Madras High Court
P.Mullaivendan vs The Director Of School Education on 19 July, 2012
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/07/2012 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.(MD)No.1777 of 2007 and M.P.(MD) Nos.1 and 2 of 2007 P.Mullaivendan ... Petitioner vs. 1.The Director of School Education, Chennai - 6. 2.The Chief Educational Officer, Tiruchirappalli. 3.The District Educational Officer, Musiri, Tiruchirapalli District. ... Respondents PRAYER Writ petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to the order passed by the second respondent in Na.Ka.No.2320/Aa 2/06 dated 28.07.2006 and quash the same and direct the respondents to promote the petitioner as Headmaster High School, from the date on which his juniors were promoted and confer all the consequential benefits. !For Petitioner ... Mr.V.Panneerselvam ^For Respondents ... Mr.B.Pugalenthi, Spl.G.P. :ORDER
The petitioner initially joined in service as Tamil Pandit in Panchayat Union Middle School, Karattampatti, Trichy District on 20.01.1984. His service conditions are governed by the rules viz., the Tamil Nadu Panchayat Union School Teachers Service Rules, 1981.
2.While he was working as Tamil Pandit in Moovanoor Panchayat Union Middle School, the same was upgraded as High School in G.O.Ms.No.884, Education Department, dated 24.09.1992. He was absorbed as Tamil Pandit on 10.11.1992 in the newly upgraded High School. That is, he came to High School service from Panchayat Union service and on absorption to High School, his service conditions are governed by the rules viz., the Tamil Nadu Educational Subordinate Service Rules.
3.The next promotion for Tamil Pandits in the High School service is Headmasters in High Schools.
4.When a panel for promotion to the post of High School Headmasters for the year 2006 - 2007 was prepared, he requested for inclusion of his name in the said panel. His request was declined by the second respondent by the impugned order dated 28.07.2006, stating that the Tamil Pandits absorbed from Panchayat service upto 02.11.1986 alone have been considered for inclusion in the panel for promotion to the post of Headmasters in High Schools for the year 2006 - 2007 and since the petitioner got absorbed only on 18.11.1992, his name was not included. It is further stated that the said order is based on the instructions issued by the first respondent in his proceeding dated 06.02.2006.
5.The petitioner has filed this writ petition, to quash the aforesaid order dated 28.07.2006 of the second respondent and for consequential direction to the respondents to promote him as Headmaster in High School from the date on which his immediate junior was promoted, with all monetary benefits.
6.The respondents filed counter affidavit refuting the allegations.
7.It is averred in the counter affidavit that the first respondent issued instructions dated 06.02.2006 to all the Chief Educational Officers in the State to prepare the panel of names of B.T.Assistants and Tamil Pandits as on 01.01.2006, eligible for promotion to the post of Headmaster in High Schools. The first respondent informed therein that the B.T.Assistant/Tamil Pandits absorbed from Panchayat Union Middle Schools into High Schools upto 02.11.1986 alone are eligible for inclusion in the panel. Based on the same, the second respondent passed the impugned order dated 28.11.2006, refusing to include the name of the petitioner in the panel for the year 2006 - 2007. It is stated that on absorption into High School service, he ranks junior in the cadre of Tamil Pandit as on 10.11.1992 and his claim for counting his service from his initial appointment from 20.01.1984 is not acceptable. It is further stated that the service rendered by the petitioner in the Panchayat Union Middle School shall not be counted for the purpose of seniority.
8.Heard both sides.
9.The petitioner joined the panchayat Union service on 20.01.1984 as Tamil Pandit. While he was serving as Tamil Pandit in Moovanoor Panchayat Union Middle School, the said School was upgraded as High School in G.O.Ms.No.884, Education Department, dated 24.09.1992.
10.The Government decided to provide High School facilities at many places and issued G.O.Ms.No.753, Education department, dated 24.01.1992, providing 19 High Schools and thereafter, two more High Schools were provided by G.O.Ms.No.884. One among the two High schools in G.O.Ms.No.884, is the conversion of Moovanoor Panchayat Union Middle School into High School. While issuing G.O.Ms.No.884, it is nowhere stated that earlier service rendered by the teachers in the Middle School that is upgraded as High School could be wiped out on absorption into High School service. The teachers including the petitioners were not informed by way of any other communication that on absorption into High School service, they could loose the earlier service for the purpose of seniority and promotion.
11.Therefore, I am of the view that the first respondent is not correct in issuing instructions dated 06.02.2006 to the Chief Educational Officer in the State to include the B.T.Assistants/Tamil Pandits, who were absorbed from Panchayat Union Middle Schools into High Schools prior to 02.11.1986. It is not known as to how the cut off date 02.11.1986 is chosen by the first respondent. In any event, no cut off date could be chosen by the first respondent, since the teachers were not informed that the service rendered in the Panchayat Union schools should not be taken into account for the purpose of seniority and promotion.
12.I am not in agreement with the submission made by the learned Special Government Pleader that the petitioner shall be treated as junior most person in the cadre of Tamil Pandit on his absorption on 10.11.1992, in High School service since the petitioner was not informed that his earlier service in the Panchayat Union would be wiped out. No such condition is stipulated in G.O.Ms.No.884.
13.The learned Special Government Pleader has heavily relied on the judgment of the Apex Court dated 29.10.1998 in C.A.No.4582 of 1997 (The Director of School Education and another Vs. A.N.Kandaswamy and another). In my view, the said judgment is not applicable to the facts of this case. In the said case, a Panchayat Union Middle School was upgraded as High School. A secondary grade teacher, who was serving in the Middle School, opted to get absorbed in the High school on its upgradation with effect from 28.10.1985. Some Junior teachers, who opted to continue in Panchayat Union service, got promoted as Primary School Headmasters from 01.06.1988. The Primary School Headmasters were given higher scale viz., 2000 - 3200 scale by G.O.Ms.No.1381, Education Department dated 05.10.1990. Prior to 01.06.1988 the scale of pay of secondary grade teacher and the Primary School Headmaster was one and the same. The teacher, who opted to get absorbed in the High School service claimed 2000 - 3200 on the ground that his juniors were in receipt of the said scale. He approached the Tamil Nadu Administrative Tribunal and the Tribunal allowed his claim. Thereafter, the department took up the matter to the Apex Court. The Apex Court reversed the judgment of the Tribunal and held that after getting absorbed in the High School Service, the concerned teacher should not have compared himself with the teachers, who opted to continue in the Panchayat Union service. It is held that the service in Panchayat Union schools is a different service from that of the service in High School. It is also held that the teachers in Panchayat Union Schools are governed by different service rules.
14.The aforesaid narration of facts would make it very clear that the said judgment could have no application to this case. It is not the case of the petitioner that he should be treated on par with the teacher serving in Panchayat Union service. His claim is that his service as Tamil Pandit from 20.01.1984 was also be taken into account for the purpose of seniority and promotion.
15.In my view, the claim of the petitioner for the same is well founded, unless, he was informed otherwise at the time of absorbtion. The upgradation of a middle school into High School and creation of new schools was a policy decision and in the said circumstances, the petitioner got absorbed in the High School service. It was not the wish of the petitioner that the Middle School, where he served, shall be upgraded as High School. The petitioner did not seek transfer from one service to another service. On the other hand, due to the conversion of the Middle school into High School, the petitioner, who is serving in the Middle School got absorbed in the upgraded High School. Hence, the service rendered by the petitioner in the Middle School shall also be taken into account for all purposes.
16.In my view, the judgment rendered by me in W.P.Nos.41500 of 2006 etc. batch dated 06.07.2010 is directly applicable to the facts of this case. In the said case, the Doctors, serving in the Panchayat Unions were absorbed in Government service and the service rendered by those Doctors in the Panchayat Unions was not counted for the purpose of seniority and other purposes. The said issue was decided in the aforesaid order. After considering the judgment of the Apex Court in Sub Inspector Rooplal and another Vs. Lt. Governor reported in 2000(1) SCC 644 and a Division Bench judgment of this Court in Tamil Nadu Government (Converted) RWO Association Vs. The State of Tamil Nadu reported in CDJ 2005 MHC 879, I have held that the service rendered by the Doctors in Panchayat Unions shall be counted for all purposes on absorbtion in Government service. Para 19 to 26 of the said judgment are extracted hereunder in this regard.
"19.Considering the facts and circumstances of the case, I am of the considered view that the submissions made by the learned counsel for the petitioners are well founded. It is very clear that the Medical Officer post and the Assistant Surgeon posts are equivalent pose, in view of similar duties and responsibilities attached to both the posts, qualification required to hold both the posts, the working hours of Panchayat Union Dispensaries and the Primary Health Centres and the scale of pay applicable to the posts. If the posts are equivalent and one is transferred from one post to another post, even if the post belong to different services, the service rendered in the earlier service should not be ignored, as categorically held by the Honourable Apex Court in SUB-INSPECTOR ROOPLAL AND ANOTHER VS. LT.GOVERNOR reported in 2000 (1) SCC 644 and the judgment of a Division Bench of this Court in TAMIL NADU GOVERNMENT (CONVERTED) RWO ASSOCIATION VS. THE STATE OF TAMIL NADU reported in CDJ 2005 MHC 879. I am not in agreement with the submissions made by the learned Advocate General that the counting of service in the earlier service would arise only if a person is transferred from one Government service to another Government service and not from different service to Government service.
20.In the Sub-Inspector Rooplal's case (cited supra), the Sub- Inspectors belonging to Border Security Force were absorbed into Delhi Police Service. The service rendered in the Border Security Force was not taken into account for fixation of seniority. The Honourable Apex Court after referring to its earlier decisions in K.MADHAVAN VS. UNION OF INDIA reported in 1987 (4) SCC 566; R.S.MAKASHI VS. I.M. MENON reported in 1982 (1) SCC 379 and WING COMMANDER J.KUMAR VS. UNION OF INDIA reported in 1982 (2) SCC 116 held that even if persons belonging to different service are transferred from one service to another, the earlier service rendered has to be taken into account for all purposes, if both the posts are equivalent. The factors that would determine the equivalency of the posts were given by the Honourable Apex Court and the relevant passage from para 17 of the judgment in Sub-Inspector Rooplal's case is extracted here-under:
"17.............. These four factors are: (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criteria. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different would not in any way make the post "not equivalent". "
21.Applying the said principles, it is very clear that the Medical Officer post and the Assistant Surgeon posts are equivalent and that therefore, if the Medical Officers in Panchayat Union Dispensaries are transferred as Assistant Surgeons in Primary Health Centres, the service rendered in the Panchayat Union Dispensaries should be taken into account for all purposes.
22.In the Division Bench judgment of this Court in Tamil Nadu Government (Converted) RWO Association's case referred to above, the transfer is from one Government service to another Government service. That is, the persons in Agricultural Department were transferred to Rural Welfare Department. The village level workers belonging to Agricultural Department came to the service of the Rural Welfare Department as "Gramasevaks". The employees from Rural Development Department opposed for counting the services rendered by those persons in the Agricultural Department. This Court has categorically held that the service rendered by the persons in Agricultural Department in the earlier service has to be counted.
23.Furthermore, it is also not disputed that the service rendered by the Medical Officers in Panchayat Union Dispensaries was counted for the grant of Selection Grade and Special Grade and the same was considered for the purpose of Post Graduate studies in Medicine like Assistant Surgeons in Primary Health Centres.
24.It is also not disputed that others who served in the Panchayat Union Dispensaries were given the benefit of counting the service in the Local Body Service barring the Medical Officers. The reasoning of the respondents that the Assistant Surgeons are recruited through the Tamil Nadu Public Service Commission examination could not be a ground to deny the benefit of the earlier service rendered by the Medical Officers in the Panchayat Union Dispensaries, particularly, when the provincialisation of Panchayat Union Dispensaries as Primary Health Centres was pursuant to the policy decision of the Government and it was the making of the Government and the Medical Officers had nothing to do with the same. As the Medical Officers were absorbed into Tamil Nadu Medical Service without facing any examinations from the Tamil Nadu Public Service Commission, the same could not be cited to deny the benefit of the earlier service rendered by them in Panchayat Union Dispensaries.
25.I am not in agreement with the submissions of the learned Advocate General that option is not necessary as it was a policy decision. If prejudice is caused to an employee, option should have been called for. Therefore, it does not lie in the mouth of the respondents to say that the Government service is a superior service when the Medical Officers were not given option. In any event, whether the consent was obtained from the persons or not, it is very clear that the respondents are bound to count the services rendered by the Medical Officers in the Local Body service, as held by the Honourable Apex Court. In fact, in the counter affidavits, it is stated that the Government was not able to decide on the proposal for counting the Local Body service due to the pendency of this case. It is surprising to note such an averment as there is no bar for the Government to grant the relief which is sought for by the petitioners. The pendency of the original applications (writ petitions) is not a bar for the Government to grant the benefit on its own.
26.The following passage in para 16 of the judgment of the Honourable Apex Court in GURMAIL SINGH AND OTHERS VS. STATE OF PUNJAB AND OTHERS reported in 1991 (1) SCC 189 fortifies the aforesaid conclusions of mine.
"16........ This is where, as here, the transferor and/or transferee is a State or a State instrumentality, which is required to act fairly and not arbitrarily (see the recent pronouncement in Mahabir Auto Stores v. Indian Oil Corporation and the court has a say as to whether the terms and conditions on which it proposes to hand over or take over an industrial undertaking embody the requisite of "fairness in action" and could be upheld. We think that, certainly, in such circumstances it will be open to this Court to review the arrangement between the State Government and the Corporation and issue appropriate directions. Indeed, such directions could be issued even if the elements of the transfer in the present case fall short of a complete succession to the business or undertaking of the State by the Corporation, as the principle sought to be applied is a constitutional principle flowing from the contours of Article 14 of the Constitution which the State and Corporation are obliged to adhere to. We are making this observation because it was attempted to be argued on behalf of the State and the Corporation that only certain assets of the State 'industry', viz. the tubewells, were taken over by the latter and nothing more..........""
17.For all the aforesaid reasons, the impugned order is quashed and the respondents are directed to consider the claim of the petitioner for inclusion in the panel of promotion to the post of Headmaster of High School for the year 2006 - 2007 by taking into account the service of the petitioner from 20.01.1984 as Tamil Pandit and to promote him from the date on which his Junior teacher was promoted, with all monetary benefits, if any of his junior was promoted. The respondents are further directed to complete the aforesaid exercise, within a period of three months from the date of receipt of a copy of this order. NO costs. Consequently, connected miscellaneous petitions are closed.
Arul To
1.The Director of School Education, Chennai - 6.
2.The Chief Educational Officer, Tiruchirappalli.
3.The District Educational Officer, Musiri, Tiruchirapalli District.