IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.01.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.6437 of 2003 K.Chelladurai ... Petitioner vs. 1. State of Tamil Nadu, rep. By its Secretary to Government, Higher Education Department, Secretariat, Chennai-9. 2. The Additional Director of Technical Education, Chennai-25. 3. Pattukkottai Polytechnic College, rep. By its Principal, Pattukkottai-614 601, Thanjavur District. ... Respondents Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records pertaining to the order passed by the second respondent in his proceedings No.40725/C2/2000 dated 09.08.2001 and quash the same and direct the respondents to upgrade the petitioner as Associate Lecturer (now redesignated as Lecturer) from 22.09.1986 and monetary benefit from 01.06.1988, after withholding the arrears from 08.05.1989 to 29.10.1992 and confer all the consequential benefits. For Petitioner : Mr.C.Selvaraju Senior Counsel for Mr.S.Mani For Respondents : Mr.A.Suresh for R1 and R2 Additional Government Pleader(Edn) R3-No Appearance O R D E R The petitioner has filed this writ petition praying for issuance of a writ of Certiorarified mandamus to call for the records relating to the order passed by the the second respondent in his https://hcservices.ecourts.gov.in/hcservices/ proceedings No.40725/C2/2000 dated 09.08.2001 and to quash the same and also to direct the respondents to upgrade the petitioner as Associate Lecturer (now re-designated as Lecturer) from 22.09.1986 and monetary benefit from 01.06.1988, after withholding the arrears from 08.05.1989 to 29.10.1992 and confer all the consequential benefits. 2. The petitioner was appointed as an Instructor on 22..09.1986 in the third respondent college. He was ousted from service on 08.05.1989 without assigning any reason on the basis that he was not recruited through an Employment Exchange. Later, on an appeal filed by him, the Government passed an order directing to reinstate him in service without any monetary benefit during the interregnum period, as per G.O.Ms.No.883, Education Department, dated 24.09.1992. Subsequently the petitioner on 30.10.1992 joined the service. The Government passed G.O.Ms.No.1081, Education Department dated 19.08.1989 abolishing the post of Instructor and directed to upgrade all the Instructors as Associate Lecturer with effect from 01.01.1986. Since that was not implemented, he filed a writ petition in W.P.No.17685 of 2000 and the same was allowed on 19.10.2000. 3. Added further, the petitioner was upgraded as Associate Lecturer now re-designated as Lecturer with effect from 30.10.1992, by means of the order passed by this Court in W.P.No.17685 of 2000. He made a representation with a request to reconsider the same to confer the benefits as per G.O.Ms.No.1081, Education Department dated 19.08.1989 in and by which a retrospective effect from 01.01.1986 was given, but the monetary benefits was given from 01.06.1988. His representation was rejected by an order dated 09.08.2001 by the second respondent stating that he joined in service on 30.10.1992 and therefore he was upgraded as Lecturer only from that date and was not from the date of joining as Instructor on 22.09.1986. 4. According to the petitioner, the interregnum period from 08.05.1989 to 29.10.1992 was the period, when the petitioner was not in duty/Service. 5. The case of the petitioner is that he was directed to be reinstated in service without monetary benefit for the interregnum period viz., 08.05.1989 to 29.10.1992 and therefore he is entitled to receive all the benefits from the date on which he joined as Instructor i.e., 22.09.1986 and also that he is entitled for the monetary benefits from 01.06.1988 to 08.05.1989 (date of termination) and again from 30.10.1992 duly conferring the status of monetary but without arrears for the period from 08.05.1989 to 29.10.1992 and as such the denial of upgradation from the date of initial appointment on 22.09.1986 is not correct in law. 6. According to the learned senior counsel for the petitioner, the impugned order dated 09.08.2001 passed by the second https://hcservices.ecourts.gov.in/hcservices/ respondent is liable to be set aside because of the simple fact that though the petitioner was terminated on 08.05.1989, he was reinstated by the Government giving relaxation as per G.O.Ms.No.883, Education Department dated 24.09.1992 and in the Government order, it is made clear that the relaxation of resorting through the Employment Exchange was given from the date of appointment viz., 22.09.1986 and the petitioner was not entitled for backwages during the period from 08.05.1989 to 29.10.1992 (period under termination) and as per the orders of the Government as well as the orders passed by this Court, the petitioner has to be upgraded as Lecturer from 22.09.1986 and calculated the monetary benefits from 01.06.1988 in the cadre of Lecturer, etc., and when there is no ambiguity in the order passed by the Government, there is no justification in denying the benefit to the petitioner and since the Director of Technical Education has issued instructions that no individual shall directly approach the Court of Law without getting prior permission, therefore the petitioner sought permission from the third respondent and the third respondent adopted delay practice and not forwarded the papers to the second respondent in regard to the permission to file a writ petition, etc., and the petitioner was perforced to file the writ petition with some delay which was neither wilful nor wanton and therefore prays for allowing the writ petition. 7. The stand taken by the respondents 1 and 2 is that while introducing the revised pay scales to the Teachers of Polytechnics in G.O.Ms.No.1081, Education Department dated 19.08.1989, the Government revised the qualifications, upgrading scheme, hierarchy of posts, etc., and the post of Instruction which was the entry level teaching post was deleted from the hierarchy of teaching post and the post of Associate Lecturer (later re-designated as Lecturer) became the entry level teaching post and the Government ordered to dispense with the recruitment to the post of Instructor with immediate effect i.e. 19.08.1989 and the existing Instructor was permitted to be promoted as Lecturer as and when they acquire the qualification for the post of Lecturer viz., B.E. I class for Engineering staff and Master Degree in Arts/Science/Commerce for non-Engineering staff and all the Instructors who have acquired the required qualification were promoted as Lecturers from 19.08.1989 and they acquired the required qualification. 8. Moreover the petitioner was appointed as Instructor/English on 22.09.1986 and that he was ousted from service on 08.05.1989 and then re-appointed on 30.10.1992 and again he was reappointed as Lecturer/English from 30.10.1992 based on the G.O.Ms.No.1081, Education dated 19.08.1989 and the petitioner was not in service on 19.08.1989, the crucial date for appointment of Instructor as Lecturer and he was reappointed on 30.10.1992 and upgraded as Lecturer on the very same date and since there was break in service, he was upgraded from 30.10.1992 only, which was a valid one. Also the petitioner and others have filed writ petition in W.P.No.17685 https://hcservices.ecourts.gov.in/hcservices/ of 2000 and the orders of this Court in the aforesaid cases were implemented by upgrading the Instructor with retrospective effect from 19.08.1989 or thereafter when they acquired the qualification required for the post of Lecturer. The substratum of the case projected by the respondents 1 and 2 is that the petitioner is not entitled to claim upgradation to the post of Lecturer from 22.09.1986 and when all the Instructors were upgraded as Lecturers from 19.08.1989, there was no justification in the claim of the petitioner to upgrade him as Lecturer with effect from 22.09.1986. 9. Expatiating his arguments, the learned counsel for the petitioner refers to G.O.Ms.No.1081, Education Department dated 19.08.1989 and submits that the said G.O. inter alia speaks of the revised scale of pay will be implemented with effect from 01.01.1986 with notional fixation on that date and that monetary benefits from 01.06.1988 and that keeping in view the need to attract and retain the best talented in the country as teachers in the institutions of Technical Education, the Government have decided to revise the pay scales for teachers in Polytechnics and Special Diploma Institutions including Physical Directors and Librarians in the above institutions in Tamil Nadu and further the Government have decided to continue the existing designation of teachers in Polytechnics and Special Diploma Institutions viz., i)Associate Lecturer ii) Lecturer iii) Head of the Department iv) Principal and the recruitment to Instructor (Teacher) cadre in polytechnics and Special Diploma Institutions will be discontinued. However the existing Instructors shall be promoted as Associate Lecturers as and when they acquire the required Degree qualification and in short, the G.O. Mentions about the revised pay scales of teachers in Polytechnics and Special Diploma Institutions and also that G.O.Ms.No.883, Education (TES.2) Department dated 24.09.1992 enjoins that the petitioner's case was examined by the Government on his request and the Government in continuation of the orders issued in G.O.Ms.No.967 Education dated 15.10.1991 approved the case of the petitioner as a special case in relaxation of Rule in para-5(i) of the G.O.Ms.No.1138, Labour and Employment dated 25.09.1978, the appointment of the petitioner as Instructor in English in Pattukkottai Polytechnic, etc., with effect from the date of first appointment subject to condition that no arrears will be claimed and therefore the petitioner is entitled to avail the benefits conferred by the Government orders referred to earlier. 10. It is to be noted that the petitioner along with 14 others has filed W.P.No.17685 and 17690 praying for the relief of issuance of a writ of mandamus directing the respondents to re-designate them https://hcservices.ecourts.gov.in/hcservices/ as Associate Lecturer and confer all the consequential benefits as per the orders of the Government in G.O.Ms.No.1081, Education Department dated 19.08.1989 and this Court on 19.10.2000 has directed the respondents to pass appropriate orders within a period of three months from the date of receipt or production of a copy of the order in the writ petitions and also to settle the entire arrears payable to the petitioners within three months thereafter and disposed of the writ petition. 11. In the impugned order of the second respondent dated 09.08.2001, it is mentioned that the petitioner was not on duty on 19.08.1989 and since he was given the post of Lecturer from 30.10.1992, his claim for appointment as Lecturer from the date of his first appointment on 22.09.1986 as Instructor was not acceded to. 12. Apart from the above, in the letter dated 18.01.1993 of the Additional Director (Polytechnic) Technical Education, Guindy, Chennai-25 addressed to the Principal of the third respondent College, it is mentioned that the interregnum period from 09.05.1989 to 29.10.1992 was to be treated as period of non duty. 13. At this stage, it is useful to refer to the writ petition W.P.No.2630 of 2003 filed by the petitioner earlier claiming the relief of issuance of a writ of Certiorarified mandamus by this Court in calling for the records pertaining to the order passed by the second respondent in proceedings MU.Mu.No.49535/C2/99 dated 7.12.1999 as confirmed by the first respondent in their letter No.10893/C1/2001, Higher Education Department dated 31.07.2001 to quash the same and further to direct the respondents in regularising the services of the petitioner from 09.05.1989 to 29.10.1992 without arrears as per the orders issued by the Government in G.O.MS.No.883 Education Department dated 24.09.1992. This Court on hearing the parties on 24.08.2009 has inter alia observed that '............In the light of the order passed by the Government, all that can be done is direct the respondents to treat the period from the date of first appointment on 22.09.1986, as the period of service for the purpose of computing the pensionary benefits and the terminal benefits of the petitioner. However, no claim for increments or other monetary benefits, either notional or actual, for the period during which the petitioner was out of service, can be granted. In other words, the pay fixation already made in favour of the petitioner shall not be altered. But at the time when the petitioner retires from service, the entire service rendered by him from the date of first appointment viz., 22.09.1986 shall be counted for terminal and pensionary benefits.' 14. A careful scrutiny of the order passed by this Court in W.P.No.2630 of 2003 dated 24.08.2009 clearly indicates that the prayer of the petitioner to regularise his service from 09.05.1989 to 29.10.1992 was not acceded to by this Court but this Court only https://hcservices.ecourts.gov.in/hcservices/ directed the respondents to treat the period from the date of first appointment on 22.09.1986 as the period of service for the purpose of computing the pensionary benefits and terminal benefits, etc., and also it was directed that when the petitioner retires from service the entire service rendered by him from the date of his appointment viz., 22.09.1986 was to be counted for the terminal and the pensionary benefits. 15. Significantly, it is to be pointed out that in W.P.No.11670 of 1995, filed by P.Sailapathi Sekar and three others on 29.10.1999 this Court has directed the respondents therein to re-designate the petitioners therein as Associate Lecturers with effect from 19.08.1999, the date of Government Order and fix their pay consequentially in the cadre of Associate Lecturers with effect from the said date and pay all the arrears payable thereof and the respondents are granted three months time to pass orders and six months time to work out and sanction the monetary benefits and pay arrears thereof to the petitioners. 16. It is not out of place to make a mention that in W.P.No.11670 of 1995, the prayer made by the petitioners therein was to the effect that for issuance of a writ of mandamus directing the the respondents to implement Clause 4 of G.O.Ms.1081, Education (J1) Department, dated 19.08.1989 by designating the petitioners as Associate Lecturer from the date on which the same was legally due with all consequential benefits, both service and monetary in pursuance thereto. 17. Likewise in W.P.Nos.10663, 10664, 9803 and 9804 of 1997 filed by the petitioners therein, this Court passed orders directing the respondents to re-designate the petitioners therein as Associate Lecturers with effect from 19.08.1999, the date of Government Order and fix their pay consequentially in the cadre of Associate Lecturers with effect from that date and pay all the arrears payable thereof and the respondents are granted six months time to pass orders and three months time thereafter to work out and sanction the monetary benefits and pay arrears thereof to the petitioners. 18. The learned Additional Government Pleader appearing for the respondents 1 and 2 places strong reliance on the orders passed by this Court in W.P.Nos.1167 of 1995, 2630 of 2003 and W.P.Nos.10663, 10664, 9803 and 9804 of 1997 and contend that since the petitioner was not in service during the interregnum period from 09.05.1989 to 29.10.1992 and since he was appointed on 30.10.1992, he cannot seek the relief of upgrading him as Associate Lecturer from 22.09.1986 and monetary benefit from 01.06.1988 after withholding arrears from 09.05.1989 to 29.10.1992, etc., 19. On a careful consideration of respective contentions and bearing in mind a very vital fact that the petitioner was not in https://hcservices.ecourts.gov.in/hcservices/ service from 08.05.1989 to 29.10.1992 and though the petitioner in W.P.No.2630 of 2003 claimed the relief of issuance of order by this Court in directing the respondents to regularise the service of the petitioner from 09.05.1989 to 29.10.1992 was not acceded to by this Court, notwithstanding the fact that the petitioner has placed reliance to the benefit of G.O.Ms.No.883 Education Department dated 24.09.1992 wherein the Government has approved the case of the petitioner as a special one in relaxation to rule in para 5(i) of the G.O.Ms.No.1138, Labour and Employment dated 25.09.1978 as instructor in English in the third respondent College who was appointed by the Institute without consulting the Employment Exchange with effect from the date of first appointment subject to the condition that no arrears claim will be allowed, this Court is of the considered view that the petitioner cannot take advantage of the words '....from the date of first appointment' in the said G.O.Ms.No.883 Education (TES.2) Department dated 24.09.1992 and hence the petitioner is not entitled to the relief of upgradation as an Associate Lecturer (now redesignated as Lecturer) from 22.09.1986 and moreover the petitioner is not entitled to claim the arrears from 08.05.1989 to 29.10.1992 and viewed in that perspective, the writ petition fails. 20. In the result, the writ petition is dismissed leaving the parties to bear their own costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vri To 1.The Secretary to Government, State of Tamil Nadu, Higher Education Department, Secretariat, Chennai-9. 2.The Additional Director of Technical Education, Chennai-25. 3.The Principal, Pattukkottai Polytechnic College, Pattukkottai-614 601, Thanjavur District. 1 cc To Mr.S.Mani, Advocate, SR.3167 1 CC to the Government Pleader SR NO3292 W.P.No.6437 of 2003 SV(CO) sra 29.01.2010 https://hcservices.ecourts.gov.in/hcservices/