Madras High Court
S.K.Kannan vs The Director Of School Education on 8 March, 2022
W.A.(MD)No.627 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 01.07.2022
PRONOUNCED ON: 15 .07.2022
CORAM:
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A(MD).No.627 of 2022
S.K.Kannan
P.G.Assistant(Chemistry)
Government Higher Secondary School
Nadayaneri, Virudhunagar District
Now working at
Government Higher Secondary School
Pappayanaickerpatti
Srivilliputhur Taluk
Virudhunagar District ...Appellant/Petitioner
Vs
1.The Director of School Education
Office of the Director of School Education
Chennai 600 006
2.The Joint Director (Higher Secondary)
Directorate of School Education
Chennai 600 006
3.The Chief Educational Officer
Office of the Chief Educational Officer
Virudhunagar District
1/23
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W.A.(MD)No.627 of 2022
4.The Head Master
Government Higher Secondary School
Nadayaneri, Virudhunagar District ....Respondents /Respondents
Prayer: Writ Appeal filed under Clause 15 of Letters Patent,to allow the writ
appeal by setting aside the order made in W.P(MD).No.6285 of 2018 dated
08.03.2022.
For Appellant : Mr.M.Gnanagurunathan
For Respondents : Mr.S.Saji Bino
Special Government Pleader
JUDGMENT
(Made by R.VIJAYAKUMAR, J.)
The writ petitioner is the appellant.
2.The writ petition was filed to quash an order passed by the fourth
respondent herein wherein the request of the petitioner for re-fixation of his
salary taking note of the last drawn salary in the previous post of B.T.Assistant
(Science) was rejected.
3.The petitioner was appointed as B.T.Assistant (Science) in the
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Elementary Education through Teachers Recruitment Board on 09.04.2007 in
the Panchayat Union Middle School. He has completed his probation on
08.04.2009. He was working in the said Elementary Education School till
09.06.2013. According to the petitioner, a recruitment process was commenced
for P.G.Assistant Teacher in Higher Secondary Education by the Teachers
Recruitment Board. The petitioner was selected and appointed as P.G.Assistant
on 10.06.2013 in a Government High Secondary School and he has completed
his probation on 09.06.2015.
4.The petitioner has further contended that he was relieved from the post
of B.T.Assistant (Science) in the fore noon on 10.06.2013 and he immediately
joined on the same day namely 10.06.2013 as P.G.Assistant. The same Service
Register which was used while the petitioner was B.T.Assistant (Science) was
continued to be used even after he was appointed as a P.G.Assistant
(Chemistry).
5.The main grievance of the petitioner was that when he joined as a
P.G.Assistant, he started drawing a lesser salary before than what he was
receiving as last drawn salary in the post of B.T.Assistant (Science). Hence, he
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gave several representations to the respondents requesting them to consider his
request for re-fixation of his salary in tune with last drawn salary for the post of
B.T.Assistant. Finally, the petitioner gave a representation on 20.12.2017 to the
Chief Minister Special Cell which was forwarded to the third respondent herein.
The third respondent by his proceedings dated 16.02.2018 requested the fourth
respondent ( who is the Headmaster of the School in which the petitioner was
working) directing him to pass orders and report the same to him.
6.The fourth respondent herein has passed the impugned order on
03.03.2018 rejecting the request of the petitioner on the following grounds.
(i). In the appointment order of the petitioner as P.G.Assistant
(Chemistry), the pay was fixed as Rs.9300/- 34800/- and hence, the said salary
cannot be refixed now by the Headmaster.
(ii). The petitioner has got selected through the Teachers Recruitment
Board for the post of B.T.Assistant (Science) and thereafter, again got selected
through the Teachers Recruitment Board for P.G.Assistant (Chemistry). Since
both the services are completely different, there is no possibility of re-fixation
of pay scale based on previous service.
(iii). No proposal or advise has been received from the second respondent
for pay fixation.
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7.The above said impugned order was challenged by the writ petitioner
before the learned Single Judge on the following grounds:
(i).The second respondent alone is the competent authority to fix the pay
scale. The third respondent had erroneously sent the proposal to the fourth
respondent.
(ii).The petitioner was originally selected as B.T.Assistant (Science)
through the Teachers Recruitment Board and thereafter, through the selection of
Teachers Recruitment Board, he has again been selected as a P.G.Assistant.
Hence, the appointment of the petitioner as P.G.Assistant should only be
considered to be an appointment by transfer of service. When the appointment
of the petitioner is by transfer of service, he is entitled to pay protection.
Therefore, the authorities were not right in rejecting his request to refix the pay
scale on the basis of the last drawn salary of the petitioner while he was
working as a B.T.Assistant.
(iii).The petitioner was relieved as B.T.Assistant (Science) on 10.06.2013
and on the same day, he has joined as P.G.Assistant. Hence, there is no break in
service.
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(iv).The same service book which was utilized to record his service
details while he was working as B.T.Assistant (Science) was continued even
after being appointed as P.G.Assistant.
(v).A teacher by name S.Indira Anandhavalli was recruited through
Teachers Recruitment Board as B.T.Assistant (Tamil) and posted at a
Government Higher Secondary School. She was given pay protection by taking
note of the last drawn salary for the previous post of Assistant since she has
joined without break in service. Hence, the same is applicable to the petitioner
as well.
8.The petitioner has legitimate expectation that the request of pay
anomaly would be considered within a reasonable time.
9.After considering the submissions made on the side of the learned
counsel appearing for the petitioner and the Government Advocate, the learned
Single Judge arrived at the following findings:
(i).The appointment of the petitioner to the post of P.G.Assistant is a
fresh recruitment by the Teachers Recruitment Board.
(ii).The salary that is applicable to the P.G.Assistant post is as per
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notification that is applicable to the petitioner in the recruitment process.
Having accepted the rules applicable to the recruitment process, the petitioner
cannot now turn around and seek enhanced salary.
(iii).If the plea of the petitioner is accepted, other persons who are
selected through the same selection process may also claim parity with him.
Hence, the claim of the petitioner is illegal and dismissed the writ petition on
the ground that a mandamus cannot be granted for an illegal claim.
10.This order is under challenge in the present Writ Appeal.
11.The learned counsel for the appellant has made the following
submissions:
(i).A Division Bench of our High Court in a judgment in W.A.No.3868 of
2019 dated 16.10.2020 (The Secretary to State Government, Department of
School Education, Fort.St.George, Chennai and another -Vs- G.Rufus David).
has held that where a Secondary Grade Teacher working in an Aided School,
got recruited as a B.T.Assistant (Science) and appointed to a Government
School through Teachers Recruitment Board, the said appointment should be
considered only as an appointment by transfer of service. The Division Bench
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has invoked Rule 3(i)(iv) of the Special Rules for Tamil Nadu Educational
Subordinate Service. The Hon'ble Division Bench has further held that when the
State authorities have decided to count the past service of the teacher for the
purpose of conferment of pensionary benefits on his retirement, the same
yardstick has to be resorted to by the State authorities for re-fixation of pay
during the selection of his service as B.T.Assistant. According to the learned
counsel for the appellant, the said judgment of the Division Bench was
challenged by the State in SLP(C).No.5633 of 2021 before the Hon'ble Apex
Court. By an order dated 12.04.2021, the Hon'ble Apex Court has dismissed the
Special Leave Petition. Hence, according to the learned counsel for the
appellant, the order of the Division Bench has been confirmed by the Hon'ble
Apex Court. In the present case, the B.T.Assistant Teacher has got recruited as a
P.G.Assistant through Teachers Recruitment Board and hence, the same ratio
has to be applied to the present case.
(ii).The said Division Bench Judgment cited supra has been followed one
of us (R.Vijayakumar) in W.P(MD).No.14704 of 2014 by an order dated
24.01.2021 (S.Jayakumar Vs. The State of Tamil Nadu, represented by its
Secretary, Department of School Educaiton, Fort St.George, Chennai 600
006 and others). Hence, the same may be followed.
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(iii). The learned Counsel had further referred the Special Rules for Tamil
Nadu Higher Secondary Educational Service, notified under G.O.Ms.No.720,
Education, dated 28.04.1981. The learned counsel for the appellant pointed out
that P.G.Assistant (Chemistry) falls under Class -2. The mode of recruitment for
Class -2 is by way of direct recruitment or recruitment by transfer from the
Tamil Nadu Educational Subordinate Service. Hence, he contended that the
present appointment of the petitioner as P.G.Assistant (Chemistry) should only
be considered as recruitment by transfer from the Tamil Nadu Educational
Subordinate Service ( the post of B.T.Assistant). When an appointment takes
place by transfer of service, the service in the new post should only be
considered to be a continuos one and the petitioner is entitled to protect his last
drawn wages as B.T.Assistant.
(iv).The learned counsel for the appellant had further contended that the
learned Single Judge has not considered the fact that the petitioner did not
resign from the post of B.T.Assistant, but he was only relieved by the concerned
authorities so as to enable him to join as a P.G.Assistant.
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(v).The learned counsel had further contended that he was relieved on
10.06.2013 as B.T.Assistant and he joined as P.G.Assistant on the same day
without any break in service. Hence, he prayed for allowing the writ appeal.
12.The learned Special Government Pleader appearing for the
respondents had contended as follows:
(i).The petitioner has applied for the post of P.G.Assistant (Chemistry)
pursuant to a public notification issued by the Teachers Recruitment Board. He
took part in a competitive examination and thereafter, got selected and
appointed to the post of P.G.Assistant. Hence, the appointment as P.G.Assistant
should only be construed to be a fresh appointment through direct recruitment
and not by transfer of service.
(ii). The learned Special Government Pleader further contended that
thousands of teachers participated in the recruitment process and among them
so many selected teachers were working as B.T.Assistants. Hence, the petitioner
alone cannot plead that he has been inducted into a post with a lower salary.
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(iii). The learned Counsel had further contended that the pay scale was
reflected in the public advertisement as well as in the appointment order. Hence,
the petitioner cannot now complain as pay scale of B.T.Assistant has to be
protected and he should be paid an enhanced salary. He had further contended
that the Hon'ble Division Bench Judgment in W.A.No.3868 of 2019 referred to
by the learned counsel for the petitioner is not applicable to the facts of the
present case. Hence, he contended that the learned Single Judge was right in
dismissing the writ petition and he prayed for confirming the order the learned
Single Judge.
13.We have given anxious consideration to the submissions made on the
side of the learned counsel for the appellant and the learned Special
Government Pleader appearing for the respondents.
14.The undisputed facts are as follows:
(i).The petitioner was originally appointed as B.T.Assistant (Science)
through Teachers Recruitment Board on 09.04.2007. While he was working as a
B.T.Assistant (Science), he had applied for the post of P.G.Assistant,
participated in the competitive examination and got selected as P.G.Assistant.
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The petitioner was appointed as P.G.Assistant on 10.06.2013. No doubt, the
petitioner got relieved from the post of B.T.Assistant on 10.06.2013 and joined
as P.G.Assistant on the same day.
(ii). A perusal of appointment order of the appellant as P.G.Assistant
dated 05.03.2013 indicates that he was appointed in the pay scale of Rs.9300/-
-34800/-. As per Clause 6 of the appointment order, he has to complete the
probation of two years within a period of three years from the date of
regularization of service.
15.The relevant portion of Special Rules for Tamil Nadu Higher
Secondary Educational Service is extracted as follows:
Class and Category Method of recruitment
(1) (2)
Class II. 1.Teachers in Academic (i).Direct recruitment; or
Subjects (ii).Recruitment by transfer from
the Tamil Nadu Educational
Subordinate Service; or
(iii).If no qualified and suitable
candidates are available for
appointment by method (ii)above,
by recruitment by transfer from
any other service;
2(b)(ii).Fifty percent of the substantative vacancies in Classes II and III
of the service shall be filled or reserved to be filled by direct recruitment.
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8(a).Probation- Every person appointed to any category by direct
recruitment shall from the date on which he joins duty, be on probation in
such category for a total period of two years on duty within a continuous
period of three years.
(b).Every person appointed to any category by recruitment by
transfer shall, from the date on which he joins duty, be on probation such
category far a total period of one year within a continuos period of two
years.
16. There is no dispute that the petitioner on his appointment as
P.G.Assistant is covered by the Special Rules for the Tamil Nadu Higher
Secondary Educational Service and the relevant service rules have been
extracted in the above said paragraphs.
17.A perusal of the Service Rules discloses that the post of P.G.Assistant
(Chemistry) falls within Class -II of the Category No.1. The said post can either
be filled through direct recruitment or recruitment by transfer from Tamil Nadu
Educational Subordinate Service or if no qualified and suitable candidates are
available for appointment by method (ii) above, by recruitment by transfer from
any other service.
18.A perusal of Rule 2(b)(ii) indicates that 50% of the substantiative
vacancies in Class II and Class III of the service shall be filled or reserved to be
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filled by the direct recruitment. Thereby, indicating that the balance 50% shall
be by transfer from other service.
19. A careful perusal of Rule 8 reveals that a person who has been
appointed to any category by direct recruitment shall be on a probation for a
period of two years on duty within a continuos period of three years. On the
other hand, if he has been appointed by recruitment by transfer, he should be on
probation for a period of just one year within a continuos period of two years.
20. The above said service rules clearly differentiate between the persons
who are appointed through direct recruitment and those who are appointed by
transfer of service.
21. A perusal of appointment order of the petitioner as P.G.Assistant
(Chemistry) dated 05.03.2013 clearly indicates that the appointment is through
the direct recruitment. Further, the probation has been fixed in Clause 6 of the
appointment order for a period of three years as per Rule 8(a) meant for
candidate appointed through direct recruitment. The pleadings in the writ
petition in Paragraph No.4 clearly reveals that the petitioner had joined as
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P.G.Assistant on 10.06.2013 and he had completed his probation on 09.06.2015
namely after completing a period of two years meant for a candidate appointed
through direct recruitment.
22. All the above said facts will clearly reveal that the petitioner was
appointed to the post of P.G.Assistant only under the first method of recruitment
meant for Class-II in the relevant Service Rules namely direct recruitment and
not through the second mode namely transfer of service.
23. A perusal of Rule 2(b)(ii) in the said Service Rules indicates that 50%
of the substantiative vacancies for the post of teachers in the academic subjects
have to be filled up by the direct recruitment. Thereby, indicating that the
balance 50% should be by way of transfer of service. Only those persons who
got appointed in the said 50% meant for transfer of service can claim benefit of
pay protection. Any candidate who has got selected through 50% meant for
direct recruitment can never claim any pay protection based on his last drawn
wages in the previous post held by him before such recruitment. In the present
case, admittedly, the petitioner has applied for P.G.Assistant post pursuant to
the paper notification issued by the Teachers Recruitment Board. The petitioner
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has got selected by participating in the competitive examination. The
petitioner's appointment order indicates that he has been selected and appointed
through direct recruitment. Hence, the petitioner cannot claim the benefit of the
candidates who were appointed through 50% reservation meant for the
candidates appointed through transfer of service.
24. The learned counsel for the petitioner has referred to the Division
Bench judgement of our High Court made in W.A.No.3868 of 2019 dated
16.10.2020 to contend that in a case where a Secondary Grade Teacher working
in an Aided School got recruited through the Teachers Recruitment Board and
appointed as B.T.Assistant, he was granted pay protection. The petitioner had
further contended that the order of the Division Bench has been confirmed by
the Hon'ble Apex Court in SLP(Civil).No.5633 of 2021 dated 12.04.2021. The
petitioner had further referred to the judgment of one of us ( R.Vijayakumar)
rendered in W.P(MD).N.14704 of 2014 dated 24.01.2022.
25. The Hon'ble Supreme Court in a judgment reported in (2017) 5 SCC
Page 783 ( Palure Bhaskar Rao and others -Vs- P.Ramaseshaiah and others)
in Paragraph Nos.14 and 15 has held as follows:
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“14.Transfer and recruitment by transfer are entirely two different
concepts. No doubt transfer can be from one category to another category
or within the class if the rule permits interchangeability of the categories
within a class. Any other transfer both intra-category and inter-category
are in fact, under law is a selection and appointment by way of a transfer
from one category to another or from one class to another class or from
one service to another. If it is a transfer simpliciter it conveys a different
meaning and if it is a recruitment by transfer, as we have clarified above
conveys a different concept altogether. The latter is a mode of
selection/recruitment to a service.
15.Transfer in relation to service simply means a change of a place
of employment within an organization. Such transfer being to a similar
post in the same cadre and therefore, obviously such a transfer does not
result in the termination of his lien in the parent cadre but recruitment by
transfer is a different service concept altogether. It is a method of
recruitment to a service, in the instant case to a different category in the
same service initially and thereafter, to a different service altogether.
Once an employee undergoes a transfer by way of a recruitment to a
different cadre or to a different service, the employee loses his lien in the
parent cadre/service. In that process, there is an induction to a new cadre
and sometimes with a different type of duty. Such induction has distinct
consequence on the career of the employee different from what would
have been the normal course had he continued in the parent service. Thus
the recruitment by transfer terminates the lien of an employee in the
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parent cadre/service whereas transfer simpliciter to a similar post in the
same cadre results only in change of place of employment and therefore,
there is no termination of lien ( see.V.Jagannadha Rao Vs.State of A.P
and B.Thirumal V.Ananda Sivakumar)”
26.We are not in agreement with the judgment of the Division Bench in
W.A.No.3868 of 2019 dated 16.10.2020 for the following reasons:
(i).The judgment of the Hon'ble Supreme Court reported in in (2017) 5
SCC Page 783 ( Palure Bhaskar Rao and others -Vs- P.Ramaseshaiah and
others) as referred supra has not been taken into consideration.
(ii).Rule 2(b)(ii) of Special Rules for Tamil Nadu Higher Secondary
Educational Service relating to 50% reservation for direct recruitment has not
been brought to the notice of the Division Bench.
(iii).Rule-8 relating to fixation of two different periods of probation for
the candidates selected through direct recruitment and transfer of service has not
been brought to the notice of the Division Bench.
27.In view of the above said circumstances, we respectfully follow the
judgement of the Hon'ble Supreme Court reported in in (2017) 5 SCC Page 783
( Palure Bhaskar Rao and others -Vs- P.Ramaseshaiah and others).
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28. The petitioner has referred to the dismissal of SLP (Civil).No.5633 of
2021 dated 12.04.2021 which challenged the Division Bench judgment in
W.A.No.3868 of 2019. A perusal of the order of Hon'ble Supreme Court
reflects that the Special Leave Petition has been dismissed without assigning
any reasons. The Hon'ble Supreme Court in a judgment reported in (2019) 4
SCC Page 376 ( Khoday Distilleries Limited (Now known as Khoday India
Limited) and others -Vs- Sri Mahadeshwara Sahakara Sakkare Karkhane
Limited, Kollegal (Under Liquidation) Represented by the Liquidator) in
Paragraoh No.26.2 has held as follows:
“26.2. We reiterate the conclusions relevant for these cases as under
( Kunhayammed case, SCC P.384).
“(iv).An order refusing special leave to appeal may be a non-speaking
order of a speaking one. In either case, it does not attract the doctrine of
merger. An order refusing special leave to appeal does not stand
substituted in place of the order under challenge. All that it means is that
the Court was not inclined to exercise its discretion so as to allow the
appeal being filed.
(v). If the order refusing leave to appeal is a speaking order i.e.gives
reasons for refusing the grant of leave, then the order has two
implications. Firstly, the statement of law contained in the order is a
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declaration of law by the Supreme Court within the meaning of Article
141 of the Constitution. Secondly, other than the declaration of law,
whatever is stated in the order are the findings recorded by the Supreme
Court which would bind the parties thereto and also the Court, tribunal
or authority in any proceedings subsequent thereto by way of judicial
discipline, the Supreme Court being the Apex Court of the country. But,
this does not amount to saying that the order of the Court, tribunal or
authority below has stood merged in the order of the Supreme Court
rejecting the special leave petition or that the order of the Supreme Court
is the only order binding as res judicata in subsequent proceedings
between the parties.
(vi). Once leave to appeal has been granted and appellate jurisdiction of
the Supreme Court has been invoked the order passed in appeal would
attract the doctrine of merger; the order may be of reversal, modification
or merely affirmation.
(vii). On an appeal having been preferred or a petition seeking leave to
appeal having been converted into an appeal before the Supreme Court
the jurisdiction of the High Court to entertain a review petition is lost
thereafter as provided by sub-rule (1) of Order 47 Rule 1 CPC “
29. In view of the judgment of the Hon'ble Supreme Court, we find that
the order dated 12.04.2021 made in SLP(Civil).No.5633 of 2021 is an order
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refusing the Special Leave Petition without assigning any reason. Hence, it does
not attract the doctrine of merger. Therefore, an order refusing Special Leave
Petition does not stand substituted in the place of the order in W.A.No.3868 of
2019. Hence, the contention of the learned counsel appearing for the appellant
that the order of the Division Bench of our High Court has been confirmed by
the Hon'ble Apex Court is not legally sustainable.
30.The petitioner having participated in the direct recruitment process and
got appointment cannot turn around and contend that he was appointed by
transfer of service from the post of B.T.Assistant to the post of P.G.Assistant.
The continuous usage of the old Service Register of the petitioner, even after
being appointed as P.G.Assistant will not confer any right to get pay protection.
The fact that there was no break in service also will not convert a direct
recruitment into an appointment by transfer of service. Hence, the contentions
on the side of the learned counsel for the appellant are not legally sustainable.
31.In view of the above said discussions, we find that there is no
illegality or infirmity in the order passed by the learned Single Judge in
dismissing the writ petition. We concur with the conclusion arrived at by the
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learned Single Judge for the additional findings rendered by us as stated supra.
Hence, the writ appeal is devoid of any merits and the same stands dismissed.
No costs.
(P.N.P.J.,) (R.V.J.,)
15 .07.2022
Index :yes
Internet :yes
msa
To
1.The Director of School Education
Office of the Director of School Education
Chennai 600 006
2.The Joint Director (Higher Secondary)
Directorate of School Education
Chennai 600 006
3.The Chief Educational Officer
Office of the Chief Educational Officer
Virudhunagar District
4.The Head Master
Government Higher Secondary School
Nadayaneri, Virudhunagar District
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W.A.(MD)No.627 of 2022
P.N.PRAKASH,J.
AND
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
W.A(MD).No.627 of 2022
15.07.2022
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