G.R. Inbaraj vs The State of Tamil Nadu

B. Rajendran, J.—The writ appeal has been filed against R.A.(MD) No. 8 of 2007 in W.P. No. 4978 of 2005. Since the petitioner in W.P.

No. 4978 of 2005 is dead, her husband filed an application to accept the cause title and cause title has been accepted vide Order dated

19.02.2008.

Originally, the writ petitioner and various other petitioners have filed O.As before the Tamil Nadu Administrative Tribunal seeking the benefit

under G.O.Ms. No. 1381, Education Department, dated 05.10.1990. The Tribunal originally granted order in their favour. The operative portion

of the order passed in that Original Application, in O.A. No. 587 of 1997 batch of cases, dated 20.03.2002, is as follows:

The petitioners are Headmasters, promoted in the said post after 01.06.1988 in the schools run by Kallar Reclamation Department. Their claim

is that they should be given Selection Grade and Special Grade after taking into the service as Secondary Grade Teachers before and after

01.06.1988 along with the service rendered as Headmasters of Elementary Schools. They claim the benefits as per G.O.Ms. No. 1381, Education

Department dated 05.10.1990 issued in respect of other Elementary Schools coming under the control of Director Elementary Education.

Similar Original Applications have been filed in a batch of cases in O.A. Nos. 3745 and 3911 of 1992 etc., wherein I have passed orders on

19.3.2002 allowing them following the earlier orders of this Tribunal. The facts are identical.

In the circumstances, the petitioners are also entitled for the same benefits. Therefore, the petitions are allowed. The petitioners shall be granted

Selection Grade and Special Grade after taking into account the service rendered by them in the Secondary Grade Cadre along with the service

rendered as Elementary School Headmasters before and after 01.06.1988. The petitions are ordered as above.

In view of the Tribunal order was not complied with, the writ petitioner filed a writ petition in W.P. No. 4978 of 2005 to implement the order of

the Tribunal and this Court granted an order to comply with that order within a time frame of twelve weeks from the date of receipt of a copy of

that order. Even though the direction was given in the said writ petition, since the Government did not comply with the order, a contempt petition

was also filed by the writ petitioner. In view of the pendency of the Contempt Petition, the Government filed a Review Application in R.A. No. 8

of 2007. Similarly, in various other petitions also Review Applications were filed and in one more case a contempt was filed and all these

applications, namely, the review applications and the contempt applications were all taken up together and a common order was passed allowing

the review applications and setting aside the order of direction to implement the Tribunal order and consequently, the Tribunal order itself was set

aside and in view of that the contempt petitions also were dismissed. The appellant is one of the petitioners in the Tribunal and the writ petitioner

who has also filed the contempt application has come forward with this writ appeal challenging the order of the learned Single Judge, allowing the

review application and thereby setting aside the Tribunal order itself.

The main contention of the writ appellant is that the learned Single Judge has failed to note that by reviewing the order in the Writ Petition, the

learned Judge has literally set aside the order of the Tribunal itself. Even though it is submitted that the Tribunal itself has been abolished, without an

application to set aside the condonation delay, the present review application setting aside the original order is not legally sustainable and therefore,

he has preferred the writ appeal.

We have heard both parties.

The facts of the case is important to decide the very question involved in this writ appeal. Originally, the Government issued a Government

Order in G.O.Ms. 1381, Education Department, dated 05.10.1990. By the said Government Order, the Government directed the Headmasters of

Primary Schools under the Government, local bodies and all kind of managements, who were in position as on 1.6.1988, to award Special Grade

and Selection Grade in the revised scales on or after 1.6.1988 considering period of service rendered as Secondary Grade Teachers as well as

Primary School Headmasters prior to 1.6.1988. Since the Government''s G.O. dated 1.6.1988, the post of Headmasters carries a higher scale of

pay than that of the Secondary Grade Teacher those who are promoted as Headmasters after 1.6.1988 were permitted to have their fixation of

pay in the post of Headmasters as provided under Fundamental Rule 22(b).

It must be stated here that before 1.6.1988, the Headmasters of Primary Schools run by the Government were not given separate scale of pay

and the senior most teacher was made as a Headmaster only with a meager personal pay attached to the said individual. In view of the onerous of

duties imposed on the headmasters, many teachers were not willing to shoulder the responsibility as the personal pay granted was a negligible

amount and hence there was no clamour for getting the said post. However, after the Pay Commission''s recommendation fixing a new scale of pay

for the post of Headmasters, there was a clamour to get the said scale of pay so that it also helped in getting both the senior scale of pay and

selection grade pay irrespective of the fact whether they were holding the post of Headmasters or not.

Therefore, when Original Applications were filed before the Tamil Nadu Administrative Tribunal challenging the Government Order dated

1.6.1988 prescribed in G.O.Ms. No. 1381, Education Department dated 5.10.1990, the contention therein was that those persons who were

eligible to get promotions before 1.6.1988 but due to fortituous circumstances, they were not promoted as on 1.6.1988 as Headmasters and there

were juniors who happened to hold the post of Headmasters were given benefits of G.O.,. There were 3 cases in this category viz., O.A. No.

2897, 3009 and 3010 of 1991.

The Tribunal accepting the arguments of the applicants in those three applications, set aside the Government Order by stating that it prescribed a

differential treatment to the same categories of teachers. Therefore, the order in G.O.Ms. No. 1381, Education Department dated 5.10.1990 was

quashed. The operative portion of the order reads as follows:

...The only course available to the Court would be to quash the entire provision and required the Government to re-examine the matter and evolve

a policy which does not involve a classification not conforming to the constitutional provisions, as well as the test of fairness, which should govern

all administrative action. Accordingly, paragraphs 3 and 4 of G.O.Ms. No. 1381 Education Department dated 5.10.1990 are quashed. The

Government is directed to re-examine the matter to evolve a rational basis for fixation of pay of headmasters of elementary schools taking into

account service of the individuals in different capacities, the circumstances of their appointment and the need to ensure uniform treatment of all

persons in the cadre without any element of arbitrariness or irrationality.

Subsequent to this order, the matter was not challenged by the State but G.O.Ms. No. 300, Education, Science and Technology Department,

dated 7.4.1994 was issued. Paras 3, 4 and 5 of the said order are extracted below:

Government have carefully examined the observations of the Tamil Nadu Administrative Tribunal and decided to accept the suggestion that

Selection Grade and Special Grade for Headmaster, Primary School should be granted based on the service rendered in the post of Headmaster,

Primary School alone. Accordingly, Government direct that the orders issued in the G.O read above shall stand cancelled.

Government direct that Headmasters of primary School be awarded Selection Grade and Special Grade based on the length of service

rendered in the post of Headmaster, Primary School. Government further direct that in respect of all these Headmaster of Primary School who

have already availed the benefit of Selection Grade/Special Grade as per the orders issued in G.O.Ms. No. 1381, Education Department, dt.

5.10.90 by counting the service in the post of Secondary Grade Teacher and Headmaster, Primary School, they shall be allowed to retain their

pay now drawn and fixed at the appropriate stage in the ordinary Grade or Selection Grade Scales of pay and fixed at the appropriate stage in the

ordinary Grade of Selection Grade scales of pay normally admissible to them as Headmaster, Primary School. Accordingly, a Secondary Grade

Teacher entitled for special Grade Scale of Rs. 1640-2900 in the post of Secondary grade Teacher and acted as Headmaster, Primary School on

1.6.88 and allowed fixation of pay in the Special grade scale of Rs. 2000-3200 admissible to Headmaster, Primary School shall be allowed to

retain that pay in the Special Grade Scale of Secondary Grade Teachers, viz. Rs. 1640-2900. This fixation shall be made with effect from 1st May

1994. Illustrations are given in the Annexure to this order.

Government also direct that those seniors promoted to the post of Headmaster, Primary School after 1.6.88 shall have no claim over the pay of

juniors who were given pay protection as per these orders. Further, there may be cases where a junior would be moved to Selection Grade or

Special Grade further, because of more number of years of service as headmaster, Primary School compared as a senior who would be entitled

for Selection Grade or Special Grade in the post of Headmaster, Primary School from a later date for the reason he would have rendered lesser

number of years of service as Headmaster, Primary School. In this case, the junior would be getting more pay than his seniors. Government direct

that these cases of Junior getting more pay than senior should Act be rectified as movement to Selection Grade/Special Grade is based on the

length of service in the post of headmaster, Primary School and not with reference to the total service as Secondary Grade Teacher and

headmaster, primary School.

The Director of Elementary Education is requested to take immediate action to arrange for re-fixation of pay of all Headmasters, Primary

Schools per those orders. The departmental audit shall undertake audit of pay fixation of the Headmasters of Primary Schools.

Subsequently, several orders were issued by the Government with reference to the same subject. The last being G.O.Ms. No. 185, School

Education Department 16.12.2002 and G.O.Ms. No. 160 dated 23.8.2005. In the meanwhile, a batch of O.As were filed by contesting

respondents being the first applicant (K. Saroja - Writ appellant) O.A. No. 587 of 1997 (the present Contempt Petitioner in Contempt Petition

(MD) No. 237 of 2005). All these contesting respondents are working in various Schools run under the control of the second and third

respondents. These Original Applications were filed with a view to enforce G.O.Ms. No. 1381, Education Department dated 5.10.1990. The

Tribunal in its order dated 20.3.2002 extracted the prayer of the petitioner in para 2 of its order, which is as follows:

The petitioners are Headmasters, promoted in the said post after 1.6.1988 in the schools run by Kallar Reclamation Department. Their claim is

that they should be given selection grade and special grade after taking into the service as Secondary Grade Teachers before and after 1.6.1988

along with the service rendered as Headmasters of Elementary Schools. They claim the benefits as per G.O.Ms. No. 1381, Education

Department, dated 5.10.1990 issued in respect of other Elementary Schools running under the control of Director of Elementary Education.

In the operative portion viz., para 3 of the order, the Tribunal granted relief, which is as follows:

In the circumstances, the petitioners are also entitled for the same benefits. Therefore, the petitions are allowed. The petitioners shall be granted

selection grade and special grade after taking into account the service rendered by them in the secondary grade cadre along with the service

rendered as Elementary School Headmasters before and after 1.6.1988. The petitions are ordered as above.

In fact, for enforcing this order only, Writ Petitions were filed by the respective contesting respondents and they were allowed by this Court.

Aggrieved by the same, the present Review Petitions have been filed by the State and two Contempt Petitions have been filed by two contesting

respondents.

Therefore, from the facts, it is very clear that the writ petitioner and other petitioners filed the application before the Tribunal for implementation

of their needs as per G.O.Ms. No. 1381, Education Department, dated 05.10.1990, which is originally filed in the year 1997 and finally disposed

of on 23.02.2002. It is very clear that the said Government Order is not in existence at all even on the date of filing of the original O.A. itself. It is

pertinent to point out here that the G.O.Ms. No. 1381, Education Department, dated 05.10.1990, was struck down as early as on 24.09.1993

itself. As rightly pointed out by the learned Single Judge, this vital factor was not brought to the notice of this Court when the direction petition was

filed directing the Government to implement the order.

Further more, the petitioner knowing fully well that the said Government Order was quashed even in the year 1993, had filed this application

only in the year 1997. That apart, when the orders were finally passed in March 2002, subsequent various Government Orders and clarifications

have also been issued without looking into all these thing, the Tribunal was asked to pass an order and Tribunal taking into consideration the

judicial discipline has simply followed the earlier order. Therefore, neither the petitioner nor the Government Advocate brought to the notice of the

Tribunal that quashing of the said Government Order itself, as rightly pointed out by the Single Judge the Tribunal has only followed its previous

order. Admittedly, when the earlier order was passed, the said Government Order was alive. The Tribunal has to necessarily follow its earlier

order following the judicial discipline as per the decisions of the Supreme Court reported in K. Ajit Babu and others Vs. Union of India and others,

under this ruling, even the Tribunal has to follow the Doctrine of Precedent. The Doctrine of Precedent is applicable to the Central Administrative

Tribunal also. In fact, when the Tribunal order was passed in 2002, the G.O.Ms. No. 185, School Education Department, dated 16.12.2002, has

come into force and subsequently when the writ petition for implementation filed in W.P. No. 4978 of 2005 consequential order in G.O.Ms. No.

160, School Education Department, dated 23.08.2005 had also come into force. In this Government Order, it is also specifically made clear that

inasmuch as the G.O.Ms. No. 1381, Education Department, dated 05.10.1990, was already set aside by the Tribunal, no Headmasters of any

Elementary School can have their wages fixed in terms of the said Government Order. As rightly pointed out by the learned Single Judge,

unfortunately, all these factors were not brought to the notice of this Court when this Court issued direction to the Government to implement the

order of the Tribunal which was only on the basis of the non-existence of G.O.Ms. No. 1381, Education Department, 05.10.1990. The only

ground which is now raised by the appellant is in some cases, orders of the Tribunal have already been given effect to at least two cases have been

brought to the notice of this Court by the appellant. It is also made clear by the Government that such orders were passed only in respect of that

particular case and it cannot be taken as precedent as the orders were passed pursuant to the contempt application pending in Court.

The appellant would also submit that by allowing the review application, the learned Single Judge literally allowed and set aside the Tribunal

order. Whereas, the review is only in respect of the writ petition. This question has been clearly answered by the learned Single Judge himself in the

order that ""this Court must give complete and effective justice so that the vagaries of the lower Courts'' order should not be a burden on the State

to implement mutually contradictory orders"" following the decision in A.R. Antulay Vs. R.S. Nayak and Another, , the Constitution Bench of the

Supreme Court already vide its decision dealt with the concept of ""ex debito justitiae"" and also relying on the decision reported in Goodwill Paint

and Chemical Industry Vs. Union of India and another, which dealt with the power of the Courts including the power under Article 226 of the

Constitution.

As rightly held that when the writ appellant did not challenge the consequent orders made in G.O.Ms. No. 185 and G.O.Ms. No. 160, it is not

open to him to rely upon the G.O.Ms. No. 1381. Furthermore, the learned Single Judge has categorically stated that there was no Tribunal at all

when the Tribunal had already been abolished and a direction issued by this Court in the Writ Petition, which is only to implement the order of the

Tribunal. This Court clearly found out that the Tribunal order itself has become nullity. Inasmuch as the very G.O. was not in existence on that date

when the order was passed, naturally, the writ petition order was set aside and consequently, the original order stands cancelled. Therefore, the

argument of the appellant that indirectly we are cancelling the Tribunal''s order without application is baseless. Inasmuch as the Tribunal order

which is sought to be implemented itself has been proved to be a nullity, this Court can definitely under Article 226 has the power to strike down

the same. The petitioner has not come to Court with clean hands. The very purpose of the filing of this application before the Tribunal after the

order have been quashed clearly makes the appellant ineligible to seek any relief much less the remedy as he sought for. Therefore, the review

application was rightly allowed by the Single Judge and we do not find any reason to interfere with the orders of the Single Judge.

In the result, the Writ Appeal is dismissed. Consequently, connected miscellaneous petition is closed. No costs.