Madras High Court
S.Velayudham vs The State Of Tamil Nadu on 28 February, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.02.2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NOs.6707, 6708 and 7306 of 1999,
45624, 44181, 44182, 44183 and 44184 OF 2006,
8591 and 2754 of 2007, 26074 of 2005, 13627, 14129, 13949,
13556, 13545 of 2006 and 1022 of 2007
(T.A.Nos.7 to 9 of 2000, O.A.NOs.8829 OF 2000,
1097 and 1099 of 2002, 8878 of 2000, 4150 of 2001,
1192 of 2002, 1695 of 2001, 4422 of 1999, 4215 of 1991,
1587 of 1993, 2139 of 1992, 1679 of 1992, 2815 of 2000)
1.S.Velayudham
2.K.Illayaperumal.
3.C.Periyasamy
4.P.Vallinayagi
5.P.Ramalingam
6.N.R.Navaneethanarayanan
7.A.Ponnaiyan
8.S.Sudarappan
9.S.Vivekananda
10.R.Rangasamy
11.P.Vijayalakshmi
12.H.Balandoss
13.S.Samikkan
14.G.Radhabai
15.K.Arumugam
16.Vani Somasundaram
17.S.Adhilakshmi
18.C.K.Eswari
19.K.R.Raju
20.N.Visalakshi
21.S.Rukmani
22.M.Santhamani
23.V.Yogalakshmi
24.T.Baby Nazeem
25.K.Nazmabegum
26.B.Rupavathy
27.P.Mathiazhagan
28.M.Vasantha
29.E.S.Swaraj
30.D.Alagarsami
31.R.Santha
32.P.Selvam
33.A.Zarinabegum
34.J.Hepsybai
35.V.Bose
36.T.Paramathai
37.D.Mythilignanasulotchana
38.S.Gopalakrishnan .. Petitioners in
W.P.Nos.6707 and
6708 of 1999
1.Tamil Nadu Educational Subordinate
Service Association,
rep by its President K.Subramani.
2.A.Maruthappa Pandian
3.S.Venkatasubramanian .. Petitioners in
W.P.No.7306 of 1999
V.Yogalakshmi .. Petitioner in
W.P.No.45624 of 2006
Vani Somasundaram .. Petitioner in
W.P.No.44181 of 2006
Baby Nazeem .. Petitioner in
W.P.No.44182 of 2006
C.K.Eswari .. Petitioner in
W.P.No.44183 of 2006
Baby Nazeem .. Petitioner in
W.P.No.44184 of 2006
G.Bala .. Petitioner in
W.P.No.8591 of 2007
1.K.Ilayaperumal
2.S.Velayutham
3.K.Arumugham
4.K.R.Raju
5.S.Vivekanandan
6.H.Balandoss
7.Vani Somasundaram
8.Vijayalakshmi
9.T.Baby Nazeem
10.C.Rukmani
11.P.Ramalingam .. Petitioners in
W.P.No.2754 of 2007
S.Vivekanandan .. Petitioner in
W.P.No.26074 of 2005
K.K.Rajamani .. Petitioner in
W.P.Nos.13627 and
14129 of 2006
A.Selvaraj .. Petitioner in
W.P.No.13949 of 2006
S.Venkatasubramaniam .. Petitioner in
W.P.No.13556 of 2006
K.K.Rajamani .. Petitioner in
W.P.No.13545 of 2006
S.Rukmani .. Petitioner in
W.P.No.1022 of 2007
Vs.
1.The State of Tamil Nadu
rep by its Secretary to Government,
School Education Department,
Fort St. George,
Chennai-9.
2.The Director of School Education,
College Road, Chennai-6. .. Respondents 1 and 2 in
W.P.Nos.6707, 6708
and 7306 of 1999,
44181,44182,
and 44183 of 2006,
2754 of 2007, 26074/2005,
13627 and 14129 of 2006,
13949, 13556, 13545
of 2006, 1022 of 2007
The District Educational Officer,
Kancheepuram .. Respondent in
W.P.No.45624 of 2006
The Chief Educational Officer,
Thiruvallur,
Thiruvallur District. .. 3rd respondent in
W.P.No.44183 of 2006
The Chief Educational Officer,
Panagal Building,
Chennai-600 015. .. Respondent in
W.P.No.44184 of 2006
1.The Director of School Education,
D.P.I. Complex,
College Road, Chennai-600 006.
2.The District Educational Officer,
Cheranmahadevi,
Tirunelveli District. .. Respondents in
W.P.No.8591 of 2007
District Educational Officer,
Periyakulam,
Theni District. .. 3rd respondent in
W.P.No.26074 of 2005
Association of Government 'B' Wing Teachers,
Tamilnadu,
rep by its General Secretary
S.Thangavelu
(as per order in MA No.2428/91,dt.16.12.91) .. 3rd respondent in
W.P.Nos.13627 and
14129 of 2006
3.S.Ayyasamy,
Regional Deputy Director of
Government Examinations,
Coimbatore.
4.S.Ramasubramanian,
Principal,
District Institute of Education and Training,
Thirumoorthy Nagar,
Coimbatore District.
5.N.L.Thirumal Rao,
Deputy Director, Monitoring,
Office of the Director of Nonformal
and Adult Education,
Madras.
6.R.Ranganathan,
Regional Deputy Director of Government-
Examinations,
Madras.
7.V.P.Ramachandran,
Principal,
District Institute of Education and Training,
Tirur, Chengai M.G.R. District.
8.B.Kondappan
Principal,
District Institute of Education and Training,
Krishnagiri.
9.R.Parthasarathy,
Principal,
District Institute of Education and Training,
Munanjipatti, Tirunelveli District.
10.M.J.S.Appadurai,
Principal,
District Institute of Education and Training,
Aduthurai, Thanjavur District.
11.Joice Vatsala,
Principal,
District Institute of Education and Training,
Ranipet,
North Arcot Ambedkar District.
12.D.R.W.Chella Baskaran,
Principal,
District Institute of Education and Training,
Theroor,
Kanyakumari District.
13.R.Krishnamoorthy,
Principal,
District Institute of Education and Training,
Palayampatti,
Kamarajar District.
14.T.N.Murahari,
Deputy Director of School Education,
(Educational Technology Cell)
Madras. .. Respondents 3 to 14 in
W.P.Nos.13949 and
13556 of 2006
District Educational Officer,
Coimbatore,
Coimbatore District. .. 3rd respondent in
W.P.No.1022 of 2007
S.Mangalam .. 3rd respondent in
W.P.Nos.6707 and
7306 of 1999
W.P.No.6707 of 1999 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the proceedings of the second respondent in No.87555/C4/98, dated 22.8.1998 and to quash the same.
W.P.No.6708 of 1999 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring that A wing and B wing staff cannot be integrated as on 1.4.1970 and consequently to direct the respondents 1 and 2 to follow the Tamil Nadu School Education Service Rules in the matter of promotion to the post of Headmaster, District Educational Officers, Deputy Director, etc.,
W.P.No.7306 of 1999 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the impugned proceedings of the second respondent in Na.Ka.No.84920/C8/C33/98, dated 15.2.1999 and to quash the same and to direct the respondents 1 and 2 to make appointments and promotions to the post of Headmasters, District Educational Officers, etc., in accordance with the Tamil Nadu School Educational Service Rules.
O.A.No.8829 of 2000 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.45624 of 2006 praying for the issue of a writ of certiorari to call for the proceedings in Na.Ka.No.7017/B2/98, dated 29.8.2000 on the file of the respondent and to set aside the same.
O.A.Nos.1097 and 1099 of 2002 have been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.Nos.44181 and 44182 of 2006 seeking for the issue of a writ of mandamus to direct the respondents to promote the applicants from the post of Headmistress to the post of D.E.O. on the basis of rank to be assigned with reference to the date of feeder category appointment with seniority and service benefits to the applicants by giving necessary retrospective promotion with monetary benefits.
O.A.No.8878 of 2000 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.44183 of 2006 seeking for the issue of a writ of certiorari to call for the records relating to the proceedings of the third respondent in Mum.Mu.No.3657/A4/99, dated 29.08.1999, which was served on the applicant on 9.12.1999 and to quash the same insofar as this applicant is concerned.
O.A.No.4150 of 2001 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.44184 of 2006 praying for the issue of a writ of certiorari to call for the proceedings in Na.Ka.No.1325/A1/2000, dated 17.4.2001 on the file of the respondent and to set aside the same.
O.A.No.1192 of 2002 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.8591 of 2007 seeking for the issue of a writ of certiorari to call for the proceedings in Na.Ka.No.043642/C4, dated 14.8.2001 and Na.Ka.No.8649/A1/2001, dated 26.11.2001 on the file of the first and second respondents and to set aside the same.
O.A.No.1695 of 2001 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.2754 of 2007 seeking for the issue of a writ of certiorarifed mandamus to call for the records relating to the proceedings circular in Na.Ka.No.15715/C10/2000, dated 27.9.2000 on the file of the second respondent and to quash the entire proceedings and consequently to direct the respondents 1 and 2 to publish the combined integrated list of seniority of the Headmasters of 'A' and 'B' Wing Schools taking into account the date of integration as 1.4.1970 in the category of Headmaster in the ratio of 2:3 between 'A' Wing and 'B' Wing Teaching staff of the School Education Department and then to publish the panel of headmaster fit for promotion to the post of District Educational Officer in the ratio of 40% and 30% between Headmasters of 'A' Wing and 'B' Wing.
O.A.No.4422 of 1999 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.26074 of 2005 seeking for the issue of a writ of certiorari to call for the records relating to the proceedings of the second respondent in Na.Ka.No.87555/C.4/98, dated 16.12.1998 and the order passed by the third respondent in Na.Ka.No.4912/A1/99, dated 5.4.1999 and to quash the same.
O.A.No.4215 of 1991 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.Nos.13627 and 14129 of 2006 seeking for the issue of a writ of mandamus to direct the respondents to consider the claim of the applicant as District Educational Officer in accordance with the ratio of 40% for 'A' Sing and 30% for B-Wing in terms of G.O.Ms.No.1968, Education, dated 2.11.1978.
O.A.Nos.1587 of 1993 and 2139 of 1992 have been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.Nos.13949 and 13556 of 2006 seeking for the issue of a writ of certiorarified mandamus to call for the records relating to the proceedings of the first respondent in G.O.Ms.No.1052 Education dated 8.11.91, G.O.Ms.No.181 Education, dated 20.2.92 and the first respondent passed G.O.Ms.No.207 Education, dated 27.2.92, quash all the G.Os insofar as it relates to the promotion of respondents 3 to 14 as Chief Educational Officers and to direct respondents 1 and 2 to promote the applicants as Chief Educational Officers.
O.A.No.1679 of 1992 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.13545 of 2006 seeking for the issue of a writ of certiorari to call for the records relating to the proceedings of the first respondent in G.O.Ms.No1052 Education, dated 8.11.1991 and to quash the same insofar as the applicant is concerned.
O.A.No.2815 of 2000 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this court renumbered as W.P.No.1022 of 2007 seeking for the issue of a writ of certiorari to call for the records relating to the proceedings of the third respondent in Na.No.750/A1/99, dated 16.2.2000 and to quash the same.
For Petitioners : Mr.V.Selvaraj
in W.P.Nos.6707 & 6708/99, 7306/99,
44183/2006, 26074/05,13627/06,
14129/06, 13949, 13556, 13545 of 2006,
1022/07.
Mr.N.S.Nandakumar in
W.P.Nos.45624/06, 44181, 44182, 44184/06,
8591 and 2754 of 2007
For Respondents : Mr.R.Murali, GA for RR1 to 3 in all W.Ps.
Mr.R.Muthukannu for R-3
in W.P.No.13627 of 2006
No appearance for R-3 in W.P.No.7306/99
- - - -
COMMON ORDER
1.These matters came to be posted on being specially ordered by the Hon'ble Chief Justice by an order, dated 11.2.2011.
2.Heard both sides.
3.1.The first three writ petitions which were filed before this Court were W.P.Nos.6707, 6708 and 7306 of 1999. In W.P.No.6707 of 1999, the petitioners were one S.Velayudham and 37 others seeking to challenge the proceedings of the Director of School Education, dated 22.8.1998. In W.P.No.6708 of 1999, the same petitioners have prayed for a writ in the nature of declaration declaring that 'A' Wing and 'B' Wing staff cannot be integrated as on 1.4.1970 and for a consequential direction to the respondents 1 and 2 to follow the Tamil Nadu School Education Service Rules in the matter of promotion to the post of Headmaster, District Educational Officers, Deputy Director, etc. 3.2.In W.P.No.7306 of 1999, the petitioner is an Association by name Tamil Nadu Educational Subordinate Service Association represented by its President and two others. They have challenged the proceedings, dated 15.2.1999 and after quashing the same, seeks for a direction to the respondents 1 and 2 to promote the petitioners to the post of Headmasters, District Elementary Officers in accordance with the Tamil Nadu School Educational Service Rules.
3.3.By a proceedings, dated 15.2.1999, the State Government had prepared a seniority list of 'A' Wing and 'B' Wing Graduate Teachers ad Headmasters as per the judgment of the Supreme Court, dated 28.4.1996. It is not clear as to how these three writ petitions were filed before this court especially when the Tamil Nadu Administrative Tribunal had come into existence by then and was having jurisdiction to adjudicate all service matters of the State Government servants covered by Section 3(q) of the Administrative Tribunal Act. Even though these matters were not pending on the date of the notification, constituting the Tribunal which alone required an automatic transfer, however all the three writ petitions were transferred to the Tamil Nadu Administrative Tribunal. They were renumbered as T.A.Nos.7,8 and 9 of 2000. Even before transfer of these petitions before the Tribunal, certain matters were pending before the Tribunal projecting individual grievances filed by certain individuals belonging to 'A' Wing.
3.4.In view of the abolition of the Tribunal, all these matters were retransferred to this court. While the transferred application retained their original writ petition numbers, the original applications filed before the Tribunal were renumbered as various writ petitions as noted in the cause title above. However in respect of O.A.No.4215 of 1991, it was renumbered as two different writ petitions, i.e., W.P.Nos.13627 and 14129 of 2006 inadvertently. Since all the writ petitions were interconnected, they were heard together and a common order is passed.
3.5.The controversy in these writ petitions was raised by the teachers who are otherwise called 'A' wing teachers having affiliation to the association representing in the interest of 'A' Wing teachers. The litigation between 'A' Wing and 'B' Wing teachers had already three rounds before the Supreme Court. This may be the starting point for a fourth round by them.
3.6.In order to appreciate the facts involved, it is necessary to put forth the averments made by the Tamil Nadu Educational Subordinate Service Association in W.P.No.7306 of 1999. At the time of existence of District Board, they were running several schools under their control. Apart from District schools, there were Government schools as well as private aided schools. The State Government took a policy decision to abolish the schools run under the District Board. They were taken over by the Government and were to be under the control of the District Collector. Subsequently, they were brought under the control of Director of School Education with effect from 1.4.1970. The Government found that there was administrative difficulties and impracticable to integrate the services of teaching staff and non teaching staff of Board schools with the teachers and non teaching staff working in Government schools. Therefore, separate service rules were framed for teachers in the Government school as well as teachers of erstwhile District Board schools. The teachers working in the Government schools were known as 'A' Wing staff. The erstwhile District Board schools staff were known as 'B' Wing staff. The service conditions of 'A' Wing and 'B' Wing are vastly different. For example, there was no gazetted post of Headmaster in the 'B' Wing as on 1.4.1970. Such posts were created for 'B' Wing only during 1971. The Government also under the Tamil Nadu Educational Service Rules, during 1974 had reserved 30% posts of District Educational Officers to 'B' Wing Headmasters. The distinction between 'A' Wing and "B' Wing Headmasters were continued to be maintained. Further there was no distinction made when a person is promoted as a District Educational Officer (DEO for short) either from 'A' Wing or from 'B' Wing headmasters. Further, promotions of the District Educational Officers were depending upon the seniority in the cadre of DEOs. Hence as per the service rules, separate quota for 'A' Wing and 'B' Wing schools were maintained for promotion to the post of DEO. Apart from that, there were also rules provided for direct appointment to the post of DEO.
3.7.By G.O.Ms.No.1968, Education Department, dated 2.11.1978, the Government took a policy decision to integrate both 'A' wing and 'B' wing into one unit. The date of integration was fixed on 2.11.1978 as the Government felt that integration had taken place only on that day as equivalent posts were created in both 'A' wing and 'B' wing. The Government, by the said G.O., had stated that all promotions after notification 2.11.1978 shall be made on the basis of combined seniority list. Thereafter, the said decision of the Government was challenged before the Supreme Court of India by the 'A' Wing teachers. Those writ petitions filed under Article 32 of the Constitution of India were dismissed by the Supreme Court by a common judgment, dated 23.10.1979. The Supreme Court held that the decision taken by the Government in G.O.Ms.No.1968, Education, dated 2.11.1978 is valid and it had upheld the policy.
3.8.In that judgment (which was subsequently reported in 1980 (3) SCC 97 (The Tamil Nadu Education Department Ministerial & General Subordinate Association Vs. State of Tamil Nadu and another)), the Supreme Court had observed in paragraphs 16 to 20 as follows:
16..... The court cannot strike down a GO, or a policy merely because there is a variation or contradiction. Life is sometimes contradiction and even consistency is not always a virtue. What is important is to know whether mala fides vitiates or irrational and extraneous factor fouls. It is impossible to maintain that the length of service as District Board employees is irrational as a criterion. Let us assume for arguments sake that the mode of selection by the District Boards is not as good as by the Public Service Commission. Even so it is difficult to dislodge the Governments position that the teachers with mostly the same qualifications, discharging similar functions and training similar students for similar examinations cannot be equated from a pragmatic angle without being condemned as guilty of arbitrariness.
17. Sri Govind Swaminathan drove home the point that in some cases even a few hundred A wing members have been passed over by someone in the B wing far junior to them. Once the principle is found to be rational the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate the order or the policy. Every cause claims a martyr and however unhappy we be to see the seniors of yesterday becoming the juniors of today, this is an area where, absent arbitrariness and irrationality, the court has to adopt a hands-off policy.
18. The B wing members complain that they have really suffered by being denied what is due to them on account of length of service all these years after 1970. The boot is in the other leg, they lament. Probably, the injustice of the past, when suddenly set right by the equity of the present, puts on a molested mien and the beneficiaries of the status quo cry for help against injustice to them. The law, as a instrument of social justice, takes a longer look to neutralise the sins of history. Be that as it may, judicial power cannot rush in where even administrative feet fear to tread.
19. We see the force of the petitioners grievance and realise that an alternative policy may well be fabricated. That is a matter for the State and not for the court.
20. We hold that the impugned GO cannot be voided as violative of Articles 14 and 16, and, therefore, dismiss the petitions. The parties will bear their respective costs."
4.1.Subsequent to the order of the Supreme Court, the Government had issued G.O.Ms.No.1307, Education, dated 12.7.1980 amending Rule 2 of the special rules for the Tamil Nadu Educational Subordinate Service. The rules were further amended by G.O.Ms.No.98, Education, dated 21.1.1981. The Government had also issued G.O.Ms.No.38, Education, dated 7.1.1982 amending the Tamil Nadu Educational Subordinate Service Rules and Tamil Nadu Educational Service Rules and that the post of headmaster found in the Tamil Nadu Educational Subordinate Service Rules was abolished.
4.2.The new rule which is found in the Tamil Nadu School Educational Service provided for appointment to the post of Headmaster and Headmistress. It was indicated that all substantive vacancies that may be raised on or from 2.11.1978 in the category of Headmasters are to be filled up by recruitment by transfer or reserved to be filled up among the holders of the post of Deputy Inspector of School Assistants and Career Masters both in the 'A' Wing and 'B' Wing of the school Education department as per the combined seniority list drawn as on 1.11.1978 in the ratio of 2 : 3 and on rotation of every five posts is also provided. At this stage, aggrieved 'B' Wing teachers filed a writ petition before this Court in W.P.No.9237 of 1983 and W.P.Nos.21 to 24 of 1984. S.Mohan, J. (as he then was) found that there was no discrimination made by the impugned order of the State Government in G.O.Ms.No.98, Education, dated 21.1.1981.
4.3.The matter was taken up by the aggrieved individuals before the division bench in W.A.Nos.733 to 736 of 1986 and W.A.No.650 of 1987. The Division bench of this court by its judgment, dated 10.8.1987 held in paragraphs 22 and 23 as follows:
"It is clear that as a result of arbitrarily fixing 1.11.1978 as the date with reference to which integration has to be given effect to in the prescribed proportion, persons belonging to the 'A' wing are being given undue preference in the matter of promotion by placing them higher in the seniority list than those who are already in Government service and thus unequals have been treated as equals. It is true that having regard to the ration fixed by the G.O. dated 2.11.1978 it may be that some persons from the 'A' wing might become senior to the personnel in the 'B' wing irrespective of the date of appointment. But as long as the integration is given effect to as from 1.4.1970 it would not be possible for personnel of the 'B' wing to complain of any unfair or unequal treatment and indeed no such grievance has been made before us. There was clearly a rationale behind the adoption of 1.4.1970 as the date with reference to which the 'A' wing and the 'B' wing personnel were to be integrated. The rationale was that all those who were in service as on 1.4.1970 as Government servants were given equal treatment in the process of integrating the two wings.
23.We are therefore satisfied that there is a clear infirmity in the G.O. dated 21.1.981 by which the old rule 2A was substituted by the present rule 2A. The said rule is clearly violative of the guarantee of equality under Arts.14 and 16 of the Constitution. The said rule is therefore liable to be quashed. The result is that these appeals are allowed, the order of the learned Judge is set aside and a writ of mandamus will issue to the State Government to redraw the seniority list as originally contemplated by G.O.No.1968, dated 2.11.1978. There will however be no order as to costs in these appeals."
4.4.The matter was taken to the Supreme Court in SLP(Civil) Nos.14250 and 14685 to 14689 of 1987. The Supreme Court had dismissed the SLPs by an order, dated 15.12.1987 and held that the judgment of the division bench was not in conflict with the earlier order passed by the Supreme Court in 1980 (3) SCC 97 (cites supra).
5.1.After the disposal of the SLPs, the State Government had issued G.O.Ms.No.1583, Education Department, dated 12.10.1988 amending the Tamil Nadu Educational Subordinate Service Rules relating to promotion from the cadre of secondary grade teacher to school assistant. Once again, the amendment was questioned by the Headmasters belonging to 'B' Wing schools by filing O.A.No.46 of 1988. Even though the Headmasters are no way concerned with the said amendment, yet they filed the original application. The Tribunal held that the promotion to the posts of Headmasters and District Educational Officers could be made only after preparing the combined seniority list of 'A' Wing and 'B' Wing staff as on 1.4.1970.
5.2.Aggrieved by the judgment of the Tribunal, dated 4.5.1990, the matter was taken to the Supreme Court by way of direct appeals as per the provisions of the Administrative Tribunal Act by the Tamil Nadu Teachers Association. It was the third round of litigation. The Supreme Court finally had disposed of those appeals vide its judgment in Tamil Nadu Teachers Association Vs. Association of the Heads of the Government (B Wing) High & Higher Secondary Schools and others reported in AIR 1998 SC 2267 = 1998 (5) SCC 178. The Supreme Court in that judgment held in paragraphs 28 to 30 as follows:
"28.Ultimately, the Tribunal came to the conclusion as follows:
The respondents cannot be allowed to alter the provisions contained in GOMs No. 1968, Education, dated 2-11-1978 by means of impugned government orders in view of the fact the Bench had declared that in doing so it will amount to:
(1) Inequality of opportunity among the employees belonging to the same class.
(2) Employees of A Wing who were not in service as on 1-4-1970 are likely to be placed above B Wing teachers who were in service as on 1-4-1970.
If the impugned government orders are to be enforced after 1-4-1970 by adding subsequently recruited people of A Wing then if the subsequent promotions are given effect to as per the ratio it will result in the same condition, viz., A Wing teachers recruited subsequent to 1-4-1970 getting precedence over B Wing teachers who were in service as on 1-4-1970. Hence, the passing of the impugned government orders will bring into existence the situation which was directed to be avoided by the Division Bench judgment. Enforcing the impugned government orders will result in perpetrating something which was struck down by the High Court and the Supreme Court.
29. We find that the Tribunal on the basis of the facts and records placed before it, has arrived at the correct conclusion. The contention of the learned counsel appearing for the appellants to support the change brought about in the date of integration from 1-4-1970 to 2-11-1978 and the reasons given therefor are either overruled already in the two rounds of litigation or they are too technical. The submission that the mandamus issued by the Madras High Court was a futile one as the Rule struck down by it was not there on the statutory-book when the judgment was rendered, cannot be taken note of as the Government, accepting the decision of the Madras High Court as upheld by this Court, had issued the GOs impugned in these cases. Further, the Madras High Court, apart from holding GO No. 98 as illegal and void, also settled other contentious issues like the date of integration between the parties. The High Court further commanded the State to redraw the seniority list as originally contemplated by GO No. 1968. That being the position, it is too late in the day to contend that the judgment of the Madras High Court, as upheld by this Court, has to be totally ignored. Mr P.P. Rao, the learned Senior Counsel appearing for the respondents, was right in placing reliance on a judgment of this Court in M.M. Pathak case3 and in making the submission that the right to combine seniority list as well as the promotional opportunities provided in GO No. 1968 became crystallised in the said writ of mandamus issued by the Madras High Court as upheld by this Court and the same could not be taken away by resorting to the rule-making power of the State Government. At the risk of repetition, we point out that the Government after the judgment of this Court upholding GO No. 1968, expressed that there was no better possible alternative to the problem than the integration order affirmed by this Court. After all this, the Government again purporting to give effect to the writ of mandamus issued by the Madras High Court as upheld by this Court, issued GOs impugned in these cases, which had the effect of disintegrating an integrated cadre contrary to the principles contained in GO No. 1968. Therefore, the Tribunal was compelled to quash the GOs impugned before it. The technical objections taken by the learned counsel for the appellants that in the absence of challenge to GOMs Nos. 37 dated 7-1-1982 and 603 dated 15-4-1987 the respondent-B Wing teachers cannot get the fruits of the Tribunals direction, is also not tenable. It was rightly pointed out by the learned Senior Counsel, Mr P.P. Rao that GO No. 37 dated 7-1-1982 had no impact at all on the principles of integration contained in GO No. 1968 and it did not even touch the quotas prescribed for promotion from Gazetted Headmasters, post to that of DEO for A and B Wings. In the circumstances, the learned counsel was right in his submission that GO No. 37 must be read down to sustain its validity to mean that the combined seniority list should be drawn up with reference to 31-3-1970, i.e., the date on which B Wing teachers were absorbed in government service and made up-to-date as on 1-11-1978 by deleting the names of persons promoted, resigned or dead in the meanwhile, for operating the same for purposes of filling up vacancies. Similarly, GO No. 603 dated 15-4-1987 has no effect on the integration process initiated under GOMs No. 1968 and, therefore, there was no need to challenge the same by B Wing teachers.
30. As pointed out earlier, once if we come to the conclusion that the date of integration was 1-4-1970 and not 2-11-1978, all other questions will go to the background and this was not seriously disputed by Mr Selvaraj, learned counsel appearing for one of the appellants."
5.3.Even though before the Supreme Court, the State Government contended that it was impossible to integrate 'A' Wing and 'B' Wing serves as on 1.4.1970 and the relevant rules governing their services were not challenged by the 'B' Wing, the Supreme Court held that combined seniority list should be drawn only as on 31.3.1970 and all promotions should be made on the basis of the combined seniority list of 'A' Wing and 'B' Wing as on 1.4.1970. But after that judgment of the Supreme Court, the State Government did not file any petition before the Supreme Court for any modification. It also did not withdraw the earlier G.O.Ms.No.1968, Education, dated 2.11.1978.
6.After the order passed by the Supreme Court, the Government sent a letter, dated 17.8.1998 to the Director of School Education, asking him to implement the order of the Supreme Court by fixing the seniority in each category of staff taking into account the date of integration as 1.4.1970. The letter also stated that all promotions made from 1.4.1970 to 1991 should be modified and revised seniority list should be drawn. It was thereafter, the second respondent had published a panel of School Assistants fir for promotion as on 1.3.1998. The said panel was published without preparing the combined seniority list of 'A' Wing and 'B' Wing. The seniority list dated 15.2.1999 indicated that the inter-se seniority was published in terms of the order passed by the Supreme Court in its last judgment, dated 28.4.1998. It was indicated that it was a provisional list.
7.According to the petitioners, upto serial number 679, the list was arranged on the basis of 2 : 3 ratio between 'A' and 'B' Wings and from serial number 680 to 1485, only the names of 'B' Wing teachers has been listed. After serial No.679, it was stated that serial No.678 was the last person awarded Grade I Scale of pay equal to headmasters in 'B' Wing prior to 1.4.1970 and therefore, candidates from 'A' Wing got exhausted. It is the case of the petitioners that the second respondent while preparing inter-se seniority list had admitted that there was no post of Headmasters in 'A' Wing schools as on 1.4.1970. According to the petitioners, they published seniority list of Deputy Inspectors of Schools, School Assistants, Headmasters Grades I and II in 'A' Wing as on 1.4.1970 contained 402 Deputy Inspectors of Schools, School Assistants and Headmasters Grade I and 1238 persons belonging to similar category. It also contained names of 30 others belonging to the category of School Assistants, Deputy Inspectors of Schools and Headmasters, who were promotees as well as 234 persons belonging to the category of Tamil Pandit Grade I. In the combined seniority list, 272 persons belonging to 'A' Wing have been arbitrarily picked up and shown as Headmasters. The combined seniority list of school assistants contained the names of 7827 persons of whom 1659 belonged to 'A' Wing and 6168 belonged to 'B' Wing. In that case, the ratio of 2 : 3 was followed upto serial No.4147. Thereafter, only 'B' Wing teachers' names alone found.
8.Therefore, according to the petitioners, as per G.O.Ms.No.1968, Education, dated 2.11.1978, it is mandated that all substantive vacancies existed as on 2.11.1978 or which arise after that date, the ratio between the two wings should be strictly followed. But the present seniority list was not prepared in accordance with the said G.O and it is contrary to the judgment of this Court and the Supreme Court and that if allowed to stand, 'B' Wing teachers alone will be given promotion to the post of District Educational Officers.
9.In the light of the stand taken by the petitioners, it is seen that the petitioners seem to be having grievances even after the third judgment of the Supreme Court in 1998 (5) SCC 178 and that is why, it is stated that the Government should have filed an appropriate review application. Their further argument was that in the guise of implementing the latest order of the Supreme Court, they cannot derail the earlier decisions, wherein seniority to be prepared as on 2.11.1978 was insisted. If not done, it will cause grave prejudice to 'A' Wing teachers.
10.A perusal of the seniority list, dated 15.2.1999 showed that it is only a provisional list. The aggrieved persons are directed to send a representation within 31.3.1999. There is nothing on record to show that any such representation was sent by the aggrieved individuals. Further, the seniority list even contained the name of persons who were born as on 9.11.1917 and if that person V.Lakshminarasimma is alive, he will be 93 years old by now. The last person in the seniority list who was admittedly born some what during 1947 and even that person will be now 63 years old. Therefore, none of the persons who are in the list are either serving as of now or who could be either directly appointed for any promotional post even if they succeed in redrawing the seniority list. The State Government cannot be found fault with in implementing the order of the Supreme Court. In any event, the controversy between 'A' Wing and 'B' wing must be brought to an end. It must be noted that if the quota rule is incapable of being implemented, necessarily rota rule will also fail. In the present case, the admission of the petitioners was that there was any 'A' Wing to Headmasters on the date of drawing of seniority list to be promoted to the post of District Educational Officers. This Court is not inclined to entertain the writ petitions so as to set aside the seniority list or to revise the seniority list especially when no relief can be given to any one of the petitioners in a collective manner. In the light of the same, W.P.Nos.6707, 6708 and 7306 of 1999 will stand dismissed. No costs.
11.W.P.Nos.13627 and 14129 of 2006 and 2754 of 2007 : As noted already, W.P.Nos.13627 and 14129 of 2006 arose out of the same O.A.No.4215 of 1991. It was mistakenly numbered as two different writ petitions. In any event, the prayer of the petitioners was for a direction to consider the claim of the petitioners as District Educational Officers in accordance with the ration of 40% for 'A' Wing and 30% for 'B' Wing in terms of G.O.Ms.No.1968, Education, dated 2.11.1978.
12.On notice from the Tribunal, the respondent State has filed a reply affidavit, dated 20.12.1991. In that reply, it was claimed that the Government was implementing the order of the Tribunal in O.A.No.46 of 1988. Even though the Supreme Court was seized of the matter in SLP, the Supreme Court by an order dated 9.9.1991 in the application for vacating the interim order, had directed maintenance of status quo pending civil appeals. It must be noted that subsequently, the civil appeals were disposed of by the Supreme Court vide its judgment, dated 18.4.1998 which was reported in 1998 (5) SCC 178 (cited supra). The Government had also subsequently issued an order implementing the same and upon which, the respondents had prepared an appropriate seniority list which is the subject matter of challenge in W.P.Nos.6707, 6708 and 7306 of 1999. Since no attempt was made to challenge those orders which were issued subsequently and also the order of the Supreme Court is binding on the State Government, no relief can be given in these three writ petitions. Hence, W.P.Nos.13627 and 14129 of 2006 and 2754 of 2007 will stand dismissed. No costs.
13.W.P.Nos.13545, 13556 and 13949 of 2006 : These three writ petitions arose out of O.A.Nos.1679 of 1992, 2139 of 1992 and 1587 of 1993 respectively. All the three writ petitions challenge the order of the Government in G.O.Ms.No.1052, Education, dated 8.11.1991 as well as G.O.Ms.No.181, Education, dated 20.2.1992 and G.O.Ms.No.207, Education, dated 27.2.1992. In view of the abolition of the Tribunal, the matters stood transferred to this court and renumbered as W.P.Nos.13545, 13556 and 13949 of 2006.
14.Apparently, all these orders were issued taking advantage of the interim orders passed by the Supreme Court in various SLPs and in various civil appeals pending before the Supreme Court at the relevant time. Those civil appeals were dismissed on 28.4.1998 which was subsequently reported in 1998 (5) SCC 178. Subsequently, the Government had also issued necessary guidelines to implement the order of the Supreme Court referred to above. Further, the petitioners are no longer in service. Hence all these three writ petitions, i.e., W.P.Nos.13545, 13556 and 13949 of 2006 will stand dismissed. No costs.
15.W.P.No.44184 of 2006 arose out of O.A.No.4150 of 2001 is filed seeking to challenge an order of recovery consequent upon revision of scale of pay made in favour of the petitioner and the alleged excess amount was sought to be recovered. The Tribunal granted an interim stay after admitting the O.A. On 3.7.2001. On notice from the Tribunal, the respondent has filed a reply affidavit, dated 16.8.2001. In view of the abolition of the Tribunal, the matter stood transferred to this court and renumbered as W.P.No.44184 of 2006.
16.W.P.No.26074 of 2005 arose out of O.A.No.4422 of 1999 is filed seeking to challenge an order dated 16.12.1998 issued consequent upon the judgment of the Supreme Court, wherein revised pay was directed to be made and consequently, recovery order was issued. The Tribunal admitted the OA and had granted an interim stay. Subsequently, a reply affidavit was filed by the respondent, dated 25.11.1999. The petitioner preferred CRP(PD)No.611 of 2005 seeking for transfer of the OA pending with the Tribunal to be brought to this court. The said CRP was ordered on 20.4.2005 and the matter was transferred to this court and renumbered as W.P.No.26074 of 2005.
17.W.P.No.45624 of 2006 arose out of O.A.No.8829 of 2000 was filed before the Tribunal challenging an order dated 29.8.2000 wherein the petitioner's salary was revised and the excess amount was sought to be recovered. The OA was admitted on 1.12.2000 and an interim stay was granted. The respondents have filed a reply affidavit dated 5.2.2001. In view of the abolition of the Tribunal, the matter stood transferred to this court and renumbered as W.P.No.45624 of 2006.
18.W.P.No.44183 of 2006 arose out of O.A.No.8878 of 2000 was filed by the petitioner before the Tribunal, seeking to challenge an order, dated 29.8.1999, refixing her salary and also the attempt to recovery the alleged excess amount. The OA was admitted on 17.09.2001 and an interim stay of recovery was granted. In view of the abolition of the Tribunal, the matter stood transferred to this court and renumbered as W.P.No.44183 of 2006.
19.In W.P.No.1022 of 2007 arose out of O.A.No.2815 of 2000, the petitioner challenges an order dated 16.2.2000 seeking to refix the pay and also the recovery of amount. The Tribunal admitted the OA on 24.4.2000 and had granted an interim stay. Subsequently, M.A.No.8742 of 2001 was filed to vacate the stay granted. In view of the abolition of the Tribunal, the matter stood transferred to this court and renumbered as W.P.No.1022 of 2007.
20.In W.P.No.8591 of 2007, the petitioner filed O.A.No.1192 of 2002 before the Tribunal, challenging an order dated 26.11.2001 refixing the salary and also the recovery of alleged excess amount. The said OA was admitted on 8.3.2002. Pending the OA, there is nothing to indicate that the petitioner had the benefit of an interim order. On notice, the respondents have filed a reply affidavit, dated 24.7.2002 stating that the revision was necessitated consequent upon the revision of seniority and refixation of pay. In view of the abolition of the Tribunal, the matter stood transferred to this court and renumbered as W.P.No.8591 of 2007.
21.In all these cases, admittedly the petitioners after serving their term have retired from service. Before effecting refixation and recovery, no notice was given. While in the first five writ petitions, i.e., W.P.Nos.44184 of 2006, 26074 of 2005, 45624 and 44183 of 2006 and 1022 of 2007, the petitioner had the benefit of an interim stay. In W.P.No.8591 of 2007, there was no interim stay. However, the contention that no notice was given to them before ordering recovery is not denied in the reply affidavits.
22.In this context, it is necessary to refer to the judgment of the Supreme Court in Syed Abdul Qadir Vs. State of Bihar reported in (2009) 3 SCC 475. The following passage found in paragraphs 57 to 59 may be usefully reproduced below:
57.This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
58.The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana1, Shyam Babu Verma v. Union of India2, Union of India v. M. Bhaskar3, V. Gangaram v. Director4, Col. B.J. Akkara (Retd.) v. Govt. of India5, Purshottam Lal Das v. State of Bihar6, Punjab National Bank v. Manjeet Singh7 and Bihar SEB v. Bijay Bhadur8.
59.Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made."
23.In the light of the above, in W.P.Nos.44184 of 2006, 26074 of 2005, 45624 and 44183 of 2006 and 1022 of 2007, the impugned orders stand set aside. In case if already any recovery is made, the petitioners in these writ petitions are entitled for refund of the said amount. The respondents are directed to pass an appropriate order within a period of three months from the date of receipt of copy of this order and communicate the order to the petitioners without fail. Accordingly, W.P.Nos.44184 of 2006, 26074 of 2005, 45624 and 44183 of 2006 and 1022 of 2007 will stand allowed. No costs.
24.In W.P.No.8591 of 2007 since no interim order was passed and presumably the order would have taken effect and the petitioner would have retired from service during the year 2005 itself, no relief can be given to her. Hence, W.P.No.8591 of 2007 will stand dismissed. No costs.
25.W.P.Nos.44181 and 44182 of 2006 :In both the writ petitions which arose out of O.A.Nos.1097 and 1099 of 2002, the petitioners seek for a direction to promote the petitioners to the post of District Educational Officer from the post of Headmistress on the basis of the rank to be assigned with reference to the date of feeder category appointment with seniority and service benefits. Notice of motion was ordered on 5.3.2002 and no counter has been filed on the side of the respondents. In view of the abolition of the Tribunal, the matters stood transferred to this court and renumbered as W.P.Nos.44181 and 44182 of 2006.
26.The petitioners at the time of filing of the O.As., were 55 and 57 years old and would have got retired from service in the year 2005 and 2003 respectively. In the light of the judgment passed by this court in W.P.Nos.6707, 6708 and 7306 of 1999, no case is made out to entertain these writ petitions. Accordingly, W.P.Nos.44181 and 44182 of 2006 will stand dismissed. No costs.
vvk To
1.The District Educational Officer, Kancheepuram
2.The Secretary to Government, The State of Tamil Nadu School Education Department, Fort St. George, Chennai-9.
3.The Director of School Education, College Road, Chennai-6.
4.The Chief Educational Officer, Thiruvallur, Thiruvallur District.
5.The Chief Educational Officer, Panagal Building, Chennai-600 015.
6.The Director of School Education, D.P.I. Complex, College Road, Chennai-600 006.
7.The District Educational Officer, Cheranmahadevi, Tirunelveli District.
8.District Educational Officer, Periyakulam, Theni District.
9.District Educational Officer, Coimbatore, Coimbatore District