K. Alli vs The State of Tamil Nadu

N. Paul Vasanthakumar, J.—These writ petitions are filed to consider the representation of the petitioner(s) dated 09.1.2013 seeking grant of Selection/Special Grade on completion of 10/20 years of service taking into account their service from the date of first appointment as Primary School Headmaster prior to 01.6.1988 as per the orders issued in G.O. Ms. No. 202 School Education (G2) Department, dated 24.9.2008 and revise the fixation of pay and pensionary benefits accordingly in the light of the orders issued by this Court in W.P. Nos. 23975 to 23980 of 2012 dt. 4.9.2012.

Heard Mr. K.R.Gunashekar, learned counsel appearing for the petitioner(s) and Mr. V.Subbiah, learned Special Government Pleader appearing for the respondents.

Brief facts for disposal of these writ petitions are as follows:-

(i) The petitioner''s husband in W.P. No. 8780 of 2013 viz., E.Kumaravelu was appointed as Secondary Grade Assistant at Panchayat Union School on 18.2.1971 and worked in the same position up to 17.6.1974 and was promoted as Primary School Headmaster on 18.6.1974 and worked as Primary School Headmaster till 24.10.1982. Thereafter, he was transferred and posted as Secondary Grade Teacher, as there was no salary difference and worked in that capacity from 25.10.1982 to 11.7.1999. Again, he was promoted as Primary School Headmaster from 12.7.1999 and worked as Headmaster in Primary School from 12.7.1999 till his death on 06.6.2003. Thus, he served for 32 years without any blemish in the Elementary Education Department.

(ii) The petitioner in W.P. No. 8747 of 2013 was appointed as Secondary Grade Assistant at Panchayat Union Primary School on 15.10.1973 and worked upto 31.8.1978. He was promoted as Primary School Headmaster on 1.9.1978 and worked as Primary School Headmaster till 21.10.1982. Thereafter, the petitioner was transferred and posted as Secondary Grade Teacher and worked in that capacity from 22.10.1982 to 17.6.2001. Again, the petitioner was promoted as Headmaster in Primary School and from 18.6.2001 till the date of his retirement, he served as Primary School Headmaster i.e. upto 31.8.2005. The petitioner had completed nearly 32 years of unblemished continuous service in Elementary Education Department.

(iii) The common case of petitioners is that Government has issued G.O. Ms. No. 202 School Education (G2) Department dated 24.9.2008, as per which those who worked as Primary School Headmaster prior to 1.6.1988 and subsequently, transferred and joined as Secondary Grade Teachers in Panchayat Union, should be treated to have worked as Primary School Headmaster from the date of their joining in the Panchayat Union. Therefore, the petitioners have filed these writ petitions to extend the benefit of G.O. Ms. No. 202 School Education Department, dated 24.9.2008.

The 3rd respondent in W.P. No. 8747 of 2013 has filed counter-affidavit stating that as G.O. Ms. No. 202, dated 24.9.2008 was issued for the teachers those who have transferred from one Panchayat Union to another Panchayat Union from the post of Primary School Headmaster to Secondary Grade Teachers. The petitioner in W.P. No. 8747 of 2013 and the petitioner''s husband in W.P. No. 8780 of 2013 are not entitled to the benefits of the said G.O., as their appointment and retirement were in same Panchayat Union.

The learned counsel appearing for the petitioner(s) would contend that prior to 01.06.1988, there is no difference in the scale of pay between the posts of Secondary Grade Assistant and Primary School Headmaster and after the implementation of V Pay Commission, lot of pay anomalies arose and taking into consideration the said aspect, the Government Order in G.O. Ms. No. 202, School Education (G2) Department, dated 24.09.2008, came to be passed thereby bringing those persons working at that time as Secondary Grade Teachers on par with the scale of pay of the Primary School Headmasters. The learned counsel for petitioner(s) also relied upon the order passed by the learned single Judge in W.P.Nos.23975 to 23980 of 2012 dated 4.9.2012 where benefits of G.O. Ms. No. 202 dated 24.9.2008 was extended to the petitioners therein.

We have also heard the submissions of learned Special Government Pleader, who reiterates the averments made in the counter-affidavit filed in W.P. No. 8747 of 2013.

It is an admitted fact that prior to 01.06.1988, the scale of pay of Secondary Grade Assistant as well as the Primary School Headmaster was one and the same and a perusal of the Government Order in G.O. Ms. No. 202, School Education (G2) Department, dated 24.09.2008, particularly, paragraph No. 4 of the said order, would disclose that even though the Headmasters, who worked before 01.06.1988, were transferred and joined in the Union to which they had been transferred as the intermediate teachers, have to be treated as the Headmaster of the Elementary School from the date of joining of the Union to which they were transferred and some of them made a challenge to the said proceedings and obtained orders and the persons, who have not obtained orders, the service period of all of them will be calculated before 01.06.1988 and as per the Government Order in No. 666, Finance Department, dated 27.06.1989, as per the recommendation of the V Pay Commission, selection grade/special grade shall be granted and pay may be fixed for them accordingly.

A Division Bench of this Court, in the unreported judgment, dated 28.02.2012, made in W.A. (MD) No. 747 of 2011, has considered similar issue and it is relevant to extract paragraph Nos. 7,8 and 21, which reads thus:-

Referring to the reliance placed on G.O. Ms. No. 160, School Education (G) Department, dated 23.08.2005, particularly paragraph 2(ii), the appellant submitted that the Government Order was applicable to only those officials who are holding the post as Headmaster of the Primary School as on 01.06.1988 and continued so thereafter too. As far as the first respondent/ writ petitioner is concerned, although he was holding the post of Primary School Headmaster as on 01.06.1988, on his joining as Secondary Grade Teacher on 09.07.1989, not being re-promoted as Primary School Headmaster until his retirement on 30.06.2000, the said Government Order had no beneficial application to the writ petitioner.

In considering the applicability of the G.O. Ms. No. 160, dated 23.08.2005, as well as the subsequent G.O. Ms. No. 202, School Education Department, dated 24.09.2008, learned single Judge pointed out that prior to 1.6.1988, the scales of pay of Secondary Grade Teacher and Primary School Headmaster was identical. After the 5th Pay Commission, the Government fixed separate scales of pay for the Headmasters and Secondary Grade Teachers. Pursuant to the order of the Tamil Nadu Administrative Tribunal in O.A.No.3009 of 1991 as regards the Headmasters of Primary Schools transferred as Secondary Grade Teachers who sought for counting of entire service period as Secondary Grade Teacher upto 31.05.1988 for award of Selection Grade/Special Grade in the post of Headmaster of Elementary School, the Government passed G.O.No.300, dated 7.4.1994, cancelling the earlier G.O.No.1381 dated 5.10.1990, thereby directed inclusion of the service rendered as Elementary School Headmaster. On a challenge made, this Court directed the Government to pass suitable orders after considering the earlier order. Accordingly, G.O.No.185, School Education, dated 16.12.2002, was passed as under:

i) In the case of Headmasters, Elementary School, who have served as Headmaster on 01.06.1988 and continued to serve as Headmaster, even after 01.08.2005, that period can be taken into account for award of selection/special grade in the post, in view of the additional responsibilities attached to the post for which special allowance was allowed.

ii) In the case of headmasters of elementary schools, appointed after 01.06.1988, their pay has to be fixed in selection/special grade in headmasters elementary school post, as per the provisions of G.O. Ms. No. 212, School Education Department, dated 07.08.2000.

iii) In the case of Headmasters elementary schools who were in position as on 01.06.1988 and awarded selection or special grades, by taking into account, the services rendered as headmaster elementary school and service rendered in secondary grade teacher post as per the G.O. Ms. No. 1381, Education department, dated 05.10.1990, their pay fixation illustrated in the annexure to the G.O. Ms. No. 185, School Education Department, dated 16.12.2002. Consequently, the Government have issued clarificatory order in G.O. Ms. No. 160, School Education (G) Department, dated 23.08.2005 in respect of selection/special grade to elementary school headmasters.

While implementing this, the Government issued G.O.No.160, School Education Department, dated 23.08.2005, as a clarification of G.O.No.185, School Education Department, dated 16.12.2002.

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As rightly pointed out by the learned single Judge in his order, G.O. Ms. No. 202, School Education Department, dated 25.09.2008, shows that Elementary School Headmasters who had functioned so even prior to 01.06.1988 and transferred to any other Panchayat Union and functioning as Secondary Grade Teacher would nevertheless be treated as Elementary School Headmasters. Thus, accepting the recommendation made, G.O. Ms. No. 202, School Education Department, dated 25.09.2008 was issued. Similarly, under G.O. Ms. No. 207, School Education Department, dated 30.09.2008, the Government considered the decision in W.P. No. 8079 of 2006 dated 28.04.2006 that even in respect of those who had been functioning as on 01.06.1988 as Headmaster and subsequently, had been transferred to other Panchayat Union to work as Secondary Grade Teacher, they would continue to be considered as Headmaster for the purpose of working out the salary and other benefits, including pensionary benefits.

In paragraph No. 24 of the said judgment, the Division Bench has observed thus:

The sum and substance of the said Government Order is that the Government did not make any distinction between the Elementary School Headmaster who had worked so as on 01.06.1988 or prior to that or even thereafter and those holding position as Secondary Grade Assistant Teacher in a different Panchayat Union, that the said post held by them would continue to be treated as Primary School Headmaster for all pay and allowances.

As already observed by this Court, prior to 01.06.1988, there was no difference in the scale of pay between the posts of Elementary School Headmaster and Secondary Grade Assistant and the said fact was taken into consideration in the unreported judgment, dated 28.02.2012, made in W.A. (MD) No. 747 of 2011.

Similarly, the Division Bench of this Court in Writ Appeal Nos. 1121 and 1673 of 2013 dated 22.4.2014, in which I was also a member considered the same issue wherein the request of the appellants to extend the benefits of G.O. Ms. No. 202 School Education Department dated 24.9.2008 was rejected by the learned single Judge. Considering the factual aspects and taking note of the substance of the Government Order, the Division Bench of this Court set aside the order of the learned single Judge and allowed the writ appeals extending the benefit of G.O. Ms. No. 202 School Education Department, dated 24.9.2008 to the appellants therein. In paragraphs 17 to 19, the Division Bench of this Court held as under:-

A perusal of the service registers of the respective appellants would also disclose that long prior to the cut off date, viz., 01.06.1988, they were appointed as Secondary Grade Headmaster and Secondary Grade Assistant respectively and they were transferred and posted as Secondary Grade Assistants.

In the light of the above factual aspect, coupled with the interpretation of G.O. Ms. No. 202, School Education (G2) Department, dated 24.09.2008, and the unreported judgment, dated 28.02.2012, made in W.A. (MD) No. 747 of 2011, this Court is of the view that the appellants are entitled to the benefits of the above said Government Order.

In the result, both the writ appeals are allowed and the impugned orders, passed in W.P.Nos.16070 and 16170 of 2010, dated 07.11.2012, are set aside and so also the impugned orders, dated 30.12.2009, are set aside and the writ petitions are allowed, as prayed for. No costs. The respondents are directed to extend the benefits of G.O. Ms. No. 202, School Education (G2) Department, dated 24.09.2008, to the respective appellants within a period of eight weeks from the date of receipt of copy of this order.

Thus, the issue raised by the petitioners are covered by the said two Division Bench orders of this Court.

Applying the said orders to the facts of the present cases, this Court is of the view that the petitioners are entitled to get the benefits of G.O. Ms. No. 202 School Education (G2) Department, dated 24.9.2008. The respondents are directed to extend the benefits of G.O. Ms. No. 202, School Education (G2) Department, dated 24.9.2008 to the petitioners and pass orders granting the benefits, within a period of eight weeks from the date of receipt of a copy of this order. No costs.