S. Seethalakshmi v. The Principal Secretary

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.10.2022

CORAM

THE HON'BL MRS.JUSTICE S.SRIMATHY S.Seethalakshmi ... Petitioner Vs.

1. The Principal Secretary, School Education Department, Fort St. George, Chennai - 4.

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

3. The District Educational Officer, Madurai.

... Respondents PRAYER : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, to call for the records of the second respondent issued in Na.Ka.No. 001753/R1/E2/2014, dated 17.6.2014 and quash the same and issue a consequential directions to the respondents to count the service rendered 1/9

by the petitioner as Tamil Pandit Teacher in Recognized Matriculation Schools and in the Government Aided Schools for the purpose of granting pension and other benefits as was done to similarly placed person in G.O.Ms.No.143, Education Department (V2), dated 30.01.1987 and granting such other and further reliefs which this court deems fit and proper in the circumstances of this case.

For Petitioner : Mr.K.Muthumalai For Respondents : Mr.V.Omprakash Government Advocate

ORDER

This Writ Petition is filed for Certiorarified Mandamus, to quash the impugned order dated 17.06.2014 and consequentially direct the respondents to count the service rendered as Tamil Pandit Teacher in recognized Matriculation School and add the same in the service rendered in Government Aided Schools as per the G.O.Ms.No.143, Education Department (V2), dated 30.01.1987.

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2. When the matter was taken up for hearing, the learned Counsel appearing for the petitioner submitted that the petitioner died on 22.06.2019 and hence the Learned Counsel prayed to dismiss the writ petition as abated with liberty to contest the claim by the legal heirs. However, on perusal of the affidavit and the relevant records it is seen that the claim of the petitioner is not legally sustainable, since the petitioner had relied on G.O.Ms.No.143, Education Department (V2), dated 30.01.1987, G.O.Ms.No.18 Education Science and Technology Department dated 09.01.1997. However, the respondent submitted that by issuing the G.O.Ms.No.314 School Education (D2) Department dated 12.11.1999 the government has cancelled the G.O.Ms.No.18.

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 3/9

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 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 non- sanctioned 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 4/9

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

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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. 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 Coequal 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 6/9

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 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 7/9

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.

10.10.2022 Index :

Yes / No Internet :

Yes / No jbr To

1. The Principal Secretary, School Education Department, Fort St.George, Chennai - 4.

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

3. The District Educational Officer, Madurai.

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S.SRIMATHY, J jbr Order made in 10.10.2022 9/9