Madras High Court
R.Subbulakshmi vs The Director on 26 September, 2019
Author: Subramonium Prasad
Bench: Subramonium Prasad
W.P.Nos.6245, 5684 & 5685 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.09.2019
CORAM:
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.Nos.6245, 5684 & 5685 of 2010
WP.No.6245 of 2010
R.Subbulakshmi
.. Petitioner
Vs.
1. The Director,
Elementary Education Office,
College Road,
Nungambakkam,
Chennai - 600 006.
2. The District Elementary Educational Officer,
Erode.
3. The Assistant Elementary Education Officer,
Nambiyur, Erode District.
4. A.Ganesan,
Panchayat Union Middle School,
E.Settipalayam Taluk & Post,
Nambiyur Via,
Gopichettipalayam Taluk, Erode District.
5. P.Umapathy,
Panchayat Union Middle School,
E.Settipalayam Taluk & Post,
Nambiyur Via,
Gopichettipalayam Taluk, Erode District.
http://www.judis.nic.in
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W.P.Nos.6245, 5684 & 5685 of 2010
6. K.S.Krishnaveni,
Panchayat Union Middle School,
E.Settipalayam Taluk & Post,
Nambiyur Via,
Gopichettipalayam Taluk, Erode District.
.. Respondents
Prayer in WP.No.6245/2010:- Writ petition filed under Article 226 of the
Constitution of India, for a Writ of Certiorarified Mandamus, calling for the records
of the 3rd respondent made in the panel drawn as on 01.01.2009 and quash the
same in so far as inclusion of respondents 4 to 6 over and above the petitioners are
concerned and and consequently directing the respondents 2 and 3 to prepare a
panel for B.T.Teacher consisting of person who are eligible to be promoted as
Head masters of Middle School in Nambiyur Panchayat Union as on 01.01.2009 by
placing the petitioners over and above the respondents 4 to 6 i.e., over and above
the direct recruits who were given regular appointments on 01.06.2003 and
consequently effect promotions according to said panel.
WP.No.5684 of 2010
M.K.Gandhimathi
.. Petitioner
Vs.
1. The Director,
Elementary Education Office,
College Road,
Nungambakkam,
Chennai - 600 006.
2. The District Elementary Educational Officer,
Erode.
3. The Assistant Elementary Education Officer,
Gopichettipalayam, Erode District.
4. S.Sumathi,
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W.P.Nos.6245, 5684 & 5685 of 2010
Panchayat Union Middle School,
Nallagoundampalayam (PO),
Gopichettipalayam-638 452, Erode District.
5. K.Dhanajothi,
Panchayat Union Middle School,
Nallagoundampalayam (PO),
Gopichettipalayam-638 452, Erode District.
6. N.K.Rajasundari,
Panchayat Union Middle School,
Nallagoundampalayam (PO),
Gopichettipalayam-638 452, Erode District.
7. K.Vijayalakshmi,
Panchayat Union Middle School,
P.Vellapalayam & (PO),
Gopichettipalayam-638 452, Erode District.
8. P.Geetha,
Panchayat Union Middle School,
Alukkuli PO,
Gopichettipalayam-638 452, Erode District.
9. R.Malathy,
Panchayat Union Middle School,
Alukkuli PO,
Gopichettipalayam-638 452, Erode District.
10. K.A.Sornakuzhandhaivel,
Panchayat Union Middle School,
Kottupullampalayam PO,
Gopichettipalayam-638 452, Erode District.
11. K.R.P.Sakthivel,
Panchayat Union Middle School,
S.Ganapathipalayam - Sarandapore PO,
Kugalore (Post)
Gopichettipalayam, Erode District.
12. A.Haseenabanu,
Panchayat Union Middle School,
P.Vellapalayam & (PO),
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W.P.Nos.6245, 5684 & 5685 of 2010
Gopichettipalayam-638 452, Erode District.
.. Respondents
Prayer in WP.No.5684/2010:- Writ petition filed under Article 226 of the
Constitution of India, for a Writ of Certiorarified Mandamus, calling for the records
of the 3rd respondent made in the panel drawn as on 01.01.2009 and quash the
same in so far as inclusion of respondents 4 to 12 over and above the petitioners
are concerned and and consequently directing the respondents 2 and 3 to prepare
a panel for B.T.Teacher consisting of person who are eligible to be promoted as
Head masters of Middle School in Gopichettipalayam, as on 01.01.2009 by placing
the petitioners over and above the respondents 4 to 12 i.e., over and above the
direct recruits who were given regular appointments on 01.06.2003 and
consequently effect promotions according to said panel.
WP.No.5685 of 2010
R.Maragatham
.. Petitioner
Vs.
1. The Director,
Elementary Education Office,
College Road,
Nungambakkam,
Chennai - 600 006.
2. The District Elementary Educational Officer,
Erode.
3. The Additional Elementary Education Officer,
Bhavani Taluk, Erode District.
4. S.Balasubramanian,
Panchayat Union Middle School,
Perayur, Kavindapadi (via),
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W.P.Nos.6245, 5684 & 5685 of 2010
Bhavani Taluk, Erode District.
5. R.Padmavathy,
Panchayat Union Middle School,
Sevakoundanur,
Bhavani Taluk, Erode District.
6. M.Shanmugam,
Panchayat Union Middle School,
Vairamangalam,
Bhavani Taluk, Erode District.
7. N.Kavitha,
Panchayat Union Middle School,
A.Perumapalayam, Kavindapadi (via),
Bhavani Taluk, Erode District.
.. Respondents
Prayer in WP.No.5685/2010:- Writ petition filed under Article 226 of the
Constitution of India, for a Writ of Certiorarified Mandamus, calling for the records
of the 3rd respondent made in the panel drawn as on 01.01.2009 and quash the
same in so far as inclusion of respondents 4 to 7 over and above the petitioners are
concerned and consequently directing the respondents 2 and 3 to prepare a panel
for B.T.Teacher consisting of person who are eligible to be promoted as Head
masters of Middle School in Bhavani Taluk as on 01.01.2009 by placing the
petitioners over and above the respondents 4 to 7 i.e., over and above the direct
recruits who were given regular appointments on 01.06.2003 and consequently
effect promotions according to said panel.
For Petitioner : Mr.A.Gokula Krishnan (for all WPs)
For Respondent : Mr.P.Raja, GA, (for R1 to R3)
in all WPs
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W.P.Nos.6245, 5684 & 5685 of 2010
COMMON ORDER
The writ petitions challenges the panel drawn on 01.01.2009 for BT Teachers for appointment as Head Master in Panchayat Union Middle Schools as on 01.01.2009. The writ is also for a direction to the respondents 2 and 3 to prepare a panel for B.T.Teacher who are eligible to be promoted as Head masters of Middle School in concerned Taluk as on 01.01.2009 by placing the petitioners over and above the direct recruits who were given regular appointments on 01.06.2003 and consequently effect promotions according to new panel.
2. The petitioners were appointed as Secondary Grade Teachers on various dates. Their services were regularized on the same day. The petitioners were promoted as BT Assistant from 24.06.2007. The promotion post for the Secondary Grade Teacher is BT Assistant. The post of BT Assistant is filled up by the direct recruitment and promotion from Secondary Grade Teachers in the ratio 1:2. A panel was prepared for promotion as on 01.01.2008 for the purpose of promotion to BT Assistant. The petitioners were placed at Sl.No.1 and 2 respectively. However in the panel prepared on 01.01.2009, instead of showing the petitioners as placed on 1 and 2, they were shown in place of 5 and 6.
3. It is stated that the respondents have not given proper reply as to why the petitioners were pushed down. The petitioners state that Sl.No.1 to 4 was http://www.judis.nic.in Page 6 of 15 W.P.Nos.6245, 5684 & 5685 of 2010 given to the direct recruit BT Assistant. Thus the result position is for the panel which has been prepared for promotion to middle school Head Masters. 1 to 4 places were given to direct recruit BT Assistants and rank 5 to 6 given to the promotee. It is the contention of the petitioners that the list could not have been changed. The petitioner states that the Government accepted the proposal of District Elementary Education by modifying the earlier G.O.s. The instructions reads as under:-
"The Government accept the proposals of Director of Elementary Education and direct that the orders issued in para 5 of the G.O.Ms.No.510, Education, dated 26.5.92 be modified as follows:-
i) When vacancies arise in the posts of Headmasters of Middle School (due to death, retirement and such resignation and due to creation of new posts etc.) such vacancies shall be filled up by promotion from among B.T. Assistant/Tamil Pandits appointed prior to 1.6.88. If no such suitable and qualified persons are available then it shall be filled up from among senior most of the following categories of teachers by drawing a combined seniority list.
(a) B.Ed. Grade teacher appointed in the Middle Schools;
(b) Tamil Pandits appointed in the Middle _Schools;
(c) Primary School H.M. qualified for B.Ed. or Tamil Pandit. If no qualified teachers in the above categories are available in the unit, the senior most among persons working as Secondary Grade teachers or in other cadres of trained teachers but qualified for B.Ed./Tamil Pandit drawing the similar scales of pay of Secondary Grade teachers may be considered, for promotion as Middle School Headmaster”
ii) The Unit for purpose of filling up of the post of Headmaster shall be
(a) In case of Government schools - All Government schools http://www.judis.nic.in Page 7 of 15 W.P.Nos.6245, 5684 & 5685 of 2010 will be taken as One Unit.
(b) In the case of Panchayat Union Schools such Panchayat Union will be treated as One Unit.
(c) In the case of Aided Schools - Each Aided school or each cluster of Aided Schools under single management will be considered as one Unit;
(d) In the case of Municipal/Township Schools, where the teaching staff are paid by Government, each Municipality/Township will be one unit .
(3) Schools in which additional Headmasters working due to the posting of B.Ed. Grade Headmaster shall continue to maintain then status as long as they continue in the posts; provided if they qualify themselves as B.Ed., Tamil Pandit, they may be posted in the vacancies of Middle School Headmasters post by transfer as per G.O.272, Education, dated 28.2.1972. Such of those additional Headmasters may be posted as regular Headmasters, based on thwir seniority by placing then names in the panel over others, mentioned in sub-para (1) above.
(4) The orders already issued under para-5 (iii) of G.O.Ms.No.510, Education, dated 26.5.92 are applicable to the aided and management schools.
(5) The instructions issued by Director of Elementary Education in his Rc.No.61356/ED 1/89, dated 14.12.92 in anticipation of the Government orders with regard to filling up the post of Headmaster, Panchayat Union Middle School is ratified. These orders shall take effect from 04.01.1992.
(6) Orders amending the Special Rules for Tamil Nadu Elementary Education Subordinate Services will issue separately. The Director of Elementary Education is requested to take necessary further action in the matter."
http://www.judis.nic.in Page 8 of 15 W.P.Nos.6245, 5684 & 5685 of 2010
4. The petitioners further states that persons who are at Sl.No.1 to 4 are direct recruits and who were selected as on 01.06.2006 and they could be regularized only after completion of their probation and which would have been only on 01.06.2008 and therefore they could not be made on senior to the petitioners. The respondents have filed a counter. According to the respondents, the respondents No.4 to 6 in the writ petition were initially put on consolidated pay and they were regularized with effect from 01.06.2006. They would state that the submission that direct recruit could be regularized only after completion of probation is wrong. According to the petitioners once the Government has regularized the services of the respondents from 01.06.2006. The date of appointment alone will govern the seniority between the direct recruits and the promotees.
5. Heard the counsel for the parties.
6. Rule 35AA of the Tamil Nadu Subordinte Service Rules, reads as under:-
"*(aa) The seniority of a person in a service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the services, class, category or grade;
http://www.judis.nic.in Page 9 of 15 W.P.Nos.6245, 5684 & 5685 of 2010 Provided that where the junior appointed by a particular method or recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed:
Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-se-seniority: Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category or grade on the same jay, their inter-se-seniority shall be decided with reference to their age.
‘Substituted in G.O.Ms.No.523, P & AR, dt.4-6-82, w.e.f.13-7-78."
7. A perusal of Rule 35AA would state that the date of joining would determine the seniority. The direct recruit BT Assistant were regularized with effect from 01.06.2006. There is nothing in the Rule which says that the date of joining would be only from the completion of probation. Admittedly the petitioners have been promoted only from 26.02.2007. The petitioners therefore has been placed below the direct recruited BT Assistant and therefore in the panel for the promotion to the middle school Head Masters. The direct recruits have been placed senior to the petitioners.
8. The learned counsel for the petitioner reliance on Rule 36A of the Tamil Nadu Subordinate Service Rules, 36A of the Rules. Rule 36A reads as under:-
http://www.judis.nic.in Page 10 of 15 W.P.Nos.6245, 5684 & 5685 of 2010 "36.A. Appointment by Recruitment by Transfer-Appointments by recruitment by transfer to a class or category in a State service from among the holders of posts in a Subordinate Service, shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal. "
A perusal of the Rule would show that Rule 36A is not applicable to the facts of this Case. The present case is regarding to the promotion from BT Assistant to middle school Head Master. Rule 36A only says a person would be eligible for promotion only after he completes his probation.
9. It is the contention of the petitioner, till the probation is not completed i.e., 01.01.2008, the respondents in the writ petition could not be held eligible for promotion and therefore in the panel drawn on 11.01.2018, the respondents could not have been shown senior to the petitioner. This cannot be accepted. A perusal of the facts would show that the respondents 4 to 6 were appointed on various dates on consolidated pay and they were regularized with effect from 01.01.2006. Once they have been regularized as BT Assistant from 01.01.2006, there is no question of probation. The date of regularization is the date of joining. Rule 36A is therefore not applicable to the facts of this Case. The reliance of the petitioners in G.O.400 is again irrelevant. The said G.O. does not deal with the fixation of seniority between direct recruits BT Assistant and promotee BT Assistant. The Rule if read the way that petitioners want to read G.O.400, which is that only Secondary Grade Teachers will have priority to be appointed as middle school http://www.judis.nic.in Page 11 of 15 W.P.Nos.6245, 5684 & 5685 of 2010 Head Master will lead to absurd consequences. It cannot be said that direct recruit BT Assistant cannot be considered for appointment as the middle school Head Masters till the promotee BT Assistants i.e., a person promoted from Secondary Grade Teacher is available. This is not the intention of the G.O.400.
10. In view of the above, the writ petitions are dismissed. No Costs.
26.09.2019
Index : Yes / No
Internet : Yes /No
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To
1. The Director,
Elementary Education Office,
College Road,
Nungambakkam,
Chennai - 600 006.
2. The District Elementary Educational Officer, Erode.
3. The Assistant Elementary Education Officer, Nambiyur, Erode District.
4. A.Ganesan, Panchayat Union Middle School, E.Settipalayam Taluk & Post, Nambiyur Via, Gopichettipalayam Taluk, Erode District.
5. P.Umapathy, http://www.judis.nic.in Page 12 of 15 W.P.Nos.6245, 5684 & 5685 of 2010 Panchayat Union Middle School, E.Settipalayam Taluk & Post, Nambiyur Via, Gopichettipalayam Taluk, Erode District.
6. K.S.Krishnaveni, Panchayat Union Middle School, E.Settipalayam Taluk & Post, Nambiyur Via, Gopichettipalayam Taluk, Erode District.
7. The Assistant Elementary Education Officer, Gopichettipalayam, Erode District.
8. S.Sumathi, Panchayat Union Middle School, Nallagoundampalayam (PO), Gopichettipalayam-638 452, Erode District.
9. K.Dhanajothi, Panchayat Union Middle School, Nallagoundampalayam (PO), Gopichettipalayam-638 452, Erode District.
10. N.K.Rajasundari, Panchayat Union Middle School, Nallagoundampalayam (PO), Gopichettipalayam-638 452, Erode District.
11. K.Vijayalakshmi, Panchayat Union Middle School, P.Vellapalayam & (PO), Gopichettipalayam-638 452, Erode District.
12. P.Geetha, Panchayat Union Middle School, Alukkuli PO, Gopichettipalayam-638 452, Erode District.
13. R.Malathy, Panchayat Union Middle School, Alukkuli PO, Gopichettipalayam-638 452, Erode District. http://www.judis.nic.in Page 13 of 15 W.P.Nos.6245, 5684 & 5685 of 2010
14. K.A.Sornakuzhandhaivel, Panchayat Union Middle School, Kottupullampalayam PO, Gopichettipalayam-638 452, Erode District.
15. K.R.P.Sakthivel, Panchayat Union Middle School, S.Ganapathipalayam - Sarandapore PO, Kugalore (Post) Gopichettipalayam, Erode District.
16. A.Haseenabanu, Panchayat Union Middle School, P.Vellapalayam & (PO), Gopichettipalayam-638 452, Erode District.
17. S.Balasubramanian, Panchayat Union Middle School, Perayur, Kavindapadi (via), Bhavani Taluk, Erode District.
18. R.Padmavathy, Panchayat Union Middle School, Sevakoundanur, Bhavani Taluk, Erode District.
19. M.Shanmugam, Panchayat Union Middle School, Vairamangalam, Bhavani Taluk, Erode District.
20. N.Kavitha, Panchayat Union Middle School, A.Perumapalayam, Kavindapadi (via), Bhavani Taluk, Erode District.
21. The Additional Elementary Education Officer, Bhavani Taluk, Erode District.
http://www.judis.nic.in Page 14 of 15 W.P.Nos.6245, 5684 & 5685 of 2010 SUBRAMONIUM PRASAD, J.
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