Madras High Court
A.Wilson James vs The State Represented By on 6 June, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.A(MD)No.253 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.06.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
and
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.A(MD)No.253 of 2023
A.Wilson James ... Appellant /
Petitioner
Vs.
1.The State represented by
The Secretary to Government,
Education Department,
Fort St.George,
Chennai – 600 009.
2.The Director of School Education,
College Road,
Chennai – 600 006.
3.The District Educational Officer,
O/o.District Education,
Tirunelveli District – 627 009.
4.The Correspondent,
The Christhuraja Higher Secondary School,
No.9H, North High Ground Road,
Palayamkottai,
Tirunelveli District. ... Respondents /
Respondents
1/12
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W.A(MD)No.253 of 2023
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent to set aside the
order dated 07.12.2022 in W.P(MD)No.1771 of 2020 on the file of this Court.
For Appellant : Ms.A.Amala
For Respondents : Mr.C.Venkatesh Kumar
Special Government Pleader
for R.1 to R.3
No Appearance for R.4
JUDGMENT
(Judgment of the Court was made by G.R.Swaminathan J.)
This Writ Appeal is directed against the order dated 07.12.2022 passed
by the learned single Judge dismissing W.P(MD)No.1771 of 2020 filed by the
appellant herein. The case of the appellant is that he was appointed as
Secondary Grade Teacher in the fourth respondent school on 22.01.1997. His
appointment was approved by the District Educational Officer, Tirunelveli on
01.04.1997. His scale of pay was also appropriately fixed and he was promoted
as BT Assistant in the year 2009. The appellant also completed Child
Psychology Training from 02.05.2003 to 31.05.2003. The case of the appellant
is that his service in the post of Secondary Grade Teacher with effect from
22.01.1997 should be taken into account for grant of selection grade. Since his
request was rejected by the third respondent vide proceedings dated
17.12.2019, W.P(MD)No.1771 of 2020 came to be filed. The learned single
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Judge relying on the Hon'ble Division Bench decision reported in 2004-2-LW-
591 and the decision rendered in W.A(MD)No.74 of 2015 and 957 of 2016
dated 21.03.2018 dismissed the Writ Petition. Challenging the same, this Writ
Appeal came to be filed.
2.The learned counsel appearing for the appellant reiterated all the
contentions set out in the grounds of Appeal. She drew our attention to the
order dated 12.07.2017 made in W.A(MD)No.1085 of 2014 etc batch. She
pointed out that the said order which is in favour of the appellant was authored
by one of us (GRSJ). She also relied on a subsequent Division Bench decision
rendered in W.A(MD)No.1474 of 2017 dated 17.09.2021 which is also on the
same lines.
3.The sum and substance of the contention of the learned counsel for the
appellant is that the fact that the Child Psychology Training course was
subsequently undergone by the appellant cannot be the reckoning date.
According to her, the reckoning date will be the date of the original
appointment. This is so because it was approved by the department itself.
4.No doubt, there are a number of judgments that too passed by various
Division Benches in favour of the appellant. The Department had also
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implemented almost all of them. But the basic fact cannot be lost sight of. The
Government had issued G.O(Ms)No.559 dated 11.07.1995 holding that persons
having higher qualification cannot be appointed in secondary grade vacancies.
In other words, only those candidates who possess the requisite qualification
alone should be appointed as secondary grade teacher. That was the purport of
G.O(Ms)No.559 dated 11.07.1995. The validity of the GO was put to challenge
in a batch of Writ Petitions. Interim stay was granted. When the interim stay
was in operation, the appellant herein came to be appointed. Since interim stay
was in force, approval could not have been denied for the appellant. But
ultimately the entire batch of writ petitions came to be dismissed on 12.09.1997
and the Hon'ble Division Bench also confirmed the same in the year 1998.
Thereafter, Government issued G.O(Ms)No.155 dated 03.10.2002 for recovery
of the salary already paid. This again was put to challenge in a batch of Writ
Petitions and the issue was eventually resolved by the Hon'ble Division Bench
on 02.04.2004 in W.A(MD)Nos.249 of 2002 (State of Tamil Nadu Vs
Pallivasal Primary School, Represented by its Correspondent,
Mudukulathur). Paragraphs 6, 7 and 8 of the said order read as follows:
“6. The Government Order No: 155 directs recovery of
salary paid to the appellants/ petitioners on the ground that
prior to their completing the training, they could not have
held the posts that were held by them. There is no dispute
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about the fact that these persons had actually worked. Salary
paid to persons who had actually rendered service cannot be
regarded as amount paid as gratis. More over the Division
Bench had noticed the fact that these persons had been
working and had indicated that it would be equitable to allow
them to remain in employment. It was left to the Government
to device a scheme by which these persons could acquire
qualifications which were essential for holding the post to
which they had been appointed at a time when they did not
possess the qualification. The salary that had been paid to
them during that period when they were actually teaching,
even though without the requisite qualifications, in our view,
is not an amount which they should be called upon to repay.
It has been noticed by the Division Bench which upheld the
G.O. Ms. No: 559 that most of these teachers came from a
poor background, that it was after a great deal of effort
before that they could equip themselves to a limited extent
and thereafter had been working in the schools for meager
salaries. Directing such persons to repay huge amounts, huge
amounts because the entire salary paid over a period of
nearly nine years would amount to inasmuch as over five
lakhs of rupees per person, would cause untold hardship to
such teachers. We, therefore, set aside that part of the
Government Order namely sub-para (vii) of Para 3 which
directs recovery from these teachers.
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7. So far as the approvals / confirmation is concerned,
Government was not under any duty to approve or confirm
the appointment of appellants / petitioners who did not
possess the qualifications prescribed when, they were
improperly appointed to the posts. Their position cannot be
equated to that of those who possess the qualification and
had been duly appointed. Their remaining in their post was
only by reason of a sympathetic view taken by the Division
Bench which had upheld the Government Order which had
directed that persons with B.Ed. Qualification are not to be
appointed in Secondary Grade vacancies.
8. Their right to be regarded as persons eligible for
confirmation / approval can be said to arise only after they
acquired, after their training, a minimum prescribed
qualification. The Government here has shown great
concession to them by allowing them to retain their position
even without obtaining the requisite diploma or certificate in
child psychology by giving to them training in child
psychology. We see nothing wrong in the Government
directing that their approval / confirmation can only be on
and after the date they complete the training. Their past
service however shall count for pension.”
The effect of the Pallivasal judgment is that the appointment already made in
breach of G.O(Ms)No.559 dated 11.07.1995 need not be disturbed. It was
further directed that salary already paid also need not be recovered. But then,
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approval of the appointment will commence only from the date when the
appointees completed the child Psychology training. The earlier service put in
by them would count for the purpose of pension. This decision unfortunately
was not properly considered or given effect to in several subsequent Division
Benches decisions. This was high-lighted by the Division Bench in
W.A(MD)Nos.74 of 2015 and 957 of 2016 dated 21.03.2018 (The Director of
Elementary Education, College Road, Chennai Vs Sundaravel Raj). The said
decision was subsequently followed by another Hon'ble Division Bench in
W.A(MD)No.350 of 2018 (The District Elementary Education Officer,
Virudhunagar Vs K.Saravanan Shanthi & Another) dated 01.08.2024.
Paragraph 12 of the order reads as follows:
“12. The judgment of the Division Bench in Pallivasal
Primary School's case cited supra was followed subsequently by
another Division Bench of this Court in The Director of
Elementary Education, College Road, Chennai Vs. Sundaravel
Raj passed in W.A.(MD).Nos.74 of 2015 and 957 of 2016 dated
21.03.2018, wherein, the question of entitlement of salary from
the date of first appointment was considered in paragraph 7,
which reads as follows:
''7.Pursuant to which, G.O.Ms.No.155 dated 3.10.2002 was
issued. The said Government Order provided for imparting one
month child psychology training for all those Teachers, who
possessed B.Ed qualification and appointed in Secondary Grade
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vacancies, which appointment was held to be not sustainable by
the Division Bench. As the Teachers does not possess the
requisite qualification, the Government, while granting such
concession imposed a condition, which appears to have been
unequivocally accepted by the Teachers. Otherwise they would
have lost the chance of getting absorbed into service. The
question would be as to whether the Teachers would be entitled
to get salary from the date of first appointment, I.e. the order of
irregular appointment and as to whether they would be entitled
for salary in the Secondary Grade scale from the date of
completion of child psychology training. There can be no
controversy on the aspect as the Government order clearly
stipulates as to from what date the Secondary Grade scale of pay
is liable to be paid to those Teachers including the respondents.
This is contained in Clause 3(iii) of G.O.Ms.No.155 dated
03.10.2002, which reads as follows:
“(iii) Nkw;fz;l epakdq;fs; murizf;Fg; Gwk;ghf
nra;ag;gl;Ls;sjhYk;> ,e;epakdjhuu;fshy; njhlug; gl;l
upl; kDf;fs; kw;Wk; mjid vjpu;j;J js;Sgb
nra;agl;Ls;sjhYk; Nkw;fz;l epakdq;fSf;F epakd
Kjy; xg;Gjy; toq;fp> me;ehs; Kjy; Cjpak;
toq;f ,ayhJ. vdNt> Nkw;fz;l gapw;rpia Kbj;j
ehspypUe;J ,tu;fSf;F Kiwahd ,ilepiy
Mrpupau;fshf epakd xg;Gjy; mspj;J> me;j ehspypUe;J
kl;LNk ,ilepiy Mrpupau; Cjpak; toq;f Ntz;Lk;
vd;W Mizaplg;gLfpwJ.”
While answering the question, it is observed as follows: “9.The
management of various Schools, which had appointed Teachers
like the respondents had challenged the validity of
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G.O.Ms.No155 dated 03.10.2002 and the matter travelled upto
the Division Bench and the Division Bench in the case of The
State of Tamil Nadu and others v. Pallivasal Primary School
reported in 2004-2-L.W. 591 upheld G.O.Ms.No.155 dated
03.10.2002. The only relief granted to the Teachers, who were
appointed in Secondary Grade vacancies, is the grant of salaries,
were by restraining the department from effecting any recovery.
Therefore, paragraph No.3(7) of G.O.Ms.No.155 alone was set
aside and rest of the Government Order was upheld in the said
decision. It was subsequently ordered that approval/confirmation
of the appointment can be only after the date of completion of the
child psychology training. Further the Division Bench observed
that the past service I.e prior service child psychology training
shall count. After the decision rendered in the case of Pallivasal
has attained finality, the respondent/writ petitioners seek for
salary for the earlier period as well as for other monitory
benefits such as increment, selection grade and special grade,
etc. We have given our careful consideration. We find in
paragraph No.7 of its judgment, the Hon'ble Division Bench has
noted the various condition in G.O.Ms.No.155 and held that the
respondent therein would be entitled to relief as granted to
similarly placed teachers. If that is so, the ultimate conclusion
would have been to grant benefit from the date of completion of
the child psychology training. However in the penaltimate
portion of the order her salary has also been included. In our
considered view, the direction to pay salary does not corroborate
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with the observation made by the Division Bench. In, the decision
in the case Suganthi Victoria. The Government had admitted that
at best it can be taken as a decision pertaining to the said case
on its factual matrix and that cannot be taken as a precedent. In
the case of Government of Tamil Nadu v. Sri Rao Bahadur AKD
Dharmaraja Girls Higher Secondary School in W.A.(MD)No.
3442 of 2002 dated 08.09.2006, the Division Bench, relying on
the decision of the case reported in 2002 Writ l.r. 173, held that
the salary can be paid only after completion of the child
psychology training and accordingly, allowed the Government
appeal.
10.The learned counsel for the respondents/writ petitioners
relied on certain other orders passed by various single Benches
including one of us (TSSJ) and on perusal of the same, we find
that in none of those decisions, the full effect of G.O.Ms.No.155
and the conditions therein have been thoroughly examined. Apart
from that, the decision in the case of Pallivasal Primary School
has not been specifically noted. Therefore, we are of the
considered view, that those decisions cannot be referred to
advance the case of the respondents/writ petitioners, though
some of them have attained finality. Needless to state that if there
has been a wrong decision, it cannot be treated as precedent.
11.In the light of the above reasoning, we are of the
considered view that the order passed by the Writ Court directing
disbursement of salary from the date of original appointment,
cannot be sustained, in the light of explicit condition imposed in
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G.O.Ms.No.155, which was upheld by the Division Bench in a
Public Interest Litigation. Thus, for the above reasons, the writ
appeals filed by the department has to be allowed.”
5.We are therefore of the view that the learned single Judge was right in
negativing the appellant's request. The appellant was appointed after issuance
of G.O(Ms)No.559 dated 11.07.1995. Therefore, the case of the appellant will
have to be determined only with reference to the parameters and norms laid
down in Pallivasal judgment. In the order dated 12.07.2017 in W.A(MD)No.
1085 of 2014 etc batch, Pallivasal judgment was not considered or referred to.
We are of the view that interference with the impugned order is not called for.
6.This Writ Appeal stands dismissed. There shall be no order as to costs.
[G.R.S., J.] [K.R.S., J.]
06.06.2025
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
MGA
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G.R.SWAMINATHAN, J
and
K.RAJASEKAR, J.
MGA
To
1.The Secretary to Government,
Education Department,
Fort St.George,
Chennai – 600 009.
2.The Director of School Education,
College Road,
Chennai – 600 006.
3.The District Educational Officer,
O/o.District Education,
Tirunelveli District – 627 009.
4.The Correspondent,
The Christhuraja Higher Secondary School,
No.9H, North High Ground Road,
Palayamkottai,
Tirunelveli District.
06.06.2025
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