Madras High Court
Mrs.D.Raja Malar vs The State Of Tamil Nadu on 30 July, 2020
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P(MD)No.8313 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.07.2020
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)Nos.8313,8317 & 8319 of 2020
W.M.P(MD).Nos.7710, 7712 & 7716 of 2020
W.P(MD)No.8313 of 2020
Mrs.D.Raja Malar ... Petitioner
-Vs-
1.The State of Tamil Nadu,
Represented by its Principal Secretary,
Department of School Education,
Fort St. George, Chennai-09.
2.The Director of Elementary Education,
Directorate of Elementary Education,
Chennai-06.
3.The District Education Officer,
Tirunelveli, Tirunelveli District.
4.The Chairman,
Teachers Recruitment Board,
EVK Sampath Maligai,
DPI Compound, College Road,
Chennai-06. ...Respondents
Prayer: Writ Petition is filed under Article 226 of Constitution of India,
to issue a Writ of Certiorarified Mandamus, calling for the records on
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W.P(MD)No.8313 of 2020
the files of the third respondent in O.Mu.No.567/a5/2020 dated
11.06.2020 and quash the same being illegal, invalid, and aginst the law
laid down by this honourable Court and also violated the principles of
natural justice and contrary to the law and direct the respondent to
dispose the petitioner salary increments pending from the April 2013
without insisting the pass on 'TET' examination.
W.P(MD)No.8317 of 2020
Mrs.P.Kavitha ... Petitioner
-Vs-
1.The State of Tamil Nadu,
Represented by its Principal Secretary,
Department of School Education,
Fort St. George, Chennai-09.
2.The Director of Elementary Education,
Directorate of Elementary Education,
Chennai-06.
3.The District Education Officer,
Tirunelveli, Tirunelveli District.
4.The Chairman,
Teachers Recruitment Board,
EVK Sampath Maligai,
DPI Compound, College Road,
Chennai-06. ...Respondents
Prayer: Writ Petition is filed under Article 226 of Constitution of India,
to issue a Writ of Certiorarified Mandamus, to call for the records on the
file of the third respondent in O.Mu.No.569/a5/2020 dated 11.06.2020
and quash the same being illegal, invalid and against the law laid down
by this Honourable Court and also violated the principles of natural
justice and contrary to the law and direct the respondent to dispose the
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W.P(MD)No.8313 of 2020
petitioner salary increments pending from the April 2013 without
insisting the pass on 'TET' examination or issue such other writ.
W.P(MD)No.8319 of 2020
Mrs.J.Metilda Mary Juliet ... Petitioner
-Vs-
1.The State of Tamil Nadu,
Represented by its Principal Secretary,
Department of School Education,
Fort St. George, Chennai-09.
2.The Director of Elementary Education,
Directorate of Elementary Education,
Chennai-06.
3.The District Education Officer,
Tirunelveli, Tirunelveli District.
4.The Chairman,
Teachers Recruitment Board,
EVK Sampath Maligai,
DPI Compound, College Road,
Chennai-06. ...Respondents
Prayer: Writ Petition is filed under Article 226 of Constitution of India,
to issue a Writ of Certiorarified Mandamus, to call for the records on the
file of the third respondent in O.Mu.No.568/a5/2020 dated 16.06.2020
and quash the same being illegal, invalid and against the law laid down
by this Honourable Court and also violated the principles of natural
justice and contrary to the law and direct the respondent to dispose the
petitioner salary increments pending from the April 2013 without
insisting the pass on 'TET' examination or issue such other writ.
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W.P(MD)No.8313 of 2020
For Petitioners : Mr.D.Vijayakumar
For R1 to R3 : Mrs.S.Srimathy,
Special Government Pleader
For R4 : Mr.V.R.Shanmuganathan
Standing Counsel
COMMON ORDER
The prayer sought for herein is for a Writ of Certiorarified Mandamus, to call for the records on the file of the third respondent in O.Mu.No.567/a5/2020 dated 11.06.2020, O.Mu.No.569/a5/2020, dated 11.06.2020 and O.Mu.No.568/a5/2020 dated 16.06.2020 respectively and quash the same and direct the third respondent to dispose the petitioners salary increments pending from April 2013 without insisting the pass on 'TET' examination.
2. Heard Mr.D.Vijayakumar, learned counsel appearing for the petitioners and Mrs.S.Srimathy, learned Special Government Pleader appearing for the respondents 1 to 3 and Mr.V.R.Shanmuganathan, learned Standing Counsel appearing for the fourth respondent.
3.Since the facts of the case in all the writ petitions and the issue raised therein are common, with the consent of both sides, these writ 4/16 http://www.judis.nic.in W.P(MD)No.8313 of 2020 petitions are being disposed of at the admission stage itself, by this common order.
4.The short facts leading to filing of this writ petition are that, the petitioners were appointed at the Sarah Tucker Girls Higher Secondary School, Tirunelveli as B.T.Assistant (English) on 17.09.2010, Tamil Pandit on 20.06.2011 and Tamil Pandit on 20.06.2011 respectively. On such appointment, the School had sent a proposal for approval of such appointments and on considering the said proposals, the third respondent vide proceedings dated 02.01.2012, 15.11.2011 and 15.11.2011 respectively has given approval to such appointments.
5.By the said approval orders, the third respondent approved the appointment of the petitioners as B.T., Assistant and Tamil Pandit at the Sarah Tucker Girls Higher Secondary School, Tirunelveli from the date of their appointment. Thereafter, the petitioners have been continuously working in that School.
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6.However, the present grievance of the petitioners is that, the petitioners even though have been working in the approved post from the date of their appointment, they have not been given the annual increment, for which, they are entitled. When such request was made to the respondents to grant the annual increment of pay to the petitioners, the same has now been rejected through the impugned orders, dated 11.06.2020, 11.06.2020 and 16.06.2020 respectively, by the third respondent. Challenging the said orders, the present writ petitions have been filed.
7. Mr.D.Vijayakumar, learned counsel appearing for the petitioners has brought to the notice of this Court that, the one and only reason cited in the impugned order for denying such annual increment to the petitioners is that, the petitioners have not completed the 'Teacher Eligibility Test' (for brevity 'TET') qualification and without TET qualification since the petitioners were appointed and they were approved, in order to give the annual increment, was there any Government order issued in that effect, they asked that should be produced.
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8.In this context, the learned counsel would further submit that, the very reason cited in the impugned order does not hold good, because, the TET qualification itself was prescribed by the National Council for Teacher Education (for brevity NCTE) originally on 23.08.2010 and subsequently, by amendment, as per NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Amendment Regulations 2011, by way of notification, dated 27.09.2011. Therefore, from that date only the said qualification of TET prescribed by NCTE has become a mandatory one. In other words, the Teachers, who are appointed on or after 27.09.2011 should have the qualification of TET, without which, their appointment cannot be approved and they will not be entitled to get service benefits. However, according to the learned counsel appearing for the petitioner, the petitioners admittedly were appointed on 17.09.2010, 20.06.2011 and 20.06.2011 respectively and the same having been approved by the third respondent vide his proceedings dated 28.12.2011, 15.11.2011 and 15.11.2011 respectively such appointments obviously are prior to the cut-off date i.e., 27.09.2011. Therefore, the said reason of having the qualification of TET as prescribed by the NCTE insofar as the petitioners are concerned, may not 7/16 http://www.judis.nic.in W.P(MD)No.8313 of 2020 be applicable and therefore, citing the said reason since the impugned orders have been passed, it cannot be sustained. Hence, the learned counsel seeks indulgence of this Court.
9. I have heard Mrs.S.Srimathy, learned Special Government Pleader appearing for the official respondents, who would submit that, the TET have become the necessary and mandatory qualification for every Teacher to be appointed both in Government as well as the Government Aided Schools and without such qualification, no appointment of Teacher can be made and if at all, any appointment is already made, those Teachers have been given time to complete the TET qualification and without having qualified with the TET qualification, the petitioners cannot seek for any additional service benefits like the annual increment. Therefore, it has rightly been rejected by the third respondent through the impugned orders. Therefore, the said order may not be interfered with by this Court.
10. I have considered the said submissions made by the learned counsel appearing for the parties and perused the materials placed before this Court.
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11.The only controversy which arises in this writ petition is, whether the reason cited in the impugned order that, the petitioners should have qualified with TET qualification, even though they were appointed on 17.09.2010, 20.06.2011 and 20.06.2011 respectively and from that date, their appointments have also been approved by the 3rd respondent, for getting the benefit like the annual increment, is hold good or not.
12. In this context, the learned counsel appearing for the petitioners has relied upon a decision of the learned Judge of this Court exactly on the same point made in a batch of writ petitions in W.P(MD).Nos.5626 to 5630 of 2017 etc., dated 08.03.2019 in the matter of M.Maharani Vs. State of Tamil Nadu rep., by its Secretary, Department of School Education and others. In the said order, the learned counsel for the petitioner relied upon para No.10, which reads thus.
“10.However, there is no cut off date specified in the said G.O.Ms.No.181, with regard to acquiring the qualification of pass TET to continue in service as B.T.Assistants/Secondary Grade Teachers, who are working 9/16 http://www.judis.nic.in W.P(MD)No.8313 of 2020 as such in the respondent Schools. In this regard, a cursory glance at Clause (5) of the notification dated 23.08.2010 and its amended notification dated 29.07.2011 issued by the NCTE, the contents of which are reproduced at paragraph Nos.8.2 and 8.4 above, would reveal that if the http://www.judis.nic.in process of appointment of teachers was initiated prior to the date of notification by issuing advertisement, such appointments have to be made in accordance with NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations 2001, there is no qualification prescribed with regard to possession of TET certificate, for appointment to the post of B.T.Assistant and Secondary Grade Teachers. The qualification of passing TET was first introduced by the notification dated 23.08.2010 and it was amended vide notification dated 27.09.2011 and the teachers, who were appointed prior to that date need not pass TET and even in the case of the teachers who were appointed after that date, if the advertisement to initiate the process of appointment of teachers was made prior to that date, then, their appointments also can be in accordance with the NCTE Regulations 2001 and they need not acquire the TET qualification.“
13. From the reading of the said judgment, it has become clear that the NCTE prescribed the qualification of TET originally from 23.08.2010 and subsequently from 27.09.2011 by way of notification. 10/16 http://www.judis.nic.in W.P(MD)No.8313 of 2020 Therefore, the actual date, on which, the said qualification become mandatory is 27.09.2011. Therefore, those teachers, who were appointed prior to 27.09.2011 cannot be put against the said prescription of the NCTE and this has been exactly decided by the learned Judge in the said judgement, referred to above.
14. In the case of the petitioners, they were appointed on 17.09.2010, 20.06.2011 and 20.06.2011 respectively in the sanctioned vacancy as B.T.Assistant and Tamil Pandit at the fifth respondent School and the said appointments, having been considered, was approved by the third respondent vide his proceedings, dated 28.12.2011, 15.11.2011 and 15.11.2011 respectively, where it has been specifically stated that, the petitioners were appointed on 17.09.2010, 20.06.2011 and 20.06.2011 and approval was also given from the date of their appointment.
15.Therefore, it has become quite clear that, the appointment of the petitioners as on 17.09.2010, 20.06.2011 and 20.06.2011 having been approved by the third respondent through the said approval order, the applicability of the prescription made by NCTE to have such 11/16 http://www.judis.nic.in W.P(MD)No.8313 of 2020 qualification, insofar as the petitioners are concerned, cannot be made or applied. Therefore, the said reason cited in the impugned order by the third respondent, in the considered opinion of this Court, may not hold good. Therefore, on that reason, the petitioners service benefit like annual increment cannot be denied.
16.Moreover, once the appointments are approved by the authority and the same still holds good, the petitioners have been brought under regular time scale of pay. When that being the position, the annual increment is part and parcel of the time scale of pay system being adopted for permanent employees/Teachers of the Government is concerned and when such is the position, the third respondent cannot insist upon any Government Order, which cannot be created by the petitioners.
17.More over, if at all, any such request is made by the petitioners for annual increment, that should have been decided by the respondents by taking into account the relevant Rule position, Service Law and the Government order, if any available with the respondents, instead, off 12/16 http://www.judis.nic.in W.P(MD)No.8313 of 2020 late, it has become a practice that some of the officials/authorities would raise a question stating that, in order to get the benefit sought for by the employees/Teacher/incumbent, whether any Government order is available in their favour .
18.Whether any Government order is available in their favour or not, whether they are entitled to have such a benefit or not, can be decided only by the authority and not by the person, who seeks it. Therefore, that kind of questions being raised by the authorities would show that, they abdicate their responsibility on the very employee or Teacher concerned, which kind of practice cannot be approved by this Court.
19.Therefore, this Court is of the considered view that, the reason cited in the impugned orders cannot be sustained in the eye of law. Hence, it is liable to be interfered with.
20.In the result, the impugned orders are quashed and the respondents are directed to reconsider the request of the petitioners with 13/16 http://www.judis.nic.in W.P(MD)No.8313 of 2020 regard to their plea for grant of annual increment as their appointment dated 17.09.2010, 20.06.2011 and 20.06.2011 respectively having been approved by the third respondent vide his proceedings dated 28.12.2011, 15.11.2011 and 15.11.2011 respectively, this Court feels that, there can be no further impediment for the petitioners to get such benefits. Therefore, suitable order to that effect shall be passed by the official respondents within a period of eight (8) weeks from the date of receipt of a copy of this order.
21.With these directions, these Writ Petitions are ordered accordingly. No costs. Consequently, connected Miscellaneous Petitions are closed.
30.07.2020 Index : Yes/No Internet : Yes/No am Note:In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.
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1.The Principal Secretary, Department of School Education, Fort St. George, Chennai-09.
2.The Director of Elementary Education, Directorate of Elementary Education, Chennai-06.
3.The District Education Officer, Tirunelveli, Tirunelveli District.
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am W.P.(MD)Nos.8313,8317 & 8319 of 2020 30.07.2020 16/16 http://www.judis.nic.in