M.DEVANATHAN v. THE DIRECTOR OF SCHOOL EDUCATIONNUNGAMBAKKAMCHENNAI 600 006

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.09.2009CORAMTHE HONOURABLE MR.JUSTICE V.DHANAPALANW.P.No.25236 of 2006& M.P.No.1 of 2006M.DEVANATHAN [ PETITIONER] Vs1.THE DIRECTOR OF SCHOOL EDUCATIONNUNGAMBAKKAMCHENNAI 600 0062.THE CHIEF EDUCATIONAL OFFICERVELLORE DISTRICTVELLORE [RESPONDENTS]Writ Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of Certiorarified Mandamuscalling for the records on the file of the Chief Educational Officer,Vellore District, Vellore, the 2nd respondent herein vide hisproceedings in Na.Ka.No.7874/Aa4/2003 dated 1.6.2006 and quash thesame as illegal, arbitrary, unreasonable being violative of rules andprinciples of natural justice and thereby direct the respondentsherein to sanction the selection grade scale of pay in the post ofTamil Pandit with effect from 1.12.1992 to the petitioner with allmonetary and service benefits.For Petitioner:Mr.A.R.SureshFor Respondents : Mr.A.Suresh, G.A.O R D E RThe prayer in the Writ Petition is to call for the records ofthe proceedings in Na.Ka.No.7874/Aa4/2003 dated 1.6.2006 passed bythe second respondent, and quash the same and for a direction on therespondents to sanction the selection grade scale of pay in the postof Tamil Pandit with effect from 1.12.1992 to the petitioner with allmonetary and service benefits.2. According to the petitioner, he is working as Tamil PanditGrade-I at the Government Higher Secondary School (Boys), Arakkonam,Vellore District. He was initially appointed as Craft Instructor on https://hcservices.ecourts.gov.in/hcservices/

1.12.1972 and upgraded to selection grade Craft Instructor on1.12.1982. Thereafter, he was promoted as Tamil Pandit with effectfrom 12.9.1989. Prior to V Pay Commission, in order to avoidfrustration in the minds of the employees, the Government of TamilNadu has decided to award selection grade/special grade of pay to theservants, to those who have completed 10/20 years of servicerespectively without any promotion and were given this benefit. Thiswas further extended to award selection grade in the promotional postby way of counting the services rendered in the lower post ofselection grade wherever the scale of pay of the selection grade inthe lower post was equal to that of ordinary grade pay of thepromotional post in the Government Order in G.O.Ms.No.210, P&ARDepartment, dated 11.3.1987 and this concession be allowed only atthe first promotional level.3. Since the ordinary grade pay of the post of TamilPandit/B.T.Assistant was Rs.1400-40-1600-50-2300-60-2600 (pre-revisedscale) and the selection grade pay of the lower post of SecondaryGrade Teacher/Craft Instructor was Rs.1400-50-2300-60-2600 (pre-revised scale), the services put in the selection grade post ofSecondary Grade Assistant were not taken into account for awardingselection grade in the promotional post and the benefits given underthe above G.O. were not extended to the teachers similarly placedlike the petitioner herein.4. The Government of Tamil Nadu had issued another order inG.O.Ms.No.238, School Education (E2) Department, dated 26.6.1998,wherein the services in the selection grade in the post of SecondaryGrade Teacher and other equivalent posts shall be counted for theaward of selection grade in B.T.Assistant/Tamil Pandit posts and thisconcession be allowed only at the first promotion level, since theincrement defers and the basic pay remains the same. Further, theGovernment issued an erratum to the above G.O.in G.O.Ms.No.24, SchoolEducation (E2) Department dated 2.2.21999, wherein it is stated thatthis order shall take effect notionally from 1.10.1984 with monetarybenefits from 1.4.1986 and the identical scale of pay between theabove categories came into force only from 1.6.1988 and this orderwill take effect from 1.6.1988. Therefore, the petitioner isentitled to award of selection grade in the post of Tamil Pandit witheffect from 1.12.1992 by taking into account the services rendered inthe post of selection grade Secondary Grade Teacher/Crafts Instructortill 11.9.1989 and in this regard he made representation to extendthe benefits and award selection grade scale of pay in the post ofTamil Pandit from 1.12.1992.5. The said benefit was extended to the petitioner and sanctionwas accorded by the second respondent by giving scale of pay in thepost of Tamil Pandit with effect from 1.12.1992 vide proceedingsdated 26.5.1999. However, this order was not implemented by therespondents for a long time and the petitioner has made https://hcservices.ecourts.gov.in/hcservices/ representations. As there was no reply from the respondents, a legalnotice was issued to the respondents. The second respondent hasissued another order in proceedings dated 26.8.2002, cancelling theearlier order. Against it, he made an appeal to the first respondenton 21.10.2002. As there was no order passed in the appeal for nearlyone year, he filed an Original Application in O.A.No.3009 of 2003before the Tamil Nadu Administrative Tribunal . As there was noPresiding Officer in the Tribunal, the petitioner filed anapplication for transfer of the above Original Application beforethis Court. Accordingly, as per the direction of this Court, theabove Original Application was transferred to this Court and wasrenumbered as W.P.No.27291 of 2005.6. This Court disposed of the above Writ Petition and passed thefollowing order:"Hence, without going into the merits of the matter, theimpugned order is set aside on the sole ground of notfollowing the principles of natural justice and the ChiefEducational Officer, Vellore is directed to pass freshorders after hearing the petitioner and taking note of therelevant Government Orders and the proceedings issued bythe Director of School Education within four weeks from thedate of receipt of a copy of this order."7. Pursuant to the above order, the second respondent had issueda show cause notice dated 23.3.2006 calling for explanation from thepetitioner within15 days as to why selection grade should not begiven with effect from 1.6.1998 by cancelling the earlier order dated26.5.1999 granting selection grade in the post of Tamil Pandit witheffect from 1.12.1992. The petitioner had submitted his explanationto the show cause notice on 6.4.2006 claiming for the award ofselection grade in the post of Tamil Pandit on the basis of theGovernment Orders. However, the second respondent has rejected theclaim of the petitioner and passed an order in Na.No.7874/Aa4/2003dated 1.6.2006. Aggrieved by the above order, the petitioner hasfiled the present Writ Petition on the grounds that the order isarbitrary, violative of Rules and principles of natural justice andthere will be serious disparity between seniors and juniors since theaward of selection grade will be from 1.6.1998 irrespective of movingto selection grade in the lower post and the promotion to the nexthigher post namely Tamil Pandit/B.T.Assistant Teacher among theTeachers will not be same and and also the order is tainted with malafides since the cancellation of the earlier order of selection gradewas immediately on receipt of the legal notice.8. The respondents have filed counter affidavit. In thecounter, it is stated that the petitioner was initially appointed asCraft Instructor on 1.12.1972. He was awarded selection grade oncompletion of 10 years of service in the post of Craft Instructor https://hcservices.ecourts.gov.in/hcservices/ with effect from 1.10.1982. Subsequently he was promoted as TamilPandit on acquiring the requisite qualification on 12.9.1989. 9. As per the Government Order in G.O.Ms.No.210, P&AR Departmentdated 11.3.1987, the services in the selection grade of the lowerpost shall be counted for awarding selection grade in the higher postprovided, the selection grade scale of pay of the lower post and theordinary grade scale of pay of the post of the higher post areidentical. The selection grade scale of pay of the Craft Instructor(lower post) and the ordinary grade scale of pay of the Tamil Pandit(Higher post) were not equal till 31.5.1988 i.e.till the introductionof revised scale of pay as per V Pay Commission which took effectfrom 1.6.1988. As per the revised scale of pay under V PayCommission, the selection grade scale of pay of lower post is fixedas Rs.1400-50-2300-60-2600 and ordinary grade scale of pay of thehigher post is fixed as Rs.1400-40-1600-50-2300-60-2600 with effectfrom 1.6.1988. It could be seen from the above pay structure thatthere is a difference in the increment stage though the starting andending of the pay is one and the same. Therefore, the Government inG.O.Ms.No.238, Education (E2) Department dated 26.6.1998 issuedclarifications and ordered that though there is a difference in theincrement stage, these two scales of pay may be considered asidentical for the purpose of awarding selection grade in the higherpost taking into account the services rendered in the selection gradepost of the lower post with effect from 1.10.1984 with monetarybenefits from 1.4.1986. In the instant case, the selection gradescale of pay of the lower post was not equal to the ordinary grade ofthe higher post during the above dates. IV PAY COMMISSION(From1.10.1984 to 31.5.1988)V PAY COMMISSION(1.6.1988 TO31.12.1995)a. Selection gradescale of pay of lowerpost705-12351400-2600b. Ordinary gradescale of pay of higherpost780-13851400-2600As illustrated above, the scale of pay became identical from1.6.1988as per V Pay Commission. As such the selection grade servicesrendered in the lower post till 31.5.1988 could not be taken intoaccount for computing 10 years of service on awarding selection gradein the Higher post as the scale of pay of these two categories werenot identical till 31.5.1988.10. In this regard, certain clarifications were sought for bythe Directorate of Education Department in regard to theimplementation of the Government Orders in G.O.Ms.No.210, P&ARDepartment dated 11.3.1987 and G.O.Ms.238, Education (E2) Departmentdated 26.6.1998 in regard to the reckoning of 10 years of service for https://hcservices.ecourts.gov.in/hcservices/ awarding selection grade in the higher post. The Government inG.O.Ms.No.38, Education Department dated 5.3.2001 have issuedclarifications in regard to the counting the period of services inthe lower post for computing 10 years of service for awardingselection grade in the higher post. Few illustrations have also beenworked out and shown in the Government Order for proper guidance andstrict adherence.Pay structure of Secondary Grade Assistant and other equal categorieslike Craft Instructor etc., and Tamil Pandits/B.T.Assistants undervarious pay commissions:Pay CommissionDate of effectSelection Gradescale of pay ofSecondary GradeAssistant/CraftInstructor etc.Ordinary Gradescale of pay ofTamil Pandits/BTAssistantsIII PayCommission1/4/78400-700450-800IV PayCommission1/10/84705-123578- 1385V Pay Commission1/6/881400-26001400-2600VI PayCommission1/10/965300-83005500-9000Therefore, it could be vividly seen from the above pay structure, theselection grade scale of pay of the lower posts were not identicaltill 31.5.1988 and became identical only during V Pay Commissioni.e.from 1.6.1988 to 31.12.1995. Therefore the Government haveordered to count the services from 1.6.1988 to 31.12.1995 only forthe purpose of computing 10 years of service in the higher post. Theservice details of the petitioner are furnished hereunder for favourof perusal:i)Date of selection grade in the lower post(Craft Instructor)01.12.1982ii)Date of promotion as Tamil Pandit(Higher post)12.09.1989iii)Period of service for which the S.G.of the lower post and O.G.of the higher postare equal which could be counted forY M DS.G.in the higher post 1.6.1988 to 11.9.19891 3 11 https://hcservices.ecourts.gov.in/hcservices/ iv)Date of promotion to higher post12.09.1989v)Remaining period of service renderedin the higher post for computing Y M D10 years of service i.e., from 12.9.1989 to 31.5.19888 8 19vi)Eligible date for awarding selection grade in the higher postas per G.O.Ms.No.38, Edn.,dated 5.3.200101.06.1998Therefore, as per the G.O.Ms.No.38, Education Department dated5.3.2001, the selection grade issued to the petitioner with effectfrom 1.12.1992 was cancelled vide proceedings dated 26.9.2002. It isalso stated that the Original Application in O.A.No.3009 of 2003 wastransferred to this Court and was renumbered as W.P.No.27291 of 2005and an order was passed by this Court on 15.2.2006 and thereafteronly the respondent has issued the show cause notice and explanationwas called for on the relevant facts. Therefore, the claim of thepetitioner cannot be sustainable in the light of the Government Orderin G.O.Ms.No.38, Education Department dated 5.3.2001 and prayed fordismissal of the Writ Petition.11. On the above background of the pleadings, I have heardMr.A.R.Suresh, learned counsel for the petitioner and Mr.A.Suresh,learned Government Advocate for the respondents.12. A strenuous contention has been raised by the learnedcounsel for the petitioner that the Government Order in G.O.Ms.238 isbeneficial in nature. Therefore, the Government, on examination ofthe entire issue with regard to the scale of pay of selection gradeSecondary Grade Teacher and ordinary grade B.T.Assistant/Tamil Panditcame to the conclusion that it cannot be treated as identical asthere is difference in increments rates and therefore, clarified bydirecting the authorities that the service in the selection grade inthe Secondary Grade Teacher and other equivalent posts shall becounted for the award of selection grade in B.T.Assitant/Tamil Panditpost and that this concession be allowed only at the first promotionlevel and G.O.Ms.No.210 P&AR Department dated 11.3.1987 would nothave effect in the petitioner's case. The learned counsel furtherwould contend that even though the respondents have stated in thecounter that based on the Government Order in G.O.Ms.No.38,Education Department, dated 5.3.2001, the impugned order was passed,the aforesaid G.O. has not been referred to in the impugned order.Therefore, the decision of the authority is arbitrary and with totalnon-application of mind.13. Per contra, the learned Government Advocate for therespondent would contend that the subsequent clarification made in https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.38, Education Department dated 5.3.2001 is the basis onwhich the selection grade granted to the petitioner has beencancelled by the second respondent on 26.9.2002 and thatclarification is of the recent one. Therefore, based on theclarification in the aforesaid Government Order, the secondrespondent has passed the impugned order. There is no infirmity inthe order passed by the second respondent.14. In the light of the above submissions, it is to be seen thatthe petitioner was appointed as Craft Instructor on 1.12.1972 andpromoted as Tamil Pandit on acquiring the requisite qualification on12.9.1989. Before that, he was awarded selection grade on completionof 10 years of service in the post of Craft Instructor with effectfrom 1.10.1982. It is also seen that the second respondent haspassed an order on 26.5.1999, by which the petitioner has beengranted the benefit of selection grade in the post of Tamil Panditwith effect from 1.12.1992. Thereafter, on issuance of a legalnotice, the second respondent has passed the order on 26.9.2002,cancelling the earlier order dated 26.5.1999. The petitionerchallenged the said proceedings in W.P.No.27291 of 2005 and thisCourt set aside the order of the second respondent dated 26.9.2002 onthe sole ground of not following the principles of natural justiceand directed the second respondent to pass fresh orders after hearingthe petitioner and taking note of the relevant Government Orders andthe proceedings issued by the Director of School Education withinfour weeks from the date of receipt of that order. Based on theabove order of this Court, the second respondent has issued showcause notice. Thereafter, the petitioner has submitted hisexplanation. Pursuant to that the second respondent has passed theimpugned order on 1.6.2006.15. A perusal of the impugned order would show that the order ofthe Government in G.O.Ms.No.210 P& AR Department dated 11.3.1987 hasmade clear that the services in the selection grade of the lower postshall be counted for the selection grade in the promoted postprovided that the selection grade scale of the lower post isidentical to the ordinary grade of the higher post and thatconcession be allowed only at the first promotion level.Subsequently, the Government in G.O.Ms.238, considered the questionwith regard to counting of services rendered in the selection gradeof the Secondary Grade Teacher post for the award of selection gradein the post of B.T.Assistant/Tamil Pandit and following orders havebeen passed:"2. Representations have been received from the TeachersAssociation that the Secondary Grade Teachers andequivalent categories on rendering 10 years of servicemoved to selection grade in the scale of pay of Rs.1400-50-2300-60-2600 (pre-revised scale). After rendering one ortwo years of service in the selection grade when promoted https://hcservices.ecourts.gov.in/hcservices/ to a higher post viz., either as B.T.Assistant or as TamilPandit such teacher's pay is fixed in the scale of pay of1400-40-1600-50-2300-60-2600 Pre-revised scale). Theservices put in the selection grade post of Secondary GradeTeachers are not taken into account for awarding selectiongrade in the promoted post (i.e) B.T. Or Tamil Pandit.Instead for such teachers the selection grade is beingawarded in the higher post only after rendering 10 years ofservice and their pay fixed in the scale of Rs.1640-60-2600-75-2900 (Pre-revised scale) had they continued in thepost of selection grade Secondary Grade Teachers itselfthey will move to Special Grade earlier on completing 10years of service in the scale of Rs.1640-60-2600-75-2900(Pre-revised scale). As the scale of pay in the selectiongrade of the lower post and the ordinary grade of thepromoted post starts from Rs.1400 and ends at Rs.2600 (pre-revised scale) they have represented that they may beconsidered as identical scales and to pass suitable ordersto count the services of selection grade in the lower postfor awarding selection grade in the higher post as wasgranted in the Government Order first read above.3. The Government have examined the matter in detailwith the Director of School Education, Chennai 6. The scaleof pay of selection grade Secondary Grade Teacher andordinary grade B.T.Assistant/Tamil Pandit cannot be treatedas identical as there is difference in increments rates.But, however the selection grade scale of pay of SecondaryGrade Teachers (i.e) Rs.1400-50-2300-60-2600 (pre-revisedscale) is higher than the ordinary grade scale of pay ofB.T.Assistant/Tamil Pandi which is Rs.1400-40-1600-50-2300-60-2600 (Pre-revised scale). The Government have thereforedecided to accept the request as a special case.4. They accordingly direct that the service in theselection grade in the Secondary Grade Teachers and otherequivalent posts shall be counted for the award ofselection grade in B.T.Assitant/Tamil Pandit post and thatthis concession be allowed only at the first promotionlevel ."16. From the above Rulings of the Government Order, it wouldreveal that it is not the case that the service in the selectiongrade of the lower post shall be counted for the selection grade inthe promoted post, provided that selection grade of the lower post isidentical with that of the ordinary grade of the higher post. Thatposition has been clarified in G.O.Ms.238 dated 26.6.1998, when thereis a difference in increment rates. Hence, the selection grade ofSecondary Grade Teachers and ordinary grade of B.T.Assistant(promoted post) cannot be treated as identical, as there is a https://hcservices.ecourts.gov.in/hcservices/ difference in increment rates. Therefore, the Government havedirected that the service in the selection grade in the SecondaryGrade Teachers and other equivalent posts shall be counted for theaward of selection grade in B.T.Assistant/Tamil Pandit post and thatthis concession be allowed only at the first promotion level .17. From the scrutiny of the impugned order, it would revealthat the impugned order is passed based on the Government Orders inG.O.Ms.No.210, dated 11.3.1987 and G.O.Ms.238, dated 26.9.1998.But, now the respondents in the counter stated that the impugnedorder, cancelling the earlier order, is passed based on theGovernment Order in G.O.Ms.No.38, dated 5.3.2001, which is notreferred to in the impugned order. Therefore, the respondent'sconclusion that based on the Government Order in G.O.Ms.No.38, dated5.3.2001, the impugned order was passed, without reference to it andthe decision made thereon by the respondent, cannot be a ground toreject the claim of the petitioner and the benefit given by theGovernment in G.O.Ms.238, School Education (E2) Department, dated26.6.1998 has to be taken into account. The reason assigned by therespondent in the impugned order that in this case where the scale ofpay of the selection grade in the lower category of Secondary GradeTeacher as well as the ordinary grade in the promoted post inB.T.Assistant/Tamil Pandit were identical only during V PayCommission i.e., from 1.6.1988 to 31.12.1995, the selection gradegranted to the petitioner with effect from 1.10.1992 was cancelled onthe basis of G.O.Ms.No.38, Education Department dated 5.3.2001 cannotbe accepted. Therefore, the impugned order is passed withoutapplication of mind and without looking into the orders of theGovernment in force and it suffers from legal infirmity. 18. In the light of the above discussion and analysing theprovisions of law and the various Government Orders, the impugnedorders are infirm and cannot be sustained. Therefore, the impugnedorder passed by the second respondent dated 1.6.2006 is set aside andthe respondents are directed to consider the claim of the petitionerin accordance with the G.O.Ms.238, Education (E2) Department dated26.6.1998 and pass appropriate orders within a period of twelve weeksfrom the date of receipt of a copy of this order.19. The Writ Petition is allowed. No costs. The connectedMiscellaneous Petition is closed.Sd/-Deputy Registrar/True Copy/Sub.Asst.Registrarajr https://hcservices.ecourts.gov.in/hcservices/ To1.THE DIRECTOR OF SCHOOL EDUCATIONNUNGAMBAKKAMCHENNAI 600 0062.THE CHIEF EDUCATIONAL OFFICERVELLORE DISTRICTVELLORE+ 1 CC to Mr.A.R.Suresh,Advocate,SR.46021+ 1 CC to Government Pleader,SR.45588W.P.No.25236 of 2006NM(CO)EM/30.9