IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 16.07.2010 CORAM: THE HON'BLE MR. JUSTICE S.TAMILVANAN W.P.No.24666 of 2006 & M.P.No.1 of 2006 S.Jayaraj .. Petitioner Vs 1.The Government of Tamil Nadu rep. by its Secretary to the Govt. School Education Department, Fort St.George, Chennai 600 009. 2.The Accountant General Chennai – 18. 3.The Director of Elementary Education, College Road, Chennai – 6. 4.The District Elementary Educational Officer, Trichy District, Trichy. 5.The Additional Asst. Elementary Educational Officer, Anthanallur Panchayat Union, Anthanallur, Trichy District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records of the 5th respondent issued in Na.Ka.No.3225/A2/2004 dated 04.05.2004 and the order issued in Na.Ka.No.3225/A2/2003 dated 14.06.2005 and the order issued in Na.Ka.No.1287/A2/2005 dated 15.07.2005 and the order of recovery issued by the second respondent in No.AG/A & E/PEN/P 17/1/J 26- 531/RTD/2005/2006/5242 dated 13.09.2005 and quash the same and issue a consequential direction to the respondents. To grant selection grade Scale of pay with effect from 26.2.90 and Special grade scale of pay from 26.2.2000 on completion of 10 years and 20 years of https://hcservices.ecourts.gov.in/hcservices/ service in the post of pre-vocational instructors and to pay arrears of salary and arrears of pensions. For Petitioner : Mr.R.Saseetharan For Respondents : Mrs.C.K.Vishnu Priya, AGP for R1 and R3 to R5 Mrs.T.S.Selvarani for R2 ORDER This writ petition has been filed under Article 226 of the Constitution of India seeking an order in the nature of a Writ of Mandamus calling for the records of the 5th respondent issued in Na.Ka.No.3225/A2/2004 dated 04.05.2004 and the order issued in Na.Ka.No.3225/A2/2003 dated 14.06.2005 and the order issued in Na.Ka.No.1287/A2/2005 dated 15.07.2005 and the order of recovery issued by the second respondent in No.AG/A & E/PEN/P 17/1/J 26- 531/RTD/2005/2006/5242 dated 13.09.2005 and quash the same and issue consequential direction to the respondents to grant selection grade scale of pay with effect from 26.02.1990 and special grade scale of pay from 26.02.2000 on competition of ten years and twenty years of service in the post of Pre Vocational Instructors and to pay arrears of salary and arrears of pension and pass such orders. 2. The brief facts of the writ petition are as follows: The petitioner was appointed as Pre-Vocational Instructor in Agriculture, by order dated 26.02.1980 by the Panchayat Union Commissioner, Anthanallur Panchayat Union, in the time scale of pay of Rs.280-450/-. At the time of appointment, he had passed X standard under the old SSLC system and also obtained technical certificate in Agriculture lower and higher as well as Technical Teacher Certificate and also undergone 11 years regular schooling, however, he had failed in XI standard patter of S.S.L.C Examination. 3. The first respondent herein passed G.O.Ms.No.1366, Education Department, dated 05.09.1986, whereby awarded higher scale of pay to the Pre-Vocational Instructors working in middle schools, as that of Craft Instructors working in high schools, if they pass SSLC The said scale of pay is equivalent to the scale of pay prescribed for the post of Secondary Grade Teacher. As per the Government Order, the Government has directed that those Pre-Vocational Instructors, who have passed SSLC Examination are entitled for higher scale of pay of Rs.610-1075 and those Pre-Vocational Instructors, who have not passed SSLC Examination are given three years time to pass SSLC and acquire the qualification. Learned Additional Government Pleader appearing for the respondents 1, 3 to 5 has not disputed the Government Order referred to on the side of the petitioners. The petitioner herein https://hcservices.ecourts.gov.in/hcservices/ passed SSLC during March 1988 and he was admittedly eligible to seek the benefits under the G.O.Ms.No.1366, Education Department, dated 05.09.1986. The petitioner has also averred that he was granted higher scale of pay on 22.03.1988, since he has passed SSLC on the aforesaid date. However, by the impugned proceedings, dated 04.05.2004 made in Na.Ka.No.3225/A2/2004 and by order, dated 14.06.2005, the fifth respondent has directed to recover the amount already drawn by the petitioner, pursuant to the Government Order stating that excess amount was paid to the petitioner. 4. Learned counsel appearing for the petitioner has submitted that the petitioner was initially appointed on 26.02.1980 as Pre- Vocational Instructor in Agriculture. At that time, the minimum educational qualification stipulated was only 8th standard. As per G.O.Ms.No.1366, Education Department, dated 05.09.1986, the Government enhanced the scale of pay of the said instructors on par with secondary grade teachers, if they possess the minimum educational qualification. Learned counsel also drew the attention of this Court to the copy of the G.O.Ms.No.1366, Education Department, dated 05.09.1986, wherein paragraph 2 of the G.O reads as follows : "The Government after careful examination accept the above recommendation and accordingly direct that the general educational qualification for the post of craft teachers in the middle schools under all kinds of managements be raised to SSLC as prescribed in the Tamil Nadu Private Schools Regulation Act, 1973. The craft teachers with the SSLC qualification shall be allowed Secondary grade Scale of pay of Rs.610-20-730-25-955-30- 1075 irrespective of the fact whether they are working in middle/High Schools. The unqualified craft teachers that is with the VIII standard qualification shall be allowed time for a minimum period of three years to qualify themselves and after that they shall be allowed secondary grade scale of pay of Rs.610-20-730-25-95-30-1075." 5. Paragraph 4 of the G.O.Ms.No.1195, Education (NJ,1(2)) Department, dated 22.08.1989 reads as follows:- "The Government accordingly sanction selection grade scale of pay of Rs.705-20-745-25-845-35-1230 and special grade scale of pay Rs.780-35-1025-40- 1385 to the craft teachers of Middle Schools on par with the craft teachers of High Schools under all kinds of managements subject to the condition that they should qualify themselves with pass in the SSLC." https://hcservices.ecourts.gov.in/hcservices/ 6. It is not in dispute that the petitioner, who joined the service with the minimum educational qualification in the year 1990 as Pre-Vocational Instructor was subsequently, eligible to draw salary on par with secondary grade teacher, after qualifying himself by passing SSLC within three years, in view of the said G.O and was also drawing the pay scale on par with any secondary grade teacher. Now the question to be decided in the writ petition is with regard to the regularization of pay scale of the petitioner. 7. Learned Additional Government Pleader appearing for the respondents 1, 3 to 5 submitted that the petitioner has to be regularized only from the date of passing SSLC and not from the date of appointment. Whereas Mr.R.Saseetharan, learned counsel appearing for the petitioner submitted that the petitioner herein is entitled to get regularization from the date of his appointment and as per the Government Order, the petitioner is entitled to draw salary and increment, based on his regularization, that has to be fixed from the date of his appointment. Mrs.C.K.Vishnupriya, learned Additional Government Pleader appearing for the respondents submitted that the second respondent passed the order, only based on the proceedings of the fifth respondent and she has not disputed that the petitioner is entitled to the benefits, as per the G.O. passed by the Government. 8. Learned counsel appearing for the petitioner, in support of his contention relied on the following decision of the Division Bench of this Court in W.P.No.12066 of 1999, dated 27.01.2001 in a similar matter wherein this court has held as follows: "It was tried to be argued that the respondent after his initial appointment was transferred to Polur Panchayat Union middle school which school was upgraded into a high school and at that time, the respondent had not even passed the SSLC Examination and had only passed the SSLC Examination on 05.04.1986 and had qualified himself for drawing the pay scale of Rs.610-20- 730-25-955-30-1075 which was intended for the post high school craft teachers. What was forcefully argued before us was that the respondent teacher could not have asked for counting his middle school services for selection grade as that service was on the lower pay scale. It was tried to be argued that after the said teacher was granted higher pay scale, if he continued for ten years on that pay scale then alone, he was entitled to the selection grade. In fact, this argument was made before the Tribunal also and the Tribunal has refuted this argument and, in our opinion, correctly." https://hcservices.ecourts.gov.in/hcservices/ 9. Learned counsel appearing for the petitioner also relied on the decision in Y.Chellammal and others vs. State of Tamil Nadu and another reported in 2007 WLR 1000. Following the aforesaid Division Bench decision, Learned Single Judge (P.Jyothimani,J), held that the petitioner therein was entitled to the benefits, that are available under the G.O.Ms.No.1109 & 1366, Tax Department, dated 05.09.1996 and G.O.Ms.No.1105 dated 22.08.1999. Paragraph 8 of the order reads as follows : "8. It is also not in dispute that all these three petitioners have acquired their SSLC within the time stipulated in the said Government Order. By subsequent G.O.Ms.No.1105, Education Department, dated 22.08.1989, while granting selection grade and special grade to Middle School Teachers, relevant scales of pay have been fixed to all Craft Teachers of High Schools working in all kinds of Management, subject to the condition that they should qualify themselves with SSLC. It is also stated that the selection grade and special grade pay shall take notional effect from 1.10.1984 for the purpose of fixation of pay in those scales with monetary benefits from 1.4.1986..." 10. A reading of G.O.Ms.No.1366, Education Department, dated 05.09.1986 would clearly show that there has been a policy decision of the Government, based on the recommendations of 'One Man Committee' constituted as per G.O.Ms.No.1267, Finance (FC-1), dated 08.12.1985, whereby a decision was taken to raise the educational qualification for Craft Teachers, as that of the general educational qualification, SSLC, as prescribed under the Tamil Nadu Private Schools Regulations Act, 1973. As per the Government Order, the Craft teachers for SSLC qualifications either working in middle / high schools are allowed to draw secondary grade scale of pay, if they possess the required qualification. It was also made clear by the Government order that the non-qualifying Craft teachers with 8th standard qualification are permitted for a period of three years to qualify themselves and if they qualify themselves, they would be entitled to secondary grade scale of pay. 11. As per the Government order, the craft teachers working in middle / high schools are permitted to draw the scale of pay, on par with secondary grade teachers, provided they must possess SSLC, the general qualification and if they already have SSLC qualifications, they can straight away get the pay scale on par with secondary grade teachers. If they were appointed as craft teachers with 8th standard qualifications, they must make themselves qualified within three years for getting the pay scale. It is an admitted fact that the petitioner herein, who had failed SSLC old pattern on the date of his https://hcservices.ecourts.gov.in/hcservices/ appointment has acquired a minimum qualification of SSLC within the allotted period of three years. As per G.O.Ms.No.1105, Education Department, dated 22.08.1999, while granting selection grade and special grade to middle school teacher, the revised scale of pay then fixed to all craft teachers working in middle schools has been subject to condition that they should be qualified themselves with the pass in SSLC. It is mad clear that the Selection Grade and Special Grade of pay shall take notional effect from 01.10.1984 for the purpose of fixation of pay in those schools with all monetary benefits and further, in the aforesaid Government Order, there is no condition imposed against the craft teachers, who have not passed SSLC and acquired the minimum educational qualification, as per the Government Order cited above. 12. The operative portion of G.O.Ms.No.1195, Education Department, dated 22.08.1989 reads as follows : "The Craft teachers in the Middle schools are eligible for the scale of pay admissible to the craft teachers in the High Schools, provided that they are fully qualified as their counterparts in the High Schools. When the Selection Grade and Special Grade are given to the craft teachers in the High Schools, the Government consider that it is proper that the same grades are made available to the craft teachers in Middle schools also. The Government accordingly sanction selection grade scale of pay of Rs.705-20-745-25-845-35-1230 and special grade scale of pay Rs.780-35-1025-40- 1385 to the craft teachers of Middle schools on par with the craft teachers of High Schools under all kinds of managements subject to the condition that they should qualify themselves with pass in the SSLC." The above referred Government Order reads further that for the Selection Grade and Special Grade scale of pay, the order shall take notional effect from 01.10.1984 for the purpose of fixing the pay in the scale with monetary benefit from 01.04.1986. 13. In the instant case, it is an admitted fact that the petitioner joined the services as full time Pre-Vocational Instructor in Agriculture, by order, dated 26.02.1980. On the date of G.O.Ms.No.1366, Education Department, dated 05.09.1986, he was working as Pre-Vocational Instructor in a middle school. As per the Government Order, he passed SSLC within three years. Learned Additional Government Pleader has not disputed the fact that the petitioner had passed SSLC Examination in March 1988 and was granted higher scale of pay, as per G.O.Ms.No.1366, Education Department, dated 05.09.1986 with effect from 22.03.1988. There is no illegality https://hcservices.ecourts.gov.in/hcservices/ in granting pay scale, as per the said Government Order on par with secondary / selection grade teachers on 02.03.1988, as he had complied with the requirement under the G.O. His passing of SSLC is nothing to do with fixing the selection grade and awarding special grade, as the same has to be decided on the basis of ten years and twenty years of regular service respectively. 14. It has to be made clear that there are two aspects, in fixing the pay scale. One is fixing Selection Grade pay, for which the date of regular appointment is the criteria. The higher scale fixed as per G.O.Ms.No.1366, Education Department, dated 05.09.1986 on par with secondary grade teachers is nothing to do with the same. Admittedly, the petitioner herein was appointed in the year 1980 with the minimum educational qualification and on the date of his appointment, passing SSLC was not the minimum educational qualification prescribed by the Government and therefore, being a qualified Craft teacher, he was entitled to get Selection Grade after completing 10 years minimum service, required for Selection Grade which is not in dispute. Similarly as per the Government Orders referred to above, the petitioner is entitled to claim the scale of pay on par with the Secondary Grade teachers from the date of acquiring minimum qualifications of passing SSLC as per the Government Orders and therefore, it is seen that the petitioner was properly given increment and he was permitted to draw higher scale of pay, as per the G.O. However, subsequently, on the instructions issued by the fifth respondent, the second respondent passed the order to recover the amount, as if excess amount was paid to the petitioner. 15. In District Educational Officer, Tiruvannamalai and others vs. K.T.Margasakayam, a Division Bench of this Court consisting of His Lordships, V.S.Sirpurkar, J and V.Kanagaraj, J, by order, dated 27.07.2001 in W.P.No.12066 of 1999 held as follows : "3...What will be seen from G.O.Ms.No.1105, dated 22.6.1989 is that the craft teachers in the middle schools were made eligible for the selection grade and special grade scales of pay on par with the craft teachers of the high school. However, in that Government Order, there was no condition imposed that this advantage was to be given only on completion of the ten years of service only as a high school craft teacher. The learned counsel also relied on the Government letter dated 4.10.1990 to suggest that the services rendered in the posts carrying equal and higher scales of pay alone could be taken into account for his grant of selection grade or special grade in case of the respondent, since he was working as middle school craft teacher that service could not be taken into https://hcservices.ecourts.gov.in/hcservices/ account for the purpose of awarding selection grade. The Tribunal has refuted this argument on the basis of the contents of paragraph-2 of G.O.Ms.No.1366, dated 5.9.1986 as also the other G.O.Ms.No.1105, dated 22.8.1989. We are in complete agreement with the Tribunal on the interpretation of the relevant Government Orders in question. The Tribunal has also taken the example of the Headmaster of the primary schools and has drawn parallel. In our opinion, the language of the concerned Government Orders is clear enough to suggest that the concerned respondent was undoubtedly entitled to the selection grade on account of his services right from 1970 as middle school craft teacher and thereafter, his services as High School craft teacher for which he had also acquired a proper qualification, i.e., SSLC in the year 1986. In our opinion, there is no necessity to interfere with the order of the Tribunal in which the findings are recorded in a proper manner." 16. In the light of various decisions rendered by the Hon'ble Apex Court and this Court and also considering the Government Orders referred to above, I am of the view that no excess amount was paid in favour of the petitioner to pass the impugned order to recover the same and accordingly, the impugned order, dated 14.06.2005 is liable to be set aside. In the result, the writ petition is allowed and the impugned orders are set aside, holding that the petitioner is entitled to Selection Grade pay and Special Grade pay, as prayed for in the writ petition. The fifth respondent is directed to pass appropriate orders and sent the proposal to the second respondent for passing consequential orders, within a period of eight weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No order as to costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar smi / tsvn https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary to the Govt. Government of Tamil Nadu School Education Department, Fort St.George, Chennai 600 009. 2.The Accountant General, Chennai – 18. 3.The Director of Elementary Education, College Road, Chennai – 6. 4.The District Elementary Educational Officer, Trichy District, Trichy. 5.The Additional Asst. Elementary Educational Officer, Anthanallur Panchayat Union, Anthanallur, Trichy District. 1 cc to M/s.T.S.Selvarani, Advocate, Sr.No.51267 W.P.No.24666 of 2006 MP {CO} TP/5.1.2011. https://hcservices.ecourts.gov.in/hcservices/