Madras High Court

S.Kuzhali vs The Director Of School Education on 4 November, 2024

Author: J.Sathya Narayana Prasad

Bench: J.Sathya Narayana Prasad

                                                                              W.P.No.16303 of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 04.11.2024

                                                       CORAM:

                   THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD

                                              W.P.No.16303 of 2020

                  S.Kuzhali                                                  ...Petitioner

                                                        -Vs-

                  1.The Director of School Education,
                    DPI Campus, College Road,
                    Chennai – 600 006.

                  2.The Director of Elementary Education,
                    DPI Campus, College Road, Chennai – 600 006.

                  3.The Chief Educational Officer,
                    Thiruvarur District, Thiruvarur.

                  4.The District Educational Officer,
                    Thiruvarur Educational District,
                    Thiruvarur.

                  5.The Block Educational Officer
                    Mannargudi Block,
                    Thiruvarur District.                                    ...Respondents

                  Prayer: Writ Petition filed under Article 226 of the Constitution of India,
                  praying for the issuance of a direction in the nature of Writ of Certiorarified
                  Mandamus, call for the records relating to the impugned order issued by the
                  first respondent in Na.Ka.No.025807/C3/E1/2020 dated 05.08.2020 and to
                  quash the same and consequently directing the respondents to pass orders for
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                                                                                     W.P.No.16303 of 2020

                  granting pay protection to the petitioner in the post of Secondary Grade
                  Teacher as on 17.12.2012 based on the Selection Grade Scale of pay reached
                  by the petitioner in the Government Aided post as per the services rendered
                  from 29.11.2001 to 17.12.2012 with all consequential and other attendant
                  benefits including payment of arrears of salary along with interest, within a
                  time frame to be fixed by this Court and to pass such further orders.



                                  For Petitioner       :      Mr.S.Nedunchezhiyan

                                  For Respondents :           Mr.T.M.Rajangam,
                                                              Government Advocate


                                                           ORDER

This writ petition is filed seeking to quash the impugned order issued

by the first respondent in Na.Ka.No.025807/C3/E1/2020 dated 05.08.2020

and consequently directing the respondents to pass orders for granting pay

protection to the petitioner in the post of Secondary Grade Teacher as on

17.12.2012 based on the Selection Grade Scale of pay reached by the

petitioner in the Government Aided post as per the services rendered from

29.11.2001 to 17.12.2012 with all consequential and other attendant benefits,

including payment of arrears of salary along with interest.

2. The case of the petitioner is that the petitioner is as follows:

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2.1 The petitioner was initially appointed as Secondary Grade Teacher

on 29.11.2001 in a Government Aided School viz., Manba-ul-ula Aided

Primary School, Koothanallur, Mannargudi Block, Thiruvarur District and

her appointment was duly approved by the department. Accordingly, she was

appointed in the Government Aided School and her appointment was

approved by the department with an assessment of salary grant. Her

appointment was made with basic scale of pay of Rs.4,500/-. On completion

of 10 years of service, she was sanctioned with Selection Grade scale in the

post of Secondary Grade Teacher in the year 2011. Based on the permission

from the department, she has participated in the selection to the post of

Secondary Grade Teacher in Elementary Education Service conducted by

Teacher Recruitment Board (TRB). Accordingly, she was selected to the post

of Secondary Grade Teacher through TRB and appointed as Secondary Grade

Teacher in Panchayat Union Middle School, Mannargudi, Mannargudi Block,

Thiruvarur District on 17.12.2012 FN. Subsequently, the PUMC, Mannargudi

has been upgraded as High School and she has been absorbed as

B.T.Assistant (English) in the same school and presently working under the

control of Director of School Education.

2.2 The petitioner was relieved from the Government Aided post on

17.12.2012 FN and joined the post of Secondary Grade Teacher in PUMS on

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the same day on 17.12.2012 FN. At the time of her appointment, instead of

fixing the salary with pay protection by taking into consideration the

Selection Grade scale of pay reached by her in the post of Secondary Grade

Teacher, she was fixed in the basic scale for the post of Secondary Grade

Teacher as Rs.5200+2800 GP (Grade Pay)+750 PP (Personal Pay). Whereas

she drawing the scale of pay of Rs.14490+2800 GP+750 PP in the revised

scale of pay in the post of Secondary Grade Teacher in the Government

Aided post.

2.3 As per Fundamental Rules and various Government Orders, she is

entitled for pay protection on appointment in the post of Secondary Grade

Teacher in Elementary Education on 17.12.2012 by considering the services

rendered by her in the Government Aided post from 29.11.2001 to

17.12.2012. She had joined the Elementary Education service without any

break in service on the same day when she got relieved from the Government

Aided post.

2.4 She submitted representation to the respondents seeking to provide

pay protection by continuing the pay scale already availed by her in the

Government Aided post, since she joined the Elementary Education services

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without any break in service, whereas her claim for fixation of pay in the

pose of Secondary Grade Teacher has not been considered on the premises

that the services rendered by her in Government Aided post cannot be taken

into consideration for fixation of pay.

2.5 As per the orders of Government, the Service Register is

maintained for the post of Secondary Grade in Government Aided post has to

be necessarily followed in the Government service. However, at the time of

digitalization of the service details, the old SR details have not been taken

into consideration. The old SR alone is carrying the leave details which

include Earned Leave etc. However, the SR for the post of Government

Aided post has not been followed by the department without any rhyme or

reason in spite of Government orders.

2.6 In this regard, similarly placed persons have been given the benefit

of consideration of services rendered in the Government Aided post for grant

of Selection Grade in Government service on appointment. One

Thiru.S.Ilamperuvazhuthi initially appointed as Secondary Grade Teacher in

Government Aided post in 2000, got an appointment in Government service

in 2009 as Secondary Grade Teacher, thereafter was promoted as

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B.T.Assistant in 2012. As per the proceedings of AEEO, Thali, Krishnagiri

District, he was granted with Selection Grade scale of pay by taking into

consideration of services rendered in Government Aided post. Similarly, one

Thiru.D.Narayanasamy, B.T.Assistant was given the benefit of fixation of

pay in Elementary Education with pay protection based on the services

already rendered by him in Government Aided post.

2.7 She had submitted representation to the 2nd Respondent / Director

of Elementary Education seeking to consider her claim for pay protection in

the post of Secondary Grade Teacher on appointment in Elementary

Education in 2012. The fact remains that subsequently she was promoted as

B.T.Assistant on 17.08.2015. In view of the wrong fixation of pay, she is

suffering more than Rs.25,000/- loss of pay every month. The petitioner was

constrained to file Writ Petition before this Court in W.P.No.2208 of 2020 to

direct the respondents to pass orders for revision of scale of pay in the post of

Secondary Grade Teacher in the Elementary Education Service on

17.12.2012 with pay protection based on the Selection Grade scale of pay

reached by the petitioner in the Government Aided post as per the services

rendered from 29.11.2001 to 17.12.2012 with all consequential and attendant

benefits.

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2.8 This Court passed orders in the Writ Petition on 30.01.2020 by

referring to the fact that the other similarly placed persons have been given

the benefit of pay protection based on the service rendered in the Government

Aided post before appointing the teaching post in Government School and

accordingly issued directions to the respondents to pass orders on the claim

of the petitioner in accordance with law within a period of 6 weeks from the

date of receipt of the order copy.

2.9 After a long period, the 1st respondent issued the impugned

proceedings dated 05.08.2020 relating to the claim of the petitioner by stating

that the similar Writ Petition filed by one Suthandiradevi in W.P.(MD)

No.8817 of 2014 was dismissed on 26.07.2019 and further she is not entitled

for pay protection as per FR 22(b). The impugned order has been issued by

the 1st respondent without appreciating the fact that the order passed in the

Writ Petition filed by one Suthandiradevi based on different sets of facts

cannot be applied against the petitioner and further the petitioner is entitled

for pay protection since she was working in Government Aided post and

reached Selection Grade, subsequently appointed in Government School and

thereby entitled for pay protection as it was ordered for similarly placed

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persons. Hence, the present writ petition is filed.

3. Learned counsel appearing for the petitioner submitted that the

applicability of FR 22(b) cannot be put against the petitioner since she was

working in the post of Secondary Grade Teacher in Government Aided Post

and subsequently appointed in the Government School in the same post of

Secondary Grade Teacher after reaching the Selection Grade scale of pay in

the earlier post.

4. Learned counsel contended that as per the proceedings of the

Assistant Elementary Educational Officer vide proceedings

Na.Ka.No.349/A2/2012 dated 16.04.2013, a similar person like the petitioner

was permitted to join the R.P. Middle School at Bodi, Meenakshipuram,

wherein it was treated as continuity in service and the same service register

was followed to the newly appointed post.

5. Learned counsel for the petitioner drew the attention of this

Court to the proceedings of the Joint Director of Elementary Educational

(Administration) vide Na.Ka.No.2658/M-3/2011 dated 13.09.2011, wherein

it is stated that “If a Government servant is transferred from one post to

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another post it is treated as continuity in service / without break of service,

the same service register originally started shall be continued to the new

post”, and the relevant portion is extracted hereunder:

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X/K/vz;/28802/vk;3/10. ehs; 20/10/2010y; @Ke;ija gzpg;gjpntL kl;Lk; gad;gLj;jpf; bfhs;syhk;@/ kDjhuh; nfhhpa jfty;fs; Vw;fdnt md;dhUf;F tH';fg;gl;L tpl;lJ vd;Wk;.

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                                  bjhptpf;fg;gLfpwJ/
                                                        Jiz ,af;Feh; (eph;thfk;)@

6. Learned counsel also relied on the judgment of the Division

Bench of this Court in W.A(MD)No.1035 of 2017 (The State of Tamil Nadu,

Rep by its Secretary, Department of Finance (Pension), Fort St. George,

Chennai – 600 009 and others Vs. R.Arockiamary and another) and he

prays this Court to allow the above writ petition.

7. A counter affidavit was filed on behalf of the third respondent

dated 05.12.2020 and the relevant paragraph is extracted hereunder:

“20. Regarding the averments in ground 'g' of the affidavit of the petitioner, it is submitted that the request of the petitioner cannot be considered for the following https://www.mhc.tn.gov.in/judis

reasons:-

(i) that the petitioner had worked in Aided Private School governed by TamilNadu Recognition of Private School Regulation Act in which here is no provision for getting new appointment in government service by way of transfer or promotion.

(ii) that the appointment of the petitioner is a fresh one as per the terms and conditions of recruitment made by Tamil Nadu Teachers Recruitment Board which provides minimum in the Pay scale of 5200-20200 Grade Pay 2800+750 pp

(iii) illustration under rule 22.B. of TamilNadu Fundamental rules did not permit any pay protection and the petitioner is entitled only for minimum in the Time scale of pay as per the above provisions.

(iv) as the observations made by this Hon'ble High Court, in WP (MD)No.8817/2014 26.7.2019, the petitioner cannot claim pay protection as a matter of right.”

8. Heard both sides and perused the materials placed on record.

9. In the case on hand, the petitioner is working in Government

Aided post and subsequently she joined as Secondary Grade Teacher in

Panchayat Union Middle School, Mannargudi. Hence, as per the

proceedings of the Joint Director of Elementary Education dated

13.09.2011, there is no break in service and as per the judgment of the

Division Bench of this Court in W.A(MD)No.1035 of 2017 (The State of

Tamil Nadu, Rep by its Secretary, Department of Finance (Pension), Fort

St. George, Chennai – 600 009 and others Vs. R.Arockiamary and

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another), wherein this Court held as follows:

“4.The Writ Petitioner was working in an aided School till 01.12.2006. On 06.12.2006, she joined the Panchayat Union Primary School at Sadayampatti Panchayat, Vaiyampatti Union, Trichy District, consequent to an order, dated 02.12.2006. Since there was a break in service from 02.12.2006 till 05.12.2006 for a period of four days, the third respondent passed the order impugned dated 09.09.2015 in the Writ Petition refusing to admit her in the Teachers Provident Fund Account, which she was earlier having, when she was working in an aided School till 01.12.2006 in Provident Fund Account in TPF No.337143.

15.There is no dispute over the fact that the Writ Petitioner was employed as Secondary Grade Teacher in RC Amalarackini Middle School, Kulithalai, Karur District on and from 21.11.2001 till 01.12.2006. She was under the old pension scheme with TPF No.337143. She was then appointed in Panchayat Union School by order dated 02.12.2006. She joined on 06.12.2006. The alleged break in service from 02.12.2006 till 05.12.2006 was held against her and therefore, she was placed under the Contributory Pension Scheme.

17.The learned Counsel for first respondent had emphatically stated that the Writ Petitioner was actually present from 02.12.2006 till 05.12.2006 in the School premises, but since the training programme was being undertaken, there was no possibility of her joining service and immediately, on conclusion on 06.12.2006, as observed by the learned Single Judge, consequent to proceedings issued by the Additional Assistant Elementary Educational Officer, dated 06.12.2006, the Writ Petitioner had joined duty on 06.12.2006.

18.We are of the considered view that the Writ Petitioner cannot be penalised for the training programme being conducted. It was a circumstance which made it impossible for her to join, as all the Teachers including the Headmaster/ Headmistress would be involved in the training.

This training had been conducted across the State. Therefore, we hold that the learned Single Judge had

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correctly allowed the Writ Petition.”

10. In view of the aforementioned proceedings of the Joint

Director of Elementary Educational (Administration) vide

Na.Ka.No.2658/M-3/2011 dated 13.09.2011 and the ratio laid down by

the Division Bench of this Court, the impugned order passed by the first

respondent in Na.Ka.No.025807/C3/E1/2020 dated 05.08.2020 is liable to

be quashed and the same is accordingly quashed.

The respondents are directed to grant benefits including

payment of arrears of salary along with interest to be given within a

period of eight weeks from the date of receipt of a copy of this order.