Madras High Court
D.Venkatesan vs The Government Of Tamil Nadu on 2 March, 2023
WP.No.11164 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 02.03.2023
CORAM
THE HONOURABLE Mrs. JUSTICE J.NISHA BANU
W.P.No.11164 of 2014
and
M.P.No.2 of 2014
D.Venkatesan .... Petitioner
vs
1. The Government of Tamil Nadu,
rep. 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,
Cuddalore District,
Cuddalore.
4. The Assistant Elementary Educational Officer,
Keerapalayam Panchayat Union,
Cuddalore District.
5. The Accountant General,
Teynampet,
Chennai - 600 018. .... Respondents
1/17
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WP.No.11164 of 2014
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus to call for the records of the
respondents Nos.5, 3 and 4 in relation to the proceedings
No.PEN20/VI/12005712/P6/11-12/ADK dated 17.11.2011 and in
Na.Ka.No.3929/A1/2013 dated 078.09.2013 and in
Na.Ka.No.0270/211/2012 dated 17.01.2013 respectively and quash the
same and issue a consequential direction to the respondents to restore the
selection grade scale of pay of petitioner in the post of Pre-Vocational
Instructor on 02.06.1990 and the special grade scale of pay on 02.06.2000
and issue a consequential direction to the respondents to release the amount
of Rs.1,01,580/- with interest @ 18% per annum and to fix his last drawn
pay and grant all consequential pensionary benefits.
For Petitioner : Mr.Balan Haridas
for Mr.R.Saseetharan
For respondents : Mr.A.M.Ayyathurai,
Government Advocate for R1 to R4
Mr.V.Vijay Shankar for R5
ORDER
This writ petition has been filed challenging the proceedings dated,
17.11.2011, 07.09.2013 and 17.01.2013 passed by the 5th, 3rd and 4th
respondents respectively and consequently, direct the respondents to
restore the selection grade scale of pay of petitioner in the post of Pre-
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Vocational Instructor on 02.06.1990 and the special grade scale of pay on
02.06.2000 and to issue a consequential direction to the respondents to
release the amount of Rs.1,01,580/- with interest @ 18% per annum and to
fix his last drawn pay and grant all consequential pensionary benefits.
2. The petitioner was initially appointed as part time Vocational
Instructor on part time basis in the year 1980 in Panchayat Union Middle
School, Kavalakudi, Cuddalore District and thereafter, promoted as full time
Vocational Instructor (craft Instructor) w.e.f. 02.06.1980. The post of pre
Vocational Instructors in Middle Schools carries the same scale of pay of
Higher Grade Teachers, whereas the craft Instructor in the High School are
given scale of pay of Rs.610-1075 which is equal to scale of pay of
Secondary Grade Teacher though both are doing same work i.e., teaching
vocational subjects, namely weaving, drawing, tailoring etc. on the ground
that there is a difference in academic qualification. The required academic
qualification for the post of pre Vocational Instructor is ESSLC (8th std.
pass) whereas the required qualification for the post of Craft Instructor at
High School is SSLC pass. Therefore, by the G.O.No.136 dated 05.09.1986,
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WP.No.11164 of 2014
the government has directed that Craft Instructor with SSLC qualification
shall be allowed Secondary Grade Teachers Scale of pay of Rs.610-1075
irrespective of fact that whether they are working in High Schools or at
middle schools. In the same Government Order, the Government has allowed
3 years time to the VIII Standard pass craft Instructor to pass SSLC
qualification and then they will be allowed Secondary grade Teacher scale of
pay of Rs.610-1075. The petitioner passed SSLC qualification in March
1986 and in possession of SSLC qualification as on 05.09.1986 when the
above said G.O. was issued. By proceedings dated 13.11.1986, the pay of
petitioner was fixed in the scale of pay of Rs.610-1075 as per
G.O.Ms.No.1366 dated 05.09.1986. By another G.O.Ms.No.1105 dated
22.08.1989, the Government has granted Selection grade Scale of pay of
Rs.705-1230 and Special Grade of pay of Rs.780-1385 to the Craft
Instructors working in the Middle Schools on par with craft Instructor
working in High Schools subject to the condition that they should qualify
themselves with SSLC qualification. The Selection Grade and Special Grade
is to be awarded on completion of 10 and 20 years of service respectively.
By letter dated 18.01.1986, the Government has clarified that the benefit of
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Secondary Grade Teachers Scale of pay of Rs.610-1075 shall take effect
from 01.10.1984 notionally with monetary benefit from 01.04.1986.
3. By proceedings dated 22.06.1995, the petitioner was granted
Selection Grade scale of pay from 02.06.1990 counting 10 years service
from 01.06.1980 when the petitioner was appointed as Pre vocational
Instructor in Middle School, initially. By another proceedings dated
26.07.2000, the petitioner was granted Special Grade from 02.06.2000 on
completion of 20 years of service in the post of Craft Instructor. On
30.11.2011, the petitioner retired from service after a regular promotion as
B.Ed., Head Master and Assistant Elementary Educational Officer.
4. The Accountant General, by proceedings dated 17.11.2011, has
objected that the petitioner has passed SSLC in 1986 and the Secondary
Grade Teacher Scale of Pay is given only on 05.09.1986 and therefore, the
Selection Grade is admissible only from 05.09.1996, but the selection grade
is given from 02.06.1990. After two years, the Assistant Elementary
Educational Officer by impugned proceedings dated 17.01.2013 has
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WP.No.11164 of 2014
modified the date of selection grade to that of 01.04.1996 from 02.06.1990
and granted selection grade only from 01.04.1996 and special grade from
01.04.2006 and refixed the pay after retirement. The third respondent by
impugned proceedings dated 07.09.2013 has arrived the alleged excess sum
paid to the petitioner is Rs.1,01,580/- and ordered to recover the same from
the gratuity payable to the petitioner. Hence, the writ petition has been filed
with the aforesaid relief.
5. Heard the learned counsel for the petitioner and the learned
Government Advocate appearing for the respondents 1 to 4 and the learned
counsel appearing for the 5th respondents.
6. Learned counsel for the petitioner would submit that similar issue
has been dealt with by the Hon'ble Division Bench of this Court and the
Division Bench of this Court in W.P.No.12066 of 1999, by order dated
27.07.2001, held that the selection grade has to be granted by counting the
service right from the date of first appointment as craft instructor in Middle
School and thereafter, as High School on acquiring SSLC qualification and
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that there is no condition in G.O.Ms.No.1366 dated 05.09.1986 and
G.O.Ms.No.1105 dated 22.08.1989 that in awarding Selection and Special
Grade, the service shall be counted only from the date on which Higher
Scale of pay is granted. Further, the writ petition filed by the State
Government against the order of the learned Administrative Tribunal is
dismissed. In support of the above contention, he would also rely on a
decision reported in 2007 W.L.R.1000 (Y.Chellammal v. State of
Tamilnadu).
7. Learned Government Advocate would submit that in the instant
case, an over payment was effected due to wrong fixation of pay. The pay of
the petitioner is fixed under a bonafide mistake and the beneficiary has no
right to retain the same. In the fixation order made by the respondents, it
was clearly mentioned that in case of wrong fixation and when it is pointed
out by the audit authorities, the amount shall be recovered from the salary.
Hence, the respondent had rightly passed the order of recovery and the
same need not be interfered with.
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8. This Court considered the submissions made on either side and
perused the materials available on record.
9. A learned Judge of this Court had dealt with a similar case with
similar facts and circumstances of the present case, wherein the learned
Judge has passed the following order.
“7. It is not in dispute that the Government, in order to
equate the Craft Teachers in Middle Schools in respect of
their salary on par with their counterparts in High Schools,
has prescribed minimum general qualification for the post as
SSLC by G.O.Ms.No.1366, Education Department, dated
5.9.1986. In the said Government Order, it is also made
clear that in respect of Craft Teachers who are already in
service in Middle Schools with lesser qualification, viz., 8th
Standard and 7th Standard, they shall be allowed to acquire
the minimum qualification within a period of three years.
8. It is also not in dispute that all these three
petitioners have acquired their SSLC within the time
stipulated in the said Government Order. By subsequent
G.O.Ms.No.1105, Education Department, dated 22.8.1989,
while granting selection grade and special grade to Middle
School Teachers, relevant scales of pay have been fixed to all
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Craft Teachers of High Schools working in all kinds of
Management, subject to the condition that they should
qualify themselves with SSLC. It is also stated that the
selection grade and special grade pay shall take notional
effect from 1.10.1984 for the purpose of fixation of pay in
those scales with monetary benefits from 1.4.1986. Under a
similar circumstance, when a Craft Teacher was appointed in
the year 1970 and he was qualified with SSLC on 5.4.1986
and representation was made to the authorities to confer the
benefits of selection grade as per the said G.O.Ms.No.1105,
Education Department, dated 22.8.1989 and also
G.O.Ms.No.1366, Education Department, dated 5.9.1986
and the same was rejected on 22.11.1990, when that was
challenged in the Tamil Nadu State Administrative Tribunal
by filing Original Application, the Tribunal has allowed the
application and directed the authorities to give selection
grade notionally with effect from 1.10.1984, however, with
monetary benefits from 1.4.1986. When the Government has
challenged the said order of the Tribunal, in the case of
District Educational Officer, Tiruvannamalai and others v.
K.T.Margasakayam, a Division Bench of this Court
consisting of V.S.Sirpurkar,J. (as he then was) and
V.Kanagaraj,J. by order dated 27.7.2001 passed in
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W.P.No.12066 of 1999, while confirming the said order of the
Tribunal has held as follows:
"The learned counsel appearing on behalf of
the Government attacked this order on the
ground that in fact when the relevant
Government Orders came on the field the
respondent was not covered by them. It was
tried to be argued that the respondent after his
initial appointment was transferred to Polur
Panchayat Union middle school which school
was upgraded into a high school and at that
time, the respondent had not even passed the
S.S.L.C. examination and had only passed the
8th standard examination. It was conceded
that the respondent has passed the SSLC
examination on 5.4.1986 and had qualified
himself for drawing the pay scale of Rs.610-
20-730-25-955-30-1075 which was intended
for the post high school craft teachers. What
was forcefully argued before us was that the
respondent teacher could not have asked for
counting his middle school services for
selection grade as that service was on the
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lower pay scale. It was tried to be argued that
after the said teacher was granted higher pay
scale, if he continued for ten years on that pay
scale then alone, he was entitled to the
selection grade. In fact, this argument was
made before the Tribunal also and the
Tribunal has refuted this argument and, in our
opinion, correctly. What will be seen from
G.O.Ms.No.1105, dated 22.6.1989 is that the
craft teachers in the middle schools were made
eligible for the selection grade and special
grade scales of pay on par with the craft
teachers of the high school. However, in that
Government Order, there was no condition
imposed that this advantage was to be given
only on completion of the ten years of service
only as a high school craft teacher. The
learned counsel also relied on the Government
letter dated 4.10.1990 to suggest that the
services rendered in the posts carrying equal
and higher scales of pay alone could be taken
into account for his grant of selection grade or
special grade in case of the respondent, since
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he was working as middle school craft teacher
that service could not be taken into account
for the purpose of awarding selection grade.
The Tribunal has refuted this argument on the
basis of the contents of paragraph-2 of
G.O.Ms.No.1366, dated 5.9.1986 as also the
other G.O.Ms.No.1105, dated 22.8.1989. We
are in complete agreement with the Tribunal
on the interpretation of the relevant
Government Orders in question. The Tribunal
has also taken the example of the Headmaster
of the primary schools and has drawn parallel.
In our opinion, the language of the concerned
Government Orders is clear enough to suggest
that the concerned respondent was
undoubtedly entitled to the selection grade on
account of his services right from 1970 as
middle school craft teacher and thereafter, his
services as High School craft teacher for
which he had also acquired a proper
qualification, i.e., SSLC in the year 1986. In
our opinion, there is no necessity to interfere
with the order of the Tribunal in which the
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findings are recorded in a proper
manner."(Emphasis supplied)
9. Following the above cited Division Bench
judgement, similar orders have been passed by this Court in
P.Rajendran v. The District Elementary Educational Officer,
Tirunelveli & others in W.P.No.42763 of 2002 dated
3.12.2002 and subsequently in S.Arputha Amala Ritabai v.
The Director of Elementary Education, College Road,
Chennai-6 in W.P.No.29235 of 2004 dated 5.11.2004.
10. In the case in W.P.No.29235 of 2004 the facts as
narrated are also similar to that of the case on hand. The
learned Judge, has narrated the facts of the case in
paragraph-2 is as follows:
"The petitioner has questioned the impugned
order dated 22.11.2000 of the first respondent
and the consequential order dated 18.6.2002 of
the second respondent in denying the selection
and special grade pay scale to the petitioner, to
which she is entitled to as per G.O.Ms.No.1105,
Education (MU-1(2) Department dated
22.8.1989. By the impugned orders, the said
conferment and correspondingly the salary also
were sought to be reduced on the ground that
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the petitioner had not completed ten years of
service as selection grade Craft Teacher with
the qualification of S.S.L.C. "
By following the abovesaid judgement of the Division Bench,
the learned Judge has set aside the order of recovery.
11. There is also one another fact which has to be
considered in these cases, that the petitioners have been
conferred selection grade based on the abovesaid
Government Orders even in the year 1990 and have been
paid salary and the recovery is sought to be made nearly
after nine years without giving any opportunity to the
petitioners. Even assuming otherwise, these are not cases
wherein by the positive conduct of the petitioners they have
acquired certain benefits illegally. On the other hand, the
benefits have been conferred by the authorities based on the
two Government Orders. In such circumstances, the
impugned orders are vitiated by the violation of the basic
principles of natural justice and on the said ground also, the
impugned orders are liable to be set aside. In view of the
same, the writ petitions are allowed. No costs.”
10. Since the facts of the present case is squarely covered by the
aforesaid judgments of this Court, this Court has no hesitation to hold that
the fact which has to be considered in this case is that the petitioner has been
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conferred selection grade based on the above said Government Orders even
in the year 1990 and had been paid salary and the recovery is sought to be
made nearly after eleven years without giving any opportunity to the
petitioner. Hence, the impugned orders dated 17.11.2011, 07.09.2013 and
17.01.2013 passed by the 5th, 3rd and 4th respondents respectively are
hereby set aside and as a sequel, the respondents shall restore the selection
grade scale of pay of petitioner in the post of Pre-Vocational Instructor on
02.06.1990 and the special grade scale of pay on 02.06.2000 and also the
respondents shall release the amount of Rs.1,01,580/- at the rate of 9% per
annum from the date of recovery, if already recovered. The respondents are
also directed to fix his last drawn pay with all consequential pensionary
benefits.
11. The Writ Petition is allowed with the above direction. No costs.
Consequently, connected miscellaneous petition is closed.
02.03.2023
Index:Yes/No
Speaking/Non-speaking order
vsi
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WP.No.11164 of 2014
To
1. The Government of Tamil Nadu,
rep. 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,
Cuddalore District,
Cuddalore.
4. The Assistant Elementary Educational Officer,
Keerapalayam Panchayat Union,
Cuddalore District.
5. The Accountant General,
Teynampet,
Chennai - 600 018.
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WP.No.11164 of 2014
J.NISHA BANU,J.
vsi
W.P.No.11164 of 2014
02.03.2023
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