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Madras High Court · body

2009 DIGILAW 1569 (MAD)

A. K. Ramamurthy v. Director of School Education

2009-04-30

S.MANIKUMAR

body2009
Judgment :- The petitioner has sought for a Writ of Mandamus, directing the respondents 1 to 3 not to insist them to pay the alleged earned leave surrender benefits to the 4th respondent against the G.O.Ms.No.1089 P&A.R, dated 01.11.1980 and for further orders. 2. The petitioner School is a linguistic minority school and it is aided by Government. The 4th respondent was the Head Master of the School. On account of disciplinary proceedings, his services were terminated 01.01.1978. Challenging the same, he filed Writ Petition before this Court. As per the order of the Hon’ble Supreme Court, dated 14.10.1988, he was reinstated in service as Head Master. The fourth respondent filed a Writ Petition before this Court for arrears of salary and for other benefits for the period from 04.03.1977 to 13.10.1988 and for the period from 14.10.1988 to 31.05.1989. Since there was a compromise during the pendency of the Writ Appeal, a sum of Rs.2,20,540/- was paid as full quit to the fourth respondent. The fourth respondent has received his pension benefits also. 3. While the matter stood thus, he made a claim for arrears of earned leave salary for the period from 04.03.1977 to 13.10.1988. The Chief Educational Officer, Madurai the second respondent herein, permitted the management to fill up the vacancy of Headmaster, due to the retirement of the fourth respondent. The petitioner has further submitted that as per G.O.Ms.No.1089 P&A.R, dated 01.11.1980, a Government servant who is compulsorily retired or removed or dismissed and reinstated in service based on Court judgment may be allowed to surrender leave for the old period provided an application is made within one month from the date of receipt of order of reinstatement. The petitioner was reinstated in service on 14.10.1988, but he had applied for earned leave surrender benefits only on 22.06.1992 and hence, the claim for earned leave and surrender leave is beyond the time limit prescribed by the Government and therefore, he is not entitled to the benefits. 4. The petitioner has further submitted that right from 1984, the respondents 1 to 3 have been instructing the management to make payment of earned leave surrender benefits to the fourth respondent. Suitable replies were given to them stating that the fourth respondent is not entitled to the said benefits. 4. The petitioner has further submitted that right from 1984, the respondents 1 to 3 have been instructing the management to make payment of earned leave surrender benefits to the fourth respondent. Suitable replies were given to them stating that the fourth respondent is not entitled to the said benefits. Earlier, the third respondent ordered for direct payment as a measure of punishment against the management, for non-compliance of the directions to make earned leave surrender benefits to the 4th respondent. Hence, the management preferred W.P.No.3830 of 1999 before this Court to quash the order of the third respondent, dated 26.02.1999. The said Writ Petition became infructuous, since the third respondent had withdrawn the order of direct payment. Even after withdrawing the order of direct payment, the respondents 1 to 3 again sent communication to the management to make earned leave surrender benefits to the fourth respondent. The management has sent a suitable reply. By order, dated 30.07.2008, the third respondent ordered to make the payment to the fourth respondent without any delay and report the same within 24 hours. Again, by letter, dated 30.11.2008, the third respondent has informed the management that failure to make payment as claimed by the fourth respondent proposals would be forwarded to the Director of School Education, Madras the first respondent, for immediate and suitable action against the management. In these circumstances, the petitioner has preferred the Writ Petition for the relief as stated supra. 5. The District Educational Officer, Madurai, the third respondent has filed a counter affidavit, wherein he has stated that the school had terminated the fourth respondent with effect from 04.03.1977. Thereafter, he was reinstated in service as Headmaster on 14.10.1988, as per the order of the Director of School Education, Chennai. The management had settled all the back wages due to the fourth respondent. However, the management did not pay the earned leave surrender benefits from 04.03.1977 to 13.10.1988. Therefore, by order dated, 22.10.1993, the Director of School Education, the first respondent herein, directed the school to pay earned leave surrender benefits to the fourth respondent, but the management did not make any attempt to implement the order. Though similar directions were given to the school to pay earned leave surrender benefits to the fourth respondent for the above-said period, this writ petition has been filed, nearly after 15 years, without implementing the order of the first respondent. 6. Though similar directions were given to the school to pay earned leave surrender benefits to the fourth respondent for the above-said period, this writ petition has been filed, nearly after 15 years, without implementing the order of the first respondent. 6. The third respondent has further submitted that since backwages from termination were already paid by the management of the School, encashment of earned leave benefits should also be paid by the School. The respondent has further submitted that management has terminated the fourth respondent on their own without any prior approval from the department. Since salary for the earned leave surrender benefits was not paid by the management, by order dated, 22.10.1993, the first respondent directed the management of the school to pay earned leave surrender benefits from their own funds for the period from 04.03.1977 to 13.10.1988. 7. It is further submitted that the department need not pay the surrender leave benefits to the fourth respondent, as it is the sole responsibility of the School. Further, the instructions contained in G.O.Ms.No.1089 P&A.R, dated 01.11.1980, which provides for encashment of earned leave is applicable only to Government servants serving in Government Department. Payment of grant is made to minority Schools under the provisions of grant-in-aid code of the education department. It is further submitted that encashment of earned leave salary is paid only after the retirement of the incumbent. Therefore, the government servant has to make necessary application within the period stipulated in the Government order. As the management of the School had already paid the back wages for the above said period, they have to disburse the encashment of earned leave to the fourth respondent on the date of retirement. According to the 3rdrespondent, earned leave credit in the leave account, would not lapse and the incumbent can accumulate earned leave upto 240 days at the time of retirement. 8. As a matter of fact, the fourth respondent wrote a letter to the petitioner School on 21.01.1990 to pay him all retirement benefits, immediately after SLP.No.5727 to 5728 filed by the management in the Supreme Court against the order of this Court dated 28.03.1989 was dismissed by the Apex Court on 15.01.1990. The petitioner school was directed to pay earned leave surrender benefits due to the fourth respondent. The petitioner school was directed to pay earned leave surrender benefits due to the fourth respondent. In spite of the directions of the first respondent to make earned leave surrender benefits to the fourth respondent, the matter has been protracted by the petitioner School for nearly 15 years. 9. As the School refused to comply with the directions of the department and for other irregularities, the third respondent, by order dated, 26.02.1999, ordered for direct payment. Challenging the same, the management preferred W.P.No.3830 of 1999. In the mean while, direct payment order was withdrawn on 08.09.2000, by the third respondent, on the basis of the undertaking given by the petitioner School that the issue relating to payment of surrender of earned leave salary would be settled by placing the matter before the Executive Council of the Sourashtra School. After the said undertaking given by the petitioner, Writ Petition filed by direct payment became infructuous. After giving the undertaking, on 06.07.1994, the petitioner School sought for payment of encahsment of earned leave salary to the fourth respondent, from Government fund. Considering the facts and circumstances of the case, the Director of School Education, Madras, the first respondent passed an order, dated 12.12.1994, stating that encashment of earned leave should be paid by the management from their own funds, as backwages for the period from 04.03.1977 to 13.10.1988 was already paid by them. 10. It is further submitted that the petitioner School is an aided educational institution and getting grant from State fund. Therefore, it is mandatory on the part of the management to comply with the directions of the first respondent, dated 22.10.1993 and 12.12.1994, regarding payment of earned leave salary to the fourth respondent. Even after 15 years, no attempt has been made by the petitioner school to implement the order of the education department. For the above said-reasons, educational authorities have prayed for dismissal of the Writ Petition. 11. Mr. T.N. Vidhyanandam, party-in-person, 4th respondent in his counter affidavit has submitted that he joined the petitioner school as Trained Graduate Teacher in 1953. He was promoted as Headmaster in 1973. The management of the School suspended him on 04.03.1977 and he was terminated from service on 01.01.1978. The fourth respondent appealed to the Director of School Education, Chennai against termination on 04.01.1978, under Clause 10 of the MER agreement. He was promoted as Headmaster in 1973. The management of the School suspended him on 04.03.1977 and he was terminated from service on 01.01.1978. The fourth respondent appealed to the Director of School Education, Chennai against termination on 04.01.1978, under Clause 10 of the MER agreement. On 31.08.1978, the Government instructed the Director of School Education, Chennai to take up the appeal and decide on merits. The management filed W.P.No.436 of 1980 against the notice sent by the first respondent and the same was dismissed on 11.02.1980, with a direction to the educational authorities to decide the statutory appeal taking into account the decision of the Supreme Court made in All Saints School's case. The appeal to the Director of School Education, Chennai was rejected as not maintainable on 05.03.1980 and the Writ Petition preferred by the fourth respondent was also dismissed on 25.07.1986. The fourth respondent filed SLP.No.9833 of 1986 in the Hon’ble Supreme Court which was ordered to be tagged along with State appeals C.A.No.1521-26 and 3042-91/79 filed by the State of Tamil Nadu, against the order of this Court, dated 17.12.1975. On 22.07.1987, the SLP filed by the 4th respondent was heard and the Hon’ble Supreme Court converted the SLP into C.A.1468 of 1987. The Apex Court directed the Director of School Education, Chennai, to entertain his appeal and decide the same on merits, within a period of three months and the school undertook not to raise the issue of minority status. In September, 1987, the Director of School Education, Chennai nominated the Joint Director of School Education, Chennai for a personal enquiry. The management of the School filed W.P.No.9258 of 1987 against JDSE’s nomination, but this Writ Petition was dismissed. On 19.10.1987, the Director of School Education, Chennai allowed the appeal and ordered for reinstatement, with all back wages to be paid by the management, without claiming any Government grant. Challenging the said order, the management filed W.P.No.11618 of 1987 before this Court. The stay petition was dismissed. The management filed W.A.No.2278 of 1987 against the order made in W.P.No.9258 of 1987, suppressing the fact that the Director of School Education had already issued an order, dated 19.10.1987, for reinstatement and payment of back wages. This Court dismissed W.A.No.2278 of 1987 on 05.04.1988 with costs of Rs.1,000/-. The stay petition was dismissed. The management filed W.A.No.2278 of 1987 against the order made in W.P.No.9258 of 1987, suppressing the fact that the Director of School Education had already issued an order, dated 19.10.1987, for reinstatement and payment of back wages. This Court dismissed W.A.No.2278 of 1987 on 05.04.1988 with costs of Rs.1,000/-. As there was no stay against the order of the Director of School Education, Chennai dated 19.10.1987, the fourth respondent filed W.P.No.4691 of 1988 before this Court. By order dated, 30.10.1988, this Court ordered reinstatement, but directed the fourth respondent to pursue his remedy for back wages in the labour Court. The management filed W.A.No.1380 of 1988 against this order. On 10.10.1988, the Division Bench ordered the management to pay Rs.50,000/-to the fourth respondent on or before 17.10.1988, for granting stay, for which the management insisted the fourth respondent to join duty on 14.10.1988. However, backwages were not been paid. The 4th respondent filed W.A.No.1443 of 1988 for payment of back wages. By order dated, 28.03.1989, W.A.No.1380 of 1988 preferred by the management and W.A.No.1443 of 1988 preferred by the fourth respondent were disposed of. In spite of consent given by the petitioner School to pay backwages, they have not paid a single pie to the 4th respondent and prudently preferred SLPs.5727 and 5728 of 1989 before the Hon’ble Supreme Court against the order dated 28.03.1989 made in the writ appeals. The Apex Court, by order dated 13.07.1989, directed the School to deposit Rs.1,10,000/- and further directed early disposal of W.P.No.11618 of 1987 filed by the management. The said Writ Petition was dismissed on 17.11.1989 by this Court. Against which the management preferred SLP before the Supreme Court and the same was dismissed on 15.01.1990. 12. The fourth respondent has further submitted that after the disposal of SLP, he made a request on 21.01.1990, to the management for backwages and retirement benefits. The management paid a cheque for Rs.1,10,540/-. After a long legal battle, the fourth respondent retired on 31.12.1988. According to him, he is entitled to surrender upto 240 days of earned leave. As per the procedure, the management has to suo-motu sanction earned leave surrender benefits. Due to the vexatious litigation taken up by the management, he could claim earned leave pay only after the dismissal of the SLP filed by the management. 13. According to him, he is entitled to surrender upto 240 days of earned leave. As per the procedure, the management has to suo-motu sanction earned leave surrender benefits. Due to the vexatious litigation taken up by the management, he could claim earned leave pay only after the dismissal of the SLP filed by the management. 13. The fourth respondent has submitted that G.O.Ms.No.1089 P&A.R, dated 01.11.1980, is not applicable to private aided Schools. He further submitted that the letter dated 26.02.2009 of the third respondent filed by the petitioner clearly shows as to how the petitioner School had harassed the fourth respondent. He further submitted that only due to the intervention of the District Collector, pension proposals were sent. The Director of School Education, Chennai. Passed an order dated 22.10.1993, directing the petitioner school to pay earned leave surrender benefits for the period from 04.03.1977 to 13.10.1988. The fourth respondent also made a request by letter dated 03.01.1994 to pay the earned leave benefits. Thereafter, the petitioner School in their letter dated 28.01.1994 and 06.07.1994 requested the Director of School Education, Chennai, to grant earned leave surrender benefits to the fourth respondent from Government funds. The 4thespondent has further submitted that at no point of time, the petitioner has challenged the order of the first respondent directing them to pay earned leave surrender pay to the fourth respondent. He submitted that having given an undertaking to pay surrender leave benefits, the fourth respondent has been unnecessarily driven by the petitioner School to this Court and therefore, prayed for dismissal of the Writ Petition with exemplary costs. 14. In support of the relief of Mandamus, Mr. M. Vallinayagam, learned counsel for the petitioner submitted that the fourth respondent was reinstated in service on 14.10.1988. After his retirement on 31.12.1988, he made an application on 22.06.1992 and therefore, as G.O.Ms.No.1089 P&A.R. department, dated 01.11.1980 there was a delay in claiming earned leave surrender benefits. Referring to the Division Bench judgment made in W.A.No.1380 and 1443 of 1988, dated 28.03.1989, he submitted that the fourth respondent had already agreed for full and final settlement of Rs.2,94,053.35 due and payable to him and therefore, it is not open to him to claim for earned leave surrender benefits for the period between from 04.03.1977 to 13.10.1988. Referring to the Division Bench judgment made in W.A.No.1380 and 1443 of 1988, dated 28.03.1989, he submitted that the fourth respondent had already agreed for full and final settlement of Rs.2,94,053.35 due and payable to him and therefore, it is not open to him to claim for earned leave surrender benefits for the period between from 04.03.1977 to 13.10.1988. When W.P.No.3830 of 1999 filed by the management against direct payment was withdrawn, at the instance of the second respondent, the educational authorities cannot insist the school to make payment in excess of the amount received by the 4th respondent. 15. Referring to the proceedings Na.Ka.No.3437/A3/99, dated 08.09.2000, of the District Educational Officer, Madurai, he submitted that no positive undertaking was given by the School to the educational authorities for payment of salary towards surrender of earned leave benefits and therefore, once the order of direct payment had been withdrawn uncondionally, there is no need to pay the earned leave surrender benefits to the fourth respondent. 16. Reiterating the averments made in the counter affidavit of the District Educational Officer, Madurai, Mr. K. Balasubramanian, learned Additional Government Pleader submitted that G.O.Ms.No.1089 P&A.R, dated 01.11.1980, is not applicable to the private Schools and it is applicable only to Government servants. He further submitted that encashment of leave salary is admitted only after retirement and therefore, even assuming that the said G.O. is applicable, there is no delay on the part of the fourth respondent. He further submitted that earned leave credited in the leave account has to be encashed only at the time of retirement and the fourth respondent had made a request on 21.01.1990 as per the G.O., since the management had terminated the services of the fourth respondent without following due process of law, it is the School which has to make the payment. When the School had consented for back wages before this Court, the liability fastens only on the petitioner School. He also contended that the order of direct payment was withdrawn on the undertaking given by the management that the issue of payment of encashment of salary and other benefits due to the fourth respondent would be placed before the Executive Council of the School and therefore, it is not open to them to turn around and contend that no undertaking was given. He also submitted that the order of the educational authorities directing the School to pay earned leave surrender benefits to the fourth respondent was not challenged by the petitioner School and it has become final. For the above-said reasons, he prayed for dismissal of the Writ Petition. 17. Mr. T.N. Vidhyanandam, party-in-person, submitted that encasement of surrender leave was not the subject matter of the litigation between the parties on earlier occasions. The issue before the Supreme Court was only illegal termination and the claim for backwages. He further submitted that an employee can claim 240 days of surrender leave benefits only at the time of retirement. After the dismissal of SLP, he made an application on 21.01.1990 to the management for grant of earned leave surrender benefits, and therefore, there is no delay. 18. Placing reliance on the letter, dated 28.01.1994, addressed to the District Educational Officer, Madurai he submitted that the School themselves have admitted that the liability to pay surrender leave benefits to the fourth respondent School for the period between 04.03.1977 to 13.10.1988 and sought for disbursement of the amount from government funds. He further submitted that the order of Director of School Education, Chennai dated 12.12.1994, rejecting the request of the School to make payment towards surrender of earned leave benefits to the fourth respondent was never questioned before this Court and therefore, it is not open to the petitioner to seek for a Mandamus. 19. He further submitted that the withdrawal of W.P.No3830 of 1999 does not absolve the liability of the petitioner School to make earned leave surrender benefits to the fourth respondent, since the School had already made payment for backwages. When the petitioner School has made an undertaking to the educational authorities in W.P.No3830 of 1999, they are bound to honour the same and dragging the fourth respondent to this Court is nothing but an harassment. For the above said reasons, he prayed for dismissal of the Writ Petition with exemplary costs. 20. Heard the learned counsel for the parties and perused the material available on record. 21 .Perusal of the order dated 28.03.1989, made in W.A.No.1380 and 1443 of 1998 shows that the management had agreed before the Division Bench to make payment of backwages. But the management has preferred SLP.Nos.5727 and 5728, before the Supreme Court which was disposed of on 15.01.1990. 21 .Perusal of the order dated 28.03.1989, made in W.A.No.1380 and 1443 of 1998 shows that the management had agreed before the Division Bench to make payment of backwages. But the management has preferred SLP.Nos.5727 and 5728, before the Supreme Court which was disposed of on 15.01.1990. The order made by the Division Bench speaks only about the salary to be paid to the fourth respondent. When the petitioner School sought for disbursement of the earned leave surrender benefits to be paid to the 4th respondent, on 28.01.1994, the District Educational Officer, Madurai has stated that only the management alone has to make the payment for the period from 04.03.1977 to 13.10.1988. The fourth respondent had also been communicated in this regard on 14.12.1993. Therefore, he had requested the management to pay earned leave surrender benefits as follows:- “Pay as on 31.12.1988 Basic Pay Rs.3,600 D.A. Rs. 805 C.C.A Rs. 125 H.R.A Rs. 290 Total Rs. 4820 Surrender Pay for 180 days ... Rs.28,920 Surrender Pay for 25 days ... Rs. 4,017 Surrender Pay for 205 days” ... ......... Rs.32,937 ........ 22. In letter, dated 28.01.1994, the Honorary Secretary of the petitioner School addressed to the Director of School Education, has written as follows:- “The District Educational Officer, Madurai, in his communication cited second has sent the management the proceedings of the Director of School Education cited first wherein the management has been asked to make payment for the surrender of earned leave to the Headmaster for the period from 04.03.1977 to 13.10.1988. Thiru. T.N. Vidyanandan, retired Headmaster has requested the management in his letter cited third to make payment for the surrender of earned leave for the period 04.03.1977 to 13.10.1988. In this connection, I may be permitted to state that in the Director of School Education’s order, dated 19.10.1987 allowing the appeal of the Headmaster, only backwages were ordered to be paid by the management and not earned leave encasement. We do not have any Government order in our files regarding the payments of surrender of earned leave by the management for the period for which the Government grant is not given. The management feels that the encasement of surrender of earned leave is a benefit extended to the teacher by the Government so that he can encash upto a maximum of eight months earned leave at the time of retirement. The management feels that the encasement of surrender of earned leave is a benefit extended to the teacher by the Government so that he can encash upto a maximum of eight months earned leave at the time of retirement. This benefit is just like the pension benefit and the Headmaster is now getting pension taking into account this period 04.03.1977 to 13.10.1988. This period has been regularised as duty period by the Education Department. Hence, I request that the Director of School Education may sympathetically consider this case and be pleased to pass orders to make the payment of surrender of earned leave for the period 04.03.1977 to 13.10.1988 by the Education Department at an early date.” 23. From the letters and the proceedings referred to above, it is evident that payment of surrender and earned leave to the credit of the fourth respondent was not the subject matter of the Writ Appeal and even as per the letter of the management, dated 28.01.1994, the payment towards encashment of earned leave due to the 4th respondent was unpaid. Therefore, the contention of the learned counsel for the petitioner that a sum of Rs.2,20,540/- was paid as full and final settlement towards back wages and surrender of earned leave salary is incorrect and contrary to the admitted case of the petitioner's School. When the petitioner themselves have admitted before the educational authorities that there is no Government order regarding the payment of surrender and earned leave by the management for the period for which the Government grant is not given, it is manifestly clear that they have projected facts, contrary to their own admission. For payment of surrender of earned leave benefits, they have only requested the District Educational Officer, Madurai, to consider the case sympathetically and pass orders to make payment of surrender leave to the fourth respondent for the period from 04.03.1977 to 13.10.1988. 24. Perusal of the order of direct payment made in Na.Ka.No.4042/A3/97, dated 26.02.2009, of the District Educational Officer, Madurai, shows that the order of direct payment has been made for various reasons. There was delay in sending the pension proposals to Mr. T. Ramamurth, Junior Assistant, who retired on 31.10.1993 and G.K. Sitaraman, B.T. Assistant, who retired on 30.04.2006. Those teachers had submitted petitions on grievance day before the District Collector. There was delay in sending the pension proposals to Mr. T. Ramamurth, Junior Assistant, who retired on 31.10.1993 and G.K. Sitaraman, B.T. Assistant, who retired on 30.04.2006. Those teachers had submitted petitions on grievance day before the District Collector. When the School was asked to explain for the delay, the respondent had submitted that the said Mr. G.K. Sitaraman, had misappropriated Council funds and therefore appropriate action was taken in court of law. However, the Correspondent of the School could not produce any documents in this regard. Even in the enquiry conducted by the District Collector on 30.01.1997, there was no representation from the School and no documents were placed. Therefore, the District Educational Officer, Madurai prima facie found that the School did not pay due attention for getting pension for the retired teachers and it had acted out of mala fide and for personal reasons. The District Educational Officer, Madurai has further observed that only after the intervention of the District Collector, Madurai, pensionary benefits were obtained from the educational authorities and that too, after three years. 25. In another instance, Mr. Sivakumar was appointed on 16.06.1997 and before the completion of his probationary period, he was relieved from service on 09.06.1998. In his place, Mr. K.K. Janarthanan, was appointed. When the educational authorities sought for details vide their letter dated 28.09.1998, as to why the said Mr. Sivakumar was relieved even before the completion of his probationary period, the petitioner School had stated that there is no need to seek for explanation from the school. 26. In yet another instance, Mr. A.K. Dinakaran was appointed as Laboratory Assistant. On completion of his probationary period, he had sought for regularisation. On 13.03.1996, the petitioner School dismissed the said Mr. A.K. Dinakran, who in turn had preferred W.P.No.7575 of 1996, in which, the District Educational Officer, Madurai was one of the respondents. When certain documents were sought for by the educational authorities in respect of the above Writ Petition, there was no reply from the School. The District Educational Officer, Madurai in his order of direct payment has observed that the attitude of the petitioner School was lethargic from the beginning. Perusal of the order dated 12.12.1994 of the Director of School Education, Chennai, shows that the petitioner School was directed to pay backwages due to the fourth respondent. The District Educational Officer, Madurai in his order of direct payment has observed that the attitude of the petitioner School was lethargic from the beginning. Perusal of the order dated 12.12.1994 of the Director of School Education, Chennai, shows that the petitioner School was directed to pay backwages due to the fourth respondent. The order further reads that as per the instructions of the District Educational Officer, Madurai, vide Na.Ka.No.4042/A3/97, dated 03.08.1997, 22.04.1998, 28.09.1998, 15.12.1998 and 18.01.1999, the petitioner School has to make payment towards leave salary to the fourth respondent and that the School administration has failed to implement the directions. Per contra, the management has stated that they have already settled the amounts due to the fourth respondent. As the petitioner school was found to have not implemented the directions of the educational authorities, order of direct payment has been effected. While challenging the order of direct payment in W.P.No.3830 of 1999, the petitioner in ground No:H has stated as follows:- “(H).... In any event, as per the letter of the Government dated 19.01.1997 and it had been clearly pointed out that a Government servant is entitled for surrender earn leave only if they apply within one month from the date of receipt of order treating the period spent on compulsory retirmenet, removal of dismissal from service on duty. In the case of Mr. T.N. Vidhyanandam, the said benefits was not claimed by him within the time limit as directed by the Government. In this even, though he is retired on 31.12.1988 admittedly he applied for earned leave surrender benefits on 22.06.1992 which is hopelessly against Government stipulation time limit.” 27. As regards the contention of the petitioner School that the fourth respondent had already received all the benefits pending disposal of W.A.Nos.1380 & 1443 of 1988, it is necessary to refer to the letter of the School dated 28.01.1994, which makes it abundantly clear that the surrender leave benefits was not disbursed to the fourth respondent, as claimed by the petitioner. If they had already paid the benefits as claimed during the pendency of the Writ Appeal, there is no need to write such a letter to the District Educational Officer, Madurai seeking for disbursement of the amount from Government grant. Besides they have raised a ground that the claim was not made within the time. If they had already paid the benefits as claimed during the pendency of the Writ Appeal, there is no need to write such a letter to the District Educational Officer, Madurai seeking for disbursement of the amount from Government grant. Besides they have raised a ground that the claim was not made within the time. There was also a specific direction from the District Educational Officer, Madurai to the petitioner School to make payment of surrender of earned leave, due to the fourth respondent for the period from 04.03.1977 to 13.10.1988 and that the same has not been implemented. In order to withdraw the order of direct payment, the District Educational Officer, Madurai, had requested the School to rectify the reasons contained in the order. Pursuant to the same, the petitioner School had undertaken that the matter would be placed before the Executive council. On the basis of the undertaking, the order of direct payment has been withdrawn and subsequently, the W.P.3830 of 1999 came to be dismissed as withdrawn. Subsequently, the Correspondent of the school in his letter dated 01.11.2000 addressed to the District Educational Officer, Madurai has communicated the resolution of the school. The contents of the letter is relevant for the purpose of adjudicating as to whether the petitioner had undertaken to disburse the surrender of earned leave benefits to the fourth respondent. The said letter is extracted below:- TAMIL 28. The above resolution addressed to the District Educational Officer, Madurai had been read out to the members of the Executive Council and had been unanimously resolved by the Council to rectify the reasons for direct payment. When the School had resolved to rectify the reasons for direct payment and communicated the same vide their letter dated 01.11.2000, it is unfortunate that they have twisted the facts before this Court, as if there was no undertaking given to the educational authorities and that the entire payment inclusive of earned leave benefits were paid to the 4th respondent during the pendency of the writ appeal. 29. On the aspect of applicability of G.O.Ms.No.1089 P&A.R, dated 01.11.1980 is concerned, it is the specific case of the department that the said G.O. is applicable only to those who are serving in Government Departments. No materials have been placed before this Court by the petitioner school to show that the said G.O. is applicable to employees in private educational institutions. No materials have been placed before this Court by the petitioner school to show that the said G.O. is applicable to employees in private educational institutions. Earned leave credit in the leave account of an employee does not lapse and it accumulates upto 240 days. Further, as rightly contended by the fourth respondent as well as the educational authorities, encashment of said earned leave claim can be made only at the time of retirement. In the case on hand, immediately after dismissal of the Special Leave Petition SLP.Nos.5727 and 5728, the fourth respondent has submitted an application dated 21.01.1990 to the School authorities. 30. The said fact has also been brought to the notice of the educational authorities as evident from their counter affidavit. In view of the specific stand of the educational authorities, the government order is not applicable to private schools. Even assuming that it is applicable to the case of the petitioner school, the fourth respondent has submitted an application dated 21.01.1990 within the prescribed time. As rightly contended by the fourth respondent withdrawal of the direct payment order does not absolve the petitioner's School of their liability to pay the surrender of earned leave benefits. 31. Pleading and materials shows that the fourth respondent now aged about 78 years, who had been erroneously terminated on 04.01.1978 by the petitioner School, has been litigating for nearly three decades in Courts. The matter had gone upto the Supreme Court on two occasions. Nevertheless, the petitioner has been tirelessly fighting against the mighty school for disbursement of his earned leave surrender benefits for 240 days. For claiming his legitimate rights for the service rendered in the School, every time, the fourth respondent has been driven to this Court. This Court is of the considered view that the fourth respondent, a retired Headmaster, has been unnecessarily harassed by the petitioner School for no fault. If the petitioner had not committed any mistake, there was no occasion for them to agree for settlement of 3/4th of the backwages due and payable to the fourth respondent for the period from 04.03.1977 to 13.10.1988. It could be seen that the fourth respondent was constrained to accept only 3/4th of the backwages even before the Division Bench. The conduct of the petitioner School denying the earned leave surrender benefits is purely out of mala fide and to victimise the poor headmaster. It could be seen that the fourth respondent was constrained to accept only 3/4th of the backwages even before the Division Bench. The conduct of the petitioner School denying the earned leave surrender benefits is purely out of mala fide and to victimise the poor headmaster. When they had been requesting the educational authorities to make the surrender leave benefits, out of government funds, before this Court, they have put up a plea, that all the amounts have been settled inclusive of said benefits. The conduct of the petitioner cannot be said to be clean. Before parting with this case, this Court is able to perceive the mental agony and physical strain of this old man aged about 78 years, who had been forced to litigate with the mighty school, which receives a grant of Rs.10,00,000/- from the Government. It would be further seen that the School had given him a new year gift of termination on 04.01.1978 and for a sum of Rs.32,927/-, surrender leave benefit, they have dragged on the matter for nearly 15 years. 32. Therefore, while dismissing the Writ Petition, this Court deems it fit to impose a costs of Rs.25,000/-(Rupees Twenty Five Thousand Only) to be paid to the fourth respondent. The entire earned leave benefits and any other amount due to the fourth respondent to be paid within a period of two weeks from the date of receipt of a copy of this order.