IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.01.2010 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.38450 of 2006 P.Durairaju ... Petitioner versus 1. The District of Elementary Education, College Road, Nungambakkam, Chennai - 6. 2. The District Elementary Education Officer, Villupuram District. 3. The Assistant Elementary Educational Officer, Vanur, Villpuram District ... Respondents PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.8201 of 1998 the file of the Tamil Nadu Administrative Tribunal to direct the respondents to award the Secondary Grade cadre pay scale and arrears of pay for the period of service rendered by the petitioner in the place of Higher Grade form 25.03.1969 to 27.06.1971 by treating the said service as Secondary Grade while being as qualified Secondary Grade Teacher and consequently direct the respondents to count the period of service from 23.05.1969 to 27.06.1971 rendered by the petitioner in the place of Higher Grade Service along with Secondary Grade. - - - For Petitioner : Mr.K.Thennan For Respondents: Mr.S.Shiva Shanmugam Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R The Original Application in O.A.No.8201 of 1998 before the Tamil Nadu Administrative Tribunal is the present writ petition. 2. The petitioner joined as a Higher Grade Teacher on 25.03.1969. Though, he possessed qualification of Secondary Grade Teacher, he was appointed only as Higher Grade Teacher. He became Secondary Grade Teacher on 28.06.1971. In these circumstances, the petitioner filed O.A.No.8201 of 1998 (W.P.No.38450 of 2006) praying for directions to the respondents to award the Secondary Grade cadre pay scale and arrears of pay for the period of service rendered by the petitioner in Higher Grade form 25.03.1969 to 27.06.1971 by treating the said service as Secondary Grade service, and consequently direct the respondents to count the period of service from 25.03.1969 to 27.06.1971 rendered by the petitioner as Secondary Grade service for all purposes. 3. Heard Mr.K.Thennan, learned counsel for the petitioner and Mr.S.Shiva Shanmugam, learned Government Advocate for the respondents. The learned Government Advocate made his submissions based on his instructions. 4. The learned counsel for the petitioner submits that the matter is squarely covered by the decision of this Court dated 20.06.2008 in W.P.No.26377 of 2006. The said decision relies on the order of Tamil Nadu Administrative Tribunal in O.A.Nos.282, 283 and 3441 of 1993. This Court has also noted that the order of the Tribunal became final. Paragraphs 2, 3 and 4 of the order in W.P.No.26377 of 2006, which are relevant for the purpose of the case, are extracted hereunder:- "2. The case of the petitioner is that he was appointed as Higher Grade Teacher from 03.10.1968 to 19.03.1971. Then he was posed as Secondary Grade Teacher from 20.03.1971 onwards. He was transferred to Adi Dravida Tribunal Welfare School from 01.09.1976. Then he was promoted as Elementary School Headmaster with effect from 01.06.1985 to 01.12.1989. From 02.12.1989 to 30.01.1995, he served as Secondary Grade Teacher and then again from 21.01.1995 onwards, the petitioner is working as Elementary School Headmaster. The petitioner with Secondary Grade qualification served in the higher grade place is entitled to count the higher grade service with his secondary grade service. Thus, since the petitioner possessed the qualification of secondary grade, he is entitled to get the period of service rendered by him in the post of higher grade teacher with secondary grade service and the arrears of pay. https://hcservices.ecourts.gov.in/hcservices/ 3. It has been brought to my notice by the learned counsel appearing for the petitioner that in O.A.Nos.282, 283 and 3441 of 1993, (A.Ilangovan Vs. The Director of Elementary Education and others), the Hon'ble Tamilnadu Administrative Tribunal, while considering the matter in issue had passed the following order:- "Indeed, there cannot be any intelligible difference between the Secondary Grade Certificate holders served in the Higher Grade place after 01.01.1971 or prior to 01.01.1971. This is the well settled principle in a catena of decisions of the Supreme Court. It has been held by the Supreme Court in a decision reported in Vo.II SC SLJ 498 that equality of opportunity for the purposes of seniority, promotion and like maters of employment is available only for persons who fall subsequently within the same class or unit of service. The fundamental right of equality means that person in like situation under like circumstance are entitled to be treated alike. What is enjoyed is that all citizens in matter of service under the state shall be treated alike under like circumstances and conditions. The primary aim is to prevent any person or class of persons from being singled out as a special subject for purposeful or invidious discrimination or hostile treatment. The purpose is to ensure similarly and equitable treatment and identify of treatment in matters relating to initial engagement, during continuance of that enjoyment and at the terminal end of that enjoyment. This principle has been laid down in the decision reported in A.I.R. 1957 PAT 617, A.I.R. 1962 SC 36. The pivotal question in the present case is whether the teacher similarly circumstanced in the same class or service or unit are treated alike. The factual position is that the teachers similarly situated in the same class category and unit are treated unequally. In other words, the equals are treated as unequals. Therefore, the question of hostile discrimination will arise. Moreover, in the instant case, fixing the cut off date as 01.01.1971 itself is arbitrary and unreasonable in view of the decisions reported in 1988 (2) CAT 250 and 1988 (3) SLJ.53. https://hcservices.ecourts.gov.in/hcservices/ When the secondary grade qualified teacher service period in the place of Higher Grade is treated as Secondary Grade from 01.01.1971 the same should also be extended to the Secondary Grade qualified teacher serving in the Higher Grade prior on 01.01.1971 also. Otherwise the same would amount to clear discrimination. In the facts and circumstances of the case, the applications are allowed and we direct the respondents to grant secondary grade scale of pay to the applicants for the period of service of the applicants in the Higher Grade place with the Secondary Grade qualification and it be counted as Secondary Grade service for the purpose of seniority, selection/special grade and for promotional opportunities to the higher post. All consequential service and monetary benefits shall be made within two months from the date receipt of this order or a copy thereof." 4. Admittedly no appeal had been preferred against the said order. In view of the said fact, learned counsel appearing for the petitioner strenuously contended that judgment rendered by the Tribunal in the above case covers the case of the petitioner also. The said fact is not disputed by the learned Additional Government Pleader appearing for the respondents." 5. Since, the matter is squarely covered by the decision in W.P.No.26377 of 2006 as stated above, the Writ petition is allowed and the first respondent is directed to settle all the monetary benefits to the petitioner within eight weeks from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar r n s To 1. The District of Elementary Education, College Road, Nungambakkam, Chennai - 6. https://hcservices.ecourts.gov.in/hcservices/ 2. The District Elementary Education Officer, Villupuram District. 3. The Assistant Elementary Educational Officer, Vanur, Villpuram District W.P.No.38450 of 2006 SR(CO) sra 04.02.2010 https://hcservices.ecourts.gov.in/hcservices/