Balakrishnan, S/O.Janakiraman, v. State Of Tamil Nadu,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.03.2023

CORAM

THE HONOURABLE MRS.JUSTICE S.SRIMATHY and W.M.P.(MD)No.4726 of 2019 Balakrishnan ... Petitioner vs.

1.State of Tamil Nadu, represented by its Secretary, Education Department, St. George Fort, Chennai-600 009.

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

3.The District Educational Officer, Lalgudi, Trichy District.

4.The Accountant General (A&E), Office of Accountant General, Chennai-18.

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5.The Correspondent, Al Ameen Matriculation Higher Secondary School, Railway New Road, Kumbakonam.

... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the records in pertaining to the impugned order of the 2nd respondent, vide his proceedings in O.M.U.No.072663/R1/E2/2015, dated 26.10.2015 and to set aside the same as illegal, arbitrary and consequently, to direct the respondents to grant pensionary benefits with effect from 19.01.1974, with all consequential benefits and arrears of pay and allowances together with interest.

For Petitioners : Mr.K.Arunraj For R1 to R3 : Mr.M.Ramesh Government Advocate For R4 : Mr.P.Gunasekaran For R5 : No apparance *****

O R D E R

This writ petition is filed for issuance of a writ of Certiorarified Mandamus, to quash the impugned order of the 2nd respondent dated 2/13

26.10.2015 and consequently to direct the respondents to grant pensionary benefits with effect from 19.01.1974, with all consequential benefits and arrears of pay and allowances together with interest.

2. The petitioner was appointed as B.T. Assistant in the 5th respondent School on 19.01.1974 and has rendered service until 15.02.1983. Thereafter, the petitioner had tendered resignation on 16.02.1983, then was appointed in the 2nd respondent Government School and was promoted to various posts, finally retired on 31.03.2010. The petitioner was granted pensionary benefits by calculating his service in the School from 16.02.1983 to 31.03.2010. Now, the petitioner is claiming to add the service rendered from 19.01.1974 to 15.02.1982 in the 5th respondent School.

3. The 5th respondent School is a Private Matriculation Higher Secondary School. The petitioner is relying on G.O.Ms.No.143, 3/13

Education V2 Department, dated 30.01.1987, wherein it has granted pensionary benefits by adding the matriculation school service. But the said G.O. was held as bogus by the Learned Single Judge in W.P. (MD) No. 4494 of 2009. Subsequently, based on the said G.O., another person has received the same benefits in G.O.Ms.No.18 Education, Science and Technology (D2) Department dated 09.01.1997. The said G.O. was revoked / cancelled by the Government by issuing G.O.Ms.No.314 School Education (D2) Department, dated 12.12.1999, wherein it is stated that the service rendered in unaided school cannot be taken into account for fixing the salary and pension. The issue was challenged in W.P. (MD) No. 10758 / 2006 and W.P. (MD) No. 10758 / 2006 and the said writ petition was dismissed vide order dated 11.06.

2007 stating that the earlier GO 143 and GO 18 were issued to particular individuals and the same cannot be applied to the writ petitioners. Aggrieved over the individuals had preferred writ appeals in W.A. (MD) No.

26.06.2008. Aggrieved over the government preferred SLP (Civil) CC No. 3969 - 3970 / 2010 and vide order dated 22.03.2010 the SLP was dismissed.

4. Unfortunately, the previous round of litigation was not brought to the knowledge of the subsequent Hon'ble Coordinate Bench. The same issue was extensively considered in W.A.Nos.648 of 2003 filed in S. Devakadaksham VS the District Educational Officer reported in 2006

(4) MLJ 1580 and the writ appeals were dismissed vide order dated 13.09.2006. The judgment of the Division Bench in S.Devakadaksham's case (cited supra) was not brought to the notice of the Division Bench which heard the writ appeals in W.A.Nos. 291 and 292 of 2008. The judgment S.Devakadaksham's case (cited supra) disposed a batch of writ appeals and the Division Bench considered extensively the provisions of Tamil Nadu Recognised Private Schools (Regulation) Act 1973 and has rendered a finding that the service rendered in a non-sanctioned post, no 5/13

grant-in-aid post or matriculation school service could not be counted for the purpose of pension and pay fixation. All the teachers, who were granted benefit based on G.O.Ms.No.18, faced recovery proceedings based on G.O.Ms.No.314 referred above. The action based on the G.O.Ms.No.314 was upheld by the Division Bench in its judgment in S.Devakadaksham's case (cited supra) Aggrieved individuals preferred an SLP against the Devakadaksham's case and the SLP was also dismissed. However two cases W.P.(MD) No.4881 of 2015 escaped from the net and writ appeals preferred by those two teachers in W.A.Nos.291 and 292 of 2008 alone was allowed on the sole ground that they were discriminated in the matter of counting the service in the non-sanctioned post based on the benefits given to a teacher in terms of G.O.Ms.No.18. Therefore, the service rendered in Matriculation Schools cannot be added along with the Government service for calculating pension and other benefits.

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5. The same issue is considered by this Court in W.P.(MD)No.4881 of 2015 and the relevant portion is extracted hereunder: "3. The claim of the deceased petitioner is to add the service rendered in the Matriculation School and thereafter, calculate the pensionary benefits and relying on G.O.Ms.No.143, Education Department (V2), dated 30.01.1987. The Learned Government Advocate submitted that the said Government Order is bogus and the veracity of the said G.O. was considered by this Court in V.Mariappan vs. Secretary to Government, School Education Department in W.P.(MD)No.4494 of 2009, dated 16.08.2012 and has been held that, "17. The actual Government Order in G.O. Ms.No.143 School Education Department dated 30.01.1987 is also produced before this Court. I have perused the same and the same has nothing to do with the matter of pension. Therefore, the petition could not place his reliance on G.O. Ms.No.143.

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19. The petitioner heavily relied on G.O.Ms.No.18 and the Division Bench judgment dated 26.06.2008 in W.A.Nos. 291 and 292 of 2008. The arguments advance by the Learned Counsel for the petitioner looks attractive. But on deeper scrutiny it has no merit.

20. As rightly contended by the Learned Additional Government Pleader, the Division Bench in its judgment in W.A.Nos.291 and 292 of 2008 took into account G.O.Ms. No.143 which was a bogus one. Furthermore, the judgment of the Division Bench in S.Devakadaksham's case (cited supra) was not brought to the notice of the Division Bench which heard the writ appeals in W.A.Nos. 291 and 292 of 2008. The judgment S.Devakadaksham's 7/13

case (cited supra) disposed a batch of writ appeals and the Division Bench considered extensively the provisions of Tamil Nadu Recognised Private Schools (Regulation) Act 1973 and has recorded a finding that the service rendered in a nonsanctioned post could not be counted for the purpose of pension and pay fixation. All the teachers, who were granted benefit based on G.O.Ms.No.18, faced recovery proceedings based on G.O.Ms.No. 314 referred above. The action based on the G.O.Ms.No.314 was upheld by the Division Bench in its judgment in S.Devakadaksham's case (cited supra). However two cases escaped from the net and writ appeals preferred by those two teachers in W.A.Nos.291 and 292 of 2008 alone was allowed on the sole ground that they were discriminated in the matter of counting the service in the non-sanctioned post based on the benefits given to a teacher in terms of G.O.Ms.No.18.

21. As stated above, the judgment of the Division Bench in S.Devakadaksham's case (cited supra) rendered in a batch of cases, was not brought to the notice of the later Division Bench. The Division Bench categorically held that the action of the Government in withdrawing G.O.Ms.No.18 in G.O.Ms.No.314 is perfectly in order. It is made clear that the person, who rendered service in nonsanctioned post, could not claim to count the same for the purpose of pay fixation and pension. Hence I am of the view that the reliance placed on by the petitioner on G.O.Ms.No. 18 and Division Bench judgment in W.A.Nos. 291 and 292 of 2008 are of no use, in view of the judgment of the Division Bench in S.Devakadaksham's case (cited supra).

22. For all the aforesaid reasons, the writ petitions fails and the same is dismissed. No costs.

4. Subsequently another the Division Bench in W.A. No. 1267 of 2014 and W.A.No.40 of 2015 vide order dated 05.07.2018 in the case of the Secretary to the Government and others Vs. of S. 8/13

Veerabadran has followed the S.Devakadaksham's case (cited supra) and the relevant portion is extracted hereunder:

11. We have considered the rival submissions. It is unfortunate that the decision in S.Devakadasham's case, referred to supra, wherein the validity of G.O.Ms.No.314 dated 12.12.1999 was upheld, was not brought to the notice of the Division Bench which subsequently considered the very same issue in Gabriel Jelestin's case. While the judgment of the Division Bench in S.Devakadasham's Case, takes into account the impact of the Government Orders vis-a-vis the provisions of Tamil Nadu Recognised Private Schools (Regulation) Act, and the Rules made there under, the subsequent judgment of the Division Bench proceeds, on the basis of G.O.Ms.No.18 and G.O.Ms.No.143. We are constrained to point out that in a later judgment, a learned Single Judge of this Court in K.Pitchai v. The State of Tamil Nadu made in WP (MD) No.20326 of 2013 dated 28.02.

2018, has after referring to the various Government Orders and found that the Government Order in G.O.Ms.No.143, Education (D2) Department, dated 30.01.1987 does not exist at all and it is a fake Government Order. In view of the above said conclusion of the learned Single Judge and the fact that the decision of the subsequent Division Bench was rendered in ignorance of the earlier Division Bench, the dictum of the earlier Division Bench, which is more elaborate, is entitled to more credence than the decision of the subsequent Division Bench, the Hon'ble Supreme Court in Sri Jagannath Temple Managing Committee Vs. Siddha Math and others reported in 2015 (16) SCC 542, has held that a subsequent decision of the Co-equal Bench rendered in ignorance of the earlier decision of the Division Bench cannot be said to be a binding precedent.

12. A learned Single Judge (Hon'ble Mr.Justice M.Srinivasan), as he then was, of this Court in The Special Tahsildar No.III V. 9/13

Rangasamy Reddiar reported in 1988 (1) MLJ 317, had after referring to the judgment of the Full Bench of Patna High Court reported in AIR 1897 Patna 191, had held that when there are conflicting judgments of Co- equal Benches, it is open to the subsequent Bench to follow the decision which states the law more elaborately and accurately. Thus, looked at from any angle, the judgment of the Division Bench in Gabriel Jelestin's case, rendered in ignorance of the earlier Division Bench Judgment in S.Devakadasham's case, cannot be treated as a binding president. Further, the judgment of the Division Bench in Gabriel Jelestin's case has taken note of the Government Orders in G.O.Ms.No.143, which has been held to be a fake Government order by this Court in WP (MD) No.20326 of 2013. 13.

In view of the above, we are constrained to follow the judgment of the Division Bench in S.Devakadasham's Case, Reported in 2006 (4) MLJ 1580. In view of the categorical pronouncement of the Division Bench in S.Devakadasham's Case, with which we agree, we are of the considered opinion that the judgments impugned in these Appeals viz., the judgment in WP No.26885 of 2013 and judgment in WP No.7627 of 2006 directing conferment of the benefits on the respondents in these Writ Appeals deserve to be set aside and they are accordingly set aside. The Writ Appeals stand allowed and both the Writ Petitions will stand dismissed. However, in the circumstances, there will be no order as to costs. Consequently, the connected miscellaneous petitions are closed."

5. Any service rendered in Self Finance institution or in any Matriculation school or unsanctioned post in an Aided School cannot be counted for granting pension since those service cannot be considered as government service. If the petitioner claim is accepted then any private employment ought to be included along with the government service and government would be made liable for paying pension for the private employment also, which can never be permitted at all. The 10/13

petitioner has rendered in Matriculation School which is a Management School and a Self-Finance School, which is not aided school. Hence the petitioner is not entitled to the add such service. Therefore, basic claim itself is on a wrong footing. Hence, this writ petition cannot be entertained. Hence the legal heirs cannot be granted any liberty to adjudicate this issue.

6. With the above said observation, this Writ Petition is dismissed. No costs."

6. Therefore following the earlier judgments cited supra the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.

Index : Yes / No 14.03.2023 Internet : Yes NCC : Yes / No Tmg 11/13

To 1.The Secretary, State of Tamil Nadu, Education Department, St.George Fort, Chennai-600 009.

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

3.The District Educational Officer, Lalgudi, Trichy District.

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S.SRIMATHY, J Tmg 14.03.2023 13/13