State of Kerala & Director, Directorate of Urban Affairs v. Sunil Kumar K. S. & Cochin Corporation

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA,** **1944** **OP(KAT) NO. 219 OF 2022** **AGAINST THE JUDGMENT IN OA 601/2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 AND 2 IN OA:** - 1 STATE OF KERALA SECRETARY, LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM , PIN – 695001 - 2 DIRECTOR DIRECTORATE OF URBAN AFFAIRS, THIRUVANANTHAPURAM, PIN - 695001 BY SRI.BIJOY CHANDRAN, GOVERNMENT PLEADER ## **RESPONDENTS/APPLICANT AND 3RD RESPONDENT IN OA:** 1 SUNIL KUMAR. K. S. S/O K.S.SADANANDAN, AGED 41 YEARS, WORKING AS SENIOR CLERK, COCHIN CORPORATION, ERNAKILAM-602011, RESIDING AT KOCHERUKKENVELI, AVALOOKUNNU, P.P, KALATH, ALAPPUZHA, KERALA, PIN – 688006 OP(KAT) 219 of 2022 2 2 COCHIN CORPORATION REPRESENTED BY ITS SECRETARY, ERNAKULAM, PIN - 602011 BY ADVS. MOHAMMED AL RAFI S K B ARUNKUMAR Advocate SC: ADV K. JANARDHANA SENOY **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT) 219 of 2022 3 ## **A.K. JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ** **…................................................... OP(KAT) No.219 of 2022** -------------------------------------------- **Dated this the 5[th] day of January, 2023** ## **JUDGMENT** ## A.K.Jayasankaran Nambiar. J. The State is the petitioner in this original petition, aggrieved by the order dated 22.10.2021 of the Kerala Administrative Tribunal in OA No.601 of 2019. 2. The brief facts necessary for disposal of the original petition are as follows: The applicant before the Tribunal, Sri.Sunilkumar.K.S. had joined the Municipal Common Service as Lower Division Clerk with effect from 4.11.2011. He was subsequently promoted as Upper Division Clerk in the same service with effect from 20.04.2017. It would appear that prior to his taking up the assignment in the Municipal Common Service in 2011 he had worked in the service of the Government for three spells, namely, 28.4.2004 to OP(KAT) 219 of 2022 4 29.4.2005 as Fireman Trainee, 30.04.2005 to 19.03.2010 as Fireman and 20.03.2010 to 4.11.2011 as Village Extension Officer Grade II in the Rural Development Department. Anticipating that his prior Government service would not be reckoned along with his Municipal Common Service for the purposes of various service benefits, he preferred a representation before the Government, which was rejected by Annexure A1 order dated 11.01.2019 stating that only those who joined the Municipal Common Service prior to 12.09.2006 were entitled to reckon their prior Government service for the purposes of service benefits. It was the said rejection order that was impugned by the applicant before the Tribunal in the original application aforementioned. 3. Before the Tribunal, the stand taken by the State Government in support of the impugned order was that it was only by the Government Order dated 13.07.1987 that the Government had permitted the reckoning of prior Government service rendered by an employee who had since joined the Municipal Common Service for service benefits, and the said benefit continued up to 12.09.2006 on which date the said permission was cancelled by another Government Order. It was therefore contended that in as much as the applicant before the OP(KAT) 219 of 2022 5 Tribunal had joined the Municipal Common Service only after 12.9.2006, he was not entitled to reckon the prior Government service for the purposes of service benefits. 4. The Tribunal that considered the matter found that even _de hors_ the two Government Orders referred above the judgment of a Division Bench of this in **Santhosh Kumar v. Director of Panchayats** [2013 (2) KLT 548] had already considered the issue as to whether servants in Panchayat/Municipal Common Service are Government servants for the purposes of determining the jurisdiction of the State Administrative Tribunal to entertain cases relating to service disputes of Panchayat employees. In the said judgment the Division Bench had, after examining the provisions of the Constitution pursuant to the 73[rd] and 74[th] amendments thereto and also the provisions of the Panchayat Raj Act and the Municipalities Act opined that there was no justification for a differential treatment of employees in the Panchayat service and employees in the Municipal Common Service. It was thereafter found that both the categories of employees would merit categorization as Government servants for the purposes of conferring jurisdiction on the State Administrative Tribunal to entertain cases relating to service disputes of such employees. OP(KAT) 219 of 2022 6 The Tribunal further found that the said judgment of the Division Bench had been followed thereafter by another Division Bench in Annexure A10 judgment that is produced along with the OP(KAT). It is significant that the latter judgment pertains to an employee who had left Government service to join the Municipal Common Service. The Tribunal by relying on the said judgment found that the stand of the State Government based on the Government Orders referred above was legally untenable and proceeded to allow the original application by setting aside the impugned Government Order declining the applicant's request for protection of pay and declaring that the applicant was entitled to all service benefits including protection of salary and other benefits available to him. 5. Before us, while it is the submission of Sri.Bijoy Chandran, the learned Government Pleader appearing on behalf of the petitioners, that the Government Orders dated 13.7.1987 and 12.9.2006 clearly indicated that the benefit of reckoning prior Government service along with the Municipal Common Service to which an employee was subsequently admitted, was available only for those who had joined Municipal Common Service between 13.7.1987 and 12.9.2006, we find that the said contention cannot come to the aid of the petitioners in view of the judgments of the OP(KAT) 219 of 2022 7 Division Bench of this Court that were relied upon by the Tribunal. It is of particular significance that the Division Bench of this Court in **Santhosh Kumar** (supra) had observed that there could not be a distinction between Panchayat Common Service and Municipal Common Service after the 73[rd] and 74[th] amendments to the Constitution since the constitutional provisions thereafter did not envisage a distinction between the two categories of service. The observations at paragraph 5, 6 and 7 of the said judgment are relevant, and read as follows:- “5. Noticing the statutes of the Grama Panchayats and the Municipalities following the 73[rd] and 74[th] amendments to the Constitution and examining the provisions, including those in Parts IX and IX-A brought into the Constitution by those amendments, we may at once state that there is no provisions in the Vonstitution conceiving or requiring separate service or staff for the panchayats or municipalities. We say so, particularly because, there is no provision in the Constitution authorizing the making of any law for creation of any such service or for appointing any staff to the panchayats or the municipalities. In contradistinction, we see that the provision contained in Art.318 under Chapter II relating to the Public Service Commission, specifically authorise the making of regulation as to conditions of service of the staff of such Commission. We make this observation at this point of time since there appears to be abundant indication that the constitutional provisions do not envision service for the panchayats and municipalities to be independent of OP(KAT) 219 of 2022 8 the overnment and the public services. 6. We, therefore, proceed to examine the manner in which the Panchayats could employ servants or staff. Adverting to Part IX of the Constitution, which deals with the Panchayats, it can be seen that the composition of Panchayats, the power and functions of Grama Sabha, and such other matters are required to be covered by legislation to be made by the respective State legislatures. Looking into the provisions of the Kerala Panchayat Raj Act,1994, for short , “KPR Act”, made after the aforenoted constitutional amendment; what surges with abundant relevance to the issue in hand is Chapter XVI, which deals with officers and employees of Panchayats. Sub-s.(1) of S.179 of that Act provides for appointment of a Secretary for a Panchayat, who shall be a government servant. Different aspects touching the Secretary of the Panchayat are cohesively provided in S.179 so that the Panchayat concerned would also have a word in the matter to the extent statutorily provided. Now , going to S.180, it can be seen that the said statutory provision makes it explicitly clear that all persons serving the Panchayat would be government servants. We say so because, sub-s.(1) of S.180 provides that officers and employees of the Panchayat, other than contingent employees, would be government servants. Sub-s.(4) of S.180 provides that the Government shall, by rules made under Kerala Public Services Act, 1968, for short ‘KPS Act’, regulate the classification, methods of recruitment, conditions of service, pay and allowance and discipline and conduct of officers and employees. Such rules shall be subject to the provisions of the KPR Act. Those rules may provide for the constitution of any class of officers or servants of OP(KAT) 219 of 2022 9 panchayats into a separate service either for the whole State or for each district. This provision enjoins the making and classification of service to provide for officers and servants for the different panchayats. It also categorically shows that the rules are to be made under the K.P.S Act. Necessarily, therefore, it imports into the spectrum, Articles 309 and 311 of the Constitution. This being the present statutory scenario in the backdrop of the constitutional position available after the 73[rd] amendment, there is no doubt that servants in the Panchayt/Muncipal Common Service are government servants and the position laid down by the Full Bench of this Court in _Balakrishnan Nair (supra)_ will continue to hold the field . Obviously, this does not relate to the contingent servants because the contingent servants are not treated as government servants. We, therefore, completely agree with the views expressed in the reference order by the Hon’ble Mr.Justice P.N. Ravindran. 7. For the aforesaid reasons, the reference made by the learned single Judge, to the extent it relates to the Panchayat and Municipal employees, to whichever category they belong, other than the contingent employees, is answered in the affirmative stating that matters relating to their conditions of service etc. are governed by S.15(1)(b) of the Administrative Tribunal Act ,1985.” It was following the said judgment that in Annexure A10 judgment the subsequent Division Bench found as follows:- In our view, notwithstanding any provision contained in the Kerala Municipality Act, the fact of the matter remains that the OP(KAT) 219 of 2022 10 servants in the Panchayat/Municipal Common Service are Government servants. If that were so, it makes no difference whether the petitioner goes to the Municipal Common Service or to any other Department of Government. Not only that, selection and recruitment being made towards various departments under a single notification, it necessarily shows that there cannot be any classification amounting to hostile discrimination based on the channel to which a particular candidate would be advised by the Public Service Commission. Therefore, whatever benefits the petitioner would carry with him for having served as Process Server or in any other category in the Judicial Department in the Government of Kerala, would be with him, in tact, wherever he goes pursuant to the advice of the PSC following the selection based on Ext.P1 notification. It is so declared. In view of this declaration, the petitioner will be entitled to all benefits on such appointment, including protection of salary and other benefits as may be available. It is so directed. We see that a vacancy in the Municipal Common Service has been kept in tact on the strength of the interim order. That will be permitted to be filled up on the advice made and the petitioner would enjoy the benefits as declared. To pave way for this, the order impugned in the Original Petition is vacated and the transferred application and this Original Petition will stand ordered in terms of the declaration and directions issued above. It is not in dispute that the judgments aforementioned have not been carried in appeal by the Government in further proceedings and hence the said judgments have attained finality. It is also significant that the Division Bench judgment in **Santhosh Kumar** (supra) was rendered on a reference made by a learned single Judge on the specific issue as to whether the two categories of service are the same and could be treated as Government service for the purpose the Administrative Tribunal Act, 1985. We are therefore of the view that the impugned order of the Tribunal does not call for any interference in this OP(KAT) notwithstanding the Government Orders relied upon by the petitioners. OP(KAT) 219 of 2022 11 The petitioners shall ensure that the consequential benefits flowing to the applicant based on the judgment of the Tribunal as well as this judgment are paid to the applicant within an outer time limit of two months from the date of receipt of a copy of this judgment. The original petition fails and is accordingly dismissed. ## **Sd/- A.K. JAYASANKARAN NAMBIAR, JUDGE** **Sd/- MOHAMMED NIAS C.P. JUDGE** dlk/05.01.2023 OP(KAT) 219 of 2022 12 ## **APPENDIX OF OP(KAT) 219/2022** ## **PETITIONERS ANNEXURES** |Annexure A1|TRUE COPY OF THE THE ORDER NO. EU-2-| |---|---| ||322/2018-LSGD DATED 11.01.2019 WITH| ||TYPED COPY| |Annexure A2|TRUE COPY OF THE POSTING ORDER| ||NO.9002/03/A1 DATED 07.04.2004 ISSUED| ||FROM THE OFFICE OF THE DIVISIONAL| ||OFFICER, FIRE & RESCUE SERVICES, CENTRAL| ||DIVISION ERNAKULAM WITH TYPED COPY| |Annexure A3|TRUE COPY OF THE RELIEVING ORDER NO.A1-| ||1357/10 DATED 19.03.2010, ISSUED FROM| ||THE OFFICE OF THE ASSISTANT DIVISIONAL| ||OFFICER, FIRE & RESCUE SERVICES,| ||ALAPPUZHA| |Annexure A4|TRUE COPY OF THE PROCEEDINGS| ||NO.3234/2009/RD1 DATED 08.03.2010 OF THE| ||PROJECT DIRECTOR, POVERTY ALLLEVIATION| ||UNIT, MALAPPURAM| |Annexure A5|TRUE COPY OF PROCEEDINGS NO.| ||R.D1.3509/2011 DATED 03.11.2011 ISSUED| ||BY THE PROJECT DIRECTOR, POVERTY| ||ALLEVIATION UNIT, MALAPPURAM| |Annexure A6|TRUE COPY OF ORDER NO.A-1566/2011 DATED| ||04.11.2011| |Annexure A7|TRUE COPY OF PROCEEDINGS NO.E7-| ||16666/09(10) DATED -/10/11 THE DIRECTOR| ||OF URBAN AFFAIRS| |Annexure A8|TRUE COPY OF REPRESENTATION SUBMITTED| ||BEFORE THE FIRST RESPONDENT DATED| ||11.04.2018| |Annexure A9|TRUE COPY OF ORDER G.O.| ||(MS)NO.256/17/LSGD DATED 21.12.2017| ||ISSUED BY THE FIRST RESPONDENT| |Annexure A9(A)|TRUE COPY OF ORDER DATED 08.08.2016| ||PASSED BY THIS HONOURABLE TRIBUNAL IN OA| ||NO.2273/2013| |Annexure A10|TRUE COPY OF ORDER OF THE DIVISION BENCH| OP(KAT) 219 of 2022 13 OF THE HONOURABLE HIGH COURT OF KERALA IN NIRISH KUMAR P.G VS. STATE OF KERALA IN OP(KAT)NO: 4373/2012 Annexure A11 TRUE COPY OF THE ORDER G.O(MS)NO.44/2016/LSGD DATED 01.03.2016, ISSUED BY THE FIRST RESPONDENT Annexure R2(a) TRUE COPY OF THE G.O(MS)NO. 211/2006/LSGD DATED 12.09.2006 WITH TYPED COPY Annexure R1(a) G.O(MS)NO.211/06/LSGD DATED 12.09.2006 WITH TYPED COPY - Annexure A12 TRUE COPY OF THE G.O(MS)NO.162/87/LSGD DATED 13/7/87 WITH TYPED COPY - Annexure A13 ZTRUE COPY OF G.O.(MS)NO.211/2006/LSGD DATED 12.09.2006 - Annexure A14 TRUE COPY OF THE ORDER DATED 30.07.2019 IN OA NO. 1006/2017(K.HARIKUMAR VS STATE OF KERALA AND OTHERS) OF THIS HON'BLE TRIBUNAL - Annexure A15 TRUE COPY OF G.O(MS)NO.61/2011/LSGD DATED 26/02/2011 BY WHICH GOVERNMENT ACCORDED SANCTION FOR THE INTEGRATIUON OF FIVE DEPARTMENTS TO FROM MUNICIPAL COMMOM SERVICE - Annexure A16 TRUE COPY OF G.O.(MS)NO.106/2020/LSGD DATED 17.07.2020 BY WHICH GOVERNMENT ISSUED ORDERS INTEGRATING FIVE DEPARTMENTS UNDER MUNICIPAL COMMON SERVICE - Annexure A17 TRUE COPY OF EXTRA ORDINARY GAZETTE NOTIFICATION NO.4904/LEG.C1/2019/LAW DATED 2/12/2019 BY WHICH THE GOVERNMENT AMENDED 1994 MUNICIPALITY ACT - Exhibit P1 TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION - Exhibit P2 REPLY STATEMENT FILED BY 2ND RESPONDENT Exhibit P3 REPLY STATEMENT FILED ON BEHALF OF OF THE FIRST RESPONDENT OP(KAT) 219 of 2022 14 |Exhibit P4|REJOINDER FILED BY THE APPLICANT AGAINST| |---|---| ||THE REPLY STATEMENT DATED 24.09.2020| ||FILED BY THE 1ST RESPONDENT| |Exhibit P5|ADDITIONAL REJOINDER FILED BY THE| ||APPLICANT AGAINST THE REPLY STATEMENT| ||DATED 24.09.2020 OF THE 1ST RESPONDENT| |Exhibit P6|TRUE COPY OF THE ORDER DATED 22.10.2021| ||IN OA 601/2019 OF HON'BLE TRIBUNAL|