C.N.Muthukaruppan v. The District Educational Officer (Elementary)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 12.03.2024 CORAM: THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI W.P.(MD)Nos.7664 of 2023 and 15641 of 2022 W.P.(MD)No.7664 of 2023 C.N.Muthukaruppan ... Petitioner

Vs.

1.The District Educational Officer (Elementary), Pudukkottai Educational District, Pudukkottai, Pudukkottai District.

2.The Block Educational Officer (Circle 2), Thirumayam Union, Pudukkottai Educational District, Pudukkottai District.

3.The Assistant Elementary Educational Officer, Thirumayam, Pudukkottai District.

4.The Additional Assistant Elementary Educational Officer, Thirumayam, Pudukkottai District. ... Respondents PRAYER: Writ Petitions filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, to call for the entire record pertaining to the impugned orders in proceedings Na.Ka.No.486/A2/2022 dated 06.02.2023 and quash the same as bad-in-law and consequently direct the respondents to re-fix the petitioner salary as on 27.11.2006, on the basis of the petitioner representation dated

21.11.2022 within the time stipulated by this Court. For Petitioner : Mr.P.M.Vishnuvarthanan

For Respondents : Mr.N.Ramesh Arumugam,

Government Advocate W.P.(MD)No.15641 of 2022 R.Paul Murugan

... Petitioner

Vs.

1.The District Educational Officer, Vallioor, Tirunelveli District.

2.The Block Educational Officer II, Vallioor, Tirunelveli District. ... Respondents PRAYER: Writ Petitions filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, to call for the records relating to impugned proceedings of the 1st respondent herein in O.Mu.No.1630/A3/2020 dated 30.09.2020 and quash the same and consequently direct the respondents herein to step up the pay of the petitioner on par with the petitioner's junior with effect from 05.12.2016 with all monetary benefits. For Petitioner : Mr.T.Pon Ramkumar

For Respondents : Mr.P.T.Thiraviyam,

Government Advocate COMMON ORDER W.P.(MD)No.7664 of 2023 is filed to quash the impugned order dated 06.02.2023 and consequently directing the respondents to re-fix the petitioner's salary as on 27.11.2006, on the basis of the petitioner's representation dated 21.11.2022.

¶2W.P.(MD)No.15641 of 2022 is filed to quash the impugned proceedings of the 1st respondent dated 30.09.2020 and consequently directing the respondents to step up the pay of the petitioner on par with the petitioner's junior with effect from 05.12.2016 with all monetary benefits.

¶3The case of the writ petitioner in W.P.(MD)No.15641 of 2022:

(i) The petitioner was initially appointed on 01.08.1995 as a Secondary Grade Teacher in Narikudi Union, Virudhunagar District. Subsequently, he was transferred to Vallioor Union, Tirunelveli District on 22.07.1998. He was given with selection grade pay in the cadre of Secondary Grade Teacher on 01.08.2005. He was awarded with incentive increment for his M.A., B.Ed degree with effect from 16.07.2013. Subsequently on 01.06.2013, he was promoted as Primary school headmaster without getting special grade scale in the cadre of Secondary Grade Teacher.

(ii) While so, one Thiru.M.Kanagaraj who is junior to the petitioner appointed as a Secondary Grade Teacher on 14.08.1995 in the Government Elementary School, Mundavillai, Thiruvattar Union, Kanyakumari District was subsequently transferred to Vallioor Union as Secondary Grade Teacher on 07.07.1999. On 14.08.2005, he was awarded with selection grade pay in the cadre of Secondary Grade Teacher and thereafter he was awarded with special grade pay in the cadre of Secondary Grade Teacher on 14.8.2015.

(iii) Subsequently, he was promoted as Primary School Headmaster on 08.08.2016 and thereafter he was awarded incentive increment for his M.A., and B.Ed degree with effect from December 2016. The petitioner's junior Thiru M.Kanagaraj after getting special grade pay in the cadre of Secondary Grade Teacher was promoted as Primary School Headmaster and received incentive increment for M.A., and B.Ed degree. Whereas, without receiving special grade pay in the cadre of Secondary Grade Teacher, the petitioner was promoted as Primary School Headmaster and received incentive increment for M.A., and B.Ed degree. By virtue of the same, the petitioner's junior is getting higher pay than the petitioner in the cadre of Elementary School Headmaster.

¶4The case of the writ petitioner in W.P.(MD).No. 7664 of 2023:

(i) The petitioner joined initially as Secondary Grade Teacher on

10.02.1986 in the Panchayat Union Primary School at Kunnandar Koil Union, Pudukottai district. Later, he was transferred to the Panchayat Union Primary School at Thirumayam Union on 01.07.1986. On completion of 10 years of service, he was awarded selection grade pay with effect from 10.02.1996. He was promoted as Headmaster (Primary School) on 03.06.2002 and was posted in Thirumayam Union.

(ii) He was promoted and posted as Middle School Headmaster on

14.10.2005 in Thirumayam Union. He was awarded special grade pay with effect from 10.02.2006 in the cadre of Primary School Headmaster. He acquired higher qualification namely B.Ed degree on 25.01.1993 and M.A., on 25.05.1994 for which he was awarded with two incentive increments on 25.01.1993 and 25.05.1994 respectively. Presently, the petitioner is working as Middle School Headmaster in Thirumayam Union. While so, the petitioner's junior one Thiru.M.Elango joined service as Secondary Grade Teacher on 24.07.1986. He was thereafter transferred to Ponnamaravathi Union on 05.07.1988 and further transferred to Thirumayam Union on 14.09.1990.

(iii) On completion of 10 years of service, he was awarded with selection grade pay in the cadre of Secondary Grade Teacher on

24.07.1996 and thereafter on completion of 20 years of service, he was further awarded as special grade pay in the cadre of Secondary Grade Teacher on 24.07.2006. He was promoted as Primary School Headmaster on 03.06.2002. He had acquired M.A., degree even at the time of appointment as Secondary Grade Teacher on 24.07.1986. Even though he had acquired master's degree at the time of appointment, he was not awarded incentive increment for the same at the first instance. He acquired M.Phil degree in the year 2008. Thereafter, he was awarded incentive for M.Phil on 18.01.2013 vide proceedings of AAEEO dated

28.08.2014, he was further awarded incentive increment with effect from

27.11.2006 for acquiring M.A., degree which was acquired by him in the year 1984.

(iv) The petitioner's junior Thiru. M.Elango after getting special grade pay in the cadre of Secondary Grade Teacher was promoted as Middle School Headmaster and received incentive increment for M.A., and M.Phil degree. Whereas, without receiving special grade pay in the cadre of Secondary Grade Teacher, the petitioner was promoted as Middle School Headmaster and received incentive increment for B.Ed and M.A., By virtue of the same, the petitioner's junior is getting higher pay than that of the petitioner in the cadre of Middle School Headmaster.

¶5The pay parity tabular of both the writ petitions are extracted hereunder: W.P.(MD)No.15641 of 2022: Sl. No. Details R.Paul Murugan M.Kanagaraj

¶1Date of 1st appointment

01.08.1995

14.08.1995

¶2Cadre of appointment Secondary Grade

¶3Pay at the initial appointment Rs.1200 Rs.1200

¶4TRB Bank No ----1524/1995 ----4053/1995

¶5Date of joining in Narikudi Union, Virudhunagar

01.08.1995 -

¶6Date of joining in Government Elementary

School. Mundavillai,

Thiruvattar Union ---

14.08.1995

¶7Date of Joining in Vallioor Union

22.07.1998

07.07.1999

¶8Date of annual increment JULY-01 JULY-01

9.

01.01.1996 5th pay commission pay fixation 4625 (4500-125-7000) 4625 (4500-125-7000)

¶10Incentive increment for M.A., and B.Ed., qualification

16.07.2013 ------

¶11Date of annual increment (after promotion) APRIL-01 APRIL-01

¶12Primary School Head Master

01.06.2013

08.08.2016

¶13Selection grade in cadre of Secondary Grade

01.08.2005

14.08.2005

¶14Special Grade in cadre of Secondary Grade -----

14.08.2015

¶1501.07.2018 pay as on 74600 -------- (Level 17 Cell 25) 74600 --------- (Level 17 Cell 26) W.P.(MD)No.7664 of 2023: Sl. No. Details Senior Employee Junior Employee

¶1Employee Name Mr.C.N.Muthukkarupp an Mr.M.Elango

¶2Present Post Middle School Head Master Middle School Head Master

¶3School Name and address Panchayat Union Middle School, Sethurappatti Panchayat Union Middle School, Melur

¶4Date of Joining (First Post) Secondary Teacher, Gundrandarkoil Block

10.02.1986 Secondary Teacher, Gundrandarkoil Block/24.07.1986

¶5Regularization Date

10.02.1986 FN Gundrandarkoil Block

24.07.1986 FN Gundrandarkoil Block

¶6Date of Joining in Present

Block (Thirumayam)

01.07.1986 Thirumayam

14.06.1990 Thirumayam

¶7Seniority No ---------

¶8'A' (or) 'B' Cadre Does not arise Does not arise

¶9Selection grade date SGT 10.02.1996 PSHM 03.06.2002 MSHM---SGT 10.02.1996 PSHM 03.06.2002 MSHM---

¶10Special grade date SGT PSHM 10.02.2006 MSHM SGT PSHM 24.07.2006 MSHM

¶11Name

of

the Promotion Post and Joining date PSHM 03.06.2002 MSHM 14.10.2005 PSHM 03.06.2002 MSHM

27.11.2006

¶12Regularization date for higher post PSHM 03.06.2002 MSHM 14.10.2005 PSHM 03.06.2002 MSHM

27.11.2006

¶13Higher

Education qualification / effective date for incentives B.Ed., 25.01.1993 M.A. 25.05.1994 M.Phil 18.01.2013

¶14Higher qualification Incentives

Normal stage / Selection grade / special grade SGT Normal PSHM Special grade

¶15Selection grade / Special grade effective date salary B.Ed 1410 1200 --- 2040 M.A 1500 1200 ---2040 M.Phil 27800 15600-39100 + 5700

¶16Account Test part 1 Passed date ---------

¶6The petitioners made representations to the respondents requesting to refix their scale of pay on par with their juniors. However, the petitioner's request was rejected by the proceedings of AAEEO dated

28.07.2014 and the Block Educational Officer II vide the proceedings dated 16.06.2002. Challenging the same, the petitioners filed W.P.(MD)No. 5892 of 2015 and W.P.(MD)No. 7472 of 2022 respectively before this court. This court, by order dated 26.10.2022 in W.P.(MD)No. 5892 of 2015 and order dated 27.07.2020 in W.P.(MD)No. 7472 of 2020 allowed the writ petitions setting aside the impugned orders, directing the respondents to reconsider the case of the petitioners.

¶7Pursuant to the same, the impugned order in proceedings in NA.Ka. No.486/A2/2022 dated 06.02.2023 in W.P.(MD)No. 7664 of 2023 and impugned order O.Mu.No.1630/A3/2020 dated 30.09.2020 in WP(MD)No. 15641 of 2022 came to be issued by the respondents. Challenging the same, these writ petitions came to be filed.

¶8Heard, the learned counsel for the petitioners, the learned government advocates Mr. N. Ramesh Arumugam and Mr. Thiraviyam and anxiously perused the available materials on record.

¶9The case of the respondents is that the pay anomaly rectification by comparing junior getting more pay than the senior should be worked out in compliance with the conditions set forth in G.O.Ms.No.234 dated

01.06.2019 wherein it has been mandated that both the junior and the senior Government employee should belong to the same category and should have been promoted to the same post. However, in these cases the seniors, that is the petitioners who were originally appointed as Secondary Grade Teachers and thereafter promoted as Middle School Headmaster / Primary School Headmaster without obtaining special grade pay. But the juniors who were originally appointed as Secondary Grade Teachers were promoted as Primary School Headmaster / Middle School Headmaster after obtaining special grade pay.

¶10The seniors were not promoted to the same post like the junior and hence, the senior has not fulfilled their conditions in G.O.Ms.No.234 dated 01.06.2009. The petitioners and their juniors joined in the present block on different dates and were promoted on different dates and hence the same cannot be compared. If the petitioners and the juniors first appointment is in the same place only, then the salary could be compared and not otherwise.

¶11A careful perusal of the pay parity tabular which has been tabulated supra would clearly throw light on the fact that the petitioners are certainly seniors to the persons cited as juniors in their respective tabular supra. The said fact is clearly borne out by records. Therefore, it is clear from the above that both in terms of joining service and in terms of being transferred to a different block, petitioners are seniors to their respective juniors namely M. Elango and M.Kanagaraj.

¶12The fulcrum of the lis in both the petitions are no more res integra and the same has been dealt with by this court in W.P.No. 34455 of 2019 dated 06.01.2020 and the relevant portion of the same is extracted as follows: "9.It will be relevant to refer the judgment of this Court in WP (MD).No.24551 of 2018 dated 19.02.2019. The relevant portions of the judgment is extracted hereunder: "5.Further, the learned Counsel for the petitioner relied on the judgment passed by this Court in W.P(MD).No.742 of 2018 dated07.02.2018 in the case of K.Vijayarani Vs. The District Elementary Educational Officer, Thoothukudi and another, wherein at paragraph No.5, it has been held as follows: "5.The first respondent has proceeded on the footing that since the petitioner got transferred from Pudukkottai to Kayathar Union, it is not possible to set right the pay anomaly. The reason assigned by the first respondent in the impugned order is un-sustainable in law. Even though the writ petitioner came to Kayathar Union by way of transfer and has to be placed at the bottom of the seniority list, the fact remains that the Shanthi got appointment as Secondary Grade Teacher at Kayatharu Union only later in point of time. Therefore, by no stretch of imagination the said Shanthi could have stolen march over the petitioner. The order impugned in this writ petition is quashed. The respondents are directed to set right the pay anomaly and step-up the pay of the petitioner on par with said Shanthi. Such an order shall be issued by the respondents within a period of eight weeks.

6.The second respondent had filed a Counter affidavit, wherein it has been stated as follows:

¶11It is to be noted that B.Anuradha (Panchayar Union Area, S.Pudhur) was appointed in the very same S.PudhurUnion, ie., on 27.07.1999 and got transferred to the same Thirupathur Union on

01.11.2000.These two panchayat Union areas are same distinct and that the Teaches appointed in the same Union area, compared for fixation of pay with his junior, who came from one Unit to another Unit, cannot be done.

12.So even basically, the question of comparison cannot be entertained and her request cannot be entertained and his request cannot be considered even at the initial stage. So, the prayer of the petitioner can be set aside even at the primary stage.

7.Following the decisions as mentioned above, this Court had, inWP(MD)No.8046 of 2018, also passed an order in the following terms:- "9.Therefore, it became obvious that the petitioner all along from the date of selection and appointment has been senior and has been marching ahead of the said Ms.R.Vijayalakshmi. Therefore, the pay disparity if anything found between the petitioner and the third party, who is admittedly junior to the petitioner, the same shall be set right by the respondent and the anomaly must be redressed. In this regard, the only reason cited by the second respondent in the impugned order is that if both the petitioner and the third-party, who is junior to the petitioner, are appointed in the same Panchayat Union, then only the pay disparity can be redressed and as a result pay can be stepped up to the senior person. These reasons cannot be accepted as the seniority will not get changed, unless, the person gives up such right of seniority, if he is transferred from one Union to other Union by losing the right of seniority. It was in the case on hand, the petitioner all along has been senior and thereafter, would have been available to the respondents for promotion. Moreover, as rightly pointed out by the learned counsel for the petitioner that the issue is no more res integra, as the learned single Judge of this Court in the case of Vijayarani, cited supra, had an occasion to consider the similar issue and ultimately, the learned Single Judge has given findings, which reads thus: ".....5.The first respondent has proceeded on the footing that since the petitioner got transferred from Pudukottai to Kayathar Union, it is not possible to set right the pay anomaly.The reason assigned by the first respondent in the impugned order is un-sustainable in law. Even though the writ petitioner came to Kayathar Union by way of transfer and has to be placed at the bottom of the seniority list, the fact remains that the Shanthi got appointment as Secondary Grade Teacher at Kayatharu Union only later in point of time. Therefore, by no stretch of imagination the said Shanthi could have stolen march over the petitioner. The order impugned in this writpetition is quashed. The respondents are directed to set right the pay anomaly and step-up the pay of the petitioner on par with said Shanthi. Such an order shall be issued by the respondents within a period of eight weeks.

6.This Writ petition is allowed accordingly. No costs.

10.In view of the legal position and factual matrix of this case, I am of the considered view that the petitioner shall be entitled to seek pay parity on par with his junior, namely, one,Ms.R.Vijayalakshmi, who according to the petitioner gets a higher pay, who is junior to the petitioner all along. Therefore,the said grievance of the petitioner shall be redressed and his pay shall be stepped up on par with his junior.

8.In view of the above said orders, it is clear that the issue raised in this writ petition is covered by the number of decisions, as the reason given in the impugned order was no more being a valid one and therefore,on that ground, this impugned order is liable to be quashed and accordingly, the same is quashed."

10.The above judgment was also subsequently followed in WP(MD).No.6358 of 2019 dated 25.04.2019."

¶13In yet another case, the Hon'ble Division Bench of this court in W.A.(MD)No. 151 of 2022 dated 21.02.2022 has dealt with a similar case and the relevant portion of which is extracted as follows: "2. Learned Special Government Pleader for the appellants has vehemently submitted that, learned Single Judge fell in error while allowing the petition, since the petitioner was not entitled to stepping up of pay. It is submitted that the claim by the petitioner is against the policy of the State. It is submitted that, therefore this appeal be entertained.

¶3On the other hand, learned advocate for the respondent / original writ petitioner has submitted that, not only no error is committed while recording the impugned order, number of petitions were filed on this line and identical orders were passed and many of those orders were even challenged by the State and those appeals are also dismissed. Attention of this Court is invited to few of such orders, as under:

(i)Order dated 18.03.2021 recorded on W.A.No.178 of 2021;

(ii)Order dated 15.04.2021 recorded on W.A(MD)No. 27 of 2020;

(iii)Order dated 15.04.2021 recorded on W.A(MD)No. 740 of 2019;

(iv)Order dated 15.04.2021 recorded on W.A(MD)No. 215 of 2020;

(v)Order dated 15.04.2021 recorded on W.A(MD)No. 30 of 2020;

(vi)Order dated 15.04.2021 recorded on W.A(MD)Nos. 1223 and 1258 of 2020;

(vii)Order dated 15.04.2021 recorded on W.A(MD)Nos. 911 and 955 of 2020;

(viii)Order dated 15.04.2021 recorded on W.A(MD)No. 182 of 2021;

(ix)Order dated 15.04.2021 recorded on W.A(MD)No. 828 of 2021.

¶4Learned Special Government Pleader for the appellants is not in a position to dispute that, the subject matter of those appeals and the present appeal, in substance is the same. In view of this, no different view needs to be taken in this appeal.

¶5For the above reasons, this appeal is dismissed."

¶14As against the order passed by the Hon'ble Division Bench in the aforesaid writ appeal, a review application in Rev.Aplc(MD)No. 89 of 2022 was also filed and the Hon'ble Division Bench by its order dated

02.08.2022 dismissed the said review application on 02.08.2022.

¶15It is clear from the above judgments that even after the transfer of the teacher to the new union and placing the teacher at the bottom of the seniority list, the fact remains that the junior has got into the new division only at a later point of time. Therefore, the junior cannot be permitted to take a march over a senior teacher.

¶16In the instant cases, the facts clearly establish that the petitioners are very much seniors to their respective juniors, namely M. Elango and M.Kanagaraj respectively, both in terms of joining service and also joining in the new union and the above judgments also clearly cover the facts and circumstances of the present writ petitions.

¶17In view of the above discussion, this court is of the considered view that the impugned order passed by the second / third respondent respectively vide proceedings dated 30.09.2020 and 06.02.2023 require interference and accordingly the same are quashed. The petitioners are entitled to seek pay parity on par with their respective juniors, namely M. Ilango and M.Kanagaraj, who according to the petitioners are getting a higher pay.

¶18The second respondent / third respondent are directed to rectify the pay anomaly in the case of the petitioners and accordingly, step up the pay of the petitioners on par with their juniors and extend all the consequential benefits. Necessary orders shall be passed in this regard by the second respondent / third respondent respectively within a period of six (6) weeks from the date of receipt of a copy of this order.

19.Accordingly, these writ petitions are disposed of with the above directions. No costs.

12.03.2024 NCC : Yes / No Index : Yes / No Internet : Yes Sml To

1.The District Educational Officer (Elementary), Pudukkottai Educational District, Pudukkottai, Pudukkottai District.

2.The Block Educational Officer (Circle 2), Thirumayam Union, Pudukkottai Educational District, Pudukkottai District.

3.The Assistant Elementary Educational Officer, Thirumayam, Pudukkottai District.

4.The Additional Assistant Elementary Educational Officer, Thirumayam, Pudukkottai District.

5.The District Educational Officer, Vallioor, Tirunelveli District.

6.The Block Educational Officer II, Vallioor, Tirunelveli District. WP.(MD).Nos.7664eofe2023eande15641eofe2022 L.VICTORIAoGOWRI,oJ. Sml W.P.(MD)Nos.7664oofo2023oando15641oofo2022

12.03.2024