High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 03.10.2007 CoramThe Honourable Mr. Justice M. CHOCKALINGAMW.P. Nos.11663 to 11670 of 2004J. Daniel Nallathambi... Petitioner in WP.11663/04S. Florance Shanthakumari... Petitioner in WP.11664/04N. Baby Saroja... Petitioner in WP.11665/04R. Suvi Gnana Deepam... Petitioner in WP.11666/04B. Jeya... Petitioner in WP.11667/04K. Lakshmi... Petitioner in WP.11668/04G. Jeya Seeli... Petitioner in WP.11669/04A. Sugunadevi... Petitioner in WP.11670/04..vs..1. The Govt. of Tamil Nadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai – 600 009.2. The Director of ElementaryEducation, College Road, Chennai – 600 006.3. The District ElementaryEducational Officer, Tirunelveli, Tirunelveli Dist....Respondents 1 to 3 in all Writ PetitionsThe Correspondent,TDTA Middle School,Araikulam,Tirunelveli District....5th respondent in WP.11663/04, WP.No.11667/04The Correspondent,STC, Branch Uppar Middle School,Tirunelveli TownTirunelveli District....5th respondent in WP.11664/04 https://hcservices.ecourts.gov.in/hcservices/ The Correspondent,CMS, Mary Adren Middle School,Palayamkottai,Tirunelveli District....5th respondent in WP.11665/04The Correspondent,STC Branch, Middle School,Ambasamudram,Tirunelveli District....5th respondent in WP.11666/04The Correspondent,TDTA, Middle School,Devarkulam, MalanealithanallorSankarankoil Tk,Tirunelveli District....5th respondent in WP.11668/04The Correspondent,STC Middle School,SindupoonduraiTirunelveli District....5th respondent in WP.11669/04The Correspondent,TDTA, Middle School,Arasadi Palam, Tirunelveli Town,Tirunelveli District....5th respondent in WP.No.11670/04The Assistant Elementary Educational Officer,Palayankottai (Urban),Tirunelveli District....4th respondent in WP.No.11665/04The Assistant ElementaryEducational Officer,Ambasamundram Tirunelveli District....4th respondent in WP.No.11666/04The Assistant ElementaryEducational Officer,Palayam kottai (Rural)Tirunelveli District....4th respondent in WP.No.11663/04 and WP.11667/04 https://hcservices.ecourts.gov.in/hcservices/ The Assistant ElementaryEducational Officer,Melanealithanallor, Sankarankoil Tk,Tirunelveli. ...4th respondent in WP.No.11668/04The Assistant ElementaryEducational Officer,TirunelveliTirunelveli District....4th respondent in WP.Nos.11664/04and 11669/04The Assistant ElementaryEducational Officer,Tirunelveli (Urban)Tirunelveli District....4th respondent in WP.No.11670/04For Petitioner : Mr. K. VijayakumarFor Respondents : Mr. V. Arun, Addl. Govt. PleaderCOMMON ORDERIn all these writ petitions, the petitioners, who areHeadmasters and Headmistresses of different middle schools underthe fourth respondent-Management, have sought for a writ ofcertiorarified mandamus, to call for the records relating to theorder of the second respondent passed in Na.Ka.No.39470/EG4/2003dated 27.11.2003 and the consequential orders passed by the fourthrespondent in Na.Ka.No.294/B1/2004 dated 23.3.2004, dated18.3.2004, in Na.Ka.No.A1/2004 dated 31.1.2004, inNa.Ka.No.1624/B1/2003 dated 9.3.2004, in Na.Ka.No.294/B1/2004dated 23.3.2004, in Na.Ka.No.1535/A1/03 dated 6.2.2004, dated17.3.2004 (W.P. Nos.11663 to 11669 of 2004) respectively and quashthe same insofar as direction to respondents 3 and 4 to recoverthe Middle School Headmaster/Headmistress's pay paid to thepetitioners prior to the completion of 5 years of teachingexperience alone is concerned and the consequential re fixation ofthe petitioners' Middle School Headmaster/Headmistress pay takingnote of completion of 5 years of teaching experience only from20.3.1989, 15.6.1989, 15.3.1990, 1.10.1990, 30.9.1987, 1.7.1986,1.6.1987, 1.6.1992 respectively are concerned and consequently https://hcservices.ecourts.gov.in/hcservices/ direct the respondents to continuously pay the petitioners' payas Middle School Headmaster/Headmistress pay from 29.8.1986,15.6.1984, 15.3.1985, 2.6.1987, 3.6.1986, 4.6.1985 , 13.10.1981and 1.6.1987 respectively with all other benefits.2. Affidavits filed in support of the writ petitions andcounter affidavit are perused. The Court heard the learnedcounsel appearing on either side.3. Concededly, all these petitioners were appointed asSecondary Grade Teachers on different dates in the fifthrespondent-Management and the same was also approved. Thepetitioners were also paid salary by the department. Thereafter,they were promoted as Middle School Headmasters and Headmistresseson different dates. It is also not in controversy that as perG.O.Ms.No.1297 Education dated 27.7.1979, the promotion of allthese petitioners as Headmasters and Headmistresses was alsoapproved by the third respondent without any condition whatsoever.The scale of pay was fixed originally and the selection gradeHeadmaster's scale of pay was also given to them. Now thepetitioners are working as Headmasters and Headmistresses indifferent schools in the fifth respondent-Management.4. While the matter stood thus, the second respondenthas issued instructions to his subordinates viz. third and fourthrespondents that the salary paid earlier to the primary andmiddle school Headmasters and Headmistresses, who have beenpromoted without five years of teaching experience as recognizedunder Rule 15 Annexure V of the Tamil Nadu Recognized PrivateSchools (Regulation) Rules, 1974 without exemption from theGovernment, shall be recovered and proposals shall be submitted tothe Government for the grant of exemption and from 9.9.2002, noone shall be appointed without 5 years of teaching experience asprimary/middle school Headmasters/ Headmistresses.5. Following the instructions issued by the secondrespondent, the fourth respondent issued orders inNa.Ka.No.294/B1/2004 dated 23.3.2004, dated 18.3.2004, inNa.Ka.No.A1/2004 dated 31.1.2004, in Na.Ka.No.1624/B1/2003 dated9.3.2004, in Na.Ka.No.294/B1/2004 dated 23.3.2004, inNa.Ka.No.1535/A1/03 dated 6.2.2004, dated 17.3.2004 respectivelyand refixed the scale of pay without considering the earlierservices rendered by the petitioners and ordered recovery ofsalary and reduction of salary. Under such circumstances, thepetitioners have challenged the aforesaid orders in these writpetitions. https://hcservices.ecourts.gov.in/hcservices/

6. In support of the writ petitions, learned counselwould submit that these petitioners were originally appointed asSecondary Grade Teachers and the same was approved by the thirdrespondent. They were also promoted as Middle SchoolHeadmasters/Headmistresses in different schools under the fifthrespondent-Management. When the same was approved, no conditionwas imposed and they have been still working. Under suchcircumstances, once the approval was granted to the promotion ofthe petitioners and they have been serving, there is no questionof passing the orders under challenge. The respondents 1 to 4have not sent any communication to the fifth respondent-Managementto apply for exemption for the persons who were promoted as MiddleSchool Headmasters/Headmistresses without five years of teachingexperience.7. Learned counsel would further add that once nocondition was imposed at the time of approval of promotion andalso there is no communication or letter seeking for exemption,the order what is now passed does not have any reason and the samehas to be set aside. Learned counsel brought to the notice ofthis Court an order passed by this Court in such a situation on7.11.2002 in W.P. No.2724 of 1998.8. The Court heard the learned counsel for therespondents on the above contentions.9. It is not in controversy that these petitioners, whowere originally appointed as Secondary Grade Teachers in the fifthrespondent-Management, were subsequently promoted as Middle SchoolHeadmasters/Headmistresses and the same was also approved by thethird respondent. At the time of approval of their promotion, nocondition was imposed that they should possess five years ofteaching experience. As rightly pointed out by the learnedcounsel for the petitioners, at any point of time, in the past, nodirection was issued by the respondent-department to the fifthrespondent-Management to seek for exemption. 10. Under such circumstances, once the petitioners haveserved in the post as Headmasters/Headmistresses and furthertheir promotion was also approved without any conditionwhatsoever, the Court is at a loss to understand how thiscondition was imposed, which was not originally imposed, for thepurpose of making recovery of the salary. The salary originallypaid as per G.O.Ms.No.97 dated 5.7.2001 issued by the firstrespondent is also granted regularization in such matters. If tobe so, in equity, the amount already paid to the petitionerscannot now be recovered. https://hcservices.ecourts.gov.in/hcservices/

11. Even assuming that these petitioners were noteligible to be promoted as Headmasters/Headmistresses at therelevant time, only after the approval of their promotion, theywere working in the said capacity. Under the circumstances,equity would require that the amount of salary payable for thesaid post, which shall be paid, was accordingly paid. Hence thequestion of recovering the same cannot be permitted, irrespectiveof the fact, whether the petitioners are eligible for the highersalary or not. Hence the orders passed by the respondents arequashed and the writ petitions are ordered accordingly.Consequently, the connected W.P.M.Ps. and W.V.M.P. are closed. Nocosts.ssa.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Secretary, The Govt. of Tamil Nadu, School Education Department, Fort St. George, Chennai – 600 009.2. The Director of ElementaryEducation, College Road, Chennai – 600 006.3. The District ElementaryEducational Officer, Tirunelveli, Tirunelveli Dist.4. The Assistant Elementary Educational Officer, Palayankottai (Urban), Tirunelveli District. https://hcservices.ecourts.gov.in/hcservices/

5. The Assistant ElementaryEducational Officer,Ambasamundram Tirunelveli District.6. The Assistant ElementaryEducational Officer,Palayam kottai (Rural)Tirunelveli District.7. The Assistant ElementaryEducational Officer,Melanealithanallor, Sankarankoil Tk,Tirunelveli.8. The Assistant ElementaryEducational Officer,TirunelveliTirunelveli District.9. The Assistant ElementaryEducational Officer,Tirunelveli (Urban)Tirunelveli District.10. The Government Pleader,High Court, Madras 104.W.P. Nos.11663 to 11670 of 2004 andconnected W.P.M.Ps.and W.V.M.P.VRK(CO)RD/31.10.2007