IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.04.2010 CORAM: THE HON'BLE MR.JUSTICE B.RAJENDRAN W.P.No. 37994 of 2006 V.Sivasankaran ... Petitioner Versus 1. Chief Educational Office, Udhagamandalam 2. Regional Accounts Officer Education Department Coimbatore 3. Headmaster, Government Higher Secondary School Yedakkadu – 643 282 Nilgiris 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.10724 of 1998 from the file of Tamil Nadu Administrative Tribunal with a prayer to set aside the order passed by the 3rd respondent in Na.Ka.No.210/98 dated 08.10.1998 in so far as it directs to pay the differential amount sanctioned for incentive increment for M.Ed. Qualification to the petitioner. For Petitioner : Mr.S.Mani For Respondents : Mrs.Lita Srinivasan Government Advocate ORDER The Original Application has been filed by the petitioner seeking to call for the records pertaining to the order passed by the 1st respondent in his proceedings Mu.Mu.No.132852/K2/98 dated 09.12.1998 and set aside the same in so far as it cancels incentive increment for M.Ed. and M.Phil. On abolition of the Tamil Nadu Administrative Tribunal, the Original Application stood transferred to this Court and renumbered as W.P.No.37994 of 2006. 2. The petitioner would contend that he joined as Secondary Grade Teacher on 01.06.1962 and thereafter he was appointed as Grade I Tamil Pandit on 10.10.1974. While he was working as Grade I Tamil Pandit, he did M.A. in 1979 for which one set of incentive increment was sanctioned. The petitioner also acquired B.Ed. qualification in the year 1981 for which also one set of incentive increment was sanctioned. Later on, he was promoted to the post of P.G. Assistant https://hcservices.ecourts.gov.in/hcservices/ in the year 1992. While so, the petitioner acquired M.Ed., Degree for which also he was sanctioned one set of incentive increment in the year 1992. On 31.05.1997, the petitioner retired from service. After his retirement, by an order dated 08.10.1998, based on an alleged audit objection, without any notice, the incentive increment sanctined to the petitioner for having acquired M.Ed., qualification was cancelled by the respondents and recovery was ordered. Aggrieved by the same, the petitioner has filed the present Original Application before the Tribunal on the ground that before passing the order of recovery, no notice was issued. Further, for passing the order of recovery, the second respondent relied on G.O. Ms. No.1023, Education Department dated 09.12.1993 which has no application to the petitoner's case inasmuch as he was working as a P.G. Assistant and he is governed by the separate Government Order in G.O. Ms. No.747, Finance dated 18.08.1986 under which P.G. Assistants are entitled for incentive increment for M.Ed., 3. The respondents have filed a reply affidavit in which they would categorically say that the petitioner received 3rd and 4th incentive increments for having acquired higher qualification. While he was working as P.G. Assistant, he acquired M.Ed., Degree and got 5th and 6th incentive increments. There is no Government Order to sanction 5th and 6th incentive increments to a teacher, therefore, the Accounts Officer (Audit), the second respondent herein raised objections for the same. Based on such objection, the third respondent has rightly passed the order of recovery to recover the 5th and 6th incentive increments granted to the petitioner. Aggrieved by the same, the petitioner has filed O.A. No. 10724 of 1998. The Government has introduced the scheme of sanction of advance increments for acquisition of higher qualification by a government servant. As per G.O. Ms. No.42, Education dated 10.01.1969, a secondary grade teacher is eligible for two advance increments when he acquire B.T., or B.Ed, qualification. The teacher is entitled to two more advance increments for M.A., or M.Ed., qualification. As far as B.T. Teachers are concerned, they are eligible for two advance increments for passing M.A., or M.Sc., and two advance increments for passing M.Ed., examinations. In other words, a teacher is eligible for four advance increments in their entire length of service. The Order passed by the Government in Government letter No.590, Education dated 29.03.1976 was challenged before this Court in WP No. 5191 of 1986 and based on the directions passed by this Court, G.O. Ms. No. 1023, Education dated 09.12.1993 was issued to give concession to certain individual cases only and this order cannot be made applicable to the petitioner. In any view of the matter, the impugned order has been passed in accordance with law and therefore interference of this Court is not warranted. 4. Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents. 5. The short point for consideration is whether the recovery order passed by the Government after cancelling the increment given to the petitioner is valid or not? https://hcservices.ecourts.gov.in/hcservices/ 6 The learned counsel appearing for the petitioner would rely upon the decision of the Division Bench of this Court reported in W.A.No.2307 of 1999 dated 25.02.2004 under which in similar circumstances, the Tamil Pandits were given even 5th and 6th increments. The relevant paras 5 and 6 of the judgment of the Division Bench of this Court are extracted hereunder: "5. A reading of the above Government Order shows that the B.T. Assistants were made entitled to two advance increments for their subsequent qualification in M.Ed., Degree even after four advance increments paid earlier. Whatever payments made to the Teachers prior to the said order viz., 14.10.1993 were validated. In that view of the matter, two incentive increments paid during the year 1986 to the petitioner also should be held as approved by the Government in terms of G.O.Ms.No.1023 Education, Science and Technology dated 09.12.1993. It is also relevant to note that the said order was passed after duly taking note of the order of this Court made in W.P.No.5191 of 1980 dated 21.10.1986. In the said Writ Petition, similar question came up for consideration as to the entitlement of P.G. Teacher for 3rd set of two advance increments. This Court had held as follows: "There is no dispute that G.O.Ms.No.42 Education Department, dated 10.01.1969 apparently governs the question of award of two incentive increments for the petitioner acquiring M.Ed., Degree from 1976. But what is put against the petitioner is letter Ms.No.500, dated 20.08.1977 6 where a limitation is prescribed that there could be only four advance increments for acquiring higher qualification. Certainly this letter cannot over ride the Government Order referred to above. Practically the impugned order refers to and relies upon this letter alone and that is not permissible. Accordingly, the writ petition is allowed. No costs." 6. Similarly after the said G.O. dated 09.12.1993, similar question came up for consideration before this Court in W.P.No.20437 of 1993. This Court by order dated 02.03.1994 has upheld the payment of 3rd set of two advance increments to the P.G.Assistants. Likewise, entitlement of P.G. Teachers for 3rd set of two advance increments also came up for consideration https://hcservices.ecourts.gov.in/hcservices/ before this Court in W.P.No.8078 of 1994 and this Court by order dated 01.02.1995 has upheld the said order. For the above reasons, we find that the appellant is entitled to the benefit of G.O.Ms.No.747 Finance Department, dated 18.08.1986 together with G.O.Ms.No.1023 Education, Science and Technology Department dated 09.12.1993. Hence, we see no merit in the order of the 2nd respondent dated 29.11.1989 in withdrawing the 3rd set of two advance increments given to the petitioner. Accordingly, the Writ Appeal is allowed and the impugned proceedings dated 29.11.1989 and the order of the learned single Judge are set aside. No costs." 7. As per the said decision, even as per the G.O.Ms.No.1024, under Clause 3 (2) (a), the maximum number of advance increments, which a teacher can get under the scheme of incentive increments, shall be four in his entire service. In this case, the petitioner has been given four increments. It was also brought to the notice of this Court that the reliance placed by the respondents to G.O.Ms.No.107 dated 21.01.1976 is untenable since the said Government Order was struck down by this Court. Though, it is stated that a review petition was filed, no further orders has been produced. In any view of the matter, the issue involved in this writ petition is squarely covered by the Division Bench Judgment of this court in W.A.No.2307 of 1999. 8. As far as the question of recovery is concerned, there is a mandatory requirement to issue a notice before passing the impugned order, but a reading of the impugned order would make it clear that the same was straightly away passed without issuing a notice to the petitioner in contravention to the compliance with the principles of natural justice. Therefore, the impugned order is passed in violation of the principles of natural justice. Moreover, now the petitioner retired from service and hence, at this stage, the question of recovery also does not arise. 9. Under those circumstances, the writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ogy/rsh https://hcservices.ecourts.gov.in/hcservices/ To 1. The Chief Educational Officer, Udhagamandalam. 2.The Regional Accounts Officer, Education Department, Coimbatore 3.The Head Master, Govt.Hr.Sc.School Yedakkadu -643 282. 1 cc To The Government Pleader, SR.28550. W.P.No.37994 of 2006 kv(co) pmk.2.11.2010 https://hcservices.ecourts.gov.in/hcservices/