Judgment · High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.12.2009CORAM:THE HONOURABLE MR.JUSTICE R.SUDHAKARW.P.No.13564 of 2004P.Jubilee Chella Sundari ... Petitioner. Vs.

The Government of Tamil Nadu, Rep. by its Secretary, School Education Department, Fort St. Geroge, Chennai – 600 009.

The Director of Elementary Education, College Road, Chennai – 600 006.

The District Elementary Educational Officer, Tirunelveli, Tirunelveli District.

The Additional Assistant Elementary Educational Officer, Kurivikkulam, Tirunelveli District.

The Correspondent, TDTA Middle School, Sayamalai, Kalugumali Post Tirunelveli District., Pin. - 628 552. ... Respondents.PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling forthe records relating to the order of the 2nd respondent issued inNa.Ka.No.39470/EG4/2003, dated 27.11.2003, and the consequentialorder directing refixation made by the 4th respondent in hisproceedings Na.Ka.No.1154/A1/2003 dated 03.03.2004 and quash the same https://hcservices.ecourts.gov.in/hcservices/ in so far as the direction to respondents 3 and 4 to recover the Middle School Headmistress pay paid to the petitioner prior to thecompletion of 5 years of teaching experience alone is concerned andthe consequential direction to refix of the petitioner's MiddleSchool Headmistress pay taking note of completion of 5 years ofteaching experience only from 28.06.1988 is concerned andconsequently direct the respondents to continuously pay thepetitioner's pay as Middle School Headmistress pay from 28.06.1983 to April 2004 with all other benefits. For Petitioner : Mr.K.Ravichandrababu For Respondents : Mrs.C.K.Vishnupriya Additional Government Pleader

O R D E RThe Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the orderof the 2nd respondent issued in Na.Ka.No.39470/EG4/2003, dated27.11.2003, and the consequential order directing refixation made bythe 4th respondent in his proceedings Na.Ka.No.1154/A1/2003 dated03.03.2004 and quash the same in so far as the direction torespondents 3 and 4 to recover the Middle School Headmistress paypaid to the petitioner prior to the completion of 5 years of teachingexperience alone is concerned and the consequential direction torefix of the petitioner's Middle School Headmistress pay taking noteof completion of 5 years of teaching experience only from 28.06.1988is concerned and consequently direct the respondents to continuouslypay the petitioner's pay as Middle School Headmistress pay from28.06.1983 to April 2004 with all other benefits.

2. The petitioner was appointed as a Headmistress on28.06.1983 in the 5th respondent Middle school. The promotion ofthe Middle School Headmistress was approved by the competentauthority and was paid the salary as applicable and all otherbenefits granted from time to time. 3. The second respondent by his proceedingsNa.Ka.No.39470/EG4/2003, dated 27.11.2003 gave instruction to the Subordinate Officers namely respondents 3 and 4 to the effect thatthe Primary and Middle School teachers who were promoted andappointed as Headmasters/Headmistress without five years of teachingexperience in terms of Rule 15 Annexure V of the Tamil NaduRecognized Private School (Regulation) Rules 1974, will not beentitled to the higher salary as applicable to Headmaster/Headmistress and the higher salary paid shall be https://hcservices.ecourts.gov.in/hcservices/ recovered. However, the second respondent gave an option to theschool authorities to send the proposal to the Government forexemption.

Based on the proceedings of the second respondent dated27.11.2003, the 4th respondent issued instruction on 03.03.2004 inNa.Ka.No.1154/A1/2003 for re fixing the scale of pay applicable to Headmaster/Headmistress from the period on completion of 5 years andordered recovery of the salary and other allowances paid beforecompletion of five years. Challenging the same the present writpetition has been filed. 4. In the case of similarly placed Headmistress, this Court, by an order dated 10.06.2009 passed in W.P.No.24763/2005, set asidethe proceedings of the second respondent, the Director of ElementaryEducation and consequential order passed by the 4th respondent, the Assistant Elementary Education Officer. The relevant portion of thedecision reads as follows: "5. The petitioner in this case has worked as Headmistress for more than nine years and therespondents have approved her appointment. Therespondent was aware of the appointment and thepetitioner was paid the salary and other benefitswithout any demur. The order of appointment andapproval has not been cancelled or annulled. It isstill in force. The petitioner has performed the dutyof Headmistress and she is being paid for the same.

The Honourable Supreme Court in the case of Shyam Baby Verma Vs. Union of India reports in (1994)2 SC 521 has held that petitioner having receivedhigher scale of pay due to no fault on them, it isonly fit and proper not to recover any excess amountalready paid. This has been followed by this Court inseveral cases and the authorities have accepted theverdict.

The petitioner in this case worked in thecapacity of Headmistress for more than nine years andfor which service salary applicable to the said posthas been paid without demur. There is nojustification for recovery of the amount andrefixation of pay. The order of appointment isapproved by the authority and it is not cancelled orannulled. There is no misrepresentation ormisstatement by the petitioner. The petitioner hasperformed the duties of the Headmistress and has been https://hcservices.ecourts.gov.in/hcservices/ paid the salary applicable to the post. In suchcircumstances, the order impugned in this writpetition cannot be sustained. Therefore refixation ofpay does not arise. The impugned order is set aside. The writ petition is allowed. " The present case squarely falls within the scope of the above saidorder on all aspects and the impugned proceedings have to be setaside and the petitioner is entitled to the relief as sought for. 5. In view of the above, the impugned proceedings are set asideand the writ petition is allowed as prayed for with the consequentialbenefits. No costs.vsm Sd/- Asst. Registrar/True Copy/ Sub. Asst. RegistrarTo1.The Secretary, Government of Tamil Nadu, School Education Department, Fort St. Geroge, Chennai – 600 009.2.The Director of Elementary Education, College Road, Chennai – 600 006.3.The District Elementary Educational Officer, Tirunelveli, Tirunelveli District. 4. The Additional Assistant Elementary Educational Officer, Kurivikkulam, Tirunelveli District. 5. The Secretary, Veerappa Hindu Middle School, Malayan Kulam, Chidambarapuram Post, Sankaran Koil Taluk, Tirunelveli District. + 1 cc to Mr. K. Vijakumar, Advocate SR.66634 W.P.No.13564 of 2004MDR(CO)EU 22.12.2009.