Retired Headmasters challenged withholding of increments for not passing the prescribed accounts test under a retrospective amendment. The court dismissed the education authorities' appeals, leaving intact the direction to release withheld increments.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.01.2019 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR AND THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD W.A.Nos.2768, 2769 & 2771 of 2018 and CMP Nos.22844, 22846 & 22849 of 2018
Writ Appeals filed under Clause 15 of the Letters Patent against the Common Order dated 20.10.2017 made in W.P.Nos.4088, 4089 & 4090 of 2011.
Common Prayer:
Writ Petitions filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus directing the respondents herein to pay back to the petitioner the withheld increments and the benefits accrued thereon.
For Appellants : Mr.K.Karthikeyan in all WAs. Government Advocate. For Respondents : Mr.P.Gurunathan in all WAs. C O M M O N J U D G E M E N T (Order of the Court was delivered by S.MANIKUMAR, J)
Writ appeals are directed against the common order made in W.P.Nos.4088, 4089 & 4090 of 2011 dated 20.10.2017, by which the writ Court, while allowing the writ petitions, directed the appellants to release the increment withheld in respect of the writ petitioners/respondents herein by passing appropriate orders within a period of four weeks from the date of receipt of the copy of the order made in https://hcservices.ecourts.gov.in/hcservices/ the above writ petitions
(i) Writ petitioners/respondents were all retired Headmasters and were selected by the Tamilnadu Service Recruitment (Direct) and joined as Graduate Teachers in the year 1972. Services of all the three writ petitioners' were regularized on 03.08.1973 and were promoted as Headmasters in the year 2001 and continued till their retirement.
(ii) Respondent in W.A.No.2768 of 2018 retired on 31.05.2006, respondent in W.A.No.2769 of 2018 retired on 31.07.2006 and respondent in W.A.No.2771 of 2018 retired on 31.12.2005 respectively. All the three respondents were aggrieved by a communication dated 29.06.2006 withholding increments, on the ground that G.O.Ms.No.181 dated 29.10.2001 which came into force from 01.03.1984 which states that the Headmasters of High School have to pass the account test for the Executive Officers. Since as per this G.O.No.181 dated 29.10.2001, pass in the accounts test for Executive Officers is a must for the purpose of drawing increments by virtue of retrospective nature of the G.O. Therefore, they filed WP Nos.4088, 4089 & 4090 of 2011.
and the petitioners should be paid all the withheld increments.
"10....this Court feels that there is no merit in the pleading of the 1st respondent as similarly placed issue was decided by this Court in WP(MD)No.3228 of 2004 in the case of S.Ganesan v. The Chief Educational Officer, Theni, where the Court clearly said that
“...7. Though the appointment order granted to the petitioner clearly states that he should pass the test in terms of Rule 9 of the Tamilnadu Educational Service Rules but on the date of his appointment, the petitioner had already passed the account test for subordinate officers part-1 in the year 1985-1986 itself. This contention of the learned counsel for the petitioner that Rule 9 item No.1 does not apply to the case of the petitioner because it applies only to categories as provided therein and not to those who appointed otherwise than by direct recruitment is well merited.
8.The learned counsel also says that the amendment for the first item introduces class v to categories found in the bracketed portion and that amendment should have only prospective effect from the date of the order i.e., 29.10.2001, he also stated that even though the amendment has been come into force from 01.03.2004 he need not challenge the said
amendment on the ground that such an amendment by giving retrospective effect of 23 years backwards and took away the vested rights of a Government servant and it is a arbitrary and unenforceable. In view of the said right, he need not challenge the said G.O. separately.
9.Though the Government from time to time frames rules under Article 309 which are Legislative in character it can also make rules retrospectively. But those rules cannot take away the vested rights of the Government servants which had already accrued to them and in the present case it deposits the accrued increments as per the rules in force on the date of his appointment. The rule cannot be enforced retrospectively in the case of the petitioner and the learned counsel for the petitioner's arguments is well founded and the writ petitioner has to succeed.
10.Rule 9 as it stood on the date of appointment applies to persons who are appointed other than by direct recruitment. In the present case, the petitioner was appointed by transfer. Even for those the test that was prescribed earlier was account test for subordinate officer's part 1, Rule 9 only prescribes Account test for executive officers for categories those who are appointed by direct recruitment. The very idea of introduction of an amendment is to include the post of headmaster which comes under class v so that they also must pass the account test for executive officers.”
11.In as much as the said amendment deprive the right of the petitioners before the amendment, the amendment cannot be enforced against the petitioner.
12.Therefore, the writ petitioner are make out the case before this Court and hence the writ petition is liable to be allowed.
13.In the result:
(a) all the three Writ Petitions in WP.Nos.4088, 4089 and 4090 of 2011 are allowed;
(b) the respondents are directed to release the increment withheld in respect of the https://hcservices.ecourts.gov.in/hcservices/ petitioners by passing appropriate orders;
(c) the said exercise shall be done by the respondents within a period of four weeks from the date of receipt of a copy of this order. No costs.
(i) Writ Court has not considered that the Respondents / Writ Petitioners have not challenged the validity of G.O.Ms.No.181, School Education (A2) Department, dated 29.10.2001 and the said order remains unchallenged till now.
(ii) Writ Court has not considered that in much as the validity of G.O.Ms.No.181, School Education (A2) Department, dated 29.10.2001, in and by which Amendments were issued to the Special Rules for the Tamil Nadu School Educational Service (Section 8A in Volume II of the Tamil Nadu Services Manual, 1969), in more particular to Rule - 9 therein, the same is valid and enforceable.
(iii) Writ Court has not appreciated that it is within the power of government to frame rules under Article 309 of the Constitution of India, which are legislative in Character and government can also make rules retrospectively.
(iv) Writ Court erred in holding vide para - 9 of the order impugned herein that, those rules cannot take away the vested rights of the Government Servants which had already accrued to them and in the present case it deposits the accrued increments as per the rules in force on the date of his appointment, in view of the fact that the respondents were aware of the fact of the requirement of passing of the prescribed Tests as stated in the order of promotion as Headmaster Vide Proceedings Na.Ka.No.77000/C4/2001, dated 03-10-2001 of the Director of School Education, Chennai - 6, the 2nd Appellant herein.
(v) Writ Court has not considered that the respondents / Writ Petitioners viz. Thiru.P.Mohanraj having accepted the promotion and having joined in the post of Headmaster of Government High School at Kurungudi on 04-102001 did not choose to challenge the condition vide Para - 4 of the proceedings as stated supra, whereby he was categorically informed that he should pass all the Tests as prescribed as per rule 9 of the Tamil Nadu School Educational Service Rules, if he has not passed already, within two years from the date of joining as Headmaster, and had filed the writ petition in 2011, after ten years, that too after his retirment from Service, so as to protect https://hcservices.ecourts.gov.in/hcservices/ himself from the applicability of relevant service rules.
(vi) Writ Court has not considered that vide G.O.Ms.181, School Education (A2) Department dated 29-102001, as against reference 2nd cited therein and read, it is stated inter alia vide para 2 in G.O.Ms.No.181 that it has been ordered that for appointment as Headmasters in Tamil Nadu School Educational Service, one should have passed Account Test for Executive Officers, Deputy Inspectors Test and District Office Manual Test, it has also been ordered in the said government orders, that this will come into force with effect from 01-03-1984"; therefore even before the amendment to the rule - 9 of the said Rules was made in G.O.Ms.181, School Education (A2) Department dated 29-102001, with effect from 1-3- 1984, it was already brought into force with prospective effect from 1-3- 1984 by virtue of G.O.Ms.No.536, Education Department dated 27-03-1982.
(vii) Writ Court by setting aside the impugned Order has virtually allowed the writ petitioner to draw increments applicable to the higher post to which the petitioner is otherwise not entitled to draw for his failure to pass the Account Test for Executive Officers as laid down vide G.O.Ms.181, School Education (A2) Department dated 29-102001 and as per the condition, as stipulated in the order promoting him from Graduate Asst., to High School Headmaster post.
(viii) Writ Court has erred in holding that vide para 11 “in as much as the said amendment deprive the right of the petitioners before the amendment, the amendment cannot be enforced against the petitioner.” Such finding of the writ Court is without appreciation of G.O.No.536, Education, dated 27.03.1982, wherein it is stated that the condition would come into force with effect from 01.03.1984, which G.O. cited as reference 2 in G.O.Ms.No.181, School Education (A2) Department dated 29.10.2001.
Education - School Education Department - Passing of Tests by school Assistants and Headmasters Representation of B.T. Assistants - orders passed.
Education (A2) Department G.O.Ms.No.536 Dated the 27-03-1982 Panguni 24 Thunmathi Thiruvalluvar Andu
2013
Read:
From the Joint Director of School Education D.O.Letter
No.107280/C29/80 Dt.03.04.81. From: T.N.P.S.C. Letter No.394/BA4/82 Dt.13.03.82 ORDER:
According to rule II of the Special Rules for the Tamil Nadu Educational subordinate service a person appointed to the service in the combined category for Deputy Inspectors of schools and School Assistants has to pass the Deputy Inspectors’ Tests, and Account Test for subordinate officers part-I. A person who fails to pass test will not be eligible for increments other than the first increment in the time scale of pay applicable to him. The School Assistant have represented that these tests would be unnecessary for them that these tests have not been prescribed for their counterparts in aided and local body schools, and that therefore the rule requiring the school assistants to pass the said tests removed. The Director of School Education has also endorsed the representation of the school Assistants and has recommended that for completion of probation as school assistants / Deputy Inspectors of Schools, the tests now prescribed need not be insisted upon and that the provision in the rule may be deleted.
(i) Passing of Deputy Inspector’s Test and Account Test for Subordinate Officers (Part-I) need not be insisted upon the case of School Assistants in the combined category of Deputy Inspectors of Schools of completing the probation and for drawl of increments.
(ii) However for purpose of posting as Deputy Inspectors of Schools, such of those persons in the combined category of Deputy Inspectors of Schools and School Assistants with Deputy Inspector’s Test and Account Test for subordinate Officers (Part-1) shall alone be given posting as Deputy Inspectors of Schools.
(iii) For appointment as Headmasters in the Tamilnadu School Education Service one should have passed the Account Test for Executive Officers, Deputy Inspectors’ Test and District Office Manual Test.
take effect from the date of drawl of list for appointment of Headmaster for 1984 i.e. 1-3-1984.
(By Order of the Governor)
Sd/- C.Ramdas
Commissioner of Secretary to Government.
Sub: Tamilnadu School Educational Service - Appointment of High School Headmaster though promotion - Order issued.
Under rule 10 (a) (i) of the Tamil Nadu State and Subordinate service General rule, under mentioned teachers are appointed by transfer of service to category 5 of the Tamil Nadu School Education Service temporarily as Headmaster of the Govt. High school mentioned below: The place where he Name of the Teacher, is promoted as Designation and High School working place Headmaster. 386 S.Mohanraj, The Headmaster, Govt. High B .T. Asst. (Maths) School, Govt. Boys Higher Kurunkudi, Secondary School, Kattumannarkoil Kattumannarkoil, T.K. Cuddalore District. Cuddalore District.
To Join duty forthwith the headmaster concerned is requested to relieve the teacher immediately with instructions to join the new post at once.
In case, the teacher is not willing to join the new post with, he may temporarily relinquish the post three years or permanently. He should https://hcservices.ecourts.gov.in/hcservices/ send the relinquishment letter within three days
through the headmaster. Incase the teacher is not in possession of the qualifications prescribed in the Tamilnadu School Education service he should pass the above said tests within Two years from the date of joining as headmaster.
As the teacher is working as P.G Assistant / language teacher in the Tamil Nadu State and Subordinate service general rule 9, if he join the new post as high school Headmaster, it is deemed that he had forgone his seniority in the Higher Education service.
Certificate rules F.R.22(b), is issued that the teacher is fully qualified to hold the post with effect from date of joining is issued to enable to fix his pay in the Headmaster post. The District Educational officer concerned is requested to ascertain from the service register as to whether the teacher is fully qualified to hold the post or otherwise he should send a report to the Director of School Education without fixing his pay in this new post.
These orders are issued subject to Final Verdicts on the O.A.No's.8825, 8826, 8829, 9120, 9202/98, 187/99 and 6690/99 of the Tamilnadu Administrative Tribunal in which interim orders are issued.
The date of relieving and joining reports should be sent to the Director immediately. Sd/-.
Director of School Education.
ABSTRACT Rules: Tamilnadu School Educational Service - consideration of certain other teaching posts also, besides the existing ones, for appointment as Headmaster / Headmistress in Government High Schools by recruitment by transfer - prescription of qualification and tests for appointment to the post of Headmaster / Headmistresses in Government High Schools - Amendments to special Rules for the Tamil Nadu School Educational Service - orders issued.
SCHOOL EDUCATION (A2) DEPARTMENT G.O.Ms.No.181 Dated: 29.10.2001. Read:
ORDER:
In the Government order first read above, orders were issued pending amendment to special Rules for Tamilnadu School Educational Service that appointments to the post of Headmasters and Headmistress in the Tamilnadu School Educational Service shall be made by recruitment by transfer from deputy inspector of school and school assistant, and from Pandits and Munshis grade 1, secretarial Assistants, Engineering instructors, Agriculture Instructor and physical Directors who possess a degree in any subject or language, with a degree in teaching and who have 5 years teaching experience after acquiring a teaching degree.
In fixing the inter-se-seniority among these categories, the date of appointment shall be taken into account in the case of Deputy Inspectors of School and School Assistants and the date of passing of B.Ed., or B.T. or the date of appointment after passing B.T or B.Ed. which ever is later shall be taken into account in respect of Pandits and Munshis grade 1 secretarial Assistants, Engineering Instructors, Agricultural Instructor and Physical Directors. In the Government order second read above, it has been ordered that for appointment as Headmasters in Tamil Nadu School Educational Service, one should have passed Account test for Executive Officers, Deputy Inspectors test and District Office Manual Test. It has also been ordered in the said Government Order, that this will come into force with effect from 1.3.1984.
Subsequent to the issue of Government order first read above, TVLR Narayanan and S.Nandagopal Tamil Pandits Grade-I have filed two writ petition No.5216/83 challenging the order issued in the Government order first read
above prescribing 5 years experience after acquiring teaching degree as a prerequisite qualification for appointment by recruitment by transfer as headmaster and headmistresses in Government secondary schools. The said writ petition in reckoning their experienced not after their acquisition of the degree in teaching, but even before that, since Tamil Pandits posses Pandits Training and also in view of the Madras High Court order third read above five years experience after acquiring teaching degree prescribed in the Government order first read above need not be insisted in respect of Tamil Pandits alone and it may be insisted in respect of other categories of teachers viz., secretarial Assistants, Engineering Instructions, Agriculture instructors and physical directors for appointment by r e c r u i t m e n t b y transfer as Headmaster / headmistress in Government Secondary School. Based on the Government order first and second read above and also taking into account the Madras High Court order above, the following amendments are issued to the Special Rules for the Tamil Nadu School Educational Service.
2.The following Notification will be published in the Tamil Nadu Government Gazette.
NOTIFICATION
In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following amendments to the special Rules for the Tamil Nadu School Educational Service (Section 8 - A in volume 11 of the Tamil Nadu Service Manual, 1969)
AMENDMENTS
In the said Special Rules:
(1) in rule 2, in sub-rule (a) under class V, for the expression “Deputy Inspectors of Schools, and the School Assistants and career Masters” in column (2) against the entry” Headmasters and Headmistress including, Headmasters and Headmistress in the Model High Schools attached to Training Colleges in the https://hcservices.ecourts.gov.in/hcservices/ collegiate Education Department” in column (1),
the expression “Deputy Inspector of School, School Assistants, Career masters, Pandits and Munsis Grade I Secretarial Assistant, Engineering instructors, Agricultural instructors and Physical Directors” shall be substituted.
(ii) the explanation shall be numbered as explanation I and after Explanation I as so numbered, the following explanation shall be added, namely.
Explanation II - for the purpose of fixing the inter-se-seniority among the categories eligible for appointment posts of Headmasters and Headmistress, the date of regular appointment in the cadre shall be taken into account the case of Deputy Inspectors of Schools, School Assistants and career Masters and the date of passing of B.T or B.Ed or the date of appointment after passing the B.T. or B.Ed., whichever is later shall be taken into account in respect of other categories"
In the (2) (2)
Annexure, after
the category
"Assistant
Director
(Visual
Education)" in
column (1) and
the entires
relating
thereto in
column (2) and
(3) the
following
categories and
entries shall
respectively be
inserted in
columns (1)
Headmasters and Recruitment (i) A Bachelor's
Headmistress by transfer degree in the subject
including or language of any
University in the
Headmasters and
state or a degree of
Headmistress in
equivalent standard.
Model High (ii) B.T. or B.Ed.,
Schools degree of any
attached to University in the
Training state or a degree of
colleges in the equivalent standard.
(iii) Experience in
collegiate
teaching for a period
Education
of not less than five
Department
years provided that,
in the case of Tamil
Pandits the teaching
experience acquired
before or after
obtaining a degree in
teaching shall be
taken into account.
(iv) Must have passed
(a) Account Test for
Executive officers
(b) Deputy
Inspector's Test (3
Papers)
(c) District Office
Manual Test (Now
Tamil Nadu Government
Office Manual Test)
4.In rule 9 in the Table under Column (1) (1) in Item (1), for the expression “except; those appointed the expression except those appointed in class V and those appointed shall
be substituted.
(ii) In item (ii) for the expression “classes IV and V” the expression "class IV" shall be substituted.
V.K.Subburaj, Secretary to Government
Sub: Tamilnadu School Educational Service - promotion as High School Headmaster and Sanction of increment to the High School Headmasters who have not passed prescribed tests - Clarifications issued - Regarding.
Ref: 1.G.O.Ms.No.536, School Education Dated 27.03.82. • 2. G.O.Ms.No.131 School Education Dated 29.10.2001. • 3. G.O.Ms.(ID) No.192 Dated 01.10.2002. • 4. Director of School Education Proceedings R.C.No. 6947/T36/ 2002 Date: 04.05.2002. • 5. District Educational Officer, Nagapattinam R.C.No.4550/B5/04 Dated.11.08.04. *******
In the Government Order 1st cited, instructions were issued that for the promotion as high school headmaster, the B.T Assistant must have passed the Account Test for Executive Officers Part I, Deputy Inspectors test and District Office Manual Tests.
Pending issue of relaxation to the Tamil Nadu Subordinate service rules instruction was issued that promotions may be made temporarily with a condition to pass the above test within two years from the date of promotion in accordance with the Tamil Nadu school Education special rules 9.
The headmasters promoted from 82-84 must pass the Tests within two years, failing which the second and subsequent increments will be stopped until he passes in the examinations as per orders 4th cited.
Thereafter in the reference 2nd cited an amendment was issued to the Tamil Nadu School Education Service rule 9 making the above test mandatory for promotion to the post of High School Headmaster.
Based on the above orders it is informed that those who were promoted as high school Headmaster till the year 2001, are entitled for the 2nd increment in the post of headmaster only after passing all the tests prescribed in the rules.
From the year 2002, seniority list was prepared by including the B.T.Assistants, who have passed the Account test for subordinate officers Part-I or Executie Officers Test and the Departmental Tests.
Therefore, it is ordered that from 2002, the High Schools Headmasters who have passed the prescribed test alone are eligible for pay fixation in the post of high school headmaster.
Therefore, it is informed that duly observing the above instructions pay in the post of High School Headmaster may be fixed under rule F.R.22(b) of the fundamental Rules.
Sd/Director of School Education.
to issuance of the rules by way of amendment, G.O.Ms.No.181, School Education (A2) Department, Chennai, dated 29.10.2001.
Sd/-
Assistant Registrar(CS)
//True Copy//
Sub Assistant Registrar
ars/dm
To,
https://hcservices.ecourts.gov.in/hcservices/ A.SK(27/06/2019)
1 issue framed by the court
Could the retrospective accounts-test amendment justify withholding increments of Headmasters promoted before its issuance?
Colour shows how this judgement treated each authority
S.Ganesan Vs. The Chief Educational Officer, TheniRelied on¶118
W.P.(MD). No.3226 of 2004
3 provisions across 3 enactments
The Chief Educational Officer, Cuddalore District, Cuddalore
The Director of School Education, College Road, Chennai
P.Mohanraj
S.David Selvaraj
G.Vaidyanathan
S.MANIKUMAR
SUBRAMONIUM PRASAD
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
