Madras High Court
A.Dhanalakshmi vs The State Of Tamil Nadu on 23 September, 2022
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.P(MD)No.3067 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.09.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)No.3067 of 2022
and
W.M.P.(MD)No.2678 of 2022
A.Dhanalakshmi ... Petitioner
Vs
1.The State of Tamil Nadu,
Represented by its Secretary to Government,
School Education Department,
Fort St George, Chennai - 600009.
2.The Director of Elementary Education,
DPI Campus, College Road,
Chennai-600006.
3.The District Education Officer,
Thanjavur District, Thanjavur.
4.The Block Education Officer,
Peravurani, Pattukottai Taluk,
Thanjavur District. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari, calling for the records relating
to the impugned proceedings of the fourth respondent in
Na.Ka.No.1378/A1/2021 dated 21.12.2021 and quash the same.
https://www.mhc.tn.gov.in/judis
1/19
W.P(MD)No.3067 of 2022
For Petitioner : Mr.V.R.Shanmuganathan
For Respondents : Mr.J.Ashok,
Addl. Government Pleader.
ORDER
Heard the learned counsel on either side.
2.The writ petitioner jointed the Education Department as Secondary Grade Teacher on 06.01.1990. She was promoted as Primary School Headmaster and then as B.T.Assistant (Tamil). She was promoted as Middle School Headmaster on 02.06.2009 and she is working as such till date. The petitioner obtained permission from the department and acquired B.Ed. degree in the year 2011. She applied for one set of incentive increment from the date of acquisition of B.Ed. decree. The petitioner's request was granted.
3.Whileso, without prior notice to her, the grant of incentive increment was cancelled on 28.11.2017. Questioning the same, the petitioner filed W.P.(MD)No.464 of 2018. The said writ petition was allowed and the matter was remanded to the file of the fourth respondent. The fourth respondent issued notice dated 06.12.2021 calling upon the petitioner to show cause as to why the incentive increments granted to her should not be cancelled. The https://www.mhc.tn.gov.in/judis 2/19 W.P(MD)No.3067 of 2022 petitioner offered her reply on 08.12.2021. After consideration of the same, the impugned order dated 21.12.2021 was issued whereby the incentive increment granted with effect from 01.06.2011 was cancelled and the petitioner was also directed to repay what was already paid. Challenging the same, the present writ petition has been filed.
4.The respondents have filed a detailed counter affidavit controverting the averments set out in the affidavit filed in support of the writ petition.
5.The learned counsel for the writ petitioner contended as follows:-
5(a) The writ petitioner was appointed as Headmaster of Middle School in the year 2009. As per Special Rules for the Tamilnadu Elementary Education Sub-ordinate Service Rules, the method of appointment was as follows:-
“Method of appointment:
(i) ...........
(ii) Transfer from Category 2 Language Pandit Grade-I of Class I of the said service provided that if no B.Ed., or Language Pandit Grade I Teacher is available for appointment to the category within the unit, such vacancy shall be filled by B.Ed., Teacher or Language Pandits Grade I by transfer from other units.” https://www.mhc.tn.gov.in/judis 3/19 W.P(MD)No.3067 of 2022 5(b).The qualification has been set out in the annexure in the following terms:-
Class Name of Method of Qualification
Category Appointment
Class I Headmasters Promotion 1. A degree of any University in the Headmistress and transfer State or a Degree of Equivalent of Middle Schools Standard and B.T. or B.Ed., Degree (B.Ed. grade) of any University in the State;
2.(a) A degree in Tamil of any University in the State;
or
(b) Minimum General Educational Qualifications as defined in Schedule I to the General Rules for the Tamil Nadu Government State and Subordinate Service and title or Oriental Learning conferred by any University in the language;
Provided that persons appointed as Tamil Pandit in any school prior to 1.4.76 shall be eligible for appointment in any other school even after 1.4.76; and (c) B.T. or B.Ed.
degree of any University in the State or a Trained Teachers Certificate of the Secondary Grade or a of the Pandit Training Course or Diploma in https://www.mhc.tn.gov.in/judis 4/19 W.P(MD)No.3067 of 2022 Teaching awarded by any University in the State.
Class I Headmasters Direct 1. A degree of any University in the Headmistress Recruitment State or a Degree of Equivalent of Middle Schools Standard and B.T. or B.Ed., Degree (B.Ed. Grade) of any University in the State;
2.(a) A degree in Tamil of any University in the State.
(b) Minimum General Educational Qualifications as defined in Schedule to the General Rules for the Tamil Nadu Government State and Subordinate Service and title or Oriental Learning conferred by any University in the language.
and
(c) B.T. or B.Ed. degree of any University in the State or a Trained Teachers Certificate of the Secondary Grade or a Senior basic grade trained teachers certificate or successful completion of the Pandit Training Course or Diploma in Teaching awarded by any University in the State.
https://www.mhc.tn.gov.in/judis 5/19 W.P(MD)No.3067 of 2022 Language Direct (1). B.Lit. Degree of the Madras Pandit Grade Recruitment, University or its equivalent in any I (Tamil) and Promotion Language and Transfer University in the State in the Pandit Grade language in respect of which I (other than Tamil) recruitment is necessary and Teacher Training of Madras University or any other Universities;
or Minimum General Educational Qualifications as defined in Schedule I to the General Rules for the Tamil Nadu State and Subordinate Service and title of Oriental Learning conferred by any University in the State in the language in respect of which recruitment is necessary.
(2) B.T. or B.Ed. degree of any University in the State or a Trained Teachers Certificate of the Secondary Grade or a Senior basic grade trained teachers certificate or successful completion of the Pandits Training Course or Diploma in Teaching awarded by any University in the State.
https://www.mhc.tn.gov.in/judis 6/19 W.P(MD)No.3067 of 2022 5(c).The writ petitioner belonged to Language Pandit Grade-I and since she possessed a degree in Tamil, she was eligible to be promoted as Middle School Headmaster. The eligibility of the writ petitioner to be promoted to the said post with the qualifications that she originally possessed cannot be in doubt. In fact, it is not contested by the respondents also. The petitioner acquired an additional degree namely, B.Ed. only in the year 2011, that is, after becoming Middle School Headmaster. For acquiring such an additional qualification, the petitioner was entitled to be granted one set of incentive increment. It was rightly granted with effect from 01.06.2011.
5(d).When in similar cases, such grant was subsequently cancelled, the matter was settled by the Hon'ble Division Bench in W.A.(MD)No.435 of 2017 dated 25.04.2017. The Hon'ble Division Bench in the said decision held as follows:-
“6. We are not in agreement with the learned Single Judge in rendering such finding. What was required to be considered is as to whether the appellant/writ petitioner is entitled for the incentive increment. Therefore, we are inclined to consider that point in this appeal. To take a decision on the matter, we need not labour much to determine the issue as a clear stand as to who would be entitled for incentive increment has been taken by the Department. When information was called for on what is the required qualification for being posted as Middle School Headmaster, one of the candidates https://www.mhc.tn.gov.in/judis 7/19 W.P(MD)No.3067 of 2022 received a reply under the Right to Information Act vide reply dated 16.02.2012 from the office of the Director of Elementary Education stating that there is no necessity for possessing B.Ed., qualification for being posted as Middle School Headmaster and B.Lit., degree is sufficient to post a person as a Middle School Headmaster. The operative portion of reply given under the Right to Information Act is quoted herein below:
“ 1. jkpH;ehL bjhlf;ff; fy;tp ,af;Feh;> brd;id-6 e.f.vz;. 24356/o1/2005 ehs;.24.11.2006d; go jkpH;ehL bjhlf;ff; fy;tp rhh;epiyg; gs;sp tpjpfs; (murhiz) epiy vz; 1383y; btspaplg;gl;lit tpjp 6(b)(1) y; eLepiyg;gs;sp jiyikahrphpah; gzpaplq;fSf;F tiuaWf;fg;l;Ls;s fy;tpj; jFjpfspy; gp.ypl; gl;lk; bgw;wth;fSf;F eLepiyg; gs;sp jiyikahrphpah;fshfg; gjtp cah;t[ tHq;f tHptif bra;ag;gl;Ls;sjhy; gp.vl; gl;lk; njitapy;iy.
2. ehkf;fy; khtl;lj; bjhlf;ff; fy;tp mYtyhpd; x.K.vz;
2005/m2/2009 ehs; 03.06.09 d; gj;jp 2d; go gp.ypl; gl;lk; bgw;W gzpahw;Wgth;fS;fF gp.vl; njh;r;rpf;F Cf;f Cjpa cah;t[ bgw jFjp cz;L.”
7. Furthermore we find that in somewhat a similar case pertaining to a Tamil Pandit, Thiru.S.Samuthirakani who was appointed that as Middle School Headmaster and subsequently claimed for incentive increment on acquisition of B.Ed., qualification. Clarification was sought for from the Director of School Education as to whether the said increment can be granted and if already granted, whether it has to be stopped. The Director of Educational Education by proceedings dated 07.06.1991 clarified that the post of Middle School Headmaster is a higher post than that of a Tamil Pandit, having a higher basic pay and therefore, there is https://www.mhc.tn.gov.in/judis 8/19 W.P(MD)No.3067 of 2022 no necessity for stopping the increment granted to the said Headmaster Thiru.S.Samuthirakani. This clarification would also be applicable to the facts of the case of the appellant/writ petitioner.
8. Thus in the light of the clarification issued, it is clear that B.Ed., qualification is not a required qualification for being posted as Middle School Headmaster and in such circumstances acquisition of B.Ed., while holding in the post of Middle School Headmaster has to be considered as higher qualification and therefore, the Department was right in passing the order dated 29.09.2014 granting incentive increment to the appellant/writ petitioner with effect from 24.01.2011. Further we find that before passing the impugned proceedings dated 30.11.2016, the appellant/writ petitioner was not put on notice and there was no opportunity granted to the appellant/writ petitioner to put forth her case. Under such circumstances, normally this Court would have remanded the matter for fresh consideration to comply with the requirements of principles of natural justice. However, in this case, we take departure from the said procedure on account of the fact that it is clear from the clarification issued by the Director of Elementary School Education as well as from the information furnished under the Right to Information Act that the appellant/writ petitioner is entitled for the incentive increment on acquisition of B.Ed., qualification. Therefore, we are inclined to interfere with the order passed in the writ petition and consequently the order passed by the third respondent dated 30.11.2016.
9. In the light of the above, this Writ Appeal is allowed and the order passed in W.P.(MD)No.60 of 2017 dated 04.01.2017 is set https://www.mhc.tn.gov.in/judis 9/19 W.P(MD)No.3067 of 2022 aside and consequently the order passed by the third respondent dated 30.11.2016 is quashed and it is held that the appellant/writ petitioner is entitled for incentive increment which was already sanctioned and is paid to the appellant/writ petitioner with effect from 24.01.2011.”
6.The learned counsel for the writ petitioner pointed out that the said decision was followed in a catena of decisions and as many as seven such orders have been enclosed in the typed set of papers. The last such order is dated 28.10.2021 was made in W.P.(MD)No.16561 of 2017. He reminded that as a matter of judicial discipline, this Court is bound by the aforesaid orders and that it ought not depart from the said view.
7.The learned Additional Government Pleader for the respondents submitted that the impugned order does not call for interference.
8.I carefully considered the rival contentions and went through the materials on record. Two issues arise for consideration. The first issue is whether the fourth respondent is justified in cancelling the incentive increment granted to the writ petitioner for her having acquired the additional qualification of B.Ed. decree. The second issue is whether the respondents are justified in ordering recovery of the incentive increment already paid to the writ petitioner.
https://www.mhc.tn.gov.in/judis 10/19 W.P(MD)No.3067 of 2022
9.Let me answer the second issue first. The writ petitioner has not committed any misrepresentation. The respondents themselves had accepted her request for grant of additional increment. The petitioner is not at all at fault.
The Hon'ble Supreme Court in the decision reported in (2015) 4 SCC 334 State Of Punjab & Ors vs Rafiq Masih (White Washer) held as follows:-
“ .......... Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
https://www.mhc.tn.gov.in/judis 11/19 W.P(MD)No.3067 of 2022
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”
10.It is also seen that several Middle School Headmasters who had acquired the aforesaid qualification were granted incentive increment.
Therefore, even if the primary issue is answered against the writ petitioner, ordering recovery will not only be inequitable and unfair but also monstrous.
This is more so because recovery is being ordered after a lapse of several years (vide Na.Ka.No.1378/A1/2021 dated 21.12.2021). I therefore have no hesitation to hold that ordering recovery of the incentive increment already paid to the writ petitioner is to be set aside. It is accordingly set aside.
11.Now let me come to the first issue. I wanted to know on what basis, such incentive increments are granted. It appears that the foundational orders are G.O.(Ms) No.42 Education Department, dated 10.01.1969 and G.O.(Ms) No.107 Education Department, dated 20.01.1976. G.O. (Ms) No.42 Education Department, dated 10.01.1969 is as follows:-
https://www.mhc.tn.gov.in/judis 12/19 W.P(MD)No.3067 of 2022 https://www.mhc.tn.gov.in/judis 13/19 W.P(MD)No.3067 of 2022 https://www.mhc.tn.gov.in/judis 14/19 W.P(MD)No.3067 of 2022 https://www.mhc.tn.gov.in/judis 15/19 W.P(MD)No.3067 of 2022 A reading of the aforesaid G.O. indicates that if a Tamil Pandit acquires B.T or B.Ed., he or she must be given an incentive payment. In this case, we are not concerned with the grant of incentive to a Tamil Pandit. We are concerned with the case of incentive granted to a Headmaster of Middle School. Of course, G.O.(Ms) No.42, dated 10.01.1969 also talks about conferring additional incentive to Headmasters. But then, they must acquire P.G. Degrees or M.Ed.
If a Headmaster acquires B.Ed., grant of incentive increment is not envisaged by G.O.(Ms) No.42 dated 10.01.1969.
12.The other G.O. on which reliance is placed is G.O.(Ms) No.107 dated 20.01.1976. The said G.O. also contemplates granting of incentive increment to Tamil Pandits for acquiring higher qualification. Therefore, the said G.O. also will not come to the petitioner's rescue. Of course, the order of Hon'ble Division Bench rendered in W.A.(MD)No.435 of 2017 dated 25.04.2017 supports the contentions advanced by the learned counsel for the writ petitioner.
The aforesaid writ appeal order has been extracted in extenso. The Hon'ble Division Bench was swayed by the clarification given under Right to Information Act vide Oo.Mu.No.37606/M1/2011 dated 16.02.2012. The Secretary to Government, School Education Department, Government of Tamilnadu, Chennai – 600 006 had subsequently clarified vide Letter https://www.mhc.tn.gov.in/judis 16/19 W.P(MD)No.3067 of 2022 No.3702/2017 dated 10.10.2017 that if any Pandit after getting promoted as Middle School Headmaster obtains B.Ed. for such persons, there is no scope for granting incentive increment. In fact, this clarificatory letter dated 10.10.2017 issued by the Government merely explains the position and it is not saying anything new. In view of this clarification letter issued by the Government, the position undergoes substantial change. In the subsequent orders issued by the various Judges also, this clarificatory letter of the Government is not taking note of.
13.More than anything else, as rightly pointed out by the learned Special Government Pleader, the post itself is called as Headmaster of Middle School (B.Ed. Grade). The petitioner of course was eligible to be promoted as Headmaster B.Ed. Grade, even though she was not having B.Ed. Otherwise, B.Ed. was held to be an essential qualification. Therefore, cancellation of the incentive increment granted to the writ petitioner in light of the clarificatory letter of the Government, dated 10.10.2017 is in order and it does not warrant any interference. The impugned order is quashed to the extent it orders recovery. The order cancelling the incentive increment conferred on the writ petitioner for her having acquired B.Ed. degree qualification is sustained.
https://www.mhc.tn.gov.in/judis 17/19 W.P(MD)No.3067 of 2022
14.The writ petition is partly allowed. No costs. Consequently, connected miscellaneous petition is closed.
23.09.2022
Index : Yes / No
Internet : Yes/ No
ias
To:
1.The Secretary to Government,
School Education Department,
Fort St George, Chennai - 600009.
2.The Director of Elementary Education,
DPI Campus, College Road,
Chennai-600006.
3.The District Education Officer,
Thanjavur District, Thanjavur.
4.The Block Education Officer,
Peravurani, Pattukottai Taluk,
Thanjavur District.
https://www.mhc.tn.gov.in/judis
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W.P(MD)No.3067 of 2022
G.R.SWAMINATHAN, J.
ias
W.P(MD)No.3067 of 2022
23.09.2022
(1/2)
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