The main legal point established is that incentive increments should be granted to employees who possess or acquire higher qualifications at the time of entering into service, and recovery of excess payment need not be made if it was not due to any misrepresentation by the employee.

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. 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 assumin