IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.01.2011 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.685 of 2004 T.R.Iswaran ... Petitioner -vs- 1. State of Tamil Nadu, Rep. by its Secretary to Govt. Education Department, Fort St. George, Chennai -600009. 2. District Educational Officer, Cheranmahadevi, Tirunelveli District. 3. Chief Educational Officer, Tirunelveli. 4. Director of School Education, Chennai – 600006. 5. Tilak Vidyala Higher Secondary School, rep. by its Secretary, Kallidaikurichi. ... Respondents Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records of the first respondent in O.M.1918/W8/88 dated 13.01.1989 and proceedings in O.M.35210/W8/91 dated 02.08.1991 and quash the same and consequently direct the 2nd respondent to pay my salary and emoluments with interest as that of a post graduate head master with effect from 01.07.1978 till my retirement on 31.05.1992. Prayer amended as per order dated 09.08.2006 in W.P.M.P.No.17150 of 2006 in W.P.No.685 of 2004. For Petitioner :M/s.Annamathew for T.I.Ramanathan For Respondents :Mrs.M.Sneha, Govt. Advocate for R1 to R4 Mr.T.M.Hariharan for R5 https://hcservices.ecourts.gov.in/hcservices/ ORDER The amended prayer in the writ petition is for issuance of a writ of Certiorarified Mandamus to quash the order passed by the first respondent dated 13.01.1989 and 02.08.1981 and to direct the second respondent to pay the petitioner's salary and emoluments as that of post graduate headmaster with effect from 01.07.1978 till his retirement on 31.05.1992 with interest. 2. The case of the petitioner is that he obtained his B.A. degree in Geography during 1958 and subsequently, completed degree course in teaching from the Teachers College, Saidapet, Chennai. The petitioner was employed as a teacher and worked as headmaster between 1963 and 1966 in Meenakshisundaram High School, Idakal in Tenkasi Taluk and from 1966 to 1968 worked as B.T. Assistant in Theerthapathi High School, Ambasamudaram and subsequently as headmaster in the S.N.Ramaswami Raja High School, Gomathipuram between 1968 to 1976. During 1976, he joined the Tilak Vidyalaya High School, Kallidaikuruchi, the fifth respondent herein as headmaster and continued as such till his date of superannuation. The said institution was a fully aided institution. 3. Consequent upon the introduction of higher secondary classes, during 1978, the fifth respondent school was upgraded as higher secondary school. The Government issued an order in G.O.Ms.No.720, dated 28.04.1981, prescribing the qualifications for the post of headmaster, teachers etc., in higher secondary schools. In terms of the said Government order, the minimum educational qualification for the post of headmaster in higher secondary school was a post graduate degree or a degree of equivalent standard or a certificate issued by the University of Madras for having undergone certificate course in Science and Humanities for graduate teachers. It is further submitted that persons, who did not possess the qualification and who were holding the post, were given 5 years time from 01.01.1978 to acquire the qualifications and on such acquisition after the concurrence of the Tamil Nadu Public Service Commission, they were to be absorbed. Further, the teachers and headmasters with graduate qualification, who were in service prior to the coming into force of the rules were termed as inducted teachers and inducted headmasters. In terms of the proceedings of the Joint Director of School Education dated 30.03.1982, applications were invited from inducted teachers and inducted headmasters and the same were approved and who have applied for post graduate course to under go special vocation cum correspondence course in Mathematics, Physics, Chemistry, Botany and Zoology. Though, the petitioner was functioning as a headmaster, as he was a graduate in Geography, he was not eligible to attend the course. Subsequently, by G.O.Ms.No.954, dated 23.05.1983, the qualifications were modified and a ten months post graduate teachers certificate course was conducted by the State Council for Educational https://hcservices.ecourts.gov.in/hcservices/ Research and Training (SCERT) and candidates, who completed the course successfully were considered to be fully qualified to teach higher secondary schools and also entitled to the scale of pay. According to the petitioner, this provision was introduced to tide over the practical difficulty experienced by the inducted teachers and that on successful completion of the course, the candidates were deemed equivalent to a post graduate teacher. However, this concession was extended only to the inducted teachers, who were in service. Subsequently, by G.O.Ms.No.1041, dated 04.01.1985, the SCERT course was also conducted for inducted teachers in Economic, Geography, Home Science etc and the petitioner attended the course and successfully completed the same on 27.09.1987. Thus, according to the petitioner on completion of the SCERT course, he is deemed to be a post graduate teacher and eligible to be appointed as headmaster of the higher secondary school and draw the scale of pay attached to the post. 4. Based on such interpretation, the petitioner requested the authorities to fix his pay for par with the scale of pay of post graduate headmaster of higher secondary school. However, such request was negatived by stating that the petitioner possessed only a bachelor degree and not a post graduate degree and therefore, ineligible for the P.G. Headmaster scale of pay. The review application submitted by the petitioner was also rejected by the third respondent by order dated 02.08.1991. Aggrieved by such order, the petitioner has filed the present writ petition. 5. It is contended that the impugned orders were passed by placing reliance on G.O.Ms.No.180, dated 08.12.1988 and such Government order is applicable only to future appointments and will not be applicable to existing inducted headmasters and the petitioner having completed the SCERT course is deemed to possess post graduate qualification and therefore, entitled to receive P.G. Headmaster scale. That the first respondent has recognized an inducted headmaster with SCERT qualification as equivalent to the post graduate headmaster; there is no legal basis for discriminating the petitioner in the matter of pay and emoluments as the petitioner discharges the similar nature of duties and responsibilities as that of P.G. Headmasters. 6. It appears that the petitioner earlier filed an original application before the Tamil Nadu Administrative Tribunal, challenging the impugned order dated 13.01.1989 and the authorities also filed their counter. The Tribunal by its order dated 12.12.2003, disposed of the original application with a direction to the petitioner to challenge the impugned order before this Court and consequently, the present writ petition was filed. 7. It is further contended that the decisions of the respondents is contrary to the decision of the Hon'ble Full Bench of this Court https://hcservices.ecourts.gov.in/hcservices/ reported in 1995 Writ Law – 277, wherein, it was held that the graduate assistant was entitled to be promoted as a headmaster provided, he had not less than 10 years experience and that he was a B.T. Assistant and it was not necessary for a B.T. Assistant to be a post graduate and that the petitioner having completed the SCERT course working as a headmaster, even as on 01.07.1978 is entitled to the scale of pay, which would being paid to the post graduate headmaster. 8. The learned counsel appearing for the petitioner would contend that the petitioner continued as a head master from 01.07.1978 on the basis of qualification prescribed under G.O.Ms.No.1091, dated 15.06.1978 and clause 4(2) of the said Government order clearly stipulates that in respect of future vacancies, the same should be filled up by candidates possessing the qualification in clause 2(a) of the Government order and that G.O.Ms.No.720, dated 28.04.1981 is not applicable to private schools in terms of the decision of the Hon'ble Full Bench of this Court in The Sailar Mahajana Higher Secondary School vs. The Joint Director of Schools, 1995 WLR page 277. Further, it is contended that there is a clear distinct between inducted headmasters, like the petitioner and fresh incumbents to be considered for appointment in future vacancy and since, the higher secondary sections were started for the first time in 1978, the rights of the existing headmasters, who were allowed to function as headmasters of higher secondary school, after undergoing the training stood fully protected. In support of his contention, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in S.S.Moghe and others vs. Union of India and others, 1981 (3) SCC 271. 9. It is further submitted that the petitioner's appointment as headmaster was never challenged by any person for 14 years nor did the respondents objected to the petitioner's continuance and the petitioner having discharged the duties of the higher secondary school headmaster and having completed the SCERT training has to be paid the scale of pay payable to post graduate headmasters of higher secondary schools. Further, it is submitted that in the impugned order dated 13.01.1989, the fourth respondent has relied on a Government letter No.1805, dated 08.12.1988 to be the basis for the same. The said Government letter has absolutely no relevance to the case of the petitioner and the said letter was issued after 10 years, after the petitioner was appointed and the said letter relates to promotion of inducted teachers as headmasters and not to those headmasters like the petitioner who were permitted to continue. The petitioner having been permitted to continue as headmasters on the basis of G.O.Ms.No.1091, the Government letter dated 01.08.2005 has no application. 10. Further, the learned counsel appearing for the petitioner submitted that since the petitioner's legitimate benefits have been https://hcservices.ecourts.gov.in/hcservices/ delayed and denied on account of erroneous reasoning, the petitioner is also entitled to interest on the difference of salary to be paid. In support of the said proposition, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in State of Kerala and others vs. M.Padmanabhan Nair, 1985 1 SCC 429, Ex. Capt. R.S. Dhull vs. State of Haryana and others, 1998 4 SCC 379 and Dr.Uma Agrawal vs. State of U.P. and another, (1999) 3 SCC 438. 11. The learned Government Advocate appearing for the official respondents by placing reliance on the counter affidavit filed by the second respondent would submit that in terms of G.O.Ms.No.1041, it was ordered that the headmaster of high school under private management, when upgraded as higher secondary school may also continue as headmaster of the higher secondary school and the qualification prescribed under the Government order is a post graduate degree of a University and B.T. or B.Ed degree with two years teaching experience of which 2 years in the post of post graduate teacher. The unqualified headmasters of higher secondary schools, who were inducted as the higher secondary headmasters from the post of high school headmaster, when the schools were upgraded, were allowed time to qualify themselves to acquire post graduate degree. Such of those, who qualified themselves were allowed separate higher scale of pay. The Government formulated a certificate course to be conducted by the SCERT and on successful completion of such course, the inducted teachers were fixed in the scale of pay of post graduate teachers. However, such certificate is not an alternative qualification to post graduate degree of a University for the post of higher secondary school headmaster. It is further contended that the petitioner completed his SCERT course on 27.09.1987 and he was given the post graduate teacher's pay. However, his request for the scale of pay of the fully qualified higher secondary school headmaster was declined, since he did not possess the requisite qualification to such post. It is further submitted that the inducted teachers, who obtained post graduate teacher certificate through SCERT and without obtaining post graduate degree are not eligible for promotion as headmaster of higher secondary school and the certificate issued by SCERT is only to enable them to get the scale of pay of a fully qualified post graduate teacher. In the absence of any rule supporting the case of the petitioner, the petitioner is not entitled to the P.G. headmaster's scale of pay. In support of her contention, the learned Government Advocate placed reliance on the decision of the Hon'ble Division Bench of this Court in W.A.No.1466 of 1997 etc, dated 30.04.1998, which was confirmed by the Hon'ble Supreme Court in S.Devasahayam and another vs. Joint Director and another, (2004) 9 SCC 77. 12. In reply, the learned counsel appearing for petitioner would submit that the Division Bench of this Court in W.A.No.1466 of 1997, as confirmed by the Hon'ble Supreme Court is not applicable to the facts and circumstances of the present case, since the question, https://hcservices.ecourts.gov.in/hcservices/ which arose for consideration in the said case is as to whether the appellant therein was a member of the feeder category on the date when the vacancy arose and the vacancy in the said case arose on 31.05.1995, which is a "future" vacancy in terms of clause 4(2) of G.O.Ms.No.1091, dated 15.06.1978. 13. Heard the submission of the learned counsel appearing for the fifth respondent on the above contentions. 14. The issue involved in the present case lies in a narrow campus; namely as to whether the petitioner is entitled to salary and emoluments in the scale of pay payable to post graduate headmaster of higher secondary school w.e.f. 01.07.1978 till his date of superannuation on 31.05.1992 and if so whether the petitioner is entitled for interest on the said claim. 15. The facts which are not disputed are that prior to 1978, the fifth respondent school was a high school and the petitioner was working as a headmaster of the school; that the fifth respondent is a private aided institution. During 1978, the Government introduced the higher secondary course and fifth respondent's school was upgraded as a higher secondary school. At that stage, the petitioner was permitted to continue as headmaster in the higher secondary school and retired on 31.05.1992. The dispute arose, when the petitioner claimed salary on par with post graduate higher secondary school headmasters. The request made by the petitioner was rejected by the official respondents by stating that he does not possess the prescribed qualification of post graduate degree for higher secondary school headmaster, which according to the department is stated to be a "qualified headmaster". It is not in dispute that the petitioner did not possess a post graduate qualification. The petitioner is a graduate in Geography with B.Ed qualification. At this stage, it would be necessary to refer to G.O.Ms.No.1091, Educational Department, dated 15.06.1978, wherein, the Government passed orders setting out the principles for inducting from high school staff for manning the post in higher secondary classes, but working in high schools. For the purpose of the present case, the following clauses of the Government order would be relevant:- 2.Qualifications:- 2(a) The following qualifications are prescribed for the teaching staff in the Higher Secondary Schools. https://hcservices.ecourts.gov.in/hcservices/ Post Academic Qualification Training Qualificati on Teaching experience 1.Headmaster Post Graduate Degree (MA/MSc/M.com) B.Ed/BT 10 years (of which 2 years should have been as Higher Secondary Asst in any of the Higher Secondary Schools under the school education Dept.) 2.Teachers of academic subjects. P.G.Degree in the particular subject to be handled in Higher Secondary classes. B.Ed/BT -do- NOTES: i) The certificate issued by the University of Madras for having undergone the certificate course in sciences and Humanities for graduate teachers in high schools will be considered as adequate training qualification (for Headmasters as well as Teachers). 3) Scale of Pay: The Third Pay Commission has been requested to prescribe scales of pay for various teaching posts at Higher Secondary level. Till the pay Commission recommendations are made available and accepted by the Government, the staff working in the Higher Secondary classes including headmasters shall get pay only in the scales presently applicable to them in High schools. The revised pay scales relating to teachers and Headmasters to be announced by the Government will be made applicable to all the qualified teachers with retrospective effect from the date of coming over to Higher Secondary courses. Headmasters will be eligible for a separate scale of pay as Higher Secondary School Headmasters only after they become fully qualified. The teachers who qualified themselves subsequently will get revised Higher Secondary scales from the date of becoming fully qualified. The teachers handling Higher Secondary classes as referred to in para 2(b) above will only be eligible for a special pay to be ordered separately, in addition to the regular pay scale to which they are normally entitled. The teachers recruited in terms of para 2 (c) above will be paid the minimum of the B.T. scale, without any increment. 4. INDUCTION OF TEACHERS FOR HIGHER SECONDARY STAGE: 4.(2) Aided Schools: https://hcservices.ecourts.gov.in/hcservices/ a. Headmasters: i.Headmasters with Post Graduate qualification and B.T./B.Ed., working as Headmaster of schools may at the discretion of the management be posted as headmaster of the Higher Secondary Schools under the same management. ii.The Headmaster' of a High School under Private Management when upgraded as a Higher Secondary School may also continue as the Headmaster of the said Higher Secondary School. iii.Government direct that when a vacancy of Headmaster arises in future in the Higher Secondary Schools, the said vacancy should be filled in only by persons who are fully qualified to hold the post as per para 2(a) above. If such a person is not available the post may be filled up by a Post Graduate +B.T. qualified person. 16. Perusal of the above tabulation reveals that the qualification for headmaster in higher secondary school was a post graduate degree (MA/MSc/M.Com), B.Ed./BT and 10 years teaching experience of which two years should have been as higher secondary assistant in any of the higher secondary schools under the School Education Department. In the note to the column, the certificate issued by the University of Madras for having undergone certificate course in Science and Humanities for graduate teachers in high schools will be considered as adequate training qualification for headmasters as well as teachers. The scale of pay payable is in terms of Clause 3 of the Government order, which is referred to above, the principles governing for inducting from high schools, the teachers or staffs for handling the higher secondary classes is contained in para 4 of the Government order and para 4(2)(a)(ii) would be relevant for the purposes of this case, which states that the headmaster of high school under private management, when upgraded as a higher secondary school may also continue as the headmaster of the higher secondary school. It is in terms of such provision, the petitioner has been permitted to continue. Therefore, the continuance of the petitioner as higher secondary school headmaster is in accordance with G.O.Ms.No.1091. 17. Clause (iii) of para 4(2)(a) of G.O.Ms.No.1091, states that when vacancy of headmaster arises in future in the higher secondary school, such vacancy should be filed up by persons, who are fully qualified to hold the post in terms of para 2(a) of the Government order, which stipulates the qualification to be possessed by headmasters/teachers of higher secondary schools. 18. Thus, as rightly contended by the learned counsel for the petitioner, G.O.Ms.No.1091 has made a subtle distinction between such of those incumbents, who are permitted to continue as headmaster of https://hcservices.ecourts.gov.in/hcservices/ higher secondary schools, on the school being upgraded and the vacancies, which may arise either after retirement of such headmaster. This interpretation alone would be a reasonable interpretation, since, if para 2(a)(i) of the Government is perused, the teaching experience fixed for a headmaster of higher secondary school is 10 years of which two years should have been as higher secondary assistants. As on the date of upgradation of the fifth respondent school i.e., on 01.07.1978, no person could have possessed the teaching experience qualification, since, there were no higher secondary section at that relevant point of time. Therefore, the Government was aware of such position and hence, consciously ordered that in future vacancy, the qualification should be prescribed in terms of paragraph 2 (a) (i) of the Government order. 19. In view of the above reasoning, I am of the firm view that the petitioner, who was directed to continue as headmaster of the higher secondary school in accordance with para 4(2)(a)(ii) of G.O.Ms.No.1091 and the petitioner and like persons have to be treated as a separate class or category of headmasters, who had been discharging duties as high school headmaster on the date of upgradation of the school i.e., 1978 and the insistence on possessing the qualification prescribed in para 2(a)(i) of the Government order is without any basis as persons like the petitioner could not have possessed the requisite teaching experience as higher secondary course was introduced for the first time in the State during 1978 and this is amplified from the wording of para 4(2)(a)(iii) of the Government order, which says that in future vacancy such qualification shall be insisted upon. 20. The next question which falls for consideration is as to whether the petitioner is entitled for the scale of pay as payable to the higher secondary school headmaster, who possessed P.G. qualification. The request made by the petitioner in this regard was rejected by the impugned order and the basis of the rejection is a Government letter No.1805, dated 08.12.1988. Copy of such order has been produced by the learned counsel appearing for the petitioner, which is to the following effect:- Education (HS2) Department Secretariat, Chennai -9. Letter (MS)No.1805, dated 08.12.1988 From Deputy Secretary to Government, Education Department, Secretariat, Madras-9. To The Director of School Education, Madras-6. https://hcservices.ecourts.gov.in/hcservices/ Sir, Sub: Tamil Nadu Higher Secondary Educational Service – Certificate course for inducted teachers conducted by SCERT – Amendment to Higher Secondary Educational Service Rules – regarding. Ref: Your letter No.39102/C24/78, dated 21.03.88 and 06.12.88. I am directed to invite attention to the letter cited and to state that the inducted Teachers have been given Special allowance for teaching in Higher Secondary schools to start with. Later they were given a capsule course to make them eligible for equal pay with regular P.G. teachers. But this, cannot make them full fledged P.G. teacher, there is no harm in considering this case for promotion as Assistant Headmasters of Higher Secondary Schools but not as Headmasters. A portion of the Higher secondary Headmasters posts are filed by Headmasters of High Schools who have acquired post graduate qualification. It is therefore not proper to promote the inducted teachers as Headmasters as they are really not post graduates but only those who got some Special training for handling the Higher Secondary Classes. There is no need apparently to amend the Service Rules to provide for their promotion as Headmasters of Higher Secondary Schools. Yours faithfully, sd/- for Deputy Secretary to Government //True copy// Section Officer. 21. The above Government order which came to be issued nearly after 10 years, after the petitioner was made to function as higher secondary school headmaster states that the course conducted by the SCERT, referred to as the capsule course only makes eligible the concerned teacher to draw P.G. teacher scale of pay and they are not entitled for promotion as higher secondary school headmaster as they do not possess the post graduate degree and have only some special training for handling higher secondary classes. Firstly, whatever rights, which have accrued to the petitioner by virtue of G.O.Ms.No.1091, which is an administrative instructions issued by the "Order of Governor" cannot be taken away by a Government letter that too after 10 years from the date of the Government order in G.O.Ms.No.1091. https://hcservices.ecourts.gov.in/hcservices/ 22. Secondly it is to be noted that the Government letter has not dealt with para 4(2)(a)(ii) of G.O.Ms.No.1091, which permits persons like the petitioner to continue as the headmaster of the higher secondary school. Therefore, the Government letter could not have been taken as the basis for rejecting the petitioner's request. 23. As noticed above, the petitioner forms a separate class/category of such persons, who are functioning in the school as high school headmaster on the date of upgradation. This group of such high school headmasters are a distinct category and cannot be compared to such of those high school teachers, who are inducted and permitted to handle higher secondary classes on the date of upgradation