Madras High Court
State Of Tamil Nadu Rep By Its vs T.R.Iswaran on 23 December, 2014
Author: P.R.Shivakumar
Bench: N.Paul Vasanthakumar, P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 04.12.2014 Pronounced on : 23.12.2014 CORAM THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR W.A.No.662 of 2012 and M.P.No.1 of 2012 1.State of Tamil Nadu rep by its Secretary to Government, Education Department, Fort St. George, Chennai-9. 2.District Educational Officer, Cheranmahadevi at Tirunelveli. 3.Chief Educational Officer, Tirunelveli. 4.Director of School Education, Chennai - 600 006. ... Appellants Vs. 1.T.R.Iswaran 2.The Secretary, Tilak Vidyalaya Higher Secondary School, Kallidaikurichi. ... Respondents Writ Appeal filed under Clause 15 of Letters Patent against the order the learned single Judge dated 12.01.2011 made in W.P.No.685 of 2004. For Appellants : Mrs.A.Sri Jayanthi, Spl. GP For Respondents: Mrs.Anna Mathew for Mr.T.I.Ramanathan for R1 Mr.T.M.Hariharan for R2 J U D G M E N T
P.R.SHIVAKUMAR, J.
This writ appeal has been filed against the order dated 12.01.2011 made in W.P.No.685/2004, wherein the first respondent had prayed for the issue of a Writ of Certiorarified Mandamus to quash the orders of the Director of School Education issued in proceedings O.Mu.1918/W8/88 dated 13.01.1989 and O.Mu.35210/W8/91 dated 02.08.1991 and to further direct the second appellant (District Educational Officer, Cheranmahadevi at Tirunelveli) to pay him salary and emoluments applying the pay scale applicable to the Post Graduate Headmasters of Higher Secondary Schools with effect from 01.07.1978 till his retirement on 31.05.1992. He had also prayed for payment of difference in pay with interest.
2. The learned single judge allowed the writ petition in part by directing re-fixation of pay of the first respondent applying the pay scale applicable to the Post Graduate Headmasters of Higher Secondary School and payment of difference of pay from 01.07.1978 till his date of retirement, namely 31.05.1992 as arrears. The learned single Judge has directed further that from the date of the retirement, pension should be re-fixed and the difference between the pension thus re-fixed and the pension already paid should also be paid. The learned single Judge directed completion of the said exercise and payment of arrears of pay and pension within three weeks from the date of receipt of a copy of the order passed in the writ petition. However, the claim made by the first respondent for interest was rejected. As against the said order, the State and the official respondents (appellants) have brought-forth this appeal on various grounds set out in the Memorandum of Grounds of Writ Appeal.
3. The submissions made by Mrs.A.Sri Jayanthi, learned Special Government Pleader appearing for the appellants, Mrs.Anna Mathew, learned counsel for Mr.T.I.Ramanathan, counsel on record for the first respondent and Mr.T.M.Hariharan, learned counsel for the second respondent were heard. The materials available on record were also perused.
4. After having worked at various management High schools as teacher, BT Assistant and then Headmaster, the first respondent joined Tilak Vidyalaya High School, Kallidaikurichi and functioned as the Headmaster of the said High School from 1976. Consequent to the introduction of Higher Secondary Classes, like several other High Schools, Tilak Vidyalaya High School, Kallidaikurichi (2nd respondent) was also upgraded as a Higher Secondary School with the new name "Tilak Vidyalaya Higher Secondary School, Kallidaikurichi". After the introduction of the Higher Secondary Courses, the Government of Tamil Nadu, issued orders in G.O.Ms.No.1091 Education Department dated 16.05.1978 prescribing qualifications for the post of Headmasters and Teachers of academic subjects in Higher Secondary Schools. As per the said Government Order, one who wants to be appointed as Headmaster of a Higher Secondary School should possess a Post Graduate degree with a degree in education (B.Ed. or B.T.). In addition to the said academic qualification, he/she should have put in 10 years teaching experience, out of which, 2 years should have been worked as a Higher Secondary Assistant. However considering the fact that, on the upgradation of a number of High schools into Higher secondary schools, the persons who were holding the post of Headmasters in such High Schools would have to lose their posts as Headmasters in the absence of a saving clause, the Government thought it fit to provide security in the said Government Order itself to those who were already working as Headmasters in the High schools by allowing them to continue as Headmasters of Higher Secondary school on their upgradation as Higher Secondary Schools, irrespective of their qualification. However, such a security was provided with a rider that till they would become fully qualified, they were entitled to draw pay in their original pay scales applicable as on the date of upgradation. By the above said Government Order the said rule was made applicable to Government High Schools as well as aided High Schools upgraded as Higher Secondary Schools.
5. By a subsequent order in G.O.Ms.No.1073 Finance (Pay Commission) Department dated 06.10.1978 pay scales were fixed for the ordinary grade and selection grade of qualified Headmasters, teachers of academic subjects and physical directors of Higher Secondary Schools. Though separate pay scale for Headmasters of Higher Secondary Schools came to be fixed, the unqualified Headmasters, who were permitted to continue as Headmasters of Higher Secondary School by virtue of the security provided in G.O.Ms.No.1091 Education Department dated 16.05.1978, were permitted to draw only special pay till they would get fully qualified. The special pay payable to them are as follows:
Sl.No. Name of the Post Special Pay (Rs. per mensem) 1 Headmaster 50 2 Teacher 25 3 Physical Director 25
6. Similarly, Post Graduate teachers without possessing B.Ed./B.T. qualification temporarily appointed to handle academic subjects in Higher Secondary Schools were to draw the minimum in a lower pay scale, namely Rs.450-20-590-25-740-30-800. By G.O.Ms.No.720 Education Department dated 28.04.1981, Tamil Nadu Higher Secondary Education Special Rules were framed and published. Rule 11 provides a saving clause, which reads as follows:-
"Notwithstanding anything contained in the rules 2 and 6 above, the services of these persons who are holding, on the date of issue of these special rules, the posts of Headmasters and Headmistresses, Teachers in academic subjects, Teachers in languages and Physical Directors and Physical Directresses in Higher Secondary Schools and who possess the qualifications prescribed for such category in Annex shall be regularised after obtaining the concurrence of the Tamil Nadu Public Service Commission under the Tamil Nadu Public Service Commission Regulations, 1954, and in respect of those persons who do not possess the qualifications prescribed for such category in the Annex and who are holding such posts on the date of issue of these special rules shall be regularised only after they acquire the said qualifications and after obtaining the concurrence of the Tamil Nadu Public Service Commission under the Tamil Nadu PUblic Service Commission Regulations, 1954 provided they acquire the said qualifications within a period of five years from the 1st July 1978. If they fail to acquire the said qualifications within the specified period they shall be replaced by suitable and qualified candidates."
The said rules framed for Government Higher Secondary Schools are also made applicable mutatis mutandis to aided schools and the schools run by local bodies (Municipalities and Corporations) by virtue of Clause 2 of the said Government Order.
7. Admittedly, the first respondent T.R.Iswaran was a graduate in Geography with a B.T. degree in teaching. While he was functioning as the Headmaster of Tilak Vidyalaya High School, Kallidaikurichi, an aided school, the said school was upgraded as Higher Secondary School with the change of name as "Tilak Vidyalaya Higher Secondary School". By virtue of G.O.Ms.No.1091 Education Department dated 16.05.1978, he became unqualified inducted Headmaster of the said school. Job protection accorded under G.O.Ms.No.1091 Education Department dated 16.05.1978 to inducted Headmasters irrespective of their qualification, permitted him to continue as Headmaster of the said Higher Secondary School.
8. The very same Government Order provided that till the pay commission recommendations were made available and accepted by the Government, they should get pay only in the scale applicable to them in the High Schools and that once the revised pay scales relating to Higher Secondary Teachers and Headmasters would be announced by the Government, the same would apply to the qualified teachers and Headmasters with retrospective effect from the date of their coming over to Higher Secondary course. The said Government Order also provided that the teachers and Headmasters who would get qualified subsequently, would get their pay in the revised scale from the date of their becoming fully qualified. However it has provided that they would be entitled to a special pay in addition to the regular pay.
9. The third Pay Commission recommendation regarding teaching staff, including Headmasters of Higher Secondary Schools, was accepted by the Government of Tamil Nadu and given effect to by issuing notification in G.O.Ms.No.1073 Finance (Pay Commission) Department dated 06.10.1978. Besides fixing pay scales for the ordinary and special grade posts of Headmasters, teachers of academic subjects and physical director of Higher Secondary Schools, it reiterated the principle embodied in G.O.Ms.No.1091 by making a provision that the unqualified Headmasters and teachers handling Higher Secondary classes shall draw only the scales of pay applicable to them in their respective posts in the High Schools, but in addition they would be allowed to a special pay at the rate of Rs.50/- for the Headmasters and Rs.25/- for the teachers/physical directors.
10. While framing Tamil Nadu Higher Secondary Education Service Special Rules, the above said provisions were retained by Rule 11 of the said rules, which has been extracted supra. Later on, considering the practical difficulties in such teachers and headmasters acquiring Post Graduate qualification to become fully qualified for their respective posts, a mechanism of short term inservice certificate course was provided in G.O.Ms.No.954 Department of Education Science and Technology dated 23.05.1983, whereby the unqualified Higher Secondary teachers (inducted teachers of Higher Secondary schools) were given inservice short term post graduate certificate course of 10 months duration to be conducted by SCERT. It provided that those who underwent the certificate course and who are issued with certificates to the effect that they had successfully undergone the above said course, would be considered to be fully qualified to teach the Higher Secondary classes in their respective discipline. It also provided that on getting the certificate and thus becoming fully qualified, they would become eligible for the scale of pay applicable to the fully qualified Higher Secondary Teachers.
11. The Higher Secondary teachers and inducted Headmasters handling science subjects like mathematics, physics, chemistry, botany and zoology alone were sent for such short term post graduate certificate course conducted by State Council of Educational Research and Training, Madras by virtue of proceedings of the Director of School Education R.C.No.227592-Monika/A3/82 dated 14.07.1983. The ten months Post Graduate Teachers Certificate Course for inducted teachers was also extended to the teachers and Headmasters handling other subjects such as economics, geography and Home science by virtue of the proceedings of the Director of School Education and SCERT dated 03.12.1985. Accordingly, the first respondent T.R.Iswaran, underwent the short term (10 months) Post Graduate Teachers Certificate Course and was declared to have successfully completed the same in the final written examination conducted in September 1987.
12. Thereafter, he made a request for fixation of his pay in accordance with the pay scale applicable to Higher Secondary School headmasters. His request was rejected by the Director of School Education in O.Mu.No.1918/W8/88 dated 13.01.1989 stating that the first respondent possessed only a Bacherlor's degree and not a post-graduate degree and that therefore he was ineligible to draw the scale of pay applicable to the fully qualified Higher Secondary School post-graduate Headmasters. As against the same, he filed a Review Application and the same was also rejected by the Director of School Edcuation in his proceedings O.Mu.No.35210/W8/91 dated 02.08.1991. Aggrieved by the same he approached the then Tamil Nadu Administrative Tribunal with O.A.No.5296/92 and the same was disposed of by the Tribunal, with a direction that the first respondent could challenge the impugned order before this Hon'ble Court and consequently he has approached this court by way of W.P.No.685 of 2004.
13. The writ petition had been originally filed for fixation of his pay in the pay scale applicable to the post of Post-Graduate Headmasters of Higher Secondary Schools with effect from 28.09.1987, the date on which he passed the post-graduate certificate course in teaching at SCERT till his superannuation on 31.05.1992. However, subsequently he chose to amend the prayer claiming that he was entitled to fixation of his pay in accordance with G.O.Ms.No.1091 Education Department dated 16.05.1978 from 01.07.1978, the date on which he started acting as Higher Secondary School Headmaster. The learned single Judge allowed the writ petition in part by directing re-fixation of pay of the first respondent applying the pay scale applicable to the Post Graduate Headmasters of Higher Secondary Schools and payment of difference of pay from 01.07.1978 till his date of retirement, namely 31.05.1992 as arrears. The learned single Judge has directed further that from the date of the retirement, pension should be re-fixed and the difference in pension thus re-fixed and the pension already paid should also be paid. The learned single Judge directed completion of the said exercise and payment of arrears of pay and pension within three weeks from the date of receipt of a copy of the order passed in the writ petition. However, that part of the prayer in the writ petition seeking interest has been negatived.
14. On the date of upgradation of High Schools into Higher Secondary Schools pursuant to the introduction of Higher Secondary Classes, considering the fact that there was dearth in number of teachers with PG qualification to handle higher secondary classes and also taking a policy decision to protect those persons who were already functioning as Headmasters of the High Schools, the Government thought it fit to give them protection in their status by allowing them to continue as Higher Secondary School Headmaster irrespective of their qualifications. While doing so, under G.O.Ms.No.1091 Education Department dated 16.05.1978, it was made clear that on scales being fixed pursuant to the pay commission recommendation, such new scales applicable to the Higher Secondary School Headmasters would be applied only to those who were fully qualified and the inducted unqualified higher secondary school Headmasters, would remain in the pay scales applicable to the Headmasters of the High Schools with an additional special pay. Such additional special pay was fixed at Rs.50/- by G.O.Ms.No.1073 Finance (Pay Commission) Department dated 06.10.1978. In both the Government Orders, it was made clear that till they would become fully qualified, they had to remain in the pay scale applicable to the Headmasters of High Schools drawing a special pay for holding the post of Headmasters of Higher Secondary School.
15. As it was considered to be a remote possibility to many of the inducted Higher Secondary School teachers and Higher Secondary School Headmasters to get a post-graduate qualification in their disciplines, a short term certificate course was provided for them by SCERT and on successful completion of such certificate course, they were deemed to be fully qualified Higher secondary teachers and Higher Secondary Headmasters. In this case, admittedly, the first respondent herein underwent the said certificate course and completed the same successfully in the examination held on 28.09.1987. Hence as rightly claimed by the first respondent as per his original prayer in the writ petition, he was entitled to draw the salary by having his pay fixed in accordance with the pay scale applicable to post graduate Headmasters with effect from 28.09.1987 till his superannuation on 31.05.1992. However during the pendency of the writ petition, he chose to amend the prayer by seeking fixation of pay applicable to the post graduate Headmaster with effect from 01.07.1978 itself, covering the period during which he was there as inducted unqualified headmaster.
16. The learned singe judge seems to have been persuaded by the first respondent to accept his contention that he had got a vested right to draw the salary applicable to post graduate Headmasters from the date on which he was allowed to continue as inducted unqualified Higher Secondary School Headmaster and the said right was sought to be taken away by subsequent orders. The fact remains otherwise. The right vested in the first respondent was that he could continue as the Headmaster of the Higher Secondary School despite the fact that he was not qualified to hold the post. The Special Rules vide G.O.Ms.No.720 Education Department dated 28.04.1981 preserves the status of such inducted teachers and Headmasters by virtue of Rule 11. All the three government orders clearly made it clear that what was vested in persons like the first respondent was that their post of Headmaster would not be snatched from them and on the other hand, they would be allowed to continue as Headmasters of Higher Secondary Schools on the upgradation of the school into a Higher Secondary School, subject to a rider that they would remain in the very same scale and that they would move to the scale applicable to the Headmaster of higher secondary school only on becoming fully qualified.
17. However the learned counsel for the first respondent argued that G.O.Ms.No.720 Education Department dated 28.04.1981 was made applicable to Government Higher Secondary Schools wherein two ways of appointment to the post of Post-Graduate Headmasters of Higher Secondary Schools came to be prescribed and that the said rules could not be directly applied to the schools run by the private managements, either aided or unaided. It is the further contention of the learned counsel for the first respondent that a Full Bench of this court in The Saliar Mahajana Hr. Sec. School v. The Joint Director reported in 1995 Writ L.R. 277 held that the rules notified under G.O.Ms.No.720 Education Department dated 28.04.1981 regarding the manner of appointment of Headmasters of Higher Secondary Schools shall not be applicable to aided schools run by private managements. We have also perused the said judgment of the Hon'ble Full Bench of this court. It is true that the Hon'ble Full Bench of this court made an observation that the said rule notified under G.O.Ms.No.720 Education Department dated 28.04.1981 was not a statutory rule framed under Article 309 of the Constitution of India and on the other hand it was only an administrative rule in so far as they relate to aided schools and that the said Government Order would apply with such modifications as were necessary to the aided schools. However, as rightly pointed out by the learned Special Government Pleader, the said judgment shall not be applicable to the case on hand, as the issue in controversy in the case on hand is not one covered by the judgment of the above said Full Bench. The Full Bench considered the method of recruitment to the post of Headmasters and Headmistresses in Higher Secondary Schools. While considering the methods of appointment to the post of Headmasters and Headmistresses of Higher Secondary Schools which fell vacant subsequent to the retirement of inducted Headmasters, the Full Bench held that Government Order would not be applicable to the aided schools as there could be no such classifications of the feeder categories in the aided schools. In that context only the Full Bench chose to hold that the Government Order in its application to the aided schools in the matter of appointment of Headmasters shall be applied with such modifications as are necessary to suit the conditions prevailing in the aided schools.
18. It is an admitted fact that in the said judgment, the Full Bench did not consider the question of entitlement of the inducted Headmasters to pay on parity with the fully qualified Headmasters before their getting fully qualified. Nothing has been mentioned in the said Full Bench judgment as to the pay disparity between inducted headmasters and fully qualified headmasters.
19. In the case on hand, while providing status quo and post protection to them, the inducted teachers and inducted Headmasters were treated as a class different from the fully qualified teachers and Headmaster and a differential treatment was provided to them by permitting them to continue in the post of Headmasters of Higher Secondary Schools drawing the pay scale applicable to the Headmasters of High Schools with a nominal special pay subject to a condition that they would move to the scale applicable to the Headmasters of Higher Secondary Schools as and when they got fully qualified. Even thereafter, they had been provided with a short term certificate course and on completion of such a short term course they were be considered to be fully qualified. From the date of such completion of the certificate course, they were made eligible to draw salary in accordance with the pay scale applicable to qualified post graduate headmasters. In short, when an inducted teacher or inducted Headmaster, gets fully qualified by successfully completing the short term training course under the SCERT, for all purposes he is deemed to be a post graduate. However till such acquisition of qualification equivalent to the post graduate degree, they are not entitled to draw their salary in accordance with the pay scale applicable to the qualified post graduate Headmasters of Higher Secondary Schools and they should be content with the drawal of special pay in addition to the pay fixed in the pay scale of High school Headmasters.
20. The first respondent, having become fully qualified on 28.09.1987, shall be entitled to move to the pay scale of the Higher Secondary School Headmaster from that date alone and not from the date on which he was inducted as unqualified Headmaster of Higher Secondary School and allowed to continue. Hence we are of the considered view that the order of the learned single judge is bound to be modified to the above said extent, holding that the first respondent is entitled to re-fixation of salary applying the pay scale applicable to fully qualified Headmasters of Higher Secondary Schools with effect from 28.09.1987, the date on which become fully qualified and not from 01.07.1978. In all other respects, the order of the learned single judge shall stand confirmed. The appellants shall complete the exercise of re-fixation and pass necessary orders for payment of the arrears of pay (differential pay) and the difference in pension from 01.06.1992, the day following the date of his superannuation, within four weeks from the date of receipt of a copy of this judgment.
With the above modification and direction the writ appeal is disposed of. No cost. Consequently, the connected miscellaneous petition is closed.
(N.P.V., J.) (P.R.S., J.)
23.12.2014
Index : Yes
Internet : Yes
asr
To
1.State of Tamil Nadu rep by its
Secretary to Government
Education Department
Fort St. George, Chennai-9
2.District Educational Officer
Cheranmahadevi at Tirunelveli
3.Chief Educational Officer
Tirunelveli
4.Director of School Education
Chennai - 600 006
N.PAUL VASANTHAKUMAR, J. &
P.R.SHIVAKUMAR, J.
asr
Pre-Delivery Judgment in
W.A.No.662 of 2012
23.12.2014