1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.06.2011 CORAM: THE HONOURABLE MS.JUSTICE K.SUGUNA AND THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY W.A.(MD).No.554 of 2011 and M.P.No.1 of 2011 1.The Director of School Education, Chennai 6. 2.The Chief Educational Officer, Tirunelveli 627 009. 3.The Headmaster, Municipal Corporation Girls Higher Secondary School, Kallanai, Tirunelveli Town, Tirunelveli District 627 006. : Appellants/Respondents Vs. S.Thankaraja : Respondent/Petitioner PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 07.12.2010 made in W.P.(MD).No.14253 of 2010 on the file of this Court. WP(MD)No.14253 of 2010 Prayer : Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorarified Mandamus to call for the records on the file of the first respondent in his proceeding Na.Ka.No.116806/V1/E3/2009 dated 25.01.2010 and quash the same as illegal and consequently direct the respondents 1 to 3 to pay the incentive increments (totally 2 incentives and 4 increments) to the petitioner's higher qualification (B.Ed., and M.Com., Degree) from 01.04.1990 as on date with an interest at the rate of 18% per annum within the time frame stipulated by this Hon'ble Court. For Appellant : Mr.K.Mahendran Special Government Pleader For Respondents : Mr.P.Pethu Rajesh JUDGMENT [Judgment of the Court was delivered BY K.SUGUNA, J] This Writ Appeal is filed as against the order dated 07.12.2010 made in W.P.(MD).No.14253 of 2010. 2. The said Writ Petition was filed challenging the order dated 25.01.2010 passed by the first appellant herein, whereby the request https://hcservices.ecourts.gov.in/hcservices/ 2 of the respondent/Writ Petitioner for the grant of incentive increment in respect of the higher qualification of B.Ed and M.Com Degrees acquired by him was rejected. However, by order dated 07.12.2010, the said Writ Petition was allowed by the learned Single Judge. As against the said order, the present Writ Appeal is filed. 3. According to the learned Special Government Pleader for the appellants, as far as the respondent/Writ Petitioner is concerned, he was working as a Vocational Instructor and had acquired the higher qualification of B.Ed and M.Com Degrees. According to the learned Special Government Pleader, the Government has issued G.O.Ms.No.240, School Education (VE), Department, dated 18.08.2010 and from the date of the issue of the said Government Order, the Vocational Instructors are eligible for the grant of incentive increment for the higher qualification acquired by them. But, as per the direction of the learned Single Judge, the incentive increment was directed to be paid to the respondent/Writ Petitioner from the next day of the said higher qualification. Based on the above, the learned Special Government Pleader has prayed for allowing of the Writ Appeal. 4. On the other hand, it is the stand of the learned counsel for the respondent/Writ Petitioner that as far as the Vocational Instructors are concerned, as per G.O.Ms.No.42, Education, dated 10.01.1969, though there is no mention about the Vocational Instructors in the said Government Order, under the caption as "Specialist Teachers", they are eligible to get the incentive increment. Basing on this, according to the learned counsel for the respondent/Writ Petitioner, orders were passed in W.P.No.5787 of 2007 and batch, dated 18.12.2008, in favour of the Vocational Instructors, and therefore, the respondent/Writ Petitioner alone cannot be subjected to a different treatment. 5. The other stand taken by the learned counsel for the respondent/Writ Petitioner is that the Government had issued G.O.Ms.No.240, School Education (VE), Department, dated 18.08.2010 and prior to the issue of the said Government Order, the respondent had retired from service, consequently, the respondent/Writ Petitioner cannot enjoy the benefit of G.O.Ms.No.240 School Education (VE), Department, dated 18.08.2010, and therefore, he should be given the benefit of G.O.Ms.No.42, Education, dated 10.01.1969 and on the basis of the said Government Order, incentive increment should be sanctioned to the respondent/Writ Petitioner. Based on the above, the learned counsel for the respondent/Writ Petitioner has prayed for dismissal of the Writ Appeal. 6. We have considered the above submissions made by the respective learned counsel. 7. There is no dispute that the respondent/Writ Petitioner was working as Vocational Instructor and also there is no dispute that the respondent/Writ Petitioner had acquired the higher qualification of B.Ed and M.Com Degrees. It is also not in dispute that in https://hcservices.ecourts.gov.in/hcservices/ 3 G.O.Ms.No.42, Education, dated 10.01.1969, as far as Vocational Instructors are concerned, there is no whisper with regard to the payment of incentive increment for the higher qualification acquired by them. But, it is the stand of the learned counsel for the respondent/Writ Petitioner that the respondent/Writ Petitioner should be considered as a Specialist Teacher and the benefit of G.O.Ms.No.42, Education, dated 10.01.1969, has to be extended to him. 8. As far as the said submission is concerned, the Specialist Teachers are Music Teachers, Drawing Teachers, Weaving Instructors Sewing Teachers, Agricultural Teachers, etc. As far as the Vocational Instructors are concerned, they are totally a different category and they are treated as a separate category in the Service Rules, and therefore, they cannot be treated as Specialist Teachers and no rule is brought to the notice of this Court with regard to the stand taken by the learned counsel for the respondent/Writ Petitioner that the Vocational Instructors should be treated as Specialist Teachers. 9. Under such circumstances, we are of the considered view that G.O.Ms.No.42, Education, dated 10.01.1969, will not have an application and consequence of this alone, the Government has issued G.O.Ms.No.240 School Education (VE), Department, dated 18.08.2010, wherein the benefit of incentive increment is extended to the Vocational Instructors. But, here is an unfortunate case, where the respondent/Writ Petitioner had retired from service prior to the issue of the said Government Order. Basing on this, the Court cannot say that the benefit of a particular Government Order, which is not applicable to the respondent/Writ Petitioner, should be extended to the respondent/Writ Petitioner. 10. When the said Government Order has been issued with reference to the issue in question, ignoring the same, basing on the Government Order, which is not applicable to the category of Vocational Instructors, no benefit can be extended to any employee. The said Writ Petition was allowed on the ground that the order passed in W.P.No.5787 of 2007, dated 18.12.2008 is applicable to the Vocational Instructors. But, unfortunately, a perusal of the said G.O.Ms.No.42, Education, dated 10.01.1969 reveals that the same is not applicable to the Vocational Instructors. Consequently, we are not in agreement with the order passed by the learned Single Judge. 11. According to the learned counsel for the respondent/Writ Petitioner, since the departmental authorities have passed orders in favour of the Vocational Instructors prior to the issue of G.O.Ms.No.42, Education, dated 10.01.1969, the respondent/Writ Petitioner may be permitted to approach the Government for extension of the benefit of the said Government Order issued in G.O.Ms.No.42, Education, dated 10.01.1969. As far as the said submission is concerned, the respondent/Writ Petitioner is at liberty to approach the appropriate authorities and if the authorities concerned are willing to extend any benefit, exercising the power of relaxation, it is for them to decide the same. https://hcservices.ecourts.gov.in/hcservices/ 4 In the result, the order dated 07.12.2010 passed in W.P.(MD).No.14253 of 2010 is set aside and the Writ Appeal is allowed. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (AE) /True Copy/ Sub Assistant Registrar To 1.The Director of School Education, Chennai 6. 2.The Chief Educational Officer, Tirunelveli 627 009. 3.The Headmaster, Municipal Corporation Girls Higher Secondary School, Kallanai, Tirunelveli Town, Tirunelveli District – 627 006. +1cc to Mr.P.Pethu Rajesh, Advocate SR.No.20386 +1cc to The Special Government Pleader SR.No.20054 NB akm/12.07.11 /4p-6c/ JUDGMENT MADE IN W.A.(MD).No.554 of 2011 24.06.2011 https://hcservices.ecourts.gov.in/hcservices/