S.Thankaraja v. The Director of School Education, Chennai

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 24.06.2011CORAM:THE HONOURABLE MS.JUSTICE K.SUGUNAANDTHE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMYW.A.(MD).No.554 of 2011and M.P.No.1 of 20111.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/RespondentsVs.S.Thankaraja : Respondent/PetitionerPRAYER: Writ Appeal is filed under Clause 15 of the Letters Patentagainst the Order dated 07.12.2010 made in W.P.(MD).No.14253 of 2010on the file of this Court. WP(MD)No.14253 of 2010 Prayer : Writ Petition is filed under Article226 of the Constitution of India for the issue of a Writ ofCertiorarified Mandamus to call for the records on the file of thefirst respondent in his proceeding Na.Ka.No.116806/V1/E3/2009 dated25.01.2010 and quash the same as illegal and consequently direct therespondents 1 to 3 to pay the incentive increments (totally 2incentives and 4 increments) to the petitioner's higher qualification(B.Ed., and M.Com., Degree) from 01.04.1990 as on date with aninterest at the rate of 18% per annum within the time framestipulated by this Hon'ble Court.For Appellant: Mr.K.Mahendran Special Government PleaderFor Respondents: Mr.P.Pethu RajeshJUDGMENT[Judgment of the Court was delivered BY K.SUGUNA, J]This Writ Appeal is filed as against the order dated 07.12.2010made in W.P.(MD).No.14253 of 2010.2. The said Writ Petition was filed challenging the order dated25.01.2010 passed by the first appellant herein, whereby the request https://hcservices.ecourts.gov.in/hcservices/ 2of the respondent/Writ Petitioner for the grant of incentiveincrement in respect of the higher qualification of B.Ed and M.ComDegrees acquired by him was rejected. However, by order dated07.12.2010, the said Writ Petition was allowed by the learned SingleJudge. As against the said order, the present Writ Appeal is filed.3. According to the learned Special Government Pleader for theappellants, as far as the respondent/Writ Petitioner is concerned, hewas working as a Vocational Instructor and had acquired the higherqualification of B.Ed and M.Com Degrees. According to the learnedSpecial Government Pleader, the Government has issued G.O.Ms.No.240,School Education (VE), Department, dated 18.08.2010 and from the dateof the issue of the said Government Order, the Vocational Instructorsare eligible for the grant of incentive increment for the higherqualification acquired by them. But, as per the direction of thelearned Single Judge, the incentive increment was directed to be paidto the respondent/Writ Petitioner from the next day of the saidhigher qualification. Based on the above, the learned SpecialGovernment Pleader has prayed for allowing of the Writ Appeal. 4. On the other hand, it is the stand of the learned counsel forthe respondent/Writ Petitioner that as far as the VocationalInstructors are concerned, as per G.O.Ms.No.42, Education, dated10.01.1969, though there is no mention about the VocationalInstructors in the said Government Order, under the caption as"Specialist Teachers", they are eligible to get the incentiveincrement. Basing on this, according to the learned counsel for therespondent/Writ Petitioner, orders were passed in W.P.No.5787 of 2007and batch, dated 18.12.2008, in favour of the Vocational Instructors,and therefore, the respondent/Writ Petitioner alone cannot besubjected to a different treatment. 5. The other stand taken by the learned counsel for therespondent/Writ Petitioner is that the Government had issuedG.O.Ms.No.240, School Education (VE), Department, dated 18.08.2010and prior to the issue of the said Government Order, the respondenthad retired from service, consequently, the respondent/WritPetitioner cannot enjoy the benefit of G.O.Ms.No.240 School Education(VE), Department, dated 18.08.2010, and therefore, he should be giventhe benefit of G.O.Ms.No.42, Education, dated 10.01.1969 and on thebasis of the said Government Order, incentive increment should besanctioned to the respondent/Writ Petitioner. Based on the above, thelearned counsel for the respondent/Writ Petitioner has prayed fordismissal of the Writ Appeal.6. We have considered the above submissions made by therespective learned counsel.7. There is no dispute that the respondent/Writ Petitioner wasworking as Vocational Instructor and also there is no dispute thatthe respondent/Writ Petitioner had acquired the higher qualificationof B.Ed and M.Com Degrees. It is also not in dispute that in https://hcservices.ecourts.gov.in/hcservices/ 3G.O.Ms.No.42, Education, dated 10.01.1969, as far as VocationalInstructors are concerned, there is no whisper with regard to thepayment of incentive increment for the higher qualification acquiredby them. But, it is the stand of the learned counsel for therespondent/Writ Petitioner that the respondent/Writ Petitioner shouldbe considered as a Specialist Teacher and the benefit ofG.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 SpecialistTeachers are Music Teachers, Drawing Teachers, Weaving InstructorsSewing Teachers, Agricultural Teachers, etc. As far as the VocationalInstructors are concerned, they are totally a different category andthey are treated as a separate category in the Service Rules, andtherefore, they cannot be treated as Specialist Teachers and no ruleis brought to the notice of this Court with regard to the stand takenby the learned counsel for the respondent/Writ Petitioner that theVocational Instructors should be treated as Specialist Teachers. 9. Under such circumstances, we are of the considered view thatG.O.Ms.No.42, Education, dated 10.01.1969, will not have anapplication and consequence of this alone, the Government has issuedG.O.Ms.No.240 School Education (VE), Department, dated 18.08.2010,wherein the benefit of incentive increment is extended to theVocational Instructors. But, here is an unfortunate case, where therespondent/Writ Petitioner had retired from service prior to theissue of the said Government Order. Basing on this, the Court cannotsay that the benefit of a particular Government Order, which is notapplicable to the respondent/Writ Petitioner, should be extended tothe respondent/Writ Petitioner. 10. When the said Government Order has been issued withreference to the issue in question, ignoring the same, basing on theGovernment Order, which is not applicable to the category ofVocational Instructors, no benefit can be extended to any employee.The said Writ Petition was allowed on the ground that the orderpassed in W.P.No.5787 of 2007, dated 18.12.2008 is applicable to theVocational Instructors. But, unfortunately, a perusal of the saidG.O.Ms.No.42, Education, dated 10.01.1969 reveals that the same isnot applicable to the Vocational Instructors. Consequently, we arenot in agreement with the order passed by the learned Single Judge. 11. According to the learned counsel for the respondent/WritPetitioner, since the departmental authorities have passed orders infavour of the Vocational Instructors prior to the issue ofG.O.Ms.No.42, Education, dated 10.01.1969, the respondent/WritPetitioner may be permitted to approach the Government for extensionof 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 isconcerned, the respondent/Writ Petitioner is at liberty to approachthe appropriate authorities and if the authorities concerned arewilling to extend any benefit, exercising the power of relaxation, itis for them to decide the same. https://hcservices.ecourts.gov.in/hcservices/ 4In the result, the order dated 07.12.2010 passed inW.P.(MD).No.14253 of 2010 is set aside and the Writ Appeal isallowed. No costs. Consequently, connected Miscellaneous Petition isclosed. Sd/-Assistant Registrar (AE)/True Copy/Sub Assistant Registrar To1.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.20054NBakm/12.07.11 /4p-6c/ JUDGMENT MADE INW.A.(MD).No.554 of 201124.06.2011