IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.04.2010 Coram: THE HONOURABLE MR.JUSTICE B.RAJENDRAN Writ Petition No. 38555 of 2006 in O.A. NO. 6052 of 1999 M.Devadhasan .. Petitioner vs. 1.Director of School Education Chennai-6. 2.Headmaster N.V.C. Government Higher Secondary School Radhapuram-627 111. Tirunelveli District. .. Respondents Prayer: This Writ Petition came to be numbered under Article 226 of the Constitution of India, by way of transfer of O.A. No. 6052 of 1999 from the file of the Tamil Nadu Administrative Tribunal with a prayer to call for the records pertaining to the order passed by the 2nd respondent in his proceedings Na.Ka. No.418/98-99 dated 02.02.1999 and set aside the same. ------- For Petitioner : Mr. P. Ganesan For Respondents : Mr. P.Gurunathan Government Advocate ------- O R D E R The Original Application in O.A. No. 6052 of 1999 before the Tamil Nadu Administrative Tribunal is the present writ petition. 2. The applicant challenges the order of recovery of the incentive granted to him for getting an M.A. Degree. The only point for consideration is earlier, he was working as B.T. Assistant and appointed on 24.08.1989. When he acquired an M.Ed. degree in the year 1985, he got the incentive increment for working as B.T. Assistant. Subsequently, there was a publication calling for the post of P.G. Assistant through Teachers Recruitment Board. He https://hcservices.ecourts.gov.in/hcservices/ appeared in an interview and appointed as P.G. Assistant directly through the Teachers Recruitment Board and relinquished his earlier B.T. Assistant post. On such appointment, he was only given a salary of Rs.1,820/-, whereas in the earlier post he was drawing Rs.1,900/-. If he had continued, he would have got Rs.1,900/-. In fact, the last pay drawn by the applicant was Rs.1,900/- in the cadre of B.T. Assistant. He was not given as a promotion of P.G. Assistant, but he was directly recruited through Teachers Recruitment Board. The P.G. Assistant comes under the category of Tamil Nadu Higher Secondary Service Rules and the earlier services were not counted for his service and also he was asked to resign from his earlier post. He resigned his earlier post, neither his pay parity was given in the new post in the P.G. Assistant post. Further, he was treated as a new entrant. Thereafter, as P.G. Assistant in the direct recruitment post, he got the incentive in so far as the additional higher qualification of M.A., M.Ed. Under the impugned order, the applicant is asked to pay back the incentive which was given in the P.G. Assistant cadre for the additional course passed by him. The only contention is that the P.G. post is the separate post, in which, he has come as a new entrant as a direct recruitment and since, his pay parity was not fixed in the earlier post which was also resigned by him. Now, the present incentive which was given, is proper and correct. Hence, the applicant challenges the recovery of the incentive granted in the P.G. Assistant post. 3. The learned Government Advocate submits in his counter that originally the applicant was given an incentive increment, when he was working as a B.T. Assistant. Subsequently, even though he resigned the earlier post and was directly recruited as P.G. Assistant inasmuch as the increment has been given in another capacity, the same cannot be again given in this capacity, even though, this P.G. Assistant post is a direct recruitment. Therefore, he says by mistake the incentive was granted and hence, he has prayed for refund of total sum of Rs.10,180/- for which, the impugned order has been passed. He would also contend that at the time of resigning the earlier post, the applicant has also undertaken to pay the excess amount, if any to be paid. Therefore, he was bound to pay the recovery amount. 4. Heard both sides. 5. The only point raised whether the petitioner is entitled to get incentive is accepted by both parties. However, it is contended that earlier post namely the B.T. Assistant was a separate one and the present P.G. Assistant was a direct recruitment post and the petitioner was selected through the Teachers Recruitment Board. It is also admitted that the petitioner resigned from the earlier post https://hcservices.ecourts.gov.in/hcservices/ and he has lost all his seniority in the earlier post as B.T. Assistant. Only thereafter, he undertook as P.G. Assistant as per the direct recruitment. Therefore, the petitioner cannot be denied the right to have the incentive for having higher educational qualification M.A., M.Ed. Merely because, originally he was granted incentive at the time of working as B.T. Assistant that will not deprive him, as accepted by the Government, his pay parity was not fixed in the new post and his seniority totally deprived as he was treated as fresh new selection in the cadre of P.G. Assistant. He proved only as per the Government Order that he would be entitled for the incentive for having higher qualification. Even, the recovery was sought for Rs.10,180/- is meagre, after the long lapse of more than 14 years. Furthermore, it is also pointed out that the petitioner was made to accept for the recovery, for the respondent to accept the resignation. Therefore, it is also not binding and in any view of the matter as per G.O.Ms.No. 1024 dated 09.12.1993 empowers the government to give them four increments According to this, in the entire service, the petitioner got only two sets of increments one for M.A. degree and one for M.Ed. Therefore, there is nothing wrong in granting of incentive. Even from, the amount of Rs.10,180/- of which, the respondent has already recovered a small portion. The petitioner was enjoying the stay throughout and it is more than 14 years have lapsed. Further, even before the recovery order, no notice is issued. There can not be any recovery without notice also. Before recovery at least a notice would be issued which is not done is against the Principles of Natural Justice. Hence, the impugned notice is invalid as per the Decision in the Division Bench Judgment reported in 2008(1) MLJ 358 (R.Premkumari V. State of Tamil Nadu, rep. by its Secretary to Government, Education Department, Chennai and others). 6. With the above observations, writ petition is allowed and the impugned order passed by the second respondent is set aside and consequently, the connected application is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kj https://hcservices.ecourts.gov.in/hcservices/ To 1.Director of School Education Chennai-6. 2.Headmaster N.V.C. Government Higher Secondary School Radhapuram-627 111. Tirunelveli District. RV(CO) km/20.5. W. P. No. 38555 of 2006 in O.A. NO. 6052 of 1999 https://hcservices.ecourts.gov.in/hcservices/