Madras High Court
R. Sankaran vs The Secretary, Education Department, ... on 16 December, 2003
ORDER K.P. Sivasubramaniam, J.
1. The petitioner pays for a certiorarified Mandamus to call for the records relating to the Order of the 3rd respondent dated 30.11.1998, to quash the same and to direct the respondents to consider to continue the petitioner in the 5th Pay Commission pay scale of Rs. 1400-2600 and the later revised under the 6th Pay Commission in the scale of pay of Rs. 5000 - 150 - 8000 without stoppage of increments since 1.7.1994.
2. The petitioner who had studied under the old syllabus of 11 years course appeared for the SSLC but failed in the final examination in one subject. Thereafter, he underwent craft training for Weaving Instructor course in the year 1973 and he passed the higher examination in Hand loom Weaving in 1979. Thereafter, he was selected by the Department of Education for Teachers, for Technical Certificate Course and passed the same in 1978. In terms of the qualification, he was considered to posses the minimum general qualification prescribed for entry into the public service or for the appointment of teacher. As a qualified Weaving Instructor, he was working as a full time Selection Grade Craft Instructor in the Panchayath Union Middle School, Ayyampettai in the scale of Rs. 1,400 - 2,600. He was appointed by virtue of the Order dated 18.9.1974 as a full time Instructor. Subsequently, the scale of pay was revised from time to time and he was made eligible to the pay scale of Rs. 610-20-730-1075 by letter dated 21.4.1987 with effect from 1.4.1986.
3. The petitioner was, however, informed by the letter dated 21.9.1990 that though he became eligible to Selection Grade as on 1.10.1984 and as the pay scale recommended by the 4th Pay Commission was applicable even to the Middle School Craft Teachers, the newly revised scale of pay Rs. 705-1230 will take effect from 1.4.1986. Therefore, as a fully qualified Craft Teacher, he was fixed in the revised pay scale under the 5th Pay Commission recommendation and he was drawing the basic pay therein and other allowances.
4. While so, the 3rd respondent withheld the yearly increment from 1.7.1994 relying on G.O. No. 1336/Edn., dated 5.9.1986. He made personal and written representations claiming that the revision of pay was earlier effected after the District Education Officer had inspected and reported clearance of the qualification of the petitioner and his pay was revised in terms of the 4th Pay Commission. He made further representations to the Secretary of Department of Education on 14.9.1998 and 13.10.1998 explaining his eligibility for the pay scale of Rs. 1,400 - 2,600. However, by letter dated 30.11.1998, the third respondent reiterated that in terms of G.O. 1366, if a candidate did not fulfill the qualification, the scale of pay has to be regularised and the excess pay paid to the concerned individual has to be recovered. Aggrieved by the said Order of the respondents, the petitioner has approached this Court.
5. In the Counter filed by the 3rd respondent, it is stated that the petitioner joined as a full time Craft Instructor on 18.9.1974. He had failed in the SSLC old Regulation. In terms of G.O. 1366, Edn., dated 5.9.1986, specific Orders were issued to the effect that the general educational qualification for the post of Craft Instructor in the Middle School was a pass in SSLC. The petitioner was granted 3 years time to qualify himself in the SSLC for obtaining the Secondary Grade scale of pay.
6. Learned counsel for the petitioner contends that the petitioner had been appointed in permanent capacity in the year 1974 itself. In terms of the qualifications as prescribed during the said period, the petitioner was fully qualified. Subsequent change of the basic qualification, i.e pass of SSLC was given effect to only in the year 1986 and therefore, the said revision in the basic qualification can have only prospective effect. Learned counsel further submits that the present impugned Order dated 30.11.1998 and the consequential Order dated 22.10.1999 had been passed without any prior show cause notice or giving any opportunity to the petitioner before the Order of recovery had been issued.
7. Learned Additional Government Pleader refers to G.O. No. 1366 and contends that in terms of the revised qualifications, the petitioner not having passed the SSLC, he is not entitled to the benefits sought for by him. In the context of the absence of any show cause notice, learned Additional Government Pleader refers to the earlier representations of the petitioner and contends that the petitioner has not passed the SSLC.
8. I have considered the submissions of both sides. It is not disputed before me that as on the date when the petitioner was appointed in the year 1974, the qualification was only a fail in SSLC. Therefore, there is no dispute over the fact that the petitioner was fully qualified when he was appointed in the permanent capacity.
9. However, the respondents seek to rely on G.O. No. 1366, by which the basic qualification was revised viz., SSLC pass. The question, therefore, arises for consideration as to whether the subsequent revision of basic qualification would affect the benefits already accrued in favour of the petitioner. Apart from that, the general Rule of interpretation is that any subsequent revision of qualifications cannot affect the already existing incumbents. A plain reading to the G.O. itself indicates that it is operative only prospectively. Learned counsel for the petitioner has placed before the court a copy of the letter dated 18.11.1986 of the Deputy Secretary to the Government, to the Director of Elementary Education in which the Government Order 1366 dated 5.9.1980 is extracted. Paragraph 2 of the said letter shows that the Government had directed that the Orders issued in the said G.O. in so far as the revision of scale of pay to the Craft Teachers with SSLC qualification was considered, will take effect from 1.10.1984 notionally and with monetary benefits with effect from 1.4.1986. Therefore, even on the strength of the said Government Order, the Government Order is to take effect only from 1.4.1986. In the present case, it is not disputed that the petitioner was appointed in the year 1974 and he was also conferred with the Selection Grade with effect from 1.10.1984. The Government Order which is sought in support of the impugned order, being prospective cannot affect the rights of the petitioner.
10. I also sustain the contention of the learned counsel for the petitioner that the impugned Order is also liable to be set aside on the ground of absence of show cause notice. However, having regard to the observations above even on the merits, the petitioner is entitled to succeed considering that G.O. No. 1366 Edn., dated 5.9.1986, is only prospective and not retrospective.
11. With the result, the writ petition is allowed. No costs.