Madras High Court
M.Ravi Selvam vs The Block Educational Officer on 13 March, 2023
WP(MD)Nos.6689 of 2020, etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)Nos.6689, 16739, 16802 of 2020;
10321, 11559, 11566 of 2021
and
WMP(MD)Nos.6048, 6051, 11537, 13973, 14035 of 2020;
734, 7989, 9076, 9084, 10069, 10955, 11278, 11988 of 2021
WP(MD)No.6689 of 2020:
M.Ravi Selvam : Petitioner
Vs.
1.The Block Educational Officer,
Paramakudi,
Ramanathapuram District.
2.Ayira Vaisya Primary School,
Rep. by its Secretary,
Paramakudi, Ramanathapuram District. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Certiorarified Mandamus calling for the records
relating to the impugned proceedings issued by the first respondent in Na.Ka.No.
248/A4/2020, dated 19.05.2020 and the consequential order issued by the first
1/25
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respondent in Na.Ka.No.248/A4/2020, dated 21.05.2020 and quash the same as
illegal and consequently, to direct the respondents to disburse the incentive
increments to the petitioner for acquiring higher qualification of M.A degree from
11.09.2022 onwards, within a stipulated time limit.
For Petitioner : Mr.E.V.N.Siva
For Respondents : Mr.J.Ashok,
Additional Government Pleader for R.1
*****
COMMON ORDER
The petitioners before this Court are Secondary Grade Teachers and they
have applied for incentive increments, stating that they have obtained additional
qualifications. Accordingly, they were also provided with incentive increments.
The Department has now ordered for recovering the incentive increments holding
that the additional qualifications obtained by the petitioners are not being taught at
the level of Elementary Education. Challenging the orders of recovery, the
petitioners have moved this Court.
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2.Sum and substance of the submissions made by the learned Counsel for
the petitioners are as follows:-
2.1.The petitioners have obtained the additional qualifications (degrees)
only after getting prior permission from the Department and the degrees were
obtained only from Government recognized Universities.
2.2.Only after due verification by the Department, the petitioners were
granted with incentive increments. There was no misrepresentation on their part.
2.3.Before passing the impugned orders of recovery, no opportunity of
hearing was given to the petitioners.
2.4.As per the Government Orders in G.O.Ms.No.42, Education
Department, dated 10.01.1969; G.O.Ms.No.324, Education, Science and
Technology Department, dated 25.04.1995; and G.O.Ms.No.83, School Education
Department, dated 28.04.2017, the petitioners are eligible for incentive
increments.
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2.5.The following decisions were relied upon by the petitioners in support
of their contention:-
i) State of Punjab and Others v. Rafiq Masih (White Washer) and Others,
reported in (2015) 4 SCC 334; and
ii) Syed Abdul Qadir v. State of Bihar, reported in (2009) 3 SCC 475.
3.Countering the arguments advanced by the petitioners' Counsel, the
learned Additional Government Pleader appearing for the official respondents
made his submissions as follows:-
3.1.The petitioners have obtained additional qualifications of M.Com., or
M.A. (Economics) degrees. They are Secondary Grade Teachers and therefore, the
additional qualifications obtained by them are not helpful to the students, to whom
they are taking classes. Therefore, they are not eligible for any incentives,
however, incentive increments were given to them on misrepresentation.
3.2.During Audit, the aforesaid discrepancy was found and therefore, orders
have been passed to recover the same, since it is causing loss to the public
exchequer.
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3.3.As per the Government Order in G.O.Ms.No.134, School Education
Department, dated 15.06.2007, the petitioners are not entitled for any incentive
increments, for the additional qualifications acquired by them in Commerce and
Economics. This position has also been clarified by the Director of Elementary
Education vide proceedings in Na.Ka.No.017731/E1/2015, dated 24.08.2016.
3.4.He has also relied upon the following decisions in support of his case:-
i) Union of India and Another v. Narendra Singh, reported in (2008) 2
SCC 750; and
ii) I.C.A.R and Another v. T.K.Suryanarayan and Others, reported in AIR
1997 SC 3108.
3.5.Taking cue from the decision of the Patna High Court in Ram Binod
Singh v. Bihar State Electricity Board and Others, reported in
MANU/BH/0437/2007, he submitted that even if there is no misrepresentation or
fraud on the part of the employee, the employer can still order for recovery.
4.This Court paid it's anxious consideration to the rival submissions made
by the respective parties and also perused the available materials.
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5.In Rafiq Masih's (White Washer) case supra, 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 (or 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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6.Referring to the decision in Rafiq Masih's case (supra), the Hon'ble
Supreme Court in High Court of Punjab and Haryana and Others v. Jagdev
Singh, reported in (2016) 14 SCC 267, has held as follows:-
“11.The principle enunciated in Proposition (ii) above cannot
apply to a situation such as in the present case. In the present case, the
officer to whom the payment was made in the first instance was clearly
placed on notice that any payment found to have been made in excess
would be required to be refunded. The officer furnished an undertaking
while opting for the revised pay scale. He is bound by the undertaking.”
7.In Syed Abdul Qadir's case (supra), the Hon'ble Supreme Court has held
as follows:-
“59. Undoubtedly, the excess amount that has been paid to the
appellant teachers was not because of any misrepresentation or fraud
on their part and the appellants also had no knowledge that the amount
that was being paid to them was more than what they were entitled to. It
would not be out of place to mention here that the Finance Department
had, in its counter-affidavit, admitted that it was a bona fide mistake on
their part. The excess payment made was the result of wrong
interpretation of the Rule that was applicable to them, for which the
appellants cannot be held responsible. Rather, the whole confusion was
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because of inaction, negligence and carelessness of the officials
concerned of the Government of Bihar. Learned counsel appearing on
behalf of the appellant teachers submitted that majority of the
beneficiaries have either retired or are on the verge of it. Keeping in
view the peculiar facts and circumstances of the case at hand and to
avoid any hardship to the appellant teachers, we are of the view that no
recovery of the amount that has been paid in excess to the appellant
teachers should be made.”
8.In Ram Binod Singh's case (supra), the Patna High Court has held as
follows:-
“26. The relevant provisions of the Indian Contract Act,
particularly Section 72 cover cases of mistake of fact as well as law and
provide for recovery. The principle of restitution in case of unjust
enrichment is also an accepted principle for ensuring justice in
appropriate case. Hence, in law, the position appears to be clear that
there is no legal bar in ordering for recovery from retired employees
where they have received money benefits on account of mistake at the
ministerial level in the matter of fixation of pay, grant of increments or
time bound promotion when the conditions precedent for such
promotions were clearly non est. However, it has been correctly
submitted on behalf of the petitioners that the theory of simple mistake
or error to justify recovery will not hold good where die grant did not
suffer from patent illegality or perversity so as to attract the
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Wednesbury Principle or the vice of maiafide in law. For example,
where two interpretations of a provision were possible and one was
consciously approved and adopted by the competent authority meant to
be applied generally to all concerned, any error in such decision of the
competent authority if corrected at a later stage may be ordered to
apply only prospectively. Moreso, if the decision has been followed for
many years. In other words, if on reinterpretation or adjudication the
earlier view permitting the grant of monetary benefits is found to be by
a competent authority and bonafide but wrong, mistaken or erroneous,
then ordinarily no recovery should be made unless the excess payment
already made is covered by the two exceptions pointed out in the case of
Madan Mohan Prasad (supra). But if the grant was by way of undue
favour, arbitrary, malafide, ultra vires and or void ab initio, recovery of
public money should be the normal course. In such cases of clear
disobedience of policy or rules by ministerial action or clear dishonest
decision causing undue loss to public money, action against the
concerned authority may also be justified to prevent and discourage
plunder of public money by sheer disregard of clear law. The
constitutional schemes of rule of law and fairness in public action
support recovery in such cases unless law of limitation or waiver etc.
are successfully invoked to show that they prevent such a course in the
facts of any particular case.”
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9.In Chandi Prasad Uniyal and Others v. State of Uttarakhand and
Others, reported in (2012) 8 SCC 417, the Hon'ble Supreme Court has held as
follows:-
“13. We are not convinced that this Court in various judgments
referred to hereinbefore has laid down any proposition of law that only
if the State or its officials establish that there was misrepresentation or
fraud on the part of the recipients of the excess pay, then only the
amount paid could be recovered. On the other hand, most of the cases
referred to hereinbefore turned on the peculiar facts and circumstances
of those cases either because the recipients had retired or were on the
verge of retirement or were occupying lower posts in the administrative
hierarchy.
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.
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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.
15. We are, therefore, of the considered view that except few
instances pointed out in Syed Abdul Qadir case [(2009) 3 SCC 475 :
(2009) 1 SCC (L&S) 744] and in Col. B.J. Akkara case [(2006) 11 SCC
709 : (2007) 1 SCC (L&S) 529] , the excess payment made due to
wrong/irregular pay fixation can always be recovered.
16. The appellants in the appeal will not fall in any of these
exceptional categories, over and above, there was a stipulation in the
fixation order that in the condition of irregular/wrong pay fixation, the
institution in which the appellants were working would be responsible
for recovery of the amount received in excess from the salary/pension.
In such circumstances, we find no reason to interfere with the judgment
of the High Court. However, we order that the excess payment made be
recovered from the appellant's salary in twelve equal monthly
instalments starting from October 2012.”
10.In Col. B.J. Akkara (Retd.) v. Government of India and Others,
reported in (2006) 11 SCC 709, the Hon'ble Supreme Court has held as follows:-
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“27. The last question to be considered is whether relief should
be granted against the recovery of the excess payments made on
account of the wrong interpretation/understanding of the circular dated
7-61999. This Court has consistently granted relief against recovery of
excess wrong payment of emoluments / allowances from an employee, if
the following conditions are fulfilled:
(a) The excess payment was not made on account of any
misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by
applying a wrong principle for calculating the pay/allowance or on
the basis of a particular interpretation of rule/order, which is
subsequently found to be erroneous.
28. Such relief, restraining back recovery of excess payment, is
granted by courts not because of any right in the employees, but in
equity, in exercise of judicial discretion to relieve the employees from
the hardship that will be caused if recovery is implemented. A
government servant, particularly one in the lower rungs of service
would spend whatever emoluments he receives for the upkeep of his
family. If he receives an excess payment for a long period, he would
spend it, genuinely believing that he is entitled to it. As any subsequent
action to recover the excess payment will cause undue hardship to him,
relief is granted in that behalf. But where the employee had knowledge
that the payment received was in excess of what was due or wrongly
paid, or where the error is detected or corrected within a short time of
wrong payment, courts will not grant relief against recovery. The matter
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being in the realm of judicial discretion, courts may on the facts and
circumstances of any particular case refuse to grant such relief against
recovery.
29. On the same principle, pensioners can also seek a direction
that wrong payments should not be recovered, as pensioners are in a
more disadvantageous position when compared to in-service employees.
Any attempt to recover excess wrong payment would cause undue
hardship to them. The petitioners are not guilty of any misrepresentation
or fraud in regard to the excess payment. NPA was added to minimum
pay, for purposes of stepping up, due to a wrong understanding by the
implementing departments. We are therefore of the view that the
respondents shall not recover any excess payments made towards
pension in pursuance of the circular dated 7-6-1999 till the issue of the
clarificatory circular dated 11-9-2001. Insofar as any excess payment
made after the circular dated 11-9-2001, obviously the Union of India
will be entitled to recover the excess as the validity of the said circular
has been upheld and as pensioners have been put on notice in regard to
the wrong calculations earlier made.”
11.This Court in M.Kandan v. Indian Bank and Others, reported in 2018
SCC OnLine Mad 6231, has held as follows:-
“6. It requires to be pointed out here that the aforesaid decision
passed by the Two Judges Bench of the Hon'ble Supreme Court of India,
relied by the learned Counsel for the Petitioner, is a consequential order
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to the earlier order passed by a Three Judges Bench of the Hon'ble
Supreme Court of India in the same case in State of Punjab v. Rafiq
Masih (White Washer) [(2014) 8 SCC 883), in which it has been ruled
that there is no principle that any excess payment to employees could
not be recovered and the earlier decisions in Registrar of Co-operative
Societies, Haryana v. Israil Khan [(2010) 1 SCC 440] and Chandi
Prasad Uniyal v. State of Uttarakhand [(2012) 8 SCC 417), supporting
that view have been approved. It has also been explained therein that
directions issued by the Hon'ble Apex Court in the exercise of powers
under Article 142 of the Constitution, relaxing the application of law,
was in view of the peculiar circumstances which do not comprise
the ratio decidendi and therefore, do not make binding precedent.
Viewed from that perspective, it can be seen that the subsequent
judgment in State of Punjab v. Rafiq Masih (White Washer) [(2015) 4
SCC 334], were only containing illustrations where the Court had
exercised its power under Article 142 of the Constitution and the same
could not be taken as any ratio decidendi unconditionally exempting
recovery from retired persons from the rigour of the law recognised in
Section 72 of the Indian Contract Act, 1872, that a person to whom
money has been paid by mistake must repay it.
7. In the light of the aforesaid legal position, it could be seen that
the excess payment made to the Petitioner was brought to his notice as
early as 20.04.1985 and was sought to be recovered, but in view of the
Writ Petitions filed by the Petitioner challenging the aforesaid recovery
in W.P. Nos. 4476 of 1985 and 5311 of 1995, in which interim orders of
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stay had been passed, the Respondent was unable to effect the recovery.
This disablement caused to the Respondent at the instance of the
Petitioner, cannot lead to absurd consequences of depriving the
Respondent of its right to recover the excess payment from the terminal
benefits of the Petitioner, who had voluntarily retired from service,
before the earlier litigation had come to an end on the species plea of
hardship caused.”
12.Keeping these principles in mind, this Court proceeded with the batch of
writ petitions.
13.The petitioners, who have been granted incentive increments for
possessing higher qualifications, are now facing recovery proceedings on the
ground that the additional qualifications acquired by them are not being taught at
the Elementary Schools and it will not be helpful for the Students.
14.According to the petitioners, they have acquired the additional
qualifications after getting permission from the Department and only after due
verification, they were provided with incentive increments. It is their further claim
that there is no misrepresentation on their part and even assuming that the
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incentive increments have been wrongly provided, the same cannot now be
recovered, for the reason that the increments were provided to them more than five
years back.
15.The respondents claim that the petitioners have obtained the incentive
increments either on misrepresentation or by fraud with the connivance of some of
the officials. It is their further claim that when the benefit was obtained by playing
fraud, they can recover the same.
16.The very basis for grant of incentive increment is to encourage the
Teachers to acquire additional qualification, which would be useful for the
students and for the improvement of the education system. The Government, by
issuing various government orders, has provided incentive increments to the
Teachers, based on the additional qualifications acquired by them, viz., B.Lit.,
B.A., M.A., M.Ed., etc. In fact, some of the Teachers were provided upto three
incentive increments, but, now the maximum number of incentive increments has
been restricted as two in their total service period, as per the Government Order in
G.O.(1D)No.18, School Education Department, dated 18.01.2013.
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17.According to Black's Law Dictionary, incentive pay plan is defined as a
compensation plan, in which increased productivity is rewarded with higher pay. It
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.
18.As per the Government Order in G.O.Ms.No.134, School Education
Department, dated 15.06.2007, the Secondary Grade Teachers who have acquired
additional qualification in the subjects taught in the elementary education, viz.,
Tamil, English, Mathematics, Science and Social Science, alone are eligible for
incentive increments and who have acquired higher education in Commerce,
Economics, Computer Science etc., are not entitled for the same.
19.The Director of Elementary Education vide proceedings in Na.Ka.No.
017731/E1/2015, dated 24.08.2016, has clarified that in the Elementary and
Primary Schools, the Teachers are teaching five subjects, viz., Tamil, English,
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Mathematics, Science and Social Science and the other subjects, viz., Commerce
and Economics are no way connected with elementary education.
20.Admittedly, the petitioners are Secondary Grade Teachers and they are
taking classes upto the elementary education level. Therefore, they are not entitled
for any incentive increment for their additional qualifications in M.Com or M.A
(Economics). In this regard, support can also be drawn from the decision of this
Court in M.Mary Joice v. Director of Elementary Education and Others
[MANU/TN/0627/2023]. If an increment is granted not in accordance with the
terms and conditions stipulated in the policy, it cannot be sustained.
21.This Court in a batch of cases relating to recovery of incentive
increments, in J.Maria James v. Director of School Education and Others
[W.P(MD)No.12357 of 2020, etc., batch, dated 24.02.2023], has observed as
follows:-
“23. ... A Secondary Grade Teacher, who obtained a M.A. Degree
in Economics is provided with an incentive increment without noticing
as to how he is going to transform his knowledge of M.A (Economics) to
the Students who are studying upto fifth standard. This would lead to a
situation where a Teacher who does not perform, but possess / obtain
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degrees is provided with incentive increments, whereas, on the other
hand, a Teacher who is diligently discharging his duty with his
performance and providing good results are not provided with any
incentive increments. The incentive increments provided without
assessing their performance / results would certainly demoralize the
persons who are discharging their duty diligently.”
22.Such a situation has actually emerged in the present cases. An incentive
must be a reward to encourage a worker, who is performing better than the others.
It must be depending upon the performance and not on possession of any degree
alone.
23.Be that as it may, the Government has now realized that the incentive
increments provided to the Teachers have not effected any results in the
performance of the Students and has taken a policy decision not to provide any
incentive increments hereafter, based on the additional qualifications acquired by
the Teachers, vide G.O.Ms.No.116, Personnel and Administrative Reforms (FR-
IV) Department, dated 15.10.2020. However, the incentive increments, which
were provided already are not disturbed.
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24.The Sixth Central Pay Commission, in its report in the year 2008, has
observed as follows:-
“2.5.2.Performance for the Government is usually not measured
in terms of profit, but in terms of achieving societal goals and desired
outcomes, for example, reduction of crime, enhancing the quality of life,
reducing infant mortality etc. Performance is effective service delivery
and responsiveness to stakeholders. In the Governmental context,
performance can be defined as the ability of the Government to acquire
resources and to put these resources to their most efficient use (input-
output relationship) and to achieve the desired outputs and outcome
goals (output-outcome relationship).”
25.The Pay Commission had also engaged the Indian Institute of
Management [IIM(A)] to do a study on Formulating the Concept, Principles and
Parameters for Performance-Related Incentive Schemes in Government. The
Synthesis Report of studies has observed as follows:-
“In India, Government employees are paid according to their
service – incremental salary scales. For a larger (majority) section of
employees there is hardly any performance for pay incentive available
to them. Their salaries are today only a composite of basic pay plus
certain allowances (variable) including DA that are admissible
depending on the nature of jobs and duties and accompanying working
conditions. In fact, natural increases in salary are very much
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guaranteed to Government employees. This leads to a situation where
employees do not exert themselves for a higher level of on-the-job
performance and achievements, thus depriving the Government of
potential productivity gains and service delivery enhancements, both in
terms of quantum and quality. There is no external motivation for risk-
taking and delivering a higher level of performance, because through
the risk-taking is punished if things go wrong, it is not financially
rewarded if things improve because of employees' initiative and risk-
taking. Over the years, this has led to the development of a culture
where employees have become risk averse.”
26.In fact, as early as in the year 2008, the Government has constituted
Administrative Reforms Committee under the chairmanship of Dr.Justice
A.K.Rajan, Retired Judge of Madras High Court, for making recommendations to
ensure an effective and corruptive free governance. The Committee had also made
its recommendations, followed by which, the Government has passed G.O.Ms.No.
24, Personnel and Administrative Reforms (AR-I) Department, dated 17.02.2010,
accepting certain recommendations. One such recommendation was that award
should be given for good performance and the Government has directed the
respective Heads of Departments to pass appropriate orders in this regard.
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27.Since the Government has now taken a policy decision not to provide
any incentive increments in future, based on qualifications alone, this Court feels
that the Government ought to ensure how the Teachers who are already receiving
such incentive increments based on their qualifications are transforming their
knowledge to the Students.
28.Insofar as the present cases are concerned, for the foregoing reasonings,
this Court holds that the petitioners, being Secondary Grade Teachers, are not
entitled for any incentive increments for the additional qualifications, viz., M.Com
/ M.A (Economics) degrees obtained by them. Insofar as the orders of recovery are
concerned, this Court, taking note of the decisions referred supra and the fact that
the incentive increments were granted for more than five years, is passing the
following directions:-
i) if the incentive increments were obtained by misrepresentation, the same
is to be recovered;
ii) if the incentive increments were obtained by playing fraud with the
connivance of the officials, the same is to be recovered;
iii) at the time of obtaining the incentive increments, if the petitioners gave
an undertaking that the incentive increments can be recovered in future if they are
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found to be not eligible, then the same is to be recovered;
iv) if the petitioners do not fall in any of the above categories, then there
cannot be any recovery as against them;
v) if the officials have, knowingly or unknowingly, allowed the petitioners
to receive the incentive increments for more than five years, necessary action has
to be taken as against those responsible;
29.Insofar as the Teachers who are receiving incentive increments for their
additional qualification are concerned, the Government is expected to ensure that
such Teachers are out-performing than those who are not having the additional
qualification and that the incentive increments are reviewed periodically based on
their performance.
With the above observations and directions, all the writ petitions stand
disposed of. There shall be no order as to costs. Consequently, all the connected
miscellaneous petitions stand closed.
Index : Yes / No 13.03.2023
NCC : Yes / No
Internet : Yes
gk
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To
The Block Educational Officer,
Paramakudi,
Ramanathapuram District.
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B.PUGALENDHI, J.
gk
WP(MD)Nos.6689, 16739, 16802 of 2020;
10321, 11559, 11566 of 2021
13.03.2023
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