10.03.2020-ற்கு முன்னர் உயர்கல்வி பயின்றவர்கள் பழைய முறைப்படி ஊக்க ஊதியம் - Judgment Copy

Those who completed higher education before 10.03.2020 will be given incentive pay as per the old system - Judgment Copy 10.03.2020-ற்கு முன்னர் உயர்கல்வி பயின்றவர்கள் பழைய முறைப்படி ஊக்க ஊதியம் - Judgment Copy

மதுரை உயர்நீதிமன்றத்தில் மாண்புமிகு நீதியரசர். திருமதி விக்டோரியா கௌரி அவர்களால் வழங்கப்பட்ட 70 பக்க விரிவான அதிரடி தீர்ப்பின் படி அரசாணை 95 செல்லாது ... 10.03.2020-ற்கு முன்னர் உயர்கல்வி பயின்றவர்கள் பழைய முறைப்படி ஊக்க ஊதியம் வழங்கப்பட வேண்டும் என பள்ளிக்கல்வித்துறை செயலாளர் அவர்களுக்கு உத்தரவு.

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PRAYER :

Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned G.O.(Ms).No.95, Human Resources Management (FR-IV) Department, dated 26.10.2023, issued by the first respondent Chief Secretary to Government, quash the same, in so far as it restricts the petitioners herein from the grant and payment of incentive increments for acquiring their respective additional higher educational qualifications viz., M.Phil., degree and further direct the respondents herein to sanction and award forthwith the incentive increment (2 advance increments) to the petitioners herein for acquiring their respective additional higher educational qualification viz., M.Phil., degree in terms of the G.O.(Ms)Nos.37 and 116, Personnel and Administrative Reforms (FR-IV) Department, dated 10.03.2020 and COMMON ORDER

Prelude:-

Education appears to be the most consistent, robust and durable method for augmenting intelligence. Humans with greater propensity for intelligence go on to complete more education. Higher education is one of the vital factors of growth, performance and competitiveness in the national and international level. Intelligence quotient is a measurement of an individual's intellect and potential to understand their job performance matrix. Education is the foundation, from which the intelligence quotient of every individual stems up towards molding himself into a perfect, skilled, efficient manpower. Here is a case where the Government had consistently taken policy decisions as to the grant of cash awards/incentive increments to the employees of various Departments from time to time, for acquiring higher educational qualification while in service. Commencing from the Government Order in G.O.Ms.No.531, Finance Department, dated 25.04.1963, by the W.P.(MD)Nos.27556 of 2023, etc Government of Madras, by which one advance increment for passing the prescribed departmental Account Test came to be ordered by way of a scheme of rewards, till the latest impugned Government Orders in G.O.Ms.No.37, Personnel and Administrative Reforms (FR-IV) Department, dated 10.03.2020 and G.O.Ms.No.95, Human Resource Management (FR-IV) Department, dated 26.10.2023, by which the grant of incentive increment has been dispensed with effect from 10.03.2020 and allowing grant of lump sum amount for acquiring additional education qualification, the tale of grant of cash awards/incentive increments to the employees of the various Departments of the Government of Tamil Nadu has a chequered history.

2.Gist of the case:-

2.1.The petitioners are working as Secondary Grade Teachers, BT Assistants, Primary School Headmasters, Middle School Headmasters in the Government Schools (Panchayat Union, Primary and Panchayat Union Middle Schools) coming under the third respondent School Education Department. They have completed their higher qualifications, such as B.Ed and other post graduation degrees and they were not granted with the incentive increments. Originally, the State of Tamil Nadu, issued the Government Order in G.O.Ms.No.42, Education Department, dated 10.01.1969, by which a decision was taken to grant incentive increment to the Teachers for acquiring higher qualifications. W.P.(MD)Nos.27556 of 2023, etc Thereafter, it was clarified by the Government vide G.O.Ms.No.1023, Education, Science and Technology Department, dated 09.12.1993, that the School Teachers are entitled for maximum of two sets of incentive increments for acquiring higher qualification. Hence, in view of those Government Orders, the petitioners are entitled for grant of two sets of incentive increments. But pointing out Clause No.6(VI) of the impugned Government Order in G.O.Ms.No.37, dated 10.03.2020, the request of the petitioners seeking grant of incentive increment for acquiring higher qualification was kept under cold storage stating that necessary permission is awaited from the first respondent. Though the first respondent has issued a clarification vide G.O.Ms.No.116, dated 15.10.2020, to the Government Order in G.O.Ms.No.37, dated 10.03.2020, stating that whoever have completed higher qualification before 10.03.2020, are entitled for incentive increment, the third respondent has not granted the incentive increment to the petitioners. That apart, to the shock and surprise of the petitioners, the first respondent further issued a consequential impugned Government Order in G.O.Ms.No.95, dated 26.10.2023, in which it has been decided to grant one lump sum amount to all those employees whose incentive increment request is pending consideration in uniformity with the employees who acquire higher qualification on or after 10.03.2020. W.P.(MD)Nos.27556 of 2023, etc 2.2.Claiming the said decision as highly arbitrary, unjust and unlawful and that the first respondent taking undue advantage of its own wrong is trying to penalize the employees for no fault of them, these Writ Petitions came to be filed, challenging Clause 6(vi) in G.O.Ms.No.37, Personnel and Administrative Reforms (FR-IV) Department, dated 10.03.2020 and the consequential Government Order in G.O.Ms.No.95, Human Resources Management (FR-IV) Department, dated 26.10.2023.

3.Submissions:-

3.1.The learned counsel Mr.Ashwin Rajasimman appearing for the petitioners submitted that, the first respondent has taken away the accrued/vested right of the petitioners by changing the norm of grant of incentive increment retrospectively, violating Articles 14 and 16 of the Constitution of India. Contending that, as per the G.O.Ms.No.42, Education Department, dated 10.01.1969, G.O.Ms.No.1023, Education, Science and Technology Department, dated 09.12.1993 and clarification issued in G.O.Ms.No.116, dated 15.10.2020, the petitioners are entitled for incentive increment for acquiring B.ed., and PG degrees, he further reiterated that, the incentive increment cannot be retrospectively modified as one time lump sum and the same is discriminatory in nature. He categorically contended that, the Hon'ble Apex Court has time and again reiterated the proposition of law that accrued right/vested right of an employee cannot be taken away retrospectively. Pointing out the case W.P.(MD)Nos.27556 of 2023, etc dealt with by the Hon'ble Apex Court in the case of Punjab State Cooperative Agricultural Development Bank Limited versus the Registrar, Cooperative Societies and Others reported in 2022 Live Law Supreme Court 42, he submitted that the retrospective operation, which has the effect of taking away the benefits already available to the employees under the existing rule would certainly divest the employee from his vested or accrued rights and hence, it would be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.

3.2.He further submitted that, the first respondent without considering that when similarly placed employees were granted the benefit of incentive increment for acquiring higher education, it is not just and equitable in refusing to extend the benefit to all similarly placed employees including the petitioners. He further insisted that, such denial would result in discrimination in scale of pay in the post of Teacher, such as Secondary Grade Teacher, BT assistant, etc. Further he submitted that, the petitioners have completed their higher qualification well before the issuance of G.O.Ms.No.37, dated 10.03.2020 and the new policy of cancelling the grant of incentive increment, which was introduced in the year 2020 vide G.O.Ms.No.37, dated 10.03.2020, cannot be retrospectively applied to the case of the petitioners. Further he concluded that, if the consequential impugned order in G.O.Ms.No.95, dated 26.10.2023, granting one time lump sum amount can be applied W.P.(MD)Nos.27556 of 2023, etc only to those employees, who have acquired higher qualification after the issuance of G.O.Ms.No.37, dated 10.03.2020 and if the same yardstick is applied to the petitioners who have acquired the higher qualification much earlier to 10.03.2020, the same is nothing but taking away the vested right of the petitioners retrospectively and on that basis, pressed for quashing of the impugned government orders as required by them.

3.3.The learned Senior Counsel Mr.Ajmal Khan appearing for the petitioners submitted that, the petitioners are not standing in the way of the policy decision taken by the Government cancelling the advance increment. However, the only plight of the petitioners is that the rights available to them before the policy decision taken by the Government for cancelling the scheme should not be done away by the Government. So far as the cancelling of the scheme of payment of advance increment under G.O.Ms.No.37, dated 10.03.2020, the Government servants, who have obtained a higher qualification prior to the issuance of the aforesaid order, the said right has been recognized and the right can be considered only in reference to the previous orders issued by the Government and not in the reference to the G.O.Ms.No.37, dated 10.03.2020, by which the scheme of advance increment has been brought to a halt.

3.4.Reiterating that, it is needless to state that the school Teachers who acquired higher qualification prior to the issuance of G.O.Ms.No.37, W.P.(MD)Nos.27556 of 2023, etc were awarded with advance increment is not in dispute. He categorically contended that, the right to obtain advance increment in view of their higher qualification can be considered only with reference to the orders issued by the Government prior to 10.03.2020, that is, precisely prior to the issuance of G.O.Ms.No.37, on 10.03.2020. The right of the petitioners, who have acquired higher qualification prior to 10.03.2020, for receipt of incentive increment has been further confirmed by the Government by issuance of a clarification in G.O.Ms.No.116, on 15.10.2020. Pointing out the fact that Clause 6(vi) of G.O.Ms.No.37, is further clarified by issuance of G.O.Ms.No.116, he insisted that the issuance of G.O.Ms.No.95, is an initiative by the Government to do away with the protection given to the employees by the G.O.Ms.No.37 and G.O.Ms.No.116 respectively. He further submitted that, the stand of the Government in G.O.Ms.No.37 and G.O.Ms.No.116, has been derailed by the Government by the issuance of G.O.Ms.No.95 to the effect that, even those who attained higher qualification prior to 10.03.2020 and submitted application are covered by the new scheme and that they are entitled only to lump sum payment. This exercise goes against the earlier Government Orders.

3.5.He further insisted that, once the policy decision is taken by the Government issuing a Government Order, it is obviously nothing but an executive instruction that will take into effect only prospectively and W.P.(MD)Nos.27556 of 2023, etc will not have any retrospective effect. That's why when G.O.Ms.No.37 was issued, the petitioners had no grievance since the same came to be applicable prospectively cancelling the advance incentive scheme, but the Government cannot deprive the right, which was already accrued on the petitioners as under the earlier Government Orders, by which they were entitled to advance increment. The right accrued on the petitioners cannot be taken away by using executive instructions. Reiterating that an executive instruction can be issued only with prospective effect and not with retrospective effect, the learned Senior Counsel contended that the impugned G.O., need to be interfered for having taken away the accrued rights of the petitioners, which had accrued on them under the earlier G.O.s, which were issued prior to the issuance of G.O.Ms.No.95.

3.6.Per contra, the learned Advocate General Mr.Raman appearing on behalf of the respondents drew my attention to the order passed by this Court in a similar case in W.P.Nos.1605 of 2024, etc, batches, in which this Hon'ble Court, by its order dated 29.01.2024, has refused to interfere with the impugned G.O.Ms.No.95, dated 26.10.2023. He categorically contended that, it is a settled proposition of law that a policy decision by a competent authority would not come within the purview of judicial review. Pointing out that the Courts should resist itself from embarking upon a venture over decision reached on consideration of relevant materials, he further insisted that the policy W.P.(MD)Nos.27556 of 2023, etc decision can be challenged only on the ground of illegality as being contrary to law or any Constitutional Provision. However, in this case, no such grounds are made out for judicial review and on that basis, pressed for dismissal of Writ Petitions.

3.7.The learned counsel for the petitioner in W.P.(MD)No.1907 of 2024, Mr.Panneer Selvam submitted that, the history of grant of incentive increment could very well be traced to as early as from 25.04.1963, when the Government had issued a Government Order in G.O.Ms.No.531. It was only by the said Government Order, the scheme of cash rewards came to be introduced by permitting one advance increment for passing the prescribed account test to the non-gazetted government servants in the Ministerial Service with effect from 01.04.1963. Thereafter, the Government periodically continued issuing orders through the Personnel and Administrative Reforms Department, extending the said benefit to the administrative wing as well. However, the said Government Order was not applicable to Teachers. It was only on 10.01.1969, the Government introduced the scheme of incentive increment to the Teachers with a broad vision to motivate the Teachers to acquire higher academic qualification and accordingly, introduced a separate scheme by issuing G.O.Ms.No.42, Education Department and giving effect to the said scheme with effect from 01.07.1968. Subsequently, the Government issued yet another order in G.O.Ms.No. W.P.(MD)Nos.27556 of 2023, etc 1032, Education Department, dated 22.06.1971, by way of clarification to the erstwhile G.O.Ms.No.42, dated 10.01.1969. Further, yet another Government Order in G.O.Ms.No.107, Education Department, dated 20.01.1976, came to be issued for permitting incentive increment to Teachers acquiring higher qualification related to Tamil Pandits. During 1993, two Government Orders in G.O.Ms.Nos.1023 and 1024, Education, Science and Technology Department, came to be issued with respect to admissibility of number of incentive increment to the Teachers. The Government Orders pertaining to incentive increments to Teachers were specifically and separately issued by the Education Department from time to time and all the other orders relating to incentive increment issued by the Government are not applicable to the Teachers, particularly the same are applicable to the ministerial staffs and officials serving in the other departments other than the Education Department.

3.8.Accordingly, the orders in the impugned G.O.Ms.No.37, Personnel and Administrative Reforms Department, dated 10.03.2020, G.O.Ms.No.116, Personnel and Administrative Reforms Department, dated 15.10.2020 and G.O.Ms.No.120, Human Resource Management Department, dated 11.11.2021 and G.O.Ms.No.95, Human Resource Management Department, dated 26.10.2023, are not at all applicable to the Teachers. The scheme of incentive increment, which was implemented by the Government of Tamil Nadu, particularly in the W.P.(MD)Nos.27556 of 2023, etc Education Department, by giving effect to the same from 1st July 1968 to the Teachers is impressible. Therefore, he contended that G.O.Ms.No. 116, Personnel and Administrative Reforms Department, dated 15.10.2020, insofar as para no.4 serial Nos.4 and 5 are arbitrary and the same are liable to be set aside, for the reason that the same has extended the effect of the impugned Government Order in G.O.Ms.No.37, Personnel and Administrative Reforms Department, dated 10.03.2020, to the Education Department as well. He further contended that, the Government has issued yet another impugned Government Order in G.O.Ms.No.95, Human Resource Management Department, dated 26.10.2023, granting lump sum amount by cancelling the scheme of incentive increment. The Government passed an order by fixing the cut off date as 10.03.2020, to sanction the incentive increment for those who have acquired the qualification prior to 10.03.2020. Now, that was also cancelled without any reason and logic.

3.9.Under such circumstances, the cut-off date itself is nothing but an arbitrary exercise and the same has been fixed without any logic. By fixing this cut-off date, the Government is trying to pick and choose among the applicants seeking incentive increment. Therefore, by fixing cut-off date, the Government has arbitrarily taken away the acquired rights of the petitioners and the same is liable to be set aside. W.P.(MD)Nos.27556 of 2023, etc 3.10.Heard the learned counsels for the petitioners, the learned Advocate General for the respondents and anxiously perused the materials available on record.

4.Analysis:-

4.1.The learned Advocate General has brought to the notice of this Court that, a Coordinate Bench of this Court in W.P.Nos.1605 of 2024, etc, batch cases dated 29.01.2024, has tested the validity of G.O.Ms.No. 95, Human Resources Management (FR-IV) Department, dated 26.10.2023 and has upheld the same. However, there is a difference with respect to the Writ Petitions dealt with by me, in these cases, since in a batch of cases, apart from G.O.Ms.No.95, dated 26.10.2023, Clause 6(vi) of G.O.Ms.No.37, Personnel and Administrative Reforms (FR-IV) Department, dated 10.03.2022, has also been challenged. G.O.Ms.No. 37, dated 10.03.2020, dispensed with the scheme of sanction of advance increments to the employees in all the Departments. However, G.O.Ms.No.116, dated 15.10.2020, is a clarification order, clarifying the erstwhile G.O.Ms.No.37, dated 10.03.2020. Subsequent to the same, yet another Government Order in G.O.Ms.No.120, Human Resource Management (FR-IV) Department, dated 11.11.2021, came to be issued providing guidelines for the implementation of G.O.Ms.No.37. Consequently, G.O.Ms.No.95, dated 26.10.2023, came to be issued by providing W.P.(MD)Nos.27556 of 2023, etc guidelines with respect to grant of lump sum amount for acquiring additional education qualification instead of grant of incentive increment. Since G.O.Ms.Nos.116, 120 and 95 are consequential orders, which came to be issued by the Government one after the other, only to give effect to G.O.Ms.No.37, dated 10.03.2020, I am of the considered view that it is necessary to deal with the lis in hand exclusively by conjointly considering the cause, effect and implications of the aforesaid Government Orders relating to the accrued rights/vested rights, if any, with respect to the petitioners who are all Teachers in various levels.

4.2.As pointed out by the learned counsel appearing for the petitioner, Mr.Paneer Selvam, the Government had introduced the scheme of cash rewards as early as in the year 1963, by grant of one advance increment for the employees possessing/acquiring higher educational qualification. However, the Government Orders pertaining to the Department of Education were exclusively issued by the Education Department with effect from 01.07.1968 as early as by the Government Order in G.O.Ms.No.42, dated 10.01.1969.

4.3.For the sake of convenience, the various Government Orders issued for the various Departments as well as the Department of Education for grant of incentive increment for higher educational

W.P.(MD)Nos.27556 of 2023, etc

qualification, are tabulated here under separately:-

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