Madras High Court
S. Kulanthai Theres vs The Director Of Elementary ... on 22 November, 2021
W.P(MD) No.7714 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.11.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S. SRIMATHY
W.P(MD) No. 7714 of 2013
S. Kulanthai Theres :Petitioner
.vs.
1.The Director of Elementary Education,
DPI Campus, College Road,
Chennai – 600 006.
2.The District Elementary Educational Officer,
Thoothukudi District, Thoothukudi.
3.The Assistant Elementary Educational Officer,
Ottaipidaram – 628 401.
4.The Correspondent,
CMML Middle School,
Narakkinar.
Thoothukudi District. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of to
issue a Writ of Certiorarified Mandamus to call for the records relating to
the order in Na.Ka.No.641/A2/07, dated 04.12.2007 passed by the 3rd
respondent and quash the same and consequently, direct the respondents to
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W.P(MD) No.7714 of 2013
refund the sum of Rs.33,948/- recovered from the petitioner and disburse
the same within a time limit to be fixed by this Court.
For Petitioner :Mr. A. Thirumurthy
For respondents : Mrs.D. Farjana Ghoushia
Special Government Pleader
ORDER
---------------
The Writ petition has been filed to quash the recovery order
passed by the 3rd respondent, dated 04.12.2007 and consequently, direct the
respondents to refund the sum of Rs.33,948/- recovered from the petitioner
and disburse the same within a time limit to be fixed by this Court.
2. The facts of the case are that the petitioner was qualified
with B.Sc., B.Ed., and M.Sc., M.Ed., Degree and was appointed as
Secondary Grade Teacher in the 4th respondent school, which is a private
aided school. The petitioner agreed to receive the salary of the Secondary
Grade post and she was given periodical increment also. The petitioner
passed M.Sc., Degree and for the same two incentive increments were
sanctioned. The petitioner relies on G.O.Ms.No.42, Education Department,
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W.P(MD) No.7714 of 2013
dated 10.01.1989, wherein it is stated that the Secondary Grade Teacher,
who acquired the higher qualification eligible for two advance increments.
The petitioner states that she already possessed B.Ed., qualification from
the initial date of appointment and therefore, she is eligible for advance
increments for B.Ed.,, degree from 12.11.1990. But, the two advance
increment was granted only for M.Sc., qualification from 01.09.1992. But
vide the impugned order, that was cancelled and directed the 4th
respondent school to rectify the audit objection raised in respect of
payment of excess salary and recover and remit to the Sub Treasury. The 4th
respondent implemented the order and worked out the excess salary of Rs.
33,948/- and directed the petitioner to remit the amount to the Sub
Treasury and the petitioner has also remitted the amount. After remitting,
the petitioner has approached the respondents to refund the amount. The
petitioner relies on some other persons had filed W.P(MD).No.1613 of
2008 and this Court vide order, dated 19.03.2010 has allowed the Writ
Petition.
3. The respondents have filed a detailed counter and stated the
petitioner was appointed with the graduate qualification of B.Sc., B.T., on
consolidated pay of Rs.800/-per month, thereafter, vide G.O.Ms.No.20
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W.P(MD) No.7714 of 2013
Education Department, dated 08.01.1993, she was regularly appointed
from 1992 in Secondary Grade vacancy in Time Scale of Pay. The
appointment was approved after an undertaking given by the petitioner that
she will not claim any higher scale of pay for the higher qualifications of
B.Sc., B.T., M.A., M.Sc., and she will not claim any award of incentive
increments specified in the G.O.Ms.No.42, Education Department, dated
10.01.1989. The respondents have stated the petitioner appointed in
Secondary Grade Teacher post with the Higher qualification and then
G.O.Ms. No. 155, Education Department, dated 03.10.2002 is applicable
and the petitioner ought to have undergone one month child Psychology
training. If any mistakes which found in the payment of salary, the
respondents have duty and power to recover the same and vide ROC.No.
641 / A3/ 2007, dated 04.12.2007 was issued to rectify the mistake. The
petitioner has relied on the Judgment rendered in W.P(MD).No.1613 of
2008 and the facts are different and the same is not applicable. Since the
audit objection was not dropped, the claim of the petitioner cannot be
entertained.
4. Heard the learned counsel appearing on either side and
perused the materials available on record.
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W.P(MD) No.7714 of 2013
5. In the counter it has been stated that the petitioner ought to
have undergone Child Psychology training as per G.O.Ms.No.155
Education Department, dated 03.10.2002. On verifying the facts this Court
holds G.O.Ms.No.155 is not applicable to the present case. In the said G.O
it has been stated that the appointments from 11.07.1995 to 19.05.1998 are
covered under the G.O. Since the petitioner was appointed in the year
1992, G.O.Ms.No.155 is not applicable.
6. The Government banned the appointment of B.T.,
Assistant in the Secondary Grade post vide G.O.Ms.No.559, dated
11.07.1995, which means prior to that it was not banned. Therefore, the
plea of Child Psychology training was not undergone by the petitioner is
rejected. Now, the claim of the incentive increments ought to be
analyzed based on the date of completion of degree course and the date of
appointment.
7. It is seen from the records that the petitioner has completed
B.Sc., on 22.10.1986; M.Sc., on 02.12.1988 and B.Ed., on 18.02.1991. In
the meanwhile, the petitioner was appointed on 01.09.1992 in the regular
Secondary Grade post with with time scale of pay. Thereafter, the
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W.P(MD) No.7714 of 2013
petitioner had completed the degree on 10.03.1993. Therefore, this Court
holds that since the petitioner has completed M.Ed., degree after joining
the service, she is entitled to G.O.Ms.42. As stated earlier G.O.No.155 is
not applicable since the petitioner joined the service on 01.09.1992. The
G.O.Mos.155 is applicable only to the persons who have joined the service
from 11.07.1995 to 19.05.1998.
8. For the above stated reasons, the impugned audit objection
is wrong and accordingly, the Writ Petition is allowed. The respondents
are directed to refund the amount of Rs.33,948/- within a period of two
months from the date of receipt of a copy of this order. No costs.
22.11.2021
Index:Yes/No
Internet:Yes/No
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W.P(MD) No.7714 of 2013
To
1.The Director of Elementary Education,
DPI Campus, College Road,
Chennai – 600 006.
2.The District Elementary Educational Officer,
Thoothukudi District, Thoothukudi.
3.The Assistant Elementary Educational Officer,
Ottaipidaram – 628 401.
4.The Correspondent,
CMML Middle School,
Narakkinar.
Thoothukudi District.
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W.P(MD) No.7714 of 2013
S. SRIMATHY, J.,
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W.P(MD) No. 7714 of 2013
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W.P(MD) No.7714 of 2013
W.P(MD) No. 7714 of 2013
S. SRIMATHY, J.,
The case was posted today under the caption “for being
mentioned”.
2. It was mentioned that a petition for amendment of prayer
was filed and the same was numbered as M.P.No.3 of 2013. However, the
said M.P.No.3 of 2013 is not available in the bundle. The petitioner
submitted that the refund order dated 04.12.2007 was passed alleging Rs.
33,948/- was paid in excess, but so far the amount has not been recovered
from the petitioner. Therefore, the petitioner has sought to quash the
impugned order only. The consequential order of “directing the
respondents to refund Rs.33,948/-” sought to be deleted in the amendment
petition by the petitioner.
3. The marked portion are based on the amendment petition which
was brought to the knowledge of the Court when the case was posted
under the caption of “for being mentioned”. However, the amendment
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W.P(MD) No.7714 of 2013
petition filed in M.P.No.3 of 2013 was reconstituted and placed before this
Court today. Since the amount was not deducted from the petitioner, this
Court has taken note of the fact and the consequential prayer is declined
and wherever it is necessary the said fact is incorporated in the order.
22.12.2021
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S. SRIMATHY, J.,
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W.P(MD) No.7714 of 2013
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W.P(MD) No. 7714 of 2013
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