1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.03.2011 CORAM: THE HON'BLE MS. JUSTICE K. SUGUNA and THE HON'BLE MR. JUSTICE A. ARUMUGHASWAMY W.A. (MD) No.350 of 2011 and M.P. (MD) No.1 of 2011 Cardamom Planters' Association College represented by its Secretary Bodinayakanur Theni District Appellant vs. 1 G. Selva Head of Department (Tamil), Retd. Cardamom Planters' Association College Bodinayakanur Theni District 2 The Director of Collegiate Education College Road Chennai 600 006 3 The Joint Director of Collegiate Education Madurai Region Madurai 625 020 Respondents Writ Appeal filed under Clause 15 of the Letters Patent challenging the order dated 04.03.2011 passed in W.P.(MD) No.15049 of 2010. Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorarified Mandamus to call for the records of the third respondent pertaining to the resolution of the college Committee meeting dated 28.12.2010 rejecting the petitioner's application for re-payment in NO.Nil and quash the same and direct the respondents to grant re-employment to the petitioner. For appellant Mr. M. Mariappan For R1 Mr. R. Krishnamoorthy for M/s. R. Subramanian & M. Saravanan For RR 2 & 3 Mr. R. Janakiramulu Spl. Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ 2 JUDGMENT (Judgment of the Court was delivered by K. SUGUNA, J.) By consent, this writ appeal is taken up for disposal. 2. This writ appeal is filed as against the order dated 04.03.2011 passed in W.P. No.15049 of 2010. 3. Initially, the first respondent herein had filed the above said writ petition challenging the resolution of the college committee meeting dated 28.12.2010 by which her representation dated 18.10.2010 for re-employment till 31.05.2011 was rejected. The said writ petition was allowed by order dated 04.03.2011 with a direction that salary has to be paid by the Management of the college. Aggrieved by the same, the third respondent in the writ petition has preferred this writ appeal. 4. According to the learned counsel for the appellant Management/third respondent, even as per the averment in the affidavit filed in support of the writ petition, it is the stand of the first respondent/writ petitioner that she is responsible for students' agitation which reflects her character; consequently, she is not entitled for the benefit of extension of service till the end of the academic year on re-employment terms. 5. But, according to the learned counsel for the first respondent/writ petitioner, so far, the service record of the first respondent/writ petitioner has been clean and no punishment has been imposed on her and as per the relevant Government Orders, in addition to physical fitness, the character and conduct should also be good; since no punishment has been imposed on her who had served for 34 years in the said institution, it has to be held that her character and conduct are good. 6. But, it is the stand of the learned counsel for the appellant Management that instigating the students to go on strike is a serious mis-conduct which will have an impact in the functioning of the appellant college which in turn will have its impact in the students' career; hence, certainly, the first respondent/writ petitioner is not entitled for the relief sought. Yet another grievance of the appellant Management is that as per the orders of the learned Single Judge, salary for the period has to be paid only by the Management, though it is an aided college. Based on these submissions, according to the learned counsel for the appellant Management, the order of the learned Single Judge has to be set aside. 7. We have considered the above submissions of the respective learned counsel. https://hcservices.ecourts.gov.in/hcservices/ 3 8. It is not in dispute that the first respondent/writ petitioner had served as a teacher in the appellant college for a period of 34 years. It is also not in dispute that so far, no punishment has been imposed on her and no entry to that effect is also made in her Service Register. However, based on the statement made in the affidavit filed in support of the writ petition by the first respondent/writ petitioner herself, it is the stand of the appellant college that the first respondent/writ petitioner herself admits for certain happenings relating to strike in the college. If actually such an incident had taken place for which the first respondent/writ petitioner alone is responsible, nothing had prevented the appellant Management from taking appropriate action as against the first respondent/writ petitioner and to impose appropriate punishment on her. But, so far, no such steps have been taken by the appellant Management and no punishment has also been imposed on her and as on date, the service record of the first respondent/writ petitioner is also clean. Besides, the order impugned in the writ petition has been passed rejecting the first respondent/writ petitioner's request for extension of service till 31.05.2011 on re-employment terms on reaching the age of superannuation on 31.12.2010. As rightly pointed out by both the sides, for extension of service on re-employment terms, the conditions to be satisfied are physical fitness and character and conduct. According to the first respondent/writ petitioner, she had served for a period of 34 years and now, extension is sought only upto 31.05.2011. Yet another angle in which this matter has to be dealt with is the interest of students, that is to say, if a teacher who had taught the students till the middle of the academic year is changed all of a sudden, it will have an impact on the education of the students and keeping this aspect alone in mind, this matter has to be looked into. 9. However, the first respondent/writ petitioner had also filed an affidavit of undertaking today and at paragraph no.3 of the said affidavit of undertaking, it is stated as follows: "3. I undertake that I will not instigate the students to participate in any strike. Further I undertake that I will not organize the students to participate in any strike and will not create any problem in the college." 10. Under such circumstances, taking into account, the welfare of students and also taking note of the fact that it is not disputed that no punishment has been imposed on the respondent/writ petitioner, we are of the considered view that the first respondent/writ petitioner is entitled for the relief. Consequently, that portion of the order by which the first respondent/writ petitioner was given the relief by the learned Single Judge is upheld. 11. Coming to the portion of the order of the learned Single Judge directing the appellant college which is an aided https://hcservices.ecourts.gov.in/hcservices/ 4 college, to pay salary to the first respondent/writ petitioner, it is not the case of any of the parties also that in the place of the first respondent/writ petitioner, any other teacher has been appointed and salary has been paid to the concerned teacher. When the post is a sanctioned post and when the appellant college is an aided college and when salary is not paid to a staff member for the concerned post, we are of the view that only the Department has to pay salary to the first respondent/writ petitioner. Consequently, that portion of the order of the learned Single Judge by which direction was issued to the appellant college to pay salary to the first respondent/writ petitioner is modified by directing the respondent Department to pay salary to the first respondent/writ petitioner. The writ appeal is ordered accordingly. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1 The Director of Collegiate Education College Road Chennai 600 006 2 The Joint Director of Collegiate Education Madurai Region Madurai 625 020 +one cc to Special Government Pleader, Sr.No. 8341 W.A. (MD) No.350 of 2011 24.03.2011 CAD SMA/06.04.2011/4C/4P https://hcservices.ecourts.gov.in/hcservices/