Madras High Court
S.Subramanian vs The Government Of Tamil Nadu Rep. ... on 21 September, 2022
W.P.Nos.1394, 26752 & 26753 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.09.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.Nos.1394, 26752 & 26753 of 2016
and
W.M.P.No.1168, 19740, 34964, 34965,
22974, 22975, 22976 & 22977 of 2016
W.P.No.1394 of 2016:
S.Subramanian ... Petitioner
Vs.
1.The Government of Tamil Nadu rep. by
Principal 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,
Tiruvarur District, Tiruvarur.
4.The Headmaster,
Government Thiruvalluvar Higher Secondary School,
Alangottai, Mannargudi Taluk,
Tiruvarur District 614 018. ...
Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records
of the 1st respondent in relation to the proceedings issued in Letter (Ms)
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No.129 School Education [PK5(2)] 2013-1 dated 17.07.2013 in so far as
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W.P.Nos.1394, 26752 & 26753 of 2016
the petitioner is concerned and the proceedings of the 4th respondent issued
in Na.Ka. No.92/2015 dated 06.07.2015 and quash the same and to
restore the proceedings of the 4th respondent issued in Na.Ka.No.41/13
dated 07.05.2013 and issue a consequential direction to the respondents to
grant incentive increment to the petitioner for M.Phil. degree from the date
following the last date of the examination.
W.P.No.26752 of 2016:
S.Kumar ... Petitioner
Vs.
1.The Government of Tamil Nadu rep. by
Principal 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,
Salem District, Salem.
4.The District Educational Officer,
Salem District, Salem.
5.The Headmaster,
Government Boys High Secondary School,
Balur (Post), Valapaddy (T.K)
Salem District – 636 104. ...
Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records
of the 1st respondent in relation to the proceedings issued in Letter (Ms)
No.129 School Education [PK5(2)] 2013-1 dated 17.07.2013 and quash
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the same in so far as the petitioner is concerned and the consequential
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W.P.Nos.1394, 26752 & 26753 of 2016
proceedings issued in Na.Ka.No.41/2016 dated 28.06.2016 by the 5th
respondent and issue a consequential direction to the respondents to grant
incentive increment for M.Phil. degree from the date following the last date
of the examination.
W.P.No.26753 of 2016:
R.Mariappan ... Petitioner
Vs.
1.The Government of Tamil Nadu rep. by
Principal 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,
Salem District, Salem.
4.The District Educational Officer,
Salem District, Salem.
5.The Headmaster,
Government Boys High Secondary School,
Valapaddy (T.K)
Salem District – 636 104. ...
Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records
of the 1st respondent in relation to the proceedings issued in Letter (Ms)
No.129 School Education [PK5(2)] 2013-1 dated 17.07.2013 and quash
the same in so far as the petitioner is concerned and the consequential
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proceedings issued in Na.Ka.No.2/16-17 dated 23.06.2016 by the 5th
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W.P.Nos.1394, 26752 & 26753 of 2016
respondent and issue a consequential direction to the respondents to grant
incentive increment for M.Phil. degree from the date following the last date
of the examination.
For Petitioners : Mr.R.Saseetharan
(in all W.Ps)
For Respondents : Mrs.S.Mythreyechandru
Special Government Pleader
(in all W.Ps)
COMMON ORDER
The Clarificatory letter issued by the Government in
Letter(Ms).No.129, School Education [(PK5(2)] 2013-1 dated 17.07.2013
and the consequential proceedings dated 06.07.2015, 28.06.2016 and
23.06.2016 are sought to be quashed in the present writ petitions. Further,
direction is sought for to grant incentive increment to the petitioners for
M.Phil degree from the date following the last date of M.Phil Examination.
Facts
of the case in W.P.No.1394 of 2016:
2. The petitioner states that he was initially appointed as Junior
Grade B.T. Assistant (Science) in proceedings dated 21.12.2006 on a
consolidated pay salary of Rs.3,000/- per month. The petitioner was
brought under the regular time scale of pay with effect from 01.01.2006.
Accordingly, he is continuing as B.T. Assistant (Science). The petitioner
passed B.Sc. degree in Botany in April 1988 through the Bharadhidasan
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W.P.Nos.1394, 26752 & 26753 of 2016
University and B.Ed. degree through Madras University in November
1990. Thereafter, he acquired M.Sc. degree in December 1998 at
Tiruvannamalai University and M.Phil. degree in June 2008 through
Annamalai University.
2.1. The petitioner states that he is entitled for second incentive
increment for the M.Phil. degree acquired by him as per G.O.(1D).No.18,
School Education Department dated 18.01.2013. As per the clarificatory
order issued by the Government of Tamilnadu, second incentive increment
for M.Phil. degree will be sanctioned from the date of issuance of
G.O.(1D).No.18, School Education Department dated 18.01.2013 and not
from the date following the date of last examination of the degree. Initially,
the benefit of second incentive increment was granted to the writ petitioner
from the date following the date of last examination of that degree, which
was objected by the Audit policy. Consequently, based on the impugned
clarificatory letter issued by the first respondent, the fourth respondent
issued the impugned orders in proceedings dated 06.07.2015, granting the
second incentive increment from the date of the Government Order in
G.O.(1D).No.18, School Education Department dated 18.01.2013 and the
excess amount granted is also sought to be recovered. Thus, the petitioner
is constrained to move the present writ petition.
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Facts of the case in W.P.No.26752 of 2016:
W.P.Nos.1394, 26752 & 26753 of 2016
3. The petitioner states that he was initially appointed as B.T.
Assistant Teacher in Mathematics by the order of the Joint Director of
School Education, Chennai dated 10.07.2004 on a consolidated pay salary.
His services were regularized in the post of B.T. Assistant from
01.06.2006 in regular time scale of pay. Accordingly, he is continuing as
B.T. Assistant (Mathematics). The petitioner acquired B.Sc., degree in
April 2000, M.Sc., in May 2002 and B.Ed in April 2003, after his
appointment. He acquired M.Phil. degree in the year 2007.
3.1. The petitioner states that he is entitled for second incentive
increment for the M.Phil. degree acquired by him as per G.O.(1D).No.18,
School Education Department dated 18.01.2013. As per the clarificatory
order issued by the Government of Tamilnadu, second incentive increment
for M.Phil. degree will be sanctioned from the date of issuance of
G.O.(1D).No.18, School Education Department dated 18.01.2013 and not
from the date following the date of last examination of the degree. Initially,
the benefit of second incentive increment was granted to the writ petitioner
from the date following the date of last examination of that degree, which
was objected by the Audit policy. Consequently, based on the impugned
clarificatory letter issued by the first respondent, the fifth respondent
issued the impugned order in proceedings dated 28.06.2016, granting the
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second incentive increment from the date of the Government Order in
W.P.Nos.1394, 26752 & 26753 of 2016
G.O.(1D).No.18, School Education Department dated 18.01.2013 and the
excess amount granted is also sought to be recovered. Thus, the petitioner
is constrained to move the present writ petition.
Facts of the case in W.P.No.26753 of 2016:
4. The petitioner states that he was initially appointed as B.T.
Assistant Teacher in Zoology by the order of the Joint Director of School
Education, Chennai dated 01.07.2004 on a consolidated pay salary. His
services were regularized in the post of B.T. Assistant from 01.06.2006 in
regular time scale of pay. Accordingly, he is continuing as B.T. Assistant
(Mathematics). The petitioner acquired B.Sc., degree in March 1996,
M.Sc. Degree in April 1998 and B.Ed. in April 1999. He was promoted as
P.G. Assistant on 18.11.2011. He acquired M.Phil. degree in the year
2008.
4.1. The petitioner states that he is entitled for second incentive
increment for the M.Phil. degree acquired by him as per G.O.(1D).No.18,
School Education Department dated 18.01.2013. As per the clarificatory
order issued by the Government of Tamilnadu, second incentive increment
for M.Phil. degree will be sanctioned from the date of issuance of
G.O.(1D).No.18, School Education Department dated 18.01.2013 and not
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from the date following the date of last examination of the degree. Initially,
W.P.Nos.1394, 26752 & 26753 of 2016
the benefit of second incentive increment was granted to the writ petitioner
from the date following the date of last examination of that degree, which
was objected by the Audit policy. Consequently, based on the impugned
clarificatory letter issued by the first respondent, the fifth respondent
issued the impugned orders in proceedings dated 23.06.2016 granting the
second incentive increment from the date of the Government Order in
G.O.(1D).No.18, School Education Department dated 18.01.2013 and the
excess amount granted is also sought to be recovered. Thus, the petitioner
is constrained to move the present writ petition.
5. The learned counsel appearing on behalf of the writ petitioners
mainly contended that the scheme of incentive increment was originally
granted by the Government to the Teachers on acquiring the higher
educational qualifications in G.O.Ms.No.42 dated 10.01.1969. As per the
said Government order, the advance increment may be given from
01.07.1969 or from the day following the last day of the examination of
higher qualification mentioned in Column (3) of the table, whichever is
last. Therefore, as per the original order passed in G.O.Ms.No.42 dated
10.01.1969, the incentive increment is to be granted from the day
following the day of last examination, since there is no mentioning of effect
in G.O.(1D).No.18, School Education Department dated 18.01.2013. The
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learned counsel for the petitioners contended that G.O.(1D).No.18, School
W.P.Nos.1394, 26752 & 26753 of 2016
Education Department dated 18.01.2013 did not say that the benefit of
incentive increment is to be granted from the date of issuance of
Government order and therefore, the incentive increment is to be granted
from the date following the date of last examination of the M.Phil. degree
acquired by the writ petitioners.
6. The learned Special Government Pleader appearing on behalf of
the respondents objected the said contention by stating that as per
G.O.Ms.No.42, Education Department dated 10.01.1969, the scheme of
incentive increment was introduced to the Teachers. As per the
Government Order, the Graduate Teachers are eligible to avail two set of
incentive increment for M.A./M.Sc., and M.Ed. In the case of person
entering with higher qualification, it has been stated as follows in
G.O.Ms.No.42 dated 10.01.1969:
“4. In the case of persons entering service on or after
1st July, 1968 possessing the higher qualification, their initial
pay may be fixed by giving advance increment in their scale
of pay.”
7. The petitioners had already availed one set of incentive increment
for acquiring M.Sc., (Botany), M.Sc. (Zoology) respectively. No doubt, as
per the Government Order issued in G.O.(1D).No.18, School Education
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Department dated 18.01.2013, M.Phil. degree is also eligible for grant of
W.P.Nos.1394, 26752 & 26753 of 2016
incentive increment. It is not in dispute that a Teacher is eligible to get two
incentive increments in entire service. As per the Clarification issued by the
Government vide Letter No.129 dated 17.07.2013, the Graduate Teachers
are eligible to avail incentive increment from 18.01.2013 for M.Phil.
degree. But, the petitioners have erroneously availed the second incentive
increment from 30.06.2008, 01.10.2007, 01.07.2008 respectively. Since it
is contrary to the clarificatory letter issued by the Government, the
respondents issued the impugned orders, revising the incentive increment
from the date of issuance of G.O.(1D).No.18, School Education
Department dated 18.01.2013. The Fundamental Rule 26(a) referred by
the petitioners is irrelevant, in view of the fact that the said Rule is related
with sanctioning of increment to the probationer and the petitioners herein
are not probationers. They did not obtain M.Phil., degree as probationers.
Thus, the Fundamental Rule 26(a) is inapplicable as far as the case of the
writ petitioners are concerned.
8. The learned Special Government Pleader brought to the notice of
this Court that the Government issued G.O.(Ms).No.37, Personnel and
Administrative Reforms (FR-IV) Department dated 10.03.2020, cancelling
the scheme of advance increment in all Departments. Therefore, as of now,
the scheme of incentive increment itself has been abolished.
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9. The learned counsel for the petitioners, in reply, made a
W.P.Nos.1394, 26752 & 26753 of 2016
submission that the petitioners were granted incentive increment before
issued the said Government Order in G.O.(Ms).No.37, Personnel and
Administrative Reforms (FR-IV) Department dated 10.03.2020 and
therefore, the said Government order is not applicable to the case of the
writ petitioners. In support of his contention, the learned counsel for the
petitioners relied on the judgment of this Court in the case of
S.P.Palanivelu and another Vs. The Registrar, High Court of
Judicature, Madras dated 4th December 1984, wherein, the following
observations are made:
“3........The Government Order specifically says that
if a person passes the examination or test, he should be
deemed to have passed it on the last day on which the
examination or test is held irrespective of the date on
which the results are announced and that any title, right of
benefit or concession accruing on the passing of such
examination or tests should be taken to have accrued on
the last day of the examination......”
10. Another order passed by this Court in the case of
M.Mugunthamadhavan Vs. The State of Tamilnadu, Rep.by its
Secretary to Government, School Education Department in
W.P.No.15859 of 2014 dated 28.03.2019 is relied upon by the petitioners,
stating that the petitioners are entitled for second incentive increment from
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W.P.Nos.1394, 26752 & 26753 of 2016
the date of examination. It is brought to the notice of this Court that a
direction was issued to the Government to issue consolidated instructions
regarding the grant of two incentive increments to the eligible Teachers by
following the procedures as contemplated in W.P.Nos.15519 & 15520 of
2016 dated 24.09.2018. Despite the fact that a direction was issued to the
Government, till today, the Government has not issued any such
consolidated instructions for the benefit of the Teachers and to maintain
consistency in the matter of granting incentive increment to the Teachers.
11. This Court is of the considered opinion that the scheme of
incentive increment is a concession extended to the Teachers working in
Education Department. The scheme was introduced in order to encourage
the Teachers to acquire higher educational qualifications for the benefit of
students studying in the Schools. Thus, the scheme is a concession
extended to the Teachers for the purpose of imparting better education to
the children studying in the Schools. Thus, the concessional schemes are to
be implemented scrupulously in accordance with the terms and conditions.
The scheme being not a right and a concession, the authorities competent
are bound to implement the same strictly by following the terms and
conditions stipulated in various Government orders. In order to avoid
inconsistency and abuse of number of Government orders passed, this
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Court directed the Government to issue consolidated instructions, enabling
W.P.Nos.1394, 26752 & 26753 of 2016
the authorities to maintain consistency and to follow the terms and
conditions for the purpose of grant of incentive increment uniformly to all
the Teachers. However, no such order has been issued, but now, the
Government issued an order in G.O.(Ms).No.37, Personnel and
Administrative Reforms (FR-IV) Department dated 10.03.2020, cancelling
the scheme of advance increment to all the Departments in the State of
Tamil Nadu.
12. As far as the claim of the writ petitioners is concerned, the
Government Order in G.O.(Ms).No.42 was issued on 10.01.1969, when
the scheme of incentive increment was implemented. At that point of time,
the qualification of M.Phil. degree was not included in the Government
order as an eligible qualification for getting incentive increment. When the
Government order was issued in the year 1969, the Government has stated
that the advance increment may be given from 01.07.1969 or from the day
following the last day of the examination of higher qualification. The term
was incorporated for the purpose of granting incentive increment in respect
of the qualifications, which were acquired by the Teachers, after issuing
G.O.Ms.No.42 dated 10.01.1969. The learned counsel for the petitioners
relied on the said Clause issued in G.O.Ms.No.42 and stated that the
incentive increment to be granted from the day following the last day of the
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examination of higher qualification. However, in the present cases, the
W.P.Nos.1394, 26752 & 26753 of 2016
impugned Government letter states that the incentive increment for M.Phil.
degree is to be granted from the date of Government order issued in
G.O.(1D).No.18, School Education Department dated 18.01.2013.
13. Clause (iii) of G.O.Ms.No.42 dated 10.01.1969 is to be
understood that if any Teacher acquires the higher educational
qualification, after 01.07.1969, then the incentive increment is to be
granted from the day following the last day of examination of higher
qualification. It is to be understood in this manner because before issuance
of G.O.Ms.No.42 dated 10.01.1969, no scheme was in existence and no
increments can be granted for the period, in which, the scheme itself was
not in existence. First time, the Government issued G.O.Ms.No.42 dated
10.01.1969 and the incentive was not granted with retrospective effect, it
was granted only with prospective effect. Scheme being a concession and
extended on acquiring higher qualification, it was stated in the Government
order that after issuance of G.O.Ms.No.42, such increments are to be
granted from the day following the last day of the examination of higher
qualification. Thus, the spirit of G.O.Ms.No.42 is to be understood that
after introduction of the scheme of incentive increment, if any Teacher
acquired higher educational qualifications as mentioned in Column 3 of
Table in the Government order, then the incentive increment is to be
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granted from the day following the last day of the examination of higher
W.P.Nos.1394, 26752 & 26753 of 2016
qualification. Such a Government order passed in the year 1969 cannot be
taken into consideration after a lapse of about 35 years, when the scheme
underwent many changes and many higher qualifications were included for
the benefit of grant of incentive increments. Various Degrees were
introduced by Various Universities and therefore, the Government then
and there issued number of Government orders, extending the benefit of
incentive increments. While extending the benefit of incentive increments,
the Government issued G.O.(1D).No.18, School Education Department
dated 18.01.2013. In the said Government order, the Government has not
referred G.O.Ms.No.42. It has simply stated that the M.Phil. degree is also
an eligible qualification for the purpose of sanctioning incentive increment.
However, it is not stated that the said benefit is to be granted from the date
following the date of last examination of that degree, so also it is not stated
that the benefit is to be granted from the date of issuance of the
Government order. However, in paragraph 4 of the Government order, it is
stated that the Finance Department of the Government approved with
effect from 11.01.2013. When the Government order did not speak
anything about the retrospective sanctioning of incentive increment or
monetary benefit, the authorities competent cannot presume that the
monetary benefit is to be granted with retrospective effect from the date
following the date of last examination of that degree. In other words,
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W.P.Nos.1394, 26752 & 26753 of 2016
regarding the monetary benefits to be granted to the Teachers, there cannot
be any presumption, unless the Government order speaks expressly. In the
absence of any express provision for grant of retrospective monetary
benefits, the authorities are bound to get clarification from the
Government. In the present cases, such clarification was sought for by the
Department and consequently, the Government issued the impugned
clarificatory letter in Letter (Ms).No.129, School Education Department
(PK5(2) 2013-1 dated 17.07.2013, stating that the incentive increment to
be granted from the date of issuance of the G.O.(1D).No.18, School
Education Department dated 18.01.2013. Therefore, the Government
clarified that the monetary benefit of incentive increment to be granted
from the date of the Government order.
14. Let us examine, whether the Government letter is extending the
scope of the Government order or not.
15. This Court is of the considered opinion that the Government
letter is only supplementing the Government order and not supplanting the
Government order issued in G.O.(1D).No.18, School Education
Department dated 18.01.2013. It is supplementing because the original
order issued in G.O.(1D).No.18, School Education Department dated
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18.01.2013 did not speak anything about the retrospective implementation
W.P.Nos.1394, 26752 & 26753 of 2016
of incentive increment from the date of passing the examination of M.Phil.
degree. The effect of Government Order in normal circumstances, must be
understood that the Government order has been implemented with effect
from the date of issuance of the order. It is needless to state that any policy
or Government order, granting concession if issued by the Government, the
said policy or order takes effect prospectively from the date of issuance of
the order or policy. If at all such a policy or benefits are to be granted with
retrospective effect, then the Government must pass an express order in
clear terms. In the absence of any such retrospective effect specifically in
the Government order, the authorities cannot presume that the order is to
be granted with retrospective effect based on the Government order issued
in the year 1969. The said Government order issued in G.O.Ms.No.42
dated 10.01.1969, may not have any relevance in respect of the order
passed in the year 2013, granting incentive increment to M.Phil. degree.
Thus, the Government order issued in G.O.(1D).No.18, School Education
Department dated 18.01.2013 did not specifically states that the monetary
benefit is to be granted with retrospective effect. Therefore, a clarification
is sought for by the authorities and the Government issued clarification on
17.07.2013, stating that the benefit is to be granted from the date of
issuance of the Government order.
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16. In the event of not reflecting such monetary benefits, the
W.P.Nos.1394, 26752 & 26753 of 2016
Teachers would claim incentive increment 10 years prior to the issuance of
Government order or with retrospective effect, which will provide benefits
for 15 years or 20 years or more. Such inconsistency is not intended by the
Government, while issuing G.O.(1D).No.18, School Education Department
dated 18.01.2013. If at all a Teacher acquired M.Phil. degree 10 years
prior to the issuance of G.O.(1D).No.18, School Education Department
dated 18.01.2013, then he will be getting monetary benefits and arrears for
more than 10 years. Another Teacher will be getting monetary benefit only
for one year. That is not the intention of the Government. Therefore, the
Government letter is only substituting the Government order and not
supplanting, because there is no retrospective benefit conferred in
G.O.(1D).No.18, School Education Department dated 18.01.2013 and it
was only a clarification, which provides correct meaning to the
Government order issued in G.O.(1D).No.18, School Education
Department dated 18.01.2013 and thus, the impugned Government orders
cannot be said to be irregular or running counter to the Government order
issued in G.O.(1D).No.18, School Education Department dated
18.01.2013. In fact, the impugned clarificatory letter only states that the
incentive increment is to be granted from the date of the Government
order, which is the normal interpretation, which is to be adopted as far as
the Government policies are concerned and in the present cases, there is no
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W.P.Nos.1394, 26752 & 26753 of 2016
change of condition as far as grant of incentive increment for M.Phil.
degree is concerned and thus, there is no infirmity in respect of the
clarification letter dated 17.07.2013, which is under challenge in the
present writ petitions.
17. No Government servant is entitled to have unjust gain. In the
event of any erroneous grant of monetary benefits, which caused financial
loss to the State, the same is to be recovered from the Government
servants. Unjust gain of public money is impermissible in law. Exceptions
are carved out only in cases, where, extreme hardships are caused. If
recovery is issued for a pensioner or to Group-IV employees, then alone,
an exception can be applied for setting aside the recovery portion of the
order. In the present cases, no such circumstances arise and therefore, this
Court is not inclined to interfere with the orders impugned.
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W.P.Nos.1394, 26752 & 26753 of 2016
18. Consequently, all the writ petitions are devoid of merits and
stand dismissed. No costs. Connected miscellaneous petitions are closed.
21.09.2022
kak/jeni
Index : Yes
Speaking order : Yes
To
1.The Principal 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,
Tiruvarur District, Tiruvarur.
4.The Chief Educational Officer,
Salem District, Salem.
5.The District Educational Officer,
Salem District, Salem.
6.The Headmaster,
Government Thiruvalluvar Higher Secondary School,
Alangottai, Mannargudi Taluk,
Tiruvarur District 614 018.
7.The Headmaster,
Government Boys High Secondary School,
Balur (Post), Valapaddy (T.K)
Salem District – 636 104.
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W.P.Nos.1394, 26752 & 26753 of 2016
8.The Headmaster,
Government Boys High Secondary School,
Valapaddy (T.K)
Salem District – 636 104.
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W.P.Nos.1394, 26752 & 26753 of 2016
S.M. SUBRAMANIAM, J.
kak
W.P.Nos.1394, 26752
& 26753 of 2016
21.09.2022
https://www.mhc.tn.gov.in/judis
