IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.11.2010 CORAM THE HONOURABLE MR. JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN W.A.Nos.1350 and 1351 of 2010 & M.P.Nos.1 of 2010 T.Subash Chandra Bose .. Appellant in W.A.No.1350/2010 /Petitioner S.Muthuramalingam .. Appellant in W.A.No.1351/2010 /Petitioner -vs- 1. The Government of Tamil Nadu rep.by its Secretary to Government School Education Department, Fort St.George, Chennai 9 2. The Director of School Education College Road, Chennai 6 3. The Chief Educational Officer Nagercoil, Kanyakumari District 4. The District Educational Officer Nagercoil, Kanyakumari District 5. The Secretary D.V.D.Higher Secondary School Kottar, Nagercoil Kanyakumar District .. Respondents in both Appeals /Respondents PRAYER Writ Appeals filed under clause 15 of the Letters patent Act against a common order dated 3.12.2009 in W.P.Nos.18768 and 18767 of 2001 respectively. https://hcservices.ecourts.gov.in/hcservices/ Presented under Article 226 of the Constitution of India, to issue Writs of Ceritiorarified Mandamus, calling for the records relating to the order of the 3rd respondent in both the petitions in his Na.Ka.No.22804/A6/97, dated 28.08.2001, quash the same insofar as directing the Management that unless and until the petitioner pass typewriting test his annual increments shall not be sanctioned alone is concerned and direct the respondents to continuously pay the annual increments and other benefits to the the petitioners in each of the petitions without insisting typewriting test passed. For Appellants : Mr.K.Ravichandrabaabu For Respondents : Mr.A.Suresh, G.A. For R1 to R4 Mrs.R.Gowri for R5 *********** C O M M O N J U D G M E N T (Judgment of the Court was delivered by F.M.IBRAHIM KALIFULLA J.) The appellants are aggrieved against the order of the learned Single Judge dated 3.12.2009 passed in W.P.Nos.18767 and 18768 of 2001. In the Writ Petitions, the appellants challenged the proceedings of the 3rd respondent dated 28.8.2001 in and by which increments payable to the appellants was withheld. 2. According to the appellants, initially they were appointed by the 5th respondent School in the year 1987 as Vocational Instructors in Office Secretaryship, that subsequently their service came to be regularised in the said post by order dated 16.12.1999, that while regularising their service, an undertaking was obtained from the 5th respondent School that they will not ask for a separate Teacher for imparting Typewriting qualification in Office Secretaryship course. However, by a communication dated 5.1.2000, the third respondent directed that the appellants should acquire the Higher Grade Typewriting qualification in Tamil as well as English within a period of two years. 3. The appellants made a representation to the third respondent on 21.5.2001 stating that for the post of Vocational Instructor in the subject of Office Secretaryship with Accountancy, the prescribed qualification does not require the acquisition of Higher Grade typewriting qualification in Tamil as well as English and that the same should be clarified. By way of reply to the said representation, the third respondent in his proceedings dated 31.5.2001 in Na.Ka.No.22804/B6/97 clarified that the acquisition of Higher Grade typewriting qualification is required only in respect https://hcservices.ecourts.gov.in/hcservices/ of the post, namely, Vocational Instructors in Corporate Office Secretaryship with Accountancy. Thereafter, the impugned order dated 28.8.2001 came to be passed stating that the appellants failed to qualify themselves as directed by the third respondent in his proceedings dated 5.1.2000 and therefore they are not entitled for the increments and that they are entitled to only for the initial pay. 4. Heard Mr.K.Ravichandrabaabu, learned counsel for the appellants and Mr.A.Suresh, the learned Government Advocate for the respondents 1 to 4 and Mrs.R.Gowri, learned counsel for the 5th respondent. 5. The 5th respondent has filed a counter affidavit and in paragraph 8, the 5th respondent has stated as under: "8. It is submitted that the 5th respondent school is having only three groups in Vocational Stream and they are: (i) Office Secretaryship with Accountancy (Group Code 744), (ii) Electrical and Domestic Appliances and (iii) General Mechanist. In the group "Office Secretaryship with Accountancy (Group Code 744)", Tamil, English, Accountancy, Commerce, Office Management, Management Principles and Typewriting both Tamil and English are being taught. Three full time posts were sanctioned to the 5th respondent school to the group of Office Secretaryship with Accountancy and the fully qualified teachers who have been appointed in such posts are receiving their time scale. Out of the said three, the appellants herein are working as Vocational Instructors in Office Secretaryship with Accountancy by teaching Commerce, Accountancy, Office Management and Management Principles. The 3rd Teacher by name Mrs.S.Sivakami is working as Typewriting teacher and i receiving salary pursuant to her appointment made through G.O.35 dated 9.2.2007. It is to be noted that the appointment of the said Mrs.Sivakami was made in the retirement vacancy of Padmanabha Pillai in the year 1997. Though the department did not approve the said appointment initially, by a subsequent proceedings in G.O.35, as stated supra, her appointment was also approved." 6. The learned Government Advocate in his submissions contended that as per the prescribed qualification under the Rules, when for the post of Vocational Instructors for Commerce and Business, the acquisition of Typewriting Higher Grade in English and Tamil is needed, it was incumbent on the appellants to acquire such qualification in order to make them eligible for drawing full salary. The learned Government Advocate would further contend that the impugned order dated 28.8.2001 as well as the order of the https://hcservices.ecourts.gov.in/hcservices/ learned Single Judge confirming the same does not call for interference. 7. On the other hand Mr.K.Ravichandrabaabu, learned counsel for the appellants pointed out that the qualification prescribed in the Rules for the four different courses in respect of Vocational Instructors are distinctly separated, that when the appellant was appointed as Vocational Instructor in Office Secretaryship with Accountancy, the only qualification required is a Degree in Commerce from any recognised University in the State or a degree of equivalent standard and the qualification prescribed for the post of Vocational Instructor in Office Secretaryship with Typewriting (English and Tamil) cannot be thrust upon the appellant The learned counsel also contended that having regard to the initial order of regularisation dated 16.12.1999 passed by the third respondent, the subsequent clarification made by the 3rd respondent on 31.5.2001 as well as the present stand of the 5th respondent in their counter affidavit regarding the appointment of a separate Instructor for manning the post of Vocational Instructor in Office Secretariship with Typewriting (English and Tamil), the impugned order of the 3rd respondent dated 28.8.2001 cannot be sustained and therefore contended that the order of the learned Judge confirming the same is liable to be set aside. 8. Having considered the respective submissions, we find force in the stand of the learned counsel for the appellants. It is not in dispute that the appellants were appointed for the post of Vocational Instructor in Office Secretaryship with Accountancy. As rightly pointed out by the learned counsel for the appellants, the required qualification is a Degree in Commerce from a recognised University in the State or a degree of equivalent standard. No other qualification is prescribed for that post. Even as per G.O.Ms.No.6, School Education (VE) Department dated 4.1.2000, the above said Rules shall be deemed to have come into force on the 23rd day of September, 1994. Therefore, at the time when the initial temporary appointment was regularised by order dated 16.12.1999, the only condition imposed on the 5th respondent School was that they should give an undertaking that they will not insist for sanction of a separate Instructor post for imparting Typewriting course for Office Secretaryship in Typewriting. In fact till Separate Teacher was appointed and such appointment was approved, as stated in the counter affidavit, by G.O.Ms.No.35 dated 9.2.2007, it transpires that the 5th respondent School did not ask for separate post. 9. In the above stated background, when the 3rd respondent issued a Proceedings dated 5.1.2000 directing the appellants to acquire qualification of Higher Grade Typewriting in Tamil as well as English within a period of two years, the appellants sought for clarification through their representation dated 21.5.2001. The third respondent himself clarified in uncontroverted terms that the https://hcservices.ecourts.gov.in/hcservices/ appellants having been appointed in the post of Vocational Instructors in Office Secretaryship with Accountancy, need not acquire the qualification of Typewriting. On cumulative consideration of all the above factors, it is abundantly clear that the functioning of the appellants in the post of Vocational Instructors in Office Secretaryship with Accountancy, was by virtue of the fulfilment of the required qualification as prescribed in the Rules and therefore any direction by the third respondent to the appellants to acquire any other qualification, which does not warrant for manning the post of Vocational Instructors in Office Secretaryship with Accountancy, cannot be approved. 10. In the circumstances, the impugned proceedings of the 3rd respondent dated 28.8.2001 in withholding increments to the appellants on the sole ground that they failed to acquire Typewriting qualification was uncalled for. Therefore, the impugned order dated 28.8.2001 in Na.Ka.No.22804/A6/97 is hereby set aside. The order of the learned single Judge cannot therefore stand and the same is also set aside. The Writ Appeals stand allowed. No costs. Consequently connected Miscellaneous Petitions are closed. 11. It is stated that during the pendency of the Writ Petitions, by virtue of the interim orders, the appellants are drawing their increments and that while ordering Notice of Motion on 30.9.2010 in Writ Appeals, an interim order was granted directing that the increments drawn by the appellants so far should not be recovered. Since we have set aside the impugned order dated 28.8.2001, the respondents are directed to grant increments to the appellants as applicable to the post held by them. ajr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Secretary to Government School Education Department, Fort St.George, Chennai 9 2. The Director of School Education College Road, Chennai 6 https://hcservices.ecourts.gov.in/hcservices/ 3. The Chief Educational Officer Nagercoil, Kanyakumari District 4. The District Educational Officer Nagercoil, Kanyakumari District 5. The Secretary D.V.D.Higher Secondary School Kottar, Nagercoil Kanyakumar District + 2 ccs to Mr. K. Ravichandrabaabu, Advocate SR No.80446 NG(CO) SR/1.12.2010 Common Judgment in W.A.Nos.1350 & 1351 of 2010 https://hcservices.ecourts.gov.in/hcservices/