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2025 DIGILAW 2509 (KER)

State of Kerala v. Saji V. S. S/o Simon V.

2025-09-19

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : MURALEE KRISHNA S., J. Article 227 of the Constitution of India , challenging the order dated 08.11.2024 passed by the Tribunal in the original application. nd time- bound higher grade in the post of Treasurer as per the 1997 pay revision order, treating the post of Treasurer as a promotion post. But the Accountant General raised objection against the said benefit enjoyed by the Treasurers, contending that as per the order dated 01.12.2003 of the Joint Director of Treasuries, it was held that the persons sanctioned 2 nd higher grade on completion of 8 years of service in the post of Treasurer are eligible for 10 years higher grade, considering Treasurer as the entry post. The affected persons filed several writ petitions before this Court challenging the legality of the said order dated 01.12.2003 and the consequent orders for refixation and recovery. But all those writ petitions were dismissed, and in the consequent writ appeals, the Division Bench of this Court passed a reference order on 22.03.2010 to be answered by a Larger Bench in view of divergent findings. Accordingly, all the writ appeals were placed before the Full Bench of this Court. In the case of the respondent also, Annexure A7 audit objection was raised in the year 2019, based on the departmental order dated 01.12.2003 of the Joint Director of Treasuries stating that option to the post of Treasurer has been stopped and as per order dated 08.02.2013 of the Director of Treasuries the pay of Accountants who have become Treasurers after 01.12.2003 will be regulated according to their cadre post with effect from the date on which they became Senior Accountant/Selection Grade Accountant. By Annexure A8 judgment dated 10.01.2020 in W.A.No.996 of 2009 and connected cases, the Full Bench of this Court answered the reference, declaring that the post of Treasurer is not a promotion post and that, for the purposes of pay revision orders, opting for appointment as Treasurer has to be seen as an appointment to an entry post. By Annexure A8 judgment dated 10.01.2020 in W.A.No.996 of 2009 and connected cases, the Full Bench of this Court answered the reference, declaring that the post of Treasurer is not a promotion post and that, for the purposes of pay revision orders, opting for appointment as Treasurer has to be seen as an appointment to an entry post. Contending that, even though the said declaration of law is against the claim of the appellants in the writ appeals, the Full Bench by following the decision in State of Punjab and others v. Rafiq Masih (White Washer), (2015) 4 SCC 334 made clear that the Government shall not take any steps for recovery of monetary claims already extended and that the benefits so granted shall be reckoned for the purpose of the service and retirement benefits and the respondent is similarly situated, he filed the original application before the Tribunal challenging Annexure A7 audit objection seeking the following reliefs: “(i) Declare that going by the direction Annexure A8, recovery of the monetary claims already extended to the applicant is not permissible and further the benefits so granted to the applicant is also to be reckoned for the purpose of the service and retirement benefits; (ii) issue an order setting aside Annexure A7 audit objection and the consequent steps to effect refixation and recovery, in view of the direction in Annexure A8 judgment .” 3. In the original application, the 1 st petitioner filed a reply statement dated 09.02.2023 opposing the reliefs sought therein. Paragraph 8 of that reply statement read thus: “8. On examining the service records of the applicant, it is clear that the applicant has not been granted Time Bound Higher Grade on completion of 8 years in the post of Treasurer. Hence there is no question of recovery of the excess pay arising. In the Judgment of the full bench of the Hon'ble High Court (Annexure A8) it is clarified that the appointment of Treasurer is not in the direct line of promotion to the post of Junior Accountants in the Treasury Department. It is also ordered in the above Judgment that the State Government shall not take any steps for recovery of the monitory benefit already extended to the applicants by way of granting higher grade in the post of Treasurer on completion of 8 years. It is also ordered in the above Judgment that the State Government shall not take any steps for recovery of the monitory benefit already extended to the applicants by way of granting higher grade in the post of Treasurer on completion of 8 years. Since the applicant has not been granted the above grade no question of the recovery arising. But obeying the Special Rules his pay should be regulated in the scale of pay of the original post”. 4. By the impugned order dated 08.11.2024, the Tribunal allowed the original application. Paragraph 14 of that order read thus: “14. We find that after the judgment of the Hon'ble High Court in Annexure A8 the legal position is settled and needs no further adjudication. The only question left to be decided is regarding the applicant's claim for protection from recovery ordered by the Hon'ble High Court in Annexure A8 judgment . As rightly pointed out by the respondents, the applicant was not a party to Annexure A8 judgment and no recovery is ordered on sanctioning of 8 years time bound higher grade. But at the same time, we find that the audit objection was raised way back in 2019 and the Original Application has been pending before this Tribunal for the last more than 4 years. Moreover, due to the series of the litigations before the Hon'ble High Court and before this Tribunal, no steps were taken for recovery of the amount from the applicant. In the facts and circumstances, we find that it is in the interest of justice to direct the 2 nd respondent not to make any recovery from the applicant at this point of time. But it will be open to the respondents to re-fix and regulate the scale of pay of the applicant as per Rules. In view of the fact that the legal issue involved was pending before this Tribunal for a long time and also in view of the principles laid down by the Hon'ble Supreme Court in Refiq Masih's case reported in (2015) 4 SC? 334, we direct the 2 nd respondent not to make any recovery from the applicant for the benefits already granted and which are referred in Annexure A7 audit objection.” 6. Heard the learned Senior Government Pleader and the learned counsel for the respondent. 7. 334, we direct the 2 nd respondent not to make any recovery from the applicant for the benefits already granted and which are referred in Annexure A7 audit objection.” 6. Heard the learned Senior Government Pleader and the learned counsel for the respondent. 7. The learned Senior Government Pleader would submit that in Annexure A8 judgment , the Full Bench of this Court held that the post of Treasurer is not filled up by promotion in terms of the relevant special rules and is liable to be construed as by transfer appointment. It was held in Annexure A8 judgment that the grant of time-bound higher grade is liable to be treated as an entry post for the purpose of the grant of the said benefit. In view of Annexure A8 judgment , the question as to whether the respondent can claim the benefit of time-bound higher grade as promotion and consequently eschew any consequences arising therefrom has become an open and shut case. When the Full Bench in Annexure A8 judgment confined the benefit of that judgment to the litigating parties therein alone, the Tribunal diluted the effect of the declaration of law as laid down in Annexure A8. After arguing for some time, to a query made by this Court, the learned Senior Government Pleader would submit that since the Tribunal failed to consider this crucial aspect raised in paragraph 8 of the reply statement filed by the Government in the light of Annexure A8 judgment , the petitioners intend to file a review petition before the Tribunal. The learned counsel for the respondent, though, supported the impugned order of the Tribunal, further submitted that if this Court inclines to dispose of this original petition granting the aforesaid liberty to the petitioners, the legal contentions raised by the parties may be left open to be decided by the Tribunal. 8. While going through paragraph 8 of the reply statement dated 09.02.2023 filed by the petitioners before the Tribunal and the impugned order, we notice that the contentions raised by the petitioners in that reply statement that since respondent herein has not been granted time bound higher grade on completion of 8 years in the post of Treasurer as in the case of Annexure A8 judgment , no question of recovery arising from the respondent, was not considered by the Tribunal. Having considered the pleadings and materials on record and the submissions made at the Bar, as discussed above, we deem it appropriate to dispose of this original petition, without expressing anything on the legal and factual contentions raised by the parties, granting liberty to the petitioners to approach the Tribunal with a review petition as submitted by the learned Senior Government Pleader. In view of granting liberty to the petitioners to approach the Tribunal with a review petition, in order to protect the interest of the respondent, we make it clear that the interim order granted by this Court against recovery as per the order dated 03.04.2025 which was continued from time to time will be in force for a period of two weeks from the date of receipt of a copy of this judgment. It is also made clear that the petitioners are entitled to seek exemption from the operation of the period of limitation of the period they were bonafide prosecuting this Original Petition before this Court, i.e, from the date of presentation of this original petition on 14.03.2025 till the date of receipt of a certified copy of this judgment, while filing the review petition before the Tribunal.