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Madras High CourtWP(MD)/3092/2020disposed of

M. Pandiya Rajathi v. The Secretary

2020-03-05Honourable Mrs Justice J. Nisha Banu6 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.03.2020

CORAM

THE HONOURABLE MRS.JUSTICE J.NISHA BANU W.P(MD) Nos.3092, 3120, 3124, 3125 and 3139 of 2020 1.M.Pandiya Rajathi ....Petitioner in W.P(MD).No.3092 of 2020 2.Murugaiyan ....Petitioner in W.P(MD).No.3120 of 2020 3.C.Raghavandurai ....Petitioner in W.P(MD).No.3124 of 2020 4.Kowsalya ....Petitioner in W.P(MD).No.3125 of 2020 5.J.Muthulakshmi ....Petitioner in W.P(MD).No.3139 of 2020 vs.

1.The Secretary Government of Tamil Nadu School Education Department Fort St.George Chennai 600 009 2.The Director of School Education DPI Campus, College Road Chennai 600 006 3.The Director of Elementary Education School Education, DPI Campus College Road Chennai 600 006 ... Respondents in all the Writ petitions COMMON PRAYER : These Writ petitions have been filed under Article 226 of the Constitution of India praying to issue a Writ of mandamus, directing the first respondent herein to regularize the petitioners' service from their initial date of appointment till 01.06.2006 with all consequential monetary and service benefits of Teachers in the light of the Judgement of this Court in W.P(MD). No.4991 of 2015 dated 30.07.2019 within the time period stipulated by this Court.

(In all the Writ petitions) For Petitioners : Mr.S.Karuppiah For Respondents : Mr.N.Shanmugaselvan Additional Government Pleader 1/6

COMMON ORDER The writ petitions have been filed for a direction to the respondents to consider the petitioners' representation dated 07.02.2020 to regularize the services of the petitioners from their initial date of appointments with seniority and all consequential monetary and service benefits in the light of Judgment and order passed in W.P.No.4991 of 2015 dated 30.07.2019. 2.By consent, these writ petitions are taken up for final disposal at the stage of admission itself.

3.The case of the petitioners is that the petitioners were selected and appointed as Junior Grade Secondary Teacher, B.T.Assistant, Secondary Grade Teacher and Post Graduate Assistant in the year 2004 under consolidated pay on temporary basis. Though the initial appointment order issued to the petitioners that they were not entitled to regularization for five years, by G.O.Ms.No.99, School Education (Income and Expenditure 2) Department, dated 27.06.2006, the Government reconsidered the issue and decided to regularize the services of all the Teachers who were appointed on consolidated pay by G.O.Ms.No.100, School Education (Budget) Department, dated 27.06.2003 and accordingly, the petitioners service were regularized with effect from 01.06.2006. 4.

The grievance of the petitioners is that the petitioners service has to be regularized with effect from the initial date of their appointments instead, their services were regularized only with effect from 01.06.2006. Hence, these writ petitions. 5.The learned counsel appearing for the petitioners would submit that the issue is squarely covered by the decision of this Court made in W.P.No.4991 of 2015 (1.T.Kunju Krishnan and others Vs. 1.Government of Tamil Nadu, rep. by its Secretary and others) dated 30.07.2019.

6.The learned Additional Government Pleader appearing for the respondents did not dispute the order passed by this Court. He would further submit that as against the order passed by the learned Single Judge, the respondents therein preferred writ appeal and the same is pending.

7. Per contra, the learned counsel appearing for the petitioners would submit that already the petitioners therein filed caveat and no notice was issued as on date and would further submit that no interim order has been passed in the said writ appeal. 8.It is useful to extract hereunder the relevant portions of the order dated 30.07.2019 made in W.P.No.4991 of 2015 (1.T.Kunju Krishnan and others Vs. 1.Government of Tamil Nadu, rep. By its Secretary and others):

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"4.It is not in dispute that the petitioners joined the services prior to issuance of G.O.Ms.100 dated 27.06.2006, however, their services have been regularized in terms of the said Government Order only with effect from 01.06.2006, a perusal of which, would go to show that though the regularization will take place from 01.06.2006,the seniority and roster would be maintained as per the date of appointment. This Government Order has been accepted and has not been questioned, thereby it was left to attain finality and it was the contention of the Government Advocate that having accepted regularization,claiming retrospective benefits is not permissible,when the Government Order is not challenged.

5.Though the contention of the Respondents appears to be sound at the first blush, when seen in depth, there is no justification on the part of the Respondents in placing senior persons to juniors,thereby depriving their rights of seniority. It is no doubt true that the regularization can take place with effect 01.06.2006, but at the same time, the date of entry of petitioners will have to be taken into account for the purpose of drawing seniority list, which is already fixed by the Teachers Recruitment Board in this case, as it is impermissible to combine all the persons recruited on various periods together and draw a consolidated list for drawing seniority, which will definitely create confusion and affect the seniority of senior most persons.

6.While dealing with the similar issue with respect to G.O.Ms.No.99 School Education Department dated 27.07.2006, the Madurai Bench of Madras High Court in the case of P.Karthikeyan and another vs. the Commissioner, Most Backward and Denotified Communities Welfare Department, Chennai and another [W.P.(MD) No.21316 of 2015 and 21317 of 2015] decided on 12.06.2017, had held upon relying on a judgment of the Hon'ble Supreme Court, as follows:

"4.The learned Additional Government Pleader appearing for the respondents referred to G.O.Ms.No.99 dated 27.06.2006 and submitted that the petitioners'

appointment were regularized only after the 3/6

issue of the said Government Order. It is pertinant to note that the decision in the year 2006 was to make permanent appointments on regular time scale of pay with effect from 2006.As per the said Government Order, it is made clear that earlier the petitioners were appointed on consolidated pay. The intention of the Government was to treat the petitioners as regular appointees for all purposes, except for granting the regular time scale of pay to them.

5.It is in the said circumstances, the contention of the second respondent that initially the petitioners who were regularized only on 01.06.2006, cannot be treated as regular appointees, from the date of their appointment, so as to promote them for post of Headmasters/Headmistresses of the Higher Secondary Schools can not be accepted.

6.The learned counsel for the petitioners also relied upon the Judgment of the Honourable Supreme Court in the case of Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and others, reported in (1990) 2 Supreme Court Cases 715. The Honourable Supreme Court differentiated the status of persons, who were appointed to a post according to the Rule and the status of the persons, who were appointed on adhoc basis and not according to the Rules where the appointment was purely a stop-gap arrangement. It has been categorically held that the persons who were appointed to the post according to Rule, should be given the benefit of seniority and their period of service shall be counted from the date of their appointment and not from the date of their regularization or confirmation.

7.This Court is also of the view that the petitioners are entitled to claim the seniority of teaching experience from the 4/6

date of their appointments i.e., with effect from 02.08.2004 and 27.01.2005 respectively, for purpose of calculating their period of rendering service as a teacher, for the purpose of promotion to the post of Headmasters/ Headmistresses of the Higher Secondary Schools. Hence, this Court is inclined to allow these Writ Petitions.

8.Accordingly, these Writ Petitions are allowed and the impugned orders passed by the second respondent dated 17.04.2015 and the consequential proceedings of the first respondent dated 20.05.2015 are quashed.

The respondents 1 and 2 are directed to treat the petitioners as eligible for promotion to post of Headmasters/Headmistresses of the Higher Secondary Schools, as per Rule. This order shall not disturb the rights of any other third party whose rights have already been crystalised. However, for the purpose of calculating seniority and for granting any other monetary benefits, the respondents are directed to treat the services of the petitioners from the date of their originalappointment.Consequently,connected Miscellaneous Petitions are closed. No costs."

7. In view of the above, this Court finds force in the contention raised by the petitioners and they are entitled for relief / direction sought for in this writ petition. Accordingly, the Writ Petition is disposed of, with a direction to the 1st respondent herein to regularize the services of the petitioners from the date of entry into service for the purpose of seniority and extend all the monetary benefits flowing thereof, if any, within a period of two months from the date of receipt of a copy of this order. No costs."

9.The writ petitions are disposed on the same lines of the decision cited supra. The first respondent is directed to regularize the services of the petitioners from the date of entry into service 5/6

for the purpose of seniority and extend all the monetary benefits flowing thereof, if any, within a period of two months from the date of receipt of a copy of this order. No costs. Sd/- Assistant Registrar (Records) // True Copy // / /2020 Sub Assistant Registrar(CS) msa To 1.The Secretary Government of Tamil Nadu School Education Department Fort St.George Chennai 600 009 2.The Director of School Education DPI Campus, College Road Chennai 600 006 3.The Director of Elementary Education School Education, DPI Campus College Road Chennai 600 006 +5 CC to M/s.G.ANTO PRINCE, Advocate ( SR-10205, 10206, 10207, 10208, 10209,[F] dated 05/03/2020 ) W.P(MD) Nos.3092, 3120, 3124, 3125 and 3139 of 2020 05.03.2020 VB(18.03.2020) 6P 9C 6/6