Madras High Court
T.Ramu Nadu vs The Secretary To Government on 4 September, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.09.2018 CORAM: THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN W.P.No.27137 of 2012 T.Ramu Nadu ... Petitioner Vs 1.The Secretary to Government, School Education Department, Secretariat, Chennai-600 009. 2.The Director of Elementary Education, College Road, Nungambakkam, Chennai-600 006. 3.The District Elementary Education Officer, Salem, Salem District. 4.The Assistant Elementary Education Officer, Ayodhyapatnam, Salem District. 5.The Accountant General, (Accounts & Entitlements), Tamil Nadu, rep. by its Accounts Officer, 361, Anna Salai, Chennai-600 018. ... Respondents Petition is filed under Article 226 of the Constitution of India for the issuance of writ of certiorarified mandamus calling for the records on the file of the fifth respondent in P19/III/11904811/11/12/ADK dated Nil 01.12 and signed on 04.1.2012 and quash the same and to direct the respondents to disburse all the benefits to the petitioner that flow from G.O.(Ms) No.202 School Education Department, dated 24.9.2008 read with Pro. Na.Ka.No.211/A1/2011 dated 29.9.2011 of the fourth respondent with all consequential pay, retirement and pensionary benefits with 10% interest on the delayed payment with effect from 29.09.2011 within a limited time frame. For Petitioner : Mr.M.Ravi For Respondents : Mr.R.Govindasamy Spl. Government Pleader for R1 to R4 M/s.T.S.Selvarani for 5th respondent O R D E R
This writ petition has been filed by the petitioner seeking a writ of certiorarified mandamus to call for the records on the file of the fifth respondent in P19/III/11904811/11/12/ADK dated 04.01.2012, to quash the same and to consequently direct the respondents to disburse all the benefits to the petitioner that flow from G.O.(Ms) No.202 School Education Department, dated 24.09.2008 read with Pro. Na.Ka.No.211/A1/2011 dated 29.09.2011 of the fourth respondent with all consequential pay, retirement and pensionary benefits with 10% interest on the delayed payment with effect from 29.09.2011.
2. I heard Mr.M.Ravi, learned counsel for the petitioner, Mr.R.Govindasamy, learned Special Government Pleader appearing for the respondents 1 to 4 and Mr.T.S.Selvarani, learned counsel appearing for the fifth respondent and also perused the materials available on record.
3. The grievance of the petitioner is that he was initially appointed as Higher Grade Assistant through Employment Exchange on 03.06.1964 and later promoted as Secondary Grade Headmaster on 12.10.1966 in Palacode Union, Dharmapuri District. While he was working as such in Palacode Union, the petitioner was transferred on 05.07.1973 to Ayodhyapatnam Union in Salem District as Elementary School Headmaster. However, in view of the transfer to Ayodhyapatnam Union and in view of the vacancy position therein, the petitioner was directed to act as Secondary Grade Assistant on 12.07.1979 and was promoted as Elementary School Headmaster on 11.06.1993 and thereafter, the petitioner retired from service on 31.05.1996. While things stood thus, by the impugned proceedings, the fifth respondent stated that the petitioner was transferred within the same Union and therefore, benefits of G.O.Ms.No.202 was not applicable to the petitioner and thus returned the service register of the petitioner. Aggrieved by the same, the petitioner has filed the writ petition.
4. The fourth respondent Assistant Elementary Educational Officer, Ayodhyapatnam filed counter stating that in order to avail the benefit of G.O.Ms.No.202, dated 24.09.2008, the petitioner ought to have satisfied two conditions, namely he should have served as Elementary School Headmaster prior to 01.06.1988 and he should have been transferred to some other Union after 01.06.1988 and posted as Secondary Grade Teacher either on request or on administrative reasons. Only in that event, the petitioner is eligible for awarding Selection Grade/Special Grade in the post of primary school Headmaster with effect from 01.06.1988 counting the service rendered by him as Secondary Grade Assistant prior to 01.06.1988. The petitioner has not satisfied the condition that he should have been transferred to some other Union after 01.06.1988. The petitioner was serving as Elementary School Headmaster in the Ayodhyapatnam Union in Salem District and he was reversed as Secondary Grade Teacher in the same Union and subsequently, promoted as Elementary School Headmaster on 11.06.1993 in the same Union prior to his retirement in 1996. After 01.06.1988 he was not transferred to any other Union as Secondary Grade Teacher.
5. The fifth respondent filed counter stating that the intention of G.O.Ms.No.202 was only to benefit those who was reverted from one panchayat Union to another panchayat Union as Secondary Grade Assistant due to non-availability of Headmaster post which is not the case of the petitioner as he had been transferred from one panchayat Union to another panchayat Union as Headmaster only. According to the fifth respondent the petitioner was transferred as Headmaster from Palacode to Ayodhyapatnam and at a later date, the reversion took place within the Union and therefore, he cannot claim benefits of G.O.Ms.No.202.
6. In respect of persons who were employed as Elementary School Headmasters prior to 01.06.1988 and who got transferred as Secondary Grade Assistants, the Government issued an order in G.O.Ms.No.202, School Education Department, dated 24.09.2008. Under the said Government Order, such persons werer directed to be treated only as Headmasters of Elementary Schools, for the purpose of fixation of pay under the V Pay Commission Recommendations. It appears that the petitioner had submitted representation to the respondent authorities and despite the receipt of the representation, the respondent authorities have not considered the same and the petitioner had earlier filed W.P.No.19910 of 2010.
7. It is an admitted fact that prior to 01.06.1988, the scale of pay of Secondary Grade Assistant as well as the Primary School Headmaster was one and the same and a perusal of the Government Order in G.O.Ms.No.202, School Education (G2) Department, dated 24.09.2008, particularly, paragraph No.4 of the said order, would disclose that even though the Headmasters, who worked before 01.06.1988, were transferred and joined in the Union to which they had been transferred as the intermediate teachers, have to be treated as the Headmaster of the Elementary School from the date of joining of the Union to which they were transferred and some of them made a challenge to the said proceedings and obtained orders and the persons, who have not obtained orders, the service period of all of them will be calculated before 01.06.1988 and as per the Government Order in No.666, Finance Department, dated 27.06.1989, as per the recommendation of the V Pay Commission, selection grade/special grade shall be granted and pay may be fixed for them accordingly.
8. A Division Bench of this Court, in an unreported judgment, dated 28.02.2012, made in W.A.(MD)No.747 of 2011, has considered similar issue and held as under:-
7.Referring to the reliance placed on G.O.Ms.No.160, School Education (G) Department, dated 23.08.2005, particularly paragraph 2(ii), the appellant submitted that the Government Order was applicable to only those officials who are holding the post as Headmaster of the Primary School as on 01.06.1988 and continued so thereafter too. As far as the first respondent/ writ petitioner is concerned, although he was holding the post of Primary School Headmaster as on 01.06.1988, on his joining as Secondary Grade Teacher on 09.07.1989, not being re-promoted as Primary School Headmaster until his retirement on 30.06.2000, the said Government Order had no beneficial application to the writ petitioner.
8.In considering the applicability of the G.O.Ms.No.160, dated 23.08.2005, as well as the subsequent G.O.Ms.No. 202, School Education Department, dated 24.09.2008, learned single Judge pointed out that prior to 1.6.1988, the scales of pay of Secondary Grade Teacher and Primary School Headmaster was identical. After the 5th Pay Commission, the Government fixed separate scales of pay for the Headmasters and Secondary Grade Teachers. Pursuant to the order of the Tamil Nadu Administrative Tribunal in O.A.No.3009 of 1991 as regards the Headmasters of Primary Schools transferred as Secondary Grade Teachers who sought for counting of entire service period as Secondary Grade Teacher upto 31.05.1988 for award of Selection Grade/Special Grade in the post of Headmaster of Elementary School, the Government passed G.O.No.300, dated 7.4.1994, cancelling the earlier G.O.No.1381 dated 5.10.1990, thereby directed inclusion of the service rendered as Elementary School Headmaster. On a challenge made, this Court directed the Government to pass suitable orders after considering the earlier order. Accordingly, G.O.No.185, School Education, dated 16.12.2002, was passed as under:
i)In the case of Headmasters, Elementary School, who have served as Headmaster on 01.06.1988 and continued to serve as Headmaster, even after 01.08.2005, that period can be taken into account for award of selection/special grade in the post, in view of the additional responsibilities attached to the post for which special allowance was allowed.
ii)In the case of headmasters of elementary schools, appointed after 01.06.1988, their pay has to be fixed in selection/special grade in headmasters elementary school post, as per the provisions of G.O.Ms.No.212, School Education Department, dated 07.08.2000.
iii)In the case of Headmasters elementary schools who were in position as on 01.06.1988 and awarded selection or special grades, by taking into account, the services rendered as headmaster elementary school and service rendered in secondary grade teacher post as per the G.O.Ms.No.1381, Education department, dated 05.10.1990, their pay fixation illustrated in the annexure to the G.O.Ms.No.185, School Education Department, dated 16.12.2002. Consequently, the Government have issued clarificatory order in G.O.Ms.No.160, School Education (G) Department, dated 23.08.2005 in respect of selection/special grade to elementary school headmasters.
While implementing this, the Government issued G.O.No.160, School Education Department, dated 23.08.2005, as a clarification of G.O.No.185, School Education Department, dated 16.12.2002.
...........
21.As rightly pointed out by the learned single Judge in his order, G.O.Ms.No.202, School Education Department, dated 25.09.2008, shows that Elementary School Headmasters who had functioned so even prior to 01.06.1988 and transferred to any other Panchayat Union and functioning as Secondary Grade Teacher would nevertheless be treated as Elementary School Headmasters. Thus, accepting the recommendation made, G.O.Ms.No.202, School Education Department, dated 25.09.2008 was issued. Similarly, under G.O.Ms.No.207, School Education Department, dated 30.09.2008, the Government considered the decision in W.P.No.8079 of 2006 dated 28.04.2006 that even in respect of those who had been functioning as on 01.06.1988 as Headmaster and subsequently, had been transferred to other Panchayat Union to work as Secondary Grade Teacher, they would continue to be considered as Headmaster for the purpose of working out the salary and other benefits, including pensionary benefits.
9. In paragraph No.24 of the said judgment, the Division Bench has observed thus:
The sum and substance of the said Government Order is that the Government did not make any distinction between the Elementary School Headmaster who had worked so as on 01.06.1988 or prior to that or even thereafter and those holding position as Secondary Grade Assistant Teacher in a different Panchayat Union, that the said post held by them would continue to be treated as Primary School Headmaster for all pay and allowances.
10. As observed by this Court, prior to 01.06.1988, there was no difference in the scale of pay between the posts of Elementary School Headmaster and Secondary Grade Assistant and the said fact was taken into consideration in the unreported judgment, dated 28.02.2012, made in W.A.(MD)No.747 of 2011.
11. Similarly, the Division Bench of this Court in Writ Appeal Nos.1121 and 1673 of 2013 dated 22.04.2014, the same issue had been considered wherein the request of the appellants to extend the benefits of G.O.Ms.No.202 School Education Department dated 24.09.2008 was rejected by the learned Single Judge. Considering the factual aspects and taking note of the substance of the Government Order, the Division Bench of this Court set aside the order of the learned single Judge and allowed the writ appeals extending the benefit of G.O.Ms.No.202 School Education Department, dated 24.09.2008 to the appellants therein. In the said judgment, the Division Bench of this Court held as under:-
17.A perusal of the service registers of the respective appellants would also disclose that long prior to the cut off date, viz., 01.06.1988, they were appointed as Secondary Grade Headmaster and Secondary Grade Assistant respectively and they were transferred and posted as Secondary Grade Assistants.
18.In the light of the above factual aspect, coupled with the interpretation of G.O.Ms.No.202, School Education (G2) Department, dated 24.09.2008, and the unreported judgment, dated 28.02.2012, made in W.A.(MD)No.747 of 2011, this Court is of the view that the appellants are entitled to the benefits of the above said Government Order.
19.In the result, both the writ appeals are allowed and the impugned orders, passed in W.P.Nos.16070 and 16170 of 2010, dated 07.11.2012, are set aside and so also the impugned orders, dated 30.12.2009, are set aside and the writ petitions are allowed, as prayed for. No costs. The respondents are directed to extend the benefits of G.O.Ms.No.202, School Education (G2) Department, dated 24.09.2008, to the respective appellants within a period of eight weeks from the date of receipt of copy of this order.
12. In the case on hand, on a reading of the materials available on record, it is seen that the petitioner was transferred from Palacode Union to Ayodhyapatnam Union and the same was clearly stated by the fourth respondent in its proceedings dated 29.09.2011, which reads as under:
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13. It is admitted by both sides that the aforesaid proceedings of the fourth respondent dated 29.09.2011 has not been cancelled and the same was in force. The fourth respondent, after thorough examination of the decision of this Court and G.O.Ms.No.202 had granted benefits. When the proceedings of the fourth respondent dated 29.09.2011 has not been cancelled, the fifth respondent have no power, authority or jurisdiction to deprive the petitioner of the benefits sanctioned by the competent authority.
14. As stated supra, earlier the petitioner had filed W.P.No.19910 of 2010 before this Court, wherein this Court directed the respondents therein to consider the claim of the petitioner in accordance with G.O.Ms.No.202. Pursuant to the direction, the fourth respondent sanctioned the benefits having found that the petitioner's claim was genuine. When that being the position, the fifth respondent ought to have merely taken action to implement the order.
15. It is pertinent to point out that since the actual sanction was accorded by the Assistant Elementary Educational Officer, which was communicated to the fifth respondent only for him to comply with the same by permitting the disbursement of revised pensionary benefits to the petitioner, the fifth respondent has no authority to deviate from the actual sanction made by the fourth respondent and issue the impugned proceedings in the case of the petitioner. Having found that the petitioner was transferred from Union to Union and joined in Ayodhyapatnam Union, the fourth respondent rightly sanctioned the revised pension proposals and that the sanction accorded by the fourth respondent was still in force and not yet been cancelled by any authority. Therefore, viewed from any angle, the petitioner is entitled to the benefits that are available in G.O.Ms.No.202, dated 24.09.2008 and the impugned order of the fifth respondent is liable to be set aside.
16. Applying the tenor of G.O.Ms.No.202, dated 24.09.2008 and also the orders of this Court in the case of similarly placed persons to the facts of the present cases, this Court is of the view that the petitioner is entitled to get the benefits of G.O.Ms.No.202 School Education (G2) Department, dated 24.09.2008.
17.In the result:
(a) the writ petition is allowed and the impugned order in P19/III/11904811/11/12/ADK dated Nil .01.12 passed by the 5th respondent, is quashed;
(b) the respondents are directed to extend the benefits of G.O.Ms.No.202, School Education (G2) Department, dated 24.09.2008 to the petitioner and pass orders granting the benefits;
(c) the said exercise shall be done within a period of eight weeks from the date of receipt of a copy of this order. No costs.
04.09.2018 vs Index : Yes Internet : Yes To
1.The Secretary to Government, School Education Department, Secretariat, Chennai-600 009.
2.The Director of Elementary Education, College Road, Nungambakkam, Chennai-600 006.
3.The District Elementary Education Officer, Salem, Salem District.
4.The Assistant Elementary Education Officer, Ayodhyapatnam, Salem District.
5.The Accountant General, (Accounts & Entitlements), Tamil Nadu, rep. by its Accounts Officer, 361, Anna Salai, Chennai-600 018.
M.V.MURALIDARAN, J.
vs Pre-delivery order made in W.P.No.27137 of 2012 04.09.2018