Madras High Court
Inbavalli vs The State Of Tamil Nadu on 23 March, 2023
W.P(MD)No.2474 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.03.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)No.2474 of 2020
Inbavalli ... Petitioner
Vs.
1.The State of Tamil Nadu,
Represented by its Secretary,
Education Department,
Secretariat, Chennai – 9.
2.The Director of Collegiate Education,
College Road, Chennai – 6.
3.The District Educational Officer,
Melur, Madurai.
4.The Block Educational Officer,
Melur, Madurai District.
5.The Correspondent,
Abdulkalam Azad Middle School,
Melur, Madurai 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 connected with the impugned order passed by the
1/15
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W.P(MD)No.2474 of 2020
3rd respondent vide Na.Ka.No.4115/A4/2019 dated 10.06.2019 and
quash the same and directing the respondents to approve the appointment
of the petitioner w.e.f 09.02.1998, as Secondary Grade Teacher in the
5th respondent school with all consequential benefits in the light of the
order passed W.P.No.9072 of 2005 dated 19.12.2007 and W.P.No.24787
of 2012 dated 03.08.2017.
For Petitioner : Mr.S.N.Ravichandran
For Respondents : Mr.N.Satheesh Kumar,
Addl. Government Pleader for R1 to R4.
ORDER
Heard the learned counsel for the writ petitioner and the learned
Additional Government Pleader for the official respondents.
2.The writ petitioner was appointed as Secondary Grade Teacher in
the fifth respondent school on 09.02.1998. The fifth respondent is a an
aided minority institution. The petitioner was holding the degrees of
B.A. and B.Ed. When the management submitted proposal for approving
the petitioner's appointment, it was returned on the ground that the
petitioner being higher qualified, the appointment is contrary to
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G.O.(Ms)No.559 dated 11.07.1995. Similarly placed individuals had
filed writ petitions before the Madras High Court questioning the said
government order. The writ petitions were dismissed on 19.05.1998.
Challenging the same, writ appeals were filed. The writ appeals were
disposed of by the Hon'ble Division Bench vide order dated 29.06.2001
in W.A.Nos.991 of 1998 etc. Recording the undertaking of the learned
Additional Advocate General appearing for the State, the Hon'ble
Division Bench directed that candidates who were appointed before
19.05.1998 should be called upon to undergo one month child
psychology training and thereafter, their appointments will be approved
with effect from the date of completion of training. To this effect, the
Government issued G.O.(Ms)No.155, dated 03.10.2002. Pursuant to
issuance of G.O.(Ms)No.155, the petitioner was also sent for training and
she completed the same on 02.06.2003. Her appointment was approved
vide proceedings dated 06.11.2003 issued by the fourth respondent with
effect from 02.06.2003. The petitioner has been subsequently
representing to the authorities for approval from the date of original
appointment ie., 09.02.1998. The petitioner's request came to be rejected
vide proceedings dated 10.06.2019 on the file District Educational
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W.P(MD)No.2474 of 2020
Officer, Melur. Challenging the same, the present writ petition came to
be filed.
3.The learned counsel for the writ petitioner reiterated all the
contentions set out in the affidavit filed in support of the writ petition and
called upon this Court to set aside the impugned order and grant relief as
prayed for. The learned counsel for the petitioner primarily relied on the
order dated 19.12.2007 made in W.P.No.9072 of 2005. A learned Judge
of this Court had directed that the service of the writ petitioner therein
shall be regularized with effect from the date of initial appointment and
for disbursement of consequential benefits. The learned counsel pointed
out that the writ petitioner herein is similarly placed.
W.A.(MD)Nos.11055 of 2009 filed against the said order was dismissed
on 01.10.2009 and S.L.P.(MD)No.13151 of 2012 was also dismissed on
09.08.2012. The said order was also given effect to. It is pointed out by
the learned counsel that quite a few orders have been passed on the same
lines. My attention is drawn to the order dated 03.08.2017 made in
W.P.(MD)No.24787 of 2012, the order dated 01.03.2023 made in
W.P.(MD)Nos.3753 of 2015 etc, the order dated 03.02.2020 made in
W.P.(MD)No.2426 of 2020 and the order of the Hon'ble Division Bench
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W.P(MD)No.2474 of 2020
made in W.A.Nos.74 of 2015 etc, dated 21.03.2018. The learned counsel
for the petitioner would also submit that after passing of order by the
Hon'ble Division Bench upholding G.O.(Ms)No.559, dated 11.07.1995,
the Government itself diluted the position and candidates like the
petitioner came to be appointed as Secondary Grade Teachers. The
learned counsel contended that Section 20(3) of the Tamil Nadu Private
Schools Regulations Act, 1973 empowers the Government to grant
relaxation and that this aspect of the matter was not brought to the notice
of the Hon'ble Division Bench when it upheld G.O.(Ms)No.155. The
core argument of the learned counsel for the petitioner is that like the
petitioner a very large number of over qualified candidates had been
appointed as Secondary Grade Teachers and a substantial number of them
had already been granted the benefits that is now sought in this writ
petition. According to him, it would be invidious and patent breach of
the equality principle to deny the benefit to the petitioner alone. He
suggested that this Court can set aside the impugned order and call upon
the Government to consider exercising the power of relaxation provided
under Section 20(3) of the Tamil Nadu Private Schools Regulations Act,
1973.
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W.P(MD)No.2474 of 2020
4.The respondents have filed a detailed counter affidavit and the
learned Additional Government Pleader took me through its contents.
The learned Additional Government Pleader strongly submitted that the
very institution of the present writ petition is an abuse of legal process.
He lamented that several orders have been obtained before this Court by
suppression of material facts. He drew my attention to atleast quite few
order of the Hon'ble Division Bench negativing the stand now taken
before this Court. His basic objection is that an issue that had been
already decided cannot be allowed to re-adjudicated again and again. He
pressed for dismissal of the writ petition.
5.I carefully considered the rival contentions and went through the
materials on record. Let me consider the contention of learned counsel
for the writ petitioner one by one. The petitioner relies on the order
dated 03.08.2017 made in W.P.(MD)No.24787 of 2012 (A.Philomena Vs.
Government of Tamil Nadu and Others). The said order mechanically
follows the earlier order dated 19.12.2007 made in W.P.No.9072 of 2005.
W.P.No.9072 of 2005 was filed by one Varatharajan. He pleaded that he
was appointed as Secondary Grade Teacher in an aided institution on
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28.03.1998 and that he has not been regularized from the said date on the
ground that he had not completed the child physiology course. The
prayer was extracted in paragraph No.1. The case of the petitioner and
his contentions were set out in paragraph Nos.3 and 4. The petitioner
had relied on G.O.(Ms)No.122, Scheduled Caste and Scheduled Tribes
Welfare Department, dated 02.08.2005. As rightly pointed by
Shri.N.Satheesh Kumar, learned Additional Government Pleader this
government order was applied only to the Secondary Grade Teachers
working in the schools run by the Adi Dravidar Welfare Schools.
Paragraph No.7 of G.O.(Ms)No.122, dated 02.08.2005 is as follows:-
“7.nkw;fhZk; R{H;epiyapy; Mjpjpuhtplh;
ey ,af;Fehpd; braw;Fwpg;gpid muR jPu ghprPyid
bra;J> Mjpjpuhtplh; kw;Wk; gHq;Foapdh; eyg;gs;spfspy;
gllhjhp Mrphpah; jFjpbgw;W ,ilepiy Mrphpah;fshf
gzpepakdk; bgw;W gzpg[hpe;J tUk; egh;fSf;F mth;fs;
FHe;;ijfs; kdey gapw;rpia Koe;j gpd;dh; mth;fs;>
mg;gjtpapy; gzpnaw;w ehd; Kjy; gzptud;Kiw bra;a
muR MizapLfpwJ.”
6.The Government Advocate who was supposed to defend the
interest of the department agreed with the factual as well as legal position
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W.P(MD)No.2474 of 2020
canvassed by the learned counsel for the writ petitioner therein. Since
the Government Counsel himself had conceded, the learned Judge went
on to hold that there cannot be any impediment for issuing direction for
regularization with effect from the writ petitioner's appointment therein
ie., 28.03.1998. The department ought to have to filed an appeal within
time. The writ appeal was filed with delay. In my view, the State ought
to have requested the Hon'ble First Bench to permit them to go before the
learned Single Judge by pointing out that a concession had been either
fraudulently or erroneously given and that it has got serious financial
consequences. Instead the matter appeared to have been argued on
merits. The Hon'ble First Bench concluded that since the matter was
conceded before the learned Single Judge, the writ appeal would not lie.
In that view of the matter, the petition for condonation of delay stood
rejected and the writ appeal itself was dismissed at the SR stage. The
Hon'ble Supreme Court did not intervene. This round of litigation at best
could have yielded benefit for that particular individual alone as no
principle of law was laid down. Varatharajan order formed the basis for
allowing similar unsustainable claims subsequently. I hold that reliance
on the order made in Varatharajan's case is absolutely misplaced.
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7.The learned counsel for the petitioner may be justified in his
contention that the Government had departed from the original stand that
higher qualified teachers ought not to be appointed as Secondary Grade
Teachers. The learned Additional Government Pleader would come up
with justification that change in syllabus and other considerations led the
Government to alter its policy. In my view, issuance of G.O.(Ms)No.79,
dated 14.06.2002 will not in any way advance the case of the writ
petitioner. This was subsequent to the decision of the Hon'ble Division
Bench. Order 47 of Civil Procedure Code is to the effect that change in
the legal position subsequently is not a ground for review. The policy of
the Government right from 1986 was that higher qualified candidates
should not be appointed to the post of Secondary Grade Teacher. It was
reiterated firmly in G.O.(Ms)No.559, Education, Science and Technology
Department, dated 11.07.1995. The petitioner's appointment was
subsequent to issuance of G.O.(Ms)No.559, dated 11.07.1995.
Therefore, there is no equity in the petitioner's claim. In any event,
G.O.(Ms)No.559, dated 11.07.1995 was upheld by the Hon'ble Division
Bench. However, taking a humanitarian view to protect the careers of the
candidates who had been appointed before the dismissal of the writ
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W.P(MD)No.2474 of 2020
petition, the Hon'ble Division Bench probably nudged the Government to
come out with a formula. Taking clue, the learned Additional Advocate
General suggested that such appointees can be asked to undergo one
month child psychology training and that their services can be
regularized with effect from the date of completion of such training. To
that effect, the Government issued G.O.(Ms)No.155, dated 03.10.2002
implementing the direction of the Hon'ble Division Bench. The
appointees underwent training and their services regularized with effect
from the date of completion of training. After thus getting a firm hold in
their posts, they mounted challenge to G.O.(Ms)No.155, dated
03.10.2002. The Hon'ble Division Bench reversing the decision of the
learned Single Judge upheld the validity of G.O.(Ms)No.155, dated
03.10.2002 in the decision reported in 2004-2-L.W. 591 (The State of
Tamil Nadu and Others v. Pallivasal Primary School).
8.An impression was generated as if the Hon'ble Supreme Court in
S.L.P.(C)No.22687 of 2003 gave liberty to seek appropriate remedy in
accordance with law in the light of subsequent developments. It is not so.
A careful look at the said order dated 25.04.2005 passed by the Hon'ble
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W.P(MD)No.2474 of 2020
Supreme Court in S.L.P.(C)No.22687 of 2003 would indicate that it was
directed against the order dated 10.09.2003 in W.A.No.1282 of 1998. In
other words,, the judgment rendered in W.A.Nos.249 of 2002 etc
(2004-2-L.W. 591) had become final. This judgment was subsequently
followed by the Hon'ble Division Bench in W.A.No.978 of 2016
(K.Nallasivan Vs. State of Tamil Nadu), dated 07.02.2018. A learned
Judge of this Court vide order dated 21.03.2022 in W.P.(MD)Nos.2347 of
2016 etc had elaborately traced all the developments. A recent decision
of the Hon'ble Division Bench in W.A.(MD)No.450 of 2022 dated
22.12.2022 is also on the same lines. Thus, the weight of the authority is
clearly ranged against the writ petitioner.
9.I must of course deal with another contention advanced by the
learned counsel for the writ petitioner to the effect that when similarly
placed individuals had been granted the benefits, it would not be proper
to deny the same to the petitioner. The learned counsel for the writ
petitioner relied on the order dated 17.08.2006 in W.A.(MD)No.231 of
2016 in this regard. The decision of the Hon'be Full Bench reported in
2021 (1) CWC 705 (The State Represented by its Secretary, School
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Education Department, Fort St.George, Chennai - 600 009 and
another Vs. S.Rajaram and others) furnishes a direct answer. Paragraph
No.19 of the said order reads as under:-
“19.It is well settled that Article 14 of the
Constitution of India cannot be invoked for perpetuating
illegality. A wrong order passed in one case cannot be
made the basis for compelling a public authority to pass
similar order in any other case. Even if the State
implements an erroneous order passed by the Court, it
cannot be precluded from challenging a similar order
passed in another case, simply because appeal was not
preferred in the earlier case (Paragraph No.17 in State
of Madhya Pradesh Vs. Ramesh Chandra Bajpai, reported in (2009) 13 SCC 635).”
10.There is yet another ground on which the petitioner will have to
be non-suited. As rightly pointed out by the learned Additional
Government Pleader, the petitioner's appointment was approved vide
proceedings dated 06.11.2003 issued by the District Educational Officer,
Madurai. A copy of the same has been enclosed at Page No.3 of the
petitioner's typed set of papers. The said order reads that the petitioner
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was appointed as Secondary Grade Teacher in Adulkalam Azad Middle
School with effect from 09.02.1998 by the school management and that
she was sent for training by virtue of G.O.(Ms)No.155, dated 03.10.2002.
Since the petitioner completed her training during the period from
02.05.2003 to 31.05.2003, her appointment was approved with effect
from 02.06.2003. The petitioner had accepted the terms of the
proceedings granting approval to her appointment, she has not so far
questioned the same. Therefore, it is too late in the date for the petitioner
to demand that her appointment should be approved with effect from
09.02.1998. Looked at from any angle, no case for interference is made
out. The writ petition stands dismissed. No costs.
23.03.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
ias
To:-
1.The Secretary,
Education Department,
Secretariat, Chennai – 9.
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W.P(MD)No.2474 of 2020
2.The Director of Collegiate Education,
College Road, Chennai – 6.
3.The District Educational Officer,
Melur, Madurai.
4.The Block Educational Officer,
Melur, Madurai District.
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W.P(MD)No.2474 of 2020
G.R.SWAMINATHAN, J.
ias
W.P(MD)No.2474 of 2020
23.03.2023
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