Madras High Court
The Principal Secretary To Government vs T.Thangasamy on 23 November, 2018
Author: S. Manikumar
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.11.2018
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.2444 of 2018
and
CMP No.19714 of 2018
1. The Principal Secretary to Government,
Government of Tamil Nadu,
Education Department, Fort St. George,
Chennai - 600 009.
2. The Director of School Education (Secondary),
College Road, Chennai - 600 006.
3. The Director of Elementary Education,
College Road, Chennai - 600 006.
4. The District Educational Officer,
Tirunelveli ... Appellants
Vs.
T.Thangasamy ... Respondent
Writ Appeal filed under Clause 15 of the Letters Patent against the Order
dated 24.04.2015 made in W.P.No.12333 of 2015.
For Appellants : Mr.C.Munusamy (Education)
Special Government Pleader
http://www.judis.nic.in For Respondent : Mr.B.Vijay
2
JUDGEMENT
(Order of the Court was delivered by S.MANIKUMAR, J) Instant writ appeal is directed against the order dated 24.04.2015 made in W.P.No.12333 of 2015, by which the writ Court directed the appellants to give pay protection in the post of Middle School Headmaster, while he continues in the High School service.
2. Short facts leading to the filing of writ appeal are as follows:
Respondent was appointed as Secondary Grade Teacher in Government Aided School in 1973. He was promoted as Middle School Headmaster in 1995.
The said school was upgraded as High School in 1999. Pursuant to the upgradation, the petitioner was absorbed in high School service as B.T.Assistant on 1.6.2001. Between 1999 and 1.6.2001, the respondent was paid salary applicable to Middle School Headmaster and thereafter, he was paid B.T.Assistant Salary, which is lower than the scale of pay of Middle School Headmaster. Therefore, the respondent sent a representation dated 30.01.2014. As there was no response, he filed W.P.No.12333 of 2015 for a writ of mandamus, directing appellants 1 and 2 to consider and pass orders on his representation dated 30.01.2014, in the light of order dated 30.04.2009 passed in W.A.No.210 of 2009 and G.O.Ms.No.10 (4D) School Education (D-2) Department dated 9.3.2012, for granting pay protection as that of Middle http://www.judis.nic.in 3 School Headmaster's scale of pay and to pay all monetary benefits.
3. After hearing the learned counsel for both parties and following the earlier orders of this Court, a learned Single Judge, disposed of W.P.No.12333 of 2015 vide order dated 24.04.2015. Relevant portion of the said common order is extracted hereunder.
"3.The grievance of the respondent is that under similar cases, the Division Bench of this Court in W.A.No.210 of 2009, dated 30.04.2009, has issued a direction to protect the pay of scale of persons who were absorbed in the High School services from the Elementary School Service. The said order was complied with by the Government by issuing Government Order in G.O.Ms.No.10 Education Department, dated 9.3.2012. Further it is brought o my notice that I have also quashed an order under similar circumstances in W.P.Nos.13469, 13470 of 2013 dated 4.6.2013. Another learned Judge has also passed an order dated 20.2.2014 in W.P.No.4737 of 2014 on similar lines. Hence, I am of the view that the respondents shall protect the pay of the petitioner in the post of Middle School Headmaster, while he continues in High School Service. Accordingly, the first respondent is directed to pass appropriate orders protecting the pay scale of the petitioner in the light of the order dated 30.4.2009, passed in W.A.No.210 of 2009 and G.O.Ms.No.10 (4D) School Education (D-2) Department dated 9.3.2012, within a period of 12 weeks from the date of receipt of a copy of this order.
4. The writ petition is disposed of with the above direction. http://www.judis.nic.in No Costs."
44. Aggrieved by the abovesaid order, appellants have filed the instant writ appeal on the following grounds.
(a) that the Writ Court has failed to consider that the petitioner had worked only as B.T.Assistant in the upgraded high school and for the work done as B.T. Teacher, salaries could be paid only in the scale of pay applicable to B.T. Teacher and not a higher scale of pay to the writ petitioner from the date of absorption as B.T.teacher on 1.6.2001.
(b) that the Writ court has failed to consider that middle school headmaster in addition to fulltime class teacher for VII standard is required to discharge the duties of headmaster which is academic administrative in nature.
In the absence of specific assignment of duties of headmaster of high school by order of the Government and in the absence of discharging duties of middle school headmaster, the writ petitioner only by discharging duties of B.T. teacher was not eligible for higher scale of pay than the scale of pay B.T. teacher. There is no Government order to the effect that the erstwhile middle school headmaster absorbed into the upgraded high school as B.T. teacher should attend the duties of high school headmaster in addition to his normal duty of B.T.Assistant. The internal arrangement for the convenience of the management of the school could not be considered to allow the writ petition.
(c) that the management of St.Joseph Middle School, Puthukudiyiruppu had absorbed the writ petitioner into the upgraded school as B.T.Assistant http://www.judis.nic.in 5 instead of transferring the writ petitioner to any one of the middle school under its management which runs so many middle schools in various places in Tirunelveli and Thoothukudi revenue district areas. The writ petitioner did not object his absorption into upgraded high school before his employer.
(d) the writ Court failed to consider that the management of St.Joseph High School, Puthukudiyiruppu is not impleaded in the writ petition by the writ petitioner even though it is a necessary party who committed the absorption of the petitioner as B.T. teacher in the upgraded high school.
(e) the writ Court failed to consider the laches of 16 years in filing the writ petition. Inordinate delay in filing the writ petition could not be allowed.
(f) the writ Court failed to consider that G.O.Ms.No.10(4D) School Education dated 30.04.2009 was passed in favour of 14 individuals only and it is not a general order reflecting the policy of the Government and it is not an order allowing the benefit to all similar cases, and it is only an order in compliance of orders of this Court. Further, when G.O.Ms.No.1529, Education dated 03.11.1990 is not quashed by this Court and when it is not modified or cancelled by the Government, the benefit of order in G.O.Ms.No.10(4D) School Education dated 30.04.2009 in favour of 14 individuals could not be extended to the writ petitioner.
5. On this day, when the writ appeal came up for admission, based on the grounds of appeal, Mr.C.Munusamy, learned Special Government Pleader http://www.judis.nic.in 6 (Education) made submissions. We perused the materials available on record and the decision of a Hon'ble Division Bench of this Court in W.A.No.210 of 2009, dated 30.04.2009 and the Government Order in G.O.Ms.No.10 Education Department, dated 9.3.2012.
6. Order made in W.A.No.210 of 2009, dated 30.04.2009 reads as under.
"4. A reference to the order of the learned Judge makes it very clear that the facts before the Division Bench, whose judgment has been relied upon, are similar to the facts of the present case and it is not in dispute that the first respondent was allowed to continue to work in the second respondent School even after the School was upgraded. While so, the Government order relied upon by the learned counsel for the appellant has no application at all. The relevant portion of the said G.O.Ms.No.1529, Education Department dated 3.11.1990, viz., "3. In order to set right the fixation problem, Govt. direct that whenever a Middle school is upgraded as High School, the incumbent holding the post of Middle School Headmaster may be transferred to another Middle School reverting the Junior most Headmaster, Middle School as B.T.Teacher in the upgraded High School. If it is not feasible the Headmaster of Middle School has to be appointed as B.T.Teacher in the upgraded High School. In such cases, the pay of the incumbent to be fixed in the scale of B.T.Grade Teacher (i.e. On Rs.1400-2600) at the same stage if the pay drawn by him is equal to that stage or if no such stage at the lower stage, treating the differential as personal pay. This personal pay shall not be absorbed in future increments and continued until the incumbent vacates the post."
makes it clear that when a Middle School is upgraded as High School, the http://www.judis.nic.in 7 incumbent Headmaster may be transferred to another Middle School as Headmaster or reverted as B.T.Teacher and inasmuch, as such a transfer of reversion has not taken place in this case, we see no reason to interfere with the order of the learned single Judge. When the facts of the present case are similar to the facts in the Division Bench judgment which the learned Judge has followed in the impugned judgment, there is no reason to interfere with the order of the learned Judge. Accordingly, the writ appeal fails and the same is dismissed. No costs. Connected Miscellaneous Petition is closed."
7. Implementing the abovesaid Orders, Government have issued G.O.(4D).No.10, Education Department, dated 09.03.2012 and the same is extracted hereunder.
ABSTRACT School Education - Aided Schools - Government Aided Middle School, upgraded as High School. The Headmasters serving at the Middle School, were absorbed as Graduate Teachers of upgraded High School and was allowed to draw salary in the pay scale of graduate teachers of High School - the 14 Middle School Headmasters absorbed as Graduate Teachers of High School, claimed to fix the pay scale of graduate teachers of High School, claimed to fix the pay scale of Headmaster of the Middle School filed petitions and obtained orders - To comply the said orders, order issued.
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School Education (D2) Department
G.O.(4D) No.10 Date: 09.03.2012
Thiruvaluvar Aandi 2043
Masi 26
READ
1. The orders made by the High Court, Chennai and Madras High Court Branch, Madurai in Writ Petitions No.20890/2000, 8707/2003, 8709/2003, 8710/2003, 8711/2003, 6418/2008, 30652/2008, 22737/2009, 21302/2000, 3691/2008, 21347/2000, 36592/2002, respectively dated 09.11.2009, 07.03.2008, 07.03.2008, 07.03.2008, 07.03.2008, 07.06.2008, 30.04.2009, 26.04.2010, 10.06.2010, 29.04.2008, 05.08.2002, 13.09.2007 and order made in W.P.No.30897/2005.
2. Letter by the Director of School Education in http://www.judis.nic.in Na.Ka.No.37392/D2/E1/2009, dated 18.04.2011; 04.05.2011; 01.07.2011 and 8 17.08.2011.
----
ORDER With reference to the second read above in the letters, the opinion of the Director, that those Government Aided Middle Schools, on the basis of self financed, being upgraded as high Schools, those serving as Headmasters of Middle schools in such middle schools are absorbed as Graduate Teachers of upgraded High Schools (for the classes 6, 7, 8) and that while absorbing them as Graduate Teachers to the upgraded high School, as per G.O.(Ms.) No.1529, Education Department dated 13.11.1993, they having received their last month salary in the post of the Head masters of the Middle School, without loss of pay, the salary fixed in the pay scale of Graduate teachers, and that however as there is difference in pay scale for both the post, they having received the pay scale in the post of Graduate Teachers, in the subsequent years the pay increments that they were receiving was less than prior to this, in this situation, the 14 graduate teachers had claimed to permit them to receive the salary that they have be receiving earlier, with reference to first read above in the Writ petitions filed therein, as informed by the Director of School Education, those names of 14 teachers, the name of school of their service / served, Writ Petitions and the order, the date of absorption as Graduate Teacher the details of this are mentioned below:-
Sl.No. Name of the W.P.No. and Date of Date of
Litigant & School Order absorption as
Thiru./Tmt Graduate
Teacher
1 P.Ranganathan W.P.No.20890/2000 30.08.1988
Gandhi Kalvi Nilayam High 09.11.2009
School,
Thenkalpalayam,
Namakkal District.
2 V.Selvamuthu W.P.No.8707/2003 03.06.1994
S.V.S.High School, 07.03.2008
Aladipatti, Thenkasi
3 A.Kumar Pandian, W.P.No.8709/2003 01.02.1997
Anna Boys High School, 07.03.2008
Veerakelamputhur,
Thenkasi
4 E.Arulsamy W.P.No.8708/2003 01.08.1996
St.Jacob High School, 07.03.2008
http://www.judis.nic.in Vaadiyur, Thenkasi
9
Thirunelveli District.
5 S.Ramakrishnan W.P.No.8710/2003 03.06.1993
Hindu High School, 07.03.2008
Mayamankurichi,
Thenkasi, Thirunelveli
District.
6 C.Nirmala Roselin, W.P.No.8711/2003 01.02.1995
A.G.High School, 07.03.2008
Kanakka Pillai, Valasai,
Thirunelveli District
7 G.Govindarajan, W.P.No.30897/2005 01.09.1997
Ramakrishna High School, No order obtained
Kanchipuram.
8 S.Kaladevi Thangachi, W.P.(MD) 03.06.1993
M.V.High School, No.6418/2008
Sengodi, 07.06.2010
Kanyakumari District.
9 M.Stephen W.P.No.30652/2008 01.02.2004
St. Joseph High School, 30.04.2009
Adaikalapuram,
Tuitcorin District.
10 K.Peter Devi Prasad, W.P.No.22737/2009 01.10.1994
CSI High School, 26.04.2010
Kothagiri, Nilgiris District.
11 E.Muthuselvi, W.P.No.21302/2000 01.04.1995
C.M.Higher Secondary 10.06.2010
School,
Ranganathapuram,
Tuticorin District.
12 K.Sanmughasundaram, W.P.(MD) No.3691 / 01.09.2002
Sri Ulaga High School, 2008 and M.P.No.1
Krishnapuram, and 2/2008
Thirunelveli District. 29.04.2008
13 K.Balakrishnan, W.P.No.21347/2000 03.12.1998
KRV High School, and WPMP
Lingathadimedu, No.31066/2000
Ariyalur District. 05.08.2002
14 S.Zubaida Banu, W.P.No.36592/2002 27.08.1999
Quaide-Millat-High School, and WPMP
Puliyangudi, No.55028/2002 and
Thriunelveli District. 2005/2007
13.09.2007
The above said 14 cases Thiru G.Govindarajan as in Serial No.7 of Ramakrishna High School, Kanchipuram filed by him W.P.No.30897 / 2005, except this, in other 13 cases, the orders have been passed, in all the orders, it http://www.judis.nic.in has been issued in favour of the individuals. The appeals preferred against 10 these orders were dismissed.
2. At this juncture, in the above referred in para 1 mentioned in detailed, the order obtained by the 14 graduate teachers in the High Court, in view of compliance, those teachers having served as Headmaster of Middle Schools in aided Middle schools on the basis of self financed when it was upgraded as High School, they have been absorbed as Graduate Teachers of upgraded High School, they have claimed to permit them to draw the salary in the pay scale which they were receiving in the post of Headmasters of Middle School continuously. After their retirement, the salary in the pay scale of the graduate teachers to be disbursed to the those appointment in the such posts on such condition, to issue appropriate Government, was sought in the reference 2nd read above in the letter by the Director of School Education, having recommended in this aspect.
3. Further in view of the orders obtained in the above said cases similar to 4 other cases, on the basis of the order, those 4 graduate teachers who have filed, have obtained an order that from the date of absorption from the post of Headmasters of Middle Schools, as Graduate teachers, to grant the pay scale of Headmasters of the Middle School, which was allowed and ordered accordingly.
4. In the above circumstances, with reference to the second read above, in the letters, as per the recommendation of the Director of School Education, the Government has carefully considered and decided to accept it. With reference to the para 1 mentioned above, 11 graduate teachers, the contradiction of pay scale attributed to them to remove the said contradictions, in their petitions filed by them. In order to comply with the order of the High Court, with reference to 14 teacher mentioned in the 1st above read, they having served in the Aided Middle Schools, was upgraded as High School, in order to bring those litigation to an end, and those 14 teachers mentioned in para 1 above serving at the Aided Middle Schools being upgraded as High Schools, there are placed in upgrade in the post of Graduate teacher in the schools mentioned opposite to their name and from the date of absorption, in order remove the contradictions arising in their pay scale, they having already received the pay in the pay scale of headmaster of Middle School, shall receive in the said pay scale of Headmaster of Middle School and in the event vacancy arising out of their retirement, on condition it is permitted that while filling up the same it should be done in the pay scale of Graduate Teachers and order http://www.judis.nic.in 11 issued by the Government.
5. This order is issued with the consent of the Finance Department approval vide U.O.No.61052/CMPC/2011 dated 02.12.2011.
//BY ORDER OF THE GOVERNOR// T.SABITHA Prl. Secy. to Govt.,
8. Facts of the instant appeal is squarely covered by the decision in W.A.No.210 of 2009 dated 30.04.2009. By accepting the said judgment, Government have issued G.O.(4D).No.10, Education Department, dated 09.03.2012. There is no reason as to why a different yardstick be applied to the case of the respondent, who is similarly placed.
9. The issue as to whether equally placed persons should be treated alike without any discrimination even in service matter is no longer res integra.
Useful reference can be made to the following 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 http://www.judis.nic.in 12 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 rational relation to the object sought to be achieved by 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 http://www.judis.nic.in revision of scales of pay, every one of that class of teachers who 13 approached would be entitled 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 14
10. In the light of the above decisions and discussion, we are of the view that the order impugned (W.P.No.12333 of 2015 dated 24.04.2015) does not call for interference. Instant writ appeal is dismissed. No Costs. Consequently, the connected Civil Miscellaneous Petition is closed.
[S.M.K., J.] [S.P., J.]
23.11.2018
Index : Yes/No.
Internet : Yes
Speaking/Non-speaking order
ars
http://www.judis.nic.in
15
S. MANIKUMAR, J.
AND
SUBRAMONIUM PRASAD, J.
ars
W.A.No.2444 of 2018
and CMP No.19714 of 2018
23.11.2018
http://www.judis.nic.in