WP(MD)/17077/2020 of A.IGNATIUS Vs THE PRINCIPAL SECRETARY TO T on 7 October 2026

1. The Principal Secretary To The Government Department of School Education, Fort St. George, Chennai -9.

2. The Director of School Education, DPI Campus, Chennai -6

3. The Chief Educational Officer, O/o. the Chief Educational Officer, Dindigul District.

4. The District Educational Officer, O/o. the District Educational Officer, Dindigul District.

5. The Headmaster, Government Higher Secondary School, Vembarpatti 624 308, Dindigul District. ..Respondent(s)

Peppin Appadurai.T ..Petitioner(s) Vs

1. The State Of Tamil Nadu Rep. by its Secretary, Department of School Education, Fort St. George, Chennai -600 009

2. The Director of School Education, College Road, Chennai -600 009

3. The Chief Educational Officer, Tirunelveli District, Tirunelveli.

4. The Head Master, Government Higher Secondary School, Chettikulam, Thirunelveli District ..Respondent(s) WP(MD) No. 22279 of 2023 Felix Lourdu Raj A ..Petitioner(s) Vs

1. The State of Tamilnadu, Rep by its Secretary, Department of School Education, Fort. St. George, Chennai – 9.

2. The Director of School Education College Road, Chennai 600 009.

3. The Chief Educational Officer Thoothukudi, Thoothukudi District.

4. The District Educational Officer Kovilpatti, Thoothukudi District.

5. The Headmistress, Government High School, Karupur, Thoothukudi District. ..Respondent(s) WA(MD) No. 2079 of 2024

1. The District Elementary Educational Officer Office of the District Elementary Educational office Paramakudi Ramanathapuram District.

2. The Block Educational Officer (Beo 2) Office Of The Block Educational Officer (Beo2) Paramakudi Block, Ramanathapuram District ..Appellant(s) Vs Paul Valanarasu ..Respondent(s)

Jerald Arul Gnanapragasam, A ..Petitioner(s) Vs.

1. The State of Tamil Nadu Rep. by its Secretary, Department of School Education, Fort St. George, Chennai-600 009.

2. The Director of Elementary Education College Road, Chennai-600 009

3. The District Educational Officer (Elementary) Pudukottai, Pudukottai District

4. The Block Educational Officer Viralimalai Union, Viralimalai, Pudukottai District.

5. The Headmaster Panchayat Union Middle School, Velur, Viralimalai Union, Pudukkottai District. ..Respondent(s) WP(MD) No. 3643 of 2024 Rosy Vinola Grace. R ..Petitioner(s) Vs.

1. The State of Tamil Nadu, Rep by its Secretary, Department of School Education, Fort St.George, Chennai-600 009.

2. The Director of Elementary Education College Road, Chennai-600 009

3. The District Educational Officer (Elementary) Pudukkottai, Pudukkottai District

4. The Block Educational Officer, Kundrandarkovil Union, Keeranur, Kulathur Taluk, Pudukkottai District.

5. The Headmistress, Panchayat Union Primary School, Mettupatti, Kundrandarkovil Union, Pudukkottai District ..Respondent(s)

Prayer : Writ Petition filed under Article 226 of the Constitution of India, To issue a writ of Certiorarified Mandamus, to call for the records pertaining to the Impugned Order in Na.Ka.No. 150/2020-2021 dated 30.09.2020 on the file of the Respondent No.5 and quash the same as illegal and consequently for a direction, directing the Respondents No.3 to re-fix the scale of pay of the

Petitioner by taking into account the last drawn pay of the Petitioner while working in the post of B.T.Assistant at Government Aided School in the month of August 2010 with all consequential benefits in the light of Judgment of Madras High Court in W.P.No.32645 of 2018 dated 16.07.2019 and WP. (MD).No.452 of 2016 dated 27.11.2019 within the time period stipulated by this Court. WP(MD) No. 2069 of 2021 Prayer : Writ Petition filed under Article 226 of the Constitution of India, To issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned proceedings issued by the 3rd respondent Chief Educational Officer in Oo.Mu.No. 12104/A5/15 dated 09.01.2016 quash the same and further direct the respondents 1 - 3 herein to re-fix the petitioner’s salary on the basis of his last pay drawn in Government aided school as on 07.12.2010 with all arrears of salary and other benefits, and pass such further or other Suitable Order / orders as this Court may deem fit and proper in the circumstances of the case and thus render justice.

Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned proceedings issued by the 5th respondent Headmaster in Na.Ka.No.14/2023 dated --.07.2023 quash the same and further direct the respondents herein in re-fix the petitioners salary on the basis of his last pay drawn in R.C.Soosai Higher Secondary School, Kalugumalai, Thoothukudi District as on 05.01.2010 and pass such further or other orders as this Court may deem fit and proper in the circumstances of the case and thus render justice.

WA(MD) No. 2079 of 2024 Prayer : Writ Appeal filed Under Patent Clause 15 of Letters, to prefer this Memorandum of Grounds of writ appeal against the order dated 24-06-2024 passed by the Her Lordhsip Honourable Ms.Justice.R.N.MANJULA made in W.P.(MD).No.13460 of 2024 on the following among other. WP(MD) No. 3818 of 2024 Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus directing the respondents herein to re-fix the petitioner’s salary on the basis of his last pay drawn in Sri Kamatchiamman Primary School, Dheera Nagar, Trichy District on 06.04.2010.

Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this court to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned proceedings issued by the 3rd respondent District Educational Officer in O.Mu.No. 3270/A3/2020 dated 04.08.2021 and the consequential proceedings of the 4th respondent Block Educational Officer in O.Mu.No. 470/a2/2020 dated 05.08.2021 quash the same and further direct the respondents herein to re-fix the petitioners salary on the basis of her last pay drawn in St.Marys Primary School, Musiri, Trichy District on 06.04.2010 and pass such further or other orders as this Honble Court may deem fit and proper in the circumstances of this case and thus render justice.

For Petitioner(s): Mr.G.Karthik for M/s.T.Lajapathi Roy and Associates

For Respondent(s): Mr.B.Saravanan, Additional Advocate General assisted by Mr.K.Kannan, Government Advocate WP(MD) No. 2069 of 2021 For Petitioner(s): Mr.Isaac Mohanlal, Senior Counsel for M/s.A.Amala For Respondent(s): Mr.B.Saravanan, Additional Advocate General assisted by Mr.K.Kannan, Government Advocate WP(MD) No. 22279 of 2023 For Petitioner(s): Mr.Isaac Mohanlal, Senior Counsel for M/s.A.Amala For Respondent(s): Mr.B.Saravanan, Additional Advocate General assisted by Mr.K.Kannan, Government Advocate WA(MD) No. 2079 of 2024 For Appellant(s): Mr.B.Saravanan, Additional Advocate General assisted by Mr.K.Kannan, Government Advocate For Respondent(s): Mr.G.Karthik for M/s.T.Lajapathi Roy and Associates

For Petitioner(s): Mr.Isaac Mohanlal, Senior Counsel for M/s.A.Amala For Respondent(s): Mr.B.Saravanan, Additional Advocate General assisted by Mr.K.Kannan, Government Advocate WP(MD) No. 3643 of 2024 For Petitioner(s): Mr.Isaac Mohanlal, Senior Counsel for M/s.A.Amala

For Respondent(s): Mr.B.Saravanan, Additional Advocate General assisted by Mr.K.Kannan, Government Advocate

COMMON ORDER

Heard both sides. Noting the cleavage of opinion between the judgment rendered in Secretary to State Government v. G.Rufus David (WA No.3868 of 2019) and S.K.Kannan v. The Director of School Education (WA(MD)No.627 of 2022), the Hon’ble Division Bench comprising Their Lordships Mr.Justice N.Sathish Kumar and Hon’ble Mr.Justice M.Jothiraman made the following reference : “Whether the pay of a directly recruited candidate drawn in a post in Government Schools is to be fixed by taking into account the last pay drawn by him or her in an aided institution? ” The petitioners herein were working in private aided schools. Their service particulars are as follows : S.N o Case No. &Petitioner Name Previous Post &Place of Service Date of Appointme nt in Previous Post Date of joining New Post New Post &Place of Service

1. WP(MD) No.2069/2021, Peppin Physical Education Teacher, St.Michael Higher 10.07.2000 07.12.2010 Physical Education Teacher, Government Higher

Appadurai.T Secondary School ,Muthaloor, T.N.D.T.A. R.M.P. Pulamadan Chettiar National Higher Secondary School, Sattankulam, Secondary School, Kommadi Kottai, T.V.S.Government Higher Secondary School, Thrukurankudi, Government Higher Secondary School,Vallioor, Government Higher Secondary School, Chettikulam,

2. W.P(MD)No.22 279/2023,Felix Lourdu Raj.A Secondary Grade Teacher, R.C. Soosai Higher Secondary School, Kalugumalai 02.06.2000 06.01.2010 Secondary Grade Teacher, Panchayat Union Primary School, Naganur, Uthangarai Union, Krishnagiri District, B.T.Assistant, Government Higher Secondary School, Munnavalkottai, Tiruvarur District

3. WA(MD) No.2079/2024 Paul Valanarasu Secondary Grade Teacher, R.C. Susai Higher Secondary School, Kalugumalai ; R.C. Primary School, Meenampatti, Sivakasi 01.08.2001 12.01.2010 Secondary Grade Teacher, Panchayat Union Primary School, Siruvayal West, Nainarkovil, Ramanathapuram District ; Panchayat Union Primary School, Enathikootai, Paramakudi Block

4. WP(MD)No 3818/2024. Jerald Arul Gnanapragasam Secondary Grade Teacher, St. Joseph's Primary School, 11.12.2002 07.04.2010 Secondary Grade Teacher, Panchayat Union Primary School,

Punganur, Trichy ; Sri Kamachiamman Primary School, Dheera Nagar, Trichy Adhiranviduthi, Karambakudi Union, Pudukkottai District

5. WP(MD).3643/ 2024,R.Rosy Vinola Grace Secondary Grade Teacher, St. Mary’s Primary School, Musiri, Trichy District 06.09.2001 07.04.2010 Secondary Grade Teacher, Panchayat Union Primary School, Veerappatti, Kundrandarkovil Panchayat Union, Pudukkottai District

6. WP(MD)No.17 077/2020,A.Ign atius. B.T. Assistant at Our Lady of Lourdes Girls Higher Secondary School, Dindigul 04.03.1998 09.09.2010 B.T. Assistant at Government Higher Secondary School, Natham, Tirupathur, Vellore District ; Government Higher Secondary School, Vembarpatti, Dindigul District

2. When the Teachers Recruitment Board issued notification calling for applications from eligible candidates for being appointed to various posts in Tamil Nadu Educational Subordinate Service, the petitioners herein applied in response thereto. On being selected, they resigned their posts in the aided schools and joined the Government Schools without any break in service. Their pay in the Government Schools was fixed without taking into account their last drawn pay. They wanted re-fixation of their pay. Their request was rejected. Challenging the same, they moved this Court.

3. There are two streams of judicial opinion. In G.Rufus David v. The Secretary to State Government (WP No.32645 of 2018), a learned Judge of this Court vide order dated 16.07.2019 held that not taking into account the last drawn pay of the directly recruited candidates would run counter to G.O.Ms.No.367 Education Science and Technology Department dated 30.03.1984. Questioning the same, the Government filed WA No.3868 of 2019. The Hon’ble Division Bench vide order dated 21.09.2020 dismissed the writ appeal. Aggrieved by the same, the Government filed SLP (C) No.5633 of 2021. The Hon’ble Supreme Court declined to interfere vide order dated 12.04.2021. Rufus David was followed in S.Arul David Pratap Singh (WP(MD)No.15745 of 2013), S.Jayakumar V. The State of TN (WP(MD)No.14704 of 2014 etc.,). However, another Hon’ble Division Bench in S.K.Kannan V. The Director of School Education (WA(MD)No.627 of 2022) (PNPJ and RVJ) struck a contra note. It was held that a person directly recruited to a post in a Government School cannot claim the benefit of pay protection by taking note of the last drawn pay in an aided school.

4. Faced with these conflicting views, one of us (LVGJ) in WP(MD)Nos.17077 of 2020, WP(MD)Nos.2069 and 18949 of 2021 sought reference to a larger Bench. In P.Sekar V. Government of Tamil Nadu (WP No.27231 of 2022), a learned Judge of this Court, after noting the conflict of views in Rufus David and S.K.Kannan, chose to follow Rufus David. FR 26(c) r/w. G.O Ms.No.367 dated 30.03.1984 was relied upon to justify Rufus

David. R.Lilly Therasa (WP No.12804 of 2023), Paul Valanarasu (WP(MD)No.13460 of 2024), S.Manjula (WP(MD)No.14797 of 2021) and A.S.Zahir Hussain (WP(MD)No.10314 of 2023) also batted for pay protection. On the other hand, the Division Bench comprising Their Lordships Dr.Justice G.Jayachandran and Ms.Justice R.Poornima swayed by S.K.Kannan, allowed the State Government’s appeal in W.A.(MD)No.686 of 2022.

5. We are now at crossroads. We have been called upon to make a choice between G.Rufus David and S.K.Kannan. The choice will be Frostian and not Faustian.

6. Let us first examine the primary reason underlying the decision rendered in Rufus David. The Hon’ble Division Bench in Rufus David was of the view that G.O Ms.No..367 dated 30.03.1984 has to be applied to ensure pay protection for the persons migrating from aided schools to Government schools. Let us, therefore, go to the G.O. G.O Ms.No.367 reads as follows : "Government of Tamil Nadu Abstract Schools - Promotion to Higher Posts - Minimum increase of 5% in pay - Applicability to schools under aided and local bodies - Orders - Issued. ----------------------------------------------------------------------- "Department of Education Science & Technology G.O.Ms.No.367 Dt. 30.03.84 Read:

1. G.O.Ms.No.588, Personnel & Administrative Reforms (FR.I) Department, dt. 6.6.1981.

2. Letter No.55146, Personnel & Administrative Reforms (FR.I) Department, dt. 21.11.1981

3. From the Director of School Education Letter No.359254/D2/82, dated 10.12.1982 and 12.1.1983. In the G.O. read above, orders were issued to the effect that on promotion to higher post in the same service or appointment to another service by the method of recruitment by transfer involving higher responsibilities, the pay of the Government servant shall be fixed under the relevant provisions under the Fundamental Rules and that, if such fixation to a higher post carrying higher responsibility confers monetary benefit of less than 5% over his pay in the lower post, his pay shall be fixed in the higher post in such a way so as to ensure a minimum benefit of atleast 5% over his pay in the lower post. The Government have also issued certain clarifications on the applicability of the above order, in their letter read above.

2. It has been brought to the notice of the Government that the above benefit has not been given to the teachers working in schools under the management of aided agencies and local bodies. The Government now direct that the above orders will be applicable to the staff employed in all recognised schools under the management of aided agencies and local bodies.

3. It is also been represented to Government that higher grade teachers who are appointed in the upgraded post of Secondary Grade Teachers sanctioned with reference to the orders in G.O. Ms. No.699, Education dated 25.04.1979 may be given the benefit of fixation of pay under F.R.22 (B). The procedure enunciated under F.R. 22 (B) for fixation of pay can be applied when the appointment is made by promotion to higher posts involving higher responsibilities. As per Rule 2 (a) of the Special Rules for the Tamil Nadu Educational Sub- Ordinate Service, the post of secondary grade teachers shall be filled in by promotion from the category of higher grade teachers, as the post of Secondary Grade Teacher carries a higher pay of Rs.350- 10- 420-15-600 with higher duties and responsibilities than the post of Higher Grade Teacher which carry the scale of pay of Rs.280-5-320- 10-450. Therefore, the higher grade teachers upgraded as Secondary Grade Teachers as per theorder in G.O. Ms. No.699, Education dated 25.04.1979 are appointed as Secondary Grade Teacher by promotion from the category of Higher Grade Teacher as per rules, as upgradation is not a method of appointment under the said rules.

Therefore, the Government direct that the appointment of Higher Grade Teachers in upgraded posts of Secondary Grade Teacher sanctioned with reference to the orders in G.O. Ms. No.699, Education dated 25.04.1979 be entitled for fixation of pay under F.R.22 (B) and the benefit of the orders referred to in para 1 above be extended to these appointments also. However, such fixation of pay in the upgraded post of Secondary Grade Teachers can be done only after getting a certificate from the Deputy Inspectors of Schools concerned to the effect that the teachers concerned are actually handling higher responsibilities similar to those of any other secondary grade teachers, consequent on the upgradation of their posts. This order will apply to the teachers employed in all schools under all kinds of managements viz., Government Aided and Local Bodies." The aforesaid G.O is applicable only to a case of recruitment by transfer. Appointment can be in various modes. It can be by way of a) direct recruitment, b) promotion or c) recruitment by transfer. Each one is distinct from the other. Direct recruitment cannot in any way be compared to recruitment by transfer. Statutes themselves recognise the distinction between the two. For instance, the Hon’ble Supreme Court in the decision reported in (2008) 2 SCC 161 (Jitendra Kumar Vs. State of Haryana) cited Section 2(vii) of the Haryana Civil Service (Executive Branch) and Allied Services and Other Services Common / Combined Examination Act, 2002 which reads that direct recruitment means recruitment by open competition but does not include a) appointment by promotion; or b) appointment by transfer of an officer already in the service of any State Government or Government of India. The First Bench of Madras High Court in T.Manthiramoorthy Vs. Tamil Nadu Water Supply and Drainage Board ((2016) 4 CTC 113) was confronted with the question if communal roster can be applied in the case of recruitment by transfer. The statutory regulations mandated that the principle of reservation of appointments shall apply in case of direct recruitment. Since the case before the court pertained to recruitment by transfer, the Hon’ble First Bench held that the principle of reservation could not have been applied and allowed the appeals. This judgment is a clear authority for the proposition that the direct recruitment and the recruitment by transfer are not one and the same but distinct.

7. K.Rajaiah Vs. State of A.P. (1987 Supp. SCC 345) is a more direct ruling that points to the fundamental distinction between the two. The appellant therein was appointed to the post of Reserve Sub-Inspector of Police. When the State of A.P. invited applications for the post of Sub Inspector of Police (Civil), the appellant applied for the said post and was selected and appointed. He was on probation and was subsequently confirmed in the post. He wanted the period of service as reserve Sub Inspector to be included while computing his seniority in the new post of SI of Police (Civil). His request was accepted by the Government. The order placing Thiru.Rajaiah above others was questioned by a number of Sub Inspectors of Police(Civil). The Andhra Pradesh Administrative Tribunal struck down the Government Order and directed that Rajaiah would be accorded seniority from the date when he joined the post of SI of Police(Civil) as a direct recruit. Questioning the same, Rajaiah filed appeal by Special Leave before the Supreme Court. The Hon’ble Supreme Court framed the question involved in the appeal in the following terms:-

“Whether the appellant was appointed to the post of SI of Police(Civil) as a direct recruit or was recruited in that post by transfer or was simply transferred to that post from the post of Reserve Sub Inspector of Police following his selection as a direct recruit?” The Hon’ble Supreme Court noted that having applied for the post of SI of Police (Civil) pursuant to an advertisement issued by the Police Department inviting applications for appointment to the said post by direct recruitment in a particular pay scale and succeeding in the selection process, he cannot be heard to argue that his appointment should be considered under the “transfer category”. The Hon’ble Supreme Court emphasised the fact that the notification itself made it clear that the appointment was to be by direct recruitment. In that view of the matter, the appeal was dismissed. The observations made in paragraph No.11 are particularly significant: “Although a Government servant can be transferred from one post to another, but when he chooses to get himself recruited to that another post after subjecting himself to all requirements and formalities of direct recruitment along with other independent candidates and is confirmed after satisfactory completion of the probationary period, his appointment as a direct recruit cannot be substituted by an order of transfer to the prejudice of the other direct recruits in the matter of computation of seniority.”

The Hon’ble Supreme Court went on to observe that even though the appellant therein had not resigned from the post of Reserve Sub Inspector of Police(Civil) and the Government allowed him his last drawn pay as Reserve Sub Inspector of Police on his appointment as Sub Inspector of Police(Civil), that would not wipe out the appointment of the appellant as a direct recruit.

8. Tamil Nadu Government Servants (Conditions of Service) Act, 2016 also makes a clear distinction between a person “recruited direct to a service” and a person “recruited by transfer to a service”.

9. In the light of the foregoing precedents as well as the statutory position, there cannot be any doubt that a person who has been directly recruited cannot claim any benefit under G.O Ms.No.367 dated 30.03.1984 which will apply only in the case of those recruited by transfer or promotion.

10. Having come to the conclusion that the reasoning that underpins Rufus David is flawed, are we to take a different view because the Hon’ble Supreme Court dismissed the SLP filed against it. In fact, S.K.Kannan took note of the said fact and gave convincing reasons for not being dissuaded. It is well settled that when the Hon’ble Supreme Court declines to interfere with the judgment of the High Court by a non-speaking order, the doctrine of merger is not attracted (vide Kunhayammed v. State of Kerala, (2000) 6 SCC 359).

11. Kunhayammed is an authority for the proposition that dismissal of the SLP by a non-speaking order would not mean that the Hon’ble Supreme Court concluded that the judgment of the High court was right. Considering the facts and circumstances of the case, it chose not to intervene. Therefore, the precedential status of such a judgment is not in any way enhanced.

12. The learned Senior counsel appearing for the writ petitioners submitted that in any event, the Division Bench hearing S.K.Kannan could not have taken a contra view. It ought to have referred the matter to a Larger Bench. He submitted that in one case, the Hon’ble Supreme Court set aside the decision of the High Court of Calcutta on the sole ground that it had not followed a decision of a coordinate Bench. We endorse the said contention of the learned Senior Counsel appearing for the petitioners. A coordinate Bench or a Bench of equal strength cannot strike a contra note. In normal circumstances, it ought to refer the matter to a larger bench. But where a coordinate Bench or even a Bench of lesser strength notes that the view of the earlier Bench is in gross violation of the principles of natural justice or it runs counter to the decision of the Supreme Court, it is not obliged to make a reference. Likewise, if a material statutory provision has been ignored, that would also be a good ground for ploughing one’s own furrow instead of walking on the beaten track. In this case, the subsequent Division Bench noted that Rufus David failed to take into account the relevant provisions of Special Rules for Tamil Nadu

Higher Secondary Educational Service. The Hon’ble Division Bench extracted them and noted that the statutory rule speaks of different methods of recruitment. One is direct recruitment and the other is recruitment by transfer from the Tamil Nadu Educational Subordinate Service. Only if no qualified and suitable candidates are available by recruitment by transfer, recourse can be had to recruit by transfer from any other service. Only a person appointed by direct recruitment will have to be on probation for a period of two years on duty within a continuous period of three years. On the other hand, a person appointed by recruitment by transfer should be on probation for a period of just one year within a continuous period of three years. Thus, the statutory rules clearly differentiate between the persons who are appointed through direct recruitment and those who are appointed by transfer of service. The doctrine of per incuriam which is an exception to the doctrine of precedent is applicable when a relevant statutory provision, rule or regulation was not brought to the notice of the Coordinate Bench (vide Parveen Kumar Vs. State of Haryana 2026 INSC 667). S.K.Kannan has demonstrated that Rufus David is per incuriam. We, therefore, do not subscribe to the criticism mounted by Thiru.Isaac Mohanlal, Senior counsel.

13. Quite a few single judges have invoked FR 22(B) to sustain the claim that pay protection should be given. FR22(B) is as follows : 22-B. Nothwithstanding anything contained in these rules, where a Government servant holding a post in a substantive or officiating capacity, is promoted or appointed in a substantive or officating capacity, to another post carrying duties and responsiblities of greater importance than those attaching to the post held by him, his initial pay in the timescale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment, at the stage at which such pay has accrued. If the monetary benefit after such fixation falls short of five per cent of the pay drawn in the lower post, his pay in higher post shall be so fixed, allowing a minimum increase of five per cent of the pay 37 drawn in the lower post. Where the pay drawn in the lower post on the date of promotion or appointment plus five per cent of the pay drawn in the lower post is a stage in the time-scale of pay of the higher post, the pay shall be fixed at such stage in the time- scale of pay of the higher post. Where the pay drawn in the lower post on the date of promotion or appointment plus five per cent of the pay drawn in the lower post exceeds the amount arrived at for fixation of pay in the higher post under this rule but where there is no corresponding stage in the time-scale of pay of the higher post, the pay shall be fixed at the next higher stage in the time- scale of pay of the higher post. FR 22B will apply only to promotion or appointment to another post carrying duties and responsibilities of greater importance. This FR can be pressed into service only if the person concerned is already a Government servant. The petitioners herein cannot invoke the said fundamental rule(FR).

14. The learned Senior Counsel for the petitioners eloquently submitted that the petitioners herein are entering Government Service with a rich experience and that therefore they should be put on different footing altogether. He also added that had they continued in their earlier institutions, they would be getting a particular pay which will now have to be paid by the Government and that there is no loss of revenue for the Government in the real sense. This submission does have a strong moral dimension. But then, matters of pay cannot be determined by such considerations. The writ petitioners were working in private schools. For certain reasons, they chose to move to the Government service. They applied in response to a public recruitment notification. When the notification itself clearly spelt out that they will be drawing a different scale of pay in the event of they being appointed, the question of legitimate expectation does not arise at all. In fact, the principle of estoppel can be invoked against them. The conditions of service in Government employment can be better than in private institutions. A Government servant has certain higher rights. He has greater security of tenure. Probably for these reasons, the petitioners chose to quit their earlier employment. It is true that there is no break in service. But that would not make any difference. The ruling in K.Rajaiah Vs. State of A.P. (1987 Supp. SCC 345) applies to the case on hand on all fours. In that case, seniority was the issue. But seniority cannot be divorced from the pay that one draws. If a person ranking below in seniority draws a higher pay, that itself would lead to several anomalies. When several persons join a post as direct recruits, they

have to be on the same footing. Their inter se positions will be determined by their merit ranking. A direct recruit higher in the merit ranking which in turn would determine his seniority cannot draw a lower pay compared to another direct recruit placed below him. That would be grossly unfair to him. If the submission of the petitioners is accepted, that would amount to creating two classes of employees within a given homogenous group. When the legislature did not contemplate a division among the directly recruited candidates, it would not be open to the writ Court to drive a wedge among them. That would be inequitable also.

15. It is true that the petitioners herein had only technically resigned from their earlier posts in the aided schools. There was also no break in service. But that would not make any difference. Rajaiah again comes in the way of the petitioners. That was a case where the appellant did not even resign. The Government had given him pay protection. Yet the Supreme Court held against him. The petitioners herein are not placed on a better footing.

16. For the foregoing reasons, we hold that the pay of a directly recruited candidate drawn in a post in government schools cannot be fixed by taking into account the last pay drawn by him or her in an aided institution. The reasons assigned by the Hon’ble Division Bench in S.K.Kannan for dissenting from Rufus David appeal to us. We hold that S.K.Kannan was rightly decided and that the view taken in Rufus David and the other decisions which followed it are incorrect. The reference is answered accordingly.

17. In the result, while the writ appeal is allowed, the writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. (G.R.S.,J.) (B.P.,J.) (L.V.G.,J.) 07 -10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No SKM To

1. The Principal Secretary To The Government Department of School Education, Fort St. George, Chennai -9.

2. The Director of School Education, DPI Campus, Chennai -6

3. The Chief Educational Officer, O/o. the Chief Educational Officer, Dindigul District.

4. The District Educational Officer, O/o. the District Educational Officer, Dindigul District.

5. The Headmaster, Government Higher Secondary School, Vembarpatti 624 308, Dindigul District.

6. The Chief Educational Officer, Tirunelveli District, Tirunelveli.

7. The Head Master, Government Higher Secondary School, Chettikulam, Thirunelveli District

8. The Chief Educational Officer Thoothukudi, Thoothukudi District.

9. The District Educational Officer, Kovilpatti, Thoothukudi District.

10. The Headmistress, Government High School, Karupur, Thoothukudi District.

11. District Elementary Educational Officer Office of the District Elementary Educational office Paramakudi Ramanathapuram District.

12. The Block Educational Officer (Beo 2) Office Of The Block Educational Officer (Beo2) Paramakudi Block, Ramanathapuram District

13. The District Educational Officer (Elementary) Pudukottai, Pudukottai District.

14. The Block Educational Officer, Viralimalai Union, Viralimalai, Pudukottai District.

15. The Headmaster Panchayat Union Middle School, Velur, Viralimalai Union, Pudukkottai District.

16. The District Educational Officer (Elementary) Pudukkottai, Pudukkottai District.

17. The Block Educational Officer, Kundrandarkovil Union, Keeranur, Kulathur Taluk,Pudukkottai District.

18. The Headmistress, Panchayat Union Primary School, Mettupatti, Kundrandarkovil Union, Pudukkottai District

G.R.SWAMINATHAN J. AND B.PUGALENDHI J. L.VICTORIA GOWRI J. SKM WP(MD) Nos. 17077 of 2020, 2069 OF 2021, 22279 OF 2023, 3643 OF 2024, 3818 OF 2024 and WA(MD)No.2079 OF 2024, AND WMP(MD) NO. 15763 OF 2021, CMP(MD) NO. 14772 OF 2024 & WMP(MD) NO. 18560 OF 2023 07.10-2026