Madras High Court
V.L.Benin Deva Kumar vs The State Of Tamilnadu Rep. By on 4 April, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.04.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Writ Appeal (MD) No.300 of 2016
and C.M.P.(MD) No.1697 of 2016
1.V.L.Benin Deva Kumar
2.C.Senthil
3.C.B.Jayachitra
4.V.L.Sam Prince Kumar
5.K.Soman Nair
6.R.Anross
7.R.Soundararajan
8.G.Saravanan
9.S.Berlin Christopher
10.D.Rajan
11.C.Moorthy
12.R.Ashok Kumar
13.S.George Benet ... Appellants
Vs.
1.The State of Tamilnadu Rep. by
The Secretary to Government,
Education Department,
Secretariat,
Chennai ? 9.
2.The Director of School Education,
College Road,
Chennai ? 6.
3.The Chief Educational Officer,
Thirunelveli District,
Thirunelveli.
4.The Chief Educational Officer,
Kanyakumari District,
Kanyakumari. ... Respondents
PRAYER : Writ Appeal filed under Clause 15 of Letter Patent against the
common order dated 29.01.2016 passed in W.M.P.(MD) No.1964 of 2016 in
W.P.(MD) No.19138 of 2015 on the file of this Hon'ble Court.
!For Appellant : Mr.D.Selvanayagam
^For Respondents : Mr.VR.Shanmuganathan
Special Government Pleader
:JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR, J.) Writ Petitioners in W.P.(MD) No.19138 of 2015, numbering 13 and working as B.T. Assistants have sought for a Writ of Manadamus, directing the respondents to notify the seniority list of B.T. Assistant (Promotees) and the directly recruited consolidated pay B.T. Assistant between 2004-2006 and 2011-2014, by following the ratio of 50:50 fixed between the Direct Recruits and the Promotees before effecting further promotion to the post of Headmaster/Headmistress or P.G. Assistant.
2.Pending disposal of the above said writ petition, petitioners filed M.P.(MD) No.2 of 2015, to grant ad-interim injunction restraining the respondents, their men, officials and agents from filling up the post of Headmaster/Headmistress or P.G. Assistant without fixing the seniority between the promotees B.T. Assistants like the petitioner and the directly recruited consolidated Pay Appointees on the basis of 50:50 ratio. Adverting the averments, the Writ Court vide order dated 16.10.2015, in M.P.(MD) No.2 of 2015 in W.P.(MD) No.19138 of 2015 has directed the respondents therein, to maintain status quo with regard to the post of P.G. Assistant or Headmaster/Head Mistress until further orders.
3.Being aggrieved by the same, State of Tamil Nadu, rep. by the Secretary to the Government and three others have filed W.M.P.(MD) No.1964 of 2016 to vacate the order of status-quo. Similarly W.M.P.(MD) Nos.1966 and 1994 of 2016 have been filed by individuals/proposed respondents to vacate the order of status-quo. After hearing learned counsel for the parties, vide order dated 29.01.2016 in W.M.P.(MD) Nos.1964, 1966 and 1994 of 2016 in M.P.(MD) No.2 of 2015 in W.P.(MD) No.19138 of 2015, the Writ Court vacated the interim order of status-quo and directed the Registry to post the Writ Petition for final disposal on 16.06.2016. The Writ Court ordered as follows:
?2.The post of B.T. Assistants are filled up by two modes, one is by direct recruitment and the other is by promotion from the post of Secondary Grade Teachers. The post of B.T. Assistants are filled up at the ratio 50:50 i.e. if one person is appointed by direct recruitment, another person will be promoted from the post of Secondary Grade Teacher.
3.The promotion to the post of Headmasters in High Schools is governed by the Special Rules for the Tamil Nadu School Educational Service issued under Article 309 of the Constitution of India. It belongs to Class V and Category 2 of the said service. The said rule do not provide for any ratio between the directly recruited B.T. Assistants and the promoted B.T. Assistants for the promotion to the post of High School Headmasters. The petitioners have filed the Writ Petition seeking a direction to the Government to fix a ratio of 50:50 between direct recruitees and the promotees for filling up the post of High School Headmasters and P.G. Assistants in Higher Secondary School.
4.In my view, the same is the policy decision of the Government. In any event, whether such a ratio has to be given could be decided only at the final hearing of the writ petition. The rule does not provide any such ratio in the filling up of post of Headmasters of High Schools or P.G. Assistants in the High Secondary Schools. But the petitioners have obtained an interim order not to fill up the vacancies to the post of P.G. Assistants or Headmasters. In view of the same, no vacancies are filled with in respect of High School Headmasters and P.G. Assistants in Higher Secondary Schools.
5.Since the Special Rules for the Tamil Nadu School Educational Service do not provide for ratio between directly recruited B.T. Assistants and promoted B.T. Assistants, I am inclined to vacate the interim order.
Accordingly, W.M.P.(MD) Nos.1964, 1966 and 1994 of 2016 are allowed and the interim order granted by this Court on 16.10.2015 in M.P.(MD) No.2 of 2015 is vacated and M.P.(MD) No.2 of 2015 is dismissed.
Being aggrieved, the present appeal has been filed.
4.Contention of the appellants/writ petitioners is that the Writ Court has failed to consider the fact that if the order of status-quo is vacated, then the official respondents may fill-up the post of Headmaster/Headmistress or P.G. Assistants, who have been illegally regularised in the post of B.T. Assistant. It is also the contention of the appellants that enblock regularization of the contract employees in the Post of B.T. Assistant just on completion of 2 years of service would enable them to march over others who have been appointed on regular basis.
5.Mr.VR.Shanmuganathan, learned Special Government Pleader submitted that in so far as filling the post of Headmaster/Headmistress or P.G. Assistants is concerned, interse seniority between the B.T. Assistants and promoted to the said post is being considered. It is also his submission that as per the Special Rules for Tamil Nadu Educational Service (G.O.Ms.No.1053, Education department dated 09.06.1978), there is no difference between a directly recruited B.T. Assistant and B.T. Assistant promoted from the post of Secondary Grade Teachers.
6.From the above, it could be deduced that there are two channels for the appointment to the post of B.T. Assistants. One by directly recruitment and the other, by promotion from the post of Secondary Grade Teacher. Admittedly, as per the Rules, post of B.T. Assistants have to be filled in the ratio 50:50 from the two sources. In so far as filling up the post of the Headmasters/Headmistress or P.G. Assistants is concerned, there is no such ratio in the existing rules. The question as to whether the promoted B.T. Assistants and the directly recruited B.T. Assistants are to be promoted, in the ratio 50:50 is yet to be decided.
7.At this juncture, we may only consider a decision in P.U. Joshi v. Accountant General reported in (2003) 2 SCC 632, the Hon'ble Supreme Court at paragraph 10 held as follows:
?10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.?
8.Before a mandamus is issued, unless there is any extraordinary circumstances, Courts cannot direct the authorities to keep the posts vacant, more particularly in school education department, where the education of the students would be affected for dearth of teachers. When the posts are vacant they have to be manned by suitable persons. In the light of the discussion and decision cited supra, we do not find manifest illegality in the impugned order vacating status-quo.
9.Accordingly, the Writ Appeal is dismissed. No costs. Consequently, connected W.M.P.(MD) No.1697 of 2016 is also dismissed.
To
1.The Secretary to Government, Education Department, Secretariat, Chennai ? 9.
2.The Director of School Education, College Road, Chennai ? 6.
3.The Chief Educational Officer, Thirunelveli District, Thirunelveli.
4.The Chief Educational Officer, Kanyakumari District, Kanyakumari..