G.Bavanantheesvaran v. The State of Tamil Nadu

ORDER Heard the learned counsel for the petitioner and the learned Government Advocate appearing for the respondents.

¶2The petitioner is working as Assistant Elementary Educational Officer, Vilathikulam, Tuticorin District. By the impugned order dated

30.11.2016, issued by the 3rd respondent, the incentive increment paid to the petitioner was cancelled for completion of B.Ed., degree. The order further directs the petitioner to refund the excess amount received as incentive increment to the Government account. Challenging the same, the present writ petition is filed.

¶3Counter affidavit has been filed by the respondents.

¶4During the course of hearing, learned Government Advocate placed a copy of an order of this Court in W.P.(MD) No.3067 of 2022, dated 23.09.2022 stating that the issue involved in this case has already been decided by this Court. The relevant portion of the said order is extracted hereinunder: "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.

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.

(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:- 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 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.

14.The writ petition is partly allowed."

¶5Following the above, this Writ Petition is partly allowed.

¶6There shall be no order as to costs.

¶7Consequently, connected miscellaneous petitions are closed.

18.08.2023 NCC : Yes/No Index : Yes/No Internet : Yes abr

BATTU DEVANAND, J. abr To

1.The Secretary to Government, State of Tamil Nadu, Department of School Education, Fort St. George, Chennai-600 009.

2.The Director of Elementary Education, College Road, Chennai-600 006.

3.The District Elementary Educational Officer, Tuticorin, Tuticorin District.

4.The Additional Assistant Elementary Educational Officer, Puthur Union, Tuticorin District-628 905. Dated : 18.08.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18.08.2023 CORAM: THE HONOURABLE Mr.JUSTICE BATTU DEVANAND and W.M.P.(MD) No.17998 of 2016 and W.M.P.(MD) No.9487 of 2017 G.Bavanantheesvaran .. Petitioner Vs. 1.The State of Tamil Nadu, Rep., by its Secretary, Department of School Education, Fort St. George, Chennai-600 009. 2.The Director of Elementary Education, College Road, Chennai-600 006. 3.The District Elementary Educational Officer, Tuticorin, Tuticorin District. 4.The Additional Assistant Elementary Educational Officer, Puthur Union, Tuticorin District-628 905. .. Respondents Prayer: Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of Certiorari calling for the records relating to the impugned proceedings issued by the 3rd respondent, District Elementary Educational Officer in Na.Ka.No.1381/A1/2016 dated 30.11.2016 (cancelling the incentive increments paid for the petitioner concerned for his B.Ed. qualification w.e.f. 10.06.2010) and quash the same. For Petitioner : Mr.T.Cibi Chakaraborthy For Respondents : Mr.V.Nirmal Kumar Government Advocate