Madras High Court
J.Maria James vs The Director Of School Education on 24 February, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
WP(MD)Nos.12357 of 2020, etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)Nos.12357, 14184, 14617, 15590, 16355 of 2020;
9294, 9296 to 9298, 9300, 9301, 10802, 10804 to 10809,
10811, 10812, 11421, 11422, 12457, 20313 of 2021;
130, 531, 1059, 1896 to 1909, 2031 to 2035 of 2022
and
WMP(MD)Nos.10573, 10574, 11846, 12272, 12273, 13666 of 2020;
7001, 7002, 7004, 7008 to 7016, 7018 to 7023, 8440 to 8452,
8454 to 8458, 8925, 8926, 9757, 10457, 10630, 11197, 11232,
11234, 11255, 11277, 11297, 11351, 11356, 11361, 11370 to 11372,
11374, 11386, 11477, 12284 of 2021;
408, 891, 1632 to 1638, 1640 to 1647, 1742, 1745, 1746, 1748, 1750, 1917,
21782, 21851, 21852, 21854, 21886 to 21898 of 2022
WP(MD)No.12357 of 2020:
J.Maria James : Petitioner
Vs.
1.The Director of School Education,
Office of the Director of School Education,
DPI Compound,
College Road,
Chennai.
2.The Chief Educational Officer,
Office of the Chief Educational Officer,
Ramanathapuram,
Ramanathapuram District.
1/26
https://www.mhc.tn.gov.in/judis
WP(MD)Nos.12357 of 2020, etc., batch
3.The District Educational Officer,
Office of the District Educational Officer,
Paramakudi,
Ramanathapuram District.
4.The Correspondent,
Sacred Heart Higher Secondary School,
Thiruvarangam,
Ramanathapuram District. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Certiorarified Mandamus calling for the records
relating to the impugned order passed by the second respondent vide proceedings
in Oo.Mu.No.11390/A2/2019, dated Nil.12.2019 (signed on 31.01.2020) and the
consequential impugned order passed by the third respondent vide proceedings in
Mu.Mu.No.4361/A4/2017, dated Nil.07.2020 (signed on 25.07.2020) and quash
the same as illegal and consequently, to direct the respondents to sanction the
incentive increment to the petitioner for having acquired B.A., and B.Ed., degree
within a stipulated time limit.
For Petitioner : Mr.H.Mohamed Imran
For Respondents : Mr.J.Ashok,
Additional Government Pleader
for R.1 to R.3
*****
2/26
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WP(MD)Nos.12357 of 2020, etc., batch
COMMON ORDER
The petitioners before this Court are Teachers and they have applied for incentive increments, stating that they have obtained additional qualifications. Accordingly, they were also provided with incentive increments. The Department has now ordered for recovering the incentive increments holding that the petitioners have obtained simultaneous degrees in the same academic year, which is not permissible, based on which, incentive increments could not be provided. Challenging the orders of recovery, the petitioners have moved this Court.
2.Sum and substance of the submissions made by the learned Counsel for the petitioners (Batch I) are as follows:-
2.1.The petitioners have obtained the additional qualifications (degrees) only after getting prior permission from the Department and the degrees were obtained only from Government recognized Universities.
2.2.Only after due verification by the Department, the petitioners were granted with incentive increments. There was no misrepresentation on their part.3/26
https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch 2.3.Before passing the impugned orders of recovery, no opportunity of hearing was given to the petitioners.
2.4.As per the Government Orders in G.O.Ms.No.1170, Education, Science and Technology Department, dated 18.08.1986 and G.O.Ms.No.324, Education, Science and Technology Department, dated 25.04.1995, the petitioners are eligible for incentive increments.
2.5.The following decisions were relied upon by the petitioners in support of their contention:-
i) State of Punjab and Others v. Rafiq Masih (White Washer) and Others, reported in (2015) 4 SCC 334; and
ii) Syed Abdul Qadir v. State of Bihar, reported in (2009) 3 SCC 475.
3.Countering the arguments advanced by the petitioners' Counsel, the learned Additional Government Pleader appearing for the official respondents made his submissions as follows:-
4/26
https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch 3.1.The petitioners have obtained simultaneous degrees in the same academic year and therefore, they are not eligible for any incentives. However, incentive increments were given to them on misrepresentation.
3.2.During Audit, it has been found that the petitioners were provided with incentive increments for the simultaneous degrees obtained in the same academic year and therefore, orders have been passed to recover the same, since it is causing loss to the public exchequer.
3.3.He has also relied upon the following decisions in support of his case:-
i) K.Govindaraj v. State of Tamil Nadu [WP(MD)No.26275 of 2014, dated 12.11.2014]; and
ii) R.Chitra v. Member Secretary, Government of Tamil Nadu, reported in 2021 3 CTC 846.
3.4.Taking cue from the decision of the Patna High Court in Ram Binod Singh v. Bihar State Electricity Board and Others, reported in MANU/BH/0437/2007, he submitted that even if there is no misrepresentation or fraud on the part of the employee, the employer can still order for recovery. 5/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch
4.This Court paid it's anxious consideration to the rival submissions made by the respective parties and also perused the available materials.
5.In Rafiq Masih's (White Washer) case supra, the Hon'ble Supreme Court has held as follows:-
“18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from the 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.
(v) In any other case, where the court arrives at the 6/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch 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.”
6.Referring to the decision in Rafiq Masih's case (supra), the Hon'ble Supreme Court in High Court of Punjab and Haryana and Others v. Jagdev Singh, reported in (2016) 14 SCC 267, has held as follows:-
“11.The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.”
7.In Syed Abdul Qadir's case (supra), the Hon'ble Supreme Court has held as follows:-
“59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on 7/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.”
8.In Ram Binod Singh's case (supra), the Patna High Court has held as follows:-
“26. The relevant provisions of the Indian Contract Act, particularly Section 72 cover cases of mistake of fact as well as law and provide for recovery. The principle of restitution in case of unjust enrichment is also an accepted principle for ensuring justice in appropriate case. Hence, in law, the position appears to be clear that there is no legal bar in ordering for recovery from retired employees where they have received money benefits on account of mistake at the ministerial level in the matter of fixation of pay, grant of increments or time bound promotion when the conditions precedent for such promotions were clearly non est. However, it has been correctly 8/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch submitted on behalf of the petitioners that the theory of simple mistake or error to justify recovery will not hold good where die grant did not suffer from patent illegality or perversity so as to attract the Wednesbury Principle or the vice of maiafide in law. For example, where two interpretations of a provision were possible and one was consciously approved and adopted by the competent authority meant to be applied generally to all concerned, any error in such decision of the competent authority if corrected at a later stage may be ordered to apply only prospectively. Moreso, if the decision has been followed for many years. In other words, if on reinterpretation or adjudication the earlier view permitting the grant of monetary benefits is found to be by a competent authority and bonafide but wrong, mistaken or erroneous, then ordinarily no recovery should be made unless the excess payment already made is covered by the two exceptions pointed out in the case of Madan Mohan Prasad (supra). But if the grant was by way of undue favour, arbitrary, malafide, ultra vires and or void ab initio, recovery of public money should be the normal course. In such cases of clear disobedience of policy or rules by ministerial action or clear dishonest decision causing undue loss to public money, action against the concerned authority may also be justified to prevent and discourage plunder of public money by sheer disregard of clear law. The constitutional schemes of rule of law and fairness in public action support recovery in such cases unless law of limitation or waiver etc. are successfully invoked to show that they prevent such a course in the facts of any particular case.” 9/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch
9.In Chandi Prasad Uniyal and Others v. State of Uttarakhand and Others, reported in (2012) 8 SCC 417, the Hon'ble Supreme Court has held as follows:-
“13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy.
14. We are concerned with the excess payment of public money which is often described as “taxpayers' money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake.
Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. 10/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case [(2009) 3 SCC 475 :
(2009) 1 SCC (L&S) 744] and in Col. B.J. Akkara case [(2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529] , the excess payment made due to wrong/irregular pay fixation can always be recovered.
16. The appellants in the appeal will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, we find no reason to interfere with the judgment of the High Court. However, we order that the excess payment made be recovered from the appellant's salary in twelve equal monthly instalments starting from October 2012.”
10.In Col. B.J. Akkara (Retd.) v. Government of India and Others, reported in (2006) 11 SCC 709, the Hon'ble Supreme Court has held as follows:- 11/26
https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch “27. The last question to be considered is whether relief should be granted against the recovery of the excess payments made on account of the wrong interpretation/understanding of the circular dated 7-61999. This Court has consistently granted relief against recovery of excess wrong payment of emoluments / allowances from an employee, if the following conditions are fulfilled:
(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter 12/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.
29. On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to them. The petitioners are not guilty of any misrepresentation or fraud in regard to the excess payment. NPA was added to minimum pay, for purposes of stepping up, due to a wrong understanding by the implementing departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular dated 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insofar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the said circular has been upheld and as pensioners have been put on notice in regard to the wrong calculations earlier made.”
11.This Court in M.Kandan v. Indian Bank and Others, reported in 2018 SCC OnLine Mad 6231, has held as follows:-
“6. It requires to be pointed out here that the aforesaid decision passed by the Two Judges Bench of the Hon'ble Supreme Court of India, relied by the learned Counsel for the Petitioner, is a consequential order 13/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch to the earlier order passed by a Three Judges Bench of the Hon'ble Supreme Court of India in the same case in State of Punjab v. Rafiq Masih (White Washer) [(2014) 8 SCC 883), in which it has been ruled that there is no principle that any excess payment to employees could not be recovered and the earlier decisions in Registrar of Co-operative Societies, Haryana v. Israil Khan [(2010) 1 SCC 440] and Chandi Prasad Uniyal v. State of Uttarakhand [(2012) 8 SCC 417), supporting that view have been approved. It has also been explained therein that directions issued by the Hon'ble Apex Court in the exercise of powers under Article 142 of the Constitution, relaxing the application of law, was in view of the peculiar circumstances which do not comprise the ratio decidendi and therefore, do not make binding precedent. Viewed from that perspective, it can be seen that the subsequent judgment in State of Punjab v. Rafiq Masih (White Washer) [(2015) 4 SCC 334], were only containing illustrations where the Court had exercised its power under Article 142 of the Constitution and the same could not be taken as any ratio decidendi unconditionally exempting recovery from retired persons from the rigour of the law recognised in Section 72 of the Indian Contract Act, 1872, that a person to whom money has been paid by mistake must repay it.
7. In the light of the aforesaid legal position, it could be seen that the excess payment made to the Petitioner was brought to his notice as early as 20.04.1985 and was sought to be recovered, but in view of the Writ Petitions filed by the Petitioner challenging the aforesaid recovery in W.P. Nos. 4476 of 1985 and 5311 of 1995, in which interim orders of 14/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch stay had been passed, the Respondent was unable to effect the recovery.
This disablement caused to the Respondent at the instance of the Petitioner, cannot lead to absurd consequences of depriving the Respondent of its right to recover the excess payment from the terminal benefits of the Petitioner, who had voluntarily retired from service, before the earlier litigation had come to an end on the species plea of hardship caused.”
12.Keeping these principles in mind, this Court proceeded with the batch of writ petitions.
13.The petitioners, who have been granted incentive increments for possessing higher qualifications, are now facing recovery proceedings on the ground that they have obtained two different degrees in the same year.
14.According to the petitioners, they have acquired the additional qualifications after getting permission from the Department and only after due verification, they were provided with incentive increments. It is their further claim that there is no misrepresentation on their part and even assuming that the incentive increments have been wrongly provided, the same cannot now be 15/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch recovered, for the reason that the increments were provided to them more than five years back.
15.The respondents claim that the petitioners have obtained the incentive increments either on misrepresentation or by fraud with the connivance of some of the officials. It is their further claim that when the benefit was obtained by playing fraud, they can recover the same.
16.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, now the maximum number of incentive increments has been restricted as two in their total service period, as per the Government Order in G.O.(1D)No.18, School Education Department, dated 18.01.2013. 16/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch
17.According to Black's Law Dictionary, incentive pay plan is defined as a compensation plan, in which increased productivity is rewarded with higher pay. It is a concession granted by the Government to the Teachers to motivate them. Thus, such concession can never be claimed as an absolute right and it 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.
18.Insofar as pursuing two degrees simultaneously is concerned, this Court, in K.Govindaraj's case (referred supra), has held as follows:-
“8.According to the respondents, the petitioner has pursued two courses simultaneously during the same period and therefore, the petitioner's candidature cannot be considered. The stand taken by the respondent is fully justified. ...
9.Further, the Hon'ble Division Bench of this Court in the case of S.Jagadeeswari v. The Chairman in WA.No.845 of 2013, dated 07.01.2014, considered the validity of G.O.Ms.No.361, dated 31.12.1999 and confirmed the order made in WP.No.30299 of 2012, wherein, it was held that the stand taken by the respondent not to accept the candidature of persons, who had undergone two different degrees simultaneously is perfectly in order.” 17/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch
19.Very recently, a Full Bench of this Court in R.Chitra's case (referred supra), has considered this issue and has held that dual degree obtained simultaneously in the same academic year is not valid unless and until, the University Grants Commission recognizes such degree courses and the employer has the right to reject the same. Therefore, this issue is no more res integra and the petitioners are not entitled for any incentives for the simultaneous degrees obtained by them in the same year.
20.Insofar as WP(MD)No.2034 of 2022 is concerned, the petitioner acquired additional qualification of B.A (English) degree after obtaining M.Com. and B.Ed degrees. According to the Department, there is no rule or order to grant incentive increments for the Teachers who have obtained B.A degree after passing of B.Ed degree. Insofar as WP(MD)No.2035 of 2022 is concerned, the petitioner acquired additional qualification of M.Sc (Computer Science) and sought for incentive increment. As per G.O.Ms.No.134, School Education Department, dated 15.06.2007, the Teachers who have acquired additional qualification in the subjects taught in the elementary education, viz., Tamil, English, Mathematics, Science and Social Science, alone are eligible for incentive increments and who 18/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch have acquired higher education in commerce, economics, computer science etc., are not entitled for the same.
21.If an increment is granted not in accordance with the terms and conditions stipulated in the policy, it cannot be sustained and as such, the petitioners in WP(MD)Nos.2034 & 2035 of 2022 are not entitled for any incentive for the same.
22.In fact, the Government has now realized that the incentive increments provided to the Teachers have not effected any results in the performance of the Students and has taken a policy decision not to provide any incentive increments hereafter, based on the additional qualifications acquired by the Teachers, vide G.O.Ms.No.116, Personnel and Administrative Reforms (FR-IV) Department, dated 15.10.2020. However, the incentive increments, which were provided already are not disturbed.
23.An incentive must be a reward to encourage a worker, who is performing better than the others. It must be depending upon the performance and not on possession of any degree alone. A Secondary Grade Teacher, who obtained a M.A. 19/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch Degree in Economics is provided with an incentive increment without noticing as to how he is going to transform his knowledge of M.A (Economics) to the Students who are studying upto fifth standard. This would lead to a situation where a Teacher who does not perform, but possess / obtain degrees is provided with incentive increments, whereas, on the other hand, a Teacher who is diligently discharging his duty with his performance and providing good results are not provided with any incentive increments. The incentive increments provided without assessing their performance / results would certainly demoralize the persons who are discharging their duty diligently.
24.The Sixth Central Pay Commission, in its report in the year 2008, has observed as follows:-
“2.5.2.Performance for the Government is usually not measured in terms of profit, but in terms of achieving societal goals and desired outcomes, for example, reduction of crime, enhancing the quality of life, reducing infant mortality etc. Performance is effective service delivery and responsiveness to stakeholders. In the Governmental context, performance can be defined as the ability of the Government to acquire resources and to put these resources to their most efficient use (input- output relationship) and to achieve the desired outputs and outcome goals (output-outcome relationship).” 20/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch
25.The Pay Commission had also engaged the Indian Institute of Management [IIM(A)] to do a study on Formulating the Concept, Principles and Parameters for Performance-Related Incentive Schemes in Government. The Synthesis Report of studies has observed as follows:-
“In India, Government employees are paid according to their service – incremental salary scales. For a larger (majority) section of employees there is hardly any performance for pay incentive available to them. Their salaries are today only a composite of basic pay plus certain allowances (variable) including DA that are admissible depending on the nature of jobs and duties and accompanying working conditions. In fact, natural increases in salary are very much guaranteed to Government employees. This leads to a situation where employees do not exert themselves for a higher level of on-the-job performance and achievements, thus depriving the Government of potential productivity gains and service delivery enhancements, both in terms of quantum and quality. There is no external motivation for risk- taking and delivering a higher level of performance, because through the risk-taking is punished if things go wrong, it is not financially rewarded if things improve because of employees' initiative and risk- taking. Over the years, this has led to the development of a culture where employees have become risk averse.” 21/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch
26.In fact, as early as in the year 2008, the Government has constituted Administrative Reforms Committee under the chairmanship of Dr.Justice A.K.Rajan, Retired Judge of Madras High Court, for making recommendations to ensure an effective and corruptive free governance. The Committee had also made its recommendations, followed by which, the Government has passed G.O.Ms.No. 24, Personnel and Administrative Reforms (AR-I) Department, dated 17.02.2010, accepting certain recommendations. One such recommendation was that award should be given for good performance and the Government has directed the respective Heads of Departments to pass appropriate orders in this regard.
27.Since the Government has now taken a policy decision not to provide any incentive increments in future, based on qualifications alone, this Court feels that the Government ought to ensure how the Teachers who are already receiving such incentive increments based on their qualifications are transforming their knowledge to the Students.
28.Insofar as the present cases are concerned, for the foregoing reasonings, this Court holds that the petitioners are not entitled for any incentive increments 22/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch for the simultaneous degrees obtained by them in the same year. Insofar as the orders of recovery are concerned, this Court, taking note of the decisions referred supra and the fact that the incentive increments 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 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;
29.Insofar as the Teachers who are receiving incentive increments for their additional qualification are concerned, the Government is expected to ensure that 23/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch such Teachers are out-performing than those who are not having the additional qualification and that the incentive increments are reviewed periodically based on their performance.
30.Apart from the above, yet another set of petitioners are also before this Court and they want a direction for grant of incentive increments. According to them, they have obtained additional qualifications and are eligible for getting incentive increments, however, they were denied the same on the ground that they have obtained such additional qualifications without getting prior permission from the Department.
31.As per the Rules in vogue, a Government servant has to obtain prior permission from the Head of the Department concerned before undertaking any higher studies. The petitioners before this Court are Teachers and they are expected to be aware of the same. When the petitioners themselves admit that they have obtained the degrees without getting prior permission from the Department, this Court is of the view that they are not entitled for any relief, without getting their action ratified. Therefore, it is for them to approach the Department for ratification, if so advised. Even otherwise, since the Government has now taken a 24/26 https://www.mhc.tn.gov.in/judis WP(MD)Nos.12357 of 2020, etc., batch policy decision not to provide any incentive increments in future, based on qualifications alone, this Court is not inclined to pass any orders in this regard.
With the above observations and directions, all the writ petitions stand disposed of. There shall be no order as to costs. Consequently, all the connected miscellaneous petitions stand closed.
Index : Yes / No 24.02.2023
NCC : Yes / No
Internet : Yes
gk
To
1.The Director of School Education,
Office of the Director of School Education,
DPI Compound,
College Road,
Chennai.
2.The Chief Educational Officer,
Office of the Chief Educational Officer,
Ramanathapuram,
Ramanathapuram District.
3.The District Educational Officer,
Office of the District Educational Officer,
Paramakudi,
Ramanathapuram District.
25/26
https://www.mhc.tn.gov.in/judis
WP(MD)Nos.12357 of 2020, etc., batch
B.PUGALENDHI, J.
gk
WP(MD)Nos.12357, 14184, 14617, 15590, 16355 of 2020; 9294, 9296 to 9298, 9300, 9301, 10802, 10804 to 10809, 10811, 10812, 11421, 11422, 12457, 20313 of 2021;
130, 531, 1059, 1896 to 1909, 2031 to 2035 of 2022 24.02.2023 26/26 https://www.mhc.tn.gov.in/judis