Madras High Court
S.Rajaiah vs The Director Of Elementary ... on 13 July, 2021
W.P.No.15298/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.07.2021
CORAM:
THE HONOURABLE Mr.JUSTICE M.S.RAMESH
W.P. No.15298 of 2017
and
W.M.P.(MD)No.16582 of 2017
S.Rajaiah ... Petitioner
Vs.
1.The Director of Elementary Education,
DPI Complex
College Road,
Nungambakkam,
Chennai.
2.The District Elementary Education Officer,
Thiruvarur
3.The Assistant Elementary Education Officer,
Valangaiman
Thiruvarur District. ... Respondents
Prayer: The petition is filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, to call for the records on the file of the
3rd respondent in connection with his order of rejection in proceedings in
A.Thi.Mu.No.1410/2015/A2 dated 29.06.2016 and quash the same and
consequently direct the respondent to rectify the pay anomaly by stepping up
the pay of the petitioner on par with junior as done in a similar case
consequent to judgment dated 18.06.2012 in W.P.No.3698 to 3700 of 2007.
1/10
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W.P.No.15298/2017
For Petitioner : Ms.T.Ananthi
For Respondents : Mr.K.V.Sajeev Kumar
Government Counsel
ORDER
The petitioner herein is working as B.T. Assistant in the Panchayat
Union Middle School, Perungudi, Valangaiman, Thiruvarur District. The claim
of the petitioner is that his junior A.Sathiyamoorthy, who is working as a B.T.
Assistant in Manickamangalam, Valangaiman Union, is drawing a higher pay
than him and therefore, seeks for rectification of the pay anamoly.
2. The stand taken by the respondents in their counter affidavit is
that as per the Government instructions dated 11.08.2016 and G.O.Ms.No.25
P & AR Department dated 23.03.2015, the petitioner cannot compare the pay
of A.Sathiyamoorthy, who comes from another Union establishment and
therefore, cannot seek junior/senior pay fixation variation. The issue involved
in this writ petition as to whether the pay anamoly can be rectified between the
junior and senior B.T. Assistants, insofar as it relates to the junior being
transferred from another establishment is concerned, came before this Court
on many occasions and in one of the orders passed by this Court in W.P.(MD)
No.24551 of 2018 dated 19.02.2019 , the learned Single Judge had held that
even after the transfer of the Teacher to a new Division and placing the
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W.P.No.15298/2017
Teacher at the bottom of the seniority list, the fact remains that the junior had
entered a new division at a later point of time and therefore cannot be
permitted to take a march over the senior Teacher. The decision of the
learned Single Judge came to be followed by another Single Judge in the case
of S.Premavathi v. Director of School Education and two others passed in
W.P.No.34455/2019 and the proposition was reiterated by following the
decision in W.P.(MD) No.24551/2018. The relevant portions of the order read
thus:
“7.It is seen from records that the petitioner joined at
Ammapettai on 31.01.1991 and Prabhu Sabastian had joined the
services only on 04.10.1996. Thereafter, the petitioner was transferred
to Oothukuli Block and even there, she had joined on 18.11.1991 and
her present block on 02.03.1994 but Prabhu Sabestian had joined only
on 04.10.1996 in Kangeyam. This is clearly borne out by records.
8. It is therefore clear from the above that both in terms of
joining service and in terms of being transferred into a different block,
the petitioner is senior to the said Prabhu Sabestian.
9.It will be relevant to refer the judgment of this Court in
WP (MD).No.24551 of 2018 dated 19.02.2019. The relevant portions
of the judgment is extracted hereunder:
“5.Further, the learned Counsel for the
petitioner relied on thejudgment passed by this Court
in W.P(MD).No.742 of 2018 dated07.02.2018 in the
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W.P.No.15298/2017
case of K.Vijayarani Vs. The District
ElementaryEducational Officer, Thoothukudi and
another, wherein at paragraph No.5, it has been held
as follows:
“5.The first respondent has proceeded on
the footing thatsince the petitioner got transferred
from Pudukkottai toKayathar Union, it is not possible
to set right the pay anomaly. The reason assigned by
the first respondent in the impugned order is un-
sustainable in law. Even though the writ petitioner
came to Kayathar Union by way of transfer and has to
be placed at the bottom of the seniority list, the fact
remains that the Shanthi got appointment as
Secondary Grade Teacher at Kayatharu Union only
later in point of time. Therefore, by no stretch of
imagination the said Shanthi could have stolen march
over the petitioner. The order impugned in this writ
petition is quashed. The respondents are directed to
set right the pay anomaly and step-up the pay of the
petitioner on par with said Shanthi. Such an order
shall be issued by the respondents within a period of
eight weeks.
6.The second respondent had filed a
Counter affidavit, wherein it has been stated as
follows:
11. It is to be noted that B.Anuradha
(Panchayar Union Area, S.Pudhur)was appointed in
the very same S.PudhurUnion, ie., on 27.07.1999 and
got transferred to the same Thirupathur Union
on01.11.2000.These two panchayat Union areas are
same distinct and that the Teaches appointed in the
same Union area, compared for fixation of pay with
his junior, who came from one Unit to another Unit,
cannot be done.
12.So even basically, the question of
comparison cannot be entertained and her request
cannot be entertained and his request cannot be
considered even at the initial stage. So, the prayer of
the petitioner can be set aside even at the primary
stage.
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W.P.No.15298/2017
7.Following the decisions as mentioned
above, this Court had, in WP(MD)No.8046 of 2018,
also passed an order in the following terms:-
“9.Therefore, it became obvious that the
petitioner all along from the date of selection and
appointment has been senior and has been marching
ahead of the said Ms.R.Vijayalakshmi. Therefore, the
pay disparity if anything found between the petitioner
and the third party, who is admittedly junior to the
petitioner, the same shall be set right by the
respondent and the anomaly must be redressed. In this
regard, the only reason cited by the second respondent
in the impugned order is that if both the petitioner and
the third-party, who is junior to the petitioner, are
appointed in the same Panchayat Union, then only the
pay disparity can be redressed and as a result pay can
be
stepped up to the senior person. These reasons cannot
be accepted as the seniority will not get changed,
unless, the person gives up such right of seniority, if
he is transferred from one Union to other Union by
losing the right of seniority. It was in the case on
hand, the petitioner all along has been senior and
thereafter, would have been available to the
respondents for promotion. Moreover, as rightly
pointed out by the learned counsel for the petitioner
that the issue is no more res integra, as the learned
single Judge of this Court in the case of Vijayarani,
cited supra, had an occasion to consider the similar
issue and ultimately, the learned Single Judge has
given findings, which reads thus:
“.....5.The first respondent has proceeded
on the footing that since the petitioner got transferred
from Pudukottai to Kayathar Union, it is not possible
to set right the pay anomaly.The reason assigned by
the first respondent in the impugned order is un-
sustainable in law. Even though the writ petitioner
came to Kayathar
Union by way of transfer and has to be placed at the
bottom of the seniority list, the fact remains that the
Shanthi got appointment as Secondary Grade Teacher
at Kayatharu Union only later in point of time.
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W.P.No.15298/2017
Therefore, by no stretch of imagination the said
Shanthi could have stolen march over the petitioner.
The order impugned in this writ petition is quashed.
The respondents are directed to set right the pay
anomaly and step-up the pay of the petitioner on par
with said Shanthi. Such an order shall be issued by
the respondents within a period of eight weeks.
6.This Writ petition is allowed
accordingly. No costs.
10.In view of the legal position and
factual matrix of this case, I am of the considered
view that the petitioner shall be entitled to seek pay
parity on par with his junior, namely,
one,Ms.R.Vijayalakshmi, who according to the
petitioner gets a higher pay, who is junior to the
petitioner all along. Therefore,the said grievance of
the petitioner shall be redressed and his pay shall be
stepped up on par with his junior.
8.In view of the above said orders, it is
clear that the issue raised in this writ petition is
covered by the number of decisions, as the reason
given in the impugned order was no more being a
valid one and therefore,on that ground, this impugned
order is liable to be quashed and accordingly, the
same is quashed.”
10.The above judgment was also subsequently followed in
WP(MD).No.6358 of 2019 dated 25.04.2019.
11.It is clear from the above judgments that even after the
transfer of the teacher to the new division and placing the teacher at
the bottom of the seniority list, the fact remains that the junior had got
into the new division only at a later point of time. Therefore, the junior
cannot be permitted to take a march over a senior teacher.
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W.P.No.15298/2017
12.In the present case, apart from the facts which clearly
demonstrates that the petitioner is very much senior to Prabhu
Sabestian both in terms of joining service and also joining the new
division, the above judgment also clearly covers the facts of the
present case.
13.In view of the above discussion, this Court is of the
considered view that the impugned order passed by the 2nd respondent
dated 19.09.2018, requires interference and accordingly the same is
quashed and the petitioner is entitled to seek pay parity on par with her
junior Prabhu Sabestian, who according to the petitioner is getting a
higher pay. The 2nd respondent is directed to rectify the pay anomaly in
the case of the petitioner and accordingly, step up the pay of the
petitioner on par with her junior Prabhu Sabestian and extend all the
consequential benefits. Necessary orders shall be passed in this regard
by the 2nd respondent within a period of six weeks from the date of
receipt copy of this order.”
3. The order of the learned Judge passed in the case of
S.Premavathi (supra) came to be upheld by the Hon'ble Division Bench of this
Court through an order dated 18.03.2021 passed in W.A.No.178/2021. The
relevant portions of the order of the learned Division Bench read as follows:
“3.The writ petitioner-respondent has relied on
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W.P.No.15298/2017
the Division Bench order passed in Madurai on November
14, 2019. Paragraph 2 of the relevant order reveals that
the appeal was directed against an order of March 13,
2019 made in W.P.(MD) No.4231 of 2019. It was also
recorded in the second paragraph that the learned Judge
had allowed the writ petition by taking note of the directions
issued in W.P.(MD) No.742 of 2018 dated February 07,
2018.
“4.By the order of November 14, 2019, the
Madurai Bench held that the writ petitioner had to be set
out over her juniors and refused to interfere with the order
impugned in that case. In view of such finding, the order
dated January 06, 2020, which is in consonance with the
order affirmed in the appeal by the Madurai Bench, cannot
be questioned. As a consequence, W.A.No.178 of 2021 is
dismissed. There will be no order as to costs. CMP No.835
of 2021 is closed.
4. The aforesaid extracts are self-explanatory, as such the claim
made by the respondents that the petitioner cannot compare himself with the
pay of his junior K.Sathiyamoorthy, who has come from another establishment,
cannot be sustained.
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W.P.No.15298/2017
5. In the result, the proceedings of the third respondent in
A.Thi.Mu.No.1410/2015/A2 dated 29.06.2016 is quashed and consequently
the respondents are directed to rectify the pay anamoly of the petitioner by
stepping up his pay on par with his junior, which exercise shall be completed
within a period of eight weeks from the date of receipt of a copy of this order.
6. The writ petition stands allowed. However, there will be no order
as to costs. Consequently connected Miscellaneous Petition is closed.
13.07.2021
Index : Yes/No
Speaking Order/Non-speaking Order
RR
To
1.The Director of Elementary Education,
DPI Complex
College Road,
Nungambakkam,
Chennai.
2.The District Elementary Education Officer,
Thiruvarur
3.The Assistant Elementary Education Officer,
Valangaiman
Thiruvarur District.
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W.P.No.15298/2017
M.S.RAMESH, J.
RR
W.P.No.15298 of 2017
13.07.2021
https://www.mhc.tn.gov.in/judis/
