IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.1.2010 CORAM; THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.17377 of 2009, 19330 of 2009 and 19397 of 2009, M.P.No.1 of 2009 in W.P.No.17377 of 2009, M.P.No.1 of 2009 in W.P.No.19330 of 2009 and M.P.No.1 of 2009 in W.P.No.19397 of 2009 W.P.No.17377/2009 K.Subramanian ..Petitioner Vs. 1.The Director of Elementary Education College Road Nungambakkam Chennai 600 006 2.The District Elementary Education Officer Villupuram District Villupuram 3.The Assistant Elementary Educational Officer Gingee Range Gingee 604 202 Villupuram District 4.The Assistant Elementary Educational Officer Sankarapuram Union Sankarapuram Villapuram District 5.The Accountant General (A&E) Office of the Accountant General Pay and Accounts Teynampet Chennai 600 018 ..Respondents https://hcservices.ecourts.gov.in/hcservices/ W.P.No.19330/2009 R.Sundaramurthy ..Petitioner Vs. 1.The Director of Elementary Education College Road Nungambakkam Chennai 600 006 2.The District Elementary Education Officer Villupuram District Villupuram 3.The Assistant Elementary Educational Officer Gingee Range Gingee 604 202 Villupuram District 4.The Accountant General (A&E) Office of the Accountant General Pay and Accounts Teynampet Chennai 600 018 ..Respondents W.P.No.19397/2009 S.Shanthi ..Petitioner Vs. 1.The Director of Elementary Education College Road Nungambakkam Chennai 600 006 2.The District Elementary Education Officer Villupuram District Villupuram 3.The Assistant Elementary Educational Officer Gingee Range Gingee 604 202 Villupuram District ..Respondents Writ Petition No.17377/2009 is filed under Article 226 of the Constitution of India praying for issuance of a writ of Mandamus https://hcservices.ecourts.gov.in/hcservices/ directing the respondents herein to regularise the period from 16.06.1997 till 01.01.2003 by treating as service period and to pay all necessary attendant benefits including revision of salary and pension along with arrears and all other emoluments to the petitioner. Writ Petition No.19330/2009 is filed under Article 226 of the Constitution of India praying for issuance of a writ of Mandamus directing the respondents herein to regularise the period from 16.06.1997 till 01.06.2008 by treating as service period and to pay all necessary attendant benefits including revision of salary and pension along with arrears and all other emoluments to the petitioner. Writ Petition No.19397/2009 is filed under Article 226 of the Constitution of India praying for issuance of a writ of Mandamus directing the respondents herein to regularise the period from 16.06.1997 till 01.06.2008 by treating as service period and to pay all necessary attendant benefits including revision of salary and along with arrears and all other emoluments to the petitioner. for petitioners in W.P.Nos.17377/2009, 19330/2009 and 19397/2009 : Mr.J.Selvarajan for respondents in W.P.Nos.17377/2009 19330/2009 and 19397/2009 : Mrs.Dakshayani Reddy Government Advocate (for R1 to R4 in W.P.No.17377/2009, for R1 to R3 in W.P.No.19330/2009 &for R1 to R3 in W.P.No.19397/2009) Mr.V.Vijayashankar (for R5 in W.P.No.17377/2009 and for R4 in W.P.No.19330/2009) COMMON ORDER While W.P.No.17377/2009 is for a direction against the respondents to regularise the service of the petitioner for the period between 16.6.1997 and 01.1.2003 by treating the said period as period of service and pay all attendant and monetary benefits, W.P.Nos.19330/2009 and 19397/2009 are for regularising the service of the petitioners for the period from 16.6.1997 to 01.6.2008 by treating the said period as service period and for the consequential benefits as stated above. https://hcservices.ecourts.gov.in/hcservices/ 2. All the writ petitioners were appointed as Secondary Grade Assistants at the Panchayat Union Middle Schools which are aided middle schools. While the petitioner in W.P.No.17377/2009 has retired on 31.3.2003, the petitioner in W.P.No.19330/2009 has retired from service on 31.5.2009 and the petitioner in W.P.No.19397/2009 is yet to retire. When the Elementary School in which the petitioners were appointed was closed due to certain local problems and consequently the said school was not functioning from 16.6.1997, it is stated that the petitioners were not paid salary from June 1997. On the representations made by the petitioners to the first and second respondents, the Government passed G.O.Ms.No.509, Education Department, dated 17.12.1997 granting permission to Panchayat to open new Panchayat Union schools pursuant to which Panchayat Union School was started at Chittampoondi with effect from 02.1.1998. It is the case of the petitioners that as per the proceedings of the first respondent dated 08.12.1997 the petitioners have submitted their grievance by their letter dated 29.12.1997 to work in any place in Villupuram Educational District. It is the case of the petitioners that as per the Tamil Nadu Recognised Private Schools (Regulation)Act, 1973 in case of closure of private aided schools, the teachers working in the said schools should have been absorbed either in the private schools or in the Panchayat Union Schools. In spite of the starting of Panchayat Union School as per the Government Order and in spite of the willingness given by the petitioners, the petitioners were not absorbed on the basis that there was no vacancy which has resulted in the filing of the W.P.No.1160/1998 for a direction against the respondents to absorb the petitioners in the newly opened Panchayat Union School at Chittampoondi. While allowing the said writ petition this Court by order dated 28.7.2000 has directed the respondents to absorb the petitioners in the newly opened Panchayat Union School at Chittampoondi with service protection and also directed to post the teachers who were appointed in the interregnum period in the newly opened Panchayat Union School, Chittampoondi to some other place without causing much inconvenience. The first and second respondents filed W.A.No.1827/2000 and the Division Bench by order dated 02.4.2008 dismissed the Writ Appeal confirming the order passed in the Writ Petition. In the meantime, the petitioner in W.P.No.17377/2009 who was the third respondent in the Writ Appeal filed by Respondents 1 and 2 reached the age of superannuation and the Division Bench has held that he is entitled for the benefits accrued from out of the service protection along with the other petitioners. 3. After the disposal of the Writ Appeal, the petitioner in W.P.No.19397/2009 was appointed by the second respondent and posted in the Panchayat Union Middle School, Chittampoondi, in the proceedings dated 23.5.2008. In respect of petitioner in https://hcservices.ecourts.gov.in/hcservices/ W.P.No.17377/2009, even the representation was made as early as on 10.11.2008, the second respondent having received the representation has not passed any order. 4. Therefore, the writ petitions are filed for the relief stated above. 5. The writ petitioner in W.P.No.19330/2009 who was the first respondent in the Writ Appeal and who was permitted to join in the Panchayat Union Middle School, Chittampoondi has retired on superannuation on 31.5.2009. Likewise, the petitioner in W.P.No.19397/2009 was also permitted to join the Panchayat Union Middle School, Chittampoondi in the proceedings of the third respondent dated 28.5.2006 and accordingly she has joined on 2.6.2008 in which post she is continuing. The service of the writ petitioner in W.P.No.17377/2009 for the period from 16.6.1997 to 1.1.2003 was not taken into consideration by the 4th respondent and ultimately the third respondent has not regularised the services during the said period and the service rendered during the said period has not been taken into consideration for the pensionary benefits. In respect of the other writ petitioners when they have made representations for regularisation of the said period from 16.6.1997 to 01.6.2008 the same has not been considered which has resulted in the filing of the abovesaid writ petitions. The writ petitions are filed mainly on the ground that the conduct of the respondents are opposed to and in violation of the Division Bench Judgment. 6. In the counter affidavit in W.P.No.19330/2009 filed by the first respondent, Director of Elementary Education, while it is admitted that in the year 1997 due to local problems the aided school in which the said petitioner was working was closed and as per the Government Order in G.O.Ms.No.509, Education Department, dated 17.12.1997, an union school was opened, it is stated that the petitioners have submitted representation of their willingness to work in any place in the district and it was accordingly, the petitioner in W.P.No.19330/2009 was transferred from Chittampoondi to Sankarapuram Range and employed in aided middle school. It is stated that the petitioner's service was regularised by the Assistant Elementary Education Officer, Gingee Range, Villupuram for the period between 16.6.1997 and 1.6.2008 as leave on loss of pay and the same is stated to have been accepted by the petitioner. As the pension proposal containing the regularisation of the said period was signed by the said petitioner, the said decision to consider the said period as leave on loss of pay was taken since the petitioner was not working in any of the Government School in any period and it is stated to be in accordance with law. It is stated that in respect of the petitioner in W.P.No.19330/2009 the pensionary benefits have been received and after receiving the https://hcservices.ecourts.gov.in/hcservices/ pensionary benefits the petitioner has approached this Court. 7. Before adverting to the contentions and pleadings it is relevant to point out that all these petitioners have earlier filed W.P.No.1160/1998 for a direction against the District Elementary Education Officer, Villupuram and the Director of Elementary Education, College Road, Chennai to absorb them in the newly opened Panchayat Union school at Chittampoondi. In the counter affidavit filed by the respondents in the said Writ Petition it is stated that when the aided elementary school was closed due to certain misunderstanding, as per the Government Order in G.O.Ms.NO.509, Education Department, dated 17.12.1997 a new Panchayat School was opened in the village, namely Chittampoondi on 02.1.1998. However, in the Government Order by which the said school was started there was no reference about the absorption of the petitioners in the newly started schools and since there was no vacancy in any private school, they were not accommodated. Considering the fact that the petitioners were not responsible for the closing of the earlier school and even after starting of the new school as per the Government Order the respondent department has been transferring various teachers into the said school and rejecting the stand taken by the respondents in the counter affidavit while such opportunity was not given to the petitioners, the writ petition stood allowed with the following direction: "7.In the light of what is stated above, I am inclined to accept the case of the petitioners and there shall be a direction to the respondents to absorb the petitioners in the newly opened Panchayat Union School at Chittampoondi with service protection and pass necessary orders within a period of two weeks from the date of receipt of a copy of this order. The respondents are also further directed to post the teachers who were appointed in the interregnum period in the newly opened Panchayat Union School at Chittampoondi to some other place without causing much inconvenience to them. The writ petition is allowed to the extend mentioned above. No costs." In the appeal filed by the Department in W.A.No.1827/2000 the Division Bench in the judgment dated 02.4.2008 taking note of the fact that the petitioners were willing to work anywhere in the same educational district and in spite of the interim order passed by this Court no steps were taken by the department in posting the petitioners, has passed the following judgment: "4. In consideration of the above said facts and circumstances of the case, as the three teachers, who are the respondents herein, were working in the above said closed School for a long time and they were willing to work in the newly opened school and accordingly made a representation to https://hcservices.ecourts.gov.in/hcservices/ absorb them, without considering their representations merely on the basis of the statement of their willingness to work anywhere in the same district and contrary to the interim orders passed by this Court, the posts were filled up, the learned single Judge considered it appropriate that it is in the interest of justice to allow the writ petition filed by the respondents herein, as against which the writ appeal has been preferred. 5. From the above discussions, we are not able to see any infirmity or inconsistency in the order passed by the learned single Judge so as to interfere with the same and accordingly, the writ appeal fails and the same is dismissed. Considering the fact that the third respondent attained the age of superannuation, the appellants herein are directed to post respondents 1 and 2 herein in the Chitampoondi Panchayat Union School from the next academic year. Till such time, the appellants are directed to utilise the services of respondents 1 and 2 in any other School. As the third respondent reached the age of superannuation, he is entitled for the benefits accrued from out of his service protection along with the respondents 1 and 2, as has been ordered by the learned single Judge. 6.The writ appeal is dismissed, confirming the order of the learned single of this Court dated 28.7.2000. No costs. Consequently, connected miscellaneous petitions are closed." Thereafter, it was only by the proceedings of the second respondent dated 23.5.2008 the writ petitioners in W.P.No.19330/2008 and W.P.No.19397/2009 were posted in the Panchayat Union Middle School, Chittampoondi directing them to join from 02.06.2008 and the said writ petitioners have made representations to regularise the period from 16.6.1997 to 01.6.2008 as period of service. 8. Inasmuch as the Division Bench in categoric terms has held that the petitioners are entitled for the service protection confirming the learned single Judge's order dated 28.7.2000 directing the respondents to absorb the petitioners in the newly opened Panchayat school and the Division Bench judgment having become final and in spite of the same the said two petitioners were absorbed only with effect from 02.6.2008 without any fault on the part of the petitioners, certainly, the petitioners are entitled for the claim made by them in these writ petitions. 9. In respect of the petitioner in W.P.No.17377/2009 the respondents shall work out the revised pensionary and monetary benefits due to him and pay the same within a period of 12(twelve) weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 10. Accordingly, these Writ Petitions stand allowed with the direction as prayed for. No costs. Consequently, connected pending Miscellaneous Petitions are disposed of. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sal To 1.The Director of Elementary Education College Road,Nungambakkam, Chennai 600 006 2.The District Elementary Education Officer Villupuram District,Villupuram 3.The Assistant Elementary Educational Officer Gingee Range,Gingee 604 202 Villupuram District 4.The Assistant Elementary Educational Officer Sankarapuram Union,Sankarapuram Villapuram District 5.The Accountant General (A&E) Office of the Accountant General Pay and Accounts,Teynampet Chennai 600 018 +3cc to Mr.J.Selvarajan, Advocate Sr 5380 +1cc to Govt. Pleader Sr 4989 NSM(CO) km/4.2. W.P.Nos.17377/2009, 19330/2009&19397/2009, M.P.No.1/2009 in W.P.No.17377/2009, M.P.No.1/2009 in W.P.No.19330/2009 and M.P.No.1/2009 in W.P.No.19397/2009 https://hcservices.ecourts.gov.in/hcservices/