IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 12.08.2008 Coram THE HONOURABLE Mr. JUSTICE P.JYOTHIMANI Writ Petition No.13700 to 13702 of 2004 and W.P.M.P.Nos.909 to 911 of 2008 and W.V.M.P.No771 of 2005 A.Rajalakshmi Nandini ... Petitioner in W.P.No.13700 of 2004 R.Susili Jeyarani ... Petitioner in W.P.No.13701 of 2004 A.Rajasekar ... Petitioner in W.P.No.13702 of 2004 -Vs.- 1. The Government of Tamil Nadu, Rep. by its Secretary, School Education Dept. Fort St. George, Chennai– 600 009 .. 1st respondent in all the W.Ps 2. The Director of Elementary Education, College Road, Chennai – 600 006 .. 2nd respondent in all the W.Ps. 3. The District Elementary Educational Officer, Tirunelveli, Tirunelveli Dist .. 3rd respondent in all the W.Ps. 4. The Additional Assistant Elementary Educational Officer, Kizhapavur at Pavur Chathiram, Tirunelveli Dist. .. 4th respondent in all the W.Ps. 5. The Secretary, A.V.Primary School, Kizhapavur and Post, Tirunelveli District .. 5th respondent in W.P.No.13700 of 2004 6. The Secretary, Sri Gandhi Vidya Salai, Kadabogathi and post, Tirunelveli District – 627 814 .. 5th respondent in W.P.No.13701 of 2004 6. The Secretary, Hindu Primary School, Arunaperi and Post, Tirunelveli Dist., .. 5th respondent in W.P.No.13702 of 2004 https://hcservices.ecourts.gov.in/hcservices/ PRAYER.: Writ Petitions filed under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus to call for the records relating to the order of the second respondent issued in Na.Ka.No.39470/EG4/2003, dated 27.11.2003 and the consequential order of the fourth respondent passed in his proceedings No.1317/B2/2004 dated 31.03.2004 and quash the same in so far as the direction to respondents 3 and 4 to recover the Primary School Headmistress pay paid to the petitioners prior to the completion of five years of teaching experience alone is concerned taking note of the completion of five years of teaching experience only from 01.07.1998, 03.04.2000 and 01.11.1998, and consequently direct the respondents to continuously pay the petitioners’ pay as Primary School Headmistress pay from 01.07.1993, 01.07.1993 and 19.11.1993, respectively. For Petitioner in all the W.Ps. : Mr. K.Vijayakumar For Respondents in all the W.Ps. : Mr. K.H.Ravikumar, Govt. Advocate (Edn.) for R-1 to R-4 R5- NA in all WPs - - - C O M M O N O R D E R By consent of the learned counsel on either side the writ petitions are taken up for final disposal. Heard both. 2. In W.P.No.13700 of 2004 the writ petitioner was appointed as a Headmistress of a middle school, namely, A.V.Primary School, Kizhapavur and Post, Tirunelveli District, from 01.07.1993, likewise the writ petitioner in W.P.No.13701 of 2004 was appointed as a Headmistress of a middle school, namely, Sri Gandhi Vidya Salai, Kadabogathi and post, Tirunelveli District from 03.04.1995 and similarly the writ petitioner in W.P.No.13702 of 2004 was appointed as a Headmaster of middle school, namely, Hindu Primary School, Arunaperi and Post, Tirunelveli Dist., from 01.11.1993. It is not in dispute that at the time when the petitioners were appointed as Headmistresses / Headmaster, they were educationally qualified having Degree in Education but they were lacking five years of teaching experience as secondary grade teachers. It is also not in dispute that after their appointment, their appointment was regularised and the appointment was in respect of the approved posts and after the appointment they were granted Selection Grade after completion of ten years of service. It was thereafter after service of these candidates for more than ten years the second respondent namely the Director of Elementary Education has passed the impugned order on 27.11.2003 directing to recover the excess payment of salary on the basis that at the time of their appointment they were not having the required five years of teaching experience as Secondary Grade Teachers. Subsequent to the https://hcservices.ecourts.gov.in/hcservices/ said order the consequential order of recovery has been passed by the concerned Additional Assistant Elementary Educational Officer of Tirunelveli District for recovery of the amount from the year of their appointment. On the admitted facts of appointment of these persons as Headmistress / Headmaster of the middle school and the appointment having been approved and subsequent benefits of selection grade have been given, the question that has to be considered is whether at this point of time the impugned order of recovery can be made. 3. The fact that the appointment of these petitioners as Headmistress / Headmaster in the middle school in an approved post and confirmity of various benefits by selection are admitted in the counter affidavit filed by the respondents. 4. A similar issue came before this Court in the case of K.R.Chitra v. The Government of Tamil Nadu, Rep. by its Secretary and others in W.P.No.3665 of 1998 wherein by an order dated 08.02.2005, a learned Judge of this Court, by relying upon a judgment of the Supreme Court in the case of Shyam Babu Verma v. Union of India reported in (1994) 2 Supreme Court Cases 521 and subsequently followed by a Division Bench decision of this Court in the case of V.Vedham vs. The Director of School Education, Madras reported in 1992 AIEC 617 has held that inasmuch as the authorities at the time of their appointment were aware that the petitioners were not having the required qualification and inspite of the same the appointments were made for which there is no fault on the part of the petitioners, especially in the circumstances that the petitioners have been allowed to work as Headmistress / Headmaster in these long years by conferring various service benefits to them it is not proper for passing such recovery orders thereby setting aside those orders. The said judgment has been subsequently followed in a series of cases in similar circumstances like in the case of C.Sundari v. The Director of Elementary Education, Chennai – 6 and others in W.P. (MD) No.9474 of 2005 by an order dated 28.09.2007, wherein a learned Judge of this Court, on a similar circumstances by relying upon the earlier judgment in W.P.No.2088 of 2005 dated 31.01.2007 quoting the following paragraphs namely:- “5. It is an admitted fact that the date on which the petitioner was appointed, he did not posses the five years experience but while forwarding the proposal for approval of all the connected documents should have been sent along with the application. Under these circumstances, the respondents should be well award of the facts that the petitioner did not possesses five years of experience inspite of this, by an order dated 26.03.1996 his appointment was approved. After approving his appointment as a middle school headmaster without imposing any condition with regard to the fixation of salary, after the lapse https://hcservices.ecourts.gov.in/hcservices/ of nearly nine years, the department cannot pass the impugned order and refix the pay of the petitioner to his prejudice and order for recovery. Having approved the appointment of the petitioner as early as 1996 the respondents are estopped from passing the impugned order. 6. That apart, it is not case of the respondents that basing upon the misrepresentation made by the petitioner his appointment was approved. Yet another factor is the Government itself has relaxed the qualification of five years experience by G.O.Ms.No.97 School Education Department dated 05.07.2001”. has allowed the writ petition setting aside the impugned orders of recovery. This Court has also relied upon G.O.Ms.No.97 dated 05.07.2001 by which the Government itself has relaxed the five years experience as Secondary Grade Teachers for appointment to the post of middle school Headmaster and ultimately the said writ petition came to be allowed by setting aside the impugned orders of recovery and that was also subsequently followed by another learned Judge of this Court in a series of writ petitions in W.P.No.11663 to 11670 of 2004 by an order dated 03.10.2007. 5. As correctly pointed out by the learned counsel for the petitioner in (1994) 2 Supreme Court Cases 521 (referred to supra) as it was referred to by this Court on an earlier occasion as stated above, while dealing with a similar case where higher pay scale was erroneously paid to the petitioners therein from 1973 when the same was sought to be revised in 1984 the Supreme Court has held that the petitioners having received the higher scale of pay due to no fault of theirs, it is only just and proper not to recover any excess amount already paid to them. The Supreme Court has also dealt with the concept of equal pay for equal work and held that even in the absence of the required teaching qualification the nature of work done by the petitioners therein who were in confirmity with the academic qualifications required is same and therefore even on applying the same for equal pay for equal work, the recovery cannot be allowed since such recovery would amount to discrimination violating Article 14 of the Constitution of India. The operative portion of the judgment of the Hon ‘ble Apex Court is as follows:- “9. It was then urged on behalf of the petitioners that on principle of ‘equal pay for equal work’ they were entitled to pay scale of Rs.330-560. It was pointed out that they have been performing the same nature of work, which was being performed by other Pharmacists Grade-B who have been given the scale of Rs.330-560. The nature of work may be https://hcservices.ecourts.gov.in/hcservices/ more or less the same but scale of pay may vary based on academic qualification or experience which justifies classiciation. The principle of ‘equal pay for equal work’ should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of ‘equal pay for equal work’ to them. The principle of ‘equal pay for equal work’ has been examined in State of M.P. v. Pramod Bhartiya (1993) 1 SCC 539 : 1993 SC (L&S) 221 : (1993) 23 ATC 657 by this Court. Before any direction is issued by the Court, the claimants have to establish that there was no reasonable basis to treat them separately in matters of payment of wages or salary. Then only it can be held that there has been a discrimination, within the meaning of Article 14 of the Constitution.” and ultimately it was held by the Apex Court that in the absence of any fault on the part of the petitioners therein in fixing the pay, there is no justification for making the recovery. The said judgment of the Supreme Court was also subsequently reiterated by the Supreme Court in one another case of Sahib Ram v. State of Haryana reported in 1995 Supp (1) Supreme Court Cases 18 in the following words:- “5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erried in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.” https://hcservices.ecourts.gov.in/hcservices/ 6. In view of the judicial dictum as laid down above and the same having been followed by this Court consistently, the above writ petitions are allowed and the impugned orders directing the recovery and also the consequential orders of recovery are hereby set-aside. No costs. Consequently the connected WPMPs and WVMP are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Srk To 1. The Secretary, Government of Tamil Nadu, School Education Dept. Fort St. George, Chennai – 600 009 2. The Director of Elementary Education, College Road, Chennai – 600 006 3. The District Elementary Educational Officer, Tirunelveli, Tirunelveli Dist. 4. The Additional Assistant Elementary Educational Officer, Kizhapavur at Pavur Chathiram, Tirunelveli District. + 1 CC To Mr.K.Ravichandrabaabu, Advocate SR NO.44379 + 1 CC to the Government Pleader SR NO.44664 Writ Petition No.13700 to 13702 of 2004 and W.P.M.P.Nos.909 to 911 of 2008 and W.V.M.P.No771 of 2005 RS {CO} TP/1.9.08 https://hcservices.ecourts.gov.in/hcservices/