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Judgment
Honourable Mr. Justice T. Raja
The present writ petition is filed by the writ petitioner-K. Swamidhas who was appointed in the 4th respondent School-T.C. K. Higher Secondary School as P.G. Assistant (Maths) on 01.10.1980 and subsequently, promoted as Headmaster on 13.12.1990, challenging the impugned order dated 24.4.2006 passed in Na.Ka.No.079/05 dated 24.4.2006 in and by which he was compulsorily retired from the service of the 4th respondent school.
(i) The grounds raised by the petitioner to assail the impugned order go to show that when he was ill on 04.9.2003 he applied for medical leave. Due to continuation of illness, he extended his medical leave from time to time, from 2003 for about 2 years 4 months and 8 days, that is from 4.9.2003 to 11.1.2006. In the meanwhile, he was promoted as Headmaster of the 4th respondent school. While he was serving as Headmaster, he suffered a charge-memo issued by the 4th respondent. Challenging the same, he filed O.S.No.43/1995 on the file of the District Munsif Court, Kuzhithurai. However, a compromise was reached between the petitioner and the 4th respondent. As a result of compromise, the 4th respondent dropped the charges. Subsequently, when a second charge memo was issued, the petitioner was kept under suspension and challenging the same he filed O.S.No.211/1997 on the file of the Principal District Munsif Court, Kuzhithurai. Though during the pendency of Civil Suit, interim injunction was granted and subsequently the same was made absolute, but it is not made known to this Court as to what happened to the said suit now.
(ii) When the 4th respondent attempted to appoint another teacher as Headmaster, the petitioner filed W.P.No.7465/1991. By order dated 24.7.1998 this Court, by dismissing the W.P.No.7465/1991, directed the 4th respondent to fill up the post as per law and thereafter, by order in W.A.Nos.935 and 936 of 1998 the same was confirmed and the petitioner''s SLP also came to be dismissed. Under these circumstances, the 4th respondent promoted their men as Headmaster and subsequently, the petitioner fell ill and due to his illness he applied for medical leave on 4.9.2003. From 4.9.2003 since the illness continued, he was constrained to extend his medical leave from time to time from 4.9.2003 till 11.1.2006 for about 2 years 4 months and 8 days. Under these circumstances, when the 4th respondent management issued a show cause notice on 24.1.2006, as the petitioner was not able to attend the enquiry, by the impugned order, the 4th respondent has compulsorily retired the petitioner from service on a wrong presumption that he has been running his Jewellery shop and was not interested in joining the service of the 4th respondent school.
(iii)The learned counsel appearing for the petitioner further submitted that the 4th respondent school is an aided minority institution. The petitioner was appointed as P.G. Assistant in the year 1980 and subsequently, promoted to the post of Headmaster on 13.12.1990. When the impugned order of compulsory retirement was passed on 24.4.2006, the 4th respondent has miserably failed to follow the provisions of the Tamil Nadu Private Schools Regulations Act, more particularly, Section 22 which mandates prior approval before any teacher is dismissed, terminated or reverted to the lower post. Moreover, when the provisions of the Tamil Nadu Private Schools Regulations Act does not contemplate punishment of compulsory retirement, the impugned order dated 24.4.2006 passed by the 4th respondent school compulsorily retiring the petitioner from service is non- est in the eye of law.
(iv) Further, the learned counsel contended that though the impugned order of compulsory retirement was passed on 24.4.2006, in view of belated challenge made by the petitioner by filing the present writ petition in the year 2009 with the delay of three years, the backwages need not be paid to the petitioner. However, he prayed for payment of terminal benefits while setting aside the impugned order of compulsory retirement dated 24.4.2006 by filing the present writ petition.
3.(i) Per contra, a detailed counter affidavit has been filed by the 4th respondent school and the learned counsel appearing for the 4th respondent submitted that the 4th respondent school is an aided minority institution and is entitled to protection under Article 226 of the Constitution of India. As it has been settled by this Court as well as Apex Court that the aided minority institutions are all exempted from the provisions of Tamil Nadu Private School Regulations Act, the petitioner who was working as the Headmaster having failed to report for duty for about 2 years 4 months and 8 days, was issued with the show cause notice for his unauthorised absence for years to submit his explanation. Though the show cause notice dated 24.1.2006 was received by the petitioner, he remained mum without even submitting his reply. As the 4th respondent school has to follow certain procedures, repeatedly called upon the petitioner to appear for enquiry. Since he was interested in running Jewellery shop and not interested in running the school and finally having not replied to the show cause notice dated 24.1.2006 and also finding no responsibility to participate in the enquiry, the 4th respondent management was constrained to pass the impugned order on 24.4.2006. Even after passing the said impugned order dated 24.4.2006, the same was sent to the petitioner. The petitioner refused to receive even that impugned order. When he has not replied to the show cause notice dated 24.1.2006 and deliberately remained absent from participating in the enquiry, the 4th respondent school finally passed the impugned order dated 24.4.2006 compulsorily retiring him from the service of the 4th respondent school. When the said order was issued to the petitioner as he has not chosen to receive that order and thereafter, the said order of compulsorily retirement has not been challenged for about 3 years, the writ petition filed by the petitioner, who remained unauthorisedly absent for 2 years 4 months and 8 days from attending the school, with an unexplained delay of 3 years is hopelessly barred by limitation.
(ii) Further in regard to the contention made by the learned counsel for the petitioner that the 4th respondent school having been taken over by the Government cannot file the present counter, the learned counsel for the 4th respondent stated that the petitioner himself has arrayed the 4th respondent school as one of the necessary contesting parties, therefore, when notice was issued to the 4th respondent school, a detailed counter has been filed in support of the stand taken by the 4th respondent and it is also the duty of the 4th respondent school to appear and answer to the notice issued by this Court and on that basis, the learned counsel submitted that the impugned order passed by the 4th respondent does not call for interference.
(iii) Thirdly, the learned counsel for the 4th respondent contended that the writ petition is not maintainable on the ground of inordinate and unexplained delay of three years in filing the present writ petition in the year 2009 by challenging the impugned order dated 24.4.2006.
(iv) Further, the learned counsel for the 4th respondent forcibly submitted that the petitioner challenged the action of the school authority declining to approve his appointment to the post of Headmaster by filing W.P.No.7465/1991. After the dismissal of the said writ petition on 24.7.1998, when W.A.Nos.935 and 936 of 1998 were filed, while dismissing the said Writ Appeals, the Division Bench has categorically held that it is open to the management to make alternate arrangements to appoint a suitable person to hold the charge of the post as Headmaster till such time as the regular Headmaster is selected and appointed. The petitioner though unsuccessful, filed S.L.P., and the same was dismissed and when the 4th respondent appointed a suitable candidate as Headmaster, from then onwards the petitioner remained unauthorisedly absent under the pretext that he was continuously ill. When the petitioner remained unauthorisedly absent and refused to go to school and take classes to the students, the 4th respondent school repeatedly informed the petitioner to appear before the Medical Board. The petitioner neither appeared before the Medical Board on 14.7.2005, 19.8.2005 and 23.9.2005 and nor responded to the show cause notice dated 24.1.2006. Under these circumstances, the 4th respondent having seen that the petitioner was not interested in attending the classes by way of dismissal of Writ Petition, Writ Appeals and SLP as he was interested in taking care of the jewellery shop, finally finding his absence in attending the enquiry, passed the impugned order on 24.4.2006. Since the said impugned order itself is not being challenged for three years, the petitioner who was working as a teacher having last his moral as well as legal grounds to continue as a teacher, is not entitled to any indulgence from this Court.
(v) Finally, the learned counsel for the 4th respondent by relying on her additional counter affidavit, contended that the respondents 5 to 7 who were impleaded before this Court have no right in the management of the school for the reason that they were not in the management of the school and though the claim for partition of 1/3rd share in the immovable property was granted, there has been a specific finding by the Civil Court that the father of the Manager of the 4th respondent school-Krishnan Nair alone was acting as the Manager and Correspondent of the School and this fact was admitted by the respondents 1 to 3 in the Civil Court and therefore, the respondents 5 to 7 have no say in the writ petition. However, when the writ petition was filed by the petitioner by impleading 4th respondent, without impleading the respondents 5 to 7 they should not be heard as they have no right at all and on that basis, the learned counsel prayed for dismissal of the writ petition.
The learned counsel appearing for the respondent 5 to 7 by filing a counter admitted that there has been some dispute in the management and in view of that direct payment of salary to the persons by the District Educational Officer was ordered. Subsequently, thereafter, there was an attempt made by the Joint Director to arrive at a compromise and the same was failed. Subsequently, now the school authorities are effecting direct payment of salary. The petitioner was reverted from the post of Headmaster. After reversion he could not attend the school for some time or the other and his leave application was not sanctioned by the then Correspondent. Under these circumstances, when he filed Writ Petition, he has completed the age of 58 years and therefore, his prayer for reinstatement is not possible and under these circumstances, the learned counsel prayed for dismissal of the writ petition.
Heard the learned counsel for the respective parties.
The petitioner was appointed as a P.G. Assistant (Maths) on 1.10.1980. Subsequently, he was appointed as a Headmaster with effect from 13.12.1990 in the vacancy caused by the retirement of Thiru G.Sahadevan Nair, Headmaster of the 4th respondent school. However, the said order of appointment dated 13.12.1990 appointing him as Headmaster was subject to approval by the competent authority by the Education Department. But, subsequently, his appointment to the post of Headmaster was turned down by the educational authorities-respondents 1 to 3 which constrained the petitioner to file W.P.No.7465/1991. The said writ petition was dismissed on 24.7.1998 with the direction to the 4th respondent management to appoint a suitable person to the post of Headmaster in accordance with law. Against the order passed in W.P.Nos.7465 and 14481/1991 dated 24.7.1998, W.A.Nos.935 and 936 of 1998 were filed before this Court, and by order dated 3.9.2003 the Division Bench dismissed the above Writ Appeals confirming the order passed by the learned single Judge by giving a specific direction to vacate the office of the Headmaster forthwith as he was not qualified on the date of appointment and approval for his appointment had also not been granted. It is also relevant to extract paragraphs 6 and 7 of the said judgment passed by this Court in the abovementioned Writ Appeals and the same are as follows:
Learned single Judge has only directed that the Management should appoint suitable person to the post of Headmaster in accordance with law and that, while doing so, it must consider the claim of the other petitioner, viz., Krishnan Nair as also that of other eligible persons. If by the time the selection is made and the appellant before us makes himself eligible by securing an order of retrospective exemption from the Government, then, his case also will have to be considered. However, though four years have elapsed from the time the amending Act was enacted, he has not secured any such exemption till date.
We see no reason to interfere with the order of appeal. The appellant shall vacate the office of the Headmaster forthwith, as he was not qualified on the date of appointment and approval for his appointment had also not been granted. It is open to the Management to make alternate arrangements to appoint a suitable person to hold the charge of the post as Headmaster till such time as the regular Headmaster is selected and appointed.
Since there was a direction to the petitioner to vacate the office of the Headmaster forthwith, as he was not qualified on the date of his appointment and approval for his appointment had also not been granted with a further direction to the management to make alternate arrangements to appoint a suitable person to hold the charge of the post as Headmaster till such time as the regular Headmaster is selected and appointed, the petitioner obviously filed S.L.P., before the Apex Court and the same was dismissed and subsequently, from the date of dismissal of the above Writ Appeals, the petitioner remained unauthorisedly absent on the pretext that he was having continuous illness. In fact the petitioner being a responsible P.G. Assistant having suffered an order in the abovementioned Writ petition and Writ Appeals with a finding that he was not qualified to hold the post of Headmaster, finding no chance to continue in the post of Headmaster and working in the post of P.G. Assistant would be a disappointing experience, he himself voluntarily chosen not to attend the classes. As a result, he remained unauthorisedly absent for 2 years, 4 months and 8 days. Therefore, he applied for medical leave. The 4th respondent school also finding that the P.G.teacher should not take leave as the status of the children would be badly affected, asked the petitioner to appear before the Medical Board on various letters on 14.7.2005, 19.8.2005 and 23.9.2005. But the petitioner deliberately refused to appear before the Medical Board. It shows that he was not interested in coming to the school as he has to work as a P.G.teacher and not as the Headmaster in view of his ineligibility to hold the post of Headmaster. Besides, the petitioner was aware of the dismissal of Writ Petition, Writ Appeals and the SLP Under these circumstances, the school management-4th respondent has issued a show cause notice dated 24.1.2006. After receipt of the show cause notice, the petitioner neither replied nor appeared for enquiry. Finding no response from the petitioner, the 4th respondent ultimately passed the impugned order dated 24.4.2006 compulsorily retiring him from the service of the respondent. In this context it is also relevant to keep in mind another vital factor that again the petitioner did not choose to challenge the order of compulsory retirement for about three years and therefore, there is a delay of 3 years in filing the present writ petition. Earlier when the petitioner remained unauthorisedly absent for about 21/2 years, admittedly he did not even attend the classes. When he was issued with the impugned order compulsorily retiring him from service, again for three more years he did not even choose to challenge the said order and thereby it can be seen that there has been a delay of (2 1/2 years + 3 years) 5 1/2 years. Under these circumstances, this Court finding no explanation, whatsoever, for his unexplained and inordinate delay of three years in filing the present writ petition, holds that the petitioner is not entitled to any indulgence from this Court.
Besides, when there has been a specific finding by a Division Bench of this Court in paragraphs 6 and 7 as extracted above holding that he was not qualified on the date of appointment and approval for his appointment to the post of Headmaster, the petitioner should have immediately joined the service by accepting the post of P.G. Teacher in the 4th respondent school, and when the 4th respondent passed the order of compulsorily retirement on 24.4.2006, he again remained idle for about 3 years and thereby caused a huge delay in challenging the correctness of the impugned order. It is also to be borne in mind that the 4th respondent by passing the order of compulsory retirement from service in lieu of termination has shown some indulgence to the petitioner, however, the Apex Court in a decision reported in State of Tamil Nadu and Others Vs. M.N. Sundararajan, held that unless a contrary intention appears from the context, a power to appoint should include a power to terminate the appointment, including termination of the person appointed by his compulsory retirement in accordance with the terms and conditions of his service. As per the judgment of the Apex Court mentioned supra, the word "appointment" in absence of any contrary intention, includes ''termination of service'', or ''compulsory retirement''. That apart, in another decision of our High Court in S. Jagadeesan V. Ayya Nadar Janaki Ammal College (1981 (2) MLJ 415) it has been held that the words "otherwise terminated" in section 19(1) should be read ejusdem generis with the preceding words "dismissed, removed or reduced in rank." Having regard to the object of the Act and the safeguards provided, namely, no teacher employed in a private school should be dismissed, removed or reduced in rank except with the previous approval of the competent authority, the words "otherwise terminated" occurring in section 22 of the Act should be read ejusdem generis to the preceding words "dismissed, removed or reduced in rank, and so construed, section 22 covers the impugned order of compulsory retirement. As I have already held, since the 4th respondent, finding the long unauthorised absence of the petitioner, has issued the order of compulsory retirement in lieu of an order of dismissal or removal, by setting aside the impugned order of compulsory retirement, on remission, if the 4th respondent finds that the order of removal or dismissal would be appropriate, such finding would go against the interest of the petitioner. Therefore, in a way, some indulgence shown to the petitioner by the 4th respondent in ordering compulsory retirement instead of removal or dismissal need not be interfered with by this Court. Under these circumstances, this Court finding no merits in the writ petition on the ground of unexplained delay, is also not inclined to consider the other points raised by the petitioner.
Consequently, this writ petition fails and the same is dismissed. No costs.