Madras High Court
R. Mary Selvarani vs The Government Of Tamil Nadu on 3 January, 2024
2024:MHC:5647
W.P.No.4396 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 19.12.2023
Pronounced on 03.01.2024
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
W.P.No.4396 of 2020
R. Mary Selvarani ... Petitioners
Vs.
1. The Government of Tamil Nadu
Rep by its Principal Secretary,
School Education Department,
Fort St. George, Chennai 600 009.
2. The Director of School Education,
D.P.I. Campus, College Road,
Nungambakkam, Chennai-600 006.
3. The Chief Educational Officer,
Nagercoil, Kanyakumari District.
4.The District Educational Officer,
Nagercoil, Kanyakumari District.
5 Little Flower Girls Higher Secondary School,
Rep by its Headmaster and Correspondent,
Ramaputhur, Nagercoil 629004,
Kanyakumari District. ... Respondents
Page No.1 of 14
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W.P.No.4396 of 2020
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Certiorarified Mandamus calling for the records
pertaining to Government Letter No. 12951/PaKa6(1)/2019 dated
18.11.2019 issued by the 1 respondent, quash the same and direct the
respondents to regularize the period of services of the petitioner between
20.12.1986 to 31.05 1995.
For Petitioner : Mr.R.Subramanian
For Respondents : Mr.R.Ramanlal, Addl.Advocate General
assisted by Mr. P.Sanjai Gandhi,
Government Advocate.
ORDER
This Writ Petition has been filed seeking issuance of Writ of
Certiorarified Mandamus calling for the records pertaining to
Government Letter No.12951/PaKa6(1)/2019 dated 18.11.2019 issued by
the 1st respondent, quash the same and direct the respondents to
regularize the period of services of the petitioner between 20.12.1986 to
31.05 1995.
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2. The Petitioner has been appointed as B.T.Assistant on
20.12.1986 at the 5th respondent's school during the academic year 1986-
87. Even though the strength of school was so high and required eleven
B.T Assistants, only nine posts of B.T. Assistant were sanctioned. The
petitioner has been taking classes continuously from 20.12.1986 to
31.05.1995. By virtue of the G.O.Ms.No. 950 Education/D1/Department
dated 31.07.1989, two more B.T. Assistant posts, one Tamil Pandit, one
Physical Education Teacher, one Junior Assistant and one Record Clerk
posts were sanctioned on condition that the 5th respondent's school has to
give security to the salary to be disbursed to the additional staffs, which
was inclusive of the petitioner as well. The 5th respondent's school did
not furnish the security and hence, the petitioner was not paid with the
salary as per G.O.Ms.No.950 Education/D1/Department dated
31.07.1989. The petitioner was working as B.T. Assistant without any
salary from 20.12.1986 to 31.05.1995. On 01.06.1995, the 5th
respondent's school appointed the petitioner as Secondary Grade Teacher
and he worked there till 22.09.1998. On 23.03.1998, he was promoted as
B.T. Assistant and continued till 21.09.1998. On 22.09.1998 the
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petitioner was promoted as P.G.Assistant in English and he continued to
work in the said post.
2.1. The petitioner and the school were making several
representations to regularise the petitioner's services and pay him the
salary for the period from 20.12.1986 to 31.05.1995. But there was no
response. On 04.12.2014, the petitioner gave a representation to the 1 st
respondent for regularisation of service for the above said period. As the
same was not considered, he filed a writ petition in W.P.No.17877 of
2015 and in which, a direction to the 1st respondent was given on
26.03.2019 regarding the payment of salary for the period from
20.12.1986 to 31.05.1995.
2.2. Subsequently, the 1st respondent conducted an enquiry;
however vide impugned government letter No.12951/PaKa6(1)/2019
dated 18.11.2019 rejected the same on the ground that the 5th
respondent's school did not comply with the condition of furnishing
security as stated in G.O.Ms.No.950 Education/D1/Department dated
31.07.1989. Aggrieved over the same, the petitioner has filed this writ
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petition.
3. Heard, Mr.R.Subramanian, learned Counsel for the petitioner
and Mr.R.Ramanlal, learned Additional Advocate General for the
respondents and perused the materials available on records.
4. Mr.R.Subramanian, learned counsel for the petitioners submitted
that for the non compliance on the part of the 5th respondent, the
petitioner should not be penalised. The 1st respondent omitted to take
note of the staff-student ratio and the requirement of further number of
staffs ought to have been considered and additional posts should have
been sanctioned. As per the government orders, the post have to be
sanctioned in accordance with the strength of the students as fixed by the
educational authorities. The petitioner was paid with the salary for the
period from 19.11.1986 to 19.12.1986 and 08.06.1988 to 05.09.1988, in
leave vacancy prior to the issuance of G.O.Ms.No.950
Education/D1/Department dated 31.07.1989. The G.O.Ms.No.950
Education/D1/Department dated 31.07.1989 itself would show that there
were two vacancies existing in the post of B.T.Assistant and the
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petitioner was working regularly for the entire period from 20.12.1986 to
31.05.1995. Even though the petitioner has worked till 33 years due to
non regularisation of the period between 20.12.1986 to 31.05.1985, the
petitioner has lost the retirement and other service benefits.
4.1. In respect of the above submissions, the learned counsel for
the petitioner cited the following decisions:
Sl. Citations submitted by the learned counsel for the Reported in
No petitioner
1 Union of India and another Vs. Shri R.c.D'Souza AIR 1987 SUPREME
COURT 1172
2 O.A.Chinna Alagi Vs. State of Tamil Nadu rep. by the 2008-1-L.W.192
Secretary to government and others
3 The judgement of Division Bench of Madras High Court in
W.A.No.1552 of 2016 dated 08.07.2021
4 the judgement of the Orissa High Court: Cuttack in WP.(C)
NO.19346 of 2021 dated 14.09.2022
5. Mr.R.Ramanlal, learned Additional Advocate General for the
respondents submitted that the petitioner has been appointed as against
the unsanctioned post and actual sanction for the post has been accorded
only from 01.06.1995. So the regularization can be done only from the
date when the post was sanctioned and not any time earlier. As per
G.O.Ms.No.314, School Education Department dated 12.11.1999, the
services of an individual who worked in a non sanctioned post can be
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taken into account only for promotion and not for pension or fixation of
salary. Even as per the appointment order dated 01.06.1995, the vacancy
is only as against one Anne Mary Celine who retired on 31.05.1995.
Unless the period of service rendered by the petitioner prior to sanction is
regularized, the benefit of pension in respect of those period cannot be
given.
6. The petitioner was first appointed on 20.12.1986 as a B.T.
Assistant. Subsequently, the 5th respondent's school has been addressing
the 1st respondent to sanction the additional posts taking into account of
the Student -Teacher ratio. After repeated representations, the 1st
respondent had sanctioned two B.T.Assistant along with other posts by
virtue of issuance of the G.O. Ms. No.950 Education/D1/Department
dated 31.07.1989. The petitioner was very much in service during the
said period. However, fund has been allotted for excess teaching post by
virtue of G.O.Ms.No.31, School Education Department dated
25.07.1987, however with a condition that the 5th respondent's school
should furnish security, but the same was not done. The 5th respondent's
school did not furnish security and in view of that posts which are
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permitted vide G.O.Ms.No.950 Education/D1/Department dated
31.07.1989 were not sanctioned and they remained non sanctioned. In the
above G.O.Ms.No.950 Education/D1/Department dated 31.07.1989,
there was a condition to produce the security; but the 5th respondent's
school omitted to produce the security and that was reflected on the
petitioner's service.
7. The consideration shown by the 1st respondent for sanctioning
additional posts would show that during the relevant point of time, the
petitioner's school was in need of additional teachers especially in the
grade of B.T.Assistant. The petitioner continued to work from her date of
appointment till her appointment as B.T.Assistant and that was not
objected by the respondents and the petitioner's service in each category
was also continuous without any break. But the learned Additional
Advocate general for the respondents submitted that the period for which
an individual had served in a non sanctioned post can be taken into
account only for promotion and not for pension or fixation of salary.
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8. The learned counsel for the petitioner attracted the attention of
the Court to the judgement of the Orissa High Court: Cuttack rendered
in WP.(C) No.19346 of 2021 dated 14.09.2022 to emphasise his point
that the definition of 'employee' under Section 2(e) of the Payment of
Gratuity Act, 1972 would include any employee employed on daily
wages in any establishment, factory, mine, etc., other than an apprentice.
In this regard, it is appropriate to extract the relevant paragraphs of the
said judgment as under:
“18. It is amply clear from the definition of "employee",
as defined under Section 2(e) of the P.G. Act, 1972, that
the employee means any person other than an
apprentice, employed on wages, in any establishment,
factory, mine etc., to do any skilled, semi-skilled, or an
unskilled, manual, supervisory, technical or clerical
work, whether the terms of such employment are express
or implied, but does not include any such person, who
holds a post of Central Government or State
Government and is governed by any Act or by any rules
providing for payment of Gratuity.
19. Admittedly, the P.G. Act, 1972 is applicable to the
Petitioner's establishment. There is no such provision
under the P.G. Act, 1972 that the same is only
applicable to permanent employee of an Establishment.
Rather, from the definition of "employee" as defined
under Section 2(e) of the P.G. Act, 1972, it is amply
clear that, except apprentice, the definition of Employee
covers all persons.”
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9. It is further submitted that the continuation of service within the
meaning of the Payment of Gratuity Act, 1972 is defined under Section
2A of the Payment of Gratuity Act, 1972. As the petitioner was in
continuous service from 20.12.1986 to 31.05.1995, his eligibility to
cover under the Payment of Gratuity Act, 1972 cannot be denied.
10. The petitioner was in continuous service and he has worked for
more than 31 years. Her past services were not included in view of the
fact that the post for which she was appointed remained unsanctioned
before 01.06.1995. Even though the additional posts were sanctioned in
the year 1989 itself, the 5th respondent did not grab the opportunity by
furnishing appropriate security. The 5th respondent's school
accommodated the petitioner in one way or other by ensuring that her
services are not broken at any point to time. By considering petitioner's
services for 9 years, the 5th respondent's school which is an aided
minority, inducted him any of the available sanctioned vacancy and thus,
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she was appointed in the vacancy of one Anne Mary Celine who has
retired on 01.06.1995 as a Secondary Grade Teacher. As the additional
posts were sanctioned subsequently vide G.O.Ms.No.523/School
Education (D1) Department dated 29.12.1997, the petitioner was
promoted to B.T.Assistant on 23.03.1998 with effect from 01.06.1997.
11. So far as the premature payment of gratuity is concerned, there
cannot be any denial on the part of the petitioner, because the petitioner
was in continuous service. Similarly placed persons whose services
rendered in the unsanctioned posts were given with benefit of pension
inclusive of such period. Exactly similar matter is involved in
WA.No.1552 of 2016 and in which, the Hon'ble Division Bench of this
Court by an order dated 08.07.2021 has made a reference about G.O.(1D)
No.413 School Education Department dated 27.11.2015 and an order has
been passed in respect of some other teacher to consider his services
rendered in the non sanctioned posts for calculating the pensionary
benefits is extracted as hereunder:
“10. It is further pointed out that by proceedings dated
10.04.2014, the representations of the writ petitioner
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was considered by the fourth appellant, namely the
District Educational Officer and was rejected as per
G.O. Ms. No.314 School Education Department dated
12.12.1999. However, it appears that there was a
contempt petition filed by the writ petitioner for
non~compliance of the order. In order to close the said
contempt petition, G.O. (1D) No.413 School Education
Department dated 27.11.2015, has been issued, the
operative portion of which is as follows:
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jFjpahd gzpf;fhykhf mDkjpj;J Miz tH';-
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12. When similarly placed persons were given with the benefit of
calculating the past services rendered in the unsanctioned posts for the
purpose of retirement and pensionary benefits, such benefit can also be
extended to the petitioner also. The respondents ought to have considered
earlier mentioned government orders before passing the impugned order.
Had that been the case, the respondents would have considered the
petitioner's claim positively. However, the said benefit of allowing the
petitioner to calculate her services rendered in the unsanctioned post
between the period from 20.12.1986 to 31.05.1995 would be limited for
the purpose of getting the retirement and pensionary benefits alone.
With this limited relief this Writ Petition is disposed of. No costs.
03.01.2024
Index : Yes
Internet : Yes
Speaking
Neutral Citation : Yes
jrs
https://www.mhc.tn.gov.in/judis
R.N.MANJULA, J.
jrs
To
1.The Principal Secretary,
Government of Tamil Nadu
School Education Department,
Fort St. George, Chennai 600 009.
2.The Director of School Education,
D.P.I. Campus, College Road,
Nungambakkam, Chennai-600 006.
3.The Chief Educational Officer,
Nagercoil, Kanyakumari District.
4.The District Educational Officer,
Nagercoil, Kanyakumari District.
5 Little Flower Girls Higher Secondary School,
Rep by its Headmaster and Correspondent,
Ramaputhur, Nagercoil 629004,
Kanyakumari District.
03.01.2024
https://www.mhc.tn.gov.in/judis
