Madras High Court
The Secretary To Government vs Thangaraj on 1 September, 2023
WA(MD).No.949 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.09.2023
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.(MD)No.949 of 2014
and MP(MD).No.1 of 2014
1.The Secretary to Government
Government of Tamil Nadu
School Education Department
Fort St.George
Chennai 600 009
2.The Secretary to Government
Government of Tamil Nadu
Finance (Pay Cell) Department
Fort St.George, Chennai 600 009
3.The Director of School Education
Chennai
4.The Chief Educational Officer
Theni District
5.Headmaster
V.M.Government Higher Secondary School
Periyakulam Taluk, Theni District ... Appellants
1/15
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
Vs.
N.Elizabeth Gandhimathi (died)
Thangaraj ..... Respondents
( Respondent is substituted in the place of the
deceased sole respondent vide Order dated 09.08.2023)
PRAYER:- Writ Appeal filed under Clause 15 of Letters Patent to set
aside the order dated 01.08.2013 in WP(MD).No.5630 of 2013 and allow
the writ appeal.
For Appellants :Mr.V. Omprakash
Government Advocate
For Respondent :Mr.K.Appadurai
****
JUDGMENT
(Judgment of the Court was delivered by R.VIJAYAKUMAR, J.)
The respondents in the writ petition are the appellants herein.
The respondent in the appeal had filed a writ of mandamus directing the
official respondents to refund a sum of Rs.10,72,267/-, which according
to her, was recovered from her under threat on 06.10.2010.
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
2.The writ petitioner was originally appointed as a Secondary
Grade Teacher on 16.01.1978 in Government High School and she was
conferred selection grade on 16.01.1988 and special grade on 16.01.1998
and she attained superannuation on 30.10.2012. According to the writ
petitioner. G.O.Ms.No.304 Finance (PC) Department dated 28.03.1990
was issued, wherein the conferment of selection and special grade were
reintroduced with improved scale of pay with effect from 01.06.1988.
The order was followed by another Government Order issued by the
Secretary to Government, School Education Department in G.O.Ms.No.
216 Finance (Pay Cell) Department, dated 22.03.1993.
3.According to writ petitioner, being a Secondary Grade
Teacher working in a High School, she does not have promotional
avenue and therefore, she is entitled to the benefit under G.O.Ms.No.216
Finance (Pay Cell) Department, dated 22.03.1993. She made a request to
the Headmaster of the School for revision of pay as per Government
Order and after scrutiny, the same was sanctioned and a sum of Rs.
10,72,267/- was disbursed to her as arrears based on revised pay from
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
01.06.1988. Under the guise of an audit objection, the Chief Educational
Officer and the Headmaster threatened her to remit the entire amount of
Rs.10,72,267/- in September 2010. According to her, she was placed
under suspension and thereafter, she had deposited the amount into the
treasury. Based on the said deposit, the order of suspension was revoked,
but a punishment of reduction of pay by two stages was imposed upon
her on 28.12.2011. She was permitted to retire on 30.10.2012.
4.According to the writ petitioner, since she is eligible to all the
benefits under G.O.Ms.No.216 Finance (Pay Cell) Department, dated
22.03.1993 and the payments were made to her as per her eligibility, the
authorities were not right in directing her to remit the same under the
threat of suspension. Hence, she had filed the present writ petition for a
mandamus to refund the said amount.
5.The writ Court allowed the writ petition on the ground that
the writ petition filed by similarly placed persons were allowed and the
said orders were also confirmed by the Hon'ble Supreme Court. This
order is under challenge in the present writ appeal by the State.
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
6.According to the learned Government Advocate appearing
for the appellants, the scale of pay for the post of Secondary Grade
Teacher and Primary School Headmaster were identical till 31.05.1988
and the said posts were also inter-changeable. However, when the Fifth
Pay Commission recommendations were implemented, the post of
Primary School Headmaster was placed in the higher grade and it was
treated as a promotional post with higher scale of pay than the Secondary
Grade Teacher with effect from 01.06.1988. The Secondary Grade
Teachers who were working in the High School and Higher Secondary
School would not eligible to be promoted as Headmaster in the said
School. Therefore, the selection and special grade were reintroduced
under G.O.Ms.No.304 Finance (PC) Department, dated 28.03.1990 for
the said teachers who got stagnated as Secondary Grade Teacher in the
High School and Higher Secondary School.
7.According to the Government Advocate appearing for the
appellants, the writ petitioner was conferred with selection grade on
16.01.1988 and special grade on 16.02.1998. Since the petitioner had
already been conferred with the said grades, she will not be entitled to
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
invoke the benefits under G.O.Ms.No.216 Finance (Pay Cell)
Department, dated 22.03.1993.
8.The learned counsel appearing for the appellants had relied
upon the Hon'ble Full Bench Judgement of our High Court in a
judgement reported in (2017) 2 MLJ 257 (FB) (Government of Tamil
Nadu Vs. G.Eswaran) to contend that neither the selection grade nor the
special grade that were already conferred on the writ petitioner would fall
within the period prescribed by the Full Bench for the applicability of
G.O.Ms.No.216 Finance (Pay Cell) Department, dated 22.03.1993.
9.The learned Government Advocate had further contended
that the disciplinary proceedings were initiated as against the writ
petitioner for receiving the said amount of Rs.10,72,267/- in violation of
the Government Order. The writ petitioner was placed under suspension
and after enquiry, a punishment for reduction of pay by two stages was
ordered by the Disciplinary Authority on 28.12.2011. However, the said
order of punishment has not been challenged so far. Hence, he prayed for
allowing the writ appeal.
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
10.Per contra, the learned counsel for the respondent had
contended that as per G.O.Ms.No.216 Finance (Pay Cell) Department,
dated 22.03.1993, a Secondary Grade Teacher working in a High School
is eligible for the benefits under the said G.O. on the ground that they do
not have any promotional opportunity in the High School. In the present
case, the writ petitioner being a teacher working in a High School,
without promotional opportunity, is entitled to receive the benefits.
11.The learned counsel for the respondent had further
contended that when the petitioner is legally entitled to receive benefits
under G.O.Ms.No.216 Finance (Pay Cell) Department, dated 22.03.1993,
the Educational Authority under threat of disciplinary proceedings had
directed the writ petitioner to remit the amount. Therefore, the writ Court
was right in directing the authorities to refund the amount to the writ
petitioner on the ground that she is eligible for the benefits under
G.O.Ms.No.216 Finance (Pay Cell) Department, dated 22.03.1993.
Hence, he prayed for sustaining the order passed by the writ Court.
12.We have carefully considered the submissions made on
either side and perused the material records.
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
13.The writ petitioner was appointed as a Secondary Grade
Teacher in a High School on 16.01.1978 and she was conferred with
Selection Grade on 16.01.1988 and Special Grade on 16.02.1998. The
writ petitioner had attained superannuation on 30.10.2012. These facts
are not in dispute.
14.The writ petitioner had received a sum of Rs.10,72,267/- as
arrears of revised pay scale based on G.O.Ms.No.216 Finance (Pay Cell)
Department, dated 22.03.1993. According to her, she is eligible to receive
the said amount, but the department contends that she had misled the
department and received the said amount. Therefore, the question that
arises is whether the writ petitioner is eligible to receive the benefit under
the above said G.O. or not.
15.Based upon the recommendation of the Fifth Tamil Nadu
Pay Commission, the conferment of Selection Grade and Special Grade
were dispensed with by the Government. A Higher pay scale was
introduced for all the Headmasters of Primary School than that of the
Secondary Grade Teachers. This caused disparity between the Secondary
Grade Teachers working in a Primary School and the Secondary Grade
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
Teachers working in a High School/Higher Secondary School. While the
Secondary Grade Teachers working in a Primary School would have a
promotional opportunity of being promoted as Headmaster of the said
School, a Secondary Grade Teacher working in High/Higher Secondary
School did not have the said benefit. In order to rectify the said anomaly,
the Selection Grade and Special Grade were reintroduced on the revised
pay scale by G.O.Ms.No.304 Finance (PC) Department dated
28.03.1990. As per Paragraph No.9 of the G.O., the employees who have
already in the Selection Grade/Special Grade prior to 27.06.1989, were
permitted to exercise revised option on or before 30.06.1990.
16.Subsequent to the above said Government Order,
G.O.Ms.No.216 Finance (Pay Cell) Department, dated 22.03.1993 was
passed wherein it was extended to School Education Department and in
particular to the Secondary Grade Teachers working in a High School
who do not have an opportunity of promotion. There is no material on
record to indicate whether the writ petitioner had exercised her option to
receive Selection Grade and Special Grade on the basis of revised pay
scale under the Fifth Pay Commission.
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
17.In view of conflicting decisions of various Division
Benches with regard to the implementation of G.O.Ms.No.216 Finance
(Pay Cell) Department, dated 22.03.1993, the matter was referred to Full
Bench which decided the issue on 09.12.2016 and the same is reported in
(2017) 2 MLJ 257 (FB) (Government of Tamil Nadu V. G.Eswaran). The
operative portion of the judgment of the Hon'ble Full Bench which is
relevant for the disposal of the present writ appeal is extracted as
follows:
“38.Today, when the matters are taken up for consideration,
keeping in mind the financial strain that would fall on the
State exchequer in the event of implementation of the G.O,
and in order to give a quietus to the issue, we feel it
appropriate to fix the date as 01.03.2017 from which date
onwards, the Government shall calculate and revise the
pension and family pension(without arrears) based on the
revised scales of pay by implementing the G.O, for which, the
learned Advocate General and the learned counsels appearing
for the Teachers have fairly acceded to the same. Accordingly,
we pass the following:
(i)The Government is directed to implement the
G.O.Ms.No.216 dated 22.03.1993 for the period between
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
01.06.1988 and 31.12.1995, on and from 01.03.2017 onwards
in respect of all the Secondary Grade Teachers of
High/Higher Secondary Schools including the Special
Teachers who attained Selection Grade/Special Grade during
the above said period, on part with the pay scale of Primary
School Headmasters.”
18.A perusal of the judgement of the Hon'ble Full Bench would
clearly reveal that the Government was directed to implement
G.O.Ms.No.216 Finance (Pay Cell) Department, dated 22.03.1993, only
if the concerned Secondary Grade Teacher had obtained either Selection
Grade or Special Grade within the period between 01.06.1988 and
31.12.1995 and the said implementation will be with effect from
01.03.2017. In the present case, the writ petitioner was conferred with the
Selection Grade on 16.01.1988 and the Special Grade on 16.02.1998.
Therefore, it is clear that neither the Selection Grade nor the Special
Grade conferred upon the writ petitioner fell within the period specified
by the Hon'ble Full Bench which is a precondition for deriving the
benefit under G.O.Ms.No.216, Finance (Pay Cell) Department, dated
22.03.1993.
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
19.It is an admitted fact that the entire amount that was
recovered from the writ petitioner reflects only the monetary benefits that
were derived by the writ petitioner under G.O.Ms.No.216 Finance (Pay
Cell) Department, dated 22.03.1993. When the writ petitioner is not
eligible for the benefit under the above said G.O., the recovery of the
same by the official respondents cannot be found fault with. That apart,
disciplinary proceedings were initiated as against the writ petitioner for
deriving the benefits by misleading the authorities. The writ petitioner
by her communication dated 30.11.2011 had admitted that due to
mistake, she had received the said amount which she had remitted.
Ultimately, the writ petitioner was imposed with a punishment of
reduction of pay by two stages by an order dated 28.12.2011 that has
attained finality duly supported by the fact that there is no reference
about filing of the appeal in the writ affidavit filed on 12.03.2013.
20.Unless the writ petitioner establishes her legal rights for
receiving Rs.10,72,267/-, a mandamus would not lie as against the
authorities. In the preceding paragraph, we have arrived at a finding that
the writ petitioner is not entitled to the benefits under G.O.Ms.No.216
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
Finance (Pay Cell) Department, dated 22.03.1993, in view of Hon'ble
Full Bench order.
21.When the writ Court allowed the writ petition on
01.08.2013, it did not have the benefit of the above said Full Bench
order. Therefore, the legal basis on which the writ petition was allowed is
no longer available. In view of the above said deliberations, the order of
the writ Court is set aside and the Writ Appeal Stands allowed. No costs.
Consequently, connected miscellaneous petition is closed.
[A.S.M.J.,] & [R.V.J.,]
01.09.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes
msa
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
To
1.The Secretary to Government
Government of Tamil Nadu
School Education Department
Fort St.George
Chennai 600 009
2.The Secretary to Government
Government of Tamil Nadu
Finance (Pay Cell) Department
Fort St.George, Chennai 600 009
3.The Director of School Education
Chennai
4.The Chief Educational Officer
Theni District
5.Headmaster
V.M.Government Higher Secondary School
Periyakulam Taluk, Theni District
https://www.mhc.tn.gov.in/judis
WA(MD).No.949 of 2014
DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
msa
Judgment made in
W.A.(MD)No.949 of 2014
and MP(MD).No.1 of 2014
Dated:
01.09.2023
https://www.mhc.tn.gov.in/judis
