Madras High Court
The Government Of Tamil Nadu vs S.Govindan .. 1St on 8 July, 2021
W.A.(MD)No.1299 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.1299 of 2020
and C.M.P.(MD) No.7424 of 2020
1.The Government of Tamil Nadu,
Represented by its Secretary to Government,
(School Educational and Elementary
Educational Department),
Fort St. George, Chennai – 600 009.
2.The District Educational Officer,
Sivakasi, Virudhunagar District. .. Appellants/1st & 2nd Respondents
Vs.
1.S.Govindan .. 1st Respondent/Writ Petitioner
2.The Secretary,
Nadar Higher Secondary School,
Watrap – 626 132,
Virudhunagar District. .. 2nd Respondent/3rd Respondent
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent,
praying to set aside the order dated 28.02.2020, in W.P.(MD)No.58 of
2019.
For Appellants : Mr.R.Baskaran
Standing Counsel for Government
For Respondent No.1 : Mr.T.Pon Ramkumar
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W.A.(MD)No.1299 of 2020
JUDGMENT
***************
[Judgment of the Court was delivered by T.S.SIVAGNANAM, J.]
Heard Mr.R.Baskaran, learned Standing Counsel for
Government, appearing for the appellants and Mr.T.Pon Ramkumar,
learned counsel for respondent No.1.
2.This Writ Appeal filed by the State is directed against the
order dated 28.02.2020, in W.P.(MD) No.58 of 2019. The said Writ Petition
was filed by the first respondent challenging the Government Order in
G.O.Ms.No.83 School Education (Elementary Education 1 (2))
Department, dated 28.04.2017, of the first appellant insofar as the clause
refusing to give monetary benefits from the date of appointment/date of
passing higher qualification and refusing to extend the benefits to those
appointments made before and after 1997 to 2000 alone and the
consequential order passed by the second appellant in O.Mu.No.
4149/A3/2018, dated 06.12.2018, and to award incentive increments to
the first respondent/Writ Petitioner for his M.A. Degree with effect from
02.06.2003. The Writ Petition was allowed by the learned Single Judge.
Aggrieved by the said order, the appellants have filed this Writ Appeal.
3.It is not disputed by the appellants that an identical issue was
considered by us in the case of The Government of Tamil Nadu, Rep.
by its Secretary to Government, School Education and Elementary
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W.A.(MD)No.1299 of 2020
Education Department, Chenni and two others v. K.Muniyandi and
another in W.A.(MD) No.616 of 2021, dated 17.04.2021. The only
distinction between the fact of the said case and the case on hand is the
Higher Qualification was M.Ed. Degree, whereas in the case on hand is
M.A. Degree. After taking note of the contentions, which was advanced
before us and not specifically advanced before the learned Single Judge,
we dismissed the appeal filed by the Government. The operative portion
of the judgment reads as follows:
“6.Before us, the learned Special Government
Pleader raised a different contention, which was not
specifically raised before the learned Writ Court. The
contention being that the first respondent has acquired his
M.Ed. in the year 1998 and on the said date the first
respondent having not completed the one month Child
Psychology Training given to Graduate Teachers, who were
appointed as Secondary Grade Teacher between 11.07.1995
to 19.05.1998, would not be entitled to any benefit on account
of acquiring such higher qualification.
7.The undisputed facts are that the first respondent,
a graduate teacher was appointed as secondary grade teacher
and the Government by G.O.Ms.No.559, Education, Science
and Technology Department, dated 11.07.1995, directed
cancellation of the appointments on the ground that they do
not possess a Diploma in Teacher Education. The fact being
that due to lack of candidates possessing Diploma in Teacher
Education, Graduate Teachers were appointed as Secondary
Grade Teachers with a specific condition that they will not
claim B.T. Assistant Scale or will not claim incentive
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W.A.(MD)No.1299 of 2020
increment for B.Ed. degree. The Government by G.O.Ms.No.
113, School Education [S1] Department, dated 14.03.1997,
taking into account the non-availability of SC/ST candidates in
Employment Exchange, permitted appointment of Graduate
Teachers in both Government and Private Schools. The first
respondent/writ petitioner is a Scheduled Caste candidate
and appointed as Secondary Grade Teacher on 03.01.1997
with a condition that he will not claim incentive increments
for his B.Ed. qualification. The appointment was approved on
08.05.1998, subject to certain conditions. Since the
Government issued G.O.Ms.No.559, Education, Science and
Technology Department, dated 11.07.1995, seeking to cancel
the appointment of Graduate Teachers in Secondary Grade
Teachers post, Writ Petitions were filed by the first
respondent and others. However, all of them were dismissed
by order dated 19.05.1998. Subsequently, the first respondent
and other similarly placed persons had filed Writ Appeals and
continued to work as Secondary Grade Teachers. During the
year 1998, the first respondent sought permission from the
Department and pursued M.Ed. qualification and after
obtaining permission, he had secured the M.Ed. qualification
in the year 1989. Even thereafter, in the year 1999, by
G.O.Ms.No.301, School Education Department, dated
15.10.1999, the Government permitted appointment of
Graduate Teachers in both Government and Private Schools
due to non-availability of SC/ST candidates. The Writ Appeals
were disposed of by a common judgment, dated 09.06.2001,
in the case of Secretary & Correspondent Uswathun
Hasana Oriental (Arabic) Girls Higher Secondary
School v. The State of Tamil Nadu [2002 W.L.R. 173]
with a direction to the appellant Department to approve the
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W.A.(MD)No.1299 of 2020
appointments, which were made between 11.07.1995 to
19.05.1998 and also leaving it open to the Government to give
them proper training. Accordingly, G.O.Ms.No.155, School
Education Department, dated 03.10.2002 was passed and the
Government directed the first respondent and other similarly
placed persons to undergo one month Child Psychology
Training. There was a specific condition that only after
competition of the training, the salary will be fixed and in
respect of those Secondary Grade Teachers, who have
received salary already were directed to refund the same and
ordered re-fixation of salary and calculation of pension period
only from the date of completion of Child Psychology
Training. Challenging G.O.Ms.No.155, School Education
Department, dated 03.10.2002, batch of Writ petitions were
filed. In the meantime, the first respondent was sent for
training and he underwent the same between 02.05.2003 and
31.05.2003 and taking into consideration the completion of
the training, the appointment of the first respondent was
approved with effect from 02.06.2003. The Writ petitions
challenging G.O.Ms No. 155, School Education Department,
dated 03.10.2002, were disposed of by the decision in The
State of Tamil Nadu & others v. Pallivasal Primary
School [2004-2-L.W. 591], whereby, the order of recovery
was set aside and in respect of the teachers who did not
receive the salary, it was held that they are not entitled for
arrears. Further, it was held that only from the date of
completion of Child Psychology Training, the pay will be fixed
and the past services of the teachers can be counted for
pension. Since claims for payment of incentive increment
were made and were not granted, batch of Writ Petitions in
W.P.(MD) No. 21895 of 2015 etc,. batch were filed, which
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W.A.(MD)No.1299 of 2020
were allowed by order dated 08.12.2015, following the
decision R.Premkumari (supra). The appellants against the
said order filed appeals in W.A.(MD) No. 895 of 2013 etc.,
batch cases, which were dismissed on 05.03.2018. The
Government by G.O.Ms.No.83, School Education (Elementary
Education) 1(2) Department, dated 28.04. 2017, directed
grant of incentive increment to Secondary Grade Teachers,
who were appointed between 1997 to 2000 with effect from
28.04.2017. Based on the said Government Order, the first
respondent was granted incentive increment for acquiring
M.Ed. Qualification, notionally and monetary benefits with
effect from 28.04.1997 and therefore, the first respondent
was aggrieved, resultantly, constrained to challenge that
portion of the Government Order and the consequential relief
for securing M.Ed. qualification from 02.06.2003, the date on
which the first respondent’s appointment was approved.
8.The argument of the learned Special Government
Pleader is that M.Ed. qualification acquired by the first
respondent was prior to the approval of his appointment
which he acquired in the year 1989 and whatever
qualification which was acquired by him earlier to 02.06.2003
cannot be considered. In this regard, the learned Special
Government Pleader had referred to the decision of this Court
in Secretary & Correspondent, Uswathun Hasana
Oriental (Arabic) Girls Higher Secondary School v. The
State of Tamil Nadu [2003 Writ L.R. 173] and in the
Pallivasal Primary School (supra). It is further submitted
that in the decision Pallivasal Primary School (supra), the
Hon’ble Division Bench, held that the teachers right to be
regarded as persons eligible for confirmation / approval can
be said to arise only after they acquired, after their training, a
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W.A.(MD)No.1299 of 2020
minimum prescribed qualification and that the Government
has shown great concession to them by allowing them to
retain their position even without obtaining the requisite
diploma or certificate in Child Psychology. Therefore, it was
held that there is nothing wrong in Government directing that
their approval / confirmation can be only be on and after the
date they complete the training and their past service,
however, shall count for pension.
9.The decision in R.Premkumari (supra) and
Pallivasal Primary School (supra) cannot support the stand
taken by the learned Special Government Pleader. It is not in
dispute that the first respondent’s appointment has been
approved from 02.06.2003. The first respondent has not made
any claim for payment of incentive increment from the date
anterior to 02.06.2003. The fact that G.O.Ms.No.83, School
Education (Elementary Education) 1(2) Department, dated
28.04.2017, directed grant of incentive increment to
Secondary Grade Teachers, who where appointed between
1997 to 2000, was not disputed. Rather, the Government
Order confirmed that the Secondary Grade Teachers, who
were appointed between 1997 and 2000 were entitled to
incentive increments for acquiring higher qualification. The
only issue is with regard to the date from which the monetary
benefit was granted i.e., 28.04.2017 and the question would
be whether monetary benefit can be restricted to 28.04.2017,
the date of the Government Order, when the Government
Order notionally grants the same from the date of acquiring
the qualifications.
10.Two reasons were set out to deny the incentive
increment for acquiring higher qualification is being an
undertaking given by the first respondent. This undertaking
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W.A.(MD)No.1299 of 2020
was held to be not a bar to claim incentive increment for
higher qualification. However, in the instant case, the first
respondent has not claimed incentive increment for acquiring
B.Ed. qualification, rather his claim is for securing M.Ed.
qualification in the year 1989, which he obtained after getting
permission from the Department. The first respondent does
not claim monetary benefit from the date of acquisition of
M.Ed. qualification i.e., from 1999 but he has claimed only
from 02.06.2003, the date on which his appointment was
approved after undergoing Child Psychology Training.
Therefore, the first respondent is entitled to Scale of Pay and
other monetary benefits payable to the post of Secondary
Grade Teacher with effect from 02.06.2003. Therefore all
benefits, which flow from such approval, including his right to
seek an incentive increments should flow from the said date.
11.It was argued that no person has got vested right
for claiming incentive increment. Though this submission may
be partially right, it is the policy decision taken by the
Government to grant incentive increment to teachers to
encourage them to acquire higher qualification, which will
undoubtedly help the students. Thus, when the Government
has taken a policy decision to grant incentive increment, the
teacher, who has acquired higher qualification is entitled to
apply and seek for incentive increment. If it is denied, this
Court can consider as to whether the reason for denial is just
and proper. In the instant case, first respondent was not at all
denied incentive increment, rather he has granted notionally
in terms of G.O.Ms.83, School Education (Elementary
Education) 1(2) Department, dated 28.04.2017, but the
monetary benefits only from the date of the Government
Order dated 28.04.2017. This restriction of the date has
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W.A.(MD)No.1299 of 2020
absolutely no nexus to the object sought to be achieved by
introducing the scheme to grant increment to encourage the
teachers, who acquired higher qualification, thereby
increasing the standard of education and this is precisely the
reason, the increment has been termed as an incentive
increment.
12.The learned Special Government Pleader seeks to
stretch the matter too far by arguing that the very acquisition
of M.Ed., decree itself cannot be relied on by the first
respondent for the purpose of claiming incentive increment,
because it was acquired prior to the first respondent
completing the Child Psychology Training and prior to his
approval of appointment. This argument has to necessarily
fail as the appointment of the first respondent has been
approved. Such approval enures in favour of the first
respondent from the date of his appointment. But the
condition being that they will be entitled to the requisite scale
of pay only on completion of Child Psychology Training. It was
completed by the first respondent on 31.05.2003 and his
appointment was approved on 02.06.2003, to mean that the
first respondent will be entitled for payment of B.T. Assistant
Scale from the said date. Therefore, the appellants are not
justified in contending that M.Ed. degree cannot be relied
upon by the first respondent for claiming increment. Thus, for
the above reasons, we are of the view that the first
respondent is entitled for payment of incentive increment for
acquisition of M.Ed. qualification with effect from 02.06.2003.
13.In the result, the Writ Appeal is dismissed for the
reasons stated above along with the reasons given by the
learned Writ Court while allowing the Writ Petition.
Consequently, connected Miscellaneous Petition is closed. No
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W.A.(MD)No.1299 of 2020
costs. ”
4.Since the legal issue has been answered in favour of the first
respondent/writ petitioner in the above mentioned judgment, the said
decision will apply in full force to the case on hand. Thus, following the
above decision, this Writ Appeal is dismissed and order passed in W.P.
(MD) No.58 of 2019, dated 28.02.2020 is confirmed for the reasons,
which we have assigned in W.A.(MD) No.616 of 2021 along with the
reasons assigned by the learned Single Bench. Consequently, connected
Miscellaneous Petition is also dismissed. No costs.
[T.S.S., J.] & [S.A.I., J.]
08.07.2021
Index : Yes / No
Internet : Yes / No
sj
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized
for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant
concerned.
To
1.The Secretary to Government,
School Educational and Elementary
Educational Department,
Government of Tamil Nadu,
Fort St. George, Chennai – 600 009.
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W.A.(MD)No.1299 of 2020
2.The District Educational Officer,
Sivakasi, Virudhunagar District.
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W.A.(MD)No.1299 of 2020
T.S.SIVAGNANAM, J.
AND
S.ANANTHI, J.
sj
JUDGMENT MADE IN
W.A.(MD)No.1299 of 2020
08.07.2021
https://www.mhc.tn.gov.in/judis/
