Madras High Court
R.Sakthivel vs The Secretary To Government on 24 August, 2022
Author: S.Srimathy
Bench: S.S.Sundar, S.Srimathy
W.A.(MD)No.910 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.910 of 2022
R.Sakthivel ... Appellant
Vs.
1.The Secretary to Government,
Education Department,
Fort.St.George, College Road,
Chennai – 9.
2.The Director of School Education,
College Road, Chennai – 6.
3.Block Educational Officer,
Bogalur, Ramnad District.
4.The Secretary,
Idartheerthamman Elementary School,
Theeyanur, Ramnad. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent against the order
of this Court in W.P.(MD)No.9445 of 2019, dated 18.04.2022.
For Appellant :Mrs.Porkodi Karnan
for M/s.Polax Legal Solutions
For Respondents :Mr.A.Kannan
Additional Government Pleader
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W.A.(MD)No.910 of 2022
JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.) This Writ Appeal is filed challenging the order passed in Writ Petition W.P.(MD)No.9445 of 2019, dated 18.04.2022.
2. The prayer in the writ petition W.P.(MD)No.9445 of 2019 is for issuance of a Writ of Mandamus, to direct the respondents to consider the petitioner's appointment also as that of the Secondary Grade Teacher in Scheduled Caste category and to grant the benefits of G.O.No.83, dated 28.04.2017 and to grant incentive for the petitioner's higher educational qualification of M.Sc. (Physics).
3. The brief facts as stated in the affidavit is that the petitioner had completed B.Sc., degree in the year 1991, B.Ed., in 1995 and M.Sc. in the year 1995. The petitioner was appointed as Secondary Grade Teacher in Idartheerthamman Elementary School, a non-minority school in Ramnad on 02.03.1998. During 1997-2000, there was no sufficient candidates for filling 2/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 up the post of Secondary Grade Teachers under SC category. Therefore, the Government decided to fill up the SC vacancy by recruiting B.Ed., teachers, vide G.O.No.1340, with certain conditions and one such condition is that the incentive increment for higher qualification is not applicable to the candidates appointed in respect of the said G.O. There were some vacancies in B.T. Assistant post in the school. As no candidates were available under SC category, the management had obtained an order in W.A.No.1087 of 1999 and appointed persons who belong to other class in the backlog vacancies of the Secondary Grade Teacher under SC category. The petitioner was one among such Secondary Grade Teacher appointed in the year 1998. The petitioner is receiving salary without any incentive increment for her higher qualification. At the time of appointment, the condition was imposed in the appointment order itself that no further special incentive will be given for the higher qualification. In the meanwhile, the Government issued G.O.No.83, dated 28.04.2017, whereby, the condition imposed was relaxed and had granted incentive increment for higher qualification. All those persons who were appointed during 1997-1998 are enjoying the benefit of G.O.No.83. But though the petitioner is similarly placed like that of the SC teachers, the 3/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 petitioner and the similarly placed persons were not receiving any incentive increment for higher educational qualification. The petitioner submitted a representation on 11.10.2018, to consider the petitioner's appointment as that of Secondary Grade Teachers in SC category and grant the benefits of G.O.No.83 and grant incentive increment for higher education qualification of M.Sc., (Physics). Since the respondent has not considered the representation, the petitioner has filed this writ petition.
4. The Learned Single Judge after considering the petitioner's claim has held in paragraph no.4 of the judgment as follows:
“4. Such a relief cannot be granted. Even though the petitioner was appointed as against the earmarked vacancy for SC/ST, the said appointment cannot be considered as an appointment of SC/ST candidate. The fact remains that the petitioner is a non SC/ST candidate. Therefore, the benefit of incentive increment granted to the SC/ST candidate by way of policy in G.O.Ms.No.83 dated 28.04.2017 cannot be extended to the writ petitioner, who is admittedly a non SC/ST candidate. Thus, the petitioner may be eligible under the other category for grant of incentive increment as per the policy of the Government.” 4/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 Aggrieved over the same, the present writ petition is filed.
5. Heard Mrs.Porkodi Karnan for M/s.Polax Legal Solutions, the Learned Counsel appearing for the appellant and Mr.A.Kannan, the Learned Additional Government Pleader for the respondents and perused the records.
6. The petitioner was appointed on 02.03.1998 in the post of Secondary Grade Teacher. But the petitioner is possessing higher qualification of B.T. Assistant. The issue of appointing higher qualified persons in the Secondary Grade post was considered in the case of Secretary and Correspondent, Uswathun Hasana Oriental (Arabic) Girls Higher Secondary School, Pallapatti-639205 VS the State of Tamil Nadu and others reported in 2002 Writ Law Reporter 173, wherein the Hon’ble Division Bench has held that the higher qualification are not equivalent to the course which is prescribed to be appointed as Secondary Grade Teacher and held that such appointments are illegal. However, the government submitted before the Hon’ble Court in the aforesaid case that there are several such teachers appointed in the aided school and they would lose their jobs inspite of long service, therefore the government 5/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 would come out to offer special training and thereafter their appointment will be regularized.
7. The government issued G.O.No.155, School Education Department, dated 03.10.2002 to cover all such appointments covering for a period from 11.07.1995 to 19.05.1998 and another subsequent G.O. Ms. No. 150 Education Department (B1) Department dated 02.07.2007 applicable for 22 teachers who were appointed from 20.05.1998 to 29.06.2001. In the said G.O. Ms. No. 155 it has been stated that these teachers ought to undergo child psychology training for one month. After completion of such training, they would be entitled to approval of appointment from the date of completion of child psychology training and they would be entitled for salary applicable to Secondary Grade post, the past service will not be considered for any benefits including increments, pension etc. The said G.O. Ms. No.155 was challenged before this Court in State of Tamil Nadu and others VS Pallivasal Primary School reported in 2004-2-L.W. 591, wherein this Court has upheld the validity of the G.O. and the only relief granted to the teachers is that if any salary paid the same shall not be recovered and the past service period would be calculated 6/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 for the pension benefits alone. The Clause No. 3 (vii) of G.O. 155 alone was set aside and the rest of the G.O. was upheld. In the present case the petitioner was appointed on 02.03.1998 and has undergone child psychology training from 02.05.2003 to 31.05.2003 and his appointment was approved from 01.06.2003 onwards. Therefore, the petitioner is entitled to salary, incentive increment from the date of appointment i.e. 01.06.2003 and his past service before 31.05.2003 will not be calculated for any purpose except pensionary benefits.
8. Even after holding in the said judgments of this Court in Uswathun Hasana case and Pallivasal case that they are not entitled to any benefits, several writ petitions were filed and the same was allowed without adverting to the judgments of Uswathun Hasana case and Pallivasal case. Again another Division Bench in order to set right the illegal orders has passed an order clarifying the position in Sundervel Raj’s case in W.A. (MD) No. 74 / 2015 and the relevant portion of the order is extracted hereunder:
“3. The entire background in which the Government Order came to be issued is set out in that Government Order. By G.O.Ms.No. 559 dated 11.07.1995 it was directed that B.Ed. Teachers shall not be appointed in Secondary Grade vacancies. Despite that order, appointment of persons like the appellants/petitioners before us were made in contravention of that Government Order.7/18
https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 The validity of that G.O. was also challenged unsuccessfully. In the Writ Appeals preferred against the judgment dismissing the writ petitions, the Division Bench upheld G.O.Ms.No.559. The natural consequence of that could have been the throwing out of employment persons like the appellants/petitioners who had been employed in violation of that G.O.” … “7. Pursuant to which, G.O.Ms.No.155 dated 03.10.2002 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 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; murhizf;Fg; Gwk;ghf nra;ag;gl;Ls;sjhYk;> ,e;epakdjhuh;fshy; njhlug;gl;l hpl;
kDf;fs; kw;Wk; mjid vjph;j;J js;Sgb nra;ag;gl;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 ,th;fSf;F Kiwahd ,ilepiy 8/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 Mrphpah;fshf epakd xg;Gjy; mspj;J> me;j ehspypUe;J kl;LNk ,ilepiy Mrphpah; Cjpak; toq;f Ntz;Lk; vd;W Mizaplg;gLfpwJ.” Another condition, which would be relevant for the present case is clause 3(viii) of G.O.Ms.No.155 dated 03.10.2002, which reads as follows:
(iii) Nkw;fz;l egh;fs; epakd xg;Gjypd;wp gzpGhpe;j fhyj;ij mq;fPfhpf;fg;gl;l jdpahh; gs;spfspy;
gjtp cah;Tf;Nfh Cjpa eph;zaj;jpw;Nfh> Xa;T+jpag; gad;fs; toq;Ftjw;Nfh fzf;fpy; nfhs;sf; $lhJ vd;Wk; njhptpf;fg;gLfpwJ.” ,ilepiy Mrphpah; gzpaplj;jpy; epakpf;fg;gLk;
gl;ljhhp/jkpohrphpah; jFjp ngw;w egh;fSf;F ,ilepiy Mrphpah;fSf;fhd Cjpa tpfpjk;jhd; toq;fg;gLk; vd;Wk;> Ntnwe;j rpwg;Gr; rYifAk; mspf;fg;glkhl;lhJ vd;Wk;. mth;fs; ,ilepiy Mrphpauhf gzpahw;Wk; fhyj;jpy; cah; fy;tpj; jFjpf;fhd rpwg;G Cjpa cah;T toq;Fk;
jpl;lk; ,th;fSf;Fg; nghUe;jhJ vd;Wk; ,jw;fhd cWjpnkhopr; rhd;W rk;ge;jg;gl;l egh;fsplkpUe;J ngwg;gl Ntz;Lnkd;Wk; njhptpf;fg;gLfpwJ.
9.The management of various Schools, which had appointed Teachers like the respondents had challenged the validity of 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, whereby 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 9/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 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 monetary 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 penultimate portion of the order her salary has also been included. In our considered view, the direction to pay salary does not corroborate 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 retired 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 directions, 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 10/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 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 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 be to allowed.”
9. The judgments stated supra had clearly held that the teachers appointed under G.O. Ms. No. 155, the salary alone shall not be recovered and the past service would be calculated for pension benefits alone. The comprehensive reading of all the three Division Bench judgments in W.A. No. 991 of 1998 (Uswathun Hasana case), W.A. No. 242 of 2002 (Pallivasal case) and W.A.(MD)No.74 of 2015 (Sundarvel Raj case) had held, i.That salary paid cannot be recovered.
ii.The teachers are not entitled to any Secondary Grade Teacher salary for the past period.
iii. The teachers are not entitled to any other monetary benefits such as annual increment, incentive increment for higher qualification, selection grade and special grade or any other benefits except pensionary 11/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 benefits.
iv. The appointment shall be approved from the date of completion of child psychology training and the teacher would be entitled to salary and other monetary benefits from the date of completion of child psychology training.
10. Inspite of these judgments, now these teachers have starting approaching this High Court raising a new plea by referring to G.O.Ms.No.83, School Educational Department, dated 28.04.2017. This G.O. covers the teachers who were recruited vide G.O. Ms. No. 223 School Education (S1) Department dated 14.03.1997 and G.O. Ms. No. 301 School Educational (D1) Department, dated 15.10.1999, wherein the G.O. specifically states that the backlog vacancy of the SC / ST category was filled up with the Teachers who are having higher qualification. This G.O. is applicable to candidates belonging to SC/ST category alone and the petitioner is not belonging to SC / ST category, hence the petitioner has misconceived by comparing himself with the teachers who were recruited under G.O.Ms.No113 and G.O.Ms.No.301. The learned Single Judge has rightly held that this G.O. is not applicable to the non SC/ST 12/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 appointment, since non SC/ST appointment cannot be treated on par with the SC candidate. Moreover, the appointment is covered under G.O.No.155 and the Government has not issued any G.O. relaxing the conditions stipulated under G.O.No.155.
11. The Government has issued a government order in G.O. MS. No. 37 Personnel and Administrative Reforms (FR-IV) Department, dated 10.03.2020 wherein the Government has taken a policy decision to cancel / dispense with granting of incentive increment for acquiring higher qualification and the relevant portion of G.O. is extracted hereunder:
“6. For the forgoing reasons, the Government have taken a decision to cancel / dispense with the scheme of sanction of advance increment for acquiring higher qualification and for passing Account Test for Sub ordinate Officers Part-I as per rulings (3) & (4) under FR 31-A and also to cancel the orders issued in Government Orders fifth to eighth read above. Accordingly, the Government issue the following directions:-
i. As a policy decision, the scheme of sanction of advance increment for acquiring higher qualification in all departments and all orders issued by all departments for sanction of advance increment for possessing higher qualification, as a whole, be cancelled/dispensed with immediate effect.
ii. The orders issued in the Government Orders fifth to eighth read above cancelled with immediate effect.
iii. The sanction of the advance increment for passing Account Test 13/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 for Sub-Ordinate Officers-Part-I, as per rulings (3) &(4) under FR 31-A be dispensed with immediate effect.
iv. The advance increment for acquiring higher qualification already granted to Government Servants need not be effected any recovery.
v. All the departments of Secretariat/Head of the Departments are requested to take up a review on this issue with reference to the special / adhoc rules of the posts (entry to higher level) of the department concerned and to prescribe higher qualification to the posts where ever necessarily required, so as to improve the services of the department concerned.
vi. The cases of Government Servants who have acquired higher qualification prior to issue of this general order, and not sanctioned with advance increments be examined separately as per the previous orders issued, if any, by the administrative department concerned and with reference to the posts specified in that order and if he is otherwise qualified, then the advance increment may be sanctioned by the administrative department concerned after obtaining concurrence of Finance department. If no previous orders were issued by any of the department concerned, then they are not eligible for sanction of any advance increment for passing higher qualification irrespective of the post held/degree acquired. vii. No fresh/further proposals will be entertained by Personnel and Administrative Reforms Department on this issue, in future.”
12. In the G.O.Ms.No.37 it has been categorically stated that no incentive increment will be granted for higher educational qualification. The G.O. also states that this G.O. is also applicable to those have acquired higher educational qualification prior to the issuance of G.O. Under Clause 6(vi) it has 14/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 been stated that if no order is passed by the administrative department, then the said candidate would not be eligible for the increment. In the present case the government has not issued any government order against G.O.Ms.No.155 and cancelled the conditions imposed therein. Hence the petitioner is not entitled to incentive increment as per G.O.Ms.No.37.
13. The appellant submitted that the object of granting incentive increment is to lift the morale of the teachers. But the government states that the object of granting incentive increment is to encourage the Teachers to qualify themselves, so that their qualification would be beneficial to the students. In the present case the petitioner was working as Secondary Grade Teacher taking class for students from 1 to 5 standards and the qualification of M.Sc. Physics would not be beneficial to the students studying in the standards 1 to 5. Therefore, the Government is right in denying the incentive increment for higher qualifications when the higher qualification is not beneficial for the students studying in 1 to 5 standards.
14. The issue of incentive increment ought to be addressed in a 15/18 https://www.mhc.tn.gov.in/judis W.A.(MD)No.910 of 2022 different perspective. The claim of the Teachers is granting incentive increment would boost their morale and the same ought to be granted. However, the Government is finding it difficult, since huge amount is spent as salary to the Teachers and other Government employees. The Government may consider the incentive increment as a one-time measurement or token amount. It need not be added in the salary, which grows along with the time scale. It is pertinent to state that the Central Government is granting one time lump sum amount i.e. as a token amount which will not increase along with the time scale of pay. The government may contemplate to grant as one time token amount.
15.With the above said observation, the writ appeal is dismissed. No costs.
[S.S.S.R., J.] [S.S.Y., J.]
24.08.2022
Index : Yes / No
Tmg
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W.A.(MD)No.910 of 2022
To
1.The Secretary to Government,
Education Department,
Fort.St.George, College Road,
Chennai – 9.
2.The Director of School Education,
College Road, Chennai – 6.
3.Block Educational Officer,
Bogalur, Ramnad District.
4.The Secretary,
Idartheerthamman Elementary School,
Theeyanur, Ramnad.
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W.A.(MD)No.910 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
Tmg
W.A(MD)No.910 of 2022
24.08.2022
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