Teachers directly recruited from aided schools to government posts cannot claim pay protection, Madras High Court rules after resolving conflicting judgments

The petitioners had served as teachers in private aided schools and, after responding to public recruitment notifications and being selected, resigned from those posts and joined Government schools without a break in service.

Their Government pay was fixed without reference to their last pay in the aided schools.

After their requests for pay refixation were rejected, they filed writ petitions; the State also appealed against an order granting pay protection in a connected case.

The reference arose from conflicting Division Bench decisions: *G. Rufus David*, which supported pay protection, and *S.K. Kannan*, which denied it.

1. Whether the pay of a person directly recruited to a Government-school post may be fixed by taking into account the last pay drawn in an aided institution.

2. Whether G.O.Ms.No.367 dated 30 March 1984 or Fundamental Rule 22-B provides a basis for such pay protection to a direct recruit from an aided school.

G.O.Ms.No.367, Education, Science and Technology Department, dated 30 March 1984 provides for a minimum pay benefit in specified cases involving promotion or appointment to another service by recruitment by transfer; it does not extend that benefit to direct recruitment.

Fundamental Rule 22-B governs pay fixation on promotion or appointment to a post carrying duties and responsibilities of greater importance, and applies to a Government servant; it does not apply to the petitioners, who entered Government service through direct recruitment.

Direct recruitment and recruitment by transfer are distinct modes of appointment; the Court relied on *Jitendra Kumar v. State of Haryana*, (2008) 2 SCC 161, *T. Manthiramoorthy v. Tamil Nadu Water Supply and Drainage Board*, (2016) 4 CTC 113, and *K. Rajaiah v. State of A.P.*, 1987 Supp. SCC 345.

A non-speaking dismissal of a special leave petition does not attract the doctrine of merger or enhance the precedential status of the High Court decision.

A coordinate Bench may depart from an earlier decision where a relevant statutory provision was overlooked and the earlier decision is per incuriam.

The petitioners entered Government service through open direct recruitment, not recruitment by transfer; the fact that they had prior aided-school service and no break in service did not alter the legal mode of their appointment.

The Court therefore held that G.O.Ms.No.367 and FR 22-B could not support their claims for pay protection.

It considered *K. Rajaiah* applicable notwithstanding the difference that the issue there concerned seniority, observing that prior service or pay protection did not convert a direct appointment into a transfer.

The Court also held that the non-speaking dismissal of the State’s SLP against *Rufus David* did not prevent reconsideration of that decision, and agreed with *S.K. Kannan* that *Rufus David* had failed to account for the relevant statutory rules distinguishing direct recruitment from recruitment by transfer.

It held *S.K. Kannan* correctly decided and *Rufus David* and the decisions following it to be incorrect.

The writ appeal was allowed, the writ petitions were dismissed, and there was no order as to costs; the connected miscellaneous petitions were closed.