Govt order upheld teachers retirement case. CORAM: THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN AND THE HONOURABLE MR. JUSTICE R.VIJAYAKUMAR

IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 26.10.2021 &
29.10.2021
DELIVERED ON 10.12.2021
CORAM:
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN AND
THE HONOURABLE MR. JUSTICE R.VIJAYAKUMAR
W.A.Nos.259, 381, 561, 356, 357, 364, 365, 615, 644, 503, 180, 264, 265,
274, 556 and 617 of 2020 and 2582, 2586, 2590, 79, 71, 2581, 928, 2631,
528, 2588, 2589, 153, 475, 2214, 2322, 1769, 920, 2585 and 2584 of 2021 and 3951, 4080, 4344, 4351, 4352 of 2019 and W.A.No.2749 of 2021 and
C.M.P.Nos.5982, 4531, 7963, 2653, 6055, 4381, 4409, 6024, 4411, 7428,
7917, 7066, 6072, 6327, 8521 and 8529 of 2020, 16846, 16845, 16850,
5422, 741, 16869, 590, 5462, 16847, 16843, 16871, 14718, 16880, 11037,
14011, 636, 2058, 17170 and 1884 of 2021, 28071, 25518, 24787, 28007,
28072, 28008 and 28050 of 2019 and 8036 of 2021
W.A.No.259 of 2020
1.The Director of School Educational
DPI Campus, College Road Chennai – 6
2.The Chief Educational Officer Salem, Salem District
3.The Headmaster
Municipal Boys Higher Secondary School
Ammapettai
Salem 636 003 … Appellants/Respondents
vs.
K.R.Komalam
W/o.S.Suresh Kumar … Respondent/Petitioner
Prayer: Writ Appeal filed under clause 15 of the Letters Patent to set aside the order dated 15.11.2019 in W.P.No.32038 of 2019 and allow this writ appeal.
For Appellants in all W.A’s :Mr.K.V.Sajeev Kumar Government Advocate For Respondents in W.A.Nos.259, 356, : Mr.A.Immanuel
357, 364, 365, 515, 264, 265, 274 of Advocate
2020, 2582, 2586, 2581, 475, of 2021,
For Respondent in W.A.Nos.79 of 2021 :Ms.K.Jenitha
& 4344 , 4351, 4352 of 2019 and 1769 Advocate of 2021
For Respondents in W.A.Nos.741, 528, :Mr.Dakshayani Reddy
153, 920 of 2021, 4080 of 2019 and Advocate WA.Sr.No.145980 of 2019
For Respondent in W.A.No.3951 of 2019 : Mr.G.Sankaran
Advocate
For Respondent in W.A.No.180 of 2020 :Ms.V.Vennila
Advocate
For Respondent in W.A.No.2749 of 2021 : Mr.S.Mani
Advocate

COMMON JUDGMENT
(Judgment of the Court was made by R.VIJAYAKUMAR,J.)
The respondents in the writ petitions are the
appellants herein.
2.All the writ petitioners were working as
teachers in the Government School or the Schools run by the local bodies. They attained superannuation during the middle of the academic year 2019-2020. Based on the G.O(Ms).No.1643 Education (E2) Department dated 27.10.1988, all the teachers claimed re-employment for the balance of the academic year. All the teachers have contended that they were fully qualified as per the said G.O, but their request for re-employment has been rejected by the Educational Authorities on various dates citing that there are
surplus teachers on the same subject in the districts. These orders of the Educational
Authorities were challenged before the learned Single Judge in a batch of writ petitions.
3.The learned counsel for the petitioners had contended that the petitioners were fully qualified as per G.O(Ms).No.1643, dated 27.10.1988. He further contended that they have submitted the applications along with medical fitness certificate seeking re-employment and that no disciplinary proceedings were pending against them and they have not suffered any punishment in their career and hence, the order of rejection for re-employment is not sustainable in
the eye of law.
4.The writ petitioners further contended that if they are discontinued during the middle of the academic year, it will affect the students who are facing public examination. The appellants herein filed a counter contending that there are surplus teachers on the same subject in the district and there is no necessity to grant re-employment to the teachers who have attained superannuation.
5.The learned Single Judge has referred
G.O.(Ms).No.261, School Education (Pa.Ka 5(2))
Department, dated 20.12.2018 and held that the teachers can be re-employed in the same school for the welfare of the students. Further, the learned Single Judge after referring to various decisions of this Court, allowed the writ petitions by setting aside the impugned orders and issued further
directions to the Educational Authorities to issue reemployment orders to the petitioners till the end of the academic year. This order is under challenge
in a batch of writ appeals by the Government.
6.The learned counsel appearing for the
appellants contended that even as per G.O(Ms).No.261 School Education (Pa.Ka 5(2)) Department, dated 20.12.2018, though the retired teachers would be entitled to re-employment, but subject to the condition that there are no surplus teachers. But, in the case of the writ petitioners, the impugned orders specifically pointed out that there are surplus
teachers in the said district on the same subject and hence, the services of the teachers who attained superannuation is not required. Hence, the impugned
orders were strictly in accordance with the
Government order dated 20.12.2018.
7.Per contra, the learned counsel for the respondents/writ petitioners contended that as per the Division Bench judgment of our High Court in a batch of writ petitions in W.A.No.76 of 2019 dated 31.03.2021 in Page 95, it has been held that for the purpose of fixing the staff strength, a school shall be the unit and not the joint management /corporate management. In view of the said specific order of the Division Bench, the appellants are not entitled to take the district as a unit and declare that there are surplus teachers and thereafter, reject the request of the petitioners for re-
employment.
8.The learned counsel for the appellants contended that the State Government has issued a
G.O(Ms).No.217 , School Education Department dated 20.06.2019. According to the learned counsel for the
appellants, this G.O, is specially meant for Government Schools and Schools run by the local bodies. The said G.O. relates to declaration of surplus teachers and for re-deployment of the said surplus teachers for the academic year 2019-2020. As per the said G.O, Clause-4(ii) subjectwise deployment teachers’ seniority list shall be prepared for each subject for each district. Based upon the said
seniority list, the junior most teachers shall be redeployed to required schools after calling them for counselling. Hence, according to the learned counsel for the appellants, the writ petitioners who were teachers working in the Government Schools are strictly governed by the said G.O. Without
challenging the said Government order, they are not entitled to seek quashing of the impugned order and
seek re-employment.
9.The learned counsel for the writ petitioners contended that when the Division Bench in W.A.(MD).No.76 of 2019 has categorically held that the School alone should be taken as a unit, the Government cannot take a different stand that all Schools in the district will be taken as a single unit which will be clearly in violation of the orders
of the Division Bench.
10.The learned counsel for the appellants countered the submissions by pointing out that the said judgment of the Division Bench is applicable only to private Schools governed under Tamil Nadu Private School (Regulation) Act, 2018.
11.The learned counsel for the appellants pointed out Para No.94.3, 94.7 and also 92.3 in W.A(MD).No.76 of 2019. Hence, according to the learned counsel for the appellants, the said Division Bench Judgment is applicable only to the private schools governed under the said enactment and not to the teachers working in the Government Schools. The learned counsel further contended that the teachers working in the Government Schools are governed by G.O(ID).No.217, School Education Department, dated 20.06.2019.
12.The learned counsel for the respondents contended that they are the only teachers who are taking particular subject in the School and hence, they cannot be treated as surplus teachers. Further, they contended that the Government has not come out with any particulars with regard to availability of
the subjectwise teachers in the same school.
13.The learned counsel for the appellants pointed out G.O(Ms).No.217, School Education Department, dated 20.06.2019 to the effect that only subjectwise surplus teachers in a particular district is prepared and hence, the contention of the writ petitioners that subjectwise surplus teachers’ list has not been
prepared is not factually correct.
14.Heard the learned counsel for the appellants

and the respondents.
15.Now the issues that arises for reconsideration
are as follows:
(i)whether the district should be taken as a unit for deciding the surplus teachers as far as the schools run by the Government/local bodies are
concerned?
(ii)whether the surplus should be decided based upon the subjectwise teachers or teachers taken as a
whole?
(iii)in case subjectwise surplus teachers are available in a district, whether the superannuated
teachers can claim re-employment?
(iv)whether the request for re-employment is a matter of right or based upon policy decision of the State?
16.According to the learned counsel for the writ petitioners, Division Bench has clearly held that only a School should be treated as a unit and not the joint management or corporate management as a unit for declaring surplus teachers. The State Government is not entitled to take district as a unit to decide the surplus teachers. But, we find that the said Division Bench Judgment in W.A.(MD)No.76 of 2019 relates only to the private schools governed by the Private Schools (Regulation) Act, 2018. The Division Bench has made it clear that they are dealing only with private schools in paragraph Nos.92.3 and 94.1. But, in the present case, all the writ petitioners
are working in Government School. Moreover,
G.O(Ms).No.217, School Education Department, dated
20.06.2019 has been specifically issued covering the Schools run by the Government /local bodies in order to decide the mode of declaring surplus teachers. Hence, the writ petitioners cannot take umbrage under the Division Bench judgment in W.A.(MD).No.76 of 2019
when they are specifically governed by
G.O.(Ms).No.217, School Education Department, dated 20.06.2019. The petitioners have not chosen to challenge the said G.O, when they have filed the present writ petitions after publication of the said
G.O.
17.The learned counsel for the writ petitioners further contended that in a particular school, there may by only one teacher for taking a particular subject and if the said teacher is not re-employed for the balance of the academic year, the students will be affected. Though there may be surplus, the surplus teachers may belong to different subject
which may not be any use to the students.
18.The learned counsel for the appellants pointed out that G.O.(Ms).No.217 dated 20.06.2019 clearly issued a direction to the District Level Educational Authorities to prepare a seniority list for each subject in a district to find out the surplus
teachers. Hence, according to him, surplus is decided only subjectwise and not the whole of the teachers in the district are taken into account for deciding
surplus.
19.A reading of the said G.O, will clearly support the case of the appellants. The District Level Authorities are under an obligation to prepare a seniority list of surplus teachers only subjectwise and not taking teachers as a whole. Hence, this contention of the writ petitioners that State Government has not decided the subjectwise surplus
teachers is also devoid of any merit.
20.The learned counsel for the writ petitioners further contended that they are senior most teachers and they have been wrongly declared as surplus and
denied re-employment.
21.A reading of the impugned orders will clearly indicate that this contention of the writ petitioners is clearly based upon misconception. The impugned orders clearly pointed out that there are surplus teachers for the same subject in the district and hence, the writ petitioners cannot be re-employed. More over, the writ petitioners have not been declared to be surplus teachers. Due to availability of subjectwise junior most surplus teachers in the
district, re-employment to the
superannuated senior teachers has been rejected. Moreover, G.O(Ms).No.261 School Education Department dated 20.12.2018 has been passed to decide about the mode of granting re-employment to the teachers, who attained superannuation during the middle of the academic year. In the said G.O., Clause 7(ii) will clearly indicate that when surplus teachers are available, there cannot be any re-employment. This G.O, was considered by a Division Bench of our High Court in W.A.(MD)No.107 of 2020 dated 16.03.2021. The
Division Bench has held as follows:
“8.Re-employment is not a matter of right. The fundamental issue is that, the appellants did not prevent or prohibit reemployment. Rather, the question is to the payment of salary for such re-employment. The Management or the Head of the Institution certainly knows about the situation, which might arise during the academic year. Therefore, they have to make a request either for re-deployment or re-employment, as the case may be, at the starting of the academic year. If no action is forthcoming, they must pursue their request. Therefore, if the Management is interested in the welfare of the Students, it could have approached the authorities to give aid for re-employment or to take a decision on the request made for re-deployment. They cannot either make reemployment or make a mere request and therefore, undertake the said exercise.
9. When a policy decision is taken, this Court cannot either interpret in a different way or go contrary to that. We have already held that re-employment is not a matter of right. The moment, a teacher attains the age of superannuation, the relationship between Master and Servant gets terminated. Reemployment is a fresh employment. When a permission is either sought for a Government teacher or aid is sought for an aided Institution, post axiomatic conditions attached will have to be followed. In fact, it will be appropriate, no such explanation shall be given while seeking salary or aid for the institution without due approval.
10.Much reliance has been made on the judgment of the Division Bench of this Court in Reynold Jayasekaran Vs.Director of School Education (cited supra). In our considered view, the Division Bench of this Court has taken note of the earlier orders passed by this Court. As stated by us earlier, we are dealing with the case of policy decision made. The Government Order passed in G.O(Ms).No.261, School Education (Pa.Ka5(2)) Department, dated 20.12.2018, was not available at the relevant point of time before the learned Single Judge, who passed an order dated 06.02.202, in W.P.No.2772 of 2020. The relevant clause governing has not been placed. The Government order does not say that the question of surplus teachers will have to be reckoned within the same School. For example, in a Government School if surplus teachers are available, the other Government Schools cannot be allowed to indulge in re-employment without undertaking the process of re-deployment. Similarly, if an aided private school is having number of institutions, a duty is imposed upon them to see to it that the surplus teachers available in the other institutions are transferred to the Institution, in which, the teacher attains the age of superannuation during the academic year. It is for them to adopt anyone, but they cannot seek and for both the posts. The same logic applies to the
Government School teachers as well After all, the Government is not expected to make payment for two teachers for imparting education for one set of students.”
22.Therefore, the said G.O.Ms.No.261,School Education (Pa.Ka.5(2)) Department, dated 20.12.2018 has been considered and approved by the Coordinate Bench of this Court. As stated supra, the petitioners have also not chosen to question the G.O (Ms).No.261 dated 20.12.2018. Hence, the contention of the writ petitioners that even though there are surplus
teachers, they should be re-employed, is not legally
sustainable.
23.The Coordinate Bench of this Court in W.A.No.107 of 2020 dated 16.03.2021 has categorically
held that G.O(Ms).No.261, School Education Department, dated 20.12.2018, the Government has taken a policy decision to the effect that the teachers who attained superannuation during the middle of the academic year, will not be entitled to reemployment, when there are surplus teachers. The Coordinate Bench has further held that the reemployment is not a matter of right and once the teacher attains the age of superannuation, the relationship between master and servant ceases. The Coordinate Bench has further held that the reemployment is a fresh employment and when a permission is sought to re-employ a Government teacher or a teacher of an aided institution, conditions will always be attached. We are in respectful agreement with the findings of the Coordinate Bench.
24.In view of the above discussions, the order of the learned Single Judge needs interference and we set aside the order of the learned Single Judge. Accordingly, the writ petitions are dismissed and the Writ Appeals are allowed. No costs. Consequently,
connected Miscellaneous Petitions are closed.
[S.V.N.J.,] [R.V.J.,]
10.12.2021
Index : Yes / No
Speaking Order : Yes / No msa
To
1.The Director of School Educational
DPI Campus, College Road Chennai – 6
2.The Chief Educational Officer Salem, Salem District
3.The Headmaster
Municipal Boys Higher Secondary School
Ammapettai
Salem 636 003 
S.VAIDYANATHAN,J.,
AND R.VIJAYAKUMAR,J.,
msa
Pre-Delivery Judgment in
W.A.Nos.259, 381, 561, 356, 357, 364, 365, 615, 644, 503, 180, 264, 265, 274, 556 and 617 of 2020 and 2582, 2586, 2590, 79, 71, 2581, 928, 2631, 528, 2588, 2589, 153, 475, 2214,
2322, 1769, 920, 2585 and 2584 of 2021 and 3951, 4080, 4344, 4351, 4352 of 2019 and
W.A.No.2749 of 2021
10.12.2021