IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2011 CORAM: THE HONBLE MR.JUSTICE K.CHANDRU W.P.No.45590 of 2006 (O.A.No.7722 of 2000) and M.P.No.1 of 2010 Tamil Nadu Higher Secondary School Head Masters Association rep. By State Legal Secretary V.P.Somasundaram ...Petitioner Vs 1.Special Secretary to Government, Finance (Pay Cell) Department, Government of Tamil Nadu, Fort St.George, Chennai -9. 2.Director of School Education, Chennai 600 006. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, to call for the records relating to the proceedings of the 2nd respondent in Na.Ka.No.34024/C9/98 dated 15.12.1999 and Letter No.10660/Finance (CMPC) 2000-1 dated 14.03.2000 of Finance Department i.e first respondent and quash the same as null and void and direct the 2nd respondent to grant personal pay of Rs.600/- w.e.f. 01.09.1998 without adjusting the same in the future increment. For Petitioner : Mr.R.Saseetharan For Respondents : Mr.R.Murali, G.A. O R D E R
The petitioner is the Tamil Nadu Higher Secondary School Headmasters Association, represented by its Legal Secretary V.P.Somasundaram. They filed O.A.No.7722 of 2000 before the Tamil Nadu Administrative Tribunal, seeking to challenge the order dated 15.12.1999 passed by the second respondent, Director of School Education as well as the order dated 14.03.2000 passed by the first respondent State and after declaring the same as null and void seeks for a direction to the second respondent to grant Personal Pay of Rs.600/- with effect from 01.09.1998.
2. The petitioner claimed that their association is recognised by the State Government by G.O.No.145/99. The list of members of the said association numbering 150 is set out in the Annexure to the OA filed before the Tribunal.
3. The Tribunal admitted the Original Application on 23.10.2000 and granted interim stay for a period of two weeks. Subsequently, on 09.11.2000, the interim stay was extended without specifying any outer time limit. Though the respondent State had filed a vacate stay application in M.A.No.6231/2001, for reasons best known, the said application was not taken up for disposal by the Tribunal. Thereafter, a reply affidavit dated 02.04.2001 came to be filed.
4. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.45590 of 2006.
5. The facts leading to the filing of the case are as follows:-
The first respondent issued G.O.Ms.No.720 Finance Department dated 17.12.1998 granting Personal Pay of Rs.500/- to the Headmasters of the High School and Rs.600/- to the Headmasters of the Higher Secondary School with effect from 01.09.1998, taking note of their administrative responsibility in running the school in addition to meeting the teaching hours. The scale of pay of the Headmaster of the High School was fixed at Rs.6500-10500 and that of the Headmasters of Higher Secondary School was fixed at Rs.8000-13500 after the recommendations were made by the Official Committee in the year 1998. Based on the recommendations of the One Man Committee, the Government issued a revised scale of pay applicable to all the teachers starting from Secondary Grade Teachers to Headmasters of Higher Secondary Schools. But the Association representing the Headmasters of High Schools and Higher Secondary Schools requested for upward revision of scales for these categories on par with the Central Government. The Government took into account the structural set up of the promotional posts of Headmasters and the service conditions prevailing in the State and decided to negative the request made by them. Therefore, they have sanctioned only Personal Pay for these two posts in terms of G.O.Ms.No.720 Finance Department dated 17.12.1998. It was claimed that the Personal Pay was granted as compensatory measure considering the duties shouldered by the Headmasters. It was also found that the Headmasters of High School has a promotional avenue to the post of District Educational Officer (DEO) and the Headmasters of the Higher Secondary Schools move to the post of DEO on transfer. On moving to the post of DEO, the pay was fixed on the basis of the basic pay drawn in the post of Headmaster and the personal pay was directed to be adjusted against the annual increments drawn in the post of DEO. The circular issued by the second respondent, Director of School Education dated 15.12.1999 notifying the absorption of Personal Pay while fixing the scale of pay in the post of DEO. However, taking into account the requests of the Headmasters Association, the State Government issued a clarification dated 14.03.2000 stating that when the Headmasters are promoted to the post of DEO, personal pay need not be taken into account for pay fixation but will be allowed to retain by them separately in the higher post to be absorbed in future increment. It is these two orders which are under challenge before the Tribunal.
6. When the matter was pending before this Court, the petitioner Association filed M.P.No.1 of 2010 seeking permission to raise additional grounds with supporting documents.
7. However, this Court asked the petitioner to explain as to how the petitioner Association which is not a registered body can maintain a writ petition. In response to the query, the petitioner produced a Government order in G.O.Ms.No.145 School Education Department dated 21.05.1999 showing that the petitioner Association was recognised by the Government and therefore, they can maintain the writ petition in a representative capacity. It is needless to state that the Tamil Nadu Administrative Tribunal Rules provide for such petition being filed in a representative capacity by a recognised Association. But that by itself cannot be a ground for an unregistered body to maintain a writ petition especially when it is not registered under the provisions of either Tamil Nadu Societies Registration Act or as a Trade Union.
8. The said question came up for consideration before this Court in Tamil Nadu Government Office Assistants & Basic Servants Association v. District Collector and others reported in (2007) 5 MLJ 45. In that case, after referring to the earlier decision of the Full Bench and decision of the Division Bench, a similar contention raised by the petitioner was rejected.
9. Though the learned counsel for the petitioner claimed that the Association was registered, he was unable to produce any such proof towards the same. Even otherwise, the contention raised in the OA was since the members of the petitioner Association was having the benefits in the capacity of Headmaster, the same cannot be withdrawn due to the change of circumstances on account of promotion without giving opportunity. The second argument was that G.O.Ms.No.720 School Education Department granted the benefit to the Headmasters for Personal pay, which includes even for pensionary benefits and therefore once personal pay is granted, it will have to continue till retirement and therefore, the Government letter cannot override the earlier Government Order.
10. Both the grounds raised by the petitioner are not maintainable. The fact that members of petitioner Association were given personal pay only in the discharge of their duty as Headmasters, because apart from teaching work they will have to shoulder their administrative responsibility which is attached to the said post. The moment if they move to the post of DEO, it was not necessary to grant any such allowance. In the present case, the Government has accepted not to take into account for pay fixation purpose but will continue to be maintained separately even in the post of DEO but it will be absorbed against future increments. Therefore, once personal pay is paid, that cannot be withdrawn in any contingency cannot be accepted. Therefore, there is no illegality in the order passed by the respondents.
11. The last submission that a Government order cannot be altered by a letter of the Government also does not stand to reason. In this context, it is necessary to refer to the judgment of the Supreme Court in K.S.Krishnaswamy etc. v. Union of India and another reported in (2006) 13 SCC 215, wherein an identical contention raised was rejected by the Supreme Court, In paragraph 18, it was observed as follows:-
“18. It is common knowledge that an increase in the pay scale in any recommendation of a Pay Commission is a corresponding increase in the pay scale. In our view, therefore, executive instructions dated 11-5-2001 have been validly made keeping in view the recommendations of the Pay Commission accepted by the Policy Resolution of the Government on 30-9-1997, clarified by executive instructions dated 17-12-1998. The executive instructions dated 11-5-2001 neither override the policy resolution dated 30-9-1997 nor executive instructions dated 17-12-1998 clarifying the policy resolution dated 30-9-1997. The executive instructions dated 11-5-2001 were in the form of further clarifying the executive instructions dated 17-12-1998 and do not override the same.”
12. In the light of the above, the writ petition lacks in merits. Accordingly, the writ petition stands dismissed both on the ground of maintainability as well as on merits. No costs. Connected M.P.NO.1 of 2010 also stands dismissed.
15.02.2011
svki
Index : Yes/No
Internet: Yes/No
To
1.Special Secretary to Government,
Finance (Pay Cell) Department,
Government of Tamil Nadu,
Fort St.George, Chennai -9.
2.Director of School Education,
Chennai 600 006.
K.CHANDRU,J.
Svki
W.P.No.45590 of 2006
(O.A.No.7722 of 2000)
15.02.2011