Madras High Court
The Secretary vs C.Murugan
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam, S.Ananthi
W.A.(MD) Nos.299, 300, 711, 965, 990, 1069
of 2020, 430, 431, 432, 433, 434, 435, 436,
437, 438, 439, 440 & 441 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of pronouncing the Judgment
29.04.2021 01.06.2021
CORAM :
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HON'BLE MRS.JUSTICE S.ANANTHI
W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433,
434, 435, 436, 437, 438, 439, 440 & 441 of 2021
and
C.M.P.(MD) Nos.2185, 2188, 4199, 5251, 5343, 5849 of 2020, 1732, 1736,
1737, 1739, 1741, 1743, 1744, 1746, 1747, 1749, 1752 & 1756 of 2021
W.A.(MD) No.430 of 2021:
1.The Secretary
Government of Tamil Nadu
School Education Department
Fort St.George, Chennai-600 009
2.The Director of School Education
DPI Campus, College Road, Chennai-600 006
3.The Director of Elementary Education
School Education, DPI Campus
College Road, Chennai-600 006 ... Appellants
-vs-
C.Murugan ... Respondent
Page 1 of 52
https://www.mhc.tn.gov.in/judis/
W.A.(MD) Nos.299, 300, 711, 965, 990, 1069
of 2020, 430, 431, 432, 433, 434, 435, 436,
437, 438, 439, 440 & 441 of 2021
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 24.03.2020, passed in W.P.(MD) No.5984 of 2020, on the file
of this Court.
For Appellants : Ms.S.Srimathy
Special Government Pleader
For Respondent : Mr.Anto Prince
COMMON JUDGMENT
T.S.SIVAGNANAM, J.
All these writ appeals are directed against the common order in W.P.(MD) Nos.5984 of 2020 etc. batch, dated 24.03.2020.
2. At the request of the learned counsels on either side, W.A. (MD) No.430 of 2021, filed by the Government of Tamil Nadu, is taken as the lead case.
3. The respondent in the said writ appeal, namely, C.Murugan Page 2 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 is the petitioner in W.P.(MD) No.5984 of 2020. The prayer in the said writ petition was for issuance of a writ of mandamus to direct the first appellant herein to regularise his services from the date of his initial appointment till 01.01.2006 with consequential monetary and service benefits in the light of the decision in W.P.No.4991 of 2015, dated 30.07.2019, in the case of T.Kunju Krishnan and others vs. Government of Tamil Nadu and others.
4. The case of the respondent / writ petitioner is that during the period 2003 to 2006, Teachers Recruitment Board (in short, “TRB”) had conducted selection process for appointing teachers in the School Education Department. The respondent / writ petitioner was one of the participants in the selection conducted by TRB during 2004 and was successful and was appointed as a Junior Secondary Grade Teacher on consolidated wages. This recruitment and appointment as Junior Secondary Grade Teacher was pursuant to the policy decision taken by the Government in G.O.(Ms) No. 100, School Education (Budget) Department, dated 27.06.2003. This Page 3 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 decision appears to have been taken in order to fill up various vacancies and the appointment was to a post, which is called Junior Secondary Grade Teacher, was not one of the cadre posts under the relevant Act and Rules. Furthermore, the pay was on consolidated wages as it appears that there was financial cruch to grant scale of pay to those appointed as Junior Secondary Grade Teachers.
5. The Government in G.O.(Ms) No.52, School Education (E1) Department, dated 01.06.2004, referred to G.O.(Ms) No.100, where the Government ordered to fill up the vacant teachers post on consolidated wages for a period of five years and also ordered to allot different workload to the consolidated post holders from that of the regular teacher posts. In consultation with the Director of School Education and Director of Elementary Education, the Government ordered the following workload to the teachers appointed on consolidated pay. In all these cases, we are concerned about the teachers, who have to handle classes 6 to +2 and workload as stipulated in G.O.(Ms) No.52 is as follows: Page 4 of 52
https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 “I. 6th Std +2 course Class Teachers
1. (i) they must handle a minimum of 14 hours of work per week.
2. (ii) they need not be inolved in any extra curricular activities of schools.
3. (iii)they are permitted to leave the institution as and when the work assigned by the Head of the institution for each day is completed and they need not remain in the school till cloure of the school.”
6. Subsequently, the Government, by G.O.(Ms) No.53, School Education (HS1) Department, dated 02.06.2004, considered the draft form of agreement forwarded by the Director of School Education for appointment to the post of Junior Grade Post Graduate Assistant in Government / Municipal Higher Secondary Schools under Rule 11 of the General Rules for Tamil Nadu State and Subordinate Services.
7. The Government, after careful consideration, approved the draft form of agreement to be executed at the time of appointment by the Page 5 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 Junior Grade Post Graduate Assistants. The Director of School Education was requested to instruct the appointing Authorities to execute the agreement with Junior Grade Post Graduate Assistants. In the later part of this Judgment, we shall refer to the relevant terms and conditions of the agreement, which has been signed by the respondents / teachers at the time when they were appointed on consolidated basis.
8. The Government, by another order in G.O.(Ms) No.54, School Education (M2) Department, dated 02.06.2004, created posts of Junior Grade B.Ed. Teachers / Tamil Pandits / Pandits of other languages / Physical Education Teachers / Specialist Teachers in Government / Municipal High / Higher Secondary Schools from the academic year 2003 – 2004 and also prescribed the form of agreement to be executed under Rule 11 of the General Rules for the Tamil Nadu State and Subordinate Services.
9. It is not in dispute that the respondents / teachers have executed the agreement and all of them have been appointed in the said Page 6 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 Junior Grade posts on consolidated wages. The Government in G.O.(Ms) No.100, dated 27.06.2003, had made it clear that the appointment will be made to the Junior Grade post and the appointees will be paid consolidated pay for a period of five years. All the respondents / writ petitioners had accepted the said appointment without any demur and they have been working. Thereafter, the Government by G.O.(Ms) No.99, dated 27.06.2006, granted time scale of pay to all those teachers, who were paid on cosolidated wages with effect from 01.06.2006. Accordingly, the appointment of the respondents / teachers stood regularized with effect from 01.06.2006 and they were working and many of them also earned further promotions.
10. The Government, by G.O.(Ms) No.120, School Education Department, dated 18.07.2006, fixed the date for commencement of probation of the said teachers from 01.06.2006 and made it clear that on and after the said date, the post of Junior Grade Teacher would stand abolished. The respondents / teachers had accepted the same and their probation period Page 7 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 commenced and it stood declared and further promotions have also been granted.
11. The present attempt of the respondents / teachers is to claim regularization of their services from the date of their initial appointment till 01.06.2006 so that the length of service can be reckoned and there is also a claim for payment of monetary and other attendant benefits for the said period. Their claim is predicated on three major factors, firstly, they were recruited through TRB and appointed as Junior Grade Teachers; secondly, the post to which the appointment was made is a sanctioned post and there is a need to fill up the post and thirdly, by placing reliance on the decision in the case of T.Kunju Krishnan and others (supra).
12. The respondents relied upon the decision of the Honourable Supreme Court in Direct Recruit Class-II Engineer, Engineering Officers' Association vs. State of Maharashtra and others [1990 (2) SCC 715] and submitted that there is a difference between the status of a person, who has Page 8 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 been appointed to a post according to the Rules and the status of a person, who was appointed on adhoc basis and not in accordance with the Rules, where the appointment was purely a stopgap arrangement. By relying on the said decision, it is submitted that the respondents / teachers having been appointed to a sanctioned post, after following the recruitment process, should be given the benefit of seniority from the date of their first appointment and the period of service should be counted from the said date of appointment and not from the date of regularization i.e.01.06.2006.
13. The respondents / writ petitioners appear to have sent representations to the appellants and alleging that those representations have not been considered have filed the writ petitions praying for issuance of a writ of mandamus to regularize their services from the date of their initial appointment as Junior Grade Teachers till 01.06.2006 and sanction consequential monetary and service benefits. These writ petitions have been allowed by the learned Single Bench, by order dated 24.03.2020, following the decision in the case of T.Kunju Krishnan and others (supra). Page 9 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 It appears that the writ petitions were allowed at the admission stage as it is seen that the writ petitions were filed on 20.03.2020 and have been allowed on 24.03.2020 and therefore, there was no possibility for the Government / appellant to file counter affidavits.
14. Aggrieved by the order and directions issued by the learned Writ Court, the Government is on appeal before us.
15. Two other writ petitions in W.P.(MD) Nos.24640 and 21467 of 2019, which have been allowed by order dated 09.12.2019. In W.P.(MD) No.24640 of 2019, there is one petitioner, namely, A.Jamal Mohammed and in W.P.(MD) No.21467 of 2019, there are 18 petitioners, namely, Nallusamy and 17 others. The prayer sought for in W.P.(MD) No. 21467 of 2019 is for a direction upon the appellants to regularize the service of the writ petitioners from the date of their initial appointment and to pay consequential monetary benefits. This prayer is identical to the other cases, namely, the cases filed by Mr.C.Murugan and others. Page 10 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021
16. The prayer in W.P.(MD) No.24640 of 2019 is for issuance of a writ of certiorarified mandamus to quash the promotion panel issued by the second appellant, dated 16.11.2019, which is a tentative panel published for considering the candidates to be promoted as Headmaster / Headmistress in Government / Municipal Higher Secondary Schools.
17. The case of the petitioner A.Jamal Mohammed is identical to that of the case of the petitioners C.Murugan and others. The case of V.Nallusamy and 17 others is also identical, except the prayer to quash the tentative promotion panel to the post of Headmaster and for a consequential direction to provide seniority and include the 18 writ petitioners in the panel of Post Graduate Assistant Teachers to be promoted to the post of Headmaster of Government Higher Secondary Schools by taking into account the date of their initial appointment. Thus, though the prayer in the three sets of writ petitions are slightly differently worded and there is also a challenge to the tentative panel prepared consisting of the names of the Page 11 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 eligible candidates to be promoted to the post of Headmaster, all the writ petitioners seek for regularization of their services from the date of their initial appointment. Thus, all that is required to be considered in the batch of writ appeals is whether such services rendered by the respondents / writ petitioners as Junior Grade Teachers should be reckoned and that whether their services could be regularized from the said date.
18. We have elaborately heard Ms.S.Srimathy, learned Special Government Pleader and Mr.K.Ragateesh Kumar, learned counsel, appearing for the appellants and Mr.D.Shanmugaraja Sethupathi, Mr.G.Chandrasekar, and Mr.Anto Prince, learned counsels appearing for the respondents / writ petitioners.
19. The writ petitions have been allowed by the learned Single Bench by placing reliance on the decision in the case of T.Kunju Krishnan others (supra). The reason which weighed in the mind of the learned Writ Court for allowing the writ petition in the case of T.Kunju Krishnan and others (supra) was that those petitioners joined service prior to the issuance Page 12 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 of G.O.(Ms) No.100, dated 27.06.2006, however, their services have been regularized in terms of the said Government Order only from 01.06.2006. The Government resisted the prayer by contending that the Government Order was accepted by the Junior Grade Teachers and they have not challenged the same and it has attained finality. The learned Writ Court, while accepting that regularization can take place with effect from 01.06.2006, held that the date of entry of the writ petitioners will have to be taken into account for the purpose of drawing seniority list, which is already fixed by TRB and it is impermissible to combine all the persons recruited during various periods together and draw a consolidated list for drawing seniority list, which will definitely create confusion and affect seniority of the seniormost persons.
20. The learned Writ Court, in the case of T.Kunju Krishnan and others (supra), referred to the order of the Honourable Division of this Page 13 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 Court in the case of B.Karthikeyan and another vs. The Commissioner, Most Backward and Denotified Communities Welfare Department, Chennai, [W.P.(MD) Nos.21316 & 21317 of 2015, dated 12.06.2017], wherein the effect of G.O.(Ms) No.99, dated 27.07.2006 was considered. The Honourable Division Bench, after referring to the decision in the case of Direct Recruit Class II Engineering Officers' Association (supra), held that the petitioners therein are entitled to claim seniority of teaching exprience from the date of initial appointment for all purposes, including promotion to the post of Headmaster / Headmistress of the Higher Secondary Schools. After referring to the said decision, the writ petition filed by T.Kunju Krishnan and others was allowed and the learned Writ Court, by following the decision in the case of T.Kunju Krishnan and others (supra) has allowed the present writ petitions.
21. One of the arguments before us by the learned counsel for the respondents / writ petitioners is that the decision in the case of T.Kunju Page 14 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 Krishnan and others (supra) was put to challenge by the Government in W.A.No.3904 of 2019 and the Honourable First Bench, by Judgment dated 13.01.2020 allowed the appeal in part and the seniority of the writ petitioners was agreed to be reckoned from the date of initial appointment and monetary benefits to be given from the date of regularization i.e. 01.06.2006. Therefore, it is submitted that the appeals filed by the Government and the appeals filed by the teachers, whose names find place in the tentative panel for promotion to the post of Headmaster, are liable to be dismissed.
22. The learned Special Government Pleader appearing for the appellants submitted that the Government as well as the aggrieved teachers filed applications to grant leave to file review applications against the Judgment in W.A.No.3904 of 2019, dated 13.01.2020. The aggrieved teachers submitted that they are working as B.T.Assistants having been promoated as such in the year 2005 and the contesting respondents, namely, the teachers similarly placed as that of the respondents / writ petitioners Page 15 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 herein, were initially appointed in terms of the Rule 11 of the Tamil Nadu State and Subordinate Service Rules and their appointments were pursuant to G.O.(Ms) No.53, dated 02.06.2004 under the provisions of Rule 11 aforesaid and their absorption into the services was with effect from 01.06.2006 alone and the period of probation commenced from 01.06.2006 and that the seniority shall be considered as per the communal allotment and the method is one, which was to be determined by TRB. The aggrieved teachers contended that by extending the benefit to the writ petitioners, they will be deprived of their further promotion though having been promoted to the post in the feeder category in the year 2005 and all of them stand senior to the respondents / writ petitioners and therefore, they sought leave to file a review application to review the Judgment of the Honourable Division Bench, datd 13.01.2020.
23. The Honourable First Bench, after considering the submissions, held that if the seniority of the review applicants are directly affected by the implementation of the judicial intervention, then keeping in Page 16 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 view the law laid down by the Honourable Supreme Court in Udit Narain Singh Malpaharia vs. Additional Member, Board of Revenue, Bihar and another [AIR 1963 SC 786], as also the general law of seniority, they are affected parties and therefore, proper and necessary parties entitled to be heard in the matter and the review applicants having not been made as parties to the writ petitions and they are likely to be affected, have therefore a right to seek leave to appeal and accordingly, the applicatioins seeking leave to appeal were allowed and the review applicatiions were directed to be numbered and admitted. Though interim order was sought for by the review applicants, in the light of the submissions of the learned Special Government Pleader (Education) that no promotions are being made due to pandamic, the Honourable First Bench held that the question of grant of any interim order at that stage does not arise and request can be made during pendency of the appeal, if occassion so demands. We also find that along with the review applications, which were directed to be numbered and admitted and to be listed for hearing on 29.09.2020, a writ appeal filed by the affected teachers, who also sought for grant of leave, was permitted and Page 17 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 the writ appeal has been admitted. Thus, the net effect of the order in T.Kunju Krishnan and others (supra) is that it cannot be relied on as a precedent. Thus, we note that the review applications have been entertained and they have been admitted and fresh writ appeals at the instance of the aggrieved teachers have also been admitted. Therefore, the respondents / writ petitioners cannot seek to draw any inspiration or place reliance on the decision in T.Kunju Krishnan and others (supra).
24. That apart, we find that Ground No.15 of the memorandum of grounds of appeal in W.A.No.3904 of 2019 appears to have stated that the learned Writ Court ought to have considered that with regard to the promotion of the respondents therein, allowing those Secondary Grade Teachers / BT Assistants / PG Teachers brought into regular time scale of pay with effect from 01.06.2006 vide G.O.(Ms) No.99, School Education Department, dated 27.06.2006, date of initial appointments under contract basis is taken into account already and no injust is caused to them. Noting this ground raised by the Government, it was held that the Government Page 18 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 itself had agreed to grant the benefit of seniority from the date of initial appointment and all monetary benefits from the date of regularization, which is from 01.06.2006.
25. In Paragraph No.6 of the Judgment, dated 13.01.2020 in W.A.No.3904 of 2019, the undertaking given by the respondents / writ petitioners i.e.T.Kunju Krishnan and others that they will not claim any monetary benfits from the date of the first appointment was placed on record and that portion of the order passed in the writ petition directing payment of monetary benefits from the date of first appointment was accordingly deleted. There is an observation that the learned counsel agrees that the seniority of the writ petitioners to be reckoned from the date of initial appointment and monetary benefits be given from the date of regularization i.e. 01.06.2006.
26. The argument of the respondents / writ petitioners is that the Government had agreed that the seniority will be reckoned from the date of initial appointment and therefore, the learned Single Bench was right in Page 19 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 allowing the writ petitions following the decision in the case of T.Kunju Krishnan and others (supra).
27. As noted above, not only the review applications filed in the case of T.Kunju Krishnan and others (supra) were admitted, but a separate writ appeal by the aggrieved teachers have also been admitted. When the aggrieved teachers prayed for interim orders, the learned Special Government Pleader, who appeared before the Honourable First Bench, on instructions, submitted that no promotions are being effected during the pandamic period and therefore, the Honourable Division Bench observed that the question of granting interim order at that stage did not arise, but gave liberty to make a request during the pendency of the appeals / review applications for grant of interim order, if occassion so demands. The Judgment in T.Kunju Krishnan and others (supra) appears to be based upon a concession and such concession also can never enure in favour of the respondents / writ petitioners before us for the reasons assigned by us earlier coupled with the fact that the order and direction passed by the Page 20 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 learned Writ Court in the case of T.Kunju Krishnan and others (supra) was not given effect to and in two of the writ appeals before us in W.A.(MD) Nos.299 and 300 of 2020, an order of interim stay has been granted on 26.02.2020. Thus, we are of the view that the respondents / writ petitioners cannot place reliance on the decision in the case of T.Kunju Krishnan and others (supra).
28. Having steered clear of the above issue, now we proceed to examine as to whether the plea raised by the respondents / writ petitioners is justified and whether the relief sought for can be granted i.e.whether their services can be regularized from the date of first appointment till 01.06.2006 and their seniority be reckoned from the date of initial appointment and consequently, alter the tentative panel prepared for promotion to the post of Headmaster by placing the name of the writ petitioners ahead of the appellants / aggrieved teachers.
29. To consider as to whether such a relief can be granted to the respondents / writ petitioners, we need to take note of the fact as to how and Page 21 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 in what manner and in what basis the respondents / writ petitioners were initially appointed. Admittedly, the post to which they were appointed is not the post of Secondary Grade Teacher / PG Assistant, but the post had a distinct nomenclature called “Junior Grade Secondary Grade Assistant / Junior Grade PG Assistant”. Such post is not one of the posts which finds place in the category of posts for the School Education Department. Thus, the post with the prefix “Junior Grade Teacher” was a post created by the Government to tide over certain difficulties on account of lack of teachers and this was a policy decision and such post was to exist only for a period of five years and the teachers so appointed as Junior Grade Teachers were to be paid consolidated pay of Rs.3000/4000/4500.
30. To examine the policy decision, which was taken by the Government and the purpose behind it, we need to carefully go through G.O.Ms.No.100 and having done so, we find that the following facts would be very relevant to take a decision:
“2. BkYk; jw;bghJ epytp tUk; epjp epiyiaf; fUj;jpw; bfhz;L rpy Jiwfspy; cs;s gzpaplA;;fs; jtpu kw;w muR Page 22 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 mYtyfA;fspy; cs;s fhypg; gzpaplA;;fis epug;g[tjw;F jil tpjpf;fg;gl;Ls;sJ. Mrphpah; fhyp gzpaplA;;fis epug;g[tJ Fwpj;J Muha[k; bghJ midj;J tifg; gs;spfspYk; me;je;j tif Mrphpah; gzpaplA;;fspy; mt;tg;bghJ epue;jukhff; fhyp Vw;gLk;bghJ. mj;jifa gzpaplA;;fshdJ nsepiy Mrphpah; gzpaplA;;fshf (mjhtJ nsepiy nilepiy Mrphpah;> nsepiy gl;ljhhp Mrphpah,;> nsepiy KJfiy Mrphpah; vd) fUjg;gl;L fPHf; ;fz;lthW bjhFg;g{jpaj;jpy; epug;g muR MizapLfpwJ.
thpir Mrphpah; gzpapl tif tHA;;fg;glt[s;s bjhFg;g{jpak;
vz;. khjk; xd;Wf;F
1. nsepiy nilepiy U:.3000/- (eh;rhp khz;obrhhp kw;Wk;
Mrphpah; (clw; fy;tp fpz;lh; fhh;ld; Bghd;w nsepiy
Mrphpah;> rpwg;ghrphpah; Mrphpah;fSf;F U:.2500/- cl;gl)
2. nsepiy gl;ljhhp U:.4000/-
Mrphpah; (bkhHp Mrphpah;
cl;gl)
3. n,sepiy Kjfiy U:.4500/-
Mrphpah;
n,t;thW bjhFg;g{jpaj;jpy; epug;gg;gLk;BghJ, n,dp Mrphpah; gzpaplA;;fspy; Kiwahd Cjpa tpfpjj;jpy; Beuo epakdk; nUf;fhJ. gjtp cah;tpy; kl;Lk; Kiwahd Cjpa tpfpjj;jpy; epakdk; bra;ag;gLk; nsepiy Mrphpah; fhypg; gzpaplA;;fspy; bjhFg;g{jpaj;jpy; epakdk; bra;ag;gLgth;fs; Ie;J Mz;L fhy epue;ju gzp epiwt[f;Fg;gpd; jFjp jpwik kw;Wk;
gzpKg;g[ Bghd;witfSf;Fl;gl;L Kiwahd Cjpa tpfpjj;jpy; Page 23 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 epakdk; bra;ag;gLth;. mt;thW epakdk; bra;a[k;BghJ mth;fs; tfpf;Fk; gzpaplkhdJ jhdhf Kiwahd gzpaplkhf juk; cah;j;jg;gl;ljhff; fUjg;gLk;. Kiwahd Cjpa tpfpjj;jpy; epakdk; bra;j gpd;dh; mth;fsJ jFjpfhz; gUtkhdJ Kd;whz;L fhyj;jpw;Fs; nuz;lhz;L fhykhf nUf;Fk;. Mrphpah; fhypg; gzpaplA;;fis bjhFg;g{jpaj;jpy; epug;gg;gLtjw;F VJthf me;je;j gzpapl tpjpfSf;F chpa jpUj;jk; btspaplg;gLk;. mBjBghd;W Kiwahd Mrphpah; gzpaplA;;fSf;Fk; bjhFg;g{jpaj;jpy; epakpf;fg;gLk; nsepiy Mrphpah; gzpaplA;fSf;Fk;> bjhFg;g{jpaj;jpy; epakpf;fg;gLk; nsepiy Mrphpah; gzpaplA;;fSf;Fk; khWgl;l epiyapy; gzpg; gS eph;zak; bra;ag;gLk;.”
31. On a reading of the above Government Order, it is evidently clear that the post to which the respondents / writ petitioners were appointed, was specifically created to tide over certain difficulties more particularly financial difficulties faced to grant scale of pay to the teachers. The respondents / writ petitioners had unequivocally accepted the terms of the Government Order and willingly joined the post. The said Government Order had worked itself out and it would be too late for the respondents / writ petitioners to state that the conditions contained therein cannot be made Page 24 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 applicable and that the services rendered by them as Junior Grade Teachers should be reckoned for the purpose of computing the total length of service, after they were regularized, is the plea which has to be outrightly rejected.
32. The above conclusion is further fortified, if we examine G.O.(Ms) No.52. By this Government Order, nature of allocation of workload was stipulated by Government themselves, which we have referred to in the preceding paragraphs and the workload prescribed for these Junior Grade Teachers is not commensurate with the regular teachers. Therefore, the respondents / writ petitioners, who are appointed as Junior Grade Teachers, having been paid wages on consolidated wage basis, were allotted lesser work. This condition was also accepted by the respondents / writ petitioners without any demur.
33. The next Government Order, which is relevant is G.O.(Ms) No.53, by which the form of agreement to be signed by the respondents / Page 25 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 writ petitioners, as proposed by the Director of School Education, was approved by the Government. The said agreement was made under Rule 11 of the General Rules of the Tamil Nadu State and Subordinate Services for appointment of Junior Grade Teachers. Condition No.6 of the agreement states that the services of the Junior Grade Teachers may at any time during the tenure of service under the agreement be terminated either by the Joint Director of School Education (Higher Secondary) or any higher authority by giving three months notice on the part of the teacher / employer, except in case of termination for want of vacancy. Clause-8 of the agreement states that the candidates so appointed during the temporary service under the said agreement would be eligible subject to exigencies of public service for casual leave. As per Clause-10, the teacher will be on contributory pension scheme on his/her regular appointment on compleation of five years of contract appointment and Clause 11 of the agreement specifically states that the Junior Grade Teachers so appointed shall not have any claim of regularization of his/her services in the post of PG Assistant for fixation of seniority and sanction of increment by virtue of the appointment on Page 26 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 cosolidated pay on any account for any reason whatsoever.
34. Further, the Junior Grade Teachers so appointed need not be involved in any extracurricular activities of the schools. Therefore, the agreement clearly sets out the terms and conditions of the appointment. The candidates so appointed in the post have signed the agreement and accepted all conditions. Therefore, the respondents / writ petitioners are estopped from making any claim for regularization prior to 01.06.2006, which itself was a concession granted by the Government by granting regularization of service well before the expiry of five years, though the respondents / writ petitioners were put on notice that their appointment is for a period of five years on consolidated pay and the respondents / writ petitioners had accepted the said condition and joined the post.
35. Further, in G.O.(Ms) No.120, Education Department, datd 18.07.2006, the Government took a decison as regards the date on which the Page 27 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 probation of the respondents should commence and the same was fixed as 01.06.2006. Further, in Paragraph No.5 of the said Government, the following has been specifically ordered:
“5.BkYk;, jw;BghJ bjhFg;g{jpa Kow uj;J bra;ag;gl;L tpl;ljhy; BkBy ghh;it 1y; gof;fg;gl;l murhizapy; Fwpgplg;gl;Ls;s nsepiy Mrphpah; gzpaplA;fs; (Junior Grade Teacher) Kjy; nUf;fhJ.”
36. In terms of the above Government Order, the procedure of appointment on consolidated wages was revoked and the post, which was created in terms of G.O.(Ms) No.100, namely, Junior Grade Teacher post was a policy decision with effect from 01.06.2006. This Government Order will clearly demonstrate that the post of Junior Grade Teacher was created for a specific purpose for a specific time with specific conditions and on fulfilment of the conditions for which the post was created, the post stood abolished. Therefore, past services i.e.the services rendered by the teachers prior to the date of regularization i.e.01.06.2006 can never be reckoned for the purpose of computing their seniority and their claim for being placed above the regularly appointed teachers is thoroughly misconceived and has Page 28 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 to be outrightly rejected.
37. Furthermore, we find that the candidates, whose names are found in the panel, were regularly promoted as PG Assistants in December 2004 and January, 2005 and their promotions were approved from the respective dates, whereas the respondents / writ petitioners had become PG Assistants only with effect from 01.06.2006 and their services were regularized only from the said date and the probation period commenced only from the said date. Therefore, they can never seek to marchover the regularly promoted PG Assistants.
38. The aggrieved teachers, who are appellants before us are justified in their stand that if the respondents / writ petitioners' claim has to be accepted and the services rendered by them on contract basis, on consolidated wage should be reckoned for computing their seniority, the appellants would also be justified in stating that their regular service rendered as BT Assistants and Secondary Grade Teachers should also be Page 29 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 reckoned, if that is done, then the claim of the respondents / writ petitions needs to be rejected.
39. Further, we find that a writ petition was filed by the Junior Grade Teachers in W.P.No.4509 of 2019 stating that their names should be included in the panel for promotion to the post of Headmaster by counting the services rendered by them from the initial date of appointment i.e. prior to 01.02.2006 and the said writ petition was disposed of by order dated 18.02.2019 directing the Director of School Education to consider the representation of those writ petitioners dated 25.10.2018 on merits and in accordance with law pursuant to which, the Director has considered the representations and by proceedings dated 03.09.2019 has rejected the said representationis and the order has already been communicated to the concerned teachers and the said order has not been challenged by any of them and has attained finality.
40. Further, we note that identical issue was considered by the Page 30 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 Honourable Division Bench in the case of S.Merriton Zachari Raj vs. The Government of Tamil Nadu [W.P.Nos.37713 of 2004 etc. Batch, dated 08.07.2008], wherein writ petitions were filed challenging the Government Order in G.O.(Ms) No.125, dated 12.11.2003 and the consequential order in G.O.(Ms) No.4, dated 19.01.2004, wherein the Government took a decision to downgrade the post, which fell vacant due to retirement /death/resignatioin of the concerned incumbent from 01.06.2003 in all aided schools and Secondary Grade post by downgrading his Junior Grade Teacher post either as Junior Grade Secondary Grade Teacher or Junior Grade BT Assistant and only after completioin of five years, time scale of pay was admissible. The writ petitioners therein were similarly placed as that of the respondents / writ petitioiners in this case who accepted the conditions and joined the post as Junior Grade PG Assistants on consolidated wage of Rs.4500/- per month and thereafter, they questioned the correctness of the said Government Orders downgrading the post and creating the post with a nomenclature as Junior Grade Teacher. The Honourable Division Bench, after taking note of the various decisions in Page 31 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 State of Rajasthan vs. Amrit Lal Gandhi [(1997) 2 SCC 342;
T.N.Electricity Board vs R.Veerasamy [(1993) 3 SCC 414]; Ramrao vs. All India Backward Class Bank Employees Welfare Associations [(2004) 2 SCC 76 and State of Punjab and others vs. Amarnath Goyal and others [(2005) 6 SCC 754] held as follows:
“17. In view of the above judgments of the Honourable Apex Court, there is no doubt that financial crisis is a valid ground for the Government for such matters involving financial burden on the Government. In all these matters, it has been submitted by the Government that about 40,000 teachers were appointed during the period 2003-2004 on a consolidate pay and if the relief as sought for by the petitioners is acceded to, the financial implication on the Government will be to a tune of Rs.1,440/= crores. In the case on hand, admittedly, only considering the financial crunch and having realised that the very appointment of the teachers cannot be dispensed with because of the financial crisis, the Government was constrained to order filling up of the vacant Page 32 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 teacher posts on and from 1.6.2003 on consolidate pay. As has already been pointed out supra, this decision of the Government, issued under G.O.Ms.No.100, was never under challenge and only the consequent orders passed by the Government are challenged by the petitioners in these writ petitions. Therefore, we are unable to accept the arguments advanced on the part of the petitioners that financial crisis cannot be a ground for the Government. As a result, the decision of the Government to effect appointment of teachers on consolidate pay on and from 1.6.2003, cannot at all be faulted with. Therefore, it has to be held that the Government is well within its powers in passing orders to appoint the teachers on and from 1.6.2003 on consolidate pay.”
41. The above decision is a clear answer to the cases of the respondents / writ petitioners and that they are not entitled to any relief as prayed for by them.Page 33 of 52
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42.Mr.D.Shanmugaraja Sethupathi, learned counsel appearing for respondents 1 to 18 in W.A.(MD) Nos.299 and 300 of 2020 has submitted written arguments, which we have carefully perused.
43.It is submitted by the learned counsel that three issues arise for consideration in these batch of cases, viz., (i) whether the writ petitioners/respondents 1 to 18 are entitled to be regularised from the date on which they were initially appointed on consolidated pay and whether they are entitled to get consequential monetary benefits; (ii) whether the period during which the writ petitioners/respondents 1 to 18 worked on consolidated pay/temporary basis can be taken as “qualifying service” for the purpose of calculating their seniority; and (iii) whether the impugned promotion panel dated 16.11.2019, issued by the Director of School Education without considering the seniority of the writ petitioners/respondents 1 to 18, is sustainable. Page 34 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021
44.Issue Nos.1 and 2 have been considered by us in the preceding paragraphs and they have been answered by us in favour of the appellants and against the writ petitioners. Nevertheless, having taken note of the written submissions submitted by the learned counsel, we answer the issues as follows. The contention of the writ petitioners is that on account of non-joinder of necessary parties, the rights of the writ appellants/teachers are no way affected, insofar as Issue Nos.1 and 2 are concerned, as the issues relate to regularisation and monetary benefits, sought for by the writ petitioners, is an issue between the Government and the writ petitioners. The said submission is devoid of merits. The writ petitioners have failed to note as to what would be the consequences of relief being granted to them as prayed for in the writ petitions. If they have to be regularised from the date of their initial engagement as a Junior Grade Teacher and to be granted monetary benefits from the said date, undoubtedly, the writ petitioners would claim a march over the regularly appointed teachers, as they seek for higher placement in the seniority list. This is what precisely has been done by the writ petitioners by challenging the tentative promotion panel dated Page 35 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 16.11.2019. Therefore, non-impleadment of proper and necessary parties is a substantial ground on which relief has to be denied to the writ petitioners.
45.With regard to the third issue, viz., the challenge to the promotion panel, the writ petitioners would state that the writ appellants/teachers having been granted leave to file writ appeal against the order in the writ petition, they have been given an opportunity to put forth their contentions in the writ appeals and cannot be stated to be aggrieved. This argument is wholly unsustainable because in the original proceedings, the appellants/teachers were not made as parties and as observed by us earlier, the consequence of allowing the writ petitions would have a direct impact on the writ appellants/teachers. The writ appeals, being a continuation of the original proceedings, an aggrieved person is entitled to state that he should have been heard at the first instance, when the writ petition was decided and that opportunity claimed by the writ appellants/teachers is very vital opportunity and the defect of non- impleadment of proper and necessary parties does not get cured on account Page 36 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 of leave being granted by the Division Bench to the writ appellants/teachers to file an appeal against the order in the writ petition. In fact, by virtue of the order granting leave to file writ appeal itself presupposes that the writ appellants/teachers ought to have been heard in the writ petitions as they are proper and necessary parties and therefore, an appeal at their instance is being entertained. Thus, merely because leave has been granted to file a writ appeal will not cure the inherent defect of non-impleadment. Therefore, we are well justified in holding that the writ petition ought to have been dismissed on the ground of not impleading of proper and necessary parties.
46.With regard to Issue Nos.1 and 2, the writ petitioners would place heavy reliance on the judgment in the case of T.Kunju Krishnan and others (supra). In the preceding paragraphs, we have elaborately dealt with as to how the said decision cannot be relied on by the writ petitioners and the fact being review application has been admitted apart from that a writ appeal has also been admitted and the prayer for grant of stay in the review Page 37 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 applications and the writ appeals has not been refused, but was not granted after recording the submission of the learned Special Government Pleader (Education) that on account of pandemic, no promotions are effected. The Hon'ble First Bench made it clear that as and when necessity arises for grant of interim order, the review applicants/writ appellants can approach the Court. Therefore, an order of interim stay was not granted because of the stand taken by the Government that they are not affecting promotions. Thus, the reasoning given by us would amply demonstrate that the writ petitioners can no longer rely upon the decision in T.Kunju Krishnan and others (supra).
47.It is submitted that pursuant to the Government Order in G.O.Ms.No.99 dated 27.06.2006, the services of the writ petitioners/respondents 1 to 18 were regularised and time scale of pay was granted and the Joint Director of School Education issued individual orders dated 28.08.2006 regularising their services, wherein it has been stated that the rank assigned to them will be as per the rank list prepared by the TRB at Page 38 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 the time of initial recruitment. Based on the proceedings of the Joint Director of School Education dated 28.08.2006, it is argued that the writ petitioners/respondents 1 to 18 are entitled to get seniority as per the rank list prepared by the TRB from the date of initial appointment. The argument is thoroughly misconceived and a wrong understanding of the effect of G.O.Ms.No.99 dated 27.06.2006 as well as the proceedings of the Joint Director of School Education dated 28.08.2006. The writ petitioners are not entitled to claim any benefit for having worked as a Junior Grade Teacher. Upon their regularisation in 2006, the post of Junior Grade Teacher has been abolished. That apart, the post of Junior Grade Teacher itself was on account of downgrading the existing post of teachers when vacancy arose on account of death, retirement or promotion and the Government made it clear that the post of Junior Grade Teacher will be filled up by candidates, who undergo a recruitment process conducted by the TRB making it clear that for a period of five years, they will be on consolidated pay. The candidates were required to sign an agreement, which clearly states that they can claim no right of regularisation. Thus, the Page 39 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 writ petitioners could not have raised any issue for a period of five years. The Government thought fit that the writ petitioners can be brought into regular time scale of pay well before the expiry of five years and Government Order was issued in 2006 and they were regularised in service, brought into time scale of pay from 01.06.2006. The policy decision take by the Government to downgrade the post by creating Junior Grade Teacher post was put to challenge and the Hon'ble Division Bench upheld the Government Order. We have referred to the relevant portion of the judgment in the preceding paragraphs. Furthermore, the rank list, which is referred to by the Joint Director in his proceedings dated 28.08.2006 is a rank list showing the inter se merit between those candidates who were recruited and selected by the TRB to be accommodated in the post of Junior Grade Teacher. This inter se rank list prepared by the TRB can be of no consequence for the claim made by the writ petitioners stating that this rank list should be given effect to from the date of initial engagement on consolidated pay. Such submission is unknown to service jurisprudence. Page 40 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021
48.It is further submitted by the learned counsel for respondents 1 to 18 that the appellants were appointed as Post Graduate Assistants by promotion/recruitment by transfer whereas, respondents 1 to 18 were appointed by direct recruitment and while determining inter se seniority among the appellants and respondents 1 to 18, due regard should be given to Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules and to be determined with reference to the date on which they are appointed to the service, class, category or grade. It is further submitted that this provision, viz., Rule 35(aa) is a special provision and it will prevail over the general rule and the terms of the agreement and the Government Orders have not excluded the applicability of Rule 35(aa) either in G.O.Ms.No.100 dated 27.06.2003, nor in G.O.Ms.No.53 dated 02.06.2004, nor in the appointment order.
49.Rule 35(aa) states that the seniority of a person in a service, class, category or grade shall, where the normal method of recruitment to Page 41 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the services, class, category or grade.
50.For Rule 35(aa) to be attracted, there should be more than one method of recruitment. The appellants are Post Graduate Assistants, who have been either promoted to the said post or recruited by transfer. The writ petitioners claim that their recruitment is also a mode of direct recruitment and therefore, their seniority should be determined with reference to the date on which they were appointed. The argument of the writ petitioners is wholly untenable. The recruitment drive, which was conducted for the writ petitioners, was a special recruitment to a post which was created by downgrading the existing post called Junior Grade Teacher with consolidated pay. Therefore, the recruitment done by the TRB insofar as the writ petitioners are concerned, is not one of the methods of recruitment for Rule 35(aa) to be made applicable. Therefore, the Page 42 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 submission made by the writ petitioners in this regard is rejected.
51.The writ petitioners would further contend that the appellants had relied upon Clause 11 of the agreement, which was appended to G.O.Ms.No.53 dated 02.06.2004, but this was not incorporated in the appointment order issued to respondents 1 to 18. Therefore, the said condition will not be binding. Respondents 1 to 18 having fully been aware that they are being appointed to a post called Junior Grade Teacher on a consolidated pay, cannot turn around and challenge their method of selection and appointment, nor raise any contention contrary to the conditions fixed by the Government. Respondents 1 to 18 are clearly barred by the principles of estoppel. Therefore, this contention raised by them is rejected.
52.With regard to the work load, the appellants had referred to a Government Order, which shows that the work load of respondents 1 to 18 Page 43 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 is lesser than the appellants and others, who are similarly placed to the appellants. Merely by contending that respondents 1 to 18 are also working as that of regular Post Graduate Teacher, is a self-serving statement as we are required to consider as to what was the policy of the Government, when they conceived upon a special recruitment to a post called Junior Grade Teacher. The Government was conscious of the fact that they cannot be granted time scale of pay for a period of five years. The post of Junior Grade Teacher was created for a specific purpose by downgrading the existing post, which fell vacant at the relevant time. Since the Junior Grade Teachers were to be paid on consolidated wages for five years, the Government though fit that they should not be extracted with work as that of the regular Post Graduate Teachers and therefore, they stipulated lesser work load. If some of respondents 1 to 18 have worked more, it is probably by individual's choice and also probably due to their zeal for teaching and nothing more can be inferred from the same. Therefore, this contention is rejected.
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53.The learned counsel for respondents 1 to 18 would contend that the post of Higher Secondary School Head Masters is being filled up by promotion in the ratio of 7:2 from among P.G. Assistants and High School Head Masters and once the B.T. Assistants are considered to the post of High School Head Masters, they cannot be considered for promotion to Higher Secondary School Head Masters for the quota meant for P.G. Assistants. It is submitted that the appellants were promoted to the post of P.G. Assistants and they are in the panel to be considered for promotion as High School Head Masters and simultaneously, they are competing also for the post of Higher Secondary School Head Masters from the panel of P.G. Assistants and therefore, inclusion of their names in the panel of promotion to the post of Higher Secondary School Head Masters is illegal. Further, it is submitted that those P.G. Assistants, who have been included in the impugned promotion panel were already included in the panel of promotion for High School Head Masters and they relinquished themselves from the said panel and therefore, cannot be considered for promotion for the next three years and this aspect has been ignored by the Department. Page 45 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021
54.Firstly, respondents 1 to 18 should have locus standi to raise such an issue. Only if they satisfy such condition, they can question the panel, which was impugned in the writ petition.
55.In the preceding paragraphs, we have held that respondents 1 to 18 cannot compare themselves with that of the appellants and this comparison itself is on account of their plea that they are entitled to be regularised in service with effect from the date of original appointment as Junior Grade Teacher on consolidated wage. We have categorically held that such a plea is untenable and not sustainable. Consequently, respondents 1 to 18 have no locus standi to question the penal, which was impugned in the writ petition.
56.It is further submitted by the learned counsel for respondents 1 to 18 that in respect of the Graduate Assistant Teachers and P.G. Assistant Teachers, the Department regularised their services by Page 46 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 G.O.Ms.No.336 dated 30.12.2009 and those teachers were appointed under various Government Orders during the year 1990 on fixed consolidated pay for two years. The teachers filed W.P.No.221 of 1991 in which an order was passed that all appointments made pursuant to the Government Orders shall be treated as regular appointment with effect from the date of initial appointment and the writ appeals filed by the Government in W.A.Nos. 14002 to 14041 of 2001 and 307 of 2006 were dismissed and the Government implemented the judgment by issuing G.O.Ms.No.336 dated 30.12.2009 and sanctioned time scale of pay from the date of their respective appointments. The said decision would apply to the case of respondents 1 to 18 also.
57.In our considered view, the said decision regularising the teachers, who were appointed in the year 1990 can be of no assistance to respondents 1 to 18 herein. The reason being the terms and conditions of their appointment and how they were treated at the first instance. Above all, respondents 1 to 18, having accepted the appointments, joined the post, Page 47 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 worked on consolidated wages and having enjoyed the benefit of regularisation granted in 2006, which itself was a big concession granted to them, are wholly estopped from contending that the services rendered by them as Junior Grade Teachers on consolidated pay should also be reckoned for all purposes including monetary benefits. The plea is thoroughly misconceived. Equally the decision in W.P.Nos.21316 and 21317 of 2015 can in no manner advance the case of respondents 1 to 18.
58.The learned counsel has placed reliance on the decision in the case of Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra & Ors., [(1990) 2 SCC 715]. This decision can be made applicable to determine the status of a person, who was appointed to a post according to the rule and status of a person, who was appointed on ad hoc basis and not according to rules. In the first category of cases, it has been held that they should be given the benefit of seniority and their period of service shall be counted from the date of their appointment and not from the date of their regularisation or confirmation. This decision cannot be Page 48 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 applied to the case of respondents 1 to 18, as they were appointed to a post, which was a post created by downgrading an existing post, given a different nomenclature, viz. Junior Grader Teacher with salary paid on consolidated basis. The terms and conditions of recruitment were made known to all the candidates including respondents 1 to 18. Therefore, they can never raise a plea that their recruitment having been done by TRB, is in accordance with the Rule and therefore, their seniority should be counted from the date of appointment. It may be true that the recruitment was done by the TRB, but it was a special recruitment for a specific purpose to a special category of post with wages on consolidated basis. Therefore, the decision of the Hon'ble Supreme Court cannot be applied to the case of respondents 1 to 18.
59. That apart, the belated attempt made by the respondents / writ petitioners is liable to be rejected for several reasons. Firstly, they are estopped from contending contray to the Government Orders, contrary to the terms and conditions of the Government Orders and contrary to the conditions contained in the agreement to which they have agreed. Page 49 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021 Secondly, the challenge to the policy decision to downgrade the post to that of the Junior Grade Teacher was rejected and the decision of the Government has been upheld. The request made by some of the teachers to reckon the period of service prior to 01.06.2006 was directed to be considered by the Director of School Education pursuant to an order passed in a writ petition. The representation was considered and rejected and the same has not been challenged and after lapse of nearly fourteen years, suddenly the respondents / writ petitions have come up with this fanciful claim, which is absolutely untenable and unsustainable in law.
60. The present attempt of the respondents / writ petitioners is to march over the regularly promoted PG Assistants, who are only 62 number, whereas the Junior Grade Teachers, like the respondents / writ petitioners are more than 3000. Thus, the relief sought for by the respondents / writ petitioners is misconceived and liable to be rejected and accordingly, rejected.
Page 50 of 52 https://www.mhc.tn.gov.in/judis/ W.A.(MD) Nos.299, 300, 711, 965, 990, 1069 of 2020, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440 & 441 of 2021
61. In the result, the writ appeals are allowed and the orders and directions issued in the writ petitions are set aside and consequently, the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
[T.S.S., J.] [S.A.I., J.]
01.06.2021
Index : Yes / No
Internet : Yes / No
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the Judgment may be
utilized for official purposes, but,
ensuring that the copy of the
Judgment that is presented is the
correct copy, shall be the
responsibility of the advocate /
litigant concerned.
krk/abr
T.S.SIVAGNANAM, J.
and
S.ANANTHI, J.
krk/abr
Page 51 of 52
https://www.mhc.tn.gov.in/judis/
W.A.(MD) Nos.299, 300, 711, 965, 990, 1069
of 2020, 430, 431, 432, 433, 434, 435, 436,
437, 438, 439, 440 & 441 of 2021
COMMON JUDGMENT
IN
W.A.(MD) Nos.299, 300, 711, 965,
990, 1069 of 2020, 430, 431, 432,
433, 434, 435, 436, 437, 438, 439,
440 & 441 of 2021
01.06.2021
Page 52 of 52
https://www.mhc.tn.gov.in/judis/