Madras High Court
S.Sivan vs The Regional Accounts Officer on 4 August, 2023
Writ Appeal Nos.2328 of 2018 & etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 04.08.2023
CORAM
THE HONOURABLE MR. JUSTICE R.SURESH KUMAR
AND
THE HONOURABLE MR. JUSTICE K.KUMARESH BABU
Writ Appeal Nos.2328, 2290, 2289, 2294, 2353, 2347, 2349, 2287,
2288, 2292, 2345, 2343, 2344, 2291, 2725, 2802, 2293, 2334, 2339,
2495, 2493, 2494, 2335 and 2336 of 2018
and
C.M.P.Nos.22421, 18299, 18301, 18315, 18676, 18666, 18661, 18607,
18597, 18601, 18318, 18316, 18320, 18308, 18312, 23258, 18551,
18564, 18530, 20237, 20238, 20233, 18554 and 18555 of 2018
W.A.No.2328 of 2018
S.Sivan ... Appellant
Vs
1. The Regional Accounts Officer,
(Audit), Department of School Education,
Coimbatore – 641 001.
2. The Director,
Directorate of School Education,
Chennai – 600 006.
3. The District Educational Officer,
Dharmapuri, Dharmapuri District.
4. The Headmaster,
Government Higher Secondary School,
Bairnatham 636 905,
Dharmapuri District.
https://www.mhc.tn.gov.in/judis
Page No.1/20
Writ Appeal Nos.2328 of 2018 & etc., batch
5. The Registrar,
Vinayaka Missions University,
Salem – 636 308.
6. The Secretary,
University Grants Commission,
New Delhi – 110 002. .. Respondents
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent Act, to set
aside the order passed in W.P.No.42675 of 2016 dated 06.09.2018 and
allow the writ appeal.
Appearance
W.A.Nos.2328, 2725, 2802, 2334, 2339, 2495, 2493, 2494, 2335
and 2336 of 2018
For Appellants : Mrs.Nalini Chidambaram,
Senior Counsel
for Mr.N.Umapathi
For Respondents : Mr.K.V.Sajeev Kumar
Special Government Pleader [R1
to R4]
: Mr.N.Suryanarayanan
for Mr.Rahul Balaji [R5]
Mr.B.Rabu Manohar [R6]
Appearance
W.A.Nos.2299, 2289, 2294, 2353, 2347, 2349, 2287, 2288, 2292, 2345,
2343, 2344, 2291 and 2293 of 2018
For Appellants : Mr.N.Surya Narayanan
for Mr.Rahul Balaji
For Respondents : Mr.K.V.Sajeev Kumar
Special Government Pleader [R2
to R5]
https://www.mhc.tn.gov.in/judis
Page No.2/20
Writ Appeal Nos.2328 of 2018 & etc., batch
: Mr.B.Rabu Manohar [R6]
: No appearance R1 in
W.A.Nos.2290, 2289, 2294,
2347, 2349, 2287, 2288, 2292,
2343, 2344, 2293 of 2018
: Not ready in notice for R1 in
W.A.Nos.2353, 2345 and 2291 of
COMMON JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR,J.)
Since the issue raised in these batch of writ appeals arising out of a
common order passed by the Writ Court in W.P.No.42675 of 2016 &
etc., batch dated 06.09.2018 in the matter of Mr.S.Sivan Vs. The
Regional Accounts Officer (Audit), with the consent of learned counsel
appearing for the parties, all these writ appeals were heard together and
are disposed of by this common judgmnet.
2. The appellants in the appeals filed by the private persons i.e.,
W.A.Nos.2328, 2725, 2802, 2334, 2339, 2495, 2493, 2494, 2335 and
2336 of 2018 were working as teachers at various schools under the
respondent Department. During their employment in order to qualify
themselves further, they joined in the M.Phil degree course at Vinayaka
https://www.mhc.tn.gov.in/judis
Page No.3/20
Writ Appeal Nos.2328 of 2018 & etc., batch
Missions University during the year 2007 and 2008 and complete the said
course in the year 2008 and 2009 as the said course's duration is one
year.
3. As per the Rule, which was in vogue, whoever working as a
Teacher, who earned any higher qualification or additional qualification,
for which additional incentive increment would be allowed by the
respondent State Government /Department.
4. In this context, it is to be noted that, such kind of additional
incentive increment at the maximum of two alone, a teacher would be
entitled to.
5. These teachers since acquired the said qualification of M.Phil as
an additional qualification, they sought for such additional incentive
increment, which was considered and granted by the Department.
6. After some time, when internal audit was taken place, the audit
team having found that these teachers were given such incentive
increments, there had been an objection raised by the audit team through
https://www.mhc.tn.gov.in/judis
Page No.4/20
Writ Appeal Nos.2328 of 2018 & etc., batch
order dated 03.10.2012, which had been directly addressed to the Head
Master of the school concerned, where these Teachers were working.
7. The main reason for such objection raised by the audit team was
that, all these Teachers uniformly had joined in the course either in the
year 2007 or in the year 2008 i..e, M.Phil degree offered by the Vinayaka
Missions University at Salem, which is a deemed to be University under
Section 3 of the University Grant Commissions Act, 1956.
8. Insofar as the said Vinayaka Missions University is concerned,
as it was a deemed to be University, therefore, the Distance Education
Course conducted by them under the Distance Education Mode whether
was approved by the Distance Education Council, which was part of the
Indira Gandhi National Open University [in short, 'IGNO'] at that time
and if they did not get any such approval from DEC, IGNO, then the
degree secured by these teachers i.e., M.Phil degree from such University
cannot be an approved degree and those degrees cannot be accepted as a
valid degree for the purpose of awarding any advance incentive
increment.
https://www.mhc.tn.gov.in/judis
Page No.5/20
Writ Appeal Nos.2328 of 2018 & etc., batch
9. This was the objection raised by the audit team through the
order dated 03.10.2012. As a result of which, since the teachers were
facing the recovery from the Department and also the advance incentive
increment already granted been stopped, they approached the Writ Court
filed separate writ petitions with a prayer seeking for a writ of certiorari
to call for the records of the said order passed by the audit team and to
quash the same.
10. Those writ petitions were heard together and were disposed of
by a common order passed by the learned single Judge vide order dated
06.09.2018, where all these writ petitions were dismissed.
11. Aggrieved over the said orders passed by the Writ Court dated
06.09.2018, a set of writ appeals have been filed by the teachers and
another set of writ appeals have been filed by the said University viz.,
Vinayaka Missions University that is how these batch of writ appeals
have come up before us.
12. Mrs.Nalini Chidambaram, learned Senior Counsel appearing
for the appellants, who are the teachers, submits that, insofar as the doubt
https://www.mhc.tn.gov.in/judis
Page No.6/20
Writ Appeal Nos.2328 of 2018 & etc., batch
raised by the audit team in the impugned order as to whether the
University had obtained such approval from the concerned authorities to
run the Distance Education Course, the learned Senior Counsel has
pointed that, the Government of India issued a notification, which has
been published in the Gazette of India dated 08.04.1995, which reads
thus:
“The 1st March 1995 No.44, F.No.18-15/93-
TD.V/TS.IV- On the recommendations of the Board of
Assessment for Educational Qualifications, the
Government of India has decided that all the
qualifications awarded through Distance Educations by
the Universities established by an Act of Parliament or
State Legislature, Institutions Deemed to be Universities
under Section 3 of the UGC Act, 1956 and Institutions of
National Importance declared under an Act of Parliament
stand automatically recognized for the purpose of
employment to posts and services under the Central
Government, provided it has been approved by Distance
Education Council, Indira Gandhi National Open
University, K 76, Hauz Khas, New Delhi – 110 016 and
wherever necessary by All India Council for Technical
Education, I.G. Sports Complex, I.P.Estate, New Delhi –
110 002.”
https://www.mhc.tn.gov.in/judis
Page No.7/20
Writ Appeal Nos.2328 of 2018 & etc., batch
13. The learned Senior Counsel also relied upon further notification
issued by Government of India dated 19.08.2004, which reads thus:
“In exercise of the powers conferred by Section 3 of
the University Grants Commission 1956, the Central
Government of the advice of the University Grants
Commission, to declare that the following institutions are
included under the ambit of Vinayaka Mission's Research
Foundation, Salem (Tamil Nadu), a Deemed to be
University for the... of the aforesaid Act with immediate
effect.
1. Vinayaka Mission's Kirupananda Variyar
Engineering College, Salem.
2. Vinayaka Mission's College of Pyslotherpay, Salem.
3. Vinayaka Mission's Kirupananda Variya Arts and
Science College, Salem.
4. Vinayaka Mission's College of Pharmacy, Salem.
5. Aarupadai Veedu Institute of Technology,
Paiyanoor, Kanchipuram.”
14. Therefore, the Vinayaka Missions University part of the
Vinayaka Mission's Research Foundation, Salem, was considered to be
deemed to be University and such approval given by the UGC has been
made clear in these proceedings.
https://www.mhc.tn.gov.in/judis
Page No.8/20
Writ Appeal Nos.2328 of 2018 & etc., batch
15. The learned Senior Counsel also point out that, by order dated
28.02.2007, the IGNO has passed the following order:
“This has reference to your letter
No.VMRF/SEC/FDE/2006 dated 30th November, 2006
regarding approval of programmes offered though
distance mode by Faculty of Distance Education,
Vinayaka Mission's University. I am pleased to inform you
that the Hon'ble Chairman, Distance Education Council,
based on the recommendations made by the Expert
Committee which visited the university on 4 th February,
2007, has granted recognition to the courses under offer
by Faculty of Distance Education of your University
through the distance mode for a period of 5 years w.e.f the
date of issue of this letter.”
16. Relying upon these orders, the learned Senior Counsel would
contend that, from 2007 to 2012, for five years period approval or
recognition has been granted by the DEC, IGNO to the Vinayaka
Missions University to conduct courses in the Distance Education Mode.
One of such course in the Distance education mode during the relevant
year i.e., 2007-2008 and 2008-2009 is M.Phil degree, where these
teachers had joined and successfully completed the course. Therefore, the
learned Senior Counsel would contend that, during the relevant year,
https://www.mhc.tn.gov.in/judis
Page No.9/20
Writ Appeal Nos.2328 of 2018 & etc., batch
where these teachers joined in the M.Phil degree in the University and
completed the same successfully, was the period covering under the order
dated 28.02.2007, under which, the DEC, IGNO has granted such
approval/recognition to the said University to conduct course for the
period of five years. Therefore, it was contended by the learned Senior
Counsel that, the doubt that has arisen in the mind of the audit team,
which has been shown as one of the reason that the teachers obtained the
degree of M.Phil from Vinayaka Missions University cannot be a valid
degree, therefore, based on which, the incentive increment already been
ordered in their favour has been stopped and the amount proposed to be
recovered cannot have any legal backing in view of the aforesaid
proceedings. Therefore, the learned Senior Counsel seeks indulgence of
this Court against the order impugned passed by the learned Judge dated
06.09.2018.
17. Mr.B.Rabu Manohar, learned Standing Counsel appearing for
the UGC, on instructions would submit that, initially the DEC, IGNO was
the authority to grant approval or recognition to deemed to be Universities
or any other University to conduct Distance Education programs.
Subsequently, that has been taken at the hands of the University Grant
https://www.mhc.tn.gov.in/judis
Page No.10/20
Writ Appeal Nos.2328 of 2018 & etc., batch
Commission i.e., UGC.
18. He would also submit that, so far as the relevant period of time
since it was in the realm of DEC, IGNO, the order passed by the IGNO
dated 28.02.2007 granting such recognition/approval to the Vinayaka
Missions University to run the Distance Education Courses for five years
period is institution based approval or recognition.
19. He would also submit that after some point of time, the UGC
changed the pattern of giving such recognition or approval on course
basis and not on institution basis alone.
20. The arguments advanced by the learned Senior Counsel
appearing for the appellants, who are the Teachers as stated supra is
adopted by Mr.N.Surya Narayanan, learned Counsel appearing for the
University, who also filed the remaining writ appeals.
21. He would further add that insofar as the running of the courses
under Distance Education Mode especially during the relevant point of
time is concerned, the University since did not get any approval for any
study centres, students admissions were given and the study materials
https://www.mhc.tn.gov.in/judis
Page No.11/20
Writ Appeal Nos.2328 of 2018 & etc., batch
were supplied only by the University and the seminar classes were
conducted by the University, at it's main campus ultimately they had
written the examination only at the University campus i.e., Head quarters.
22. We have considered the said submissions of the learned
counsel on either side.
23. In this context, it is to be noted that the stand of the UGC
counsel was that, insofar as the approval that has been given by the DEC,
IGNO in respect of the University or deemed to be University are
concerned to have such Distance Education Course only at the head
quarters and not beyond which, which means, the study centres that had
been run by various Universities like the present University were not
approved or recognized by the UGC.
24. During the relevant period i.e., from 2007 to 2012, the
University was given institution wise recognition as stated by the learned
counsel appearing for the UGC and from 2011 - 2012 , 2013-2014, the
program wise recognition was given by the UGC.
https://www.mhc.tn.gov.in/judis
Page No.12/20
Writ Appeal Nos.2328 of 2018 & etc., batch
25. Therefore, insofar as these teachers are concerned, they joined
in the course either in the year 2007 or in the year 2008 and they
completed either in the year 2008 or 2009 respectively. Since the course
is one year duration they joined in 2007 and completed in 2008 and those
who joined in 2008 had completed in 2009.
26. These two academic years or calendar years, the University had
been enjoying the institution recognition and there is no contra materials
produced before this Court that these teachers had been admitted only in
study centres beyond the main campus of the University and completed
the course only in the study centres and not at the main campus,
therefore, to that extent the stand taken by the University that all these
courses especially the M.Phil degree course during the relevant years
were conducted by the University only at the main campus have to be
accepted.
27. If we look at the impugned order, which was challenged before
the Writ Court is concerned, the audit team has raised the objection to the
following effect:
@1) jpU/R/rptd;. Kjfiy Mrphpah;
,th; vk;/gpy; cah;fy;tp bgw;wikf;F
https://www.mhc.tn.gov.in/judis
Page No.13/20
Writ Appeal Nos.2328 of 2018 & etc., batch
30/12/09 Kjy; xU Cf;f Cjpa cah;t[ U:/530+530
jpUky;tho m/nk/ep/gs;sp jiyik MrphpauJ
Miz vz;/09-m1-10 ehs;/ 20/12/10d; go
mDkjpf;fg;gl;L mog;gil Cjpak; U:/17670
ypUe;J U:/18730-?f;F cah;j;jg;gl;Ls;sJ/ ,th;
vk;/gpy; cah;fy;tpia nryk; tpehaf kpc&d;
jd;dhl;rp gy;fiyf;fHfj;jpy; m";ry; tHpapy;
gapd;Ws;shh;/ ,g;gy;fiyf;fHfk; m";ry; tHpapy;
cah;fy;tp tH';f g[Joy;yp m";ry; tHpf;fy;tp
Mizaj;jhy; m';ff
P upf;fg;gl;l Miz
jzpiff;F Kd;dpiygLj;jg;gl ntz;Lk;/
,ayhj epiyapy; mDkjpf;fg;gl;l Cf;f
Cjpak; ,uj;J bra;ag;gl ntz;Lk;/ fpifahf
tH';fg;gl;l U:/30808 + gofs; muRf; fzf;fpy;
jpUk;g brYj;jg;gl ntz;Lk;/@
28. The audit team has stated that, the teachers concerned has been
given the advanced incentive increment for having acquired the M.Phil
higher qualification but whether the teacher has completed the said
course and acquired the qualification in Vinayaka Missions University, if
so, whether the said University was recognized or approved by the DEC,
New Delhi and if so, the said order should be produced before the audit
team and if no such order is produced then the Department has to cancel
the advanced incentive increment allowed to these teachers.
https://www.mhc.tn.gov.in/judis
Page No.14/20
Writ Appeal Nos.2328 of 2018 & etc., batch
29. Therefore, it was a condition imposed by the audit team that, if
the DEC's order recognizing or approving the University viz., Vinayaka
Missions University to conduct Distance Education Courses is made
available, the advance incentive increment given to the teachers need not
be interfered, provided if no such orders are produced, it should be
cancelled.
30. Here, the fact remains that, insofar as the Vinayaka Mission's
University is concerned, it has been given the recognition or approval by
the DEC, IGNO by order dated 28.02.2007.
31. When that being so, even according to the audit team, since
these teachers are entitled to get their advance incentive increment as their
increment has been ordered already and was enjoyed by them it need not
be stopped or cancelled.
32. This position, even though had been projected, the learned
single Judge has rejected the writ petitions, where the learned Judge has
considered the counter affidavit filed by the Government as well as the
deemed to be University and ultimately concluded that these teachers are
https://www.mhc.tn.gov.in/judis
Page No.15/20
Writ Appeal Nos.2328 of 2018 & etc., batch
not entitled to get the advance incentive increment as allowed to them
earlier in view of the stand taken by the Government that they are not
entitled to get such incentive increment because the degree obtained by
them through Distance Education Mode of the Vinayaka Missions
University cannot be an approved or recognized or accepted.
33. In this context, the learned Government Pleader appearing for
the State has relied upon the G.O.Ms.No.91, Higher Education
Department, dated 03.04.2009 and has stated that the Government by the
said G.O, declared that the M.Phil and Ph.D degree obtained through the
correspondence or Distance Education or Open University system are
ineligible for Government appointments and appointment as lecturers in
colleges or Universities including self-financing colleges, therefore the
import of the said G.O.Ms.No.91, dated 03.04.2009 if it is implemented
that will stand in the way for extending the benefit of advance incentive
increment to the teachers.
34. However, the said submission made by the learned Government
Pleader is liable to be rejected because, the said G.O has only mentioned
about the eligibility for a person to get employment. Here, the teachers, as
https://www.mhc.tn.gov.in/judis
Page No.16/20
Writ Appeal Nos.2328 of 2018 & etc., batch
per earlier qualification acquired already, been appointed as teachers or
lecturers and the benefit now questioned is only the grant of advance
incentive increment for having acquired the higher qualification.
Therefore, the G.O.Ms.No.91 dated 03.04.2009 issued by the Higher
Education Department does not deal with anything about the allowing of
advance incentive increment to the teachers, who acquired higher
qualification, therefore, that argument made by the learned Government
Pleader also is to be rejected and accordingly, it is rejected.
35. In the result, the following orders are passed in these writ
appeals:
That the impugned order passed by the writ Court dated
06.09.2018 is set aside. As a sequel, the impugned order that was
challenged before the Writ Court in the respective petitions is also
set aside to the extent that those teachers who had studied in the
Vinayaka Mission's University during the relevant point of time
i.e., 2007 to 2009 since had acquired the qualification during the
period which the University also enjoyed the approval or
recognition from the DEC, IGNO, the said objection raised by the
audit Department would not be sustained. Therefore, on that
https://www.mhc.tn.gov.in/judis
Page No.17/20
Writ Appeal Nos.2328 of 2018 & etc., batch
ground, the incentive increment already allowed to these teachers
need not be disturbed. If the increment already been allowed to
these teachers have been cancelled or stopped by virtue of the
order, which is impugned herein, the same shall be restored and the
arrears to that effect shall be calculated and be paid to the
teachers/appellants. To that extent, all these writ appeals are
allowed. No costs. Connected miscellaneous petitions are closed.
(R.S.K.,J.) (K.B., J.)
04.08.2023
Index: Yes
Speaking Order
Neutral Citation:Yes
mp
Note: Order copy to be uploaded by 09.08.2023
To
1. The Regional Accounts Officer,
(Audit), Department of School Education,
Coimbatore – 641 001.
2. The Director,
Directorate of School Education,
Chennai – 600 006.
3. The District Educational Officer,
https://www.mhc.tn.gov.in/judis
Page No.18/20
Writ Appeal Nos.2328 of 2018 & etc., batch
Dharmapuri, Dharmapuri District.
4. The Headmaster,
Government Higher Secondary School,
Bairnatham 636 905, Dharmapuri District.
5. The Registrar,
Vinayaka Missions University,
Salem – 636 308.
6. The Secretary,
University Grants Commission,
New Delhi – 110 002.
https://www.mhc.tn.gov.in/judis
Page No.19/20
Writ Appeal Nos.2328 of 2018 & etc., batch
R.SURESH KUMAR., J.
and
K.KUMARESH BABU.,J.
mp
Writ Appeal Nos.2328, 2290, 2289, 2294,
2353, 2347, 2349, 2287, 2288, 2292, 2345,
2343, 2344, 2291, 2725, 2802, 2293, 2334, 2339,
2495, 2493, 2494, 2335 and 2336 of 2018
04.08.2023
https://www.mhc.tn.gov.in/judis
Page No.20/20
