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2007 DIGILAW 2448 (MAD)

S. Ganesan v. Chief Educational Officer, Theni

2007-08-03

K.CHANDRU

body2007
Judgment : The petitioner is a retired Headmaster was appointed by transfer from the post of B.T. Assistant (Maths) to that of Headmaster of High School by an order dated 11.7.1996. In that order, it was stated that the petitioner must pass the test prescribed under Rule 9 of the Tamil Nadu Educational Service Rules and they should pass the test within a period of two years subsequently at the time of appointment of the Petitioner in service. 2. Rule-9 of the Tamil Nadu Educational Service Rules reads as follows: "9.Tests: (a) Every person appointed on probation to any of the categories specified in column (1) of the Table below, shall within the period of his probation, and every other person appointed to the categories for whom no probation is prescribed shall, within a period of two years from the date on which he joins duty, pass the tests specified in the corresponding entries in column (2) thereof, TABLE 3. Subsequently Rule 9 underwent change by an amendment to the Special rules by G.O. Ms. No. 181, School Education (A2) Department, dated 29.10.2001. The said amendment to Rule 9 is found in para 9 of the said G.O as follows: 4. In Rule 9, in the Table, under Column (1) In item (1), for the expression "except those appointed". The expression "except those appointed in clause V and those appointed" shall be substituted. 4. By virtue of this amendment persons who are appointed as Head master of High Schools are to pass the Account Test for the Executive Officers. The said amendment was brought into with retrospective effect from 1.3.1984. Therefore the petitioner was informed by a letter dated 4.5.2002 that the pass in the Account test for Executive Officers is must for the purpose of drawing increments even person who are appointed before the amendment by virtue of retrospective nature of the amendment. 5. The petitioner was accordingly, informed by a communication dated 7.6.2002 stating that while he was appointed w.e.f. 1.10.1996 in the scale of pay of Rs.12,000/-275-13,500 pursuant to the orders of the Director unless he had passed the test prescribed under Rule 9 of Tamil Nadu Educational Service Rules, he will not be given annual increments. Subsequently, the petitioner got retired from service on 30.4.2003. Subsequently, the petitioner got retired from service on 30.4.2003. After to the date of retirement when exams were held in May 2003, the petitioner wrote the test and passed the test. However the department took a stand that since he had not passed the test within a period of two years from the date of appointment, he will not be eligible for the withheld increments, which is now under challenge. 6. Heard Mr. K. Vellaisamy, learned senior counsel for the petitioner and Ms. V. Chellammal, learned Special Govt. Pleader, appearing for the respondents 1 and 2 and Mr. P.Gunasekaran, the learned counsel for the respondent 3 and have perused the records. 7. Though the appointment order granted to the petitioner clearly states that he should pass the test in terms of Rule 9 of the Tamil Nadu Educational Service Rules but on the date of his appointment, the petitioner had already passed the Account Test for Subordinate Officers Part-I in the year 19851986 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 come into force from 1.3.2004 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 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. 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 petitioners 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 Officers Part I, 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. Inasmuch as the said amendment deprived the right of the petitioner before the amendment, the amendment cannot be enforced against the petitioner. 12. Therefore the Writ Petition is allowed. No costs. The respondents are directed to release the increments withheld, in respect of the petitioner and pass appropriate orders within four weeks from the date of receipt of a copy of this order. Writ petition allowed.