Madras High Court
S.Arulappan vs The Government Of Tamil Nadu on 18 November, 2013
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.11.2013
CORAM:
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
Writ Petition Nos.4505 of 2012, 4506, 21188, 26744 of 2012,
1395 to 1398 of 2013, 4352, 4354, 4355, 5078, 5328, 5335,
5336, 5426, 5497, 5920, 5925, 6809, 7483, 8476, 8668, 8669,
9001, 9026, 9188, 9390, 9605, 9917, 9995, 10212, 10648,
10792, 11015, 11017, 11108, 11215, 11558, 11575, 11578,
11589, 11990, 12429, 12434, 12436, 12464, 12492, 12507,
12508, 13394, 14243, 15067 to 15069, 15433, 15557, 15765,
15778, 15782, 16019, 16131, 16135, 16142 to 16145, 16156,
16232, 16261, 16327, 16343, 16348 & 16349, 16449, 16846,
17313, 17318, 17369, 17514, 17591, 17610, 17612, 17885,
18180, 18184, 18222, 18373, 18484, 18836, 19025 to 19030,
19287, 19300, 19967, 20005, 20157, 20304, 20468, 20655, 20656,
20698, 21000 to 21005, 21247, 21339, 21957, 21958, 21960, 21964,
22236, 22238, 22616, 22626, 23397, 23421, 23490, 23796, 23797,
23805, 24111, 24112, 24122, 24345 and 24382 of 2013
and connected miscellaneous petitions
W.P.No.4505 of 2012
S.ARULAPPAN .. PETITIONER
Vs
1. THE GOVERNMENT OF TAMIL NADU
REP. BY THE SECRETARY TO THE GOVERNMENT,
SCHOOL EDUCATION DEPARTMENT,
FORT ST. GEORGE , CHENNAI-9.
2. THE CHIEF EDUCATIONAL OFFICER,
VILLUPURAM, VILLUPURAM DISTRICT.
3. THE DISTRICT EDUCATIONAL OFFICER,
VILLUPURAM, VILLUPURAM DISTRICT.
4. THE CORRESPONDENT,
SACRED HEART HIGH SCHOOL,
ANILADY, GINGEE TALUK,
VILLUPURAM DISTRICT. .. RESPONDENTS
* * *
Prayer in W.P.No.4505 of 2012 : Writ Petition filed under Article 226 of the Constitution of India seeking for the issuance of writ of Mandamus directing the respondents to extend the benefit of G.O.Ms.No.216 Finance (PC) Department dated 22.3.1993 and G.O.Ms.No.258, School Education Department dated 6.9.2010 and G.O.Ms.No.284, School Education Department dated 30.9.2010 in the light of Orders of the Honourable Division Bench in W.P.No.8747 of 2009 dated 14.7.2009 confirmed by the Honourable Supreme Court of India in CC No.2746/2010 dated 23.4.2010 to the petitioner and grant him all consequential benefits
* * *
For Petitioner in : Mr.P.Rajendran
W.P.No.4505/2012
For Respondents : Mr.AL.Somayaji, Advocate General
in all writ petitions assisted by Mr.V.Subbiah,
Special Government Pleader
and Mr.D.Krishnakumar,
Special Government Pleader
C O M M O N O R D E R
Since common question is involved in all these writ petitions, these writ petitions are disposed of by this common order.
2. The petitioners in all these petitions were Secondary Grade Teachers in the Government High Schools and Higher Secondary School. They are governed by the Tamil Nadu Educational Subordinate Service Rules and they are under the control of the Directorate of School Education. But, on completion of 10 years and 20 years of their service, they claim Selection Grade and Special Grade pay of Primary School Headmaster, while the Primary School Headmasters belong to a different service and governed by Tamil Nadu Elementary Education Subordinate Service Rules and they are under the control of the Directorate of Elementary Education.
3. According to the petitioners, as per G.O.Ms.No.216, Finance (Pay Cell) Department, dated 22.03.1993, they are entitled to Selection Grade and Special Grade pay of Primary School Headmasters. They heavily relied on the judgment of the Division Bench of this Court dated 14.07.2009 in W.P.No.8747 of 2009 confirming the order dated 07.10.1998 in O.A.No.8276 of 1997 of the Tamil Nadu Administrative Tribunal and also the order of the Apex Court dated 23.04.2010 in S.L.P.(CC)No.2746 of 2010 confirming the same. They also relied on various orders of this Court, which are all in terms of the aforesaid order of the Division Bench dated 14.07.2009 in W.P.No.8747 of 2009.
4. Therefore, in all these writ petitions, the issue that arises for consideration is as to whether G.O.Ms.No.216, Finance (PC) Department, dated 22.03.1993 grants the writ petitioners, who were Secondary Grade Teachers in the Government High Schools and Higher Secondary Schools, the Selection Grade and Special Grade pay of the Primary School Headmaster, on completion of 10 years and 20 years of service with effect from 01.06.1988.
5. Heard both sides.
6(i). The learned counsels for the petitioners submitted that the matter is squarely covered by the judgment of the Division Bench of this Court dated 14.07.2009 in W.P.No.8747 of 2009 confirming the order of the Tamil Nadu Administrative Tribunal dated 07.10.1998 in O.A.No.8276 of 1997 and the order of the Division Bench was also confirmed by the Apex Court in the order dated 23.04.2010 in S.L.P.(CC)No.2746 of 2010. It was submitted that the Government also implemented the order by issuing G.O.Ms.No.258, School Education (M1) Department, dated 06.09.2010. Thereafter, hundreds of writ petitions were filed claiming to extend the said benefit and those writ petitions were allowed in terms of the order of the Division Bench of this Court dated 14.07.2009 in W.P.No.8747 of 2009. It was also submitted that the Government issued orders implementing the orders of this Court. In those circumstances, it was submitted that these writ petitioners shall also be extended the same benefit, by following the decision of the Division Bench dated 14.07.2009 in W.P.No.8747 of 2009.
6(ii). They relied on the Full Bench judgment of this Court in Philip Jeyasingh V. The Joint Registrar of Co-op. Societies, reported in 1999 (2) MLJ 309 and the judgment of the Apex Court in Maharaj Krishnan Bhatt V. State of Jammu and Kashmir and Others, reported in (2008) 9 SCC 24 in support of their submission that these writ petitions are to be allowed by following the judgment of the Division Bench dated 14.07.2009 in W.P.No.8747 of 2009.
7(i). On the other hand, the learned Advocate General submitted that the Division Bench dismissed W.P.No.8747 of 2009 on 14.07.2009 on the ground of delay and laches and it was not on merits. He submitted that even the respondent therein sought dismissal of the writ petition on the ground of delay and laches. The Division Bench dismissed the writ petition, since the Government filed the writ petition after 11 years.
7(ii). The learned Advocate General further submitted that the Apex Court also dismissed the Special Leave Petition at the admission stage and the Apex Court did not decide the issue on merits and it was not a speaking order. Hence, the same is not a binding precedent. In this regard, he relied on the judgment of the Apex Court in Union of India V. Jaipal Singh, reported in (2004) 1 SCC 121.
7(iii). Based on the order of the Division Bench, referred to above, hundreds of Secondary Grade Teachers in Government High Schools and Higher Secondary Schools filed writ petitions and obtained orders and with the threat of contempt proceedings, the Government issued orders to implement the same. However, the Government is not able to pay crores of rupees and the monetary benefits is yet to be paid.
7(iv). The learned Advocate General also submitted that the order dated 07.10.1998 in O.A.No.8276 of 1997 was solely based on the order dated 08.05.1996 in O.A.Nos.1113 to 1133 of 1995. Except relying on the order in O.A.Nos.1113 to 1133 of 1995, no other reason was given by the Tribunal in the order dated 7.10.1998 in O.A.No.8276 of 1997. By its order dated 08.05.1996 in O.A.Nos.1113 to 1133 of 1995, the Tribunal interfered with the order cancelling the stagnation increments given to the Secondary Grade Teachers in High Schools and Higher Secondary Schools and the same has nothing to do with the grant of Selection Grade and Special Grade pay of Primary School Headmasters to the Secondary Grade Teachers in Government High Schools and Higher Secondary Schools.
7(v). The learned Advocate General heavily relied on the order dated 03.04.2002 in O.A.Nos.88 of 1996 batch (hundreds of petitions), wherein the applicants therein claimed similar relief, as in these cases, relying on G.O.Ms.No.216, dated 22.03.1993 and the order dated 07.10.1998 in O.A.Nos.8276 of 1997. The Tribunal dismissed those original applications and categorically held that there is no direction in G.O.Ms.No.216, dated 22.03.1993 to give Selection Grade and Special Grade pay of Primary School Headmasters to the Secondary Grade Teachers of High Schools and Higher Secondary Schools. The Tribunal further held that the order in O.A.Nos.1113 to 1133 of 1995 has nothing to do with G.O.Ms.No.216, dated 22.03.1993 and the mater was relating to the cancellation of stagnation of increment to Secondary Grade Teachers in High Schools and Higher Secondary Schools. The Tribunal also categorically held that the Secondary Grade Teachers in High Schools and Higher Secondary Schools constitute a different service and therefore, they could not seek for Selection Grade and Special Grade pay of Primary School Headmasters who belong to a separate service. That order attained finality.
7(vi) The learned Advocate General also heavily relied on the judgment of the Apex Court in Director of School Education V. A.N.Kandaswamy and Another reported in (1998) 8 SCC 26, wherein, the Apex Court reversed the order of the Tamil Nadu Administrative Tribunal granting the Selection Grade and Special Grade pay of Primary School Headmasters to the Secondary Grade Teachers in High Schools and Higher Secondary Schools, since they belong to a different service and they could not compare the service conditions of the teachers in Primary Schools.
7(vii). The learned Advocate General relied on the judgment of the Division Bench of this Court in Director of School Education & Another V. R.S.Srinivasan and another reported in 2004 WLR 526, wherein, the Division Bench has categorically held that a teacher belonging to High School and Higher Secondary School cannot claim the benefit available to a teacher in the Elementary School and Middle School. He has heavily relied on paragraph 12 of the said judgment.
7(viii). The learned Advocate General elaborately made his submissions on the history of the Selection Grade and Special Grade pay in Tamil Nadu Government Service and took me through G.O.Ms.No.666, Finance (Pay Cell) Department dated 27.06.1989, G.O.Ms.No.304, Finance (PC) Department, dated 28.03.1990, the order of the Tamil Nadu Administrative Tribunal dated 13.11.1992 in O.A.No.1625 of 1991, G.O.Ms.No.215, Finance (PC) Department, dated 22.03.1993 and G.O.Ms.No.216, Finance (PC) Department, dated 22.03.1993 and submitted that there is no basis for the claim of the petitioners to grant Selection Grade and Special Grade pay of Primary School Headmasters to the Secondary Grade Teachers of Government High Schools and Higher Secondary Schools, since they belong to a different service and admittedly, they never worked as Primary School Headmasters.
7(ix). The learned Advocate General also submitted that the petitioners retired long back and they could not seek for Selection Grade and Special Grade for the Primary School Headmaster with effect from 01.06.1988 after more than 20 years. Their claim is liable to be dismissed on the ground of delay and laches also.
7(x). The learned Advocate General relied on the judgment of the Apex Court in U.P.SEB V. Pooran Chandra Pandey, reported in (2007) 11 SCC 92 as to what is the binding precedent.
8. I have considered the submissions made by either side.
9. At the outset, I would like to deal with the submission of the learned Advocate General that the writ petitions are liable to be dismissed on the ground of delay and laches, since the petitioners approached this Court after retirement, that too after about 20 years on seeing the judgment of the Division Bench of this Court dated 14.07.2009 in W.P.No.8747 of 2009. According to him, they failed to approach this Court within a reasonable time and they waited for the outcome of the O.A.No.8276 of 1997 and W.P.No.8747 of 2009. In 1997, if they filed application, they ought to have filed it before the Tamil Nadu Administrative Tribunal within a period of one year, as the Administrative Tribunals Act, 1985, prescribes limitation of one year. Hence, the writ petitions are liable to be dismissed in limine without going into the merits of the matter.
10. I am not inclined to agree with the said submission of the learned Advocate General. The State shall not take such a technical plea. If the petitioners are entitled to Selection Grade and Special Grade on a particular pay scale as provided under the Government Orders, as pleaded by them, the State shall not deny the same and they are entitled to receive the same. If the Government failed to comply with its own order granting certain benefits, it cannot say that the petitioners have approached this Court with inordinate delay.
11. If the petitioners are entitled to Selection Grade and Special Grade pay at the higher scale, the same would result in the upward revision of pensionary benefits. The State cannot deprive the pensionary benefits, for which, the petitioners are otherwise entitled to. Payment of pensionary benefits is a continuing cause of action. At the most, the State can plead for limiting the payment of arrears, in view of the inordinate delay in approaching the Court. But the State cannot seek to reject the claim of this nature in toto, if the petitioners are able to establish their right to claim the benefits. Hence, I have no hesitation to reject the submission of the learned Advocate General.
12. Therefore, the issue that arises for consideration is as to whether the petitioners are entitled to claim Selection Grade / Special Grade pay of Primary School Headmasters, on completion of 10 years and 20 years of service respectively in the post of Secondary Grade Teacher in Government High Schools and Higher Secondary Schools, as per G.O.Ms.No.216, Finance (PC) Department, 22.03.1993.
13. Before going to consider the said issue, let us deal with the facts that led to the filing of the writ petitions of this nature.
14. The Tamil Nadu Government revised pay to the Government employees and teachers based on the recommendations of the Fifth Tamil Nadu Pay Commission by issuing G.O.Ms.No.666, Finance (PC) Department, dated 27.06.1989. The revision came into effect from 01.06.1988.
15. Based on the recommendations of the Fifth Tamil Nadu Pay Commission, orders were issued dispensing with the scheme of Selection Grade / Special Grade in the aforesaid G.O.Ms.No.666, Finance (PC) Department, dated 27.06.1989. While dispensing with the Selection Grade / Special Grade, certain methodology is provided for fixation of pay in this regard in Appendix VII to G.O.Ms.No.666, dated 27.06.1989.
16. Various representations were received from the Government employees associations to restore the scheme of Selection Grade and Special Grade. In view of the same, the Government issued G.O.No.304, Finance (PC) Department, dated 28.03.1990 restoring the Selection Grade and Special Grade. In fact, it is stated in G.O.Ms.No.304, Finance (PC) Department, dated 28.03.1990 that the Selection Grade and Special Grade were improved in the said G.O.304. The Government granted Selection Grade and Special Grade to all the categories of posts in the scales of pay of Rs.750-945 and above upto the scale of pay of Rs.2500-4200. One would move to Selection Grade on completion of 10 years of service and Special Grade on completion of 20 years of service in the same post. The scales of pay of Selection Grade and Special Grade are indicated in Annexure I to G.O.Ms.No.304 that replaced the Appendix VII to G.O.Ms.No.666, dated 27.06.1989.
17. At this juncture, it is relevant to extract Annexure I of G.O.No.304, dated 28.03.1990 :
ANNEXURE-I REVISED SELECTION GRADE/SPECIAL GRADE SCALES OF PAY Ordinary Grade Selection Grade Special Grade (1) (2) (3) Rs. Rs. Rs.
750-945 800-1,150 825-1,200 775-1,030 825-1,200 980-1,500 800-1,150 950-1,500 975-1,660 825-1,200 950-1,500 975-1,660 950-1,500 1,200-2,040 1,320-2,040 975-1,660 1,200-2,040 1,320-2,040 1,100-1,660 1,320-2,040 1,350-2,200 1,200-2,040 1,400-2,600 (A) 1,640-2,900 1,320-2,040 1,400-2,600 (A) 1,640-2,900 1,350-2,200 1,600-2,660 1,820-3,200 1,400-2,600 1,640-2,900 (B) 2,000-3,200 1,600-2,600 2,000-3,200 2,200-4,000 1,640-2,900 2,000-3,200 2,200-4,000 1,820-3,200 2,200-4,000 2,500-4,200 2,000-3,200 2,200-4,000 2,500-4,200 2,000-3,500 2,500-4,200 3,000-4,500 2,200-4,000 2,500-4,200 3,000-4,500 2,500-4,200 3,000-4,500 3,700-5,000
18. It is also relevant to extract paragraph 4 of G.O.No.304, dated 28.03.1990 :
4. Accordingly in partial modification of the orders issued in paragraph 9 of the G.O. first read above, the Government direct that the scheme of Selection Grade and Special Grade be allowed to all the employees eligible for movement to Selection Grade and Special Grade as indicated in the Annexure-I to this order replacing the existing Appendix-VII to the G.O. first read above;
Provided further, wherever the promotion post happens to be on a lower scale of pay than the Selection Grade scale of pay given in Annexure-I employees in such posts are eligible for the Selection Grade scale as applicable to promotion post only.
However, in respect of teachers the Selection Grade and Special Grade shall be as indicated in the Annexure-I to this order.
Employees in the erstwhile special temporary posts in the pre-revised pay structure shall be treated as holders of Selection Grade post in the revised pay structure.
19. As per paragraph 4 of G.O.Ms.No.304, dated 28.03.1990, the Selection Grade and Special Grade are provided as per Annexure I to G.O.Ms.No.304, and the proviso to paragraph 4 has stated that if the promotion post happens to be on the lower scale of pay than the Selection Grade scale of pay, the employees appointed on promotion are eligible for Selection Grade scale to the promotion post.
20. Though the teachers have promotional avenues, G.O.No.304 dated 28.03.1990, states that in respect of teachers, the Selection Grade and Special Grade shall be as indicated in Annexure I only. These facts are seen in the aforesaid paragraph 4 of the G.O.No.304, dated 28.03.1990.
21. Later, the Government has amended the proviso to paragraph 4 of G.O.Ms.No.666, dated 27.06.1989, by issuing Letter No.10181/PC.II/91-1, dated 20.02.1991, by the Finance Department. After amendment, the proviso reads as follows:
Provided further, wherever the selection grade scale indicated in Annexure I to this order is higher than the ordinary grade scale of pay of promotion post, the selection grade scale of pay shall be restricted to the ordinary grade of promotion post scale of pay only.
22. Before amendment was issued in the aforesaid letter dated 20.02.1991, the Government issued a letter in No.49470/Pay Commission/90-1, dated 14.09.1990 clarifying G.O.Ms.No.304, dated 28.03.1990 and more particularly, the proviso to paragraph 4. The clarification has stated that if the Selection Grade and Special Grade scale of pay indicated in Annexure I in G.O.Ms.No.304 is higher than the ordinary scale of pay of promotion post, the Selection Grade scale shall be restricted to the Ordinary Grade scale of pay of promotion post.
23. Illustration was also given in the letter dated 14.09.1990 of the Government that the Ordinary Grade Scale of Pay of the Office Assistant is Rs.750-945 and the corresponding selection grade as per Annexure I is Rs.800-1150 and the Special Grade is Rs.825-1200. But the promotion post of Office Assistant is Record Clerk and the Ordinary Grade scale of pay of Record Clerk is Rs.775-1030. Hence, the Selection Grade Pay of Office Assistant shall be restricted to Rs.775-1030 only and the Office Assistant would not get Rs.800-1150 as Selection Grade pay.
24. Likewise, as per clarification, the posts of Agricultural Officer, Veterinary Assistant Surgeon and Assistant Engineer carry Ordinary Grade Scale of Pay of Rs.2000-3500. As per Annexure I of G.O.Ms.No.304, for the Ordinary Grade scale of pay of Rs.2000-3500, the Selection Grade pay is Rs.2500-4200 and Special Grade pay is Rs.3000-4500. But for the promotional posts to these categories, the ordinary Grade Scale of pay is Rs.2200-4000. Hence, the Selection Grade pay of all these categories would be restricted to Rs.2200-4000 and they could not be given Rs.2500-4200 as Selection Grade pay.
25. Later, the proviso to paragraph 4 of G.O.Ms.No.304 was amended as per the letter dated 20.02.1991, as stated above.
26. Before the letter dated 20.02.1991 amending the proviso to paragraph 4 was issued, the Tamil Nadu Government Office Assistant and Basic Servants' Association filed O.A.No.1625 of 1991 to quash the proviso to paragraph 4 of G.O.Ms.No.304 and also clarification letter dated 14.09.1990 of the Government.
27(i). The Tribunal passed the order dated 13.11.1992 in O.A.No.1625 of 1991 setting aside paragraph 4 of the G.O.No.304, Finance (PC) Department, dated 28.03.1990. The Tribunal held that the original proviso to paragraph 4 of G.O.Ms.No.304 was most confusing and the purpose of the Government Order was only relating to the grant of selection Grade and Special Grade for various Ordinary Grade scales of pay. But the proviso deals with the fixation of pay for the promotion post and that is not the purpose of the G.O.304, dated 28.03.1990.
27(ii). The Tribunal in the order dated 13.11.1992 in O.A.No.1625 of 1991 also held that the post of Record Clerk is not promotion post to the post of Office Assistant. Hence, the Office Assistant is entitled to the Selection Grade scale of pay of Rs.800-1150.
27(iii). Furthermore, the Tribunal also held that paragraph 4 of G.O.Ms.No.304 treats the teachers alone differently by stating that the Selection Grade and Special Grade would be as per Annexure I, though they have promotion post and thus the same is discriminatory.
27(iv). Ultimately, a direction was issued by the Tribunal to the Government to pass appropriate orders afresh incorporating the basis that Selection Grade for the posts cannot be higher than that of the promotion post.
28. The following passage in this regard from the order of the Tribunal dated 13.11.1992 in O.A.No.1625 of 1991 is extracted hereunder:
Therefore, on the ground of discrimination the proviso is bad as violating the principles of equality in the Constitution. This, however, would not imply that the principles of the proviso is not proper, but the Government should reconsider the matter with reference to the observations in this order in regard to teachers as well as other categories, wherein the advancement to the next higher post within the department is termed as appointment by transfer, because that is in a different service, but in fact is promotion within the department. The lower post may be the Ministerial Service, while the higher post is in the subordinate service of the concerned department, but the appointment is entirely confined to those within the departments in the lower category apart from direct recruitment is provided for. The proviso is not separate from the main paragraph ; quashing the proviso will lead to the position that selection grade may be higher than that of the promotion post. A proviso qualifies the provision to which it is attached and the two together constitute the relevant rule or order. Therefore, we set aside para 4 of the G.O.Ms.No.304, Finance (Pay Commission), dated 28.3.1990. It is open to the Government to issue orders afresh incorporating the basis that selection grade for a post cannot be higher than that of the promotion post to be suitably drafted as not to leave room for any ambiguity and to provide for the special cases when appointment to higher post in the hierarchy in the department is not by promotion but by transfer.
29. Based on the directions issued by the Tamil Nadu Administrative Tribunal in the order dated 13.11.1992 in O.A.No.1625 of 1991, the Government issued Order in G.O.Ms.No.215, Finance (PC) Department, dated 22.03.1993. Thus, paragraph 4 of the G.O.Ms.No.304 dated 28.03.1990 was substituted by the another paragraph in G.O.Ms.No.215, dated 22.03.1993. The following paragraphs 4 to 7 of G.O.Ms.No.215, dated 22.03.1993 are usefully extracted hereunder in this regard:
4. Government have carefully examined the orders of the Tribunal dated 13.11.92. In compliance of the above judgment, Government have decided to revise the existing para 4 of the G.O.Ms.No.304, Fin.(PC) Dept., dated 28.3.90 so as to bring out the orders of the Tribunal. Accordingly, the existing para 4 of the Government Orders second read above shall be substituted by the following :
5. Accordingly, in partial modification of the orders issued in para 9 of the G.O.Ms.No.666, Fin.(PC) Dept., dt.27.6.89, the Government direct that the scheme of Selection Grade and Special Grade be allowed to all the employees eligible for movement to Selection Grade and Special Grade as indicated in the Annexure -I to this order replacing the existing Appendix-VII to the G.O.Ms.No.666, Finance (PC) Department, dated 27.6.89.
Provided further the Selection Grade and Special Grade scales shall be regulated as below:-
(a) For posts, having no promotional avenue, the Selection Grade and Special Grade shall be allowed as prescribed in the Annexure-I to this order.
(b) For posts, having promotion posts in their regular line, grant of Selection Grade scale above the Ordinary Grade of promotion post would result in anomalous situation of placing persons in higher post on a lower scale compared to persons in lower post (in Selection Grade). In order to avoid discontentment among senior persons in higher posts, the Selection Grade scale in such cases shall be restricted to the Ordinary Grade of first level promotion post and the Special Grade shall be restricted to the Ordinary Grade of second level promotion post;
(c) Employees in the existing special temporary posts shall be treated as holders of Selection Grade in the revised pay structure.
6. The above amendment to G.O.Ms.No.304, Finance (PC) Department, dated 28.3.90 shall take effect from 1.6.88 subject to the provisions in para 8 of the above G.O.
7. Executive instructions in regard to admissibility of Selection Grade / Special Grade to Office Assistants and Teachers will issue separately.
30. Pursuant to the order of the Tribunal relating to the grant of selection Grade and Special Grade to the Record Clerk and the teachers, as stated above, the Government has stated in paragarph 7 of G.O.Ms.No.215, dated 22.03.1993, that Executive instructions in regard to the admissibility of Selection Grade and Special Grade to Office Assistants and Teachers would be issued separately.
31. Accordingly, G.O.Ms.No.216, Finance (PC) Department, dated 22.03.1993, was issued. Paragraph 3 of G.O.Ms.No.216, dated 22.03.1993 is relevant for these cases and the same is extracted hereunder:
3. The above directions of the Tribunal has been examined by the Government and it has been decided to issue the following orders to protect certain special categories in the matter of awarding Selection Grade.
(i)Government accept the direction of the Tribunal that the post of Record Clerk is not a regular promotion post for the Office Assistants for the reasons that only persons with the prescribed qualification are appointed to the post of Record Clerk by transfer. Accordingly, Government direct that the proviso to para 4 of the G.O. Second read above as modified in G.O. fifth read above shall not be applicable to the post of Office Assistant and they shall be allowed Selection / Special Grades as in Annexure-I to the G.O. second read above.
(ii)In respect of Secondary Grade Teachers in High Schools there is no promotion post for them as on 28.3.90 (i.e. the date of issue of the G.O. Second read above), although there is promotion post in Primary Schools. As a measure of uniformity in respect of all Secondary Grade Teachers, Government direct that the Teachers be made eligible for Selection / Special grades as in Annexure-I to the G.O. second read above. 32(i). Paragraph 3(i) of G.O.Ms.No.216, is relating to the Office Assistants and we are not concerned with the same.
32(ii). Paragraph 3(ii) of G.O.Ms.No.216, dated 22.03.1993 is relating to the Secondary Grade Teachers. As far as the Secondary Grade Teachers in the High Schools / Higher Secondary Schools and the Primary Schools, the Selection Grade and Special Grade pay would be as indicated in Annexure I to the G.O.Ms.No.304. Thus, it is made clear from the reading of G.O.Ms.No.216, dated 22.03.1993 that the Secondary Grade Teachers, whether they are in Primary School or High School or Higher Secondary School, their ordinary grade pay is Rs.1200-2040 and the corresponding Selection Grade and Special Grade pay are Rs.1400-2600 and 1640-2900 respectively, as per Annexure I to G.O.Ms.No.304, dated 28.03.1990.
33. Before 01.06.1988, the post of Primary School Headmaster was not the promotion post to the Secondary Grade Teschers in Primary Schools. Both the posts of Secondary Grade Teachers and the Primary School Headmasters carried the same scale of pay or Rs.610-1075. By G.O.Ms.No.666, Finance (PC) Department, dated 27.06.1989, the Primary School Headmaster post became promotion post and the higher scale was prescribed at Rs.1400-2600, while the scale of pay of Secondary Grade Teachers was revised to Rs.1200-2040. G.O.Ms.No.666, was issued in June 1989 and the scale of pay came into effect retrospectively from 01.06.1988. As on 01.06.1988, the Juniors in Secondary Grade Teachers post occupied the post of Primary School Headmaster, since at that time, both the posts carried same scale of pay. The same was continued after issuance of G.O.Ms.No.666, dated 27.06.1989 also. Only thereafter, the post of Primary School Headmasters was filled by following seniority. The seniors were promoted as Primary School Headmasters subsequently.
34. In those circumstances, the Government issued G.O.Ms.No.1381, Education Department, dated 05.10.1990, to count the service of Secondary Grade Teachers of the Primary Schools for granting Selection Grade and Special Grade to the post of Primary School Headmasters, who were holding the post of Primary School Headmaster as on 01.06.1988. Later, the benefit was extended to the persons who became Primary School Headmasters, after 01.06.1988 also.
35. While so, two persons, namely, Mr.A.N.Kandaswamy and K.Thayar, who were Secondary Grade Teachers in Government High School, filed O.A.No.2010 of 1992 to grant them Selection Grade and Special Grade pay of Primary School Headmaster from 01.06.1988 by applying G.O.Ms.No.1381, to them also. They were initially appointed in the Panchayat Union Primary School and they were working in the Middle School of the Panchayat Union at Alangombu. The Middle School got upgraded as High School. Options were called for as to whether they wanted to continue in the Panchayat Union Service or they wanted to get absorbed in High School Service. The applicants therein opted to get absorbed in High School Service. Their juniors continued in the Panchayat Union Service.
36. The High Schools come under the control of the Directorate of School Education, while the Primary Schools and Middle Schools come under the control of the Directorate of Elementary Education.
37. The juniors of the applicants in O.A.No.2010 of 1992, who continued in Primary Schools, got promoted as Primary School Headmasters and received higher pay and also the juniors were granted the benefit of G.O.Ms.No.1381, dated 05.10.1990, referred to above. Hence, those two applicants also wanted the same benefit in G.O.Ms.No.1381 to be extended to them, by granting them the Selection Grade and Special Grade pay of Primary School Headmaster, though they worked only as Secondary Grade Teachers in the High School. Their claim was accepted and O.A.No.2010 of 1992 was allowed by the Tamil Nadu Administrative Tribunal on 15.05.1996 on the ground that had they continued in the panchayat Union Service, they could have been promoted as Primary School Headmasters as their juniors were promoted and though they opted to come to High School Service, a different service, they are entitled to the Selection Grade / Special Grade pay of Primary School Headmaster as per G.O.Ms.No.216, Finance (PC) Department, dated 22.03.1993.
38. The Director of School Education preferred appeal before the Apex Court against the order of the Tamil Nadu Administrative Tribunal dated 15.05.1996 in O.A.No.2010 of 1992. The Apex Court in Director of School Education V. A.N.Kandaswamy and Another reported in (1998) 8 SCC 26 reversed the order of the Tribunal holding that the applicants therein joined a different service willingly and therefore, the Tribunal was wrong in granting the benefit payable to the service, for which they earlier belonged.
39. The paragraphs 2 and 8 of the order of the Apex Court dated 29.10.1998 are extracted hereunder:
2. Both the respondents were initially appointed as teachers in Panchayat Union Primary School. In the year 1985, they were serving as teachers in the Middle School of the Panchayat Union at Alangombu. The said Middle School was upgraded as Government High School with effect from 28.10.85. The respondents opted for absorption in the Government High School and therefore became a part of the Secondary Education Service. Some junior teachers who had continued as teachers in the Panchayat Union Primary Schools were subsequently promoted as Head Masters in the Primary and Middle Schools run by the Panchayat Union. They were allowed to draw their pay in the scale of Rs.2000-3200 from 1.6.88, following G.O.No.1381, dated 5.10.90. The result was that they started getting more pay than the respondents and other teachers in the Government High Schools who continued to draw the selection grade which happened to be less than the pay scale of the Head Masters in Primary and Middle Schools of the Panchayat Union. The respondents, therefore, approached the Tamil Nadu Administrative Tribunal with a prayer to direct the Government to fix their pay on par with the pay of the Head Masters in Panchayat Union Schools in the scale of Rs.2000-3200 with effect from 1.6.88 and then to award Selection/Special Grade and other benefits after taking into consideration their higher grade service period of three years and six months in Panchayat Union Schools. The contention of the respondents was that if they had continued in their parent unit, i.e., Panchayat Union Schools, they would have become Head Masters in Primary/Middle Schools on the basis of their seniority and thus entitled to the pay scale of Rs.2000-3200.
8. The respondents had willingly joined Government High School Service and therefore, they thereafter belonged to a separate cadre known as Secondary Education Service. On their absorption in Government Service they ceased to be a part of the cadre of Teachers serving in Schools run by the Panchayat Union. Merely because their past services were counted for the purpose of protecting their 'Pay' and awarding Selection or Special Grade, it cannot be said that they continued to belong to the same old cadre. The very basis on which the Tribunal proceeds was wrong and therefore, its decision stands vitiated.
40. In my view, the judgment of the Apex Court in Director of School Education V. A.N.Kandaswamy and Another reported in (1998) 8 SCC 26 is directly on the point. The Apex Court has categorically held that the Secondary Grade Teachers in Government High Schools / Higher Secondary Schools cannot claim the Selection Grade / Special Grade of Primary Schools Headmaster, since they belonged to a different service.
41. Further, while the applicants in O.A.No.2010 of 1992 originally belonged to Tamil Nadu Elementary Educational Subordinate Service and later they opted to come over to the Tamil Nadu Educational Subordinate Service, the petitioners herein all belong to Tamil Nadu Educational Subordinate Service, as they served only in High Schools and Higher Secondary Schools as Secondary Grade Teachers. Hence, the case of the petitioners herein stands on a lesser footing than the petitioners in O.A.No.2010 of 1992. Even to the applicants in O.A.No.2010 of 1992, the Apex Court categorically held that they are not entitled to the Selection Grade and Special Grade pay of Primary School Headmasters.
42. While the Secondary Grade Teachers and the Headmasters in the Primary Schools are governed by the Tamil Nadu Elementary Education Subordinate Service Rules, the teachers in High Schools and Higher Secondary Schools are governed by a different service rules, framed under Article 309 of the Constitution. Both are not transferable. The conditions of service are different.
43. The Division Bench judgment in Director of School Education & Another V. R.S.Srinivasan and another reported in 2004 WLR 526 also arose out of the order dated 12.12.1997 in O.A.No.2144 of 1995 preferred by the first respondent therein, who was a Teacher in High School from 05.11.1987. He sought the scale of Primary School Headmaster. The same was granted by the Tribunal. The State preferred the writ petition in W.P.No.17688 of 1998 questioning the order of the Tribunal dated 12.12.1997 in O.A.No.2144 of 1995. The Division Bench reversed the order of the Tribunal and held that the Teacher in High School is a different service, while the Primary School Headmasters belongs to a separate service. Paragraph 12 of the judgment of the Division Bench in 2004 WLR 526 is extracted in this regard:
"12. Primary and Middle Schools are treated as separate entity for the purpose of appointment, promotion and retrenchment and they are functioning under separate Director, namely, Director of Elementary Education. On the other hand, High and Higher Secondary Schools are under the purview of the Director of School Education, which forms a separate entity. Hence, the comparison made in respect of teachers working under different category of posts under different services and different units, is unsustainable."
This judgment of the Division Bench also makes it clear that the petitioners herein cannot claim the Selection and Special Grade pay of Primary School Headmasters.
44. At this juncture, it is relevant to extract paragraph 10 of the counter-affidavit filed in W.P.No.15068 of 2013 and this counter-affidavit is adopted by the Government for other writ petitions also.
10. It is submitted that, though the Second Grade Teachers in Primary Schools, High Schools and Higher Secondary Schools and Headmasters of Primary Schools are possessing same qualifications, the responsibilities and duties of Headmaster of Primary School are different from that of Secondary Grade Teachers. While so, Headmaster of Primary School is required to handle classes, he has to perform additional duties such as supervising the work of other teachers in that school, verification of notes of lessons prepared by the teachers, preparation and submission of monthly returns, educational statistics date etc.,. Besides they are also required to attend various meetings convened by the inspecting officer concerned, namely, the Assistant Elementary Educational Officer. Hence, in view of these additional responsibilities, the Headmasters of Primary Schools have been granted separate and enhanced scale of pay as per the recommendation of the Fifth Pay Commission which has been implemented with effect from 01.06.1988. 45(i). The petitioners herein heavily relied on the judgment of the Division Bench of this Court dated 14.07.2009 in W.P.No.8747 of 2009. The Division Bench dismissed the said writ petition on the ground of delay and laches. W.P.No.8747 of 2009 was preferred by the State against the order dated 07.10.1998 in O.A.No.8276 of 1997 of the Tamil Nadu Administrative Tribunal.
45(ii). This order dated 07.10.1998 is a common order in O.A.Nos.7908 of 1997 and 8276 of 1997. The petitioner in O.A.No.7908 of 1997 was one Mr.S.M.Balasubramaniam. The petitioner in O.A.No.8276 of 1997 is one Mr.N.Govindarajan. The State filed Review Application in R.A.No.182 of 2002 against the order dated 07.10.1998 in O.A.No.8276 of 1997. The same was dismissed by the Tribunal on 05.12.2002. Thereafter, W.P.No.17187 of 2003 was filed against the order dated 05.12.2002 in R.A.No.182 of 2002. The same was dismissed by the Division Bench on 28.11.2007 on the ground that the order dated 05.12.2002 in R.A.No.182 of 2002 merged with the order dated 07.10.1998 in O.A.No.8276 of 1997. It was held that the writ petition was not maintainable without questioning the order of the Tribunal dated 07.10.1998 in O.A.No.8276 of 1997.
45(iii). In the meantime, Mr.Balasubramaniam died. In the circumstances, the order dated 07.10.1998 in O.A.No.7908 of 1997 was implemented by granting the monetary benefits to the wife of Late.Balasubramaniam by the proceedings of the Deputy Commissioner of Coimbatore Corporation dated 16.02.2005 in Na.Ka.No.13322/97/K6.
45(iv). After dismissal of the writ petition W.P.No.17187 of 2003 on 28.11.2007, the State filed W.P.No.8747 of 2009 questioning the order dated 07.10.1998 in O.A.No.8276 of 1997. As stated above, this writ petition was rejected by the Division Bench on 14.07.2009 on the ground of delay and laches, since the State filed the writ petition after 11 years of the order of the Tamil Nadu Administrative Tribunal.
45(v). Therefore, the order dated 07.10.1998 in O.A.No.8276 of 1997 assumes much importance.
46. The order dated 07.10.1998 is a short one. Since the order is the basis for the claim of hundreds and thousands of Secondary Grade Teachers in Government High Schools and Higher Secondary Schools for Selection Grade and Special Grade pay of Primary School Headmaster, the entire order dated 07.10.1998 is extracted hereunder:
Applicants are Special Grade Secondary Grade Teachers. In G.O.Ms.NO.304, Finance (PC) Department, dated 28.3.90 paragraph 4 stipulates that wherever the promotion post happens to be on a lower scale of pay than the selection grade scale of pay given in Annexure-I employees in such posts are eligible for the selection grades scale as applicable to promotion post only. However, in respect of teachers the selection grade scale and special grade shall be as indicated in the Annexure I to the said Order. Subsequently, in G.O.Ms.No.215, Finance (Pay Cell) Department, dated 22.3.93, certain amendments in Tamil Nadu Revised Scales of Pay Rules, 1989 have been issued. In G.O.Ms.No.216, Finance (Pay Cell) Department, dated 22.3.93 executive instructions regarding selection grade/special grade in the revised pay scales have been issued. Paragraph 3(ii) of this Government Order stipulates that in respect of Secondary Grade Teachers in High Schools, there is no promotion post for them as on 28.3.90, i.e., when G.O.Ms.No.304 dated 28.3.90 was issued, although there is promotion post in primary schools. As a measure of uniformity in respect of all Secondary Grade Teachers, Government direct that the Teachers be made eligible for Selection/Special Grade as in Annexure I to the said G.O.Ms.No.304, dated 28.3.90. In the Annexure I to the said G.O.Ms.No.304, the Ordinary Grade, Selection Grade and the Special Grade scales of pay are Rs.1400-2600, 1640-2900 and 2000-3200 respectively. So, the present applicants are entitled for these scales of selection grade and special grade. On the basis of G.O.Ms.No.216, Finance (PC) Department, dated 22.3.93, applicants seek refixation of their pay as Rs.2000-3200 with effect from 1.6.1988.
2. Applicants plead that teachers who are in the same grade and are doing similar work were given the scale of pay of Rs.2000-3200. Whereas the applicants are paid only Rs.1640-2900. Learned counsel for the applicants also draws our attention to an earlier decision of this Tribunal dated 8.5.96 in O.A.Nos.1113 to 1133 of 1995. There, this Tribunal pointed out that the Government extended the Selection/Special Grade pay scales to the applicants like Secondary Grade Assistant Teachers appointed in the High School and having more than 10 to 20 years of service and issued G.O.Ms.No.216, Finance (Pay Cell) Department, dated 22.3.93 and the benefits awarded in G.O.Ms.No.216, Finance (PC) Department, dated 22.3.93 were extended to those applicants and pay was directed to be fixed in terms of the said G.O. While so, we find no reason for not conceding the claim of the applicants.
3. In the result, both the applications are allowed and the respondents are directed to refix the scale of pay of the applicants as Rs.2000-3200 with effect from 1.6.1988 in terms of G.O.Ms.No.216, Finance (PC) Department dated 22.3.93. All the pay arrears are to be disbursed within a period of three months from the date of receipt of a copy of this order.
47. The order of the Tribunal dated 07.10.1998 in O.A.No.8276 of 1997 does not give any reason on its own for issuing the direction to grant the Selection Grade pay of Primary School Headmasters to the applicants therein, who were Secondary Grade Teachers in Government High School. On the other hand, the said order dated 07.10.1998 in O.A.No.8276 of 1997 solely relies on the order of the Tribunal dated 08.05.1996 in O.A.Nos.1113 to 1133 of 1995.
48(i). The order dated 08.05.1996 in O.A.Nos.1113 to 1133 of 1995 is perused by me. No issue arose in that case as to whether the Secondary Grade Teachers in Government High Schools and Higher Secondary Schools are entitled to Selection Grade and Special Grade pay of Primary School Headmaster.
48(ii). In that case, the issue that arose for consideration was as to whether the order passed by the Chief Educational Officer, Salem, cancelling the stagnation increment given to the petitioners therein and the consequential recovery orders passed by the respective Headmasters were justified, legal and proper. The Tribunal held that the order of cancellation was made based on the audit objection and the stagnation increment was correctly granted to the petitioners therein, who were Secondary Grade Teachers, and the cancellation is bad.
49. Further, in O.A.Nos.88 of 1996 etc. batch, similar claim, as made in these writ petitions, was made that the Secondary Grade Teachers of Government High Schools and Higher Secondary Schools are entitled to the Selection Grade / Special Grade pay of Primary School Headmasters with effect from 01.06.1988 as per G.O.Ms.No.216, Finance (PC) Department, dated 22.03.1993. The Tamil Nadu Administrative Tribunal rejected the claim on 03.04.2002 in O.A.Nos.88 of 1996 etc., batch by a detailed order. The order dated 08.05.1996 made in O.A.Nos.1113 to 1133 of 1995 was cited before the Tribunal.
50. The same was rejected by the Tribunal in paragraph 13 of its order dated 03.04.2002 in O.A.Nos.88 of 1996 etc. batch and the same is extracted hereunder:
13. In O.A.Nos.1113 to 1133 of 1995, dated 08.05.1996, one stagnation increment after completion of 30 years was directed to be given. In those cases, one stagnation increment was given to the Secondary Grade Teachers, Physical Education Teachers and Drawing Masters in the High School. The stagnation increment was sought to be recovered at the instance of Chief Educational Officers. Headmasters issued recovery orders. This was objected to, relying upon G.O.Ms.No.216, Finance (PC) Department, dated 22.03.1993, the Tribunal held that the applicants were eligible for stagnation increment. Therefore, the facts of the present cases are entirely different. The claim is not for stagnation increment, but for creation of a promotional post with higher pay.
51. It is also relevant to note that the order dated 07.10.1998 in O.A.No.8276 of 1997 was also cited. The same was considered in paragraph 12 in the following terms :
12. Mr.C.Selvaraju and Mr.K.Thennan, counsel for the applicants relied upon the decision in O.A.Nos.7908 and 8276 of 1997, dated 07.10.1998. In the said case, the former Chairman Justice A.Thangamani, has directed the respondents therein to fix the scale of pay of the applicants at Rs.2000/- with effect from 01.06.1988 in terms of G.O.Ms.No.216, Finance (PC) Dept. dated 22.03.1993. In those applications, we are not able to find whether they are Secondary Grade Teachers employed in High Schools. At the beginning of paragraph 2 of the said order, it is stated as follows:
"Applicants plead that teachers who are in the same grade and are doing similar work were given the scale of pay of Rs.2000-3200. Whereas the applicants are paid only Rs.1640-2900. Learned Counsel for the applicants also draws our attention to an earlier decision of this Tribunal dated 08.05.96 in O.A.Nos.1113 to 1133/95. There this Tribunal pointed out that the Government extended the Selection/Special Grade pay scales to the applicants like Secondary Grade Assistant Teachers appointed in the High School and having more than 10 to 20 years of service and issued G.O.Ms.No.216, Finance (Pay Cell) Department, dated 22.03.1993. G.O.Ms.No.216, as already seen directs that in respect of all Secondary Grade Teachers, they shall be made eligible for selection and special grades as in Annexure I. There is no direction to give selection and special grades, in the Elementary School Head Master scale.
52. The Tribunal categorically held that there is no reason to give Selection Grade/Special Grade pay of Elementary School Headmaster to Secondary Grade Teachers in High Schools/Higher Secondary Schools. The relevant portion is highlighted above.
53. The Tribunal also held that the Secondary Grade Teachers in Primary Schools are governed by Tamil Nadu Elementary Education Subordinate Service Rules and the Secondary Grade Teachers in High Schools and Higher Secondary Schools are governed by a different service rules. Hence, the Secondary Grade Teachers in High Schools and Higher Secondary Schools, who belong to a different service, cannot complain that the Secondary Grade Teachers in Elementary service have better promotional opportunities. In this regard, paragraphs 11 and 15 of the order dated 03.04.2002 in O.A.Nos.88 of 1996 etc. batch are extracted hereunder:
11. The applicants are in the School Education Subordinate Service. They are occupying a different field. The Secondary Grade Teachers employed in the Middle and Elementary Schools are governed by the Elementary Education Rules. They are employed in a different service. They are controlled by different directorate. The Secondary Grade Teachers in Elementary Schools have opportunity of promotion as Headmaster of Elementary School and Middle Schools, as those avenues are available in their service and service rules. Simply because in one service, promotional avenues are available, it cannot be claimed that such promotional chances should be created to the other service also. That apart, it cannot be said that they have no promotional aveneus. The Secondary Grade Teachers employed in High Schools can acquire higher qualification like degrees and become Graduate Teachers. If they possess necessary higher qualification, promotional chances are there for them also to become Head Masters of High & Higher Secondary Schools. They are also having chances to become Assistant Educational Officers, District Educational Officers and Chief Educational Officers.
15. As already stated, we are not concerned with the case, where the applicants are similarly placed like the Secondary Grade Teachers in Elementary Schools. They are serving in different kinds of Schools in different service, though the designation is same. When there is scope for promotion in one service, they cannot be treated on par with the Teachers employed in the other service. It is not as if somebody compelled them to enter into a particular service, where promotion opportunities are less or nil. If they choose to enter into one service, they do so knowing about the service, the service conditions in the said service. As already stated, even though there is no direct promotion to Secondary Grade Teachers in High Schools, there is scope for acquiring higher qualification to aspire for promotional post.
54. It is also relevant that the order is a well-reasoned order and it arose out of a batch of cases, namely, O.A.Nos.88, 281, 685 to 702, 1007, 1008, 1056, 1057, 1061, 1259, 1260, 1308 to 1313, 1770 to 1772, 1852 to 1855, 2149, 2150, 2152, 2302, 2598, 2632 to 2634, 2677, 2680, 2681, 2682, 5542, 5543, 5554, 5555, 5563, 5564, 5566, 5577, 5578, 5579, 5622 to 5627, 5656, 5666, 5668 to 5771, 5710 to 5718, 5816 to 5827, 5832, 5833, 5848, 5853 to 5870, 5902, 5904 to 5913, 5980 to 6003, 6071 to 6084, 6118, 6125, 6138 to 6148, 6184, 6348, 6349, 6374, 6409, 6410, 6413, 6830 to 6834, 6836, 6837, 6881, 6882, 6883, 6920, 6996, 7106 to 7108, 7112 to 7118, 7119, 7121, 7122, 7132, 7135, 7136, 7137 of 1996, 84 to 100, 283 to 286, 323 to 330, 370 to 373, 378, 551 to 555, 576 to 578, 593, 632, 634 to 636, 644 to 646, 655, 656, 683 to 687, 751, 752, 766 to 793, 802 to 805, 832 to 845, 855 to 866, 941, 943, 944, 1009, 1010, 1298, 1301, 1402 to 1409, 1411, 1412, 1489 to 1494, 1501 to 1505, 1603, 1604, 1606, 1610 to 1615, 1618 to 1628, 1657, 1658, 1659, 1729 to 1731, 1733 to 1740, 1803, 1806, 1808, 1809, 1864 to 1869, 1886 to 1890, 1934, 1935, 1973, 1978, 1979, 1991 to 2000, 2085 to 2102, 2253 to 2255, 2257, 2262, 2263, 2292, 2294, 2296 to 2299, 2301 to 2303, 2322, 2323, 2325, 2327, 2329, 2331, 2332, 2484, 2658 to 2673, 2682 to 2695, 2813 to 2825, 2827 to 2833, 3034, 3136 to 3142, 3144 to 3150, 3186 to 3189, 3192 to 3195, 3452, 3463, 3495 to 3511, 3513 to 3518, 3554 to 3565, 3571 to 3574, 3811, 3822 to 3828, 3833 to 3835, 4094, 7024, 7466 to 7469, 7475, 7476, 7478, 7479, 7480, 7578, 7629 to 7631, 7633 to 7635, 7667 to 7672, 7674, 7677 to 7682, 7684 to 7688, 7694, 7696 to 7698, 7700 to 7702, 7705, 7707 to 7711, 7713, 8181, 8732, 8734, 8745, 8985, 8988, 8997, 8998, 9000, 9001 of 1997, 860 to 863, 953, 1289, 1293 to 1295, 1340, 1345, 1349, 1353, 1354, 1356, 1396, 1400, 1403, 1405, 1584, 1902, 2587, 2890 to 2921, 3323, 3324, 3378, 3702, 4069, 4071, 4073, 4590, 5703, 5760, 6504, 6663, 6554, 7921, 7923, 7940 to 7955, 8197 to 8199, 8429, 8455, 9162, 9173, 9174, 9175 and 10124 of 1998, 271, 474, 535 to 537, 2703, 5252, 5253, 6617, 6995, 7409, 7466 to 7469, 7617, 8250 to 8272 of 1999, 4150 and 4159 of 2000, ..... to 2807, 2919, 2923, 2945, 2946, 3009, 3057 to 3061, 3253, 3254, 3275, 3276, 3278, 3500, 3773 to 3777 of 2001.
55. But, unfortunately, the order of the Tribunal dated 03.04.2002 in O.A.Nos.88 of 1996 etc., batch, was not brought to the notice of the Division Bench of this Court, while hearing W.P.No.8747 of 2009.
56. Thus, the claim of the petitioners based on the order dated 07.10.1998 in O.A.No.8276 of 1997 cannot be countenanced, just because, the same was confirmed by the Division Bench of this Court by the judgment dated 14.07.2009 in W.P.No.8747 of 2009 by dismissing the writ petition on the ground of delay and laches.
57. Further, in view of the judgment of the Apex Court in Director of School Education V. A.N.Kandaswamy and Another reported in (1998) 8 SCC 26, which in fact impliedly overrules the decision of the Division Bench in W.P.No.8747 of 2009, the petitioners cannot rely on the judgment dated 14.07.2009 in W.P.No.8747 of 2009. In fact, the decision of the Apex Court was relied on by the State, but the same was not considered by the Division Bench in W.P.No.8747 of 2009.
58. The State filed Special Leave Petition in S.L.P.(CC)No.2746 of 2010 before the Apex Court against the order dated 14.07.2009 in W.P.No.8747 of 2009. The Apex Court dismissed the same on 23.04.2010 at the admission stage itself. The order of the Apex Court reads as follows :
"Delay condoned.
The Special Leave Petition is dismissed."
59(i). The learned counsels for the petitioners have sought to argue that since the order of the writ petition was confirmed by the Apex Court by rejecting the S.L.P., the same is a binding precedent and this Court shall allow these writ petitions based on the order dated 14.07.2009 in W.P.No.8747 of 2009.
59(ii). In this regard, they placed reliance on the judgment of the Full Bench of this Court in Philip Jeyasingh V. The Joint Registrar of Co-op. Societies, reported in 1999 (2) MLJ 309 and the judgment of the Apex Court in Maharaj Krishnan Bhatt V. State of Jammu and Kashmir and Others, reported in (2008) 9 SCC 24.
59(iii). The Full Bench decision in Philip Jeyasingh V. The Joint Registrar of Co-op. Societies, reported in 1999 (2) MLJ 309, arose in the following circumstances:
(I) A learned Single Judge noticed that a Division Bench of this Court in the decision reported in (1991) 2 LLJ 296, (A.Natarajan and Others Vs. Registrar of Co-operative Societies and Others) held that the judgment of the Full Bench in R.Tamilarasan etc. V. Director of Handlooms and Textiles and others (1989) 1 LLJ 588, holding the writ petition is not maintainable against a co-operative, is not a binding precedent.
(II) Hence, a Full Bench was constituted and the Full Bench in Philip Jeyasingh V. The Joint Registrar of Co-op. Societies, reported in 1999 (2) MLJ 309 held that the judgment of the Full Bench in (1989) 1 LLJ 588 is not per incuriam or obiter dicta and the views taken by the Division Bench in (1991) 2 LLJ 296 is not correct.
(III). The Full Bench also held that the Full Bench judgment is a valid precedent binding on the Division Bench and Single Judges of this Court as well as subordinate Courts.
(IV). There is no dispute over the above said principle. In these cases, I have categorically held that in view of the judgment of the Apex Court in Director of School Education V. A.N.Kandaswamy and Another reported in (1998) 8 SCC 26, the judgment of the Division Bench dated 14.07.2009 in W.P.No.8747 of 2009 cannot be relied on as it is opposed to the law laid down by the Apex Court in the judgment in Director of School Education V. A.N.Kandaswamy and Another reported in (1998) 8 SCC 26.
(V). Hence, the judgment of the Full Bench relied on by the petitioner is of no use to them.
59(iv). The judgment of the Apex Court in Maharaj Krishnan Bhatt and Another V. State of Jammu and Kashmir and Others, reported in (2008) 9 SCC 24, relied on by the petitioners, is dealt hereunder:
(I) The appellants therein, one Hamidullah Dar and one Abdul Rashid Rather were constables in State of Jammu and Kashmir. They gave representations to the Hon'ble Chief Minister of the State to post them as Sub-Inspectors of Police, by granting necessary relaxation in the Rules against 50% direct recruitment quota.
(II) The representations were forwarded by the office of the Hon'ble Chief Minister to the Director General of Police. The Director General of Police recommended for appointment to Hamidullah Dar alone. Hence, Abdul Rashid Rather filed writ petition in S.W.P.No.519 of 1987 and the appellants therein filed S.W.P.No.3735 of 1997. S.W.P.No.519 of 1987 filed by Abdul Rashid Rather was allowed by a learned Single Judge. The same was confirmed by a Division Bench. When the matter was taken to the Apex Court, the Apex Court also dismissed the Special Leave Petition. Abdul Rashid Rather was given appointment.
(III). Based on the same, writ petitions filed by the appellants therein were allowed by a learned Single Judge. But on appeal by the State, the Division Bench allowed the same. When the matter was taken to the Apex Court, the Apex Court reversed the judgment of the Division Bench and held that in view of the earlier Division Bench order in the case of Abdul Rashid Rather , which was followed by the learned Single Judge, the subsequent Division Bench should have followed the said earlier Division Bench order and should not have reversed the order of the learned Single Judge.
(IV). When argument was advanced before the Apex Court that Hamidullah Dar was appointed since he was in possession of the post-graduate degree, the Apex Court rejected the same stating that Abdul Rashid Rather was appointed without post-graduate degree based on the order of the learned Single Judge that was confirmed by the Division Bench. Hence, the learned Single Judge was correct in following the judgment rendered in Abdul Rashid Rather and the Division Bench was not correct in reversing that order.
(V). Paragraphs 21 to 23 of the judgment of the Apex Court in (2008) 9 SCC 24, which are relevant, are extracted hereunder:
"21. It was no doubt contended by the learned counsel for the respondent State that Article 14 or 16 of the Constitution cannot be invoked and pressed into service to perpetuate illegality. It was submitted that if one illegal action is taken, a person whose case is similar, cannot invoke Article 14 or 16 and demand similar relief illegally or against a statute.
22. There can be no two opinions about the legal proposition as submitted by the learned counsel for the State. But in the case on hand, in our opinion, there was no illegality on the part of the learned Single Judge in allowing Writ Petition No. 519 of 1987 instituted by Abdul Rashid Rather and in issuing necessary directions. Since the action was legal and in consonance with law, the Division Bench confirmed it and this Court did not think it proper to interfere with the said order and dismissed special leave petition. To us, in the circumstances, the learned Single Judge was wholly right and fully justified in following the judgment and order in Writ Petition No. 519 of 1987 in the case of the present writ petitioners also.
23. In fairness and in view of the fact that the decision in Abdul Rashid Rather had attained finality, the State authorities ought to have gracefully accepted the decision by granting similar benefits to the present writ petitioners. It, however, challenged the order passed by the Single Judge. The Division Bench of the High Court ought to have dismissed the letters patent appeal by affirming the order of the Single Judge. The letters patent appeal, however, was allowed by the Division Bench and the judgment and order of the learned Single Judge was set aside. In our considered view, the order passed by the learned Single Judge was legal, proper and in furtherance of justice, equity and fairness in action. The said order, therefore, deserves to be restored."
(VI). It is relevant that the Apex Court has noted that the order of the learned Single Judge, that was reversed by the Division Bench, was legal and proper. But the Division Bench reversed the same. Hence, in my view, the same cannot be applied to the facts of the present cases.
60(i). On the other hand, learned Advocate General submitted that the S.L.P.(CC)No.2746 of 2010 preferred against the order dated 14.07.2009 in W.P.No.8747 of 2009 was dismissed on 23.04.2010 in limine at the admission stage and hence, the same cannot be considered as a binding precedent laying down the law that the Secondary Grade Teachers in Government High Schools and Higher Secondary Schools are entitled to the Selection Grade and Special Grade pay of the Primary School Headmaster. He placed reliance on the judgment of the Apex Court in Union of India V. Jaipal Singh, reported in (2004) 1 SCC 121 in this regard.
60(ii). The Apex Court in paragraph 4 of the judgment in (2004) 1 SCC 121 held as follows:
"4. On a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefor does not constitute any declaration of law by this Court or constitute a binding precedent. ....."
61(i). Further, the Division Bench also in the order dated 14.07.2009 in W.P.No.8747 of 2009 did not confirm the order dated 07.10.1998 in O.A.No.8276 of 1997 on merits. Moreover, I have held that the judgment in W.P.No.8747 of 2009 is opposed to the judgment of the Apex Court in Director of School Education V. A.N.Kandaswamy and Another reported in (1998) 8 SCC 26. Therefore, in the facts and circumstances of the case, the judgment in W.P.No.4787 of 2009 cannot be taken as binding precedent for the proposition that the Secondary Grade Teachers in the Government High Schools and Higher Secondary Schools are entitled to the Selection Grade and Special Grade pay of Primary School Headmaster. In this regard, the learned Advocate General placed reliance on the judgment of the Apex Court in U.P. SEB V. Pooran Chandra Pandy, reported in (2007) 11 SCC 92 and more particularly paragraphs 12 to 15.
61(ii). Paragraphs 12 to 15 of the judgment in (2007) 11 SCC 92, which are relevant, are usefully extracted hereunder:
"12. As observed by this Court in State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647 :
13. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury, L.C. said in Quinn v. Leathem, 1901 AC 495: (All ER p. 7 G-I) Before discussing Allen v. Flood, 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make; and one is to repeat what I have very often said before - that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. (emphasis supplied in original)
13. In Ambica Quarry Works v. State of Gujarat, (1987) 1 SCC 213 (vide SCC p. 221, para 18) this Court observed:
18. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.
14. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 (vide SCC p. 130, para 59) this Court observed:
59. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. (emphasis supplied)
15. As held in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani, (2004) 8 SCC 579 a decision cannot be relied on without disclosing the factual situation. In the same judgment this Court also observed: (SCC pp. 584-85, paras 9-12) 9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclids theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737 (AC at p. 761) Lord MacDermott observed: (All ER p. 14 C-D) The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge,
10. In Home Office v. Dorset Yacht Co. Ltd., 1970 sc 1004 (All ER p. 297g-h) Lord Reid said, Lord Atkins speech is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2), (1971) 1 WLR 1062, observed: (All ER p. 1274d) One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament; And, in Herrington v. British Railways Board, 1972 AC 877 Lord Morris said: (All ER p. 761c) There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
* * * Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it. (emphasis supplied)"
62. In view of these judgments, I am in entire agreement with the submissions of the learned Advocate General that the dismissal of the Special Leave Petition at the threshold without any detailed reasons therefor does not constitute any declaration of law and thereby constitute a binding precedent.
63. Applying the principle enumerated in the above decisions of the Apex Court, I am of the view that the order dated 14.07.2009 in W.P.No.8747 of 2009 and the the judgment dated 23.04.2010 in S.L.P.(CC)No.2746 of 2010 cannot be relied on by the petitioners as a "binding precedent" in support of their claim, particularly, in view of the order of the Apex Court in Director of School Education V. A.N.Kandaswamy and Another reported in (1998) 8 SCC 26.
64. I would like to make it clear, at this juncture, that the order in O.A.No.8276 of 1997, which in turn, was confirmed by the Apex Court on 23.04.2010 in S.L.P.(CC)No.2746 of 2010 is binding between the parties and the State is bound to implement the order. In fact the Government issued G.O.Ms.No.258, School Education Department, dated 04.09.2010 implementing the order of the Tribunal in O.A.No.8276 of 1997 after it lost before the Apex Court. Likewise, the other orders passed by this Court following the judgment in W.P.No.8747 of 2009 is binding between the parties to those orders. But the same cannot be relied on by the petitioners to claim, as a matter of right, the Selection Grade / Special Grade pay of Primary School Headmaster, particularly, in view of the judgment of the Apex Court in Director of School Education V. A.N.Kandaswamy and Another reported in (1998) 8 SCC 26 and the judgment of the Division Bench of this Court in Director of School Education & Another V. R.S.Srinivasan and another reported in 2004 WLR 526.
65. For all the aforesaid reasons, the writ petitions fail and the same are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
18.11.2013
Index : Yes
Internet : Yes
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To
1. THE SECRETARY,
SCHOOL EDUCATION DEPARTMENT,
GOVERNMENT OF TAMIL NADU,
FORT ST. GEORGE ,
CHENNAI-9.
2. THE CHIEF EDUCATIONAL OFFICER,
VILLUPURAM, VILLUPURAM DISTRICT.
3. THE DISTRICT EDUCATIONAL OFFICER,
VILLUPURAM, VILLUPURAM DISTRICT.
D.HARIPARANTHAMAN, J.
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Pre-delivery Common Order in
W.P.Nosof 2012, 4506, 21188, 26744 of 2012,
1395 to 1398 of 2013, 4352, 4354, 4355,
5078, 5328, 5335, 5336, 5426, 5497, 5920, 5925,
6809, 7483, 8476, 8668, 8669, 9001, 9026, 9188,
9390, 9605, 9917, 9995, 10212, 10648, 10792, 11015,
11017, 11108, 11215, 11558, 11575, 11578, 11589,
11990, 12429, 12434, 12436, 12464, 12492, 12507,
12508, 13394, 14243, 15067 to 15069, 15433, 15557,
15765, 15778, 15782, 16019, 16131, 16135, 16142
to 16145, 16156, 16232, 16261, 16327, 16343, 16348,
16349, 16449, 16846, 17313, 17318, 17369, 17514,
17591, 17610, 17612, 17885, 18180, 18184, 18222,
18373, 18484, 18836, 19025 to 19030, 19287, 19300,
19967, 20005, 20157, 20304, 20468, 20655, 20656,
20698, 21000, 21005, 21247, 21339, 21957, 21958,
21960, 21964, 22236, 22238, 22616, 22626, 23397,
23421, 23490, 23796, 23797, 23805, 24111, 24112,
24122, 24345 and 24382 of 2013
and connected miscellaneous petitions
18.11.2013