W.P.(MD).No.15364 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.09.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).No.15364 of 2013
V.Rajamani ... Petitioner
Vs.
1.The Secretary to the Government,
School Education Department,
Chennai.
2.The Joint Director of School Education,
College Road,
Chennai – 05.
3.The Chief Educational Officer,
Sivagangai,
Sivagangai District. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified mandamus, calling for the
records pertaining to the impugned order passed by the third respondent
bearing O.M.No.1219/A2/2008 dated 19.08.2013 and quash the same with the
further direction directing the respondents to re- fix the petitioner's pay and
pension in the light of Government Orders.
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W.P.(MD).No.15364 of 2013
For Petitioner : Mr.Porkodi Kannan,
for M/s.Polax Legal Solution
For Respondents : Mrs.D.Farjana Ghoushia,
Special Government Pleader.
ORDER
This Writ Petition has been filed for Writ of Certiorarified Mandamus to quash the impugned order dated 19.08.2013 and for a direction to the respondents to fix the petitioner's pay and pension in the light of the Government Orders.
2. The brief facts as stated in the affidavit is that the petitioner was appointed as Secondary Grade Teacher in M.K.N. Middle School on 28.07.1971, which is an Aided Non-minority School and the petitioner was receiving salary fixed for the aided school. The petitioner was granted Special Grade on completion of 20 years of service in the same post. In the meanwhile, the Government called for qualifying persons for the post of B.T. Assistant (History). Since the petitioner is having qualification, the employment exchange which is appropriate authority for sponsoring, has forwarded the petitioner’s name. The petitioner had also obtained no objection certificate for attending interview from the Management and thereafter the petitioner had https://www.mhc.tn.gov.in/judis 2/17 W.P.(MD).No.15364 of 2013 attended the interview. After certificate verification on 21.12.1991, the petitioner was appointed as B.T. Assistant (History) in Government High School, Melanettur, Sivagangai District. After a long period of service, the petitioner attained superannuation on 30.06.2007 and has put in 37 years of service.
3. The contention of the petitioner is that he had completed 20 years of service and was granted Special Grade. During the tenure in the Aided School, his last drawn salary was 1640-60-2600-75-2900. After shifting to the Government School as B.T. Assistant, the petitioner scale of pay was fixed as 1400-40-1600-50-2300-60-2600. The contention of the petitioner is that since the petitioner was working as Secondary Grade Teacher (Special Grade) till 20.12.1991, thereafter he had joined as B.T. Assistant and his salary should have been fixed the last drawn salary which was received in the Aided School. The petitioner was making continuous representation for re-fixation of salary. As there was no response, the petitioner approached this Court in W.P.(MD)No. 7034 of 2008 and this Court vide order dated 08.04.2013 had directed the respondents to consider the representation dated 21.12.2007. After considering the petitioner's case, the respondents had passed the impugned order dated 19.08.2013. Aggrieved over the same, the present Writ Petition is filed. https://www.mhc.tn.gov.in/judis 3/17 W.P.(MD).No.15364 of 2013
4. The respondents have filed counter affidavit stating that while passing the impugned order, it has been categorically stated that any individual is promoted to the post of B.T. Assistant by considering his higher qualification from the post of Secondary Grade Teacher, then the individual would be entitled to the scale of pay as applicable to the B.T. Assistant by taking the scale of pay in the post of Secondary Grade Teacher and grant pay protection. But in the case of the petitioner, the petitioner has been directly recruited in the post of B.T. Assistant and not promoted from his earlier post of Secondary Grade Teacher. Hence, his earlier scale of pay in the post of Secondary Grade Teacher cannot not be continued, since there are no provisions either in the Fundamental Rules or in State and Subordinate Service Rules or in the concerned Special Rules for appointment by transfer and promotion. Moreover, there is no provision in the existing rules to allow the last pay drawn to those who have joined in the Government service by direct recruitment after resigning from aided Schools that too in a different post. Hence the fixation of initial pay in the post of B.T. Assistant is well in accordance with the existing rules. The service put in by any teacher in aided School have been taken into account for the purpose of calculation of pension and gratuity alone. The petitioner is not coming within the purview of any Government Order and therefore, the respondents prayed to dismiss the Writ Petition. https://www.mhc.tn.gov.in/judis 4/17 W.P.(MD).No.15364 of 2013
5. Heard Mrs. Porkodi Kannan, for M/s.Polax Legal Solution the Learned Counsel for the petitioner and Mrs.D.Farjana Ghoushia, the Learned Special Government Pleader appearing for the respondents and perused the records.
6. The Learned Counsel for the petitioner relied on the judgment rendered in W.P.(MD)No.15745 of 2013 vide order dated 11.08.2021, wherein, this Court has held that, “9.In the present case, this Court is of the view that the Government Order in G.O.Ms.No.1580, dated 18.10.1969, can be applied to the case of the petitioner. It is also brought to the notice of this Court that the respondents have granted the service benefits to similarly placed persons by proceeding, dated 03.01.2012. The fourth respondent himself has granted selection grade to the petitioner by taking into consideration the date of appointment in the previous School.
10.The petitioner was appointed originally in a private aided School. After serving few years in the private aided School, the petitioner got appointment in the Panchayat Union Elementary School without any break in service. Since it is admitted that the service of the petitioner in the private aided School can be counted for the purpose of pension at the time of retirement and that she was awarded Selection Grade counting the petitioner's service in the private aided School, the contention of the respondents that the petitioner's request for pay protection as per G.O.Ms.No.1072, P&AR Department, dated 31.10.1986 is not as per the Rules cannot be countenanced.
11.In view of the above discussion, the petitioner is entitled to succeed and the Writ Petition is allowed. The petitioner is entitled to refix pay scale in the light of the various Government Orders. The respondents are directed to re-fix the pay of the petitioner by taking into consideration her last drawn pay in the previous School, when she was joined in the Bogalur Union Elementary School as Secondary Grade Teacher and other service and monetary benefits within a period of twelve weeks from the date of receipt of a copy of this order. No costs.”
7. For better appreciation the G.O.Ms.No.1580 Education Department dated 18.10.1969 is extracted hereunder:
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G.O. Ms. No. 1531 Education dated 09.05.1964 G.O. Ms. No. 53 Education dated 13.04.1966 G.O. Ms. No. 1617 Education dated 19.09.1967 Govt. Memo. No. 71818 / E3 / 67-3 Education dated 25.10.1967 Govt. Memo. No. 44931 / E3 / 68-4 Education dated 13.02.1969 From the Director of School Education Lr.Rc.No. 195357/D4/67, dated 27.05.1968, 11.12.1968, 25.03.1969, 05.05.1969 and 17.07.1969 In the G.O. first read above, the government ordered that the services rendered by teachers serving in aided High Schools in identical time scale of pay prior to 01.06.1960 be reckoned for purposes of refixation of pay. This concession applies only to teachers who were adversely affected in their emoluments drawn before 01.04.1964 following the introduction of the new system of aid from 01.04.1964 and thus enabled them to draw the same pay as was paid by the managements before 01.04.1964. According to the G.O. second read above, if a teacher resigns his post from one aided secondary school or training school or elementary school and joins another secondary school or training schools, the pay that was taken into account for the purposes of assessment of staff grant in the previous school may be allowed in the new school. The government now direct that, for the purpose of assessment of staff grant, in cases where any number of teaching staff in an aided secondary school Elementary School or Training School either resigns his teaching post and joins in a different teaching post, carrying identical scale of pay or is transferred due to administrative grounds to a different teaching post in the same institution carrying identical scale of pay or to a different school in the same post or in a post carrying identical scale of pay, the PAY THAT WAS LAST DRAWN BY HIM IN THE PREVIOUS SCHOOL SHALL BE ALLOWED TO THE TEACHER IN THE NEW SCHOOL IN WHICH HE JOINS SUBSEQUENT TO HIS RESIGNATION OR TRANSFER, AS THE CASE MAY BE SUBJECT TO THE FOLLOWING CONDITIONS:
1. When such member resigns his teaching post from one aided secondary school, elementary school or Training school shall be eligible for next increment from the date on which he would be eligible had he continued in the previous school
2. When a teacher resigns his post from one aided Secondary https://www.mhc.tn.gov.in/judis 6/17 W.P.(MD).No.15364 of 2013 School in the middle of the school year and joins another aided secondary school, the next increment should be calculated from the date of joining the new school
3. When the teacher leaves one aided secondary schools and joins another aided secondary schools for the reasons stated in the G.O. read above and there is a break in the service which has been condoned he shall be eligible for the next increment only from the date of joining in the new school
4. The above orders shall be with effect from the date of this Memo
5. The above issues with the concurrence of the Finance Department vide its U.O. No. 99496 SIV 67 dated 21.10.1967 M.S. Ramesh Deputy Secretary to Government On perusing the G.O.Ms.No.1530, this Court is of the considered opinion that the Government Order was issued to grant concession to teachers who would be affected due to the introduction of new system of grant-in-aid.
Moreover the G.O. specifically says if transferred or resigned and joins in the same post in the same scale of pay. The G.O. also prescribes other conditions as well. In the present case the petitioner was appointed in Secondary Grade Teacher, thereafter he resigns and participates in the recruitment process for the post of B.T. Assistant. Since the Secondary Grade Teacher post and the B.T.
Assistant post are not the same post and are not having same scale of pay the petitioner is not entitled to, even as per the G.O. Therefore, the said Government Order is not applicable to the petitioner. https://www.mhc.tn.gov.in/judis 7/17 W.P.(MD).No.15364 of 2013
8. The petitioner relied on G.O.Ms.No.2357 Education Science and Technical Education Department dated 27.12.1983 and the said G.O. is extracted hereunder:
bghUs; fy;tp - ,ilepiy – Mq;fpnyh - ,e;jpag; gs;spfspypUe;J cjtp bgWk; gs;spfSf;Fk; khw;wk; bra;ag;gl;l my;yJ mg;gs;spfspypUe;J cjtp bgWk; gs;spfspy; gzpnaw;Fk; Mrphpah;fSf;fhd Cjpa eph;zak; - Miz btspaplg;gLfpwJ.
fy;tp mwptpay; kw;Wk; bjhHpy; El;gtpay; Jiw murhiz (epiy) vz; 2357 ehs; 27-12-83.
ghh;it 1. gs;spf; fy;tp ,af;Fehpd; fojq;fs; vz;
256532/,epf/m1/o1/81 ehs; 25-11-81 kw;Wk; 20-10-83.
2. murhiz epiy vz; 2886/fm bjh.E.Jiw ehs; 10-12-82.
Miz jpUr;rp Jha $hd;]; Mq;fpnyh ,e;jpag; gs;spapy; gl;ljhhp Mrphpauhf gzpg[hpe;J jpUr;rp gp\g; n+gh; nky;epiyg; gs;spf;F khw;wk; bra;ag;gl;L jpU.mg;Jy; Rghd; vd;gtUf;F mth; Kd;dh; gzpahw;wpa gs;spapy; filrpahf bgw;Wte;j Cjpak; tHq;fp murhiz (epiy) vz; 2686> fy;tp mwptpay; kw;Wk; bjhHpy; El;gtpay; Jiw> ehs; 10-12-82-y; Miz btspaplg;gl;lJ. nkYk; ,t;thwhd khw;wq;fSf;F fy;tpj;Jiwapd; Kd; mDkjp bgw;wpUe;jhy; me;j Mrphpah;fs; Kd;dh; gzpahw;wpa gs;spfspy; mth;fs; filrpahf bgw;Wte;j Cjpaj;ij g[jpjhf nrh;e;j gs;spapy; tHq;Ftjw;F gs;spf; fy;tp ,af;FeUf;F chpa mDkjp tHq;fp jdpahf Miz gpwg;gpf;fg;gLk; vd;Wk; Mizaplg;gl;lJ. https://www.mhc.tn.gov.in/judis 8/17 W.P.(MD).No.15364 of 2013
2. ,jd;go Mq;fpnyh ,e;jpag; gs;spfypUe;J fy;tpj;Jiwapd; Kd; mDkjp bgw;W cjtpbgWk; gs;spfSf;F khw;wk; bra;ag;gl;l my;yJ mg;gs;spfspypUe;J gzpapiz Jwe;j cjtp bgWk; gs;spfspy; gzpnaw;Fk; Mrphpah;fSf;F mth;fs; Mq;fpnyh ,e;jpag; gs;spfspy; filrpahf bgw;Wte;j Cjpaj;ij tHq;f gs;spf; fy;tp ,af;FeUf;F mjpfhuk; mspf;fg;gLfpwJ.
(Msehpd; Mizg;go) jp.J.Re;jh;uh$;> Mizahsh; kw;Wk; muR brayhsh;
On perusal of the said G.O.Ms.No.2357, it is seen that the said G.O. was passed to grant benefits to the said particular individual namely Abdul Suban, wherein he had served in Anglo Indian School and subsequently he was transferred to the Bishop Heber Higher Secondary School. Since the said individual was transferred from unaided Anglo Indian School to Aided School, the said pay protection was granted. Moreover, the said transfer was effected after getting prior permission / approval from the Director of School Education as a special case. The said G.O. also states such transfer would be allowed only after getting prior approval from the Educational Authorities. If the Act or any G.O. states that any benefits would be granted only after getting prior approval from the Educational Authorities, then the same shall be granted only after https://www.mhc.tn.gov.in/judis 9/17 W.P.(MD).No.15364 of 2013 getting the prior permission only. Since these conditions are not satisfied, the said G.O.Ms.No. 2357 is not applicable to the petitioner’s case. Moreover it is an old G.O., which was issued to address the grievance of that particular individual and the petitioner cannot claim to grant such benefits and hence the claim of the petitioner is rejected.
9. The petitioner further relied on the G.O. Ms. No. 118 School Education (Ma.Ni.Ka.2) Department dated 30.05.2007, wherein, the government issued the said G.O. to one K. Samidurai to calculate the service rendered under Rule 10(a)(1) in Arts College which was a temporary post. The facts of the case are that the said K. Samidurai was properly recruited in the permanent post on 14.07.1992 in Government Higher Secondary School, Neerupur and retired from service on attaining superannuation on 31.01.2002, thereby the service rendered is 9 years 6 months 15 days. A claim was put forth by the said K. Samidurai to round it off by calculating the earlier service rendered in temporary post. The K. Samidurai had served in Periayar E.Va.Ra. Arts College, Trichy for 5 months 11 days and in Government Arts College, Salem for 9 months and 10 days, then there was break in service. Then the said K. Samidurai had served again in Government Arts College, Salem for 3 years 11 months 10 days. The said K. Samidurai claimed to include these temporary https://www.mhc.tn.gov.in/judis 10/17 W.P.(MD).No.15364 of 2013 service so that 15 years 2 months 20 days can be taken and grant pension for the said service. The Government has stated that relaxation is not necessary since as per Rule 11 and 24 of the Tamil Nadu Pension Rules and G.O.Ms.No. 349 Finance (Pension) Department dated 05.05.1995 the said K. Samidurai is eligible and has granted approval to sanction pension by taking 15 years 2 months 20 days. This government order is passed by taking into account the facts of the said individual K. Samidurai in order to round off the service period and to grant pension. This Court is of the considered opinion that any G.O. passed to grant benefits to a particular individual, then the same cannot be relied on at all, it is only to grant relief to the particular individual, since the said G.O. is passed in persona. If the government issues any government order by covering all or class of persons based on the policy decision of the government, then the said G.O. is passed in rem and applicable to all or to that class of persons. Hence in the present case the petitioner is not entitled to any relief.
10. The petitioner further relies on the G.O.Ms.No.143 Education (V2) Department dated 30.01.1987. The said G.O. states that the service rendered in unaided Matriculation school shall be taken for granting pay and pension and thereby granted the benefits for one Rev. Fr. Stanislaus M. Fernandez, https://www.mhc.tn.gov.in/judis 11/17 W.P.(MD).No.15364 of 2013 Headmaster St. Bede’s Anglo Indian Higher Secondary School. The legality of this G.O. was dealt with in W.P.(MD) No. 4494 of 2009 and this Court vide order dated 16.08.2012 has held that the said G.O. in its original verse, has nothing to do with granting of pension at all and the copy produced by the petitioner therein was bogus one. Moreover the said G.O.Ms.No.143 Education (V2) Department dated 30.01.1987, which was followed in G.O. Ms. No. 18 Education, Science and Technology (T2) Department dated 09.01.1997, but subsequently the G.O.Ms.No.18 was cancelled in G.O.Ms.No.314 School Education (T2) dated 12.11.1999. In effect the G.O.Ms.No.143 ought to be considered as cancelled. This was also confirmed by the Hon’ble Division Bench in Devakadasham’s case reported in (2006) 4 MLJ 1580. From the above it would be evident that the said G.O.Ms.No.143 was passed on a different context and the same is not applicable for the present facts of the case, therefore this Court is of the considered opinion that the said G.O.Ms.No.143 is not applicable to the present case. The basic concept is the “service rendered in unaided school” cannot be taken for calculating pension, since such service cannot be considered as government service. Moreover if granted then teachers working in Matriculation schools and other categories of schools would claim the same demand and the government would be burden with such illegal claims.
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11. The contention of the petitioner is that the petitioner was receiving higher salary of 1640-60-2600-75-2900 in the Secondary Grade Teacher while working in the Aided School, but lower salary of 1400-40-1600-50-2300-60-2600 was fixed in the post of B.T. Assistant in the Government School, hence the petitioner is entitled to claiming same salary as he was drawing while serving as Secondary Grade Teacher in the aided school. The further contention of the petitioner is that he was posted from Secondary Grade Teacher to the post of B.T. Assistant as “promotion by transfer” and hence the petitioner claims that he is entitled to the same salary of pay by granting pay protection. However, the respondents submitted that the petitioner was working in the aided school, thereafter participated in the direct recruitment selection process for the post of B.T. Assistant and appointed as fresh appointee in the post in the Government School, hence the petitioner is not entitled to any higher scale of pay or pay protection. While recruiting for B.T. Assistant post, the government would have indicated the salary payable to the said post and the petitioner having accepted the terms and conditions, now cannot turn around and seek any salary which was paid while he was serving in aided school. The same issue was considered by this Court in W.P.(MD)No. 6285 of 2018 and it has been held as under:
https://www.mhc.tn.gov.in/judis 13/17 W.P.(MD).No.15364 of 2013 “5. This Court is of the considered view that the P.G. Assistant post is a fresh recruitment by Teacher Recruitment Board. The salary that is applicable to the P.G. Assistant post, should be as per the notification that is applicable to the petitioner in the recruitment process. Having accepted the rules applicable to the recruitment process including the salary applicable to the said post P.G. Assistant, now the petitioner cannot turn around and seek different salary. Having accepted the terms and conditions, with the knowledge that the salary would be less than the B.T. Assistant post, the petitioner is barred from claiming salary applicable to B.T. Assistant post, when he has accepted the P.G. Assistant post. If this plea is accepted, then the persons of the same batch of recruits would claim discrimination. Then the other P.G. Assistants would claim discrimination, which would be endless. Therefore this Court is of the considered opinion the claim of the petition is illegal and hence Mandamus cannot be granted for such illegal claim.” Aggrieved over the order passed in the aforesaid writ petition in W.P. (MD)No.6285 of 2018, the petitioner therein had preferred writ appeal in W.A. (MD) No. 627 of 2022 and the Hon’ble Division Bench has confirmed the order passed in writ petition and dismissed the employee’s appeal. The Hon’ble Division has further held that “direct recruitment to a post” cannot be considered as “promotion by transfer”. Also held that the Service Rules for the private schools are different and the Service Rules for the government schools are different and has held that the petitioner therein is not entitled to the claim.
12. In the present case, the petitioner was employed in the aided School and he was drawing more salary. The petitioner agreed for the salary fixation which was fixed for the B.T. Assistant post. Having agreed to such salary https://www.mhc.tn.gov.in/judis 14/17 W.P.(MD).No.15364 of 2013 fixation and subsequently accepted the offer of post, thereafter, the petitioner cannot claim that there is a salary disparity and he should be granted pay protection. Since it is a contract between the Government and the individual, when the petitioner has agreed to the said contract, now he cannot turn around and seek more salary on par with the aided School salary. The petitioner has an option to continue in the B.T. Assistant post, it the petitioner is not agreeing for lesser salary, then the petitioner shall very well quit the job. Having accepted to serve for the lesser salary, now the petitioner is estopped from claiming more salary on par with the salary for the aided School. If the petitioner’s plea is accepted, then the persons appointed in the petitioner’s batch would claim pay disparity by comparing with the petitioner and it will have a change reaction with endless litigation, which will have serious financial implication to the government’s exchequer and the same can never be allowed. Hence there is no merits in the present writ petition and liable to be dismissed.
13. The petitioner had submitted a representation dated 21.12.2007, after his retirement on 30.06.2007 and has filed writ petition in the year 2008. The petitioner was directly recruited on 21.12.1991. After a lapse of 16 years the petitioner had preferred a writ petition and on the basis of delay and latches also the writ petition is liable to be dismissed.
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14. This Writ Petition is dismissed accordingly. There shall be no order as to costs.
06.09.2022
Index : Yes / No
Internet : Yes/ No
Nsr
To
1.The Secretary to the Government,
School Education Department,
Chennai.
2.The Joint Director of School Education,
College Road,
Chennai – 05.
3.The Chief Educational Officer,
Sivagangai,
Sivagangai District.
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S.SRIMATHY, J.
Nsr
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