Satheesan vs State of Kerala and Others

Sreedharan, J.—The short question that arises for consideration is whether a member of the Municipal Common Service is entitled to be considered as a Government servant.

The bare facts germane for decision are as follows: Petitioner is an Upper Division Clerk working in the Corporation of Kochi. The post of Upper Division Clerk is born on the Municipal Common Service. Petitioner applied for admission to the Part-time L.L.B. Course (Evening) for the academic year 1990-91. There are altogether 100 seats for the said, course in the Government Law College, Ernakulam. 30 per cent of the seats reserved for state Government employees. The seats in that quota is further divided among science graduates arid non-science graduates in the ratio of 1:1. Petitioner being a graduate in Commerce is entitled to be considered for a seat in the quota set apart for non-science graduates among the State Government employees. The Principal published a select list of eligible candidates for admission to the course. Petitioner having acquired 59.5 per cent marks in the B. Com. Examination was, it is alleged, entitled to be ranked as No. 2 in the open merit quota. But his name did not find a place in the list. On enquiry he was told that he, being a member of the Municipal Common Service is not entitled to be considered for the seat set apart for the State Government employees. The stand taken by the Principal was that the members of the Municipal Common Service cannot claim the seat in the 30 per cent quota set apart for the Government employees even-though the employees of the High Court, Public Service Commission and members of the Panchayat Common Service are entitled to be considered for the seat. This stand taken by the Principal is under challenge. Petitioner has, therefore, approached this Court inter alia praying for the issuance of a Writ of mandamus directing Respondents 1 to 3 to admit him to the First Year Part-time LL.B. Coarse (Evening) for the academic year 1990-91 in the merit quota set apart for the Government employees.

Notices of this petition were Served on the Principal and fourth Respondent, who got admission to the course in the seat set apart for Government employees and who secured the lowest marks among the candidates of that category, by special messenger. They have not cared to file any counter affidavit. Learned Government Pleader advances arguments supporting the stand taken by the Principal. Learned Government Pleader referred to the definition of ''Government Servant'' given in the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. It is in the following terms:

Government Servant means a person who is a member of a service, State or Subordinate, or who holds a civil post under the Kerala Government and includes any such person on foreign service or whose services are temporarily placed at the disposal of any other Government-Central or State-or a local or other authority and also any person in the service of any other Government. Central or State-or a local authority whose services are temporarily placed at the disposal of the Kerala Government.

As per this definition a person to be termed as Government Servant should belong to State Service or Subordinate Service under the Government. The term may take in those who are in foreign service or those whose services are temporarily placed at the disposal of other Government or local authority or other authority. Those employees of the Central Government or of local authorities whose services are temporarily placed at the disposal of the Government of Kerala will also come under the category of ''Government servant''. Apart from these types of officers, it is contended, none-can come within the category of ''Government Servant''. Petitioner is a member of the; Municipal Common Service. That service is not part of State service or subordinate service under the State. Members of the Municipal Common Service are not paid by the Government from its revenue. Benefits like Pay Revision etc. which are extended to the Government servants are not automatically extended to the members of the Municipal Common Service. They get those benefits only by specific authorisation given by the Governmtent to that effect. Employees in the Panchayat service have been treated as Government servants by specific order issued by the Government. In the case of members of the Municipal Common Service no such order directing them to be treated as Government servant has been issued by the Government. In these circumstances, it is urged that Petitioner, a member of the Municipal Common Service, is not entitled to be treated as a Government servant and consequently, not eligible for being considered for admission to the Part-time LL.B. Course (Evening).

Section 90 of the Kerala Municipal Corporations Act, 1961, authorises the Government to constitute the employees under the Municipal Councils and Corporations in the State into a Common Municipal Services for the State. 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 rules to regulate the recruitment and conditions of service of officers of the service of the Municipal Corporation. Similar provision is contained in Section 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 Rule 3 of the Municipal Common Service has been constituted. All the employees of the Municipal Councils and Corporations holding posts specified by the Government as on 1st November 1967 were made members of the service. A combined gradation list of those persons has to be prepared. That list is to be finalised by the Government. As per Rule 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 Anr. . Rule and casts liability on the local authority to disburse pay and allowance of the employees serving 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. Rules 15 to 31 of the Rules deal with punishment and appeals by the members of the common service. Rule 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 Rule 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. The Director can delegate the powers in respect of particular categories or all of the employees to any officer not below the rank of ''Commissioner. The Commissioner by himself will be entitled only to impose minor penalties mentioned in Rule 16. An employee can appeal to the Government against the order of suspension passed by the Director. Appeal lies to the Government against the order imposing a penalty as well. Under- Rule 30 of the Rules the Government can on their own motion or otherwise call for the records relating to punishment and review the same. Government have the power to confirm, modify or set aside the order. In exercise of the power of review the Government can impose any penalty or set aside the penalty imposed by the subordinate authority, reduce the same and confirm or enhance the penalties imposed on the employee. This power of review of the Government can be delegated by it to the Director as well. Vigilance Division of the Government have jurisdiction over the employees under the Municipal Common Service for the purpose of surprise Visit and other anti-corruption enquiries. These provisions show that the power of Government is all pervasive.

Section 203 of the Gujarat Panchayats Act allowed the State to constitute a Panchayat Service in connection with the affairs, of the Panchayats in the State. The question whether the members of the panchayat service constituted as per the said provision can be considered as members of the civil service of the State and consequently Government servant, came up for consideration before the Supreme Court in Mathuradas Mohanlal Kedia v. S.D. Munshaw AIR 1981 S.C. 53 and State of Gujarat and Another Vs. Raman Lal Keshav Lal Soni and Others, . The Constitution Bench of the Supreme Court in the above mentioned cases took the view that Panchayat Service constituted under the Panchayats Act is a civil service of the State of Gujarat. According to Their Lordships, the true test for determination of the question whether a person is holding civil post or is a member of the civil service is the .existence of a relationship of master and servant between the State and the person holding the post under it. The existence of such relationship depends upon the right of the State to select and appoint the holder of the post, and its right to suspend and dismiss him. In paragraph 27 of the 2nd decision, State of Gujarat and Another Vs. Raman Lal Keshav Lal Soni and Others, , Their Lordships after examining all the previous decisions observed:

We have to first consider the question whether the members of the Gujarat Panchayats Service are Government servants. Earlier we have already said enough to indicate our view that they are Government servants. We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee''s manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not.

On going through the provisions of the Municipal Common Service Rules, it is evident that the members of the service are appointed by the Government through the Public Service Commission, they are transferred from one local authority to Anr. by the Government, their salary is fixed by the Government to be paid by the local authority in terms of that fixation and Government are their final disciplinary authority. It is true that they are being paid from the funds of the local authority. Whether this payment of salary may by the local authority to members of the common'' service is sufficient to treat them as not Government servants? According to me, this fact will not terminate the master and servant relationship between the Government and the members of the Municipal Common Service. The fact that the members of the common service receive salary and allowances from out of the funds of the local authority and not from the funds of the Government during their tenure would make no difference when the question as to whether they are in the service of the Government is answered. Members of the service are appointed by the Government to perform the functions as envisaged by the Act and the Rules framed thereunder. Though the members of the common service are to certain limited extent subject to the general control of the local authority, their entire disciplinary control and conditions of service are such as are prescribed by the Government. Payment of their salary out of the funds of the local authority does not alter their status as Government employee vide Coal Mines Provident Fund Commissioner Vs. Ramesh Chander Jha,

Members of the staff of the High Court are appointed by Chief Justice in accordance with the rules governing the service. Chief Justice is the disciplinary authority. The power of dismissal of a member of the staff of the High Court vests in the Chief Justice. Even in such situation, the Supreme Court has observed that officers and members of the staff attached to a High Court clearly fall within the phrase, persons appointed to public service and posts in connection with the affairs of the State and also that a person in the High Court service is a member of the civil service of the State. Vide Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court, . It is conceded before me by the learned Government Pleader that members of the High Court are entitled to be considered for admission to the Part-time L.L.B. Course (Evening) as Government servants.

The above discussions lead to the conclusion that the members of the Kerala Municipal Common Service are holding posts in the civil service of the State. They are, thus, entitled to be treated as Government servants. Petitioner, thus, being a member of the Government service, is entitled to be considered for selection to the admission of Part-time LL.B. Course (Evening) for the academic year 1990-91. Respondents 1 to 3 are, therefore, directed to consider his claim for admission depending on the marks obtained by him in the B. Com. Degree Examination.

The Original Petition is allowed in the above terms.