Madras High Court
P.Thangavani vs The Director Of School Education on 5 July, 2022
W.P.(MD)No.5540 of 2020, etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.07.2022
CORAM
THE HONOURABLE MR. JUSTICE B.PUGALENDHI
W.P.(MD)Nos.5540, 11978, 18000 of 2020
& 13322, 20988 of 2021
and
W.M.P.(MD)Nos.4839 to 4841, 10324, 10325, 10599, 15020, 15021 of 2020
& 433, 10307, 10309, 10310, 12797, 17587, 17590 of 2021
WP(MD)No.5540 of 2020:-
P.Thangavani ... Petitioner
Vs.
1.The Director of School Education,
College Road,
Nungampakkam,
Chennai – 6.
2.The Chief Educational Officer,
Theni District,
Theni.
3.The District Educational Officer,
Uthamapalayam,
Theni District.
4.Kanakku Velayee Amaravathi
Ammal Girls' Hr. Sec. School,
Rep. by its Secretary,
Chinnamanur,
Theni District. ... Respondents
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1/14
W.P.(MD)No.5540 of 2020, etc., batch
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus calling for the
records relating to the impugned order passed by the 4th respondent signed on
12.07.2019 and to quash the same and consequently, direct the respondents to
remit back the amount which was already recovered from the petitioner's salary.
For Petitioner : Mr.B.Vinothkumar
For Respondents : Mr.J.Ashok,
Additional Government Pleader
for R.1 to R.3
*****
COMMON ORDER
The petitioners before this Court are working as BT and PG Assistants
and they have acquired M.Phil degree from Vinayaka Mission University. For
this additional qualification of M.Phil degree, they submitted applications for
grant of incentive increment and the same was also granted. While so, the Audit
Department has raised an objection with regard to the grant of such incentive
increments on the ground that the M.Phil degree obtained by the petitioners is
not valid. Based on this objection, the Department has also initiated steps to
stop the incentive increments and to recover the amount already paid.
Aggrieved by such action, the petitioners have filed these writ petitions.
2.Learned Counsel appearing for the petitioners submitted that Vinayaga
Mission University is a Deemed to be University under Section 3 of the
University Grants Commission Act, 1956 and the Degree / Diploma awarded by
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W.P.(MD)No.5540 of 2020, etc., batch
the University is recognized by the Government for the purpose of employment.
The Government of Tamil Nadu, vide G.O.Ms.No.91, Higher Education
Department, dated 03.04.2009, declared that M.Phil and Ph.D degrees obtained
through correspondence / distance education / open university system are
ineligible for government appointment and appointment as Lectures in
Colleges, Universities, including self-financing colleges. Thereafter, the
Government, vide G.O.Ms.No.39, Personnel and Administrative Reforms
Department, dated 30.04.2014, amended this provision.
3.Learned Counsel appearing for the petitioners further submitted that the
Registrar of Madras University, after this amendment, sent a letter dated
27.10.2010 to all the Principals of Arts and Science Colleges affiliated to
University of Madras that M.Phil degree obtained by the candidates through
correspondence / distance education / open university system prior to
03.04.2009 will be considered as eligible for employment and the M.Phil degree
obtained through correspondence / distance education / open university system
after 03.04.2009 will not be considered. Though the petitioners have obtained
M.Phil degree before the cut-off date, without verifying the same, the impugned
audit report came to be passed, followed by which, steps are being taken to stop
the incentive increments and to recover the increments which were already
granted.
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W.P.(MD)No.5540 of 2020, etc., batch
4.Learned Additional Government Pleader appearing for the official
respondents submitted that the grant of incentive increment is a concession
granted to the teaching staff in the Department of School Education and in order
to encourage the morale of the Teachers, it is being granted for the acquisition
of higher educational qualifications. The said concession is not a part and parcel
of the regular scale of pay and pay rules. Such concession is applicable only to
the teaching staff of Education Department and not for any other staff working
in other departments of the State Government. Such being the special nature of
concession provided, especially to encourage the Teachers to acquire the higher
qualification, the same is to be regulated strictly in accordance with the terms
and conditions of the orders in force.
5.He further submitted that the Hon'ble Supreme Court has, time and
again, reiterated that for securing public employment and for grant of
concessions by the State Government, the degrees possessed by the candidates
must be a valid one. The Government of Tamil Nadu has prohibited the
Universities from offering M.Phil course through distance education from the
Academic Year 2007-08, as on 29.08.2006. In this regard, the Government has
passed G.O.Ms.No.91, Higher Education Department, dated 03.04.2009. The
said decision of the Government still holds good. In the absence of establishing
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W.P.(MD)No.5540 of 2020, etc., batch
the validity of the degrees possessed by the candidates, they are neither entitled
to get the public employment nor such other benefits granted by the
Government.
6.Heard the learned Counsel appearing for the respective parties and
perused the available materials.
7.A similar issue was raised before the Principal Seat of this Court in
WP.No.42675 of 2016, etc., batch, in the case of S.Sivan and Others v.
Regional Accounts Officer (Audit), Department of School Education and
Others, wherein, this Court, in order to ascertain the validity of the M.Phil
Degree awarded by Vinayaga Mission University, has impleaded the University
Grants Commission. The University Grants Commission took a specific stand
that the Deemed Universities declared under Section 3 of the UGC Act are not
empowered to conduct any courses through distance education mode without
their permission. The erstwhile Distance Education Council granted ex-post
facto institutional recognition to the Deemed Universities for the programs
offered by it through distance mode only upto the Academic Year 2005. After
ascertaining the views of the University Grants Commission, the Court held that
the M.Phil Degree awarded by Vinayaga Mission University is not valid and the
incentive increments granted based on an invalid degree are liable to be
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W.P.(MD)No.5540 of 2020, etc., batch
recovered, as per G.O.Ms.No.286, Finance (Pension) Department,
dated 28.08.2018. The relevant portion from the said decision is extracted as
follows:-
“10.The learned counsel for petitioners states that though the
incentive increment was granted based on the application submitted
by the writ petitioners, there was no suppression of fact or otherwise
on the part of the writ petitioners. Thus, imposing recovery will cause
hardship to the writ petitioners. The learned Government Advocate in
this regard made a submission that based on the Judgment of the
Hon'ble Supreme Court of India in the matter of imposing recovery,
the Government also issued orders in G.O.Ms.No.286 Finance
(Pension Department) dated 28th August 2018. While imposing
recovery in respect of Government Servants, the judgment of the
Hon'ble Supreme Court as well as the Government Order issued
based on the Judgment of the Hon'ble Supreme Court as well as the
Government Order issued based on the Judgment of the Hon'ble
Supreme Court is to be followed scrupulously and appropriate
decisions ought to be taken in this regard. It is needless to state that
the guidelines issued in this regard by the Government in
Government Order cited supra should be followed before imposing
recovery on the Government Servants including the writ petitioners.
In this view of the matter, this Court is of an opinion that the writ
petitioners are not entitled for grant of any incentive increment for
the qualification of M.Phil degree obtained by them from the 5th
respondent/Vinayaka Missions University, which are not approved. In
respect of recovery, the respondents are directed to pass appropriate
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W.P.(MD)No.5540 of 2020, etc., batch
orders in the light of the Government Order issued in G.O.Ms.No.286
Finance (Pension Department) dated 28.08.2018 within a period of
twelve weeks from the date of receipt of a copy of this order.”
8.The Hon'ble Supreme Court, in the decision in Chandi Prasad Uniyal
and Others v. State of Uttarakhand and Others, reported in (2012) 8 SCC 417,
has held as follows:-
“14.We are concerned with the excess payment of public money
which is often described as “taxpayers' money” which belongs
neither to the officers who have effected overpayment nor to the
recipients. We fail to see why the concept of fraud or
misrepresentation is being brought in in such situations. The question
to be asked is whether excess money has been paid or not, may be
due to a bona fide mistake. Possibly, effecting excess payment of
public money by the government officers may be due to various
reasons like negligence, carelessness, collusion, favouritism, etc.
because money in such situation does not belong to the payer or the
payee. Situations may also arise where both the payer and the payee
are at fault, then the mistake is mutual. Payments are being effected
in many situations without any authority of law and payments have
been received by the recipients also without any authority of law. Any
amount paid/received without the authority of law can always be
recovered barring few exceptions of extreme hardships but not as a
matter of right, in such situations law implies an obligation on the
payee to repay the money, otherwise it would amount to unjust
enrichment.”
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W.P.(MD)No.5540 of 2020, etc., batch
9.Subsequently, in the case of State of Punjab and Others vs. Rafiq
Masih (White Washer) and Others, reported in (2015) 4 SCC 334, the Hon'ble
Supreme Court has held as follows:
“18.It is not possible to postulate all situations of hardship
which would govern employees on the issue of recovery, where
payments have mistakenly been made by the employer, in excess of
their entitlement. Be that as it may, based on the decisions referred to
hereinabove, we may, as a ready reference, summarise the following
few situations, wherein recoveries by the employers, would be
impermissible in law:
(i) Recovery from the employees belonging to Class III and
Class IV service (for Group C and Group D Service).
(ii) Recovery from the retired employees, or the employees who
are due to retire within one year, of the order of recovery.
(iii) Recovery from the employees, when the excess payment
has been made for a period in excess of five years, before the order of
recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been
required to discharge duties of a higher post, and has been paid
accordingly, even though he should have rightfully been required to
work against an inferior post.
(v) In any other case, where the Court arrives at the
conclusion, that recovery if made from the employee, would be
iniquitous or harsh or arbitrary to such an extent, as would far
outweigh the equitable balance of the employer's right to recover.”
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W.P.(MD)No.5540 of 2020, etc., batch
10.Following the orders of the Hon'ble Supreme Court, the Government
of Tamil Nadu, vide G.O.Ms.No.286, Finance (Pension) Department, dated
28.08.2018, has framed certain guidelines for recovery, which read as follows:
“4. In view of the law declared by the Courts, the Government
directs that the Administrative Departments of Secretariat, Heads of
Department and Head of Officers are advised to deal with the issue of
wrongful / excess payments made to Government Servants /
Pensioners / Family Pensioners in accordance with the decision of
the Hon'ble Supreme Court in Civil Appeal No.11527 of 2014 (arising
out of SLP (C) No.11684 of 2021) in State of Punjab and others etc.
vs. Rafiq Masih (White Washer) etc. 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
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W.P.(MD)No.5540 of 2020, etc., batch
pensioner.
(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
employee 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.”
11.The University Grants Commission is the authority to regulate the
courses conducted by various universities across the country. The University
Grants Commission, in the aforesaid writ petition in Sivan's case (supra), has
taken a stand that they have issued a Circular to the Vice Chancellors of all
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W.P.(MD)No.5540 of 2020, etc., batch
Deemed Universities in D.O.No.F6-7/2003 (CPP-I) dated 16.03.2004 to comply
with the directions issued by them with regard to opening of study centres,
academic centres and clarified that all the degrees awarded by the
Deemed Universities in violation of instructions issued will be regarded as
unspecified.
12.In the Vice Chancellors' meeting held on 21.06.2006, the Government
has taken a decision that M.Phil / Ph.D courses should not be offered through
Distance Education from the academic year 2007-08. A Government Order in
this regard was also passed in G.O.Ms.No.91, Higher Education Department,
dated 03.04.2009. Though the petitioner claims that this Government Order was
subsequently amended vide G.O.Ms.No.39, Personnel and Administrative
Reforms Department, dated 30.04.2014, it is not so. The Government Order in
G.O.Ms.No.39, Personnel and Administrative Reforms Department, dated
30.04.2014, pertains to the list of Universities and Institutions recognized by the
University Grants Commission.
13.Therefore, following the aforesaid decision of this Court in Sivan's
case (supra) and in view of the ratio laid down by the Hon'ble Supreme Court in
the decisions in Chandi Prasad Uniyal's case (supra) and Rafiq Masih's case
(supra), this Court, in WP(MD)No.14073 of 2020, in the case of M.Anandhi v.
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W.P.(MD)No.5540 of 2020, etc., batch
State of Tamil Nadu, has held that the incentive increment paid to the petitioner
therein for M.Phil degree, which was obtained through correspondence after
21.06.2006, is liable to be recovered as per G.O.Ms.No.286, Finance (Pension)
Department, dated 28.08.2018.
14.Since the present batch of cases squarely fall within the above criteria,
ie., the petitioners were also awarded with incentive increments for the M.Phil
degree obtained through correspondence / open university / distance education
after the Academic Year 2007-08, the incentive increment paid to them is liable
to be recovered.
15.Accordingly, these writ petitions are dismissed. The official
respondents are entitled to pass appropriate orders with regard to recovery, in
the light of the Government Order in G.O.Ms.No.286, Finance (Pension)
Department, dated 28.08.2018. There shall be no order as to costs.
Consequently, all the connected miscellaneous petitions are closed.
Index : Yes / No 05.07.2022
Internet : Yes
gk
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.5540 of 2020, etc., batch
To
1.The Director of School Education,
College Road,
Nungampakkam,
Chennai – 6.
2.The Chief Educational Officer,
Theni District,
Theni.
3.The District Educational Officer,
Uthamapalayam,
Theni District.
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W.P.(MD)No.5540 of 2020, etc., batch
B.PUGALENDHI, J.
gk
W.P.(MD)Nos.5540, 11978, 18000 of 2020
& 13322, 20988 of 2021
05.07.2022
https://www.mhc.tn.gov.in/judis
