Madras High Court
V.Fathima Riswana vs The Chief Educational Officer on 13 August, 2020
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P.(MD)No.9216 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.08.2020
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.9216 of 2020
and
W.M.P(MD)No.8402 of 2020
1.V.Fathima Riswana
2.S.Mariappan
3.S.Ajmal Khan ...Petitioners
-Vs-
1.The Chief Educational Officer,
Tirunelveli, Tirunelveli District.
2.The District Educational Officer,
Tirunelveli, Tirunelveli District.
3.The Correspondent,
M.N.Abdur Rahman Higher Secondary School,
Kadir Nagar, High Ground,
Tirunelveli – 627 011,
Tirunelveli District. ...Respondents
Prayer: Writ Petition - filed under Article 226 of Constitution of
India, to issue a Writ of Certiorarified Mandamus, calling for the
records relating to impugned order in O.Mu.No.205/A5/2019 dated
26.07.2019 of the second respondent herein and quash the same
and consequently direct the respondents 1 and 2 herein to award
annual increments, incentive, surrender leave benefits and other
attended benefits to the petitioners from the date of petitioner's
appointments namely 15.06.2011, 05.03.2012 and 07.06.2017
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W.P.(MD)No.9216 of 2020
respectively with all attendant benefits including pay fixation and
allowance.
For Petitioner : Mr.T.Pon Ramkumar
For R1 & R2 : Mr.A.Thiyagarajan,
Government Advocate
ORDER
The prayer sought for herein in this writ petition is for a Writ of Certiorarified Mandamus, calling for the records relating to impugned order in O.Mu.No.205/A5/2019 dated 26.07.2019 of the second respondent herein and quash the same and consequently direct the respondents 1 and 2 herein to award annual increments, incentive, surrender leave benefits and other attended benefits to the petitioners from the date of petitioner's appointments namely 15.06.2011, 05.03.2012 and 07.06.2017 respectively with all attendant benefits including pay fixation and allowance.
2.Heard Mr.T.Pon Rämkumar, learned counsel appearing for the petitioners and Mr.A.Thiyagarajan, learned Government Advocate appearing for the respondents.
3. The short facts leading to filing of this writ petition are as follows:-
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(i) These three writ petitioners were appointed as Teachers i.e., BT Assistant(Science), BT Assistant (Tamil) and BT Assistant (History) respectively on various dates at the third respondent School. It seems that initially their appointments have not been approved on the ground that these petitioners have not been qualified with Teachers Eligibility Test. Subsequently, in view of the law having been declared that in respect of the minority school , such insistment cannot be made, the appointment of these petitioners have been approved by various proceedings, which are as follows:-
On 20.07.2011 the first petitioner's appointment has been approved, on 28.06.2012 the second petitioner's appointment has been approved and on 24.11.2017 the third petitioner's appointment has been approved by the competent authority.
ii) Since all these petitioners having been appointed in the third respondent School and their appointment proposals also has been accepted and approved by the proceedings referred to above by the official respondents, there can be no quarrel that these petitioners are entitled to get salary and other service benefits which are available to the other teachers who are similar to that of the petitioners working in an aided school.
http://www.judis.nic.in 3/17 W.P.(MD)No.9216 of 2020 Iii) When that being the position, it seems that their annual increment has not been given to these petitioners, therefore, all these petitioners seems to have made a request to the official respondents to release the annual increment. However, their request have been turned down by rejecting the same through the impugned order, dated 30.07.2019 passed by the second respondent, which reads thus:-
“jpUney;Ntyp fy;tp khtl;lk;> jpUney;Ntyp i`fpuTz;l; fhjpHefH K.e.mg;JH u`;khd; Nky;epiyg;gs;spapy; gzpGhpAk; (rpWghd;ikg; gs;sp) gl;ljhhp MrphpaHfs; jFjpj; NjHtpy; NjHr;rp ngw;wjpdhy; epWj;jp itf;fg;gl;Ls;s Cjpa caHtpid toq;FtJ Fwpj;J ve;jtpjkhd murhizNah ,af;Fehpd; nray;KiwfNsh ngwg;gltpy;iy vd;gjhy; vdNt murhiz ngwg;gl;l gpwF ghprPypf;fg;gLk; vd jpUg;gg;gLfpwJ.
khtl;lf;fy;tp mYtyH jpUney;Ntyp”
4. Challenging the aforesaid order, the present writ petition has been filed.
5. The learned counsel appearing for the petitioners would submit that, the issue as to whether an approved teacher, even though is not having the qualification of Teachers Eligibility Test, is entitled to get all service benefits including increment, has already been decided in number of cases.
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6. In this context, the learned counsel appearing for the petitioners has relied upon a judgment of this Court, where I had an occasion to consider the similar issue, where the very approval itself was denied for want of Teachers Eligibility Test qualification.
7. In W.P.(MD)Nos.5211 5212 of 2018, in the matter of C.Jeevarani and D.Geetha Felcitta vs. The District Elementary Educational Officer, Tirunelveli and others, I had passed a detailed order on 06.06.2018 where among other things, the said issue also has been considered and decided. In order to appreciate the same, the operative portion of the order passed in that writ petition is extracted hereunder:-
“22.In the result, both the writ petitions are disposed of with the following directions:
(1) the third respondent in both writ petitions, if not already forwarded/re-submitted, the appointment proposal of the respective petitioners after rectifying the infirmities/mistakes, if any, pointed out by the official respondents, the same shall be immediately forwarded with the relevant documents/records to the official respondents within a period of two weeks from the date of receipt of a copy of this order;
(2) if the proposals have already been forwarded by the third respondent School or if the proposals are http://www.judis.nic.in 5/17 W.P.(MD)No.9216 of 2020 forwarded only pursuant to the aforesaid direction by the third respondent School, the official respondents, especially, the first respondent (presently re-
designated as District Educational Officer, Tirunelveli) shall consider both the proposals without insisting upon the requirement of TET qualification from the petitioners and pass orders thereon, on merits and in accordance with law, with regard to the grant of approval to the petitioners within a period of six weeks from the date of receipt of a copy of this order if the proposals were already forwarded or within a period of six weeks from the date of receipt of such proposals if they are forwarded pursuant to the direction of this Court;
(3) it is made clear that once the appointment proposals of the respective petitioners are approved, the respective petitioners are entitled to get all service benefits including salary, increment, leave salary and other benefits as applicable to other approved teachers of that category and such benefits, by way of arrears, shall be calculated and paid to the petitioners within a period of six weeks thereafter;
(4) it is further made clear that if the official respondents found any further infirmity/minor or major mistake in the proposals, other than TET qualification, the same shall immediately be pointed out to the third respondent School, who, in turn, on receipt of the said communication from the official respondents, shall immediately rectify and forward/re-submit the rectified proposal to the official respondents with supporting documents, if any, within a period of two weeks from http://www.judis.nic.in 6/17 W.P.(MD)No.9216 of 2020 the date of receipt of such communication and on receipt of such re-submitted/rectified proposal, if any, the same shall be considered by the official respondents, ie., the first respondent herein, as directed above, ie., in Direction No.2, within a period of six weeks from the date of receipt of such re- submitted/rectified proposal from the third respondent; and (5) there shall be no order as to costs.”
8. The learned counsel appearing for the petitioners relied upon a Division Bench judgment in this regard, made in W.A. (MD)No.1413 and 1414 of 2019 in the matter of The Chief Educational Officer, Tirunelveli District and another vs. K.Solomon Jeyaraj and another dated 27.11.2019, where also, this issue has been considered and decided. The relevant portion of the Division Bench Order reads thus:-
“6.The learned Special Government Pleader appearing for the respondents 1 and 2 placing reliance on the decision of the Hon'ble Supreme Court in TMA Pai Foundation v. State of Karnataka [2005 (5) CTC 201 (SC)] would submit that the respondent State being the controlling authority sanctioning aid for the minority institutions can always prescribe qualifications, salaries as well as experience and other conditions bearing on the merits of an individual for being appointed as a teacher of an educational institution. Further, it is submitted by the http://www.judis.nic.in 7/17 W.P.(MD)No.9216 of 2020 learned Special Government Pleader that if the contention advanced by the learned counsel appearing for the appellant is accepted and TET is not made applicable to the minority institutions, then it is a clear discrimination among the teachers because one set of teachers, who are working in the non-minority institutions, are under the threat of loosing their jobs for not possessing TET and the other set of teachers, who do not have TET, who are working at aided minority institutions, are safe and the same would be in violation of Article 14 of Constitution of India.
7.In our considered view, various Division Benches have taken consistent stand as regards the legal position and in doing so reference has been made to the decision of the Constitutional Bench of the Hon'ble Supreme Court in Paramati Educational & Cultural Trust v. Union of India [2014(8) SCC 1], and a decision has been rendered. This Court does not find any ground to take a different view.
8.It is submitted by the learned counsel appearing for the appellant that the learned Writ Court was of the view that the appellant was not working after the impugned order dated 14.11.2013. However, the fact remains that since an order of stay was granted on 29.11.2013, the appellant is continuing to serve in the institution and as on date the appellant is working in another school of the same Educational Agency at Surandai. This submission is placed on record.
9.Thus, for the above reasons, the Writ Appeal is allowed and order of the Writ Court in W.P.(MD) No.19467 of 2013 dated 25.07.2019 is set aside. Consequently, the Writ Petition is allowed as prayed for. Consequently, connected Civil Miscellaneous Petition is closed. No costs.” http://www.judis.nic.in 8/17 W.P.(MD)No.9216 of 2020
3. There is no distinguishing feature pointed out before us by the appellants as to why the above such decision should not be applied in the instant case. In the light of the above, these writ appeals are dismissed. No costs. Consequently, connected miscellaneous petition are closed.”
9. By relying upon these decisions, the learned counsel appearing for the petitioners would contend that the impugned order, for the reasons cited therein, cannot be sustained as these petitioners since have been approved with their appointment by the third respondent and have been working all along for several years and getting the salary, now the increment sought for by the petitioner, cannot be denied.
10. However, the learned Government Advocate appearing for the respondents would submit that admittedly these petitioners did not have the qualification of Teachers Eligibility Test and therefore, without the qualification of TET, since they have been appointed, unless and until if there is a clear direction issued by the Government through a Government Order, the District level Educational Authorities could not decide the said issue and that is the reason why, the said reason has been stated in the impugned order while rejecting the request of these petitioners for grant of http://www.judis.nic.in 9/17 W.P.(MD)No.9216 of 2020 increment. Therefore, the said order requires no interference from this Court.
11. I have considered the submissions made by both sides and I have perused the materials placed before this Court.
12. As has been rightly pointed out by the learned counsel appearing for the petitioner, the issue raised in this writ petition is no more res- integra. In the judgement referred to above, where, I had an occasion to consider the similar issue as to whether the teachers appointment without TET qualification can be questioned by the Educational authorities, if such appointment is made in minority school in view of the law declared in this regard, that issue has been answered in favour of the employees/teachers and that is why at sub para (3) of paragraph 22 of my Judgment referred to above, I have clearly stated that, once appointment is approved, the teachers are entitled to get all service benefits including salary, increment, leave salary as applicable to other approved teachers of that category. Therefore, the benefit of increment is one of the benefit to be paid to an approved teacher, therefore, once appointment is approved, the official respondents cannot deny the increment for want of any Government Order.
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13. More over, when the similar issue came up for consideration before this Court recently in W.P(MD)No.7772 of 2020, I passed an order on 24.07.2020, where the following direction has been given to the respondents therein:-
“ 9.The only controversy which arises in this writ petition is, whether the reason cited in the impugned order that, the petitioner should have qualified with TET qualification, even though she was appointed on 03.01.2011 and from that date, her appointment has also been approved by the 3rd respondent for getting the benefit like the annual increment, is hold good or not.
10.In this context, the learned counsel appearing for the petitioner has relied upon a decision of the learned Judge of this Court exactly on the same point made in a batch of writ petitions in W.P(MD).Nos.5626 to 5630 of 2017 etc., dated 08.03.2019 in the matter of M.Maharani Vs. State of Tamil Nadu rep., by its Secretary, Department of School Education and others. In the said order, the learned counsel for the petitioner relied upon para No.10, which reads thus.
“10.However, there is no cut off date specified in the said G.O.Ms.No.181, with regard to acquiring the qualification of pass TET to continue in service as B.T.Assistants/Secondary Grade Teachers, who are working as such in the respondent Schools. In this regard, a cursory glance at Clause (5) of the notification dated 23.08.2010 and its amended notification dated http://www.judis.nic.in 11/17 W.P.(MD)No.9216 of 2020 29.07.2011 issued by the NCTE, the contents of which are reproduced at paragraph Nos.8.2 and 8.4 above, would reveal that if the http://www.judis.nic.in process of appointment of teachers was initiated prior to the date of notification by issuing advertisement, such appointments have to be made in accordance with NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations 2001, there is no qualification prescribed with regard to possession of TET certificate, for appointment to the post of B.T.Assistant and Secondary Grade Teachers. The qualification of passing TET was first introduced by the notification dated 23.08.2010 and it was amended vide notification dated 27.09.2011 and the teachers, who were appointed prior to that date need not pass TET and even in the case of the teachers who were appointed after that date, if the advertisement to initiate the process of appointment of teachers was made prior to that date, then, their appointments also can be in accordance with the NCTE Regulations 2001 and they need not acquire the TET qualification.“
11.From the reading of the said judgment, it has become clear that the NCTE prescribed the qualification of TET originally from 23.08.2010 and subsequently from 27.09.2011 by way of notification. Therefore, the actual date, on which, the said qualification become mandatory is 27.09.2011. Therefore, those teachers, who were appointed prior to 27.09.2011 cannot be put against the said prescription of the NCTE and this has http://www.judis.nic.in 12/17 W.P.(MD)No.9216 of 2020 been exactly decided by the learned Judge in the said judgement, referred to above.
12.In the case of the petitioner, she was appointed on 03.01.2011 in the sanctioned vacancy as Secondary Grade Teacher at the fifth respondent School and the said appointment, having been considered, was approved by the third respondent vide his proceedings, dated 28.06.2011, where it has been specifically stated that, the petitioner was appointed on 03.01.2011 and approval is also given from 03.01.2011.
13.Therefore, it has become quite clear that, the appointment of the petitioner as on 03.01.2011 having been approved by the third respondent through the said approval order, the applicability of the prescription made by NCTE to have such qualification, insofar as the petitioner is concerned, cannot be made or applied. Therefore, the said reason cited in the impugned order by the fourth respondent, in the considered opinion of this Court, may not hold good. Therefore, on that reason, the petitioner's service benefit like annual increment cannot be denied.
14.Moreover, once the appointment is approved by the authority and the same still holds good, the petitioner has been brought under regular time scale of pay. When that being the position, the annual increment is part and parcel of the time scale of pay system being adopted for permanent employees/Teachers of the Government is concerned and when such is the position, the fourth respondent cannot insist upon any Government Order, which cannot be created by the http://www.judis.nic.in 13/17 W.P.(MD)No.9216 of 2020 petitioner.
15.More over, if at all, any such request is made by the petitioner for annual increment, that should have been decided by the respondents by taking into account the relevant Rule position, Service Law and the Government order, if any available with the respondent, instead, off late, it has become a practice that some of the officials/authorities would raise a question stating that, in order to get the benefit sought for by the employees/Teacher/incumbent, whether any Government order is available in their favour.
16.Whether any Government order is available in their favour or not, whether they are entitled to have such a benefit or not, can be decided only by the authority and not by the person, who seeks it. Therefore, that kind of questions being raised by the authorities would show that they abdicate their responsibility on the very employee or Teacher concerned, which kind of practice cannot be approved by this Court.
17.Therefore, this Court is of the considered view that, the reason cited in the impugned order cannot be sustained in the eye of law. Hence, it is liable to be interfered with.
18.In the result, the impugned order is quashed and the respondents are directed to reconsider the request of the petitioner with regard to her plea for grant of annual increment as her appointment dated 03.01.2011 having been approved by the third respondent vide his proceedings dated 28.06.2011, this Court feels that, there can be no further impediment for http://www.judis.nic.in 14/17 W.P.(MD)No.9216 of 2020 the petitioner to get such benefits. Therefore, suitable order to that effect shall be passed by the official respondents within a period of eight (8) weeks from the date of receipt of a copy of this order.
19.With these directions, the Writ Petition is ordered accordingly. No costs. Consequently, connected Miscellaneous Petitions are closed.”
14. In view of the settled legal position, this Court has no hesitation to hold that the impugned order cannot be sustainable, therefore, it is liable to be quashed.
15. In the result, the impugned order is quashed and the matter is remitted back to the respondents, especially, the second respondent, who shall reconsider the issue and pass necessary orders for sanctioning the annual increment payable to these petitioners/teachers and accordingly calculate the same and be disbursed the arrears and continue to pay the increment as part of their service benefits. The aforesaid exercise shall be undertaken by the respondents, especially, by the second respondent, within a period of eight weeks from the date of receipt of a copy of this order.
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16. With these directions, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
Am 13.08.2020
Note:
(i) In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
Index : Yes/No
Internet : Yes/No
To
1.The Chief Educational Officer,
Tirunelveli, Tirunelveli District.
2.The District Educational Officer,
Tirunelveli, Tirunelveli District.
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W.P.(MD)No.9216 of 2020
R.SURESH KUMAR ,J.
am
Order made in
W.P.(MD)No.9216 of 2020
Dated:
13.08.2020
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