Madras High Court
The Secretary To Government vs Amitha Rosaline on 2 November, 2021
Rev.Aplw.No.167 of 2019 in
WP.No.5413 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.11.2021
CORAM:
THE HON'BLE Dr. JUSTICE ANITA SUMANTH
Rev.Aplw.No.167 of 2019 in
WP.No.5413 of 2014
1.The Secretary to Government,
Education Department,
Fort St. George, Chennai-9.
2.The Joint Director,
School Education Department,
DPI Compound, College Road,
Chennai-6.
3.The Chief Educational Officer,
Villupuram.
4.The Additional Chief Educational Officer (Incharge),
Anaivarukkum Kalvi Iyakkam,
(Serva Siksha Abiyan),
Villupuram District. ... Review Petitioners/Respondents
vs.
Amitha Rosaline,
B.T.Assistant (Maths),
Government Higher Secondary School,
Vellaiyur, Villupuram District. ... Respondent/Petitioner
PRAYER: Review Application filed under Order 47 read with Rule 1 of C.P.C.,
praying to allow the Revision Application and review the orders dated
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1
Rev.Aplw.No.167 of 2019 in
WP.No.5413 of 2014
24.02.2014 made in W.P.No.5413 of 2014 and to pass such other or further
orders as this Hon'ble Court deem fit and proper in the facts and circumstances
of the case.
For Petitioners : Mr.C.Selvaraj
Government Advocate
For Respondent : Mr.S.N.Ravichandran,
ORDER
Heard Mr.C.Selvaraj, learned Government Advocate for the petitioners
and Mr.Ravichandran, learned counsel for the respondent.
2.The petitioner in contempt petition has alleged contempt as regards order
dated 24.02.2014 allowing the writ petition and quashing order dated
28.04.2011. At paragraph-6, the learned Judge has stated as follows:
'..........
6.From the facts and circumstances of the case, it is seen that though
the petitioner attended the certificate verification along with other candidates
and successfully complete the same on 27.02.2003, she was issued with the
order of appointment, for no fault of hers, only on 01.04.2003, while others
were issued with the order of appointment on 26.03.2003 itself. Hence, the
impugned order is set aside and the matter is remitted back to the 4th
respondent to consider the claim of the petitioner afresh in the light of the
judgment reported in (2013) 3 MLJ 56 (cited supra), and pass appropriate
orders, within a period of four weeks from the date of receipt of a copy of this
order. The writ petition is disposed of accordingly. No costs.'
3.The State was given four weeks from date of receipt of copy of that
order to consider the claim of the petitioner afresh in the light of the judgment in
the case of S.Mary Sherly v. Secretary to Government, Education Department,
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Rev.Aplw.No.167 of 2019 in
WP.No.5413 of 2014
Chennai and Others (2013 3 MLJ 56). The State has not complied with the
aforesaid order till date on the ground that a writ appeal had been filed
challenging order dated 24.02.2014. The Writ Appeal in WA.No.98 of 2015 has
been dismissed as withdrawn with liberty granted to the respondents to file a
review petition. Accordingly, the State has filed a review petition in
Rev.Aplw.No.167 of 2019.
4.The main ground putforth and argued is that the order of this Court in
Jeeva vs. State of Tamil Nadu Rep. by the Secretary to Government, School
Education Department and 3 others in WP.No.24045 of 2009, dated 31.10.2011
has not been taken into account by the learned Single Judge in passing order
dated 24.02.2014. To begin with the aforesaid order was not cited before the
learned Single Judge and thus, he had had no occasion to appreciate the same.
5.In any event, order dated 31.10.2011 has infact been reversed by
judgment of the Hon'ble Supreme Court, dated 20.03.2015 in
SLP.(Civil)No.28979 of 2014 where the appeal of V.Jeeva has been allowed and
the State directed to cover the appellant therein under the earlier pension scheme
prevalent prior to 01.04.2003.
6.The operative portion of the judgment reads as follows:
'.......
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Rev.Aplw.No.167 of 2019 in
WP.No.5413 of 2014
3.The short question for consideration is whether the appellant is
entitled for the benefit of the Pension Scheme which prevailed prior to 1st April,
2003, or the one which came into effect by way of Contributory Pension Scheme
with effect from 1st April, 2000.
4.The short facts were that the appellant was issued with an order of
appointment on 26th March, 2003 and the place of posting was mentioned in the
said order as Madhanoor, Vellore District. To the misfortune of the appellant,
when he went there to joint duty on 27th March, 2003, he was told that there was
no vacancy existing in the place. When he reported back to the respondent,
revised order was issued on 31st March, 2003, indicating that place of posting
as Thimiri of the same Vellore District. The appellant joined on 1 st April, 2003.
In the meantime, then existing Pension Scheme prior to 1st April, 2003 was
replaced by a Contributory Pension Scheme with effect from 1st April, 2003.
When the appellant wanted to be governed by the earlier Pension Scheme, the
same was not acceded to by the respondent by stating that the date of joining
was 1st April, 2003, when the earlier Pension Scheme was not in force. The
High Court having declined to accede to the claim of the appellant by the order
impugned herein, the appellant is before us.
5.After hearing and after perusing the papers placed before us, we find
that the appellant was never at fault and pursuant to the order of appointment
dated 26th March, 2003, he had in compliance reported at the place of posting.
Since, the concerned place where he was directed to join duty namely,
Madhanoor, Vellore District and already filled up, the appellant rushed back
and he was issued with subsequent order dated 31st March, 2003 indicating
different place of posting. It was in that process, the appellant could not joint
duty prior to 1st April, 2003, for which he could not be penalised for not getting
a better Pension Scheme which was prevailing prior to 1st April, 2003.
Therefore, we are convinced that the appellant should be allowed to avail the
Pension Scheme which was prevalent as on 31st March, 2003, as the letter of
appointment dated 26th March, 2003 certainly entitled the appellant to join duty
and he took every earnest effort to join duty on 27 th March, 2003 and he was
disabled from joining duty till 31st March, 2003.
6.In such circumstances, the impugned order is set aside, the appeal is
allowed and the respondent is directed to cover the appellant under the earlier
Pension Scheme which was prevalent prior to 1st April, 2003. This order is
being passed in the peculiar facts and circumstances of this case and it cannot
be quoted as a precedent in any other case.'
7.While holding that, that appellant was entitled to be covered by the
earlier scheme, the Hon'ble Court has stated that the benefit granted to V.Jeeva
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Rev.Aplw.No.167 of 2019 in
WP.No.5413 of 2014
was on the peculiar facts of her case and cannot be quoted as a precedent. The
facts, dates and sequence of events in this case are thus to be examined carefully
to ascertain whether the principle laid down in Jeeva's case would be applicable
to this petitioner as well.
8.For this purpose, I refer to the recording of facts in the order of the
learned Single Judge dated 24.02.2014. To be noted that these facts are admitted
seeing as no counter has been filed by the respondents either in the writ petition
or in the contempt petition before me and in any event, Mr.Selvaraj, learned
Government Advocate appearing for the State would also fairly, not controvert
the dates and events as below:
(i)The petitioner passed her B.Sc. Degree in the year 1996 and completed
her Post Graduation in 1998 and B.Ed. In 1999, prior to registering in the District
Employment Exchange.
(ii)She responded to Notification dated 09.02.2002 issued by the Teachers
Recruitment Board (TRB) for vacancy in post of B.T. Assistant Teacher and
applied for the same.
(iii)She attended the written examination on 21.04.2002 and passed the
same, securing 98 marks.
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Rev.Aplw.No.167 of 2019 in
WP.No.5413 of 2014
(iv)The petitioner was asked to attend the certificate verification on
27.02.2003 by letter dated 20.02.2003.
(v)She appeared before the TRB as directed, submitting her community
certificate that contained her husband's name. Since she was asked to submit the
certificate containing her father's name, the same was also produced without
delay on the same day. Thus certificate verification was successfully completed
on 27.02.2003.
(vi)All candidates who attended certificate verification on 27.02.2003 with
her were issued appointment orders on 26.03.2003, barring the petitioner.
(vii)Thus on 27.03.2003, she approached the office of the TRB and the
TRB recommended her for appointment on 27.03.2003 itself.
(viii)The appointment order was issued on 01.04.2003.
9.The respondent places great emphasis upon the date of appointment
order to state that since the petitioner has been appointed only on 01.04.2003 she
will not be entitled to the benefit of the pension scheme that was in effect till
31.03.2003. However, this submission is liable to be rejected since, for all intents
and purposes, the petitioner should be taken to have been appointed on
27.03.2013 along with her colleagues who attended the certificate verification
with her.
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Rev.Aplw.No.167 of 2019 in
WP.No.5413 of 2014
10.In fact the recommendation of the TRB for her appointment is also
dated 27.03.2003. The mere fact that the appointment order has been issued by
R2 on 01.04.2003 cannot stand in the way of the benefit that is available to the
petitioner in the facts and circumstances as noticed by me earlier. The fact that
R2 has not been prompt, and issued the appointment letter co-terminus with the
appointment letters issued to those that the attended certificate verification on
27.03.2003, cannot and must not, impact the petitioners eligibility. Thus the ratio
of the judgment of the Hon'ble Supreme Court dated 20.03.2015 is applicable on
all fours to the present case.
11.The Review Application is dismissed and as a consequence, effect will
be given to order dated 24.02.2014 within a period of two weeks from today. No
costs.
02.11.2021
vs/kbs
Index:Yes
Speaking order
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Rev.Aplw.No.167 of 2019 in
WP.No.5413 of 2014
DR. ANITA SUMANTH, J.
vs/kbs
Rev.Aplw.No.167 of 2019 in
WP.No.5413 of 2014
02.11.2021
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