Judgment :- P.K. Misra, J. The present appellant was working as Post Graduate Assistant under the fourth respondent school with effect from 4.11.1996, after having obtained M.A. (English) in 1983, B.Ed., in 1987, M.Phil. in 1989, M.Ed., in 1991 and M.A. (Sociology) in the year 1995. Her basic pay had been fixed at Rs.1,820/- in the scale of pay of Rs.1820-60-2300-75-3200. Subsequently, such pay was fixed as per the revised scale of pay at Rs.5900/- in the scale of pay of Rs.5900-200-9900 and ultimately fixed in the scale of pay of Rs.6500-200-10500 in the year 1998. She was granted an incentive increment for having obtained M.Ed. qualification and another incentive increment for having obtained M.Phil qualification. While the matter stood thus, the Director of School Education issued order in Proceedings Na.Ka.No.147502/K2/2000 dated 18.10.2000 indicating that the teachers who are appointed between 1.1.1996 to 13.4.1998 were not eligible to incentive increments. Since recovery was sought to be made on the basis of such order passed by the Director, the appellant filed representation, which was turned down. Subsequently, she filed W.P.No.1260 of 2001, which was dismissed on 17.10.2006. In W.A.No.175 of 2007, against such decision, an order was passed on 20.2.2007 to the following effect:- "10. Under the above circumstances, we hereby direct the second respondent to give a notice to the appellant with reference to the recoveries to be made and justification for the same within a period of four weeks from the date of receipt of a copy of the order and personal hearing may be granted by the second respondent. After hearing the objections of the appellant, the second respondent is directed to pass a speaking order and communicate the same to the appellant. Till decision is taken, the respondents are restrained from making any recovery of any amount from the salary of the appellant." 1.1 Subsequently, however, the second respondent again passed an order on 15.5.2007 directing that the amount should be recovered. The petitioner preferred an appeal against such order. Since no order was passed, she filed W.P.No.5760 of 2007, which having been dismissed by the learned single Judge by judgment dated 24.9.2007, the present appeal has been filed. 2. Learned single Judge, while dismissing the writ petition, has observed as follows:- "4. The petitioner preferred an appeal against such order. Since no order was passed, she filed W.P.No.5760 of 2007, which having been dismissed by the learned single Judge by judgment dated 24.9.2007, the present appeal has been filed. 2. Learned single Judge, while dismissing the writ petition, has observed as follows:- "4. Incentive increments are granted only for persons acquiring higher qualifications while in service but not to a person, who possesses a higher qualification even before entering into service. In any event, the incentive increments are given before the new pay scales are revised in which the said increments are absorbed while granting fitment in the revised scale. That is the purport of G.O.Ms.No.162 Finance Department dated 13.4.1998. Further, Mr. Swamy relies upon G.O.Ms.No.1170 Education, Science and Technology Department dated 20.12.1993 which does not apply to the case of the petitioner. Learned counsel places reliance upon the judgment of the Supreme Court reported in 2001(1) Supreme 169 (E.S.P. Rajaram and others v. Union of India and others) and the same is not appropriate to the facts and circumstances of the present case. The petitioners earlier attempt to prevent the recovery was only successful to the extent of the procedural formality to be followed and thanks to the Bench judgment. The authorities have passed a reasoned order about the recovery even though the attempt by the petitioner to forestall the recoveries of amounts, which are paid contrary to rules, is most inappropriate and legally not justified." 3. In this appeal, the learned counsel for the appellant has contended that the learned single judge has passed the order dismissing the writ petition without considering the effect of several G.Os on the aspect and, if such G.Os are properly applied, it would be apparent that the present appellant was entitled to receive incentive increments. It is further submitted that, at any rate, even assuming that some payments had been made by error, since the appellant had not made any misrepresentation, the amount paid by mistake need not be recovered as has been laid down in several decisions of the Supreme Court. 4. However, before considering the above aspect, it is first necessary to consider the main contention raised by the appellant to the effect that as per the existing G.Os., the incentive increments were rightly paid to the appellant. 4. However, before considering the above aspect, it is first necessary to consider the main contention raised by the appellant to the effect that as per the existing G.Os., the incentive increments were rightly paid to the appellant. It is therefore necessary to notice all the relevant Orders touching upon the question of payment of incentive increment. 5. The earliest Government Order is G.O.Ms.No.42 dated 10.1.1969. Relevant portion of such G.O., reads as follows:- "The Government have already accepted in principle that incentive payments and awards should be given to the teachers in schools who acquire higher educational qualifications. The Director of School Education has accordingly submitted proposals, as indicated in annexure to this order. 2. The Government approve of the proposals of the Director of School Education and direct that incentive increments be granted to them, as indicated in the annexure." The relevant portion of the Annexure referred to above is to the following effect:- "2. A Secondary Grade Teacher who after passing B.T. or B.Ed., degree examination qualifies for M.A., or M.Sc., or M.Ed., degree but working in Secondary Grade Post may be given advance increments for second time also i.e. Two advance increments after passing B.T. or B.Ed., degree and another two after passing M.A. or M.Ed., degree. B.T. Teachers who after passing M.A. or M.Sc., qualifies for M.Ed., degree examination but working in B.T. or Headmasters post may be given advance increments after passing M.Ed., degree. In the case of persons entering service on or after 1st July 1968 possessing the higher qualification, their initial pay may be fixed by giving advance increments in their scale of pay. ..." (Emphasis added) 5.1 Subsequently, G.O.Ms.No.747 dated 18.8.1986 was issued. The relevant portion of such G.O., is to the following effect:- "At present incentive increments are given to teachers for acquiring additional qualifications. Under the existing orders, School Assistants and Headmasters of High Schools who possess or acquire M.Ed., are eligible for the advance increments. This scheme of incentive increments has not been extended to P.G. Teachers and Head Masters of Higher Secondary Schools. Representations for extending the benefits under the scheme of incentive increments for additional qualification to P.G. Teachers and Headmasters of Higher Secondary Schools were made to the One Man Committee constituted in the G.O. read above. This scheme of incentive increments has not been extended to P.G. Teachers and Head Masters of Higher Secondary Schools. Representations for extending the benefits under the scheme of incentive increments for additional qualification to P.G. Teachers and Headmasters of Higher Secondary Schools were made to the One Man Committee constituted in the G.O. read above. The Committee after examining the request has recommended that the scheme may be extended to these teachers also and that a P.G. Teacher or a Headmaster in the Higher Secondary School may be given two advance increments for M.Ed., qualification. 2. The Government accept the recommendations of the One man Committee and issue the following orders:- i) The P.G. teachers and Headmasters of Higher Secondary Schools who possess or acquire Post Graduate qualification in education ie. M.Ed., Degree shall be granted two advance increments in the scales of pay admissible to them. ii) The increment now sanctioned shall be granted in addition to their normal annual increments." (Emphasis added) 5.2 Subsequently, G.O.Ms.No.1170 dated 20.12.1993 was issued. Relevant portion of which is to the following effect:- "At present incentive increments are given to Teachers for acquiring additional qualifications. 2. As per G.O.Ms.No.42, Education, dated 10.01.69 introducing the scheme of incentive increment among others, the Secondary Grade Teachers are eligible for two incentive increments (equivalent to four increments) i) for B.T., or B.Ed., and ii) another for M.A., or M.Sc., or M.Ed., so also, the School Assistants are eligible for two incentive increment: (1) for M.A., or M.Sc., and (2) another for M.Ed., in the G.O. second read above, it was ordered that Post-Graduate teacher or a Headmaster in the Higher Secondary School be given an incentive increment (i.e.,) two advance increments, for possessing or acquiring Post-Graduate qualification in Education (i.e.,) M.Ed., 4. The Government accept the request of the Director of School Education and issue the following: (i) The Post-Graduate Teachers who possess higher qualification like M.Phil.,/Ph.D.,P.G. Diploma in Teaching English shall be granted one incentive increment (i.e.,) two advance increments. (ii) This incentive increment shall be given only to those who possess the said higher qualification as on 01.03.93 and this concession will not be extended in future." (Emphasis added) 5.3 Thereafter, on the basis of the judgment of the Madras High Court in W.A.Nos.2604 to 2606 of 1999 and other connected matters, G.O.(Per)No.194 dated 10.10.2006 was issued. (ii) This incentive increment shall be given only to those who possess the said higher qualification as on 01.03.93 and this concession will not be extended in future." (Emphasis added) 5.3 Thereafter, on the basis of the judgment of the Madras High Court in W.A.Nos.2604 to 2606 of 1999 and other connected matters, G.O.(Per)No.194 dated 10.10.2006 was issued. The relevant portion of which is to the following effect:- “4. Under the above circumstances on the basis of the High Court order and also accepting the recommendation of the Director of School Education is found the Government decided to issue the following ratification to the effect that in G.O.(per).No.1170 Education Science and Technical Education Dept., dt.20.12.1993 to change the G.O., that one increment shall be given to the P.G. Teachers possessing M.Phil, Ph.D., P.G.D.T.E. and the rectification can be issued to benefit all the P.G. Teachers. G.O.(per).No.1170 Education Science and Technical Education Dept., dt.20.12.1993 be suitably amended and accordingly the following amendment is issued. RECTIFICATION “Deleted the para 3 (ii) contained in G.O.(per).No.1170 Education Science and Technical Education Dept., dt.20.12.1993”.” (As per the translated version supplied by the appellant) 5.4 The matter appears to have been subsequently further clarified in Government Letter dated 2.11.2007. The relevant portion of which is to the following effect:- "4) The Government of Tamil Nadu had issued a G.O.Ms.No.1170 dated 20.12.1993 in which it is stated that in the Department of Education, the Post Graduate teachers who are qualified in M.Phil/Ph.D/PGDTE as on 01.03.1993, are eligible to get one incentive increment. But this incentive increment will not be extended after 01.03.1993. Then, the Government of Tamil Nadu has issued a G.O.(Ms)No.194 School Education dated 10.10.2006, wherein the cut-off date 01.03.93 was completely deleted removing the cut-off date 01.03.1993 in the G.O.(Ms)No.1179 dated 20.12.93. At present, all the Post Graduate teachers are eligible to get the incentive increment for M.Phil qualification as ordered in the G.O.(Ms)194 dated 10.10.2006. In between the two Government Orders, the Post Graduate teachers who are qualified in M.Phil/Ph.D/PGDTE are claiming to sanction the incentive increment to them. In this connection, the Director of School Education has requested the Government to ratify the qualification retrospectively to those who are qualified in M.Phil without the prior permission of the Government. In between the two Government Orders, the Post Graduate teachers who are qualified in M.Phil/Ph.D/PGDTE are claiming to sanction the incentive increment to them. In this connection, the Director of School Education has requested the Government to ratify the qualification retrospectively to those who are qualified in M.Phil without the prior permission of the Government. The Government after considering the request carefully made by the Director of School Education, the ratification was granted retrospectively taking into consideration of the points referred in Para-3, as a special case to those headmasters and P.G. Assistants qualified in M.Phil. Accordingly, the departmental teachers/headmasters are allowed to get the incentive increment as per the present rules and orders. Accordingly I am advised to inform you to grant the incentive increment to those teachers. .." (As per the translated version supplied by the appellant) 6. In the light of the above G.Os., and the clarifications, the correctness of the interpretation given by the Department as accepted by the learned single Judge is required to be considered. 7. The learned single Judge has observed "Incentive increments are granted only for persons acquiring higher qualifications while in service but not to a person, who possesses a higher qualification even before entering into service". 8. We do not think the aforesaid observation of the learned single Judge can stand the scrutiny of logic or even reality. The obvious intention in granting an incentive increment is for attracting higher qualified people or for encouraging the existing employees to acquire higher qualification, even though in service, so that the quality of service would improve. This is obviously on the assumption that a higher qualified person could work more efficiently. Therefore, it defies logic as to why a person who had already qualified would not get an incentive increment, if such an incentive increment is given to a lower qualified person in service, who acquires subsequently such higher qualification. Such a differential treatment would not stand the scrutiny of right to equality as enshrined in Articles 14 and 16 of the Constitution. 9. That apart, if the relevant G.Os are examined carefully, it can be safely concluded that the G.Os in reality do not intend to lay down in the manner it has been now concluded by the learned single Judge. We have already extracted the relevant portions of the G.Os. 9. That apart, if the relevant G.Os are examined carefully, it can be safely concluded that the G.Os in reality do not intend to lay down in the manner it has been now concluded by the learned single Judge. We have already extracted the relevant portions of the G.Os. The underlined portion of G.O.Ms.No.42 dated 10.1.1969 indicates that if a person possessing higher qualification enters into service, his initial pay may be fixed by giving advance increments. Similarly in the subsequent G.O.Ms.No.747, dated 18.8.1986, paragraph 2 makes it clear that "the P.G. teachers and Headmasters of Higher Secondary Schools who possess or acquire Post Graduate qualification in education i.e. M.Ed., Degree shall be granted two advance increments in the scales of pay admissible to them". It is no where contemplated in the G.Os., that the incentive increments would be given only to those who acquired subsequently the qualification, but it would be given to all those who either possess, which means the degree is obtained at the time of entering into service or acquire, which means the degree is obtained after entering into service. Even the subsequent G.Os or the clarifications, no where indicate that in order to be eligible for getting incentive increment, the person has to acquire such higher qualification only after entering into service and not otherwise. Therefore, we are unable to accept the conclusion of the learned single Judge that a person who enters into service after having acquired a higher qualification, is not entitled to get incentive increments. 10. Since the impugned order was passed on the basis that the appellant was not entitled to receive incentive increments having entered into service with higher qualification is now disapproved by us, the authorities are required to consider the matter afresh in the light of the conclusion already made to the effect that the appellant was entitled to receive such increments at the time of entry into service. 11. The question as to whether the appellant would continue to receive such increments in the revised scale of pay would be required to be reconsidered by keeping in view the various relevant factors including G.O.Ms.No.747 dated 18.8.1986, G.O.Ms.No.1170 dated 20.12.1993 as rectified in G.O.194 dated 10.10.2006 and the clarification dated 2.11.2007, and G.O.Ms.No.162, Finance, dated 13.04.1998 and the provisions made in the Tamil Nadu Revised Scales of Pay Rules, 1998. 12. 12. So far as the direction regarding recovery is concerned, learned counsel had placed reliance on the decision of the Supreme Court reported in (2001) 2 SCC 186 = (2001) 1 Supreme 169 (E.S.P. Rajaram and others v. Union of India and others) However, such contention of the appellant had been given a short-shrift by the learned single Judge. 12.1 In (1993) 3 SCC 444 (SECRETARY, FINANCE AND PLANNING DEPARTMENT AND OTHERS v. SALADA S. RAO AND ANOTHER), it was observed:- “24. Therefore, in each case of the respondent-Stenotypists, the fact has to be verified. Subject to the above, they would be entitled to the benefit of GO.Ms.No.182 dated 17-7-1987. However, if any of the Stenotypists are held not entitled to increment on passing LL B because he had got one increment upon graduation, no recovery of increments already drawn will be made. ...” (Emphasis added) 12.2 In (1994) 2 SCC 521 (SHYAM BABU VERMA AND OTHERS v. UNION OF INDIA AND OTHERS), it was observed:- “11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.” 12.3 In 1995 Supp(1) SCC 18 (SAHIB RAM v. STATE OF HARYANA AND OTHERS), it was observed by the Supreme Court :- “5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant.. . .” (Emphasis added) 12.4 In 1995 Supp (3) SCC 722 (NAND KISHORE SHARMA AND OTHERS v. STATE OF BIHAR AND OTHERS), while considering the question of recovery of amount paid by mistake, it was observed:- “2. But at the same time, we are of the view that the appellants cannot be blamed. The Anomaly Committee recommended grant of higher pay scales to them. The Finance Department also concurred with the same and as a result thereafter the appellants were given the pay scales and were disbursed the arrears as a lump sum. Having paid the arrears to the appellants, the State Government could not have reversed the same specially without complying with the rules of natural justice. . . .” (Emphasis added) 12.5 In (2001) 2 SCC 186 = (2001) 1 Supreme 169 (E.S.P. RAJARAM AND OTHERS v. UNION OF INDIA AND OTHERS), while negativing the claim regarding entitlement of higher emoluments, the Supreme Court observed:- “23. However, in our considered view, it will be just and fair to clarify that any amount drawn by such employees either in the basic post (Traffic Apprentice) or in a promotional post will not be required to be refunded by the employee concerned as a consequence of this judgment. This position also follows as a necessary corollary from the observations made by this Court in para 18 of the judgment in M. Bhaskar case.” 12.6 Similar view is expressed by the Supreme Court in (2007) 6 SCC 180 – Babulal Jain vs. State of M.P. and by the Madras High Court in (2006) 1 MLJ 143 – Palavesamuthu,D. v. Tamil Nadu Administrative Tribunal. 13. 13. On a perusal of these decisions, it is apparent that where excess payment is made not on account of any erroneous representation of the employee, but on the basis of error committed by the authorities, the Supreme Court has invariably directed that recovery need not be made. 14. In the present case, there is nothing to indicate that the present appellant had made any misrepresentation in the matter. Since the amount had already been paid and obviously spent by the appellant thinking that she was entitled to such amount, it would cause undue hardship if at a distant point of time such amount is recovered. 15. In the result, the appeal is allowed, subject to the following directions:- (i) The appellant was entitled to claim incentive increments for having entered into service with higher qualification. (ii) The question as to whether the appellant was entitled to receive the benefit of such increment even after introduction of revised scale of pay, is required to be reconsidered in the light of the relevant rules and the Government Orders. (iii) Even assuming that any amount had been paid in excess, such amount shall not be recovered from the appellant. Consequently, the connected miscellaneous petition is closed. No costs.