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2014 DIGILAW 4082 (MAD)

M. Thangammal v. Secretary to Government

2014-10-31

D.HARIPARANTHAMAN

body2014
JUDGMENT D. HARIPARANTHAMAN, J. 1. The petitioner filed O.A. No. 5200 of 2002. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as W.P. No. 30721 of 2005. 2. The petitioner passed 7th standard in the year 1967. Thereafter, she wrote Technical Exam and obtained a certificate in embroidery, Needle Work and Dress making on 30.08.1968. 3. While so, the petitioner was appointed as Part Time Vocational Instructor in Velayuthapuram Panchayat Union Middle School on 21.08.1968. After 17 years of service as Part Time Vocational Instructor, she was appointed as Full Time Craft Instructor with effect from 01.06.1984 by an order dated 28.03.1985 in consolidated pay of Rs. 595/-. 4. The Government issued G.O. Ms. No. 246 Finance (Pay Commission) Department, dated 09.03.1990, providing Dearness Allowance to the employees, who are on consolidated pay with effect from 01.06.1988 and the petitioner was also given such benefit. It is the case of the petitioner that similarly situated persons like the petitioner was also given Dearness Allowance based on G.O. Ms. No. 246. 5. However, an audit objection was made on 20.08.1998 that the petitioner was not entitled to Dearness Allowance and therefore, the excess amount of Rs. 60,941/- paid towards Dearness Allowance from 01.06.1988 to 28.02.1995, Rs. 1,147/- for the month of March 1995 and Rs. 15,316/- for the period from 01.04.1995 to 29.02.1996 was ordered be recovered. In total, a sum of Rs. 77,406/- was said to have been paid as excess amount as per audit objection. The aforesaid facts are not in dispute. 6. The petitioner retired from service on attaining the superannuation on 31.07.2001. On retirement, the entire DCRG amount of Rs. 61,000/- was adjusted towards the excess amount paid. 7. The grievance of the petitioner is that while she was made as a Full Time Craft Instructor by an order dated 28.03.1985 on consolidated pay, she should have been granted time scale of pay. It is her case that atleast she should have been paid time scale of pay from 28.09.1988 since similarly situated persons were granted time scale of pay of Rs. 505-10-555-15-615-20-795-25-845. But the petitioner was not granted time scale of pay, though she was made as a Full Time Craft Instructor, on the ground that the petitioner did not possess the requisite qualification of pass in VII standard and TTC Certificate. 8. 505-10-555-15-615-20-795-25-845. But the petitioner was not granted time scale of pay, though she was made as a Full Time Craft Instructor, on the ground that the petitioner did not possess the requisite qualification of pass in VII standard and TTC Certificate. 8. According to the petitioner, 7 persons who were similarly situated like that of the petitioner were granted time scale of pay in G.O. Ms. No. 1529 Education Department, dated 28.09.1988 by relaxing the general educational qualification and thereby granted time scale of pay as stated above. Now the petitioner has filed this Original Application (W.P. No. 30721 of 2005) seeking to quash the audit objection referred to above and for a consequential direction to grant her time scale of pay with effect from 28.09.1988. 9. A counter affidavit was filed by the third respondent. The crux of the counter affidavit is that the petitioner did not possess the requisite qualification for the post of Full Time Craft Instructor. Hence, she is not entitled for exemption. In this regard paragraph 13 of the counter may be usefully extracted:- "13. I submit that regarding the averment made in ground (g) of the affidavit, I submit that the petitioner has averred that she is unqualified. There is no provision in the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 to exempt a teacher from possessing the requisite general educational qualification and Teacher Training Certificate i.e, TTC except age and experience as per Section 20(3) of the said Act 1973. G.O. Ms. No. 1529 Education dated 28.09.1988 and G.O. (2D) No. 166 Education dated 12.10.1998 and G.O. (2D) No. 8 School Education dated 27.11.1994 were passed prior to the insertion of sub section 3 under Section 20 as per Tamil Nadu Act 11 of 1999. Hence in view of Section (3) of Section 20 Government cannot exempt any teacher from the possession of requisite educational qualification and TTC. The Hon'ble Supreme Court has not granted any relief for an illegality hashed in the earlier acceptance of similar illegality. Being most educationally unqualified, the petitioner is not entitled for any exemption and not entitled for pensionary benefits' as stated above." 10. Heard both sides. 11. The petitioner is not governed by the provisions of the Tamil Nadu Private Schools (Regulation) Act, 1973 as she was not in employment in any private school. 12. She was a teacher in the Panchayat Union School. Heard both sides. 11. The petitioner is not governed by the provisions of the Tamil Nadu Private Schools (Regulation) Act, 1973 as she was not in employment in any private school. 12. She was a teacher in the Panchayat Union School. She was made a full time Vocational Instructor on consolidated pay. When similarly situated persons like her were granted time scale of pay in the Government Orders referred to in Paragraph 13 of the counter affidavit, similar benefit is not extended to the petitioner. 13. It is not in dispute that the petitioner does not possess the requisite qualification of pass in VIII standard and pass in TTC. But in the case of 7 others, who were also similarly situated like the petitioner, the Government issued G.O. Ms. No. 1529 dated 28.09.1988 exempting from the possession of general educational qualification and TTC and granted time scale of pay. 14. In this context, it is relevant to extract the Government Order, i.e. G.O. Ms. No. 1529, which reads as follows:- "The Director of School Education has sent proposal for exemption from the possession of Technical Teacher's Certificate and General Educational Qualification for seven Pre-Vocational Instructors as shown in the annexure to this order. 2. The required qualification for the post of Pre-Vocational Instructor is VIII Standard pass with T.T.C. as the seven Pre-Vocational Instructors shown in the annexure to this order are not fully qualified for the post of Pre-Vocational Instructors, they are getting only consolidated pay with allowances. Most of these Pre-Vocational Instructors are above the age of 50 years and have put in long years of service as teachers. Further T.T.C. centre had been disbanded. Instructors are unable to acquire their requisite qualification as they now are over aged. The Director of School Education has now recommended that the Pre-Vocational Instructors may be exempted from the possession of the requisite qualification and placed in the regular scale of pay. 3. The Government after careful examination decided to accept the recommendation of Director of School Education. Instructors are unable to acquire their requisite qualification as they now are over aged. The Director of School Education has now recommended that the Pre-Vocational Instructors may be exempted from the possession of the requisite qualification and placed in the regular scale of pay. 3. The Government after careful examination decided to accept the recommendation of Director of School Education. They accordingly direct that the five Pre-Vocational Instructors (Serial No. 1, 2 to 6) shown in the annexure to this in the order) be exempted from the possession of T.T.C and the two Pre-Vocational Instructors Serial No. 2 and 7) shown in the annexure to this order) be exempted from the possession of general educational qualification and T.T.C. The Government further direct that the seven Pre-Vocational Instructors be placed in the regular scale of pay of Rs. 505-10-555-15-615-20-795-25-845. This order shall take effect from the date of issue of this order. 4. This order issues with the concurrence of Finance Department vide its U.O. No. 60857/ A11.1/89-1 dated 3.6.1988. ANNEXURE S. No. Name and Occupation Acquired Special Qualification and Educational Qualification Date of joining as Prevocational 1. K.S. Ismail PVI, Chozhanmadevi, Coimbatore District S.S.L.C. failed 11.12.1962 2. M. Angappan, PVI Panchayat Union Middle School, Kothagiri, Nilgiris District VII Std 1957, District Board School from 13.4.64 Panchayat Union Service 3. T. Solaimalai, PVI P.U. Middle School Veeramatchampatti Thuraiyur Panchayat Union Trichy IX Std Passed 5.4.1967 4. S. Sundaramoorthy, PVI Panchayat Union Ele. School, Mudur, Arakkonam ESLC 6.8.1962 5. A. Sehastian P.U. Middle School, Alakkudi, Thanjavur District VIII Std. Passed 24.7.1957 6. M. Vopal, PVI Elangadu, Vandavasi Panchayat Union, North Arcot District SSLC Failed 2.9.1963 7. K. Gnanasamy, PVI P.U. Middle School Melravanthavadi North Arcot District V Std Passed 17.5.1952 15. Therefore, in my view the Government cannot deny the scale of pay to the petitioner, while the same was extended to others, who are similarly situated like the petitioner. 16. Besides issuing G.O. Ms. No. 1529, the Government also issued G.O. (2D) No. 166 Education Department, dated 12.10.1998 and G.O. (2D) No. 8 Education Department, dated 27.11.1999 granting exemption in the matter of educational qualification by invoking its power under Rule 48 of the General Rules and granted scale of pay to persons, who are similarly situated like the petitioner. 17. It is also relevant to note that the third respondent viz. 17. It is also relevant to note that the third respondent viz. Assistant Elementary Educational Officer, by his proceedings, dated 03.06.1999 recommended for grant of scale of pay. But unfortunately, the petitioner was discriminated and she was not extended the benefit, while others were extended the benefit vide G.O. (2D) No. 166 and G.O. (2D) No. 8. 18. The Apex Court in Life Insurance Corporation of India vs. Triveni Sharan Mishra, 2014 10 SCALE 57 has held that the State shall not discriminate between its employees. Since the State has granted scale of pay to similarly situated persons like the petitioner, similar benefit should also be extended to the petitioner, particularly, when the third respondent recommended for the same. However, adding insult to injury, even the Dearness Allowance given to the petitioner on consolidated pay was sought to be recovered, due to the audit objection and ultimately, it was adjusted in his DCRG. 19. The petitioner was paid Dearness Allowance from 01.06.1988 pursuant to G.O. Ms. No. 246 and she retired from service in the year 2001. But recovery was made after 13 years. Even assuming that the petitioner is not entitled to scale of pay, there is no justification for ordering recovery after 13 years. A Division Bench of this Court in D. Palavesamuthu vs. Tamil nadu Administrative Tribunal, 2006 (1) MLJ 143 has held that such a recovery is bad. I have considered a similar issue in S. Savarimuthu vs. Director Local Fund Audit, W.P. No. 11707 of 2007 dated 10.09.2009 and held that such recovery is bad. 20. For all the aforesaid reasons, I am of the view that the audit objection made on the alleged excess payment of Dearness Allowance is liable to be set aside and accordingly, it is set aside. The amount of DCRG that has been adjusted shall be paid to the petitioner forthwith and in any event not later than eight weeks from the date of receipt of a copy of this order. Further, as I have held that the petitioner is also entitled to similar benefit as given to others in G.O. Ms. No. 1529 Education Department, dated 28.09.1988, the petitioner shall be granted scale of pay with effect from 28.09.1988 i.e. the date of issuance of Government Order. Further, as I have held that the petitioner is also entitled to similar benefit as given to others in G.O. Ms. No. 1529 Education Department, dated 28.09.1988, the petitioner shall be granted scale of pay with effect from 28.09.1988 i.e. the date of issuance of Government Order. The arrears pursuant to such fixation as well as revision in pension shall be paid to the petitioner by the first respondent, within a period of 12 weeks from the date of receipt of a copy of this order. The writ petition is allowed to the extent indicate above. No costs.