Madras High Court
S.Prabhavathi vs The Government Of Tamil Nadu on 15 March, 2022
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.P.No.1718 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.3.2022
CORAM
THE HONOURABLE Mr.JUSTICE D.KRISHNAKUMAR
W.P.No.1718 of 2022
and W.M.P.No.1864 & 1866 of 2022
1 S.Prabhavathi ... Petitioner
Vs.
1 The Government Of Tamil Nadu
Rep. by its Principal Secretary to Govt.,
(School Education Department)
Fort St. George Chennai-9.
2 The Commissioner Of School Education,
DPI Campus, College Road,
Nungampakkam, Chennai-6.
3 The Joint Director (Personnel)
Dept. of School Education, DPI Campus,
College Road, Nungambakkam, Chennai-6.
4 The Chief Educational Officer,
Villupuram, Villupuram District. ... Respondents
Prayer : The Writ Petition is filed under Article 226 of the Constitution of
India, seeking for a Writ of Certiorarified Mandamus, calling for the records
relating to impugned clause 2 (a) (3) of G.O. (Ms) No.176 School Education
(SE5(1)) Department dated 17.12.2021 of the 1st respondent herein and the
impugned proceedings in Na. Ka. No. 25154/ A1/ E2/ 2021 dated 10.01.2022
of the 2nd respondent herein and quash the same and consequently direct
the respondent herein to permit the petitioner to take part in the transfer
counselling scheduled to be held on 18.02.2022 or any other subsequent
dates by placing the petitioner under priority quota in the light of order
dated 07.01.2022 in W.P.(MD) No.266 of 2022 of this Court.
https://www.mhc.tn.gov.in/judis
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W.P.No.1718 of 2022
For Petitioner : Mr.S.N.Ravichandran
For Respondents : Mr.R.Neelakandan, A.A.G.
Assisted by Mrs.M.Keerthika, G.A.
******
ORDER
By the consent of parties, the writ petition is taken up for final disposal.
2. According to the petitioner, the petitioner was working as BRTE and as per G.O.(Id) No.134 dated 18.8.2021, the respondent herein has conducted conversion counseling. Earlier, by order dated 14.9.2021 in W.P.(MD) No.16310 of 2021, this Court granted an interim order that the petitioners in the said writ petition can participate in the conversion counselling without prejudice to their right and they can exercise their option for the transfer places and the respondent shall not pass any order in sofar as the aforesaid writ petitioners are concerned. The petitioner participated in counselling for conversion conducted on 15.9.2021 and the petitioner was allotted Government High School, Poyyapakkam, Villupuram district. In the aforesaid writ petition, the learned Additional Advocate General has given an undertaking that BRTE teachers will be given preference in General Transfer Counselling. According to the petitioner, the Government has issued a G.O.(Ms.) No.176 School Education department datd 17.12.2021 for conducting the transfer counselling for B.T. Assistant. According to the petitioner, in the light of the order passed by this Court in https://www.mhc.tn.gov.in/judis 2/7 W.P.No.1718 of 2022 W.P.(MD) No.266 of 2022 dated 7.1.2022, the petitioner is also entitled to participate in the General transfer Counselling.
3. The learned Additional Advocate General appearing for the respondents would submit that the request of the petitioner cannot be entertained on the ground that the petitioner has not approached this Court and challenged the G.O.No.134 of School Education department, dated 18.8.2021. In the aforesaid interim order, those teachers who challenged the G.O.No.134 dated 18.8.2021 in the earlier round of litigation alone entitled to participate in the General Transfer Counselling. At that time, the petitioner did not raise any objection to participate in the General transfer Counselling and she selected the place on her own choice. Thereafter, final order passed by this Court in W.P.No.16310 of 2021, etc. Batch case, wherein the Additional Advocate General given an undertaking that those teachers who filed the writ petition challenging the aforesaid G.O.Ms.No.134 dated 18.8.2021 alone will be given preference in the General Transfer Counselling. Further, there is one year bar to the petitioner from participating General Transfer Counselling since she already participated in the Counselling and selected a place of her own choice. Therefore, the petitioner is not entitled to claim the said benefit. https://www.mhc.tn.gov.in/judis 3/7 W.P.No.1718 of 2022
4. Heard the rival submissions of the parties and perused the materials available on record.
5. The learned counsel appearing for the petitioner drew the attention of this Court to the order passed by this Court in W.P(MD) No.16310 of 2021 datd 24.11.2021 wherein relief has been granted based on the undertaking given by the Additional Advocate General that preference will be given to the BRTE teachers in the General Transfer Counselling and seeks same relief to be granted to the writ petitioner.
6. On perusal of the order dated 24.11.2021 it clearly shows that the writ petition filed against the G.O.Ms.No.134 dated 18.8.2021 challenging the transfer of BRTE teachers to Government High/Higher Secondary Schools as B.T. Assistants. At the time of final order passed by this Court, based on the undertaking given by the learned Additional Advocate General before this Court that the writ petitioners/BRTE teachers will be given preference in General Transfer Counselling. Further, G.O.Ms.No.134 dated 18.8.2021 which was challenged in the aforesaid writ petition was not quashed and recording the said undertaking, the writ petition was dismissed.
https://www.mhc.tn.gov.in/judis 4/7 W.P.No.1718 of 2022
7. The Delhi High Court in UNION OF INDIA AND OTHERS. VS. SANJAY KUMAR NAIK AND OTHERS [WRIT PETITION (CIVIL) No.9413 of 2016] has held as under:
''45. A careful reading of the aforesaid principles reveals that the principle of in rem in the second sense is not absolute. It is preferable to follow the said principle so that there is no discrimination or violation of Article 14 in service matters for all similarly situated persons should be treated alike and not differently. However, delay and laches as well as acquiescence can be a ground to deny benefit to fence sitters. Those who do not approach the Court in a timely and prompt manner can be denied "equal treatment". Thus, it will be right to hold that doctrine of in rem in the second sense is not unconditional or unimpeachable. However, this exception would not apply where the earlier judgment pronounced by the Court is with the intent to give benefit to all similarly situated persons, whether they had approached the Court or not. Benefit should not be extended when the said intent is not there and the judgment expressly or impliedly states that the benefit of the judgment would be extended to those, who had sought to enforce their rights and their petitions were not stale on account of delay and laches or acquiescence.'' https://www.mhc.tn.gov.in/judis 5/7 W.P.No.1718 of 2022
8. The petitioner who has not challenged the said G.O. nor raised any objection to participate in the General transfer Counselling and she has selected the place of her own choice, after watching the proceedings as fencesitter without approaching the Court in time, the petitioner is estopped from claiming the same benefit granted in W.P.(MD) No.16310 of 2021 dated 24.11.2021.
9. In view of the above, the writ petition stands dismissed. No Costs. Connected miscellaneous petitions are closed.
15.3.2022 Speaking / Non-Speaking order Internet:Yes/No Index:Yes/No vaan To 1 The Principal Secretary to Govt., Government of Tamil Nadu, School Education Department, Fort St. George Chennai-9.
2 The Commissioner Of School Education, DPI Campus, College Road, Nungampakkam, Chennai-6. 3 The Joint Director (Personnel) Dept. of School Education, DPI Campus, College Road, Nungambakkam, Chennai-6.
4 The Chief Educational Officer, Villupuram, Villupuram District. https://www.mhc.tn.gov.in/judis 6/7 W.P.No.1718 of 2022 D.KRISHNAKUMAR,J.
vaan W.P.No.1718 of 2022 and W.M.P.No.1864 & 1866 of 2022 Dated: 15.3.2022 https://www.mhc.tn.gov.in/judis 7/7