IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.4.2011 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.47462 of 2006 PREMA MANONMANI [ PETITIONER ] Vs 1. THE STATE OF TAMILNADU REP. BY ITS SECRETARY TO GOVERNMENT EDUCATION DEPARTMENT FORT ST GEORGE CHENNAI 9 2 THE DIRECTOR OF COLLEGIATE EDUCATION D.P.I. COMPLEX CHENNAI 6 [ RESPONDENTS ] Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call for the records in Government letter No.14601/E2/2002-14, dated 25.8.2005 quash the same and direct the respondents to refix the petitioner's seniority, salary and other attendant benefits on the basis of petitioner's initial appointment made on 28.7.1975 at Transquebar Bishop Manickam Lutheren College, Poraiyar. For petitioner : Mr.R.Subramanian For respondents : Mr.S.Naganathan Government Advocate (Education) O R D E R This writ petition has been filed praying for a writ of Certiorarified Mandamus to call for the records, in Government letter No.14601/E2/2002-14, dated 25.8.2005, quash the same and direct the respondents to re-fix the petitioner's seniority, salary and other attendant benefits on the basis of the petitioner's initial appointment made, on 28.7.1975, at Tranquebar Bishop Manickam Lutheran College, Porayar. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner had stated that she had been appointed as a Directress of Physical Education, in Tranquebar Bishop Manickam Lutheran College, Porayar, on 28.7.1975, on the scale of pay of Rs.400-15-475-20-575-25-650. The said appointment had been made, as prescribed by the University of Madras, on introduction of co- education in the said college. 3. It had been further stated that in the year, 1978, the basic pay of the petitioner had been fixed, as per the University Grants commission’s requirements, with effect from 28.7.1975. The appointment of the petitioner and the pay fixation had been approved by the Director of Collegiate Education, Chennai, on 21.9.1978. While so, the petitioner had been redesignated as a Physical Training Instructress and one Selvaraj Isaac was appointed as the Director of Physical Education in the month of January, 1976. Based on the representations made by the petitioner, an order, dated 15.10.1992, had been issued by the second respondent. The petitioner had been redesignated as the Directress of Physical Education. Challenging the said order, Selvaraj Isaac had filed a writ petition before this Court, in W.P.No.19718 of 1992. The said writ petition had been disposed of by this Court, by its order, dated 9.2.2000, holding that, as Selvaraj Isaac had been appointed in the vacancy, that had arisen due to the relinquishment of office by one Ponnu Rathinam, on 20.12.1975, his claim to the post of Director of Physical Education was well founded. In its order, dated 9.2.2000, this Court had directed that, as the petitioner was also qualified and as she has been working in the Institution, in question, from the year, 1975, the State Government should consider her claim for redeployment. Pursuant to the said order passed by this Court, the petitioner had been redeployed as Directress of Physical Education and she has been working in A.V.C. College, Myladuthurai. However, while fixing the salary payable to the petitioner, she was considered as a new entrant. Therefore, the petitioner had sent a representation, on 16.8.2000, seeking restoration of her pay scale and her seniority, taking into account her service rendered in Tranquebar Bishop Manickam Lutheran College, Porayar. By a communication, dated 27.9.2005, issued by the second respondent, the petitioner had been informed that her request had been rejected by the State Government, vide its letter, dated 25.8.2005. In the said letter issued by the Government, it has been observed that, as there could be only one Director of Physical Education in one Institution, the service rendered by the petitioner, from 28.7.1975 to 31.7.2000, at Tranquebar Bishop Manickam Lutheran College, Porayar, should be treated only as temporary service. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned counsel appearing on behalf of the petitioner had submitted that the order of the state Government applying the principle that there should be only one Physical Education Director or Directress in one education institution cannot be sustained, with regard to the appointment of the petitioner, as the said principle had been introduced only from 16.1.1977. He had further submitted that the first respondent ought to have seen that the petitioner had been appointed in the year, 1975, itself and her appointment was made, as per the norms prescribed by the University of Madras. As such, the question of treating the petitioner as a surplus teacher does not arise. Pursuant to her appointment, 100% grant had been given for a period of nearly 2 years. In fact, the second respondent, in his communication, dated 7.5.1981, had made it very clear that the petitioner was not a surplus teacher in the Tranquebar Bishop Manickam Lutheran College, Porayar. 5. It has been further stated that the first respondent ought to have taken note of the proceedings of the second respondent, dated 9.4.1985, wherein, it has been specifically stated that the claim of the staff of aided colleges should be protected, when the university grants commission scales of pay are implemented. The said recommendation of the respondents had been accepted by the state Government. While it is not in dispute that the petitioner had been, appointed, initially, as a Directress of Physical Education, the petitioner cannot be validly redesignated as a Physical Training Instructress, adversely affecting her pay scale and seniority of her service, based on an audit objection. 6. It had also been submitted that the State Government ought to have taken into account the proceedings, in Na.Ka.No.7720/G2/1999, dated 4.5.2000, wherein it had been made clear that the petitioner’s initial appointment, as Directress of Physical Education, at Tranquebar Bishop Manickam Lutheran College, Porayar, has been approved by the Department of Education and therefore, the case of the petitioner is only a redeployment and not a promotion. Therefore, the impugned order rejecting the claims made by the petitioner is arbitrary, illegal and void. 7. No counter affidavit has been filed on behalf of the respondent. However, the learned Government Advocate appearing for the respondents had submitted, on instructions, that the appointment of the petitioner, as Directress of Physical Education, cannot be sustained, in view of the principle that one Educational Institution can have only one Director/Directress of Physical Education. Therefore, the claims made by the petitioner to regularise her service, as a Directress of Physical Education, from the date of her https://hcservices.ecourts.gov.in/hcservices/ initial appointment and to refix her seniority in service and her pay scale, from 28.7.1975, cannot be accepted, as it would involve serious financial commitment. However, pursuant to the directions issued by this Court, in its order, dated 9.2.2000, made in W.P.No.19718 of 1992, filed by one Selvaraj Isaac, the petitioner had been redeployed, as a Directress of Physical in A.V.C. College, Myiladuthurai, by the proceedings of the Director of Collegiate Education, Chennai, dated 4.5.2000. However, the redeployment of the petitioner, as a Directress of Physical Education, could be made only from 1.8.2000 and not from 28.7.1975, the date of her initial appointment. 8. In view of the averments made in the affidavit filed in support of the writ petition and in view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, it is seen that the petitioner had been appointed, initially, as a Director of Physical Education, on 28.7.1975, at Tranquebar Bishop Manickam Lutheran College, Porayar. The said appointment had been made, as per the requirements prescribed by the University of Madras, while introducing co-education in the said college. Further, the basic pay of the petitioner had been fixed in the year, 1978, as prescribed by the University Grants Commission and it was intended to take effect from the date of her initial appointment. 9. It is also noted that the appointment of the petitioner and the pay fixation had been approved by the Director of Collegiate Education, Chennai, on 21.9.1978. While so, the petitioner had been redesignated as a Physical Training Instructress, in view of the appointment of one Selvaraj Isaac, as a Director of Physical Education, in the said Institution. Pursuant to the directions issued by this Court by its order, dated 9.2.2000, made in W.P.No.19718 of 1992, filed by Selvaraj Isaac, the petitioner had been redeployed, as a Directress of Physical Education, in A.V.C. College, Mayiladuthurai, by the proceedings of the Director of Collegiate Education, Chennai, dated 4.5.2000. However, her appointment as a Directress of Physical Education, from 28.7.1975, had not been considered for her seniority in service and for the fixation of her pay scale. Even if her appointment as a Directress of Physical Education, at Tranquebar Bishop Manickam Lutheran College, Porayar, had been found to be in excess of the staff strength required, she should have been redeployed in any one of the Institutions having the vacancy in such a post. Even though the petitioner had not challenged her redesignation, as a physical training instructress, it is clear that such redesignation cannot be sustained in the eye of law. Further, this Court, by its order, dated 9.2.2000, made in W.P.No.19718 of 1992, had directed the state Government to consider the redeployment of the petitioner, as a Directoress of Physical Education, in any one of the educational institutions, where a vacancy in the said post arises. https://hcservices.ecourts.gov.in/hcservices/ 10. It is further seen that, pursuant to the directions issued by this Court, in its order, dated 9.2.2000, made in W.P.No.19718 of 1992, the petitioner had been redeployed as a Directress of Physical Education, in A.V.C. College, Mayiladuthurai, by the proceedings of the Directorate of Collegiate Education, dated 4.5.2000. However, while redeploying the petitioner, the service rendered by her, from 28.7.1975 to 31.7.2000, when she had been appointed as a Directress of Physical Education, at Tranquebar Bishop Manickam Lutheran College, Porayar, had not been taken into consideration for counting her seniority in service and for fixing her pay scale. 11. The respondent had not been in a position to show that the proceedings of the Directorate of Collegiate Education, Chennai, dated 4.5.2000, redeploying the petitioner, as a Directress of Physical Education, in A.V.C. College, Mayiladuthurai, by its proceedings, dated 4.5.2000, without considering the past service rendered by her, from 28.7.1975, which is the date of her initial appointment, upto 31.7.2000, for counting her seniority in service and for the fixation of her pay scale, are sustainable in the eye of law. 12. The main contention of the learned Government Advocate appearing on behalf of the respondents is that the petitioner could not be retained as a Directress of Physical Education, at Tranquebar Bishop Manickam Lutheran College, Porayar, due to the appointment of one Selvaraj Isaac, as a Director of Physical Education in the said Institution, in the month of January, 1976. However, the said contention cannot be accepted to be valid, as the appointment of the petitioner, as a Directoress of Physical Education, had been approved by the Directorate of Collegiate Education and therefore, the appointment of the petitioner could not be considered to be irregular or invalid in nature. Even if the petitioner was found to be an excess staff, the only option that was available to the respondents was to redeploy her in any one of the institutions, where a vacancy was existing in the post of Director of Physical Education. As such, this Court finds it appropriate to allow the writ petition. Hence, the writ petition stands allowed. No costs. lan Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. THE SECRETARY TO GOVERNMENT STATE OF TAMILNADU EDUCATION DEPARTMENT FORT ST GEORGE CHENNAI 9 2 THE DIRECTOR OF COLLEGIATE EDUCATION D.P.I. COMPLEX CHENNAI 6 + 1 cc to Government Pleader, SR No.28942 + 1 cc to Mr. R. Subramanian, Advocate SR No. 28547 SV(CO) SR/9.5.2011 Writ Petition No.47462 of 2006 https://hcservices.ecourts.gov.in/hcservices/