BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/06/2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN Writ Petition (MD).No.11337 of 2008 & M.P.(MD).No.1 of 2008 K.S.Rengasamy S/o.K.V.Subramanian 48/52, Parthasarthy Street, Somasundaram Colony, Madurai-625 016. . . Petitioner Vs. 1.The Chief Educational Officer, Madurai. 2.The District Educational Officer, Madurai. 3.The Secretary, Madura College Higher Secondary School, Madurai-625 001. . . Respondents Prayer Writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorari to call for the records of the first respondent, dated 05.09.2007 in proceedings Na.Ka.No.14154/A3/2006 and to pass such other further order or orders as this Court may deem fit and proper in the circumstances of the case. !For Petitioner ... Mr.R.G.Shankar Ganesh ^For Respondent ... Mr.D.Muruganandam for R1 and R2 AGP Mr.P.C.Saravanan for R3 :ORDER
The petitioner joined as Secondary Grade Teacher in the third respondent
school in the year 1973. When he was working as Secondary Grade Teacher, 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. He was promoted as B.T. Assistant on 16.03.1994.
Thereafter, he retired from service on reaching the age of superannuation on
30.06.2005. While so, the first respondent passed the impugned order, dated
05.09.2007 that the petitioner was erroneously granted the incentive 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. It is also stated that
he obtained M.A. degree while he was serving as Secondary Grade Teacher.
Therefore, he is not entitled to get the third incentive increment. Based on the
above said order of the first respondent, the third respondent school passed an
order, dated 15.10.2008 directing the petitioner to remit the excess amount that
was paid pursuant to the payment of 3rd incentive increment. The petitioner has
filed the present writ petition to quash the afore-said order, dated 05.09.2007
of the first respondent and 15.10.2008 of the third respondent.
2. According to the learned counsel for the petitioner, it is not the case
of the respondent that the petitioner obtained the incentive increment by
misrepresentation or fraud. If certain payments were made by the department
erroneously, the same could not be sought to be recovered after a long time,
particularly after the retirement. The petitioner is a pensioner. Furthermore,
the amount is not quantified. The petitioner further states that he obtained
M.A.degree, while he was working as Secondary Grade Teacher and that could not
be cited as a reason for dis-entitlement to the 3rd incentive increment. He has
relied on the judgment of the Division Bench of this Court reported in 2008-3-
L.W.383 (R.PREMAKUMARI v. STATE OF TAMIL NADU & ORS), wherein this Court has
held that 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. According to him, 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. Further the
learned counsel for the petitioner placed reliance on the Division Bench
judgment of this Court in the case of Palavesamuthu,D. v.Tamil Nadu
Administrative Tribunal reported in (2006 1 MLJ 143).
3. The learned Additional Government Pleader seeks to sustain the impugned
order based on the counter affidavit.
4. I have considered the submissions made on either side. As rightly
contended by the learned counsel for the petitioner, G.O.Ms.No.1023, Education
Department dated 09.12.1993, states that the persons who obtained higher
education prior to the date of issuance of the order are entitled for third
incentive increment. I am in entire agreement with the learned counsel for the
petitioner that the 3rd incentive increment was not paid by the department due
to any misrepresentation or fraud committed by the petitioner. In these
circumstances, the respondents are not justified in seeking to recover the same.
A Division Bench judgment of this Court reported in 2006 1 MLJ 143 (cited supra)
squarely applies to the facts of this Case. The relevant passage is extracted
hereunder:-
14. A Division bench of this Court is the case of Palavesamuthu, D. v.
Tamil Nadu Administrative Tribunal (2006) 1 MLJ 143 has followed the decision of
the Apex Court in Sahip Ram v. State of Harayana (supra), and in paragraph 6, it
has been laid down as under at p.145 of MLJ:
“6. We are of the view that the course and method adopted by the Tribunal
cannot be appreciated in the case of the petitioner. Even if it is accepted for
the argument sake that salary of the petitioner is fixed in a wrong scale of
pay, it is the fault committed by the Department and their Officers, for which
the petitioner should not be penalised after a lapse of number of years that too
after retirement of the petitioner.”
5. The other judgment relied on by the learned counsel for the petitioner
reported in 2008-3-L.W.383 (cited supra) also is in favour of the petitioner
wherein this Court has held that for acquiring higher qualification, a Secondary
Grade Teacher, who was in possession of degree with B.Ed., at the time of his
appointment, is eligible for incentive increment. 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. There is nothing wrong
in granting incentive increments for such qualification.
6. For all those reasons, I am of the view that the impugned order is
liable to be interfered with. Accordingly, the impugned order is quashed and the
writ petition is allowed. No costs. Consequently, connected miscellaneous
petition is closed.
jikr
To
1.The Chief Educational Officer,
Madurai.
2.The District Educational Officer,
Madurai.
3.The Secretary,
Madura College Higher Secondary School,
Madurai-625 001.