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Judgment
R. Mahadevan, J.—The petitioner has filed this writ challenging the proceedings of the first respondent in No. Pa. Mu. No. 103156/D1(2)04 dated 27.07.2005 and O. Mu. No 113707/D(E2)/05 dated 29.09.2008 and to quash the same in so far as it refused to confer benefits in the cadre of Lab Assistant from 29.05.2000 and for a consequential direction to the respondents to approve the appointment of the petitioner as Lab Assistant from 29.05.2000 and to confer all consequential benefits. The brief facts of the case are as follows:
1.1. The petitioner was appointed as a Record Clerk by the third respondent on 29.09.1997. When the post of Lab Assistant fell vacant, the name of the petitioner was sponsored to employment exchange along with other names and the petitioner was selected and appointed as Lab Assistant on 29.05.2000. on 27.07.2000, the services of the petitioner was terminated by the then secretary of the third respondent school management alleging that she was appointed without the approval of the second respondent and she was also instructed not to come to school. In the meantime, the appointment of the secretary, which was in dispute before the Principal Bench of this Court at Chennai was settled in W.A. No 1836 of 2000 by nullifying her appointment. Therefore, the order of termination dated 27.07.2000 was cancelled on 18.01.2003 and her recruitment from 29.05.2000 was confirmed. In the meantime, her initial appointment as Record Clerk was approved but with a rider that she was to be treated as resigned from 29.05.2000, i.e., on the date of her recruitment as Lab Assistant.
1.2. The petitioner claimed that in view of the fact that her appointment as Record Clerk was approved only in 2004 and therefore, she cannot be treated as resigned and therefore sought for regularization of the service as Lab Assistant for the intervening period between 2000 to 2003. By proceedings dated 27.07.2005, the request of the petitioner was rejected holding that she should not have been appointed as Lab Assistant without obtaining resignation from the post of Record Clerk and since she was appointed as Lab Assistant without approval of the second respondent, she was directed to be treated as Record Clerk and the intervening period was to be treated as earned leave. Again by another proceedings dated 23.06.2006, the first respondent has passed orders treating period between 01.01.2004 to 28.02.2004 and 02.06.2004 to 15.08.2005 as period on leave without salary. Aggrieved the petitioner approached this Court in W.P. No 9925/07 and the same was disposed on 05.01.2008 with a direction to the first respondent to consider the representation of the petitioner dated 11.08.06 and pass orders on merits and in accordance with law with a period of six weeks. The first respondent has rejected the request of the petitioner holding that since already orders were passed on 23.06.2006, the demand in the representation dated 11.08.06 cannot be accepted. Aggrieved the petitioner has approached this Court with the present writ petitioner.
The learned Senior Counsel for the petitioner agitated that the petitioner was always willing to work and since no approval is required for non-teaching staff, the termination is illegal and hence the first respondent ought to have considered the representation on merits as earlier directed by this Hon''ble Court and regularized the service of the petitioner with effect from 29.05.2000.
He has relied upon the orders of the Division Bench of this Court in W.A. No. 900 of 2007 [R. Kuttiswamy v. The Joint Director of School Education], decided on 30.04.2008, wherein it was held that the approval of District Educational Officer was not necessary for appointment of non-teaching staff. Further, he placed reliance upon the decisions of this Court in (i) Srikantha S.M. Vs. Bharath Earth Movers Ltd., ; (ii) M.S. Munivenkatappa Vs. State Bank of India, and (iii) V. Mani Vs. The Secretary to Government, State of Tamil Nadu, Revenue Department : and sought for regularization of the services with all benefits.
Per contra, the learned Government Advocate appearing for the respondents 1 and 2, reiterating the contents in counter affidavit, contended that since the petitioner was not employed during the intervening period, she is not entitled to any salary, that since her appointment is without approval, her services cannot be approved as sought in the writ petition and that the petitioner without challenging the proceedings dated 23.06.2006 has challenged on the proceedings dated 29.09.2008 and therefore contended that the writ petition was not maintainable. The learned Counsel further contended that even if the claim of the petitioner is allowed, it would only be the former secretary who has to pay the salary.
The learned Counsel appearing for the third respondent contended that it is only because of the inordinate delay by the Education Authorities, the difficulties have arisen and the services were terminated under a wrong notion only on the instructions of the second respondent. Hence, no liability could be fastened on the school management.
Heard the learned Senior Counsel for the petitioner, the learned Government Advocate appearing for the respondents 1 and 2 and the learned Counsel for the third respondent school.
The Division Bench of this Court in W.A. No. 900 of 2007 [R. Kuttiswamy v. The Joint Director of School Education], decided on 30.04.2008, has held as follows:
The decision of the learned single Judge of this Court rendered in A. Murugesan v. State of Tamil Nadu (2007(4) MLJ 561) holding that rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 will apply only to teaching staff and with regard to the appointment of non-teaching staff, there is no need to get prior permission from the educational authorities is also brought to our notice.
The appointment in the vacancy arose due to the retirement of A. Kothandapani on 31.12.1989. Even rule 15(4) deals about the promotion of teachers in a regular vacancy and the heading of the rule 15 contemplates qualifications, conditions of service of teachers and other persons. Nothing was mentioned about other persons. But it is clarified under rule (4-A) any person employed in the institution specified in column (1) of the Table mentioned in rule (4-A), aggrieved by an order issued under sub-rule (4) may prefer an appeal to the authority specified in the corresponding entry in column (2) thereof. Column (1) mentions with regard to the Pre-primary, Primary or Middle Schools, the authority is the Chief Educational Officer. Sub-rule 4(i) mentions promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal. 4(ii) mentions that appointments to the various categories of teachers shall be made by the following methods:-
(i) Promotion from among the qualified teachers in that school.
(ii) If no qualified and suitable candidate is available by method (i) above,-
(a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers.
(b) Appointment of teachers from any other school. (c) Direct recruitment.
Nothing was mentioned about the appointment of non-teaching staff. Perhaps, the respondents are of the view that it was mentioned in the rule in the case of appointment from any other school or by direct recruitment, the School Committee shall obtain the prior permission of the District Educational Officer in respect of Pre-primary, Primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools, Teachers'' Training Institutions setting out the reasons for such appointment. ''Other persons'' means ''persons appointed from other schools in the teacher post''. Therefore, it is nothing to do with the appointment of non-teaching staff. If no qualified and suitable candidate is available by method (i) above, the appointment of other persons employed in that school provided they are fully qualified to hold the post of teachers. This made the respondents to understand that ''any other persons'' means ''non-teaching staff''. But, Rule 15(4)(i) mentions that the promotion shall be made on grounds of merit and ability, seniority being considered when merit and ability are approximately equal. If no qualified and suitable candidate is available by method (i), appointment of other persons employed in that school provided they are fully qualified to hold the post of teachers. Therefore, the entire exercise undertaken by the Secretary making an application for approval of the appointment of the petitioner in a regular vacancy dated 4.4.90 is a futile exercise in the eye of law.
Therefore, we hold that as already held by the learned single Judge of this Court in the decision rendered in A. Murugesan v. State of Tamil Nadu, (2007) 4 MLJ 561), rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 does not deal with the appointment of non-teaching staff. Therefore, the petitioner is entitled for regularisation and approval of appointment from the date of appointment in a regular vacancy caused due to the retirement of A. Kothandapani from 4.4.1990 and his appointment is valid.
The Writ Appeal is allowed accordingly. No order as to costs. Consequently, connected pending miscellaneous petition is disposed of.
The above judgment is squarely applicable to the facts of this case. The petitioner was appointed initially as a Record Clerk and later as a Lab Assistant. Therefore, the approval of the second respondent is not necessary and the termination of the petitioner on 27.07.2000 is unwarranted and illegal. But for the termination, the petitioner would have been continuously attended the work. Therefore, the petitioner cannot be made to suffer as a consequence of an illegal order.
In the judgment in Srikantha S.M. Vs. Bharath Earth Movers Ltd., , the Hon''ble Apex Court held as follows:
The next question is, as to what benefits the appellant is entitled to. As he withdrew the resignation and yet he was not allowed to work, he is entitled to all consequential benefits. The learned counsel for the respondent-Company no doubt contended that after January 15, 1993, the appellant had not actually worked and therefore, even if this Court holds that the action of the respondent-Company was not in consonance with law, at the most, the appellant might be entitled to other benefits except the salary which should have been paid to him. According to the counsel, the principle of "no work, no pay" would apply and when the appellant has admittedly not worked, he cannot claim salary for the said period.
We must frankly admit that we unable to uphold the contention of the respondent-Company. A similar situation had arisen in J.N. Srivastava Vs. Union of India (UOI) and Another, and a similar argument was advanced by the employer. The Court, however, negatived the argument observing that when the workman was willing to work but the employer did not allow him to work, it would not be open to the employer to deny monetary benefits to the workman who was not permitted to discharge his duties. Accordingly, the benefits were granted to him. In Shambhu Murari Sinha Vs. Project and Development India Ltd. and Another, also, this Court held that since the relationship of employer and employee continued till the employee attained the age of superannuation he would be entitled to "full salary and allowances" of the entire period he was kept out of service. In Balram Gupta Vs. Union of India (UOI) and Anr, , in spite of specific provision precluding the Government servant from withdrawing notice of retirement, this Court granted all consequential benefits to him. The appellant is, therefore, entitled to salary and other benefits.
For the foregoing reasons, in our opinion, the appeal deserves to be allowed and is accordingly allowed. The action of the respondent-Company in accepting the resignation of the appellant from January 04, 1993 and not allowing him to work is declared illegal and unlawful. It is, therefore, hereby set aside. The orders passed by the learned single Judge and the Division Bench upholding the action of the Company are also set aside. The respondent-Company is directed to treat the appellant in continuous service upto the age of superannuation i.e. December 31, 1994 and give him all benefits including arrears of salary. The Company may adjust any amount paid to the appellant on January 15, 1993 or thereafter. The appeal is accordingly allowed with costs.
In the judgment in M.S. Munivenkatappa Vs. State Bank of India, , the Division Bench of this Court held as follows:
As per the communication of the respondents, petitioner has applied only for voluntary retirement. It is for the respondents to accept or reject the said request and communicate the decision to the petitioner. Instead of doing so, respondents have chosen to treat the said application as that of resignation in spite of petitioner raising objection and the said objection was rejected by stating that already the appropriate authority has approved the resignation. When there is no request from the petitioner to treat his voluntary retirement application to that of resignation, the respondents have no jurisdiction to treat his application as one of resignation and proceed further. Even though the appropriate authority has unilaterally decided, before relieving the petitioner on 30.9.1999, the petitioner requested not to treat the application as one of resignation and review the decision. Hence it is clear that before relieving the petitioner on 30.9.1999, he has objected the unilateral decision of the respondents and not accepted for resignation. As it is found that the respondents have unilaterally treated the application of the petitioner for voluntary retirement to that of resignation, the said action of the respondents is not valid in the eye of law. Once it is found that the action of the respondents is illegal, it has to be held that the respondents have illegally prevented the petitioner from discharging his duties from 1.10.1999 and if the respondent''s illegally prevented the petitioner from attending to the duties, respondents are bound to pay salary for the period for which the petitioner was not allowed to perform his duties.
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(b) In the decision in Shambhu Murari Sinha Vs. Project and Development India Ltd. and Another, , the Honourable Supreme Court considered as to whether voluntary retirement offer could be withdrawn and even after the withdrawal of voluntary retirement request, if a person is relieved, whether he is entitled to rejoin duty and shall be paid all his salary and other benefits during the period he was out from the service and if a person reached the age of superannuation he shall be paid full salary and allowances for the entire period he was out of service till the date of his superannuation and thereafter he shall be entitled to get all retiral benefits counting the above period as if he was in service.
The stand taken by the respondents that the petitioner is not qualified to go on voluntary retirement as he has not completed 20 years of service and therefore the Bank treated his request as one of resignation, cannot be accepted as the petitioner has not given any letter of resignation nor consent to treat his voluntary retirement request to that of resignation, at any point of time. The Honourable Supreme Court in the decision in Dr. Prabha Atri Vs. The State of U.P. and Others, considered resignation in the following manner (p.1126 of LLJ):
10.... To constitute a resignation, it must be unconditional and with an intention to operate as such. At best, as observed by this Court in the decision in P.K. Ramachandra Iyer and Others Vs. Union of India (UOI) and Others, it may amount to a threatened offer more on account of exasperation, to resign on account of a feeling of frustration born out of an idea that she was being harassed unnecessarily but not, at any rate, amounting to a resignation, actual and simple....
Hence we are of the view that the petitioner is entitled to get salary and other benefits from 1.10.1999 till the date of his reinstatement with continuity of service as the petitioner was unilaterally prevented from attending to his lawful duties by virtue of an illegal order of relieving the petitioner as if he has resigned. It is not the case of the respondents that the petitioner was gainfully employed at any time after 1.10.1999. The same is not pleaded by the respondents either in the counter affidavit or in the grounds raised in the writ appeal and not even pleaded at the time of arguments. Hence, the decision of the learned single Judge denying back wages to the petitioner stands set aside.
In the judgment in V. Mani Vs. The Secretary to Government, State of Tamil Nadu, Revenue Department : , this Court has held as follows:
The legal principles which emerge from the decisions cited supra are that the normal rule of "No work, No pay" is not applicable to cases where the employee although was willing to work, is kept away from work by the authorities for no fault of him. The principle of "No Work No Pay" cannot be accepted as a Rule of Thumb, in a case where the administration has wrongly denied his due, the Government servant/employee should be given the benefits, as per the Fundamental Rules, including monetary benefits, subject there being any change in law or some supervening factors. As held by the Division Bench in Munivenkatappa''s case, once it is found that the decision of the respondent is illegal, it has to held that the respondents have illegally prevented the employee from discharging his duty and consequently he is entitled to the emoluments for the period for which he was not allowed to perform his duties. In all these decisions, the Apex Court as well as this Hon''ble Court have held that if the government servant or employee is denied of a benefit or deprived of his legitimate right due to the fault of the department/employer, then the government servant/employee should not be made to suffer, but for specific circumstances, such as change in law or some supervening circumstances.
The ratio that emanates from all the above judgments is that when an employee is deprived of work by an illegal order, he cannot be denied the benefits on the principles of " No Work, No Pay". In the present case, when there is no requirement for approval, the services of the petitioner were terminated illegally at the instance of the second respondent. She has been made to run from pillar to post for all these years. When the termination itself is found to be illegal, the intervening period between 2000 to 2005 cannot be treated as a period of leave without pay.
In view of the finding above that the unemployment is not due to any illegality on the part of the petitioner, this Court holds that the petitioner is entitled to be approved as a Lab Assistant from 29.05.2000 onwards. The contention of the learned Government Advocate that without challenging the proceedings dated 23.06.2006, the writ petition is not maintainable cannot be accepted. The direction by this Hon''ble Court in W.P. No. 9925 of 2007 was subsequent to the above proceedings. This Court has specifically directed the first respondent to consider the claim of the petitioner on merits and in accordance with law and discarding the directions, the impugned proceedings dated 29.09.2008 have been passed. Hence, the same is liable to be set aside. The proceedings of the first respondent in No. Pa. Mu. No 103156/D1(2)04 dated 27.07.2005 and O. Mu. No 113707/D(E2)/05 dated 29.09.2008 are set aside. The service of the petitioner is approved as Lab Assistant from the date of her appointment i.e. 29.05.2000 and the petitioner is also entitled to arrears of salary and allowances. The respondents are directed to sanction and disburse the same within twelve weeks from the date of receipt of this order. In the result, the writ petition is allowed. No costs.