Madras High Court
K.Tamilmani vs The Government Of Tamil Nadu on 17 August, 2021
Bench: Pushpa Sathyanarayana, Krishnan Ramasamy
Rev.Appln.60/2020 in WA No.3904/2019
& WA Nos.723/2020 & 245, 246 & 462/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.08.2021
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
Rev.Appln.No.60 of 2020 in W.A.No.3904 of 2019
& W.A.Nos.723 of 2020 and 245, 246 and 462 of 2021
and C.M.P.Nos.9831, 9833, 10205 of 2020
and 1038, 1041, 1825 and 10675 of 2021
Rev. Application No.60 of 2020
and W.A.No.723 of 2020 :
1. K.Tamilmani
2. M.Krishnakumar
3. B.Shanthi
4. B.Rajeswaran
5. T.Ayyappan
6. A.Subbulakshmi
7. P.Jesindha
8. M.Venkatachalam
9. M.Kandasami .. Petitioners in Rev.Appln.
No.60/2020/Appellants in
W.A.No.723/2020/Third
Parties in all Writ Appeals
Vs.
1. The Government of Tamil Nadu
rep. by its Secretary,
School Education Department,
Fort St. George,
Chennai-600 009.
2. The Director of School Education,
DPI Campus, College Road,
Chennai-600 006.
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3. The Director of Elementary Education,
School Education,
DPI Campus, College Road,
Chennai-600 006. .. Respondents 1 to 3 in Rev.
Appln.No.60/2020/
Appellant in WA
No.3904/2019/
Respondents 25 to 27 in WA
No.723/2020
4. T.Kunjukrishnan
5. V.Vanithamani
6. R.Saradha
7. R.Lenin
8. N.Murugan
9. P.Ponpandi
10.M.Babu
11.G.Kamala
12.P.J.Josephine
13.K.A.Mary Jaya Sundari
14.T.anandhajothi
15.M.Rajalakshmi
16.R.Ramyashri
17.R.Ganesan
18.P.Veeramani
19.S.Sankar Prakash
20.D.Doss
21.S.Venkatesulu
22.K.Govardhan
23.K.T.Eswaran
24.K.Amudha
25.M.Raman
26.G.Ananthi
27.J.Mahalakshmi .. Respondents 4 to 27 in Rev.
Appln.No.60/2020/
Respondents 1 to 24 in
W.A.No.723/2020/
Respondents 1 to 24 in
W.A.No.3904/2019
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& WA Nos.723/2020 & 245, 246 & 462/2021
W.A.Nos.245 and 246 of 2021 :
1. The Government of Tamil Nadu
rep. by its Secretary,
School Education Department,
Fort St. George,
Chennai-600 009.
2. The Director of School Education,
DPI Campus, College Road,
Chennai-600 006.
3. The Chief Educational Officer,
Vellore District. .. Appellants in W.A.Nos.245
& 246/2021/Respondents
Vs.
K.Bhaskaran .. Respondent/Petitioner in
W.P.No.33059 of 2019
G.Chandrasekaran .. Respondent/Petitioner in
W.P.No.33054 of 2019
W.A.No.462 of 2021 :
1. The Government of Tamil Nadu
rep. by its Secretary,
Department of School Education,
Fort St. George,
Chennai-600 009.
2. The Director of School Education,
DPI Campus, College Road,
Chennai-600 006.
3. The Joint Director (Higher Secondary),
DPI Campus, College Road,
Chennai-600 006.
4. The Chief Educational Officer,
Vellore District. .. Appellants/Respondents
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Vs.
D.Alli .. Respondent/Petitioner
***
Prayer in Rev. Appln.No.60 of 2020 : Review Application filed under
Order 47 Rule 1 and 2 read with Section 114 of the Code of Civil
Procedure against the order dated 13.01.2020 passed in W.A.No.3904 of
2019.
Prayers in W.A.Nos.245 and 246 of 2021 : Writ Appeal filed under
Clause 15 of Letters Patent against the order dated 26.11.2019 passed
in W.P. Nos.33059 and 33054 of 2019.
Prayers in W.A.No.462 of 2021 : Writ Appeal filed under Clause 15 of
Letters Patent against the order dated 17.12.2019 passed in W.P.
No.34891 of 2019.
Prayers in W.A.No.723 of 2020 : Writ Appeal filed under Clause 15 of
Letters Patent against the order dated 30.07.2019 passed in
W.P.No.4991 of 2015.
***
For Review Petitioners : Mr.Ajmalkhan, Senior Counsel
in Rev.Appln.No.60/ for M/s.Ajmal Associates
2020/Appellants in
W.A.No.723/2020
For Appellants in WA : Mr.R.Neelakandan
Nos.245, 246, 462/2021/ State Government Counsel
Respondents 1 to 3 in
Rev.Appln.No.60/2020/
Respondents 25 to 27 in
W.A.No.723/2020
For Petitioners in CMP : Mr.Isaac Mohanlal,
No.10675/2021 Senior Counsel for
M/s.Isaac Chamber
For Petitioners in CMP : Mr.Nalini Chidambaram,
No.10205/2020 Senior Counsel for
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M/s.C.Uma
For Respondents in WA : Ms.Dakshayani Reddy
Nos.245,246 & 462/2021/
Respondents 1 to 24 in
W.A.No.723/2020
COMMON JUDGEMENT
Headmasters have powers at their disposal with which Prime
Ministers have never yet been invested - said Winston Churchill.
A Nine-Judge Bench of the Hon'ble Supreme Court in Ahmedabad
St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717,
laying the importance of the head of the educational institutions
observed as follows :
"It is upon the principal and teachers of a college that the
tone and temper of an educational institution depend. On them
would depend its reputation, the maintenance of discipline and its
efficiency in teaching. The right to choose the principal and to have
the teaching conducted by teachers appointed by the management
after an overall assessment of their outlook and philosophy is
perhaps the most important facet of the right to administer an
educational institution."
2. These writ appeals and the review application are
interconnected and intertwined on the same issue, but triggered certain
controversies, which pertain to the promotion to the post of School
Headmasters.
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3. Originally, one T.Kunju Krishnan and others, who are
respondents in W.A.No.723 of 2020, had filed W.P.No.4991 of 2015
seeking a writ of Mandamus to regularise their services from their initial
date of appointment, till they were absorbed on 01.06.2006 with all
consequential monetary and service benefits. The writ Court,
which dealt with the same, relied on a decision in P.Karthikeyan and
Another V. The Commissioner, Most Backward and Denotified
Communities Welfare Department, in W.P.No.21316 and 21317 of
2015 dated 12.06.2017 and directed the Government to regularise the
services of the petitioners therein from the date of entry into service for
the purpose of seniority and other attendant benefits.
4. The same was put to challenge by the Government in
W.A.No.3904 of 2019, which came to be allowed in part on 13.01.2020
with an only modification to the effect that the seniority of the writ
petitioners be reckoned from the date of initial appointment and
monetary benefits be given from the date of regularization, i.e., from
01.06.2006.
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5. Aggrieved by this order, some teachers have filed the
instant Review Application No.60 of 2020, by obtaining leave of the
Court.
6. The very same petitioners have also sought leave of this
Court to file an appeal challenging the order of the learned Single Judge
in W.P.No.4991 of 2015. The leave was granted by the First Division
Bench of this Court in C.M.P.No.41182 of 2020 in W.A.No.SR19811 of
2020 and C.M.P.No.6862 of 2020 in Review Application No.SR19118 of
2020, by order dated 01.09.2020.
7. In the meanwhile, a Division Bench of the Madurai Bench of
this Court passed an order dated 01.06.2021 in W.A.(MD)Nos.299 of
2021, etc. batch (The Secretary, Government of Tamil Nadu, School
Education Department, Fort St. George, Chennai V. C.Murugan)
accepting the contentions of the Government and thereby allowing the
appeals filed by the State by setting aside the similar directions given
by the learned Single Judges in a batch of writ petitions in
W.P.(MD)No.5984 of 2020, etc. batch, dated 24.03.2020, wherein,
direction was issued to the Government to regularise the services from
the date of initial appointment till 01.01.2006 with consequential
benefits.
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8. It was pointed out that the appeals preferred by the State in
the Principal Seat in W.A.No.3904 of 2019 was allowed in part with
modification, whereas, the appeal preferred by the State before the
Madurai Bench was allowed in toto setting aside the Mandamus issued.
It is once again stated that the order in W.A.No.3904 of 2019 is opened
up for fresh consideration when the review application was admitted.
9. In the above circumstances, these matters are placed before
us.
10. Before we delve into the correctness of the orders under
challenge, it would be appropriate to discuss the background, in which,
this petition and appeals have been filed before this Court.
11. The review petitioners were appointed initially as Secondary
Grade Teachers (SGT) and they were promoted as B.T. Assistants
during 2005-2006 and some of them were promoted as P.G. Assistants.
The writ petitioners in W.P.No.4991 of 2015, who sought for
regularization of their services from the date of appointment, were
initially appointed under Rule 11 of the Tamil Nadu State and
Subordinate Service Rules (in short, "TNSSS Rules"). The Government
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issued G.O.Ms.No.100, School Education (Budget) Department, dated
27.06.2003, for the purpose of filling up the vacancies in the posts of
teachers in Schools and the said G.O. reproduced, as has been filed in
the typed-set of papers, in the following manner :
@gs;spfspy; 1?8 tFg;gpfspd; ,ilepiy Mrphpah;fSk; 9?10 tFg;g[fspy; gl;ljhhp
Mrphpah;fSk;. +1. +2 tFg;g[fspy; KJfiy Mrphpah;fSk; Kiwahd Cjpaj;jpy;
epakpf;fg;gl;LtUfpd;wdh;/ mt;thW epakpf;fg;gl;LtUk;nghJ 6.7.8 tFg;g[fspy; M';fpyk;.
fzpjk;. mwptpay; Mfpa ghl';fis ,ilepiy Mrphpah;fshy; ifahs ,aytpy;iy
vdf;fUjp mt;tFg;g[fspy; ,ilepiy Mrphpah; gzpaplk; epue;jkhf fhyp Vw;gl Vw;gl gp/vl;/
jFjp bgw;w ,ilepiy gl;ljhhp Mrphpah;fisf; bfhz;L ,ilepiy Mrphpah; Cjpa
tpfpjj;jpy; xU Kd; Cjpa cah;t[ mspj;J epug;gyhbkd murhiz vz; 79 gs;spf;fy;tp
ehs; 14?6?2002 md;W Miz btspaplg;gl;J/ Mdhy; 9?10 tFg;gpfspy; mnj gp/vl;/
fy;tp jFjp bfhz;l gl;ljhhp Mrphpah;fs; epakpf;fg;gLfpd;wdh;/ gs;spfspy; gp/vl;/ jFjp
bgw;w gl;ljhhp Mrphpah;fspilna ,U tpj epakdk; vd;gijj; jtph;f;Fk;tz;zk; ,dp
midj;J tifg; gs;spfspYk; 6?10 tFg;g[fspy; gp/vl;/ jFjp bgw;w gl;ljhhp Mrphpah;fs;
kl;Lk; M';fpyk;. mwptpay;. fzpjk;. tuyhW kw;Wk; g[tpapay; nghd;w ghlKiwfSf;nfw;g
epakdk; bra;a muR MizapLfpwJ/ 6?8 tFg;g[fspy; ,ilepiy Mrphpah; gzpapl';fspy;
epue;jukhf fhypapl';fs; Vw;gLk; nghJ gog;goahf gl;ljhhp Mrphpah;fs; epakdk;
bra;ag;gLth;/ mg;gzpapl';fspy; Kjw;fl;lkhf fzpjk;. mwptpay; kw;Wk; M';fpy gl;ljhhp
Mrphpah;fs; epakpf;fg;gLthh;fs;/ midj;J ,ilepiy Mrphpah; gzpapl';fSk; gl;ljhhp
Mrphpah; gzpapl';fshf khWk; tiu jw;nghJs;s ,ilepiy Mrphpah;fis Vw;fdnt
cs;sthW midj;Jg; ghl';fisa[k; fw;gpf;fg; gad;gLj;jpf; bfhs;s ntz;Lk;/
nkw;Fwpg;gpl;lthW 6?10 tFg;g[fspy; gl;ljhhp Mrphpah;fis kl;Lnk epakdk; bra;tjhy;.
,dp gs;spfspy; 1?5 tFg;gpfspy; kl;Lk;; ,ilepiy Mrphpah;fs; epakdk; bra;ag;gLth;/
mnj nghd;W murhiz epiy vz; 172 gs;spf; fy;tp. ehs; 31/10/2002y; Mizapl;lthW
1.2 tFg;g[fspy; eh;rhp. khz;obrhp fpz;lh; fhh;ld; my;yJ Pre School Teacher
Training-Course my;yJ Pre Basic Teacher Training Course Mrphpah; gapw;rp
bgw;wth;fSk; (+2 tFg;gpy; Pre School Teacher vd;w xU ghlj;ij gapd;wth;fs; jtpu)
Fiwe;jst[ Cjpaj;jpy; ,sepiy Mrphpauhf epakdk; bgWth;/
2/ nkYk; jw;nghJ epytp tUk; epjp epiyiaf; fUj;jpw; bfhz;L rpy Jiwfspy;
cs;s gzpapl';fs; jtpu kw;w muR mYtyf';fspy; cs;s fhypg;gzpapl';fis epug;g[tjw;F
jil tpjpf;fg;gl;Ls;sJ/ Mrphpah; fhypg; gzpapl';fis epug;g[tJ Fwpj;J Muha[k; nghJ.
Midj;J tifg; gs;spfspYk; me;je;j tif Mrphpah; gzpapl';fspy; mt;tg;nghJ
epue;jukhff; fhyp vw;gLk;nghJ. mj;jifa gzpapl';fshdJ ,sepiy Mrphpah;
gzpapl';fshf (mjhtJ. ,sepiy ,ilepiy Mrphpah;. ,sepiy gl;ljhhp Mrphpah;.
,sepiy. KJfiy Mrphpah; vd) fUjg;gl;L fPH;f;fz;lthW bjhFg;g{jpaj;jpy; epug;g muR
MizapLfpwJ/
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thpir Mrphpah; gzpapl tif tH';fg;glt[s;s bjhFg;g{jpak; khjk; xd;Wf;F
vz;
1 ,sepiy ,ilepiy Mrphpah; (clw; U:/3000-?(eh;rhp. khz;obrhhp kw;Wk; fpz;lh;
fy;tp Mrphpah;. rpwg;ghrphpah; cl;gl) fhh;ld; nghd;w ,sepiy Mrphpah;fSf;F U:/2500)
2 ,sepiy gl;ljhhp Mrphpah; (bkhHp U:/4000-?
Mrphpah; cs;gl)
3 ,sepiy KJfiy Mrphpah; U:/4500-?
,t;thW bjhFg;g{jpaj;jpy; epug;gg;gLk;nghJ. ,dp Mrphpah; gzpapl';fspy; Kiwahd Cjpa
tpfpjj;jpy; neuo epakdk; ,Uf;fhJ/ gjtp cah;tpy; kl;Lk; Kiwahd Cjpa tpfpjj;jpy;
epakdk; bra;ag;gLk;/ ,sepiy Mrphpah; fhypg; gzpapl';fspy; bjhFg;g{jpaj;jpy; epakdk;
bra;ag;gLgth;fs; Ie;J Mz;L fhy epue;ju gzp epiwt[f;Fg;gpd; jFjp. jpwik kw;Wk;
gzpK:g;g[ nghd;witfSf;Fl;gl;L Kiwahd Cjpa tpfpjj;jpy; epakdk; bra;ag;gLth;/
mt;thW epakdk; bra;a[k;nghJ mth;fs; tfpf;Fk; gzpaplkhdJ jhdhf Kiwahd
gzpaplkhf juk; cah;j;jg;gl;ljhff; fUjg;gLk;/ Kiwahd Cjpa tpfpjj;jpy; epakdk;
bra;j gpd;dh; mth;fsJ jFjpfhz;gUtkhdJ Kd;whz;L fhyj;jpw;Fs; ,uz;lhz;L
fhykhf ,Uf;Fk;/ Mrphpah; fhypg; gzpapl';fis bjhFg;g{jpaj;jpy; epug;gg;gLtjw;F
VJthf me;je;j gzpapl tpjpfSf;F chpa jpUj;jk; btspaplg;gLk; mnjnghd;W Kiwahd
Mrphpah; gzpapl';fSf;Fk;. bjhFg;gg{jpaj;jpy; epakpf;fg;gLk; ,sepiy Mrphpah;
gzpapl';fSf;Fk; khWgl;l epiyapy; gzpg; gS eph;zak; bra;ag;gLk;/
3/ 1?6?2003 md;iwa epiyapy; Cuhl;rp xd;wpag; gs;spfs;. murpdh; cah;epiy
kw;Wk; nky;epiyg; gs;spfspy; cs;s Mrphpah; fhypg; gzpapl';fspy; jw;nghJ epug;g
mDkjpf;fg;gl;Ls;s 12000 ,l';fis gs;spfspilna fPH;f;fz;lthW gfph;e;jspf;fg;gLfpwJ?
Cuhl;rp xd;wpag; gs;spfs;
midtUf;Fk; fy;tpj; jpl;lj;jpd; fPH; Jtf;fg;gl;l (2003?2004 cl;gl) 2256
bjhlf;fg; gs;spfSf;F gs;spf;F ,uz;L gzpapl';fs; tPjk; (mjpy; xd;W
jiyikahrphpah; gzpaplk;) (1?5 tFg;g[fSf;F) ,ilepiy Mrphpah;
gzpapl';fs;
xd;wpag; gs;spfspy; 1?5 tFg;gpfspy; ,ilepiy Mrphpah; gzpapl';fs; 1202
(fd;dlk;. bjY';F. kiyahsk;. cUJ nghd;w rpWghd;ik bkhHp
,ilepiy Mrphpah;fs; cl;gl)
eLepiyg; gs;spfspy; clw;fy;tp Mrphpah; gzpapl';fs; 30
midtUf;Fk; fy;tpj; jpl;lj;jpd; fPH; Jtf;fg;gl;l (2003?2004 cl;gl) 1971
eLepiyg; gs;spfSf;F (6?8 tFg;g[fs;) njitahd gl;ljhhp Mrphpah;
gzpapl';fs;
eLepiyg; gs;spfspy; gl;ljhhp Mrphpah; gzpapl';fs; 91
eLepiyg; gs;spfspy; bkhHp Mrphpah; gzpapl';fs; 88
bkhj;jk; 5638
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muR cah;epiy kw;Wk; nky;epiyg; gs;spfs;
+1. +2 tFg;g[fspy; KJfiy Mrphpah; gzpapl';fs; 2010
6?10 tFg;g[fspy; gl;ljhhp Mrphpah; gzpapl';fs; 3668
6?10 tFg;g[fspy; bkhHp Mrphpah; gzpapl';fs; (jkpH;. bjY';F. 464
fd;dlk;. kiyahsk; nghd;wit)
clw;fy;tp Mrphpah; gzpapl';fs; 100
rpwg;ghrphpah; gzpapl';fs; (,ir. Xtpak;. ijay;) 120
bkhj;jk; 6362
bgU bkhj;jk; 12000
4/ gj;jp 1 kw;Wk; 2y; Fwpg;gpl;lthW chpa gzptpjpfSf;Fj; jpUj;jk; btspapl;l
gpdd; h;. nkw; Fwpg;gpl;Ls;s Mrphpah; fhypg; gzpapl';fspy; ,ilepiy Mrphpah;
gzpapl';fshdJ (clw;fy;tp Mrphpah;. rpwg;ghrphpah; cl;gl) me;je;j khtl;l ntiy tha;g;gf
gjpt[ K:g;gpd;go Mz;. bgz; epakd Kiw. ,lXJf;fPl;L Kiw. Kd;Dhpik Kiw nghd;w
KiwfSf;Fl;gl;L epug;gg;gLk;/ eLepiy. cah;epiy kw;Wk; nky;epiyg;gs;spfspy; cs;s
gl;ljhhp Mrphpah; (bkhHp Mrphpah; cl;gl) KJfiy Mrphpah; Mfpa gzpapl';fs;
(tpjpfspd;go gjtp cah;t[f;fhd gzpapl';fs; nghf) Mrphpah; njh;t[ thhpak; K:yk; nghl;oj;
njh;t[ K:yk; epug;gg;gLk;/ ,jdpilapy; ,g;gzpapl';fis epug;g[tjw;fhd g{h;th';f
Vw;ghLfis nkw;bfhs;syhk;/
5/ gj;jp 1 kw;Wk; 2y; Fwpg;gpl;Ls;s Mizg;go jkpH;ehL jdpahh; gs;spfs;
(xG';FKiwg;gLj;Jjy;) rl;lk; 1974. tpjpfSf;F jFe;j jpUj;jk; btspapl;l gpd;dh;. muR
cjtpbgWk; gs;spfspy; Mrphpah; fhypg; gzpapl';fis epug;g[tJ Fwpj;J jdpahf mwpt[iu
tH';fg;gLk;/
6/ ,t;thizahdJ epjpj;Jiwapd; m/rh/F/vz;/1684-FS/P/03 ehs; 5?6?2003?y;
bgwg;gl;l ,irt[ld; btspaplg;gLfpwJ/
12. It is also pertinent to note that there was a ban on
recruitment for the period between 2001-2006 in the State of Tamil
Nadu barring a few essential services. As the education being one of
the prime concern of the State, the above Government Order was
issued to fill-up vacant posts in schools. As the ban itself was to
overcome the financial crunch, these teachers were appointed on a
consolidated pay in their categories referred therein. Pursuant to the
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Government Order, the Teachers' Recruitment Board (in short, "TRB")
had issued the prospects calling for applications and selected the
candidates. The selection was made for the year 2004, 2005 and 2006.
The said teachers, who were selected by the TRB, were appointed based
on an agreement under Rule 11 of the TNSSS Rules.
13. Subsequently, G.O.Ms.No.53, School Education (HS1)
Department, dated 02.06.2004, was issued appending the agreement to
be obtained from the appointees in terms of the said Rules and the said
G.O. reads as hereunder :
"The Government in the Government Order first read above
have ordered that in view of the difficult financial position in the
State, vacancies arising from the academic year 2003-2004 in the
various categories of Teacher Posts in all kinds of Schools shall be
deemed to be junior Grade Teacher posts and allowed only
consolidated pay. In the said Government Order the Junior Grade
Post Graduate Assistant was allowed consolidated pay of Rs.4500/-
per month.
2) The Director of School Education in his letter second read
above has forwarded the draft form of Agreement for appointment to
the posts of Junior Grade Post Graduate Assistant in Government /
Municipal Higher Secondary Schools under rule 11 of the General
Rules for Tamil Nadu State and Subordinate Services.
3) The Government after careful examination approve the
form of agreement to be executed at the time of appointment by the
Junior Grade Post Graduate Assistants as appended to this order.
4) The Director of School Education is requested to instruct
the appointing authorities to execute the agreement with the Junior
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Grade Post Graduate Assistants recruited by the Teachers
Recruitment Board in the Agreement Form appended to this order.
He is also requested to use this Agreement Form in respect of other
identical Junior Grade posts in the Tamil Nadu Higher Secondary
Educational Service."
14. Though in G.O.Ms.No.100, dated 27.06.2003 it was
specifically mentioned that these teachers, who were recruited under
Rule 11 of the TNSSS Rules, will be appointed for regular pay structure
after completion of five years of service, the Government issued
G.O.Ms.No.99, School Education (Budget-2), Department, dated
27.06.2006 granting regular time scale of pay with effect from
01.06.2006 to the teachers working in consolidated pay.
15. Thereafter, the Government issued yet another
G.O.Ms.No.120, School Education (Va Se-2) Department, dated
18.07.2006, which fixed the scale of pay for those teachers working
under the consolidated pay from 01.06.2006. The said Government
Order also deals with probation period.
16. The prayer of the writ petitioners was to consider their
services from the date of entry into service and not from the date of
regularization, namely, 01.06.2006, as has been issued in
G.O.Ms.No.120, dated 18.07.2006.
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17. The learned Single Judge had issued the Mandamus to the
Government to consider their regularization, which was conceded by the
Government in W.A.No.3904 of 2019, based on which, the appeal was
originally, allowed in part. Neither in G.O.Ms.No.99 dated 27.06.2006
nor in G.O.Ms.No.120, dated 18.07.2006, the Government has intended
to regularize or fix the seniority from the date of initial appointment.
18. G.O.Ms.No.120, specifically states "further their seniority
shall be considered as per the communal allotment and the method is
the one which was determined by the TRB." The same view was taken
by the Division Bench in Madurai Bench of this Court in the judgment
dated 01.06.2021 in W.A.(MD)Nos.299 of 2020, etc., batch,
(C.Murugan's case [cited supra]) and it would be useful to quote
paragraphs 23 to 27 of the said judgment in this regard :
"23. The Honourable First Bench, after considering the
submissions, held that if the seniority of the review applicants are
directly affected by the implementation of the judicial intervention,
then keeping in view the law laid down by the Honourable Supreme
Court in Udit Narain Singh Malpaharia vs. Additional Member,
Board of Revenue, Bihar and another [AIR 1963 SC 786], as
also the general law of seniority, they are affected parties and
therefore, proper and necessary parties entitled to be heard in the
matter and the review applicants having not been made as parties
to the writ petitions and they are likely to be affected, have therefore
a right to seek leave to appeal and accordingly, the applicatioins
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seeking leave to appeal were allowed and the review applicatiions
were directed to be numbered and admitted. Though interim order
was sought for by the review applicants, in the light of the
submissions of the learned Special Government Pleader (Education)
that no promotions are being made due to pandamic, the
Honourable First Bench held that the question of grant of any
interim order at that stage does not arise and request can be made
during pendency of the appeal, if occassion so demands. We also
find that along with the review applications, which were directed to
be numbered and admitted and to be listed for hearing on
29.09.2020, a writ appeal filed by the affected teachers, who also
sought for grant of leave, was permitted and the writ appeal has
been admitted. Thus, the net effect of the order in T.Kunju
Krishnan and others (supra) is that it cannot be relied on as a
precedent. Thus, we note that the review applications have been
entertained and they have been admitted and fresh writ appeals at
the instance of the aggrieved teachers have also been admitted.
Therefore, the respondents / writ petitioners cannot seek to draw
any inspiration or place reliance on the decision in T.Kunju
Krishnan and others (supra).
24. That apart, we find that Ground No.15 of the
memorandum of grounds of appeal in W.A.No.3904 of 2019 appears
to have stated that the learned Writ Court ought to have considered
that with regard to the promotion of the respondents therein,
allowing those Secondary Grade Teachers / BT Assistants / PG
Teachers brought into regular time scale of pay with effect from
01.06.2006 vide G.O.(Ms) No.99, School Education Department,
dated 27.06.2006, date of initial appointments under contract basis
is taken into account already and no injust is caused to them. Noting
this ground raised by the Government, it was held that the
Government itself had agreed to grant the benefit of seniority from
the date of initial appointment and all monetary benefits from the
date of regularization, which is from 01.06.2006.
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25. In Paragraph No.6 of the Judgment, dated 13.01.2020 in
W.A.No.3904 of 2019, the undertaking given by the respondents /
writ petitioners i.e.T.Kunju Krishnan and others that they will not
claim any monetary benfits from the date of the first appointment
was placed on record and that portion of the order passed in the
writ petition directing payment of monetary benefits from the date of
first appointment was accordingly deleted. There is an observation
that the learned counsel agrees that the seniority of the writ
petitioners to be reckoned from the date of initial appointment and
monetary benefits be given from the date of regularization i.e.
01.06.2006.
26. The argument of the respondents / writ petitioners is that
the Government had agreed that the seniority will be reckoned from
the date of initial appointment and therefore, the learned Single
Bench was right in allowing the writ petitions following the decision
in the case of T.Kunju Krishnan and others (supra).
27. As noted above, not only the review applications filed in
the case of T.Kunju Krishnan and others (supra) were admitted,
but a separate writ appeal by the aggrieved teachers have also been
admitted. When the aggrieved teachers prayed for interim orders,
the learned Special Government Pleader, who appeared before the
Honourable First Bench, on instructions, submitted that no
promotions are being effected during the pandamic period and
therefore, the Honourable Division Bench observed that the question
of granting interim order at that stage did not arise, but gave liberty
to make a request during the pendency of the appeals / review
applications for grant of interim order, if occassion so demands. The
Judgment in T.Kunju Krishnan and others (supra) appears to be
based upon a concession and such concession also can never enure
in favour of the respondents / writ petitioners before us for the
reasons assigned by us earlier coupled with the fact that the order
and direction passed by the learned Writ Court in the case of
T.Kunju Krishnan and others (supra) was not given effect to
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and in two of the writ appeals before us in W.A.(MD) Nos.299 and
300 of 2020, an order of interim stay has been granted on
26.02.2020. Thus, we are of the view that the respondents / writ
petitioners cannot place reliance on the decision in the case of
T.Kunju Krishnan and others (supra)."
19. Mr.Issac Mohanlal, learned Senior Counsel submitted that
the petitioners in CMP No.10675 of 2021 joined as regular Teachers in
the year 2002 (the first petitioner joined as Physical Education Teacher
on 12.08.1998) and they sought to implead themselves in the review
application on the ground that if any adverse order is passed in the
review application, the same will have a bearing on their promotion. In
view of the grounds urged by the learned Senior Counsel, even before
arraying the petitioners in the said miscellaneous petition as parties,
the learned Senior Counsel is permitted to make submissions in support
of the petitioners therein. It is contended by the learned Senior
Counsel that G.O.Ms.No.53 was issued under Rule 11 of the TNSSS
Rules for the appointment of Junior Grade Teachers. The appendix to
the said Government Order sets out certain conditions as per which, it
is also open to the Government to terminate the services of those
teachers. The appendix to the said G.O., further provides for conditions,
which would normally be applicable for any persons appointed under ad
hoc basis, i.e., thus appointees do not carry out the regular load of work
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to be carried out by the teachers appointed in the regular process and
scale of pay.
20. A close reading of G.O.Ms.No.120, dated 18.07.2006,
specifically makes it clear that the consolidated pay system has been
abolished and the nomenclature of Junior Grade Teacher is also
removed from 01.06.2006.
21. Therefore, the question that arises for consideration is
whether the relevant service period till 01.06.2006 can be counted, as
qualifying service for the purpose of counting the seniority, as prayed
for ?
22. Once again, the Division Bench in Madurai Bench in the
aforesaid judgment in C.Murugan's case (cited supra) had dealt with
the same point in paragraphs 43 and 44 in the following manner :
"43.It is submitted by the learned counsel that three issues
arise for consideration in these batch of cases, viz., (i) whether the
writ petitioners/respondents 1 to 18 are entitled to be regularised
from the date on which they were initially appointed on consolidated
pay and whether they are entitled to get consequential monetary
benefits; (ii) whether the period during which the writ
petitioners/respondents 1 to 18 worked on consolidated
pay/temporary basis can be taken as “qualifying service” for the
purpose of calculating their seniority; and (iii) whether the impugned
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promotion panel dated 16.11.2019, issued by the Director of School
Education without considering the seniority of the writ
petitioners/respondents 1 to 18, is sustainable.
44. Issue Nos.1 and 2 have been considered by us in the
preceding paragraphs and they have been answered by us in favour
of the appellants and against the writ petitioners. Nevertheless,
having taken note of the written submissions submitted by the
learned counsel, we answer the issues as follows. The contention of
the writ petitioners is that on account of non-joinder of necessary
parties, the rights of the writ appellants/teachers are no way
affected, insofar as Issue Nos.1 and 2 are concerned, as the issues
relate to regularisation and monetary benefits, sought for by the writ
petitioners, is an issue between the Government and the writ
petitioners. The said submission is devoid of merits. The writ
petitioners have failed to note as to what would be the
consequences of relief being granted to them as prayed for in the
writ petitions. If they have to be regularised from the date of their
initial engagement as a Junior Grade Teacher and to be granted
monetary benefits from the said date, undoubtedly, the writ
petitioners would claim a march over the regularly appointed
teachers, as they seek for higher placement in the seniority list. This
is what precisely has been done by the writ petitioners by
challenging the tentative promotion panel dated 16.11.2019.
Therefore, non-impleadment of proper and necessary parties is a
substantial ground on which relief has to be denied to the writ
petitioners."
23. As per G.O.Ms.No.120, dated 18.07.2006, which takes away
the post of Junior Grade Teacher, the appointment of the writ
petitioners in W.P.No.4991 of 2015 and the similarly placed teachers
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should be deemed as a new appointment as the previous post held by
them had already come to an end. Even in the G.O.Ms.No.99, dated
27.06.2006, it has been specifically stated that those Junior Grade
Teachers appointed on consolidated pay after completion of five years of
service will be appointed for regular pay structure and regular time
scale of pay will be fixed with the probation of two years. The very
same Government Order once again categorically states that these
teachers were appointed on a contract basis and they will be granted
with regular scale of pay from 01.06.2006. Therefore, by no stretch of
imagination, it could be stated that these teachers, who were selected
pursuant to G.O.Ms.No.99 and 100, can seek seniority by considering
their service prior to the regularization.
24. The learned counsel for the private respondents made a
strenuous attempt to convince this Court by relying on G.O.Ms.No.120,
dated 18.07.2006, for the purpose of seniority. G.O.Ms.No.120 is
usefully extracted hereunder :
"In the Government Order referred to as 8 herein above,
order was issued for fixing the pay scale and regularizing the
teachers who are working under consolidated pay, on contract basis
in the Government and aided schools, from 16.2006. Government
perused about their probationary period commencing from 1.6.2006.
2. Whenever the teachers who are working under the
consolidated pay in the government schools, the contract forms,
under the Rule 11 of the Tamilnadu State and Subordinate Services
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Rules, were formed in the government orders, referred to as 5, 6
and 7.
3. It is instructed to the Director of School Education/Director
of Elementary Education are directed that the teachers who are
working under consolidated pay on contract basis shall be concluded
with 31.5.2006 afternoon and the eligible teachers, who have
completed the qualifications under the Special Rules of the said post,
inclusive of physical fitness shall be issued with the proper
appointment order in connection with the probationary period
commencing from forenoon of 1.6.2006. The teachers who did not
complete the rule regarding the age shall be appointed temporarily
under Rule 10(a)(i) of the General Rules, and the proposal is
directed to be sent to the government immediately for the relaxation
of age limit. After the relaxation of the rule, from forenoon of
1.6.2006, they shall be considered to be brought under probationary
period. Further their seniority shall be considered as per the
communal allotment and the method is the one which was
determined by the Teachers Recruitment Board. As far as the
teachers were appointed through Employment Exchange, the
communal allotment method is follows and determined as the
seniority method.
4. Further, all types of vacancies of teachers, working under
consolidated pay in the government schools and aided schools, in
connection with the probationary period starting from 1.6.2006, for
the amendment to be published under Recognized Private Schools
(Regulation) Rules, 1974, the Director of School Education is
directed to send the proper proposal to the Government.
5. Further as at present the consolidated pay method is
cancelled, the vacancies of Junior Grade Teacher, as found in the
government order referred to as 1 hereinabove, will not be in
existence from 1.6.2006."
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25. Paragraph 3 of the said Government Order provides for
fixing seniority and it only says that "THEIR" seniority shall be
considered as per the communal allotment and the method should be
one, which was determined by the TRB. Therefore, it was argued that
the date should be reckoned from the date of seniority, as has been
drawn by the TRB. Though this argument seems to be convincing at the
first blush, but a deep analysis of the same would reveal the cracks
within. The above Government Order relates only to those teachers
working in Government and Aided Schools on consolidated pay, whose
scale of pay is fixed from 01.06.2006.
26. The seniority which is referred to therein relates only to
those persons, who are appointed on the consolidated pay as "Junior
Grade Teachers", and later appointed for the purpose of fixing the pay
scale from 01.06.2006. Therefore, it is for the purpose of fixing the
seniority among themselves, i.e., new appointees, as all of them were
appointed fixing the regular pay scale from 01.06.2006, and the
seniority should be drawn as determined by the TRB. Thus, the
argument of the learned counsel for the private respondents cannot be
accepted.
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27. The initial appointments of the writ petitioners were based
on Government Orders that were issued to fill up the vacancies in
various categories of teachers on consolidated pay during the ban on
recruitment was force in the State. They had discharged their duties as
Junior Grade Employees. After they were absorbed into service on
01.06.2006 inclusion of their names in the seniority list would only
deprive the promotees (Review Petitioners and other similarly placed
teachers) the legitimate seniority to which they are entitled to.
28. It is settled law that seniority of a person has to be counted
from the date of his initial appointment, if he was appointed in a regular
post, selection to which is by way of regular mode of recruitment.
Therefore, the corollary is, where the initial appointment is not
according to rules, i.e., ad hoc, as a stopgap arrangement, the
discharge of duty in such post cannot be taken into account for
determining seniority.
29. When already the Government Orders issued by the
Government are clear about fixing of the seniority, the same cannot be
now altered by the judicial intervention. It is also to be seen that when
the First Division Bench passed the order, based on the concession
given by the Government, the right of the other parties (review
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petitioners/appellants in W.A.No.723 of 2020 and other similarly placed
teachers), who were not arrayed as parties to the proceedings, would
be affected and the same was not brought to the notice of this Court.
30. If the writ petitioners/the private respondents herein are
extended such benefits, it will take away the rights already accrued to
the review petitioners and other similarly placed teachers. It is, in this
background, the review petition was entertained by the First Division
Bench and such judicial intervention cannot be taken advantage of by
the writ petitioners, in the absence of the persons, who may be affected
by such an order.
31. When the absorption of the writ petitioners were during
2006, as per G.O.Ms.No.120, the writ petitioners had, in fact, knocked
at the doors of this Court only in the year 2014, after inordinate delay
and there is no explanation / reason for the delay and laches on their
part. Even assuming that the writ petitioners moved the Court only
after the non-inclusion of their name in the promotion panel, the said
approach cannot be appreciated by this Court, for the simple reasons
that they had accepted the terms and conditions of all those
Government Orders and after such inordinate delay, they cannot seek
any relief which is in contravention to the terms of those Government
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Orders. Undoubtedly, the delay on the part of the writ petitioners would
disentitle them from the relief sought by them.
32. The said principle was re-emphasised by the Hon'ble
Supreme Court in S.S. Balu v. State of Kerala, (2009) 2 SCC 479, in
the following terms:
“17. It is also well-settled principle of law that ‘delay defeats
equity’. The Government Order was issued on 15-1-2002. The
appellants did not file any writ application questioning the legality
and validity thereof. Only after the writ petitions filed by others were
allowed and the State of Kerala preferred an appeal thereagainst,
they impleaded themselves as party-respondents. It is now a trite
law that where the writ petitioner approaches the High Court after a
long delay, reliefs prayed for may be denied to them on the ground
of delay and laches irrespective of the fact that they are similarly
situated to the other candidates who obtain the benefit of the
judgment. It is, thus, not possible for us to issue any direction to the
State of Kerala or the Commission to appoint the appellants at this
stage.”
33. The Hon'ble Supreme Court in Ghulam Rasool Lone v.
State of J&K, (2009) 15 SCC 321, observed as follows :
"19. It is beyond any cavil of doubt that the remedy under
Article 226 of the Constitution of India is a discretionary one. For
sufficient or cogent reasons a court may in a given case refuse to
exercise its jurisdiction; delay and laches being one of them. While
considering the question of delay and laches on the part of the
petitioner, the court must also consider the effect thereof."
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34. It is also brought to the notice of this Court that in view of the
pendency of the writ petitions, writ appeals and the review application,
the promotion panel, which was drawn on 16.11.2019 is kept pending
without any progress.
35. The First Bench, also had passed a reasoned order on
01.09.2020 to admit the review application. In view of the discussions
made hereinabove, the Review petition No.60 of 2020 and W.A.No.723
of 2020 filed by the third parties, whose rights are affected by the said
order, are allowed and consequently, the order dated 13.01.2020
passed in W.A.No.3904 of 2019 is recalled. As a natural corollary, the
order passed by the writ Court dated 30.07.2019 in W.P.No.4991 of
2015 is set aside and the writ petition is dismissed.
36. In view of the orders passed by us in the instant review
petition, the writ appeals filed by the Government in W.A.Nos.245, 246
and 462 of 2020 are also allowed and the respective orders passed by
the learned Single Judges, which were impugned therein, are also set
aside and those writ petitions are dismissed.
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37. It is also made clear that any order passed by this Court
placing reliance on the judgment dated 13.01.2020 in W.A.No.3904 of
2019 and the order dated 30.07.2019 in W.P.No.4991 of 2015 cannot be
given effect to, in view of the order passed in the review petition
recalling the order dated 13.01.2020.
38. There shall be no order as to costs. The connected
miscellaneous petitions are closed.
(P.S.N., J.) (K.R., J.)
17.08.2021
Index : Yes / No
Internet: Yes
gg
To
1. The Principal Secretary,
School Education Department,
Government of Tamil Nadu
Fort St. George,
Chennai-600 009.
2. The Director of School Education,
DPI Campus, College Road,
Chennai-600 006.
3. The Director of Elementary Education,
School Education,
DPI Campus, College Road,
Chennai-600 006.
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4. The Joint Director (Higher Secondary),
DPI Campus, College Road,
Chennai-600 006.
5. The Chief Educational Officer,
Vellore District.
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PUSHPA SATHYANARAYANA, J.
AND KRISHNAN RAMASAMY, J.
gg Rev.Appln.No.60 of 2020 in W.A.No.3904 of 2019 & W.A.Nos.723 of 2020, 245, 246 and 462 of 2021 17.08.2021 https://www.mhc.tn.gov.in/judis Page 29/29