C. Babu vs Travancore Devaswom Board
2023 Latest Caselaw 44 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
        FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
                         WP(C) NO.29042 OF 2022
PETITIONER :-

           C. BABU, AGED 57 YEARS
           S/O.CHANDRAN, CHARUVILA PUTHEN VEEDU, MADAVOOR
           PALLIKKAL P.O., KILIMANOOR
           THIRUVANANTHAPURAM, PIN - 695 604

            BY ADVS.
            ARAVINDA KUMAR BABU T.K.
            SANDRA SUNNY
            ARUN KUMAR M.A


RESPONDENTS :-

    1      TRAVANCORE DEVASWOM BOARD
           DEVASWOM HEAD QUARTERS
           NANTHANCODDE, KAWDIAR POST,
           THIRUVANANTHAPURAM, PIN - 695 003
           REPRESENTED BY ITS SECRETARY

    2      DEVASWOM COMMISSIONER
           TRAVANCORE DEVASWOM BOARD
           DEVASWOM HEAD QUARTERS
           NANTHANCODDE, KAWDIAR POST
           THIRUVANANTHAPURAM, PIN - 695 003

    3      DEPUTY DEVASWOM COMMISSIONER
           PENSION AND SERVICE GRIEVANCE REDRESSAL CELL
           TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS
           NANTHANCODDE, KAWDIAR POST
           THIRUVANANTHAPURAM, PIN - 695 003

    4      STATE OF KERALA
           REPRESENTED BY ITS PRINCIPAL SECRETARY
           REVENUE (DEVASWOM) DEPARTMENT,
           GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
           PIN - 695 001

           BY ADVS.
           SRI.C.K.PAVITHRAN, SC, TDB


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.12.2022, THE COURT ON 06.01.2023 DELIVERED THE FOLLOWING:
 WP(C) NO.29042 OF 2022

                                  -: 2 :-


                              JUDGMENT

Dated this the 6th day of January, 2023

The prayers in this writ petition are as follows :-

"i. Issue a writ of certiorari or any other writ, order or direction to quash Exhibit P2 and Exhibit P3. ii. Issue a writ of mandamus or any other writ, order or direction commanding and compelling the respondents to re-fix the pay and pension by reckoning the regular service of the petitioner prior to his retrenchment, (i.e. service from 02.08.1995 to 30.01.1996) and to pay all monetary benefits arising therefrom. iii. Issue a writ of mandamus or any other writ, order or direction commanding and compelling the respondents to release the amount recovered from DCRG as per Exhibit P4."

2. Heard the learned counsel for the petitioner and the

learned Government Pleader as well as the learned Standing

Counsel appearing for the respondent Board.

3. It is submitted by the learned counsel for the

petitioner that the petitioner had retired from service of the

respondent Board on 31.1.2021. He was appointed on a

regular basis by Ext.P1 order dated 19.7.1995 as Thakil in the

Thrippappur Devaswom under the respondent Board. The

appointment was in a regular vacancy. Though he joined duty WP(C) NO.29042 OF 2022

on 2.8.1995, he was retrenched on 30.1.1996 due to want of

vacancy and was reappointed on 20.2.1996. He continued in

service and his pay was fixed as Rs.39,500/- with effect from

1.8.2020. However, when his pension papers were forwarded

to the 3rd respondent for auditing, an objection was raised

stating that the earlier period of appointment of the petitioner

from 2.8.1995 till his retrenchment on 30.1.1996 cannot be

counted for fixing his pay and pensionary benefits. Ext.P2

communication dated 22.10.2020 was therefore issued against

which the petitioner approached the Government, which was

also rejected by Ext.P3. It is submitted that the monetary

benefits due to the petitioner were refixed and an amount of

Rs.70,264/- was recovered from his DCRG.

4. The learned counsel for the petitioner submits that

the petitioner was entitled to count the prior regular service

put in by him in terms of Government Decision No.1 under

Rule 33(a) of Part I KSR. It is submitted that even if the

contention that the KSR was not applicable to the petitioner at

the relevant time is admitted, the petitioner had been granted

fixation of pay and all benefits taking the period of his initial WP(C) NO.29042 OF 2022

appointment also as qualifying service and that there can be no

refixation of the benefits granted at this late stage after such

inordinate delay and no recovery is possible from the

pensionary benefits due. The learned counsel for the

petitioner contends that the recruitment rules under the

Devaswom also stand amended making the KSR applicable to

all posts including temple employees.

5. A detailed counter affidavit has been placed on

record by the 1st respondent, wherein, it is contended that the

petitioner's initial appointment was only as a contingent

temple employee and that it was only in the year 2017 that

amendment was carried out to the Devaswom Service Rules,

making temple employees entitled to the benefit of the KSR. It

is further contended that the petitioner retired on

superannuation on 31.1.2021 while working as Takil at the

Kadakkal Devaswom. It is submitted that after joining duty on

2.8.1995, he was on probation for a period of one year. Before

confirmation, he was terminated from service for want of

vacancy. It is stated that while continuing in service, the

petitioner was granted fixation of pay reckoning his temporary WP(C) NO.29042 OF 2022

service along with regular service, which was objected to in

Ext.P2 and was ratified by the Government in Ext.P3. It is

submitted that since the KSR has not been adopted, the

petitioner cannot take the benefit of Decision No.1 under the

Rule 33(a) of Part I KSR and that the recovery effected is

perfectly legal and valid.

6. A reply affidavit has also been placed on record by

the petitioner.

7. Having considered the contentions advanced, I

notice that the petitioner had been granted fixation of pay and

all benefits taking note of his earlier service from 2.8.1995 also

as qualifying service. Exts.P2 to P4 would show that what is

attempted, at the very fag end of his career, that is, when his

pension papers are processed, is to recover amounts from his

DCRG alleging a wrong fixation of his pay and pension. In the

light of the binding decision of the Apex Court in State of

Punjab and others v. Rafiq Masih (White Washer) [(2015) 4

SCC 334], I am of the opinion that the said action of the

respondents, that is, in seeking to refix the petitioner's pay and

pensionary benefits on the basis of an alleged error which has WP(C) NO.29042 OF 2022

occurred at the beginning of his service is completely

unwarranted. The contention that the petitioner had

consented to the recovery of amounts, if any, found to have

been drawn in excess by him cannot also be a reason for

arbitrarily refixing the petitioner's pay and pension at the fag

end of his career.

In the above view of the matter, I am of the opinion

that Exts.P2 to P4, which direct the refixation of the

petitioner's pay drawn and the recovery from his pensionary

benefits are completely unjustifiable. Exts.P2 to P4 are,

therefore, set aside. There will be a direction to the

respondents to release the amounts withheld on the basis of

Exts.P2 to P4 within a period of three months from the date of

receipt of a copy of this judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/27.12.2022 WP(C) NO.29042 OF 2022

APPENDIX OF WP(C) 29042/2022

PETITIONER EXHIBITS

EXHIBIT P1 THE TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 19.07.1995

EXHIBIT P2 THE TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 22.10.2020

EXHIBIT P3 THE TRUE COPY OF THE GOVERNMENT ORDER DATED 13.07.2022

EXHIBIT P4 THE TRUE COPY OF THE COMMUNICATION DATED NIL ISSUED BY THE DEVASWOM ACCOUNT OFFICER AUTHORIZING THE PAYMENT OF D.C.R.G

EXHIBIT P5 THE TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT DATED 26.04.1963

EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT IN W.P.(C.)NO 27070 OF 2021 OF THIS HONOURABLE COURT DATED 11.03.2022