K.S. Kamalanathan Vs. State of Tamil Nadu & Anr.
EmailAppeal: Civil Appeal No.994 of 1980
Petitioner: K.S. Kamalanathan
Respondent: State of Tamil Nadu & Anr.
Apeal: Civil Appeal No.994 of 1980
Judges: K. JAGANNATHA SHETTY & KULDIP SINGH, JJ.
Date of Judgment: Mar 01, 1989
Appearances:
Mr. K. Rajindera Choudhary, Mr. B. Mohan, Mr. K. Ramkumar & Mr. B. Kanta Rao, Advocate for the parties.
Head Note:
SERVICE AND LABOUR LAW
Promotion
Teachers employed in schools run by Panchayat Union Councils – No cadre of Headmaster existing prior to 2nd October 1970 – Promotion to the post of Headmasters with higher pay scale sanctioned in February, 1971 w.e.f October 1970 on the basis of seniority – Govt. order dated 14th May, 1979 providing pay protection to junior teachers facing reversion or who had been reverted by application of seniority rule upheld as fair – Tamil Nadu Panchayat Union Councils Establishment Rules, Rule 22 – Tamil Nadu Panchayats Act, 1958.
Held:
The proposition of law de-hors the facts of this case is unexceptionable. There are no accrued or vested rights in any of the parties in this case. From 1970 uptil 1979 there has been continuous Lis between the Headmasters who were holding the posts on 1st October, 1970 though junior in seniority and the others who were claiming those posts on the basis of higher seniority. There were several rounds of litigation in the Madras High Court and as a consequence number of Government Orders were issued from time to time. The rights of the parties were never crystalised. Finally, as a result of the directions of the High Court Government Order No.784 dated 14th May, 1979 was issued which settled the controversy for ever. It is thus incorrect to say that any rights got vested in any of the parties prior to the date of the impugned Government Order. The Government Order has been upheld by the Madras High Court and we find no infirmity in the judgment of the Division Bench. Far from being arbitrary, the Government Order is fair and does justice to all the parties. The Government have provided pay protection to the junior teachers who have been reverted or are facing reversion by application of the rule of seniority. They would continue to get the pay admissible to the head masters of middle schools even after reversion to the post of teacher. There is thus no force in the argument advanced by the learned counsel. The appeal and the writ petition are dismissed. (Para 10)
JUDGEMENT:
KULDIP SINGH, J. :
1. Facts necessary to decide this appeal and the connected writ petition are as under :-
2. Panchayat Union Councils came into existence under Tamil Nadu Panchayats Act, 1958. Teachers were employed by the Panchayat Union Councils to run the schools established by these Councils all over the State of Tamil Nadu. Prior to 2nd October, 1970 there was no separate post of head master in these primary and middle standard schools. There was no separate cadre of head masters and both the posts carried the same scale of pay. Appointment to the post of head master was not considered promotion.
3. It was in February, 1971 that separate higher scale of pay was sanctioned for the post of head master of middle schools and was made operative with effect from 2nd of October, 1970. Two separate cadres having come into existence the Government by Order No.1722 dated 6th of October, 1971 directed that promotions to the post of head master be made from amongst the teachers on the basis of seniority. Consequently the existing incumbants in the posts of head master were reverted, wherever necessary, and promotions were made strictly in accordance with seniority.
4. Affected head masters challenged the validity of Government Order No.1722 in Writ Petition 3622 of 1973 before the Madras High Court and the learned single judge allowed the writ petition holding that Government Order 1722 could only operate prospectively and would not effect those who were already functioning as head masters of middle schools irrespective of their seniority. Division Bench upheld the judgment.
5. In order to give effect to the directions contained in the judgment of the High Court,Government Order No.1044 dated 23rd of June, 1975 was issued. Under this Order, from 6th October, 1971 onward, promotions to the posts of head master were to be made on the basis of seniority amongst teachers and the head masters working as such till the afternoon of 5th October, 1971 were to continue to hold their positions irrespective of their seniority. Validity of this Order was also challenged by way of Writ Petition No.5000 of 1975 before the Madras High Court. Learned single judge allowed the writ petition and set aside the Government Order being contrary to Rule 22 of the Tamil Nadu Panchayat Union Councils Establishment Rules which provided that promotions to the post of middle school head master was to be made strictly on the basis of seniority. The learned judge directed the Panchayat Union Commissioner to make promotions without reference to the Government Order and strictly in accordance with Rule 22 of the above mentioned Rules.
6. Acting in accordance with the judgment in Writ Petition 5000 of 1975, Government Order No.1219 dated 18th July, 1977 was issued. This Order provided that posts of middle school head masters be treated as promotional posts for the purposes of Rule 22 with effect from 1st October, 1970. It was further provided that teachers who were holding the posts of head master on the basis of their seniority, be permitted to continue but others be reverted. The vacancies which arose after 1st of October, 1970 were to be filled on the basis of seniority alone. Again the Government Order was challenged by way of Writ Petition No.2422 of 1977 in the Madras High Court. The writ petition was dismissed in-limine by the learned single judge, but the Division Bench in writ appeal directed the appellants before it to approach the Government and place for Government’s consideration the details of the circumstances under which they were appointed as head masters and also the date from which and the period for which they had been working as such. The Bench also observed that it was not for the High Court to lay down the criteria and the Government should dispose of the matter by following the guidelines given in the judgment.
7. In the light of the observations made by the High Court, Government Order No.130 dated 25.1.1978 was issued but on reconsideration and after examining all the issues involved, the Government, in modification of all earlier orders, finally issued Government Order No.784 dated 14th of May, 1979. This is the Government Order which is under attack in the present proceedings. The operative part of the Government Order is reproduced hereunder:-
“(I) the post of the middle school Headmaster and primary school Headmaster in Panchayat Union Schools should be treated as promotion posts for the purpose of Rule 22(a) of the Tamilnadu Panchayat Union Council, Establishment Rules 1964 with effect from 1.10.1970, the date on which the new scale of pay for Head masters of middle schools has been given effect. Hence ‘Seniority’ shall be the criterion for promotion of Secondary Grade Teachers as Head masters of middle schools and primary schools. However due to issue of various Government Orders regulating the promotion to the post of Headmasters, middle school and orders of the Court which resulted in promotion and reversion of both seniors and juniors from 1.10.1970, the Government have decided to give effect to the decision for following strictly seniority for promotion to the posts of Head master, middle school and primary school only with effect from 1.6.1979.
(II) The appointments made so far as Headmasters of middle schools from 1.10.1970 upto 31.7.78 shall be regulated as follows: Illustrations to regulate the pay of the teachers are given in the annexure to the G.O.
(a) A Secondary Grade Teacher who acted as Headmaster middle school on 1.10.1970 by virtue of seniority may be allowed to continue as Headmaster, middle school and his pay refixed in accordance with the order issued in the G.O. seventh read above.
(b) A Secondary Grade Teacher who acted as Headmaster middle school after 1.10.1970 by virtue of seniority and continued thereafter as Headmaster without reversion may be allowed to continue as Headmaster and his pay refixed according to the orders issued in the G.O. seventh read above, with effect from the date of his first promotion as middle school Headmaster.
(c) A Secondary Grade Teacher promoted as Headmaster middle school after 1.10.1970 by virtue of seniority but subsequently reverted with reference to Government Orders second and third read above may again be promoted on 1.6.1979. However, his pay be regulated as Headmaster middle school from the date of his first promotion as if he continued as Headmaster middle school according to the G.O. Seventh read above without any claim for arrears during the period he actually worked as Secondary Grade Assistant.
(d) A Secondary Grade Teacher who acted as Headmaster middle school on 1.10.1970 but not senior enough to be promoted as Headmaster middle school as on 1.10.1970 may be reverted as Headmaster primary school, or as Secondary Grade Assistant on 1.6.1979 according to seniority but he should be allowed to draw pay in the scale of pay admissible to the Headmaster middle school after his pay is regulated as per the G.O. seventh read above. However arrears of pay should be allowed only for the period during which he actually acted as Headmaster. He shall not be allowed to draw the special pay attached to the post of Headmaster middle school after reversion. The services put in by him as Headmaster and Selection Grade teachers in the Headmaster’s scale of pay after reversion shall count as service in Selection Grade teacher’s post for purposes of advancement to special grade.
(III) The pay of the senior shall not be stepped up to the level of the junior, if the junior happens to get more pay than the senior.
(IV) A Secondary Grade Teacher who is entitled to promotion as Headmaster of middle school according to seniority as per the above two orders, but gives in writing in categorical terms declining to act as Headmaster of middle school need not be promoted.”
8. The abovesaid Government Order was challenged by way of several writ petitions before the Madras High Court. The Division Bench of the High Court, by its judgment dated 2nd of November, 1979, dismissed the writ petitions. Civil Appeal 994/80 is against the High Court judgment and Writ Petition 574/80 has been filed by an association of middle school head masters on identical facts.
9. The only contention advanced by Mr. M.K. Ramamurthi, learned counsel for the appellant and the writ petitioners is that teachers who were posted as head masters, under the Government Orders from time to time, have acquired a vested right and the same cannot be taken away by the impugned administrative order. According to him taking away accrued rights would amount to operating the Government Order with retrospective effect.
10. The proposition of law de-hors the facts of this case is unexceptionable. There are no accrued or vested rights in any of the parties in this case. From 1970 uptil 1979 there has been continuous Lis between the Headmasters who were holding the posts on 1st October, 1970 though junior in seniority and the others who were claiming those posts on the basis of higher seniority. There were several rounds of litigation in the Madras High Court and as a consequence number of Government Orders were issued from time to time. The rights of the parties were never crystalised. Finally, as a result of the directions of the High Court Government Order No.784 dated 14th May, 1979 was issued which settled the controversy for ever. It is thus incorrect to say that any rights got vested in any of the parties prior to the date of the impugned Government Order. The Government Order has been upheld by the Madras High Court and we find no infirmity in the judgment of the Division Bench. Far from being arbitrary, the Government Order is fair and does justice to all the parties. The Government have provided pay protection to the junior teachers who have been reverted or are facing reversion by application of the rule of seniority. They would continue to get the pay admissible to the head masters of middle schools even after reversion to the post of teacher. There is thus no force in the argument advanced by the learned counsel. The appeal and the writ petition are dismissed. There will be no order as to costs.
1. Facts necessary to decide this appeal and the connected writ petition are as under :-
2. Panchayat Union Councils came into existence under Tamil Nadu Panchayats Act, 1958. Teachers were employed by the Panchayat Union Councils to run the schools established by these Councils all over the State of Tamil Nadu. Prior to 2nd October, 1970 there was no separate post of head master in these primary and middle standard schools. There was no separate cadre of head masters and both the posts carried the same scale of pay. Appointment to the post of head master was not considered promotion.
3. It was in February, 1971 that separate higher scale of pay was sanctioned for the post of head master of middle schools and was made operative with effect from 2nd of October, 1970. Two separate cadres having come into existence the Government by Order No.1722 dated 6th of October, 1971 directed that promotions to the post of head master be made from amongst the teachers on the basis of seniority. Consequently the existing incumbants in the posts of head master were reverted, wherever necessary, and promotions were made strictly in accordance with seniority.
4. Affected head masters challenged the validity of Government Order No.1722 in Writ Petition 3622 of 1973 before the Madras High Court and the learned single judge allowed the writ petition holding that Government Order 1722 could only operate prospectively and would not effect those who were already functioning as head masters of middle schools irrespective of their seniority. Division Bench upheld the judgment.
5. In order to give effect to the directions contained in the judgment of the High Court,Government Order No.1044 dated 23rd of June, 1975 was issued. Under this Order, from 6th October, 1971 onward, promotions to the posts of head master were to be made on the basis of seniority amongst teachers and the head masters working as such till the afternoon of 5th October, 1971 were to continue to hold their positions irrespective of their seniority. Validity of this Order was also challenged by way of Writ Petition No.5000 of 1975 before the Madras High Court. Learned single judge allowed the writ petition and set aside the Government Order being contrary to Rule 22 of the Tamil Nadu Panchayat Union Councils Establishment Rules which provided that promotions to the post of middle school head master was to be made strictly on the basis of seniority. The learned judge directed the Panchayat Union Commissioner to make promotions without reference to the Government Order and strictly in accordance with Rule 22 of the above mentioned Rules.
6. Acting in accordance with the judgment in Writ Petition 5000 of 1975, Government Order No.1219 dated 18th July, 1977 was issued. This Order provided that posts of middle school head masters be treated as promotional posts for the purposes of Rule 22 with effect from 1st October, 1970. It was further provided that teachers who were holding the posts of head master on the basis of their seniority, be permitted to continue but others be reverted. The vacancies which arose after 1st of October, 1970 were to be filled on the basis of seniority alone. Again the Government Order was challenged by way of Writ Petition No.2422 of 1977 in the Madras High Court. The writ petition was dismissed in-limine by the learned single judge, but the Division Bench in writ appeal directed the appellants before it to approach the Government and place for Government’s consideration the details of the circumstances under which they were appointed as head masters and also the date from which and the period for which they had been working as such. The Bench also observed that it was not for the High Court to lay down the criteria and the Government should dispose of the matter by following the guidelines given in the judgment.
7. In the light of the observations made by the High Court, Government Order No.130 dated 25.1.1978 was issued but on reconsideration and after examining all the issues involved, the Government, in modification of all earlier orders, finally issued Government Order No.784 dated 14th of May, 1979. This is the Government Order which is under attack in the present proceedings. The operative part of the Government Order is reproduced hereunder:-
“(I) the post of the middle school Headmaster and primary school Headmaster in Panchayat Union Schools should be treated as promotion posts for the purpose of Rule 22(a) of the Tamilnadu Panchayat Union Council, Establishment Rules 1964 with effect from 1.10.1970, the date on which the new scale of pay for Head masters of middle schools has been given effect. Hence ‘Seniority’ shall be the criterion for promotion of Secondary Grade Teachers as Head masters of middle schools and primary schools. However due to issue of various Government Orders regulating the promotion to the post of Headmasters, middle school and orders of the Court which resulted in promotion and reversion of both seniors and juniors from 1.10.1970, the Government have decided to give effect to the decision for following strictly seniority for promotion to the posts of Head master, middle school and primary school only with effect from 1.6.1979.
(II) The appointments made so far as Headmasters of middle schools from 1.10.1970 upto 31.7.78 shall be regulated as follows: Illustrations to regulate the pay of the teachers are given in the annexure to the G.O.
(a) A Secondary Grade Teacher who acted as Headmaster middle school on 1.10.1970 by virtue of seniority may be allowed to continue as Headmaster, middle school and his pay refixed in accordance with the order issued in the G.O. seventh read above.
(b) A Secondary Grade Teacher who acted as Headmaster middle school after 1.10.1970 by virtue of seniority and continued thereafter as Headmaster without reversion may be allowed to continue as Headmaster and his pay refixed according to the orders issued in the G.O. seventh read above, with effect from the date of his first promotion as middle school Headmaster.
(c) A Secondary Grade Teacher promoted as Headmaster middle school after 1.10.1970 by virtue of seniority but subsequently reverted with reference to Government Orders second and third read above may again be promoted on 1.6.1979. However, his pay be regulated as Headmaster middle school from the date of his first promotion as if he continued as Headmaster middle school according to the G.O. Seventh read above without any claim for arrears during the period he actually worked as Secondary Grade Assistant.
(d) A Secondary Grade Teacher who acted as Headmaster middle school on 1.10.1970 but not senior enough to be promoted as Headmaster middle school as on 1.10.1970 may be reverted as Headmaster primary school, or as Secondary Grade Assistant on 1.6.1979 according to seniority but he should be allowed to draw pay in the scale of pay admissible to the Headmaster middle school after his pay is regulated as per the G.O. seventh read above. However arrears of pay should be allowed only for the period during which he actually acted as Headmaster. He shall not be allowed to draw the special pay attached to the post of Headmaster middle school after reversion. The services put in by him as Headmaster and Selection Grade teachers in the Headmaster’s scale of pay after reversion shall count as service in Selection Grade teacher’s post for purposes of advancement to special grade.
(III) The pay of the senior shall not be stepped up to the level of the junior, if the junior happens to get more pay than the senior.
(IV) A Secondary Grade Teacher who is entitled to promotion as Headmaster of middle school according to seniority as per the above two orders, but gives in writing in categorical terms declining to act as Headmaster of middle school need not be promoted.”
8. The abovesaid Government Order was challenged by way of several writ petitions before the Madras High Court. The Division Bench of the High Court, by its judgment dated 2nd of November, 1979, dismissed the writ petitions. Civil Appeal 994/80 is against the High Court judgment and Writ Petition 574/80 has been filed by an association of middle school head masters on identical facts.
9. The only contention advanced by Mr. M.K. Ramamurthi, learned counsel for the appellant and the writ petitioners is that teachers who were posted as head masters, under the Government Orders from time to time, have acquired a vested right and the same cannot be taken away by the impugned administrative order. According to him taking away accrued rights would amount to operating the Government Order with retrospective effect.
10. The proposition of law de-hors the facts of this case is unexceptionable. There are no accrued or vested rights in any of the parties in this case. From 1970 uptil 1979 there has been continuous Lis between the Headmasters who were holding the posts on 1st October, 1970 though junior in seniority and the others who were claiming those posts on the basis of higher seniority. There were several rounds of litigation in the Madras High Court and as a consequence number of Government Orders were issued from time to time. The rights of the parties were never crystalised. Finally, as a result of the directions of the High Court Government Order No.784 dated 14th May, 1979 was issued which settled the controversy for ever. It is thus incorrect to say that any rights got vested in any of the parties prior to the date of the impugned Government Order. The Government Order has been upheld by the Madras High Court and we find no infirmity in the judgment of the Division Bench. Far from being arbitrary, the Government Order is fair and does justice to all the parties. The Government have provided pay protection to the junior teachers who have been reverted or are facing reversion by application of the rule of seniority. They would continue to get the pay admissible to the head masters of middle schools even after reversion to the post of teacher. There is thus no force in the argument advanced by the learned counsel. The appeal and the writ petition are dismissed. There will be no order as to costs.
