in the case of the Secretary to State Government and anr v. G.Rufus David., as follows

W.P.No.21259 of 2024him as Graduate Teacher at the I.T.O. Higher Secondary School, Ayakudi, Palani Taluk as qualifying service for pension along with his regular service in the Government School to refix his pay from the date of his initial appointment, till date.For Petitioner : Mr.K.Abdul OwaisFor Respondents: Mrs. Mythreye Chandru, Special Government Pleader O R D E RThis Writ Petition has been filed for direction directing the respondents to count the petitioner's service rendered in the aided school for the fixation of special grade pay/selection grade pay in the post of B.T. Assistant.2.The petitioner was initially appointed as B.T. Assistant (English) at I.T.O. Higher Secondary School, Ayakudi, Palani Taluk and he was appointed in the sanctioned post. After rendering some period of service, he was selected by the Teachers Recruitment Board for appointment to the post of Graduate Teacher at Government Higher Secondary School, Thekalur, Tirupur District. Accordingly, he was Page 2 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024appointed as Graduate Teacher in the said School. In fact, the petitioner had obtained necessary permission from his previous aided school and immediately after his resignation on the next day, he had joined in his Government School. The petitioner's resignation was also duly approved by the concerned District Educational Officer. Thereafter, his appointment was duly regularized by the authority concerned in the post of B.T. Assistant. 3.The Government of Tamil Nadu grants same scale of pay to the teachers working in the government aided private school as that of government school teachers. In fact, the Hon'ble Supreme Court of India held that the teachers working in the private aided school are entitled for same scales of pay as that of the government school teachers. However, while fixing the scale of pay, the petitioner was not considered for his same scale of pay which was fixed while he was in private aided school. The service rendered by the B.T. Assistant in government school as well as the private school are one and the same and similar post. Page 3 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 20244.Further the Rule 23 of the Fundamental Rules says that even resignation from one post with a view to join in another post in other department in the service of the State government, does not entail forfeiture of past service. As per the government order in G.O.Ms.992 Educational Department dated 22.06.1979, service in the aided school can be taken into account for the purpose of selection grade of pay, after appointment in the government service. Further the government order in G.O.Ms.No. 1296, Education Department dated 19.06.1982, has approved the proposal of the Director of School Education and directed that selection grade B.T. Assistant, if they migrate from one management to another management i.e., from Panchayat Union School to Municipal School or from a government school to another school or from aided school to another management or vice versa, be allowed minimum time scale of pay of selection grade if they are appointed in the same post. 5.In view of the above, the petitioner submitted his representation seeking counting of his service rendering in the post of B.T. Assistant in the aided private school for fixation of selection grade scale of pay in the post of B.T. Assistant and also grant arrears of salary Page 4 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024including increments. Further, the said request is pending without passing any order insofar. Hence, he approached this Court by way of this writ petition.6.Heard the learned counsel appearing on either side and perused the material placed before this Court. 7.Similar issued was dealt with by this Court in W.P.No.7453 of 2016 and ordered as follows :-“9. G.O.Ms.No.992, dated 22.06.1979 orders that the services rendered by a Teacher in an aided school, on resignation, should be counted for the required period of 10 years of service, for the purpose of granting selection grade in that post excluding the period of break, if any. Likewise, G.O.Ms.No.1296, dated 19.06.1982 orders that when the Secondary Grade Teachers migrate from an aided school to the Government school, they are allowed the minimum of the time scale of pay of Selection Grade/Secondary Grade post, if they are appointed in a Secondary Grade post. 10. When the aforesaid two Government Orders specifically entitles the Secondary Grade Teacher to seek the benefit of past services, the reasoning adopted Page 5 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024by the respondents in their impugned order that there are no Government Orders governing the issue, is baseless. On this ground also, the petitioner is entitled to succeed. 11. For all the foregoing reasons, the impugned orders dated 30.04.2015 and 07.08.2015 are quashed. Consequently, there shall be a direction to the respondents to pass appropriate orders, fixing the selection grade scale of pay by counting the service rendered by the petitioner in the post of Secondary Grade Teacher from 24.02.1998 to 21.07.2009 and to fix the petitioner's pay at Selection Grade Secondary Grade Teacher at the initial stage of Rs.15230 + 4300 GP in the scale of pay of Rs.9300-34800 as on 22.07.2009, together with arrears of salary including increments. Such orders shall be passed atleast within a period of four weeks from the date of receipt of a copy of this order.”8.Similarly another writ petition was allowed by this Court in W.P.No.32645 of 2018 by an order dated 16.07.2019 and aggrieved by the said order, the government filed appeal in W.A.No.3868 of 2019 and the Hon'ble Division Bench of this Court dismissed the appeal and confirmed the order passed by the learned Single Judge of this Court. In Page 6 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024fact, it is also confirmed by the Hon'ble Supreme Court of India in S.L.P.(C) No.5633 of 2021. 9.The relevant portion of the government order in G.O.Ms.No.992 Education Department dated 22.06.1979, is read as follows :-“4. The Government, have carefully examined and have decided that the relevant panchayat Union Council Establishment Rules and the relevant Tamilnadu Municipal Educational Service Rules be amended suitably to ensure the past services rendered by teacher prior to his/her resignation from one management school or from a panchayat Union school or from a Municipal School are taken in to account for the period of 10 years of service required for grant of grade. Pending issue of amendment to the panchayat union Establishment Rules and the Tamil Nadu Municipal Rules, the Government Direct that the services rendered by a teacher under all kinds of managements viz. Government panchayat, Municipal, Corporation and aided agencies and also in under the control of Director of Backward Classes of Harijan and Tribal Welfare prior to his/her resignation, termination, transfer or migration should be counted for the required period of 10 years of service for the purpose Page 7 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024granting selection grade in that post exclusing the period of breaks if any.”10.That apart, the petitioner was retransmitted to the government school from his private school. Accordingly, he was relieved from his private aided school and joined in the government school as Graduate Teacher. It is also relevant to extract the portion of the judgment rendered by the Hon'ble Division Bench of this Court in W.A.No. 3868 of 2019 dated 16.10.2020, in the case of the Secretary to State Government and anr Vs. G.Rufus David., as follows:-“14. It is evident from the aforesaid order passed by the Government that the service rendered by a Government servant, in the same service or to another service by method of recruitment by transfer, is entitled for re-fixation of pay. In Para No. 2 of the above Government Order, it has been clearly stated that the above order will be applicable to the staff employed in all recognised schools under the management of aided agencies and local bodies. Therefore, the respondent/writ petitioner, who was appointed earlier in an aided school, is entitled for the benefit of re-fixation on his appointment to the post of B.T.Assistant in Government Service. Therefore, as per the order passed Page 8 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024by the Government, mentioned supra, the service rendered by the respondent-writ petitioner in an Aided School shall be counted for the purpose of fixation of his pay on his appointment to the post of B.T. Assistant. The appointment of the respondent/writ petitioner to the post of B.T. Assistant is by way of transfer of appointment and he cannot be treated as a fresh appointee in the post of B.T. Assistant. This is also in tune with Rule 3(I)(IV) of the Special Rules for Tamil Nadu Educational Subordinate Service. In such circumstances, it cannot be contended by the appellants that the respondent's appointment as B.T. Assistant is as per his own wish and he is not entitled for protection of his pay. When the appellants have decided to count the past service of the respondent/writ petitioner for the purpose of conferment of pensionary benefits on his retirement, equally, the same yardstick has to be resorted to by the appellants for re-fixation of his pay during the course of his service as B.T. Assistant. It is to be noted that, as on 02.01.2009, when the respondent/writ petitioner was relieved, his Basic Pay was Rs.16,650 along with admissible Grade Pay. However, on his appointment to his higher post as B.T. Assistant, his pay was fixed only as Rs.14,630/- with applicable pay. On appointment to a higher post, the respondent writ petitioner cannot be deprived of re-fixation of pay, taking into account the past service Page 9 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024rendered in the Aided School. The learned Single Judge also, on appreciation of the above factual as well as legal grounds, has rightly allowed the writ petition filed by the respondent and we see no reason to interfere with the same. 11.Therefore, the petitioner who was earlier appointed in the aided school is entitled for the benefit of re-fixation of appointment to the post of B.T. Assistant in the government service. The service rendered by his in a aided school shall be counted for the purpose of fixation of pay on his appointment in the post of B.T. Assistant and his appointment in the government school cannot be treated as a fresh appointment in the post of B.T. Assistant. The above order was also confirmed by the Hon'ble Supreme Court of India in S.L.P.No.5633 of 2021 by an order dated 12.04.2021. 12.On the basis of the dictum laid down by the Hon'ble Division Bench of this Court, various similar orders have been passed by this Court. In W.P.No. 7453 of 2016 by an order dated 09.01.2023, this Court held as follows :-Page 10 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024“7. A co-joint reading of the aforesaid decisions would substantiate that when an employee of an aided school resigns from the post for the purpose of joining another Government service, he would be entitled for all the service benefits that he had carried in the erstwhile school. Consequently, he would also be entitled for revision of the pay scale in the new school by counting the past services.” 13.Further as per Rule 23(1) of the Tamil Nadu Pension Rules, resignation from a service or post entails forfeiture of past service. But the proviso says that resignation shall not entail forfeiture of past service if it has been submitted to take up with proper permission, another appointment, whether temporary or permanent, under the government where service qualifies. As far as the petitioner is concerned, he was resigned from his earlier service and he was reappointed to the government school in the same post. Therefore, his resignation shall not entail forfeiture of his past service. Page 11 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 202414.In view of the above discussions, the respondents are directed to count the petitioner's service rendered in the post of B.T. Assistant in his private aided school for fixation of selection grade of pay in the post of B.T. Assistant and fixed his initial pay on his last drawn pay and disburse the arrears of salary including the increments within a period of twelve weeks from the date of receipt of a copy of this Order. 15.With the above directions, this writ petition is allowed. Consequently, connected miscellaneous petition is closed. There shall be no orders as to costs. 31.07.2024Index : Yes/NoSpeaking/Non Speaking orderNeutral Citation : Yes/NokvPage 12 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024To1. The Principal Secretary to Government, School Education Department, Government of Tamil Nadu, Secretariat, Chennai – 600 009.2. The Director of School Education, DPI Campus, Nungambakkam, Chennai – 600 006.3. The Chief Educational Officer, Tiruppur.4. The District Educational Officer, Tirupur, Tirupur District.Page 13 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024G.K.ILANTHIRAIYAN. J,kvW.P.No.21259 of 202431.07.2024Page 14 of 14

W.P.No.21259 of 2024him as Graduate Teacher at the I.T.O. Higher Secondary School, Ayakudi, Palani Taluk as qualifying service for pension along with his regular service in the Government School to refix his pay from the date of his initial appointment, till date.For Petitioner : Mr.K.Abdul OwaisFor Respondents: Mrs. Mythreye Chandru, Special Government Pleader O R D E RThis Writ Petition has been filed for direction directing the respondents to count the petitioner's service rendered in the aided school for the fixation of special grade pay/selection grade pay in the post of B.T. Assistant.2.The petitioner was initially appointed as B.T. Assistant (English) at I.T.O. Higher Secondary School, Ayakudi, Palani Taluk and he was appointed in the sanctioned post. After rendering some period of service, he was selected by the Teachers Recruitment Board for appointment to the post of Graduate Teacher at Government Higher Secondary School, Thekalur, Tirupur District. Accordingly, he was Page 2 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024appointed as Graduate Teacher in the said School. In fact, the petitioner had obtained necessary permission from his previous aided school and immediately after his resignation on the next day, he had joined in his Government School. The petitioner's resignation was also duly approved by the concerned District Educational Officer. Thereafter, his appointment was duly regularized by the authority concerned in the post of B.T. Assistant. 3.The Government of Tamil Nadu grants same scale of pay to the teachers working in the government aided private school as that of government school teachers. In fact, the Hon'ble Supreme Court of India held that the teachers working in the private aided school are entitled for same scales of pay as that of the government school teachers. However, while fixing the scale of pay, the petitioner was not considered for his same scale of pay which was fixed while he was in private aided school. The service rendered by the B.T. Assistant in government school as well as the private school are one and the same and similar post. Page 3 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 20244.Further the Rule 23 of the Fundamental Rules says that even resignation from one post with a view to join in another post in other department in the service of the State government, does not entail forfeiture of past service. As per the government order in G.O.Ms.992 Educational Department dated 22.06.1979, service in the aided school can be taken into account for the purpose of selection grade of pay, after appointment in the government service. Further the government order in G.O.Ms.No. 1296, Education Department dated 19.06.1982, has approved the proposal of the Director of School Education and directed that selection grade B.T. Assistant, if they migrate from one management to another management i.e., from Panchayat Union School to Municipal School or from a government school to another school or from aided school to another management or vice versa, be allowed minimum time scale of pay of selection grade if they are appointed in the same post. 5.In view of the above, the petitioner submitted his representation seeking counting of his service rendering in the post of B.T. Assistant in the aided private school for fixation of selection grade scale of pay in the post of B.T. Assistant and also grant arrears of salary Page 4 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024including increments. Further, the said request is pending without passing any order insofar. Hence, he approached this Court by way of this writ petition.6.Heard the learned counsel appearing on either side and perused the material placed before this Court. 7.Similar issued was dealt with by this Court in W.P.No.7453 of 2016 and ordered as follows :-“9. G.O.Ms.No.992, dated 22.06.1979 orders that the services rendered by a Teacher in an aided school, on resignation, should be counted for the required period of 10 years of service, for the purpose of granting selection grade in that post excluding the period of break, if any. Likewise, G.O.Ms.No.1296, dated 19.06.1982 orders that when the Secondary Grade Teachers migrate from an aided school to the Government school, they are allowed the minimum of the time scale of pay of Selection Grade/Secondary Grade post, if they are appointed in a Secondary Grade post. 10. When the aforesaid two Government Orders specifically entitles the Secondary Grade Teacher to seek the benefit of past services, the reasoning adopted Page 5 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024by the respondents in their impugned order that there are no Government Orders governing the issue, is baseless. On this ground also, the petitioner is entitled to succeed. 11. For all the foregoing reasons, the impugned orders dated 30.04.2015 and 07.08.2015 are quashed. Consequently, there shall be a direction to the respondents to pass appropriate orders, fixing the selection grade scale of pay by counting the service rendered by the petitioner in the post of Secondary Grade Teacher from 24.02.1998 to 21.07.2009 and to fix the petitioner's pay at Selection Grade Secondary Grade Teacher at the initial stage of Rs.15230 + 4300 GP in the scale of pay of Rs.9300-34800 as on 22.07.2009, together with arrears of salary including increments. Such orders shall be passed atleast within a period of four weeks from the date of receipt of a copy of this order.”8.Similarly another writ petition was allowed by this Court in W.P.No.32645 of 2018 by an order dated 16.07.2019 and aggrieved by the said order, the government filed appeal in W.A.No.3868 of 2019 and the Hon'ble Division Bench of this Court dismissed the appeal and confirmed the order passed by the learned Single Judge of this Court. In Page 6 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024fact, it is also confirmed by the Hon'ble Supreme Court of India in S.L.P.(C) No.5633 of 2021. 9.The relevant portion of the government order in G.O.Ms.No.992 Education Department dated 22.06.1979, is read as follows :-“4. The Government, have carefully examined and have decided that the relevant panchayat Union Council Establishment Rules and the relevant Tamilnadu Municipal Educational Service Rules be amended suitably to ensure the past services rendered by teacher prior to his/her resignation from one management school or from a panchayat Union school or from a Municipal School are taken in to account for the period of 10 years of service required for grant of grade. Pending issue of amendment to the panchayat union Establishment Rules and the Tamil Nadu Municipal Rules, the Government Direct that the services rendered by a teacher under all kinds of managements viz. Government panchayat, Municipal, Corporation and aided agencies and also in under the control of Director of Backward Classes of Harijan and Tribal Welfare prior to his/her resignation, termination, transfer or migration should be counted for the required period of 10 years of service for the purpose Page 7 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024granting selection grade in that post exclusing the period of breaks if any.”10.That apart, the petitioner was retransmitted to the government school from his private school. Accordingly, he was relieved from his private aided school and joined in the government school as Graduate Teacher. It is also relevant to extract the portion of the judgment rendered by the Hon'ble Division Bench of this Court in W.A.No. 3868 of 2019 dated 16.10.2020, in the case of the Secretary to State Government and anr Vs. G.Rufus David., as follows:-“14. It is evident from the aforesaid order passed by the Government that the service rendered by a Government servant, in the same service or to another service by method of recruitment by transfer, is entitled for re-fixation of pay. In Para No. 2 of the above Government Order, it has been clearly stated that the above order will be applicable to the staff employed in all recognised schools under the management of aided agencies and local bodies. Therefore, the respondent/writ petitioner, who was appointed earlier in an aided school, is entitled for the benefit of re-fixation on his appointment to the post of B.T.Assistant in Government Service. Therefore, as per the order passed Page 8 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024by the Government, mentioned supra, the service rendered by the respondent-writ petitioner in an Aided School shall be counted for the purpose of fixation of his pay on his appointment to the post of B.T. Assistant. The appointment of the respondent/writ petitioner to the post of B.T. Assistant is by way of transfer of appointment and he cannot be treated as a fresh appointee in the post of B.T. Assistant. This is also in tune with Rule 3(I)(IV) of the Special Rules for Tamil Nadu Educational Subordinate Service. In such circumstances, it cannot be contended by the appellants that the respondent's appointment as B.T. Assistant is as per his own wish and he is not entitled for protection of his pay. When the appellants have decided to count the past service of the respondent/writ petitioner for the purpose of conferment of pensionary benefits on his retirement, equally, the same yardstick has to be resorted to by the appellants for re-fixation of his pay during the course of his service as B.T. Assistant. It is to be noted that, as on 02.01.2009, when the respondent/writ petitioner was relieved, his Basic Pay was Rs.16,650 along with admissible Grade Pay. However, on his appointment to his higher post as B.T. Assistant, his pay was fixed only as Rs.14,630/- with applicable pay. On appointment to a higher post, the respondent writ petitioner cannot be deprived of re-fixation of pay, taking into account the past service Page 9 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024rendered in the Aided School. The learned Single Judge also, on appreciation of the above factual as well as legal grounds, has rightly allowed the writ petition filed by the respondent and we see no reason to interfere with the same. 11.Therefore, the petitioner who was earlier appointed in the aided school is entitled for the benefit of re-fixation of appointment to the post of B.T. Assistant in the government service. The service rendered by his in a aided school shall be counted for the purpose of fixation of pay on his appointment in the post of B.T. Assistant and his appointment in the government school cannot be treated as a fresh appointment in the post of B.T. Assistant. The above order was also confirmed by the Hon'ble Supreme Court of India in S.L.P.No.5633 of 2021 by an order dated 12.04.2021. 12.On the basis of the dictum laid down by the Hon'ble Division Bench of this Court, various similar orders have been passed by this Court. In W.P.No. 7453 of 2016 by an order dated 09.01.2023, this Court held as follows :-Page 10 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024“7. A co-joint reading of the aforesaid decisions would substantiate that when an employee of an aided school resigns from the post for the purpose of joining another Government service, he would be entitled for all the service benefits that he had carried in the erstwhile school. Consequently, he would also be entitled for revision of the pay scale in the new school by counting the past services.” 13.Further as per Rule 23(1) of the Tamil Nadu Pension Rules, resignation from a service or post entails forfeiture of past service. But the proviso says that resignation shall not entail forfeiture of past service if it has been submitted to take up with proper permission, another appointment, whether temporary or permanent, under the government where service qualifies. As far as the petitioner is concerned, he was resigned from his earlier service and he was reappointed to the government school in the same post. Therefore, his resignation shall not entail forfeiture of his past service. Page 11 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 202414.In view of the above discussions, the respondents are directed to count the petitioner's service rendered in the post of B.T. Assistant in his private aided school for fixation of selection grade of pay in the post of B.T. Assistant and fixed his initial pay on his last drawn pay and disburse the arrears of salary including the increments within a period of twelve weeks from the date of receipt of a copy of this Order. 15.With the above directions, this writ petition is allowed. Consequently, connected miscellaneous petition is closed. There shall be no orders as to costs. 31.07.2024Index : Yes/NoSpeaking/Non Speaking orderNeutral Citation : Yes/NokvPage 12 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024To1. The Principal Secretary to Government, School Education Department, Government of Tamil Nadu, Secretariat, Chennai – 600 009.2. The Director of School Education, DPI Campus, Nungambakkam, Chennai – 600 006.3. The Chief Educational Officer, Tiruppur.4. The District Educational Officer, Tirupur, Tirupur District.Page 13 of 14 https://www.mhc.tn.gov.in/judis W.P.No.21259 of 2024G.K.ILANTHIRAIYAN. J,kvW.P.No.21259 of 202431.07.2024Page 14 of 14