Re-employment of teachers post-superannuation is not a vested right and must prioritize student welfare, supported by staff availability under the RTE Act.

JUDGMENT

(Judgment was delivered by N.SESHASAYEE, J.)

This appeal is directed by the respondents in W.P(MD)No.13813 of 2013 against the proceedings of the 2nd appellant, dated 28.03.2013, cancelling the order of re-employment of the first respondent in the second respondent school, which carried conviction with the learned single Judge.

2. The short facts are as below:

a) The 1st respondent herein was working as a Secondary Grade Teacher in the 2nd respondent school. She superannuated on 28.02.2013. In terms of G.O.(Ms.)No.1643 Education (H.2) Department, dated 27.10.1988, she sought re-employment till the end of the academic year i.e 31.05.2013. The 2nd respondent, being a school run by a minority Corporate Management, it permitted the same. Since the school was an aided minority school, as required, the school forwarded its proposal to the authorities concerned for their approval.

b) On 12.03.2013, the 2nd appellant had passed a conditional order and approved the proposal for re-employment of the 1st respondent, but subjected it to the conditions of staff fixation for the school for the academic year 2012-2013.

c) On 18.03.2013, the first appellant herein passed staff fixation order for the 2nd respondent school for the academic year 2012-2013 and had determined that the school had at least two surplus teachers based on the teachers-students ratio.

d) Subsequently, on 28.03.2013, the 2nd appellant issued a revised proceedings cancelling the re-employment of the 1st respondent.

e) All the same, the 1st respondent continued in service till 31.05.2013.

Subsequently, some time in August 2013, she laid the present Writ Petition challenging the proceedings of the 2nd appellant dated 28.03.2013. The appellants however did not file any counter before the learned Single Judge.

3. The learned single Judge vide order dated 18.03.2018 has taken note of couple of earlier authorities and found that when a teacher is not otherwise disqualified for re-employment, cancellation of the same is not tenable. This order of the learned single Judge is now under challenge.

4. Heard both sides. The learned Additional Government Pleader made the following submissions:

It is settled that re-employment of a teacher, who superannuates in the ●

middle of the academic year, is not intended for the benefit of the teacher concerned, but for the benefit of the students since students should not suffer without a teacher in the middle of the academic year.

The law is too firmly entrenched that no teacher has vested right to ●

seek re-employment. Set in the context of the law so settled, if the order of the 2nd appellant dated 12.03.2013 is considered, it is not an unconditional order that was passed and the 1st respondent or both the respondents have accepted the terms of re-employment.

Having accepted the same and having chosen not to challenge the ●

same, it is not given either to the 1st respondent or both the respondents to challenge the order implementing the conditions so stipulated based on an objective parameter as could be gathered from the staff fixation proceedings of the 1st appellant dated 18.03.2013.

5. Per contra, the learned counsel for the 1st respondent submitted that:

G.O.(Ms.)No.1643 dated 27.10.1988 has stipulated only two ●

conditions for re-employment of a superannuated teacher. They are: a) that the character and conduct of the teacher concerned should be satisfactory; and b) that the teacher should be physically fit to continue in service.

Indisputably, these two conditions are satisfied, and it is precisely for ●

this reason that the 2nd appellant had thought it fit to issue the order of re-employment. However, the condition which the 2nd appellant had imposed is contrary to G.O.(Ms) No.1643 dated 27.10.1988 since subjecting re-employment to staff fixation proceedings is not contemplated under the said Government order.

6. Replying the same, the learned Additional Government Pleader submitted that after the Right of Children to Free and Compulsory Education