N. Neeravi vs The Secretary, Department of School Education, The Director, Teacher Education Research and Training, P. Sukumar, Senior Lecturer, District Institute of Education and Training (DIET) and Dr. C. Kathirvel, Senior Lecturer, District Institute of Education and Training (DIET)

M. Venugopal, J.—The Petitioner has filed the present writ petition seeking the relief of Writ of Certiorarified Mandamus, (a) to call for the records relating to the impugned panel issued by the second Respondent in his proceedings Na. Ka. No. 15812/m2/2007 dated 17.03.2008; (b) to quash the same so far as the Respondents 3 and 4 are concerned; (c) to direct the Respondents 1 and 2 to consider the name of the Petitioner and include the Petitioner''s name in the place of the third Respondent in the panel for promotion to the post of the Principal in the District Institute of Education and Training (DIET) and (d) to revise the pay of the Petitioner and fix his salary in the scale of pay applicable to the post of the Principal in the District Institute of Education and Training (DIET) and to pay the consequential arrears of salary arising thereon.

The Petitioner joined as a Post-Graduate Teacher on 28.11.1980 in the Department of Botany in the Government Higher Secondary School at Kollappaloor, North Arcot District. He served at various stations as Post-Graduate Teacher. He was transferred and posted to the District Institute of Education and Training (DIET) at T. Kallupatti as Lecturer with effect from 22.12.1988. He became a Senior Lecturer on 22.05.2000 F.N. and still he has been serving at T. Kallupatti in the District Institute of Education and Training (DIET).

The third Respondent joined the service on 07.02.1981. He passed his B. Ed., degree on 01.06.1990 and he had the qualification in M.A., degree in May 2001.

The fourth Respondent joined the service on 01.09.1981. He became the Senior Lecturer on 22.05.2000. He was working in the District Institute of Education and Training (DIET) at Uthamacholapuram in Salem District. The second Respondent prepared a panel for the category of Senior Lecturers working in the District Institute of Education and Training (DIET) in the State of TamilNadu for the purpose of promotion as Principal to these institutions. The second Respondent released the panel in proceedings Na. Ka. No. 15812/m2/2007 dated 17.03.2008. In serial Nos. 19 and 20 of the said panel, the Respondents 3 and 4 were included even though they did not possess the requisite qualifications.

According to the Petitioner, the Post-Graduate Teacher''s post is equal to the Lecturer''s post in the District Institute of Education and Training (DIET) and they were interchangeable for administration purpose. Furthermore, the ''Teacher Training'' was constituted as a separate department under the head of Director of Teacher Education, Research and Training. The teachers serving as lecturers in the District Institute of Education and Training (DIET) became a separate entity and they form a seniority of their own. The seniority is at State level. There is only one seniority list in the State as regards the teaching staff working in the District Institute of Education and Training (DIET).

The learned Counsel for the Petitioner submits that the Tamilnadu Higher Secondary Post-Graduate Teachers Association filed a batch of writ petitions in W.P. Nos. 21163 of 2003, 21164 of 2003, 29075 of 2003, etc. and W.P. No. 9719 of 2004 before this Court and the Division Bench of this Court delivered a judgment on 24.11.2004 prescribing guidelines for the promotion for the post of Headmasters of the Higher Secondary School.

The Division Bench of this Court classified the Post-Graduate Teachers into three categories, viz., (i) Teachers who joined the service with or without B. Ed., qualification prior to 28.04.1981 formed the first category. To enable the teachers without B. Ed., qualification, a saving clause was incorporated in the G.O. No. 720, Education Department dated 28.04.1981 stating that all those who were not having B. Ed., qualification should qualify themselves for B. Ed., within a period of 5 years. The teachers without B. Ed., who are falling within this category, have to qualify themselves for B. Ed., within the prescribed period of five years and subsequently, it was extended to help the unsuccessful candidates; (ii) The teachers who joined the service subsequent to 28.04.1981 with B. Ed., qualification, appointed by the TamilNadu Public Service Commission (TNPSC) formed the second category and (iii) the reaming teachers namely the Post-Graduate Teachers with or without B. Ed., appeared or non-appeared before the Tamil Nadu Public Service Commission formed the third category.

The learned Counsel for the Petitioner contends that the third Respondent even though joined the service on 07.02.1981 cannot come into the first category since he obtained his B. Ed., degree only on 01.06.1990 i.e., after the lapse of the grace period of five years and its extension. Further, he obtained his Post-Graduate degree in M.A., in May 2001. As such, the third Respondent cannot be considered in the preparation for panel for the promotion to the post of Principal in the District Institute of Education and Training (DIET). Inasmuch as he obtained his B. Ed., qualification only in the year 1990.

Advancing his arguments, it is the submission of the learned Counsel for the Petitioner that in the impugned panel released by the second Respondent, as per proceedings in Na. Ka. No. 15812/m2/2007 dated 17.03.2008, the third Respondent''s name has been wrongly included for want of necessary qualification for promotion. Hence, the third Respondent''s name is liable to be deleted from the panel.

Likewise, the fourth Respondent is also not possessing the requisite qualification to get his name included in the panel for the post of Principal because he joined the service only on 01.09.1981. Hence, he is covered by the third category. Therefore, his name cannot be in any way associated with the panel prepared for the first category. The fourth Respondent''s name is also liable to be deleted from the impugned panel.

The learned Counsel for the Petitioner vehemently urges before this Court that the Petitioner''s name alone ought to have been included in the panel and further the inclusion of the Respondents 3 and 4 in the panel is an illegal one and added further, such inclusion will not confer any right on the Respondents 3 and 4 and to this extent, the impugned panel is liable to be quashed insofar as it relates to them.

It is the plea of the learned Counsel for the Petitioner that prior to the formation of separate wing for the lecturers and senior lecturers working in the District Institute of Education and Training (DIET), there was only one category namely the Post-Graduate Teachers. The G.O. Ms. No. 133 dated 14.06.2007 of the School Education Department reiterates that the service rules of the School Educational Service is applicable to the lecturers and senior lecturers like the Petitioner in the District Institute of Education and Training (DIET). The order passed in W.P. Nos. 9719 of 2004 and 21163 of 2003, etc. is applicable to the senior lecturers working in the District Institute of Education and Training (DIET).

According to the learned Government Advocate for the Respondents 1 and 2, the Higher Secondary system of 10+2+3 pattern of education was introduced in the State of Tamil Nadu from the academic year 1978-1979 and that the classes in the Plus 1 and Plus 2 are being managed by the Post-Graduate teachers in numerous subjects. Further, in order to meet the immediate growing needs of various Higher Secondary classes, the Post-Graduate Assistants in the academic subjects for Languages and Physical Directors have been appointed temporarily under the provisions of Rule 10(a)(i) of the Tamil Nadu State and Subordinate Services General Rules and that they continued in service for a long time. After the formation of a separate Directorate of Teacher Education Research and Training in the year 1997 vide G.O. Ms. No. 106, School Education, dated 11.03.1997, a separate wing was formed for Teacher Education bifurcating from the Department of School Education and formation of District Institutes of Education and Training and the personnel''s were required for handling the classes in the District Institutes of Education and Training and the Government Teacher Training Institutes. As such, option was called for from the Post-Graduate Teachers and Physical Directors working in the schools for being absorbed in the Department of Teacher Education.

The learned Government Advocate for the Respondents 1 and 2 submits that it is not correct that the Post-Graduate Teacher''s post is equal to the Lecturer''s post in the District Institute of Education and Training (DIET) and they were interchangeable for administrative purposes. Also, the specific orders of absorption were issued by the second Respondent to those Post-Graduate Teachers and Physical Directors who exercised their option to overcome the Teacher Education Department and serve in District Institutes of Education and Training (DIE Ts) subject to the conditions hereunder:

(a) The staff now absorbed shall be considered as staff of Teacher Education Department.

(b) They will be bound by the existing rules, proposed Ad-hoc Rules and Service Rules to be framed in future.

(c) Inasmuch as Teacher Education Department is a non-vacation department they will become eligible therefore. After absorption to this department, they are also not entitled to claim any lien in the School Education Department.

After being absorbed to the Teacher Education Department by exercising option, the individuals had no transfer liability between the Teacher Education Department and School Education Department.

The learned Government Advocate for the Respondents 1 and 2 contends that inter se seniority was drawn among the absorbed Post-Graduate Teachers and Lecturers who are directly appointed in the District Institute of Education and Training (DIET) on the basis of date of joining in the post of Post-Graduate Teachers/Lecturers and based on this seniority, eligible personnel was drawn and promotions were awarded on the basis of Seniority as Senior Lecturers in the year 2000 and 2001. Likewise, the seniority of Senior Lecturers was drawn and on this basis, promotion to the post of Principals of the District Institute of Education and Training (DIET) was granted in the year 2001, 2002 and 2006.

The learned Government Advocate for the Respondents 1 and 2 submits that as per the notification of the Ad-hoc rules issued under the G.O. Ms. No. 133, School Education Department, dated 14.06.2007 in respect of the personnel serving in the Directorate of Teacher Education, Research and Training, District Institutes of Education and Training and Government Teacher Training Institutes in the Department of Teacher Education, Research and Training. The said rules were deemed to have come into force on 11.03.1997. Also, in the said G.O, a pass with 55% marks in Master Degree and 55% marks in M. Ed., was specified as a criteria for the appointment as Lecturer, Senior Lecturer and Principal. That apart, the proposals to relax the requirement of securing minimum marks in M.A., and M. Ed., in respect of the promoters is under consideration of the Government.

It is the contention of the learned Government Advocate for the Respondents 1 and 2 that a panel for filling up then post of Principal could be prepared only after the relaxation as referred to above is provided and as such, the promotion to the post of Principal could not be given and taking into account the number of posts of Principals in the District Institutes of Education and Training (DIE Ts) remained vacant due to retirement, etc., it became necessary to fill up these vacant posts under administrative exigencies. Moreover, in pursuance of the proposal submitted by the Director of Teacher Education, Research and Training, Government issued G.O. No. (2D) 28, School Education (U2) Department, dated 27.06.2008 approving the temporary panel by duly relaxing the requirement of possession of minimum marks as a special case for promotion of Principal Post. But, a condition was specified that the temporary list would not confer on a person any right in future by virtue of including their names in the temporary panel for promotion to the post of Principal.

The learned Government Advocate submits that earlier panel has been cancelled and that the revised panel has been produced and that earlier panel has not been implemented because of the stay and that the Petitioner will be promoted in one or two weeks and also that the third Respondent has not been promoted as per the earlier panel and in the new panel, the third Respondent''s name does not find a place and that apart, the fourth Respondent has retired from service.

The learned Government Advocate for the Respondents 1 and 2 contends that the Petitioner acquired B. Ed., qualification on 03.01.1982. The fourth Respondent acquired the qualification of B. Ed., during September 1980. Therefore, on the side of the Respondents 1 and 2, it is contended that the fourth Respondent is senior to the Petitioner.

However, the learned Counsel for the Petitioner submits that the Division Bench of this Court in W.P. Nos. 21163 of 2003, etc., Batch dated 24.11.2004 between the Tamil Nadu Higher Secondary Post Graduate Teachers'' Association and Manoharan and 28 others, in paragraph 35, has among other things observed the following and disposed of the writ petition thus:

All the writ petitions are disposed of as follows:

With regard to any teacher, seniority will depend upon his possession of the required qualification. As regards the first category of teachers, those appointed between 1.7.1978 ad 28.4.1981, their seniority will be reckoned from the date on which they acquire the required qualification, provided that they do so within such time as extended by the Government and subject to the concurrence of the Tamil Nadu Public Service Commission.

As regards the second category of teachers, those appointed after 28.4.1981 and selected by the Tamil Nadu Public Service Commission, their seniority will be fixed as per the Tamil Nadu Public Service Commission list.

As regards the third category of teachers, those appointed after 28.4.1981 and who have not been selected by the Tamil Nadu Public Service Commission and whose services have been regularized by G.O. Ms. No. 1813 dated 12.12.1988, their seniority will commence immediately after the last person in the list under the second category.

By pointing out the observations in paragraph 35 made by the Division Bench of this Court in W.P. Nos. 21163 of 2003, etc., Batch dated 24.11.2004, the learned Counsel for the Petitioner submits that the Petitioner is the senior since he joined the service as Post-Graduate Teacher Department of Botany in the Government Higher Secondary School at Kollappaloor, North Arcot District. But, the Division Bench of this Court in W.P. Nos. 21163 of 2003, etc., Batch dated 24.11.2004, has held that in regard to any teacher, seniority will depend upon his possession of the required qualification etc. and the Petitioner and the third Respondent come in the first category and as per the directions of the Division Bench of this Court in W.P. Nos. 21163 of 2003, etc., Batch dated 24.11.2004, the Petitioner must be placed above the third Respondent and the Petitioner has acquired B. Ed., qualification on 03.01.1982 and the third Respondent has acquired B. Ed., qualification during June 1990.

Further, it is the contention of the learned Counsel for the Petitioner that the fourth Respondent''s date of joining is on 01.09.1981 and he comes in the second category as per the observations made by the Division Bench of this Court in W.P. Nos. 21163 of 2003, etc., Batch dated 24.11.2004 as made mention of in paragraph 35 as referred to supra and further, he cannot be brought into the first category and also cannot be compared with the Petitioner since the Petitioner belongs to a different category and in short, there is no justification on the part of the Respondents 1 and 2 to omit the name of the Petitioner inasmuch as the panel is a wrong one.

Also, the learned Counsel for the Petitioner strenuously contends that what is applicable to the Post-Graduate Teacher is equally applicable to the Lecturer, Senior Lecturer serving in the District Institutes of Education and Training (DIET) and the order passed in W.P. Nos. 21163 of 2003, etc., Batch dated 24.11.2004 is applicable to the Senior Lecturers working in the District Institutes of Education and Training (DIET) and as such, the Petitioner is entitled to be included in the impugned panel in the place of the third Respondent and that the fourth Respondent is to be deleted.

Admittedly, in the impugned proceedings of the second Respondent dated 17.03.2008, the Respondents 3 and 4 were shown in serial Nos. 19 and 20. The third Respondent joined the service on 07.02.1981. He passed his B. Ed., qualification on 01.06.1990. He had his M.A., degree in May'' 2001. After lapse of grace period of five years and its extension, only on 01.06.1990, the third Respondent obtained his B. Ed., degree though he joined the service on 07.02.1981. The fourth Respondent joined the service on 01.09.1981.

Countering the submission of the learned Counsel for the Petitioner, it is the contention of the learned Government Advocate for the Respondents 1 and 2 that the Petitioner entered into the service as 10(a)(i) candidate and when he entered into the service, he has no B. Ed., qualification. It is to be noted that the fourth Respondent has been promoted with effect from 30.06.2008.

The learned Government Advocate for the Respondents 1 and 2 relies on the judgment of the Honorable Supreme Court in Civil Appeal Nos. 3582-84 of 2009 (arising out of SLP(Civil)Nos. 1128-1130 of 2005), wherein at paragraph 15, it is among other things observed as follows:

On 9.9.1999, a further G.O. Ms. No. 276 was issued on the basis of the High Court judgment, whereby, it was ordered that the P.G. Assistants, who were initially appointed without necessary qualification, shall be regularized only from the date on which they obtained the qualification and their seniority shall be reckoned from the date of their regularization. However, as a concession, service rendered for the period prior to their regularization was to be taken into consideration only for the purpose of calculating the pension. Therefore, at least from 1988 till 1998, the things remained as they were in respect of the seniority of the P.G. Assistants appointed under Rule 10(a)(i)(1).

Also, he brings it to the notice of this Court to the observations made by the Honorable Supreme Court at paragraph 27 of the aforesaid judgment which runs as follows:

In a recent decision in K. Madalaimuthu and Another Vs. State of Tamil Nadu and Others, this Court again reiterated the principles of fixation of seniority in case of the persons, who were temporarily appointed under Rule 10(a)(i)(1). This Court relied on the decision in V. Srinivasa Reddy v. Govt. of A.P. 1995 supp.(1) SCC 572 as also, State of T.N. v. E. Paripoomam in 1992 Supp.(1) SCC 420 Both these cases dealt with Rule 10(a)(i)(1). Distinguishingly, relying upon this case law relied by the Respondents, i.e. Shri L. Chandrakishore Singh Vs. State of Manipur and Others, this Court came to the conclusion that the High Court had erred in holding that the temporary appointees under Rule 10(a)(i)(1) were entitled to the seniority right from the date of their first appointment and not from their regularization. Though the controversy involved is slightly different, the general principles would undoubtedly apply. We have seen the ruling cited on behalf of the Appellants in Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai and Others, We do not find this case to be relevant. It only deals with the general principle that the statutory authority cannot be permitted to support its order relying on or on the basis of statements made in the affidavit de-hors the order of de-hors the record. We have already indicated that such is not the state of affairs in the present case. The second decision relied upon by the Appellants is I.J. Divakar and Others Vs. Government of Andhra Pradesh and Another, which suggests that the Government has the power to cancel the recruitment even after. TNPSC examination and regularize the candidates appointed under Rule 10(a)(i)(1) for compelling necessity. That may be so. However, the factual situation is entirely different. Such thing has not happened nor is it anybody''s demand.

At this stage, the learned Counsel for the Petitioner submits that a senior gets promotion from the date on which the junior has been promoted and only the persons who fall in the first category as per the observations made by the Division Bench of this Court in paragraph 35 of the order in W.P. Nos. 21163 of 2003, etc., Batch dated 24.11.2004, are alone to be compared.

However, the learned Government Advocate for the Respondents 1 and 2 submits that the revised panel has been prepared in terms of the order of the Honorable Supreme Court. Inasmuch as the third Respondent''s name has been deleted because of the fact that he has not been promoted earlier as per the earlier panel and as such, his name does not crop up for consideration to the post of Principal in District Institute of Education and Training (DIET) since he obtained his B. Ed., qualification in 1990. Though the fourth Respondent has retired from service and although he has been promoted with effect from 30.06.2008, his name is not associated with the panel prepared for the first category and as such, his name is also to be deleted.

Indeed, possessing necessary qualification is a pre-requisite factor for inclusion of an individual''s name and there is no exemption in this regard, in the considered opinion of this Court.

Suffice it for this Court to point out that since the Respondents 3 and 4 are not possessing the requisite qualification on the crucial date, i.e., 28.04.1981 and inasmuch as the Petitioner is possessing the requisite qualification, his name is to be included above the names of the Respondents 3 and 4 (notwithstanding the fact that the fourth Respondent has retired from service).

At this juncture, this Court pertinently points out that even in the revised panel in Na. Ka. No. 10402/m2/2009 dated 05.04.2010, the name of the third Respondent, P. Sukumar finds a place in sl. No. 2 and the Petitioner''s name is shown in sl. No. 24. Because of the fact that the fourth Respondent is retired from service, his name does not find a place n the revised panel dated 05.04.2010. Since the Petitioner is possessing the requisite qualification and inasmuch as the Respondents 3 and 4 are not having necessary qualification for promotion and since their names have been wrongly included in the impugned panel in Na. Ka. No. 15812/m2/2007 dated 17.03.2008, the inclusion of his name in the panel for promotion to the post of Principal in the District Institute of Education and Training (DIET), is valid, legally justifiable and well-founded one.

Even in the revised panel in Na. Ka. No. 10402/m2/2009 dated 05.04.2010, the Petitioner''s name is shown only in sl. No. 24 and the name of the third Respondent (in this writ petition), P. Sukumar, has been shown in sl. No. 2 which is not correct because of the fact that the Petitioner possesses the requisite educational qualification than that of the third Respondent. When the Petitioner/eligible employee is to be given promotion, then his monitory benefits legally due to him cannot be denied, in the considered opinion of this Court.

Therefore, this Court is constrained to interfere with the impugned panel issued by the second Respondent as per proceedings in Na. Ka. No. 15812/m2/2007 dated 17.03.2008 and sets aside the same in furtherance of substantial cause of justice.

In the result, this Writ Petition is allowed leaving the parties to bear their own costs and the impugned panel issued by the second Respondent as per proceedings in Na. Ka. No. 15812/m2/2007 dated 17.03.2008 is set aside. Resultantly, this Court directs the Respondents 1 and 2 to consider the name of the Petitioner and include his name above the third Respondent in regard to the panel for preparation to the post of Principal in the District Institutes of Education and Training. Further, the Respondents 1 and 2 are also directed to revise the pay of the Petitioner and determine his salary in the scale of pay applicable to the post of Principal in the District Institute of Education and Training and provide all consequential monitory and attendant benefits in the manner known to law and in accordance with law and this exercise shall be completed by the Respondents 1 and 2 within a period of eight weeks from the date of receipt of a copy of this order. Consequently, the connected Miscellaneous Petitions are closed.