Madras High Court
The Government Of Tamil Nadu vs Page No.1/18 on 7 March, 2018
Author: R.Subbiah
Bench: R.Subbiah
W.A.No.1118 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON: 01.02.2021
JUDGMENT DELIVERED ON: 05.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Writ Appeal No.1118 of 2019
and
CMP.No.8039 of 2019
1. The Government of Tamil Nadu
Rep. by its Secretary to Government,
School Education Department,
Fort St. George, Chennai 9.
2. The Director of Elementary Education,
College Road,
Chennai 600 006.
3. The State Commissioner for differently abled,
No.15/1, Model School Road,
Thousand Lights, Chennai 600 006.
4. The District Elementary Educational Officer,
Namakkal District,
Namakkal. .. Appellants
Vs.
Page No.1/18
http://www.judis.nic.in
W.A.No.1118 of 2019
S.Arulmani,
Secondary Grade Teacher,
Panchayat Union Elementary School,
Paramathi, Paramathi Panchayat Union,
Namakkal District. .. Respondent
Writ Appeal filed under Clause 15 of the Letters Patent against the
order dated 07.03.2018 passed by the learned Single Judge, in
WP.No.14525 of 2011 on the file of this Court.
For appellants : Mr.P.Raja, Govt. Advocate (Education)
For respondent : Mr.R.Saseetharan
JUDGMENT
R.SUBBIAH, J This appeal has been filed as against the order dated 07.03.2018 made in W.P.No.14525 of 2011, in and by which, the learned Single Judge allowed the Writ Petition filed by the respondent / writ petitioner by quashing the impugned letter of the first appellant dated 27.12.2010 and the order of the second appellant, dated 22.07.2008 and consequently, directed the appellants to extend the benefit of G.O.Ms.No.2357, Education, Science and Technology Department, Chennai, dated 27.12.1983 and G.O.Ms.No.1580, Education Department, dated 18.10.1969 to the respondent / writ petitioner and protect the last drawn pay scale of the Page No.2/18 http://www.judis.nic.in W.A.No.1118 of 2019 respondent / writ petitioner of Rs.5,000/- as on 25.07.1999 for the post of Secondary Grade Teacher in the Social Welfare Department and fix the same to the respondent / writ petitioner, when he was appointed as Secondary Grade Teacher in the Education Department on 26.07.1999, with all consequential monetary benefits.
2. The case of the writ petitioner is that he acquired the qualification of Diploma in Teacher Education in the year 1990 and registered the same before the District Employment Exchange, Salem District. Thereafter, he acquired further qualification of Junior Diploma to teach the deaf and dumb students in the year 1992 and the same was also registered. By order of the Director of Rehabilitation for Disabled, dated 27.05.1994, he was appointed as a Secondary Grade Teacher in the Government High School, Salem for the deaf and dumb on 09.06.1994 under the Department of Social Welfare. Subsequently, his service in the post of Secondary Grade Teacher was regularised from 09.06.1994, as per the order of the Director of Rehabilitation for Disabled, dated 11.01.1996, and he completed his period of probation successfully on 08.06.1996.
3. While so, the writ petitioner's name was sponsored by the District Page No.3/18 http://www.judis.nic.in W.A.No.1118 of 2019 Employment Exchange for the post of Secondary Grade Teacher in the State Education Department and he got appointment in the said post, as he got himself qualified with the Diploma in Teacher Education. The Writ Petitioner made a request to transfer him from the Social Welfare Department to the State Education Department and the Director of Rehabilitation for Disabled forwarded his application to the Director of Elementary Education for taking necessary action. Pending decision, he was appointed as Secondary Grade Teacher by order of the fourth respondent / District Elementary Educational Officer, Namakkal dated 23.07.1999 in Panchayat Union Elementary School, Edappakadu Kollimalai Panchayat Union, Namakkal District. At the time of appointment, his pay was fixed at the initial stage of Rs.4,500/- in the scale of pay of Rs.4,500-125-7,500, which is the prescribed scale of pay for the post of Secondary Grade Teacher.
4. The petitioner's last pay drawn in the post of Secondary Grade Teacher under the Department of Social Welfare as on 25.07.1999, was Rs.5,000/- and the same had not been protected. Hence, he made a representation to the respondents to protect his last drawn pay. By Page No.4/18 http://www.judis.nic.in W.A.No.1118 of 2019 Proceedings dated 17.03.2003, he was informed by the third respondent / The State Commissioner for Differently Abled, that though his application for transfer from Social Welfare Department to Education Department was forwarded, relieving order could not be issued due to Administrative reasons. He was further informed that, as the Headmaster of the School had stated that there are no dues from him and no disciplinary proceedings were pending against him, he could be relieved from the Social Welfare Department on 25.07.1999. In the said proceedings, the Headmaster of the School was directed to give last pay drawn certificate as on 25.07.1999 and also to send the Service Register to the Education Department.
5. However, the second respondent / the Director of Elementary Education, by his proceedings dated 22.07.2008, rejected the request of the writ petitioner to grant last pay drawn certificate, on the reasoning that as per his will and wish only, he got appointment in the Education Department by way of direct recruitment, from the list sponsored by the Employment Exchange. Since the petitioner is working as such, there is no rule to grant last pay drawn certificate by counting the service rendered by him in the post of Secondary Grade Teacher under the Social Welfare Department. Page No.5/18 http://www.judis.nic.in W.A.No.1118 of 2019
6. As against the above said order, the writ petitioner preferred an appeal before the first respondent / Government of Tamil Nadu. By letter dated 27.12.2010, the first respondent rejected the claim of the writ petitioner stating that he got appointment in the State Education Department only as per his will and wish by way of direct recruitment, from the list of candidates sponsored by the Employment Exchange. Further, no permission has been given to him for his transfer from one Department to another Department and therefore, his claim for last drawn pay in the Social Welfare Department, cannot be permitted to be continued in the Education Department. Thus, the first respondent, in the said proceedings, confirmed the order of the second respondent / Director of Elementary Education, dated 22.07.2008. Aggrieved by the same, the petitioner has filed the Writ Petition.
7. Before the learned Single Judge, the writ petitioner made his submissions by placing reliance on two Government Orders, viz., G.O.Ms.No.1580, Education Department, dated 18.10.1969 and G.O.Ms.No.2357 Education, Science and Technology Department, Chennai, dated 27.12.1983. In G.O.Ms.No.1580, dated 18.10.1969, the Government Page No.6/18 http://www.judis.nic.in W.A.No.1118 of 2019 provided for protection of pay, which is the last pay drawn by a Teacher in one Management, when he resigns service from one Management and joined as a Teacher in another Management. In G.O.Ms.No.2357, dated 27.12.2003, the Government had delegated the power to the Director of Elementary Education to grant the last drawn pay to the Secondary Grade Teachers, who resigned from service in Anglo Indian Schools and joined as a Teacher in Aided Schools. Thus, by relying upon the above said Government Orders, he submitted that the said G.Os. are issued to protect the last drawn pay of the Teachers, who are transferred from one Management to another Management, which carries the same scale of pay. The same yardstick has to be applied in the case of the respondent / writ petitioner also.
8. The case of the writ petitioner was opposed by the respondents by filing a counter affidavit stating that the pay protection is eligible to a person who got prior permission to transfer his service from one Management to another Management. However, the writ petitioner has not been transferred from the Social Welfare Department to the Education Department and he was only a fresh appointee as per the order of the fourth respondent / the District Elementary Educational Officer, at Panchayat Union Elementary Page No.7/18 http://www.judis.nic.in W.A.No.1118 of 2019 School, Edappakadu, Kollimalai Panchayat Union, Namakkal District. So, the last drawn pay cannot be protected as per the above G.Os. Therefore, the G.Os. relied on by the writ petitioner, are not applicable to his case. Thus, the respondents sought for dismissal of the writ petition.
9. The learned Single Judge, after hearing both sides, allowed the Writ Petition and rejected the contention of the respondents, on the reasoning that the pay protection sought for by the writ petitioner, is a much stronger claim than the teachers, who are working in the Aided School, in which case, the benefits envisaged in the above said two G.Os. have to be extended to the writ petitioner also. Aggrieved by the same, the present Writ Appeal has been filed by the State.
10. The learned Government Advocate appearing for the appellants / State submitted that though the writ petitioner had applied for transfer from Social Welfare Department to Education Department, no orders were passed either by the Head of the Department or by the Government, accepting his request for pay protection. In the absence of such orders, there is no justification on the part of the writ petitioner to seek for pay protection.
11. In fact, the order of appointment issued by the District Elementary Page No.8/18 http://www.judis.nic.in W.A.No.1118 of 2019 Educational Officer, Namakkal dated 23.07.1999, shows that the appointment of the writ petitioner in the Education Department is a direct appointment and the said appointment is subject to the conditions stipulated therein. Further, the pay scale applicable to the writ petitioner at the time of his appointment is Rs.4500 - 125 - 7000. The petitioner took the job in the Education Department accepting the terms and conditions of the appointment order, dated 23.07.1999 including the applicability of the above time scale of pay.
12. G.O.Ms.No.2357, dated 27.12.1983 and G.O.Ms.No.1580, dated 18.10.1969, relied upon by the writ petitioner, are not applicable to his case, since in those cases, the Teachers got prior permission from the Government for such transfer from one Department to another. Further, there is no specific provision in the Tamil Nadu Educational Subordinate Service Rules for transfer of appointee from one unit of Establishment or Department to another unit of Establishment or Department. In the absence of such Rules or specific orders from the Government, the request of the writ petitioner cannot be entertained and he has no merit in this case. But the learned Single Judge, without considering the above facts, allowed the Writ Petition Page No.9/18 http://www.judis.nic.in W.A.No.1118 of 2019 and hence, the same may be set aside.
13. Countering the above submissions, the learned counsel for the writ petitioner submitted that the writ petitioner has acquired 2 qualifications, viz., Diploma in Teacher Education in the year 1990 and Junior Diploma to teach the deaf and dumb in the year 1992. By the order of the Director of Rehabilitation for Disabled dated 27.05.1994, he was appointed as Secondary Grade Teacher on 09.06.1994 in the Government High School for deaf and dumb at Salem under the Department of Social Welfare.
14. While so, the writ petitioner was appointed as Secondary Grade Teacher in the Education Department at Panchayat Union Elementary School Edappakadu, Kollimalai Panchayat Union, Namakkal, by order of the fourth respondent / District Elementary Education Officer, dated 23.07.1999. On 19.02.1998, he applied for transfer from Social Welfare Department to Education Department and the same was forwarded to the second respondent / Director of Elementary Education. In such circumstances, the third respondent / the State Commissioner for Differently Abled issued Proceedings dated 17.03.2003, under which, the petitioner was relieved from the Social Welfare Department with effect from 25.07.1999 Page No.10/18 http://www.judis.nic.in W.A.No.1118 of 2019 and transferred to Educational Department. The petitioner's last pay drawn in the Social Welfare Department was in the pay scale of Rs.5,000/-, whereas in the subsequent appointment in the Educationd Department, the pay was fixed at the initial scale of pay of Rs.4,500/-. Hence, he made a representation dated 23.12.2002 to the appellants to protect his last drawn pay, but the same was rejected by the second appellant / Director of Elementary Education, vide proceedings dated 22.07.2008 on the erroneous reasoning that the writ petitioner, on his own volition, came to the Education Department through direct appointment and not by way of transfer. The appeal filed by writ petitioner against the said order, was also dismissed by the first appellant on 27.12.2010.
15. In this regard, the learned counsel for the writ petitioner drew the attention of this Court to G.O.Ms.No.1580, Education Department, dated 18.10.1969 and submitted that the said G.O. provides for protection of last drawn pay to the Teachers, who resigned service from one Management and joined another Management. Similarly, in G.O.Ms.No.2357, Education, Science and Technology Department, 27.12.1983, the Government of Tamil Nadu delegated power to the Director of Elementary Education to grant the Page No.11/18 http://www.judis.nic.in W.A.No.1118 of 2019 last drawn pay to the Secondary Grade Teachers, who had resigned from service in Anglo Indian Schools and joined as a teacher in Aided Schools. Those two G.Os. are issued to protect the last drawn pay of the Teachers, who are transferred from one post to another post, which carries same scale of pay. Since the petitioner was transferred from one Government Department to another Government Department, he stands on better footing than the teachers working in the Aided Schools. Therefore, following the said G.O.s, the writ petitioner is entitled for the last drawn pay protection. Thus, the learned Single Judge has rightly extended the benefits of the said G.Os. to the respondent/writ petitioner. Therefore, there is no infirmity in the said order, and thus, he sought for dismissal of the Writ Appeal.
16. Keeping in mind the above submissions made on either side, we have carefully perused the materials available on record.
17. Since this Court has discussed the facts in detail above, the facts which are germane alone are reiterated hereunder.
18. It is the claim of the writ petitioner that he was appointed as Secondary Grade Teacher in the Government High School for Deaf and Dumb at Salem on 09.06.1994. Subsequently, he was appointed as Page No.12/18 http://www.judis.nic.in W.A.No.1118 of 2019 Secondary Grade Teacher on 23.07.1999 in the Panchayat Union Elementary School, Edappakadu, Kollimalai Panchyat Union, Namakkal District in the State Education Department. Since he was transferred from Social Welfare Department to Education Department, he is entitled for pay protection. At the time of relieving from Social Welfare Department, he was receiving the pay scale at Rs.5,000/-, but in the Education Department, his salary was fixed in the pay scale of Rs.4,500/-. In this regard, he relied upon the Government Orders, viz., G.O.Ms.No.1580, dated 18.10.1969 G.O.Ms.No.2357, 27.12.1983 and submitted that as the respondent/writ petitioner joined Education Department on transfer in the post carrying identical scale of pay, he is entitled for pay protection, which he was receiving in the Social Welfare Department.
19. Per contra, it is the contention of the learned Government Advocate appearing for the appellants that it is their case before the learned Single Judge as well as before this Court that the writ petitioner got appointed as a fresh appointee, not by way of transfer. Hence, the said G.Os. are not applicable to the case of the respondent/writ petitioner.
20. In view of the submissions made on either side, we are of the view Page No.13/18 http://www.judis.nic.in W.A.No.1118 of 2019 that the only question that arises for consideration in this appeal is as to whether the appointment of the respondent/writ petitioner in the Education Department as Secondary Grade Teacher is by way of transfer or was it a fresh appointment. If the said question is answered, that would suffice for disposal of this appeal.
21. On a perusal of the appointment order dated 23.07.1999 issued by the District Elementary Educational Officer, Namakkal, we find that the writ petitioner was appointed as a fresh appointee in the post of Secondary Grade Teacher in the pay scale of Rs.4500-125-7000 as per the list sponsored by the District Employment Exchange. Further, absolutely no documentary evidence was produced by the writ petitioner to show that he was transferred from the Social Welfare Department to the Education Department.
22. In support of the writ petitioner's contention that he was transferred from Social Welfare Department to Educational Department, he relied upon the proceedings dated 17.03.2003 of the third respondent / State Commissioner for Differently Abled, which was pursuant to the representation given by the Writ Petitioner on 23.12.2002, but in the said proceedings also, absolutely nothing had been stated about the transfer from Page No.14/18 http://www.judis.nic.in W.A.No.1118 of 2019 Social Welfare Department to Educational Department.
23. Further, according to the learned counsel for the writ petitioner, the writ petitioner is entitled for pay protection as per the said G.Os. However, on a reading of the said G.Os., it reveals that those G.Os. are applicable only to the Aided School teachers, who got prior permission for getting transferred from one Department to another. But, the writ petitioner herein was appointed as a fresh appointee in the Panchayat Union Elementary School pursuant to his name sponsored by the District Employment Exchange. Hence, the said G.Os. are not applicable to the case of the respondent. Further, we find that the writ petitioner / respondent, soon after his appointment in the Education Department, got relieved from the Social Welfare Department without waiting for any orders to be passed by the Social Welfare Department conferring pay protection. Even the writ petitioner has not sought for pay protection in writing prior to joining the post of Secondary Grade Teacher in the Education Department. In such circumstances, claim for pay protection raised by the respondent/writ petitioner, cannot be countenanced.
24. In view of the above, we are of the opinion that the order of the Page No.15/18 http://www.judis.nic.in W.A.No.1118 of 2019 learned Single Judge in extending the benefit of G.O.Ms.No.1580, dated 18.10.1969 and G.O.Ms.No.2357, 27.12.1983 to the writ petitioner, is not acceptable and hence, the same is liable to be set aside. Accordingly, the same is set aside and this Writ Appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.
(R.P.S.J) (S.S.K.J)
05.03.2021
Speaking Order : Yes / No
Index : Yes / No
pvs/cs
To
1. The Secretary to Government,
The Government of Tamil Nadu,
School Education Department,
Fort St. George, Chennai 9.
2. The Director of Elementary Education,
College Road, Chennai 600 006.
3. The State Commissioner for differently abled,
No.15/1, Model School Road,
Thousand Lights, Chennai 600 006.
4. The District Elementary Educational Officer,
Page No.16/18
http://www.judis.nic.in
W.A.No.1118 of 2019
Namakkal District, Namakkal.
R.SUBBIAH, J
and
SATHI KUMAR SUKUMARA KURUP, J
Page No.17/18
http://www.judis.nic.in
W.A.No.1118 of 2019
cs
Pre-Delivery Judgment in
Writ Appeal No.1118 of 2019
and CMP.No.8039 of 2019
05.03.2021
Page No.18/18
http://www.judis.nic.in