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Judgment
V.S. Sirpurkar, J.—This judgment will govern both the writ appeals. Writ Appeal No. 395 of 1997 emanates out of W.P.No. 4841 of
1988, which was dismissed in default on 4.3.1997. The restoration application was also dismissed on 18.10.1997 and therefore the writ appeal
was filed. Writ Petition No. 4841 of 1988 challenges the order dated 21.1.1988 passed by the first respondent. By that order, the department
resumed the excess post of Zoology teacher in the petitioner school. There is a slight history behind this writ petition.
The petitioner is a school. In the year 1985, two post graduate teachers became surplus. They were Zoology and Economics. The school had
already applied for the Commerce faculty and therefore they made an application on 10.5.1986 for converting the Zoology teacher into
Mathematics teacher and Economics teacher into Commerce teacher. Now, it is an accepted position that this application dated 10.5.1986 which
was followed by a reminder dated 22.5.1986 was never decided upon and only on 21.1.1988, an order came to be passed by the department
permitting the conversion of Economics post to that of Commerce post. However, they also passed the order to resume the post of Zoology for
which the school had claimed the conversion to Mathematics. In short, the school was to loose the Zoology teacher and was not to get the
Mathematics teacher in his place. The School therefore immediately went on to file W.P.No. 4841 of 1988, in which an injunction was granted on
25.4.1988 in favour of the school restraining the department from resuming the post of Zoology teacher and the Court also permitted to appoint a
Mathematics teacher in the place of a Zoology teacher. Subsequently, the learned Judge confirmed this order in 1993. This continued upto
4.3.1997 when the writ petition was dismissed in default.
In the meantime, however the department had passed another order on 14.4.1988, which order according to the petitioner was never informed
to the petitioner till 1997. It became known to the school only on the basis of the counter filed by the department to W.P.No. 4841 of 1988. The
school therefore filed another petition in W.P.No. 16742 of 1997 challenging this order dated 14.4.1988, by which the conversion request of the
school from Zoology to Mathematics was specifically rejected, perhaps in terms of the stand taken by the department in its order dated
21.1.1988. Be that as it may, even this writ petition was entertained by the Court and injunction was granted not to withhold the salary of the
Mathematics teacher who was appointed by the school.
AS we have already pointed out, W.P.No. 4841 of 1988 was dismissed in default on 4.3.1997 and the restoration application also failed on
18.10.1997. When W.P.No. 16742 of 1997 came up for hearing, even that was dismissed on 29.10.1997 on account of latches and also because
the order dated 21.1.1988 had become final due to the dismissal of W.P.No. 4841 of 1988. This was obviously incorrect because resumption of
post had not become final due to the pendency of W.A.No. 385 of 1998. So also, the learned single Judge clearly travelled out of the scope of
W.P.No. 16742 of 1997 as the question of appointment of Mathematics teacher was not involved in the same and the said question was in fact
pending in W.A.No. 385 of 1998 which was on that day (16.4.1999) very much alive. Again the legality of appointment of Mr. Ganeshan as a
Mathematics teacher was not in question there. Writ Appeal No. 895 of 1999 emanates from that writ petition. In W.A.No. 895 of 1999, we find
that there is already an interim direction not to withhold the salary of the Mathematics teacher Mr. Ganesan who has been appointed in the place of
the Zoology teacher which had become surplus and which was sought to be resumed by the Government. So, the ultimate result as it stands today
is that for the last 13 years the Mathematics teacher who was appointed by the school in place of the Zoology teacher who had become surplus
continues to be paid and continues to serve. Now, of course because of the dismissal of the writ petitions, the Government may revert back to its
stand that the Mathematics teacher should not have been appointed in the place of the Zoology teacher as the post of Zoology teacher stood
resumed by the Government.
Learned Counsel Mr. Paul Vasantha Kumar therefore suggests that, after 13 years if these results follow, it will be devastating not only against
the management but also against the number of Mathematics students who are presently taking education in the school and to whom Mr.
Ganeshan, the Mathematics teacher is teaching.
There is no point in going into the correctness of the order dated 21.1.1988 on the order dated 14.4.1988 in view of the time lost and also the
circumstances. The only challenge is regarding the decision of the Government resuming the Zoology post and its conversion by the school into
Mathematics post, as also the refusal on the part of the Government to allow the conversion. Rightly or wrongly, the situation continued for the last
13 years, in the sense last 13 years the Zoology post has not been resumed nor has it been allotted to any other school and because of the Court''s
orders the Mathematics teacher still continues. The Government has also, in difference to the Court''s orders, has paid the salary to the
Mathematics teacher.
We believe that there must have been annual inspections of the school. Therefore, the Government would be in a position to know as to whether
in the last 13 years (since it is paying the salary) there were enough students for justification of the appointment of Mr. Ganesan, the Mathematics
teacher. That record would always be available with the school and would be open for inspection by the Government.
Now, the question is as to what has to be done in respect of the orders. We must first express our consternation on the fact that such an
important litigation should have been allowed to be dismissed in default Mr. Paul Vasantha Kumar says that it was because of his
misunderstanding. We are not concerned with that. We are not at all happy with the fact that the learned Counsel remained absent and the matter
was dismissed in default. Be that as it may, it is a cardinal principle that the parties should not unnecessary suffer. It is only because of our concern
for the students who are taking education in the petitioner school that we feel that because of the lapse of time, the whole controversy has died its
natural death and the original issue has become irrelevant. The only question to be decided now is as to whether Mr. Ganesan should further
continue as Mathematics teacher. Rightly or wrongly the Zoology post has not been allowed to be resumed by the Court because of the injunction
passed on 25.4.1988. To test the correctness of that decision now, by which the Government sought to reject the school''s request for conversion
of the Zoology past into the Mathematics post, would be a travesty particularly on the back drop of the fact that the Mathematics teacher so
appointed is working as per the orders of the Court for the last 13 years. The only practical thing that comes to our mind now is to test as to
whether the school still has the necessary strength for justifying the appointment of Mr. Ganesan, the Mathematics teacher and whether the school
in last 13 years had the necessary strength all through for justifying that appointment. We direct that the Government shall consider these two
aspects, for which the school will make a proper representation to the second respondent within two weeks from today. If the representation is not
made within two weeks from today, the matter shall be treated to have been dismissed automatically. The second respondent shall consider it in
the light of the observations made by us in this judgment within two months from its receipt, if necessary after hearing petitioner school and decide
whether it was and is necessary to continue the Mathematics teacher. With these directions, we dispose of both the writ appeals. Consequently,
connected C.M.P.Nos. 4054 of 1998 and 8616 of 1999 are closed. No costs.