Madras High Court
M.Balasubramanian vs The State Of Tamil Nadu on 18 April, 2013
W.P.(MD)No.6033 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: 25.11.2021
Pronounced on: 02.06.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.6033 of 2016
and
W.M.P.(MD)No.5340 of 2016
M.Balasubramanian ... Petitioner
vs.
1.The State of Tamil Nadu,
represented by the Principal Secretary
to Government,
School Education Department,
Fort St. George, Chennai 600 009.
2.The Director of School Education,
College Road, Chennai 600 006.
3.The Chief Educational Officer,
Madurai 625 002.
4.The District Educational Officer,
Usilampatti 625 532, Madurai District.
5.The Headmaster,
Government Higher Secondary School,
Usilampati 625 532, Madurai District. ... Respondents
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https://www.mhc.tn.gov.in/judis
W.P.(MD)No.6033 of 2016
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, to call for the records of the first
respondent made in G.O.Ms.No.69, School Education (M.1) Department, dated
18.04.2013 and quash the same and to direct the respondents to extend the
petitioner the benefit of G.O.Ms.No.258, School Education (M.1) Department,
dated 06.09.2010, which was implemented in pursuance of the order, dated
14.07.2009, of the Honourable Division Bench in W.P.No.8747 of 2009 and in
accordance with G.O.Ms.No.62, Finance (CMPC) Department, dated 09.03.2015,
within a stipulated period.
For Petitioner : Mr.B.Alagarsamy
For Respondents : M/s.D.Farjana Ghoushia
Special Government Pleader
*****
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified Mandamus, to quash the impugned G.O.Ms.No.69, School Education (M.1) Department, dated 18.04.2013 and to direct the respondents to extend the petitioner the benefit of G.O.Ms.No.258, School Education (M.1) Department, dated 06.09.2010, which was implemented in pursuance of the order, dated 14.07.2009 of the Honourable Division Bench in W.P.No.8747 of 2009 and in accordance with G.O.Ms.No.62, Finance (CMPC) Department, dated 09.03.2015, 2/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6033 of 2016 within a stipulated period.
2. The petitioner was appointed as a Secondary Grade Teacher on 22.09.1977 and was awarded Selection Grade on 22.09.1987 and Special Grade on 22.09.1997 in the post of Secondary Grade Teacher and then the petitioner retired on superannuation on 30.11.2010 as Secondary Grade Teacher itself. The petitioner did not get an opportunity to get promotion based on the Secondary Grade qualification and seniority, since the petitioner was serving in the High / Higher Secondary School education. The contention of the petitioner is that if the petitioner was appointed in the Elementary Education Department then, the petitioner would get an opportunity of promotion as Primary School Head Master and then as Middle School Head Master.
3. On the introduction of the 5th Pay Commission, there was a recommendation that the Secondary Grade Teachers working in High School / Higher Secondary School and Primary School Head Masters were given the same time scale of pay benefits upto 01.06.1988. But, the persons holding Primary 3/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6033 of 2016 School Head Master in Elementary Education were given higher time scale of pay than the teachers working in Secondary Grade Teachers in High / Higher Secondary Schools. Hence, there was a disparity between similarly situated persons in the Primary School Secondary Grade Teacher and the High / Higher Secondary School Secondary Grade Teacher. The Government issued G.O. Ms. No. 216, Finance (Pay Cell) Department, dated 22.03.1993. In that the Government tried to remove the disparity.
4. One Govindarajan, a Special Grade Secondary Grade Teacher in Government Higher Secondary School Kundadam, Erode District had filed O.A.No.8276 of 1997 before the Tribunal with a prayer to direct the respondents to refix the salary in the time scale of pay as Rs.2000-60-2300-75-3200 and pay arrears and consequential benefits is with effect from 01.06.1988 as per G.O. Ms. No.216, Finance (Pay Cell) Department, dated 22.03.1993. The Tribunal, vide order, dated 07.10.1998, allowed the O.A. in terms of G.O. Ms. No. 216 Finance (Pay Cell) Department, dated 22.03.1993.
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5.The respondents preferred an appeal with extraordinary delay and the Division Bench dismissed the Writ Appeal on 14.07.2009 with cost of Rs.10,000.
Against this order, the respondents preferred SLP in CC.No.2746 of 2010 and the same was dismissed on 23.04.2010. Thereafter, the respondents implemented the order, vide G.O.Ms.No.258, School Education (M.1) Department, dated 06.09.2010. However, the Government Order has stated that it is restricting the benefit only to Govindarajan, the petitioner claimed that he is similarly placed person and he is entitled to the benefits of the order.
6. In the meantime, the first respondent has issued a G.O.Ms.No.69, School Education (M.1) Department, dated 18.04.2013, stating in Paragraph No.6(i) that the benefits covered in G.O.Ms.No.258, School Education (M.1) Department, dated 06.09.2010, as Secondary Grade Teachers i.e., 2044 individuals in Government High School and 526 individuals in Aided Schools and in in Paragraph No.6(iv) it is stated that the same is not applicable to others. In the said Government Order, it is stated that it will not be applicable to those who approaches the Court in future. Again, the Government issued another 5/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6033 of 2016 Government Order in G.O.Ms.No.62 Finance (CMPC) Department, dated 09.03.2015, wherein, certain amendments to G.O.Ms.No.216 Finance (Pay Cell) Department, dated 22.03.1993, was carried out.
7.The petitioner claims that the he submitted several representations during the service period and through Teachers Association and at last on 07.03.2016, requesting to extend the benefit of G.O.Ms.No.258, School Education (M.1) Department, dated 06.09.2010, the petitioner has prayed to quash the G.O.Ms.No.69, School Education (M.1) Department, dated 18.04.2013 and to direct the respondents to extend the benefit of G.O.Ms.No.258, School Education (M.1) Department, dated 06.09.2010 and also G.O.Ms.No.62 Finance (CMPC) Department, dated 09.03.2015, within a stipulated period.
8.The respondents submitted that the issue of granting benefits under G.O.Ms.No.216 Finance (Pay Cell) Department, dated 22.03.1993, was agitated in several writ petitions and the same were allowed. Subsequently the 6/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6033 of 2016 Government preferred writ appeals and the same was dismissed. Since several claims were submitted before the Government, the Government directed the Legal Department to file a Review Petition before the High Court of Madras. The Government preferred a Review Petition in Review Petition No.227 / 2015 and the Review Petition was disposed of with certain directions. The review application was taken up along with several writ appeals and writ petitions, wherein it was held the issue cannot be reagitated again and has held that the benefits shall be notionally calculated and the monetary benefits shall be payable on and from 01.03.2017
9. This Court has considered regarding the issue of Selection Grade/Special Grade elaborately in W.P.(MD)No.3186 of 2016 and the same is extracted hereunder:
“7. The concept of selection / special grade is that the government employees are entitled to “selection grade” if the person is stagnating is the same post without promotion for 10 years and entitled to “special grade” if the person is stagnating is the same post without promotion for 20 years. The G.O. Ms. No. 666 Finance (Pay Commission) dated 27.06.1089 was issued cancelling the selection / special grade. Thereafter the scheme of granting selection / special grade was reintroduced vide G.O. Ms. No. 304 Finance (Pay Commission) Department dated 7/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6033 of 2016 28.03.1990. In partial modification in paragraph 9 of the G.O. 666, the G.O. 304 was issued granting the selection / special grade.
8. In Education Department prior to 01.06.1988 the post of Secondary Grade Teacher and Primary School Headmaster in Government Schools and Panchayat Union Schools are interchangeable and considered as same post. The grade pay of the Secondary Grade Teacher and the grade pay of the Primary School Headmaster are same, with an additional special pay to the Headmaster. After 01.06.1988 the post of Headmaster is a promotion post and in V pay Commission the Headmaster were paid Rs.
1400-2600 without special pay and the Secondary Grade Teacher were paid 1200-2040. The teachers who had worked in the Panchayat Schools / Government Schools in Secondary Grade Post were allowed to serve as Headmaster of Primary School with extra allowance to the post of Headmaster post. After 01.06.1988 the post of Headmaster is made as promotion post. Therefore a claim was submitted to add the service of Secondary Grade Post and Headmaster of Primary School for calculating the selection grade and special grade. The government issued G.O. Ms. No. 1381 Education Department dated 05.10.1990 wherein selection / special grade was granted to teachers who were holding the HM post on 01.06.1988 be awarded selection / special grade in the revised scales on or after 01.06.1988 by computing the “Secondary Grade Teacher and Primary School HM prior to 01.06.1988”. The G.O. also states that “at the post of HM carries higher scale of pay above that of the Secondary Grade Teachers, those promoted as HM after 01.06.1988 shall be allowed fixation of pay in the post of HM as provided under Fundamental Rules 22B. The persons promoted after 01.06.1988 opposed to fix under Fundamental Rules 22B and they prayed to grant selection / special grade as granted to HM by taking both secondary grade service and HM post. Since the same was declined, those persons filed petition before Tribunal in O.A. No. 2899, 3009 and 3010 of 1989 and the Tribunal has held that the classification is wrong and set aside the paragraph 3 and 4 of the G.O. Ms. No. 1381.
9. Hence the Government issued a G.O. Ms. No. 300 Education, Science and Technology Department dated 07.04.1994 wherein the grant of selection / special grade in G.O. 1381 was quashed and the benefit already 8/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6033 of 2016 disbursed were ordered for recovery. In the G.O. it has been categorically stated that the service of HM post alone will be taken for granting selection / special grade. In other words, the Secondary Grade post will not be taken into account while counting the service for Primary School HM. Unfortunately, the G.O. Ms. No.300 dated 07.04.1994 was not brought to the knowledge of this Court at the earliest point of time and there was total mess in this issue.
10. In the meanwhile, the government issued G.O. Ms. No. 216 Finance (Pay Commission) Department dated 22.03.1993, extending the selection / special grade to the “Secondary Grade Teachers in Middle School”, since they will not be having any promotional opportunities. It is pertinent to note that the G.O. is not stating to calculate both the Secondary Grade post + Primary School HM post to grant selection / special grade. It simply states to grant selection / special grade to Secondary Grade Teachers working in Middle School, since they are not having promotional opportunities. Until this period the issue was settled, however later point of time this G.O. 216 dated 22.03.1993 was misinterpreted.
11. Thereafter, the issue started exploding when the teachers in order to retain the wrong benefits granted under G.O. 1381 (which G.O. was quashed by Tribunal) started filing writ petitions and the wrong started perpetuating. Writ petition was filed in W.P. No. 8079 / 2005 and vide order dated 28.04.2008 the writ petitions were allowed. In another writ petition vide order dated 18.04.2001 the government was directed to consider the claim. Since several writ petitions were filed and allowed, helplessness griped the government. Hence pending writ petitions the government issued G.O. Ms. No. 207 School Education (G2) Department dated 30.09.2008 and G.O. states that pension benefits shall be granted and the government would incur an additional expenditure of Rs. 1,87,93,225/- and this is subject to the out come of the pending writ petitions.
12. Then the issue turned to an extreme level wherein the G.O. Ms. No. 210 School Education (G2) Department dated 14.08.2009 was issued. In this the teachers prayed to calculate the Secondary Grade Post service + Primary School HM service and thereafter fix the service in Middle 9/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6033 of 2016 School HM post and grant Selection / Special Grade. The said G.O. granted the benefits to the persons mentioned in the G.O. Then in G.O. Ms. No. 190 School Education (G1) Department dated 12.07.2010 was issued extending to some more persons by taking the Secondary Grade post + Primary School HM and grant selection / special grade in Middle School HM post. A correction G.O. was issued in G.O. Ms. No. 230 School Education (G1) Department dated 10.08.2010. Then G.O. Ms. No. 146 School Education (G1) Department dated 19.06.2012 was issued to some more persons to calculate Secondary Grade post + Primary School HM was taken to grant Middle School HM selection / special grade. In this G.O. it has been stated that more than six crores would be the financial implications for the 260 teachers. As pointed out supra the employee is entitled to selection / special grade if a person is “stagnating” in the same post. But now the teachers would be promoted as Primary School HM, then also they will demand to calculate the period of service in Primary School HM post. Then again the person would be promoted to Middle School HM, then also the person will demand to calculate both the secondary grade service + primary school HM and fix the same in Middle School HM post and grant selection / special grade. In short the entire service should be taken into account to grant selection / special grade. That too “along with promotion”, that is the high light of the issue.
13. Thereafter numerous government orders were passed. This Court has passed an order in W.P. No. 29644 / 2003 and 29645 / 2003 dated 21.03.2008 covering 61 persons and to implement the order the G.O. Ms. No. 234 School Education (G2) Department dated 10.09.2009 was issued wherein, the Secondary Grade post + Primary School HM was calculated. Again based on court’s order G.O. Ms. No. 270 School Education (G2) Department dated 20.09.2010 was issued. Likewise based on court’s order, G.O. Ms. No. 216 School Education (G2) Department dated 30.12.2011, G.O. Ms. No. 270 School Education (G2) Department dated 20.09.2010, G.O. Ms. No. 179 School Education (Elementary2) Department dated 06.09.2013, G.O. Ms. No. 180 School Education (S.E. 3(1)) Department dated 06.09.2013, G.O. Ms. No. 181 School Education (S.E.3(1)) Department dated 20.09.2010 were issued, wherein the Secondary Grade post + Primary School HM was calculated.
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14. These G.O. were passed in a fond hope that this issue will come to an end, but the issue could not see the end at all, inspite of so many G.O.s
15. This Court has allowed several petitions and the government finally filed review application in Rev. Appl. No. 227 / 2015 and the same was referred to Full Bench. The review application was taken up along with several writ appeals and writ petitions, wherein it was held the issue cannot be reagitated again and has held that the benefits shall be notionally calculated and the monetary benefits shall be payable on and from 01.03.2017.
16. This Court rejected the claims in several petitions and one such case is the order dated 09.12.2015 passed in W.A. (MD) No. 312 / 2011 in Division Bench headed by Justice V. Ramasubramanian and Justice N. Kirubakaran has held in paragraph 5, “that the employees who were in service in 1997-1998 as well as in the year 2002 did not rise a little finger either at the time of when the original applications were filed in the year 1997-1998 or at the time when the original application were allowed by the Tribunal in the year 2002”. And rejected the dead and stale claims.
17. Thereafter the Rev. Appl. (MD) No. 35 / 2018 dated 19.03.2018, W.A. 34 / 2017 dated 03.01.2019 and W.A. 73 / 2016 dated 03.01.2019 was passed dismissing the review applications / writ appeals filed by the government.
18. Under this background the present two writ petitions are considered. In W.P.(MD)No.3186/2016 the petitioner has attained superannuation and retired in the year 2006 and has filed the present writ petition in the year 2016, after a lapse of 10 years from the date of retirement. The petitioner in W.P.(MD)No.3187/2016 attained superannuation and retired in the year 2006 and has filed the present writ petition in the year 2016, after a lapse of 10 years from the date of retirement. Hence this Court following the order dated 09.12.2015 passed in W.A. (MD) No. 312 / 2011, rejects the claim of the petitioner on the ground of delay and latches, since the dead and stale claims cannot be entertained.
19. The petitioners relied on G.O. Ms. No. 210, 190 and 146 and these G.O.s are passed in order to implement the orders of this Court. The 11/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6033 of 2016 petitioners ought to establish their right based on any provisions of law, rules, regulations and any government order passed based on the any policy decision of the government. In other words, if the government order is passed on the basis of the policy decision of the government i.e. G.O. passed in rem is applicable to all. The petitioners cannot claim any right to any government order which were passed in order to obey the orders of the Court i.e. government order passed to person specific / “in persona” cannot be cited to claim any right. In fact several writ petitions are filed citing the G.O.s which were passed to obey the orders of this Court, if that is discouraged then pendency of the writ petitions would be considerably reduced.
20. This Court is of the considered opinion each case ought to be dealt with on its own merits. In the present case, the writ petitioner in W.P. (MD)No.3186/2016 was regularized on 08.07.1977 in School Assistant Teacher post, had received Selection Grade on 08.07.1987 in the School Assistant Teacher post. Then promoted as Middle School HM on 12.10.1988. Then the petitioner received Selection Grade on 12.10.1998 in the post of Middle School HM. Then the petitioner is eligible for Special Grade on 12.10.2008, but since the petitioner retired on 30.04.2006, two years before the eligibility for Special Grade. Now the petitioner is seeking to take the two years from School Assistant Teacher post and grant Special Grade in the post of Middle School HM. Incidentally the petitioner has already received Selection Grade in the post of School Assistant Post. If the claim of the petitioner is accepted then the claim would be two selection grade for the same period which is absolutely illegal claim. Moreover as stated supra the selection / special grade cannot be granted once the promotion is granted to the petitioner. Therefore for the issue “whether the petitioner is eligible to get selection grade and special grade, even after promoted to the promotion post”, this Court is of the definite opinion that “the claim is illegal and unjust enrichment”.
21. The petitioner in W.P.(MD) No. 3187 / 2016 was appointed as B.T. Assistant on 11.01.1982, received Selection Grade in the B.T. Assistant post on 10.01.1992 and the said disbursement selection grade itself is wrong, since the petitioner was already promoted as Middle School HM on 12/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6033 of 2016 21.12.1988. If the 1988 is taken as promotion date, then the petitioner is eligible for selection grade in the Middle School HM post on 21.12.1998, since the earlier selection grade fixation is wrong, this selection grade was not granted to the petitioner. The petitioner would be eligible for special grade on 21.12.2008, but the same was not granted, since two years prior to eligibility for special grade the petitioner retired from service on 20.12.2006. Moreover as stated supra the selection / special grade cannot be granted once the promotion is granted to the petitioner. Therefore for the issue “whether the petitioner is eligible to get selection grade and special grade, even after promoted to the promotion post”, this Court is of the definite opinion that “the claim is illegal and unjust enrichment”.
22. The teachers are seeking to grant selection grade and special grade by calculating the service in Secondary Grade Teacher post and the promoted post of Primary School Headmaster. Also claiming to calculate the Secondary Grade post and Primary School Headmaster post along with the Middle School Headmaster post and grant special grade. In short the teachers are claiming both the promotion and as well as selection grade and special grade for their entire service. The concept has entirely changed by this plea to calculate the entire service including the promotion post. The claim to grant Selection Grade / Special Grade after availing promotion is illegal and unjust enrichment. The basic concept of Selection Grade / Special Grade is tampered with to obtain illegal claim. The very concept of granting selection grade and special grade is killed by these kind of writ petitions. This Court is of the considered opinion that the teachers are either eligible for promotion or for Selection / Special Grade and the teachers are not eligible for both.
23. For the reasons stated above the writ petitioners are not entitled to the benefits of the G.O. 210 dated 14.08.2009 and the writ petitions are dismissed. No costs. Connected miscellaneous petitions are closed.”
10. In the present case the petitioner was appointed as Secondary Grade Teacher on 22.09.1977 and was awarded Selection Grade on 22.09.1987 and 13/17 https://www.mhc.tn.gov.in/judis W.P.(MD)No.6033 of 2016 Special Grade on 22.09.1997 in the post of Secondary Grade Teacher. Since the petitioner was stagnating in the post of Secondary Grade Teacher without promotion, the petitioner was granted selection grade and special grade. In such circumstances the petitioner cannot claim that even though he was not promoted as Primary School HM, he should be granted promotion scale of pay and fix selection grade pay of Primary School HM and special grade pay of Primary School HM. The petitioner retired on superannuation on 30.11.2010 and the petitioner is entitled to the benefits of stagnation increment for servicing 30 years in the Secondary Grade post without promotion on 22.09.2007 as per G.O.Ms.No. 241 Finance (PC) Department, dated, 01.04.1981 and G.O.Ms.No.562 Finance PC Department, dated, 28.09.1998. If any person had rendered service in the same post and stagnating in the same post without any promotion, then a stagnation increment is eligible. In the present case the petitioner had stagnated for 30 years in the same post of Secondary Grade Teacher and is eligible for stagnation increment as per G.O. Ms. No. 241 and 562. But the petitioner not eligible for any other benefits as claimed by the petitioner more so is not eligible for the benefits of G.O. Ms. No. 258 and 62 as claimed in the prayer. Hence the petition is devoid of merits and is liable to be dismissed.
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11. Hence, for the reasons stated above the Writ Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
02.06.2022 Index : Yes / No Internet : Yes tmg Note:
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.15/17
https://www.mhc.tn.gov.in/judis W.P.(MD)No.6033 of 2016 To
1.The Principal Secretary to Government, State of Tamil Nadu, School Education Department, Fort St.George, Chennai 600 009.
2.The Director of School Education, College Road, Chennai 600 006.
3.The Chief Educational Officer, Madurai 625 002.
4.The District Educational Officer, Usilampatti 625 532, Madurai District.
5.The Headmaster, Government Higher Secondary School, Usilampati 625 532, Madurai District.16/17
https://www.mhc.tn.gov.in/judis W.P.(MD)No.6033 of 2016 S.SRIMATHY, J tmg Order made in W.P.(MD)No.6033 of 2016 02.06.2022 17/17 https://www.mhc.tn.gov.in/judis