Important points:
The decision to cancel the Second and Third Time Bound Higher Grades granted to the respondent was finally taken only as per Annexure A8 order dated 25.01.2018, which was much after the retirement of the respondent.

JUDGMENT :

T.R. RAVI, J.

1. The original petition has been filed by the State and its Officers who were respondents in O.A. No. 1365/2018 on the file of Kerala Administrative Tribunal, Thiruvananthapuram (hereinafter referred to as the Tribunal). The respondent was the applicant before the Tribunal and the application had been filed challenging the directions to recover amounts which had been paid to him as pay and allowances excessively, from the DCRG payable to him.

2. The respondent entered the service as Second Grade Draftsman on 19.7.1983. The First Time Bound Higher Grade was sanctioned to him on 19.7.1993 on completion of 10 years of service. Thereafter, the respondent was appointed as First Grade Draftsman in the departmental quota, by direct recruitment through the Public Service Commission, on 11.7.1996. The Second Time Bound Higher Grade was sanctioned to the respondent on 19.07.2001 on completion of 18 years of service, including the service rendered as Second Grade Draftsman. The Third Time Bound Higher Grade was sanctioned to the respondent on 18.07.2006 on completion of 23 years of service, again including the service rendered as Second Grade Draftsman.

3. An audit objection was raised regarding the grant of the Second and Third Time Bound Higher Grades on the reason that the respondent was appointed as First Grade Draftsman with effect from 11.07.1996 as per the advice of the Public Service Commission and hence the post of First Grade Draftsman should be treated as entry post for the further Time Bound Higher Grades. The respondent submitted his reply pointing out that he was appointed as First grade Draftsman as a departmental candidate and hence his entry post will remain as Second Grade Draftsman. It was also pointed out that even going by the audit objections there is no difference in the scale of increment and pay fixed. The respondent had challenged the inaction to take a decision on the audit objection by filing O.A. No. 3037 of 2013 before the Tribunal, which was disposed of by Annexure A4 order dated 28.01.2014 directing the Chief Engineer of Public Works Department to consider and pass orders on the representation submitted by the applicant, after hearing him. The respondent thereafter retired from service on 31.05.2015. The Chief Engineer as per Annexure A6 dated 19.03.2016, directed to cancel the Second and Third higher grades already granted to the respondent and to re-work the grant of higher grades, on the basis of completion of 10 years and 16 years of service with effect from the date on which the respondent was appointed as First Grade Draftsman. Annexure A6 was challenged by the respondent before the Tribunal and by Annexure A7 order dated 30.08.2017, the Tribunal allowed the original application and directed the Chief Engineer to pass fresh orders after hearing the respondent. It is thereafter that the Chief Engineer issued Annexure A8 order, wherein also the conclusion is the same as it was in Annexure A6. It is challenging Annexure A8 order that the respondent filed O.A. No. 1365 of 2018 before the Tribunal.

4. The Tribunal by Ext.P8 order allowed the original application and set aside the order directing recovery of amounts paid to the respondent, relying on the judgment of the Hon'ble Supreme Court in State of Punjab vs. Rafiq Masih (White Washer), (2015) 4 SCC 334. Aggrieved by the order Ext.P8, the State and its Officers have filed this original petition.

5. Heard Sri. B. Vinod, Senior Government Pleader on behalf of the petitioners and Sri. P. Nandakumar, learned counsel for the respondent.

6. According to the learned Senior Government Pleader, the reliance placed by the Tribunal on the judgment in Rafiq Masih (supra) was not legally valid and the original petition ought to have been dismissed on the basis of the judgment of the Hon'ble Supreme Court in High Court of Haryana and Punjab vs. Jagdev Singh, AIR 2016 SC 3523, wherein the Hon'ble Supreme Court had held that the principles laid dow