Kerala High Court
M.S.Muraleedhara Warrier vs Travancore Devaswom Board on 18 June, 2025
2025:KER:44110
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 18TH DAY OF JUNE 2025 / 28TH JYAISHTA, 1947
WP(C) NO. 16811 OF 2021
PETITIONER:
M.S.MURALEEDHARA WARRIER
AGED 56 YEARS
S/O. G.SANKARA WARRIER, RAGASUDHA, THIRUVANVANDOOR
P.O., CHENGANNUR-689109, (RETIRED HIGHER GRADE SUB
GROUP OFFICER, BUDHANOOR SUB GROUP, ARANMULA GROUP).
BY ADV SRI.S.SUBHASH CHAND
RESPONDENTS:
1 TRAVANCORE DEVASWOM BOARD,
OFFICE OF THE TRAVANCORE DEVASWOM BOARD, DEVASWOM
BUILDING, NANTHANCODE, THIRUVANANTHAPURAM-695003,
REPRESENTED BY ITS SECRETARY.
2 THE DEVASWOM COMMISSIONER,
TRAVANCORE DEVASWOM BOARD, OFFICE OF THE DEVASWOM
COMMISSIONER, DEVASWOM BUILDINGS, NANTHANCODE,
THIRUVANANTHAPURAM-695003
3 THE ASSISTANT DEVASWOM COMMISSIONER,
OFFICE OF THE ASSISTANT DEVASWOM COMMISSIONER,
TRAVANCORE DEVASWOM BOARD, ARANMULA, PATHANAMTHITTA-
689533.
4 THE CHIEF ENGINEER,
TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEAD
QUARTERS, DEVASWOM BUILDINGS, NANTHANCODE,
THIRUVANANTHAPURAM-695003.
5 THE JOINT DIRECTOR,
KERALA STATE AUDIT DEPARTMENT (KERALA STATE LOCAL FUND
AUDIT), DIRECTORATE OF LOCAL FUND AUDIT, 4TH FLOOR,
VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.
WP(C) No. 16811 of 2021 -2-
2025:KER:44110
6 THE ACCOUNTS OFFICER,
DEVASWOM ACCOUNTS OFFICE, DEVASWOM BUILDINGS,
NANTHANCODE, THIRUVANANTHAPURAM-695003.
BY ADVS.
SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD
GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No. 16811 of 2021 -3-
2025:KER:44110
JUDGMENT
Dated this the 18th day of June, 2025 Above writ petition is filed challenging Ext.P14 order by the 1 st respondent and also to quash Exts.P17, P18 and P19 orders to the extent the same authorises deduction of an amount of Rs.1,91,414/- from the DCRG of the petitioner. Petitioner has also sought for other consequential reliefs.
2. Petitioner retired from service of the Travancore Devaswom Board as Higher Grade Sub Group Officer. Petitioner entered service as a temple employee on 20.05.1987. On completion of about eight years of service, under the specific percentage of quota available for temple employees, he was appointed by transfer as LD Clerk as per the provisions of Travancore Devaswom Board Low Paid Employee's appointment as Clerk/Sub Group Officer Rules, 1990. Petitioner joined duty on his posting as LD Clerk in Maramath Wing of the respondent Board. Petitioner submits that his appointment as LD Clerk in Maramath Department as per Ext.P1 was on account of a mistake on the part of the Devaswom Board, as he was not qualified to be posted in the Maramath Department. The contention raised by the petitioner is based on Rule 5 of Ext.P3 Rules which mandates the minimum qualification for appointment as Lower Division Clerk/Sub Group WP(C) No. 16811 of 2021 -4- 2025:KER:44110 Officer Grade II as pass in SSLC examination with Sub Group Officer Test /Devaswom Officer Test (new scheme) or Maramath Test as the case may be.
3. The case of the petitioner is that, as the petitioner does not posses the qualification of MT (Maramath Test) he ought not have been posted in Maramath Department. Thereupon on the request made by the petitioner he was transferred and posted as 2nd Grade Sub Group Officer in the Devaswom Wing as per Ext.P4 and one Parvathy D. Namboothiri was posted in the place of the petitioner in the Maramath Wing as she was qualified for getting post of LD Clerk in the Maramath Wing. On the basis of Ext.P4 order petitioner joined duty in the Devaswom Wing on 13.02.2015. Later petitioner was promoted as 1st Grade Senior Clerk with effect from 15.12.2016 and as Higher Grade Sub Group Officer (Head Clerk). Petitioner came to know that the period of service from 13.02.2015 to 13.12.2015 during which time he had served as LD Clerk in the Maramath Wing was not taken into consideration for any service benefit including seniority, contrary to the terms of Ext.P4 order, and as such he was treated as a new entrant in the cadre of 2 nd Grade Sub Group Officer with effect from 13.12.2015.
4. Petitioner submits that the stand taken is absolutely arbitrary because the same happened only because of his posting in WP(C) No. 16811 of 2021 -5- 2025:KER:44110 the Maramath Wing for which he was not qualified and has happened only due to the fault on the part of the Devaswom. Thereupon petitioner approached the authorities concerned seeking redressal of his grievances. By Ext.P7 order request of the petitioner for restoration of service benefit was rejected and also ordered recovery of one increment that was allegedly given erroneously. Aggrieved by Exts.P7, Ext.P8 appeal was preferred by the petitioner. Pursuant to the direction issued by this Court as per Ext.P9 judgment Ext.P10 order was issued on the appeal holding that the transfer of the petitioner from Maramath Wing to Devaswom Wing on 13.12.2015 was an inter-departmental transfer and therefore the petitioner should be deemed to have joined the Devaswom wing as a new entrant forfeiting the period for service from 13.12.2015 to 12.12.2015 in the Maramath wing.
5. Petitioner would submit that the said stand taken in Ext.P10 order in appeal was based on the proviso to Rule 27 (a) of the Kerala State and Subordinate Service Rules, 1958, and contended that the said Rules were not made applicable to Devaswom employees, and that this Court in Satheesh Kumar M. and Another v. The Travancore Devaswom Board and Others [2009 (2) KHC 127] held that until there is an incorporation or adoption by the Devaswom Board the provisions of KS & SSR, 1958 WP(C) No. 16811 of 2021 -6- 2025:KER:44110 cannot be adopted for determination of seniority of the Devaswom employees. Challenging Ext.P10 petitioner approached this Court filing WP(C) No.291 of 2021, and this Court by Ext.P13 judgment quashed Ext.P10 and directed reconsideration of the matter. Thereafter Ext.P14 was issued reiterating the stand taken in Ext.P10 order. In Ext.P14 order reference was made to Rule 8(1) of Ext.P11 Rules dealing with seniority, which mandates that seniority of a person in a service, class, category or grade shall be determined by the date of orders of his first appointment to such service, class, category or grade. But the petitioner would contend that the term service, category or grade mentioned in Rule 8 of Ext.P11 Rules will not take in inter departmental/ inter unit transfers, and that there is no Rule in the nature of Rule 27 A of KS & SSR, 1998 in Ext.P11 Rules, and in the absence of the same Ext.P14 order is absolutely illegal and unjust.
6. When the present writ petition came up for consideration on 13.08.2021 this Court proceeded to pass an interim order directing the respondents to disburse to the petitioner the admitted pensionary benefits pending disposal of the same. After his retirement from service, it was allegedly found that an error had occurred in the matter of granting of 10 years grade to the petitioner on 20.05.1997 and the said error was detected during WP(C) No. 16811 of 2021 -7- 2025:KER:44110 audit. Accordingly a liability of Rs.1,91,414/- was proposed to be recovered from his DCRG, being excess salary drawn from 20.05.1997 onwards. Later by Ext.P19, Devaswom Accounts Officer authorised payment of death cum retirement gratuity to the petitioner for an amount of Rs.8,11,654/- after deducting an amount of Rs.1,91,414/-. Petitioner submits that the said recovery towards excess pay made from the petitioner is against the judgment of the Apex Court in State of Punjab and Others v. Rafiq Masih (White Washer) [(2015) 4 SCC 334] and of the Division Bench judgment of this Court in State of Kerala and Others v. Vinod Kumar [2020 KHC 468]. It is aggrieved by the same that the petitioner has approached this Court.
7. A detailed counter affidavit has been filed by the 5 th respondent Joint Director of Kerala State Audit Department, Travancore Devaswom Board Audit, wherein it is specifically stated that, going by the Rules i.e. Ext.P3 Rules, only those who have passed SSLC with SGOT or DOT (new scheme) shall be considered for appointment as LDC/SGO in the Devaswom Wing and those with Maramath Test qualification alone shall be considered for appointment in the Maramath Wing, and therefore it can be inferred that the appointment of the petitioner in Maramath Wing is against the very Rule itself. It is further contended that the real dispute WP(C) No. 16811 of 2021 -8- 2025:KER:44110 arose due to anomaly created by the Board by appointing an unqualified man (the petitioner) in Maramath Division for the period from 13.02.2015 to 12.12.2015.
8. The 1st respondent Board has also filed filed a detailed counter affidavit, wherein on the strength of Rules 8 and 9 of Ext.P11 Rules it is contended that the seniority of a person in service, class, category or grade shall be determined from the date of order of the 1st appointment to such service, class category or grade. Reliance was also placed on Rule 8(3) which provides that no employee in a category of service shall be eligible for confirmation unless he has satisfactorily completed his probation in that category stipulated in the order of appointment. Therefore the seniority of the petitioner in Devaswom Department can be reckoned only from the date of the appointment in that Department, and he has to complete probation in that category i.e. Sub Group Officer Grade II in the Devaswom Department, and Parvathy D. Namboothiri in whose place the petitioner was appointed has also completed her probation in the Maramath Department, and the seniority has been reckoned only from the date of her order of appointment in that Department. Reliance was also placed on Rule 5 of Ext.P3 Rules which mandates that any person who has a qualification prescribed in Rule 5 can be appointed as a Lower Division Clerk/ Sub Group WP(C) No. 16811 of 2021 -9- 2025:KER:44110 Officer Grade II in accordance with the Rules, and since the petitioner has applied for mutual transfer he has to complete the probation in the transferred post and therefore the period from 13.02.2015 to 13.12.2015 cannot be reckoned for any service benefits including increment, seniority and promotion. Referring to Ext.P7 it is contended that recovery of the amount was ordered due to the erroneous recording of an excess increment in the service book and the mistake was found out immediately and ordered to be corrected as per Ext.P7.
9. I have considered the rival contentions on both sides.
10. The relevant Rule regarding qualification for appointment to the post of Lower Division Clerk/Sub Group Officer Grade II in respect of Low Paid Employees of the Travancore Devaswom Board is Rule 5 of Ext.P3. Rule 5 mandates that the minimum qualification for appointment as Lower Division Clerk/Sub Group Officer Grade II, shall be passed in SSLC with Sub Group Officer Test or DOT (new scheme) or MT as the case may be. It is admitted by both sides that there is no post of Sub Group Officer Grade II in the Maramath Wing and it is available only in the Devaswom wing. But there is post of Lower Division Clerk in both Devaswom Wing as well as the Maramath wing. The wording 'as the case may be' obtaining in Rule 5 of Ext.P3 assumes importance, as if appointments are to be made WP(C) No. 16811 of 2021 - 10 - 2025:KER:44110 to the post of Lower Division Clerk in the Maramath Wing qualification of MT (Maramath Test) is required. Admittedly, petitioner does not have the qualification of MT (Maramath Test), but he was appointed in the Maramath Wing. The said contention of the petitioner is supported by the 5th respondent Joint Director of the Kerala State Audit Department, Travancore Devaswom Board Audit in the counter affidavit wherein it is stated that going by the Rules only persons having SSLC SGO Test / DOT (new scheme) shall be considered for appointment as LDC/SGO to Devaswom Wing and only those with Maramath Test alone shall be considered for appointment in the Maramath Wing, and that the appointment of the petitioner in the Maramath Wing is against the Rules. It is further reiterated by the 5th respondent that the real dispute arose with the anomaly created by the Board by appointing an unqualified man, the petitioner, in Maramath Division for the period from 13.12.2015 to 12.12.2015. It is in the said circumstance a request was made by the petitioner for a posting to the Devaswom Wing which was granted as per Ext.P4. In view of the above stand taken by the 5th respondent in the counter affidavit that the appointment of the petitioner in the Maramath Wing without Maramath Test qualification was a mistake on the part of the Devaswom Board the petitioner cannot be held responsible for the same. Therefore the WP(C) No. 16811 of 2021 - 11 - 2025:KER:44110 stand of the Devaswom that the petitioner is not entitled for any service benefit for the period from 13.02.2015 to 12.12.2015 cannot be accepted. For a mistake on the part of the Board, the petitioner cannot be left to suffer. Further the period cannot be excluded relying on Rule 8(1) of Ext.P11 especially when they said Rules does not take in inter-departmental/ inter unit transfers and there is no Rule in the nature of Rule 27A of KS & SSR, 1998 in Ext.P11. In the above facts and circumstances the date of appointment should be treated as the date of appointment of the petitioner in the Maramath Wing on 13.02.2015.
11. The next question is regarding the recovery of an amount of Rs.1,99,414/- from the DCRG of the petitioner. A perusal of Ext.P17 order would reveal that the recovery is based on an anomaly occurred in the grant of Grade on completion of 10 years. Admittedly, petitioner entered service on 25.10.1987 and 10 years was completed on 25.10.1997. Therefore the anomaly in the grant of Grade on completion of 10 years is sought to be recovered as per Ext.P17 which is dated 10.01.2022. Petitioner relies on the judgment in Rafiq Masih's case, wherein it is specifically held that recovery from employees, if excess payment has been made for a period in excess of five years before the order of recovery, cannot be made. The Division Bench of this Court in Vinod Kumar's case WP(C) No. 16811 of 2021 - 12 - 2025:KER:44110 cited supra held that even in a case where there is an undertaking by the employee that the excess payment will be refunded the conditions in Rafiq Masih's case will be made applicable in such cases also. Though the petitioner has specifically contended that the recovery made as per Ext.P11 is in respect of the grant of Grade on completion of 10 years of service there is absolutely no answer to the same in the counter affidavit. Therefore, relying on the judgment of this Court in Rafiq Masih's case as well as Vinod Kumar's case cited supra, I am of the view that the recovery now made from the DCRG of the petitioner is absolutely without any basis. The Devaswom Board was also not able to produce any document whereby the liability has been fixed and intimated to the petitioner before the retirement.
12. In view of the above facts and circumstances, I am of the opinion that petitioner is entitled to succeed. Therefore, Ext.P14 is set aside. Likewise Exts.P17, P18 and P19 orders to the extent it authorises deduction of an amount of Rs.1,91,414/- from the DCRG of the petitioner is quashed. There will be a direction to the respondent to release the amount of Rs.1,91,414/- recovered from the DCRG of the petitioner without any delay, at any rate within an outer limit of two months from the date of receipt of a copy of this judgment. There will be a further direction to respondents 1 to 3 to WP(C) No. 16811 of 2021 - 13 - 2025:KER:44110 sanction and disburse all service benefits to the petitioner including pension taking into account his period of service as LD Clerk in Maramath Wing from 13.02.2015 to 12.12.2015. The arrears of pay and allowances including pension shall be disbursed without any delay at any rate within an outer limit of three months from the date of receipt of a copy of this judgment.
The writ petition is disposed of as above.
Sd/-
VIJU ABRAHAM JUDGE sbk/-
WP(C) No. 16811 of 2021 - 14 -
2025:KER:44110 APPENDIX OF WP(C) 16811/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PROCEEDINGS BEARING NO.ROC 1045/87/EST. DATED 31.1.2015 OF RESPONDENT NO.2.
Exhibit P2 TRUE COPY OF THE OFFICE ORDER NO.382 DATED 112/2015 OF RESPONDENT NO.4.
Exhibit P3 TRUE COPY OF THE TRAVANCORE DEVASWOM BOARD LOW PAID EMPLOYEE'S APPOINTMENT AS CLERK/SUB GROUP OFFICER RULES, 1990.
Exhibit P4 TRUE COPY OF THE ABOVE ORDER BEARING ROC
NO.13669/15/EST. DATED 1.12.2015 OF
RESPONDENT NO.2.
Exhibit P5 TRUE COPY OF THE ORDER BEARING NO.ROC
11/16/EST.(A) DATED 14.2.2017 RESPONDENT NO.2.
Exhibit P6 TRUE COPY OF THE ORDER BEARING ROC NO.80/18/EST.(A) DATED 6.6.2018 PASSED BY RESPONDENT NO.2.
Exhibit P7 TRUE COPY OF ORDER BEARING ROC
NO.15417/2011/EST-C DATED 17.2.2020 OF
RESPONDENT NO.2.
Exhibit P8 TRUE COPY OF THE APPEAL DATED 6.6.2020
BEFORE RESPONDENT NO.1.
Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 8.7.2020
IN WP(C) NO.13701/2020 PASSED BY THIS
HON'BLE COURT.
Exhibit P10 TRUE COPY OF THE ORDER BEARING ROC
NO.6742/2020/EST.II DATED 2.11.2020
PASSED BY RESPONDENT NO.1.
Exhibit P11 TRUE COPY OF THE RULES REGARDING SERVICE
CONDITIONS OF DEVASWOM EMPLOYEES 1979
(TRAVANCORE).
Exhibit P12 TRUE COPY OF THE RULING REPORTED AS
SATHEESH KUMAR M. AND ANOTHER VS. THE
TRAVANCORE DEVASWOM BOARD AND OTHERS
(2009 (2) KHC 127).
Exhibit P13 TRUE COPY OF THE JUDGMENT DATED 19.3.2021
PASSED BY THIS HON'BLE COURT IN WP(C)
NO.291/2021 (J).
Exhibit P14 TRUE COPY OF THE BEARING ROC NO.
6742/20/EST-2 DATED 6.7.2021 PASSED BY
RESPONDENT NO.1.
WP(C) No. 16811 of 2021 - 15 -
2025:KER:44110
Exhibit P15 TRUE COPY OF THE REPLY DATED 30/10/2021
SUBMITTED BY THE PETITIONER BEFORE 3RD
RESPONDENT
Exhibit P16 TRUE COPY OF THE JUDGMENT DATED
03/03/2021 IN W.P(C) 12421/2020
Exhibit P17 TRUE COPY OF THE ORDER BEARING NO. ROC
02/10/P&SGRC DATED 10/01/2022 ISSUED BY
THE 2ND RESPONDENT
Exhibit P18 TRUE COPY OF THE ORDER BEARING NO.
8639/19/MISI DATED 21/12/2020 ISSUED BY
RESPONDENT NO.2
Exhibit P19 TRUE COPY OF THE ORDER BEARING DA NO.
2035/2022/ER DATED 25/03/2022 ISSUED BY
THE 6TH RESPONDENT
Exhibit P20 TRUE COPY OF THE RULING OF THIS
HONOURABLE COURT IN STATE OF KERALA AND
OTHERS V. VINOD KUMAR (2020 KHC 468)
RESPONDENT EXHIBITS
Exhibit-R1(a) True copy of the joint request for mutual
transfer dated 23.07.2015 submitted by
petitioner and Parvathi. D. Namboothiri
before the 1st respondent
Exhibit-R1(b) True copy of the order, ROC 10023/15/Est-
2 dated 01.10.2015 issued by 1st
respondent Board