Y. Chellammal v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:07.09.2007CORAM:THE HON’BLE MR. JUSTICE P.JYOTHIMANIWRIT PETITION NOS.18520 TO 18522 OF 1999Y. Chellammal.. Petitioner in WP.18520/99M. Mary Rajammal.. Petitioner in WP.18521/99R. Seeniammal.. Petitioner in WP.18522/99Vs.1. State of Tamil Nadu rep. by its Secretary, School Education Department, Secretariat, Chennai 9.2. Deputy Director Audit Department Tirunelveli 627 002.3. Additional Assistant Educational Officer, Keelapavoor Range Pavoorchatram Tirunelveli District.4. District Elementary Educational Officer, Tirunelveli 627 002.5. Director of Elementary Education College Road, Chennai 6.6. Correspondent, T.D.T.A. Middle School, Rajagopalaperi- Bungalow Surandai Postrate Veerakeralampudur Taluk 627 861 Tirunelveli District... Respondents in WP.18520/991.State of Tamil Nadu rep. Byits Secretary, School Education Department, Secretariat, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/

2. Deputy Director Audit Department Samathanapuram, Tirunelveli 627 002.3. Assistant Educational Officer, Tenkasi Range, Tenkasi - 627 811 Tirunelveli District.4. District Elementary Educational Officer, Tirunelveli 627 001.5. Director of Elementary Education College Road, Chennai 6.6. Correspondent, C.M.S. Mecwittar Middle School, Tenkasi... Respondents in WP.18521/991. State of Tamil Nadu rep. by its Secretary, School Education Department, Secretariat, Chennai 9.2. Accounts Officer (Audit) School Education Department Madurai 625 002.3. District Educational Officer, Tenkasi 627 811 Tirunelveli District.4. Director of School Education College Road, Chennai 6.5. Manager and Correspondent Rukkumani High School Mangalapuram Kadayanallur Tenkasi Taluk 627 751 Tirunelveli District... Respondents in WP.18522/99Writ Petitions filed under Article 226 of the Constitutionof India praying for issuance of Writ of Certiorari as statedtherein. https://hcservices.ecourts.gov.in/hcservices/ For petitioners: Mr. R. SaseetharanFor respondents: Mr. M.R. Jothimanian Government Advocate (W)for R.1&2 Mr.A.C. Manibarathi Government Advocate (E) for R3to5..COMMON ORDERThe common issue involved in all these cases relate to theorders passed by the third respondent, Assistant EducationalOfficer, Tenkasi Range, Tenkasi, Tirunelveli District indirecting the 6th and 5th respondent Schools respectively in thesewrit petitions, to recover from the salary of the petitioners theamounts stated to have been paid in excess by wrongly fixing theselection grade and special grade to them. 2. The petitioner in W.P.No.18520 of 1999 was appointed inthe year 1980 as a full-time Pre-vocational Instructor (CraftTeacher) in T.D.T.A. Middle School, Rajagopalaperi-BungalowSurandai Postrate, Veerakeralampudur, Tirunelveli District, 6threspondent in the writ petition. The said school is an aidedinstitution. On the representation of the said Craft Teacher toraise her salary on par with her counterparts in the High Schoolssince the job was similar in nature, One Man Committee wasconstituted by the Government which has made its recommendations.Based on the same, the Government has passed G.O.Ms.No.1366,Education Department, dated 5.9.1986 and has ordered the salaryof Craft Teachers be raised on par with their counterparts inHigh Schools subject to the condition that they should qualifyS.S.L.C. within a period of three years from the date of issue ofthe said order. The petitioner has completed her S.S.L.C. on1.5.1988 within the time stipulated in the Government Order. Bya subsequent G.O.Ms.No.1105, Education Department, dated22.8.1989, the Government has made the Craft Teachers working invarious schools like that of the petitioner, be eligible to begranted selection grade and special grade of pay notionally witheffect from 1.10.1984, however, with monetary benefits from1.4.1986. It was based on that, the petitioner was accordedselection grade with effect from 4.6.1990, on completion of 10years of her service. However, on the basis of the objectionraised by the Audit Department namely, the second respondent, thethird respondent by the impugned letter dated 3.4.1999, hasinformed the petitioner through the 6th respondent that she wasgranted higher scale of pay by mistake and ordered to recover thesaid amount. Presumably, the said order was passed by the thirdrespondent on the basis that the petitioner who had completed https://hcservices.ecourts.gov.in/hcservices/ S.S.L.C. on 1.5.1988 should have been granted selection from thatdate onwards.3. Likewise, in W.P.No.18521 of 1999, the petitioner wasappointed in the year 1973 as a Full-time Pre-vocational CraftTeacher in C.M.S. Mecwittar Middle School, Tenkasi, 6th respondentin the writ petition and the said School is an aided Institution.Based on the said Government Orders stated above, the petitionerhas completed her SSLC during March, 1989, which is well withinthe time stipulated in the Government Order. The salary was alsoraised as per the said Government Order. The petitioner wasaccorded Selection Grade with effect from 12.11.1983, viz., 10years after completion of her service from her date of originalappointment. Subsequently, she was also accorded special gradewith effect from 12.11.1993 with increase in the salary. Thethird respondent on the basis of the objection from the secondrespondent has informed through the sixth respondent that thepetitioner’s salary was wrongly fixed and directed to recoverunder the impugned order dated 23.3.1999. 4. Similarly, in W.P.No.18522 of 1999, the petitioner wasappointed as a Full-time Vocational Instructor (Craft Teacher) inRukkumani High School, Mangalapuram, Kadayanallur, Tenkasi talukin the year 1980, viz., the 5th respondent. The 5th respondentschool is an aided institution. The petitioner has completed herSSLC in April, 1985, well within the time stipulated in the saidGovernment Order and the salary was also increased accordingly.She was accorded selection grade with effect from 22.8.1989, tenyears after completion of her entry into the services with the 5threspondent. While so, the 2nd respondent, Accounts Officer(Audit), School Education Department, by impugned letter dated16.3.1998, has directed recovery of the amount on the basis thatthere has been wrong fixation of pay. 5. The respective impugned orders are challenged in all thewrit petitions on the basis that the G.O.Ms.No.1366, EducationDepartment, dated 5.9.1986 and G.O.Ms.No.1105, EducationDepartment, dated 22.8.1989 do not stipulate the requirement ofeducational qualification, viz., SSLC as a condition precedentfor calculating the selection grade. It is the case of thepetitioners that the said Government Orders grant three yearperiod to those Craft Teachers like that of the petitioners, whohave entered into service with lesser qualifications, to passSSLC within a period of three years which the petitioners havecomplied with. Further, under G.O.Ms.No.1105, EducationDepartment, dated 22.8.1989, Selection Grade and Special Gradehave been given to the Craft Teachers subject to the conditionthat they should qualify in passing SSLC. Therefore, it is thecase of the petitioners that the fixation of pay made earlier was https://hcservices.ecourts.gov.in/hcservices/ in accordance with law and therefore, the impugned orders are notvalid. It is also alleged that such benefits having been givenfor so many years are sought to be withdrawn and recovery soughtto be made without any notice and therefore, it affects theprinciples of natural justice.6. The 4th respondent in W.P.No.18521 of 1999, viz., theDistrict Elementary Educational Officer, Tirunelveli has filed acounter affidavit. The fact of appointment of the petitioners isnot denied. It is the case of the 4th respondent that underG.O.Ms.No.1366, Education Department, dated 5.9.1986, the minimumgeneral qualification for the post of Craft Teachers working inthe Middle Schools is made as SSLC pass in order to allow higherscale of pay on par with Secondary Grade Teachers in the HighSchools and therefore, it is only after possessing thequalification, they are made eligible for the higher pay scale.It is also the case of the 4th respondent that subsequentG.O.Ms.No.1105, Education Department, dated 22.8.1989 whichconfers selection grade and special grade is also related to thequalified Craft Teachers of the Middle School by giving notionalbenefits and inasmuch as the petitioners have completed SSLC muchafterwards, the Secondary Grade Ordinary scale of pay should havebeen effected only from the date of acquisition of SSLCqualification. However, by mistake, Secondary Grade scale ofpay has been awarded before completion of ten years of qualifyingservice with SSLC qualification and it was a wrong conferment ofbenefits given to the petitioners, which is now sought to berectified. The selection grade should have been granted only 10years after the date when the petitioners have completed SSLC andthe special grade 10 years after the selection grade. Therefore,according to the 4th respondent, the impugned orders are perfectlyvalid in law.7. It is not in dispute that the Government, in order toequate the Craft Teachers in Middle Schools in respect of theirsalary on par with their counterparts in High Schools, hasprescribed minimum general qualification for the post as SSLC byG.O.Ms.No.1366, Education Department, dated 5.9.1986. In the saidGovernment Order, it is also made clear that in respect of CraftTeachers who are already in service in Middle Schools with lesserqualification, viz., 8th Standard and 7th Standard, they shall beallowed to acquire the minimum qualification within a period ofthree years. 8. It is also not in dispute that all these threepetitioners have acquired their SSLC within the time stipulatedin the said Government Order. By subsequent G.O.Ms.No.1105,Education Department, dated 22.8.1989, while granting selectiongrade and special grade to Middle School Teachers, relevant https://hcservices.ecourts.gov.in/hcservices/ scales of pay have been fixed to all Craft Teachers of HighSchools working in all kinds of Management, subject to thecondition that they should qualify themselves with SSLC. It isalso stated that the selection grade and special grade pay shalltake notional effect from 1.10.1984 for the purpose of fixationof pay in those scales with monetary benefits from 1.4.1986.Under a similar circumstance, when a Craft Teacher was appointedin the year 1970 and he was qualified with SSLC on 5.4.1986 andrepresentation was made to the authorities to confer the benefitsof selection grade as per the said G.O.Ms.No.1105, EducationDepartment, dated 22.8.1989 and also G.O.Ms.No.1366, EducationDepartment, dated 5.9.1986 and the same was rejected on22.11.1990, when that was challenged in the Tamil Nadu StateAdministrative Tribunal by filing Original Application, theTribunal has allowed the application and directed the authoritiesto give selection grade notionally with effect from 1.10.1984,however, with monetary benefits from 1.4.1986. When theGovernment has challenged the said order of the Tribunal, in thecase of District Educational Officer, Tiruvannamalai and othersv. K.T.Margasakayam, a Division Bench of this Court consisting ofV.S.Sirpurkar,J. (as he then was) and V.Kanagaraj,J. by orderdated 27.7.2001 passed in W.P.No.12066 of 1999, while confirmingthe said order of the Tribunal has held as follows:"The learned counsel appearing on behalf of theGovernment attacked this order on the ground that in factwhen the relevant Government Orders came on the field therespondent was not covered by them. It was tried to beargued that the respondent after his initial appointmentwas transferred to Polur Panchayat Union middle schoolwhich school was upgraded into a high school and at thattime, the respondent had not even passed the S.S.L.C.examination and had only passed the 8th standardexamination. It was conceded that the respondent haspassed the SSLC examination on 5.4.1986 and had qualifiedhimself for drawing the pay scale of Rs.610-20-730-25-955-30-1075 which was intended for the post high school craftteachers. What was forcefully argued before us was thatthe respondent teacher could not have asked for countinghis middle school services for selection grade as thatservice was on the lower pay scale. It was tried to beargued that after the said teacher was granted higher payscale, if he continued for ten years on that pay scalethen alone, he was entitled to the selection grade. Infact, this argument was made before the Tribunal also andthe Tribunal has refuted this argument and, in ouropinion, correctly. What will be seen fromG.O.Ms.No.1105, dated 22.6.1989 is that the craft teachersin the middle schools were made eligible for the selection https://hcservices.ecourts.gov.in/hcservices/ grade and special grade scales of pay on par with thecraft teachers of the high school. However, in thatGovernment Order, there was no condition imposed that thisadvantage was to be given only on completion of the tenyears of service only as a high school craft teacher. Thelearned counsel also relied on the Government letter dated4.10.1990 to suggest that the services rendered in theposts carrying equal and higher scales of pay alone couldbe taken into account for his grant of selection grade orspecial grade in case of the respondent, since he wasworking as middle school craft teacher that service couldnot be taken into account for the purpose of awardingselection grade. The Tribunal has refuted this argumenton the basis of the contents of paragraph-2 ofG.O.Ms.No.1366, dated 5.9.1986 as also the otherG.O.Ms.No.1105, dated 22.8.1989. We are in completeagreement with the Tribunal on the interpretation of therelevant Government Orders in question. The Tribunal hasalso taken the example of the Headmaster of the primaryschools and has drawn parallel. In our opinion, thelanguage of the concerned Government Orders is clearenough to suggest that the concerned respondent wasundoubtedly entitled to the selection grade on account ofhis services right from 1970 as middle school craftteacher and thereafter, his services as High School craftteacher for which he had also acquired a properqualification, i.e., SSLC in the year 1986. In ouropinion, there is no necessity to interfere with the orderof the Tribunal in which the findings are recorded in aproper manner."(Emphasis supplied)9. Following the above cited Division Bench judgement,similar orders have been passed by this Court in P.Rajendran v.The District Elementary Educational Officer, Tirunelveli & othersin W.P.No.42763 of 2002 dated 3.12.2002 and subsequently inS.Arputha Amala Ritabai v. The Director of Elementary Education,College Road, Chennai-6 in W.P.No.29235 of 2004 dated 5.11.2004.10. In the case in W.P.No.29235 of 2004 the facts asnarrated are also similar to that of the case on hand. Thelearned Judge, has narrated the facts of the case in paragraph-2is as follows:"The petitioner has questioned the impugned orderdated 22.11.2000 of the first respondent and theconsequential order dated 18.6.2002 of the secondrespondent in denying the selection and special grade payscale to the petitioner, to which she is entitled to asper G.O.Ms.No.1105, Education (MU-1(2) Department dated https://hcservices.ecourts.gov.in/hcservices/

22.8.1989. By the impugned orders, the said confermentand correspondingly the salary also were sought to bereduced on the ground that the petitioner had notcompleted ten years of service as selection grade CraftTeacher with the qualification of S.S.L.C. ………" By following the abovesaid judgement of the Division Bench, thelearned Judge has set aside the order of recovery.11. There is also one another fact which has to beconsidered in these cases, that the petitioners have beenconferred selection grade based on the abovesaid GovernmentOrders even in the year 1990 and have been paid salary and therecovery is sought to be made nearly after nine years withoutgiving any opportunity to the petitioners. Even assumingotherwise, these are not cases wherein by the positive conduct ofthe petitioners they have acquired certain benefits illegally.On the other hand, the benefits have been conferred by theauthorities based on the two Government Orders. In suchcircumstances, the impugned orders are vitiated by the violationof the basic principles of natural justice and on the said groundalso, the impugned orders are liable to be set aside. In view ofthe same, the writ petitions are allowed. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.KhTo1.The Secretary,State of Tamil Nadu School Education Department, Secretariat, Chennai 9.2. Deputy DirectorSamanthapuram, Audit Department Tirunelveli 627 002. https://hcservices.ecourts.gov.in/hcservices/

3. Additional Assistant Educational Officer, Keelapavoor Range Pavoorchatram Tirunelveli District.4. District Elementary Educational Officer, Tirunelveli 627 002.5. Director of Elementary Education College Road, Chennai 6.6. Account Officer (Audit)School Education DepartmentMadurai- 625 002.7. Assistant Educational OfficerTenkasi Range,Tenkasi- 627 811Tirunelveli district.8. District Educational Officer,Tenkasi- 627 8111 cc to Government Pleader, sr. 56199WP.NOS.18520 TO 18522 OF 1999SKV (CO)kk 24/9