent cannot be held to be arbitrary or
violative of the G.Os governing the point.
Already a teacher has been appointed in the vacancy caused by the retirement of the petitioner. The pension papers of the petitioner have been
submitted one year in advance. But the petitioner kept silence. The reemployment has not caused any difference in the petitioner''s terminal benefits
and pension. This is not a fit case where this court would be justified in interfering with the order of the third respondent or that of the other
respondents in not continuing the petitioner beyond 30th June, 1996. There are no merits in the writ petition and it is dismissed Consequently
connected WMP is also dismissed. No costs.