Madras High Court
The State Of Tamil Nadu ... vs V.Sundaravadivel on 4 February, 2021
W.A.(MD)No.745 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.02.2021
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.745 of 2019
1.The State of Tamil Nadu Represented by its,
Secretary to Government,
School Education Department,
St. George Fort, Chennai – 600 009.
2.The Director of School Education,
College Road, DPI Campus, Chennai – 600 006.
3.The Joint Director of School Education (Vocational),
College Road, DPI Campus, Chennai – 600 006.
4.The Chief Educational Officer,
Office of the Chief Educational Officer,
Dindigul Post & District. ... Appellants/Respondents
Vs.
V.Sundaravadivel ... Respondent/Writ Petitioner
Prayer : Appeal filed under Clause 15 of the Letters Patent Act against the order
passed by this Court in W.P.(MD)No.22920 of 2015, dated 11.05.2017.
For Appellants : Mrs.S.Srimathy
Special Government Pleader
For Respondent : Mr.M.Saravanakumar
*****
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W.A.(MD)No.745 of 2019
JUDGMENT
(Judgment of the Court was delivered by M.M.SUNDRESH, J)
This case has got a chequered history. The respondent herein was
appointed as a part time Vocational Instructor in a private school on 19.07.1989.
For want of students strength, he was ousted from service on 31.05.1994. It is
needless to state that the school is an aided school and therefore, salary of the
respondent is being paid by the appellants. By the Government Order in
G.O.Ms.No.834, dated 23.09.1994, orders have been issued for giving training
to the Vocational Instructors through the District Institute of Education and
Training at Oddanchatram. Though the Chief Educational Officer, Dindigul, has
issued training order dated 14.02.1995, the respondent/writ petitioner was not
given the same. The reason for the same is that as against the course of others,
running about 635 Vocational Instructors, similarly placed like that of the
respondent, he was ousted for want of vacancy, while all of them were working
in the respective private school receiving aid. Thereafter, he rejoined the service
by the proceedings of the Chief Educational Officer, Dindigul, dated
23.05.2002, as Vocational Instructor in the Government Higher Secondary
School, Vembarpatti, Dindigul District.
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W.A.(MD)No.745 of 2019
2.By order dated 10.06.2002, the Government issued G.O.Ms.No.74,
School Education Department, bringing the Vocational Instructors in regular
time scale of pay and the Chief Educational Officer, Dindigul recommended the
case of the Petitioner for regularisation by his proceedings dated 12.07.2005.
Though many of the Vocational Instructors were brought under regular time
scale of pay, the respondent was not brought in. Under those circumstances, he
filed W.P.(MD) No.8090 of 2008, praying for permanent absorption. The Writ
Petition filed was allowed on 12.04.2010. The Writ Appeal filed against it in
W.A.(MD) No.265 of 2011 was dismissed on 28.02.2011. A Special Leave
Petition was filed before the Hon'ble Supreme Court, which was also dismissed
confirming the judgment and order of the High Court on 14.11.2011. In the
Contempt Petition filed in Cont. P. (MD) No.968 of 2011, a direction was issued
to comply with the order of the learned Single Judge and thereafter, respondent
No.1 issued G.O.Ms.No.181 School Education Department, dated 18.07.2012,
to absorb the respondent/writ petitioner in the regular time scale of pay.
Accordingly, the Contempt Petition was closed.
3.The respondent made a request for modifying the Government
Order by bringing him in regular time scale of pay on par with the 635 similarly
placed persons. The request made was rejected by the third appellant, despite
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W.A.(MD)No.745 of 2019
recommendations made by the Chief Educational Officer. Under those
circumstances, the respondent filed W.P.(MD) No.22920 of 2015, seeking to
regularise the services of the petitioner with effect from 03.06.2002 – the date
of appointment in the Government School. The Writ Petition was allowed on
11.05.2017 and immediately thereafter, the first respondent had retired from
service. For the non-compliance of the order, the respondent filed Contempt
Petition (MD) No.634 of 2018. Thereafter, the present Writ Appeal has been
filed with a delay of 224 days. The delay was condoned and the appeal was
taken on file.
4.With the above backdrop, the learned Special Government Pleader
submitted that the regularisation having been made on 18.07.2012 and the
respondent having completed the training belatedly, the question of bringing
him in regular time scale of pay with effect from 25.05.2002 would not arise for
consideration. The subject matter of the earlier orders of this Court is different.
Therefore, the order of the learned Single Judge requires interference.
5.Mr.M.Saravanan, learned counsel for the respondent/writ petitioner
submitted that though the request for regularisation was denied on the ground of
non-attending of training, it is not as if the respondent was not interested in
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W.A.(MD)No.745 of 2019
completing the training. Giving training is the role of the appellants. Similarly
places others have been given training except the respondent for the sole reason
that he was ousted for want of vacancy. Therefore, the only difference is that all
other persons were not ousted and continued in service. However, there is no
difference on the fact and law that all of them are entitled to regular time of
scale of pay from the date of completion of the training. The respondent herein
has nothing to do with the training and for the sole fault on the part of the
appellants, the respondent could not get regularised, despite the fact that he has
got an order from the Court. For the mistake committed by the appellants, the
respondent may not be made to suffer, especially, the training, which is the role
assigned to them. Thus, looking from any perspective, the order of the learned
Single Judge does not warrant interference, especially, when benefits were
granted from 03.06.2002 and not from the date of his very first appointment.
The training period was three months. Unfortunately, the respondent could not
be given training as he was ousted from service for want of vacancy. Having
taken him back in service, it is not open to the appellants to contend in the
contrary. Even otherwise, the respondent and 635 persons are placed in virtually
similar situation having worked in a private institution earlier and the only
difference is the ousting of the respondent for want of vacancy.
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W.A.(MD)No.745 of 2019
6.In fact, the case of the respondent should be placed in higher
pedestal. He has been taken into Government employment subsequently. The
training itself is for a period of three months. He was continuously making
requests for giving the training. He also filed Writ Petition for the aforesaid
purpose. Despite the directions issued by this Court, he was not given the
aforesaid training, that too, not withstanding the order passed by the Chief
Educational Officer as early as on 14.02.1995. Apparently, for the same reason,
even the regularisation was not done in his favour, which made him to file the
next set of Writ Petition before this Court. The order passed in W.P.(MD) No.
8090 of 2008 has attained finality by the disposal of the Special Leave Petition.
7.Now the respondent has reached the superannuation. The only
question for consideration is the taking into consideration of the service
rendered by him notionally as if he has been brought under regular time scale of
pay from the date of his appointment. Though the learned Single Judge has
passed the order, granting such entitlement from 03.06.2002, we are inclined to
modify the same for the reason that training period has to be reckoned as it is
not as if the respondent would have been sent to training immediately upon
joining. Therefore, we take the human convenience as one year for the
maximum help. Accordingly, the appellants will have to consider the period
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W.A.(MD)No.745 of 2019
from 31.03.2003 onwards. Accordingly, we make it clear that the respondent is
only entitled for consideration of 50% of past service as in the case of the
similarly placed persons.
8.In the result, the Writ Appeal stands disposed of by directing the
appellants to reckon the past service rendered by the respondent on the regular
time scale of pay with effect from 31.03.2003. Appropriate orders will have to
be passed within a period of eight weeks from the date of receipt of a copy of
this order. Based upon the said order, the respondent shall be paid the service
benefits as well as monitory benefits in accordance with law at the earliest. No
costs.
Index :Yes/No [M.M.S.J.,] [S.A.I.J.,]
Internet :Yes/No 04.02.2021
sj
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall
be the responsibility of the advocate/litigant concerned.
To
1.The Secretary to Government,
School Education Department,
State of Tamil Nadu,
St. George Fort, Chennai – 600 009.
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W.A.(MD)No.745 of 2019
M.M.SUNDRESH, J.
AND
S.ANANTHI, J.
sj
2.The Director of School Education,
College Road, DPI Campus, Chennai – 600 006.
3.The Joint Director of School Education (Vocational),
College Road, DPI Campus, Chennai – 600 006.
4.The Chief Educational Officer,
Office of the Chief Educational Officer,
Dindigul Post & District.
W.A.(MD)No.745 of 2019
04.02.2021
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