(Prayer: Writ Appeal is filed under Clause 15 of Letters Patent, to set aside the order of this Honble Court dated 20.12.2022 and made in the Writ Petition in WP No.26368 of 2010, in respect of the school management, by allowing the writ appeal.)

Krishnaswamy Govindarajan, J.

The unsuccessful 4th respondent in W.P. No. 26368 of 2010 is the appellant herein.

2. For the sake of convenience, the parties will be referred to as per their rank in the Writ Petition.

3. The writ petition was filed for the issuance of a Writ of Certiorarified Mandamus to quash the order passed by the 2nd respondent dated 13.10.2009 and to direct the respondents to grant back wages and continuity in service to the petitioner for the post of Physical Education Teacher in the 4th respondent School with effect from 16.01.1981 with all consequential benefit thereof in the light of G.O.Ms.No.251, Education dept. dated 26.02.1988 and order in WA.No.1407/1998 dated 23.10.1998.

4. It is the case of the writ petitioner that he possessed a lower grade training qualification in Physical Education and was appointed as a Physical Education Teacher in the 4th respondent School with effect from 16.01.1981, in a vacancy caused by the resignation of one Mr. Edmond Roy. His appointment was approved by proceedings dated 28.01.1981, and he was granted regular annual increments and made permanent in the post with effect from 01.01.1983. The second respondent conducted an audit of all schools within his jurisdiction and sent a report. As per the report of the second respondent dated 20.05.1984, the third respondent stopped the payment of salary to the petitioner from July 1984. The petitioner was allowed to work without salary until 1985, after which he was forcibly relieved from the post without any notice and without being afforded an opportunity of being heard.

5. It is the further case of the petitioner that as per G.O. No. 1440, Education Department, dated 14.09.1987, all appointments of Physical Education Teachers with lower grade qualifications were approved and regularized. However, the petitioner service was illegally stopped, and another person was appointed in his place on 17.07.1985. The petitioner filed W.P. No. 5246 of 1990. Because the petitioner lacked financial resources, he approached the legal aid department, which caused a delay in filing the writ petition. The writ petition was allowed on 11.09.1998, against which the Management filed W.A. No. 1407 of 1998. The Department did not file any appeal against the order in W.P. No. 5246 of 1990. The petitioner was reinstated with effect from 28.06.1999, but his back wages were denied. Hence, the petitioner filed W.P. No. 5313 of 2001, which was dismissed on 03.03.2005. Against that dismissal, the petitioner filed W.A. No. 942 of 2005. In that writ appeal, a direction was issued to the petitioner to give a representation to the respondents. Based on that order, the petitioner sent his representation, which was rejected on 13.10.2009. Challenging the rejection order, the petitioner filed the present writ petition.

6. The Department submitted its objections in the writ petition, pleading that the Chief Educational Officer (CEO) had raised objections about the appointment and that, consequently, the petitioner was terminated from service in the year 1985. Only after a period of five years the petitioner approached this Court in W.P. No. 5246 of 1990. During the intervening period, the petitioner had worked in another private school, this fact was brought out in the counter-affidavit filed by the second respondent in Contempt Petition No. 836 of 1999. The Department also pleaded that since he was employed in another school, the questions of continuity of service and back wages did not arise.

7. The Writ Court, in para 10, concluded as follows:

                          ‘’10. For the reasons stated above, the Writ Petition is allowed. The impugned order passed by the second respondent made in Na.Ka.No.7080/A4/09 dated 13.10.2009 is hereby quashed and the respondents are directed to grant backwages and continuity in service to the petitioner for the post of Physical Education Teacher in the 4th respondent School with effect from 16.01.1981 with all consequential benefits thereof. It is made clear that the petitioner is entitled for arrears of backwages from 18.03.1985 to 27.06.1999. The respondents are directed to release all monetary benefits to the legal heirs of the deceased employee/1st petitioner as per rules. No costs.’’

8. Challenging that order, the 4th respondent School approached this Court by way of the present Writ Appeal.

9. We have heard the counsel for the appellant and the learned counsel for the respondent/writ petitioner.

10. There is no dispute with respect to the facts of the case.

11. In W.P. No. 5246 of 1990, filed by the writ petitioner, this Court passed an order on 11.09.1998. The Writ Court ordered as follows:

                          " This writ petition is filed calling for records from the 2nd respondent pertaining to the order made in his proceedings in R.C. No. 32515/A6/83 dated 20.05.1984, to quash the said order passed therein by issuing a writ of certiorarified mandamus directing the respondents to reinstate the petitioner in the 4th respondent's school with all attendant benefits.

                          2. When the matter was taken up for final hearing, it was brought to the notice of this Court by the counsel appearing for the petitioner that the management school relieved the petitioner on 18.03.1985 and an endorsement was made to that effect in the Service Register of the petitioner. The endorsement shows that no prior notice was issued to the petitioner before officially relieving him.

                          3. The case of the respondents is that the petitioner is not qualified for the post and hence he was relieved. But from the endorsement made in the Service Register of the petitioner, it is revealed that without any notice to the petitioner, he has been relieved. Hence, it can be said that the management has violated the principles of natural justice.

                          4. In the circumstances, the endorsement made in the Service Register of the petitioner relieving him on 18.03.1985 is set aside as violative of the principles of natural justice, and the writ petition is allowed as prayed for."

12. Subsequent to the above order, the Management filed W.A. No. 1407 of 1998. The Division Bench disposed of the appeal, and the relevant paragraphs are extracted hereunder:

                          "5. However, keeping in view that another person has been appointed in the place of the writ petitioner, and almost 13 years have rolled by now since the new man was appointed in the place of the writ petitioner, the interest of justice will be squarely met if an opportunity of hearing is given by the Chief Educational Officer, Virudhunagar, the third respondent herein, regarding the withdrawal of the approval. If an opportunity of hearing is given and thereafter the authority comes to the conclusion that the petitioner was eligible, he will be reinstated with back wages, which shall be borne by the Education Department. The Education Department will be at liberty to pass appropriate orders after affording necessary opportunity to the writ petitioner and, keeping in view the totality of the facts and circumstances of the case to meet the ends of justice, the Department is directed to decide the case within three months from the date of communication of this order. The order that may be passed by the third respondent, the Chief Educational Officer, if adverse, could be challenged by the writ petitioner in accordance with law. Till then, the reinstatement of the writ petitioner is stayed. In other respects, the order passed by the learned Single Judge is confirmed.

                          6. The writ petitioner is at liberty to raise all objections available to him legally and factually before the third respondent or in any appeal which he may prefer thereafter."

13. Immediately thereafter, the petitioner sent a representation on 18.01.1999 enclosing the orders passed in the Writ Appeal and Writ Petition. Subsequently, Contempt Petition No. 836 of 1999 was filed by the writ petitioner, and this Court passed the following order on 21.07.2000:

                          "2. Mr. Isaac Mohanlal, learned counsel for the first respondent, reports that the applicant has already been reinstated by letter dated 15.7.2000 and a cheque for Rs. 75,000/- has also been sent by registered post. Learned counsel for the applicant, however, reports that the applicant has already received the order of appointment and reinstatement, and is to join duty today.

                          3. In view of the subsequent development, though there is some delay and the order in the said writ appeal is capable of two meanings, we accept the explanation offered by the contemnors and drop the contempt proceedings."

14. Pursuant to the Contempt Petition, an order was issued by the 4th respondent dated 15.07.2000, stating: "In continuation of our order referred to above, we inform you that you are reinstated in service w.e.f. 28.06.1999, and the management will pay the salary due to you from the said date, i.e., 28.06.1999 till 15.07.2000; separate orders will be issued sanctioning the salary for the above-said period."

15. There was another round of litigation by the petitioner with the Department which culminated in W.A. No. 942 of 2005. The Division Bench stated in paragraph 8 of that order:

                          "8. Learned counsel for the appellant submitted that the poor teacher has been suffering for no fault of his and that the earlier Division Bench had already considered the issue and given directions, leaving nothing further to be done by the Department, particularly since the Department had not filed any appeal against the order of the Division Bench. The order passed by the Division Bench on 23.10.1998 had not cast any liability on the part of the Department, since discretion was given to the Chief Educational Officer to pass appropriate orders considering the totality of the facts and circumstances of the case to meet the ends of justice. Perhaps that is why the authorities had not filed an appeal. If the Division Bench had earlier been of the opinion that the petitioner deserved to be reinstated with back wages and continuity of service, there was nothing to stop the Division Bench from doing so straight away; however, it left the matter to the Chief Educational Officer to decide the issue after giving an opportunity to the writ petitioner. In those circumstances, there was hardly any occasion for the Chief Educational Officer to file an appeal against the order. So the learned Single Judge rightly declined to issue a writ of mandamus straight away when the Chief Educational Officer had not considered the issue and passed orders. We see no merit in the writ appeal. In fact, the learned Single Judge gave the petitioner the liberty to make a representation to the District Educational Officer. It is open to the petitioner to give a fresh representation, if so advised. The District Educational Officer will deal with it in the light of the earlier order as well as the order passed by the learned Single Judge. The Chief Educational Officer is directed to consider the representation of the appellant within a period of two months from the date of receipt of a copy of this order and pass orders in accordance with law and as per the provisions of the Act. Before passing any such order, the school may be heard."

16. Considering all these aspects, the authority passed an order dated 13.10.2009 (impugned in W.P. No. 26368 of 2010), rejecting the request of the writ petitioner for back wages from 18.03.1985 to 27.06.1999 on the ground that he was working in another school, namely, Srivilliputhur Lions Matriculation Higher Secondary School, Virudhunagar District, and also rejecting the claim for continuity of service.

17. In the order impugned in the present Writ Appeal, the Writ Court held in paragraph 7 that:

                          "7. Perusal of the order dated 11.09.1998 passed in W.P. No. 5245 of 1990 shows that this Court quashed the order of the C.E.O. and directed the respondents to reinstate the petitioner in service with back wages and all other attendant benefits. In the said order, this Court also set aside the endorsement made in the Service Register of the petitioner relieving him on 18.03.1985, against which the School Management filed an appeal in W.A. No. 1407 of 1998. By order dated 23.10.1998, the Division Bench observed that since another person had been appointed in the place of the petitioner and had been working for several years, the Education Department was given liberty to pass orders after affording necessary opportunity to the writ petitioner. In the said order, the Division Bench also observed that the petitioner/first respondent had satisfactorily explained the delay and, though there was inordinate delay, on the facts and circumstances of the case, the writ petition could not be thrown out for laches. Therefore, now the learned Special Government Pleader cannot raise the same ground of delay as it has already been answered by the Division Bench."

18. The original order terminating the service of the petitioner dated 13.10.2009 was set aside by this Court after several rounds of litigation. The termination order of the petitioner was set aside and attained finality. The respondent denied back wages to the writ petitioner solely on the ground that in between the period of termination and reinstatement, he was engaged in yet another school.

19. In our view, denying the back wages is not legally sustainable. However, with respect to continuity of service, in view of the dictum laid down by the Apex Court in the case of Gurpreet Singh vs. State of Punjab and others reported in (2002) 9 SCC 492, the three-Member Bench of the Court held as follows:

                          ‘’3. Having heard the learned counsel for the parties and on examining the materials on record, we fail to understand how the continuity of service could be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment, but it is a case of reinstatement. That being the position, direction of the High Court that the plaintiff will not get continuity of service cannot be sustained and we set aside the part of the impugned order. So far as the arrears of salary is concerned, we see no infirmity with the direction which was given by the lower appellate court taking into account the facts and circumstances including the fact that the suit was filed after a considerable length of time. That part of the decree denying the arrears of salary stands affirmed and this appeal stands allowed in part to the extent indicated above’’.

20. In view of the said proposition, the present case is squarely applicable to the facts of the case. Since the termination order issued against the petitioner was set aside on the ground of illegality, the petitioner is entitled to continuity of service.

21. In view of the discussions made above, we are inclined to modify the order of the Writ Court. Hence, the writ petitioner is entitled to continuity of service. Since the petitioner was engaged in another school, the petitioner is not entitled to any back wages.

With the above observation, the Writ Appeal is partly allowed. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.