Allowed

S.Veerabadran v. the Govt. of Tamilnadu

Madras HC1 Apr 2013WP/7627/2006

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by a retired Physical Education Teacher to quash an order rejecting his pension claim. Holding that equality under Article 14 prohibited discrimination, the court directed the Government to count the petitioner's service in a recognized unaided school alongside his aided school service for pension fixation, granting relief on par with a similarly situat

What did the court decide?

The impugned order was quashed. The respondents were directed to consider the petitioner's service in both the unaided and aided schools for pay fixation and pension, on par with the precedent of Rev.

S.Veerabadran Vs the Govt. of Tamilnadu — Pension and Retirement Benefits | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED 01.04.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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W.P. No.7627 of 2006

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S.Veerabadran ... Petitioner

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versus

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The Government of Tamil Nadu rep. by School Education Department, Fort. St. George, Chennai-9 2. The Director of School Education, College Road, Chennai-6

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The Chief Educational Officer, Coimbatore District, Coimbatore

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The District Educational Officer, Tirupur, Coimbatore District ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of certiorarified mandamus calling for the records of the second respondent issued in MM. No.22559/T3(4)/05 dated 24.03.2005 and quash the same and issue a consequential direction to the respondents to count the service rendered by the petitioner as Physical Education Teacher in recognised Metro Matriculation School, Karamadai Road, Mettupalayam, Coimbatore District for the purpose of pay fixation and pension and other benefits.

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(Prayer amended as per Court Order dated 05.03.2013 by STJ in WPMP. No.39 of 2013 in W.P. No.7627 of 2006)

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ORDER

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The writ petition has been filed under Article 226 of the Constitution of India seeking an order in the nature of certiorarified mandamus calling for the records of the second respondent dated 24.03.2005 issued in MM. No.22559/T3(4)/05 and quash

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the same and consequently direct the respondents to count the service rendered by the petitioner as Physical Education Teacher in the recognised Metro Matriculation School, Karamadai Road, Mettupalayam Taluk, Coimbatore District for a period from 01.08.1881 to 18.10.1997 for the purpose of pay fixation and pension in addition to the service rendered by the petitioner as a Physical Education Teacher for a period from 20.10.1987 to 31.01.2006 in T.Duraisamy Gowder Higher Secondary School, Seeliyur, Mettupalayam Taluk, Coimbatore District, which is a recognised private school and to grant pensionary benefit with selection and special grade scale of pay by extending the benefit of the G.O. Ms. No.143 dated 30.01.1987.

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The petitioner herein had been Physical Education Teacher in the T.Duraisamy Gowder Higher Secondary School, Seeliyur, Mettupalayam Taluk, Coimbatore District which is an aided school, receiving grant for the teaching staff from the Government of Tamil Nadu. It is an admitted fact that the said school is governed by the provisions of Tamil Nadu Private School Regulation Act and Rules framed thereunder. Originally the petitioner had been appointed as Physical Education Teacher in the Metro Matriculation School at Mettupalayam on 01.08.1881 and he had been working in the said school till 18.10.1997. Though the said school is also a recognised school, it was not an aided school. Subsequently, the petitioner was selected and appointed as Physical Education Teacher, as per the order of the Secretary of T.Duraisamy Gowder Higher Secondary School on 20.10.1997 and the said appointment was approved by the District Educational Officer, Tirupur by his proceedings dated 06.01.1998 in Na.Ka. No.11190/97/A4 with effect from 20.10.1997 in the scale of pay of Rs.1200-2040. Since 20.10.1997, the petitioner was working as Physical Education Teacher in T.Duraisamy Gowder Higher Secondary School, even on the date of filing of the wit petition, however, he retired from service on 31.01.2006, on attaining superannuation.

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According to the petitioner, any teacher who has completed 10 years of service in an aided school is entitled for pension. The petitioner had served 8 years 3 months and 23 days in the aided school and has rendered a total service of 24 years including the service rendered in the unaided recognised matriculation school. Hence, he made a representation to the respondents on 29.03.2004, 21.02.2005 and 23.02.2005 to consider the services rendered by him as Physical Education Teacher, in the recognised Metro Matriculation School for a period from 01.08.1981 to 18.10.1997, for the purpose of pay fixation, pension and for grant of selection and special grade scale of pay. However, the Director of School Education, by his proceedings dated 24.03.2005 issued in mm No.22559/T3(4)/2005, rejected the claim of the petitioner. The Government of Tamil Nadu the first respondent herein has not passed any orders on the representation made by the petitioner, hence, the petitioner has come forward with this writ petition seeking the relief as stated in the

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writ petition.

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Mr.R.Saseetharan, learned counsel appearing for the petitioner submitted that the impugned order dated 24.03.2005 passed by the second respondent is against law and facts, since he has not considered G.O. Ms. No.143 dated 30.01.1987 under which the Government of Tamil Nadu has allowed the claim of a teacher working in the Matriculation School and counted the service rendered by him. It is not in dispute that one Rev.Fr.Stanislaus M.Fernandez in Don Bosco Matriculation School, Panaji, Goa from 01.06.1966 to 13.06.1968 and in Don Bosco Matriculation School, Madras from 04.06.1973 to 23.05.1980 was granted pay fixation and other pensionary benefits on the following grounds:

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a) Matriculation Schools which were previously under the control of University of Madras are now under the control of Director of School Education.

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b) Don Bosco Matriculation School, Egmore, Madras is adopting the Government scale of pay for Headmaster.

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c) As per the G.O. Ms. No.37 Education, dated 05.01.1983, the service rendered in a recognised unaided schools can be taken into account for fixation of pay and pension.

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It is submitted by the learned counsel for the petitioner that the respondents have not adopted the same yardstick in the case of the petitioner and the representations made by the petitioner to the Government on 06.04.2005 and 12.12.2005 has not been considered.

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Learned Additional Government Pleader appearing for the respondents has not disputed the fact that the petitioner had worked as Physical Education Teacher in the Metro Matriculation School for a period from 01.08.1881 to 18.10.1997 and the said school is a recognised Private School, however, the same was not an aided school. The said Metro Matriculation School is not an aided school, though the subsequent school T.Duraisamy Gowder Higher Secondary School where the petitioner joined duty is the recognised aided school. According to the learned Additional Government Pleader appearing for the respondents, the petitioner is not entitled to seek pension by adding the services rendered in an unaided private school. However, he has not denied the fact that a similarly placed teacher Rev.Fr.Stanislaus M.Fernandez was given pension and it was also submitted that the said G.O. is not applicable to others.

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In support of the case of the petitioner, learned counsel for the petitioner relied on the following decisions:

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Vishundas Hundumal etc., v. The State of Madhya Pradesh and others reported in AIR 1981 SC 1636;

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R.Nandakumar v. The Commissioner and Director of Technical Education, Chennai and another reported in 2011 Writ L.R. 52;

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In R.Nandakumar v. The Commissioner and Director of Technical Education, Chennai and another reported in 2011 Writ L.R. 52, this Court (NPVJ) has held as follows:

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"6. In the light of the above submission and decision of the Division Bench cited above, this writ petition is disposed of, giving liberty to the petitioner to make a representation before the Secretary to Government, Higher Education Department, Government of Tamil Nadu within a period of two weeks from the date of receipt of a copy of this order and the said authority is directed to consider such representation of the petitioner, in the light of the Division Bench judgment in The Government of Tamil Nadu v. S.V.Paul Jayaraj 2001 3 MLJ 430=2001 Writ L.R.852 and in the light of the orders made in SLP (Civil) No.22469 of 2001 dated 10.01.2002 and in the review petition No.54 of 2002, which was implemented as per G.O. dated 07.08.2002 and pass orders, within a period of three months from the date of receipt of a copy of the representation of the petitioner. It is a well accepted principle of law that equality shall be maintained even in discretionary matters by the Government in compliance with Article 14 of the Constitution of India. It is made clear that if the petitioner is granted relaxation of the said Rule, the second respondent shall sanction pension to the petitioner within a period of four weeks from the date of the said order to be passed by the Government. There shall be no order as to costs."

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Learned Single Judge of this Court referring various decisions held that equality before law and equal protection of law shall be maintained even in discretionary matters by the Government for compliance of Article 14 of the Constitution of India. It was made clear in the decision that if any relaxation of the rule is granted by the respondents therein in respect of sanction of pension, the same shall be extended to the petitioner therein on par with the other similarly placed person.

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In Vishundas Hundumal etc., v. The State of Madhya Pradesh and others reported in AIR 1981 SC 1636, the Hon'ble Apex Court has held as follows:

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"6. Conceding that this was discrimination unconsciously indulged into by inadvertence or oversight on the part of a governmental agency, by this order we only propose to rectify the same and not reject the whole scheme. Such an approach would be destructive of a wholesome effort towards nationalisation of bus transport which is generally undertaken in public interest. When discrimination is glaring the State cannot take recourse to inadvertence in its action resulting in discrimination. The approach is, what is the impact of State action on the fundamental rights of citizen. In this case denial of equal protection is

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complained of. And this denial of equal protection flows from State action and has a direct impact on the fundamental rights of the petitioner's. We, therefore, propose to take a constructive approach by removing the discrimination by putting the present petitioner's in the same class as those who have enjoyed favourable treatment by inadvertence on the part of the Regional Transport Authority."

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The Hon'ble Apex Court has held that similarly placed persons shall be treated, without any discrimination, otherwise, it would be violative of Article 14 of the Constitution of India.

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A copy of the G.O. Ms. No.143 Education (V2) Department dated 30.01.1987, which is available in the typed set of papers reads that the Government has accepted the re-commendation of the Director of School Education and permitted the Director of School Education to count the services put in by Rev.Fr.Stanislaus as Headmaster, Don Bosco Matriculation School, Egmore, Madras from 04.06.1973 to 23.05.1980 to re-fix his pay with consequential benefits for grant and pension purposes for the following reasons:

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a) Matriculation Schools which were previously under the control of University of Madras are now under the control of Director of School Education.

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b) Don Bosco Matriculation School, Egmore, Madras is adopting the Government scale of pay for Headmaster.

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c) As per the G.O. Ms. No.37 Education, dated 05.01.1983, the service rendered in a recognised unaided schools can be taken into account for fixation of pay and pension.

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d) The Matriculation Schools are now recognised but they are unaided.

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It is not in dispute that Rev.Fr.Stanislaus M.Fernandez, the then Headmaster, St.Bede's Anglo Indian Higher Secondary School, Chennai, an unaided school, was posted as Headmaster in an aided school, however, he was given the benefit by fixing the pension benefits as per the G.O. referred to above. His services rendered in the unaided school was also taken into consideration along with his service in the aided school, for fixation of pensionary benefits.

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Learned counsel appearing for the petitioner submitted that the pay scale applicable to Physical Education Teacher in Metro Matriculation School at Mettupalayam is on par with T.Duraisamy Gowder Higher Secondary School, Mettupalayam. The same has not been disputed by the learned Additional Government Pleader appearing for the respondents. Even in the counter, the aforesaid factum has not been disputed by the respondents.

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In the counter para 10, the respondents have stated that the petitioner was not entitled to count the services rendered in the Matriculation School, since for the service rendered, salary was not

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paid by the Government to the petitioner, hence, he is not entitled to the benefit as per G.O. Ms. No.143 dated 30.01.1987. According to the respondents, the G.O. cited is not applicable to the petitioner and other similarly placed persons, as it was treated as a special case.

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It was argued by the learned Additional Government Pleader, appearing for the respondents that the said Government order pertains to that individual headmaster alone, based on which the petitioner cannot claim any right, however, the said plea is not sustainable in law.

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It is pertinent to note that Article 14 of the Constitution pertains to one of the most important fundamental rights, namely, equality before law and equal protection of Law, guaranteed to every citizen of this Country. In fact, Article 14 prohibits class legislation though reasonable classification is not violative of Article 14 and the concept of equality, as interpreted by the Hon’ble Supreme Court in K.Thimmappa vs. Chairman, Central Board of Directors, S.B.I, reported in AIR 2001 SC 467. Similarly, the Hon’ble Apex Court has ruled in Pathumma vs. State of Kerala, reported in AIR 1978 SC 771, whereby it is clarified that what Article 14 prohibits is only hostile discrimination and not reasonable classification. It cannot be disputed that even one person may constitute a reasonable class different from that of other persons, in view of his better qualification. If such classification is justifiable to a reasonable prudent man, it could be construed as reasonable classification. However, the state or authority, by merely stating that exemption is granted only to a particular person, for getting certain concession or benefit, without assigning proper reasons, no reasonable classification could be legally presumed.

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It is well settled that no State shall deny any person, equality before law or equal protection of laws in the Territory of India, as guaranteed under Article 14 of the Constitution. Merely by adding the word as a different class or stating that the same would be applicable only to one person or a group of persons, the right could not be denied to other similarly placed person or persons, on the ground of reasonable classification.

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It is an admitted fact that Rev.Fr.Stanislous M.Fernandez, Headmaster of an unaided school was considered eligible to count his services rendered in an unaided school and subsequently, he served in an aided school, however, both services were counted for the purpose of granting pension. Since the petitioner is a similarly placed person, who worked earlier in a recognized un-aided school and subsequently observed to an aided school, the respondents cannot say that G.O. Ms.No.143, dated 30.01.1987 is applicable only to a particular individual, Rev.Fr.Stanislous M.Fernandez and not the petitioner, a similarly placed person, as it would be against the

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concept of equality under Article 14 of the Constitution.

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As decided by the Hon’ble Supreme Court in the decisions referred to above, treating Rev.Fr.Stanislous M.Fernandez would not create a different reasonable class, so far as it relates to the said person in providing pension. On the facts and circumstances, I am of the view that the said G.O.Ms.No.143 of 1987 would not create a reasonable classification to deny the right of granting pension to the petitioner, a similarly placed person. The G.O.Ms.No.143, dated 30.01.1987 has not created any reasonable classification between the petitioner and the said Head Master, who got the benefit under the Government Order. The petitioner is also entitled to the benefit, as that of Rev.Fr.Stanislous M.Fernandez, since there is no reasonable classification and the class legislation, would be violate Article 14 of the Constitution. In the writ petition, there is no legislative enactment, violating the concept of equality, however, the Government Order, is a subordinate legislation, whereby the petitioner, a similarly placed person shall not be denied the benefit, that was given to another similarly placed person.

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Considering the facts and circumstances, I am of a view that both the petitioner and Rev.Fr.Stanislaus M.Fernandez are similarly placed persons and therefore, the petitioner is also entitled to seek similar relief as that of Rev.Fr.Stanislaus M.Fernandez, then Head Master of the Don Bosco Higher Secondary School, as discussed above in this order and therefore, it is just and reasonable to allow this writ petition.

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In the result, the writ petition is allowed and the impugned order passed by the second respondent in MM. No.22559/T3(4)/05 dated 24.03.2005 is set aside, directing the respondents to consider the services rendered by the petitioner in Metro Matriculation School at Mettupalayam and also the services rendered by him in T.Duraisamy Gowder Higher Secondary School, Mettupalayam as Physical Education Teacher in respect of fixation of pay and pensionary benefits and disburse the same, as that of the case of Rev.Fr.Stanislaus M.Fernandez, within a period of four weeks from the date of receipt of a copy of this order. No order as to costs.

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Sd/Asst. Registrar. /true copy/

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Sub Asst. Registrar.

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vga/tsvn

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