Madras High Court
The Government Of Tamilnadu vs S.Sugunabharathi on 19 December, 2018
Bench: S.Manikumar, Subramonium Prasad
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.12.2018
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.2817 of 2018
and
C.M.P.No.23424 of 2018
1.The Government of Tamilnadu
Rep. by its Principal Secretary,
School Education Department,
Fort St. George, Chennai - 600 009.
2.The Director of Elementary Education
College Road, Nungambakkam,
Chennai - 600 006.
3.The District Elementary Educational
Officer, Tuticorin.
4.The Assistant Elementary Educational
Officer, Thiruchendur,
Tuticorin District. ... Appellants
vs.
S.Sugunabharathi ... Respondent
Prayer: Writ Appeal is filed under Clause 15 of Letters Patent, against
the order made in W.P.No.8648 of 2009, dated 21.09.2017.
http://www.judis.nic.in
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For Appellants : Mr.C.Munusamy
Special Govt. Pleader (Education)
For Respondent : Mr.J.Antony Jesus
JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR, J) Instant writ appeal is filed against the order made in W.P.No.8648 of 2009, dated 21.09.2017, by which the Writ Court set aside the proceedings in Na.Ka.No.4845/L2/2009, dated 27.02.2009 of the Director of Elementary Education, Chennai, second respondent therein, and consequentially issued directions to the respondent Nos.3 and 4 therein, to pay arrears of annual increments and all the monetary benefits for the period from 01.06.1988 to 31.12.2000.
2. Shorts facts leading to the appeal are that the petitioner was appointed as Secondary Grade Headmistress on 01.06.1970 and served as Elementary School Headmistress from 01.06.1970 to 04.09.1978 in Senthamarai Hindu Primary School, Tiruchendur Panchayat Union. On 09.06.1980, the petitioner was reverted as Secondary Grade Teacher due to administrative reason and placed below a temporary person in the said lower category of Secondary Grade Assistant Teacher. http://www.judis.nic.in Subsequently, on 01.08.1995 she was promoted as Elementary School 3 Headmistress.
3. According to the writ petitioner/respondent herein, at the time when she was reverted, she ought to have been posted as Elementary School Headmaster and not in the lower post, with loss of seniority, in which event, the writ petitioner/respondent herein, would have been entitled to the Selection Grade, Special Grade Elementary School Head Master, in terms of the Government Order issued on the subject matter. When the writ petitioner was posted as Secondary Grade Teacher, the post of Elementary School Headmaster, Secondary Grade Teacher carried the same pay scale and therefore, there was no loss of emoluments. However, after the commencement of the Fifth Pay Commission, the pay scale of Elementary School Headmaster was revised higher than the Secondary Grade Teachers.
4. In the above said circumstances, similarly placed teachers have approached Tamilnadu Administrative Tribunal in O.A.No.6090 of 1995 seeking pay protection as that of Elementary School Headmasters. The Tamilnadu Administrative Tribunal by its order dated 13.02.2002, allowed the original application alongwith a batch of applications, granting pay protection to the teachers, who are similarly placed persons like the petitioner herein. http://www.judis.nic.in 4
5. As against the order of the learned Tribunal, petition in W.P.No.43010 of 2006, was filed.
6. After hearing the learned counsel for the parties, vide order dated 21.09.2017 in W.P.No.8648 of 2009, writ court has ordered as hereunder:-
9. This Court, upon considering the submissions is entirely in agreement with the submissions made on behalf of the learned counsel for the petitioner. As set out above, the learned counsel would demonstrate as to how the case of the petitioner is distinguishable from the other Elementary School Headmasters, who are appointed and reverted only during the period between 1981 and 1988. No special reasons have been spelt out as to how the case of the petitioner can be dealt with differently in the matter of petitioner's promotion.
In the absence of distinguishable criteria between the petitioner and the other similarly placed Elementary School Head Masters, this Court finds that the present impugned proceedings is violative of Article 14 of the Constitution of India. In the above said circumstances, this Court has no hesitation in accepting the case of the petitioner. http://www.judis.nic.in 5 The writ petition is therefore allowed and the impugned proceedings issued by the second respondent in Na.Ka.No.4845/L2/2009 dated 27.02.2009 is set aside. No costs. Consequently, connected miscellaneous petitions are closed.
10. It is brought to the notice of this Court that during the pendency of the writ petition, an amendment was sought in the prayer and the same has been allowed and the prayer has been amended as follows:
''To direct the 3rd and 4th respondents to pay the arrears of annual increments and all the monetary benefits for the period from 01.06.1988 to 31.12.2000 which was sanctioned pursuant to G.O.Ms.No.202 of 2008 dated 24.09.2008''.
11. In view of the same, the authorities are directed to pass consequential orders granting him all the attendant benefits to the petitioner as prayed for within a period of two months from the date of receipt of a copy of this order."
7. Being aggrieved by the same, instant writ appeal is filed on the following grounds:-
"(1) Writ Court has failed to consider that the writ petitioner/respondent herein has not challenged the parent order in G.O.Ms.No.202, http://www.judis.nic.in School Education (G2) Department dated 25.09.2008 6 but challenged only the proceedings Na.Ka.No.4845/L2/2009 of the second appellant herein. The impugned proceedings dated 27.02.2009 of the second appellant herein, in W.P.No.8648 of 2009 is only information's given to a petition made under Right to Information Act, 2005 by one P.Elakkumanan, Treasurer of the Tamilnadu Primary Schools Association. Therefore even the intrigued proceedings dated 27.02.2009 of the second appellant herein was quashed by this Court, by order dated 21.09.2017 in W.P.No.8648 of 2009 of the respondent herein, the parent order in G.O.Ms.No.202, School Education (G2) Department, dated 25.09.2008, is operative and according to the orders in para 4 of the said G.O., the respondent is not entitled for the benefits granted therein since the case of the respondent herein is entirely different from G.O.Ms.No.202, School Education (G2) Department, dated 25.09.2008. It is submitted that G.O.Ms.No.202, School Education (G2) Department, dated 25.09.2008 speaks about those who were transferred from the post of Headmaster of Elementary School of one Panchayat Union prior to the date of 01.06.1988 to a different Panchayat Union even as Secondary Grade Teachers should be considered as Headmaster of Elementary School in the transferred Panchayat Union and they should be http://www.judis.nic.in granted selection grade/special grade in the post by 7 Headmaster of Elementary School rendered by them prior to 01.06.1988 as per G.O.Ms.No.666, Finance Department, dated 27.06.1989. But the respondent herein was not transferred from one Panchayat Union to a different Panchayat Union. She had worked in the Schools located in the Panchayat Union, Thiruchendur.
(2) It is submitted that this Court in the order dated 21.09.2017, made in W.P.No.8648 of 2009 it is reordered that W.P.No.33011 of 2017 of the writ petitioner has been disposed of directing the second appellant herein to consider the representation of the respondent herein on merits and in accordance with law. But without considering the factual position of non-applicable of G.O.Ms.No.202, School Education (G2) Department, dated 25.09.2008 to the respondent herein, then Assistant Elementary Educational Officer, Trichendur has mistakenly refixed the pay of the respondent herein in the proceedings NaKa No. Nil/A/2008 dated 26.12.2008, in the special grade of Primary School Headmaster post on 01.06.1988 by wrongly applying G.O.Ms.No.202, School Education (G2) Department, dated 25.09.2008 by presuming the above said order dated 12.07.2007 of this Court in W.P.No.33011 of 2007 as if it was infavour of the respondent herein.
http://www.judis.nic.in When the above said mistake came to the present 8 fourt appellant, has not paid the inadmissible arrears of pay for the period from 01.06.1988 to 31.05.2001 due to wrong fixate of pay from 01.06.1988 as stated above.
(3) Writ Court failed to consider the non- eligibility of revision of pay as per inapplicability of G.O.Ms.No.202, School Education (G2) Department, dated 25.09.2008.
(4) It is submitted that Tmt.S.Sugunabharathi, respondent herein, had worked as Headmaster in a Private School namely, Hindu Primary School, Chenthamaravilai from 01.06.1970 to 04.09.1978 and from 05.09.1978 the school was absolved as Panchayat Union Primary School. Hence, the question of transfer of the respondent herein from the Panchayat Union to another Panchayat Union did not arose and hence application of G.O.Ms.No.202, School Education (G2) Department, dated 25.09.2008, is not warranted. Since Panchayat Union is a unit and the respondent was absorbed in to Panchayat Union is a unit and the respondent herein was absorbed into Panchayat Union Schools were under the control of Local Body Department, the respondent herein was not senior enough to be acted as Headmaster, she was riveted as Secondary Grade http://www.judis.nic.in Teacher from 09.06.1980 in the same Panchayat 9 Union and later by virtue of her Seniority, she was promoted as Headmaster of Elementary School on 01.08.1995 in the same Panchayat Union to another Panchayat Union was never taken place to 01.06.1988 and after 01.06.1988. Hence, G.O.Ms.No.202, School Education (G2) Department, dated 25.09.2008 which speaks about transfer of Primary School Headmasters of Panchayat Union School from one Panchayat Union to another Panchayat Union as Secondary Grade Teachers could not be applied to the case of the respondent herein who served in the same Panchayat Union from her date of employment till her retirement.
(5) Writ Court failed to note that no special reasons have been spelt out as to hone case of the respondent herein can be dealt with differently in the matter of petitioners promotion. The promotion of the respondent herein after placing him as Secondary Grade Teacher to the post of Headmaster on 01.08.1995 is not a dispute in W.P.No.8648 of 2009. The writ petitioner was acting as Headmaster from 01.06.1970 to 04.09.1978 in an aided Primary School. There is no provision in G.O.Ms.No.202, School Education (G2) Department, dated 25.09.2008, and in any other Government Order to grant special grade in the post of Headmaster of Elementary School from 01.06.1988 to the http://www.judis.nic.in Headmaster of Aided School who was absorbed in 10 Panchayat Union School Prior to 01.06.1988 either as headmaster or Secondary Grade Teacher.
(6) It is submitted that even in the absence of the proceedings of the second appellant herein, in Naka No.4845/L2/2009 dated 27.02.2009 which was quashed by this Hon'ble Court by order dated 21.09.2017 in W.P.No.8648 of 2009, G.O.Ms.No.202, School Education (G2) Department, dated 25.09.2008 is objective and the respondent's case is not come under the purview of G.O.Ms.No.202, School Education (G2) Department, dated 25.09.2008. Hence, denial of the benefit of that G.O. on the ground of non-applicability of G.O.Ms.No.202, School Education (G2) Department, dated 25.09.2008, is not violate of Article 14 of the Constitution of India."
8. On this day, when the matter came up for hearing, Mr.C.Munusamy learned Special Government Pleader submitted that, a similar common order was challenged by the State in W.A.Nos.125 and 696 of 2016, and that the same have been dismissed by a Hon'ble Division Bench of this Court, on 26.06.2018 and that the facts of the instant writ appeal, are squarely covered by the abovesaid decision.
Submission is placed on record.
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9. We have also perused the common order made in W.A.Nos.125 and 696 of 2016, dated 26.06.2018, and relevant portion of the order, reads thus:-
4. To redress the said anomaly the Government passed a G.O. in G.O.Ms.No. 202, School Education (G2) Department, dated 24.09.2008, wherein the Government accepted the orders of the Tamil Nadu Administrative Tribunal and directed the implementation of the same.
The operative portion of the G.O. reads as follows:
"4. nkw;fz;;l epiyapy; jkpH;ehL eph;thf jPh;g;ghizaj;jpd; Mizapd; mog;gilapy; bjhlf;ff; fy;tp ,af;Fehpd; fUj;JUit muR ed;F ghprPyid bra;J 01/06/1988?f;F Kd; bjhlf;fg; gs;sp jiyikahrphpauhf gzpg[hpe;j Mrphpah;fs; khWjy; bgw;wgpd;. khWjy;
bgw;w xd;wpaj;jpy; mth;fs; ,ilepiy Mrphpauhf nrh;e;jpUe;jhYk;. khWjy; bgw;w xd;wpaj;jpy;
gzpapy; nrh;e;j ehs; Kjy; bjhlf;fg; gs;sp jiyikahrphpauhf fUjg;gl ntz;Lk; vdt[k; ,f;nfhhpf;if bjhlh;ghf ePjpkd;wj;jpy; tHf;F bjhlh;e;J Miz bgw;wth;fs;. kw;Wk; tHf;F bjhluhjth;fs; cl;gl midtUf;Fk; 01/06/1988?f;F Ke;ija gzpf;fhyj;ij fzf;fpl;L. 5?tJ Cjpa FGtpd; ghpe;Jiuapd; http://www.judis.nic.in 12 mog;gilapy; btspaplg;gl;l murhiz (epiy) vz;/ 666.
epjpj;Jiw. Ehs; 27/06/1989?d;go njh;t[epiy/ rpwg;g[ epiy Cjpa eph;zak; bra;a mDkjp mspj;Jk;
muR MizapLfpwJ/"
Since the benefit of the said G.O. was denied to the respondents they had come forward with the above Writ Petitions, seeking to quash the orders dated 19.05.2009 and 27.02.2009 and to direct the appellants herein to strictly comply with G.O.Ms.No. 202, School Education (G2) Department dated 24.09.2008.
7. The material portion of G.O.Ms.202 School Education (G2) Department dated 24.09.2008, extracted above would show that any person who has served as a Primary School Headmaster before 01.06.1988, who has been transferred as a Secondary Grade Teacher, either before or after that date, would be entitled to be treated as Primary School Headmaster and the benefits would be conferred on them irrespective of the fact that they have not approached the Court.
8. The facts are not in dispute. It is admitted that the respondents had worked as Primary School Headmasters before 01.06.1988 and were transferred and posted as Secondary Grade Teachers.
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9. In view of the clear terms of the G.O., we do not see any reason to interfere with the order of the learned Single Judge. We conclude that the respondents in these Appeals would be entitled to the benefits of G.O.Ms.No. 202 School Education (G2) Department dated 24.09.2008. The Appeals fail and they are dismissed. However, in the circumstances, there will be no order as to costs. Consequently, the connected miscellaneous petitions are closed."
10. Decision made in the abovesaid writ appeals, is squarely applicable to the case on hand.
11. For the reasons stated supra, instant writ appeal is dismissed. No Costs. Consequently, the connected civil miscellaneous petition is closed.
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12. Order of this Court in the instant writ appeal, shall be implemented within four weeks, from the date of receipt of a copy of this order.
(S.M.K., J.) (S.P., J.) 19.12.2018 Index: Yes/No Internet: Yes/No dm http://www.judis.nic.in 15 S.MANIKUMAR,J.
AND SUBRAMONIUM PRASAD, J.
dm W.A.No.2817 of 2018 and C.M.P.No.23424 of 2018 http://www.judis.nic.in 19.12.2018