The prayers of the writ petitioners are one and the same. Hence these petitions are disposed of by way of common order.
2.The petitioners are similarly placed persons. They have been working as Secondary Grade Teachers in the Kallar Reclamation Schools, which comes under the Department of Most Backward Classes and De-notified Communities. The services of these Teachers are covered by a Special Rules called ?Tamil Nadu Backward Class Welfare Subordinate Service Rules?. The said Rules are in two parts; the first part relates to Higher Secondary Backward Classes Service and the second part relates to Backward Classes Welfare Subordinate Service, which applies to High Schools, Middle Schools and Elementary Schools as well as the Hostels run by the Department. The categories of the posts under the Special Rules of Tamil Nadu Backward Classes and Welfare Subordinate Services are as follows:
Class-I category
1.Headmasters and Headmistresses of Secondary Schools.
2.Teachers in Secondary Schools with Degree in teaching and Headmasters/Headmistresses of Middle Schools with Decree in teaching.
3.Secondary Grade Teachers (men and women)
4.Higher Elementary Grade Teachers
5.Lower Elementary Grade Teachers
6.Pandits in Tamil
7. Supervisors of the Schools
3. We are concerned only with the posts of Pandits in Tamil. We are not concerned with the other categories for the purpose of these cases. The mode of appointment to the categories is also said out in the Rules. In so far as the Headmasters and Headmistresses of the Secondary Schools are concerned, the mode of recruitment is either by promotion from the Teachers in Secondary Schools with a degree in teaching and from Tutor cum Wardens/ Tutor cum Matrons in Class-II or recruitment by transfer from any other service. For Teachers in Secondary Schools with a decree in teaching and Headmasters/Headmistresses of Middle Schools with a decree in teaching, the mode of recruitment is either by direct recruitment or transfer from among Tutors cum Wardens in Class-II or recruitment by transfer from other services. For the category 3 namely, Secondary Grade Teachers, the mode of recruitment is either by direct recruitment or recruitment by transfer from other services or by promotion from among the Higher Elementary Grade Teachers. Category 4 and 5 deal with Higher Elementary Grade Teachers and Lower Elementary Grade Teachers with which we are not concerned for the purpose of the present dispute. For category 6, Pandits in Tamil, the mode of recruitment is either by direct recruitment or transfer from any post in the service of an identical scale of pay or promotion from any post in the service on a lower scale of pay or recruitment by transfer from any other services. It is also made clear that 1/3rd of the vacancies shall be filled by direct recruitment and the remaining 2/3rd shall be filled by either transfer or promotion as provided above.
4. For category 7 namely, Supervisors of Schools, the mode of recruitment is either by direct recruitment or recruitment by transfer from any other services or promotion from any of the following categories, namely,
1.Secondary Grade Teachers,
2.Higher Elementary Grade Teachers
3.Lower Elementary Grade Teachers
4.Scout Organisers
5. In so far as the Pandits in Tamil are concerned there were actually two Grades; i.e., Pandit in Tamil Grade-I and Pandits in Tamil Grade-II. By G.O.Ms.No.7, (BC & MBC and Minority Welfare Department), dated 26.02.2002, the Government decided to combine both the Grades in Tamil Pandits and make it into one Grade. It is also provided by the said Government Order; that the Posts of ?Pandits in Tamil? will be a promotional avenue for the qualified Secondary Grade Teachers in Kallar Reclamation Schools in Madurai, Theni and Dindigul Districts. Accordingly, relevant amendments were introduced to the Rules also. Thus it is clear that though the Special Rules do not prescribe any post as Primary School Headmasters/Headmistresses. Such designation was introduced in the year 1998 and Senior Secondary Grade Teachers are designated as Headmasters/Headmistresses of Primary Schools. The said designation though not available in the Rules however continues to exist since 1998.
6. According to the petitioners, they had joined as Secondary Grade Teachers on the following dates.
Sl.No.
Case No. Name Date of Joining
1. W.P.(MD).No.2396/2012 K.Kanagamani 06/06/1986
2. W.P.(MD).No.1879/2012 K.Dhanalakshmi 29/07/1986
3. W.P.(MD).No.2538/2012 R.Vijayalakshmi 27/09/1996
4. W.P.(MD).No.2264/2012 N.P.S.Xavier Ravindran 01/08/1996
7. According to the petitioners, the official respondents while effecting promotions to the post of ?Pandits in Tamil? had given preference to persons, who are working as Headmasters and Headmistresses in the Primary Schools in contravention of the Rules. The said action has affected the chances of promotion of the petitioners. Mr.G.Chandrasekar, learned counsel appearing for the petitioners would vehemently contend that when Rules provide for a particular feeder category, persons in any other category cannot be promoted over-looking the persons in the feeder category. He would rely upon the Rules which provide for promotion to the post of ?Pandits in Tamil? from any post in the service of a lower scale of pay. The learned counsel would lay stress on the words in the service and submit that since there is no post of Headmasters/Headmistresses of Primary Schools as per the existing Rules, priority cannot be given to them and they should also be treated as Secondary Grade Teachers and their seniority should be worked out on the basis of the appointment as Secondary Grade Teachers and not their appointment as Headmasters or Headmistresses in Primary Schools. If that is done, according to the learned counsel, the petitioners would be senior to all those persons, who have now been promoted. Therefore, the petitioners have been over-looked.
8. Per contra, the learned Additional Government Pleader would contend that if the post of Headmasters and Headmistresses in Primary Schools carries a lower scale of pay than that of ?Pandits in Tamil?, they would fit in the third feeder category of appointment, namely promotion from any post in the service on lower scale of pay.
9. Ms.Maria Roseline, learned counsel appearing for respondents 4 to 8 in WP.(MD).No.1879 of 2012, who have been promoted would contend that no doubt the Rules do not prescribe the posts of Headmasters and Headmistresses of Private Schools, but pointing out to the fact that such posts have been in existence in 1988 and a scale of pay has also been prescribed for the said posts. The date of promotion to the said post to be taken in to account for determining the seniority in the feeder category.
10. Mr.G.Chandrasekar, learned counsel appearing for the petitioners would draw my attention to the judgment of this Court in V.Yogaraj and others vs. State of Tamilnadu rep., by its Secretary and others, dated 16.06.2008. Despite the directions of this Court in the said judgment, the Rules have not been amended. He would further rely on the judgment in K.P.Raman and others vs. State of Tamilnadu, represented by Secretary to Government, Most Backward Class Welfare Department, Chennai and others, reported in (2007) 6 MLJ 28, wherein the validity of the Rules, which are the subject matter of this writ petition also, namely, the Tamilnadu Backward Class Welfare Subordinate Service Rules was challenged on the ground that the post of Secondary Grade Teachers and Headmasters of Secondary Schools carry different scales of pay and for the post of Supervisors of Schools, the posts of Secondary Grade Teachers, Higher Elementary Grade Teachers, Lower Elementary Grade Teachers, Scout Organisers, who are made the feeder category. The post of Elementary School Headmasters has not been provided as one more source of promotion. Therefore the Rule was challenged as ultra vires and the non inclusion of the Headmasters of Elementary Schools as feeder category is null and void, was the contention of the petitioners in the writ petition. Rejecting the said arguments, the learned judge held that, if the anomaly exits in the Rules, the same cannot be rectified by Government Orders and Rules cannot be said to be bad on the basis of said anomaly. In the case on hand, we find that in so far as the Pandits in Tamil are concerned, the mode of Recruitment is by a Direct Recruitment or Transfer from any post in the service on identical scale of pay or promotion from any post in the service on a lower scale of pay or Recruitment by transfer from any other service.
11. The learned Additional Government Pleader would submit that the Department has sent proposals for amendment of the Special Rules to include the Headmasters and Headmistresses of Primary Schools as a feeder category for promotion to ?Pandits in Tamil?. But, he would fairly admit that the proposals have not been approved by the Government till date. Therefore as on today, feeder category remains as a post in the service on a lower scale of pay. Though, the scale of pay for Headmasters and Headmistresses in Primary Schools as well as Tamil Pandits is the same there is a difference in the Grade Pay. Relying upon the said difference in the Grade Pay, Ms.Maria Roseline, learned counsel appearing for the promoted Teachers would contend that they belong to a post in the services on a lower scale of pay.
12. I am unable to countenance of the said submission for the reason that the Rules provided for promotion from any post in the service on a lower scale of pay, therefore, in order to form a feeder category for promotion as Tamil Pandits, it must be first shown that a post exists and secondly the said post should be in a lower scale of pay. As the Rules stand today, the post of Headmasters/Headmistresses in Primary Schools does not exist. Therefore, the private respondents could be treated only as Secondary Grade Teachers in order to test their eligibility for promotions as Tamil Pandits. If they are taken a Secondary Grade Teachers and the date of appointment of the Secondary Grade Teacher is taken into account, they are undoubtedly juniors to the petitioners. Therefore, the promotions effected taking into account their appointment as Headmasters/Headmistresses in Primary Schools and treating them as seniors to the petitioners is not strictly in accordance with Rules. The petitioners who are undoubtedly seniors to the persons, who have been promoted should have been considered for promotion ahead of those who are juniors to them in the feeder category, namely, Secondary Grade Teachers, which is a post with a lower scale of pay in the service. Any other method or interpretation would be in violation of the Rules and the same cannot be accepted. The Rules framed under
Article 301 have a statutory force. No doubt several Government Orders and clarifications issued by the Education Department, which are applicable to the Schools fulling under the Education Department are relied upon, in as much as the Kallar Reclamation Schools are concerned, since they come under the Backward Classes Department and they are covered by the Special Rules, the Rules relating to Schools coming under purview of the Education Department cannot be made applicable in derogation of the Special Rules that are available.
13. Therefore I am of the considered opinion that the petitioners should have been treated as seniors since they are actually seniors to the persons, who have been promoted, if their appointment as Secondary Grade Teachers is taken into account and they should have been promoted as Tamil Pandits. It is reported that the petitioner in W.P.(MD).No.2264 of 2012 has attained the age of superannuation and he has retired on 31.05.2016. Therefore, his case will have to be considered only for notional promotion.
14. From the foregoing reasons, the following conclusions are inevitable .
Seniority list drawn up on 13.02.2012 taking in to account the date of promotion as Primary School Headmasters/Headmistresses as the basis has to be set aside. The Joint Director, Kallar Reclamation Schools namely, the second respondent is directed to prepare fresh seniority list treating the Primary School Headmasters/Headmistresses, who are working in such capacity on 13.02.2012 as Secondary Grade Teachers taking in to account their date of appointment as Secondary Grade Teachers for the purpose of seniority. Needless to say that the petitioners being seniors would be entitled to promotion w.e.f. 20.02.2012, namely, the date on which the persons, who are juniors to the petitioners were promoted as Tamil Pandits. Insofar as the petitioner in W.P.(MD).No.2264 of 2012 is concerned, he will be given a notional promotion and would be entitled to all the monetary benefits as if he was promoted as Tamil Pandit from 20.02.2012.
15.At this juncture, the learned Additional Government Pleader would submit that in view of the pendency of the proposals, the seniority list was drawn taking in to account the proposals made by Education Department. This cannot be accepted, because the proposals have not been approved by the Government and no amendment has been made to the Statutory Rules.
16. I may add that all these anomalies have arisen because of the failure on the part of the Government to amend the Rules as suggested by this Court in Judgement, dated 16.06.2008 made in W.P.(MD)No.710 and 1318 of 2008. The Government could do well to see that the required amendments are carried out in time so that the anomalies are removed and the Government servants, who are already working under grate pressure will have better working environment. By an order dated 17.02.2012, this Court has made it clear that all promotions will be subject to the result of these writ petitions, i.e., W.P.(MD).Nos.1879, 2264, 2396 and 2538 of 2012.
17. In the result, these writ petitions are allowed and the promotional panel dated 13.02.2012 is quashed and Rule Nisi is made absolute. The second respondent is directed to prepare a new promotional panel in compliance with the directions made above and effect promotions within a period of eight weeks from today. No Costs. Consequently connected miscellaneous petitions are closed.
To
1. The Director of Most Backward Classes And Denotified communities, Chepauk, Chennai.
2. The Joint Director, Kallar Reclamation, Madurai, Madurai District..