IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.09.2009
CORAM:
THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.NO.9386 OF 2007
M.Raj Mohamed ... Petitioner
Vs.
1. State of Tamil Nadu represented by
the Secretary to Government
School Education Department
Secretariat, Chennai 9
2. Director of Elementary Education
Chennai 6
3. District Elementary Educational Officer
Cuddalore ... Respondents
PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India for issuance of writ of Certiorarified Mandamus by way of transfer of O.A.No.1205 of 2002, to call for records pertaining to the order passed by the first respondent in G.O.Ms.No.166, School Education Department, dated 07.06.1999 and the consequential order of the respondent -3 in Oa.Mu.9200 A 3/2001 dated 31.12.2001 and set aside the same, and direct the respondents to promote the petitioner as Middle School Headmaster as per Rule 36(a) of General Rules for Tamil Nadu State and Subordinate Services, from the date on which is junior was promoted and confer all the consequential benefits.
For Petitioner : Mr.P.Ganesan
For Respondents : Mr.P.Muthu Kumar
Government Advocate
(R-1 to R-3)
---
O R D E R
The Original Application in O.A.No.1205 of 2002 before the Tamil Nadu Administrative Tribunal (hereinafter referred to as “the Tribunal”) is now Writ Petition in W.P.No.9386 of 2007 before this Court.
2. Heard Mr.P.Ganesan, learned counsel for the petitioner and Mr.P.Muthu Kumar, learned Government Advocate for the respondents.
3. The petitioner was a Secondary Grade Teacher on and from 01.06.1988. Consequent on his acquiring B.Ed., qualification, he was promoted as B.T. Assistant from 15.10.1998. He seeks to challenge G.O.166, School Education dated 07.06.1999 which permits preparation of panel through combine seniority of B.T. / Tamil Pandit / Primary School Head Master.
4. The respondents filed reply affidavit in the Original Application. It is stated in the reply affidavit that prior to revision of pay, pursuant to the VI Pay Commission recommendations with effect from 01.01.1996, the scale of pay of Primary School Headmaster / B.T. Teachers / Tamil Pandit was one and the same i.e., Rs.1,400 -2,600. However, different scales were fixed for B.T. Teachers and Tamil Pandits, on the one hand and primary School Headmasters on the other hand. The B.T. Teachers / Tamil Pandit were given the scale of pay of Rs.5,500-9,000 and Primary School Headmasters were given the scale of pay of Rs.5,300-8,300.
5. The case of the petitioner is that in view of Rule 36(a) of the General Rules for Tamil Nadu State and Subordinate Services, Primary School Headmasters should be considered for promotion only after B.T. Assistants, since the B.T. Assistants are admittedly getting higher scale of pay. The Rule 36(a) is extracted here-under:-
“36. (a) Promotion No member of a service or class of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category:
Provided that a member of a service or class of a service who, having satisfactorily completed his probation in the category in which he was appointed to the Service, has been promoted to the next higher category shall, notwithstanding that he has not been declared to have satisfactorily completed his probation in such higher category be eligible for promotion from such higher category:
*Provided further that if scales of pay of posts in the feeder categories are different, the persons holding post carrying a higher scale of pay in the feeder category shall be considered first and that, if no qualified and suitable persons holding post in that feeder category are available, the persons holding post carrying the next higher scale of pay in descending order in other feeder categories shall be considered.
*Added in.G.O.Ms.No.400.P & AR (Per.P), dated 17.04.1985, w.e.f.13.10.1984.”
6. On the other hand, G.O.166 of the first respondent dated 07.06.1999 was issued invoking the power of the Government under Rule 48 of the General Rules for Tamil Nadu State and Subordinate Services. Since the Government exercised its power under Rule 48 to continue to give the benefit, even after different scale is prescribed, by treating Primary School Headmasters also as the feeder category along with B.T. Assistants on equal footing, the petitioner cannot have any grievance. It is not in dispute that the Government has no power under Rule 48 to give necessary relaxation. Furthermore, the power of the Government under Rule 48 is not in challenge.
7. In these circumstances, the writ petition fails and the same is dismissed. No costs.
rns
To
1. The Secretary to Government
School Education Department
Secretariat, Chennai 9
2. Director of Elementary Education
Chennai 6
3. District Elementary Educational Officer
Cuddalore
