IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.12.2009 CORAM: THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P.No.13563 of 2004 V.Rajeswari ... Petitioner. Vs. 1.The Government of Tamil Nadu, Rep. by its Secretary, School Education Department, Fort St. Geroge, Chennai – 600 009. 2.The Director of Elementary Education, College Road, Chennai–600 006. 3.The District Elementary Educational Officer, Tirunelveli, Tirunelveli District. 4.The Additional Assistant Elementary Educational Officer, Kurivikkulam, Tirunelveli District. 5.The Secretary, Veerappa Hindu Middle School, Malayan Kulam, Chidambarapuram Post, Sankaran Koil Taluk, Tirunelveli District. ... Respondents. PRAYER: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the order of the 2nd respondent issued in Na.Ka.No.39470/EG4/2003, dated 27.11.2003, and the consequential order of refixation ordered by the 4th respondent through his proceedings Na.Ka.No.1154/A1/2003 dated 03.03.2004 and quash the same in so far as the direction to respondents 3 and 4 to recover the Middle School Headmistress pay paid to the petitioner prior to the completion of 5 years of teaching experience alone is concerned taking note of completion of 5 years of teaching experience only from 01.06.1997 and consequently direct the respondents to continuously https://hcservices.ecourts.gov.in/hcservices/ pay the petitioner's pay as Middle School Headmistress pay from 01.06.1992 and arrears from 01.11.1989 with all other benefits. For Petitioner : Mr.K.Ravichandrababu For Respondents : Mrs.C.K.Vishnupriya Additional Government Pleader O R D E R The writ petition is filed praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the order of the 2nd respondent issued in Na.Ka.No.39470/EG4/2003, dated 27.11.2003, and the consequential order of refixation ordered by the 4th respondent through his proceedings Na.Ka.No.1154/A1/2003 dated 03.03.2004 and quash the same in so far as the direction to respondents 3 and 4 to recover the Middle School Headmistress pay paid to the petitioner prior to the completion of 5 years of teaching experience alone is concerned taking note of completion of 5 years of teaching experience only from 01.06.1997 and consequently direct the respondents to continuously pay the petitioner's pay as Middle School Headmistress pay from 01.06.1992 and arrears from 01.11.1989 with all other benefits. 2.The petitioner was appointed as per G.O.Ms.No.1297 Education Department dated 21.07.1979. Then she was promoted/appointed as a Headmistress of the 5th respondent school from 01.11.1989 consequent to the retirement of the then Headmistress. Since the petitioner had B.Ed. degree and also in terms of the Government order, she being eligible for appointment of Headmistress, was approved by the respondent/Education Department and was paid salary from 01.06.1992. Petitioner claiming salary from 01.11.1989 to 31.05.1992, filed W.P.No.12244 of 1996 and was granted the same by the order of this Court dated 09.02.2004. It is the case of the petitioner having approved the petitioner's appointment the impugned order has been passed denying the benefits already given and that too arbitrarily. 3.The second respondent by his proceedings Na.Ka.No.39470/EG4/2003, dated 27.11.2003 gave instruction to the Subordinate Officers namely respondents 3 and 4 to the effect that the Primary and Middle School teachers who were promoted and appointed as Headmasters/Headmistress without five years of teaching experience in terms of Rule 15 Annexure V of the Tamil Nadu Recognized Private School (Regulation) Rules 1974, will not be entitled to the higher salary as applicable to https://hcservices.ecourts.gov.in/hcservices/ Headmaster/Headmistress and the higher salary paid shall be recovered. However, the second respondent gave an option to the school authorities to send the proposal to the Government for exemption. Based on the proceedings of the second respondent dated 27.11.2003, the 4th respondent issued instruction on 03.03.2004 in Na.Ka.No.1154/A1/2003 for re-fixing the scale of pay applicable to Headmaster/Headmistress from the period on completion of 5 years and ordered recovery of the salary and other allowances paid before completion five years. Challenging the same the preset writ petition has been filed. 4.In the case of similarly placed Headmistress, this Court, by an order dated 10.06.2009 passed in W.P.No.24763/2005, set aside the proceedings of the second respondent, the Director of Elementary Education and consequential order passed by the 4th respondent, the Assistant Elementary Education Officer. The relevant portion of the decision reads as follows: "5.The petitioner in this case has worked as Headmistress for more than nine years and the respondents have approved her appointment. The respondent was aware of the appointment and the petitioner was paid the salary and other benefits without any demur. The order of appointment and approval has not been cancelled or annulled. It is still in force. The petitioner has performed the duty of Headmistress and she is being paid for the same. 6.The Honourable Supreme Court in the case of Shyam Baby Verma Vs. Union of India reports in (1994) 2 SC 521 has held that petitioner having received higher scale of pay due to no fault on them, it is only fit and proper not to recover any excess amount already paid. This has been followed by this Court in several cases and the authorities have accepted the verdict. 7.The petitioner in this case worked in the capacity of Headmistress for more than nine years and for which service salary applicable to the said post has been paid without demur. There is no justification for recovery of the amount and refixation of pay. The order of appointment is approved by the authority and it is not cancelled or annulled. There is no misrepresentation or misstatement by the petitioner. The petitioner has performed the duties of the Headmistress and has been https://hcservices.ecourts.gov.in/hcservices/ paid the salary applicable to the post. In such circumstances, the order impugned in this writ petition cannot be sustained. Therefore refixation of pay does not arise. The impugned order is set aside. The writ petition is allowed." The present case squarely falls within the scope of the above said order on all aspects and the impugned proceedings have to be set aside and the petitioner is entitled to the relief as sought for. 5.One other factor which is in favour of the writ petitioner is that the petitioner filed W.P.No.12244 of 1996 claiming salary for the period of 01.11.1989 to 31.05.1992, which was granted by this Court by order dated 09.02.2004 and the respondent department accepted the same. Therefore, the respondent cannot now take a different stand with regard to the appointment of the petitioner as Headmistress. 6.In view of the above, the impugned proceedings are set aside and the writ petition is allowed as prayed for with the consequential benefits. No costs. vsm Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1.The Secretary, Government of Tamil Nadu, School Education Department, Fort St. Geroge, Chennai – 600 009. 2.The Director of Elementary Education, College Road, Chennai – 600 006. 3.The District Elementary Educational Officer, Tirunelveli, Tirunelveli District. https://hcservices.ecourts.gov.in/hcservices/ 4.The Additional Assistant Elementary Educational Officer, Kurivikkulam, Tirunelveli District. 5.The Secretary, Veerappa Hindu Middle School, Malayan Kulam, Chidambarapuram Post, Sankaran Koil Taluk, Tirunelveli District. + 1 cc to Mr.K. ViJayakumar, Advocate SR.66635 + 1 cc to Government Pleader SR.66280 W.P.No.13563 of 2004 MDR(CO) EU 22.12.2009. https://hcservices.ecourts.gov.in/hcservices/