IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.11.2011 CORAM: THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN W.P.No.15542 of 2011 & M.P.Nos.1 and 3 of 2011 Dr.G.Kunasekaran ... Petitioner Vs. 1. The State of Tamil Nadu, Rep. by its Principal Secretary to Government, Higher Education Department, Fort. St. George, Chennai – 600 009. 2. The Registrar, Periyar University, Salem – 636 011. ... Respondents Prayer: The Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, to direct the second respondent to issue an order of re-employment to the petitioner enabling the petitioner's extension of service in the post of Professor cum Director, Periyar Institute of Distance Education, Periyar University upto 31.05.2012 based on the first respondent's letter having Ref.No.17383/H1/2009-2 dated 29.09.2009. For Petitioner : M/s.Kavitha Deenadayalan For Respondents : Mr.P.Karthikeyan Government Advocate (Education) (R-1) Mr.P.Godson Swaminath (R-2) O R D E R The petitioner, who is working as a Professor-cum- Director in the second respondent-University, attained super- annuation at the age of 60 on 26.06.2011. As per G.O.Ms.No.350, dated 09.09.2009, if a teacher retires in the middle of the academic year, the said teacher is entitled to have the service till the end of the academic year. 2. The learned counsel for the petitioner relying upon Section 2 (i) of the Statutes of the Periyar University, which https://hcservices.ecourts.gov.in/hcservices/ speaks about the academic year and also relying upon the G.O.Ms.No.350, dated 09.09.2009 and the clarification dated 29.09.2009 submitted that the petitioner is entitled to have the service till the end of the academic year 2011-2012. 3. However, Mr.P.Godson Swaminath, learned counsel for the second respondent-University submitted that the academic year starts as per Rule 12 (2) of the Statutes of the Periyar University, which states that holiday and vacation of an academic year starts from first July of every year. He referred to the clarification, dated 29.09.2009 and submits that the clarification is in respect of the college teachers only and it is not applicable to the University teachers. 4. Mr.P.Karthikeyan, learned Government Advocate (Education) adopts the argument of the learned counsel for the second respondent-University and further contends that the petitioner cannot have any absolute right of re-employment. 5. Heard the parties and perused the records. 6. There is no dispute with regard to the attainment of super-annuation of the petitioner on 26.06.2011 on completion of 60 years. The petitioner is working as Professor-cum-Director, Periyar Institute of Distance Education, Periyar University and he is coming under the category of University teacher. The only question, which has to be decided is whether the petitioner is entitled to have service till the end of the academic year. What constitutes an academic year? Definition 2(i) of the Statutes of the Periyar University, defines academic year. " 'Academic Year' means a period of twelve months commencing from the first day of June; Provided that in the case of teachers who are granted extension of service till the end of the academic year, the academic year shall mean a period of ten months from the first day of June." When the definition of academic year in the statute speaks about the commencement of academic year on 1st June, it has to be held that the academic year starts with 1st June. Admittedly, the petitioner attained super-annuation on 26.06.2011 i.e., after commencement of the academic year on 01.06.2011. To put it in other words, the petitioner attained super-annuation in the middle of the academic year, starting from 1st June 2011. Therefore as per the definition 2(i) of the Statutes of the Periyar University, the petitioner is entitled to continue till the end of the academic year ending on 31.05.2012. 7. Clause (G) of G.O.Ms.No.350, Higher Education (H1) Department, dated 09.09.2009 reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "(G) Age of Superannuation:- The present system of retirement age shall be continued i.e.,58 years for College teachers and 60 years for University teachers. There shall be no re-employment beyond the age of superannuation." It is admitted by the learned counsel for the second respondent- University himself that the said G.O.Ms.No.350, dated 09.09.2009 was adopted by the University. The relevant portion of the resolution passed by the University reads as follows:- "Item (23) B Section To consider amendment to the Statute to effect change in the retirement age of teaching staff from 58 to 60 years of age as per the guidelines of UGC and the practice in vogue in the University of Madras. Resolved that the text prepared for amendment to Statute Page No.102, Chapter VII, 8 (1) regarding age of retirement be approved and further resolved that steps be taken to get the approval of the Chancellor. "The age of superannuation of teachers in University shall be 60 years and thereafter no extension in service be begin. The retirement of all University teachers shall take effect from the afternoon of the last day of the month in which they attain superannuation, however, the services of teachers be extended beyond the age of 60 till the end of academic year on re-employment basis." The clarification dated, 29.09.2009 clarified about the G.O.Ms.No.300, Higher Education Department, dated 08.09.2006 and G.O.Ms.No.433, Higher Education Department, dated 31.12.2007 about re-employment upto the end of the academic year, in which the date of super-anuation of the teacher falls. In that clarification, it is stated as per the aforesaid G.O, the service of the teacher has to be extended beyond the age of 60, till the end of the academic year on re-employment. When the clarification is in respect of the G.O., the clarification alone cannot be independently considered and it should be considered in view of the original G.O. Therefore, no separate meaning could be attached to the clarification stating that it is only applicable to the college teachers and not to the University teachers, especially, the original G.O. speaks about the service of college teachers as well as University teachers. Therefore, the petitioner, who attained super-annuation in the middle of the academic year [the https://hcservices.ecourts.gov.in/hcservices/ academic year starts on 01.06.2011 as per definition 2(i) of the Statutes of the Periyar University], is entitled to continue in service till 31.05.2012 i.e., the end of the academic year. 8. The learned counsel for the second respondent- University submitted that no relief cannot be granted, as there is no legal right available to the petitioner. However as found above, the petitioner has got legal right under the statute as well as under the G.O., which was adopted by the second respondent-University and she is required to be continued in service till the end of the academic year. It is contended in paragraph 13 of the counter affidavit that the petitioner is not doing any academic service and he is only a Director of Distance Education. However, the advertisement issued by the second respondent-University, dated 29.03.2005 would speak about the advertisement for recruitment of Professor-cum-Director for Periyar Institute of Distance Education, which post the petitioner is presently holding. The clause 10 of the appointment order dated 13.06.2005, speaks about the responsibility of the petitioner giving lectures to the post graduate students of the Department and other Departments of the University, where the courses are conducted on inter-disciplinary basis and therefore, it is futile on the part of the University to contend that the petitioner is not doing any academic service. Therefore, the said contention is rejected. 9. Accordingly, the writ petition is disposed of. No order as to costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. r n s To 1. The Principal Secretary to Government, State of Tamil Nadu, Higher Education Department, Fort. St. George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Registrar, Periyar University, Salem – 636 011. 1 cc t M/s. Isaac Mohanlal, Advocate, Sr. 66674 1 cc to M/s. Muthumani Doraisami, Advocate, Sr. 66519 2 ccs to M/s. V.D.eenadayalan, Advocate, Sr. 6643 1 cc to Government Pleader, Sr. 66807 W.P.No.15542 of 2011 RK (CO) kk 15/12 https://hcservices.ecourts.gov.in/hcservices/