Madras High Court
G.Rajagopal vs The Government Of Tamil Nadu on 17 July, 2023
WP.No.5304/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 17.07.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.5304/2017
G.Rajagopal ... Petitioner
Versus
1.The Government of Tamil Nadu
represented by Secretary to Government
School Education Department
Fort St George, Chennai 600 009.
2.The Director of Elementary Education
College Road, Chennai 600 006.
3.The District Elementary Educational Officer
Namakkal District, Namakkal.
4.The Assistant Elementary Educational Officer
Erumaipatti Panchayat Union
Erumaipatti, Namakkal District. ... Respondents
Prayer : - Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of certiorarified mandamus calling for
the records of the 2nd respondent in relation to the proceedings issued in
Na.Ka.No.7406/D3/2016 dated -3-2016 and quash the same and to extend
the benefit of G.O.Ms.No.70, School Education [Nee.V2] Department,
dated 28.05.2014 and issue a consequential direction to the respondents to
1
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WP.No.5304/2017
upgrade the petitioner as Secondary Grade Teacher from 18.11.1968 when
the petitioner was appointed as Higher Grade Teacher and count the service
for the purpose of awarding selection and special grade scale of pay in the
post of Secondary Grade Teacher.
For Petitioner : Mr.R.Saseetharan
For Respondents : Mr.V.Nanmaran, AGP
ORDER
(1) The writ petition has been filed in the nature of certiorarified
mandamus, calling for the records of the 2nd respondent, Director of
Elementary Education at Chennai, relating to the proceedings issued
in March 2016, in Na.Ka.No.7406/D3/2016 and to quash the same
and to extend the benefit of G.O.Ms.No.70, School Education
[Nee.V2] Department dated 28.05.2014 and to upgrade the petitioner
as Secondary Grade Teacher from 18.11.1968 when the petitioner
was appointed as Higher Grade Teacher and count the service for the
purpose of awarding selection and special grade scale of pay in the
post of Secondary Grade Teacher.
(2) In the affidavit filed in support of the writ petition, it had been stated
that the petitioner was initially appointed as Higher Grade Teacher on
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18.11.1968 at Panchayat Union Elementary School at Orappam,
Bargur Panchayat Union, Dharmapuri District. He however had
possessed a certificate qualifying him to be appointed as Secondary
Grade Teacher. He was appointed only as Higher Grade Teacher
since there were no vacancies. On 25.09.1970, the petitioner was
transferred to Erumaipatti Panchayat Union in the then Salem
District. He was upgraded as Secondary Grade Teacher with effect
from 01.01.1971 and he was awarded Secondary Grade Teacher scale
of pay . He was then promoted as Primary School Headmaster with
retrospective effect consequent to the order of the Administrative
Tribunal. This was confirmed by an order dated 01.11.1991 passed by
the Chief Educational Officer, Salem and this promotion was with
retrospective effect from 27.06.1989. The petitioner was then
promoted as B.Ed Middle School Headmaster at Erumaipatti
Panchayat Union on 16.12.1994 and was posted at Panchayat Union
Middle School at Pavithram, Erumaipatti Panchayat Union. He was
then reverted from the post of B.Ed Middle School Headmaster to the
post of Primary School Headmaster since there were no vacancies.
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Subsequently, he was promoted as B.Ed Middle School Headmaster
on 01.06.2000.
(3) There was an earlier writ petition filed in WP.No.28843/2015 before
this Court and a Learned Single Judge, by an order dated 11.09.2015,
had issued a direction to the 2nd respondent to consider the
representation of the petitioner for extension of the benefit of
G.O.Ms.No.70 dated 28.05.2014. That particular Government Order,
namely, G.O.Ms.No.70, was actually issued consequent to an earlier
direction of this Court in WP.No.34213/2006. By an order dated
27.01.2010, it was directed that the writ petitioners therein should be
entitled to be treated as Higher Grade Teacher or as Secondary Grade
Teacher for the service rendered before 01.01.1971 and to regularise
their service as Secondary Grade Teachers with respect to the date of
appointment which was prior to 01.01.1971. It is to be noted that the
particular date 01.01.1971 was taken as a cut-off date and benefits
were granted as above to those who had been appointed after
01.01.1971. By the order in WP.No.34213/2006, dated 27.01.2010, a
Learned Single Judge of this Court in the said writ petition, had
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however granted that particular benefit even though the petitioners
therein had been appointed prior to 01.01.1971. The petitioner
herein had been initially appointed on 18.11.1968. It is for that
reason, placing reliance on the order of this Court in the earlier writ
petition, that the petitioner seeks parity and claims that he should be
recognised as Secondary Grade Teacher with effect from the date of
initial employment, namely, 18.11.1968 even though he was, at that
time, appointed as Higher Grade Teacher alone.
(4) There was a subsequent Government Order which had been passed,
namely, G.O.Ms.No.347, School Education Department, dated
15.09.1998. It is stated that this particular Government Order,
namely, G.O.Ms.No.347 of School Education Department, dated
15.09.1998, had given an arbitrary cut-off period as 01.01.1971 and
questioning that particular ratio over the dates, writ petitions have
been filed before this Court.
(5) Learned counsel for the petitioner had brought to the notice of this
Court, three writ petitions in WP.Nos.37456, 39069 and 42202/2006.
A Learned Single Judge, by a common order dated 26.02.2010, had
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observed that the said cut-off dated 01.01.1971 is arbitrary and
unreasonable. Reliance was placed on earlier orders of the
Administrative Tribunal. It had been finally held as follows:-
"Indeed, there cannot be any intelligible
difference between the secondary Grade Certificate
holders served in the Higher Grade place after 1.1.71
or prior to 1.1.71. This is the well settled principle in a
catena of decisions of the supreme court. It has been
held by the Supreme Court in a decision reported in
Vo.II SC SLJ 498 that equality of opportunity for the
purposes of seniority, promotion and like matters of
employment is available only for persons who fall
subsequently within the same class or unit of service.
The fundamental right of equality means that person in
like situation under like circumstance are entitled to be
treated alike. What is enjoined is that all citizens in
matter of service under the state shall be treated alike
under like circumstances and conditions. The primary
aim is to prevent any person or class of persons from
being singled out as a special subject for purposeful or
invidious discrimination or hostile treatment. The
purpose is to ensure similarly and equitable treatment
and identity of treatment in matters relating to initial
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engagement, during continuance of that enjoyment and
at the terminal end of that enjoyment. This principle
has been laid down in the decision reported in A.I.R
1957 PAT 617, AIR 1962 SC 36.
The pivotal question in the present case is
whether the teacher similarly circumstanced in the
same class or service or unit are treated alike. The
factual position is that the teachers similarly situated
in the same class category and unit are treated
unequally. In other words, the equals are treated as
unequals. Therefore, the question of hostile
discrimination will arise. Moreover, in the instant case,
fixing the cut off date as 1.1.71 itself is arbitrary and
unreasonable in view of the decisions reported in 1988
(2) CAT 250 and 1988 (3) SLJ.53.
When the secondary grade qualified teacher
service period in the place of Higher Grade is treated
as Secondary Grade from 1.1.71 the same should also
be extended to the secondary grade qualified teacher
serving in the Higher grade prior to 1.1.71 also.
Otherwise the same would amount to clear
discrimination.
In the facts and circumstances of the case, the
applications are allowed and we direct the respondents
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to grant secondary grade scale of pay to the applicants
for the period of service of the applicants in the Higher
Grade place with the Secondary Grade qualification
and it be counted as secondary Grade service for the
purpose of seniority, selection/special grade and for
promotional opportunities to the higher post. All
consequential service and monetary benefits shall be
made within two months from the date of receipt of this
order or a copy thereof."
(6) This ratio of the Tribunal had not been appealed and had been
implemented by the respondents. It has also been observed that
several orders have been passed by the Court, granting reliefs to the
petitioners based on the aforementioned order of the Tribunal. The
learned Single Judge had granted the same relief to the three
petitioners in WP.Nos.37456, 29069 & 42202/2006.
(7) However, this relief granted to the petitioner herein had been very
strongly objected to by the respondents particularly because it had
been stated that the petitioner had filed the writ petition in the year
2017 and therefore, there had been a delay on the part of the
petitioner for nearly more than a decade and it had therefore been
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argued that the benefit should not revert back to the petitioner herein
who himself has not explained the reasons for the delay and therefore,
it has been urged that the lapse of the petitioner should also been
considered by the Court.
(8) The principle that the date 01.01.1971 has been arbitrarily fixed, has
not been questioned or revisited by any Appellate Forum. The fact
that all those who had been appointed as Higher Grade Teachers
prior to 01.01.1971, had been recognized as Secondary Grade
Teachers since they had the certificates and who had been appointed
only because of non-availability of vacancies, has also been
recognized. These two concepts accrue in favour of the petitioner.
But the Court will also have to balance the delay on the part of the
petitioner herein. He had approached the Court well after ten years.
Learned counsel for the petitioner however stated that since others
had been recognized, the petitioner should not be put in
disadvantageous position and should also be granted the same relief.
(9) A perusal of the records shows that in the impugned order, a
reference had been made to the order in WP.No.28843/2015, wherein
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the representations of the petitioner which were dated 16.02.2015 and
28.08.2015 respectively, were directed to be examined in the manner
known to law. It had been however reported that since, there is a cut-
off date on 01.01.1971 and that the petitioner had retired from service
on attaining the date of superannuation on 31.07.2006, the relief to
the petitioner cannot be granted with retrospective effect. But,
however the impugned order had not taken into consideration the
orders passed by this Court and one of the orders had been extracted
above. Similarly placed persons had been granted such relief. It had
also been contended on the side of the respondents that there was an
observation in the writ petitions that the earlier Government Order in
G.O.Ms.No.70 dated 28.05.2014 would apply only to the petitioners
therein and would not act as a precedent. But, that would not be a
fact or for denial of relief to anybody who comes to Court. Anybody
comes to Court expects consistency in the nature of orders passed.
Therefore, I would grant the relief to the petitioner herein and the
petitioner is entitled to the relief to be recognized as Secondary Grade
Teacher with effect from the date of his initial employment, but
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however the issue of delay also stands in the place of the petitioner
herein.
(10) The petitioner had given the representation only on 16.02.2015 which
is the earliest representation even though he had retired on
31.07.2006. This period of 9 years and above should be put against
the petitioner as respondents should not be called upon to explain as
to why they did not grant the relief in favour of the petitioner herein.
It must be stated that any order of the High Court in a writ petition
would enure to those writ petitioners alone. If the petitioner had been
vigilant enough and had given a representation as soon as he had
retired or as soon as the number of judgments came in, it would have
been a different issue. But the petitioner had taken up a wait and
watch attitude. He waited as to what would be the result of the orders
of the High Court and then gave a representation. This attitude
cannot be condoned and therefore, I hold that though the petitioner is
entitled for all reliefs from the date of initial employment, which is
18.11.1968, still for the period when he had delayed in giving
representation from the date of his retirement on attaining the age of
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superannuation, namely, from 31.07.2006 till 16.02.2015, the
petitioner's service alone can be computed, but monetary benefits
cannot be extended for that particular period. Thereafter, in
accordance with the directions in WP.No.28843/2015, the benefits
can accrue to the petitioner herein.
(11) Giving that small break wherein only the period of service alone can
be computed but not the pay for that particular period, the writ
petition stands disposed of. Necessary orders has to be issued as
aforesaid, reworking the monetary emoluments of the petitioner
within a period of four months from the date of receipt of a copy of
this order.
17.07.2023
AP
Internet : Yes
To
1.The Secretary to Government
Government of Tamil Nadu
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WP.No.5304/2017
School Education Department
Fort St George, Chennai 600 009.
2.The Director of Elementary Education
College Road, Chennai 600 006.
3.The District Elementary Educational Officer
Namakkal District, Namakkal.
4.The Assistant Elementary Educational Officer
Erumaipatti Panchayat Union
Erumaipatti, Namakkal District.
https://www.mhc.tn.gov.in/judis
WP.No.5304/2017
C.V.KARTHIKEYAN, J.,
AP
WP.No.5304/2017
17.07.2023
https://www.mhc.tn.gov.in/judis
