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2014 DIGILAW 745 (KER)

T. P. Iqbal v. State of Kerala

2014-09-24

DAMA SESHADRI NAIDU

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JUDGMENT : Dama Seshadri Naidu, J. The petitioners, working as daily wage drivers in various Panchayats of Kozhikode District, filed the writ petition impugning Exts.P10, P11 and P12 Government Orders, which mandate that recruitment to any post in the Panchayat shall be from and out of Ext.P13 rank list. 2. When the matter was taken up for admission, the learned Government Pleader raised a jurisdictional objection. According to him, the issue stood concluded by the judgment of a learned Division Bench of this Court in Santhosh Kumar v. Director of Panchayats ( 2013 (2) KLT 548 ), wherein it is held that any service dispute concerning the employees of Grama Panchayats shall be adjudicated upon by the Kerala Administrative Tribunal before recourse could be taken to Article 226 of the Constitution of India. 3. In response there to, the learned counsel for the petitioner, having initially taken a day's time to address the issue, today made elaborate submissions on the maintainability of the writ petition, strenuously contending that the denial of jurisdiction of this Court under Article 226 of the Constitution of India is an exception, and to meet that exception, there ought to have been very strong statutory reasons. He has further submitted that there shall be no easy inference of conferment of jurisdiction on Administrative Tribunal, which is a creation of statute having its own limitations. The learned counsel for the petitioner has also made earnest efforts to distinguish Santhosh Kumar, which is referred to above. According to the learned counsel, the said judgment was rendered essentially by placing reliance on a Full Bench decision of the High Court of Andhra Pradesh in OM KR Dhankar v. State of Haryana [2012 (2) KLT SN 106 (AP)]. 4. The learned counsel has, in this regard, placed reliance on a decision of the Hon'ble Supreme Court in State of Karnataka & others v. Ameer Bi & others, [ 2007(11) SCC 681 ], making a specific reference to paragraph 18 thereof. He has contended that to be kept out of the jurisdictional purview of this Court, or in other words, to confer jurisdiction on the Kerala Administrative Tribunal concerning the service dispute, the employee ought to be holding a civil post. 5. The sum and substance of the submissions of the learned counsel for the petitioner is that Santhosh Kumar is per incuriam. 5. The sum and substance of the submissions of the learned counsel for the petitioner is that Santhosh Kumar is per incuriam. According to him, the said judgment was rendered in ignorance of certain Supreme Court decisions, which conclusively hold that unless a person holds a civil post in terms of Articles 309 and 311 of the Constitution of India, it is not permissible to deprive him of access to constitutional remedies by way of approach to the High Court under Article 226 of the Constitution of India. The learned counsel has also submitted that it is always open to a Bench of lesser strength to take a different view from that of the Bench of larger strength, once it is demonstrably held that the decision of a larger Bench is per incuriam, or if it has been rendered disregarding a particular statutory provision, illustratively. 6. Accordingly, the learned counsel has urged this Court either to adjudicate the issue on merits, or in the alternative, to place it before a Larger Bench so as to have the 'conflict' resolved on the maintainability of the writ petition involving the employee of the Grama Panchayat. 7. Heard the learned counsel for the petitioners, the learned Government Pleader and the learned Standing Counsel for the Kerala Public Service Commission, apart from perusing the record. 8. Since the learned counsel for the petitioner has laid much emphasis on Ameer Bi, it is desirable to examine at the threshold the ratio of the judgment, in which the facts are that the Central Government floated a scheme known as Integrated Child Development Service (ICDS) Programme in the year 1975. It is funded by the Central Government; its application, however, is in the hands of the respective States. Anganwadi workers are appointed from amongst the local inhabitants based on the selection made by a committee. When Anganwadi workers filed an application under Section 15 of the Administrative Tribunals Act, 1985 before the Karnataka State Administrative Tribunal, the application was held to be not maintainable. Correctness of the said decision came to be questioned. Eventually, When a larger Bench of the Tribunal held that the said application was maintainable on the premise that the Anganwadi workers hold a civil post, the State took the matter to Supreme Court. 9. Correctness of the said decision came to be questioned. Eventually, When a larger Bench of the Tribunal held that the said application was maintainable on the premise that the Anganwadi workers hold a civil post, the State took the matter to Supreme Court. 9. Examining the mode and manner of the appointment of the Anganwadi workers, as well as the functions they discharge, the Hon'ble Supreme Court has held that Anganwadi workers do not carry on any function of the State; they do not hold post under a statute, their posts are not created, and recruitment rules ordinarily applicable to the employees of the State are not applicable in their case. The State is not required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. No process of selection for the purpose of their appointment within the constitutional scheme exists. Thus, their Lordships have held that the Anganwadi workers do not hold any civil post. The fundamental aspect is whether the ratio of Ameer Bi has any application to the facts of the present case. 10. If we apply the tests enlisted in Ameer Bi to the employer of the petitioner, the Grama Panchayat, it, in fact, carries on the functions of the State, as a constitutionally recognised local body; the posts are created under a statute, ipso facto, the petitioner holds a post under a statute; the recruitment rules are very much applicable to the employees of the Grama Panchayat, which is required to comply with the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India; and finally, the process of selection and the appoint of the employees of the Grama Panchayat is under a strict statutory scheme. 11. Before proceeding further, it is appropriate to scan the statutory scheme governing the issue. Section 15 of the Administrative Tribunals Act, 1985, to the extent relevant, reads thus: "15. 11. Before proceeding further, it is appropriate to scan the statutory scheme governing the issue. Section 15 of the Administrative Tribunals Act, 1985, to the extent relevant, reads thus: "15. (1) Save as otherwise expressly provided in this Act, the Administrative Tribunal 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 civil 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 sub-section (1) of section 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 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.." 12. Further, Section 180 of the Kerala Panchayat Raj Act, to the extent relevant, reads thus: "180. (1) The officers and employees of the Panchayat, other than contingent employees shall be Government Servants. (2) The control of the officers of the Panchayat shall be with the Panchayat. (3) The Panchayat shall pay the officers and employees such salary and allowances as may from time to time, be fixed by the Government and shall also make such contributions towards their leave allowance, pension and provident fund, as may be required by the conditions of their service under the Government, to be made by them or on their behalf. (4) Subject to the provisions of this Act the Government shall, by rules made under the Kerala Public Services Act, 1968 (19 of 1968), regulate the classification, methods of recruitment, conditions of service, pay and allowances and discipline and conduct of the officers and the employees; and such rules may provide for the constitution of any class of officers or servants of Panchayats into a separate service either for the whole State or for each district. (5) Two or more Panchayats of the same level may, subject to such rules as may be prescribed, and shall, if so required by any authority empowered in this behalf, by rules appoint the same officer or employees to exercise or discharge any powers or duties of a similar nature for both or all of them" 13. In the light of the above statutory scheme, if we examine the precedents cited at the bar, it is clear that Santhosh Kumar (supra) amply demonstrates that the petitioner therein too was a servant in Grama Panchayath and on the issue of maintainability of the writ petition, a learned Division Bench of this Court has not only referred to the Full Bench decision of the High Court of Andhra Pradesh in OM KR Dhankar (supra), but also to a Full Bench decision of this Court in Balakrishnan Nair v. Ram Mohan Nair [ 1998(1) KLT 766 (FB)], apart from other decisions including those of the Hon'ble Supreme Court. On considering the issues in depth, their Lordships of the Division Bench have concluded that in terms of Section 15(1)(b) of the Administrative Tribunal Act, read with Section 180 of Panchayat Raj Act, 1985, the proper remedy for the servants of the Grama Panchayat concerning their service disputes is to approach the Kerala Administrative Tribunal. 14. It is further instructive to examine the ratio laid down in State of Gujarat v. Raman Lal Keshav Lal Soni, (1983) 2 SCC 33 , wherein the Hon'ble Supreme Court has examined the issue whether the members of the Gujarat Panchayat Service are Government servants. On that count, their Lordships have observed in para 28 of the said judgment thus: "First, we see that the duties which they are required to perform are in connection with those affairs of the State which are entrusted to the Panchayat Institutions, by the statute itself or by transfer by the Government under the statute. Next, the expenditure towards the pay and allowance of officers and servants of the panchayat service, serving for the time being under any panchayat has, no doubt, to be met by the panchayat from its own fund, but, as we have seen, the fund consists substantially of sums contributed or lent by the State Government and of the proceeds of any tax or fee imposed by or assigned to the panchayat under the Act. The imposition of a tax or a fee in the nature of a tax, as we know, is essentially a function of the State. So the salary and allowances of the servants and officers of the panchayat service are paid out of funds contributed or lent by the Government or raised by the discharge of an essential Governmental function. Secretaries of Gram and Nagar Panchayats are to be appointed in accordance with the Rules made by the Government, while the Taluqa Development Officer is to be the Secretary of the Taluqa Panchayat and the District Development Officer is to be the Secretary of the District Panchayat. Taluqa and District Development Officers are, of course, officers of the State service. Gram and Nagar Panchayats may have other servants, as may be determined under Section 203, but they have to be appointed by such authority as may be prescribed by the Government and their conditions of service shall be such as may be prescribed by the Government." 15. Finally, the Supreme Court has quoted with approval a judgment of the High Court of Gujarat in G.L. Shukla v. State of Gujarat, (ILR 1967 Guj. 560), which is as follows: "The conclusion which emerges from this discussion is that the panchayat service is a distinct and separate service set up for serving the Panchayat Organisation of the State and it is as much a civil service of the State as the State service. The State can have many services such as State service, police service, engineering service etc. and panchayat service is one of them. In the panchayat service, as in the State service, the State is the master and every officer or servant employed in the panchayat service is the servant of the State and not of the panchayat under which he may be serving for the time being. The panchayat service is one single service with the State as the master." 16. As could be seen, in Santhosh Kumar (supra) this Court has examined the provisions of the Kerala Panchayat Raj Act, 1994 and has observed thus: "Looking into the provisions of the Kerala Panchayat Raj Act, 1994, for short, "KPR Act", made after the afore-noted constitutional amendment; what surges with abundant relevance to the issue in hand is Chapter XVI, which deals with officers and employees of Panchayats. Sub-section (1) of Section 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 Section 179 so that the Panchayat concerned would also have a word in the matter to the extent statutorily provided. Now, going to Section 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-section (1) of Section 180 provides that officers and employees of the Panchayat, other than contingent employees, would be Government servants. Sub-section (4) of Section 180 provides that the Government shall, by rules made under the Kerala Public Services Act, 1968, for short, 'KPS Act', regulate the classification, methods of recruitment, conditions of service, pay and allowances 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 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 KPS 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 73rd amendment, there is no doubt that servants in the Panchayat/Municipal Common Service are Government servants and the position laid down by the Full Bench of this Court in Balakrishnan Nair's case ( 1998 (1) K.L.T. 766 (FB.) will continue to hold the field" 17. In the light of the authoritative pronouncement of law by the Hon'ble Supreme Court, as well as a learned Division Bench of this Court, I do not have any hesitation to hold that the petitioner, being an employee of the respondent Grama Panchayat, is amendable to the jurisdiction of the Kerala Administrative Tribunal. 18. In the light of the authoritative pronouncement of law by the Hon'ble Supreme Court, as well as a learned Division Bench of this Court, I do not have any hesitation to hold that the petitioner, being an employee of the respondent Grama Panchayat, is amendable to the jurisdiction of the Kerala Administrative Tribunal. 18. Since the judgments of this Court in Santhosh Kumar and Balakrishnan Nair are in tune with the judgment of the Hon'ble Supreme Court in Raman Lal Keshav Lal Soni, the principle of per incuriam, as has been canvassed by the learned counsel for the petitioner, need not be addressed. In the facts and circumstances, this Court holds that, in the face of section 15(1)(b) of the Administrative Tribunal Act, 1985, read with Section 180 of the Kerala Panchayat Raj Act, 1994, it is the Kerala Administrative Tribunal that has the necessary jurisdiction in relation to the service disputes of the employees of the Grama Panchayt, the petitioner being one among them, and accordingly dismisses the writ petition in limini on jurisdictional issue, of course, without going into the merits of the matter. No order as to costs.