Madras High Court
State Of Tamil Nadu vs K. Venkateshwaran on 24 January, 2019
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24/1/2019
CORAM
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.165 of 2019
1.State of Tamil Nadu
Rep. by its 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 Joint Director,
(Vocational) Education
College Road,
Chennai - 600 006.
4.The Chief Educational Officer,
Ramanathapuram
Tamil Nadu 600 015.
5.The District Educational Officer
Ramanathapuram ... Appellants
Vs.
1.K. Venkateshwaran
2.The Secretary,
Rajah's Higher Secondary School,
http://www.judis.nic.in Ramanathapuram ... Respondents
2
PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent,
against the order made in W.P.No.11668 of 2013, dated 1/8/2017.
For Appellants : Mr.K.Karthikeyan
Government Advocate.
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JUDGMENT
(Judgment of the Court was delivered by SUBRAMONIUM PRASAD, J) Aggrieved by the order dated 1/8/2017, made in W.P.No.11668 of 2013, allowing the writ petition, filed for a writ of mandamus, directing the respondents therein, to approve the services of the first respondent, as Vocational Instructor as provided for, under G.O.Ms.No.35, dated 9/2/2007 and grant all attendant benefits, viz., seniority and other monetary benefits thereon, State of Tamil Nadu has come up by filing the instant writ appeal.
2. The writ petitioner/first respondent was appointed as Vocational Instructor, in General Mechanical Engineering, in the second respondent School, on 17/8/1996, in a sanctioned post by the Management. However, the education department has not considered the first respondent herein, for approval, as full time Vocational http://www.judis.nic.in 3 Instructor till date, though the second respondent School submitted for particulars and details of the first respondent, in terms of G.O.Ms.No.35, dated 9/2/2007.
3. Government have issued G.O.Ms.No.35 dated 09.02.2007 which read as under:-
“ABSTRACT Higher Secondary Education – Technical Education – those part time teachers having full qualification, to appoint them in the vacant post on the priority basis – order issued.
School Education (VE) Department
G.O.Ms.No.35 Date: 09.02.2007
Read
1. G.O.(2D) No.46/ School Education /(VE) Dept. dated 12.09.2006.
2. Letter by the Director School Education No. 101568/W26/04, dated 08.09.2006 and 13.12.2006.
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ORDER It is notified that “during the subsidy sessions of Academic year of 2006-2007 of School Education Department, it was announced that “ in the Higher Secondary Schools of Government and Aided School, by the Parent Teachers Association / Management having been appointed as part time Vocational Teacher on temporary basis, those 213 teachers having secured full educational qualification being appointed and serving in the said post to be absorbed in the vacant post by the permission granted by the Government to bring their appointment under regular time scale of pay on priority basis, the Hon'ble Chief Minister has issued order in this http://www.judis.nic.in regard.” 4
2.In this connection, the Director of School Education has given his proposal in the following manner:-
(i) those 12 part time Vocational Teachers who are not fully qualified, on granting them short term training, that having qualified in the said training on 08.12.1999 they shall be absorbed as Technical Education Teacher Grade-II, in this regard vide G.O.No.46, School Education, dated 12.09.2006 an order was issued.
(ii) Now at the Government and Aided Schools 117 first grade posts and 84 second grade posts are lying vacant, in the 117 posts the second grade employees are promoted as first grade employees and while appointing them there would exist vacancies of 201 post to second grade.
(iii) the 622 part time Vocational Education Teacher who have been receiving their pay through Parent Teachers Association, are serving in the post in which government has not granted permission. All of them have secured full educational qualification of Technical Educational Instructor.
Among them before 20.09.1998 having been appointed as Full Time Technical Instructor, after 20.09.1998 those 44 part time Technical Instructors and which includes two other technical Instructors who have served continuously in various schools.
3.In 201 vacant posts as mentioned in Para 2(II) supra, those fully qualified part time Technical Instructors to placed in the grade-II an be appointed in the pay scale equivalent to Rs.4500-125-6000, which has been proposed by the Director of School Education.
4.The Government on considering the above said proposal by the Director of School Education, those 201 temporary part time Technical Instructors, who is to be appointed have not been sponsored through Employment Officer, they have been appointed through Parent – Teachers Association and have been serving, therefore there is no possibility of following Communal Rotary System. As mentioned in G.O.(Ms)No. 790 Labourer and Employment Department dated 05.07.1971, even though http://www.judis.nic.in they have been fully qualified, as they have been appointed after 5 05.07.1971, on granting relaxation to this order, as per the letter of Director of School Education in No.101568/W26/04 dated 13.12.2006 with enclosure of 201 fully qualified part time Technical Instructors, those 201 technical Instructors are to be placed in the second grade, in the pay scale of Rs.4500-125-6000, to appoint them on the priority basis, permission is granted to the Director of School Education.
5.This order is issued with the consent of Finance Department vide U.O.No.35/SS(DrKSG)/2007 dated 09.02.2007.
//BY ORDER OF THE GOVERNOR// M.Kutralingam Secretary to Government”
4. Government have issued G.O.(Ms) No.69, School Education Department, dated 20.03.2007, regularising the services of Technical Education Teachers Grade II, and the order reads as hereunder:-
Abstract School Education - Higher Secondary education - Technical education
- Writ Petitions Nos.9780/95 and 14027/96 orders - 1049 Grade II Technical education teachers in the pay scale of Secondary grade teacher to upgrade as Grade - I Technical education teachers in the pay scale of Secondary grade teacher - order - issued.
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SCHOOL EDUCATION DEPARTMENT
G.O.(Ms) No.69 Date : 20.3.2007
Read
1. G.O.(Ms) No.834, Education, dated 23.9.94.
2. Order made in Writ petitions in W.P.No.9780/95 and 14027/96 dated 8.7.2004 made by the High Court, Madras.
http://www.judis.nic.in With reference to 1st read above in the Government Order, in 6 the pay scale of BT Teachers 1387 supernumarary post was created and along them to the fully qualified One Part time and tow part time technical educational instructors, on granting priority to the fully qualified and appoint them and the remaining fully qualified teachers as one Part time Technical education Teachers as on 16.10.1992 or thereafter the fully qualified two Part time Technical educational Instructors, it was order to appoint them in the vacancy existing in the post of Secondary Grade Teachers.
2. Among the one part time Technical Educational Instructor, some of them are serving as two part time instructors, they have claimed to grant the pay scale of BT Teachers to them and filed writ petitions before the Hon'ble High Court in W.P.Nos.9780/95 and 14027/96. The Hon'ble Court having heard, by its order dated 8.7.2004 has observed in the following manner:-
i) The unqualified Technical Educational Instructor appointed in the pay scale of Secondary grade Teacher, as per G.O.(Ms) No.834, dated 23.09.1994 the pay scale to trained BT Teachers in the post of Secondary grade teacher to be considered from the date of regularization of the service. Their seniority to be calculated in the similar manner from the date of regularization of their service.
ii) The seniority of the One Part time or two Part time instructors to be calculated from the date of joining the service.
iii) The notional Pay increment to be calculated from date of intended regularization.
iv) However for the reasons for granting the Time Scale of pay and notional Pay increments in this aspect arrears cannot be granted.
The Notional Pay increment granted to those on considering them, the Pay scale in the post of BT Teachers, should be paid from the date of order made by the High Court.
3. As per the direction mentioned in the order of the High Court, in enforcing the said order proposal of the Director of School http://www.judis.nic.in Education was sought for. The Director of School Education in his 7 letter, had stated that 1071 posts of Technical Instructors in Grade 2 to be upgraded as Grade - 1 and to appointment to be made, and as per the order of the High Court dated 8.7.2004, the above said 1071 Technical educational Instructors from 8.7.2004 onwards can be permitted at the Pay scale of BT Teachers.
4. The proposal of the Director of School Education the government has carefully considered at eh 1071 grade - 2 posts excluding 22 vacant posts the 1049, Grade - 2, serving as Technical Educational Instructors, as per the order of High Court, the Government has considered to allow the 1049 serving in the pay scale of Secondary Grade Teachers the technical educational instructors grade - II posts alone is upgraded as Technical educational Instructor grade - I in the pay scale of BT Teachers and to them as per the order dated 8.7.2004 as direction made by the Hon'ble High Court from the date of regularisation of their service the notional pay increment to be calculated, and to disburse the monetary benefits from the date of order dated 8.7.2004 the Government issues order.
5. This order is issued with the consent of Finance Department vide unofficial order No.101/JS TM/EdnII/07 dated 20.3.2007.
// BY ORDER OF THE GOVERNOR// M.Kutralingam Secy to Govt.
5. Vide, proceedings, in Na.Ka.No.101568/VI/E1/2004, dated 13.03.2009, the appellants had called for particulars of the fully qualified Vocational Instructors, appointed in the Government and Aided Higher Secondary Schools, who had been appointed by the Parent Teacher Association/Management and working without any break in service in the said schools, including the first respondent. The Chief http://www.judis.nic.in 8 Educational Officer, Ramanathauram, vide proceedings, dated 24/3/2009, called for certificate verification of the petitioner and the same was also duly complied with by the second respondent School. But the appellants herein have not regularised the services of the first respondent.
6. The first respondent has given a representation, dated 29/10/2012, to the appellants, in so far as, not regularising him in accordance with G.O.Ms.No.35, dated 9/2/2007. Since the representation has not been considered, writ petition has been filed to direct the respondents 1 to 3 therein to consider the representation, dated 29/10/2012.
7. A learned Single Judge, by order, dated 1/8/2017, in W.P.No.11668 of 2013, allowed the writ petition, by directing the respondents therein, to pass orders, approving the appointment of the first respondent as Vocational Instructor as provided under G.O.Ms.No.35, dated 9/2/2007, and to grant all attendant benefits, viz., seniority and other monetary benefits, within a a period of eight weeks from the date of receipt of the order made in W.P.No.11668 of 2013.
http://www.judis.nic.in 9
8. The State Government have challenged the said order, by filing the instant writ appeal.
9. Heard Mr.K.Karthikeyan, learned Government Advocate for the appellants and perused the materials available on record.
10. It is the contention of the State Government, that as per G.O.(Ms).No.35, School Education (VE) Department, Chennai, dated 09.02.2007, the name of the writ petitioner/first respondent, was not considered for approval, as he was appointed in a non-sanctioned post.
According to them, the first respondent is not qualified to hold the post of the Vocational Instructor. Though appointment is said to have been made in 1996, school has sent the proposal only in 2009.
11. On the other hand, the learned counsel for the first respondent would contend that similarly placed persons have been given the benefit, and referred to orders of this Court in W.P.Nos.20641 of 2008 etc batch, dated 29.08.2008, filed by one V.Sathivel Pandian and others, and the proceedings in R.C.No.101568/V1/E1/2004, dated http://www.judis.nic.in 10 11.02.2009, issued to a teacher Mr.V.Sakthivel Pandian, appointed on 02.12.1996, in Sir.M.C.Muthaiya Chettiar Boys Higher Secondary School, Chennai, which reads thus:-
"PROCEEDINGS OF THE TAMIL NADU SCHOOL EDUCATION JOINT DIRECTOR (VOCATIONAL) CHENNAI- 600 006. Na.Ka. No.101568/V1/E1/2004 Dated. 11.02.2009 Sub : Higher Secondary Education - Vocational - Appointment - Government / Corporation / Government Aided School - Working in Fully Educationally Qualified Vocational Teacher - Regularised Pay Scale for Grade I dated I dated 09.02.2007 - issuing of Appointment Order - Regarding. Ref: 1. Government G.O.Ms.35 of Education Department (Vocational Education dated. 09.02.2007.
2. Government Letter No.26809/VE/2008 dated. 21.01.2009 Government Letter No.10380/VE/2007 dated. 04.05.2007 With reference to the Government Order and Letter cited Government / Corporation / Government Aided Schools and Teachers who are appointed by the Teachers Parents Association and working continuously preference has to be give them from the date of appointment and approved from 09.02.2007 and orders of appointments is issued as Vocational Instructor Grade I Order Issued.
As per the annexure and for the Teacher mentioned in column 2 the post mentioned in Column 5 is issued.
http://www.judis.nic.in 11 SI. Name of the The Date Government G.O. Full Time Post No Teacher and of No.35 Education Orders of . School in Appointment Department Appointment which he is and Group dated. Government Orders serving for which 09.02.2007 and Date and Details the Government appointment Letter in No. made by 10380/VE/2007-1 the Dated.04.05.2007 Teachers and Full time Parents Regularising from Association 04.05.2007 1 2 3 4 5 1 Thiru. 02.12.1996 09.02.2007 to Permission of V.Sakthivel Computer Appointment as per Pandian, Teacher the Government Sri.M.C.Mutha Order iya Chettiyar No.834/Edu/Dated:2 Boys Higher 3.09.1994 After Secondary retirement of School, Mr.G.Janardanan, Chennai - 600 Vocational Teacher,
084. Grade I on 21.02.2003 from Kanniyalampatti Government Higher Secondary School, Karur District, has been returned to the Department and Government Order (Education) No.69 dated 20.03.2007 Scale Pay 5500-175- 9000 The above Vocational Teacher Grade I is appointed as per the Vocation Teacher Government Order ( Ms ) No.35 dated. 09.02.2007 and Government Letter No.10380/VE/07-1 dated. 04.05.2007 in the same school as Full Time Vocation Teacher Grade I in the Scale of pay Rs.5500-175-9000 and the School Secretary is directed to get approval from the Chief Education Officer.
http://www.judis.nic.in 12 The Head Master is instructed to enter this necessary details of this appointment as Vocational Teacher Grade I in the Scale Register maintained by the School.
Further the said Teacher is eligible for Contributory Pension Scheme.
All the Certificates pertaining to the above Vocational Teacher has to be verified and to be approved and all the Other State Certificates are valued by the concern officers and then only the Salary will permitted to be paid.
The Chief Education Officer has to enter the above Employment of the Full time Vocational Teacher Grade I in the Employment Register maintained at the Office of the Chief Education Officer without fail.
Sd/-
Joint Director (Vocational)"
12. Similar appointment order dated 06.03.2012, has been issued to one T.E.Ramesh, Vocational Instructor, is reproduced:-
"PROCEEDINGS OF THE TAMIL NADU SCHOOL EDUCATION JOINT DIRECTOR (VOCATIONAL) CHENNAI- 600 006. Na.Ka. No.101568/Vl/El/2004 Dated. 06.03.2012 Sub : Higher Secondary Education - Vocational - Appointment - Government Aided School- Pachaiyappan Higher Secondary School, Kancheepuram District. Mr.T.E.Ramesh appointed by the Parents Teachers Association- Regulaised Pay Scale for Grade I dated. 09.02.0007 - issuing of Appointment Order - Regarding. Ref: 1. Government G.O.Ms. 3 5 of Eduation Department (Vocational Education dated. 09.02.2007.
http://www.judis.nic.in 13
2. Government Letter No.26809/VE/ 2008 dated. 21.01.2009 Government Letter No.10380/VE/ 2007 dated. 04.05.2007
3. Proceedings of the Chief Education Officer, Kancheepuram in Na.Ka.No.9223/A6/2010/ dated. 27.08.2010.
4. Proceedings of the Director School Education, Chennai - 5 in Na.Ka.No. 101568/V/ E1/2004/ dated. 25.11.2010.
5. Letter of the Registrar, Annamalai University, Annamalai Nagar, No. B 6-2010 Dated. 20.08.2010.
With reference to the Government Order and Letter cited Mr.T.E.Ramesh, (Computer Teacher) who is appointed by the Teachers Parents Association and working continuously in Pachaiyappan Higher Secondary School, fully qualified and Orders of appointment is issued Vocational Instructor Grade I in view of the letter cited in reference 2 above.
SI. Name of the The Date Government G.O. Full Time Post Orders
No. Teacher and of No..35 Education of
School in which Appointment Department dated. Appointment
he is serving and Group for 09.02.2007 and Government Orders Date
which the Government Letter in and Details
appointment No. 10380/VE/2007-1
made by the Dated.04.05.2007 and
Teachers Full time Regularising
Parents from 04.05.2007
Association
1 Thiru. T.E. 10.06.1999 09.02.2007 to Permission of
RAMESH Computer Appointment
Pachaiyappan Teacher Government Order
Higher No.
Secondary 358/Edu/Date :
School, 18.08.1997 Scale Pay
Kapcheepuram 5500- 175 - 9000
District Retirement of Thiru.R.
Swaminathan
Govt.
Higher
Secondary
School
Vocational
Instructor
return Government
Govt. Order No.69 / Edu
http://www.judis.nic.in
Date: 20.05.2007
14
The above Vocational Teacher Grade I is appointed as per the Vocation Teacher Government Order ( Ms ) No. 35 dated. 09.02.2007 and Government Letter No. 10380/VE/07- 1 dated. 04.05.2007 in the same school as Full Time Vocation Teacher Grade I in the Scale of pay Rs.5500-175- 9000 and the School Secretary is directed to get approval from the Chief Education Officer.
The Head Master is instructed to enter this necessary details of this appointment as Vocational Teacher Grade I in the Scale Register maintained by the School.
Further the said Teacher is eligible for Contributory Pension Scheme.
All the Certificates pertaining to the above Vocational Teacher has to be verified and to be approved and all the Other State Certificates are valued by the concern officers and then only the Salary will permitted to be paid.
The Chief Education Officer has to enter the above Employment of the Full time Vocational Teacher Grade I in the Employment Register maintained at the Office of the Chief Education Officer without fail.
Sd/-
Joint Director (Vocational)"
13. We perused the material on record. The writ petitioner/first respondent has been working as a Vocational Instructor (Teacher), right from 1996. For no fault of his, the School did not pursue the approval. http://www.judis.nic.in 15 The first respondent was fully qualified and hence his appointment as a Vocational Instructor has to be approved. The first respondent cannot be made to suffer for the inaction part of the school. Service of his juniors have been approved. Petitioner is similarly placed as that of others quoted and is therefore, entitled to similar benefits. We deem it fit to consider few decisions.
(i) In Prem Chand Somchand Shah v. Union of India reported in (1991) 2 SCC 48, the Hon'ble Supreme Court in paragraph 8 held thus, "8. As regards the right to equality guaranteed under Article 14 the position is well settled that the said right ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment. It means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Conversely discrimination may result if persons dissimilarly situate are treated equally. Even amongst persons similarly situate differential treatment would be permissible between one class and the other. In that event it is necessary that the differential treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a http://www.judis.nic.in rational relation to the object sought to be achieved by 16 the statute in question."
(ii) In Govind Ram Purohit v. Jagjiwan Chandra reported in 1999 SCC (L & S) 788, at paragraph 3, the Hon'ble Suprme Court held thus:
"3. It was lastly contended by the learned counsel for the appellants that whereas the petition had been filed by only Respondent 1, the High Court while finally concluding the matter has given a direction to promote all those who were senior to the appellants even though they were not parties to the petition. Once the High Court had placed a particular interpretation on the Rules, the benefit of that interpretation had to go to all those who qualified under the seniority-cum-merit rule. There was no point in waiting for each and every person to file a petition. Therefore, we do not see any reason why we should entertain such a technical plea when the High Court has done substantial justice to all concerned."
(iii) In State of Karnataka v. N.Parameshwarappa reported in 2003 (12) SCC 192, the Hon'ble Supreme Court, at paragraph 8, held thus:
"8........ we do not find any reasonable justification to confine the relief to only such of the teachers who approached the court and having regard to the fact that relief related to the revision of scales of pay, every one of http://www.judis.nic.in that class of teachers who approached would be entitled 17 to the benefit, notwithstanding that they have not approached the court. We are in equal agreement with the Division Bench in denying the payment of interest at compounded rates which, in our view, cannot be justified at all on the facts and circumstances of the case wherein a serious and genuine doubt existed about the applicability of the government order dated 30-3-1990, as raised in the proceedings."
(iv) In State of U.P. v. Dayanand Chakrawarty reported in 2013 (8) Scale 74 : (2013) 7 SCC 595, the Hon'ble Supreme Court held that there cannot be any discrimination in treating equally placed persons on same footing, for all purposes.
(v) The Hon'ble Supreme Court in State of Uttar Pradesh and others v. Arvind Kumar Srivastava and others reported in 2015 (1) SCC 347, wherein, the Apex Court dealt with the issue as to the entitlement of benefit of judgment in rem with an intention to benefit all similarly situated persons irrespective of whether they had approached the Court or not. It is held therein that when a particular set of employees is given relief by Court, all other identically situated persons should be treated alike by extending the same benefit, since not doing so would amount to discrimination and be violative of Article 14 of the Constitution of India.
http://www.judis.nic.in 18 Therefore, the first respondent is eligible to get time scale of pay from 09.02.2007, that is from the date of issuance of G.O.Ms.No.35.
14. For the reasons stated supra, writ appeal therefore fails and the same is dismissed. No Costs. Consequently, the connected civil miscellaneous petition is closed.
15. The directions given by the learned Single Judge would be complied, within a period of six weeks from the date of receipt of a copy of this judgment.
(S.M.K.,J) (S.P.,J)
24th January 2019
Index : Yes
Internet : Yes
Speaking/Non-speaking order
mvs.
http://www.judis.nic.in
19
S.MANIKUMAR, J
AND
SUBRAMONIUM PRASAD, J
mvs.
W.A.No.165 of 2019
and
C.M.P. No.1580 of 2019
24/1/2019
http://www.judis.nic.in