Madras High CourtWP/19150/2011allowed

A.Dhandapani, v. The Government Of Tamil Nadu,

2017-10-25Honourable Mr Justice V. Parthiban10 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Date: 25.10.2017 Coram The Honourable Mr.Justice V.PARTHIBAN W.P. No.19150 of 2011

1. A.Dhandapani

2. M.Seethapathi

3. C.Marimuthu

4. M.Marudhachalam

5. K.Kumarasamy

6. V.Maragathmani

7. S.Manonmani

8. D.Thiyagarajan

9. D.Perumalsamy 10.P.Krishnasamy

11. K.Kanagaraju

12. K.Rajammal

13. M.Andalammal

14. R.Balasubramanian

15. K.Durairajan

16. S.Ramasamy

17. S.Indiramani

18. C.Ramasamy

19. R.Somasundaram

20. A.P.Natarajan

21. N.Natarajan ...

Petitioners

Versus

1. The Government of Tamil Nadu, represented by the Secretary to the Government, School Education Department, Fort St.George, Chennai-600 009.

2. The Director of Elementary Education, College Road, Chennai-600 006.

3. The District Elementary Educational Officer, Tiruppur, Tiruppur District.

4. The Accountant General (A&E), Anna Salai, Chennai-600 018.

Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus, to direct the respondents to pay the arrears of pay to the petitioners consequent on the re-fixation of their pay and pension as per G.O.Ms.No.207, School Education (G-2) Department, dated 30.9.2008 and grant them all consequential benefits.

For Petitioners : Mr.P.Rajendran For Respondents : Mr.S.V.Duraisolaimalai, AGP for R1 to R3 Mr.S.Balaji for R4

ORDER

The present writ petition has been filed, seeking for the following relief:

Issue Writ of Mandamus, to direct the respondents to pay the arrears of pay to the petitioners consequent on the re-fixation of their pay and pension as per G.O.Ms.No.207, School Education (G-2) Department, dated 30.9.2008 and grant them all consequential benefits.

2. The issue involved in the writ petition has a chequered history dating back to 1998 till the final Government Order was issued vide G.O.Ms.No.207 School Education (G2) Department dated 30.09.2008. The issue raised in the Writ Petition had given rise to passing of several Government Orders over a period of time and some of the G.Os. were subjected to litigation before the then Tamil Nadu Administrative Tribunal and before this Court. However, for the sake of clarity in regard to claim put forth by the petitioners, the facts are stated hereunder in brevity.

3. The petitioners were all appointed originally as Secondary Grade Teachers on various dates and their service details have been given in the following tabular column.

Panchayat Union Elementary School.

V.Vallakundapuram, Gudimangalam Block C.Marimuthu 01-06-1974 01-06-1984 01-06-1994 06-0730-06-2008 as Headmaster.

Panchayat Union Elementary School, Salavanaickenpatti Pudur M.Marudhachalam 03-03-1972 03-03-1982 03-03-1992 03-0730-04-2008 as Headmaster Panchayat Union Elementary School, Ravana purram, Gudimangalam Block K.Kumarasamy 25-03-1972 25-03-1982 25-03-1992 18-0630-09-2008 as Headmaster.

Panchayat Union Elementary School, Sindiluppu, Gudimangalam Block V.Maragathamani 11-09-1973 11-09-1983 11-09-1993 29-0631-07-2007 as Headmaster, Panchayat Union Primary School, Kollupala

Name Date of Appt. as Secondary Grade Teacher Date of grant of Selection grade in Secondary Grade Post Date of grant of Special Grade in Secondary Grade Post Date of promotion as Primary School Headmaste r Date of Retirement and the School where last worked S.Manonmani 29-07-1983 29-07-1993 29-07-2003 26-0631-01-2010 as Headmaster Panchayat Union Elementary School, Kollappalayam, Gudimangalam Block D.Thiagaraja n 03-02-1981 03-02-1991 03-02-2001 18-0612-02-2007 as Headmaster, Panchayat Union Middle School, Pookulam D.Perumalsam y 23-11-1968 23-11-1978 23-11-1998 24-1030-06-2005 as Headmaster, Panchayat Union Middle School, A.Amma patti, Gudimangalam P.Krishnasam y 01-01-1971 01-01-1981 01-01-1991 04-0728-02-2003 as Headmaster (Panchayat Union Elementary School, Sangamanaicken palayam V.Velur K.Kanagaraju 01-01-1971 01-01-1981 01-01-1991 20-0630-06-2005 as Headmaster, Panchayat Union Elementary School, Viruta paatti K.Rajammal 01-06-1974 01-06-1984 01-06-1994 06-0731-01-2006 as Headmaster, Panchayat Union Primary School, S.Valla kondapuram

Name Date of Appt. as Secondary Grade Teacher Date of grant of Selection grade in Secondary Grade Post Date of grant of Special Grade in Secondary Grade Post Date of promotion as Primary School Headmaste r Date of Retirement and the School where last worked M.Andalammal 29-10-1973 03-06-1984 03-04-1994 26-0631-07-2007 as Headmaster, Panchayat Union Middle School, Kottamangalam Gudimangalam Block R.Balasubramanian 06-08-1978 06-08-1988 06-08-1998 27-0330-09-2006 as Headmastr, Panchayat Union Elementary School, Kollu Palayam, Gudimangalam Block K.Durairajan 27-06-1979 27-06-1989 27-06-1999 13-0628-02-2005 as Headmaster, Panchayat Union Elementary School, Chikanuthu S.Ramasamy 16-10-1978 16-10-1988 16-10-1998 12-0631-01-2007 as Headmaster, Panchayat Union Elementary School, Velayutha gounden pudur S.

Indiramani 09-10-1972 as Part time PVI, 3-6-74 as Full time PVI, 18-071988 as Secondary Grade Teacher 18-07-1998 - - 07-0628-02-2010 as Headmaster as P.U.Primary School, S.Vallakunda puram, Gudimangalam Block C.Ramasamy 17-10-1978 17-10-1988 17-10-1998 10-0631.01.

4. At the time of their appointment, the posts of Secondary Grade Teacher and the Primary School Headmaster were interchangeable since it carried the same pay scale. Since the posts were interchangeable, no seniority was followed in regard to appointment of Primary School Headmasters or posting of Secondary Grade teacher as the case may be. Such posting was not subject matter in issue since the pay scales for both the posts were one and the same. However, the above said position had undergone change after 1.6.1988 while the post of Primary School Headmaster was given a higher pay scale at Rs.1400-2600 as against the post of Secondary Grade Teacher in the pay scale of Rs.1200-2040. In G.O.Ms.No.1381 School Education Department dated 5.10.

1990, the Government of Tamil Nadu directed that in case of persons who were in the position of Primary School Headmaster as on 1.6.1988, their entire service consisting of Secondary Grade Teacher and Primary School Headmaster should be counted for the purpose of granting selection/special grades in the post of Primary School Headmaster. However, this benefit was denied to the Primary School Head Masters who were promoted as such after 1.6.1988. This disparity which was sought to be drawn by the Government between Primary School Headmaster working as on 1.6.1988 and after 1.6.

promotion post as on 1.6.1988, were granted selection and special grades in the post of Primary School Headmaster while the seniors who were not holding the post of Primary School Headmasters as on 1.6.1988 were denied the said benefit.

5. The above said anomaly between two sets of similarly placed persons gave rise to filing number of cases and several orders were passed by the then Administrative Tribunal and later by this Court and in pursuance of the said orders, several Government Orders were also issued over a period of time. However, for the purpose of adjudication of the issue on hand, all those G.Os. are not required to be referred to.

6. As far as the case on hand is concerned, the grievance of the petitioners is that though their main relief regarding parity in treatment in regard to grant of selection and special grades to the post of Primary School Headmasters who were appointed as on 1.6.1988 and after 1.6.1988, had been redressed vide G.O.Ms.No.207 School Education Department (G2) dated 30.09.2008, however, the benefit of arrears of pay consequent to such refixation of their pay, had been denied and only the benefit of such re-fixation had been granted in the pensionary benefits.

7. In the above circumstances, the petitioners had given a representation on 18.2.2011, seeking for payment of arrears of pay consequent to implementation of G.O.Ms.No.207 dated 30.09.2008 and since there was no reply to their representation and no action was taken towards grant of arrears of pay, the petitioners are before this Court, seeking to issue Writ of Mandamus.

8. At the outset, the learned counsel for the petitioners would submit that the issue raised in the Writ Petition is no more res integra in view of the decision of the learned Judge rendered in W.P.No.25001 of 2012, dated 11.11.2014. In the said decision, the learned Judge before this Court, while relying upon the earlier orders passed in the batch of Writ Petition on the same issue, allowed similar claim made therein as that of the present petitioners.

9. The learned counsel appearing for the petitioners would draw the attention of this Court to paragraphs 25 to 27, wherein, the learned Judge has referred to earlier order passed by this Court in a batch of writ petitions, viz.,W.P.Nos.20706 of 2010 etc., which are extracted hereunder:

"25.While so, the Director of Elementary Education, issued the proceeding in Na.Ka.No.2200/C2/2010 dated 23.07.2010 that no monetary benefits would be given pursuant to the grant of selection grade / special grade in the post of Primary School Headmaster and consequent pay fixation as per G.O.Ms.No.207, but only monetary benefits in respect of retiral benefits would alone be granted.

"26. Since the monetary benefits pursuant to the fixation of Selection Grade / Special Grade pay of Primary School Headmaster as per G.O.Ms.No.207 was not granted, this led to filing of a batch of writ petitions in W.P.Nos.20706 of 2010 etc. batch seeking to quash the proceeding dated 23.07.2010 of the Director of Elementary Education on the ground that the same is contrary to G.O.Ms.No.207.

"27. This Court allowed the aforesaid writ petitions in W.P.Nos.20706 of 2010 etc., batch on 05.08.2011 and quashed the proceeding of the Director of Elementary Education dated 23.07.2010 and held that the persons, who were promoted as Primary School Headmasters after 01.06.1988, are entitled to receive monetary benefits pursuant to their Selection Grade / Special Grade pay fixation of Primary School Headmaster, besides the monetary benefit in respect of retiral benefits. Para 6 and a passage in para 7 of the said judgment are extracted hereunder : "6. In all these matters, the petitioners had served as Primary School Headmasters and retired from service. It is seen from the perusal of the G.O.Ms.No.207, School Education Department, dated 30.09.2008 that for the persons, who have been appointed as Primary School Headmasters after 01.06.1988, their pay scales have to be fixed pursuant to the fixation of pay in the selection and special grade. The said Headmasters are entitled to claim retiral monetary benefits and benefits of fixation of pay.

7. Therefore, this Court is of the considered view that the impugned orders of the Director of Elementary Education, Chennai, rejecting the claim of the petitioners that they are entitled only to receive the monetary benefits in respect of arrears of pension alone are unsustainable. ...."

10. After relying upon the earlier orders passed by this Court in a batch of the writ petitions cited above, the learned single Judge went on to hold that the order passed by the authority dated 23.7.2010 in and by which, the denial of arrears of pay and allowances for the period in question, was liable to be quashed. Therefore, according to the learned counsel, there is no factual or legal impediment for allowing the present writ petition as allowed by the learned single Judge in the afore said Writ Petition.

11.

Upon notice, Mr.S.V.Duraisolaimalai, learned Addl.Govt.Pleader entered appearance for the respondents 1 to 3 and attempted to draw distinction between the claim of the

petitioners herein and the employees who were covered in the above said writ petition, which was allowed by the learned single Judge. However, he was unable to point out as to what is the distinguishing factor to convince this Court to take a different stand in the matter. According to the learned Addl.Government Pleader, the petitioners have accepted the pensionary benefits on their re-fixation of pay, cannot now be heard to complain as against non-payment of actual arrears of pay and allowances. The above said contention put forth by the learned Addl.Government Pleader cannot be countenanced both in law and on facts for the simple reason, that there cannot be any estoppel against the constitutional right of the petitioners to be treated equally in terms of Articles 14 and 16 of the Constitution of India. Moreover, this Court has allowed similar claim in batch of Writ Petitions and the same was also followed by the learned single Judge in W.P.No.25001 of 2012 dated 11.11.2014, now this Court cannot take a different view, to reject the case of the petitioners.

12. In the above said circumstances, this Court has no hesitation in allowing the writ petition. Accordingly, the Writ Petition is allowed. There shall be a direction to the respondents to grant arrears of to pay to the petitioners consequent to refixation of their pay as per G.O.Ms.No.207 School Education (G2) Department, dated 30.09.2008 as directed by this Court in W.P.No.25001 of 2012, within a period of three months from the date of receipt of copy of this order. No costs. Sd/- Assistant Registrar(CS-III) //True Copy// Sub Assistant Registrar suk To

1. The Secretary to the Government of Tamil Nadu, to the Government, School Education Department, Fort St.George, Chennai-600 009.

2. The Director of Elementary Education, College Road, Chennai-600 006.

3. The District Elementary Educational Officer, Tiruppur, Tiruppur District.

4. The Accountant General (A&E), Anna Salai, Chennai-600 018.

+ 1 cc to Mr. P. Rajendran, Advocate sR.75539 + 1 cc to Mr.S. Balaji, Advocate Sr.75125 W.P.No.19150 of 2011 NRJK(CO) EU(23/01/2018)