Madras High Court
S.Sebasthiar vs The District Educational Officer on 12 December, 2022
Author: M.Dhandapani
Bench: M.Dhandapani
W.P(MD)No.6656 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.12.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P(MD)No.6656 of 2020
and
W.M.P(MD)No.6007 of 2020
S.Sebasthiar ... Petitioner
Vs.
1.The District Educational Officer,
Musiri, Trichy District.
2.The Block Educational Officer,
Musiri, Trichy District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, seeking for issuance of a Writ of Certiorarified Mandamus, calling
for the records relating to the impugned proceedings bearing Mu.Mu.No.
117/A1/2019 dated 15.05.2020 issued by the second respondent and
quash the same and direct the respondents to grant the consequential
monetary and service benefits to the petitioner.
For Petitioner : Mr.K.Samidurai
For Respondents : Mr.J.Ashok,
Additional Government Pleader
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W.P(MD)No.6656 of 2020
ORDER
This writ petition has been filed to quash the impugned proceedings bearing Mu.Mu.No.117/A1/2019 dated 15.05.2020 issued by the second respondent and to direct the respondents to grant the consequential monetary and service benefits to the petitioner.
2. The case of the petitioner is that initially he was appointed at Secondary Grade Teacher on 30.08.2001 at St. Mariyannai School, Thottiam. The said school is a minority aided school. After completion of ten years of service, he was granted Selection Grade in the post of Secondary Grade Teacher and his pay was fixed as Rs.13,060 + 2800 GP + 750 PP. Thereafter, the petitioner migrated from aided school to Government School. He was awarded with Selection Grade Pay in the post of Secondary Grade Teacher even in the aided school itself, but, without fixing the pay in the time scale of pay of Selection Grade Secondary Grade post, his pay was fixed in the scale of pay of Rs.5200-20200-PB1-GP2800. Hence, the petitioner has given a representation to the respondents to refix the salary as per G.O.Ms.No.1296 and G.O.Ms.No.234 by allowing the minimum of the 2/12 https://www.mhc.tn.gov.in/judis W.P(MD)No.6656 of 2020 time scale of pay of Selection Grade Secondary Grade Post ie., Rs. 9300+4300+13,600. Subsequently, the second respondent re-fixed the scale of pay as Rs.9300+4300+13,600.
3. While the matter stood thus, the petitioner was issued with the show-cause notice, dated 29.08.2019, stating that there is a complaint against the re-fixation of the petitioner's salary. For which, the petitioner has also submitted a detailed explanation on 05.09.2019. However, the second respondent passed the impugned order cancelling the re-fixation order, dated 07.05.2018, by the impugned proceedings, dated 15.05.2020 and reduced the scale of pay from Rs.9300+4300+13,600 to Rs. 5200+7500 PP+2800GP and also passed an order of recovery of excess payment of salary. Aggrieved by the same, the petitioner has filed this writ petition with the aforesaid prayer.
4. The learned counsel appearing for the petitioner would submit that the issue raised in this writ petition is no longer res integra. A learned Single Judge of this Court in W.P(MD)No.17205 of 2020, vide order dated 01.04.2022, has held that any Teacher, who worked in aided 3/12 https://www.mhc.tn.gov.in/judis W.P(MD)No.6656 of 2020 school, would always like to migrate to Government service for betterment of their service benefits and career. Such option exercised by the petitioner cannot be put against him and on that basis, the denial of pay scale on par with other similarly placed teachers, would be grossly discriminatory and would cause grave injustice to the interest of the petitioner. In fact the improper fixation of pay scale, without taking into account the past service of the petitioner in the aided schools, would amount to violation of equality clause enshrined in Article 14 of the Constitution of India and allowed the writ petition. Accordingly, he prayed for extending the similar relief to the petitioner also.
5. Per contra, the learned Additional Government Pleader appearing for the respondents would submit that earlier decision referred to by the learned counsel appearing for the petitioner in W.P(MD)No. 17205 of 2020, vide order, dated 01.04.2022, was not accepted by the Division Bench in W.A(MD)No.627 of 2022 and the Division Bench followed the dictum laid down by the Honourable Apex Court in the case of Palure Bhaskar Rao and others -Vs- P.Ramaseshaiah and others reported in (2017) 5 SCC 783, wherein the Apex Court has held that once 4/12 https://www.mhc.tn.gov.in/judis W.P(MD)No.6656 of 2020 an employee undergoes a transfer by way of a recruitment to a different cadre or to a different service, the employee loses his lien in the parent cadre/service. In that process, there is an induction to a new cadre and sometimes with a different type of duty. Such induction has distinct consequence on the career of the employee different from what would have been the normal course had he continued in the parent service.
6. In the present case, earlier the petitioner was appointed as a Secondary Grade Teacher in an aided school and thereafter, he participated in the selection process to the Post of Secondary Grade Teacher through Teachers Recruitment Board and appointed as Secondary Grade Teacher on 11.12.2012. It was a fresh appointment in Government service and not a transfer or migration transfer as stated by the petitioner. Accordingly, his pay was fixed. However, on the representation of the petitioner, the pay of the petitioner was wrongly fixed in the pay scale of Rs.9300+34800+4300. As the pay of the petitioner was wrongly fixed, after giving necessary opportunity to the petitioner, the impugned order has been passed, which is perfectly in order and there is no need to interfere with the same. 5/12 https://www.mhc.tn.gov.in/judis W.P(MD)No.6656 of 2020
7. Heard the learned counsel appearing for the petitioner, the learned Additional Government Pleader appearing for the respondents and perused the materials produced before this Court.
8. The petitioner was initially appointed as a Secondary Grade Teacher in an aided school and after completion of ten years of service, he was awarded with selection grade. Subsequently, on his own volition, the petitioner participated in the examination conducted by the Teachers Recruitment Board and got selected as a Secondary Grade Teacher and his pay was fixed in the scale of pay of Rs.5200-20200-PB1-GP2800 instead of fixing the salary in the time scale of pay of Selection Grade Secondary Grade post. Aggrieved by the same, the petitioner made a representation and considering the same, his pay was re-fixed in the pay scale of Rs.9300-34800+4300. Subsequently, the impugned order has been been reducing the scale of pay of the petitioner to Rs.5200-20200- PB1-GP2800 stating that the petitioner's appointment is a fresh appointment in Government service and not a transfer or migration and therefore, he is eligible to get the pay scale of Rs.5200-20200-PB1- GP2800 .
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9. Earlier, when the similar issue came up before a learned single Judge in W.P(MD).No.6285 of 2018, the learned Single Judge dismissed the writ petition filed by the petitioner therein, which was confirmed by the Division Bench in W.A(MD)No.627of 2022, wherein the Division Bench followed the decision of the Honourable Apex Court in P alure B haskar Rao and others -Vs- P. Ramaseshaiah and others reported in (2017) 5 SCC 783. The relevant portion of the said decision is extracted hereunder:
“25. The Hon'ble Supreme Court in a judgment reported in (2017) 5 S C C Page 783 ( Palure B haskar Rao and others -Vs- P. Ramaseshaiah and others)in Paragraph Nos.14 and 15 has held as follows:
“14.Transfer and recruitment by transfer are entirely two different concepts. No doubt transfer can be from one category to another category or within the class if the rule permits interchangeability of the categories within a class. A ny other transfer both intra-category and inter-category are in fact, under law is a selection and appointment by way of a transfer from one category to another or from one class to another class or from one service to another. I f it is a transfer simpliciter it conveys a different meaning and if it is a recruitment by transfer, as we have clarified above conveys a different concept altogether. The latter is a mode of selection/recruitment to a service.
15.Transfer in relation to service simply means a change of a place of employment within an organization. Such transfer being to a similar post in the same cadre and therefore, obviously such a transfer does not result in the termination of his lien in the parent cadre but recruitment by transfer is a different service concept altogether. I t is a method of recruitment to a service, in the instant case to a different category in the same service initially and thereafter, to a different service altogether. Once an employee undergoes a transfer by way of a recruitment to a different cadre or to a different service, the 7/12 https://www.mhc.tn.gov.in/judis W.P(MD)No.6656 of 2020 employee loses his lien in theparent cadre/service. I n that process, there is an induction to a new cadre and sometimes with a different type of duty. Such induction has distinct consequence on the career of the employee different from what would have been the normal course had he continued in the parent service.
Thus the recruitment by transfer terminates the lien of an employee in the parent cadre/service whereas transfer simpliciter to a similar post in the same cadre results only in change of place of employment and therefore, there is no termination of lien ( see.V. Jagannadha Rao Vs.State of A . P and B . Thirumal V. Ananda Sivakumar)”
26.We are not in agreement with the judgment of the Division Bench in W.A.No.3868 of 2019 dated 16.10.2020 for the following reasons:
(i).The judgment of the Hon'ble Supreme Court reported in in (2017) 5 S C C Page 783 ( Palure B haskar Rao and others -Vs P. Ramaseshaiah and others) as referred supra has not been taken into consideration.
(ii).Rule 2(b)(ii) of Special Rules for Tamil Nadu Higher Secondary Educational Service relating to 50% reservation for direct recruitment has not been brought to the notice of the Division Bench.
(iii).Rule-8 relating to fixation of two different periods of probation for the candidates selected through direct recruitment and transfer of service has not been brought to the notice of the Division Bench.8/12
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27.In view of the above said circumstances, we respectfully follow the judgement of the Hon'ble Supreme Court reported in in (2017) 5 S C C Page 783 ( Palure B haskar Rao and others
-Vs- P. Ramaseshaiah and others).
28. The petitioner has referred to the dismissal of SLP (Civil).No.5633 of 2021 dated 12.04.2021 which challenged the Division Bench judgment in W.A.No.3868 of 2019. A perusal of the order of Hon'ble Supreme Court reflects that the Special Leave Petition has been dismissed without assigning any reasons. The Hon'ble Supreme Court in a judgment reported in (2019) 4 S C C Page 376 ( Khoday Distilleries Limited (Now known as Khoday India Limited) and others -Vs- Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (Under Liquidation) Represented by the Liquidator) in Paragraoh No.26.2 has held as follows:
“26.2. We reiterate the conclusions relevant for these cases as under ( Kunhayammed case, S CC P.384).
“(iv). An order refusing special leave to appeal may be a non-speaking order of a speaking one. I n either case, it does not attract the doctrine of merger. A n order refusing special leave to appeal does not stand substituted in place of the order under challenge. A ll that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v). I f the order refusing leave to appeal is a speaking order i.e.gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of A rticle 141 of the Constitution.9/12
https://www.mhc.tn.gov.in/judis W.P(MD)No.6656 of 2020 Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the A pex Court of the country. B ut, this does not amount to saying that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi). Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii). On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Order 47 R ule 1 C PC”
10. The said decision is squarely applicable to the case on hand. Hence, applying the ratio laid down by the Honourable Division Bench following the decision of the Honourable Apex Court, the prayer sought for by the petitioner cannot be granted. Accordingly, this writ petition is dismissed. No Costs. Consequently, connected miscellaneous petition is closed.
12.12.2022 Index: Yes/No 10/12 https://www.mhc.tn.gov.in/judis W.P(MD)No.6656 of 2020 pm To:
1.The District Educational Officer, Musiri, Trichy District.
2.The Block Educational Officer, Musiri, Trichy District.
M.DHANDAPANI, J.
pm W.P.(MD)No.6656 of 2020 11/12 https://www.mhc.tn.gov.in/judis W.P(MD)No.6656 of 2020 12.12.2022 12/12 https://www.mhc.tn.gov.in/judis