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Judgment
R. Banumathi, J.—Petitioner seeks Writ of Certiorarified Mandamus to quash the impugned orders in Na.Ka. No. A3/7980/2007 dated
27.7.2007 and consequential order in Na.Ka. No. A3/7980/2007 dated 31.8.2007 and to direct the Respondents to permit the Petitioner as High
School Head Mistress.
Briefly stated case of the Petitioner is as follows:
(i) Petitioner studied M.A. B.Ed., and she was selected and appointed for the post of B.T. Assistant (History) by the Proceedings of the 3rd
Respondent dated 04.02.1988 on a time scale of Rs. 780-35-1025-40-1385 and Petitioner joined on 08.02.1988 at Government Adi Dravidar
Welfare Higher Secondary School, Kalasgam, Namakkal District.
(ii) Government in their G.O.(4D) No. 7 Adi Dravidar and Tribal Welfare Department dated 17.6.1991 have ordered that B.T. Assistants
appointed on contract basis with regular time scale of pay in ADW schools from the year 1986 be subjected to the regular recruitment test
conducted by TRB and if selected their services will be regularised with prospective effect. Accordingly, TRB has conducted an interview and
recommended to regularise the services of 191 B.T. contract teachers w.e.f. 20.06.1996 and 09.09.1996. Petitioner is one among the said B.T.
teacher whose services were regularised w.e.f. 20.06.1996.
(iii) According to the Petitioner, appointment of 191 B.T. Assistants were against the permanent vacancies. Petitioner has been making number of
representations to her Officers and to the Government seeking her regularisation from the date of appointment.
(iv) Petitioner has filed O.A.No.6614/1998 in Tamil Nadu Administrative Tribunal for regularisation of her service from the date of her
appointment. O.A. was mistakenly clubbed along with batch of O.As. relating to the appointment covered by G.O.Ms.1524 Education dated
12.11.1990 and an order was passed on 28.03.2003. Subsequent to the order in O.As., 3rd Respondent passed an order on 08.10.2004 in
Mu.Mu. No. 66080/04/D3 regularising Petitioner''s services w.e.f. 08.02.1988 and declared the completion of probation. By the Proceedings in
Mu.Mu. No. 77791/04/03 dated 28.10.2004, petitioner was also awarded selection grade w.e.f. 08.02.1998. Again, 3rd Respondent issued an
order on 13.06.2007 by confirming the earlier order dated 08.10.2004.
(v) By the Proceedings in Na.Ka. No. A3/7980/07 dated 06.07.2007, a panel of list of B.T. Assistants eligible for promotion to the post of High
School Headmaster as on 01.03.2007 was prepared and communicated to the Petitioner. Petitioner was called for counselling on 25.07.2007 for
promotion to the post of High School Headmaster and Petitioner had also attended the same. But in the counselling, though the Petitioner was
permitted to appear and was told that for promotion, Petitioner''s regularisation cannot be taken into account, as her services was regularised w.e.f
20.06.1996.
(vi) By the impugned order in Na.Ka. No. A3/2980/2007 dated 31.08.2007, 2nd Respondent has stated that Petitioner''s seniority was
erroneously fixed as Sl. No. 12 on the basis of the erroneous regularisation and against the order in O.A. No. 6614/1998 and that Petitioner''s
services are regularised only from 20.6.1996.
Resisting the Petition, Respondents have filed counter stating that Petitioner has not challenged the G.O. 4(D) No. 7 dated 17.6.1991 and
approached TAT only in the year 1998. It is averred that Petitioner has no right to claim regularisation from the date of initial appointment. Case of
the Respondents is that claim of the Petitioner cannot be considered as a special case, since the issue involved is service regularisation of 192
teachers which could be decided only at the Government level. According to the Respondents, there are 191 other B.T. Assistants who were
appointed along with the Petitioner and their services were regularised w.e.f. 20.6.1996 and 09.9.1996 based on the merit list issued by TRB and
therefore, the claim of the Petitioner is unjust and unsustainable.
Challenging the impugned orders, Mr. S.N. Ravichandran, learned Counsel for the Petitioner contended that based on the order of Tribunal
when Petitioner''s services was regularised w.e.f. 08.02.1998 and while so, altering the seniority after a long period is unfair and unsustainable.
Drawing Court''s attention to the seniority list dated 06.07.2007, learned Counsel for the Petitioner would further submit that when similarly placed
person Natarajan has been promoted as Headmaster on 27.07.2007, Petitioner cannot be deprived of her due seniority and promotion. Learned
Counsel for the Petitioner would further submit that regularisation takes effect from the date of appointment and seniority has to be counted from
the date of appointment. In support of his contention, learned Counsel for the Petitioner placed reliance upon AIR 1971 SC 1224 [Jagadish
Prasad Shastri v. State of U.P. and Ors.] and The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra
and others, .
Countering the arguments, Ms. Geetha Thamaraiselvan, learned Government Advocate submitted that there are two distinct type of B.T.
teachers viz., (i) contract B.T. teachers; (ii) other category appointed with regular time scale of pay with allowances. Learned Government
Advocate would submit that B.T. teachers appointed during 1990-91 & 1991-92 were paid only consolidated pay without any allowances and
their services were regularised w.e.f. 1992 as per the order in O.A.No.6614/1998 batch.
Learned Government Advocate would further submit that Petitioner was appointed on regular scale of pay and her case was wrongly clubbed
with other 5 persons in O.A. Nos. 9255/97, 6923/98, 5913/99, 5764/2001 and 5929/2001 and the judgment cannot be misconstrued by the
Petitioner for her personal advantage. Learned Government Advocate further submitted that along with the Petitioner, there are 191 B.T.
Assistants whose services were regularised from 26.6.1996 and 09.9.1996 and while so, Petitioner alone cannot seek regularisation from the date
of her appointment i.e. 08.02.1988.
Learned Government Advocate would further submit that there are two distinct type of contract B.T. teachers working in the department whose
appointment methods are different. B.T. teachers appointed during 1986-89 were paid with regular time scale of pay with allowances whereas the
B.T. teachers appointed during 1990-91 & 1991-92 were paid only consolidated pay without any allowances.
As pointed out by the learned Government Advocate, there are two distinct type of B.T. teachers working in the department whose
appointment methods are different. One is B.T. teachers appointed during 1986-89 were paid with regular time scale of pay with allowances;
whereas B.T. teachers appointed during 1990-91 & 1991-92 were paid only consolidated pay without any allowances. Petitioner was appointed
on regular time scale of pay on 08.02.1988.
Five other persons - B.T. teachers [1) K. Sivaraj, 2) S. Gomathi, 3) M. Rathinasamy, 4) P. Kokilavani and 5) P. Natarajan] who were
appointed on contract basis were regularised w.e.f. 01.09.1992. They have filed O.A. Nos. 9255/97, 6923/98, 5913/99, 5764/2001 &
5929/2001with a prayer to regularise their services in the cadre of B.T. Assistants from the date of appointment. Petitioner who filed O.A. No.
6614/1998 was clubbed along with 5 other Original Applications. Without considering the fact that the method of appointment of Petitioner is
different from five others, TAT has passed common order to regularise the services of all the six B.T. Assistants with effect from their initial
appointment for the only purpose of considering the length of service for deciding pension alone.
Stand of the Government is that Petitioner''s case was wrongly clubbed with the other O.A.''s. The common order in O.A. No. 9255/1997
batch reads as under:
There is no question of retrospective regularisation in which case, these teachers will again come with vexatious plea of annual increments and
revised scale which will only be an unnecessary expenditure and lot of paper work. Their services are regularised with effect from the date of initial
appointment for the only purpose of considering the length of service for deciding pension alone. They will not be entitled for any increments for the
service rendered by them between 90-92. They are found entitled to the differences of pay between the consolidated salary and the scale of pay
till 1.9.1992.
From the above, it is clear that services were regularised with effect from the date of initial appointment only for the purpose of deciding the
pension. Learned Government Advocate was right in submitting that Petitioner''s case was wrongly clubbed with the other instances where five
other B.T. Assistants were appointed on contract basis.
Without proper appreciation of implication of the order in O.A. No. 6614/1998 batch, 3rd Respondent revised the date of regularisation of
the Petitioner as 08.02.1988 and granted monetary benefits like increments, award of selection grade also. In fact, in the common order in
O.A.No.9255/1997 batch, it is categorically stated that the services are to be regularised with effect from the date of initial appointment only for
the purpose of deciding the pension.
Having regard to the tenor of the order in O.A. No. 9255/1997 batch, the order of 3rd Respondent in Mu.Mu. No. 66080/04/D3 dated
08.10.2004 regularising the services of the Petitioner from 08.02.1988 and the order in Mu.Mu. No. 77791/04/D3 dated 28.10.2004 granting
selection grade is per se erroneous.
During 2007, tentative list of B.T. Assistants eligible for promotion to the post of High School Headmasters was published. A panel has been
prepared based on the date of regularisation of the qualified B.T. Assistants. Among the other qualified teachers, name of the Petitioner has been
figured as Sl.No.11 in the panel. Panel was finalised and permanent panel has been published on 25.07.2007 in G3/7980/07.
Evidently, name of the Petitioner was wrongly clubbed with other instances. In any event, TAT has ordered regularisation of service with
retrospective effect only for the purpose of considering the length of service for deciding pension.
By perusal of records, during counselling for promotion of High School Headmaster post held on 25.07.2007, it was noticed that actual date
of regularisation of the Petitioner in the cadre of B.T. Assistant is 20.06.1996 and 09.09.2006 and the same was wrongly revised by the 3rd
Respondent as 08.02.1988. Therefore, the name of the Petitioner in Sl.No.11 was eliminated from the said panel considering the fact that B.T.
Assistants whose services were regularised up to 06.09.1991 were only incorporated in the panel as per seniority and the impugned order was
passed in G3/7980/07 dated 25.07.2007.
Insofar as, B.T. Assistants appointed during 1986-89 with regular time scale of pay with allowances, Government in G.O. 4(D) No. 6 AD &
TW Dept. dated 17.6.1991 has examined the proposal of regularisation of services of B.T. Assistants appointed in Adi Dravidar Welfare school
during the year 1986-89 and directed them be subject to recruitment test conducted by TRB and if selected their services will be regularised with
prospective effect. Thereafter, by two Proceedings, their services have been regularised w.e.f. 20.6.1996 and 09.9.1996. It is relevant to note that
Petitioner has not challenged G.O. 4(D) No. 6 AD & TW Dept. dated 17.6.1991and two subsequent Proceedings.
There were 191 B.T. Assistants were regularised w.e.f. 20.6.1996 and 09.9.1996, based on the merit list issued by TRB. Petitioner had been
regularised w.e.f. 20.6.1996 along with 192 teachers. Regularisation is decided only at the Government level and not by the 3rd Respondent.
18.Placing reliance upon S. Pappa and Others Vs. Government of Tamil Nadu and Others, , the learned Counsel for the Petitioner contended that
G.O.Ms. No. 1524, Education(M), dated 12.11.1990 creating a new post of Secondary Grade (Junior) Teacher on consolidated pay was held
illegal and ultra vires and the Court has directed the regularisation from the date of initial appointment of Secondary Grade Teachers. The said case
Government Order related to appointment Secondary Grade Teachers on a consolidated pay of Rs. 800/- per month. In the instant case,
Petitioner was appointed with regular time scale of pay on 08.02.1998 with allowances and not on consolidated pay and therefore the ratio of the
above decision cannot be applied to the present case.
Be that as if may, basis for Petitioner''s claim for regularisation from 08.02.1988 is the order passed by TAT in O.A. No. 6614/1998 batch.
Main contention of the Petitioner is that the order was also given effect to and that her services was regularised and thereafter, Petitioner was
awarded selection grade. As rightly submitted by the learned Government Advocate, without proper understanding of the order in
O.A.No.6614/1998 batch, 3rd Respondent has regularised the Petitioner''s services as 08.02.1988 and ordered monetary benefits and granted
increments and awarded selection grade also. When the order of TAT directing regularisation with retrospective effect is only for the purpose of
considering the length of service for deciding the pension, 3rd Respondent was absolutely wrong in regularising the services of the Petitioner w.e.f.
08.02.1988 and granting other monetary benefits.
Learned Counsel for the Petitioner mainly submitted that Government having allowed the order become final and had also given effect to, now
cannot go back against the order. This contention does not merit acceptance. The order in O.A.No.6614/1998 batch has been misconstrued by
3rd Respondent and the services of the Petitioner regularised retrospectively was wrongly taken into account for granting selection grade etc.
Order of the 3rd Respondent in Mu.Mu. No. 66080/04/D3 dated 08.10.2004 and awarding selection grade in Mu.Mu. No. 77791/04/D3 dated
28.10.2004 is perse erroneous and cannot be sustained and Petitioner cannot take advantage of such erroneous order passed by the 3rd
Respondent. Petitioner who is similarly footing along with 191 candidates cannot claim any preferential treatment. It may be that based on the
strength of the order in O.A. No. 6614/1998 batch, Petitioner''s services may have to be taken into account from 08.02.1988 for the purpose of
deciding the pension. But the same cannot be taken into account for regularisation, award of selection grade and fixing seniority and granting
promotion.
Any wrong decision cannot be a foundation for claiming equality for enforcement of the order. Observing that concept of equality as envisaged
under Article 14 of the Constitution of India, is a positive concept which cannot be enforced in a negative manner. In AIR 2006 SCW 3762 South
Eastern Coalfields Ltd. v. Prem Kumar Sharma the Hon''ble Supreme Court has held thus:
....
The concept of equality as envisaged under Article 14 of the Constitution of India, 1950 (in short the '' Constitution'') is a positive concept which
cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or
group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in
favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh and others etc. Vs. New Delhi
Municipal Committee and others, held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which
guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on
the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed:
Neither Article 14 of the Constitution conceives within the equality Clause this concept nor Article 226 empowers the High Court to enforce such
claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal
order for extending similar benefits to others. Before a claim based on equality Clause is upheld, it must be established by the Petitioner that his
claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.
Contending that once a judgment attained finality, it could not be termed as wrong and its benefit ought to have been extended to other
similarly situated persons, learned Counsel for the Petitioner placed reliance upon Maharaj Krishan Bhatt and Another Vs. State of Jammu &
Kashmir and Others, . The ratio of the above decision is not applicable to the facts of the present case. The order of TAT in O.A. No. 6614/1998
batch directing regularisation with effect from the date of initial appointment was only for the purpose of considering the length of service for
deciding the pension and not otherwise. Therefore, it cannot be said that the order of TAT would govern the case of the Petitioner for fixation of
seniority.
In the result, the Writ Petition is dismissed. No costs. Interim stay already granted is vacated. Connected M.Ps. are closed.