Madras High Court
S.Suresh Newman vs The District Elementary ... on 27 June, 2022
W.P.(MD).No.6522 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.06.2022
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.(MD).No.6522 of 2018
S.Suresh Newman ... Petitioner
Vs.
1.The District Elementary Educational Officer,
Tuticorin District.
2.The Additional Assistant Elementary Educational Officer,
Alwarthirunagari Union,
Tuticorin 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 order passed by the second respondent in his
proceedings in Na.Ka.1462/A2/2017 dated 27.02.2018 and quash the same and
direct the respondents to step up the petitioner's scale of pay with effect from
01.07.2017 the date on which his junior was given higher scale of pay with all
consequential benefits thereof.
For Petitioner : Mr.V.Panneer Selvam
For Respondents : Mr.V.Nirmal Kumar,
Government Advocate.
1/13
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W.P.(MD).No.6522 of 2018
ORDER
When the petitioner herein had sought for rectification of the pay
anomaly with that of his junior, the same came to be rejected on the ground that
the rectification of pay anomaly in respect of the senior and junior shall be done
only on those who are appointed in the same unit and continue in the same unit.
In other words, the first respondent herein was of the view that a teacher
working in an unit cannot be compared to a junior working in another unit,
where he was appointed and later came to be transferred to the unit, where the
teacher seeks for rectification of pay anomaly.
2. This issue has already been dealt with in various decisions of this
Court. One such decision is passed in the case of S.Rajaiah Vs. The Director
of Elementary Education and others in W.P.No.15298 of 2017, dated
13.07.2021, wherein, I had placed reliance on another decision of this Court.
The relevant portion of the order reads as follows:
“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
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W.P.(MD).No.6522 of 2018
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 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.
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W.P.(MD).No.6522 of 2018
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 the judgment passed by this
Court in W.P(MD).No.742 of 2018 dated
07.02.2018 in the case of K.Vijayarani Vs. The
District Elementary Educational Officer,
Thoothukudi and another, wherein at
paragraph No.5, it has been held as follows:
“5.The first respondent has
proceeded on the footing that since the
petitioner got transferred from Pudukkottai 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
unsustainable 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
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W.P.(MD).No.6522 of 2018
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 on
01.11.2000.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.
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W.P.(MD).No.6522 of 2018
So, the prayer of the petitioner can be set aside
even at the primary stage.
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
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W.P.(MD).No.6522 of 2018
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
unsustainable 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
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W.P.(MD).No.6522 of 2018
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.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
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W.P.(MD).No.6522 of 2018
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.
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 2 nd
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
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W.P.(MD).No.6522 of 2018
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 2 nd
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 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
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W.P.(MD).No.6522 of 2018
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.”
3. Thus, in view of the ratio laid down in the aforesaid decision, the first
respondent herein is not justified in denying to rectify the pay anomaly between
the petitioner and his junior.
4. In the result, the impugned order dated 27.02.2018 is quashed.
Consequently, there shall be a direction to the respondents herein to step up the
petitioner's scale of pay with effect from 01.07.2017, the date on which his
junior was fixed with the higher scale of pay, with all consequential benefits.
Such orders shall be passed within a period of eight (8) weeks from the date of
receipt of a copy of this order.
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W.P.(MD).No.6522 of 2018
5. This Writ Petition stands allowed accordingly. There shall be no order
as to costs.
27.06.2022
Index : Yes / No
Internet : Yes/ No
Lm
To
1.The District Elementary Educational Officer,
Tuticorin District.
2.The Additional Assistant Elementary Educational Officer,
Alwarthirunagari Union,
Tuticorin District.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.6522 of 2018
M.S.RAMESH, J.
Lm
W.P.(MD).No.6522 of 2018
27.06.2022
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