Madras High Court
V.Jaiganesh vs The Government Of Tamil Nadu on 25 April, 2022
W.P.(MD) No.18111 of 2019 etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.04.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Orders Reserved On Orders Pronounced On
18.04.2022 25.04.2022
W.P.(MD) Nos.18111, 18114, 18116, 18119, 18121,
18122, 18125, 18128, 18131, 18134 & 18138 of 2019
and
W.M.P.(MD) Nos.14555, 14556, 14559, 14561, 14563, 14564, 14567,
14568, 14570, 14571, 14572, 14573, 14575, 14576, 14580, 14581, 14583,
14584, 14586, 14587, 14589, 14591, 19632, 19636, 19650, 19669, 19642,
19651, 19663, 19648, 19676, 19649 & 19675 of 2019
W.P.(MD) No.18111 of 2019 :-
V.Jaiganesh .. Petitioner
-vs-
1. The Government of Tamil Nadu,
Rep., by Secretary to Government,
School Education Department,
Fort St.George, Chennai-600 009.
2. The Director of School Education,
College Road, Chennai-600 006.
3. The Chief Educational Officer,
Sivagangai District, Sivagangai.
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4. The Head Master,
Government High School,
T.Karisalkulam, Sivagangai District. .. Respondents
Petition under Article 226 of the Constitution of India praying for
issuance of Writ of Certiorari to call for the records relating to the impugned
Government Lr.(Ms) No.129 School Education (PK5(2)) 2013-1 17.07.2013
issued by the 1st respondent and consequent initiation of recovery
proceedings by the 3rd respondent in Na.Ka.No.5821/E3/2016 dated
29.04.2019 and Na.Ka.No.2929/E3/2017 dated Nil.08.2019 quash the same.
In all W.Ps.
For Petitioner : Mr.K.Appadurai
For Respondents : Mr.G.V.Vairam Santhosh
Additional Government Pleader
******
COMMON ORDER
The Writs on hand have been instituted questioning the validity of the
impugned Government Letter dated 17.07.2013 issued by the 1 st respondent
and the consequent action regarding the initiation of recovery by the 3rd
respondent.
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2. The petitioners are working as B.T. Assistants and acquired
M.Phil., qualification admittedly before the date of appointment. In other
words, even at the time of appointment as B.T. Assistant, the petitioners
were possessing the M.Phil., qualification.
3. The petitioners state that a Teacher is eligible for two advance
increments for possessing additional educational qualification. In
accordance with the Government Orders, incentive increment was granted
to the writ petitioners for possessing M.Phil., qualification. After
sanctioning the incentive increment for the additional qualification of
M.Phil., degree, the respondents initiated action and cancelled the incentive
increment and thereafter, issued orders of recovery.
4. The learned counsel for the petitioners mainly contended that the
petitioners are entitled for advance increment for possessing M.Phil.,
degree. It was rightly sanctioned and subsequently based on the objection,
the incentive increment was cancelled and consequential recovery orders
have been passed. Thus, the petitioners are constrained to move the present
writ petitions.
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5. The learned Additional Government Pleader appearing on behalf of
the respondents made a submission that the petitioners are working as
B.T.Assistants and they acquired the qualification of M.Phil., degree even
prior to their appointment into Government service. The petitioners were
granted incentive increment for M.Phil., degree from the date of joining,
which is contrary to rules.
6. The very basis for grant of incentive increment is to encourage the
school Teachers to acquire additional qualification, which would be useful
for the students and for the improvement of the education system in our
great Nation. The Government at the first instance, issued G.O.Ms.No.42,
Education Department, dated 10.01.1969 stating that the Government has
accepted the principle that incentive payments and awards should be given
to the Teachers in schools who acquire higher qualification in education.
Accordingly, the benefit was extended to the Teachers.
7. The claim for incentive increment of higher qualification of
M.Phil., is to be considered based on the fact that whether such a higher
qualification is relevant for teaching the particular subject or not and from
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W.P.(MD) No.18111 of 2019 etc., batch
which period, such increment should be granted to the Teachers. The
petitioners have no vested right to claim incentive increment, merely
because they acquired the higher academic qualification. The grant of
incentive increment is regulated through Government Orders and terms and
conditions. If the higher qualification and the knowledge acquired would be
of assistance to the teaching standard, then incentive increment is to be
granted.
8. Incentive increment is a concession granted by the Government to
the Teachers to motivate them. Thus, such concession can never be claimed
as an absolute right and it is to be granted strictly in accordance with the
terms and conditions stipulated in the policy. Wrong sanctioning of
incentive increment to any Teacher cannot be treated as precedent, nor it
can be sustained. As per G.O.(1D) No.18, School Education Department,
dated 18.01.2013, a graduate Teacher, who had completed M.Ed., or
M.Phil., or Ph.D., will be considered for second incentive, as it is a higher
educational qualification. A graduate Teacher can be benefited with only
two incentives in his / her total service period and the order came into effect
from the date of issue, i.e., from 18.01.2013. An amendment to G.O.(1D)
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No.18, dated 18.01.2013 was issued in G.O.(1D) No.31, School Education
Department, dated 12.02.2015 and paragraph 3 of the said Government
Order reads as follows:-
“Recommendations of the Director of School
Education are carefully scrutinized and accepted that
Graduate Teachers/High School Headmaster getting the
first incentive for Higher Educational Qualification like
M.A., and M.Sc., and Second Incentive Increment as per
G.O.(Ms) No.1024, Education, Science and technology
Department, dated 09.12.1993, for Higher Educational
Qualification of M.Ed., be taken as M.Ed., or M.Phil., or
Ph.D., and order are issued with the condition that a
teacher for his total service can be sanctioned with two
incentives. Moreover, it is ordered that this Incentive
Increment can be sanctioned from 18.01.2013.”
9. As per the above Government Order, for the post of B.T. Assistant,
the degree of M.Phil., was introduced as eligible educational qualification
for incentive increment in the year 2013 only. It was new introduction to
B.T.Assistants. Therefore, the grant of incentive increment in the present
case right from the date of appointment is absolutely in violation of the
policy of the Government. The Government, in fact, granted incentive
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W.P.(MD) No.18111 of 2019 etc., batch
increment for M.Phil., degree to the B.T. Assistants with effect from
18.01.2013 from the date on which B.T. Assistants were made eligible for
incentive increment for acquiring higher educational qualification of
M.Phil. Thus, the excess increment drawn by those B.T. Assistants is
illegal and resulted in unjust enrichment of public money. The judgment of
the Hon'ble Supreme Court in State of Punjab and others vs. Rafiq Masih
(White Washer) [C.A.No.11527 of 2014] cannot be applied in the present
case, as the petitioners herein are working as B.T. Assistants and therefore,
recovery of such excess amount of incentive increment would not cause
extreme hardship for the purpose of setting aside the recovery. The Hon'ble
Supreme Court in clear terms held that wherever there is an extreme
hardship, in the event of recovery of excess payment, then alone, the
recovery is to be set aside and equally the Hon'ble Supreme Court reiterated
that any unjust enrichment of public money cannot be tolerated and such
amounts granted in violation of the statutes or rules are to be recovered from
the employees concerned.
10. In the present case, the Government of Tamil Nadu issued
G.O.Ms.No.286, Finance (Pension) Department, dated 28.08.2018 directing
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W.P.(MD) No.18111 of 2019 etc., batch
the Administrative Departments of the Secretariat, Heads of the Department
and Heads of the Office to deal with the issue of wrongful / excess
payments made to the Government servants / pensioners / family pensioners
in accordance with the decision of the Hon'ble Supreme Court in Rafiq
Masih (supra) as detailed below:-
“(i) In all cases where the excess payments on
account of wrong pay / pension / family pension fixation,
grant of scale without due approvals, promotions
without following the procedure, or in excess of
entitlements etc come to notice immediate corrective
action must be taken.
(ii) In a case like this where the authorities decide
to rectify an incorrect order, a show-cause notice may
be issued to the concerned employee / pensioner / family
pensioner informing him/her of the decision to rectify
the order which has resulted in the overpayment, and
intention to recover such excess payments. Reasons for
the decision should be clearly conveyed to enable the
employee / pensioner / family pensioner to represent
against the same. Speaking orders may thereafter be
passed after consideration of the representations, if any,
made by the employee / pensioner / family pensioner.
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(iii) Whenever any excess payment has been made
on account of fraud, misrepresentation, collusion,
favouritism, negligence or, carelessness, etc., roles of
those responsible for overpayments in such cases, and
the employees / pensioners / family pensioners who
benefitted from such actions should be identified, and
departmental/criminal action should be considered in
appropriate cases.
(iv) Recovery should be made in all cases of
overpayment barring few exceptions of extreme
hardships as detailed in para 3 above. No waiver of
recovery may be allowed without the approval of
Finance Department.
(v) While ordering recovery, all the circumstances
of the case should be taken into account. In appropriate
cases, the concerned employees may be allowed to
refund the money in suitable installments with the
approval of Secretary to Government in the
Administrative Department of Secretariat, in
consultation with the Finance Department.
(vi) Wherever the relevant rules provide for
payment of interest on amounts retained by the employee
beyond the stipulated period etc., interest would
continue to be recovered from the employee as done
hitherto.”
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11. Pursuant to the said Government Order, corrective actions were
initiated by the 3rd respondent and consequently, excess amount of incentive
increment paid are sought to be recovered. Thus, the recovery has been
made as per the judgment of the Hon'ble Supreme Court and based on the
Government Order issued in G.O.Ms.No.286 implementing the orders of the
Hon'ble Supreme Court.
12. This Court is of the considered opinion that the petitioners, who
are working as B.T. Assistants are getting a decent amount of salary and the
recovery of incentive increment which was granted in violation of the
Government Orders would not cause any extreme hardship. This apart, the
Disbursing Officer has erroneously granted the incentive increment from the
date of appointment, which is not contemplated under the Government
Orders for grant of incentive increment. Incentive increment is not part and
parcel of the regular scale of pay. It is an additional concession granted to
the Teachers to encourage them to acquire the higher qualification.
Therefore, the incentive increment cannot be claimed as a matter of right
and it is to be regulated strictly in accordance with the terms and conditions
of the policy.
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13. In view of the facts and circumstances, this Court is of the opinion
that the petitioners have not made out any acceptable ground for the purpose
of considering the relief and therefore, the petitioners are not eligible for
incentive increment from the date of appointment, as they were possessing
the M.Phil., degree even before the appointment and during the relevant
point of time, the benefit of incentive increment for possessing M.Phil.,
degree was not granted by the Government in the policy of grant of
incentive increment and for all these reasons, these writ petitions are devoid
of merit and stand dismissed. However, there shall be no order as to costs.
Consequently, connected miscellaneous petitions are also dismissed.
25.04.2022
Internet: Yes
Index: Yes
abr
To
1. The Secretary to Government,
The Government of Tamil Nadu,
School Education Department,
Fort St.George, Chennai-600 009.
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W.P.(MD) No.18111 of 2019 etc., batch
S.M.SUBRAMANIAM, J.
(abr)
2. The Director of School Education,
College Road, Chennai-600 006.
3. The Chief Educational Officer,
Sivagangai District, Sivagangai.
4. The Head Master,
Government High School,
T.Karisalkulam, Sivagangai District.
Pre-delivery Common Order made in
W.P.(MD) Nos.18111, 18114, 18116,
18119, 18121, 18122, 18125, 18128,
18131, 18134 & 18138 of 2019
25.04.2022
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