T.R. Iswaran vs State of Tamil Nadu and Others

T.S. Sivagnanam, J.—The amended prayer in the writ petition is for issuance of a writ of Certiorarified Mandamus to quash the order

passed by the first Respondent dated 13.01.1989 and 02.08.1981 and to direct the second Respondent to pay the Petitioner''s salary and

emoluments as that of post graduate headmaster with effect from 01.07.1978 till his retirement on 31.05.1992 with interest.

The case of the Petitioner is that he obtained his B.A. degree in Geography during 1958 and subsequently, completed degree course in teaching

from the Teachers College, Saidapet, Chennai. The Petitioner was employed as a teacher and worked as headmaster between 1963 and 1966 in

Meenakshi sundaram High School, Idakal in Tenkasi Taluk and from 1966 to 1968 worked as B.T. Assistant in The erth apathi High School,

Amba samudaram and subsequently as headmaster in the S.N. Ramaswami Raja High School, Gomathipuram between 1968 to 1976. During

1976, he joined the Tilak Vidyalaya High School, Kallidaikuruchi, the fifth Respondent herein as headmaster and continued as such till his date of

superannuation. The said institution was a fully aided institution.

Consequent upon the introduction of higher secondary classes, during 1978, the fifth Respondent school was upgraded as higher secondary

school. The Government issued an order in G.O. Ms. No. 720, dated 28.04.1981, prescribing the qualifications for the post of headmaster,

teachers etc., in higher secondary schools. In terms of the said Government order, the minimum educational qualification for the post of headmaster

in higher secondary school was a post graduate degree or a degree of equivalent standard or a certificate issued by the University of Madras for

having undergone certificate course in Science and Humanities for graduate teachers. It is further submitted that persons, who did not possess the

qualification and who were holding the post, were given 5 years time from 01.01.1978 to acquire the qualifications and on such acquisition after

the concurrence of the Tamil Nadu Public Service Commission, they were to be absorbed. Further, the teachers and headmasters with graduate

qualification, who were in service prior to the coming into force of the rules were termed as inducted teachers and inducted headmasters. In terms

of the proceedings of the Joint Director of School Education dated 30.03.1982, applications were invited from inducted teachers and inducted

headmasters and the same were approved and who have applied for post graduate course to under go special vocation cum correspondence

course in Mathematics, Physics, Chemistry, Botany and Zoology. Though, the Petitioner was functioning as a headmaster, as he was a graduate in

Geography, he was not eligible to attend the course. Subsequently, by G.O. Ms. No. 954, dated 23.05.1983, the qualifications were modified and

a ten months post graduate teachers certificate course was conducted by the State Council for Educational Research and Training (SCERT) and

candidates, who completed the course successfully were considered to be fully qualified to teach higher secondary schools and also entitled to the

scale of pay. According to the Petitioner, this provision was introduced to tide over the practical difficulty experienced by the inducted teachers

and that on successful completion of the course, the candidates were deemed equivalent to a post graduate teacher. However, this concession was

extended only to the inducted teachers, who were in service. Subsequently, by G.O. Ms. No. 1041, dated 04.01.1985, the SCERT course was

also conducted for inducted teachers in Economic, Geography, Home Science etc and the Petitioner attended the course and successfully

completed the same on 27.09.1987. Thus, according to the Petitioner on completion of the SCERT course, he is deemed to be a post graduate

teacher and eligible to be appointed as head master of the higher secondary school and draw the scale of pay attached to the post.

Based on such interpretation, the Petitioner requested the authorities to fix his pay for par with the scale of pay of post graduate headmaster of

higher secondary school. However, such request was negatived by stating that the Petitioner possessed only a bachelor degree and not a post

graduate degree and therefore, ineligible for the P.G. Headmaster scale of pay. The review application submitted by the Petitioner was also

rejected by the third Respondent by order dated 02.08.1991. Aggrieved by such order, the Petitioner has filed the present writ petition.

It is contended that the impugned orders were passed by placing reliance on G.O. Ms. No. 180, dated 08.12.1988 and such Government

order is applicable only to future appointments and will not be applicable to existing inducted headmasters and the Petitioner having completed the

SCERT course is deemed to possess post graduate qualification and therefore, entitled to receive P.G. Headmaster scale. That the first

Respondent has recognized an inducted headmaster with SCERT qualification as equivalent to the post graduate headmaster; there is no legal basis

for discriminating the Petitioner in the matter of pay and emoluments as the Petitioner discharges the similar nature of duties and responsibilities as

that of P.G. Headmasters.

It appears that the Petitioner earlier filed an original application before the Tamil Nadu Administrative Tribunal, challenging the impugned order

dated 13.01.1989 and the authorities also filed their counter. The Tribunal by its order dated 12.12.2003, disposed of the original application with

a direction to the Petitioner to challenge the impugned order before this Court and consequently, the present writ petition was filed.

It is further contended that the decisions of the Respondents is contrary to the decision of the Hon''ble Full Bench of this Court reported in 1995

WLW 277, wherein, it was held that the graduate assistant was entitled to be promoted as a headmaster provided, he had not less than 10 years

experience and that he was a B.T. Assistant and it was not necessary for a B.T. Assistant to be a post graduate and that the Petitioner having

completed the SCERT course working as a headmaster, even as on 01.07.1978 is entitled to the scale of pay, which would being paid to the post

graduate headmaster.

The learned Counsel appearing for the Petitioner would contend that the Petitioner continued as a head master from 01.07.1978 on the basis of

qualification prescribed under G.O. Ms. No. 1091, dated 15.06.1978 and Clause 4(2) of the said Government order clearly stipulates that in

respect of future vacancies, the same should be filled up by candidates possessing the qualification in Clause 2(a) of the Government order and that

G.O. Ms. No. 720, dated 28.04.1981 is not applicable to private schools in terms of the decision of the Hon''ble Full Bench of this Court in The

Sailar Mahajana Higher Secondary School v. The Joint Director of Schools, 1995 WLR page 277. Further, it is contended that there is a clear

distinct between inducted headmasters, like the Petitioner and fresh incumbents to be considered for appointment in future vacancy and since, the

higher secondary sections were started for the first time in 1978, the rights of the existing headmasters, who were allowed to function as

headmasters of higher secondary school, after undergoing the training stood fully protected. In support of his contention, the learned Counsel

placed reliance on the decision of the Hon''ble Supreme Court in S.S. Moghe and Others Vs. Union of India (UOI) and Others, .

It is further submitted that the Petitioner''s appointment as headmaster was never challenged by any person for 14 years nor did the

Respondents objected to the Petitioner''s continuance and the Petitioner having discharged the duties of the higher secondary school headmaster

and having completed the SCERT training has to be paid the scale of pay payable to post graduate headmasters of higher secondary schools.

Further, it is submitted that in the impugned order dated 13.01.1989, the fourth Respondent has relied on a Government letter No. 1805, dated

08.12.1988 to be the basis for the same. The said Government letter has absolutely no relevance to the case of the Petitioner and the said letter

was issued after 10 years, after the Petitioner was appointed and the said letter relates to promotion of inducted teachers as headmasters and not

to those headmasters like the Petitioner who were permitted to continue. The Petitioner having been permitted to continue as headmasters on the

basis of G.O. Ms. No. 1091, the Government letter dated 01.08.2005 has no application.

Further, the learned Counsel appearing for the Petitioner submitted that since the Petitioner''s legitimate benefits have been delayed and denied

on account of erroneous reasoning, the Petitioner is also entitled to interest on the difference of salary to be paid. In support of the said

proposition, the learned Counsel placed reliance on the decision of the Hon''ble Supreme Court in State of Kerala and Others Vs. M.

Padmanabhan Nair, , Ex. Capt. R.S. Dhull Vs. State of Haryana and Others, and Dr. Uma Agrawal Vs. State of U.P. and Another, .

The learned Government Advocate appearing for the official Respondents by placing reliance on the counter affidavit filed by the second

Respondent would submit that in terms of G.O. Ms. No. 1041, it was ordered that the headmaster of high school under private management,

when upgraded as higher secondary school may also continue as headmaster of the higher secondary school and the qualification prescribed under

the Government order is a post graduate degree of a University and B.T. or B. Ed degree with two years teaching experience of which 2 years in

the post of post graduate teacher. The unqualified headmasters of higher secondary schools, who were inducted as the higher secondary

headmasters from the post of high school headmaster, when the schools were upgraded, were allowed time to qualify themselves to acquire post

graduate degree. Such of those, who qualified themselves were allowed separate higher scale of pay. The Government formulated a certificate

course to be conducted by the SCERT and on successful completion of such course, the inducted teachers were fixed in the scale of pay of post

graduate teachers. However, such certificate is not an alternative qualification to post graduate degree of a University for the post of higher

secondary school headmaster. It is further contended that the Petitioner completed his SCERT course on 27.09.1987 and he was given the post

graduate teacher''s pay. However, his request for the scale of pay of the fully qualified higher secondary school headmaster was declined, since he

did not possess the requisite qualification to such post. It is further submitted that the inducted teachers, who obtained post graduate teacher

certificate through SCERT and without obtaining post graduate degree are not eligible for promotion as headmaster of higher secondary school

and the certificate issued by SCERT is only to enable them to get the scale of pay of a fully qualified post graduate teacher. In the absence of any

rule supporting the case of the Petitioner, the Petitioner is not entitled to the P.G. headmaster''s scale of pay. In support of her contention, the

learned Government Advocate placed reliance on the decision of the Hon''ble Division Bench of this Court in W.A. No. 1466 of 1997 etc, dated

30.04.1998, which was confirmed by the Hon''ble Supreme Court in S. Devasahayam and Another Vs. Joint Director and Another, .

In reply, the learned Counsel appearing for Petitioner would submit that the Division Bench of this Court in W.A. No. 1466 of 1997, as

confirmed by the Hon''ble Supreme Court is not applicable to the facts and circumstances of the present case, since the question, which arose for

consideration in the said case is as to whether the Appellant therein was a member of the feeder category on the date when the vacancy arose and

the vacancy in the said case arose on 31.05.1995, which is a ""future"" vacancy in terms of Clause 4(2) of G.O. Ms. No. 1091, dated 15.06.1978.

Heard the submission of the learned Counsel appearing for the fifth Respondent on the above contentions.

The issue involved in the present case lies in a narrow campus; namely as to whether the Petitioner is entitled to salary and emoluments in the

scale of pay payable to post graduate headmaster of higher secondary school w.e.f. 01.07.1978 till his date of superannuation on 31.05.1992 and

if so whether the Petitioner is entitled for interest on the said claim.

The facts which are not disputed are that prior to 1978, the fifth Respondent school was a high school and the Petitioner was working as a

headmaster of the school; that the fifth Respondent is a private aided institution. During 1978, the Government introduced the higher secondary

course and fifth Respondent''s school was upgraded as a higher secondary school. At that stage, the Petitioner was permitted to continue as

headmaster in the higher secondary school and retired on 31.05.1992. The dispute arose, when the Petitioner claimed salary on par with post

graduate higher secondary school headmasters. The request made by the Petitioner was rejected by the official Respondents by stating that he

does not possess the prescribed qualification of post graduate degree for higher secondary school headmaster, which according to the department

is stated to be a ""qualified headmaster"". It is not in dispute that the Petitioner did not possess a post graduate qualification. The Petitioner is a

graduate in Geography with B. Ed qualification. At this stage, it would be necessary to refer to G.O. Ms. No. 1091, Educational Department,

dated 15.06.1978, wherein, the Government passed orders setting out the principles for inducting from high school staff for manning the post in

higher secondary classes, but working in high schools. For the purpose of the present case, the following clauses of the Government order would

be relevant:

Qualifications:

2(a) The following qualifications are prescribed for the teaching staff in the Higher Secondary Schools.

Post Academic Training Teaching

Qualification Qualificationexperience

Post Graduate B. Ed/BT 10 years (of which

Headmaster Degree (MA/M 2 years should have

Sc /M.com) been as Higher

Secondary Asst in

any of the Higher

Secondary Schools

under the school

education Dept.)

Teachers P.G. Degree in B. Ed/BT -do-

of academic the particular

subjects. subject to be

handled in

Higher

Secondary

classes.

NOTES: i) The certificate issued by the University of Madras for having undergone the certificate course in sciences and Humanities for graduate

teachers in high schools will be considered as adequate training qualification (for Headmasters as well as Teachers). 3) Scale of Pay:

The Third Pay Commission has been requested to prescribe scales of pay for various teaching posts at Higher Secondary level. Till the pay

Commission recommendations are made available and accepted by the Government, the staff working in the Higher Secondary classes including

headmasters shall get pay only in the scales presently applicable to them in High schools. The revised pay scales relating to teachers and

Headmasters to be announced by the Government will be made applicable to all the qualified teachers with retrospective effect from the date of

coming over to Higher Secondary courses. Headmasters will be eligible for a separate scale of pay as Higher Secondary School Headmasters only

after they become fully qualified. The teachers who qualified themselves subsequently will get revised Higher Secondary scales from the date of

becoming fully qualified. The teachers handling Higher Secondary classes as referred to in para 2(b) above will only be eligible for a special pay to

be ordered separately, in addition to the regular pay scale to which they are normally entitled. The teachers recruited in terms of para 2(c) above

will be paid the minimum of the B.T. scale, without any increment.

INDUCTION OF TEACHERS FOR HIGHER SECONDARY STAGE: 4.(2) Aided Schools:

a. Headmasters:

i. Headmasters with Post Graduate qualification and B.T./B. Ed., working as Headmaster of schools may at the discretion of the management be

posted as headmaster of the Higher Secondary Schools under the same management.

ii. TheHeadmaster'' of a High School under Private Management when upgraded as a Higher Secondary School may also continue as the

Headmaster of the said Higher Secondary School.

iii. Government direct that when a vacancy of Headmaster arises in future in the Higher Secondary Schools, the said vacancy should be filled in

only by persons who are fully qualified to hold the post as per para 2(a) above. If such a person is not available the post may be filled up by a Post

Graduate +B.T. qualified person.

Perusal of the above tabulation reveals that the qualification for headmaster in higher secondary school was a post graduate degree (MA/M

Sc/M. Com), B. Ed./BT and 10 years teaching experience of which two years should have been as higher secondary assistant in any of the higher

secondary schools under the School Education Department. In the note to the column, the certificate issued by the University of Madras for having

undergone certificate course in Science and Humanities for graduate teachers in high schools will be considered as adequate training qualification

for headmasters as well as teachers. The scale of pay payable is in terms of Clause 3 of the Government order, which is referred to above, the

principles governing for inducting from high schools, the teachers or staffs for handling the higher secondary classes is contained in para 4 of the

Government order and para 4(2)(a)(ii) would be relevant for the purposes of this case, which states that the headmaster of high school under

private management, when upgraded as a higher secondary school may also continue as the headmaster of the higher secondary school. It is in

terms of such provision, the Petitioner has been permitted to continue. Therefore, the continuance of the Petitioner as higher secondary school

headmaster is in accordance with G.O. Ms. No. 1091.

Clause (iii) of para 4(2)(a) of G.O. Ms. No. 1091, states that when vacancy of headmaster arises in future in the higher secondary school,

such vacancy should be filed up by persons, who are fully qualified to hold the post in terms of para 2(a) of the Government order, which stipulates

the qualification to be possessed by headmasters/teachers of higher secondary schools.

Thus, as rightly contended by the learned Counsel for the Petitioner, G.O. Ms. No. 1091 has made a subtle distinction between such of those

incumbents, who are permitted to continue as headmaster of higher secondary schools, on the school being upgraded and the vacancies, which

may arise either after retirement of such headmaster. This interpretation alone would be a reasonable interpretation, since, if para 2(a)(i) of the

Government is perused, the teaching experience fixed for a headmaster of higher secondary school is 10 years of which two years should have

been as higher secondary assistants. As on the date of upgradation of the fifth Respondent school i.e., on 01.07.1978, no person could have

possessed the teaching experience qualification, since, there were no higher secondary section at that relevant point of time. Therefore, the

Government was aware of such position and hence, consciously ordered that in future vacancy, the qualification should be prescribed in terms of

paragraph 2 (a) (i) of the Government order.

In view of the above reasoning, I am of the firm view that the Petitioner, who was directed to continue as headmaster of the higher secondary

school in accordance with para 4(2)(a)(ii) of G.O. Ms. No. 1091 and the Petitioner and like persons have to be treated as a separate class or

category of headmasters, who had been discharging duties as high school headmaster on the date of upgradation of the school i.e., 1978 and the

insistence on possessing the qualification prescribed in para 2(a)(i) of the Government order is without any basis as persons like the Petitioner

could not have possessed the requisite teaching experience as higher secondary course was introduced for the first time in the State during 1978

and this is amplified from the wording of para 4(2)(a)(iii) of the Government order, which says that in future vacancy such qualification shall be

insisted upon.

The next question which falls for consideration is as to whether the Petitioner is entitled for the scale of pay as payable to the higher secondary

school headmaster, who possessed P.G. qualification. The request made by the Petitioner in this regard was rejected by the impugned order and

the basis of the rejection is a Government letter No. 1805, dated 08.12.1988. Copy of such order has been produced by the learned Counsel

appearing for the Petitioner, which is to the following effect:

Education (HS2) Department

Secretariat, Chennai -9.

Letter (MS) No. 1805, dated 08.12.1988

From

Deputy Secretary to Government,

Education Department,

Secretariat, Madras-9.

To

The Director of School Education,

Madras-6

Sir,

Sub: Tamil Nadu Higher Secondary Educational Service - Certificate course for inducted teachers conducted by SCERT - Amendment to Higher

Secondary Educational Service Rules - regarding.

Ref: Your letter No. 39102/C24/78, dated 21.03.88 and 06.12.88.

I am directed to invite attention to the letter cited and to state that the inducted Teachers have been given Special allowance for teaching in Higher

Secondary schools to start with. Later they were given a capsule course to make them eligible for equal pay with regular P.G. teachers. But this,

cannot make them full fledged P.G. teacher, there is no harm in considering this case for promotion as Assistant Headmasters of Higher Secondary

Schools but not as Headmasters. A portion of the Higher secondary Headmasters posts are filed by Headmasters of High Schools who have

acquired post graduate qualification. It is therefore not proper to promote the inducted teachers as Headmasters as they are really not post

graduates but only those who got some Special training for handling the Higher Secondary Classes. There is no need apparently to amend the

Service Rules to provide for their promotion as Headmasters of Higher Secondary Schools.

Yours faithfully,

sd/-

Deputy Secretary to Government

/ /True copy/ /

Section Officer.

The above Government order which came to be issued nearly after 10 years, after the Petitioner was made to function as higher secondary

school headmaster states that the course conducted by the SCERT, referred to as the capsule course only makes eligible the concerned teacher to

draw P.G. teacher scale of pay and they are not entitled for promotion as higher secondary school headmaster as they do not possess the post

graduate degree and have only some special training for handling higher secondary classes. Firstly, whatever rights, which have accrued to the

Petitioner by virtue of G.O. Ms. No. 1091, which is an administrative instructions issued by the ""Order of Governor"" cannot be taken away by a

Government letter that too after 10 years from the date of the Government order in G.O. Ms. No. 1091.

Secondly it is to be noted that the Government letter has not dealt with para 4(2)(a)(ii) of G.O. Ms. No. 1091, which permits persons like the

Petitioner to continue as the headmaster of the higher secondary school. Therefore, the Government letter could not have been taken as the basis

for rejecting the Petitioner''s request.

As noticed above, the Petitioner forms a separate class/category of such persons, who are functioning in the school as high school headmaster

on the date of upgradation. This group of such high school headmasters are a distinct category and cannot be compared to such of those high

school teachers, who are inducted and permitted to handle higher secondary classes on the date of upgradation and subsequently, sought for

promotion to the post of higher secondary school headmaster. At this stage, it is to be borne in mind that the expression used in para 4(2)(a) (ii) of

G.O. Ms. No. 1091 is that the headmaster of high school under private management when upgraded as higher secondary school ""may also

continue as headmaster of the said higher secondary school"". Therefore, this category of persons like the Petitioner were permitted to continue and

the same cannot be construed as a promotion.

The case of S. Devesahayam, referred supra, was a case relating to a teacher, who was working as a P.G Assistant in an aided school and on

the school being upgraded as higher secondary school was an inducted as a teacher in Botany, who subsequently passed the SCERT certificate

course during 1985 and continued to handle Botany classes for the higher secondary section and when a vacancy arose in the post of headmaster

in the said higher secondary school nearly after 17 years, after his induction to the post of headmaster, he competed and in such circumstances, the

question arose as to whether the Appellant therein is entitled to claim promotion. As rightly pointed out by the learned Counsel for the Petitioner,

the case before the Hon''ble Supreme Court was not a case relating to a headmaster, who was permitted to continue as higher secondary school

headmaster, consequent upon the upgradation of the school, but relating to a claim for promotion in a subsequent vacancy. Thus, the decision in

the case of S. Devesahayam, referred supra, would not apply to the facts and circumstances of the present case.

Thus the Petitioner forms part of a distinct class/category of headmasters, who were permitted to continue as higher secondary school

headmaster and treated differently than those inducted teachers, who aspire to be promoted to the post of headmaster in a vacancy arising in future

i.e., after coming into vogue of G.O. Ms. No. 1091. This aspect is evidently clear from the perusal of paragraph 2(a)(i) and 4(2)(a)(ii) of G.O. Ms.

No. 1091. That apart, continuation of the Petitioner as higher secondary school headmaster was not the subject matter of challenge, before any

forum and neither the Government nor the management or any other third party candidate opposed his continuance. Therefore, for all practical

purposes for nearly 14 years, the Petitioner continued to discharge his duties as a full-fledged higher secondary school headmaster.

Thus the Respondents having extracted work of a higher secondary school headmaster from the Petitioner, it goes without saying that the

Petitioner shall entitled to such monetary benefits, attached to the said post. The yardstick made applicable to other inducted teachers, as

canvassed in the counter affidavit, cannot be made applicable to the case on hand as it is distinct and different from cases of inducted teachers

aspiring to be promoted to the post of headmaster of higher secondary schools in vacancies, which may arise after coming into force of G.O. Ms.

No. 1091. Therefore, this Court is of the firm view that the official Respondents were wholly unjustified in denying the Petitioner the scale of pay of

a higher secondary school headmaster. Thus, the Petitioner is entitled to such monetary benefits being the difference between the scale of pay of

higher secondary school headmaster and that of the post graduate teachers of higher secondary school, which is stated to have been paid to the

Petitioner.

The learned Counsel submits that the Petitioner has been denied his legitimate benefits on the basis of erroneous reasoning and hence, he is

entitled to payment of interest. In support of her contention, the learned Counsel placed reliance on the decisions of the Hon''ble Supreme Court in

State of Kerala and Others Vs. M. Padmanabhan Nair, , Ex. Capt. R.S. Dhull Vs. State of Haryana and Others, and Dr. Uma Agrawal Vs. State

of U.P. and Another, .

It is to be seen that in all those decisions of the Hon''ble Supreme Court, interest was awarded either in one lump sum or at the rate of 12 %

per annum on the delay in settlement of retiral benefits. However in the instant case, the dispute as to whether the Petitioner is entitled to the

difference in the scale of pay between that of a higher secondary school headmasters and P.G. teacher in higher secondary sections, was the

subject matter of dispute/controversy which has been resolved now by virtue of this order. Therefore, the case on hand is unlike the cases before

the Hon''ble Supreme Court, where, there was delay in settlement of retiral benefits. It is not in dispute that the Petitioner was paid the scale of pay

of a post graduate assistant working in higher secondary section and the writ petition related to the differential amount, which has been hotly

contested between the parties at the first instance before the Tamil Nadu State Administrative Tribunal and subsequently, the present writ petition

which has been pending before this Court from 2004. Therefore, this Court is of the view that the Petitioner''s claim for interest on the differential

amount of arrears of salary and consequential arrears of pension cannot be countenanced.

In the result, the writ petition is allowed to the extent that the Petitioner shall be entitled to the scale of pay payable to a higher secondary

school headmaster with effect from 01.07.1978 till his date of superannuation on 31.09.1992.

The Respondents shall calculate the difference in pay between the scale of pay of the higher secondary school headmasters and that of P.G.

teacher in higher secondary section and consequentially, rework the pension and other emoluments payable to the Petitioner, pay and settle the

same within a period of three weeks from the date of receipt of a copy of this order. The Petitioner''s claim for payment of interest on the

aforementioned amount stands rejected. No costs.