Mohamed Kasim v. State of TamilNadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 22.07.2009CoramTHE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANANDTHE HONOURABLE MR. JUSTICE C.T. SELVAMW.A.Nos.204 and 205 of 2008Mohamed Kasim ..Appellant in W.A.No.204/2008A.G. Mohideen ..Appellant in W.A.No.205/2008-Vs.-1. State of Tamil Nadu, rep. by the Secretary to Government, Education Department, Fort St. George, Chennai – 600 009.2. The Director of CollegiateEducation, College Road, Chennai – 600 006.3. The Correspondent, Justice Basheer Ahamed SyedWomen's College, College Avenue, 311, Anna Salai, Teynampet, Chennai – 600 018. ...Respondents in both appealsAppeals filed against the order dated 23.8.2007 passed inW.P. Nos.31166 of 2005 and 2328 of 2006 on the file of this Court.Prayer in WP.No.31166/05: Petition filed under Article 226 of theConstitution of India, prays this Hon'ble Court to issue Writ ofCertiorarified Mandamus to quash the order of the first respondentdated 7.10.2002 in Letter No.989/D1/2002-4 and second respondent'sorder dated 22.10.2002 in Mumu No.77288/G1/97 read with G.O.2D No.75Higher Education (D1) Department dated 3.7.1998 and quash the saidorders in so far as they reject the petitioner's claim for takinginto account the service rendered before 1.4.1979 for grant of https://hcservices.ecourts.gov.in/hcservices/ selection grade and consequently issue a direction to the respondentsto take into account the service rendered from the date ofappointment and grant consequential benefits by refixing the pay andpensionary benefits of the petitioner.Prayer in WP.No.2328/2006: Petition filed under Article 226 of theConstitution of India, prays this Hon'ble Court to issue Writ ofCertiorarified Mandamus to call for the records of the secondrespondent dated 10.3.2005 in letter No.5788/G1/2005 read with firstrespondent's order dated 7.10.2002 in Letter No.989/D1/2002-4 andG.O.2D No.75 Higher Education (D1) Department dated 3.7.1998 andquash the said orders in so far as they reject the petitioners claimfor taking into account the service rendered in the third respondentcollege from 1.8.1967 for grant of service benefits includingselection and special grades and pension and consequently issue adirection to the respondents to take into account the servicerendered by the petitioner from 01.08.1967 the date of appointmentand grant consequential service benefits by refixing the pay and thepensionary benefits to the petitioner including payment of arrears.For Appellants : Mr. P. Sunil KumarFor Respondent : Mr. M. Dhandapani, Spl. Govt. Pleader for R1 and R2 Mr. Narayanasamy for R3J U D G M E N T(Judgment of the Court was delivered by PRABHA SRIDEVAN, J)These two writ appellants were working as Peons (non-teaching staff) in the third respondent-College. According to thememorandum issued by the College on 7.10.1980, Mr. A.G. Mohideen(W.A. No.205 of 2008) was appointed on 1.8.1967 and confirmed on1.8.1969 and Mr. Mohamed Khasim (W.A. No.204 of 2008) was appointedon 30.7.1970 and confirmed on 30.7.1972. When a demand was made bythe teaching and non-teaching staff for various categories ofreliefs, it appears to have been agreed that full retirement benefitswould be given to the employees. 2. Mr. Mohamed Khasim moved a writ petition in W.P.No.16664 of 1994 seeking certain reliefs. This Court disposed of thesaid writ petition, directing the Education Department to pass finalorders on merits. Since no orders were apparently passed, on24.3.1998, a legal notice was sent to the Secretary to Government,Higher Education (D1) Department, stating that if the direction ofthis Court has not been complied with, contempt petition will bemoved.3. On 3.7.1998, an order in G.O.2D.No.75 Higher Education(D1) Department came to be passed, where the Government, after having https://hcservices.ecourts.gov.in/hcservices/ carefully examined the proposal of the Director of CollegiateEducation, refused to approve the said proposal for taking intoaccount the services rendered by the non teaching staff of the thirdrespondent-College prior to 1.4.1979 for the purpose of sanctioningselection grade/special grade. 4. Thereafter, the Secretary to the Government addressed aletter dated 7.10.2002 to the Director of Collegiate Education,referring to the Government Order mentioned above and informed thatthere is no justification to accept its proposal to count theservices rendered by the non-teaching staff of third respondent-College prior to 1.4.1979 for the purpose of selection grade/specialgrade and pensionary benefits. The Director of Collegiate Educationannexed the letter mentioned earlier and informed that the demand ofthe non-teaching staff was rejected. 5. Three years later, W.P. Nos.31166 of 2005 and 2328 of2006 were filed by the appellants herein , who had by then retired,for quashing G.O.2D.No.75 Higher Education (D1) Department dated3.7.1998 and to issue a direction to the respondents to take intoaccount the services rendered from the date of appointment and grantconsequential benefits by refixing the pay and giving pensionarybenefits accordingly. By a common order dated 23.8.2007, this Courtrejected the writ petitions on the ground of laches and also becausethis Court found that there was no discrimination or disparity toquash the aforesaid Government Order. Therefore, the present writappeals have been filed.6. Learned counsel appearing for the appellants submittedthat as early as 1979, the claim of the teachers and non-teachingstaff that full retirement benefits should be given to them, wasaccepted and thereafter, there can be no discrimination between theteaching and non-teaching staff. The memorandum dated 7.10.1980would also show the date on which the non-teaching staff have beenconfirmed. Learned counsel submitted that without prejudice to thecase of the appellants, they are entitled to sanction of selectiongrade/special grade. It is submitted that the G.O. restricted itsrejection of non approval only for sanction of specialgrade/selection grade and there was no mention of pensionary benefitsand it is unfair to extend the non approval to the pensionarybenefits which does not find a mention in the G.O. 7. Learned counsel also submitted that the other employeessimilarly placed as that of the appellants have been grantedselection grade and it is only Thiru Mohammed Kasim, who has not beengranted selection grade and there is no reason as to why he isdiscriminated. Learned counsel also submitted that de hors thereceipt of grant, the Government is bound to extend the pensionarybenefits right from the date of appointment. Learned counsel reliedon the decisions reported in the case of U.O.I. v. TARSEM SINGHY https://hcservices.ecourts.gov.in/hcservices/ ((2008) 7 MLJ 1245) and RASTHAN WELFARE SOCIETY v. STATE OF RAJASTHAN((2005) 5 SUPREME COURT CASES 275) in support of his submissions.8. Learned Special Government Pleader submitted that as faras respondents 1 and 2 are concerned, the Government's grant wassanctioned only from 1.4.1979 and therefore, benefits will also beextended to teaching or non-teaching staff only from that date andselection grade cannot be ordered to non-teaching staff counting theperiod prior to 1.4.1979. A tabular column is furnished in thecounter, which shows that non-teaching staff have been awardedselection grade taking into account the services rendered by themfrom 1.4.1979 only. 9. Learned counsel appearing for the third respondent hasadopted the submissions made by the learned Special GovernmentPleader.10. In the decision reported in (2008) 7 MLJ 1245 (SC)cited supra, the Supreme Court considered the case of Army man, whowas invalidated from the services of Army on 13.11.1983. Heapproached the Court for sanction of disability pension. LearnedSingle Judge allowed the writ petition and directed the appellants togrant him disability pension, which was restricted to 38 months priorto the filing of the writ petition. The Division Bench however heldthat the writ petitioner was entitled to disability pension from thedate it fell due and it should not be restricted for a period ofthree years. 11. The Union of India went on appeal. The Supreme Courtheld that a belated service related claim may be rejected on theground of laches, where an order may have the effect of reopening theissue which will affect the settled rights of the third party and ifthe issue relates to payment or re-fixation of pay or pension, therelief may be given in spite of delay since such an order will notaffect the rights of third party. However, the Supreme Court allowedthe appeal filed by the Union of India, restricting the relief onlyto a period of three years prior to the filing of the writ petition.In paragraph 5 of the said decision, the Supreme Court has held asfollows:-"5. To summarise, normally, a belated servicerelated claim will be rejected on the ground ofdelay and laches (where remedy is sought by filinga writ petition) or limitation (where remedy issought by an application to the AdministrativeTribunal). One of the exceptions to the said ruleis cases relating to a continuing wrong. Where aservice related claim is based on a continuingwrong, relief can be granted even if there is along delay in seeking remedy, with reference to https://hcservices.ecourts.gov.in/hcservices/ the date on which the continuing wrong commenced,if such continuing wrong creates a continuingsource of injury. But there is an exception to theexception. If the grievance is in respect of anyorder or administrative decision which related toor affected several others also, and if thereopening of the issue would affect the settledrights of third parties, then the claim will notbe entertained. For example, if the issue relatesto payment or refixation of pay or pension, reliefmay be granted in spite of delay as it does notaffect the rights of third parties. But if theclaim involved issues relating to seniority orpromotion, etc., affecting others, delay wouldrender the claim stale and doctrine oflaches/limitation will be applied. Insofar as theconsequential relief of recovery of arrears for apast period is concerned, the principles relatingto recurring/successive wrongs will apply. As aconsequence, the High Courts will restrict theconsequential relief relating to arrears normallyto a period of three years prior to the date offiling of the writ petition."12. This decision cannot be understood to mean that allcases of belated claims shall be accepted. The Supreme Court hasvery carefully held that the relief may be granted in spite of delayand that the relief is also restricted to three years prior to thedate of filing of the writ petition, which would be the normal periodof limitation for a civil litigation.13. In the decision reported in (2005)5 SCC 275 citedsupra, the question was whether the amount of gratuity payable to theemployees of aided educational institution has to be taken intoconsideration or not for determining the amount of Grant-in-Aid. TheSupreme Court held that the gratuity cannot be included in theapproved expenditure as under Rule 9, the State Government cansanction the grants under four heads provided therein and gratuitydoes not fall under any of them. Before disposing of the case, theSupreme Court left it open to the State Government to considersympathetically the question of the gratuity payable to the employeesbeing taken into consideration for the purpose of computing theamount of grant-in-aid.14. This decision does not help the petitioner. It is tothe effect that the Government cannot be compelled to sanction anygrant-in-aid amounts that an employee may be otherwise entitled to.In the case of gratuity, it is something that the employee issomething entitled to whereas in the present case, the questionwhether the appellants herein are entitled to have the period of https://hcservices.ecourts.gov.in/hcservices/ services prior to 1.4.1979 does not appear to have been decidedexcept to the extent mentioned in G.O.2D.No.75 Higher Education (D1)Department dated 3.7.1998 and we find that the College had not beensanctioned any grant from the Government prior to 1.4.1979 and theCollege was also informed that non-teaching staff, who were broughtinto time scale, would be entitled to service benefits only from thetime when they were brought into time scale. The said G.O. reads asunder:-" The Regional Joint Director ofCollegiate Education has sent proposal for thegrant of selection grade/Special grade to the nonteaching staff in the Justice Basheer Ahmed SyedWomen's College(J.B.A.S. Women's College)counting the services rendered by them prior to1.04.79 as was done in the case of teachingstaff. It has been reported that Justice BasheerAhmed Syed Women's College has been gettingteaching grant and pre professional course grantevery year from 1956 to 1973-74 and for theperiod from 1974-75 to 1978-79, the college hasnot been sanctioned any grant by the Governmentfrom 1.04.79 onwards the college has been gettinggrant from the Government. In the proceedings ofthe Director of Collegiate Education,L.Dis.No.110803/A4/85, dt.11.12.85, theSecretary, Justice Basheer Ahemed Syed Women'sCollege has been informed that the non teachingstaff in the college were brought on the timescale with the benefit of annual grants anddearness allowance subsequent to 1969 and hencethe request of the Management to take intoconsideration the continuous service rendered bythe non-teaching staff prior to 1969 for purposeof calculation of leave and promotion to theselection grade is not feasible of compliance andthat only the period of service in the time scalewill be taken into account for service benefits.The Director of collegiate Education in hisproceedings No.550055/A4/89 dt.11.4.90 hasinformed the Regional Joint Director ofCollegiate Education, Chennai that the servicesrendered by the non teaching staff in JusticeBasheer Ahmed Syed Women's College from 1.4.79(date from which the college has been gettinggrant from the Government, should be taken intoconsideration for processing the proposals forthe grant of selection grade. 2.The Director of Collegiate Educationhas stated that the Justice Basheer Ahmed Syed https://hcservices.ecourts.gov.in/hcservices/ Women's College, Chennai were sanctionedupgradation and University Grant Commission'sscale of pay taking into account the servicesrendered by them prior to 1.4.79. He hastherefore recommended that the services renderedby the non teaching staff in Justice BasheerAhmed Syed Women's College prior to 1.4.79 can betaken into account for the purpose of sanction ofselection grant/special grant. The Director ofCollegiate Education has requested the Governmentto issue necessary orders in the matter. 3. In the meantime Thiru Mohamed Kasim,Office Assistant in Justice Basheer Ahmed SyedWomen's College, Chennai (since retired) hadfiled W.P.Mo.16664/94 in the High Court, Chennaiseeking direction to the respondents to extendthe benefit of selection grade to the petitionswith full monetary benefits including arrears,Hon'ble Court, Chennai in their orders in W.P.No.16664/94 dt.13.11.1997 has observed thatperusal of the counter affidavit reveals thatproposals have been sent in favour of thepetitioner and the competent authority has topass final orders agreeing or disagreeing withthe proposals. Hon'ble High Court, Chennai hasdirected that final orders on the proposals sentby the authorities should be passed within 90days from the date of receipt of the order copy.The Government have carefully examined theproposal of the Director of Collegiate Educationmentioned in para 2 above, Justice Basheer AhmedSyed Women's College has been sanctioned grant bythe Government only with effiect from 1.4.79.Further the concession/benefit recommended by theDirector of Collegiate Education for the nonteaching staff in Justice Basheer Ahmed SyedWomen's College, Chennai has not been extended tothe non teaching staff in other aided colleges.Under the circumstances, the Government do notapprove the proposal of Director of CollegiateEducation for taking into account the servicesrendered by the non teaching staff in justiceBasheer Ahmed Syed Women's College, Chennai priorto 1.4.79 for the purpose of sanction ofselection grade/special grade. https://hcservices.ecourts.gov.in/hcservices/

5. This orders issue with the concurrenceof finance Department vide its U.O.No.38921/Education II/98-1 dt. 10.6.98."15. Therefore, as early as 1985, a decision had been takenthat the movement to time scale is the date i.e. relevant forcalculation of service benefits. Therefore, learned counsel appearingfor the appellant may not be quite right in submitting that thoughG.O.2D.No.75 Higher Education (D1) Department dated 3.7.1998restricts itself the question of sanction to special grade/selectiongrade, the letter dated 7.10.2002 unjustifiably includes the questionof pensionary benefits also. 16. As regards the sanction of selection grade/specialgrade, it appears to be a decision uniformly applied to all aidedcolleges that selection grade/special grade for non-teaching staff isgiven only from 1.4.1979. The appellants are not able to bringbefore us any instance of other aided colleges to whom the non-teaching staff such benefit has been extended. Therefore, we confirmthe findings of the learned Single Judge with regard to the selectiongrade/special grade.17. As regards the pension, the letter of the Director ofCollegiate Education indicates that the period of service in the timescale will be taken into account for service benefits. In one of thewrit petitions, it is stated that he was brought into time scale on1.1.1978. In these circumstances, we direct the writ appellants tomake a claim for sanction of pensionary benefits from the date onwhich they moved to time scale. The respondents shall also sanctionspecial grade or selection grade uniformly to all the non-teachingstaff and no discrimination can be made in that regard. 18. In the counter filed by the Government, Mohamed Kasim'sname does not find a mention, whereas A.G. Mohideen's name is found.There is no reason apparent for exclusion of his name. It may be aninadvertent error. The respondents may consider the same in thisregard and if Mohamed Kasim has not been granted selection grade, hecan be granted the selection grade/special grade on par with othernon-teaching staff, if no other factor disentitles him. Such ordershall be passed within three months. It is open to the writappellants to make a representation to the College and it is for theCollege to decide the same.19. With the above observations, the writ appeals aredisposed of. No costs.sd/-Asst.Registrar/true copy/ssa.Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary toGovernment, The State of Tamil Nadu, Education Department, Fort St. George, Chennai – 600 009.2. The Director of CollegiateEducation, College Road, Chennai – 600 006.+ 2 c.cs. to Mr. V. Narayanasamy, Advocate. S.R.No.34072.+ 1 c.c. to Mr. R. Sunil Kumar, Advocate. S.R.No.34019.+ 1 c.c. to The Government Pleader. S.R.No.33561. W.A.Nos.204 and 205 of 2008KS (CO)GSK 07.08.2009.