(Prayer: To issue a writ of Certiorarified Mandamus calling for the entire records connected with the impugned order passed by the 4th respondent in Na.Ka.No. 667/A4/2017, dated 15.06.2017 and quash the same and consequently Direct the respondents to count the service of the petitioner rendered in the 5th respondent recognized institution from 04.07.1994 to 02.01.2002, and thereby re-fix the scale of pay and count the service for pensioner benefits.)

This writ petition has been filed challenging the impugned order passed by the fourth respondent in Na.Ka.No. 667/A4/2017, dated 15.06.2017 and to direct the respondents to count the services of the writ petitioner rendered in the fifth respondent’s recognized institution from 04.07.1994 to 02.01.2002 and thereby re-fix the scale of pay and count the services for pensionary benefits.

2. Heard Ms. A.V.Nancy representing Mr. S.N.Ravichandran learned counsel for the writ petitioner, Mr. S. Vashik Ali, learned Additional Government Pleader for the respondents 1 to 4 and Mr. S.Savarimuthu, learned counsel for the respondents 5 and 6.

3. The learned counsel for the writ petitioner would submit that the writ petitioner was appointed as a P.G. Assistant on 27.06.1994 in the fifth respondent school, which is a minority institution. For the classes 11th std and 12th std., to which the writ petitioner was appointed, it was being run on self finance basis. The writ petitioner was later appointed to the 6th respondent school by way of transfer and she joined as a PG Assistant on 19.09.2001 in the permanent vacancy and the same was also approved by the District Educational Officer on 21.10.2002 with effect from 03.01.2002.

4. The writ petitioner eventually retired from service on superannuation. She earlier filed WP.(MD) No.22367 of 2016, which was allowed on 23.11.2016, directing the fourth respondent therein to reconsider the request of the writ petitioner in the light of GO.(1D) No.125, School Education Department, dated 13.04.2010 and the order dated 28.01.2014 passed in W.P. (MD) No.3434 of 2012. Despite such a specific order, the impugned order was passed on 15.06.2017, rejecting the request of the writ petitioner. Challenging the same, the writ petitioner has filed the present writ petition.

5. Ms. A.V.Nancy, learned counsel for the writ petitioner would strenuously contend that the refusal of the Department to follow the earlier order of this court in WP.(MD) No.22367 of 2016 dated 23.11.2016, in its true letter and spirit is arbitrary. The mere pendency of a writ appeal against the Order in W.P.(MD) No.3434 of 2012 cannot be a reason for the Department to refuse to follow the ratio laid on in the said case. Hence, she prays for allowing the writ petition.

6. Mr. S.Vashik Ali learned Additional Government Pleader for the official respondents invites my attention to the order of the Division Bench of this Court in W.A.(MD) No.686 of 2022 dated 24.03.2025. He would submit that the services rendered by the petitioner as PG Assistant in the fifth respondent school is not in any sanctioned aided post. She was working in a self finance institution. Her subsequent deployment and appointment in the sixth respondent school on a permanent vacancy with effect from 03.01.2002 alone would entail to her benefit for reckoning as her service period, for settlement of her retirement benefits.

7. The learned counsel for the respondents 5 and 6 would fairly submit that while the classes 11th std and 12th std are not aided in the fifth respondent school, classes 11th std and 12th std in the sixth respondent school are aided and the writ petitioner admittedly joined a permanent vacancy with an aided post only in the sixth respondent school with effect from 03.01.2002. He prays for passing of appropriate orders.

8. The subject involved is no longer res integra. Already in a line of judgments, it is categorically held that the services rendered by a Teacher in a self finance stream or in an unaided post in an aided institution can never be taken into account for the purpose of counting the service period in an aided post and cannot be taken into account for calculating the qualifying service period for the purpose of settlement of retirement and pensionary benefits.

9. The judgment of the Hon’ble Division Bench of this Court in W.A. (MD) No.686 of 2022 dated 24.03.2025 is more candid and it traces the past legal precedents as well. The relevant portions are extracted hereunder:-

                          “3. Claiming refixation of pay taking into her pay scale drawn while she was serving as a Secondary Grade Teacher under the Private Management, the writ petition in W.P(MD)No.17205 of 2020 was filed. The learned singel Judge expressing his opinion that the issue is no more res integra, in view of the judgment passed in W.P.No.32645 of 2018, later confirmed in W.A.No.3868 of 2019 and the dismissal of SLP filed by the State held that under FR 22(B), the past service of the writ petitioner as a Secondary Grade Teacher in a private school is to be taken into account for fixing of proper pay scale. By holding so, the writ petition was allowed.

                          4. The State, being aggrieved by the order, had preferred intra Court appeal on the ground that the learned single Judge miserably failed to take note of the fact that the service rendered by the writ petitioner in the Government aided school cannot be taken into account for any purpose if she has resigned the job and joined the Government service as a fresh recruit pursuant to the selection by the Teachers Recruitment Board. It is not a case of migration, but a case of new recruitment, neither Rule 26 of FR nor 22B of the FR is applicable to the case of the writ petitioner. The writ petition, writ appeal and SLP referred as a precedent by the learned single Judge been considered subsequently by the Division Bench of this Court and has held that there cannot be a refixation of pay scale taking into account the past service rendered by the Secondary Grade Teacher in a Private Management.

                          …….

                          1. Contrary to the judgments cited as precedent by the learned single Judge, we have, The Hon'ble Supreme Court judgment reported in (2017) 5 SCC Page 783 (Palure Bhaskar Rao and others -Vs- P.Ramaseshaiah and others) in Paragraph Nos.14 and 15 has held as follows:

                          “14.Transfer and recruitment by transfer are entirely two different concepts. No doubt transfer can be from one category to another category or within the class if the rule permits interchangeability of the categories within a class. Any other transfer both intra-category and inter-category are in fact, under law is a selection and appointment by way of a transfer from one category to another or from one class to another class or from one service to another. If it is a transfer simpliciter it conveys a different meaning and if it is a recruitment by transfer, as we have clarified above conveys a different concept altogether. The latter is a mode of selection/recruitment to a service. 15.Transfer in relation to service simply means a change of a place of employment within an organization. Such transfer being to a similar post in the same cadre and therefore, obviously such a transfer does not result in the termination of his lien in the parent cadre but recruitment by transfer is a different service concept altogether. It is a method of recruitment to a service, in the instant case to a different category in the same service initially and thereafter, to a different service altogether”.

                          ……….

                          9. The subsequent Division Bench judgment in S.K.Kannan-Vs-The Director of School Education and others, in W.A(MD)No.627 of 2022, the learned Division Bench has observed that the petitioner having participated in the direct recruitment process and got appointment cannot turn around and contended that he was appointed by transfer of service to the post of P.G Assistant. The Division Bench held that the petitioner even after being appointed as P.G.assistant will not confer any right to get pay protection. The fact that there was no break in service also will not convert direct recruitment into an appointment by transfer of service. Thus, the inclination legally held by the learned Division Bench is that a person had been in service under Management after getting appointment in the Government through direct recruitment process cannot claim any pay protection which he ws enjoying while serving under the private management. This view been again reiterated by the Division Bench of this Court in Esakkiraj v. The Chief Educational Officer, Chief Education Office, Tirunelveli, and others, W.P(MD)No.1805 of 2023, vide order dated 12.10.2023, wherein the Division Bench had discussed about the effect on FR 22(B) in case of pay fixation of a person who had served under Management in a private aided school and later appointed afresh by direct recruitment in a Government service. 10.In this considering judgment also the Division Bench of this Court had an opportunity of the judgment relied on by the learned single Judge in the order impugned before us and the subsequent judgment of the Division Bench rendered in W.A.No.627 of 2022 and has held that the order passed in W.P(MD)No.627 of 2013 in the case of S.K.Kannan case(cited supra) the dictum to be followed. The reasoning of the Division Bench in the subsequent judgment ie., Esakkiraj case(cited supra) is as below:

                          …….

                          11. It is also worth to know that the Senior Judge who authored the judgment in W.A(MD)No.3868 of 2019, which been relied by the learned Single Judge as a precedent subsequently, while sitting with another learned Judge, had changed his view following the other two judgments which cited above, in the Governmen of Tamil Nadu and others-vs-S.Arulmani in W.A(MD)No.1118 of 2019, vide judgment dated 05.03.2012 after referring the Government Orders pertaining to fixation of pay scale of teachers, who rendered service under the Private School Management in a sanctioned post getting appointment in the Government School, had distinguished that a fresh appointee in the post of Secondary Grade Teacher cannot claim her past service under the private mangement. Thus, the judgments rendered by the Court consistently had held that the application of FR 22B can be extended only if there is a migration or transfer of one service to another. If the subsequent appointment is a direct recruit, there cannot be any mandatory benefit in view of the past service. The judgments rendered in case where the teachers were transferred from one department to another or migrated to one department to another cannot be relied as a precedent to extend the benefit to the teachers who had been recruited afresh directly by the Government through direct recruitment process. It is made clear in the catena of judgment cited above and reiterated again by the Division Bench in the Government of Tamil Nadu and others v. S.Arulmani, in the following terms:

                          “12. G.O.Ms.No.2357, dated 27.12.1983 and G.O.Ms.No.1580, dated 18.10.1969, relied upon by the writ petitioner, are not applicable to his case, since in those cases, the Teachers got prior permission from the Government for such transfer from one Department to another. Further, there is no specific provision in the Tamil Nadu Educational Subordinate Service Rules for transfer of appointee from one unit of Establishment or Department to another unit of Establishment or Department. In the absence of such Rules or specific orders from the Government, the request of the writ petitioner cannot be entertained and he has no merit in this case. But the learned Single Judge, without considering the above facts, allowed the Writ Petition and hence, the same may be set aside.

                          15. In this regard, the learned counsel for the writ petitioner drew the attention of this Court to G.O.Ms.No.1580, Education Department, dated 18.10.1969 and submitted that the said G.O. provides for protection of last drawn pay to the Teachers, who resigned service from one Management and joined another Management. Similarly, in G.O.Ms.No.2357, Education, Science and Technology Department, 27.12.1983, the Government of Tamil Nadu delegated power to the Director of Elementary Education to grant the last drawn pay to the Secondary Grade Teachers, who had resigned from service in Anglo Indian Schools and joined as a teacher in Aided Schools. Those two G.Os. are issued to protect the last drawn pay of the Teachers, who are transferred from one post to another post, which carries same scale of pay. Since the petitioner was transferred from one Government Department to another Government Department, he stands on better footing than the teachers working in the Aided Schools. Therefore, following the said G.O.s, the writ petitioner is entitled for the last drawn pay protection. Thus, the learned Single Judge has rightly extended the benefits of the said G.Os. to the respondent/writ petitioner. Therefore, there is no infirmity in the said order, and thus, he sought for dismissal of the Writ Appeal.

                          21. On a perusal of the appointment order dated 23.07.1999 issued by the District Elementary Educational Officer, Namakkal, we find that the writ petitioner was appointed as a fresh appointee in the post of Secondary Grade Teacher in the pay scale of Rs. 4500-125-7000 as per the list sponsored by the District Employment Exchange. Further, absolutely no documentary evidence was produced by the writ petitioner to show that he was transferred from the Social Welfare Department to the Education Department.”

                          12. The learned counsel appearing for the respondent submitted that recently the learned Single Judge of this Court, in R.Lilly Theras vs. the Government of Tamil Nadu, vide order dated 14.03.2024, has followed the judgment rendered in W.A.No.3868 of 2019, The Secretary to State Government and another -vsG.Rufus David, and has allowed the writ petition extending the benefit of FR and refixation of pay scale. With great respect to the learned Single Judge, it is noted that though the judgment of S.K.Kannan v. The Director of School Education, and others, in W.A(MD)No.627 of 2022 was brought to the notice of the learned Single Judge, he had observed that the dictum laid in the S.K.Kannan judgment will not apply to the case in hand. He had distinguished the case under his consideration with that of the fact in S.K.Kannan's case. According to this Court, since the facts in S.K.Kannan's case as well as the S.Arulmani case and L.Esakkiraj case, are identical to the facts of the case in hand and bound by the judgments rendered by the equallent strength, allow the writ appeal following the three judgments which is based on the dictum laid down by the Hon'ble Supreme Court in Palure Bhaskar Rao Etc. Etc. v. P. Ramaseshaiah & Ors,”

10. In the light of the binding precedents extracted above, I do not find any merit in the present writ petition. The writ petitioner is not entitled to compel the Department to take into account her services in a private school under the self-financed/ unaided post.

11. The Writ Petition fails and it is dismissed. No costs.