T.Madanagiriyappa vs The Director Of School Education on 17 April, 2013

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Madras High Court

T.Madanagiriyappa vs The Director Of School Education on 17 April, 2013

2. T.Madanagiriyappa, the petitioner herein has come forward with the present writ petition praying for the issue of a writ of certiorarified mandamus to call for the records relating to the letter of the 4th respondent dated 14.08.2006 bearing Na.Ka.No.012/A1/00 and quash the same and to consequently direct the respondents 1 to 4 to promote the petitioner as Headmaster with retrospective effect from 14.06.1988 with all back-wages and service benefits.

3. The petitioner was appointed as secondary grade Assistant in the Panchayat Union Elementary School, Hosur for the first time on 26.10.1973 and was ousted from service on 30.04.1973 to be re-appointed on 01.06.1974. On being regularised, the petitioner was deputed to the Panchayat Union Elementary School, Madigiripalli, which was a single teacher school. Thereafter, he was relieved and the 5th respondent Smt.Kusumakumari was posted to the said single teacher school. Subsequently, the management wanted to place the senior most secondary grade teacher in the single teacher school, since such teacher was to be designated Headmaster cum single teacher. On 01.06.1982 when such a decision was taken by the management, the senior most person by name Umadevi was posted as Headmistress cum single teacher in Panchayat Union Elementary School, Madigiripalli. But the said Umadevi was not willing to accept the post. Hence the 5th respondent was allowed to continue as Headmistress cum single teacher of the said school.

4. The petitioner has come forward with the present writ petition contending that the petitioner being next in seniority should have been offered the post of Headmaster cum single teacher, when his immediate senior Umadevi declined the offer. It is the further contention of the petitioner that inspite of the petitioner's representations for being posted as Headmaster cum single teacher, his request was turned down. It is his further contention that though the 5th respondent Kusumakumari was junior to him, she was allowed to continue as Headmistress cum single teacher even after the implementation of the 5th Pay Commission recommendation and she continued to be the Headmistress of the Panchayat Union Elementary School, Madigiripalli; that pursuant to the upgradation of the post of Headmistress of elementary school, the junior to him, who was holding the post of Headmaster of Panchayat Union Elementary School, Madigiripalli should have been relieved from the post and the petitioner ought to have been promoted as Headmaster and posted in any one of the single teacher school or as Headmaster in any other Panchayat Union Elementary School; that since his junior was allowed to continue as Headmistress, the petitioner should be given promotion as Headmaster with retrospective effect from 14.06.1988.

5. The second respondent has filed counter on behalf of the respondents 1 to 5. In the said counter affidavit, it has been stated that when the senior most person Umadevi declined the offer to be posted as Headmistress-cum-Secondary grade Assistant of Madigiripalli Panchayat Union Elementary School, the said post was offered to the petitioner, who was next in seniority, but the petitioner also declined to accept the offer, since the secondary grade assistant post and the post of Headmaster of single school teacher carried equal pay and that since he declined the offer, the 5th respondent was posted as Headmistress cum Secondary Grade assistant in the single teacher school; that when the 5th Pay Commission recommendation was given effect to as per G.O.Ms.No.666 dated 27.06.1989, she moved to the next scale of pay, namely the scale of pay fixed for the Headmasters, whereas the petitioner did not have the benefit and that since the petitioner had declined the offer of promotion, he cannot be heard to complain that he was not given promotion, when his junior was given promotion as Headmistress.

6. Mr.M.V.Muralidharan, learned counsel for the petitioner and Mr.M.S.Ramesh, learned Additional Government Pleader have made their submissions in line with the respective stand taken by them in the affidavit and the counter affidavit. This court paid its anxious considerations to the same and also the documents produced by the parties in the form of typed set of papers.

7. At this juncture, this court wants to point out the fact that despite the fact that the writ petition had been admitted long back on 2007 and instructions had been issued to the respondents to produce the file relating to the impugned orders, the respondents have not chosen to produce the same. Hence this court has got no other option except to decide the matter based on the averments made in the affidavit, counter affidavit, the documents produced in the form of typed set of papers and also some of the documents produced at the time of hearing. Upon such hearing and after perusing the said documents, this court passes the following order.

8. Admittedly the petitioner and the 5th respondent were in the cadre of secondary grade assistant before G.O.Ms.No.666 dated 27.06.1989 was brought into force giving effect to the recommendations of the 5th Pay Commission. It is also an admitted fact that the petitioner came to be appointed as secondary grade assistant on regular basis with effect from 01.06.1974, whereas the 5th respondent came to be appointed on regular basis with effect from 06.12.1980. It is also not in dispute that when Panchayat Union Elementary School, Madigiripalli was started as a single teacher school among the secondary grade assistants working in Hosur Panchayat Union, one Uma Devi was the senior most person and next to her was the petitioner. It is also not in dispute that though initially postings to the single teacher schools were made without taking into consideration the seniority of the secondary grade assistant, from 1982 it was proposed to appoint the senior most persons in such schools, because they had to act as Headmaster cum secondary grade assistant in such schools. When Umadevi was offered the post of Headmistress cum single teacher of the Panchayat Union Elementary School, Madigiripalli, she declined the offer. The petitioner would contend that when his immediate senior declined the offer, he should have been offered the post, but the management failed to make him such an offer and illegally continued to have his junior, namely the 5th respondent in the above said post.

9. For the above said contention of the petitioner, the respondents have come forward with a reply that when Umadevi declined the offer, the petitioner who was next in the seniority was offered the post of Headmaster cum single teacher of the above said school vide R.C.No.362/A1/85 dated 14.08.1985, but the petitioner failed to accept that post, since there was no difference of pay between the Headmaster and the secondary grade teacher during the relevant period. Of course when the post of Headmaster and the secondary grade teachers were on the same cadre, the fact that the petitioner declined the offer to be posted as Headmaster cum single teacher of a particular school, cannot be taken as an act of declining the offer of promotion. The respondents 1 to 4, being the controlling authorities managing the school could have very well compelled him to go and join the post, which they did not do. On the other hand, the 5th respondent was allowed to continue as Headmistress cum single teacher of the Panchayat Union Elementary School, Madigiripalli.

10. Things went on smoothly till 5th Pay Commission recommendations were implemented through G.O.Ms.No.666 dated 27.06.1989 with retrospective effect from 01.06.1988. By the implementation of the 5th Pay Commission recommendations, the post of Headmasters of elementary school was carved out as a separate cadre from the secondary grade teachers and it was made a promotional post for the secondary grade teachers. Similarly, the post of Headmaster of Higher Secondary School was also upgraded, with which we are not concerned in this writ petition. Suffice to state that though the post of secondary grade teacher and Headmasters of elementary school were in one and the same cadre before the implementation of the 5th Pay Commission and the implementation of the 5th Pay Commission recommendation brought about a drastic change by creating a separate cadre of Headmasters of elementary schools, which carried higher scale of pay than the pay scale applicable to secondary grade teachers. So long as the post of Headmasters of elementary schools and the secondary grade teachers remained in one and the same cadre, we cannot say that the posting of a junior secondary grade teacher in a one teacher school as headmaster cum single teacher was against the rules or arbitrary. On the other hand, once the post of Headmasters have been upgraded with a higher pay, then that does not mean that the persons who were holding that posts, irrespective of the fact that they were juniors, should be confirrmed in that post with the result that the juniors would be moved to the higher position detrimental to the rights of the seniors. Once the 5th Pay Commission recommendation, creating the cadre of Headmasters of Elementary school as a separate cadre with higher pay than the pay of secondary grade teachers, were implemented, the respondents 1 to 4 ought to have relieved the juniors holding the post of Headmasters or the Headmaster cum single teacher and promoted the eligible seniors to those posts.

11. Though the petitioner made representation to the respondents 1 to 4 seeking redressal of his grievance, such a representation turned out to be one that fell in deaf ears, which ultimately reflected in the rejection of his representation on an untenable ground that he had declined promotion in 1985. As pointed supra, the offer made to him in 1985 for being posted as Headmaster cum single teacher in a single teacher elementary school was not an offer of promotion. The post of Headmasters of elementary schools was not a separate cadre at that point. When that was so, the contention of the respondents that the offer of promotion as headmaster was declined by the petitioner in 1985 is not tenable. Even though the petitioner would have declined the offer to be posted as Headmaster cum single teacher of an elementary school in 1985, that was done only because both the posts carried one and the same scale, even as per the averment made in the counter affidavit. Therefore, by no stretch of imagination, the said offer could be construed as an offer for promoting him to a higher cadre. Therefore, the disinclination expressed by the petitioner in 1985 to be posted as Headmaster cum single teacher of a single teacher school could not be taken as a relinquishment of the right of promotion. The post of Headmaster of secondary school became the promotional posts only after G.O.Ms.No.666 dated 27.06.1989 was issued giving retrospective effect from 01.06.1988. The claim of the petitioner for being promoted as Headmaster based on that Government order is fully justified and the rejection of his prayer by the 4th respondent on the ground that the petitioner declined the post of Headmaster when the Headmaster post was on par with secondary grade teacher is totally unsustainable. Subsequent to the implementation of the 5th Pay Commission recommendation, the petitioner ought to have been promoted as Headmaster, since his junior, namely the 5th respondent was allowed to continue as Headmaster. However, the respondents 1 to 4 have failed to consider the representation in proper perspective and on the other hand have chosen to reject it on untenable grounds.

12. Learned counsel for the petitioner, during his arguments, submitted that the petitioner was subsequently promoted as Headmaster in 2007, after the filing of the writ petition. Hence any relief to which the petitioner shall be entitled shall have the result of conferring only the monetary benefit from 01.06.1988 till the date on which he was promoted. He has also produced a copy of his promotion order for the perusal of this court, which shows that he was promoted as Headmaster with effect from 24.07.2007. In the normal course, he ought to have been promoted immediately after implementation of the 5th Pay Commission, as his junior was allowed to continue in the post of headmaster. Therefore, this court comes to the conclusion that, besides setting side the order of the 4th respondent made in Na.Ka.No.012/A1/00 dated 14.08.2006, the petitioner shall also be entitled to a direction against the respondents that the petitioner's promotion as headmaster of the elementary school shall be given with retrospective effect from 14.06.1988. Though the government order was given effect retrospectively from 01.06.1988, the petitioner has sought direction to promote him as headmaster with effect from 14.06.1988 only. Hence the petitioner shall be entitled to a direction that his promotion shall be given retrospective effect from 14.06.1988. Accordingly the pay of the petitioner should be fixed in the pay scale applicable to headmasters of elementary school with effect from 14.06.1988 and his subsequent pay increments etc. should be regulated. As per the copy of the service book produced by the respondents, the petitioner was born on 25.06.1953 and he would have attained the age of superannuation on 30.06.2011. Hence his pay in the post of Headmaster shall be regulated as indicated and his retiral and pension benefits should be modified accordingly.

In the result, the Writ Petition succeeds. The impugned order of the 4th respondent dated 14.08.2006 made in his letter in Na.Ka.No.012/A1/00 rejecting the representation of the petitioner seeking promotion with retrospective effect is set aside. The respondents 1 to 4 are directed to give retrospective effect to the promotion of the petitioner as Headmaster from 14.06.1988 and regulate his salary. Since the petitioner has retired, his retiral and pensionary benefits should be modified in accordance with the above said modification. No costs. Consequently, the connected miscellaneous petition is closed.

17.04.2013 Index : Yes/No Internet : Yes/No asr/ To

1.The Director of School Education College Road, Nungambakkam Chennai 600 006

2.The District Elementary Educational Officer Krishnagiri, Krishnagiri District

3.The Chief Educational Officer Krishnagiri, Krishnagiri District

4.The Assistant Elementary Educational Officer Hosur P.R.SHIVAKUMAR, J.

asr/ W.P.No.1279 of 2007 17-04-2013

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Madras High Court