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Kerala High Court · body

2012 DIGILAW 34 (KER)

Minimol v. Director of Municipalities

2012-01-06

K.SURENDRA MOHAN

body2012
Judgment : 1. These two Writ Petitions are posted before me for the reason that the Registry has declined to number them. According to the Registry, these Writ petitions are to be filed before the Kerala Administrative Tribunal and not before this Court. In view of Notification No.A1 1649/2011 dated 21.12.2011, constituting the Kerala Administrative Tribunal w.e.f. 22.12.2011, the Registry has notified that cases falling within the jurisdiction of said Tribunal would not be entertained by this Court. Therefore, the Registry, disputed the stand that this Court lacked jurisdiction and requested that the matters be posted before the bench. Accordingly, these cases are posted before me and have been heard by me today. 2. According to Sri. M.P. Ashok Kumar, counsel for the petitioner in ZWPC No: 2/2012, the petitioner in the said Writ Petition is working as a Health Inspector Grade II in the Palakkad Municipality and is an employee of the Municipality. His salary is paid by the Municipality. His appointing authority as well as disciplinary authority is the Municipality. Therefore it is contended that the subject matter of the said Writ Petition does not relate to service under the State. 3. According to Sri. Elvin Peter P.J., counsel for the petitioner in ZWPC No.3/2012, the petitioner is a Revenue Inspector in the Cochin Corporation. Her salary is paid by the Corporation and she is part of the Municipal Common Service, which is not a service under the Government. Therefore, the counsel in both the cases contend that the above Writ Petitions can be entertained by this Court. 4. My attention has been drawn by the Registry to an order dated 30.12.2011, passed by a learned single Judge of this Court in ZWPC Nos: 374/2011. As per the said judgment, a matter relating to the service of an Assistant Engineer, Cheruppulasseri/Vellinezhi Grama Panchayat, in Palakkad District, was directed to be transferred to the Kerala Administrative Tribunal on an interpretation of the relevant provisions of the Administrative Tribunals Act, 1985. 5. However, a reading of the judgment shows that the petitioners in those cases were not employees of any Municipality, but were employees under the Local Self Government Department, Government Secretariat, Thiruvananthapuram. Therefore, this Court has held that said employees are Government Servants. Consequently, it is held that disputes relating to their service would have to be resolved by the Kerala Administrative Tribunal. Therefore, this Court has held that said employees are Government Servants. Consequently, it is held that disputes relating to their service would have to be resolved by the Kerala Administrative Tribunal. The above being the position, the said decision can have no application to persons who are part of the Municipal Common Service. However, my attention has been drawn to the decision in Satheesan v. State of Kerala (1990 (2) KLT 705), wherein it has been held that members of the Kerala Municipal Common Service are holding posts in the Civil Service of the State. In view of the above decision of this Court, the counsel in these, cases were asked to make their submissions regarding the applicability of the dictum thereof to these cases. 6. According to the counsel for the petitioners, the decision of this Court, referred to above, is dated 15.10.1990. A reading of paragraph 4 of the judgment which contains the reasoning shows that the said case related to the Municipal Common Service constituted under S.90 of the Kerala Municipal Corporations Act 1961. It is contended by the counsel that the said Act has been repealed. Further, subsequent to the decision in Satheesan v. State of Kerala, the Constitution itself has been amended, Article 243 has been incorporated and the organizational set up of the Corporations, Municipalities and Panchayat have been drastically altered and restructured giving them greater autonomy and independence. Thereafter, in exercise of the power conferred by the said constitutional provisions, the Kerala Municipality Act, 1994 has been enacted, giving effect to the mandate of the constitution. It is under the new Municipality Act that the present Municipal Common Service has been constituted. Under the present set up, the appointing authority as well as the disciplinary authority of the petitioners in these Writ Petitions are the Secretary and Chairman of the respective Municipalities. Their salaries are also paid by the local authority and not by the Government. Therefore, it is contended that in the altered structural scenario, the decision reported in Satheesan v. State of Kerala (1990 (2) KLT 705) has no application and that the members of the Government Service. Therefore, the counsel seek the issue of appropriate directions to numbers the Writ Petitions and to post them for admission. 7. I have heard the counsel for the respective parties at length. Therefore, the counsel seek the issue of appropriate directions to numbers the Writ Petitions and to post them for admission. 7. I have heard the counsel for the respective parties at length. I have also considered the contentions of the counsel for the petitioners as well as the learned Govt. Pleader. As rightly pointed out by the counsel for the petitioners, Part IX and IX A of the Constitution have been incorporated by the Constitution (Seventy-third) Amendment of 1992. Part IX A that concerns Municipalities, was brought into force w.e.f. 01.06.1993. Art. 243Q provides for the constitution of Municipal Councils and Municipal Corporations. Article 243W deals with the powers, authorities and responsibilities of Municipalities. As per the said provision, the Municipalities are to be endowed with such powers and authority as may be necessary to enable them to function as institutions of self Government. Independence of such authorities also have to be ensured by conferring on them the power to levy and collect taxes. It is true that under Art.243W, it is the State Government that has to pass necessary laws conferring such authority on them. It is in exercise of such power that the Municipalities Act, 1994, has been enacted. 8. Section 2(21) defines ‘local authority’ to mean a Municipalities constituted under S.4 of the Act. S. 222 provides for the establishment of a Common Municipal Service. Sub-s.(1) of the said provision reads as under: “222. Constitution of a common municipal service.-(1) The Government may, subject to such rules as may be prescribed, constitute a common municipal service for the employees under the service of the Municipalities in the State and regular recruitment and conditions of service of the employees of the Municipalities.” 9. The above provision confers power on the Government to constitute a Common Municipal Service for the “employees under the service of the Municipalities in the State” and regular the recruitment and conditions of service of the employees of the Municipalities. The above provision provides that the Common Municipal Service is to be constituted for the employees under the service of the Municipal Service is to be constituted for the employees under the service of the Municipalities in the State. Sub-ss.(2) to 9 deal with the powers of control over the said employees. The power to sanction leave and the power to impose minor penalties are vested in the Secretary and the Municipal Council respectively. Sub-ss.(2) to 9 deal with the powers of control over the said employees. The power to sanction leave and the power to impose minor penalties are vested in the Secretary and the Municipal Council respectively. Of course, a right of appeal is provided to the Government. 10. Sections 223 and 224 read as follows: “223. Creation of posts under Municipalities.-(1) No post in the service of a Municipalities shall be created except with the previous sanction of the Government. (2) While according sanction under sub-section (1) the Government shall give due regard to the necessity and financial soundness of the Municipality.” “224. Appointing Authorities.-(1) The Council shall be the appointing authority in respect of the contingent posts in the Municipal Service and appointment orders in respect of them shall be issued by the Secretary, with the approval of the Council. (2) The Government or the officer authorised by them in this behalf shall be the appointing authority in respect of all other posts whether they are included in the Municipal Common Service or not.” 11. As noticed above, the power conferred on the Government by S.222 is to constitute a Common Municipal Service for the “employees under the service of the Municipalities in the State” and regulate the recruitment and conditions of service of the employees of the Municipalities. Therefore, the Municipal Common Service is to be constituted for the employees in the service of the Municipalities. The power to regulate the recruitment and conditions of service of the employees of the Municipalities is also conferred on the Government. However, the use of the expression “Common Municipal Service” in contradistinction to “Government Service”, clearly indicates that both the expressions refer to distinct and separate services. The entire gamut of control on the Municipal Service is stipulated by sub-ss.(2) to (9) of S.222. As noticed above, the power to sanction leave as well as the power to impose minor penalties are vested in the Secretary and the Municipal Council respectively. There is a power of appeal and review available to the Government. However, the provisions show that the employees of the Municipalities are under the control and supervision of the Municipalities themselves. The posts are to be created by the Municipality, but such creation can be only with previous sanction of the Government, as stipulated by S.223 reproduced above. There is a power of appeal and review available to the Government. However, the provisions show that the employees of the Municipalities are under the control and supervision of the Municipalities themselves. The posts are to be created by the Municipality, but such creation can be only with previous sanction of the Government, as stipulated by S.223 reproduced above. The appointing authority in respect of contingent posts in the Municipality is the Council of the Municipality. The Officer authorized by the Government shall be the appointing authority in respect of all other posts whether included in the Municipal Common Service or not. Certain other posts like that of the post of the Health Officer, the Engineer, the Electrical Engineer are also to be sanctioned by the Government. The above provisions show that the legislative intent was to keep the Municipal Common Service separate from the Government Service and not to treat the same as a par thereof. The above object becomes clearer on a reading of S.227 of the Act. 12. Section 227 of the Act contains special provisions regarding Government Servants lent to a Municipality, Sub-s.(1) confers power on the Government to transfer their officers and employees to the service of the Municipalities for the implementation of schemes, projects and plans entrusted or vested in the Municipality under the Act. Sub s. (1A) provides that the Government Officers and employees transferred to a Municipality under the Act. Sub-s. (1A) provides that the Government Officers and employees transferred to a Municipality under sub-s. (1) shall perform in addition to their normal functions, any other connected functions assigned to them by the Municipalities, “as if they are officers and employees of the Municipality”. By virtue of the above provision, on transfer to a Municipality, even a Government Servant would become subject to the control of the Municipality. Sub-s. (1B) makes the position clear beyond any doubt by providing that the officers and employees so transferred shall be under the control and supervision of the Municipality and the terms and conditions with regard to their services including disciplinary actions, shall continue to be same as that applicable to them under the Government subject to the other provisions of the Act. Sub-s.(3) limits the power of the Government to withdraw from the service of the Municipality without its consent except in case of emergency, a Government Servant employed by the Municipality. Sub-s.(3) limits the power of the Government to withdraw from the service of the Municipality without its consent except in case of emergency, a Government Servant employed by the Municipality. A mandatory requirement of three-months notice in writing in advance is also provided before such withdrawal. Even in the case of disciplinary proceedings, the Chairperson of the Municipality has been conferred the power to conduct an enquiry and to submit a report to the Government. The power to impose minor penalties, on a Government Servant who is employed by the Municipality, is also conferred on the Council as per S.227(6) of the Act. The overall supervision and control over the work of all officers and staff under the Municipality including the Government Officers and employees who are transferred to the Municipality including the Government Officers and employees who are transferred to the Municipality is vested in the Chairperson by S.229. Therefore, in the scheme of the present Municipality Act, it is the Municipality that exercises control and supervision over its employees. Further, the provision also maintains a clear distinction between Government employees and employees of the Municipality by enacting special conditions for the service of Government employees lent to the Municipality. 13. The other powers available to the Government to control the Municipality are contained in Chapter 5 of the Act.Ss.56, 57 and 58 confer power on the Government for such control by suspending or cancelling the resolutions of the Municipality or by issuing directions. The salary of its employees are paid by the Municipalities themselves from out of their income. The above provisions also do not warrant a conclusion that the Municipal Common Service is subject to any pervasive control by the Government, in contradistinction to the position noticed and relied upon by the judgment reported in Satheesan v State of Kerala (1990(2) KLT 705) in the following passage at page 707. “That section further states that constitution of the service must be as per the rules that may be prescribed by the Government in that behalf. The Government is given power to make files to regulate the recruitment and conditions of service of officers of the service of the Municipal Corporation. Similar provision is contained in S.91 of the Kerala Municipalities Act 1960. The Government is given power to make files to regulate the recruitment and conditions of service of officers of the service of the Municipal Corporation. Similar provision is contained in S.91 of the Kerala Municipalities Act 1960. In exercise of the authorities conferred by the provisions contained in these Acts, Government have issued the Kerala Municipal Common Service Rules, hereinafter referred to as ‘the Rules’ By R.3 the Municipal Common Service has been constituted. All the employees of the Municipal Councils and Corporations holding posts specified by the Government as on 01.11.1967 were made members of the service. A combined gradation list of those persons has to be prepared. That list is to be finalized by the Government. As per R.4 Government or Director of Municipalities or any officer authorised by the Government may transfer an employee holding any post in the common service from one local authority to another. R.5 casts liability on the local authority to disburse ay and allowance of the employees service under it at such rates as may be fixed by the Government from time to time. The appointment to the service is through the Public Service Commission. The appointments are made by the Director of Municipalities, Rr.15 to 31 of the Rules deal with punishment and appeals by the members of the common service. R.16 (iv)(a) allows recovery from the pay of a member of the service whole or part of any pecuniary loss caused to the Government. The authority competent to impose any of the punishments mentioned in R.16 on an employee is the appointing authority. When it is conceded that the appointing authority is the Director of Municipalities as authorised by the Government, it follows that the disciplinary authority is also the Director.” 14. The above conditions of service relied upon by this Court to find that the Municipal Common Service is a part of the Government service is no longer in existence. The present rules, The Special Rules For The Kerala Municipal Common Service (Engineering And Town Planning Service), 2001, and The Kerala Municipal Common Service (Ministerial And Revenue Branch) Qualifications And Method of Appointment Rules, 2001, do not contain any provisions similar to those noticed by this Court. Therefore, there is no doubt that the said decision has no application to the present organizational set up in which the disputes in these Writ Petitions have arisen. Therefore, there is no doubt that the said decision has no application to the present organizational set up in which the disputes in these Writ Petitions have arisen. A learned Single Judge of this Court had occasion to consider the nature of the control exercised by the Government over the Municipalities under the provisions of the present Municipality Act. After referring to the various provisions of the Act, this Court has held as follows. “A reading of the aforesaid Section makes it clear that the power conferred on the Government is supervisory and is intended to satisfy itself that the local bodies as also offices functioning under the local bodies exercise their powers and discharge duties, in accordance with the provisions of the Municipality Act. S.56 does not confer power on the Government to issue whatever directions it would deem fit and proper even if those directions are in contraventions of the specific provisions in the Kerala Municipality Act. I fail to understand how the Government can issue a direction inconsistent with the scheme of the Act and argue that such directions are in exercise of the power to supervise or control the functions of the Municipality as enjoined by S.56 of the Act. The authority which has to supervise the functioning of the local body to see that they act consistent with the provision of law, is not expected to direct them to contravene the provisions of the Act.” I am in respectful agreement with the above dictum. 15. The jurisdiction, powers and authority of State Administrative Tribunals are contained S.15 of the Administrative Tribunals Act, 1985. 15. The jurisdiction, powers and authority of State Administrative Tribunals are contained S.15 of the Administrative Tribunals Act, 1985. Sub-ss.(1) & (2), which are the provisions relevant for the purposes resolving the present controversy read as follows: “Jurisdiction, powers and authority of State Administrative Tribunals-(1) Save as otherwise expressly provided in this Act, the Administrative Tribunals for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court) in relation to- (a) recruitment, and matters concerning recruitment, to any civil service of the State or to any post under the State; (b) all service matters concerning a person, (not being a person referred to in clause (c) of this sub-section or a member, person or civilian referred to in clause (b) of subsection (1) of S.14) appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or any local or other authority under the control of the State Government or of any corporation (or society) owned or controlled by the State Government; (c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation (or society) or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment. (2) The State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities and corporations (or societies) controlled or owned by the State Government: Provided that if the State Government considers is expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates my be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations (or societies).” 16. Sub clause (b) of sub-s (1) of S.15 mandates that all service matters concerning a person appointed to any Civil Service of the State or any Civil Post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any Corporation or Society owned or controlled by the State Government shall be decided by the State Tribunal. The expression ‘local authority’ cannot have a meaning different from that contained in S.2(21) of the Kerala Municipality Act. Therefore, the meaning of the expression, ‘local authority’, that is employed in the sub clauses as well as sub-s.(2) of S.15 have to be construed as referring to local authorities like the Municipalities, Corporations or Panchayats. In the case of such local authorities, it has been provided that the provisions of the Administrative Tribunals Act, 1985, would have to be specifically made applicable by the issue of a notification, to be issued by the State Government under sub-s.(2) of S.15. The Government Pleader on instructions submits that no notification as stipulated by sub-s. (2) of S.15 has been issued by the Government till date. In the above circumstances, it has to be held that the jurisdiction to entertain cases relating to service disputes of members of the Municipal Common Service is still available with this Court. For the foregoing reasons, the Registry is directed to number these Writ Petitions and post them for admission.