Can't Claim Specific Post When Two Posts Are In The Same Cadre With Identical Pay Scale: Madras High Court

Madras High Court has recently iterated that when two posts carry equivalent scale of pay and are treated as equal categories under the Rules, the petitioners have no right to claim a particular post as a matter of right or choice.

The Madurai bench of Madras High Court underscored that when the service conditions are not infringed from and out of the administrative transfers effected, the Government employees have no right to claim a specific post as their choice.

Justice S M Subramaniam was hearing a plea made by petitioners who were initially appointed as B.T.Assistants (Bachelor of Teaching) and some others who were promoted as B.T.  Assistants from the post of Secondary Grade Teacher. Petitioners belonging to both categories has passed the Deputy Inspector's Test and were qualified to be transferred and appointed as Deputy Inspector of Schools, an equivalent cadre carrying identical pay scale. Since they met the requirements under Special Rules for Tamil Nadu Educational Subordinate Service, they were appointed as Deputy Inspectors.

The petitioners were challenging the 6th January notification by the Joint Director of School Education directing the District level Chief Educational Officers to make administrative transfers and accordingly post these Deputy Inspectors as B.T Assistants by 7th January.

The court pointed out that the Rules specify that graduate teachers become eligible for appointment as Deputy Inspectors once they succeed in the tests envisaged under Rule 8. However, the tests under Rule 8 are given since the Deputy Inspector Post involves administrative duties. The court, therefore, noted as below:

"However, the fact remains that the posts of Deputy Inspector of Schools and Graduate Teacher are equivalent categories and carrying identical scale of pay. That exactly is the reason why there is no separate provision for appointment contemplated to fill up the post of Deputy Inspector of Schools. Appointment is to be made by transfer from the equivalent category and once such transfer is made, then those employees are liable to be re-transferred and other Graduate Teachers waiting for the post of Deputy Inspector of Schools must be provided with an opportunity to work as Deputy Inspector of Schools in order to make public administration more effective and efficient".

Citing this reason, the court opined that indefinite periods of employment as Deputy Inspector would affect public administation and rights of other eligible graduate teachers.

The court observed that the new Special Rules issued in 2020 also allows the appointment to the post of Deputy Inspector of Schools is to be made by way of transfer from Category-2 of Class-I or Classes-II, III and IV in the service, contrary to the petitioner's submission that the appointments violate the new Rules. Pertinently, Category-2 of Class-I indicates Graduate Teachers (Subjects). Pointing out all these provisions, the court noted that there is a remarkable difference between the terminology used in the relevant rules, i.e, ' by transfer' and another term not included in the Rules, i.e, 'transfer from any service'.

"If a person is appointed from any other service as Deputy Inspector of Schools, then alone it may be contended that re-transfer is to be made only, if Rules permit. But, if the Rule contemplates "by transfer", then it is to be made only by way of transfer and the word "transfer" indicates that the posts of Deputy Inspector of Schools and Graduate Teacher (B.T.Assistant) are interchangeable as it carries identical scale of pay", the bench further added.

Therefore, the court concluded that both graduate teachers and deputy inspectors are categories that fall under the same Special Rules and the word 'transfer' adopted in the Rules indicate that both posts are interchangeable.

"...Status cannot be claimed in the Government service. When the service conditions are not infringed from and out of the administrative transfers effected, the Government employees have no right to claim the post as their choice. Thus, the petitioners have not established any right for the purpose of challenging the impugned orders nor they have established violation of the service conditions contemplated under the Rules", the court remarked before dismissing the challenge to the circular and terming the subsequent transfer orders as 'routine transfers'.

The court, therefore, elaborately discussed whether any of the service conditions of the employees have been violated by virtue of such transfers by extensively referring to the Special Rules for Tamil Nadu Educational Subordinate Service, 2020. The mode of appointment to the post of Deputy Inspector, as given in the Rules, state that the eligible B.T.Assistants, who possess the requisite qualification, are to be transferred as Deputy Inspectors. The court, therefore, reached the final conclusion that the Rules stipulate those Graduate Teachers who are appointed under Category-2 of the Special Rules and who have passed the tests contemplated under Rule 8 of the Special Rules become eligible for transfer to the post of Deputy Inspector of Schools.

The court inferred that once the appointment is made by way of transfer, then such employees are also liable to be re-transferred as B.T.Assistants. The court underscored that the post of Deputy Inspector is not a 'distinct category' as per the Rules. The court also noted that Rule 11 grants the Chief Educational Officer of each revenue district the power to make transfer/ postings of personnel belonging to all classes.

"...In the event of permanent absorption of these Deputy Inspector of Schools, the other eligible B.T.Assistants / Graduate Teachers will be deprived of their opportunity to serve as Deputy Inspectors of Schools. Such a situation would lead to discrimination amongst the equals, who are working in the equivalent category...", the court went on to observe.

While hearing the arguments, the Additional Advocate General appearing for the state had submitted that the petitioners have been working for over 10 years and all of them cannot continue in the same post, thereby jeopardising public administration and the rights of other qualified employees who can be transferred to the post of Deputy Inspectors. The AAG relied majorly on the apex court judgments in State of U.P. & Ors vs. Gobardhan Lal, (2004) 11 SCC 402 & B.Varadha Rao vs. State of Karnataka & Ors., (1986) 4 SCC 131.

He also added that the Tamil Nadu Education Department is revamping the entire School Education Department by transferring the teachers/employees working for long years in the same post or station.

Noting that transfer is incidental to the service of government employees, the court repeated that post or place can never be claimed as a matter of choice and infringement of service rights and service conditions must be demonstrated for interference by the court regarding the circular and administrative transfer orders, which the petitioners failed to do.

"...Even in the High Court, the Registrars are exercising administrative powers and they are in the cadre of District Judges. When they serve as Registrars in the High Court, they exercise administrative powers and they are liable to be re-transferred as District Judges for performing judicial works. Once the posts are interchangeable and by virtue of certain merits or additional qualifications, such persons are posted to perform administrative works on the identical scale of pay, then they cannot claim any right over the post", the court opined.

Case Title: O. Selvam & Ors v. The Commissioner of School Education & Ors & Connected Cases

Case No: W.P.(MD) Nos.429, 644, 787 & 807 of 2022

Citation: 2022 LiveLaw (Mad) 87

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