IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:10-11-2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.8368 of 2008 ..... 1.Y.Selvaraj 2.S.Monickaraj 3.D.Rajan 4.V.Ramaswamy Pillai 5.D.Wilson Gnanadhas 6.D.Lazer 7.A.Pandmanabhan Nadar 8.P.Saradha Bai 9.D.Pauldhas 10.C.Aynesan 11.P.Balasundaram 12.N.Suyambulingam Nadar 13.G.Paul Thurai 14.M.Selvadhas 15.M.K.Nair 16.M.Ramachandran 17.G.Chellammal 18.C.Thankaraj 19.S.Arul Prakasam 20.S.Ramiah 21.I.Jeevadhas 22.R.Ramakrishna Kone 23.K.Parameswaran 24.R.Krishnan 25.S.Mohamed Jaffer 26.A.Perumal Pillai 27.G.Soosai Michael 28.S.Sattan Pillai 29.P.Velayudham 30.P.Gnana Jessi Rose 31.K.Ayya Pillai 32.Y.Justus 33.B.Umai Thanu Pillai 34.D.Christudhas 35.C.Velayudhan Nadar 36.M.Sahayadhas 37.J.Lensparipoorana Bai 38.P.S.Velayudhan https://hcservices.ecourts.gov.in/hcservices/ 39.N.Solomon 40.S.Jegadeesan Nair 41.M.Velayudhan 42.P.Nelliammal 43.D.Inbaraj 44.S.Bahavathi Kannu Pillai 45.S.Saraswathi Ammal 46.K.Thankammal 47.C.Asirvatham 48.B.Soosai Michael 49.C.Leelavathi 50.S.Ramachandran 51.S.Siva Subramania Pillai 52.M.Raja Gopal 53.A.Appadurai 54.Y.Elizabeth 55.P.Lakshmana Pillai 56.A.Thusnavice 57.S.Viswalingam 58.C.Paulraj 59.G.Maria Mercelin 60.R.Mary Chellam 61.R.Viswanathan 62.R.Thillaiammal 63.R.Paul 64.R.Jeslet Bai 65.S.Kolappan 66.P.Thankaian 67.B.Thanammai 68.T.Ayyappan Chettiar 69.P.Annapoo Thangam 70.s.Murugan 71.L.Subbu Lakshmiammal 72.A.Victor 73.P.v.soundaram 74.Y.Sarasa Bai 75.A.Thanka Bai 76.P.Mary Padmini 77.T.Richard Nelson 78.S.Saseetharan Nair 79.K.Gomathi 80.P.John 81.P.Namadevan 82.G.George 83.S.Shanmugam Nadar 84.C.Jayaraj 85.C.Velappan Nadar 86.P.Chellan 87.J.Rajammal https://hcservices.ecourts.gov.in/hcservices/ 88.V.Swarnam 89.S.Selvaraj 90.M.Nagamony 91.S.Arumugam Pillai 92.T.Francis 93.C.Annammal 94.C.Amala Pushpam 95.S.Subramaniyam 96.K.Muthammal 97.C.Vincent 98.S.Marcelin 99.R.Kalama Bai 100.K.Sornammal 101.Rani Regent Bai 102.Thankappan 103.Kunjamma 104.C.Sundara Bai 105.J.Sundara Dhas 106.M.Kanagam 107.T.Natarajan Nadar 108.S.Mariapushpam 109.D.Denis Edwin 110.K.Rajamony 111.A.Jancy 112.A.Ponnulingam 113.C.Victor 114.C.Kamalam 115.G.Maragatham 116.A.Jeparaj 117.C.Ganapathi Asari 118.J.Maria Rethnam 119.A.John Raj 120.N.Sornam 121.P.Arthur 122.S.Padmanabhapillai 123.V.Sadasivam 124.V.Victor Immanuel 125.S.Nancy Bennet 126.D.Gracelet 127.A.Ambrose 128.M.Maria Agasthinal 129.C.Raja Retnam 130.V.Theresammal 131.L.Chellaswamy 132.P.Meenakshiammal 133.V.Azhagu Rathi 134.P.Sobhanaraj 135.A.Rosely Ammal 136.A.Pramma Muthu https://hcservices.ecourts.gov.in/hcservices/ 137.I.Sundara Raj 138.G.Devadhasan 139.S.Padmanabhan 140.V.Soosai Michael 141.D.Alloysius 142.K.Kunjammal ... Petitioners vs. 1.The State of Tamil Nadu rep. By the Secretary to Government Education Department Fort St.George Chennai 600 009. 2.The Director of School Education Chennai 600 006. 3.The Director of Elementary Education Chennai 600 006. 4.The District Elementary Educational Officer Nagercoil, Kanyakumari District. ... Respondents Writ petition filed under Article 226 of the Constitution of India for the issue of a writ of Certiorarified mandamus calling for the records relating to the impugned proceedings of the 1st respondent in Letter No. 27169/G2/2005-14 dated 18.04.2007 quash the same and direct the respondents 1 to 3 to grant the scale of pay applicable to Head Masters, primary Schools to the petitioners from the date of their appointment as Head Masters, Primary Schools consequently revise their scale of pay, retirement and pensionary benefits. For petitioners : Mr.V.Selvaraj For respondents : Mrs.Dhakshayani Reddy Government Advocate .. ORDER The petitioners are the retired Government servants receiving pension having retired as Headmasters of Government Primary Schools in Kanyakumari District. When they retired, they were governed by the Tamil Nadu Elementary Education Subordinate Service Rules. The Tamil Nadu Government in the V Pay Commission, granted higher pay for https://hcservices.ecourts.gov.in/hcservices/ primary school Headmasters and from 1.6.1988, they were given the scale of pay applicable to Headmasters. 2. All the petitioners were appointed as Headmasters of primary schools in the above said District by way of recruitment by transfer from the post of Secondary Grade Teachers based on district seniority as per the directions of the Director of School Education dated 2.1.1996, by which the second respondent directed his subordinates in the then Nellai Kattabomman District and Kanyakumari District to fill up the posts of Headmasters by recruitment by transfer from the post of Secondary Grade Teachers based on district level seniority. 2(a). After 1.6.2000, the posts of Headmasters of Primary Schools came to be filled up by promoting the secondary grade teachers as Headmasters. Therefore, in Kanyakumari District all persons appointed as Headmasters on promotion after 1.6.2000 were juniors to the petitioners. The petitioners have continuously worked as Headmasters of Primary Schools and retired. 2(b). It is stated that the Chief Educational Officer, Nagercoil and the District Elementary Educational Officer in Kanyakumari District, wrote to the second and third respondents to revise the pay of petitioners as applicable to the Headmasters from the date of their appointment by transfer. 2(c). The petitioners and others approached this Court by filing W.P.26005 of 2005, for direction to refix their pay. The said writ petition came to be disposed of on 16.8.2005 with direction to dispose of the appeal dated 7.3.2005 filed on behalf of the petitioners. Since no order was passed, contempt application was filed in Contempt Petition No.497 of 2006 and thereafter, the first respondent passed the impugned order dated 18.4.2007. 3. In the impugned order the claim of the petitioners was rejected on the ground that originally when the petitioners were appointed in primary schools, the said schools were forming part of Tiruvancore Cochin State. Those schools were brought under the control of the Director of School Education before the primary and middle schools in Kanyakumari District were brought under the Primary School Department. As per the directions of the then Director of School Education, whenever vacancies arose in the primary schools, the Secondary Grade Teachers working in the District under the district level seniority, on promotion basis, were directed to work as Headmasters in the Primary Schools in the scale of pay of Secondary Grade Teachers and that was only a temporary arrangement. It is also stated that 174 persons including the petitioners were directed to work as Headmasters of Primary Schools in the scale of pay of secondary grade teachers and they were not permanent posts and they were not working permanently and therefore, the claim of the https://hcservices.ecourts.gov.in/hcservices/ petitioners that their salary should be fixed in the scale of pay of Primary School Headmasters from 1.1.1996 to 31.5.2000 followed by the consequential pensionary and other benefits came to be rejected. It was as against the said impugned order, the writ petition is filed on various grounds including that the same has been passed without application of mind and that the petitioners’ appointment as Headmasters was a permanent appointment by way of recruitment by transfer and they were continuously working as Headmasters till their retirement and therefore, the same cannot be stated as a temporary arrangement. 4. In the counter affidavit filed by the 4th respondent, the District Elementary Educational Officer, Nagercoil, it is stated that the schools in which the petitioners were working were primary schools and got separated from the erstwhile Tiruvancore-Cochin region and before the primary and middle schools were brought under the control of Elementary Education Department, they were under the control of the Director of School Education and as per the directions of the then Director of School Education, whenever vacancies arose in the posts of Headmasters in Kanyakumari District, the authorities were to transfer the selection grade and special grade teachers working in the District, based on the district seniority and put them in charge of primary school Headmasters temporarily in the same scale of pay of selection grade/special grade middle school teachers. Therefore, the transfer of the petitioners who were working as Selection Grade and Special Grade Middle School Teachers as Primary school Headmasters by the District Educational Officer retaining the same scale of pay of Selection Grade/Special Grade teachers is only a temporary arrangement. It is stated that the transfer of the petitioners as Headmasters was not a permanent one. Hence, the petitioners are not entitled to seek the scale of pay applicable to Headmasters of Primary Schools based on 5th Pay Commission report. 5. The main contention raised by the learned counsel for the petitioners Mr.V.Selvaraj is that, when it is an admitted fact that the petitioners were all appointed by transfer as Headmasters of the Primary Schools in Kanyakumari District in which posts, the petitioners continued till the date of their retirement, it is the duty on the part of the respondents to fix the salary of the petitioners as Headmasters and any arrangement stated to have been made by the Department due to rearrangement or bifurcation of District is not a fault on the part of the petitioners and inasmuch as the petitioners were directed to perform the functions of the Headmasters from the date of transfer till the date of retirement, their pay has to be fixed as per V Pay Commission recommendations. He has also stated that it is not as if the temporary appointments were made when the petitioners were posted as Headmasters, while the said posts were to be filled up strictly on the basis of seniority in district level among the selection grade/special grade teachers and https://hcservices.ecourts.gov.in/hcservices/ therefore, according to him, it can never be treated as temporary arrangement. It is also his contention that after 1.6.2000, the posts of Headmasters of Primary Schools were filled up directly by appointment of juniors who have been granted the salary of Headmasters as per the 5th Pay Commission and hence, the services rendered by the petitioners as Headmasters of various primary schools for the period between 1.1.1996 and 31.5.2000 have to be recognized as permanent services in the posts of Headmasters and accordingly, their salary should be fixed. 6. On the other hand, it is the contention of Mrs.Dhakshayani Reddy, learned Government Advocate appearing for the respondents that by virtue of temporary arrangements if the petitioners are directed to work as Headmasters of Primary Schools, that will not confer any substantial right on them to claim the salary of Headmasters. It is her submission that it was from 1.6.2000 regular appointments to the posts of Headmasters in Primary Schools have been made and they are paid the scale of pay of the Headmasters of primary schools. 7. Before going into the merits of the matter, the factual aspect, which is not in dispute in this case is that the petitioners before their appointment as Headmasters of primary schools were working as secondary grade or selection grade teachers in various schools in Kanyakumari District. It is also not in dispute that at that time, the pay scale of secondary grade/selection grade teachers and that of Headmasters of Primary Schools were distinct and different and the salary of the Headmasters of primary schools was more than the secondary grade teachers. It is not in dispute that while the petitioners were working in Kanyakumari District as secondary grade teachers, their posting as Headmasters of primary schools in the said District as and when vacancies arose was strictly based on seniority in secondary grade/selection grade teachers of Kanyakumari District. It is also not in dispute that the petitioners when they were posted as Headmasters of the Primary Schools they were fully qualified to hold the posts of Primary School Headmasters. It was, after 1.6.2000, by virtue of refixation of pay, the scales of primary school Headmasters and Secondary Grade Teachers were equalized. In the above said factual context and taking note of the fact that the petitioners were all appointed as Headmasters of various primary schools in Kanyakumari District before 1.6.2000 and also the undisputable fact that the petitioners have retired as Headmasters of primary schools in the same District, we have to approach the issue keeping in mind the legality or otherwise of the matter. 8. In this regard, it is relevant to refer to the proceedings of the Director of Elementary Education dated 17.02.1990 in Rc.No.89B8/BII/90, wherein by referring to the 5th Pay Commission wherein the post of primary school Headmaster was upgraded to higher https://hcservices.ecourts.gov.in/hcservices/ category than that of the secondary grade teachers, the following recommendations have been made: " In view of the fact that separate scale of pay has been prescribed for the post of Primary School Headmasters in pursuance of the recommendations of the Fifth Tamil Nadu Pay Commission, all these incumbents who holds the said post as on 01.06.1988 shall be deemed to have been appointed as such with effect from the date on which they were working as Primary School Headmasters for arriving their services for purpose of fixation of pay etc. Therefore all the appointing authorities are hereby directed to issue formal orders of appointment to such Primary School Headmasters immediately. The vacancies available and that are likely to arise in future in the post of Primary School Headmasters on or after 1.6.88 shall be filled up by promoting the senior most Secondary Grade Teacher working in the respective unit of appointment pending issue of formal orders of Government, amending the rule relating to this method of recruitment of the said post. The receipt of these proceedings should be acknowledged." 9. The petitioners in the typed set of papers have produced the proceedings of the Chief Educational Officer, Nagercoil dated 11.8.1990, in which recommendations have been made to pay the scale of pay of Headmaster from 1.6.1988 at the rate of Rs.1400-2600 to 28 secondary grade teachers appointed as Headmasters of Primary Schools on various dates during the period from 1968 to 1989. In fact, one such person Thiru K.Balayan who was made as a primary school Headmaster at Elankadi South while he was working as Secondary Grade Teacher was granted special grade pay of Rs.2000-60-2300-75-3200 by the proceedings of the District Educational Officer, Kanyakumari at Nagercoil in Na.Ka.No.29837/72/90 dated 19.10.1990. 10. In the proceedings of the Director of School Education dated 2.1.1996 in Na.Ka.No.148856/C23/95, it is no doubt stated that whenever vacancies of Headmasters in primary school occurred in Kanyakumari, Nellai Kattabomman Districts and in Senkottai taluk, those working as Selection Grade and Special Grade Teachers based on District seniority have to be temporarily made as Headmasters, but at the same time, it is specifically stated that steps are being taken for regular appointment which is as follows: " nkw;go ,l';fspy; fhyp Vw;gLk; bjhlf;fg;g gs;spj; jiyik Mrphpah; gzp ,l';fSf;F me;je;j khtl;l';fspy; gzpg[hpa[k; rpwg;g [ epiy/njh;t[epiy. ,ilepiy Mrphpah;fshf gzpg[hpgth;fis khtl;l https://hcservices.ecourts.gov.in/hcservices/ mstpyhd gzp Kd;gpd; mog;gilapy; mth;fs; bgw;W tUk; Cjpa tpfpj;jjpy; bjhlf;fg; gs;spj; jiyik Mrphpah;fshf jw;fhypfkhf khWjypy; epakdk; bra;J bfhs;syhk;/ ,g;gzpapl';fis Kiwahf epakdk; bra;tJ Fwpj;J chpa tpjpfSf;f murpd; jpUj;jk; bgWtjw;F. Jdpahf eltof;if nkw;bfhs;sg;gl;Ls;sJ/ vdt[k; Mfnt. jw;nghJ eph;thf eyd; fUjp; khWjy; K:yk; epakdk; bra;tjhy; mth;fSf;F ve;jtpj epjpr;Rik Vw;glf;TlhJ vdt[k; mwptpf;fg;gLfpwJ/" 11. It is not in dispute that between 1.1.1996 and 31.5.2000, Headmasters in primary schools were appointed from the seniority list of the secondary grade teachers and such appointment was made by transfer. From 1.6.2000, appointment of Headmasters was made by promotion and the proceedings of the District Educational Officer dated 2.2.2001 shows that steps have been taken through Government for payment of salary to those teachers appointed as Headmasters of Primary Schools by transfer from 1.1.1996 to 31.5.2000. The relevant portion of the said proceedings is as follows: "1/1/96 Kjy; 31/5/2000 Koa Jtf;fg; gs;sp jiyik Mrphpah;fshf ,ilepiy Mrphpah; gzp K:g;g[ gl;oay;go gzp khWjy; K:yk; epakdk; bra;ag;gl;ldh;/ 1/6/2000 Kjy; gjtp cah;t[ K:yk; epakdk; mspf;fg;gl;Ls;sJ/ vdnt. 1/1/96 Kjy; 31/5/2000 Koa epakdk; bgw;w midj;J Jtf;fg; gs;sp jiyik Mrphpah;fSf;Fk;. jiyik Mrphpah; Cjpa epur;rp mspj;jhy; Vw;gLk; gzr; bryt[ tptuk; muRf;F mspf;f ntz;oa [s;sJ/ 1/1/96 Kjy; 31/5/2000 Koa gzp khWjy; K:yk; bjhlf;fg;gs;sp jiyik Mrphpah;fshf epakdk; bgwg;gl;lth;fs; rhh;ghd tptuj;jpid fPH;f;fz;l gotj;jpy; g{h;j;jp bra;J 27/2/2001 md;W khiy 5/00 kzpf;Fs; jdp egh; K:yk; ,t;tYtyfj;jpy; xg;gilf;f midj;J rhh;epiy mYtyh;fs; nfl;Lf;bfhs;sg;gLfpwhh;fs;/ " 12. That was again reiterated by the proceedings of the Director of School Education dated 13.9.2002 in Na.Ka.No.738/A2/2001. In the representation of the petitioner dated 7.3.2003 by enclosing the entire details regarding various petitioners and also by referring to various proceedings as stated above, the petitioner has requested for refixation of salary for the period from 1.1.1996 to 31.5.2000. In the meantime, in proceedings in Na.Ka.No.5509/E3/97 dated 11.3.2003 of the 4th respondent, viz., the Director of Elementary Education, Chennai, it was clearly admitted that from 1.6.1998 there is a separate scale of pay for the Headmasters of Primary Schools and Middle Schools and therefore, persons like the petitioners who were appointed as primary school Headmasters based on District seniority are recommended to be entitled for the scale of pay of Headmasters. https://hcservices.ecourts.gov.in/hcservices/ The operative portion of the said proceedings of the Director is as follows: " 1/6/88 Kjy; jiyikahrphpah; gzpapl';fspy; bjhlf;fg; gs;spf;Fk;. eLepiyg; gs;spf;Fk; jdpahf Cjpa tpfpj';fs; tH';fg;gl;Ls;sJ/ vdnt. 1/6/88y; ,Ue;j mj;jid gs;spfSf;Fk; jiyikahrphpah; gzpaplk; , Ug;gjhy; ,e;j eLepiyg;gs;spfSf;F jiyikahrphpah; gzpapl';fs; Kjd;ikf; fy;tp mYtyuhy; Kd;Dhpikapd;go epakdk; bra;ag;gl;oUe;jjhy; ,t;thrphpah;fs; U:/5900 - 200 - 9900 nkYk; jw;nghJ 5500 - 40 - 9900 vd;w Cjpa tpfpjj;jpy; Cjpak; bgWgth; bjhlf;ff; fy;tpj; Jiwf;F tpUg;gk; bjhptpj;J gzpahw;wp tUtjhYk;. Kd;Dhpikapy; cs;sth;fshf ,Ue;jhYk; 5900 - 200 - 9900 vd;w Cjpa tpfpjk; bgw jFjp gilj;jth;fshth;/ " 13. In the proceedings of the 4th respondent dated 1.4.2003 addressed to the Director of Elementary Education even the monetary commitment has been arrived at as Rs.21,37,793/- which is categorized as follows: Rufj;jpd; bgah; gzp khWjypy; gzp g[hpe;J tUk; jiyikahrphpah; vz;zpf;if brythFk; bjhif 1/ ehfh;nfhtpy; 25 1,47,139/- 2. RrPe;jpuk; 45 1,62,792/- 3. ,uhrhf;fk';fyk; 25 1,47,176/- 4/ Fsr;ry; 25 3,26,246/- 5. jf;fiy 35 3,08,041/- 6. jpUtl;lhh; 22 2,18,340/- 7. fU';fy; 40 3,10,474/- 8. FHpj;Jiw 28 2,56,087/- 9. K:";rpiw 26 2,61,538/- bkhj;jk; 271 21,37,793/- 14. It was in those circumstances, the earlier writ petition came to be filed by the petitioners in W.P.No.26005 of 2005, which was disposed of by this Court by order dated 16.8.2005. The relevant portion of the order is as follows: https://hcservices.ecourts.gov.in/hcservices/ " 3. Without going into the merits and circumstances of the case, considering the nature of the prayer there will be a direction to the first respondent to dispose of the appeal on merits and in accordance with law within a period of four weeks from the date of receipt of copy of this order. 4. While disposing of the appeal, the authorities shall have due regard to the order of the Supreme Court in State of Mizoram and another vs. Mizoram Engineering Service Association and another reported in (2004) 6 Supreme Court Cases 218 subject to the relevancy of the said decision." 15. It is not in dispute that a contempt application was filed for not passing orders as per directions of this Court and thereafter, the impugned order came to be passed. A reference to the impugned order makes it abundantly clear that the same has been passed in a mechanical manner without referring to any of the proceedings, and even the various points raised in the representation made by the petitioners on 7.3.2003 based on which the earlier writ petition came to be filed were not referred to. The impugned order only refers to one aspect viz., that originally the petitioners were appointed as Headmasters of Primary Schools by way of temporary arrangement, while it is not disputed that they worked as Headmasters between 1.1.1996 and 31.5.2000 and they were qualified to hold the posts of Headmasters of primary schools. 16. In such view of the matter, the impugned order of the first respondent is bereft of any particulars and has been passed without considering the representation of the petitioners. Therefore, the impugned order of the first respondent is set aside with direction to the first respondent to reconsider the case of the petitioners on merits and in accordance with law taking note of the above said various facts especially the undisputed fact that the petitioners, who had necessary qualifications, have all worked as Headmasters of Primary Schools having been appointed by transfer, based on District seniority in the cadre of Secondary Grade Teachers and pass appropriate orders regarding the grant of pay scale of Primary School Headmasters to the petitioners, as per the recommendations of 5th Pay Commission for the period from 1.1.1996 to 31.5.2000 and such orders shall be passed within a period of 12 weeks from the date of receipt of copy of this order. https://hcservices.ecourts.gov.in/hcservices/ The writ petition is allowed on the above terms. No costs. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar kh To 1.The Secretary to Government State of Tamil Nadu Education Department Fort St.George Chennai 600 009. 2.The Director of School Education Chennai 600 006. 3.The Director of Elementary Education Chennai 600 006. 4.The District Elementary Educational Officer Nagercoil, Kanyakumari District. 1 cc To The Government Pleader, SR.59979 +1 cc to Mr.V.Selvaraj, Advocate, SR.No.59845 W.P.No.8368 of 2008 PA {CO} TP/18.11.2009. https://hcservices.ecourts.gov.in/hcservices/