Madras High Court
)The Director Of School Education vs )N.Balasoundari on 18 September, 2014
Author: S.Manikumar
Bench: S.Manikumar, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18.09.2014 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR AND THE HONOURABLE MR.JUSTICE V.S.RAVI WRIT APPEAL(MD)No.867 of 2014 & M.P(MD)No.1 of 2014 1)The Director of School Education, Chennai. 2)The District Educational Officer, Paramakudi, Ramanathapuram District. ... Appellants Vs. 1)N.Balasoundari 2)The Secretary and Correspondent, K.N.Girls Higher Secondary School, Kamuthi, Ramanathapuram District. ... Respondents Prayer Appeal filed under Clause 15 of Letters Patent, as against the order passed by the Hon'ble Justice R.Mahadevan dated 19.03.2014 in W.P.No.4110 of 2011. !For Appellants : Mr.V.R.Shanmuganathan, Special Government Pleader ^For 1st Respondent : Mr.N.Sathish Babu For 2nd Respondent : No appearance :JUDGMENT
(Order of the Court was made by S.MANIKUMAR, J.) W.A.No.867 of 2014 is directed against the order made in W.P.No.4110 of 2011, dated 19.03.2014, by which the Writ Court quashed the order of the District Educational Officer, Paramakudi, Ramanathapuram District, and further directed the respondents therein to sanction and pay the arrears of incentive increments to the writ petitioner/1st respondent herein, as per G.O.Ms.No.1023, Education, Science and Technology Department, dated 09.12.1993.
2. The question to be decided is whether B.T.Assistants are eligible for third incentive increment, for acquiring M.Ed., qualification in the post of B.T. Assistant.
3. Caveator is on record.
4. Facts of the case are that the writ petitioner was initially appointed as a Physical Education Teacher in the 2nd respondent-School, in the year 1966. During her service, she completed her B.A., in the year 1980, B.Ed., in the year 1982 and M.A., in the year 1985. She was promoted as B.T. Assistant in the year 1987. In the same year, in December, she had completed M.Ed., also. She attained her superannuation on 30.06.2005. She was granted two incentive increments for B.Ed., with effect from 29.12.1982, in the post of Physical Education Teacher and for M.A., with effect from 20.07.1987, in the post of B.T. Assistant. Thereafter, continuing in the post of B.T. Assistant, she requested for 3rd incentive increment, for M.Ed qualification. Vide order, dated 09.09.2009, the District Educational Officer, Paramakudi, Ramanathapuram District, 2nd appellant herein, has rejected the same. Hence, she has filed W.P.No.4110 of 2011, for a Writ of Certiorarified Mandamus, to quash the said rejection order and sought for a direction to award, 3rd incentive increment to her, for the M.Ed qualification, as per G.O.Ms.No.1023, dated 09.12.1993.
5. The District Educational Officer, Paramakudi, Ramanathapuram District, 2nd appellant herein, in his counter affidavit, has submitted that the petitioner was appointed as a Physical Education Teacher in K.N.Girls Higher Secondary School, Kamuthi, the 2nd respondent herein, on 04.06.1968. She completed her B.A.(History), from Madurai Kamarajar University, in the year 1980 and acquired B.Ed., from Annamalai University, in the year 1982. Thereafter, she completed M.A.(History) in the year 1985. She was promoted to the post of B.T.Assistant, from 30.07.1987 and continued in the same school. In the mean time, she completed her M.Ed., in the month of December' 1987.
6. According to the District Educational Officer, Paramakudi, 2nd appellant herein, as per the G.O.Ms.No.42, Education Department, dated 10.01.1969, the writ petitioner was awarded with two incentive increments each for B.Ed., and M.A. As per G.O.Ms.No.1024, Education, Science and Technology Department, dated 09.12.1993, the maximum number of advance increments, which a teacher can get under the scheme, is four, in his/her entire service. Therefore, the 2nd appellant has submitted that four advance increments (two incentive increments) were already given to the writ petitioner, and therefore, she is not eligible for the 3rd incentive increment.
7. The District Educational Officer, Paramakudi, 2nd appellant herein, has further submitted that earlier, when the writ petitioner made a request, for grant of incentive increment, through the Correspondent of the 2nd respondent-School,on 13.12.2009, citing G.O.Ms.No.1024, Education, Science and Technology Department, dated 09.12.1993, a reply was given to the Correspondent, vide letter L.Dis.No.2138/B3/2009, dated 09.09.2009.
8. Though the District Educational Officer, Paramakudi, 2nd appellant herein, has stated that a teacher is eligible only for four incentive increments, for acquiring higher educational qualifications, counter affidavit reads that a reference has also been made to a letter in R.C.No.52605/k/c1/94, dated 25.04.2011, of the Directorate, wherein, a request has been made to the Government, for sanction of the 3rd incentive increment, for acquiring higher educational qualification, and that the matter is under consideration.
9. In the counter affidavit, the District Educational Officer, Paramakudi, 2nd appellant herein, has also submitted that during the period of service or re-employment, the writ petitioner did not make any request for advance increment for M.Ed qualification. Adverting to the above facts, a learned Single Judge of this Court, vide order, dated 19.03.2014, in W.P.No.4110 of 2011, has passed the following orders, ?4. The learned counsel appearing for the petitioner as well as the learned Government Advocate appearing for the first respondent submitted that the matter in issue is covered by a judgment of a Division Bench of this Court in W.A.Nos.2604 to 2606 of 1999 batch and by judgment, dated 20.06.2006, the Division Bench held as follows:
?All the Writ Petitions have been preferred by the Writ petitioners, who are P.G.Assistants and Headmasters, for grant of incentive increments for which, they were entitled to for having acquired higher qualifications such as Degree M.A., M.Sc., M.Phil or M.Ed., etc.
2.The order, dated 12.02.1999 in W.P.Nos.17884 of 1998 etc., which was challenged in W.A.Nos.2604 to 2606 of 1999 was passed by this Court by following its earlier order, dated 18.04.1998 in a batch of writ petitions, i.e., W.P.Nos.7840 of 1995 etc. The learned Government Advocate appearing for the appellants is not able to bring to the notice of this Court with regard to finality of the said order as to whether it was set aside or modified. Moreover, the learned counsel appearing for the respondents, has produced a copy of the judgment rendered by a Division Bench of this Court in W.A.No.2307 of 1999, wherein, similar issue in regard to payment of incentive increments came up for consideration and after narrating all the relevant G.Os., relating to payment of incentive increments for acquiring higher qualifications, such as M.A., M.Sc., M.Phil., M.Ed., etc., the Bench has ultimately held as under:
?6.Similarly after the said G.O., dated 09.12.1999, similar question came up for consideration before this Court in W.P.No.20437 of 19993. This Court by order dated 02.03.1994 has upheld the payment of 3rd set of two advance increments to the P.G.Assistants. Likewise, entitlement of P.G Teachers for 3rd set of two advance increments also came up for consideration before this Court in W.P.No.8078 of 1994 and this Court by order dated 01.02.1995 has upheld the said order. For the above reasons, we find that the appellant is entitled to the benefit of G.O.Ms.No.747, Finance Department dated 18.08.1986 together with G.O.Ms.No.1023 Education, Science and Technology Department dated 09.12.1993. Hence, we see no merit in the order of the 2nd respondent dated 29.11.1989 in withdrawing the 3rd set of two advance increments given to the petitioner. Accordingly, the Writ Appeal impugned proceedings dated 29.11.1989 and the order of the learned Single Judge are set aside. No costs.
3.Considering all the above facts and circumstances, these Writ Appeals fail and the same are dismissed. No costs. However, the concerned respondents in the respective Writ Petitions are directed to implement the orders impugned in these Writ Appeals within eight weeks from the date of receipt of copy of this order.?
5. One of such similar order passed by this Court in W.P.(MD)No.2528 of 2007, dated 20.12.2007, was challenged by the department. A Division Bench of this Court, by judgment, dated 20.12.2007 made in W.A.(MD)No.426 of 2008, dismissed the said Writ Appeal.
6. Following the said judgments, the impugned order is set aside and the Writ Petition is allowed. The first respondent is directed to sanction and pay the arrears of incentive increments to the petitioner for possessing M.Ed., Degree, within a period of eight weeks from the date of receipt of a copy of this order.?
10. Assailing the correctness of the order made in W.P.No.4110 of 2011, dated 19.03.2014 and inviting the attention of this Court to the orders passed in W.A.Nos.2604 to 2606 of 1999, dated 20.06.2006 and other orders, referred to the impugned writ petition, Mr.V.R.Shanmuganathan, learned Special Government Pleader submitted that the orders considered by the writ Court, for allowing W.P.No.4110 of 2011, relate to entitlement of the 3rd incentive increment by a Post Graduate Teacher and that they do not relate to B.T. Teacher. He further submitted that the intention of the Government is to grant a maximum of four advance increments, in the entire service. As the petitioner was already granted four advance increments, she is not entitled to another increment, for acquiring M.Ed., in the post of B.T. Assistant.
11. Learned Special Government Pleader further submitted that the Writ Court has failed to consider that in service matters, each case has to be considered on the facts and merits of the case and that there cannot be any ?judgment in rem?. According to him, when the decisions made in the Writ Appeals, relied on, by the Writ Court, apply to only P.G. Teachers, on acquiring M.Ed., degree, the same cannot be made applicable to B.T. Assistants, who had already received the maximum of four advance increments, in the post of B.T. Assistant and that therefore, she is not entitled to to seek for another two sets of increments, for acquiring M.Ed., qualification in the post of B.T. Assistant.
12. Learned Special Government Pleader further submitted that the Government Orders, relied on, by the petitioners, were passed under compulsion, and that the same cannot be treated as precedents.
13. Heard Mr.V.R.Shanmuganathan, learned Special Government Pleader for the petitioners and Mr.N.Sathish Babu, learned counsel for the 1st respondent/caveator, who has relied on decisions, passed by this Court.
Notice is waived to the 2nd respondent.
14. Before adverting to the issue, as to whether a B.T. Assistant, who has been awarded four incentive increments, is entitled to another incentive increments, for acquiring M.Ed., degree qualification, in the post of B.T. Assistant, we deem it fit to extract some of the Government Orders. GOVERNMENT OF TAMIL NADU ABSTRACT Education - Fourth Five Year Plan - Schemes for incentive Payments and awards to teachers during 1968 -69- Sanctioned.
EDUCATION DEPARTMENT G.O.Ms.No.42, Dated 10th January 1969. Read the following papers:
From the Director of School Education, letter No. 1850/PDI/67 dated 3rd October 1967 and 25th June 1968.
ORDER:
The Government have already accepted in principle to incentive payments and awards should be given to the teachers in schools who acquire higher educational qualifications. The Director of School Education has accordingly submitted proposals, as indicated in Annexure to this order.
2. The Government approve of the proposals of the Director of School Education and direct the advance increments be granted to them as indicated in the Annexure.
3. The expenditure should be debited to "128 Education Z development schemes - Schemes in the Fourth Five Year Plan - Miscellaneous ? O -
Incentive Payment and awards to teachers". The Director of School Education is requested to take action to provide additional fund incurred by reappropriation from savings.
(By Order of the Governor) ANNEXURE A teacher belonging to the category mentioned in column (1) of the Table below shall be eligible for the two advance increments to the scale of pay admissible for this category if he/she possesses or acquires higher qualification specified in column 2 provided the maximum of the scale of pay is not reached.
Category Scale of Pay Higher qualification for which two advance increments are admissible
1. Secondary or Senior Basic Grade Teachers 90-4-110-3-140 B.T., or B.Ed., degree of a University of the State or the degrees of other Universities recognised as equivalent to the degree of B.T. or B.Ed., degree of Universities of this State.
2. B.T. B.Ed., Assts., Rs.140-5-180-10-250 Rs.225-10-275-350 M.A., or M.Sc. M.Ed. Degree of a University in the State or the degree of other Universities recognised as equivalent to M.A./M.Sc., or M.Ed., degree Universities of this State.
3. Headmasters of Govt. Board Schools and Municipal Township Schools Rs.225-10-275-15-350
-do-
4. Headmasters of Aided High Schools Rs.225-15-276 Rs.300-15-430
-do-
5. Pandits I Gr.
Rs.140-250-or lower scale B.T., or B.Ed., degree of a University in this State or the degrees of other Universities recognised as equivalent to B.T. or B.Ed., degree of Universities of this State.
6. Pandits II Gr.
Rs.90-40-110-3-140
-do-
7. Physical Training Instructors I Gr.
-do-
B.T., or B.Ed., degree of a University in this State or degrees of other Universities recognised as equivalent to B.T. or B.Ed., degree of a University of this State or Diploma in Physical Education.
8. Other Specialist Teachers
-do-
B.T., or B.Ed., or other recognised equivalent degrees in this State.
2. A Secondary Grade Teacher who after passing B.T. or B.Ed., degree examination qualifies for M.A., or M.Sc., or M.Ed., degree, but working in Secondary Grade post may be given advance increments for second time also, ie., two advance increments after passing B.T. Teacher who after passing M.A., or M.Sc., qualifies for M.Ed., Degree examination but working in B.T. or Headmaster's post may be given advance increments for a second time also, ie., two advance increments after passing M.Ed., degree.
3. The advance increments may be given from the day following the last day of the examination in higher qualification mentioned in Column (3) of the table whichever is later, in case the regular increment due to a person is withheld by way of punishment the advance increment admissible should be given only after the regular increment is sanctioned.
4. In the case of Panchayat Unions and Municipalities including Corporation of Madras and townships the expenditure towards the grant of advance increments may be taken into account for purpose of payment subsidy, according to the pattern of aid admissible and no special subsidy may be paid to them. In the case of aided schools the expenditure will be taken into account for purpose of staff grant in the case of secondary schools and teaching grant in the case of Elementary Schools.
15. Perusal of the order and the Annexure indicates that Physical Training Instructors Grade I are entitled to two advance increments. On acquiring higher qualification, a B.T or B.Ed Assistant, is entitled to two advance increments, for acquiring M.A or M.Sc, M.Ed degree. He must be working as B.T. Assistant. After passing M.A or M.Sc, and if he acquires M.Ed degree, but working in B.T Assistant or Headmaster's post, he may be given advance increments.
GOVERNMENT OF TAMIL NADU EDUCATION DEPARTMENT G.O.Ms.No. 107, Dated: 20- 1-1976
School - Education incentive increment to teachers acquiring higher qualifications - Tamil Pandits Orders Issued.
Ref : The Director of School Education letter No.199376 PDL 69, dt. 13- 5-70, 171809 PDL 71, dt. 5-1-72, 5-5-72 and 6-8-73 and 172025 PD3/72 dt. 4-4- 1974.
ORDER:
Before issue of orders in G.O.Ms.No.63, Education, dated 17-1-74 relating grade I and II of Tamil Pandits, the following was the position regarding .vilifications for appointment to the two grades :-
i) Persons possessing any of the following three sets of qualifications are eligible to be appointed as Tamil Pandits Grade I (on the same scale of pay as B.T. Assistants)
1. A degree in the language plus L.T., B.T or B.Eds.
2. BOL (Pass or Hons) with S.S.L.C completed plus LT. B.T. or B.Ed.,
3. S.S.L.C. completed and oriental Title plus Pandits or Secondary Grade Training.
4. Graduates and Post graduates who have taken Tamil as a subject of special study in their degree course and who have undergone Secondary Grade Training.
ii) Persons possessing oriental title plus Pandits or Secondary grade training are eligible to be appointed as Pandits Grade II.
2. The present position regarding increments to Tamil Pandits (with reference to G.O.Ms.No.42, Edn. dated 10-1-1969 and para 4 of G.O.Ms.No.1032 Edn. Dt. 22-6-71) is as follows:-
i) B.A. and B.O.Ls can be appointed as Grade I Tamil Pandits only if they have passed B.T. Hence no incentive increments admissible to them for passing B.T. But they can get two incentive increments for passing M.A. and two more for passing M.Ed.
ii) Pulavars and vidwans can be appointed as Grade I Tamil Pandits even if they do not have B.T. but have only Pandits Training or Secondary Grade Training and completed S.S.L.C. For appointment as Pandits Grade II also a B.T. is not necessary. For these categories incentive increments are admissible only for passing B.T. but not passing M.A. or M,.Ed.
3. In modification of para 2(ii) above, the Government now issue revised orders to the following effect.
4. Tamil Pandits Grade I who do not have to possess B.T., for initial appointment and Grade II Tamil Pandits may be allowed to incentive advance increments either B.T. or for M.A. Advance increments may be allowed a second time for such a teacher, who after passing B.T. possess M.A. or after passing M.A. passes B.T. advance increments shall not be allowed to them for passing M.Ed.
5. This order issues with the concurrence of the Finance Department vide its U.O.Ms.No.180496/A/E2 75-1, dt. 29-12-75. Sd/-
Secretary to Government.
16. The abovesaid G.O., has been extracted for the purpose of to state that a person, who possess any of the qualifications in Para 1(i)(1)(2)(3) and (4) are eligible to be appointed as Tamil Pandit I. For appointment as Tamil Pandit II, B.T., is not necessary. As per the Government Orders, Tamil Pandit II, was given advance increment for acquiring B.T. But Tamil Pandit I was not given. Considering the same, a Hon'ble Division Bench decided in P.B.Bheeman vs. The Registrar, (W.P.No.41451 of 2005, decided on 01.08.2008) and the said judgment is considered in the latter paragraphs of this judgment.
GOVERNMENT OF TAMIL NADU ABSTRACT One Man Committee - Recommendations of the Committee Education Department - incentive Increments for M.Ed., Qualificattion - Orders issued.
FINANCE (PAY CELL) DEPARTMENT G.O. Ms. No. 747 Dated : 18th August 1986. Read: G.O. Ms. No. 1267 Finance (Pay Cell) Dated 8-12-85. ORDER:
At present incentive increments are given to teachers for acquiring additional qualifications. Under the existing orders, School Assistants and Headmasters of High Schools who possess or acquire M.Ed., are eligible for the advance increments. This scheme of incentive increments has not been extended to P.G. Teachers and Head Masters of Higher Secondary Schools. Representations for extending the benefits under the scheme of incentive increments for additional qualification to P.G. Teachers and Headmasters of Higher Secondary Schools were made to the One Man Committee constituted in the G.O. read above. The Committee after examining the request has recommended that the scheme may be extended to these teachers also and that a P.G. Teacher or a Headmaster in the Higher Secondary School may be given two advance increments for M.Ed., qualification.
2. The Government accept the recommendations of the One man Committee and issue the following orders :-
(i) The P.G. teachers and Headmasters of Higher Secondary Schools who possess or acquire Post Graduate qualification in education ie. M.Ed., Degree shall be granted two advance increments in the scales of pay admissible to them.
(ii) The increment now sanctioned shall be granted in addition to their normal annual increments.
(iii) Such of the teachers/Headmasters who have already availed themselves of the incentive increments for M.Ed., qualification under the existing scheme of incentive payments to teachers for acquiring higher qualifications are not eligible to draw the increments now sanctioned in this order.
(iv) These orders will apply to all Higher Seconday Schools under all types of managements.
(v) These orders shall take effect from 1-4-85.
(BY ORDER OF THE GOVERNOR) C. Ramachandran.
Commissioner and Secretary to Govt,
17. Reading of G.O.Ms.No.747, makes it clear that when School Assistants and Headmasters of High School, who possessed or acquired M.Ed., qualifications, they were eligible for two advance increments, the said scheme of incentive increments was not extended to P.G. Teachers and Head Masters of Higher Secondary Schools. Therefore, on the basis of the representations for extending the benefits under the scheme of incentive increments for acquiring additional qualification by P.G. Teachers and Headmasters of Higher Secondary Schools, the Government, by issuing G.O.Ms.No.1267, Finance (Pay Cell), dated 08.12.1985, has constituted a One Man Committee. Based on the One Man Committee's report, the Government have issued G.O.Ms.No.747, thereby, enabling P.G. Teachers or a Headmasters in Higher Secondary School be given two advance increments for M.Ed., qualification.
18. In W.P.No.5191/80, a Secondary Grade Teacher, Mr.Sourirajan, has sought for a Writ of Certiorarified Mandamus, challenging the order of the State Government and the Chief Educational officer, Tirunelveli and quash the same. He prayed for a direction to grant him two incentive increments, from 1976, for acquiring M.Ed., degree, as ordered in G.O.Ms.No.42, Education Department, dated 10.01.1969. He joined the Secondary Grade Teacher in the year 1959 and acquired B.A. Degree and B.Ed., Degree in the years 1968 and 1972 respectively. Incentive increments were given in the scale of Secondary Grade Teacher. He continued to work as Secondary Grade Teacher. In the year 1973, there was an announcement of recruitment of graduate teachers for the Government High Schools and he was selected by the Tamil Nadu Public Service Commission and appointed as School Assistant on 12.01.1974. As School Assistant, he acquired Master of Arts Degree in the year 1975 from Madurai University and Master of Education Degree in the year 1976. On 10.11.1975, he was given two increments for M.A., Degree. When he applied to the Chief Educational Officer, Tirunelveli, for two incentive increments, for M.Ed., his request was rejected on 24.09.1979 by the Director of School Education, Madras. His appeal to the Government, was rejected on 30.04.1980 and thus, challenging the orders, he filed the abovesaid writ petition. Placing reliance on G.O.Ms.No.42, Education Department, dated 10.01.1969 and Letter MS.No.590, Education, dated 29.03.1976, the Deputy Secretary to the Government, Department of Education, Science and Technology, Madras, the Government have opposed the prayer sought for and submitted that the petitioner therein is not entitled to another set of incentive increments for M.Ed., qualification. Vide order, dated 21.10.1986, this Court, while allowing the 5th and 6th increments, passed the following orders, ?There is no dispute that G.O.Ms.No.42, Education Department, dated 10.01.1969, must apparently govern the award of the two incentive increments for the petitioner acquiring M.Ed., degree from 1976. But what is put against the petitioner in Letter Ms.No.590, Education, dated 29.03.1976, where a limitation is prescribed that there could be only four advance increments for acquiring higher qualifications, Certainly this letter cannot override the Government order, referred to above. Practically the impugned orders refers to and relies upon this letter alone that is not permissible. Accordingly, the writ petition is allowed.?
19. One Mr.Asirvatham filed a petition to the authorities that he should be granted the third advance increment for M.Ed qualification. Applying the orders of this Court in the above writ petition 5191/80 dated 21.10.1986, the Government have passed G.O.Ms.No.746, Education, dated 30.06.1989, which is extracted hereunder:-
GOVERNMENT OF TAMIL NADU Abstract Tamil Nadu School Educational Sub-Ordinate Service ? Thiru.V.Asirvatham, School Assistant (Selection Grade) Government Higher Secondary School, Kurathirai Ashioan-dispute (PO) ? Kanyakumari District ? Incentive increment of M.Ed. Qualification already sanctioned ? cancelled and Recovery ordered appeal against recovery and for return of the amount already recovered ? orders ? issued.
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EDUCATION DEPARTMENT G.O.Ms.No.746 Dated : 30.6.1989 Read :
1.G.O.Ms.No.42, Education Department, dated : 16.1.69
2.Government letter ? Ms. No.500, Education Dept, dated 29.3.1976.
3.Petition dated : 20.6.1989 from Thiru.V.Asirvatham, School Assistant (Selection Grade) Government Higher Secondary School, Kuretharai Azhipandiapuram (PO), Kanyakumari District.
4.From the Director of School Education, Madras.6 Letter No.22276/B/K2/88.
********** O R D E R According to G.O.Ms.No.42, Education Department, dated 10.1.1969 the Secondary Grade Teacher on the whole is eligible for four incentive increments viz., two for possession of BT/B.Ed dgree and another for possession of M.A., M.Ed., a School Assistant is eligible for two incentive increment for possession of M.Ed degree and Thiru.A.Savurirajan who has been continuously of servicen has already been granted two incentive increments for possession of his B.Ed. Degree when he was a Secondary Grade Assistant another two for M.A. Degree in the B.T. Assistant Post. He subsequently acquired M.Ed Degree. He represented that he might be granted two more incentive increments for acquiring for M.Ed qualification in the reference 2nd read above, it has been clarified that the maximum number of advance increments which a teacher can get for acquiring higher qualifications under the scheme of incentive increments to school teachers who acquire higher qualification is four. In view of this, it was held that Thiru.Sourirajan who was not eligible for any further incentive increments for his acquiring the M.Ed degree has he already be granted the maximum of four increments with reference to the orders. In the G.O. read above.
Thiru.Sourirajan, then approached the court of law, where it was ordered below. There is no dispute that G.O.Ms.No.42, Education Dept, dated 10.1.1969 must apparently Government, the question of award of the two increments for the petition acquiring M.Ed. degree from 1976 but what is put against the petitioner in letter No.590, dated 20.3.1976, where a limitation is prescribed there could be only four advance increments for acquiring higher qualifications certainly. This letter cannot override the Government order referred to above practically the impugned order refers to and relies upon this letter alone and that not permission.
3.Thiru.V.Asirvatham, School Assistant, Government Higher Secondary Schoo, Kuratharai, Kannyakumari District, who has already got for advance increments two for possessing M.A. qualification based on the orders in the G.O. first cited has citing the above orders of the High Court represented that he may be granted two more advance increments for possessing M.Ed qualification, that no recovery be ordered by the Educational Officer, Nagercoil, need be made and that the amounts already recovered from his pay may be refunded to him.
4.The Government have considered the request of Thiru.V.Asirvatham based on the orders of the High Court referred to in para.3 above as per orders in para.(ii) in the annexure to the Government Order Ms.No.42, Education Dept, dated 10.1.1969, a Teacher is eligible for maximum 6 advance increments. In view of this Government directs that Thiru.V.Asirvatham who has already got four advance increments under the scheme of incentive increments to school teachers who acquire under higher qualifications be eligible for 2 more advance increments for acquiring M.Ed qualification (1) for maximum six advance increments as per the orders in para.(11) of the Annexure to the G.O.Ms.No.42, Education Dept, dated 10.1.1969.
5.The Director of School Education is requested to consider the request of Thiru.V.Asirvatham, School Assistant, Government Higher Secondary School, Kurathirai, Azhagiya Pandiapuram (PO), Kanniyakumari District, to sanction two more advance increments for acquiring M.Ed qualification and to refund the amounts for recovered from him as ordered by the Chief Educational Officer, Nagercoil, in his proceedings Rc.No.27203/A1/34 dated 13.3.1985 with reference to the orders in para.4 above.
6.This order issued with the concurrence of the Finance Dept, with the G.O.Ms.No.8489 dated 9.8.89.
(By order of the Governor) Sd/-
Secretary to Govt., epakdj;jpd; nghnj cah;fy;tpj; jFjp - Cf;f Cjpak; cz;L jkpH;ehL gs;spf; fy;tp ,af;Fehpd; bray;Kiwfs;
brd;id-6 e/f/vz;/193766-nf2-90 ehs; 30/09/90 bghUs;
Cf;f Cjpa cah;t[ - Mrphpah;fSf;F cah; fy;tpj;jFjpf;F mspg;gJ ? Fwpj;J/ ghh;it jkpHf Mrphpah; Tl;lzp bghJr; brayhpd; fojk;. ehs; 28/08/90/ murhiz vz;/745. fy;tp. ehs; 04/06/90y; gj;jp 3y; Those who are acquiring higher qualification vd Fwpg;gplg;gl;Ls;sjhy; jw;bghGJ Fiwe;j gl;r fy;tpj; jFjpf;F nkyhd cah; fy;tpj; jFjpa[ld; gzpapy; nrUgth;fSf;F Cf;fCjpa cah;t[ kWf;fg;gLtjhf ,af;Fehpd; ftdj;jpw;F bfhz;L tug;gl;Ls;sJ/ murhiz vz;/745. fy;tp. ehs; 04/06/90y; gj;jp 3y; Incentive Increment presently available for acquiring higher qualification may be continued vd Fwpg;gplg;gl;Ls;sjhy; nkw;fz;l Miz tUtjw;F Kd;g[ mspf;fg;gl;lJ nghd;W gzpapy; nrUk;nghnj njitahd Fiwe;j gl;r fy;tpj; jFjpf;F nky; cah;fy;tpj;jFjp bgw;wth;fSf;Fk; Cf;f Cjpa cah;t[ tH';fyhk; vd midj;J rhh;epiy mYtyh;fSf;Fk; mwptpf;fg;gLfpwJ/ ,uh/fz;zd;
gs;spf; fy;tp ,af;FeUf;fhf/ In this Director's proceedings, even persons who possess higher qualification, than the required, for the post, at the time of entry into service, have been held as eligible for advance increments.
20. When Mr.Asirvatham was granted additional incentives for acquiring M.Ed qualification, in G.O.Ms.No.746, Education, dated 30.06.1989, others who were similarly placed have made representations. Considering their representations, the Government decided to extend the said benefit to all the persons, who were similarly placed, and accordingly passed G.O.Ms.No.1023,Education, Science and Technology, dated 9.12.1993. Paragraph 3 of the order reads as follows:-
?3. Based on the above orders of the High Court, the individual was allowed the 5th and 6th increments in the G.O., third read above (G.O.Ms.No.746, Education, dated 30.06.1989). Persons placed on similar circumstances had also represented for sanction of 5th and 6th increments and it is considered that normally a decision taken in one case would be of general applicability and will have to be made applicable in all similar cases. But the real intention of the original scheme as envisaged in G.O.Ms.No.42, Education, dated 10.1.69 is to sanction advance increments for higher qualification to a maximum of 4 only. So Government have decided to amend the original orders to bring out the intention of the scheme viz., the maximum admissible increments as four clearly. At the same time Government have decided to sanction the 5th and 6th advance increment allowed to the individual referred to above to all those who are placed under similar circumstances also.?
21. It is also worthwhile to extract Paragraph 4 of G.O.Ms.No.1023, as follows:
?4. Accordingly, the Government direct that Secondary Grade Teachers who got 2 advance increments for B.T. or B.Ed., qualification in the Secondary Grade posts and then 2 advance increments for M.A.or M.Sc., qualification in the post of B.T. Assistant shall be eligible for 2 more advance increments if they have already obtain the M.Ed.,qualification in the post of B.T. Assistant. This concession shall be admissible only to the past cases i.e. to those who have already obtained the above qualification prior to the date of issue of these orders. In future, for maximum number of advance increments admissible to a Teacher for obtaining higher qualification under the orders first read above shall be four only.?
22. Paragraph 4 of the abovesaid Government Order No.1023, makes it abundantly clear that Secondary Grade Teacher, who got 2 advance increments for acquiring B.T. or B.Ed., qualification, in Secondary Grade post and thereafter, 2 advance increments for acquiring M.A.or M.Sc., qualification, in the post of B.T. Assistant and lateron, for acquiring M.Ed.,qualification, in the post of B.T. Assistant, is eligible for grant of two more advance increment, for M.Ed qualification. This concession shall be admissible only to those, who have already acquired the above said qualification, prior to the date of issue of the order. It is further clear that for the maximum number of advance increments, in future, admissible to a Teacher, for obtaining higher qualification, under G.O.Ms.No.42, Education, dated 10.01.1969, shall be four only.
23. At Paragraph 5 of the said Government Order, 1023, the Government have also made it clear that necessary amendments to G.O.Ms.No.42 and G.O.Ms.No.746, stated supra, would be issued separately. In accordance with the above, the Government have issued G.O.Ms.No.1024, Education, Science & Technology Department, dated 09.12.1993, amending G.O.Ms.No.42 and 746, stated supra, respectively. G.O.Ms.No.1024, reads as follows:-
GOVERNMENT OF TAMIL NADU Education ? Incentive increment to teachers in Schools ? for acquiring higher educational qualification ? Admissibility of No., of incentive increment ? Orders ? Issued.
EDUCATION, SCIENCE & TECHNOLOGY DEPARTMENT G.O.Ms.No.1024 Dated 9.12.1993 READ:
1. G.O.Ms. No.42, Education, dated 10.1.1969
2. Government Letter Ms. No.590, dated 29.3.76.
3. G.O. Ms. No.746, Education, dated 30.6.89
4. G.O.Ms. No. 1023, Education, dated 9.12.1993.
ORDER:
In the G.O. first read above Government have issued orders sanctioning incentive increments to teachers for acquiring higher qualification. As per the above orders read with the Government letter second read above, the maximum number of advance increments admissible to a teacher is four. However, in a particular case who got two increments while working as Secondary Grade Teacher and then after promotion as B.T. Assistant and passed M.A., and then M.Ed., qualifications the High Court has passed orders and allowed 5th and 6th increments, In its order, dated 21.10.86 in W.P.No.5191 of 1986, the High Court has held as follows:
?There is no dispute that G.O.Ms.No.42, Education Department, dated 10.01.1969, must apparently govern the award of the two incentive increments for the petitioner acquiring M.Ed., degree from 1976. But what is put against the petitioner in Letter Ms.No.590, Education, dated 29.03.1976, where a limitation is prescribed that there could be only four advance increments for acquiring higher qualifications, Certainly this letter cannot override the Government order, referred to above. Practically the impugned orders refers to and relies upon this letter alone that is not permissible.
Accordingly, the writ petition is allowed.?
2) Government have examined the need for allowing the 5th and 6th increments to persons in similar circumstances and issuing fresh orders setting out the fact of the admissibility of its to future cases separately and accordingly orders were issued in the G.O. fourth read in para 5 in the above G.O., orders have also been issued that necessary amendment to the first and third read above will be issued separately.
3) Government now issue the following amendments to the G.O. first and third above.
(i) In the annexure to G.O.Ms.No.42,Education, dated 10.1.1969, for paragraph (ii) the following paragraph shall be substituted, namely : (ii) A Secondary Grade Teacher who has passed B.T. or B.Ed., degree examination and obtained two advance increments shall be eligible for another two advance increments for passing M.A., M.Sc., or M.Ed., degree while working either in the Secondary Grade post or in B.T. / B.Ed., Assistant post. Advance increment shall be eligible for another two advance increments if qualified M.Ed., degree while working in B.T. Assistant post or Headmaster post.
(ii)(a) The maximum number of advance increments which a Teacher had got under the scheme of incentive increments under this Government Order shall be four in his entire service.
2. In G.O.Ms.No.746, Education, dated 30.6.89, for paragraph 4, the following paragraph substituted, namely :
3. The Government have considered the orders of the High Court referred to in para 3 above and the request of Thiru.V.Asirvatham, to allow two more advance increments to him, for acquitting M.Ed., qualification.
4. These orders shall take effect from the date of issue.
5. This order issues with the concurrence of Finance Department, vide its U.O.84674/Education/93-1, dated 14.10.1993. (By Order of the Governor) Jayanthi, Secretary to Government.
24. The question as to how many advance incentive increments each Secondary Grade Teacher/BT Teacher would be entitled to receive has been considered by the Government and orders have been issued in, G.O.Ms.No.1023,Education, Science and Technology dated 9.12.1993 and at paragraph 4 of the G.O., the Government directed that secondary grade teachers, who got two advance increments for B.T. or B.Ed. qualification in the Secondary Grade post and other two advance increments for M.A., M.Sc., degree qualification, in the post of B.T. Assistant shall be eligible for two more advance increments, if they have already obtained M.Ed., qualification in the post of B.T. Assistant. This concession shall be admissible only to past cases i.e. to those who have already obtained the above qualification, prior to the date of issue of the government order. In future, the maximum higher qualification under the order first read above shall be four only. This position has been reiterated by the Director of Elementary Education, Chennai, in his proceedings dated 25.06.1994.
15/01/94 ehspl;l e/f/vz;/52677-<o4-93 vz;zpl;l jkpH;ehL bjhlf;ff; fy;tp ,af;Fehpd; bray;Kiwfspd; cz;ik efy;
bghUs;: bjhlf;ff; fy;tp - cah;fy;tpj; jFjpf;F Cf;f Cjpak; tH';Fjy; rpy bjspt[iufs; tH';Fjy; rhh;g[/ ghh;it;: 1/ ,af;Fehpd; bray;Kiwfs; e/f/vz;/52677-<o4-93. ehs; 15/01/1994 2/ murhiz vz;/1023 fy;tp mwptpay; & bjhHpy;El;gk;. ehs; 09/12/1993/ 3/ murhiz vz;/42 fy;tp ehs; 10/01/69/ ghh;it (1)y; fhZk; ,af;Fehpd; bray;Kiwfspd; bjhlh;r;rpahff; fPH;fhZk; bjspt[iufs; tH';fg;gLfpwJ/ murhiz 1023 fy;tp ehs; 09/02/93y; gj;jp 4y; bjhptpj;Js;s ,ilepiy Mrphpah;fs; gp/o/ my;yJ gp/vl;/ fy;tpj; jFjpf;F ,uz;L Cf;f Cjpa cah;t[fs; bgw;wpUg;ghh;fshdhy; mjw;fLj;J vk;/V/ fy;tpj;jFjpf;F ,uz;L Cf;f Cjpa cah;t[fs; mDkjpf;fyhk;/ nkYk; xU ,ilepiy Mrphpah; gl;ljhhp Mrphpah; gzpaplj;jpw;Fg; gjt[ cah;t[ bgw;Wr; bry;Yk;nghJ mtuJ vk;/vl;/ fy;tpj;jFjpf;F K:d;whtJ Kiwahf Cf;ff Cjpa cah;t[ mDkjpa[k; nkYk; Mrphpah;fs; 09/12/93f;F Kd; cah; fy;tpj; jFjp bgw;why; jhd; ,r;rYifapd; fPH; Cf;f Cjpa cah;t[ bgw ,aYk; vdj;bjhptpf;f;g;gl;Ls;sJ/ ghh;it 3y; bjhptpj;Js;s murhiz. Murhiz vz;/42 fy;tp ehs; 10/01/69 kw;Wk; murhiz vz;/746 fy;tp ehs; 30/06/89 Mfpa ,U murhizfSf;Fk; jpUj;jk; tH';fg;gl;l murhizahYk; kw;Wk; ,t;turhizfspd; fUg;bghUs; ,dp tU';fhy';fspy; (mjhtJ 09/12/93)f;Fg; gpwF Mrphpah;fs; j';fs; gzpaplj;jpw;Fg; nghJkhd fy;tpj; jFjpf;F nky; Tljy; fy;tpj; jFjp bgw;wpUe;jhYk;. Cf;f Cjpa rYifapd; fPH; ehd;F Cjpa cah;t[jhd; mDkjpf;f ntz;Lk; vd;gJ/ vdnt ghh;it 2 & 3y; bjhptpj;Js;s murhizfspy; fUg;bghUs; mog;gilapy; cjtpj; fy;tp mYtyh;fSf;Fjf;f mwpt[iu tH';FkhW khtl;lf; fy;tp mYtyh;fs; nfl;Lf; bfhs;sg;gLfpwhh;fs;/ nkYk; ,dp tU';fhy';fspy; ve;jtpjf; Fhg;g';fSf;Fk; bjhptpiufSf;Fk; ,lkspf;fhky; ghh;j;Jf;bfhs;Sk;go khtl;lf; fy;tp mYtyh;fSf;Fk; bjhptpf;fg;gLfpwJ/ R/gukrptd;.
bjhlf;ff; fy;tp ,af;Feh;
-cz;ik efy;-
Cf;f Cjpa cah;t[ tpsf;fk;
jkpH;ehL bjhlf;ff; fy;tp ,af;Fehpd;
bray;Kiwfs;. brd;id 6/ e/f/vz;/52377-<o4-93 ehs; 25/06/94 bghUs; bjhlf;ff; fy;tp cah; fy;tp jFjpf;F Cf;f Cjpak; tH';Fjy; rpy bjspt[iufs; tH';Fjy; rhh;g[
ghh;it 1/ ,af;Fehpd; bray; Kiwfs; e/f/vz;/52677-<o ehs; 04/01/1994 kw;Wk; 15/01/1994/ 2/ murhiz vz;/1023 fy;tp mwptpay; bjhHpy;
El;;gk; ehs; 09/12/1993/ 3/ murhiz vz;/1024 fy;tp mwptpay; bjhHpy;
El;gk; ehs; 09/12/1993/ ghh;it 1y; fhZk; ,af;Fehpd; bray;Kiwfspd; bjhlh;rpahf fPH;fhZk; bjspt[iufs; tH';fg;gLfpwJ/ murhiz 1023 fy;tp ehs; 09/12/1993y; gj;jp 4y; bjhptpj;Js;sgo ,ilepiy Mrphpah;fs; gpo my;yJ gp/vl; fy;tpj; jFjpf;F ,uz;L Cf;f Cjpa cah;t[fs; bgw;wpUg;ghh;fshdhy; mjw;fLj;J vk;/V/ fy;tp jFjpf;F ,uz;L Cf;f Cjpa cah;tpfs; mDkjpf;fyhk;/ nkYk; xU ,ilepiy Mrphpah; gl;ljhhp Mrphpah;fs; gzpaplj;jpw;Fg; gjtp cah;t[ bgw;W bry;Yk; nghJjhd; vk;/vl;/fy;tpj; jFjpf;F K:d;whtJ Kiwahf bry;Yk; nghJjhd; vk;/vl; fy;tpj; jFjpf;F K:d;whtJ Kiwahf Cf;f Cjpa cah;t[ Mdkjpf;f ,aYk; nkYk; Mrphpah;fs; 09/12/93f;F Kd; cah; fy;tpj;jFjp bgw;wpUe;jhy;jhd; ,r;rYifapd; fPH; Cf;f Cjpa cah;t[ bgw ,aYk; vdj; bjhptpf;fg;gl;Ls;sJ/ ghh;it 3y; bjhptpj;Js;s muriz. Murhiz vz;/42 fy;tp ehs; 10/01/69 kw;Wk; murhiz vz;/746 fy;tp ehs; 30/06/89 Mfpa murhizfSf;F jpUj;jk; (Amendment) tH';fg;gl;l murhizahFk;/nkYk;,t;turhizapd; fU bghUs; ,dp tU';fhy';fspy; (mjhtJ 09/12/1993f;Fg; gpd; Mrphpah;fs; j';fs; gzpaplj;jpw;Fg; nghJkhd fy;tpj;jFjpf;F nky; Tljy; fy;tpj; jFjp bgw;wpUe;jhYk; Cf;f Cjpa rYifapd; fPH; ehd;F Cjpa cah;t[jhd; mDkjpf;f ntz;Lk; vd;gJ/ vdnt ghh;it 2 3y; bjhptpj;Js;s murhizfspd; fUbghUspd; mog;gilapy; cjtpfy;tp mYtyh;fSf;F jf;f mwpt[iu tH';FkhW khtl;lf; fy;tp mYtyh;fs; nfl;Lf; bfhs;sg;gLfpwhh;fs;/ nkYk; ,dp tU';fhy';fspy; ve;jtpj Fhg;g';fSf;Fk; bjspt[iufSf;Fk; ,lkspf;fhky; ghj;Jf; bfhs;Sk;go khtl;lf; fy;tp mYtyh;fSf;F bjhptpf;fg;gLfpwJ/ R/gukrptd;.
bjhlf;fk; fy;tp ,af;Feh;/
25. Now let us consider some of the decisions relied on by the respondents.
(a) In Writ Appeal Nos.2604 to 2606 of 1999, dated 20.6.2006, the matter pertains to Post Graduate Teachers and Headmasters. The Writ Court has granted directions to grant advance increments for the abovesaid teachers, for acquiring higher qualification. Appeals have been filed by the Director of School Education, Madras and others. Pursuant to the orders, made in the abovesaid batch of writ appeals, the Government have issued orders in G.O.Ms.No.194, dated 10.10.2006, granting advance increment to Post Graduates, who have acquired M.Phil qualification, prior to 10.10.2006, by deleting the cut of date, ie., on 01.03.1993, from Paragraph 3(ii) of G.O.Ms.No.1170. G.O.Ms.No.285, School Education Department, dated 28.11.2007, has been issued, in respect of Post Graduate teachers/Higher Secondary School Headmasters/Headmistress.
(b) G.O.Ms.No.17, School Education Department, dated 08.01.2008, has been issued pursuant to the orders passed, in respect of five Tamil teachers, by which, the third incentive has been permitted and acquired higher qualification before 09.12.1993. In the abovesaid Government order, the Government have sanctioned third set of incentive increment to similarly placed persons, by accepting the Hon'ble Division Bench order of this Court made in W.A.Nos.2604 to 2606 of 1999, 1154 to 1156, 2150 and 1193 of 2000 and W.A.Nos.995 to 1003 of 1999, dated 20.06.2006. Reading of the abovesaid Government Order shows that the appeals preferred by the Director of School Education, Madras, against the verdict given in the case filed by R.Premakumari, a teacher, has been rejected by the Hon'ble Supreme Court. G.O.(1D)No.209, School Education Department, dated 08.07.2010, is in respect of an Headmaster for grant of additional incentive, for acquiring M.Phil.
(c) W.P.No.7968 of 2003, dated 15.11.2005 [D.Palavesamuthu v. The Tamil Nadu Administrative Tribunal] relied on by the learned counsel for the petitioners, pertains to scale of pay and therefore, it is inapposite to the facts of this case. In W.P.No.42299 of 2006, dated 24.03.2009, [P.Subramanian v. The Director of School Education] decided by the Hon'ble Mr. Justice Paul Vasanthakumar, the petitioner therein, was appointed as B.T. Assistant on 20.7.1966. He acquired M.A., Degree in 1975 for which one set of incentive increment was sanctioned to him. Thereafter, he passed M.Ed., Degree in 1978, for which also one set of incentive increment was sanctioned. After the introduction of Higher Secondary system, he was promoted as P.G. Assistant (History) on 10.7.1978. Thereafter, he acquired P.G.Diploma in Teaching English in 1987 and promoted as Headmaster of a Higher Secondary School on 1.8.1990. Thereafter, he made a representation to sanction one set of incentive increment for the above qualification of P.G.Diploma in teaching English in terms of G.O.Ms.42, Education Department dated 10.01.1969. Placing reliance on G.O.Ms.No.1170, Education, dated 20.12.1993, he claimed that P.G.Teachers, working in Higher Secondary Section, for acquiring higher qualification, as on 1.3.1993, are eligible for two incentive increments and that he is also eligible to get one set of increment for obtaining P.G.Diploma in teaching English course. This Court allowed the prayer sought for. This case relates to Post Graduate teacher.
(d) In W.P.No.11337 of 2008, dated 30.06.2011 [K.S.Rengasamy v. The Chief Educational Officer] relates to a challenge of an order, dated 05.09.2007, passed by the Chief Educational Officer, Madurai, by which, the said authority held that the petitioner therein was erroneously granted the incentive increment for acquiring M.A., degree and he is not entitled to get the third increment, as per G.O.Ms.No.1023, Education Department, dated 09.12.1993. Consequent to the same, the School authorities directed the petitioner therein to repay the third advance increment received. The petitioner therein was working as a Secondary Grade Teacher and he passed B.Ed., degree in December 1983. He was granted incentive increment for obtaining the higher qualification, namely B.Ed. Thereafter, he passed M.Ed. in December 1987, for which also, he was granted incentive increment. Thereafter, he passed M.A. degree in November 1989. He was granted incentive increment for obtaining M.A. degree also. Thereafter, he retired from service, on reaching the age of superannuation on 30.06.2005. Following the decision made in R.Premakumari v. State of Tamil Nadu reported in 2008 (3) LW 383, this Court accepted the submission of the learned counsel for the petitioner therein that G.O.Ms.No.1023, Education Department, dated 09.12.1993 permits third incentive increment for those, who have already acquired qualification prior to the date of the Government Order. Paragraphs 8 and 9 of the judgment in Premakumari's case are worth reproduction. ?7. The learned single Judge has observed "Incentive increments are granted only for persons acquiring higher qualifications while in service but not to a person, who possesses a higher qualification even before entering into service."
8. We do not think the aforesaid observation of the learned single Judge can stand the scrutiny of logic or even reality. The obvious intention in granting an incentive increment is for attracting higher qualified people or for encouraging the existing employees to acquire higher qualification, even though in service, so that the quality of service would improve. This is obviously on the assumption that a higher qualified person could work more efficiently. Therefore, it defies logic as to why a person who had already qualified would not get an incentive increment, if such an incentive increment is given to a lower qualified person in service, who acquires subsequently such higher qualification. Such a differential treatment would not stand the scrutiny of right to equality as enshrined in Article 14 and 16 of the Constitution."
(e) In W.P.No.49421 of 2006, dated 21.07.2011 [M.Shanthi v. Assistant Elementary Educational Officer, Namakkal] the petitioner therein joined as a Secondary Grade Assistant on 10.11.1987. She passed M.A. Degree in 1989. She was sanctioned incentive increment on 04.01.1990 for acquiring M.A. Degree. She also passed M.Ed. Degree. She was sanctioned another incentive increment on 21.05.1995 for acquiring M.Ed. Degree. However, recovery was ordered, based on the Audit objection. Taking note of the decisions made in R.Premakumari v. State of Tamil Nadu reported in 2008 (3) LW 383 and W.P.No.15419 of 2005, dated 24.01.2007, which was also confirmed in W.A.No.230 of 2008, dated 06.01.2009, this Court quashed the order of recovery.
(f) W.P.(MD)No.1049 of 2012, dated 17.07.2012 [S.Saleth mary v. Director of Elementary Education, Chennai], is also a similar order. The order made in W.P.No.11450 of 2012, dated 14.09.2012 [Sudalaimuthu v. Director of School Education], passed by Hon'ble Mr. Justice Vinod K.Sharma, is against an order, rejecting the request of incentive increment for possessing qualification of M.Phil, for Post Graduate teachers. Reference has been made to Premakumari's case.
(g) In W.P.Nos.27252 and 27253 of 2009, dated 02.09.2013 [R.Bakthavachalam v. Director of School Education], taking note of the Hon'ble Division Bench decisions made in W.A.Nos.2604 to 2606 of 1999, dated 27.06.2008 and W.A.(MD)No.426 of 2008 and G.O.Ms.No.194, School Education Department, dated 10.10.2006, this Court has directed the respondents therein to provide incentive increment to the petitioners therein, from the date on which, they acquired M.Phil Degree.
26. Now let us consider the decisions relied on by the learned Special Government Pleader.
(a) In Harpal Kaur Chahal v. Director, Punjab Instructions, reported in 1995 Supp (4) SCC 706, the Apex Court held that once the High Court by applying a wrong test has found certain ineligible candidates to be eligible and upheld their appointment, such a judgment would not constitute a ground for the Supreme Court to extent the benefit thereof to other candidates appointed illegally. The said judgment is inapposite to the facts of this case, for the reason that the Government after considering the representation of teachers, have decided to extend the benefits of granting to similarly placed persons and accordingly passed G.O.Ms.Nos.1023 and 1024.
(b) Union of India vs. Jaipal Singh, reported in 2004 (1) SCC 121, has been relied on for the purpose that dismissal of the SLP at the threshold without reason has no precedential value. The said decision has been relied on for he purpose that when Premakumari's case (2008 (3) LW 383), was dismissed at the threshold by the Supreme Court, it cannot be said to be precedent. There cannot be any quarrel over the said proposition. But the case on hand rests on the decision of the Government in extending the third incentive increment to the B.T teachers, uniformly and the said decision has been reiterated by the Director of Elementary Education, Chennai, in his proceedings dated 15.01.1994 and 25.06.1994 respectively.
(c) Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani, reported in (2004) 8 SCC 579, has been relied on for the proposition that courts should not place reliance on decisions without discussing as to how the factual situation fits with the fact situation of the decision on which reliance is placed. Here again, there cannot be any dispute over the legal proposition. In all the cases relied on by the learned counsel for the petitioner, court has considered the applicability of the previous orders. It is one thing to state that the orders relied on by the Court, are not applicable to the cases decided, and the other, to contend that there was no discussion at all. We cannot subscribe to the contention of the learned Special Government Pleader that there was no discussion at all, on the principle to be followed in the matters regarding grant of incentive increments.
(d) COL.B.J.Akkara (Retd.) vs. Government of India, reported in 2006 (11) SCC 709, has been cited in support of the contention of the appellants in the present case that many Government orders were passed under compulsion and merely because the Government have decided to implement the court orders, it would be barred from resisting the subsequent writ petition involving similar issues, considering the seriousness or magnitude of the issues or financial implication. Paragraphs 24 to 26 of the judgment is the answer to the above question.
?24. The respondents have filed an affidavit dated 1-8-2006 admitting that in pursuance of the decision of the Delhi High Court, the circular dated 29-10-1999 had been withdrawn but clarified that it was withdrawn only in regard to the Civilian Medical Officers who were petitioners in the said writ petititions and not in regard to all Civilian Medical Officers. It is contended that the fact that a decision of the High Court had been accepted or implemented in the case of some persons, will not come in the way of the Union of India resisting similar petitions filed by others in public interest.
25. A similar contention was considered by this Court in State of Maharashtra v. Digambar (1995) 4 SCC 683. This Court held: (SCC p. 691, para
16) ?Sometimes, as it was stated on behalf of the State, the State Government may not choose to file appeals against certain judgments of the High Court rendered in writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this Court under Article 136 of the Constitution, for seeking redressal therefor. At other times, it is also possible for the State, not to file appeals before this Court in some matters on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, that even where SLPs are filed by the State against judgments of the High Court, such SLPs may not be entertained by this Court in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State. Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some SLPs in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an SLP or SLPs in other similar matter(s) where it is considered on behalf of the State that non-filing of such SLP or SLPs and pursuing them is likely to seriously jeopardise the interest of the State or public interest.?
26. The said observations apply to this case. A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non- comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a ?pick-and-choose? method only to exclude petitioners on account of mala fides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29-10-1999 (corresponding to the Defence Ministry circular dated 11-9-2001) has been upheld and that decision has attained finality will not come in the way of the State defending or enforcing its circular dated 11-9-2001."
27. Though the Apex Court has answered the question in favour of the Government, in the case on hand, it should be noted that when this Court in W.P.No.5191/80 dated 21.10.1986 directed the Government to grant third advance increment, to a B.T teacher, in compliance with the directions, when a similarly placed person, Mr.Asirvatham made a petition to the educational authorities to grant third incentive increment, the Government have issued G.O.Ms.No.746, Education, dated 30.06.1989. Subsequently, when similarly placed persons made representations, the Government have considered their representation and taken a conscious decision to apply the same yardstick to all the similarly placed persons. The Government was also aware of the fact that the order in W.P.No.5191/80 dated 21.10.1986 was rendered only in the case of an individual, but, by observing that it should be made applicable to all persons, similarly placed, the Government have issued two orders, G.O.Ms.Nos.1023 and 1024 respectively. At the risk of repetition, paragraphs 3 and 4 of G.O.Ms.No.1023 are reproduced hereunder:-
?3. Based on the above orders of the High Court, the individual was allowed the 5th and 6th increments in the G.O., third read above (G.O.Ms.No.746, Education, dated 30.06.1989). Persons placed on similar circumstances had also represented for sanction of 5th and 6th increments and it is considered that normally a decision taken in one case would be of general applicability and will have to be made applicable in all similar cases. But the real intention of the original scheme as envisaged in G.O.Ms.No.42, Education, dated 10.1.69 is to sanction advance increments for higher qualification to a maximum of 4 only. So Government have decided to amend the original orders to bring out the intention of the scheme viz., the maximum admissible increments as four clearly. At the same time Government have decided to sanction the 5th and 6th advance increment allowed to the individual referred to above to all those who are placed under similar circumstances also.?
?4. Accordingly, the Government direct that Secondary Grade Teachers who got 2 advance increments for B.T. or B.Ed., qualification in the Secondary Grade posts and then 2 advance increments for M.A.or M.Sc., qualification in the post of B.T. Assistant shall be eligible for 2 more advance increments if they have already obtain the M.Ed.,qualification in the post of B.T. Assistant. This concession shall be admissible only to the past cases i.e. to those who have already obtained the above qualification prior to the date of issue of these orders. In future, for maximum number of advance increments admissible to a Teacher for obtaining higher qualification under the orders first read above shall be four only.?
28. Having taken a decision in 1993, to extend the benefits to similarly placed persons, it is too late in the day, and that too, after two decades to contend that the decision taken in the year 1993, was under
compulsion. The Government cannot approbate and reprobate. Reference can be made to the following decisions:-
(a) In Cauvery Coffee Traders, Mangalore, Vs. Hornor Resources (International) Company Limited., reported in 2011 (10) SCC 420, the Supreme Court at paragraph 35, held as follows:-
"35. Thus, it is evident that the doctrine of election is based on the rule of estoppel?the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had."
(b) In Joint Action Committee of Air Line Pilots' Association of India (ALPAI) Vs. Director General of Civil Aviation, reported in 2011 (5) SCC 435, the Supreme Court, at paragraph 12, held as follows:-
"12. The doctrine of election is based on the rule of estoppel?the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. [Vide Babu Ram v. Indra Pal Singh, reported in 1998 (6) SCC 358, P.R. Deshpande v. Maruti Balaram Haibatti, reported in 1998 (6) SCC 507, and Mumbai International Airport (P) Ltd. v. Golden Chariot Airport [2010 (10) SCC 422 = 2010 (4) SCC (Civ) 195]."
29. It is also to be noted that the Government have issued G.O.Ms.No.1024 making amendments to G.O.Ms.No.42, Education Department, dated 10.01.1969, and G.O.Ms.No.746, Education, dated 30.06.1989. Action of the Government in extending the benefit to similarly placed persons cannot be undone nor it is open to the Government to contend that it was under
compulsion. The Government is bound to follow its decision. At this juncture, we deem it fit to state that If the Government chooses to implement an order of the court, it should not be projected, as if it was under
compulsion. The Government is bound to follow its decision. Parties are bound to obey the orders of the Court, unless it is set aside by higher forums. Court does not prevent the Government from challenging the orders. Having implemented the orders, the contentions raised in the present case, runs contrary to the very system of administration of justice. No doubt, as per the law of the land, Col.B.J.Akkara's case, the Government can resist similar claims, but there should be public interest, and it should be for other reasons stated in the said judgment.
30. In Basawaraj and another vs. Special Land Acquisition Officer, (Civil Appeal No.6974 of 2013, decided on 22.08.2013), the Apex Court, at paragraph 8 held as follows:-
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/ benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide: Chandigarh Administration & Anr. v. Jagjit Singh & Anr., AIR 1995 SC 705, M/s. Anand Button Ltd. v. State of Haryana & Ors., AIR 2005 SC 565; K.K. Bhalla v. State of M.P. & Ors., AIR 2006 SC 898;
and Fuljit Kaur v. State of Punjab, AIR 2010 SC 1937)."
31. Nobody can have any quarrel over the legal proposition. We are unable to understand as to how the Government's decision to grant third incentive increment to a B.T. teacher for acquiring M.Ed., while serving as B.T teacher, in the year 1993, by fixing a cut off date, can be said to be illegal by the Government itself, in 2014. At one stage, the Government takes a decision to implement the orders of the court to all the similarly placed persons and lateron, when a claim is made on the basis of the very same G.O.Ms.No.1023, objections are being made that illegality cannot be perpetuated. On the reliance to the judgment and objections, we have to only state that the respondents have not understood what is meant by illegality.
32. On the aspect of dismissal of SLP, at the time of admission stage, in Supreme Court Employees Welfare Association vs. Union of India, reported in AIR 1990 SC 334, at paragraphs 22, 24 and 28, the Apex Court held as follows:-
"22.It has been already noticed that the Special Leave Petitions filed on behalf of the Union of India against the said judgments of the Delhi High Court were summarily dismissed by this Court. It is now a well settled principle of law that when a Special Leave Petition is summarily dismissed under Article 136 of the Constitution, by such dismissal this Court does not lay down any law, as envisaged by Article 141 of the Constitution, as contended by the learned Attorney General. In Indian Oil Corporation Ltd. v. State of Bihar, [1986] 4 SCC 146 it has been held by this Court that the dismissal of a Special Leave Petition in limine by a non-speaking order does not justify any inference that, by necessary implication, the contentions raised in the Special Leave Petition on the merits of the case have been rejected by the Supreme Court. It has been further held that the effect of a non-speaking order of dismissal of a Special Leave Petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where Special Leave Petition should be granted. In Union of India v. All India Services Pensioners Association, AIR 1988 SC 50 1 this Court has given reasons for dismissing the Special Leave Petition. When such reasons are given, the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. It, therefore, follows that when no reason is given, but a Special Leave Petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by this Court under Article 14(1) of the Constitution.
24.Thus, a decision on an abstract question of law unrelated to facts which give rise to a right, cannot operate as res judicata. Nor also can a decision on the question of jurisdiction be res judicata in a subsequent suit or proceeding. But, if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent suit or proceeding, if the cause of action is the same. The Delhi High Court judgments do not decide any abstract question of law and there is also no question of jurisdiction involved. Assuming that the question of juris- diction involved. Assuming that the judgments of the Delhi High Court are erroneous, such judgments being on questions of fact would still operate as res judicata between the same parties in a subsequent suit or proceeding over the same cause of action.
28.The doctrine of res judicata is a universal doctrine laying down the finality of litigation between the parties. When a particular decision has become final and binding between the parties, it cannot be set at naught on the ground that such a decision is violative of Article 14 of the Constitution. So far as the parties are concerned, they will always be bound by the said decision. In other words, either of the parties will not be permitted to reopen the issue decided by such decision on the ground that such decision violates the equality clause under the Constitution. There is no question of overruling the provision of Article 14, as contended by the learned Attorney General. The judgment which is binding between the parties and which operates as res judicata between them, cannot be said to overrule the provision of Article 14 of the Constitution even though it may be, to some extent, violative of Article 14 of the Constitution. So far as the Supreme Court employees are concerned in these proceedings the only enquiry to be made is whether the judgments of the Delhi High Court relating to the L.D.Cs. and the Class IV employees have become final and conclusive between the employees of the Delhi High Court and the Union of India."
33. There is no quarrel over the preposition. But the fact that the order made in W.P.No.5191 of 1980, dated 21.10.1986, has become final and conclusive between the parties and also to similarly placed, cannot be disputed.
34. Let us consider two other Hon'ble Division Bench judgments on the issue of granting incentive increment.
(a) In The Director of School Education vs. S.Shanmugam (W.A.No.604 of 2005, decided on 03.04.2008), a Tamil Pandit Grade I was denied third incentive for acquiring M.Ed qualification. Facts of the case and the decision therein are extracted.
?2. The factual matrix of the case is as follows:-
The first respondent acquired the degree in Bachelor of Literature (Tamil) and on the basis of the said qualification, he was appointed in the second respondent-school as Grade-I Tamil Pandit on 26.6.75. Thereafter, he passed his M.A. Degree in the year 1984, B.Ed., in the year 1985 and M.Ed., in the year 1988. On the basis of the Government Orders in vogue, he was granted two incentive increments for acquiring the M.A. Degree in the year 1984 and thereafter, further two increments for his B.Ed., Degree obtained in the year 1985. Thereafter, a further request for payment of two more incentive increments for acquiring the M.Ed. Degree was made through the Correspondent of the school in letter dated 12.9.96. The said request was negatived by the District Educational Officer, Tiruvannamalai in his proceedings dated 21.11.96 on the ground that in terms of the G.O.Ms.No.107, Education Department dated 20.1.76, a Tamil pandit on his obtaining subsequent higher qualification would be entitled to only 2+2 advance increments i.e., in all, four increments only. As the first respondent had already availed the benefit of two incentive increments for M.A. Degree and two more incentive increments for B.Ed. Degree, he is not entitled for any further increments. The said order was questioned by the first respondent/Tamil pandit in the writ petition. By order dated 29.9.2004, the claim of the first respondent was accepted and therefore the writ petition was allowed with a direction that he is entitled to two more incentive increments for acquiring the M.Ed. Degree.
The said order in the writ petition is put in issue by the Director of School Education and the District Educational Officer, Tiruvannamalai in this appeal.
3. Mr.P.Subramanian, learned Government Advocate appearing for the appellants has submitted that in terms of G.O.Ms.No.107, Education Department dated 20.1.76, a Tamil pandit who was appointed on the strength of B.Litt. Degree is not entitled to any further advance incentive increments, as he is entitled to only two advance increments for M.A. Degree and two more advance increments for M.Ed. Degree and not more than that. Hence the learned single Judge by placing reliance on the G.O.Ms.No.1023, Education, Science and Technology Department dated 9.12.93 directing the appellants to pay two more increments to the first respondent is not correct.
5. It is true that by G.O.Ms.No.107, Education Department dated 20.1.76, Grade-I Tamil pandits possessing B.A., or B.O.L., Degree can be appointed only if they have passed B.T. As they possess B.T., there was no incentive increments admissible to such Tamil pandits for passing B.T., and therefore such Tamil pandits are only entitled for two incentive increments for passing M.A., and two more for passing M.Ed. Our attention was drawn to the order of the Tamil Nadu Administrative Tribunal made in a batch of Original Applications, namely, O.A.Nos.3193 of 1991 etc., and by order dated 4.2.94, the Tribunal, after following the orders passed in O.A.Nos.1417 to 1421 of 1993 dated 30.11.93, found that when two more advance increments are available for a Tamil pandit working in Secondary Grade post, why such a benefit should be denied to a Tamil pandit working in Grade-I after obtaining B.Litt., Degree. By holding so, the provisions for sanction of increments in item (2) of the G.O.Ms.42 dated 10.1.69 and in G.O.Ms.No.107 Education dated 20.1.76 were set aside. It is the contention of the learned counsel for the first respondent that the order of the Tribunal in setting aside the G.O.Ms.No.107 Education dated 20.1.76 has not been questioned by the State and therefore it has become final. The learned counsel in fact submitted that the orders of the Tribunal were implemented in respect of number of Tamil pandits who are similarly placed like that of the first respondent and therefore it is not correct to question the order of the learned single Judge only in the case of the first respondent. In fact he produced an order of sanction made by the proceedings of the Headmaster of Kilpennathur Government Higher Secondary School, Tiruvannamalai dated 20.2.94 giving the benefit of the two more incentive increments in addition to the four increments already granted to the teacher.
6. We have also perused the G.O.Ms.No.107 Education dated 20.1.76, whereby the two increments for passing M.A. Degree and two more increments for passing M.Ed. Degree are made admissible for B.T. Tamil pandit, as no increments were made available for such of those Tamil pandits who possessed B.T. Qualification. On the other hand, it is not in dispute that a Tamil pandit who is appointed as Grade-II namely, Secondary Grade teacher is made eligible for two advance increments for the qualification of B.T., and thereafter four advance increments in all for the higher qualifications. Such being the admitted position, the learned counsel for the first respondent is justified in contending that the discrimination of the Grade-I and Grade-II Tamil pandits who are performing the same duties only for the purpose of entitlement of the advance increments is violative of Article 14 of the Constitution of India. That apart, we have also gone through the G.O.Ms.No.1023 Education, Science and Technology Department dated 9.12.93. It appears that this Court in W.P.No.5191 of 1986 by order dated 11.10.88, while considering a similar situation had observed as follows:- "There is no dispute that G.O.Ms.No.42, Education Department dated 10.1.1969, must apparently govern the question of award of the two incentive increments for the petitioner acquiring M.Ed. Degree from 1987. But what is put against the petitioner in letter Ms.No.590, Education, dated 29.3.1976, where a limitation is prescribed that there could be only four advance increments for acquiring higher qualification. Certainly this letter cannot override the Government Order, referred to above. Practically the impugned order refers to and relies up on this letter alone and that is not permissible. Accordingly, the writ petition is allowed."
7. By the said direction, this Court had in fact recognised a total of six incentive increments. In obedience to the said direction of this Court, the above Government Order was issued and in paragraph-4 of the Government Order, it is stated as follows:- "4. Accordingly, the Government direct that Secondary Grade Teachers who got 2 advance increments for B.T. or B.Ed. qualification in the Secondary Grade posts and then 2 advance increments for M.A. or M.Sc. qualification in the post of B.T. Assistant shall be eligible for 2 more advance increments if they have already obtained the M.Ed., qualification in the post of B.T. Assistant. This connection shall be admissible only to the past cases i.e., to those who have already obtained the above qualification prior to the date of issue of these orders. In future, the maximum number of advance increments admissible to a Teacher for obtaining higher qualification under the orders first read above shall be four only."
8. A perusal of the said paragraph-4 shows that a Secondary Grade Teacher with B.T., or B.Ed., qualification in the Secondary Grade post is entitled for two advance increments in addition to four advance increments for M.A., and M.Ed., qualification. This Government Order is made applicable for all those who are serving as Tamil pandits, of course, as Secondary Grade Teacher. In that view of the matter, if a benefit could be extended to a Secondary Grade Teacher working as Grade-II Tamil pandit, why the same benefit should not be extended to a Grade-I Tamil pandit who is also performing the same duty, of course, after obtaining B.Litt. Degree. In fact in G.O.Ms.No.1024 Education, Science and Technology Department dated 9.12.93, though an amendment is sought to be brought to clarify that the teachers would be entitled upto a maximum of four advance increments, the Government Order is categorical in stating that those orders shall take effect from the date of issue i.e., 9.12.93 and therefore the said Government Order cannot be considered to be made applicable for the previous cases.
9. Factually, in this case, the first respondent was not granted any incentive increments for B.Litt., as he was only granted two advance increments for M.A., obtained during the year 1984 and for B.Ed., obtained in the year 1985. As we have held that the denial of two more advance increments to the first respondent for acquiring M.Ed., Degree would amount to discrimination, while such a benefit is extended to a Tamil pandit appointed in the Secondary Grade post, we find no merit to interfere with the order of the learned single Judge. Accordingly, the writ appeal fails and the first respondent is entitled to succeed for the grant of two incentive increments for acquiring M.Ed., degree. The appellants are directed to sanction the said two advance increments to the first respondent within a period of three months from the date of receipt of a copy of this order. With the above direction, the writ appeal is dismissed. Consequently, W.A.M.P.No.1167 of 2005 is also dismissed. No costs.?
(b) In P.B.Bheeman vs. The Registrar, (W.P.No.41451 of 2005, decided on 01.08.2008), another Hon'ble Division Bench considered the case of a Tamil Pandit who prayed for directions to grant incentives for M.Ed qualification. Paragraphs 2 to 7 are extracted hereunder:-
?2. The petitioner, who was a Tamil Scholar, claimed incentive allowance for special qualifications in Tamil as per the Government order and to obtain the implementation of the order passed by the Government in G.O.Ms.No.42 Education dated 10.1.1969, by filing O.A.3884 of 1992 before the Central Administrative Tribunal, Madras Bench. His plea was rejected by an order of the Tribunal on 6.11.2003 stating that as per said G.O, only two incentives were contemplated and therefore the additional incentivess which he claimed on acquiring M.Ed degree qualification did not merit acceptance. Assailing the said order, the present writ petition has been filed by the petitioner.
3. As per the averments in the affidavit in support of the petition, the petitioner claimed that he had obtained Secondary Grade Teachers Training in the year 1956 and had passed B.A.Tamil Literature in the month of September 1963. He was appointed as Tamil Pandit Grade I. The requisite qualification at that time was Secondary grade Teachers Training and B.A. Tamil literature. Subsequently, he acquired B.T. qualification in the year 1965 and in the year 1971, he had obtained Post-graduate degree in Tamil and had also acquired M.Ed qualification.
4. The Government had been passing G.Os. from time to time with a view to foster interest in higher qualification in Tamil. In particular G.O.Ms.No.42, Education Department dated 10.1.1969 was issued to encourage teachers to acquire higher qualification than the minimum qualification required for the respective posts. In the year 1969, the scheme that got under way was to provide for two incentive advances for secondary grade teachers in Tamil Pandit course for acquiring higher qualification for securing post-graduate qualification also. The Government wanted to restrict number of incentive advances to two and passed yet another G.O.Ms.No.1023 dated 9.12.1993 whereby it had been clarified that no teacher shall be entitled to grant any incentive advance more than two for the whole of their service. An exception was also provided in the same G.O. to the effect that if a person had already got two advance increments for B.T. or B.Ed. in the Secondary Grade Post and then two further advances for M.A. or , M.Sc qualification in the post of B.T.Assistance, he shall be eligible for more than two advance increments, if he had already obtained M.Ed. qualification in the post of B.T Assistant. This concession was admissible only to persons, who had already obtained the above qualifications prior to the date of issue of the order dated 9.12.1993. The maximum number of advance increments admissible to teachers was set at four only.
5. The petitioner claimed that he came under the special category of persons who had obtained the additional qualification before 9.12.1993. The Tribunal referred to only G.O.Ms.No.42 of 1969 that recited that no more two incentives were admissible and the fact that he had acquired M.A. degree did not qualify him to obtain two more increments.
6. We have gone through the relevant G.O.1023 dated 9.12.1993 and it is evident that the attention of the Tribunal was not specifically drawn to Paragraph 4 of the said G.O.which states as follows: "4. Accordingly, the Government direct that Secondary Grade Teachers who got 2 advance increments for B.T. or B.Ed qualification in the Secondary Grade posts and then 2 advance increments for M.A. or M.Sc qualification in the post of B.T. Assistant shall be eligible for 2 more advance increments if they have already obtained the M.Ed. qualification in the post of B.T.Assistant. This concession shall be admissible only to the past cases i.e. to those who have already obtained the above qualification prior to the date of issue of these orders. In future, the maximum number of advance increments admissible to a Teacher for obtaining higher qualification under the orders first read above shall be four only."
7. The said G.O. makes it clear that the concession of two additional incentives were available to past cases of persons who had obtained additional qualifications prior to the date of issue of orders and the maximum number of advance increments admissible to a teacher for obtaining higher qualification under the orders referred to in G.O.Ms.No.42 dated
10.1.1969 shall be four. The contention of the petitioner is therefore well founded and the rejection of the claim by the Tribunal is erroneous.?
35. Reverting back to the case on hand, it could be seen that the respondent/writ petitioner, in the post of Physical Education Teacher completed her B.A. in 1980 and B.Ed in 1982. Considering her educational qualification, she has been granted two advance increments for B.Ed., on 29.12.1982. She has acquired M.A in the year 1985. She was posted as B.T Assistant in 1987. She has been granted two advance increments for acquiring M.A qualification in the post of B.T Assistant with effect from 20.07.1987. She has completed M.Ed., in the month of December 1987 much before 09.12.1993. Decisions in The Director of School Education vs. S.Shanmugam (W.A.No.604 of 2005, decided on 03.04.2008) and P.B.Bheeman vs. The Registrar, (W.P.No.41451 of 2005, decided on 01.08.2008) can be made applicable to the present case.
36. Though both the cases relate to Tamil Pandits, the principle of law to be applied for grant of incentives for having higher qualifications in service, at the time of entry into service or subsequently acquired, applies to a B.T. teacher also. At this juncture, we wish to state that from the Government Orders referred to above, what is required to be considered is the educational qualifications possessed or acquired by a teacher. Now, when this Court has recognised the grant of advance incentive increment to a Tamil Pandit I, for possessing B.T. Qualification and when the Government have recognised the right of Tamil Pandit II, to seek for advance increments for acquiring B.T. qualification, in the post of Tamil Pandit II, and further recognised the rights of both, to claim advance increments, after BT., and M.A., separately and thereafter, for M.Ed., qualification, in terms of G.O.Ms.No.42, we are unable to understand as to how the Government could raise objections. The objections are untenable.
36. Though it is contended that during the period of service or re- employment, the writ petitioner has not made any claim for third incentive for M.Ed qualification, that would not curtail her right to claim after retirement. Entitlement to claim continues even after retirement.
37. For the reasons stated supra, we do not find any merit in the appeal. Accordingly, the Writ Appeal is dismissed. Appellants are directed to sanction and pay the arrears of incentive increment, to the writ petitioner for M.Ed degree qualification, within a period of eight weeks from the date of receipt of a copy of this judgment. No costs. Consequently, M.P(MD)No.1 of 2014 is closed.
(S.M.K.J) (V.S.R.J)
18.09.2014
Index : Yes
Internet : Yes
NB2/SKM
To
1)The Director of School Education,
Chennai.
2)The District Educational Officer,
Paramakudi,
Ramanathapuram District.
S.MANIKUMAR, J.
AND
V.S.RAVI, J.
NB2/SKM
W.A(MD)No.867 of 2014 &
M.P(MD)No.1 of 2014
18.09.2014