Madras High Court
V.Rajamani vs The Secretary To The Government on 6 September, 2022
W.P.(MD).No.15364 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.09.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).No.15364 of 2013
V.Rajamani ... Petitioner
Vs.
1.The Secretary to the Government,
School Education Department,
Chennai.
2.The Joint Director of School Education,
College Road,
Chennai – 05.
3.The Chief Educational Officer,
Sivagangai,
Sivagangai 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 impugned order passed by the third respondent
bearing O.M.No.1219/A2/2008 dated 19.08.2013 and quash the same with the
further direction directing the respondents to re- fix the petitioner's pay and
pension in the light of Government Orders.
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W.P.(MD).No.15364 of 2013
For Petitioner : Mr.Porkodi Kannan,
for M/s.Polax Legal Solution
For Respondents : Mrs.D.Farjana Ghoushia,
Special Government Pleader.
ORDER
This Writ Petition has been filed for Writ of Certiorarified Mandamus to
quash the impugned order dated 19.08.2013 and for a direction to the
respondents to fix the petitioner's pay and pension in the light of the
Government Orders.
2. The brief facts as stated in the affidavit is that the petitioner was
appointed as Secondary Grade Teacher in M.K.N. Middle School on
28.07.1971, which is an Aided Non-minority School and the petitioner was
receiving salary fixed for the aided school. The petitioner was granted Special
Grade on completion of 20 years of service in the same post. In the meanwhile,
the Government called for qualifying persons for the post of B.T. Assistant
(History). Since the petitioner is having qualification, the employment
exchange which is appropriate authority for sponsoring, has forwarded the
petitioner’s name. The petitioner had also obtained no objection certificate for
attending interview from the Management and thereafter the petitioner had
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W.P.(MD).No.15364 of 2013
attended the interview. After certificate verification on 21.12.1991, the
petitioner was appointed as B.T. Assistant (History) in Government High
School, Melanettur, Sivagangai District. After a long period of service, the
petitioner attained superannuation on 30.06.2007 and has put in 37 years of
service.
3. The contention of the petitioner is that he had completed 20 years of
service and was granted Special Grade. During the tenure in the Aided School,
his last drawn salary was 1640-60-2600-75-2900. After shifting to the
Government School as B.T. Assistant, the petitioner scale of pay was fixed as
1400-40-1600-50-2300-60-2600. The contention of the petitioner is that since
the petitioner was working as Secondary Grade Teacher (Special Grade) till
20.12.1991, thereafter he had joined as B.T. Assistant and his salary should
have been fixed the last drawn salary which was received in the Aided School.
The petitioner was making continuous representation for re-fixation of salary.
As there was no response, the petitioner approached this Court in W.P.(MD)No.
7034 of 2008 and this Court vide order dated 08.04.2013 had directed the
respondents to consider the representation dated 21.12.2007. After considering
the petitioner's case, the respondents had passed the impugned order dated
19.08.2013. Aggrieved over the same, the present Writ Petition is filed.
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4. The respondents have filed counter affidavit stating that while passing
the impugned order, it has been categorically stated that any individual is
promoted to the post of B.T. Assistant by considering his higher qualification
from the post of Secondary Grade Teacher, then the individual would be
entitled to the scale of pay as applicable to the B.T. Assistant by taking the scale
of pay in the post of Secondary Grade Teacher and grant pay protection. But in
the case of the petitioner, the petitioner has been directly recruited in the post of
B.T. Assistant and not promoted from his earlier post of Secondary Grade
Teacher. Hence, his earlier scale of pay in the post of Secondary Grade Teacher
cannot not be continued, since there are no provisions either in the
Fundamental Rules or in State and Subordinate Service Rules or in the
concerned Special Rules for appointment by transfer and promotion. Moreover,
there is no provision in the existing rules to allow the last pay drawn to those
who have joined in the Government service by direct recruitment after
resigning from aided Schools that too in a different post. Hence the fixation of
initial pay in the post of B.T. Assistant is well in accordance with the existing
rules. The service put in by any teacher in aided School have been taken into
account for the purpose of calculation of pension and gratuity alone. The
petitioner is not coming within the purview of any Government Order and
therefore, the respondents prayed to dismiss the Writ Petition.
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W.P.(MD).No.15364 of 2013
5. Heard Mrs. Porkodi Kannan, for M/s.Polax Legal Solution the Learned
Counsel for the petitioner and Mrs.D.Farjana Ghoushia, the Learned Special
Government Pleader appearing for the respondents and perused the records.
6. The Learned Counsel for the petitioner relied on the judgment
rendered in W.P.(MD)No.15745 of 2013 vide order dated 11.08.2021, wherein,
this Court has held that,
“9.In the present case, this Court is of the view that the Government Order in
G.O.Ms.No.1580, dated 18.10.1969, can be applied to the case of the petitioner. It is
also brought to the notice of this Court that the respondents have granted the service
benefits to similarly placed persons by proceeding, dated 03.01.2012. The fourth
respondent himself has granted selection grade to the petitioner by taking into
consideration the date of appointment in the previous School.
10.The petitioner was appointed originally in a private aided School. After serving
few years in the private aided School, the petitioner got appointment in the Panchayat
Union Elementary School without any break in service. Since it is admitted that the
service of the petitioner in the private aided School can be counted for the purpose of
pension at the time of retirement and that she was awarded Selection Grade counting
the petitioner's service in the private aided School, the contention of the respondents
that the petitioner's request for pay protection as per G.O.Ms.No.1072, P&AR
Department, dated 31.10.1986 is not as per the Rules cannot be countenanced.
11.In view of the above discussion, the petitioner is entitled to succeed and the Writ
Petition is allowed. The petitioner is entitled to refix pay scale in the light of the
various Government Orders. The respondents are directed to re-fix the pay of the
petitioner by taking into consideration her last drawn pay in the previous School,
when she was joined in the Bogalur Union Elementary School as Secondary Grade
Teacher and other service and monetary benefits within a period of twelve weeks from
the date of receipt of a copy of this order. No costs.”
7. For better appreciation the G.O.Ms.No.1580 Education Department
dated 18.10.1969 is extracted hereunder:
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Read:
G.O. Ms. No. 1531 Education dated 09.05.1964
G.O. Ms. No. 53 Education dated 13.04.1966
G.O. Ms. No. 1617 Education dated 19.09.1967
Govt. Memo. No. 71818 / E3 / 67-3 Education dated 25.10.1967
Govt. Memo. No. 44931 / E3 / 68-4 Education dated 13.02.1969
From the Director of School Education Lr.Rc.No. 195357/D4/67,
dated 27.05.1968, 11.12.1968, 25.03.1969, 05.05.1969 and
17.07.1969
In the G.O. first read above, the government ordered that the
services rendered by teachers serving in aided High Schools in identical
time scale of pay prior to 01.06.1960 be reckoned for purposes of
refixation of pay. This concession applies only to teachers who were
adversely affected in their emoluments drawn before 01.04.1964
following the introduction of the new system of aid from 01.04.1964 and
thus enabled them to draw the same pay as was paid by the managements
before 01.04.1964. According to the G.O. second read above, if a teacher
resigns his post from one aided secondary school or training school or
elementary school and joins another secondary school or training
schools, the pay that was taken into account for the purposes of
assessment of staff grant in the previous school may be allowed in the
new school. The government now direct that, for the purpose of
assessment of staff grant, in cases where any number of teaching staff in
an aided secondary school Elementary School or Training School either
resigns his teaching post and joins in a different teaching post, carrying
identical scale of pay or is transferred due to administrative grounds to a
different teaching post in the same institution carrying identical scale of
pay or to a different school in the same post or in a post carrying identical
scale of pay, the PAY THAT WAS LAST DRAWN BY HIM IN THE
PREVIOUS SCHOOL SHALL BE ALLOWED TO THE TEACHER IN
THE NEW SCHOOL IN WHICH HE JOINS SUBSEQUENT TO HIS
RESIGNATION OR TRANSFER, AS THE CASE MAY BE SUBJECT
TO THE FOLLOWING CONDITIONS:
1. When such member resigns his teaching post from one aided
secondary school, elementary school or Training school shall be
eligible for next increment from the date on which he would be
eligible had he continued in the previous school
2. When a teacher resigns his post from one aided Secondary
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W.P.(MD).No.15364 of 2013
School in the middle of the school year and joins another aided
secondary school, the next increment should be calculated from
the date of joining the new school
3. When the teacher leaves one aided secondary schools and joins
another aided secondary schools for the reasons stated in the
G.O. read above and there is a break in the service which has
been condoned he shall be eligible for the next increment only
from the date of joining in the new school
4. The above orders shall be with effect from the date of this
Memo
5. The above issues with the concurrence of the Finance
Department vide its U.O. No. 99496 SIV 67 dated 21.10.1967
M.S. Ramesh
Deputy Secretary to Government
On perusing the G.O.Ms.No.1530, this Court is of the considered opinion
that the Government Order was issued to grant concession to teachers who
would be affected due to the introduction of new system of grant-in-aid.
Moreover the G.O. specifically says if transferred or resigned and joins in the
same post in the same scale of pay. The G.O. also prescribes other conditions
as well. In the present case the petitioner was appointed in Secondary Grade
Teacher, thereafter he resigns and participates in the recruitment process for the
post of B.T. Assistant. Since the Secondary Grade Teacher post and the B.T.
Assistant post are not the same post and are not having same scale of pay
the petitioner is not entitled to, even as per the G.O. Therefore, the said
Government Order is not applicable to the petitioner.
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W.P.(MD).No.15364 of 2013
8. The petitioner relied on G.O.Ms.No.2357 Education Science and
Technical Education Department dated 27.12.1983 and the said G.O. is
extracted hereunder:
bghUs; fy;tp - ,ilepiy – Mq;fpnyh - ,e;jpag; gs;spfspypUe;J
cjtp bgWk; gs;spfSf;Fk; khw;wk; bra;ag;gl;l my;yJ mg;gs;spfspypUe;J cjtp
bgWk; gs;spfspy; gzpnaw;Fk; Mrphpah;fSf;fhd Cjpa eph;zak; - Miz
btspaplg;gLfpwJ.
fy;tp mwptpay; kw;Wk; bjhHpy; El;gtpay; Jiw
murhiz (epiy) vz; 2357 ehs; 27-12-83.
ghh;it 1. gs;spf; fy;tp ,af;Fehpd; fojq;fs; vz;
256532/,epf/m1/o1/81 ehs; 25-11-81 kw;Wk; 20-10-83.
2. murhiz epiy vz; 2886/fm bjh.E.Jiw ehs; 10-12-82.
Miz
jpUr;rp Jha $hd;]; Mq;fpnyh ,e;jpag; gs;spapy; gl;ljhhp Mrphpauhf
gzpg[hpe;J jpUr;rp gp\g; n+gh; nky;epiyg; gs;spf;F khw;wk; bra;ag;gl;L jpU.mg;Jy;
Rghd; vd;gtUf;F mth; Kd;dh; gzpahw;wpa gs;spapy; filrpahf bgw;Wte;j
Cjpak; tHq;fp murhiz (epiy) vz; 2686> fy;tp mwptpay; kw;Wk; bjhHpy;
El;gtpay; Jiw> ehs; 10-12-82-y; Miz btspaplg;gl;lJ.
nkYk; ,t;thwhd khw;wq;fSf;F fy;tpj;Jiwapd; Kd; mDkjp bgw;wpUe;jhy; me;j
Mrphpah;fs; Kd;dh; gzpahw;wpa gs;spfspy; mth;fs; filrpahf bgw;Wte;j
Cjpaj;ij g[jpjhf nrh;e;j gs;spapy; tHq;Ftjw;F gs;spf; fy;tp ,af;FeUf;F chpa
mDkjp tHq;fp jdpahf Miz gpwg;gpf;fg;gLk; vd;Wk; Mizaplg;gl;lJ.
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W.P.(MD).No.15364 of 2013
2. ,jd;go Mq;fpnyh ,e;jpag; gs;spfypUe;J fy;tpj;Jiwapd; Kd; mDkjp
bgw;W cjtpbgWk; gs;spfSf;F khw;wk; bra;ag;gl;l my;yJ mg;gs;spfspypUe;J
gzpapiz Jwe;j cjtp bgWk; gs;spfspy; gzpnaw;Fk; Mrphpah;fSf;F mth;fs;
Mq;fpnyh ,e;jpag; gs;spfspy; filrpahf bgw;Wte;j Cjpaj;ij tHq;f gs;spf;
fy;tp ,af;FeUf;F mjpfhuk; mspf;fg;gLfpwJ.
(Msehpd; Mizg;go)
jp.J.Re;jh;uh$;>
Mizahsh; kw;Wk; muR brayhsh;
On perusal of the said G.O.Ms.No.2357, it is seen that the said G.O. was
passed to grant benefits to the said particular individual namely Abdul Suban,
wherein he had served in Anglo Indian School and subsequently he was
transferred to the Bishop Heber Higher Secondary School. Since the said
individual was transferred from unaided Anglo Indian School to Aided School,
the said pay protection was granted. Moreover, the said transfer was effected
after getting prior permission / approval from the Director of School Education
as a special case. The said G.O. also states such transfer would be allowed only
after getting prior approval from the Educational Authorities. If the Act or any
G.O. states that any benefits would be granted only after getting prior approval
from the Educational Authorities, then the same shall be granted only after
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W.P.(MD).No.15364 of 2013
getting the prior permission only. Since these conditions are not satisfied, the
said G.O.Ms.No. 2357 is not applicable to the petitioner’s case. Moreover it is
an old G.O., which was issued to address the grievance of that particular
individual and the petitioner cannot claim to grant such benefits and hence the
claim of the petitioner is rejected.
9. The petitioner further relied on the G.O. Ms. No. 118 School
Education (Ma.Ni.Ka.2) Department dated 30.05.2007, wherein, the
government issued the said G.O. to one K. Samidurai to calculate the service
rendered under Rule 10(a)(1) in Arts College which was a temporary post. The
facts of the case are that the said K. Samidurai was properly recruited in the
permanent post on 14.07.1992 in Government Higher Secondary School,
Neerupur and retired from service on attaining superannuation on 31.01.2002,
thereby the service rendered is 9 years 6 months 15 days. A claim was put forth
by the said K. Samidurai to round it off by calculating the earlier service
rendered in temporary post. The K. Samidurai had served in Periayar E.Va.Ra.
Arts College, Trichy for 5 months 11 days and in Government Arts College,
Salem for 9 months and 10 days, then there was break in service. Then the said
K. Samidurai had served again in Government Arts College, Salem for 3 years
11 months 10 days. The said K. Samidurai claimed to include these temporary
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W.P.(MD).No.15364 of 2013
service so that 15 years 2 months 20 days can be taken and grant pension for
the said service. The Government has stated that relaxation is not necessary
since as per Rule 11 and 24 of the Tamil Nadu Pension Rules and G.O.Ms.No.
349 Finance (Pension) Department dated 05.05.1995 the said K. Samidurai is
eligible and has granted approval to sanction pension by taking 15 years 2
months 20 days. This government order is passed by taking into account the
facts of the said individual K. Samidurai in order to round off the service period
and to grant pension. This Court is of the considered opinion that any G.O.
passed to grant benefits to a particular individual, then the same cannot be
relied on at all, it is only to grant relief to the particular individual, since the
said G.O. is passed in persona. If the government issues any government order
by covering all or class of persons based on the policy decision of the
government, then the said G.O. is passed in rem and applicable to all or to that
class of persons. Hence in the present case the petitioner is not entitled to any
relief.
10. The petitioner further relies on the G.O.Ms.No.143 Education (V2)
Department dated 30.01.1987. The said G.O. states that the service rendered in
unaided Matriculation school shall be taken for granting pay and pension and
thereby granted the benefits for one Rev. Fr. Stanislaus M. Fernandez,
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W.P.(MD).No.15364 of 2013
Headmaster St. Bede’s Anglo Indian Higher Secondary School. The legality of
this G.O. was dealt with in W.P.(MD) No. 4494 of 2009 and this Court vide
order dated 16.08.2012 has held that the said G.O. in its original verse, has
nothing to do with granting of pension at all and the copy produced by the
petitioner therein was bogus one. Moreover the said G.O.Ms.No.143 Education
(V2) Department dated 30.01.1987, which was followed in G.O. Ms. No. 18
Education, Science and Technology (T2) Department dated 09.01.1997, but
subsequently the G.O.Ms.No.18 was cancelled in G.O.Ms.No.314 School
Education (T2) dated 12.11.1999. In effect the G.O.Ms.No.143 ought to be
considered as cancelled. This was also confirmed by the Hon’ble Division
Bench in Devakadasham’s case reported in (2006) 4 MLJ 1580. From the above
it would be evident that the said G.O.Ms.No.143 was passed on a different
context and the same is not applicable for the present facts of the case, therefore
this Court is of the considered opinion that the said G.O.Ms.No.143 is not
applicable to the present case. The basic concept is the “service rendered in
unaided school” cannot be taken for calculating pension, since such service
cannot be considered as government service. Moreover if granted then teachers
working in Matriculation schools and other categories of schools would claim
the same demand and the government would be burden with such illegal
claims.
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W.P.(MD).No.15364 of 2013
11. The contention of the petitioner is that the petitioner was receiving
higher salary of 1640-60-2600-75-2900 in the Secondary Grade Teacher while
working in the Aided School, but lower salary of
1400-40-1600-50-2300-60-2600 was fixed in the post of B.T. Assistant in the
Government School, hence the petitioner is entitled to claiming same salary as
he was drawing while serving as Secondary Grade Teacher in the aided school.
The further contention of the petitioner is that he was posted from Secondary
Grade Teacher to the post of B.T. Assistant as “promotion by transfer” and
hence the petitioner claims that he is entitled to the same salary of pay by
granting pay protection. However, the respondents submitted that the petitioner
was working in the aided school, thereafter participated in the direct
recruitment selection process for the post of B.T. Assistant and appointed as
fresh appointee in the post in the Government School, hence the petitioner is
not entitled to any higher scale of pay or pay protection. While recruiting for
B.T. Assistant post, the government would have indicated the salary payable to
the said post and the petitioner having accepted the terms and conditions, now
cannot turn around and seek any salary which was paid while he was serving in
aided school. The same issue was considered by this Court in W.P.(MD)No.
6285 of 2018 and it has been held as under:
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“5. This Court is of the considered view that the P.G. Assistant post is a
fresh recruitment by Teacher Recruitment Board. The salary that is
applicable to the P.G. Assistant post, should be as per the notification
that is applicable to the petitioner in the recruitment process. Having
accepted the rules applicable to the recruitment process including the
salary applicable to the said post P.G. Assistant, now the petitioner
cannot turn around and seek different salary. Having accepted the
terms and conditions, with the knowledge that the salary would be less
than the B.T. Assistant post, the petitioner is barred from claiming
salary applicable to B.T. Assistant post, when he has accepted the P.G.
Assistant post. If this plea is accepted, then the persons of the same
batch of recruits would claim discrimination. Then the other P.G.
Assistants would claim discrimination, which would be endless.
Therefore this Court is of the considered opinion the claim of the
petition is illegal and hence Mandamus cannot be granted for such
illegal claim.”
Aggrieved over the order passed in the aforesaid writ petition in W.P.
(MD)No.6285 of 2018, the petitioner therein had preferred writ appeal in W.A.
(MD) No. 627 of 2022 and the Hon’ble Division Bench has confirmed the order
passed in writ petition and dismissed the employee’s appeal. The Hon’ble
Division has further held that “direct recruitment to a post” cannot be
considered as “promotion by transfer”. Also held that the Service Rules for the
private schools are different and the Service Rules for the government schools
are different and has held that the petitioner therein is not entitled to the claim.
12. In the present case, the petitioner was employed in the aided School
and he was drawing more salary. The petitioner agreed for the salary fixation
which was fixed for the B.T. Assistant post. Having agreed to such salary
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fixation and subsequently accepted the offer of post, thereafter, the petitioner
cannot claim that there is a salary disparity and he should be granted pay
protection. Since it is a contract between the Government and the individual,
when the petitioner has agreed to the said contract, now he cannot turn around
and seek more salary on par with the aided School salary. The petitioner has an
option to continue in the B.T. Assistant post, it the petitioner is not agreeing for
lesser salary, then the petitioner shall very well quit the job. Having accepted to
serve for the lesser salary, now the petitioner is estopped from claiming more
salary on par with the salary for the aided School. If the petitioner’s plea is
accepted, then the persons appointed in the petitioner’s batch would claim pay
disparity by comparing with the petitioner and it will have a change reaction
with endless litigation, which will have serious financial implication to the
government’s exchequer and the same can never be allowed. Hence there is no
merits in the present writ petition and liable to be dismissed.
13. The petitioner had submitted a representation dated 21.12.2007, after
his retirement on 30.06.2007 and has filed writ petition in the year 2008. The
petitioner was directly recruited on 21.12.1991. After a lapse of 16 years the
petitioner had preferred a writ petition and on the basis of delay and latches
also the writ petition is liable to be dismissed.
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W.P.(MD).No.15364 of 2013
14. This Writ Petition is dismissed accordingly. There shall be no order
as to costs.
06.09.2022
Index : Yes / No
Internet : Yes/ No
Nsr
To
1.The Secretary to the Government,
School Education Department,
Chennai.
2.The Joint Director of School Education,
College Road,
Chennai – 05.
3.The Chief Educational Officer,
Sivagangai,
Sivagangai District.
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W.P.(MD).No.15364 of 2013
S.SRIMATHY, J.
Nsr
W.P.(MD).No.15364 of 2013
06.09.2022
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