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[7/29, 09:58] Sekarreporter1: R. Neelakandan AAG assisted by S.Anitha Special Government Pleader [7/29, 09:58] Sekarreporter1: Writ petition dismissed [7/29, 09:58] Sekarreporter1: To count the service of the petitioner in aided school resigned his job he got appointment in government school by way of direct recruitment through TRB &joined immediately smsj order

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[7/29, 09:58] Sekarreporter1: R. Neelakandan AAG assisted by S.Anitha Special Government Pleader
[7/29, 09:58] Sekarreporter1: Writ petition dismissed
[7/29, 09:58] Sekarreporter1: To count the service of the petitioner in aided school resigned his job he got appointment in government school by way of direct recruitment through TRB &joined immediately

 

[7/29, 09:58] Sekarreporter1: R. Neelakandan AAG assisted by S.Anitha Special Government Pleader
[7/29, 09:58] Sekarreporter1: Writ petition dismissed
[7/29, 09:58] Sekarreporter1: To count the service of the petitioner in aided school resigned his job he got appointment in government school by way of direct recruitment through TRB &joined immediately

 

 

 

N THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 25-07-2022

CORAM

THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

WP No.34474 of 2014

P.Matheswaran                          ..             Petitioner

vs.

1.The State of Tamil Nadu,

Represented by its Secretary to Government,

Education Department,

Secretariat,    Chennai – 9.

2.The Joint Director of School Education

(Higher Education),    College Road,    Chennai – 6.

3.The Chief Educational Officer,

Namakkal.                          ..        Respondents

Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the entire records connected with impugned order of the third respondent vide Na.Ka.No.2486/A6/2014, dated 10.07.2014 and quash the same and direct the respondents to count the service of the petitioner rendered in the aided Bharathi High School, Reddipatti, Namakkal, as Junior B.T. from

30.07.2004 to 31.05.2006 and as B.T. Assistant from 01.06.2006 to 17.09.2012 for the purpose of refixation of scale of pay and pension benefits.

For Petitioner   : Mr.S.N.Ravichandran

For Respondents               :  Mr.R.Neelakandan,

Additional Advocate General                                                         Assisted by Ms.S.Anitha,

Special Government Pleader.

O R D E R

The rejection of claim of the writ petitioner for fixing the pay

taking into consideration of the last drawn pay of the services rendered in Aided School, is questioned in the present writ petition.

  1. The writ petitioner joined as Junior B.T. Assistant on

30.07.2004 on consolidated salary of Rs.4,000/- per month in the Aided School, namely, Bharathi High School Reddipatti, Namakkal. His services were regularised with effect from 01.06.2006 as B.T. Assistant in the regular scale of pay of Rs.5,500-175-9,000/-. Annual increments were also sanctioned to the writ petitioner. Accordingly, he had drawn a sum of Rs.34,262/- in the scale of pay of Rs.15,280/- with Grade Pay of Rs.4,600/-.

  1. Pursuant to the Recruitment Notification dated 30.08.2012 of

the Teachers Recruitment Board, the petitioner participated in the process of selection directly and selected and appointed as P.G. Assistant (Chemistry) in order dated 15.09.2012. The petitioner was relieved from the Aided School on submission of his resignation. Thus, the writ petitioner resigned the post in the Aided School and thereafter joined as P.G. Assistant (Chemistry) in the Government School on 17.09.2012.

  1. The learned counsel for the petitioner made a submission that

the petitioner though worked as B.T. Assistant in the Aided School and resigned his job, he got appointment in the Government School by way of direct recruitment through Teachers Recruitment Board and joined immediately. Therefore, the salary received by him in the Aided School is to be taken into consideration for revising the pay in the newly appointed post, namely, P.G. Assistant (Chemistry).

  1. It is contended that there was no break in service and he

resigned the post and he immediately joined in the Government School and thus the pay protection is to be granted by revising the scale of pay taking into consideration the earlier pay received by the writ petitioner as B.T. Assistant in the Aided School.

  1. The learned Special Government Pleader appearing on behalf

of the respondents objected the said contentions raised on behalf of the writ petitioner by stating that the petitioner was working as B.T. Assistant in the Aided School. However, he was directly recruited as P.G. Assistant

(Chemistry) in the Department of School Education and joined as such.

Therefore, the petitioner accepting the terms and conditions in the Recruitment Notification, including the scale of pay, as applicable pay of P.G. Assistant (Chemistry) joined in service and accordingly his scale of pay was fixed as per the terms and conditions stipulated for the directly recruited P.G. Assistant. Thus, the representation submitted by the writ petitioner in this regard was rejected by the respondents.

  1. Earlier the writ petitioner filed the writ petition in WP No.5627 of 2014, challenging the rejection order dated 06.12.2013 and for a direction to count the services of the petitioner rendered in the Aided Bharathi High School, Reddipatti, Namakkal as Junior B.T. Assistant from 30.07.2004 to 31.05.2006 and joined as B.T. Assistant with effect from

01.06.2006 to 17.09.2012 for the purpose of re-fixation of scale of pay.

  1. This Court passed an order on 14.03.2014, granting liberty to

the writ petitioner to resubmit his representation dated 27.11.2013 along with G.O.Ms.No.1072, Personnel and Administrative Reforms Department, dated 31.10.1986. The said representation is directed to be disposed of by the respondents. Accordingly, the respondents issued the impugned order in proceedings dated 10.07.2014, rejecting the claim of the writ petitioner.

Thus. the writ petitioner moved the present writ petition.

  1. The learned counsel for the petitioner further relied on the

judgment of this Court passed in WP No.32645 of 2018 dated 16.07.2019, wherein the fixation of pay under FR 22(B) was taken into consideration and the first respondent therein was directed to pass appropriate orders, taking note of the last pay drawn by the writ petitioner therein before his migration to the Government Service. The said judgment was confirmed by the Division Bench of this Court in W.A.No.3868 of 2019 dated

16.10.2020. It is brought to the notice of this Court that the SLP filed before the Hon’ble Supreme Court was also dismissed.

  1. Earlier the writ petitioner relied on the judgment of the

Division Bench of this Court dated 04.12.2018 passed in W.A.No.1832 of 2018, wherein the Division Bench referred FR 22-B. In the abovesaid judgments, the Courts have referred FR 22-B of the Fundamental Rules.

  1. The learned counsel for the petitioner, relying on the

judgment of the Division Bench of this Court dated 16.10.2020 passed in W.A.No.3868 of 2019, made a submission that the petitioner is entitled for fixation of pay based on his services rendered in the Aided School.

  1. It is not in dispute that the petitioner served in the Aided

School and resigned the post and thereafter, directly appointed through the

Teachers Recruitment Board to the post of P.G. Assistant. As per the Recruitment Notification, the selection was done and as per the terms and conditions stipulated in the Recruitment Notification, the pay fixation was granted to the writ petitioner. However, after appointment in the post of P.G. Assistant, the petitioner made a request to grant the fixation of pay taking into consideration the pay in which he was receiving in the Aided School.

  1. The learned counsel for the petitioner is of an opinion that

the Government also issued an order in this regard in G.O.Ms.No.1580, Education Department, dated 18.10.1969 and even as per the Government Order, the petitioner is entitled for fixation of pay based on the salary, which he was receiving in the Aided School.

  1. The learned Additional Advocate General, appearing on

behalf of the respondents, disputed the contentions raised on behalf of the writ petitioner, by stating that subsequently, the Division Bench of the Madurai Bench of this Court, considered the very same issue elaborately and delivered a judgment on 15.07.2022 in W.A.(MD) No.627 of 2022. In the abovesaid judgment, the Hon’ble Division Bench of the Madurai Bench of this Court considered the relevant Special Rules for Tamil Nadu Higher

Secondary Education Service, which is applicable to the post of P.G. Assistant and formed an opinion that the petitioner therein cannot claim the benefit of fixation of pay based on the salary received by him in the Aided School. The Division Bench of the Madurai Bench of this Court relied on the judgment of the Hon’ble Supreme Court of India in the case of Palure

Bhaskar Rao and Others vs. P.Ramaseshaiah and Others [(2017) 5 SCC

783], wherein in paragraphs 14 and 15, it has been held as under:-

“14. Transfer and recruitment by transfer are entirely two different concepts. No doubt transfer can be from one category to another category or within the class if the rule permits interchangeability of the categories within a class. Any other transfer both intra-category and inter-category are in fact, under law is a selection and appointment by way of a transfer from one category to another or from one class to another class or from one service to another. If it is a transfer simpliciter it conveys a different meaning and if it is a recruitment by transfer, as we have clarified above conveys a different concept altogether. The latter is a mode of selection/recruitment to a service.”

“15. Transfer in relation to service simply means a change of a place of employment within an organisation. Such transfer being to a similar post in the same cadre and therefore obviously such a transfer does not result in the termination of his lien in the parent cadre but recruitment by transfer is a different service concept altogether. It is a method of recruitment to a service, in the instant case to a different category in the same service initially and thereafter to a different service altogether. Once an employee undergoes a transfer by way of a recruitment to a different cadre or to a different service, the employee loses his lien in the parent cadre/service. In that process, there is an induction to a new cadre and sometimes with a different type of duty. Such induction has distinct consequence on the career of the employee different from what would have been the normal course had he continued in the parent service. Thus the recruitment by transfer terminates the lien of an employee in the parent cadre/service whereas transfer simpliciter to a similar post in the same cadre results only in change of place of employment and therefore there is no termination of lien (see V. Jagannadha Rao v. State of A.P. [V. Jagannadha

Rao v. State of A.P., (2001) 10 SCC 401 : 2002

SCC (L&S) 872] and B. Thirumal v. Ananda

Sivakumar [B. Thirumal v. Ananda Sivakumar,

(2014) 16 SCC 593 : (2015) 3 SCC (L&S)

379]).”

  1. In paragraphs-26 and 27 of the abovesaid judgment [W.A.(MD) No.627 of 2022 dated 15.07.2022], the Hon’ble Division Bench of Madurai Bench of this Court was not in agreement with the judgment of the earlier Division Bench of this Court relied on by the petitioner in

W.A.No.3868 of 2019 dated 16.10.2020 and the reasons for disagreement are stated as under:-

“26. We are not in agreement with the judgment of the Division Bench in W.A.No.3868 of 2019 dated 16.10.2020 for the following reasons: (i).The judgment of the Hon’ble Supreme Court reported in in (2017) 5 SCC Page 783 ( Palure Bhaskar Rao and others -Vs- P.Ramaseshaiah and others) as referred supra has not been taken into consideration. (ii).Rule 2(b)(ii) of Special Rules for Tamil Nadu Higher Secondary Educational Service relating to 50% reservation for direct recruitment has not been brought to the notice of the Division Bench. (iii).Rule-8 relating to fixation of two different periods of probation for the candidates selected through direct recruitment and transfer of service has not been brought to the notice of the Division Bench.

  1. In view of the above said circumstances, we respectfully follow the judgement of the Hon’ble Supreme Court reported in in (2017) 5 SCC Page 783 ( Palure Bhaskar Rao and others -Vs- P.Ramaseshaiah and others).”
  2. Further in paragraphs 29 and 30, the Hon’ble Division Bench of Madurai Bench of this Court has considered the dismissal of SLP by the Hon’ble Supreme Court of India, which reads as under:-

“29. In view of the judgment of the Hon’ble Supreme Court, we find that the order dated 12.04.2021 made in SLP(Civil).No.5633 of 2021 is an order refusing the Special Leave Petition without assigning any reason. Hence, it does not attract the doctrine of merger. Therefore, an order refusing Special Leave Petition does not stand substituted in the place of the order in W.A.No.3868 of 2019. Hence, the contention of the learned counsel appearing for the appellant that the order of the Division Bench of our High Court has been confirmed by the Hon’ble Apex Court is not legally sustainable.

  1. The petitioner having participated in the direct recruitment process and got appointment cannot turn around and contend that he was appointed by transfer of service from the post of B.T.Assistant to the post of P.G.Assistant. The continuous usage of the old Service Register of the petitioner, even after being appointed as P.G.Assistant will not confer any right to get pay protection. The fact that there was no break in service also will not convert a direct recruitment into an appointment by transfer of service. Hence, the contentions on the side of the learned counsel for the appellant are not legally sustainable.”
  2. The Hon’ble Division Bench of Madurai Bench of this Court in its judgment dated 15.07.2022 in W.A.(MD) No.627 of 2022 referred the judgment of the earlier Division Bench of this Court dated

16.10.2020 passed in W.A.No.3868 of 2019. The subsequent Division

Bench disagreed with the earlier Division Bench of this Court based on the

Rules applicable and on the basis of the principles laid down by the Hon’ble Supreme Court of India.

  1. Considering the judgment of the subsequent Division Bench of Madurai Bench of this Court in W.A.(MD) No.627 of 2022 dated 15.07.2022, this Court is of the opinion that non-consideration of Statute, precedent sub silentio are the grounds and circumstances which would destroy the binding force of the judicial precedents. In the event of nonapplication of the Statute applicable, the said judgmnet cannot have the binding force.
  2. As far as the present case is concerned, the appointments in

the Aided Schools are no way connected with the appointments in Government Schools. The Teachers of the Aided Schools are appointed by the respective Managements by following the procedures as contemplated under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and the Rules thereunder. Their service conditions are governed under the Act and the Rules.

  1. The Teachers appointed in Government Schools are

governed under the separate set of Government Service Rules and their service conditions are no way connected with the service conditions of the Teachers appointed in Aided Schools under the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. Therefore, the services of the Aided School Teachers and the staff, cannot be compared nor akin to that of the service conditions applicable to the Teachers and the staff appointed in Government Schools. When the service conditions are entirely distinct and different, the Aided School Teacher, who resigned his job and appointed by way of direct recruitment through Teachers Recruitment Board under the Relevant Special Rules applicable to the post of P.G. Assistant, is not entitled to claim fixation based on the salary received by him in the Aided School. Since the petitioner resigned his job, he has taken up the new appointment by participating in the process of selection conducted by the Teachers Recruitment Board. The Teachers Recruitment Board Notification stipulates the terms and conditions of the services in consonance with the Service Rules applicable to the Government Services. Accordingly, the pay, as applicable to the post of P.G. Assistant has been fixed to the writ petitioner, which cannot be termed as perverse.

  1. Adding to the grounds dealt with by the Division Bench of

this Court, the above factors are also to be taken into consideration with reference to the issues placed before this Court. Thus, the Tamil Nadu

Recognised Private Schools (Regulation) Act, 1973 and the Rules applicable to the Teachers and the staff working in Aided Schools, are not applicable to the Teachers working in the Government Schools and the service conditions are distinct and separate. Thus, the question of granting fixation of pay taking into consideration, the services rendered by the Teachers in the Aided Schools would not arise at all.

  1. For all purposes, the appointment of the writ petitioner as P.G. Assistant based on the recruitment process is independent and thus, there is no infirmity in respect of the actions taken by the respondents. That apart, the petitioner accepted the terms and conditions of the recruitment and accordingly joined in the post of P.G. Assistant. Once he accepted the terms and conditions of the Recruitment Notification and the Rules applicable therein, the petitioner cannot turn around and now claim that he is entitled for the fixation of pay based on the last drawn salary received by him in the Aided School. The very claim of the writ petitioner is misconceived.
  2. Accordingly, the writ petition fails and it stands dismissed.

However, there shall be no order as to costs.

                      25-07-2022

Index    : Yes/No.

Internet : Yes/No.

Speaking Order/Non-Speaking Order.

Svn

To

1.The Secretary to Government,

State of Tamil Nadu,

Education Department,

Secretariat,    Chennai – 9.

2.The Joint Director of School Education

(Higher Education),    College Road,    Chennai – 6.

3.The Chief Educational Officer,    Namakkal.

S.M.SUBRAMANIAM, J.

Svn

WP 34474 of 2014

25-07-2022

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