M.SATHYANARAYANAN, J The writ petitioner is the appellant and aggrieved by the order of dismissal dated 2.2.2006, made in W.P.No.29160 of 2005, under which the impugned order dated 1.9.2005 passed by the third Respondent transferring the petitioner from the post of Principal, St.John's Teacher Training School, Nazareth, to the post of P.G.Assistant came to be upheld.
2. The petitioner is having Post Graduate Degree in English and in Education. The petitioner was appointed as a P.G. Assistant (English) on 4.7.1979 by the third Respondent, which was controlled by the Thirunelveli Diocese. Since the petitioner was the senior most P.G. Assistant, she was promoted as the Principal of St.John's Girls Teacher Training Institute, Nazareth by the proceedings of the third Respondent dated 17.4.2003. The petitioner joined the said post on 3.6.2003. The Correspondent of the said Teacher Training Institute sought the approval of the second Respondent with regard to the appointment of the petitioner as the Principal. The second Respondent in letter No.Na.Ka.126/A3/2004, dated 3.3.2004, has informed the Correspondent that the Principal/Headmaster in a Government Teacher Training Institute etc., is equivalent to the post of Headmaster, High School and the scale of pay payable to them is also equivalent. Therefore, the second Respondent has granted approval for the appointment of the petitioner as the Principal in the scale of pay of Rs.10,750/-. The first Respondent in turn, vide proceedings dated 1.11.2002, has approved the appointment of the petitioner as the Principal solely on the basis that the scale of pay payable to P.G. Assistant and Principal is equivalent to the post of Headmaster in High School and that the said appointment is on transfer.
3. The Correspondent of St.Johns Teacher Training Institute, Nazareth, has submitted a representation dated 14.4.2004 to the second Respondent seeking clarification with regard to the promotion of P.G. Assistant to the post of Principal involves higher responsibilities or not? The second Respondent in her reply dated 12.5.2004, addressed to the Correspondent of the above said Teacher Training Institute stated that the post of Principal in the Teacher Training Institute is equivalent to the post of Headmaster in High School and that the petitioner never worked as a B.T. Assistant and or as a P.G. Assistant in her service career. Therefore, G.O.Ms.No.590, Finance Department, dated 1.8.1992 with regard to the pay protection and also FR 22-B is not applicable to her.
4. The petitioner aggrieved by the proceedings of the second Respondent dated 3.3.2004 and 12.5.2004, has preferred an appeal to the first Respondent praying that appropriate order may be passed to hold that the post of P.G. Assistant is different from the post of Headmaster of Teacher Training Institute and the later post is involved in responsibilities. The petitioner also prayed for her promotion and sanction of one increment.
5. The third Respondent has passed an order of approval dated 1.9.2005 transferring the petitioner from the post of Principal to the post of P.G. Assistant. The petitioner challenging the vires of the said order, has filed the writ petition and obtained interim orders.
6. The third Respondent has filed a petition to vacate the interim order. In the affidavit filed in support of the said petition, the third Respondent has submitted that the petitioner was originally appointed as P.G. Assistant (English) on 4.7.1979 and during April 2003, she was transferred to the post of Principal of St.John's Girls Teacher Training Institute, since the scale of pay payable to the post of P.G. Assistant and Headmaster of High School is one and the same. Though the order of appointing the petitioner as Principal says that it was a promotion, it was clarified by the second Respondent stating that it was not a case of promotion but a transfer of a equivalent post.
7. It is further submitted by the third Respondent that the petitioner has not fulfilled the qualification for the post of Principal/Headmaster of Teacher Training Institute as per the provisions of the Tamil Nadu Private Schools Regulation and the Rules framed thereunder, as she has not put in the experience of teaching in Elementary or Middle School. In so far as the appointment of the 4th Respondent as Principal after the transfer of the petitioner to the post of P.G. Assistant, it is contended by the third Respondent that the 4th Respondent earlier worked as Principal from 4.11.1989 to 27.12.1994 and also P.G. Assistant from 28.12.1994 to 28.2.1998 at St.Anne's Teacher Training School, Adaikalapuram. The 4th Respondent was appointed as the Principal in the St.John's Teacher Training Institute, Nazareth and she has also assumed charge from 1.9.2005. It is the stand of the third Respondent that the impugned order of transfer is not a reversion as the post of Principal in Teacher Training Institute and P.G. Assistant are equivalent posts and the order of transfer is a routine one by taking into consideration the convenience of Administration. In pursuant to the order of transfer, petitioner was relieved on 31.8.2005 itself and thereafter, the 4th Respondent joined the said post on 1.9.2005. Hence, the third Respondent prayed for the dismissal of the writ petition.
8. The learned Judge after taking into consideration the materials placed on record, held that the second Respondent vide proceedings dated 3.3.2004, has granted approval for appointment of the petitioner to the post of Principal of the above said Teacher Training Institute primarily on the ground that the post of P.G. Assistant and Principal carry the same scale of pay. The clarification sought by the third Respondent in this regard, was also rejected by the second Respondent on 12.5.2004 and therefore, the petitioner cannot contend that the post of Principal of Teacher Training Institute is a promotion post.
9. As regards the grant of special pay of Rs.500/-, to the petitioner which was withdrawn on she becoming the P.G. Assistant by way of transfer, the learned Judge held that so long as the P.G. Assistant is holding the post of Principal, the concerned person is entitled to the personal pay and at the moment he/she is posted as P.G. Assistant, he/she is not entitled to get such pay as the personal pay granted due to the administrative responsibilities held by the Headmaster in addition to the job of teaching. The learned Judge further held that such a personal pay cannot be said to be the payment attached to the salary and hence the petitioner cannot claim that the post of Principal is a promotional post. For the said reasons, the writ petition filed by the petitioner came to be dismissed. Hence, this writ appeal.
10. Mr.Balan Haridass, learned counsel appearing for the appellant apart from reiterating the points urged at the time of hearing of the writ petition, has contended that the petitioner was paid a sum of Rs.500/- per month by way of special allowance between May 2004 and April 2005 and by virtue of the impugned order of transfer, she has been deprived of the same. It is further contended by the learned counsel appearing for the appellant that the post of Principal of a Teacher Training Institute carries higher responsibility and status and the payment of Rs.500/- by way of personal pay is to be considered as a pay for all purposes such as D.A., H.R.A., C.C.A., and also for pensionary benefit. The learned counsel appearing for the appellant also contended that the withdrawal of the special pay of Rs.500/- in pursuant to the impugned order of transfer, has resulted in Civil consequences adverse to the interest of the petitioner and that too, has been passed without affording any opportunity to her and on that ground also the impugned order is bad in law and liable to be quashed.
11. The learned counsel appearing for the appellant has placed reliance upon the following judgments:-
(i)Vol.19 Supreme Court Service Rulings page 773 - C.C.Padmanabhan and others vs. The Director of Public Instruction and others;
(ii) 1994 SCC (L&S) - 1113 - Tarsem Singh and another vs. State of Punjab and others;
(iii) 1995(4) SCC -462 - Union of India and another vs. S.S.Ranade;
(iv) Civil Appeal No.2697 of 2007 - Tejshree Ghag etc., vs. Prakash Parasuram Patil and others (Order dated 17.5.2007);
(v) 1996 SCC (L&S) - 340 - State of Rajasthan vs. Fateh Chand Soni;
(vi) 2008(2) SCC (L&S) - 577 - Correspondent, St.Michael's Teacher's Training Institute vs. V.N.Karpagamary and others.
12. Vol.19 Supreme Court Service Rulings page 773 - C.C.Padmanabhan and others vs. The Director of Public Instruction and others. The High Court of Kerala held that in the Department of Education of Kerala, the post of Assistant Educational Officer is not a promotion post vis-a-vis that High School Assistant and that the two posts are interchangable and consequently, the reversion of the appellant therein in each case from the post of A.E.O to that of H.S.A is not violative of the
Article 69 of the Constitution. On appeal, the Hon'ble Supreme Court of India found that an H.S.A cannot be posted as an A.E.O unless he has the qualification in addition to those qualification to enable him to hold the post of H.S.A as per Kerala Education Act and Rules. The Supreme Court found that functions to be performed by an A.E.O are substantially different from and entail higher responsibility than those of an H.S.A and the post of H.S.A is two steps below the District Educational Officer. The Supreme Court further found that a special pay of Rs.50/- is attached to the post of A.E.O for specially arduous nature of work. The Hon'ble Supreme Court also taken into consideration Rule 12(31) of Kerala Service Rules, which is extracted below:-
"12(31) Special pay means an addition of the nature of pay to the emoluments of a post or of an officer granted in consideration of the following:
(a) Where a post would call for higher scale of pay in view of the additional and/or higher responsibilities attached to it; or
(b) Where the nature of work is specially arduous; or
(c) Where an officer has to attend to work in addition to normal duties attached to his post."
The Hon'ble Supreme Court taken into consideration the said Rule found that the special pay granted to an A.E.O. would squarely fall within Sub-clause (a) of Clause 31. In view of the nature of higher responsibilities shouldered by him and that the special pay also counted towards pension in terms of Rules 12(23) and 62 of the Kerala Service Rules. Therefore, the Hon'ble Supreme Court of India, has set aside the order passed by the Kerala High court.
13. The said decision in the considered opinion of this Court, is not applicable to the facts of this case. As per Sub-clause (a) of 12(31) of Kerala Service Rules, special pay of Rs.50/- payable to A.E.O. where a post would call for higher scale of pay in view of additional and or higher responsibilities attached to it. In so far as the present case is concerned, it has been clarified by the second Respondent in more than on occasion that the posts of Principal of Teacher Training Institute and P.G. Assistant is equivalent and in fact the order of approval is also silent with regard to the said allowance of Rs.500/-. But the fact remains the petitioner was paid a sum of Rs.500/- as special allowance from May 2004 to April 2005 and it was paid since the petitioner by virtue of her position as the Principal of Teacher Training Institute, has to take up administrative responsibility. Admittedly, even according to the petitioner, the scale of pay is the same for both posts. Hence, the above cited decision is not applicable to the facts of this case.
14. 1994 SCC (L&S) - 1113 - Tarsem Singh and another vs. State of Punjab and others. The Hon'ble Supreme Court has considered the meaning of the word "promotion" and held that promotion as understood under the Service Law Jurisprudence mean advancement in rank, grade or both. Promotion is always a step towards advancement to a higher position, grade or honour and opting to come to a lower pay scale or to a lower post cannot be considered a promotion, it is rather a demotion. In so far as the facts of this case, the proceedings of the second Respondent dated 3.3.2004 and 12.5.2004 would clearly indicate that the appointment by transfer of the petitioner to the post of Principal is not a promotion as the pay scale of Principal and P.G. Assistant is one and the same.
15. 1995(4) SCC -462 - Union of India and another vs. S.S.Ranade, the Supreme Court held that promotion can be either to a higher pay scale or to the higher post and in order to decide whether the post is equivalent or is higher or lower i.e. another post, one cannot look only at the pay scale for that post. One must also look at duties and responsibilities that are attached to such posts. It is the case of the petitioner that as the Principal of the Teacher Training Institute, she has took full responsibilities and also perform administrative functions and in discharge of the same, she was paid a sum of Rs.500/- by way of special allowance which was withdrawn on she becoming the P.G. Assistant by the impugned order of transfer. Therefore, it amounts to reversion which came to be passed without any opportunity and hence it is liable to be quashed. As rightly held by the learned Judge that the special allowance is attached to the post and not attached to the salary. Once the competent authority held that both posts are equivalent, vide proceedings dated 3.3.2004 and 12.5.2004 has not been challenged, it cannot be said that the post of Principal of Teacher Training Institute is a promotional post. The third Respondent in the counter, has taken a specific stand that the qualification for the post of Principal/Headmaster in Teacher Training Institute as per the provisions of the Private Schools Regulation Act and Rules framed thereunder is that "a post graduate Degree in any subject taught in middle school or in psychology and M.Ed., degree with a minimum of 5 years of Teaching experience in recognised schools".
As the National Council for Teacher Education, the qualification for the post of Principal is "5.Qualification of Teaching Staff:
(a) Principal/Head
i)Academic and professional qualification will be as prescribed for the post of Lecturer:
ii)At least five years experience of teaching in elementary teacher education Institutions;
(b) Lecturer:
Good record with M.Ed.,/M.A. (Education) with 55% marks, preferably with specialisation in elementary education:
OR Good Academic record with Master's Degree with 55% marks in the relevant school subject and Bachelor of Elementary Education (B.Ed.) or B.Ed., preferably with specialisation in Elementary Education, and with five years teaching experience in recognised Elementary Schools:
(c) A relaxation of 5% may be provided, from 55% to 50% of the marks, at the Master's level for SC/ST category:
(d) Qualification for other academic staff for teaching physical education, art, work experience, information technology literary, etc., shall be as prescribed by the concerned State Government:"
It is not the case of the petitioner that she has fulfilled the qualification so as to enable her to hold the post of Principal of a Teacher Training Institute and her appointment to the post of Principal is subject to the approval of the first and second Respondents and they held that both posts are one and the same carry equivalent scale of pay. The third Respondent has also clarified the order dated 17.4.2003 promoting the petitioner to the post of Principal was a mistake and on getting clarification from the second Respondent, it was rectified.
16. In 1996 SCC (L&S) - 340 - State of Rajasthan vs. Fateh Chand Soni, also it has been held that the word "promotion" means advancement or preferment in honour, dignity, rank, or grade" and in service law also the expression 'promotion' has been understood in the wider sense and it has been held that "promotion can be either to a higher pay scale or to a higher post". In this case, it has been clarified by the official Respondents that the post of Principal of Teacher Training Institute is equivalent to the P.G. Assistant and therefore it cannot be said that the petitioner was promoted to the post of Principal.
17. In Civil Appeal No.2697 of 2007, the Hon'ble Supreme Court of India has upheld the order passed by the Bombay High Court, under which the orders passed by the Tribunal in the Original Application as well as in the Review Petition were set aside and thereby upholding the contention of the Respondents that pursuant to their transfer to the post of Assistant Teacher/Assistant Project Officers to the post of Assistant Deputy Education Inspector, though suffered civil consequences as the quantum of their pay was reduced. In so far as this case is concerned, the special allowance of Rs.500/- is attached to the post of Principal and not to the salary and the petitioner on being transferred to the equivalent post of P.G. Assistant is not paid the said allowance of Rs.500/- as she is not entitled.
18. The learned Special Government Pleader and the learned counsel appearing for R3 and R4 had submitted that the post of Principal of a Teacher Training Institute is equivalent to the post of P.G. Assistant and therefore, the impugned order of transfer cannot be construed one of reversion and therefore prayed for dismissal of the writ appeal.
19. This Court has carefully considered the submissions made by the learned counsel appearing on either side. The appeal petition dated 21.7.2004 submitted by the petitioner to the first Respondent would clearly indicate that she was aware of the proceedings dated 3.3.2004 of the second Respondent which clearly indicate that the post of Headmaster of High School is equivalent to the post of Principal of Teacher Training Institute and the pay scale of P.G. Assistant and Headmaster of High School is the one and the same and the third Respondent sought clarification on 14.4.2004, which was clarified by the second Respondent in her proceedings dated 12.5.2004 stating that the post of Principal in the Teacher Training Institute is the equivalent of Headmaster in High School and only if the B.T. Assistant is given promotion, fixation of scale of pay under FR 22-B is applicable. It has also been stated in the said proceedings that the petitioner herein never worked as B.T. Assistant and or as P.G. Assistant in her service career and therefore, G.O.Ms.No.590 Finance Department, dated 1.9.1992 is not applicable to the petitioner. The petitioner even though aware of the above said proceedings, has not chosen to challenge the same. But she has challenged the order of transfer passed by the third Respondent. The third Respondent in the counter also, has clearly indicated that the petitioner is not eligible to hold the post of Principal of the Teacher Training Institute as she lacks necessary qualification as contemplated under Tamil Nadu Private Schools Regulation and Rules framed thereunder. For the reasons recorded above, the decisions relied on by the learned counsel appearing for the appellant, are not applicable to the facts of this case.
20. Since the post of teacher/ Principal of Teacher Training Institute and the post of P.G. Assistant is equivalent, and the scale of pay is also equivalent, the special allowance of Rs.500/- paid to the petitioner while she was working as the Principal of St.John's Teacher Training School, Nazareth will not confer her any right or benefit. The reasons assigned for dismissal of the writ petition are sustainable in law and there is no error apparent on the face of the record so as to warrant interference in this appeal. This Court finds no merit in the writ appeal. Accordingly, the writ appeal is dismissed and the order passed in the writ petition is confirmed. However, in the circumstances, there will be no order as to costs.
gr.
To
1. Director of Teacher Education Research and Training, Chennai 600 006.