Madras High Court
M.Balasubramanian vs The Principal Auditor on 1 September, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.09.2017 CORAM: THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN W.P.No.8795 of 2008 and M.P.No.2 of 2008 and M.P.No.1 of 2009 M.Balasubramanian ... Petitioner Vs 1.The Principal Auditor, Government Departments Chengalvarayan Maaligai, 7th Floor, 807, Anna Salai, Chennai 600 002. 2.The Assistant Director, Audit Department, Thiruelveli, Thriunelveli District. 3.The Director of Elementary Education, College Road, Chennai-600 006. 4.The Assistant Elementary Educational Officer, Kadayanallur Panchayat Union, Kadayanallur, Thirunelveli District. 5.The District Elementary Educational Officer, Thirunelveli District, Thirunelveli. ... Respondents Petition is filed under Article 226 of the Constitution of India for the issuance of writ of certiorarified mandamus calling for the records of the first respondent issued in Na.Ka.No.24039/U1/2005, dated 29.12.2005, confirming the order of the second respondent issued in Na.Ka.No.1934/A2/05, dated 28.9.2005 and consequential order issued in Na.Ka.No.609/2004/(A), dated 14.2.2006 issued by the fourth respondent and quash the same and issue a consequential direction to the respondents to restore the Selection Grade awarded with effect from 1.6.1991 and Special Grade Scale of pay with effect from 1.6.2001 in the post of Craft Instructor to the petitioner with all benefits. For Petitioner : Mr.R.Saseetharan For Respondents : Mr.R.Govindasamy Special Government Pleader for respondent Nos.3 to 5 O R D E R
This writ petition has been filed by the petitioner seeking a writ of certiorarified mandamus calling for the records of the first respondent in Na.Ka.No.24039/U1/2005, dated 29.12.2005, confirming the order of the second respondent in Na.Ka.No.1934/A2/05, dated 28.09.2005 and consequential order in Na.Ka.No.609/2004/(A), dated 14.02.2006 issued by the fourth respondent, to quash the same and to consequentially direct the respondents to restore the Selection Grade awarded with effect from 01.06.1991 and Special Grade Scale of pay with effect from 01.06.2001 in the post of Craft Instructor to the petitioner with all benefits.
2. I heard Mr.R.Saseetharan, learned counsel for the petitioner and Mr.R.Govindasamy, learned Special Government Pleader appearing for the respondents 3 to 5 and also materials available on record.
3. Brief facts are that the petitioner was initially appointed as full time Pre-Vocational Instructor as per the order of the District Educational Officer, Tirunelveli and posted at Hindu Middle School, Thirukodapuram, Kadayanallur Panchayat Union and the said school is a private aided Middle school receiving teaching grant from the Government of Tamil Nadu. The petitioner has been continuing as a Pre-Vocational Instructor from 01.06.1981.
4. According to the petitioner, Craft Instructors in High Schools though discharging same functions as that of Pre-Vocational Instructor working in the Middle schools, are paid higher scale of pay which was equivalent to Secondary Grade Teacher scale of pay. The Government of Tamil Nadu by G.O.Ms.No.1366, dated 05.09.1986, raised the pay of Pre-Vocational Instructor in Middle school to that of Craft Instructors working in High schools, subject to condition that the Pre-Vocational Instructors in Middle school shall acquire SSLC qualification within a period of three years and the said Government Order was given effect from 01.10.1984, notionally and monetary benefits from 01.04.1986.
5. According to the petitioner, he passed SSLC qualification and therefore, his pay was fixed at Rs.610-1075 as per the aforesaid Government Order. The petitioner was granted Selection Grade scale of pay of Rs.1400-3600 with effect from 01.06.1991 on completion of 10 years of service in the post of Craft Instructors as per the order dated 01.08.1991 of the District Educational Officer, Tenkasi. The petitioner was granted Special Grade scale of pay with effect from 01.06.2001 on completion of 20 years of service.
6. While things stood thus, on 28.09.2005, the second respondent objected that the petitioner could not be granted Selection and Special Grade scale of pay by counting the service from the date of appointment, but he can be granted Selection and Special Grade only from the date of higher scale of pay given to him. Accordingly, the Assistant Elementary Educational Officer, in his proceedings dated 28.09.2005 directed the Headmaster of Hindu Middle school, Thirukodapuram to revise the petitioner's scale of pay as per the audit objection. Aggrieved by the same, the petitioner preferred appeal before the first respondent. By an order dated 29.12.2005, the first respondent confirmed the order of the Assistant Elementary Educational Officer.
7. On 07.11.2005, the Assistant Elementary Educational Officer directed the Headmaster of Hindu Middle school to revise the pay and sent proposals. By another proceedings dated 14.02.2006, the Assistant Elementary Educational Officer revised the petitioner's scale of pay and reduced his pay and directed the petitioner to pay the alleged excess of Rs.86,839/- to the Government Treasury. Challenging the same, the petitioner has filed the writ petition.
8. No counter-affidavit has been filed by the respondents.
9. The grievance of the petitioner is that there is no division of service in the particular post namely Craft Instructors and there is no upgradation of post as well. The service rendered in the post is the relevant criteria for the purpose of awarding Selection Grade and Special Grade scales of pay. According to the petitioner, the pay may be revised which cannot be the criteria for counting the service in a particular post. In fact, the Government does not lay down any condition in G.O.Ms.No.1105, dated 22.08.1989 that service rendered in the higher scale of pay should alone be taken into account for awarding Selection Grade and Special Grade scales of pay. Thus, it is the say of the petitioner that the stand of the respondent authorities that the service rendered in lesser scale of pay in the post of Craft Instructors cannot be counted together with the service rendered in higher scale of pay after passing SSLC for the purpose of awarding Selection Grade and Special Grade scale of pay is illegal and contrary to the Government Order.
10. Under G.O.Ms.No.1105, Education Department, dated 22.08.1989, Selection Grade and Special Grade have been given subject to the condition that the employee should qualify in passing SSLC. Therefore, it is the case of the petitioner that the fixation of pay made earlier was in accordance with law and therefore, the impugned orders are not valid. It is also alleged that such benefits having been given for so many years are sought to be withdrawn and recovery sought to be made without any notice and therefore, it affects the principles of natural justice.
11. The learned Special Government Pleader submitted that under G.O.Ms.No.1366, Education Department, dated 05.09.1986, the minimum general qualification for the post is made as SSLC pass in order to allow higher scale of pay on par with Secondary Grade Teachers in the High Schools and therefore, it is only after possessing the qualification, they are made eligible for the higher pay scale. It is also the case of the respondent authorities that subsequent G.O.Ms.No.1105, Education Department, dated 22.08.1988 which confers selection grade and special grade is also related to the qualified teachers of the Middle School by giving notional benefits and inasmuch as the petitioner has completed SSLC much afterwards, the Secondary Grade Ordinary scale of pay should have been effected only from the date of acquisition of SSLC qualification. However, by mistake, Secondary Grade scale of pay has been awarded before completion of ten years of qualifying service with SSLC qualification and it was a wrong conferment of benefits given to the petitioner, which is now sought to be rectified. The selection grade should have been granted only 10 years after the date when the petitioner has completed SSLC and the special grade 10 years after the selection grade. Therefore, according to the respondent authorities, the impugned orders are perfectly valid in law.
12. The fact of appointment of the petitioner is not denied by the respondent authorities. It is not in dispute that the Government, in order to equate the Craft Teachers in Middle Schools in respect of their salary on par with their counterparts in High Schools, has prescribed minimum general qualification for the post as SSLC by G.O.Ms.No.1366, Education Department, dated 05.09.1986. In the said Government Order, it is also made clear that in respect of Craft Teachers who are already in service in Middle Schools with lesser qualification, viz., 8th Standard and 7th Standard, they shall be allowed to acquire the minimum qualification within a period of three years. It is also not in dispute that the petitioner had acquired SSLC within the time stipulated in the said Government Order. By subsequent G.O.Ms.No.1105, Education Department, dated 22.08.1989, while granting selection grade and special grade to Middle School Teachers, relevant scales of pay have been fixed to all Craft Teachers of High Schools working in all kinds of Management, subject to the condition that they should qualify themselves with SSLC. It is also stated that the selection grade and special grade pay shall take notional effect from 01.10.1984 for the purpose of fixation of pay in those scales with monetary benefits from 01.04.1986.
13. Under a similar circumstance, when a Craft Teacher was appointed in the year 1970 and he was qualified with SSLC on 05.04.1986 and representation was made to the authorities to confer the benefits of selection grade as per the said G.O.Ms.No.1105, Education Department, dated 22.08.1989 and also G.O.Ms.No.1366, Education Department, dated 05.09.1986 and the same was rejected on 22.11.1990, when that was challenged in the Tamil Nadu State Administrative Tribunal by filing Original Application, the Tribunal has allowed the application and directed the authorities to give selection grade notionally with effect from 01.10.1984, however, with monetary benefits from 01.04.1986. When the Government has challenged the said order of the Tribunal, in the case of District Educational Officer, Tiruvannamalai and others v. K.T.Margasakayam, a Division Bench of this Court, by order dated 27.07.2001 passed in W.P.No.12066 of 1999, while confirming the said order of the Tribunal has held as follows:
"The learned counsel appearing on behalf of the Government attacked this order on the ground that in fact when the relevant Government Orders came on the field the respondent was not covered by them. It was tried to be argued that the respondent after his initial appointment was transferred to Polur Panchayat Union middle school which school was upgraded into a high school and at that time, the respondent had not even passed the S.S.L.C. examination and had only passed the 8th standard examination. It was conceded that the respondent has passed the SSLC examination on 05.4.1986 and had qualified himself for drawing the pay scale of Rs.610-20-730-25-XXX-XX-1075 which was intended for the post high school craft teachers. What was forcefully argued before us was that the respondent teacher could not have asked for counting his middle school services for selection grade as that service was on the lower pay scale. It was tried to be argued that after the said teacher was granted higher pay scale, if he continued for ten years on that pay scale then alone, he was entitled to the selection grade. In fact, this argument was made before the Tribunal also and the Tribunal has refuted this argument and, in our opinion, correctly. What will be seen from G.O.Ms.No.1105, dated 22.6.1989 is that the craft teachers in the middle schools were made eligible for the selection grade and special grade scales of pay on par with the craft teachers of the high school. However, in that Government Order, there was no condition imposed that this advantage was to be given only on completion of the ten years of service only as a high school craft teacher. The learned counsel also relied on the Government letter dated 04.10.1990 to suggest that the services rendered in the posts carrying equal and higher scales of pay alone could be taken into account for his grant of selection grade or special grade in case of the respondent, since he was working as middle school craft teacher that service could not be taken into account for the purpose of awarding selection grade. The Tribunal has refuted this argument on the basis of the contents of paragraph-2 of G.O.Ms.No.1366, dated 05.9.1986 as also the other G.O.Ms.No.1105, dated 22.8.1989. We are in complete agreement with the Tribunal on the interpretation of the relevant Government Orders in question. The Tribunal has also taken the example of the Headmaster of the primary schools and has drawn parallel. In our opinion, the language of the concerned Government Orders is clear enough to suggest that the concerned respondent was undoubtedly entitled to the selection grade on account of his services right from 1970 as middle school craft teacher and thereafter, his services as High School craft teacher for which he had also acquired a proper qualification, i.e., SSLC in the year 1986. In our opinion, there is no necessity to interfere with the order of the Tribunal in which the findings are recorded in a proper manner."
14. Following the above cited Division Bench judgment, similar orders have been passed by this Court in P.Rajendran v. The District Elementary Educational Officer, Tirunelveli & others in W.P.No.42763 of 2002 dated 03.12.2002 and in S.Arputha Amala Ritabai v. The Director of Elementary Education, College Road, Chennai-6 in W.P.No.29235 of 2004 dated 05.11.2004 and subsequently in Y.Chellammal and others v. State of Tamil Nadu and others, reported in 2007 Writ L.R. 1000.
15. In the case in W.P.No.29235 of 2004 the facts as narrated are also similar to that of the case on hand. The learned Judge, has narrated the facts of the case in para 2 is as follows:
"The petitioner has questioned the impugned order dated 211. 2000 of the first respondent and the consequential order dated 16. 2002 of the second respondent in denying the selection and special grade pay scale to the petitioner, to which she is entitled to as per G.O.Ms.No.1105, Education (MU-1(2) Department dated 28. 1989. By the impugned orders, the said conferment and correspondingly the salary also were sought to be reduced on the ground that the petitioner had not completed ten years of service as selection grade Craft Teacher with the qualification of S.S.L.C. "
16. In Y.Chellammal and others v. State of Tamil Nadu and others, reported in 2007 Writ L.R. 1000, supra, the learned Single Judge of this Court held as under:
11. There is also one another fact which has to be considered in these cases, that the petitioners have been conferred selection grade based on the above said Government Orders even in the year 1990 and have been paid salary and the recovery is sought to be made nearly after nine years without giving any opportunity to the petitioners. Even assuming otherwise, these are not cases wherein by the positive conduct of the petitioners they have acquired certain benefits illegally. On the other hand, the benefits have been conferred by the authorities based on the two Government Orders. In such circumstances, the impugned orders are vitiated by the violation of the basic principles of natural justice and on the said ground also, the impugned orders are liable to be set aside. In view of the same, the writ petitions are allowed. No costs. The aforesaid decision of the Division Bench of the Court and the learned Single Judge of this Court are square apply to the case on hand and the present case is similarly situated one.
17. By following the decision of the Hon'ble Division Bench in District Educational Officer, Tiruvannamalai and others v. K.T.Margasakayam, supra, and the subsequent decisions P.Rajendran v. The District Elementary Educational Officer, Tirunelveli & others in W.P.No.42763 of 2002 dated 03.12.2002 and in S.Arputha Amala Ritabai v. The Director of Elementary Education, College Road, Chennai-6 in W.P.No.29235 of 2004 dated 05.11.2004 and subsequently in Y.Chellammal and others v. State of Tamil Nadu and others, reported in 2007 Writ L.R. 1000, supra, the impugned orders are vitiated by the violation of principles of natural justice and that the recovery is sought to be made belatedly without giving any opportunity to the petitioner.
18. In view of the same, the writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.
01.09.2017
vs
Note:Issue order copy on 04.10.2018
Index : Yes
Internet : Yes
To
1.The Principal Auditor,
Government Departments
Chengalvarayan Maaligai,
7th Floor, 807, Anna Salai,
Chennai 600 002.
2.The Assistant Director,
Audit Department,
Thiruelveli,
Thriunelveli District.
3.The Director of Elementary Education,
College Road,
Chennai-600 006.
4.The Assistant Elementary Educational Officer,
Kadayanallur Panchayat Union,
Kadayanallur,
Thirunelveli District.
5.The District Elementary Educational Officer,
Thirunelveli District,
Thirunelveli.
M.V.MURALIDARAN, J.
vs
W.P.No.8795 of 2008 and
M.P.No.2 of 2008 and
M.P.No.1 of 2009
01.09.2017