Dismissed

The Director of School Education v. a.Rathinam

Madras HC16 Oct 2020WA/1792/2019

Case brief

AI extract

What is this about?

A drawing teacher's incentive increments for an Open University M.A. could not be denied for his remaining service after being granted earlier. The court held the withdrawal order prospective and dismissed the education authorities' appeal, leaving the direction to sanction increments undisturbed.

What the court decided

AI extract

The Director of School Education Vs a.Rathinam — Service and Employment | Madras HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved On 22.09.2020 Pronounced On 16.10.2020

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CORAM

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THE HONOURABLE MR.JUSTICE R.SUBBIAH

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AND

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THE HON'BLE MR.JUSTICE C.SARAVANAN

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W.A.No.1792 of 2019

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and

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C.M.P.No.12169 of 2019 (Through Video Conferencing) 1.The Director of School Education, College Road, Chennai 600 006. 2.The Chief Educational Officer, Vellore, Vellore District.

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3.The Head Master, Government Higher Secondary School, Nimmiyampattu, Vaniyampadi Taluk, Vellore District. ... Appellants vs. A.Rathinam ... Respondent

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Writ Appeal filed under Clause 15 of Letters Patent, to set aside the order dated 28.02.2018 made in W.P.No.30183 of 2008.

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of to issue a Writ of Certiorarified Mandamus, to call for the records connected with Na.Ka.No.8117/B3/2007 dated 09.07.2008 of the 2^nd respondent and quash the same and direct the respondents to sanction incentive increment for acquiring M.A. Degree.

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For Appellants : Mrs.Narmadha Sampath, AAG assisted by Mr.A.Rajaperumal, AGP

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For Respondent : Mr.G.Elanchezhian

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C.SARAVANAN, J.

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This Writ Appeal is directed against the impugned order dated 28.02.2018 passed by the learned Single Judge in

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W.P.No.30183 of 2008.

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By the impugned order, the learned Single Judge has allowed the writ petition was filed by the respondent for “a Writ of Certiorarified Mandamus, to call for the records connected with Na.Ka.No.8117/B3/2007 dated 09.07.2008 of the 2^nd appellant and quash the same and direct the appellants to sanction incentive increment for acquiring M.A.Degree.”

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The operative portion of the impugned order passed by the learned Single Judge reads as follows:-

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16.On perusal of the impugned rejection order, it is presumed that the said order is not only a non speaking order and also passed against the order of the Hon’ble High Court Order dated 11.03.2007. In the said High Court Order it is clearly stated that issue notice to the petitioner and after getting explanation from the petitioner, it is open to the respondent to pass revised order. But in the said rejection order it does not state any such details about the issuance of the notice to the petitioner and also receivance of the explanation from the petitioner. It simply states that re-fix the pay of the petitioner without granting incentive increment for acquiring M.A., Degree. Hence the impugned order is liable to be set aside.

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17.From the reading of Government orders which filed in the type set of the writ petition it is stated that the Craft Teacher is equivalent to the post of Secondary Grade Teacher and the scale of pay is also equivalent and also further says that what are all the benefits sanctioned to the Secondary Grade Teachers is also applicable to the Craft Teachers, whereas the respondent has sanctioned incentive increments to the Secondary Grade Teachers for acquiring M.A., Degree higher qualification, but the same benefits was not granted to the petitioner. Hence the impugned order is liable to be set aside as it is against the Article 14 of the Constitution of India.

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18.As per the Government orders issued in G.O.Ms.No.1023 Education Department, dated 09.12.1993 and G.O.Ms.No.1024 Education Department, dated 09.12.1993 the petitioner is also entitle to incentive increment for acquiring M.A., Degree through open University. The said

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Government orders clearly state that:

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“A Secondary Grade Teacher is eligible for 2 advance increment when he acquire B.T.(or) B.Ed., qualification. He is again eligible for 2 advance increments when he acquires M.A., (or) M.sc., (or) M.Ed., qualification. Hence the impugned orders are liable to be set aside.”

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19.The learned counsel for the petitioner has produced similar case order passed by this Hon’ble High Court of Madras in W.P.No.39789 of 2006 dated 15.03.2009 and the relevant portion is that:

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“It is not in dispute that in G.O.Ms.No.42, Education Department, dated 10.01.1969 incentive increments are ordered to be given to the teachers qualification than the prescribed qualification. The said Government Order also provides incentive increment for special teachers. The petitioner herein being Vocational Instructor has to be treated as Special Teacher appointed in School.”

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20.The Hon'ble Supreme Court in the order dated 25.04.1997 considered a similar issue in the case of V.Gamgaram vs. The regional Joint Director and others and held that the teachers on improvement of their qualification are entitle to get advance increments other than the prescribed qualifications. The Government Order issued in G.O.Ms.No.42, Education Department, dated 10.01.1969 also states that the Government accepted the principle that incentive payments and awards should be given to teachers in schools, who acquire higher educational qualification. Since the petitioner has acquired M.Com., and B.Ed., Degrees, which are higher than the prescribed qualification of B.Com., the grant of incentive increments by the respondents earlier is perfectly in order and the impugned order passed by the second respondent holding that the vocational Instructor post is not included in G.O.Ms.No.42, Education Department, dated 10.01.1969 and therefore, the petitioner is not entitled to get the said benefits cannot be sustained. The petitioner having improved his qualification for which incentive increments having been sanctioned in accordance with the Government Order, the same cannot be withdrawn and no recovery could be ordered. Hence, the impugned order is liable to be

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set aside and accordingly, the same is set aside. The writ petition is allowed, as prayed for. No costs.

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21.The learned counsel for the petitioner has produced another order passed by this Court in W.P.No.28040 of 2006 dated 05.11.2007 and the relevant portion is that:

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“6. But both the grounds stated in the impugned order appear to be wrong. Paragraph 4 of the G.O.Ms.No.1023, Education, Science and Technology Department, dated 09.12.1993 as follows:

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“4. Accordingly, the Government direct that Secondary Grade Teacher who got 2 advance increments for B.T. or B.Ed., qualification in the Secondary Grade posts and then 2 advance increments for M.A., or M.Sc., qualification in the post of B.T.Assistant This concession shall be eligible for 2 more advance increments if they have already obtained the M.Ed., qualification in the post of B.T.Assistant. This concession shall be admissible only to the past cases, i.e., to those who have already obtained the above qualification prior to the date of issue of these orders. In future, the maximum number of advance increments admissible to a Teacher for obtaining higher qualification under the orders first read above shall be four only.”

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The operative portion of the aforesaid Government Order makes it clear that it would cover only future cases and the cases where 5^th and 6^th increments have already been granted, cannot be reopened. Moreover, the post of Physical Education Teacher is actually equivalent to Secondary Grade post and hence on a hyper technical ground that the word ‘Physical Education Teacher’ is not incorporated in paragaraph 4 of the above G.O., the benefit cannot be denied to the petitioner.”

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22.It is clear from the above said Hon’ble High Court Orders that the vocational Instructor

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and Physical Education Teacher are all treated on par with the Secondary Grade Teacher and the hyper technical ground that the word Vocational Instructor post is not in the relevant G.Os cannot be accepted. Hence the petitioner is entitled to get incentive increment for acquiring the M.A., Degree from the date of passing.

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In view of the above, the writ petition is allowed and the impugned order passed by the respondent in Na.Ka.No.8117/B3/2007, dated 09.07.2008 is set aside and consequently the respondents are directed to sanction incentive increment to the petitioner for acquiring M.A., Degree with all benefits. The said exercise should be completed within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.

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In this Appeal, the appellants who were the respondents in the Writ Petition prayed for setting aside the impugned order passed by the learned Single Judge in the said writ petition.

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On behalf of the appellants, Mrs.Narmadha Sampath, the learned Additional Advocate General submits that the order passed by the learned Single was contrary to the law and facts. She further submits that the respondent was appointed as a Drawing Teacher and was given incentive increment for having obtained B.A.Decree.

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She submits that the learned Single Judge erred in allowing the writ petition and thereby holding that the second incentive was to be paid to the respondent as he had obtained M.A.Decree on 01.10.1996 from Annamalai University through the Open University System.

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She further submits that the post of a Drawing Teacher was that of a skilled grade teacher and not that of a secondary grade teacher and therefore, the respondent was not entitled to the benefit of G.O.Ms.No.42, Education Department, dated 10.01.1969.

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She further submits that even as per the said G.O., the respondent was “other teachers specialized” at serial No.8 to the said G.O.Ms. and therefore, the learned Single Judge erred in granting relief to the respondent.

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Defending the impugned order passed by the learned Single Judge, the learned counsel for the respondent submits that the impugned order passed by the learned Single Judge granting

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relief to the respondent was well reasoned and proper and requires no interference.

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He further submits that similar benefits have been granted to others in W.P.No.28040 of 2006 dated 05.11.2007 and not appealed by the appellants and therefore, prayed for dismissal of this Writ Appeal.

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We have considered the arguments advanced by the learned Additional Advocate General appearing for the appellants and the learned counsel for the respondent.

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12. The respondent was working as a drawing master at Government Higher Secondary School, Nimmiyampattu, Vellore District for about 25 years when he had filed W.P.No.30183 of 2008. He was already aged 55 years and would have retired from service in 2011 before the Writ Petition came to be disposed by the learned Single Judge.

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13. The respondent had obtained M.A.decree from Annamalai University through Open University System on 01.10.1996. Thereafter, the respondent also obtained B.Ed. Decree on 28.12.1996 from Annamalai University through Open University System.

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14. According to the respondent, these qualifications were also entered in his Service Register and he was correctly awarded two incentive increments by the Headmaster, Government Higher Secondary School, Nimmiyampattu, Vellore till the year of 2001.

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15. Later in his proceedings dated 19.12.2000, bearing reference Na.Ka.No.437530 EH3/2000, the Director of Elementary Education, Chennai had directed recovery the incentive increments awarded to the respondent.

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16. Based on the same and the Audit Report, the Headmaster of the School also passed an order of recovery of the incentive increments given to the respondent vide order dated 26.07.2001.

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17. The respondent therefore preferred an appeal before the appellants. Meanwhile, similarly placed persons also approached the Tamil Nadu Administrative Tribunal, Chennai and after abolition of the said Tribunal, these cases were renumbered as writ petitions before this Court and the relief has also granted to them.

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18. The respondent also filed W.P.No.15821 of 2007. This court by an order dated 11.03.2008 passed the following orders:-

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“Following the said Judgments, the impugned orders in so far as recovery is concerned, the respondents are given liberty to issue notice to the petitioner and after getting explanation from the petitioner, it is open to the respondents to pass revised orders, if it is warranted.”

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Pursuant to the disposal of the above writ petition, the appellants issued another notice dated 06.06.2008 and called upon the respondent to show as to why the incentive increments for M.A.Decree should not be cancelled.

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It appears that the respondent also filed a detailed explanation stating that his service was equivalent to that of a Secondary Grade Teacher as he was taking class for the students and was eligible to get incentive increments for acquiring higher qualification, i.e., M.A.Decree, as was given to the Secondary Grade Teacher.

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The 2^nd appellant, Chief Educational Officer thereafter passed an order dated 09.07.2008 bearing reference Na.Ka.No.8117/A3/2007 which came to be challenged by the 1^st respondent in W.P.No.30183 of 2008. The translated copy of the said order issued by the second appellant which was challenged in the above Writ Petition reads as under:-

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Proceedings of Chief Educational Officer, Vellore R.C.No.8117/B3/2007, dated 09.07.2008

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Sub : Court case – W.P.No.15821/2007 and M.P.No.2/2007, filed by ThiruA.Rathnam, Drawing Teacher, G.H.S.S., Nimmiyampattu, Vellore District – implementation of Judgment – Reg.

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Ref : 1.W.P.No.15821/2007, and M.P.No.2/2007 dated 11.03.2007.

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2.Director of School Education, Chennai, R.C.No.38071/k/C1/2007 dated 25.04.2008, 11.06.2008. 3.Same Letter No. of this office dated 05.06.2008, 27.06.2008.

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In order to comply the Judgment, to the concerned Headmaster is instructed, to sanction incentive increment to Thiru A. Rathinam, G.H.S.S. Nimmiyampattu, Drawing Master upto 11.03.2008, if deducted and to re-fix the scale of pay from 12.03.2008 without calculating the above mentioned incentive increment.

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Sd./- R.Pichai Chief Educational Officer Vellore.

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Earlier, the respondent had filed W.P.No.10133 of 2006.The said Writ Petition came to be disposed by a Single Judge of this Court on 12.4.2006 with certain directions to the appellants to pass appropriate order in terms of order dated 9.12.2002 in W.P Nos.12912 and 12913 of 1999. The appellants however rejected the claim of the respondent.

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Therefore, the respondent filed W.P.No.15821 of 2007 and granted partial relief. Thus, benefit of G.O.Ms.42, Education Department, dated 10.01.1969 was extended to the respondent vide the impugned order of the 2^nd appellant upto 11.03.2008 pursuant to the order dated 11.03.2007 of the learned Single Judge passed in W.P.No.15821 of 2007.

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Relevant portion of the G.O.Ms.No.42, Education Department, dated 10.01.1969 benefit of which has been extended and sought to be denied by the appellants reads as under:-

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The Government have already accepted in principle that incentive payments and awards should be given to the teachers in schools who acquire higher educational qualifications. The Director of School Education has accordingly submitted proposals, as indicated in Annexure to this order.

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The Government approve the proposals of the Director of School Education and direct that advance increments be granted to the teachers for each higher qualification acquired by them as indicated in the Annexure.

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The expenditure should be debited to "28 Education Z. Development Schemes - Schemes in the Fourth Five Year Plan – Miscellaneous - O - Incentive payment and awards to teachers". The Director of School Education is requested to take action to provide additional funds required by reappropriation from savings.

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This order issues with the concurrence of the Finance Department vide its U.O.No.410/PIX/69-1, dated 7^th Jan.1969.

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ANNEXURE

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A teacher belonging to the category mentioned in column (1) of the Table below shall be eligible for the two advance increments in the scale of pay admissible for this category in he/she possesses or acquires higher qualification specified in column (3) provided the maximum in the scale of pay is not reached.

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Sl. Category Scale of Pay Higher qualification
No for which two advance
increments are
admissible
1 Secondary or 90-4-110-3-140 B.T., or B.Ed.,
Senior Basic degree of a
Grade University in the
Teachers State or the degree
of other Universities
recognised as
equivalent to the
degree of B.T. or
B.Ed., degree of
Universities of this
State.
2 B.T. B.Ed., 140-5-180-10-250 M.A., or M.Sc. M.Ed.
Assts., Degree of a
225-10-275-350
University in the
State or the degree
of other Universities
recognised as
equivalent to
M.A./M.Sc., or M.Ed.,
degree of
Universities of this
State.
3 Headmasters 225-10-275-15-
of Govt. 350
-do-
Board Schools
and Municipal
Township
Schools
4 Headmasters 225-15-276 -do-
of Aided High
300-15-430
Schools
5 Pandits I Gr 140-250-or lower B.T., or B.Ed.,
scale degree of a
University in this
State or the degrees
of other Universities
recognised as
equivalent to B.T. or
B.Ed., degree of
Universities in this
State.

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Sl. Category Scale of Pay Higher qualification
No for which two advance
increments are
admissible
6 Pandits II 90-40-110-3-140 -do-
Gr.
7 Physical -do- B.T., or B.Ed.,
Training degree of a
Instructors I University in this
Gr. State or degree of
other Universities
recognised as
equivalent to B.T. or
B.Ed., degree of
other Universities in
this State or Diploma
in Physical
Education.
8 Other -do- B.T., or B.Ed., or
Specialist other recognized
Teachers equivalent degrees in
this State.

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ii. A Secondary Grade Teacher who after passing B.T. or B.Ed., degree examination qualified for M.A., or M.Sc., or M.Ed., degree, but working in Secondary Grade post may be given advance increments for the second time also, i.e., two advance increments after passing B.T.or B.Ed. degree and another two advance increments after passing M.A., or M.Ed., degree. A B.T. Teacher who after passing M.A. or M.Sc. Qualified for M.Ed. degree examination but working in B.T. or Headmaster's post may be given advance increments for second time also, ie., two advance increments after passing M.A. or M.Sc. degree and another two after passing M.Ed. degree.

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iii. The advance increments may be given from 1^st July 1968 or from the day following the last day of the examination in higher qualification mentioned in Column (3) of the table whichever is later. In case the regular increments due to a person withheld by way of punishment the advance increment admissible should be given only after the regular increment is sanctioned. iv. In the case of persons entering service on or after 1^st July 1968 possessing the higher qualification, their initial pay may be fixed by giving advance increments in their scale of pay.

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v. In the case of Panchayat Unions and Municipalities including Corporation of Madras and townships the

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expenditure towards the grant of advance increments may be taken into account for purpose of payment of subsidy, according to the pattern of aid admissible and special subsidy may be paid to them. In the case of aided schools, the expenditure will be taken into account for purpose of staff grant in the case of secondary schools and teaching grant in the case of Elementary Schools.

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G.O.Ms.No.42, Education Department, dated 10.01.1969 was issued in 1969 when there were very few universities offering qualification through distance education system and correspondence and distance education were practically unknown. It appears that G.O.Ms.No.42, Education Department, dated 10.01.1969 was intended to incentivize those teachers who obtained additional qualification through regular streams and indicated the mindset of the Education Department of the State at that point of time.

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It was intended to encourage teachers in the State of Tamil Nadu to obtain higher qualification while in service and therefore identified eight different categories of teachers who could be granted incentive increments.

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Sl.No.1 to the Annexure to G.O.Ms.No.42, Education Department, dated 10.01.1969 applied to “Secondary or Senior Basic GradeTeachers” while Sl.No.8 to the Annexure applied to “Other Specialist Teachers”.

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Meanwhile, G.O.Ms.No.753, Education Department, dated 15.07.1985 was issued under Article 309 of the Constitution of India. As per G.O.Ms.No.753, Education Department, dated 15.07.1985, the post of a Secondary Grade Teacher came to be classified as Class IV while the post of an Art Master in a Secondary and Training Schools came to be classified as Class V. Different qualifications are prescribed under Annexure II to the aforesaid G.O. They are reproduced below:-

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Name of the category (1)	Method of Appointment	(2)	Qualification : (3)
Secondary	Direct		(i)Minimum general
Grade	recruitment		educational qualification
Teachers	transfer promotion recruitment transfer	and by	as defined in Schedule I to the General Rules for the Tamil Nadu State and Subordinate Service and
			Training School Leaving Certificate of Secondary Grade or its equivalent.

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Name of the	Method of	Qualification :
category (1)	Appointment	(2) (3)
Art Masters	Direct	(i)(a) Decree with Drawing
in Secondary	recruitment,	and Painting under par
and Training	promotion,	III of a University in
Schools	transfer	and the Ste or its
	recruitment	by equivalent; or
	transfer	Diploma in Painting or
		Diploma in Drawing of the Annamalai University; or
		(b) Minimum general educational qualification as defined in Schedule I to the General Rules for the Tamil Nadu State and Subordinate Service; and (ii) A Diploma in
		painting or Commercial
		Arts or Modelling of
		the Government College
		of Arts and CV Crafts;
		or
		Government Technical Examinations (Higher grade) in free hand
		outline and Model
		Drawing. Government
		Diploma in Drawing or
		a Certificate issued
		by the Tamil Nadu
		Institute of
		Architecture and
		Sculpture Mamallapuram
		and (iii) Technical Teachers
		Certificate or
		(iv) * a Diploma in Fine Arts awarded by the
		Director of Technical Education. * G.O.Ms.No.1636
		Education dt.
		17/11/89;
		w.e.f.20/9/89

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Name of the	Method of	Qualification :
category (1)	Appointment	(2) (3)
Art Masters	Direct	(i) A pass in III Form
in Basic	recruitment,	of a secondary school
Training	promotion,	recognised by the
Schools	transfer	and Director of School
	recruitment transfer.	by Education or a pass in the VIII Standard
		Public Examination conducted by the Director of Government Examinations, and
		(ii) (a) A group certificate in drawing and painting and design – higher grade; or (b) Art Masters Certificate in Designing and painting; or
		(c) A diploma in drawing
		and painting of the
		Government School of
		Arts and Crafts,
		Madras or any other
		similar certificate accepted equivalent thereto by the
		Director of School
		Education. Provided that other
		things being equal
		preference shall be given to a person who, in addition, possessess
		(i) a general educational qualification higher
		than that prescribed
		in (a) above; or (ii) the Teachers Training
		Certificate or the
		Technical Teachers
		Certificate awarded,
		by the Education
		Department.

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An Art Master is not a Secondary Grade Teacher though the method of recruitment is similar for both the categories of teachers. An Art Master at best can be considered as “Other Specialist Teachers” for the purpose of G.O.Ms.No.42, Education Department, dated 10.01.1969 and eligible for incentive increment.

¶98

Though the avowed reason for incentivizing teachers for obtaining higher qualification is evident, it cannot be said that such incentive was given only if the teacher obtained higher qualification in the same discipline of subject which was being taught by him or her in the schools in absence of a clear indication in G.O.Ms.No.42, Education Department, dated 10.01.1969.

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It is to be noted that G.O.Ms.No.42 was later liberalized to incentivizing teachers and staffs in public service who obtained higher qualification through such open universities. However, the liberalization of the said G.O was eventually rescinded in the year 2013 to which also we shall refer in the course of narration of this Order.

¶100

During the interregnum several G.Os were issued by the State of Tamil Nadu in the exercise of the powers vested with the Governor under Art.309 of the Constitution of India . They are as follows:-

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i. G.O.Ms.No.1032, Education dated 22.06.1971,

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ii.G.O.Ms.No.1024, Education, Science and Technology Department, dated 09.12.1993,

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iii.G.O.Ms.No.180, Personal and Administrative Reforms (R) Department, dated 11.09.2000, and iv.G.O.Ms.No.307, Education Department, dated 15.12.2000.

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As per G.O.Ms.No.180, Personal and Administrative Reforms (R) Department, dated 11.09.2000, Diploma, Graduation and Post Graduation through Open University System were treated on par with Regular Stream for the purpose of employment in Public Service.

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Later, by Government Letter No.107271/E2/91-6, Education, dated 27.04.1993, M.A.Decree obtained from Open University of Mysore University was recognised for the purpose of grant of incentive increments in terms of G.O.Ms.No.42, Education, dated 10.01.1969. It is by virtue of G.O.Ms.No.307, Education Department, dated 15.12.2000, the benefit of G.O.Ms.42 Education, dated 10.01.1969 was extended to the respondent by themselves in 2001 and was later revoked.

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Text of the said G.O.Ms.No.307, Education Department, dated 15.12.2000 is reproduced below for a proper disposal of the present Writ Appeal as same was neither made available nor has been reproduced in any other reported judgment of this Court:-

¶108

jkpo;ehL muR

¶109

RUf;fk;

¶110

– gs;spf;fy;tp jkpo;ehl;bYs;s jpwe;j ntsp gy;fiyf; fofq;fshy; ,sq;fiyg; gl;lk; ngwhky; Neubahf toq;fg;gLk; KJepiyg; gl;lg; gbg;Gf;F Cf;f Cjpak; mDkjpj;jy; -- Miz ntspaplg;gLfpwJ.

¶111

gs;spf; fy;tp(,2) Jiw murhiz (epiy) vz;:307 ehs;.15.12.2000 ---------------gbf;fg;gl;lit: 1.murhiz (epiy) vz;.42> fy;tp> ehs;.10.1.96. 2.murhiz (epiy) vz;.1032> fy;tp> ehs;.22.6.71. 3.murhiz (epiy) vz;.1024> fy;tp> mwptpay; kw;Wk; njhopy;El;gtpay; Jiw> ehs;.9.12.93. 4.njhlf;ff; fy;tp ,af;Fehpd; fbjk; e.f.vz;.23061 ,I2/96 ehs; 30.4.97 & 28.7.2000 5.gs;spf; fy;tp ,af;Fehpd; fbjk; e.f.vz;.17519/Nf2/97 ehs;. 15.5.97. 6.murhiz (epiy) vz;.180> gkeprp(Mh;) Jiw> ehs;.11.9.2000.

¶112

Miz: ----ghh;it 6y; gbf;fg;gl;l murhizapy; jkpo;ehl;bYs;s> gy;fiyf;fof khd;af; FOthy; mq;f P fhpf;fg;gl;l gy;fiyf;fofq;fshy; jpwe;jntspg; gy;fiyf;fof Kiw %yk; toq;fg;gLk; gl;lag;gbg;G> gl;lg;gbg;G kw;Wk; KJepiyg; gl;lg; gbg;Gfis mg;gy;fiyf; fofq;fshy; Kiwahf (Regular Strea m) toq;fg;gLk; gl;lag;gbg;G> gl;lg;gbg;G kw;Wk; KJepiyg; gl;lg;gbg;G Mfpatw;wpw;F rkkhf fUjp nghJg;gzpfspy; Ntiytha;g;gpw;F mq;f P fhuk; mspj;J muR Mizapl;Ls;sJ.

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2. muR fbj vz;.107271/,2/91-6 fy;tp ehs;.27.4.93 ik#h; gy;fiyf;fofk; elj;Jk; jpwe;jntspg; gy;fiyf;fofk; %yk; ngw;Ws;s vk;.V. gl;lj;jpw;F murhiz epiy vz;.42 fy;tp ehs; 10.1.69-d; gb Cf;f Cjpa cah;T toq;fyhk; vd muR njspTiu toq;fpAs;sJ. ,ju gy;fiyf;fofq;fspy; jpwe;j ntspg; gy;fiyf;fofk; %yk; mspf;fgLk; vk;.V./vk;.v];.rp. Nghd;w KJfiyg; gl;lr;rhd;wpjo;fs; Kiwahf fy;Y } hpfspy; gbj;Jg; ngw;w gl;lj;jpw;F ,izahdJ jhdh vd;gJ Fwpj;J muR mt;tg;NghJ jdpj;jdpahf Mizfs; gpwg;gpj;J tUfpd;wd. ,e;epiyapy; ,ju gy;fiyf;fofq;fspy; jpwe;j ntspg; gy;fiyf;fofk; %yk; Neubahf ngWk; vk;.V. gl;lj;jpw;F Cf;f Cjpa cah;T mspg;gJ Fwpj;J njhlf;f fy;tp , af;Feh; kw;Wk; gs;spf; fy;tp ,af;Feh; MfpNahUld; fye;J ghpr P ypf;fg;gl;lJ. j P tpu ghpr P yidf;Fg; gpd;> ghh;it 6y; gbf;fg;gl;l murhizapd; mbg;gilapy; jkpo;ehl;bYs;s gy;fiyf;fof khd;af; FOthy; mq;f P fhpf;fg;gl;l jpwe;jntspg; gy;fiyf;fofk; %yk; ,sq;fiyg;gl;lk; ngwhky; Neubahfg; ngWk; KJepiyg; gl;lg;gbg;Gf;F murhiz (epiy) vz;.1032 fy;tp ehs; 22.6.71 gj;jp 2(v)3 y; toq;fg;gl;Ls;s njspTiuia fUj;jpy; nfhz;L Cf;f Cjpak; toq;Ftjw;F muR MizapLfpwJ. mt;thW Cf;f Cjpak; mDkjpf;fg;gLk; NghJ murhiz epiy vz;.42 fy;tp ehs;.10.1.69 kw;Wk; mjw;F murhiz epiy vz;.1024> fy;tp> mwptpay; kw;Wk; njhopy;El;gj;Jiw> ehs;.9.12.93 y; ntspahd jpUj;jj;jpw;F cl;gl;L Cf;f Cjpak; toq;fg;gl Ntz;Lk;.

¶115

3. Vw;fdNt jkpo;ehl;bYs;s gy;fiyf;fof khd;af;FOthy; Vw;gspf;fg;gl;l jpwe;j ntspg; gy;fiyf;fofq;fs; %yk; Neubahf KJfiyg; gl;lk; ngw;wth;fs; midtUf;Fk; ,e;j Miz ntspapLk; ehs; Kjy; Cf;f Cjpaj;njhif toq;fyhk;.

¶116

4. ,t;turhiz epjpj;Jiwapd; m.rh.vz;.829/……/[ pv /2000-1 ehs; 13.12.2000 y; ngw;w mj;Jiwapd; ,irTld; ntspaplg;gLfpwJ.

¶117

(MSehpd; Mizg;gb)

¶118

vk;.V.nfshprq;fh; muRr; nrayhsh

¶119

G.O.Ms.No.307, Education Department, dated 15.12.2000 was issued in the light of the observation in paragraph No.2(V) (3) of G.O.Ms.No.1032, Education, dated 22.06.1971. It is stated that even a person who had directly obtained Post Graduation from Open Universities without basic Under Graduation can be given incentive increments in terms of G.O.Ms.No.42, Education, dated 10.01.1969 as amended G.O.Ms.No.1024, Education, Science and Technology Department, dated 09.12.1993.

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37. G.O.Ms.No.307, Education Department, dated 15.12.2000 thus recognized that Post Graduate Decree such as M.A./M.Sc. Decree obtained through Open Universities were also to be treated on bar with Regular Stream for the purpose of granting incentive increments. G.O.Ms.No.307, Education Department, dated 15.12.2000 does not contemplate any recovery of incentive increments granted earlier.

¶122

G.O.Ms.No.307, School Education Department dated 15.12.2000 liberalized G.O.Ms.No.42 of the Education Department and directed the concerned authorities to award the incentive increments to the teacher who acquire higher qualification through Open University System in terms of G.O.Ms.No.1032, dated 27.06.1971, G.O.Ms.No.42, dated 10.01.1969 and G.O.Ms.No.1024, dated 09.12.1993 from the date of issuance of G.O.Ms.307 dated 15.12.2000. As mentioned these Government Orders did not specifically state that the higher qualification should be in the same field of the subject taught by the teachers.

¶123

In M.K.Ramadoss vs. The Government of Tamil Nadu represented by the Secretary to Government, Education Department, Chennai and others, the Hon’ble Division Bench of this Court had an ocassion to deal with G.O.No.307 dated 15.12.2000 while passing order dated 12.11.2003 in Writ Appeal No. 3026 of 2003. It has been held as follows:-

¶124

In the circumstances, we uphold the order of the learned single Judge by holding that the incentive increment, which has been granted by virtue of G.O.Ms.No.307, dated 15.12.2000 to the persons who obtain degrees under Open University System, is effective only from the date of passing of the Government Order i.e., from 15.12.2000 and not with retrospective effect.

¶125

There the issue that fell for consideration was whether the incentive increments, which were granted pursuant to G.O.Ms.No.42, dated 10.01.1969, were payable with effect from the date of passing of the Open University examination or the date of G.O.Ms.No.307.

¶126

The Court has held that it is not disputed that but for this G.O.Ms.No.307, dated 15.12.2000, the writ petitioner was not entitled to claim any incentive increment.

¶127

In W.P.No.8664 of 2003 vide dated 06.01.2010 in the case of T.Rajendran and S.Perumal vs The Director of Elementary Education, College Road, Nungambakkam, Chennai-6 and others, it was held that G.O.Ms.No.307 School Education Department dated

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15.12.2000, refers to the award of incentive increment to persons who have acquired P.G. qualification through Open University and does not either expressly or impliedly speaks of recovery by the concerned authority with regard to the incentive increments already paid to the eligible teachers.

¶130

Though higher qualification through distance education came to be recognised by the Government of Tamil Nadu for the purpose of grant of promotions and increments in public service, yet the rationale granting such benefits in the field was later questioned by the Education Department itself.

¶131

The Government thus withdrew G.O.Ms.No.307, Education Department, dated 15.12.2000 vide G.O.Ms.No.118, School Education Department, dated 10.07.2013.

¶132

It is noticed that while rescinding G.O.Ms.No307, Education Department, dated 15.12.2000, the Government noted that many of the teachers who had obtained Post Graduation directly from Open University System without basic Under Graduation were working without even proper qualification.

¶133

It doubted the rationale for extending incentive increments particularly in the field of education as these teachers did not have the required basic qualification. The Government through the Education Department therefore accepted the recommendation of the Director of School Education to withdraw the incentive as these teachers had obtained Post Graduation directly from Open Universities without obtaining basic Under Graduation and did not possess the required basic qualification and therefore opined that the incentive increments given in terms of G.O.Ms.No.42, Education, dated 10.01.1969 as amended G.O.Ms.No.1024, Education, Science and Technology Department, dated 09.12.1993 as made applicable vide G.O.Ms.No307, Education Department, dated 15.12.2000 was to be withdrawn.

¶134

However, in this Writ Appeal we are not concerned with the correctness or otherwise of G.O.Ms.No.307, Education Department, dated 15.12.2000. In our view, the benefit of G.O.Ms.No.42, Education, dated 10.01.1969 as made applicable by G.O.Ms.No307, Education Department, dated 15.12.2000 cannot be denied to the respondent if the respondent was otherwise eligible for the same during the currency of G.O.Ms.No307, Education Department, dated 15.12.2000.

¶135

G.O.Ms.No307, Education Department, dated 15.12.2000 liberalized G.O.Ms.No.42, Education, dated 10.01.1969 at the

¶136

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relevant point of time. It was made available to all teachers who obtained additional qualifications from open universities. This benefit was given to several persons like the respondent.

¶138

In our view, the respondent though a drawing teacher, was eligible for incentive increment in G.O.Ms.No307, Education Department, dated 15.12.2000. Further, the qualification for a secondary grade teacher was as per General Rules For Tamil Nadu State and Subordinate Services and Training School Leaving Certificate of Secondary Grade or its Equivalent. The said qualification is similar to the qualification prescribed for an Art Master.

¶139

In our view, the G.O.Ms.No.307, School Education Department, dated 15.12.2000 also did not distinguish between 8 categories of teachers who were entitled to the benefit of incentive increments.

¶140

Therefore, denial of such incentive to the respondent would result in an unfair discrimination and would be in violation of the prevailing norms.

¶141

Further, the Government withdrew the incentive increment vide G.O.Ms.No.118, School Education Department, dated 10.07.2013 only in the year 2013. Between 15.12.2000 and 10.07.2013, both the appellants and the respondents were governed by G.O.Ms.No.307, School Education Department, dated 15.12.2000.

¶142

Further, G.O.Ms.No.118 has also not authorized the appellants to order for recovery or re-calculation of incentive increments granted earlier to those persons who have already retired. In our view, G.O.Ms.No.118, School Education Department, dated 10.07.2013 also has to be held to be prospective and not retrospective.

¶143

In our view, the G.O.Ms.No.42, Education Department, dated 10.01.1969 as made applicable to the G.O.Ms.307, School Education Department, dated 15.12.2000 also did not make any distinction between the teachers obtaining higher qualification. It merely identified eight categories of teachers.

¶144

55. Even if the purpose of awarding incentive increments was for acquiring higher qualification, it was perceived that such acquisition of higher qualification benefited of the students. It was based on the prevailing understanding of the Education Department in the beginning of the millennium.

¶145

That apart, we can only go by the express language in

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the G.O. and not by the assumed intention of G.O. to deny the benefit to the respondent.

¶148

The learned Single Judge has also followed the orders passed in W.P.No.39789 of 2006 dated 15.03.2009 and in W.P.No.28040 of 2006 dated 05.11.2007 while granting relief to the respondent as is evident from the relevant portion of impugned order.

¶149

Further, having given similar relief to the similarly placed persons on an earlier occasion by accepting the decision of this Court in Writ Petitions, we do not find any reasons to interfere with the impugned order of the learned Single Judge.

¶150

The benefit of the said G.O.Ms.No.307, Education Department, dated 15.12.2000 having been granted to the respondent for the period before 11.03.2008 pursuant to an order dated 11.03.2008 in W.P.No.15821 of 2007, cannot be denied.

¶151

Having granted the benefit of incentive increment to the respondent upto 11.03.2008, it cannot be denied to the respondent for the residual period of service. Therefore, there is no justification in denying the benefit to the 1 s t respondent. Further, t he respondent had already obtained these qualifications prior to issue of said G.O.Ms.No307 and therefore, the benefit of said G.O.Ms.No.307 was granted by the appellants themselves as is evident from impugned letter dated 09.07.2008 bearing R.C.No.8117/B3/2007 issued by the 2^nd appellant Chief Education Officer. Such denial would amount to discrimination.

¶152

Therefore, we are inclined to dismiss this appeal. Accordingly, this Writ Appeal is dismissed. No cost. Consequently, connected miscellaneous petition is closed.

Sd/-

Assistant Registrar

//True Copy//

Sub Assistant Registrar

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jen

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To.