IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.06.2009 CORAM THE HON'BLE MR. JUSTICE S.MANIKUMAR W.P.No.20506 of 2006 O.A.No.7490 of 1995 M.Palanisamy ... Petitioner vs 1. The Director of Elementary Education, College Road, Nungambakkam, Madras-6. 2. The District Elementary Education Officer, Salem District, Salem 636 007. 3. The Assistant Educational Officer, Thalaivasal Panchayat Union Schools, Attur Taluk, Salem District 636 112. ... Respondents This petition came to be numbered by transfer of O.A.No.7490 Of 1995 on the file of the Tamil Nadu State Administrative Tribunal praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the first respondent proceeding Na.Ka.No.00384/ED2/95, dated 02.08.1995, set aside the same and further direct the respondents to fix the pay of the petitioner in the cadre of "Secondary Grade Middle School Headmaster", with effect from the date 03.09.1987 from the date of promotion as Secondary grade Middle School Headmasterand award the arrears of pay with all consequential benefits. For Petitioner ... Mr.K.Thennan For Respondents ... Mr.S.Gopinathan, Addl. Government Pleader ORDER It is the case of the petitioner that he has been denied the pay scale, applicable to the post of "Secondary Grade Middle School Headmaster" with effect from 03.09.1987 by the orders of the Director of Elementary Education, Chennai, dated 2.8.1995. Hence, he has filed the Original Application before the Tribunal, which has been subsequently transferred to this Court and renumbered as present Writ Petition, to quash the same and consequently for a direction to fix his scale of pay in the cadre of Secondary Grade School Headmaster, with effect from 3.9.97, the date on which, he was promoted and for consequential monetary benefits. 2. Facts of the case are as follows:- The petitioner was appointed as Secondary Grade Assistant on 29.3.1982 in Mani Vilundar Kuravar Seerthirutha Middle School, Salem District and promoted as Secondary Grade Middle School Headmaster on 03.09.1987 in the same school. On 01.10.1993, the said School was taken over by Thalaivasal Panchayat Union School and brought under the control of Department of Elementary Education. While absorbing the said school into Thalaivasal Panchayat Union School, teachers working in Mani Vilundar Kuravar Seerthirutha Middle School were also absorbed into the Educational Department in the same capacity. 3. The petitioner has further submitted that when he was promoted as Secondary Grade Middle School Headmaster on 3.9.1987, the school was under the control of Backward Classes Department. The petitioner's seniors in the backward classes schools were promoted as wardens in the Hostels, whereas, the petitioner was appointed as Secondary Grade Middle School Headmaster in the same school. The petitioner has further submitted that as per the Special Rules for Elementary Education Subordinate Services, the Secondary Grade Headmaster of Middle School is a separate category and it is a promotional post to the Primary School Headmaster and Secondary Grade Assistant. Before the Fifth Pay Commission, the Secondary Grade School Headmasters were awarded higher pay scale than the Elementary School Headmasters. After the Fifth Pay Commission, with effect from 01.06.1988, the Secondary Grade Middle School Headmasters and B.T. Grade Middle School Headmasters were awarded the same scale of pay. Therefore, the petitioner is entitled to get the Middle School Headmaster (Secondary Grade) pay scale with effect from the date of his promotion, i.e., from 3.9.1987 onwards. 4. The petitioner has further submitted that when he was working as Middle School Headmaster in the Backward Class Department, he preferred an appeal to the District Backward Class Welfare Officer, Salem District for fixation of pay in the cadre of Secondary Grade Middle School Headmaster. When the appeal was pending, the School was taken over by Thalaivasal Panchayat Union and he was absorbed into the Department of Elementary Education. Therefore, he made appeals to the Director of Elementary Education, Chennai and the District Elementary Educational Officer, Salem District, respondents 1 and 3 herein for the above relief. Though he was fully qualified for the post of Secondary Grade Middle School Headmaster and appointed to such post on seniority, the Director of Elementary Education, Chennai, the first respondent herein, by order dated 02.08.1995, has rejected his request for fixation of scale of pay. The said order is under challenge in this Writ Petition. 5. Mr.K.Thennan, the learned counsel for the petitioner submitted that post of Middle School Headmaster (Secondary Grade) is a promotional post, to the Secondary Grade Assistant under the Tamil Nadu Elementary Educational Subordinate Service Rules, vide G.O.Ms.No.1383, Education (PUS-1) Department, dated 23.8.1988 and it carries a higher scale of pay. The petitioner was duly promoted to the post of Middle School Headmaster (Secondary Grade) in accordance with the Special Rules and therefore, he is eligible for the pay scale in the promotional post, in accordance with the Fundamental Rules 22(B). 6. Learned counsel for the petitioner further submitted that the school was initially under the control of Backward Class Department and on 1.10.1993, it was taken over by Thalaivasal Panchayat Union School with the same capacity and brought under the control of Director of Elementary Education. Even after the absorption, the petitioner was allowed to continue as Middle School Headmaster (Secondary Grade) till his retirement, i.e., on 28.2.2007. He further submitted that while the Elementary Educational Officer, Thalaivasal, in his proceedings dated 12.5.1994, recommended to fix the pay of the petitioner in the post of Middle School Headmaster (Secondary Grade), the rejection of his request by the Director of Elementary Education, Chennai on the ground that the petitioner did not possess the required educational qualification to the post of Elementary School Headmaster, is arbitrary and erroneous. 7. Referring to G.O.Ms.No.784, R & D and LA Department dated 14.5.1979 and the decision of a Division Bench of this court, which was confirmed by the Supreme Court in C.A.No.994 of 1980, dated 1.3.1989, learned counsel for the petitioner submitted that the post of Middle School Headmaster and Primary School Headmaster in the Panchayat Union School should be treated as promotional post for the purpose of Rule 22 (a) of the Tamilnadu Panchyat Union Council Establishment Rules, 1964, with effect from 1.10.1970, i.e., the date on which, the new scale of pay for Headmaster of Middle Schools was given effect to. As the petitioner was promoted to the post of Secondary Grade Middle School Headmaster, based on seniority, he is entitled to the scale of pay applicable to the said post. 8. Referring to G.O.Ms.No.65, Education (B1) Department, dated 11.1.1979, learned counsel for the petitioner further submitted that a separate scale of pay was awarded to the category of Middle School Headmaster (Secondary Grade). He further submitted that as per G.O.Ms.No.50, Social Welfare Department, dated 25.1.1980, the fixation of pay of Middle School Headmaster in the Educational Department was also extended to Headmasters of Middle Schools of Harijan and Tribal Welfare Department and therefore, when the petitioner was promoted as Middle School Headmaster (Secondary Grade) in Mani Vilundar Kuravar Seerthirutha Middle School, which was then under the control of Backward Classes Department, he is entitled to the higher scale of pay. 9. Inviting the attention of this court to the judgement of the Supreme Court in C.A.No.994 of 1980, dated 1.3.1989, learned counsel for the petitioner submitted that after the pronouncement of the abovesaid judgement, the Government of Tamilnadu, in compliance with the directions of the Supreme Court, have issued G.O.Ms.No.1436, Education (PUS-2) department, dated 5.10.1989 and ordered that the posts of Middle School Headmaster and Primary School Headmaster in Panchayat Union Schools should be treated as promotional post, for the purpose of Rule 22(a) of the Tamillnadu Panchyat Union Council Establishment Rules, 1964, with effect from 1.10.70, the date on which, the new scale of pay for Headmasters of Middle School was given effect to and therefore, when the Government have accepted the posts of Middle School Headmaster and Primary School Headmaster in Panchayat Union Schools as promotional post, then the petitioner, who was promoted as Headmaster of Mani Vilundar Kuravar Seerthirutha Middle School, on the basis of the seniority, is entitled to higher scale of pay. 10. Referring to the few judgements of the Supreme Court as well as this Court, learned counsel for the petitioner further submitted that since the petitioner had discharged his duties and responsibilities, attached to the post of Headmaster of Middle School (Secondary Grade), he is entitled to the scale of pay applicable to the said post. He further submitted that even if a person is promoted to a higher post, not being qualified to hold that post, as long as, he has been discharging his duties in the promotional post, he is entitled to get the pay and allowance, admissible to the said post. 11. Learned counsel for the petitioner further submitted that when the Assistant Educational Officer, Thalaivasal in his proceedings, dated 12.5.1994, had recommended fixation of pay of the petitioner in the post of Middle School Headmaster (Secondary Grade), the first respondent ought to have considered the same in proper perspective and granted him the relief, as stated supra. The rejection of the petitioner's request on the ground that the petitioner did not possess the required educational qualification for the post of Middle School Headmaster, is arbitrary. He further submitted that more than one place in the counter affidavit, the respondents themselves have admitted that the petitioner was holding the post of Middle School Headmaster from 3.9.1987 to 28.2.2007, the date on which, he retired and therefore it is not open to the respondents to contend that he was not qualified to hold the post of Middle School Headmaster (Secondary Grade) and therefore, not entitled to the monetary benefits applicable to the post. 12. The respondents have filed their counter affidavit. Reiterating the same, Mr.S.Gopinathan, learned Additional Government Pleader, submitted that the petitioner was appointed as Secondary Grade Assistant on 29.3.1982 in Mani Vilundar Kuravar Seerthirutha Middle School, Salem District and was subsequently promoted as Headmaster in the same school on 3.9.1987. The posts of Secondary Grade Teacher and Headmaster were interchangeable and carried the same scale of pay. By proceedings, dated 28.09.1993 of the District Collector, Salem, the School, in which the petitioner was working, was transferred to the Education Department and he was relieved on 30.9.1993 A.N., and joined duty in the Education Department on 1.10.1993. As the petitioner had passed S.S.L.C., with Secondary Grade Teacher Training Certificate, he is eligible only for the scale of pay applicable to the post of Secondary Grade Teacher. 13. Learned Additional Government Pleader further submitted that before 1.6.88, the Senior Secondary Grade Teacher in the school, was promoted to act as Headmaster and he was eligible to get Special Allowance of Rs.10, Rs.20 and Rs.30, according to students' strength. Even though he had acted as Middle School Headmaster (Secondary Grade), he was not fully qualified to hold the post and therefore, his pay was not fixed in the scale of pay, applicable to Middle School Headmaster. He further submitted that as per Special Rule for Tamilnadu Elementary Educational Subordinate Services, issued in G.O.Ms.No.1383, Education (PUS-1) Department, dated 23.8.1988, persons, who possess Trained Teacher Certificate of the Secondary Grade or a Senior Grade Basic Trained Teacher Certificate awarded by the Government of Tamilnadu or its equivalent, would be promoted as Primary School Headmaster on the basis of their seniority. The primary school Headmasters, who possessed B.Ed would be promoted as Middle School Headmaster according to their seniority. But the petitioner was not qualified to hold the post of Middle School Headmaster. 14. Learned Additional Government Pleader further submitted that as per the directions of the Director of Elementary Education, Chennai, dated 30.5.1994, "the teachers absorbed from Backward Class and Most Backward Class Department Schools to different schools in the Education Department should be given their pay and other benefits, including the terminal benefits, pension, as given in the Educational Department. Therefore, in accordance with the above guidelines, the seniority of the petitioner was fixed in the post of Secondary Grade teacher and he was also given selection Grade on 1.8.1992 and Special Grade on 1.6.2002 and he retired on 28.2.2007. In these circumstances, he submitted that as the petitioner was not qualified to be promoted as Middle School Headmaster (Secondary Grade), he was not given the scale of pay applicable to the said post. For the above said reasons, he prayed for dismissal of the Writ Petition. Heard the learned counsel for the parties and perused the materials available on record. 15. Before adverting to the facts of this case and the rival submissions, it is relevant to extract the qualifications for the post of Middle School Headmaster (Secondary Grade), as per Special Rules for the Tamilnadu Elementary Subordinate Service. In G.O.Ms.No.1383, Education (PUS-I) Department, dated 23.8.1988, Panchayat Union Teachers and certain categories of non-teaching staff of the Panchayat Union Schools have been absorbed as Government Servants with effect from 01.06.1981. In order to regulate the service conditions of teaching staff of Panchayat Union Schools, the Government issued Special Rules to those absorbed staff. Accepting the proposals of the Director of School Education, the Government issued orders in above mentioned Government Order for framing Special Rules for the Tamilnadu Elementary Subordinate Service to govern the Panchayat Union teachers and the said rules were deemed to have come into effect on and from 01.06.1981. The constitution of the Tamil Nadu Elementary Educational Subordinate Service consists of the following class and categories: Class Category I 1) Headmasters/Headmistress of Middle Schools B.Ed. 2) Language Pandit Grade-I (Tamil) and Language Pandits Grade-I (other than Tamil) II Headmasters/Headmistress of Middle Schools (Secondary Grade) III 1) Headmasters/Headmistress of Primary Schools (Secondary Grade) 2) Secondary Grade teachers IV Higher Grade Teachers V Physical Education Teachers VI Pro-Vocational Instructors (Full-time) 16. Rule 2 of the said Special Rules deals with appointments to the above class/category of members of the said service and it reads as follows: Class Category Method of appointment I Category  I Headmaster/ Headmistresses of Middle Schools (B.Ed Grade) Category  II Language Pandits Grade I (Tamil) and Language Pandit Grade I (other than Tamil) (i) Promotion from Class II of the service; or Class III of the service (ii) Transfer from Category 2 Language Pandit Grade -I of Class I of the said service provided that if no B.Ed., or Language Pandit Grade I Teacher is available for appointment to the category within the unit, such vacancy shall be filled up by B.Ed., Teacher or Language Pandits Grade I by transfer from other units. (iii) When no qualified and suitable candidate is available by any of the methods specified in item (1) and (ii) above, by direct recruitment. (i) By promotion from Headmasters/Headmistresses of Class II or Class III of the Services; (ii) By transfer of qualified personnel from any other unit; (iii) By direct recruitment Provided that for appointment to substantive vacancies in the posts of Language Pandits 1/3 shall be filled by direct recruitment and 2/3 by promotion II Category  I Headmasters/ Headmistresses of Middle Schools (Secondary Grade) By promotion from Class III of the service III Category  I Headmasters/ Headmistresses of Primary Schools (Secondary Grade) Category  II Secondary Grade Teachers By transfer from Category II. (i) By direct recruitment, or (ii) By promotion from any post in the service on a lower scale of pay. Provided that fifty percent of the substantive vacancies arising in the category shall be filled by direct recruitment. 17. Rule 6 of the Special Rules for the Tamil Nadu Elementary Education Subordinate Services, deals with the age and qualifications for the post in the above said Subordinate service. As per Rule 6(b)(i), no person shall be eligible for appointment to the service in the post specified in Column (2) of Annexure, unless he possesses the minimum qualifications specified in the corresponding entry in column (2) thereof. Method of appointment and the qualifications to various categories of posts are given in the Annexure referred to in Rule 6(b)(i) and the relevant classes are as follows: Class Name of Category Method of appointment Qualification I Headmasters Headmistresses of Middle Schools (B.Ed.) Grade Promotion and transfer 1. A degree of any university in the State of a degree of equivalent standard B.T or B.Ed., degree of any University in the State; or 2.(a) A Degree in Tamil of any University in the State; or (b) Minimum General Educational Qualifications as defined in Schedule I to the General Rules for the Tamil Nadu State and Subordinate Service and title of Oriental Learning conferred by any University in the State in the language. Provided that persons appointed as Tamil Pandit in any school prior to 01.04.1976 shall be eligible for appointment in any other school even after 01.04.1976 and 3. B.T or B.Ed., degree of any University in the State or a Trained Teacher Certificate of the Secondary Grade or a Senior Basic Grade Trained Teachers Certificate or successful completion of the pandit training course of Diploma in Teaching awarded by any University in the State. II Headmasters/ Headmistresses Middle School (Secondary Grade) Promotion A Trained Teacher's Certificate of the Secondary Gr., or a Senior Grade Basic Trained Teachers Certificate awarded by Government of Tamil Nadu or its equivalent. III Headmasters/ Headmistresses Primary School 2. Secondary Grade Teacher By transfer By Direct Recruitment for transfer and promotion A Trained Teacher's Certificate of the Secondary Gr., or a Senior Grade Basic Trained Teachers Certificate awarded by Government of Tamil Nadu or its equivalent. A trained Teacher's Certificate of the Secondary Gr., or a Senior Grade Basic Trained Teachers Certificate awarded by Government of Tamil Nadu or its equivalent. 18. Let me now consider the position in the erstwhile Panchayat Union Schools, as to the eligibility of the Secondary Grade Teachers for promotion to the post of Headmaster of Primary school or Middle school in Panchayat Union. 19. The Government in G.O.Ms.No.784, Rural Development and Local Administration Department, dated 14.05.1979, issued orders that the posts of Middle School Headmaster and Primary School Headmaster in Panchayat Union Schools should be treated as promotional posts for the purpose of Rule 22(a) of the panchayat Union Council, Estabishment Tamil Nadu Rules, 1964 with effect from 01.10.1979, the date on which, the new scale of pay for Headmaster of Middle Schools has been given effect to. Hence 'Seniority' shall be the criterion for promotion of Secondary Grade teacher as Headmasters of Middle schools and Primary schools. However due to issuance of various government orders, regulating the promotion to the post of Headmasters, Middle School and orders of the Court, which resulted in promotion and reversion of both seniors and juniors from 1.10.1970. The Government have decided to give effect to the strict seniority for promotion to the post of Headmasters, Middle School and Primary School only with effect from 1.6.1979. As per the Government Order, the Secondary Grade Teacher, who had acted as Headmaster of Middle School as on 01.10.1970, by virtue of seniority, may be allowed to continue as Headmaster, Middle School and his pay refixed in accordance with the orders issued in G.O.Ms.No.65, Education, dated 11.01.1979. 20. The above said government order has been upheld by the Supreme Court. A conjoint reading of G.O.Ms.No.1383, Education Department, dated 23.8.1988 and G.O.Ms.No.784 Rural Development and Local Administration Department, dated 14.05.1979, as confirmed by the Supreme Court, makes it clear that the post of Headmaster/Headmistress of Middle School (Secondary Grade) falling under the category-I of Class-II of the Special Rules for Tamilnadu Elementary Subordinate Service, is a promotional post for Class-III, which consists of feeder category post of Headmasters/Headmistress (Secondary Grade) Therefore, Secondary Grade Teachers are eligible for promotion to the post of Headmaster of Middle School and Primary School, based on their seniority. The same was the position under the Tamil Nadu Panchayat Union Council Establishment Rules, 1964 and that the post of Middle School Headmasters and Primary School Headmasters in Panchayat Union Schools were treated as promotional posts for the purpose of Rule 22(a) of the Tamilnadu Panchayat Union Council Establishment Rules, 1964 with effect from 1.10.1970, the date on which, new scale of pay for Headmaster of Middle schools was given effect to. Though G.O.Ms.No.784 was confirmed by the Supreme Court, the appointment of the Headmasters of Middle Schools made between 1.10.1970 and 31.3.1978 and their pay was directed to be regulated as per the annexure contained in the said Government Order. 21. In the case on hand, the petitioner was appointed as Secondary Grade Teacher on 29.3.1982 in a Middle School controlled by the Backward Classes Department and subsequently promoted as Headmaster in the same school on 3.9.1987, in which post he continued till 30.9.1993. It is the contention of the respondents that upto 1.6.1988, the posts of Secondary Grade Teacher and Headmaster were interchangeable and carried the same scale of pay. However, as per G.O.Ms.No.23, Backward Class Department dated 8.5.1993 and the orders of the Collector, Salem District, dated 28.9.1993, the said Middle School was transferred to the Director of Elementary Education and that the petitioner joined duty on 1.10.1993. No doubt, in G.O.Ms.No.65, Education (B1) Department, dated 11.01.1979, the Government, after accepting the recommendations of the 3rd Tamilnadu Pay Commission, directed that the pay of the Headmasters of Middle School under all types of managements be fixed in the new scale of Rs.250-10-400 (plus a Special pay of Rs.15/- per month) and their pay be fixed notionally with effect from 2.10.1970, but monetary effect was being given only with effect from 01.09.1972. The Government have further ordered that the Headmasters of Middle Schools, on fixation of their pay as directed above, be allowed to draw arrears in the full with effect from 1.9.1972, as ordered in G.O.Ms.No.1324, Finance Department. dated 30.9.1972. The said Government Order deals only with the cases of Headmasters of Middle Schools under all types of management, giving weightage for the services put in by them as Secondary Grade Teacher as well as Headmasters in Middle School, prior to 1.10.1970, for fixation of pay in the new scale of pay of Rs.250-10-400 (+ Special pay of Rs.15/- per month) prior to 2.10.1970. It is evident from the Government Order that the Headmasters of Middle Schools, who were in the scale of pay of Rs.90-140/- prior to 02.10.1970 were alone directed to be fixed in the scale of pay of Rs.250-50-400/- . 22. G.O.Ms.No.50, Social Welfare Department, dated 25.1.1980, reads that the orders issued in G.O.Ms.No.65, Education, dated 11.1.1979, for fixation of pay of Middle School Headmasters be extended to the Headmasters of Middle schools of Harijan and Tribal Welfare Department. Therefore, when the Government in G.O.Ms.No.65, Education (B1) Department, dated 11.1.1979 have decided to give weightage for the services put in by the Headmasters of Middle Schools (Secondary Grade) as Headmasters in the Middle School, therefore, the same analogy has to be applied in the case of the petitioner, who was promoted as Headmaster of Middle School (Secondary Grade) in Mani Vilundar Kuravar Seerthirutha Middle School, Salem District under the control of Backward Classes Department. Applying the said analogy, the petitioner would reach the selection grade in the post of Secondary Grade Teacher, on completion of 10 years of service from 29.03.1982, when he was appointed as Secondary Grade Teacher in Mani Vilundar Kuravar Seerthirutha Middle School, Salem District and promoted as Secondary Grade Middle School Headmaster on 03.09.1987. 23. The relevant portion in G.O.Ms.No.1436, Education (PUS.2) Department, dated 05.10.1989 are as follows: "(a) A Secondary Grade teacher who acted as Headmaster, Middle School on 01 -10 - 70 by virue of seniority maybe allowed to continue as Headmaster, Middle School and his pay refixed In accordance with the orders Issued In the G. O. first read above. (b) A Secondary grade teacher who acted as Headmaster, Middle School after 01 -10-70, by virtue of seniority and continued thereafter as Headmaster without reversion may be allowed to continue as Headmaster and his pay refixed according to the orders Issued In the G.O, first read above, with effect from the date of his first promotion as Middle School Head-master. (c) ............ (d)