WP/12912/1999 of M.ARUNAJALATHAI Vs 1.DIRECTOR OF ELEMENTARY EDU on 9 December 2002

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Heard the learned Counsel appearing for the petitioner and theAdditional Government Pleader for Respondent Nos. 1 to 3.

2. In this writ petition, the petitioner has prayed for issue of a writ of certiorarified mandamus to quash the proceedings of the secondrespondent in Na.Ka.No.778/A5/98 dated 22.04.1998 and the consequential orderof the fourth respondent in proceedings No.Nil dated 25.06 .1998 and to directthe respondents to sanction two sets of incentive increments to the petitionerfor acquiring M.A. and B.Ed., Degrees.

3. The petitioner was appointed as Secondary Grade Teacher in thefourth respondent school. Subsequently, he passed M.A. Degree in the year1994 and B.Ed., in 1996 from Annamalai Open University System. In view of thesubsequent acquisition of higher qualifications, the petitioner was sanctionedtwo sets of incentive increments in June, 199 7. The incentive incrementsamounts had been paid to the petitioner. Subsequently, under the impugnedproceedings in Na.Ka.No.778/A5/98 dated 22.04.1998, the second respondent,namely, the District Elementary Educational Officer, cancelled the incentiveincrements and directed that the incentive increments amounts already paid tothe petitioner should be recovered. Pursuant to the aforesaid order, the fourth respondent-Management issued the consequential order dated 25.06.199 8and the amounts were recovered. These actions of respondents 2 and 4 havegiven rise to the present writ petition.

4. In the impugned proceedings passed by the second respondent, theonly reason given is that the petitioner is not eligible to receive theincentive increments. In the counter affidavit, it has been indicated thatthe petitioner had passed M.A. and B.Ed., from Annamalai Open UniversityScheme and such higher qualifications from Open University Scheme, even thoughrecognised for the purpose of employment, were not recognised for the purposeof grant of incentive increments. It has been further indicated thatsubsequently, the Government have issued G.O.Ms.No.307 School Education (E2)Department dated 15.12.200 0 extending the benefit of incentive increment tothe persons who have acquired their qualifications from the Open UniversitySystem throughout the Tamil Nadu recognised by the University GrantsCommission. It has been indicated that such benefit would be available fromthe date of the issue of the order dated 15.12.2000.

5. The question of grant of incentive increment has been laid down in

5. The question of grant of incentive increment has been laid down in G.O.Ms.No.42, Education, dated 10.01.1969, wherein it has been indicated thatany Secondary Grade Teacher who acquires higher qualification, is entitled toincentive increment. At that time when the principle was laid down inG.O.Ms.No.42, Education, dated 10.01.1969, no occasion had arisen to considerwhether such benefit would be available to the persons who acquire higherqualification from the Open University System. The matter was considered onlyin 1993. The question relating to grant of incentive increment to the personswho have acquired higher qualification from Mysore Open University in theState of Karnataka, came up for consideration in G.O.Ms.No.1024, Education,Science & Technology Department, dated 09.12.1993, and it was clarified thatsuch incentive increment would be available to the persons who had acquiredhigher qualification from Mysore Open University. The question relating torecognition of Decree granted by Annamalai Open University Scheme wasconsidered in G.O.Ms.No.216 Personnel & Administrative Reforms (R) Departmentdated 26.08.1997 and it was ordered that Degree, Post Graduate Degree andDiploma Certificates issued by the Annamalai Open University System would betreated equivalent to that of the Annamalai University in Regular steam forappointment in public Services. In other words, the persons who have acquiredDegrees from Annamalai Open University Scheme, even though had no formalqualification in the Regular Stream, would be considered eligible for thepurpose of appointment in Public Services. It is not disputed that theDegrees issued by Annamalai Open University Scheme have been recognised byUniversity Grants Commission.

6. It is obvious that the initial sanction of the incentive increments to the petitioner was on the basis of the G.O.Ms.No.216 Personnel &Administrative Reforms (R) Department dated 26.08.1997, whereunder theGovernment have accepted the Degrees issued by Annamalai Open UniversityScheme as equivalent to that of the Annamalai University in Regular Stream.Subsequently, the incentive increments already paid have been withdrawn,possibly because it was thought that even though such Degrees from AnnamalaiOpen University Scheme would entitle a person to get appointment in publicservices, such Degrees would not make such person eligible to get theincentive increment in the absence of any specific order of the Government.The learned Additional Government Pleader has also submitted that in fact, theGovernment have subsequently clarified that such person who acquired suchhigher qualification from Open University recognised by the University GrantsCommission, would be eligible to receive the incentive increment from the dateof the said subsequent G.O., namely, G.O.Ms.No.307 dated 15.12.2000.

7. In the aforesaid background, the learned Counsel appearing for the petitioner submitted that once it was decided by the Government in 1997 thatthe Degrees obtained from Annamalai Open University Scheme would be recognisedfor the purpose of appointment in public services, there is no justificationin contending that such recognition of the degrees would be only for thepurpose of appointment, but not for the purpose of sanction of incentiveincrements. It is further submitted that at any rate, the Government havingaccorded such benefit to the persons who have acquired higher qualification from the Mysore Open University, could not discriminate against the personswho acquired such qualification from Annamalai Open University situate inTamil Nadu itself, particularly, when the Degrees issued by Annamalai OpenUniversity are recognised by the University Grants Commission and there is noqualitative difference between the Degrees granted by the Mysore OpenUniversity and the Annamalai Open University.

8. It is not disputed that the persons, who have acquired higherqualification from Mysore Open University, even though without any formalGraduate Degree through Regular Stream, have been given the incentiveincrements. It is also not disputed that the Degrees issued by Annamalai OpenUniversity have been recognised by the University Grants Commission and alsoby the State. In such view of the matter, there is no logic in contendingthat the persons who have passed from Annamalai Open University would beeligible to get the incentive increment only with effect from 15.12.2000 andnot from the earlier period. Since such persons who had acquired Degrees fromthe Annamalai Open University were considered eligible for appointment inpublic services as per G.O.Ms.No.216 Personnel & Administrative Reforms (R)Department dated 26.08.1997, at least from that date such persons would beentitled to get the incentive increments. To deprive them of the benefitwould amount to discrimination vis-a-vis persons who have acquired higherqualification from a similar System, namely, from Mysore Open University.

9. The learned Additional Government Pleader submitted that subsequent G.O.Ms.No.307 School Education (E2) Department dated 15.12.2000 hasnot been challenged by the petitioner. It is well settled that any Provisionscontained in any Act, Statutory Rules or even Administrative Instructionshould be construed in consonance with the Provisions, particularly, Article14, contained in the Constitution of India. G.O.Ms.No.307 dated 15.12.2000appears to be clarificatory in nature. When the Government have alreadyextended the benefit of the Degrees from the Annamalai Open University for thepurpose of appointment in public services, there is no justification indenying such Degree for the purpose of grant of incentive increments in publicservices.

10. The learned Additional Government Pleader has relied on the decision rendered in W.P.Nos.1256 and 5657 of 1999 dated 25.04.2002 to theeffect that person acquiring M.A. Degree from the Open University System isnot entitled to claim promotion. In the present case, the Government havealready recognised the right of the person passing from Mysore Open Universityfor the purpose of giving incentive increments and since there is nodifference between the Degrees issued by the Mysore Open University andAnnamalai Open University and since the Degrees issued by Annamalai OpenUniversity have been recognised by the State Government and University GrantsCommission, there cannot be any justification to deny such incentive benefits.The decision cited above is distinguishable, as similar question never came upfor consideration in that case.

11. Apart from above, there is also justification in the contention of the Counsel appearing for the petitioner that assuming that the benefitwhich was not available had been granted, there is no justification for theGovernment to withdraw the same. The benefit had been granted by theGovernment itself and the amount had already been disbursed. Even assuming that such amount has been paid to the petitioner on an erroneous basis, theerror, if any, was of the Government and not of the petitioner and as such,the Government is estopped from recovering the amount already disbursed to thepetitioner.12. For the aforesaid reasons, the writ petition is allowed and it isordered that the amount already recovered should be refunded and further allthe arrears should be paid within a period of four months. No costs.

Index:YesInternet:YesTo1. The Director of Elementary Education,Chennai.6.

2. The District Elementary Educational Officer,Chennai.6.

3. The Additional Assistant Elementary Educational Officer,Perambur Range,11, Davindsingh Street,Chennnai.1.

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