Madras High Court
The Director Of Elementary Education vs Sundaravel Raj on 21 March, 2018
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.03.2018
CORAM
THE HONOURABLE Mr.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE Mrs.JUSTICE R.THARANI
W.A.(MD).Nos.74 of 2015 and 957 of 2016
and
M.P.(MD)Nos.1 and 2 of 2015
and
C.M.P.(MD)No.5749 of 2016
W.A.(MD)No.74 of 2015:
1.The Director of Elementary Education,
College Road, Chennai-600 006.
2.The District Elementary Educational Officer,
Tirunelveli,
Tirunelveli District.
3.The Additional Assistant Elementary Educational Officer,
Kadayam Range,
Tirunelveli District. ... Appellants
Vs.
Sundaravel Raj ... Respondent
PRAYER:This appeal has been filed under Clause 15 of the Letters Patent, to
set aside the orders dated 03.11.2014 made in W.P.(MD)No.17644 of 2014.
For Appellants : Mr.V.R.Shanmuganathan
Special Government Pleader
For Respondent : Mr.F.Deepak
W.A.(MD)No.957 of 2016:
1.The Government of Tamil Nadu,
Rep. By its Secretary,
Department of Education,
St. George Fort,
Chennai-600 009.
2.The Director of Elementary Education,
College Road, Chennai-600 006.
2.The District Elementary Educational Officer,
Theni.
3.The Additional Assistant Elementary Educational Officer,
Chinnamanur,
Theni. ... Appellants
Vs.
K.Uthayakumar ... Respondent
PRAYER:This appeal has been filed under Clause 15 of the Letters Patent, to
set aside the order dated 17.04.2015 made in W.P.(MD)No.17425 of 2014.
!For Appellants : Mr.V.R.Shanmuganathan
Special Government Pleader
^For Respondent : Mr.S.Chellapandian
:COMMON JUDGMENT
(Judgment of the Court was delivered by T.S.SIVAGNANAM, J) Heard Mr.V.R.Shanmuganathan, learned Special Government Pleader appearing for the appellants in both the writ appeals and Mr.F.Deepak, learned counsel appearing for the respondent in W.A.(MD)No.75 of 2015 and Mr.S.Chellapandian, learned counsel appearing for the respondent in W.A.(MD)No.957 of 2016.
2.These appeals by the State are directed against the order made in W.P.(MD)Nos.17644 and 17425 of 2014, dated 03.11.2014 and 17.04.2015 respectively.
3.Since the issue involved in these appeals are common they were heard together and disposed of by a common judgment. These two appeals have been filed by the District Elementary Education, challenging the orders passed in the writ petitions filed by the respondents wherein they sought for monitory benefits from the date of original appointment as well as increment and benefits such as selection grade and special grade. Though there may be a slight difference in the two orders passed in the writ petition, which are subject matter of the these appeals, the common issue which fall for consideration is with regard to benefits which will accrued to the respondent teachers pursuant to the order passed by the Government in G.O.Ms.No.155 School Education (D2) Department dated 03.10.2002.
4.The background which led to the issuance of such Government order to the teachers is that, the respondents were appointed as BT Assistants in Secondary Grade Teacher vacancies. In other words, the respondents Teachers did not posses requisite qualification required for the post of Secondary Grade Teachers or put in other words, they were over qualified. Therefore, the Government issued G.O.Ms.No.559 Education, Science and Technology Department dated 11.07.1995 and directed not to approve the appointment of BT Assistants/Tamil Pandits in Secondary Grade Teacher vacancies in future in all kinds of School including minority School. Subsequently, the Government passed another order in G.O.Ms.No.203 Education, Science and Technology Department dated 19.03.1996 making a slight change to G.O.Ms.No.559 by observing that the Government direct that such an appointment, namely, BT Assistants/Tamil Pandits in the Secondary Grade Teacher vacancies should not be restored to after 11.07.1995. That being the date of issue of G.O.Ms.No.559. The Management in which the teachers like the respondents were working filed writ petitions, challenging the validity of G.O.Ms.No.559 dated 11.07.1995. Some the writ petitions were dismissed and ultimately, the matter was heard by the Division Bench.
5.The question which fell for consideration before the Division Bench was as to whether the BT candidates can be appointed as Secondary Grade Teachers up to 8th standard for which SSLC and TSLC of Secondary Grade or equivalent prescribed by the Act and Rules and G.O.Ms.No.559 issued by the Government directing the educational authorities not to approve the appointment to BT teachers in Secondary Grade Teacher vacancies is valid or not. The Division Bench in the case of Secretary and Correspondent Uswathun Hasana Oriental (Arabic) Girls Higher Secondary School, Pallapatti, 6396 205, Karur District v. State of Tamil Nadu and others reported in 2002 Writ L.R. 173 dismissed all appeals filed by the managements challenging G.O.Ms.559 dated 11.07.1995. In the judgment, the Division Bench upheld G.O.Ms.No.559 dated 11.07.1995 and held that there was no violation of any right of the teacher much less Fundamental Rights of the Managements and further held that B.Ed Teachers do not possess the requisite qualification to be appointed in the vacancy in the Secondary Grade Teachers to teach up to 8th standard. Having held so, the question arose as to what course should be adopted in the case of persons who have already been appointed on the basis of the B.Ed qualification in the post of the Secondary Grade Teachers Tamil Pandits.
6.The State Government through learned Additional Advocate General took a stand that they will consider the case of such Teachers who were appointed in Secondary Grade Teacher vacancies with B.Ed qualification and the Government will give the practical training or even choose to individually examine each case on its own merits. Recording the said submission, this Court directed the Government to complete the exercise as proposed by them within the time frame. This observation was made while dismissing the appeals and the writ petitions filed by the Management/petitioners.
7.Pursuant to which, G.O.Ms.No.155 dated 3.10.2002 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; murizf;Fg; Gwk;ghf nra;ag;gl;Ls;sjhYk;> ,e;epakdjhuu;fshy; njhlug; gl;l upl; kDf;fs; kw;Wk; mjid vjpu;j;J js;Sgb nra;agl;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 ,tu;fSf;F Kiwahd ,ilepiy Mrpupau;fshf epakd xg;Gjy; mspj;J> me;j ehspypUe;J kl;LNk ,ilepiy Mrpupau; Cjpak; toq;f Ntz;Lk; vd;W Mizaplg;gLfpwJ.?
8.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:
? (viii) Nkw;fz;l egu;fs; epakd xg;Gjypd;wp gzpGupe;j fhyj;ij mq;fPfupf;fg;gl;l jdpahu; gs;spfspy; gjtp cau;Tf;Nfh Cjpa epu;zaj;jpw;Nfh> Xa;T+jpag; gad;fs; toq;Ftjw;Nfh fzf;fpy; nfhs;sf; $lhJ vd;Wk; njuptpf;fg;gLfpwJ.
,ilepiy Mrpupau; gzpaplj;jpy; epakpf;fg;gLk;
gl;ljhup/jkpohrpupau; jFjp ngw;w egu;fSf;F ,ilepiy Mrpupau;fSf;fhd Cjpa tpfpjk;jhd; toq;fg;gLk; vd;Wk;> Ntnwe;j rpwg;Gr; rYifAk; mspf;fg;glkhl;lhJ vd;Wk;. mtu;fs; ,ilepiy Mrpupauhf gzpahw;Wk; fhyj;jpy; cau; fy;tpj; jFjpf;fhd rpwg;G Cjpa cau;T toq;Fk; jpl;lk; ,tu;fSf;Fg; nghUe;jhJ vd;Wk;> ,jw;fhd cWjpnkhopr; rhd;W rk;ge;jg;gl;l egu;fsplkpUe;J ngwg;gl Ntz;Lnkd;Wk; njuptpf;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, were by 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 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 monitory 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 penaltimate 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 relied 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 decisions, the full affect 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 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 to be allowed.
12.The learned counsel for the respondents submitted that though there were about 3000 Teachers who were appointed in such improper manner as of now 300 Teachers would be entitled to monitory benefits and as remaining persons were already paid and they were protected by the Divison Bench order from the effect of recovery. The learned counsel submitted that the respondent should be permitted to approach the Government by way of representation.
13.We make no positive observation on this request. But it is always open to the respondents/writ petitioners to approach the Government, if they so desire. For the above reasons, the writ appeals are allowed and the impugned orders are set aside and consequently, the writ petitions are dismissed. No Costs. Consequently M.P.(MD)Nos.1 and 2 of 2015 and C.M.P.(MD)No.5749 of 2016 are closed .