Madras High Court
R.Vasudevan vs The Secretary To The Government on 3 September, 2021
W.P.(MD).No.9549 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S. SUNDAR
W.P.(MD).No.9549 of 2014
and
M.P.(MD).Nos.1 to 3 of 2014
and
W.M.P.(MD).No.15679 of 2020
R.Vasudevan .. Petitioner
Vs.
1.The Secretary to the Government,
School Education Department,
Government of Tamil Nadu,
Fort.St.George, Chennai.
2.The Chief Educational Officer,
Theni, Theni District.
3.The Head Master,
Panchayat Union Middle School,
Chithayagoundanpatti,
Andipatti Union,
Theni District. ..Respondents
(R2 deleted as per order dated 03.09.2021 in W.M.P(MD)No.15681 of 2020)
Prayer: Writ Petition filed under Article 226 of the Constitution of India, for the
issuance of Writ of Certiorarified Mandamus, to call for the records relating to
the impugned letter of the first respondent in Lr. No.129 School Education
(Paka5(2)2013-1 dated 17.07.2013 and the consequent impugned order of 3rd
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1/13
W.P.(MD).No.9549 of 2014
respondent in Na.Ka.No.4797/A3/2013 dated 16.07.2013 and quash the same
as illegal and consequently direct the respondents herein to fix the pay and
increment of the petitioner for acquiring M.Phil., qualification from the date of
his joining as B.T.Assistant as on 30.04.2007.
For Petitioner : M/S. M. Gnanagurunathan
For R1 & R2 : Mr. M.Linga Durai
Government Advocate
ORDER
This petition is filed for issuance of a Writ of Certiorarified
Mandamus to quash the impugned order of the first respondent in Lr. No.129
School Education (Paka5(2)2013-1, dated 17.07.2013 and the consequent
impugned order of the third respondent in Na.Ka.No.4797/A3/2013, dated
16.07.2013 and to direct the respondent to fix the pay and increment of the
petitioner for acquiring M.Phil., qualification from the date of his joining as
B.T Assistant as on 30.04.2007.
2.The petitioner was appointed as B.T Assistant(Science) on
30.04.2007 and his service was regularized from the date of his appointment. It
is not in dispute that the petitioner has completed M.Sc., and M.Phil., even
before his appointment. It is stated that the petitioner is entitled to incentive
increment for having higher qualification even at the time of appointment. It is
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W.P.(MD).No.9549 of 2014
also admitted that the petitioner was also given incentive increment for
possessing higher qualification, when he was appointed. However, by the
impugned order dated 17.07.2013, a direction was issued by the first
respondent to the Head Masters of all the Schools in the District to recover the
amount, which was paid to the teachers by way of incentive increment for
acquiring higher qualification. By the impugned order dated 17.07.2013, the
entitlement of graduate teachers to get incentive increment for acquiring higher
qualification from the date of G.O, is recognized. However, it is stated that the
teachers are not entitled to such incentive increment before the issuance of G.O.
Hence, it is contended that the order impugned in the writ petition is liable to be
quashed in view of the judgment of this Court in several cases holding that the
incentive increment should be given not only to those persons, who acquired
qualifications subsequently, but also to persons, who were appointed with
higher qualification.
3.The learned counsel appearing for the petitioner relied upon the
judgment of the Division Bench of this Court in the case of R.Premkumari
-vs- State of Tamil Nadu and others, reported in (2008)5 MLJ 1349, wherein
the appellant therein was working as Post Graduate Assistant in a Government
aided School with effect from 04.11.1996. At the time of appointment, the
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W.P.(MD).No.9549 of 2014
appellant had obtained M.A(English)., B.Ed., M.Phil., and M.Ed. The appellant
was granted incentive increment for having obtained M.Ed., qualification and
another incentive increment for having obtained M.Phil., qualification. On the
basis of the letter issued by the Director of School Education, dated 18.10.2000
indicating that the teachers, who are appointed between 01.01.1996 and
13.04.1998 were not eligible to incentive increments, a recovery order was
issued. Order of recovery was challenged by the appellant in a writ petition,
which was dismissed by the learned single Judge. The appellant preferred an
appeal. However, the appeal was allowed by the Division Bench of this Court.
The relevant portion of the judgment of the Division Bench is extracted
hereunder:
“8. We do not think the aforesaid observation of the
learned single Judge can stand the scrutiny of logic or even
reality. The obvious intention in granting an incentive increment
is for attracting higher qualified people or for encouraging the
existing employees to acquire higher qualification, even though
in service, so that the quality of service would improve. This is
obviously on the assumption that a higher qualified person
could work more efficiently. Therefore, it defies logic as to why a
person who had already qualified would not get an incentive
increment, if such an incentive increment is given to a lower
qualified person in service, who acquires subsequently such
higher qualification. Such a differential treatment would not
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W.P.(MD).No.9549 of 2014
stand the scrutiny of right to equality as enshrined in Articles 14
and 16 of the Constitution.
9. That apart, if the relevant G.Os are examined
carefully, it can be safely concluded that the G.Os in reality do
not intend to lay down in the manner it has been now concluded
by the learned single Judge. We have already extracted the
relevant portions of the G.Os. The underlined portion of
G.O.Ms.No.42 dated 10.1.1969 indicates that if a person
possessing higher qualification enters into service, his initial
pay may be fixed by giving advance increments. Similarly in the
subsequent G.O.Ms.No.747, dated 18.8.1986, paragraph 2
makes it clear that "the P.G. teachers and Headmasters of
Higher Secondary Schools who possess or acquire Post
Graduate qualification in education i.e. M.Ed., Degree shall be
granted two advance increments in the scales of pay admissible
to them". It is no where contemplated in the G.Os., that the
incentive increments would be given only to those who acquired
subsequently the qualification, but it would be given to all those
who either possess, which means the degree is obtained at the
time of entering into service or acquire, which means the degree
is obtained after entering into service. Even the subsequent
G.Os or the clarifications, no where indicate that in order to be
eligible for getting incentive increment, the person has to
acquire such higher qualification only after entering into service
and not otherwise. Therefore, we are unable to accept the
conclusion of the learned single Judge that a person who enters
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W.P.(MD).No.9549 of 2014
into service after having acquired a higher qualification, is not
entitled to get incentive increments.
10. Since the impugned order was passed on the basis
that the appellant was not entitled to receive incentive
increments having entered into service with higher qualification
is now disapproved by us, the authorities are required to
consider the matter afresh in the light of the conclusion already
made to the effect that the appellant was entitled to receive such
increments at the time of entry into service.
11. The question as to whether the appellant would
continue to receive such increments in the revised scale of pay
would be required to be reconsidered by keeping in view the
various relevant factors including G.O.Ms.No.747 dated
18.8.1986, G.O.Ms.No.1170 dated 20.12.1993 as rectified in
G.O.194 dated 10.10.2006 and the clarification dated
2.11.2007, and G.O.Ms.No.162, Finance, dated 13.04.1998 and
the provisions made in the Tamil Nadu Revised Scales of Pay
Rules, 1998.
12. So far as the direction regarding recovery is
concerned, learned counsel had placed reliance on the decision
of the Supreme Court reported in (2001) 2 SCC 186 = (2001) 1
Supreme 169 (E.S.P. Rajaram and others v. Union of India and
others) However, such contention of the appellant had been
given a short-shrift by the learned single Judge.
12.1 In (1993) 3 SCC 444 (SECRETARY, FINANCE
AND PLANNING DEPARTMENT AND OTHERS v. SALADA S.
RAO AND ANOTHER), it was observed:-
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W.P.(MD).No.9549 of 2014
"24. ... Therefore, in each case of the respondent-
Stenotypists, the fact has to be verified. Subject to
the above, they would be entitled to the benefit of
GO.Ms.No.182 dated 17-7-1987. However, if any of
the Stenotypists are held not entitled to increment on
passing LL B because he had got one increment
upon graduation, no recovery of increments already
drawn will be made. ..." (Emphasis added) 12.2 In
(1994) 2 SCC 521 (SHYAM BABU VERMA AND
OTHERS v. UNION OF INDIA AND OTHERS), it
was observed :-
"11. Although we have held that the petitioners were
entitled only to the pay scale of Rs 330-480 in terms
of the recommendations of the Third Pay
Commission w.e.f. January 1, 1973 and only after
the period of 10 years, they became entitled to the
pay scale of Rs 330-560 but as they have received
the scale of Rs 330-560 since 1973 due to no fault of
theirs and that scale is being reduced in the year
1984 with effect from January 1, 1973, it shall only
be just and proper not to recover any excess amount
which has already been paid to them. Accordingly,
we direct that no steps should be taken to recover or
to adjust any excess amount paid to the petitioners
due to the fault of the respondents, the petitioners
being in no way responsible for the same."
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W.P.(MD).No.9549 of 2014
12.3 In 1995 Supp(1) SCC 18 (SAHIB RAM v. STATE OF
HARYANA AND OTHERS), it was observed by the Supreme
Court :-
"5. Admittedly the appellant does not possess the
required educational qualifications. Under the
circumstances the appellant would not be entitled to
the relaxation. The Principal erred in granting him
the relaxation. Since the date of relaxation the
appellant had been paid his salary on the revised
scale. However, it is not on account of any
misrepresentation made by the appellant that the
benefit of the higher pay scale was given to him but
by wrong construction made by the Principal for
which the appellant cannot be held to be at fault.
Under the circumstances the amount paid till date
may not be recovered from the
appellant.. . ." (Emphasis added) 12.4 In 1995 Supp
(3) SCC 722 (NAND KISHORE SHARMA AND
OTHERS v. STATE OF BIHAR AND OTHERS),
while considering the question of recovery of
amount paid by mistake, it was observed :-
"2. . . . But at the same time, we are of the view that
the appellants cannot be blamed. The Anomaly
Committee recommended grant of higher pay scales
to them. The Finance Department also concurred
with the same and as a result thereafter the
appellants were given the pay scales and were
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W.P.(MD).No.9549 of 2014
disbursed the arrears as a lump sum. Having paid
the arrears to the appellants, the State Government
could not have reversed the same specially without
complying with the rules of natural justice. . . ."
(Emphasis added) 12.5 In (2001) 2 SCC 186 =
(2001) 1 Supreme 169 (E.S.P. RAJARAM AND
OTHERS v. UNION OF INDIA AND OTHERS),
while negativing the claim regarding entitlement of
higher emoluments, the Supreme Court observed:-
"23. ...However, in our considered view, it will be
just and fair to clarify that any amount drawn by
such employees either in the basic post (Traffic
Apprentice) or in a promotional post will not be
required to be refunded by the employee concerned
as a consequence of this judgment. This position
also follows as a necessary corollary from the
observations made by this Court in para 18 of the
judgment in M. Bhaskar case."
12.6 Similar view is expressed by the Supreme Court
in (2007) 6 SCC 180 -Babulal Jain vs. State of M.P. and by the
Madras High Court in (2006) 1 MLJ 143 -Palavesamuthu,D. v.
Tamil Nadu Administrative Tribunal.
13. On a perusal of these decisions, it is apparent that
where excess payment is made not on account of any erroneous
representation of the employee, but on the basis of error
committed by the authorities, the Supreme Court has invariably
directed that recovery need not be made.
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W.P.(MD).No.9549 of 2014
14. In the present case, there is nothing to indicate
that the present appellant had made any misrepresentation in
the matter. Since the amount had already been paid and
obviously spent by the appellant thinking that she was entitled to
such amount, it would cause undue hardship if at a distant point
of time such amount is recovered.
15. In the result, the appeal is allowed, subject to the
following directions :-
(i) The appellant was entitled to claim incentive increments for
having entered into service with higher qualification.
(ii) The question as to whether the appellant was entitled to
receive the benefit of such increment even after introduction of
revised scale of pay, is required to be reconsidered in the light of
the relevant rules and the Government Orders.
(iii) Even assuming that any amount had been paid in excess,
such amount shall not be recovered from the appellant.
Consequently, the connected miscellaneous petition is closed.
No costs.
4.Since the Division Bench has held that the appellant therein is
entitled to get incentive increment for having entered into service with higher
qualification, the petitioner in the present writ petition is also entitled to
succeed. The Honourable Division Bench, after considering the object behind
the grant of incentive increment to the teachers for acquiring higher
qualification, has specifically held that if the incentive increment was granted
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W.P.(MD).No.9549 of 2014
to a lower qualified persons for acquiring higher qualification after entering
into service, such incentive increment should be granted to a person, who
possessed higher qualification at the time of appointment.
5. The petitioner, who had M.Sc., and M.Phil., at the time of entry
into service, is also entitled to incentive increment. Hence, this writ petition is
allowed as prayed for. The impugned order of the first respondent in Lr. No.129
School Education (Paka5(2)2013-1, dated 17.07.2013 and consequent
impugned order of the third respondent in Na.Ka.No.4797/A3/2013, dated
16.07.2013 are quashed. The respondents are directed to fix the pay and
increment of the petitioner, taking into account the higher qualification
acquired by him from the date of his joining as B.T Assistant ie., on
30.04.2007. No costs. Consequently, connected miscellaneous petitions are
closed.
03.09.2021
Index : Yes / No
Internet: yes / No
Ns
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.
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W.P.(MD).No.9549 of 2014
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W.P.(MD).No.9549 of 2014
S.S. SUNDAR, J.,
Sn/Ns
To
1.The Secretary to the Government,
School Education Department,
Government of Tamil Nadu,
Fort.St.George, Chennai.
2.The Chief Educational Officer,
Theni, Theni District.
W.P.(MD).No.9549 of 2014
03.09.2021
https://www.mhc.tn.gov.in/judis/
