Madras High Court
The Secretary To Government vs S.Stanislaus on 3 January, 2019
Equivalent citations: AIRONLINE 2019 MAD 837
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.01.2019
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.Nos.34, 487, 488, 526, 528, 530, 575, 595, 611, 627, 679,
680, 681, 682, 683, 684, 685, 686, 687, 688, 689, 690, 691,
692, 693, 694, 695, 696, 697, 698, 699, 700, 701, 702, 703,
704, 705, 706, 707, 708, 709, 710, 711, 712, 713, 714, 715,
716, 738, 1816 of 2017
and
C.M.P.Nos.7347, 7348, 7349, 7350, 7507, 7820, 7531, 7548,
8133, 8134, 8259, 8495, 8772, 8773, 9798, 9799, 9800, 9801,
9802, 9820, 9803, 9804, 9805, 9847, 9806, 9807, 9808, 9809,
9810, 9811, 9812, 9813, 9814, 9815, 9816, 9817, 9818, 9819,
9821, 9822, 9823, 9824, 9825, 9826, 9827, 9828, 9829, 9830,
9831, 9832, 9833, 9834, 9835, 9836, 9837, 9838, 9839, 9840,
9841, 9842, 9843, 9844, 9845, 9846, 10133 of 2017
W.A.No.34 of 2017:
1.The Secretary to Government,
School Education Department,
Fort St., George, Chennai - 600 009.
2.The Director of Elementary Education,
College Road, Nungampakkam,
Chennai- 600 006.
3.The District Elementary Education Officer,
Villupuram, Villupuram District.
4.The Additional Assistant Elementary Educational
Officer, Vanur, Villupuram District. ... Appellants
vs.
S.Stanislaus
http://www.judis.nic.in ... Respondent
2
Prayer in W.A.34/2017: Writ Appeal filed under Clause 15 of the
Letters Patent, against the order made in W.P.No.22834 of 2014,
dated 29.07.2015.
For Appellants : C.Munuswamy
in W.A.34/2017 Special Government Pleader (Edu)
For Respondent : Mr.A.Baskaran
in W.A.34/2017
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COMMON JUDGEMENT
(Judgment of the Court was delivered by S.MANIKUMAR, J)
Present batch of writ appeals are all of the year 2017, arises out
of two set of cases. The first set comprises of cases where Mandamus
sought for to extend the benefits of G.O.Ms.No.210, School Education
(G1) Department, dated 14.8.2009 to the writ petitioners, have been
granted by the Writ Court. In the second set of cases, education
department has rejected the request of the writ petitioners to apply
the above said G.O. for fixation of selection grade / special grade pay.
Rejection orders have been challenged by filing writ petitions, for
issuance of Writ of Certiorarified Mandamus. Writ Court while setting
aside the orders of rejection granted relief to the writ petitioners.
Mandamus has been issued in terms of the G.O.
3. On 02.01.2019, we heard a similar Writ Appeal No.2793 of
http://www.judis.nic.in
3
2018, filed by the State Government on the very same points raised
in all the instant writ appeals. During the course of hearing, it was
brought to the notice of this Court that by following a Hon'ble Full
Bench decision of this Court in The Government of Tamil Nadu
Rep. by its Secretary, School Education Department, Chennai -
9 Vs. G.Eswaran reported in (2017) 2 MLJ 257, dismissed a writ
appeal preferred by the State in Principal Secretary to
Government, School Education (G1) Department, Chennai Vs.
M.Natarajan in W.A.(MD) No.1420 of 2017 dated 20.11.2017,
rendered by a Hon'ble Division Bench of the Madurai Bench of this
Court.
4. Judgement made in W.A.(MD)No.1420 of 2017 dated
20.11.2017, was sought to be reviewed in Review Application (MD)
No.37 of 2018 and the same failed vide order dated 21.03.2018.
5. We have gone through the judgements of the Hon'ble
Division Bench in W.A.(MD)No.1420 of 2017, dated 20.11.2017,
Review Application (MD) No.37 of 2018, dated 21.03.2018 and also
the decision of the Hon'ble Full Bench of this Court in The
Government of Tamil Nadu Rep. by its Secretary, School
Education Department, Chennai - 9 Vs. G.Eswaran reported in
(2017) 2 MLJ 257.
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4
6. Upon perusal of the material on record and grounds raised in
W.A.No.2793 of 2018, we found that the grounds raised in W.A.(MD)
No.1420 of 2017 and in W.A.No.2793 of 2018, were the same.
Therefore, by observing that the decisions cited supra are squarely
apply to the facts and circumstances of the case in W.A.No.2793 of
2018, vide order dated 02.01.2019, we dismissed W.A.No.2793 of
2018.
7. Instant writ appeals of the year 2017, listed today before us
are all similar in nature, wherein, Mandamus or Certiorarified
Mandamus, as the case may be, has been issued. In all other
respects, facts and law, are squarely applicable. Hence, we are
inclined to follow the decision made in W.A.No.2793 of 2018, dated
02.01.2019. However, at the risk of repetition, reproduce paragraphs
11 to 15 of the judgement made in W.A.No.2793 of 2018 dated
02.01.2019 :
" 11. Government Orders relevant for the
disposal of the writ appeal, are as follows:
GOVERNMENT OF TAMILNADU
Abstract
Elementary Education - Certified as Secondary Grade Teacher and
those teachers appointed as Higher Teachers, with effect from
1.1.71 or from the date of appointment, to appoint as Secondary
http://www.judis.nic.in
5
Grade Teacher, order issued.
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G.O.(S) No.347 15.9.98
To Read
1. G.O.(S) No.287, Education, date 20.2.71.
2. Letter by the Director of Elementary Education, in Na.Ka.
64648/Ed1/90, date 27.7.94 (&) 29.3.97.
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ORDER
In Government Standing order No.1355, Education dated 3.8.1967, to improve the standard at the Primary schools, the Government ordered to appoint additional of Secondary Grade Teachers in all schools, for which the Government intended the teachers who had obtained secondary grade were absorbed as Higher Teachers. Due to this about 14,000 Higher Teachers Posts existed during 1967-68 to 1970-71, and step by step it was converted as Secondary Grade Teachers post.
2. The Director of School Education in the year 1971, had informed that about 5,500 secondary grade teachers are serving in the post of Higher Teachers on that basis, in the year 1971, instead of the posts of 5,500 Higher teachers, the post of Secondary grade teachers of 5,500 was surrendered and order was issued in G.O. standing No.207, Education dated 20.2.71. However, the post of those qualified Secondary grade teachers, the post of Higher grade could not be converted as qualified Secondary Grade Teachers and it was left out.
3. From 1.1.71 to 2.10.73, even if they have secured Secondary grade teacher qualification and having served in the post of Higher Teachers, the 240 teachers of Adidravidar Welfare school, was directed to regularise their service with effect from 1.1.71 or from the date of appointment as Secondary Grade Teacher and to grant salary accordingly, vide Govt., Standing Order No.119, date 20.6.95 Adidravidar Welfare Department Orders were issued. In the Education Department also. Those all http://www.judis.nic.in the qualified Secondary grade teachers as Higher Teachers, to be 6 accepted, and with effect from 1.1.71 as Secondary Grade Teachers upon such claim various petitions were filed before Tamilnadu State Administrative Tribunal, and order was also passed.
4. The Tamilnadu Administrative Tribunal in view of the subject matter adduced therein has passed various orders in the following manner:-
(1) The service of Secondary Grade Teachers to be regularized and the arrears to be paid with effect from 1.1.71.
(2) The teachers to be regularized from 1.1.71 and the arrears to be paid from the date of receipt of this order of this court.
(3) The money benefit to be disbursed to the teachers from the date of their application.
(4) The monetary benefits to be disbursed from the date of appointment of these teachers.
Thus various orders was passed by the Tamilnadu Administrative Tribunal in this manner in order to secure a clear order from the Tamilnadu Administrative Tribunal, the Director of Elementary Education, a Review application was filed.
5. As per the report of the Director of Elementary Education as from 1.1.71 to till .........74 served in the Higher Grade the number of qualified Secondary Grade teachers is about 6000, and that from 1.1.71 to regularize them as Secondary grade teachers the expenses incurred thereby is about Rs.3.25 crores which the government comes to know.
6. At this juncture, the certified Secondary Grade Teachers appointed in the post of Higher Grade, the service of such teachers to be regularised as Secondary Grade teachers with effect from 1.1.71 or from the date of appointment. To take immediate steps http://www.judis.nic.in 7 to disburse the salary arrears to this post, this claim of the teachers was carefully considered by the Government. After careful consideration it was decided to accept, in view of the said decision all those certified Secondary Grade Teachers recruited as Higher Grade Teachers, with effect from 1.1.71 or from their date of appointment, that comes subsequently, from the said date, their service is regularized as Secondary Grade Teacher, from the date of such regularisation, the government issued to disburse the arrears, thus due to such predated regularisation of the service, as per the seniority already fixed those got promotion, this promotion will not be affected. Hereinafter in future if any vacancy arises, to grant promotion the amended seniority alone should be taken up for consideration, which is instructed by the Government. This Government order is applicable to all the teachers formerly served at panchayat union schools, and now serving at High Schools, Government Aided Schools, Municipality schools.
7. Further the review application filed by the Director of School Education before the Tamilnadu Administrative Tribunal regarding this subject, The Director of School Education is instructed to take steps to withdraw all the review applications.
8. To implement this Government order, it is instructed to the Director of School Education and Director of Elementary Education to take appropriate steps in this regard.
9. In view of the Expenses incurred due to this Government order, it may be kept under the same head of account that is disbursed towards the salary of the teachers which has been already carried.
10. The required funds will be allowed under the revised valuation of the year 1998-99, the final revised valuation will be made. On expecting this allocation of funds the Director of Elementary Education is allowed to carry out abovesaid expenses. Furthr while forwarding for the proposals of project valuation/final http://www.judis.nic.in 8 project valuation, the above said expenses should be taken in account, which is insisted to the Director of Elementary Education.
11. This Government order is issued with approval of the Finance Department in U.O.M.No.530/SS/98-1/Edn-11, dated 11.9.98.
// BY ORDER OF THE GOVERNOR// Sd/M.A.Gowrisankar Secy. to Govt., GOVERNMENT OF TAMIL NADU ABSTRACT Elementary Education - Panchayat Union Schools - Awarding of Special Grade and Fixation of pay in the scale of pay of Rs.2200- 75-2800-100-4000 to 65 Middle School Graduate Headmasters counting their service rendered on 01.06.88 in the Post of Secondary Grade Teacher and Primary School Head Master, subject to the outcome of the orders of the Tamil Nadu Administrative Tribunal/High Court - Orders issued.
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SCHOOL EDUCATION (G1) DEPARTMENT
G.O.Ms.No.210 Dated: 14.08.2009
Thiruvalluvar-Aandu 2040
Adi-29.
Read:-
1. Orders of the Tamil Naud Administrative Tribunal, Chennai - 600 104, dated 17.04.2002 in O.A.Nos.3521, 3528, 3530, 3532, 3540, 3541, 3543,3547,3550, 3552, 3781, 3782, 3783, 3784, 3785, 3786, 3787, 3788, 3789, 3829, 3830, 3831, 3832, 3965, 7706, 7714, 8736, 8740, 8742, 8743, 8746, 8996, 8999, 9002, 9003, 9494, 9495, 9498, 9499, 9875, 9883, and 9885/1997; 857, 858, 914, 1292, 1350, 1458, 1580, 1696, 2927, 2934, 2935, 3374, 3375, 4620, 4888, 6027 and 6415/1998; 472, 966 and 2181/1999 http://www.judis.nic.in and 6378 and 7304/2000.
92. Orders of the High Court, Madras in W.P.No.29626/2005 dated 15.09.2005 and W.P.No.29624/2005 dated 15.09.2005.
3. M.P.No.1/2008 and W.A.S.R.No.79248/2007 dated 23.04.2008 of the High Court, Madras.
4. Writ Appeal No.233/2008 and M.P.No.1/2008 dated 21.04.2008 of the High Court, Madras.
5. The Director of Elementary Education Letter Na. Ka. No.25368/L1/2008 dated 28.11.2008 and 04.02.2009.
ORDER:-
Based on the recommendation of the 5th Pay Commission, 65 Middle School Graduate Headmasters filed Original Application before the Tamil Nadu Administrative Tribunal praying award of Special Grade and Fixation of pay in the scale of pay of Rs.2200- 75-2800-100-4000 counting their service rendered prior to 01.06.88 (upto 31.05.1988) in the post of Secondary Grade Teachers and Middle School Headmasters. Pursuant to the orders of the Tribunal in the above case and the order of the High Court, Madras in the cases filed by certain Teachers for implementation of the Tribunal order, the Director of Elementary Education requested appropriate orders as per the 5th Pay Commission recommendations, grant of Special Grade and Fixation of pay in the scale of pay of Rs.2200-75-2800-100-4000 from 01.06.88 to the 65 Middle School Graduate Headmasters only by counting their service rendered prior to 01.06.88 (up to 31.05.1988) in the post of Secondary Grade Teacher and Primary School Headmaster.
2. The Government have carefully examined the proposal of the Director of Elementary Education in Para 1 above, and permit him/her to award, Special Grade as per the recommendation of the 5th Pay Commission and fix the pay in the scale of pay Rs.2200-
http://www.judis.nic.in 10 75-2800-100-4000 from 01.06.88 to the 65 Middle School graduate Headmasters, who obtained Judgment from the Tribunal, by counting their service rendered prior to 01.06.88 in the post of Secondary Grade Teacher and Primary School Headmaster (upto 31.05.1988).
3. This order is issued with the concurrence of the Finance Department vide its U.O.No.218/JS (APA)/Education .II/2009 dated 12.08.2008.
(By Order of the Governor) M.Kutralingam Principal Secretary to Government GOVERNMENT OF TAMIL NADU ABSTRACT Elementary Education - Panchayat Union Schools - Service period to be accounted in the post of Secondary Grade Teachers and Headmasters of Elementary Schools, as on 01.06.1988 in the post of BT Headmaster of Middle School - Permission granted for fixing of pay in the Special Grade - Order issued.
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School Education (G1) Department
G.O.Ms.No.190 Date: 12.07.2010
Thiruvalluvar
Aandu 2041
Aani 28.
Read:
1. G.O.(Ms) No.210, School Education (G1) dept., date 14.08.2009.
2. Letter by the Director of Elementary Education in Na.Ka.No.38250/L1/09, date 13.11.09 and 29.12.09.
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ORDER With reference to the 1st read above in the Government order, the 65 BT Head masters of Middle school having filed petition before the Tamilnadu Administrative Tribunal and obtained an order, they prior to 01.061988, having served as Secondary grade teacher and Headmaster of Primary school, the http://www.judis.nic.in entire service period in the said post (Till 31.05.1988) to 11 accounted and on 01.06.1988 as per the recommendation of 5th Pay commission, on that basis from 01,06.1988 the Special grade granted to BT headmasters of Middle School, and the pay in the pay scale of Rs.2200-75-2800-100-4000 in the Special grade of BT Headmasters of Middle school is fixed and permission is granted to the Director of Elementary education and ordered issued.
2. In continuation of the above said Government order, many headmasters sought to extend this benefit for them also and has filed petitions and obtained an order in their favour. In order to implement the said order, they have filed contempt applications and further as petitions are being filed, in order to dispose of those cases. Those who have filed petitioners and those who have not filed petitions to all the BT Headmasters of the Middle Schools, with reference to the 1st read in the Government order, the benefit mentioned therein is extended prior to 1.06.1988, all the service period (Till 31.5.1988) is accounted and from 01.08.1988 onwards, the Special grade is granted to the Headmasters of Middle School, to fix the pay in the pay scale of Rs.2200-75-2800-100-4000 to Selection grade BT Headmasters of the Middle Schools and requested the Government to issue an appropriate order which is referred in the letter 2nd read above by the Director of Elementary Education.
3. On adducing the proposal of the Director of Elementary Education, the Government has carefully considered it, in this occasion, on considering the financial burden to be borne by the government, till the date of issuance of this order, it is restricted to those person who have got specific order of the Court, with reference to the 1st read above in the Government order, as mentioned therein prior to 01.06.1988, having served as http://www.judis.nic.in Secondary grade teacher, and Headmasters of the Primary 12 school their service period (till 31.5.1988) to accounted as on 01.06.1988 as per the recommendation of 5th pay Commission, on that basis from 01.06.1988 onwards Special grade is granted in the post of BT Headmasters of Middle School, and permission is granted to the Director of Elementary Education to fix the pay for the Special Grade in the post Of BT Head Masters of Middle school in the Pay scale of 2200-75-2800-100-4000 and government issues order.
4. This order is issued with the consent of the Financial Department under U.O. No.35680/Education -1/2010, Dated 08.07.2010.
// BY ORDER OF THE GOVERNOR// M.Kulralingam Prl Secy to Govt., GOVERNMENT OF TAMIL NADU ABSTRACT Elementary Education - orders of the High Court - those served as Head masters of Primary Schools and Head masters of Middle Schools, Secondary grade teachers prior to 01.06.88 - entire service period of account and granting selection grade/special as on 1.6.88 permitted - order issued.
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School Education (G1) Department
G.O.(Ms) No. 146 Date: 19.06.2012
Thiruvalluvarandu 2043
Aani -5
Read
1. G.O.(Ms) No.210, School Education (G1) Dept, Date 14 08.2009.
2. G.O. (Ms) No.190 School Education (G1), Dept, Date 12.07.2010.
3. G.O.(Ms) No.230, School Education (G1) Dept., Date 10.08.2010
4. Letter by the Director of Elementary Education in Na.Ka.No/13907/L1/T1.2011, dated 23.05.2011 and 23.05.2012.
ORDER:-
http://www.judis.nic.in The first read above in the Government order, the 65 13 middle school B.T. Headmaster Teachers having filed before the Tamilnadu Administrative Tribunal, they prior to 01.06.1988 served as Secondary Grade Teacher and Headmasters of primary school such service to accounted (till 31.05.1988) and from 01.06.1988, in the service of BT Headmasters of Middle School, on allowing special grade, at the Special Grade in the post of BT Headmasters of the Middle School the pay fixed in the pay scale at Rs.2200 -75-2800-100-4000 is permitted and order issued.
2. With reference to third read in the Government Order, in revising the 2nd Read Government Order, at this juncture, on considering the finance burden to be borne by the Government, till the date of issuing this government, it is restricted to those who have got specific order of the Court, a mentioned in the first read government order, the Headmasters and Secondary grade teachers, prior to 1.6.1988, their service period will be accounted (till 31.5.1988) and from 1.06.1988 onwards their Special grade/Selection grade is allowed in the post of B.T Headmasters of Middle school, the pay at the pay scale of Rs.2000-60-2300-75-3200/ Rs.2200-75-2800-100-4000 in the post of BT Headmasters of Middle School in cadre of Selection grade/Special. Grade, permission is granted to the Director o f Elementary Education and order issued.
3. AT this juncture, the retired officers Association, to avail the above said benefits has filed cases and obtained orders. And those who have not filed in order to benefit all of them, it was requested to the Government to pass a common Government order in this aspect.
4. The Director of Elementary Education, as fourth read http://www.judis.nic.in above in the letter, as per the Government Order (Ms) No.210, 14 School Education (G1) Department, dated 14.8.09 and Government order (Ms) No.190, School Education (G1) Department dated 12.7.10 about 260 teachers have filed cases to grant them Selection grade/Special Grade and obtained onder in their favour within the specified time on informing, all the petitioners therein to avail the benefits mentioned in the above said Government Order the Selection Grade/Special Grade was allowed on 1.6.88 and on fixing the pay the following expenses will be incurred and it has been informed, with a view to avail the benefit by all it was requested to the Government to issued an order in this aspect.
S.No. Terms of Number of Amount Total retirement having the Received served as Head Teachers By a Master of Middle who filed teacher school on 1.6.88 Cases and obtained order 1 Retired 60 1,90,000 1,14,00,000 personals from 1.06.88 to 31.3.1993 2 Retired 50 1,75,000 87,50,000 persons from 1.6.88 to 31.5.1994 3 Retired persons 100 2,51,250 2,51,25,000 from 1.6.88 to 31.7.1994 4 Retired persons 50 3,07,500 1,53,75,000 from 1.6.88 to 31.9.1994 total 260 6,06,50,000
5. The proposal of Director of Elementary Education, has been carefully adduced and has decided to accept it. Accordingly the Government Order (MS) No.210 School Education (G1) Department, dated 14.8.09 and Government Order No.190 http://www.judis.nic.in School Education (G1) Department, dated 12.07.2010 case filed 15 to disburse the benefits and 260 Panchayat/ Municipality/Government/Aided schools, to avail the said benefits it has been extended prior to 1.6.88 ( till 31.5.1988) served as Secondary Grade Teacher, Headmasters of Primary Schools, headmasters of Middle Schools, entire service period in the said post is accounted and as on 1.6.88 the Selection/grade/Special grade is granted in the post of BT head Masters of Middle Schools, the Government given permission to Director of Elementary Education is to fix the scale of pay.
6. This order is issued with the consent of Finance Department under U.O. No. 337/DS(KM)/12 dated 19.6.2012.
//BY ORDER OF THE GOVERNOR// T.Sabitha Prl Secy to Government
12. It is brought to our notice that a Hon'ble Division Bench at Madurai Bench of this Court, following a Judgement of the Hon'ble Full Bench of this Court in The Government of Tamil Nadu Rep. by its Secretary, School Education Department, Chennai - 9 Vs. G.Eswaran reported in (2017) 2 MLJ 257, dismissed a writ appeal preferred by the state in The Principal Secretary to Government, School Education (G1) Department, Chennai Vs. M.Natarajan in W.A.(MD)No.1420 of 2017 dated 20.11.2017. Paragraphs 3 to 9, relevant are extracted hereunder:
"3. Earlier, the Learned Single Judge while passing the impugned order in W.P.(MD)No.10891 of 2016, (filed by the http://www.judis.nic.in Petitioner) at paragraph Nos.3 and 4, had 16 observed the following:-
"3. This Court, in similar circumstances, has passed the following order in W.P.(MD)No.15020 to 15029 of 2012, dated 28.10.2013 which is usefully extracted below:-
“The Petitioners in all these Writ Petitions were working as Secondary Grade Teachers in various schools. Later, they were all promoted as Headmasters of Elementary Schools and Graduate Headmasters of Middle School, on various dates. Ultimately, they attained superannuation on different dates. According to the Petitioners, the length of services rendered by them as Secondary Grade Teacher and Elementary School Headmaster was not taken into account for awarding Selection Grade as well as Special Grade in the post of Middle School Graduate Headmasters. In this regard, according to them, the Government issued G.O.Ms.No.210, School Education (G1) Department, dated 14.08.2009, wherein the http://www.judis.nic.in Government had directed that the 17 period of service rendered by the Teachers as Secondary Grade Teachers and Elementary School Headmaster, prior to becoming the Graduate Headmaster of Middle School, should also be taken into account for awarding selection and Special Grade of pay. However, the benefit of G.O.Ms.No.210 was given only to 65 persons. Thereafter, a number of Writ Petitions were filed by similarly placed persons and a Learned Single Judge of this Court had dismissed those Writ Petitions.
However, on appeal, a Division Bench of this Court in a batch of Writ Appeals in W.A.(MD)Nos.815 of 2010, etc. batch, by order dated 07.07.2011, had issued a direction to the Respondents therein to extend the benefits of G.O.Ms.No.210, School Education (G1) Department, dated 14.08.2009, to the appellants therein. Therefore, according to the Learned Counsel for the Petitioners, the Petitioners are also entitled for the same relief.
2. The Learned Additional http://www.judis.nic.in Government Pleader appearing for 18 the Respondents would submit that the order of the Division Bench has been complied with in respect of those persons and as far as these Petitioners are concerned, their requests would be considered by the Respondents.
3. I have considered the above submissions.
4. Since the issues involved in these Writ Petitions have already been settled by the Division Bench and since the benefits have also been extended by the Government to similarly placed persons, I am inclined to issue a direction granting the same to the Petitioners also.
5. In the result, these Writ Petitions are allowed with a direction to the Respondents to extend the benefits of G.O.Ms.No.210, School Education (G1) Department, dated 14.08.2009, to the Petitioners also.
It is further directed that the consequential order shall be http://www.judis.nic.in issued by the Government within a 19 period of six months from the date of receipt of a copy of this order.
No costs.
4. Following the order of this Court dated 28.10.2013, made in W.P(MD)Nos.15020 to 15029 of 2012, this Writ Petition is also allowed with a direction to the Respondents to extend the benefits of G.O.Ms.No.190, School Education (G1) Department, dated 14.08.2009, to the Petitioner also. Such benefit shall be extended to the Petitioner within a period of six weeks from the date of receipt of a copy of this order."
and ultimately, disposed of the Writ Petition by issuing necessary directions.
4. At the time of hearing of the present Writ Appeal, the Learned Counsel for the Respondent/Writ Petitioner brings it to the notice of this Court that in W.A.(MD)Nos.361 to 363 and 374 to 382 of 2015, a Division Bench of this Court, on 11.08.2017, following the Full Bench decision of this Court, between THE GOVERNMENT OF TAMIL NADU REP.
BY ITS SECRETARY, SCHOOL EDUCATION DEPARTMENT, CHENNAI-9 AND OTHERS v. http://www.judis.nic.in G.ESWARAN AND OTHERS reported in 2017 20 (2) MLJ 257, had dismissed the Writ Appeals and the said decision squarely applies to the facts of the present case on hand.
5. In the instant case, the Respondent/Writ Petitioner was appointed as a Junior Grade Teacher in Emakkalapuram Union Elementary School on 10.10.1980, he was working as Secondary Grade Teacher between 10.10.1990 and 10.10.2000. Subsequently, he was appointed as Tamil Pandit on 01.07.1997 at Panchayat Union Middle School, Sanarpatti, Dindigul District. He was also promoted to the post of Middle School Headmaster, Koova.Kurumbapatti on 01.07.2001. Later, he was reverted to the post of Secondary Grade Teacher on 05.08.2003 as the School was upgraded as High School and Middle School Headmaster post was disbanded and subsequently, he was again promoted to the post of Middle School Headmaster on 16.07.2004 and on attaining the age of superannuation, he was retired from service on 31.10.2005 as Headmaster, Middle School, Veerachinnampatti Union, Dindigul District.
6. The categorical stand of the appellants/Respondents is that the Respondent passed a Government Order in G.O.Ms.No.210, School Education (G1) Department, dated http://www.judis.nic.in 14.08.2009 to the effect that the length of 21 service in the post of Secondary Grade Teacher and Elementary School Headmaster prior to 01.06.1988 shall be reckoned to provide Special Grade in the post of Middle School Graduate Headmaster in respect of 65 Middle School Graduate Headmasters, who obtained orders from the Tamil Nadu Administrative Tribunal and their scale of pay was fixed in the post of Middle School Graduate Headmaster as Rs.2200-75-2800-100-4000 in terms of recommendation of the Fifth Pay Commission.
7. Apart from that, the similarly placed Middle School Graduate Headmaster, after passing of the Government Order in G.O.Ms.No.210, dated 14.08.2009 filed number of Writ Petitions before this Court and obtained orders for extension of the benefits of the aforesaid Government Order in G.O.Ms.No.210, dated 14.08.2009. The primordial plea of the Respondent/Petitioner is that G.O.Ms.No.190, School Education (G1) Department, dated 12.07.2010 passed by the First Appellant/First Respondent restricting the operation of G.O.Ms.No.210, dated 14.08.2009 to those persons, who had secured orders of the Court on or before 12.07.2010, is untenable in Law. Further, the Respondent/Petitioner pleads that he is also a similarly placed Teacher like that of other teachers and therefore, entitled to the http://www.judis.nic.in benefits of the Government Order in 22 G.O.Ms.No.210, dated 14.08.2009 and G.O.Ms.No.190, dated 12.07.2010 and therefore, his length of service before 01.06.1988 in the post of Secondary Grade Teacher ought to be reckoned for the purpose of grant of Special Grade in the post of Middle School Graduate Headmaster and that he is entitled to be granted salary in the scale of pay of Rs.2200-75-2800-100-4000 and that the benefits of the G.O.Ms.No.210, dated 14.08.2009 also should be extended to and in his favour.
8. It is not in dispute that subsequently in W.A.Nos.815 of 2010 etc., the judgment was passed on 07.07.2011 on the ground that the cause of action is a continuous one etc., and ultimately it was held that the Government should have extended the benefits of G.O.Ms.Nos.210 and 234 to all the similarly situated employees.
9. Following the decision of the Full Bench of this Court between THE GOVERNMENT OF TAMIL NADU REP. BY ITS SECRETARY, SCHOOL EDUCATION DEPARTMENT, CHENNAI-9 AND OTHERS v. G.ESWARAN AND OTHERS (Rev. Application No.227 of 2015 etc., W.A.Nos.1744 of 2015, etc., W.P.Nos.29774 of 2016, etc., and Contempt Petition Nos.1545 of 2016, etc., batch, dated http://www.judis.nic.in 09.12.2016), reported in 2017 (2) MLJ 257, 23 also keeping in mind the common Judgment of the Division Bench of this Court in W.A.(MD)Nos.361 to 363 and 374 to 382 of 2015, dated 11.08.2017, this Court, considering the issue(s) centering around the present Writ Appeal, which is squarely covered by the Full Bench decision of this Court, dismisses the present Writ Appeal to prevent an aberration of Justice and in furtherance of substantial cause of Justice. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is also dismissed."
13. Against the said judgement of the Hon'ble Division Bench in W.A.(MD) No.1420 of 2017, dated 20.11.2017, State has preferred a Review Application (MD) No.37 of 2018, before the Madurai Bench of this Court.
14. Adverting to the grounds of review and submissions made by the learned Special Government Pleader (Education), a Hon'ble Division Bench of this Court (Madurai Bench) passed a very detailed order on 21.03.2018, in the said Review Application (MD) No.37 of 2018. Paragraphs 6 to 33 of the said order are extracted hereunder:
"6. Assailing the correctness, legality and http://www.judis.nic.in validity of the impugned Judgment dated 24 20.11.2017 in W.A.(MD).No.1420 of 2017 passed by this Court, the Petitioners have filed the present Review Application based on the reason that the Hon'ble Division Bench should have seen that the Respondent/Writ Petitioner is not entitled to get the benefits of G.O.Ms.No.234, dated 10.09.2009.
7. Advancing his arguments, the Learned Special Government Pleader for the Petitioners/Appellants submits that only persons promoted as Primary School Headmasters prior to 01.06.1988 and persons who worked under Panchayat Union Schools are entitled to the benefits and no one else, i.e. to count their service as Secondary Grade Teachers for awarding Selection Grade and Special Grade in Headmaster Post.
8. Added further, it is the submission of the Learned Special Government Pleader for the Petitioners/Appellants that the original intention of the Government for bringing the scheme in question was for the benefit of the Teachers serving in Panchayat Union School and further, Elementary Education, one Panchayat is one Unit and therefore, prior to 01.06.1988, since salary was same, although the concerned persons are seniors in service, persons opted to go to their native Panchayat as Secondary http://www.judis.nic.in Grade Teacher, giving up their right to be 25 Primary School Headmasters. After 01.06.1988, payment was refixed and they got affected. Apart from that, 63 persons, who originally obtained the orders of the Court and which paved way for all the controversies belong to the Panchayat Union School and now the benefits were restricted to eligible Teachers in Panchayat Union Schools and not to other Schools.
9. The Learned Special Government Pleader for the Petitioners brings it to the notice of this Court that the batch of cases in W.P.(MD).No.1026 of 2010 and W.P.(MD).Nos.12255 of 2009 etc. were dismissed on 21.01.2010 and 17.09.2010 respectively on the ground of delay and latches.
However, a batch of Appeals in W.A.(MD)No.815 of 2010 etc. were allowed on 07.07.2011 to extent the benefits as they are similarly placed persons. In the meanwhile, W.A.Nos.512 to 516 of 2011 came to be dismissed by another Division Bench. The Division Bench, which disposed of the W.A.Nos.815 of 2010 etc. batch, according to the Learned Special Government Pleader for the Petitioners, was not inclined to take a different view and by Judgment dated 29.09.2011 in W.P.No.21804 of 2011, this Court held that persons who came after 07.07.2011 are not http://www.judis.nic.in entitled to any arrears in extending such 26 benefits to them.
10. The Learned Special Government Pleader for the Petitioners proceeds to point out that the VI Pay Commission was given effect from 01.01.1996 as per G.O.Ms.No.162 and that Pay for Secondary Grade Teacher and Primary School Headmaster was refixed and the basic pay for Secondary Grade Teacher was fixed as Rs.4,500/- and Primary School Headmaster Rs.5,300/-.
11.The Learned Special Government Pleader for the Petitioners forcibly contends that on conferring such Selection Grade/Special Grade, the employees are entitled to higher scale that he would get in the promoted post, but will remain to work in the same post. Besides that, it is a basic rule that if a person works for more than 10 years in the same post, he is entitled to Selection Grade and further 10 years in the said post, he is entitled to Special Grade.
12. The Learned Special Government Pleader for the Petitioner contends that prior to 01.06.1988 the date on which the V Pay Commission was given effect to the post of Secondary Grade Teachers and the post of Primary School Headmasters were having the http://www.judis.nic.in same scale of pay and basic for both of them 27 was Rs.610/- and in short, the posts are inter se transferable. Furthermore, normally senior most Secondary Grade Teacher will be the Headmaster and that the Headmaster would be getting Special pay of Rs.15/- per month.
13. The Learned Special Government Pleader for the Appellants puts forward a plea that there is an error on the face of record when this Court had disposed of W.A.(MD)No.1420 of 2010 while applying the Judgment reported in (2017) 2 MLJ 257 (DB) [Government of Tamil Nadu V. G.Eswaran and others].
14. The core contention advanced on behalf of the Petitioners/Appellants is that this Court at the time of disposal of W.A.No.1420 of 2017 should have seen that the Full Bench Judgment, which was referred in W.A.(MD)No.1420 of 2017 is not in favour of Employees and hence, they are not entitled to arrears of the amount and as such, the Court should have disposed of the Writ Appeal in terms of the directions issued thereunder and ought not to have dismissed the Writ Appeal.
15. It is the stand of the Appellants that the Selection Grade Secondary Grade Teachers http://www.judis.nic.in would draw a time scale of pay 5300-150-8300 28 (VI Pay Commission) which is admissible to a Primary School Headmaster, in the ordinary scale and that the Primary School Headmaster post will be the first level promotion post for a Secondary Grade Teacher and the following Tabular Column is extracted hereunder:
V Pay Commission Secondary Ordinary Selection Special Grade Grade Grade Grade 01-06-1998 1200 1400 1640 01-01-1996 4500 5300 5900 VI Pay Commission Secondary Ordinary Selection Special Grade Grade Grade Grade 01-06-1998 1400 1640 2000 01-01-1996 5300 6500 8000 The above mentioned column, according to the Petitioners/Appellants will point out that this type of equalisation if Selection Grade pay and Ordinary Grade first level promotion pay cease to exist after 01.01.2006 i.e. when the revised scale of pay Rules – 2009 was introduced in 2009 by issuing G.O.Ms.No.234, dated 01.06.2009 which came into effect from 01.01.2006.
16. The Learned Special Government Pleader for the Petitioners vehemently puts http://www.judis.nic.in forward an argument that if an individual after 29 10 years and after securing the Selection Grade work for a particular period in the same post for five more years, after getting promoted, for awarding Selection Grade/Special Grade, the service rendered by him in the feeder category with Selection Grade/Special Grade will be taken into account for granting Selection Grade/Special Grade in the promoted post as per G.O.Ms.No.210 dated 11.03.1987;
G.O.Ms.No.212, dated 07.08.2000 and G.O.Ms.No.38, dated 05.03.2001.
17. The Learned Special Government Pleader for the Petitioners draws the attention of this Court that persons were promoted as Primary School Headmasters after 01.06.1988 approached the Tamil Nadu Administrative Tribunal by filing O.A.No.2997 of 1991 and O.A.No.3010 of 1991 dated 24.09.1993 and the Tribunal came down heavily on the Department for passing such Government Order and paras 3 and 4 of the said Government Order was quashed. Accordingly, G.O.Ms.No.300 dated 07.04.1994 was passed and that G.O.Ms.No.1381 dated 05.01.1990 was recalled. Added further, the persons to whom benefits were given in the meanwhile approached the Court either challenging the recovery or to prevent the recovery. This Court also had not ordered for recovery of the http://www.judis.nic.in benefits already given to the concerned 30 persons. Based on such directions, G.O.Ms.No.185 dated 16.12.2002 and G.O.Ms.No.160 dated 23.08.2005 came to be passed. However, 63 persons approached the Tribunal and obtained orders as if they are similarly placed persons to whom benefits of G.O.Ms.No.1381 dated 05.10.1990 was given and secured orders to extend the benefits to them (vide order dated 12.07.2002 in O.A.No.68 of 1997 and O.A.No.177 of 1997). While summing up, it is the plea of the Appellants that the Judgment passed by this Court in W.A.(MD)No.1420 of 2017 on 20.11.2017 is an illegal, arbitrary and liable to be reviewed.
18. It is to be borne in mind that for filing of a 'Review' in respect of an decision or order passed by the Court, there must be reasons like creeping in of an error apparent on the face of record. Further, a Review Petition cannot be filed as an 'Appeal in Disguise'. The position of Law is that if an Order/Judgment passed by a Competent Court is not palatable to the concerned Litigant/Party, then, in Law, it is open to him to approach the Competent Higher Forum for redressal of his grievances. Moreover, just because another view is possible in that event also, a 'Review Petition' will not lie in the eye of Law, as opined by this Court. http://www.judis.nic.in 31
19. It is to be noted that 'Review' literally and even judicially means re-examination or re- consideration. It cannot be gainsaid that 'Review' and 'Appeal' cannot go altogether. In reality, 'Review' lies only on the ground of an error apparent on the face of record or for any other sufficient reason. Under the guise of 'Review', the High Court would not rehear the parties on point of Law afresh as per decision Co-operative Agricultural Rural Development Bank Limited V. Smt.Basanti Swain and others, 96 (2003) CLT 159 Orissa (DB).
20. At this juncture, this Court aptly points out the decision Rajeswari and another V. Sri Bhuvaneswari Cycle Mart rep. By its Managing Partner D.Ramasamy reported in 2007 6 MLJ 47 at page 48 wherein it is held that 'An erroneous decision can be corrected only by the Higher Forum and it cannot be corrected by exercising the review jurisdiction'.
21.It is the settled proposition of Law that a 'Review of the Judgment' cannot be granted in the garb of clarification as per decision of the Hon'ble Supreme Court in Saurabh Chaudri (Dr.) and others V. Union of India and others, (2004) 5 Supreme Court Cases http://www.judis.nic.in 618. 32
22. The 'Power of Review' is not to be confused with an Appellate power which may enable an Appellate Court to correct an erroneous decision by process of 'Reheard and Corrected'. In short, a Review Petition has a limited role to play and by any means, it cannot be permitted to act as an Appeal in disguise. Even though if two views are possible on the point involved, then, that is not a ground for 'Review' as per decision of the Hon'ble Supreme Court in Harinagar Sugar Mills Limited and another V. State of Bihar and others, (2006) 1 Supreme Court Cases 509.
23. One cannot brush aside a prime fact that an error apparent on the face of record must be such an error which strike one on mere looking at the record and would not require any long-drawn process of reasoning on points on which there may conceivably be two opinions as per decision Abdul Rasheed V. Union of India and others, (2007) 3 Calcutta Head Notes 888, 891 (Cal) (DB). A Review which seeks Rehearing of the matter is not maintainable as per decision J. & K. Bank V. Mohd. Sultan Dar, AIR 2006 JAMMU & KASHMIR 35.
24. In this connection, it is not out of place for this Court to make a pertinent mention http://www.judis.nic.in that even an erroneous order or incorrect 33 decision cannot be corrected in 'Review'. Also that, 'Rehearing' of the matter on merits and reappreciation of the arguments/pleas raised by the parties in the original order is not permissible in Review, as per decision MCD V. Anil Prakash, AIR 2007 (NOC) 1653 (Del.) (DB). If the Petitioner is aggrieved by the findings rendered by a Competent Court, then, the remedy in Law is not filing of a Review Petition, as opined by this Court.
25. No wonder, where the order in question is Appealable, the aggrieved party has an adequate and efficacious remedy and the Court should exercise the power of 'Review' its order with greatest circumspection as per decision of the Hon'ble Supreme Court in Haridas Das V. Usha Rani Bank (Smt) and others, (2006) 4 SCC 78. 'Reappraisal of Evidence' is impermissible in Review.
26. The term 'Mistake or Error apparent' by its very connotation points out an error which is evident per se from the record of the case and does not require a detailed manner of scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of record for the purpose of Order 47 Rule 1 C.P.C. as per http://www.judis.nic.in decision of the Hon'ble Supreme Court in State 34 of West Bengal and others V. Kamal Sengupta and another, (2008) 8 SCC 612, 633.
27. It is to be noted that 'Erroneous Decision' can be corrected by an Appellate/Higher Authority. However, 'An error apparent on the face of record' can be corrected by a Court of Law under 'Review Jurisdiction'.
28. It cannot be gainsaid that 'An error apparent on the face of record' is not to be defined either in an elaborate manner or in a precise fashion, in the considered opinion of this Court. The resultant position is that it is for the concerned Competent Court to decide this question judicially resting on the facts and circumstances of a given case.
29. In fact, the ingredients of Section 114 of the Civil Procedure Code and Order 47 Rule 1 C.P.C. specify the ingredients to be complied with prior to the exercise of the power of 'Review', of course, subject to the extent and limitations.
30. As far as the present case is concerned, this Court is of the considered view that while passing the Judgment in W.A.(MD)No.1420 of 2017, this Court had taken note of the Judgment delivered in W.A.No.815 of 2010 etc. 07.07.2011 and also at para 9 of its Judgment, referred to the Full Bench http://www.judis.nic.in decision of this Court reported in (2017) 2 MLJ 35 257 [Government of Tamil Nadu V.G.Eswaran and others]. Also, this Court borne in mind the common Judgment of the Division Bench of this Court in W.A.(MD)Nos.361 to 363 and 374 to 382 of 2015 dated 11.08.2017 and dismissed the Writ Appeal.
31. In view of the foregoings, this Court is of the considered view that the Petitioners are not able to satisfy the subjective judicial conscience of this Court as to the creeping in of a purported apparent error in the Judgment delivered by this Court in W.A.(MD).No.1420 of 2017. Undoubtedly, the scope of 'Review' in Law either under Section 114 of the Civil Procedure Code or under Order 47 Rule 1 C.P.C. is very limited/restricted as the case may be.
32. Considering the fact that even though an endeavour has been made on behalf of the Appellants that in any event the Hon'ble Division Bench in W.A.(MD)No.1420 of 2017, following the Full Bench Judgment reported in (2017) 2 MLJ 257 (FB) (cited supra), should have disposed of the Writ Appeal in terms of the directions issued thereunder and not to have dismissed the Appeal, this Court comes to an irresistible conclusion that the Review Petition filed by the Appellants is per se not http://www.judis.nic.in maintainable in the eye of Law. Furthermore, at 36 the risk of repetition, it is pertinently pointed out that when this Court in the Judgment in W.A.(MD)No.1420 of 2017 dated 20.11.2017, at para 8, had referred to the Judgment in W.A.No.815 of 2010 etc. batch dated 07.07.2011 and later mentioned in the said Judgment, a decision of the Full Bench as aforestated, this Court is not inclined to take a different view than the one already arrived at in this regard. Viewed in that perspective, the 'Review Petition' in any event, in Law, is not maintainable 'Ex facie'.
33. In fine, the Review Petition is dismissed. No costs. It is open to the Review Petitioners/Appellants to approach the Competent Higher Forum for redressal of their grievances in accordance with Law, if they so desire/advised. Consequently, connected Miscellaneous Petition is also dismissed."
15. Mr.C.Munusamy, learned Special Government Pleader, made submissions, reiterating the grounds. We have gone through the materials on record and the grounds in the instant appeal. Same points have been raised. The above decisions are squarely applicable to the facts and circumstances of the instant case. Therefore, following the above decision of the Hon'ble Division Bench (cited supra), as well as the decision of the Hon'ble Full Bench (cited supra) instant writ appeal is http://www.judis.nic.in 37 dismissed. The appellants are directed to grant the benefits of G.O.Ms.No.210, School Education (G1) Department, dated 14.08.2009 to respondent's father and fix his pay in Selection Grade / Special Grade, in the post of Middle School Headmaster, by counting the service rendered as Secondary Grade Teacher/Primary School Headmaster/Elementary School Headmaster, from the date of his promotion to the post of Middle School Headmaster, if he was not given the same already, with all monetary benefits and the pensionary benefits with arrears till the date of his death. Considering the long period of litigation, litigation expenses etc., we deem it fit to direct the appellants to fix the pay in the Selection Grade / Special Grade as ordered above within a period of four weeks from the date of receipt of a copy of this judgement and consequently, the appellants are further directed to revise the pension / family pension, and disburse both the arrears of salary and differential pension, within a period of eight weeks thereafter. Consequently, the connected miscellaneous petition is closed. No costs."
8. Though Mr.C.Munusamy, learned Special Government Pleader (Education) states that long after their reinstatement, respondents have approached this Court and that a huge amount has to be paid, that cannot be a ground to deprive the respondents of their entitlement to selection grade / special grade to pay which the appellants ought to have paid. Courts have held that in the matter of http://www.judis.nic.in 38 fixation of pay and pension, there is a continuing cause and for the above said reason, we are not inclined to accept the said contention.
Following the above decision, all the writ appeals are dismissed. The appellants are directed to grant the benefits of G.O.Ms.No.210, School Education (G1) Department, dated 14.08.2009, to all the respondents and fix their pay in Selection Grade / Special Grade in the post of Middle School Headmaster, by counting the service rendered as Secondary Grade Teacher/Primary School Headmaster/Elementary School Headmaster, from the date of their promotion to the post of Middle School Headmaster, if they were not given the same already, with all monetary benefits and the pensionary benefits with arrears till the date of his death. Though, Mr.C.Munusamy, learned Special Government Pleader (Education) sought four months time to complete the exercise of revising the pay in the Selection Grade / Special Grade to the respondents, and consequently revise the pension / family pension, considering the long period of litigation, which the retired employees / members of the family of the retired employees have to undergo, litigation expenses etc., we, deem it fit, to direct the appellants, to fix the pay in the Selection Grade / Special Grade, within a period of four weeks, from the date of receipt of a copy of this judgement and consequently, the appellants are further directed to revise the pension / family pension, and disburse both arrears of salary and differential pension, within a period of eight weeks, http://www.judis.nic.in 39 thereafter. Consequently, connected civil miscellaneous petitions are closed. No costs.
[S.M.K., J.] [S.P., J.]
03.01.2019
Index : Yes / No
Internet : Yes / No
dm
Note: Issue order copy on or before 07.01.2019.
http://www.judis.nic.in 40 S. MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
dm W.A.Nos.34 of 2017 etc., batch and connected CMPs 03.01.2019 http://www.judis.nic.in