Madras High Court
T.Balakrishnan vs Additional Assistant Educational ... on 9 August, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 09.08.2017
CORAM:
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
W.P.No.15051 of 2005 and
WP.MP.No.16357 and
WV.MP.No.1717 of 2005
T.Balakrishnan ... Petitioner
Vs
Additional Assistant Educational Officer,
Assistant Educational Office,
Mailam at Kooteripattu,
Tindivanam Taluk,
Villupuram District. ... Respondent
Petition is filed under Article 226 of the Constitution of India for the
issuance of writ of certiorarified mandamus calling for the records relating to
the order passed by the respondent in Na.Ka.No.1193/A2/2005, dated
21.3.2005 and quash the same thereby forbearing the respondent from
withholding the incentive and recovery of the incentive as stated in the
impugned order.
For Petitioner : Mr.A.R.Nixon
For Respondent : Mr.A.Rajaperumal
Addl. Government Pleader
http://www.judis.nic.in
2
ORDER
This writ petition has been filed by the petitioner seeking a writ of certiorarified mandamus calling for the records relating to the order passed by the respondent in Na.Ka.No.1193/A2/2005, dated 21.3.2005 and quash the same thereby forbearing the respondent from withholding the incentive and recovery of the incentive as stated in the impugned order.
2. According to the petitioner, he was working as Special Grade Teacher in Panchayat Union Middle School. At the time of appointment on 17.10.1989 as teacher, the petitioner was qualified as B.A. B.Ed. and while in service, he had completed M.Ed. On acquiring M.Ed. qualification, the petitioner submitted a representation on 24.4.2001 seeking incentive increment. By an order dated 27.10.2003, the respondent granted incentive increment from 25.5.2000 and had also fixed the increased sale of pay. Pursuant to the order of the respondent, the petitioner was drawing the salary with incentive. However, on 21.3.2005, the respondent passed the impugned order cancelling the incentive granted from 25.5.2000 and directed the petitioner to refund the amount, which has been granted as incentive. Challenging the same, the petitioner has filed the writ petition.
3. The learned counsel for the petitioner submitted that the impugned http://www.judis.nic.in 3 order was issued without hearing the petitioner and any order passed by violation of principles of natural justice is liable to be quashed. The proceeding order in the writ petition is similar and therefore, the same is liable to be quashed. The learned counsel further submitted that the petitioner has not made any misrepresentation to get the incentive increment.
4. Reiterating the proceeding impugned, the learned Additional Government Pleader submitted that after scrutinizing the records the respondent issued the impugned order cancelling the incentive increment and the writ petition is misconceived. Therefore, the same is liable to be dismissed.
5. I heard Mr.A.R.Nixon, learned counsel for the petitioner and Mr.A.Rajaperumal, learned Additional Government Pleader for the respondent and also perused the materials available on record.
6. The writ petition was admitted on 29.04.2005. While admitting the writ petition, this Court granted interim stay in respect of recovery alone in WP.MP.No.16357 of 2005. To vacate the interim order, the respondent has filed Vacate Stay Petition in W.V.M.P.No.1717 of 2005. By an order dated 15.6.2006, W.V.M.P.No.1717 of 2005 came to be disposed of by absoluting the http://www.judis.nic.in 4 stay granted in WMP.No.16357 of 2005.
7. It is seen that at the time of filing the writ petition in the year 2005, the petitioner was aged 53 years and now he would have been retired from service. Moreover nothing has been produced by either side to show that based on the impugned order, the pay of the petitioner has been revised by cancelling the incentive. As far as the recovery of excess paid is concerned, in view of the interim stay, no recovery of made.
8. It is to be noted that the impugned order was issued after 4 years from the date of granting incentive and that too without issuing any prior notice and/or opportunity of hearing. Therefore, as rightly argued by the learned counsel for the petitioner, the impugned order was issued in violation of the principles of nature justice.
9. In the case on hand, the respondent has failed to show any rule or law that the petitioner is not entitled to get incentive increment for acquiring higher qualification. The very purpose of granting incentive increment is to encourage the teachers to acquire higher qualification as the same would ultimately benefit the students. The knowledge acquired by the teachers by acquiring higher qualification is rewarded by way of incentive increment only http://www.judis.nic.in 5 for the benefit of students.
10. It is pertinent to note that G.O.Ms.No.42, dated 10.1.1969 indicates that if a person possessing higher qualification enters into service, his/her initial pay may be fixed by giving advance increments.
11. As stated supra, before passing the impugned order, the petitioner has not been heard and on this short ground, the writ petition is liable to be allowed.
12. In Rajasthan State Road Transport Corporation and another Vs. Bal Mukund Bairwa (2), reported in (2009) 4 SCC 299, the Hon'ble Supreme Court observed as under:
"35. Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity.”
13. This Court as well as Hon'ble Supreme Court in a catena of decisions, time and again reiterates that no recovery of excess payment for no fault of the employee can be made without following the principles of natural justice. http://www.judis.nic.in 6
14. No prejudice need be proved by enforcing the fundamental rights. Violation of fundamental right itself renders the impugned action void. So also the violation of natural justice renders the act of nullity. The purpose of the principles of natural justice is prevention of miscarriage of justice.
15. In a decision in Divisional Superintendent, Eastern Railway, Dinapur and others vs. L. N. Kashri and others, reported in A.I.R. 1974 SC 1889, the Hon'ble Supreme Court held thus:
“The appellants, having fixed the scale and confirmed the respondents, could not reduce the scale without giving any opportunity to the respondents to be heard. Further more, the respondents on confirmation became entitled to rights to the post and to the scale of pay fixed by the Board." The said decision is squarely applicable in all force to the case on hand.
16. It is pertinent to point out that in the case on hand, in the special circumstances, the petitioner was awarded incentive increment and the same was evident from the proceedings of the respondent referred to in the affidavit filed in support of the writ petition. The respondent, having granted the incentive increment ought not to have cancelled the same without giving any opportunity to the petitioner and therefore, the order impugned is in violation of principles of natural justice. Further, reduction of pay and http://www.judis.nic.in 7 recovery of pay, if any, without hearing the petitioner are illegal.
17. Nothing has been produced to show that on the misrepresentation of the petitioner, the incentive increment was granted to him. Nothing has been produced to show that pursuant to the impugned order, the incentive increment granted to the petitioner was cancelled. In view of the above, the petitioner has make out his case and accordingly, the impugned order is liable to be set aside.
18. In the result, the writ petition is allowed and the impugned order passed by the respondent in Na.Ka.No.1193/A2/2005, dated 21.03.2005 is set aside. No costs. Consequently, connected miscellaneous petitions are closed.
09.08.2017
vs
Note:Issue order copy on 04.01.2019
Index : Yes
Internet : Yes
To
The Additional Assistant Educational Officer, Assistant Educational Office, Mailam at Kooteripattu, Tindivanam Taluk, Villupuram District.
http://www.judis.nic.in 8 M.V.MURALIDARAN, J.
vs W.P.No.15051 of 2005 and WP.MP.No.16357 and WV.MP.No.1717 of 2005 09.08.2017 http://www.judis.nic.in