Madras High Court
K.Mala vs The Director on 16 March, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
WP(MD)No.3373 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.3373 of 2020
and
WMP(MD)Nos.2837, 9150 of 2020
K.Mala : Petitioner
Vs.
1.The Director,
Directorate of Public Libraries,
737/1, Anna Salai,
Chennai – 600 002.
2.The District Library Officer,
District Central Library,
Madurai. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Certiorari calling for the records relating to the
impugned proceedings passed by the second respondent in Na.Ka.No.268/A/2020,
dated 03.02.2020 and quash the same.
For Petitioner : Mr.P.Arun Jayatram
For Respondents : Mr.J.Ashok,
Additional Government Pleader
*****
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WP(MD)No.3373 of 2020
ORDER
The petitioner is working as a Grade I Librarian. At the time of appointment, he was having the qualification of Higher Secondary Education. Subsequently the petitioner obtained M.A. degree, BLIS and MLIS degrees. Accordingly, the petitioner was provided with incentive increments for acquiring higher qualifications. However the second respondent / District Library Officer, by the impugned order in Na.Ka.No.268/A/2020 dated 03.02.2020, has directed for recovering the increments holding that the petitioner has not obtained the degree in 10+2+3 format. Challenging the same, the present writ petition is filed.
2.Learned Counsel appearing for the petitioner submitted that the petitioner has obtained the additional qualifications (degrees) only after getting prior permission from the Department and the degrees were obtained only from Government recognized Universities. Only after due verification by the Department, the petitioner was granted with incentive increments. There was no misrepresentation on her part. While so, without granting any opportunity of hearing to the petitioner, the impugned order of recovery came to be passed. Therefore, he prayed for appropriate orders.
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3.He has also relied upon the decision in State of Punjab and Others v. Rafiq Masih (White Washer) and Others [(2015) 4 SCC 334]; and Syed Abdul Qadir v. State of Bihar [(2009) 3 SCC 475] and submitted that recovery cannot be made since the incentive increments were granted for more than five years.
4.Learned Additional Government Pleader appearing for the respondents submitted that as per the Government Order in G.O(Ms).No.107, Personnel and Administrative Department, dated 18.08.2009, the earlier Government Orders recognising Open University Degrees are cancelled and candidates, who have studied SSLC (X-Standard) and Higher Secondary Course (+2) and thereafter, studied the degree course alone should be considered as persons eligible for entering into Government service. That apart, as per the Government Order in G.O(Ms).No.116, Personnel and Administrative Reforms Department, dated 18.08.2010, those who possess a Post Graduate degree through Open University System without obtaining a basic degree cannot be considered as possessing a Post Graduate Degree for appointment to Public Service. The petitioner obtained MLIS degree without possessing the basic degree. Therefore, the incentive increment which was provided to him erroneously, is now sought to be recovered. 3/12 https://www.mhc.tn.gov.in/judis WP(MD)No.3373 of 2020
5.He has also relied upon the following decisions in support of his case:-
i) Union of India and Another v. Narendra Singh [(2008) 2 SCC 750];
ii) I.C.A.R and Another v. T.K.Suryanarayan and Others, [AIR 1997 SC 3108]; and
iii) Ram Binod Singh v. Bihar State Electricity Board and Others, [MANU/BH/0437/2007].
6.This Court considered the rival submissions made by the learned Counsel on either side and also perused the available materials.
7.The petitioner was initially appointed as Grade-III Librarian with the qualification of Higher Secondary Education and a Certificate Course in Library Science. Subsequently, the petitioner obtained MA degree through Open University in the year 1998; BLIS Degree in the year 2012; and MLIS degree in the year 2013. He was also provided with incentive increments for the higher qualifications acquired by him, by the District Library Officer vide proceedings in Na.Ka.No.11/A/2015 with effect from 30.05.2013. However, the District Library Officer by the order impugned, has ordered for recovery based on the audit 4/12 https://www.mhc.tn.gov.in/judis WP(MD)No.3373 of 2020 objections that the higher qualifications obtained by the petitioner are not obtained after the completion of basic educational qualifications in 10+2+3 format.
8.The issue as to whether the Post Graduate Degree obtained from Open University without undergoing the basic qualification is acceptable or not is no more res integra. A Division Bench of this Court in N.Ramesh v. Sibi Madan Gabriel and Others, reported in (2008) 3 MLJ 255, has held as follows:-
“14.2 The provisions contained in the Regulations make it clear that in order to be eligible for obtaining a Master Degree through the Open University System or otherwise, the student concerned must have successfully completed the first degree. Inevitably the first question is to be decided in the negative. The conferment of Master Degree on students who do not have the "first degree" is clearly contrary to the Regulations of the UGC.
... ... ...
28. For the aforesaid reasons, we are of the considered view that Respondent No.4 was not eligible to be considered for the post of Principal as the M.A. degree obtained by him through the Open University System without there being a first degree was not a valid degree. Since he was not eligible, obviously he could not have been selected for the post.” 5/12 https://www.mhc.tn.gov.in/judis WP(MD)No.3373 of 2020
9.This decision has been upheld by the Hon'ble Supreme Court in Annamalai University V. Secretary to Government, Information and Tourism Department, reported in (2009) 4 SCC 590. These decisions were further reiterated by the Hon'ble Supreme Court in P.Raman v. The Government of Tamil Nadu and Others, reported in 2023 Live Law (SC) 169. The respondents can also take support from the Government Order in G.O(Ms).No.116, Personnel and Administrative Reforms Department, dated 18.08.2010.
10.The very basis for grant of incentive increment is to encourage the Teachers to acquire additional qualification, which would be useful for the students and for the improvement of the education system. The Government, by issuing various government orders, has provided incentive increments to the Teachers, based on the additional qualifications acquired by them, viz., B.Lit., B.A., M.A., M.Ed., etc. In fact, some of the Teachers were provided upto three incentive increments, but, later the maximum number of incentive increments has been restricted as two in their total service period.
11.An incentive is a concession granted by the Government to the Teachers to motivate them. Such concession can never be claimed as an absolute right and it 6/12 https://www.mhc.tn.gov.in/judis WP(MD)No.3373 of 2020 is to be granted strictly in accordance with the terms and conditions stipulated in the policy. Wrong sanctioning of incentive increment to any Teacher cannot be treated as precedent, nor it can be sustained.
12.Admittedly, the petitioner has not obtained the Master's degree by following the regular stream of 10+2+3 format. Since the Master's Degree obtained without the basic qualification of Bachelor's Degree cannot be considered as a valid degree, the petitioner is not entitled for any incentive increment for the same.
13.With regard to the plea of violation of principles of natural justice, this Court feels that it is not a straitjacket formula and that each and every case has to be dealt with independently. Here, there is a clear rule that those who possess a Post Graduate degree through Open University without obtaining a basic degree cannot be considered as possessing a Post Graduate Degree for appointment to Public Service. Therefore, the incentives, which were obtained on a misrepresentation or by playing fraud, cannot be sustained and the ground raised by the petitioner in this aspect lacks merit. This Court feels it appropriate to refer to the following decisions of the Hon'ble Supreme Court in this regard:- 7/12
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i) Municipal Committee, Hoshiarpur v. Punjab SEB, [2010 (13) SCC 216], wherein, it was held as follows:-
“33.There may be cases where on admitted and undisputed facts, only one conclusion is possible. In such an eventuality, the application of the principles of natural justice would be a futile exercise and an empty formality.”
ii) Bank of India v. Avinash D.Mandivikar [2005 (7) SCC 640], wherein, it was held as follows:-
“No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.”
iii) Ashok Kumar Sonkar v. Union of India [2007 (4) SCC 54], wherein, it was held as follows:-
“27.It is also, however, well settled that it cannot put any straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise.
28.A court of law does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the 8/12 https://www.mhc.tn.gov.in/judis WP(MD)No.3373 of 2020 appellant was illegal. He was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard.”
14.With regard to her plea that there cannot be any recovery, since she belongs to Group-C employee and that the increments were provided for more than five years, this Court, in similar circumstances, in J.Maria James v. Director of School Education, Chennai and Others [W.P.(MD)Nos.12357 of 2020, etc., batch, decided on 24.02.2023], after elaborately discussing the facts of the case, relevant Government Orders and various decisions of the Hon'ble Supreme Court as well as this Court, has held as follows:-
“26. ... Insofar as the orders of recovery are concerned, this Court, taking note of the decisions referred supra and the fact that the incentive increments for B.Ed degree were granted for more than five years, is passing the following directions:-
i) if the incentive increments were obtained by misrepresentation, the same is to be recovered;
ii) if the incentive increments were obtained by playing fraud with the connivance of the officials, the same is to be recovered;
iii) at the time of obtaining the incentive increments, if the petitioners gave an undertaking that the incentive increments can be recovered in future if they are found to be not eligible, then the same is 9/12 https://www.mhc.tn.gov.in/judis WP(MD)No.3373 of 2020 to be recovered;
iv) if the petitioners do not fall in any of the above categories, then there cannot be any recovery as against them;
v) if the officials have, knowingly or unknowingly, allowed the petitioners to receive the incentive increments for more than five years, necessary action has to be taken as against those responsible;”
15.Following the same and taking note of the fact that the petitioner belongs to Group-C class of employees and that the incentives were granted for more than five years, this Court is issuing the following directions insofar as recovery is concerned:-
i) if the incentive increment was obtained by misrepresentation, the same is to be recovered;
ii) if the incentive increment was obtained by playing fraud with the connivance of the officials, the same is to be recovered;
iii) at the time of obtaining the incentive increment, if the petitioner gave an undertaking that the incentive increment can be recovered in future if she is found to be not eligible, then the same is to be recovered;
iv) if the petitioner do not fall in any of the above categories, then there cannot be any recovery as against her; and 10/12 https://www.mhc.tn.gov.in/judis WP(MD)No.3373 of 2020
v) if the officials have, knowingly or unknowingly, allowed the petitioner to receive the incentive increments for more than five years, necessary action has to be taken as against those responsible.
In the result, this writ petition stands disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes / No 16.03.2023
NCC : Yes / No
Internet : Yes
gk
To
1.The Director,
Directorate of Public Libraries,
737/1, Anna Salai,
Chennai – 600 002.
2.The District Library Officer,
District Central Library,
Madurai.
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WP(MD)No.3373 of 2020
B.PUGALENDHI, J.
gk
WP(MD)No.3373 of 2020
16.03.2023
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