Rukmani Devi vs The Director of Elementary Education, The District Elementary Educational Officer and The Additional Assistant Elementary Educational Officer

N. Paul Vasanthakumar, J.—The prayer in this writ petition is to quash the order dated 09.01.2006 with a direction to the second

respondent to pay the salary due to the petitioner from 01.02.1998 to 31.08.1999.

The petitioner worked as Secondary Grade Teacher in Backiyalakshmi Elementary School, Chokkalingapuram, Chekkarakudi Post,

Karungulam,Tuticorin District and there was enmity between the petitioner and the school Headmaster, namely Selvaraj. The petitioner was

suspended by an order dated 14.12.1992 with effect from 17.12.1992. Charges have framed and enquiry was conducted and thereafter, the

petitioner was terminated from the service.

The said order of termination was challenged in W.P. No. 3215/1994 and this Court directed the respondent to dispose of the representation

submitted by the petitioner on 28.02.1994. On 21.04.1994, the second respondent passed an order directing reinstatement of the petitioner with

full backwages. The petitioner, having not been reinstated, filed W.P. No. 10311/1994 and prayed for issuance of a writ of mandamus to

implement the second respondent''s order dated 21.04.1994. The learned single Judge of this Court dismissed the writ petition, as against which

the petitioner filed W.A. No. 445/1995 and a Division Bench of this Court allowed the Writ Appeal on 26.05.1995 with a cost of Rs. 1000/- to

be paid by the third respondent. Paragraph 11 of the judgment is extracted here under for proper appreciation.

That apart, though the order declining approval was passed by the competent authority as early as on 21.04.1994, so far the third respondent

management has not chosen to take any steps to challenge the same in a manner known to law either before the statutory authorities stipulated

under the Act or before this Court under Article 226 of the Constitution of India. While that be the position, it is not permissible for the third

respondent to collaterally attempt to attack the order while opposing the claim of the appellant in this case under Article 226 of the Constitution.

The order of the learned Judge countenancing the defence of the third respondent in these proceedings, in our view, does not lay down the correct

position of law. The third respondent is not only bound to implement the order of the second respondent dated 21.04.1994 and it cannot also

avoid the liability to pay the emoluments due to the appellant for the period beyond the expiry of four months from the date of the order of

suspension pending framing of charges. The further stand taken by the third respondent on the basis of the letter surrendering the post with the

services of the appellant cannot also be countenanced since it is not given to the appellant to so surrender a post with an incumbent unilaterally and

plead it as an excuse for avoiding compliance with the statutory order passed by the competent authority. The said action on the part of the third

respondent is merely arose to avoid his statutory liability and it only go to show the extent of abuse of power on the part of the third respondent.

The management failed to implement the order passed by the Division Bench of this Court and therefore, the petitioner preferred Contempt

Application No. 475/95, against the management and thereafter, a compromise was entered into between the management and the petitioner on

29.03.1996. The Compromise Memo, dated 29.03.1996 is also produced before me, which reads as follows:

In lieu of the back wages, the third respondent (contemner) now offered to transfer the Management of the School in favour of the Applicant /

Appellant. Accordingly, he signed the Transfer Application Form and handed over the Title Deeds relating to the School Property. In view of the

above, both the parties agreed to compromise the issue and accordingly signed this Memo.

Thereafter, the petitioner took the Management of the School and the transfer of Management of the school was also approved by the

Department on 29.03.1997. According to the petitioner, the Management closed the school on 14.02.2004 and the petitioner was transferred with

post to Palaniandavar Middle School, Pappakudi, Sivagangai District in terms of Section 26 of the Tamil Nadu Private Schools (Regulation) Act,

1973.

The grievance of the petitioner is that for the period from 01.02.1988 to 31.08.1999, the petitioner was not paid salary. Hence, she made a

representation on 03.05.2005 to the second respondent and the second respondent having not taken any action, the petitioner filed W.P. No.

7321/2005 before the Madurai Bench of Madras High Court and a direction was issued to the second respondent to consider the representation

dated 03.05.2005 to pass orders on merits and in accordance with law within a period of 8 weeks. The third respondent thereafter passed an

order on 09.01.2006 and rejected the claim of the petitioner on the ground that till closure of the school on 14.02.2004, no proposal was

submitted by the Management regarding the petitioner''s claim for salary from 01.02.1998 to 31.08.1999, the sixth pay commission benefits,

bonus for 1997 and 1998 and salary for October and November 2000.

The learned Counsel for the petitioner submitted that the petitioner continuously worked in the school from 01.02.1998 to 31.08.1999, October

and November 2000 and due to the dispute in the Management, the claim statement for the payment of salary for the above period was not

submitted and as the school is closed, the petitioner as well as other teachers were absorbed in various other schools as per Section 26 of Tamil

Nadu Private Schools (Regulation) Act, 1973. In view of the said change of position, particularly, the closure of the school, there is no possibility

to send the proposal to claim salary for the above period. The reason given by the third respondent in the impugned order is hyper technical in

nature and the petitioner, having worked for the above period, is entitled to get salary for the above period.

The reason given by the third respondent in the impugned order is unsustainable as the management is not in existence and therefore, the said

order is set aside and the writ petition is allowed and the petitioner is entitled for salary from 01.02.1998 to 31.08.1999 and also Pongal bonus for

1997 and 1998 and Salary for October and November 2000. The second respondent is directed to pay the said salary and other benefits, if the

petitioner really worked during the said period. The same shall be calculated and paid within 8 weeks from the date of receipt of a copy of this

order. No costs.