Venkateswaran vs The Director of School Education and Others

P.D. Dinakaran, J.—Petitioner seeks a writ of certiorarified mandamus, calling for the records relating to the proceedings of the 4th

respondent made in proceedings in Ref. Nil, dated 18.2.1993 and to quash the same and consequently to forbear the 4th respondent from retiring

the petitioner before reaching the age of 60 years.

Admittedly, the petitioner was working in the 4th respondent School, which is governed by the Code of Regulations of Matriculations Schools

(hereinafter referred to as the Code). Clause 18(1) of Chapter Vi of the Code reads as follows:

(18(1) The members of the staff including the principal will retire at the age of 60 (sixty) as permitted by the University. If they have to retire in the

middle of the academic year, they will continue to be re-employed till the close of the academic year, i.e., 31st May. The Director is empowered

to give extension for a period of two years only. One year at a time in respect of Principals of Matriculation Schools who attain the age of 60 in

special cases provided that the service conduct and character of the Principal are extraordinarily satisfactory and the management also

recommends and he/she is physically fit to continue in service for the period to be extended.

However, the 4th respondent school, placing reliance on Clause 17 of the terms and conditions of service of the teaching staff, had terminated

the services of the petitioner by the impugned proceedings, which reads as follows:

18.02.1993.

Mr. S. Venkateswaran,

Teacher,

Vikaasa School,

Ponnagaram Compound,

Madurai 625 010.

Dear Mr. Venkateswaran,

This is to advice you that on reaching the age of superannuation on 12th April, 1993 you will retire from the service of our school with effect from

31st May, 1993 (Afternoon). We thank you for the services you have rendered to the school during your tenure here. We wish you a happy and

long retired life.

Yours sincerely,

(M.M. Joshi)

Clause 17 of the terms and conditions of the Services of the Teaching Staff of the 4th respondent school reads as follows:

The retirement age for all members of the staff shall be 55 years their service may be extended at the discretion of the Board on a year to year

basis upto the age of 58 years. No extension of service will be allowed beyond 58 years of age.

Mr. Chandru, learned Senior Counsel appearing for the petitioner, contends that since the 4th respondent school is covered by the Code, under

Clause 18 of the Code, as referred to above, the petitioner is entitled to retire only at the age of 60 years and that apart the petitioner is still entitled

to continue in service on re-employment basis till the end of the academic year, i.e., till 31st May, in which he had attained the age of

superannuation and therefore Clause 18 of the Code will prevail over Clause 17 of the terms and conditions of service of the teachers. The

impugned proceedings terminating the services of the petitioner is therefore illegal and contrary to Clause 18 of the Code. Learned Senior Counsel

also invited my attention to the fact that the petitioner continued in service as per interim orders, dated 23.4.1993, of this Court till 16.4.1998,

when he attained the age of 60 years, but he was not permitted to continue in service till the end of the academic year in which he had attained the

age of superannuation. It is, therefore, contended that unless the period till the petitioner reached the age of 60 years is regularised by judicial

order, he would not be eligible to claim his terminal benefits as per his last drawn salary nor would get his legitimate service benefits till the end of

the academic year as the petitioner is entitled to claim the salary till the end of May, 1988.

Even though the matter was passed over for four times, there is no representation on behalf of the 4th respondent when the matter was taken up

for hearing.

In my considered opinion, as rightly pointed out by learned senior counsel for the petitioner, even though the petitioner is a party to the terms

and conditions of services of the teaching staff, and Clause 17 of which provides that the retirement age for the teaching staff shall be 55 years.

Since the 4th respondent school is governed by the Code, no terms and conditions which runs counter to Clause 18 of the Code, as referred to

above, is legally binding on either partly to the agreement executed between the petitioner and the 4th respondent school. In other words, Clause

18 of the Code prevails over Clause 17 of the terms and conditions of service entered into between the petitioner and the 4th respondent school.

That apart, the Apex Court in Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, , has

held that while dealing with terms in a contract of employment as also the service rules of the company, providing for termination of services of

permanent employees, without assigning any reasons or three months notice or pay in lieu thereof on either side, the Apex Court has held that the

same are uncoscionable, arbitrary, unreasonable and opposed to public policy as the same was entered into between the parties who are not equal

in bargaining powers.

In the instant case, the petitioner being a teacher, whose employment was at the mercy of the 4th respondent, was compelled to sign the terms

and conditions of service, which is contrary to Clause 18 of the Code, which will prevail over Clause 17 of the terms and conditions of service.

The terms and conditions of the agreement entered into between the petitioner and the 4th respondent school is admittedly a contract entered into

between the parties who are not equal in bargaining power. Clause 17 of the terms and conditions of services, is arbitrary and unreasonable and

therefore void inasmuch as the same is contrary to Clause 18 of the Code. Therefore, I am of the considered view that Clause 17 is not binding

between the parties inasmuch as the parties to the contract were not equal in the bargaining power, which had resulted in great disparity between

the parties. Consequently, the services of the petitioner till he attained the age of 60 years has necessarily to be regularised by the respondents.

Further more, the right to continue in service till the end of the academic year i.e., till 31st May, is unconditional as per Clause 18(1) of the

Code and, therefore, the petitioner is also entitled to for the salary till 31.5.1998 in the light of the decision of a Division Bench of this Court, in

Sundaram v. The Secretary C.S.I. Diocese of Madras, Madras and Ors., dated 6.12.1994, the teachers are entitled to continue in service till the

end of the academic year and the Department is bound to pay the salary of the teachers whose valid right to continue in service till the end of the

academic year was denied.

In the result, even though the petitioner was permitted to continue in service till 18.4.1988 by virtue of interim orders of this Court, the

respondents are directed to regularise the services of the petitioner till 18.4.1988 and further they are directed to pay salary as per the rules till 31st

May, 1988 and pass appropriate orders in this regard within three months from the date of receipt of copy of this order.

The writ petition is ordered accordingly. No costs.