The prayer in the writ petition is for a mandamus directing the respondents to grant notional fixation of pay with arrears on par with petitioner's juniors M/s V.Ramanathan and J.Palpanjanathan and consequently to grant revised pension and other terminal benefits with arrears.
2. Heard Mr.Y.Prakash, learned counsel for the petitioner and Mr.A.Suresh, learned Government Advocate for the respondents.
3. The facts leading to the case are set out hereunder:-
(i) The petitioner entered into service in the Education Department as Attender on 17.09.1962 and was promoted as Junior Assistant on 09.07.1975. Thereafter, he was promoted as Assistant on 18.01.1994 and retired as Selection Grade Assistant on 31.01.1999 from the office of the Assistant Elementary Educational Officer, Kamudhi, Ramanad District, after serving the department for about 36 years without any remarks or punishment whatsoever.
(ii) The Government has taken a decision to merge erstwhile Board Schools and the Government Schools all over the State. On merger of these two category of schools, there was a dispute of fixation of seniority in respect of Ministerial staff grouped under two wings viz., 'A' and 'B' Wing. The matter went upto Supreme Court and on 28.04.1998, the Supreme Court has disposed of the Civil Appeal Nos.5170-5172 of 1990, wherein the Supreme Court laid down the principle for fixation of inter-se seniority of the Ministerial Staff between 'A' Wing and 'B' Wing.
(iii) Based on the principles laid down by the Supreme Court, the Government, in paragraph 2 of the letter No.34361/M1/98-1 dated 20.11.1998 issued a direction to the first respondent to fix the seniority of non-teaching staff of both 'A' and 'B' wings immediately taking into account the date of integration as 01.04.1970 and to communicate it to all concerned. In paragraph 3 of the above letter, the Government issued direction to the first respondent to modify the promotions and reversion made during the period from 01.11.1978 to 1991 including those who continued as per the light of various stay orders and to revise the seniority as per the final judgment of the Supreme Court and further in paragraph 4, issued direction to take immediate action to implement the order of the Supreme Court and send a report to the Government. In the meantime, the petitioner had attained the age of superannuation on 31.01.1999.
(iv) According to the petitioner, ignoring all the directions and instructions issued by the Government pursuant to the order of the Supreme Court, the first respondent took inordinate delay and issued revised seniority list only on 13.05.1999, ie.., after the petitioner's retirement and his name was empanelled in the seniority list in Sl.No.1618. However, the said list was not communicated to all concerned as per the direction of the Government and the petitioner was also not communicated.
(v) When he came to know the issue of such seniority list as per the order of the Supreme Court and empanelment of his name in the seniority list, he made a representation to the first respondent and his subordinates on 12.02.2001 requesting them to give notional fixation of pay and consequential revision of pension and terminal benefits as per the Government orders in G.O.Ms.No.203, P & AR Department, dated 30.10.2000. He claims that he is not responsible for inordinate delay and it is the department which had taken time to implement the order of the Supreme Court. However, a reply to his representation was received after a long time.
(vi) In view of his old age and left with no other alternative remedy, he filed a petition before the Pension Lok Adalat, Chennai on 08.01.2002 in L.A.C.No.343/B/2004 and putforth all his contentions that the dispute of seniority of Ministerial Staff of 'A' Wing and 'B' Wing exists from the year 1970; that there was a decision of the Supreme Court on 28.04.1998; and there were also instructions and directions of the Government in letter No.20.11.1998 to take immediate action to prepare the seniority list and to communicate the list and further direction to the first respondent to modify the promotions and reversion made during the period from 01.11.1978 to 1991; that he has been empanelled in Serial No.1618 and he is entitled for promotion and other service benefits including pension and terminal benefits on par with his juniors M/s V.Ramanathan and J.Palpanjanathan, who were empanelled below him in Sl.Nos.2111 and 2118 respectively in the seniority list prepared as per the Order of the Supreme Court of India.
(vii) However, the first respondent in his reply dated 12.07.2004 filed before the Pension Lok Adalat has stated that the panel for Superintendent as per the orders of the Supreme Court was prepared and published only on 13.05.1999 and since the petitioner reached the age of superannuation on 31.01.1999, he could not be given promotion as Superintendent.
(viii) The first respondent had not given any remarks or reasons for the inordinate delay in preparing the panel. If the first respondent had acted in time in preparing the panel, as per the orders of the Supreme Court and the Government directions, he would have got promotion and would have got enhanced pension and retirement benefits. For no fault of him, he has been denied of his enhanced pension and other terminal benefits. After moving the Lok Adalat and orders passed by the Lok Adalat on 09.11.2004, giving its final decision permitting the petitioner to move appropriate Court for redressal of his grievances, the petitioner has filed this present writ petition.
4. The respondents have filed a counter, in which it is stated as follows:-
(i) the petitioner was appointed as Attender on 17.09.1962 in the erstwhile District Board School at Chatrakudi; that in 1963, the administration of the former District Board Schools was transferred to the Education Department and they were brought under the control of Special District Educational Officers. Later on, the Government ordered that these schools be transferred to the Government and treated as Government (Board) Secondary Schools with effect from 01.04.1966. Thereafter, the Government have ordered that the staff appointed till 01.04.1970 in the erstwhile District Board High Schools including Government (Board) High Schools opened till 01.04.1970 be absorbed as Government Servants from 01.04.1970 but were placed in a separate wing in the Tamil Nadu Educational Subordinate Service called 'B' Wing. However, in G.O.Ms.No.1968, Education, dated 02.11.1978, the Government have issued modified orders that the staff of 'A' and 'B' Wings should be integrated with immediate effect adopting the procedure that the vacancies in Non-teaching posts should be filled from Junior Assistants to Assistants and from Assistants to Superintendents and other categories of promotion for which Ministerial Staff is eligible shall be filled up between 'A' and 'B' Wings in the ratio of 5:3.
(ii) In the counter it is also stated that based on the ratio 5:3, seniority lists were drawn and promotions were given by integrating both 'A' and 'B' Wing staff in the Ministerial Service by taking the integration date as 02.11.1978. The first level promotion for the Junior Assistant in the Ministerial Staff to the post of Assistant was awarded only after the incumbents qualified themselves for the post of Assistant, i.e, passing of the required tests; that the petitioner was promoted as Junior Assistant on 09.07.1975 from the post of Attender (now called as Record Clerk), after he qualified himself for the same in the erstwhile 'B' Wing post allotted to 'B' Wing staff. Further, he was promoted as Assistant on 18.01.1994, since he passed all the tests prescribed for the post of Assistant before 15.03.1993 i.e., the crucial date of preparing the panel of eligible Junior Assistants for promotion as Assistants. On attaining the age of superannuation, the petitioner retired on 31.01.1999 A.N. as Selection Grade Assistant from the office of the Assistant Elementary Educational Officer, Kamudhi, Ramanathapuram District.
(iii) In the meanwhile, several Service Associations have filed several cases before the Tamil Nadu Administrative Tribunal against the date of integration as contemplated in G.O.Ms.No.1968, Education dated 02.11.1978. In one such a case filed by the Teachers' Association and the Special Leave Petition filed by the Government in the Supreme Court of India, in the case relating to integration of 'A' Wing and 'B' Wing staff, the appeals had been dismissed on 28.04.1998 and the Apex Court had taken a view that the date of integration shall be 01.04.1970.
(iv) In respect of several cases filed by the Non-teaching staff Association regarding the date of integration, the Tribunal, in their order dated 07.12.1995 had observed that "pending final decision in the main application, the Tribunal cannot therefore give a direction contrary to the existing rules". However, the Government have graciously taken a view that the date of integration of Non-teaching staff also to be taken as 01.04.1970 and have issued directions to the first respondent in its letter dated 20.11.1998 to fix the seniority of Non-teaching staff of both 'A' and 'B' Wings immediately by taking into account the date of integration as 01.04.1970 for 'non teaching staff' also. As such the first respondent was able to prepare panels for non-teaching staff according to the above instructions of the Government only with effect from 1999 i.e., as on 15.03.1999 from the integrated seniority list of A and B Wing Staff. Some senior persons in the integrated seniority list found place above their juniors were included in the subsequent year panel prepared for the post of Assistant of their juniors. This is due to the reason that senior persons found place in the integrated seniority have passed the tests prescribed for the post of Assistants later than their Juniors who passed the same earlier. So the senior persons found in the integrated seniority list lost their seniority in the post of Assistant. The petitioner falls under this category.
(v) The respondents have stated further in the counter that the preparation of integrated seniority list is a long and laborious work which involves three decades of panels to be revised and seniority list prepared duly integrating the 'A' and 'B' Wing staff at the ratio of 5:3 from the list of A and B Wings who were in service on 31.03.1970 as Junior Assistant in both the Wings. The entire process of this work took nearly six months. By the time, the panel for the post of Upgraded Superintendent on 15.03.1999 was prepared and released on 13.05.1999. However, the petitioner retired from service on 31.01.1999 before the crucial date 15.03.1999 itself. Aggrieved over not getting his promotion (his name has not reached at all on the crucial date of 15.03.1999 itself at the time of releasing the panel on 13.05.1999 but retired on 31.01.1999), the petitioner has moved this writ petition and therefore, there is no merit in the claim of the petitioner and hence prayed for dismissal of the writ petition.
5. A careful analysis of the above pleadings would reveal that there was merger of the District Board High Schools and the Government Board High Schools and categorized them as 'A' and 'B' Wings and the staff working in those schools have been absorbed as Government servants from 01.04.1970, but were placed in a separate wing in the Tamil Nadu Educational Subordinate Service called 'B' Wing as per the Government orders. It is seen that the Government in G.O.Ms.No.1968, Education, dated 02.11.1978 have issued modified orders that the staff of 'A' and 'B' Wings should be integrated with immediate effect adopting the procedure that the vacancies in Non-teaching posts should be filled from Junior Assistants to Assistants and from Assistants to Superintendents and other categories of promotion for which Ministerial Staff is eligible shall be filled up between 'A' and 'B' Wings in the ratio of 5:3. It is not in dispute that the petitioner was appointed as Attender on 17.09.1962 and thereafter promoted as Junior Assistant and then as Assistant and retired on 31.01.1999.
6. In respect of fixation of inter-se seniority between the above 'A' Wing and 'B' Wing staff, the matter went upto Supreme Court and in respect of the petitioner a Special Leave Petition in Civil Appeal Nos.5170-5172 of 1990 was disposed of on 28.04.1998 and the issue was settled by the Supreme Court. The Apex Court had taken a view that the date of integration shall be 01.04.1970 and in respect of several cases filed by the Non-teaching staff Association regarding the date of integration, the Tribunal, in their order dated 07.12.1995 had observed that "pending final decision in the main application, the Tribunal cannot therefore give a direction contrary to the existing rules". However, the Government have taken a view that the date of integration of Non-teaching staff has also to be taken as 01.04.1970 and have issued directions to the first respondent in their letter No.34361/M1/98 dated 20.11.1998 to fix the seniority of Non-teaching staff of both 'A' and 'B' Wings immediately by taking into account the date of integration as 01.04.1970 for 'non teaching staff' also and thereafter, the respondents have prepared panels.
7. From a perusal of the Government letter dated 20.11.1998 cited supra, it is seen that pursuant to the order of the Government in G.O.Ms.No.1968, Education Department dated 02.11.1978, among other things orders were issued for filling up the vacancies by promotion to non-teaching posts from Junior Assistants to Assistants and Assistants to Superintendents and other categories of promotion for which Ministerial Staff is eligible. The Government have also ordered that the vacancies shall be filled up between 'A' and 'B' Wing in the ratio of 5:3. In the above letter, the Government have ordered that the 'B' Wing staff be integrated with immediate effect and the date of regular appointment of a person in the post of 'B' Wing on 31.03.1970 should be the basis for drawing up the Statewide seniority lists for different categories in 'B' Wing.
8. It is also stated in the above letter that even though there were judgments in various Courts in favour of 'B' Wing staff, the seniority was fixed only taking into account the integration date on 02.11.1978 until the Supreme Court gave an interim direction in 1991 and hence the promotions/reversions made during the period from 01.11.1978 to 1991 including those continued in the light of the stay orders have to be modified as per the final judgment and revised seniority drawn.
9. From the Government's letter, it is made clear that immediate action should be taken by the respondents to implement the order of the Supreme Court and a report to be sent to the Government in due Course. Pursuant to the order of the Supreme Court which was made on 28.04.1998, the Government had taken a decision on 20.11.1998 and requested the authorities to take immediate action to implement the order of the Supreme Court. A perusal of the Counter affidavit would reveal that the petitioner has been empanelled and he has been assigned Sl.No.1618 and his juniors have been placed in Sl.Nos.2111 and 2118. However, the petitioner was not considered for promotion as the panel was prepared based on the crucial date i.e., on 15.03.1999, after the retirement of the petitioner.
10. The reasons attributed by the respondents are that because the matter involves preparation of panels by integrating 'A' Wing and 'B' Wing staff who were in service on 31.03.1970, the process may take six months because the crucial date has been assigned as 15.03.1999. In this case, the normal date of preparation of panel based on the crucial date cannot be a factor to be taken into account as this case has been went upto Supreme Court. After the decision of the Supreme Court, based on which as the Government had taken a decision to implement the same with immediate effect, it is not necessary to keep the list till the crucial date and then release the list thereby the persons who are eligible in between have been deprived of their claim of promotion. If the first respondent had acted within a reasonable time as per instructions of the Government dated 20.11.1998, which directed to take immediate action to implement the order of the Supreme Court, the petitioner would be the beneficiary as on 31.01.1999, and because of the delay on the part of the respondents in preparation of the panel, the petitioner is deprived of his claim.
11. Therefore, as the petitioner has been empanelled, his name could have been considered if the panel was prepared and implemented with immediate effect as directed by the Government. Hence, I am of the opinion that the delay cannot be attributed against the petitioner's interest and it could be put on the respondents responsibility in preparation of the panel and in that circumstances, I am of the view that the claim of the petitioner for notional fixation of pay for getting enhanced pension and other benefits is to be considered by the respondents in the light of the above decision.
12. In view of the above discussion and in the light of the decision of the Supreme Court as well as the direction of the Government dated 20.11.1998 and the instructions issued thereon, the respondents are directed to consider the claim of the petitioner for notional fixation of pay on par with his juniors M/s V.Ramanathanan and J.Palpanjanathan and consequently pass orders for enhanced pension and other retiral benefits notionally. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
The writ petition is disposed of accordingly. No costs.
rg To
1. The Director of School Education, College Road, Chennai 6.
2. The Secretary to Government of Tamilnadu, Education Department, Fort St. George, Chennai 9