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Bhagwan Shukla S/O Sh. Sarabjit ... vs Union Of India And Ors on 5 August, 1994

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Madras High Court
Tamilaga Arambapalli Asiriyar ... vs The Secretary To Government Of ... on 15 February, 2002
Author: V Sirpurkar
Bench: V Sirpurkar

ORDER V.S. Sirpurkar, J.

1. In this petition a representative body of teachers called Tamilazhaga Aramba Palli Asiriyar Kootany has challenged a Government Order dated 08.11.1995 vide G.O. Ms. No: 860. By the aforementioned Government Order, the Government modified G.O.Ms. No:745 dated 4.6.90. The members of the petitioner association are stated to be secondary grade teachers. There was a scheme of the State Government that the secondary grade teachers with higher qualifications used to get incentive increment for their having acquired the higher qualifications and such orders were issued from time to time. Secondly, there was a system of granting increment in advance for motivating the teachers to attain the higher qualifications. At the relevant time before the advent of Vth Pay Commission the initial salary of a secondary grade teacher was in the scale of pay of Rs.610-1075. Therefore, if a teacher without the higher qualification joined as a secondary grade teacher, he became entitled to get an increment in advance as a motivation for him to acquire higher qualification. The Vth Pay Commission report was made applicable to the State of Tamil Nadu on 27.06.1989, but with effect from 01.06.1988. While making applicable the report, as a precondition those teachers who had received incentive benefits, meaning those teachers who had because of their qualifications became entitled to the increments, were left untouched, while those teachers who were to be given or who were given the advance increments were to loose those increments in the sense that they were to be adjusted in the parallel grade meant for the teachers drawing Rs.610. In short, a teacher entitled to draw Rs.610/- as a basic pay was to get Rs.1,200/- and was to be fitted in the pay scale of Rs.1,200 - 2,040. By this G.O. Ms.No: 745 it was noticed that the Vth Pay Commission had recommended that the incentive increment available for having acquired higher qualification was to be continued, but in sofar as the advance increment for higher start was concerned, that was to be withdrawn. While implementing the Vth Pay Commission report, the State Government accepted the said recommendation which was also recorded in this Government Order. It was, however, decided that the advance increment for acquiring the higher qualification by the teachers obtained by various categories would be withdrawn with effect from 27.6.89, since that was the date from which the orders on Tamil Nadu Revised Scales of Pay of 1989 were issued. The natural follow up of this would have been that a teacher would loose the increment paid to him by way of motivation for acquiring the higher educational qualifications. However, later on the Government realised that the teachers could not have been given the higher increments from 27.6.89 because the Vth Pay Commission Pay Scales, i.e. the revised pay scales were made applicable with effect from 01.06.88. This was noticed by the Accountant General who had pointed out it to the Government of Tamil Nadu. Accepting this, the Government of Tamil Nadu then came out with G.O. Ms. No: 860 dt.8.11.95 that this withdrawal would be with effect from 01.06.88 and not from 27.06.89. It is this Government Order which is under challenge.

2. Learned counsel for the petitioner points out that once in case of teachers who have started their service on 01.06.1988, they get the benefit of the advance increment right from that date and he would draw Rs.610/- plus Rs.30/- by way of increment. Merely because the higher pay scales were made applicable to them, they could not be divested of that additional increment which was paid to them under the scheme of motivating them to acquire higher qualifications. Therefore when they go to the parallel scale of Rs.1200/- - 2,040, they should get the salary of Rs.1,200/- plus Rs.30/-, the earlier granted increment. The second limb of the argument is that once the Government had decided to withdraw these increments only with effect from 27.6.89 i.e. from the date when the higher pay scales were made applicable, then, the Government could not retrospectively withdraw those increments with effect from 01.06.1988. The learned counsel has very heavily relied upon the Supreme Court's judgment reported in 1994 L.A.B. I.C. 2493 (Bhagwan Shukla vs. Union of India)

3. As against this the learned counsel for the Government point out that it is a misnomer to say that the basic pay of the teachers was reduced by the impugned Government Order. The learned Government Pleader points out that it was specifically suggested by the Vth Pay Commission that the advance increment paid for motivating the teachers for acquiring higher qualification was to be ignored when the teachers would be put in the revised pay scales. He pointed out by way of an example that a teacher who was entitled to get Rs.610/- as his payment on 01.06.88 straight away jumped to the basic pay of Rs.1,200/- if the revised pay scales were to be made applicable to him. Learned Government Pleader further points out that in view of this jump in the basic pay, the Government had decided to ignore the effect of the teacher drawing additional advance increment even before acquiring the higher qualification. The learned Government Pleader further pointed out that this arrangement was not challenged and was acceptable to one and all because after all the teachers were drawing much higher than what they would have even dreamt about. He further points out that anomaly would come because of the application of the Government Order. He said that though the Government had fixed that date to be 27.6.89 it was obviously an error and as, though the revised pay scales became available to the teachers on 27.6.89, they were actually made with effect from 1.6.88. He pointed out that realising this, the aforementioned G.O. Ms. No: 745 came to be modified for rectifying the mistake in that Government Order.

4. On this backdrop it is to be decided as to whether the Government could modify its Government Order with retrospective effect and whether in fact the Government Order has been so modified with retrospective effect.

5. It will be seen that the teachers who initially began their service on 01.06.1988 could not have got their pay scale starting from Rs.1,200/- along with the increments as has been claimed by these teachers in the writ petition. It is seen from the writ petition affidavit in paragraph 11 that following is the claim, "I state that teachers recruited between 1.6.88 and 27.6.89 were already fixed at a higher start in the revised scale of pay. They were paid Rs.1,200 + 30 i.e. Rs.1,230/- from 1.6.88 or date of appointment. They are getting regular annual increments on this basis."

Very heavily relying on this statement Mr. Ganesan learned counsel for the petitioner submits that now to withdraw retrospectively the advantage of the said increment of Rs.30/- that too without giving an opportunity to the said teachers, would be prejudicial to them. The argument is undoubtedly attractive. But on a deeper scrutiny it will be seen that it lacks merits. In the first place, on 1.6.88 if a teacher was appointed he could not have got the salary of Rs.1,200/- + 30 because on that date the salary starting from Rs.1,200/- was not available at all. What was available was a scale starting from Rs.610/-. The scale starting from Rs.1,200/- became available for the first time only on 27.6.89 though on that date it became available with effect from 1.6.88. Therefore, it is not that a teacher who started his service on 1.6.88 got the scale beginning from Rs.1,200/- on 1.6.88. What was given to the teacher was his original pay scale of Rs.610/- along with one increment by way of advance increment for motivating him to acquire higher qualifications. Now obviously this would have been anomalous because it was understood from the beginning and was not challenged by anybody that this advance increment given to the teacher should be ignored when he is to be given the higher scale as fixed by the Vth Pay Commission. Therefore, the only result would be that the teacher's salary would be viewed to be Rs.610/- only which was the salary at the time of his initial appointment. The result was that he got straight away a jump to the scale of Rs.1,200/- though on 27.6.89, with effect from 1.6.88. Now if the higher increment paid by way of advance increment was to be totally ignored there could not be a payment to the teacher of that increment in between 1.6.88 to 27.6.89 because that increment was to be ignored while fixing him in the higher pay scale. If the teachers accepted the higher pay scale they could not then insist further on the payment of this advance increment which was given to them by way of a scheme for motivating them to acquire higher qualifications. Therefore, according to me the State Government has taken a correct view of the matter and has correctly withdrawn the entitlement of the teacher to the fixation of pay with the said advance increment. In fact, the State Government has gone a step ahead to help the teachers and has provided in the impugned G.O. that the monetary advantage which was been given to the teacher would not be recovered back and would be waived. If it is so one fails to see as to how the teachers now can insist that they still should be given the advance higher increment which was given to them when their salary was in the scale of Rs.610/-. Once the teacher accepts the recommendations of the Vth Pay Commission and the scales fixed thereby, then, he has to accept the conditions thereof also. When one such condition being that the said advance increments were to be ignored, he will have to ignore them not from the date 27.6.89 but from the date when the Vth Pay Commission scale was made applicable to the teachers. On this view, there does not appear to be anything wrong in the impugned Government Order No: 860 dated 8.11.1995.

  6. Learned counsel insisted that this could not have been done retrospectively and that too, without giving any opportunity.     There  was  no  question  of  giving    any    
        V.S.SIPURKAR,J. opportunity because the said teachers had accepted the revised pay-scale with the condition attached thereto.  The question was of right implementation of those conditions.  The conditions were obviously to operate from the date when the revised pay-scale was applicable and if they became applicable with effect from 1.6.1988 then, it must be held that the condition also became applicable with effect from 1.6.1988.  In that view, I do not find any merit in the challenge to the Government order. 

    7.  The petition has no merits.  It must be dismissed and it is accordingly dismissed.  Consequently, connected W.M.P. is also dismissed. No costs.