[Cites 18, Cited by 0]
Kerala High Court
State Of Kerala,Represented By Its vs Rakesh.M on 5 February, 2026
Author: Anil K. Narendran
Bench: Anil K. Narendran
O.P.(KAT)No.145 of 2024 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
THURSDAY, THE 5TH DAY OF FEBRUARY 2026 / 16TH MAGHA, 1947
OP(KAT) NO. 145 OF 2024
AGAINST THE JUDGMENT DATED 05.10.2023 IN O.A. (EKM) NO.1474
OF 2019 OF KERALA ADMINISTRATIVE TRIBUNAL, ADDITIONAL BENCH,
ERNAKULAM
PETITIONERS/RESPONDENTS 1, 2 AND 4 IN O.A.:
1 STATE OF KERALA,
REPRESENTED BY ITS
SECRETARY TO GOVERNMENT,
LOCAL SELF-GOVERNMENT INSTITUTIONS DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DIRECTOR OF URBAN AFFAIRS,
THIRUVANANTHAPURAM, PIN - 695033
3 THE DISTRICT DEVELOPMENT OFFICER FOR SCHEDULED CASTES,
KASARGOD, PIN - 671123
BY ADV GOVERNMENT PLEADER
RESPONDENTS/APPLICANT AND 3RD RESPONDENT IN O.A.:
1 RAKESH.M.,
S/O M. RAMAN, AGED 35 YEARS,
RESIDING AT MANALIL HOUSE, KIZHAKKUMKARA,
AJANOOR P.O., ANANDASRAMAM VIA
KASARGOD DISTRICT - 671 531 PRESENTLY WORKING AS
OFFICE ATTENDANT, KANHANGAD MUNICIPALITY,
KANHANGAD P.O., KASARGOD DISTRICT
2 THE KANHANGAD MUNICIPALITY,
KANHANGAD P.O., KASARGOD DISTRICT,
O.P.(KAT)No.145 of 2024 2
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REPRESENTED BY ITS SECRETARY - 671315
BY ADV SRI.MURALI PALLATH
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 19.01.2026, THE COURT ON 05.02.2026 DELIVERED THE
FOLLOWING:
O.P.(KAT)No.145 of 2024 3
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JUDGMENT
Muralee Krishna S., J.
This original petition is filed by respondents 1, 2 and 4 in
O.A.(EKM)No.1474 of 2019, on the file of the Kerala
Administrative Tribunal, Additional Bench at Ernakulam (the
'Tribunal' for short), invoking the supervisory jurisdiction of this
Court under Article 227 of the Constitution of India, challenging
the order dated 05.10.2023, passed by the Tribunal in that original
application.
2. The 1st respondent-applicant filed O.A.(EKM)No.1474
of 2019 before the Tribunal under Section 19 of the Administrative
Tribunals Act, 1985, seeking the following reliefs;
"(i) Set aside the Annexure A1 order dated 27.04.2018
passed by the second respondent, so as to secure the ends
of justice.
(ii) Declare that the prior service of the applicant from
04.04.2012 to 16.12.2014 with the fourth respondent is
liable to be counted while fixing the pay and perquisites of
the applicant under the 2nd respondent.
(iii) Direct the 2nd respondent to fix the pay and perquisites
of the applicant under the 2nd respondent by counting the
prior service of the applicant under the 4th respondent for
the period between 04.04.2012 to 16.12.2014, so as to
secure the ends of justice."
3. The 1st respondent-applicant entered service as a
O.P.(KAT)No.145 of 2024 4
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Watchman, as per Annexure A2 proceedings dated 04.04.2012 of
the 3rd petitioner District Development Officer for Scheduled
Caste, Kasargod, under the pay scale of Rs.8500-13210 and was
posted at the Government Pre-Metric Hostel, Rajapuram of
Kasargod District. By Annexure A3 proceedings dated 29.08.2013
of the 3rd petitioner, the service of the 1st respondent-applicant
was regularised with effect from the forenoon of 04.04.2012.
Subsequently, the 1st respondent-applicant has been advised by
the District Officer of Kerala Public Service Commission, Kasargod,
for being appointed as Office Attendant under the Local Self
Government Institutions, Department of Government of Kerala,
and by the order dated 17.12.2014, the 1st respondent-applicant
was appointed as Office Attendant at the office of the Kanhangad
Municipality. Thereafter, by Annexure A4 proceedings dated
26.07.2016 of the Director of Municipalities, the appointment of
the 1st respondent-applicant was regularised. In the original
application, the 1st respondent-applicant pleaded that while fixing
the pay and increments under the Director of Municipalities, his
previous service as a watchman under the Scheduled Caste
Development Department was not considered by the Director of
Municipalities. The request made by the 1st respondent for the said
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purpose was not considered by the Director of Municipalities.
Being aggrieved, the 1st respondent-applicant previously
approached the Tribunal by preferring O.A.(EKM)No.2289 of 2017.
By Annexure A5 order dated 07.12.2017, the Tribunal disposed of
the said original application with a direction to the 2nd respondent
Kanhangad Municipality to forward the representations submitted
by the 1st respondent-applicant to the Director of Municipalities,
along with a report, if any, within a period of three weeks from the
date of receipt of a certified copy of that order. The Director of
Municipalities was further directed to take a decision on the same
within a further period of three months. Thereafter, the Director
of Municipalities vide Annexure A1 proceedings dated 27.04.2018
rejected the claim of the 1st respondent-applicant. Contending that
Annexure A1 order is arbitrary and illegal, the 1st respondent-
applicant filed the original application.
3.1. In the original application, on behalf of the 2nd
petitioner, the Director of Urban Affairs, a reply statement dated
23.01.2020 was filed, opposing the reliefs sought for, producing
therewith Exts.R2(a) and R2(b) documents. Paragraph 3 of that
reply statement reads thus;
"3. It is humbly submitted that the Annexure A1, dated
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27.04.2018, was issued by this respondent complying the
order issued by this Hon'ble Tribunal as per order dated
07.12.2017 in O.A.(EKM) No. 2289 of 2017, wherein the
claim of the applicant for counting the prior service of the
applicant for the purpose of pay and perquisites were
rejected. This rejection is based on
G.O(MS)No.211/2006/LSGD dated 12.09.2006, and as per
Government letter No. EU2/322/2018/LSGD dated
11.01.2019, which stipulates that reveals that only the
official who changed their services from Government service
to Municipal Service, prior to 12.09.2006 are eligible to get
the benefits of prior services and pay protection. True copy
of the aforesaid Government Order dated 12.09.2006 and
Government letter dated 11.01.2019 are produced herewith
and marked as Annexure R2(a) & (b). Hence the prior
services in SC Development Department of Sri.Rakhesh M
could not be considered with the services of the Municipal
Common Services."
3.2. On behalf of the 1st petitioner, a reply statement dated
13.06.2023 was filed in the original application, producing
therewith Annexures R1(a) and R1(b) documents. Paragraphs 4
and 5 of that reply statement read thus;
"4. The request of the petitioner is to count his earlier
service in Government service for fixing the salary in
Municipal Common service. Requests from many employees
had been received requesting to protect their earlier pay in
Government service to Municipal Common Service. As per
GO(MS) No.162/87/LAD dated 13.07.1987, the prior
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Government service used to reckon for pay protection in
Municipal Common service. In the common judgment dated
05.11.2005 in W.P.(C) No. 18153 of 2005 and 18268 of
2005, the Hon'ble Court has held that the petitioners in
those Writ Petitions were relieved from Government
department on their volition and got appointment in another
service. Unless there are statutory rules or Government
Orders permitting such persons also to get the benefit of
pay protection, such persons cannot claim for pay
protection. Based on the common judgment dated
05.11.2005 in W.P.(C)Nos. 18153 of 2005 and 18268 of
2005, Government cancelled the above Government orders
as per GO(MS) No.211/2006/LSGD dated 12.09.2006. True
copy of GO(MS) No.211/2006/LSGD dated 12.09.2006 is
produced herewith and marked as Annexure R1(a). In the
common judgment dated 05.11.2005 in W.P.(C) Nos. 18153
of 2005 and 18268 of 2005, the Hon'ble court has
specifically held that Municipal Common service is distinct
from the services in Government Departments. True copy of
the common judgment dated 05.11.2005 in W.P.(C) Nos.
18153 of 2005 and 18268 of 2005 is produced herewith and
marked as Annexure R1(b). The employee who accepts the
new employment in a different service cannot say that he
was transferred from the earlier service to the new service
by an order passed by the former employer. Municipal
Common Service and Government service do not fall in the
same service under public service. The term same service
refers to any one of the several services constituted by the
special rules applicable to such service issued under Kerala
Public service Act 1958. Since MCS is constituted under the
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Municipalities Act, it does not fall in the same service under
Public service. In neither of these Acts, there is provision to
reciprocally carry forward service benefits of employees
transferred from Government service to Municipal Common
service and vice versa .The above stand has been upheld by
the Hon'ble High Court of Kerala in a judgment dated 05-
11-2005 in W.P.(C)No.18268 of 2005. There after
Government took a consistent stand that prior Government
service or pay of an employee in Government Service who
entered in Municipal Common Service on or after
12.09.2006 will not be protected. Hence, the prior services
of the persons, who joined in the Municipal Common Service
are not considering with the services of the Municipal
Common Services. Similarly, the service in Municipal
Common service is not counting for fixing pay in
Government service. The period of Government service from
31- 03-1984 to 11-09-2006 is counting for fixing the salary
of employees in Municipal Common Service, and the salary
is not protecting those who joined in Municipal Common
Service after 11-09-2006.
5. Also, there is no provision in Kerala Service Rules to
reckon the service rendered by an incumbent in Municipal
Common Service along with the Government service. If
Government allow this case it will lead to many litigation and
demand from similarly placed persons which will lead to
huge financial commitments to Government by way of
revision of pay and allowances with retrospective effect. In
W.P.(C)No. 27485 of 2008, the Hon'ble High Court has
ordered that it is in the realm of policy of the Government
to lay down the recruitment rules. If the appointee has
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chosen a different service, it concludes that he has
relinquished the pay which he was drawing in the prior
service. The wisdom of choosing different service is in the
field of choice of the employee concerned. The employee
cannot now command that his pay should be protected."
4. To the reply statements filed by petitioners 1 and 2, the
1st respondent-applicant filed a rejoinder dated 19.08.2023,
producing therewith Annexure A11 document. Paragraph 3 of that
rejoinder reads thus;
"3. It is respectfully submitted that the Govt. vide GO(MS)
No. 162/87/LSGD dated 13.07.1987 decided to reckon the
prior Govt. service of employees who get transfer to the
Municipal Common service for service benefits. The Hon'ble
High Court in R1 (b) Judgment interpreted the term transfer
used in the above GO and dismissed the writ petition,
holding the view that Municipal Common service is distinct
from the services in Government departments. But the
Division Bench of the Hon'ble High Court in
Santhoshkumar A Vs Director of Panchayats and
others [2013 (2) KHC 323] took a different view and held
that 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 in Balakrishnan Nair will continue to hold the field.
Based on the above legal position, the Hon'ble High Court in
O.P.(KAT) No. 4373 of 2012 (Annexure A9) held that the
petitioner in that case will be eligible for all service benefits
including protection of salary and other benefits in Municipal
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Common service reckoning prior Govt. service. Relying on
the above decisions of the Hon'ble High Court, this Hon'ble
Tribunal vide Annexure A10 order allowed similar cases.
Moreover the Hon'ble High Court in O.P.(KAT) No. 219 of
2022 (Annexure A10 Judgment) discussed all aspects
including GO(MS) No. 162/87/LSGD dated 13.07.1987 and
GO(MS) No. 211/2006/LSGD dated 12.09.2006 and held
that there is no justification for a differential treatment of
employees in the Panchayat service and employees in the
Municipal Common service. Hence, the contention taken by
the 1st and 2nd respondents by pointing out R1(a) order and
R1(b) Judgment has no merit. The Government vide order
dated 21.02.2017 allowed similar benefit to Sri.N E Sooraj,
LD Typist. A true copy of GO(MS) No. 256/17/LSGD dated
21.12.2017 is produced herewith and marked as Annexure
A11. In view of the above facts and circumstances the OA is
liable to be allowed, and the applicant prays for the same."
5. After hearing both sides and on appreciation of the
materials on record, by relying on Annexure A10 judgment of this
Court dated 05.01.2023 in O.P.(KAT)No.219 of 2022, which was
one passed following the judgment in Santhosh Kumar [2013
(2) KLT 548], the Tribunal disposed of the original application by
setting aside Annexure A1 order dated 27.04.2018 passed by the
Director of Municipalities. The State of Kerala and the Director of
Municipalities were directed to issue orders reckoning the service
rendered by the 1st respondent-applicant under the Government
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for the period from 04.04.2012 to 30.12.2014, along with his
service in Municipal Common Service for all service benefits and
to fix his pay accordingly. Being aggrieved by the aforesaid order
of the Tribunal, the State and its officials are now before this Court
with the present original petition.
6. Heard the learned Senior Government Pleader for the
petitioners, the learned counsel for the 1st respondent, and the
learned Standing Counsel for the Kanhangad Municipality.
7. The learned Senior Government Pleader would submit
that the Municipal Common Service and Government Service do
not fall in the same service, under public service. Neither the
Kerala Municipalities Act, 1994, nor the Kerala Public Services Act,
1958, contains the provisions to reciprocally carry forward service
benefits of employees transferred from Government Service to
Municipal Common Service and vice versa. The learned Senior
Government Pleader further submitted that, though against
Annexure A10 judgment in O.P.(KAT)No.219 of 2022, the State
preferred SLP(C) Diary No.19161 of 2023 before the Apex Court
and a stay order was initially granted, by Ext.P8 order dated
22.09.2023, now, the Apex Court dismissed the SLP. The learned
Senior Government Pleader further submitted that there are
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judgments, including the judgment of a Division Bench of this
Court in Mohanan v. State of Kerala [2013 (3) KLT 970], in
favour of the State, which were not brought to the notice of the
Apex Court while passing the judgment in SLP(C) Diary No.19161
of 2023. There is no provision in Kerala Service Rules to reckon
the service rendered by the 1st respondent in Municipal Common
Service along with Government Service. In such circumstances,
according to the learned Senior Government Pleader, the
impugned order of the Tribunal is liable to be set aside.
8. On the other hand, the learned counsel for the 1st
respondent-applicant would submit that the Tribunal passed the
impugned order based on Annexure A10 judgment of this Court in
O.P.(KAT)No.219 of 2022, which was one rendered following the
judgment in Santhosh Kumar [2013 (2) KLT 548]. Though the
State went in appeal against the Annexure A10 judgment, by
Ext.R1(a) order dated 12.08.2025, the Apex Court dismissed the
said Special Leave Petition (Civil) bearing SLP(C)No.21756 of
2023. Therefore, in effect, the judgment in Santhosh Kumar
[2013 (2) KLT 548] is governing the field and therefore, no
interference is needed on the impugned order of the Tribunal.
9. Article 227 of the Constitution of India deals with power
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of superintendence over all courts by the High Court. Under clause
(1) of Article 227 of the Constitution, every High Court shall have
superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction.
10. In Shalini Shyam Shetty v. Rajendra Shankar Patil
[(2010) 8 SCC 329] the Apex Court, while analysing the scope
and ambit of the power of superintendence under Article 227 of
the Constitution, held that the object of superintendence, both
administrative and judicial, is to maintain efficiency, smooth and
orderly functioning of the entire machinery of justice in such a way
as it does not bring it into any disrepute. The power of interference
under Article 227 is to be kept to the minimum to ensure that the
wheel of justice does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public
confidence in the functioning of the tribunals and courts
subordinate to the High Court.
11. In Jai Singh v. Municipal Corporation of Delhi
[(2010) 9 SCC 385], while considering the nature and scope of
the powers under Article 227 of the Constitution of India, the Apex
Court held that, undoubtedly the High Court, under Article 227 of
the Constitution, has the jurisdiction to ensure that all subordinate
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courts, as well as statutory or quasi-judicial tribunals exercise the
powers vested in them, within the bounds of their authority. The
High Court has the power and the jurisdiction to ensure that they
act in accordance with the well established principles of law. The
exercise of jurisdiction must be within the well-recognised
constraints. It cannot be exercised like a 'bull in a china shop', to
correct all errors of the judgment of a court or tribunal, acting
within the limits of its jurisdiction. This correctional jurisdiction can
be exercised in cases where orders have been passed in grave
dereliction of duty or in flagrant abuse of fundamental principles
of law or justice.
12. In K.V.S. Ram v. Bangalore Metropolitan
Transport Corporation [(2015) 12 SCC 39] the Apex Court
held that, in exercise of the power of superintendence under
Article 227 of the Constitution of India, the High Court can
interfere with the order of the court or tribunal only when there
has been a patent perversity in the orders of the tribunal and
courts subordinate to it or where there has been gross and
manifest failure of justice or the basic principles of natural justice
have been flouted.
13. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1)
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KHC 1] a Division Bench of this Court held that, the law is well
settled by a catena of decisions of the Apex Court that in
proceedings under Article 227 of the Constitution of India, this
Court cannot sit in appeal over the findings recorded by the lower
court or tribunal and the jurisdiction of this Court is only
supervisory in nature and not that of an appellate court.
Therefore, no interference under Article 227 of the Constitution is
called for, unless this Court finds that the lower court or tribunal
has committed manifest error, or the reasoning is palpably
perverse or patently unreasonable, or the decision of the lower
court or tribunal is in direct conflict with settled principles of law.
14. In view of the law laid down in the decisions referred
to supra, the High Court in exercise of its supervisory jurisdiction
under Article 227 of the Constitution of India cannot sit in appeal
over the findings recorded by the Administrative Tribunal. The
supervisory jurisdiction cannot be exercised to correct all errors in
the order of the Administrative Tribunal, acting within the limits of
its jurisdiction. The correctional jurisdiction under Article 227 can
be exercised only in a case where the order of the Administrative
Tribunal has been passed in grave dereliction of duty or in flagrant
abuse of fundamental principles of law or justice. Therefore, no
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interference under Article 227 is called for, unless the High Court
finds that the Administrative Tribunal has committed a manifest
error, or the reasoning is palpably perverse or patently
unreasonable, or the decision of the Tribunal is in direct conflict
with settled principles of law or where there has been gross and
manifest failure of justice or the basic principles of natural justice
have been flouted.
15. While coming to the arguments addressed at the Bar,
in Mohanan [2013 (3) KLT 970], a Division Bench of this Court
considered the matters related to persons who, while working as
police constables, accepted appointments by direct recruitment
either as Village Extension Officer Grade-II or Lower Division
Clerks, following PSC advice in that regard. Regarding the
extension of benefits of the service rendered by them as Police
Constables, which was clarified as not available by the
Government, this Court held thus;
"3. Not only that, as can be seen from Ext. P5, produced
along with the original application before the Tribunal, even
according to the Government, reckoning of total service
rendered in all the posts can be only by excluding the period
of actual break in service. Service jurisprudence does not
envisage a government servant, while in office, re-entering
government service by direct recruitment. Therefore, a
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Police Constable, on being selected for direct recruitment as
Village Extension Officer or Lower Division Clerk, as the case
may be, can re-enter the Government of Kerala only after
demitting the office as Police Constable. By that exercise,
there will be a total break down of the jural relationship of
master and servant, as between the State Government and
the officer concerned. That break in service is sufficient to
break any continuity that could be claimed for any grade
promotion benefits. This reasoning supports the decision in
WA No.2939 of 2001 referred to above, and seals the issue."
However, while going through Annexure A10 judgment passed by
this Court in O.P.(KAT)No.219 of 2022, we notice that the facts of
O.P.(KAT)No.219 of 2022 are almost similar to those of the instant
case.
16. In Santhosh Kumar [2013 (2) KLT 548], which is
relied upon by this Court in Annexure A10 judgment, a Division
Bench of this Court held thus;
"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
powers 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
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issue in hand is Chapter XVI, which deals with officers and
employees of Panchayats. Sub-section (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-section (1) of S.180 provides that
officers and employees of the Panchayat, other than
contingent employees, would be Government servants.
Sub-section (4) of S.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, Art.309 and Art.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
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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 (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 Tribunals Act, 1985."
17. In Balakrishnan Nair v. Ram Mohan Nair [1998
(1) KLT 766], which was referred to in Santhosh Kumar [2013
(2) KLT 548], a Full Bench of this Court, while considering the
true scope and content of Rule 8 of Part II of KS & SSR, held thus;
"32. Now we shall examine Rule 8 to find out whether the
term service will include services other than the services
classified as State and Subordinate Service. The fourth
proviso and Note 1 to Rule 8 throw light on this aspect. They
are as follows:
Provided also that this Rule shall not apply in the case of a
member of a service whose absence from duty in such
service is by reason of his appointment to another service
not being Military Service, solely on his own application,
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unless such appointment is made in the exigencies of Public
Service.
Note 1: An appointment made in pursuance of applications
invited, sponsored or recommended by Government or
other competent authority shall be deemed to be an
appointment made in the exigencies of Public Service for the
purpose of this rule.
The mention of Military service in the proviso is an indication
to show that the term service is not confined to State and
Subordinate Service. Further, according to the proviso and
Note 1, appointment made in the exigencies of Public
Service on the application or recommendation of the
Government or competent authority will be deemed to be
absence from duty from the parent service. The term Public
service has a wider concept than the term service
mentioned in Clause 15 of Rule 2 KS & SSR. It cannot be
denied that Municipal Common Service is not a Public
Service. The Kerala Municipal Common Service is
constituted in exercise of the powers conferred by sub-
section (2) of Section 90 of the Kerala Municipal
Corporations Act, 1961. Section 90 of the Kerala Municipal
Corporations Act is as follows:
90. Constitution of a Common Municipal Service : -
(1) Notwithstanding anything contained in sub-section (1)
of Section 91 of the Kerala Municipalities Act, 1960 (Act 14
of 1961) the Government may constitute the employees
under the Municipal Councils and Corporations in the State
into a common Municipal service for the State, subject to
such rules as may be prescribed by the Government in this
behalf.
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(2) The Government may make rules to regulate the
recruitment and conditions of service of officers and
servants of Municipal Corporations.
Rule 3 of the Kerala Municipal Common Service Rules states
that on and effect from the first day of November 1967, the
employees of the Municipal Councils and Corporations
holding the posts specified by the Government, by order in
this behalf, shall be constituted into a common service for
the State. Under Clause (2) of Rule 3, the Government is
given the power to arrange for the preparation of a
combined gradation list of the persons holding the posts
included in the common service. Rule 4 enables the
Government or the Director or any other Officer authorised
by the Government to transfer an employee holding any
post included in the common service from one local
authority to another. The pay and allowance are to be
disbursed at the rates fixed by the Government. The
recruitment committee for the purpose of recruitments to
the posts included in the common service is to be
constituted by the Government. Under Rule 8 recruitment is
to be made in accordance with the provisions of the
Common Service Rules and such other orders as the
Government may from time to time issue. Rule 10 deals with
appointing authority. The person competent to appoint any
employee shall be notified by the Government.
Qualifications for the different posts are to be prescribed by
the Government. Under Rule 12, the Government may for
special reasons and in the exigencies of service, appoint any
person from the service of the Government to any of the
posts under a local authority included in the common service
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on foreign service conditions. Rule 14 of the Rules makes
the Kerala State and Subordinate Services Rules applicable
in the case of employees of the common service.
33. Supreme Court had occasion to consider whether the
Panchayat service constituted under Section 203 of the
Gujarat Panchayats Act is a civil service. Dealing with this
question, the Court held as follows:
the true test for determination of the question whether a
person is holding a 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 a post
under it and that the existence of such relationship is
dependent upon the right of the State to select and appoint
the holder of the post, its right to suspend and dismiss him,
its right to control the manner and method of his doing the
work and the payment by it of his wages and remuneration.
It is further held that the relationship of master and servant
may be established by the presence of all or some of the
factors referred to above in conjunction with other
circumstances.
The Court then considered the provisions of the Panchayats
Act and held as follows:
It may be noted that the Panchayat service contemplated
under Section 203 of the Panchayat Act is a single service
for the whole State and it is not a collection of distinct and
separate services of such individual panchayat. That
panchayat service is a service under the State is again
emphasised by Section 206 which authorises the State
Government to pool together four classes of persons
mentioned therein who originally belonged to four different
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sources and to allocate them to the Panchayat Service and
one class of such persons are those who belong to the State
Service. Unless the Panchayat Service is held to be a State
Service, inclusion of officers and servants in the State
Service will be unconstitutional.
It was further observed thus:
State Public Services may be constituted or established
either by a law made by the State Legislature or by rules
made under the proviso to Article 309 of the Constitution or
even by an executive order made by the State Government
in exercise of its powers under Article 162 of the
Constitution. The recruitment and conditions of service of
the officers and servants of the State Government may also
be regulated by statute, rules or executive orders. The
administration of a service under a State involves broadly
the following functions: (i) the organization of the civil
service and the termination of the remuneration, conditions
of service, expenses and allowances of persons serving in
it; (ii) the manner of admitting persons to civil service; (iii)
exercise of disciplinary control over members of the service
and power of transfer, suspend, remove or dismiss them in
the public interest as and when occasion to do so arises. In
the instant case, the Panchayat Service is constituted by the
Panchayats Act and the State Government is empowered to
make orders and rules regarding its organisation and
management. It is true that in Section 203 of the
Panchayats Act, it is stated that the Panchayat Service shall
be distinct from the State Service. Having regard to the
broad feature of the Panchayat Service, we are of the view
that the said declaration appears to have been made only to
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distinguish the Panchayat Service from other services of the
State attached to the several departments which are under
the direct control of the State Government. If the members
of the Panchayat Service are not to be the members of a
service under the State Government but are to be the
officers and servants of the Panchayat unit to which they are
allotted then sub-sections (2), (2-A) and 4(a) of Section 203
of the Panchayats Act would to some extent become
unworkable as every time there is a transfer of an officer
borne on the Panchayat Service there would be a change of
master.
On an examination of the Kerala Municipal Common Service
Rules, we are of the view on the basis of the above Supreme
Court decision that the Municipal Common Service is also a
public service. Thus, the fourth respondent will be allowed
to join the Collectorate, Pathanamthitta as per Ext. R4(e)
order. He will be entitled to all the benefits which would have
accrued to him had he joined the Collectorate immediately
Ext. R4(e) order."
[Underline supplied]
18. From the materials placed on record, we notice that
though the Annexure A10 judgment in O.P.(KAT)No.219 of 2022
was challenged by the State before the Apex Court by filing
SLP(C)No.21756 of 2023, the same was dismissed as per
Ext.R1(a) order dated 12.08.2025. In such circumstances, it is
only to be held that the findings in the Annexure A10 judgment
attained finality. Therefore, the claim of the 1st respondent to
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reckon his Government Service to Municipal Common service is
squarely covered in Annexure A10 judgment in O.P.(KAT)No.219
of 2022, which has attained finality.
19. Viewed the facts of the instant case, in the light of the
judgments referred to supra, it is only to be held that the
petitioners have not made out any ground to hold the impugned
order of the Tribunal as perverse or illegal, which warrants
interference by exercising the supervisory jurisdiction under
Article 227 of the Constitution of India.
In the result, this original petition stands dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MSA
2026:KER:9680
APPENDIX OF OP(KAT) NO. 145 OF 2024
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE ORDER DATED 27.04.2018
PASSED BY THE 2ND RESPONDENT.
Annexure A2 TRUE COPY OF THE PROCEEDINGS DATED 04.04.2012
OF THE 4TH RESPONDENT.
Annexure A3 TRUE COPY OF THE PROCEEDINGS DATED 29.08.2013
OF THE 4TH RESPONDENT.
Annexure A4 TRUE COPY OF THE PROCEEDINGS DATED 26.07.2016
OF THE 2ND RESPONDENT.
Annexure A5 TRUE COPY OF THE ORDER DATED 07.12.2017 IN
O.A(EKM)NO.2289/2017 ON THE FILES OF THIS
HONOURABLE TRIBUNAL.
Annexure A6 TRUE COPY OF THE REPRESENTATION DATED
16.10.2017 WHICH IS REFERRED TO AS MA4(1) IN
THE ANNEXURE A5 JUDGMENT.
Annexure R2(a) TRUE COPY OF THE GOVERNMENT ORDER DATED
12.09.2006.
Annexure R2(b) TRUE COPY OF THE GOVERNMENT LETTER DATED
11.01.2019.
Annexure A7 TRUE COPY OF 2013 (2) KHC 323.
Annexure A8 TRUE COPY OF JUDGMENT OF THE HONOURABLE HIGH
COURT DATED 22.05.2013 IN OP(KAT)NO.4373 OF
2012.
Annexure A9 TRUE COPY OF ORDER OF THE HONOURABLE KAT
DATED 08.08.2016 IN O.A. NO.2273 OF 2013.
Annexure A10 TRUE COPY OF THE JUDGMENT DATED 05.01.2023
OF THE HONOURABLE HIGH COURT IN
O.P.(KAT)NO.219/2022.
Annexure R1(a) TRUE COPY OF THE G.O.(MS)NO.211/2006/LSGD
DATED 12.09.2006.
Annexure R1(b) TRUE COPY OF COMMON JUDGMENT DATED 05.11.2005
IN WP(C) NOS. 18153/2005 & 18268/2005.
Annexure A11 TRUE COPY OF THE G.O.(MS)NO.256/17/LSGD DATED
21.12.2017.
Exhibit P1 TRUE COPY OF THE O.A.(EKM) NO.1474/2019
Exhibit P2 REPLY STATEMENT FILED ON BEHALF OF THE 2ND
RESPONDENT
Exhibit P3 MISCELLANEOUS APPLICATION FILED ON
07.01.2023
Exhibit P4 MISCELLANEOUS APPLICATION FILED ON
19.06.2023
Exhibit P5 REPLY STATEMENT FILED ON BEHALF OF THE 1ST
RESPONDENT
Exhibit P6 REJOINDER FILED BY THE APPLICANT TO THE REPLY
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STATEMENT OF THE 1ST AND 2ND RESPONDENT
Exhibit P7 TRUE COPY OF THE ORDER DATED 05.10.2023 IN
OA(EKM) 1474/2019
Exhibit P8 TRUE COPY OF THE STAY ORDER DATED 22.09.2023
IN SLP(C) NO.19161/23.
RESPONDENT EXHIBITS
Exhibit R1(a) TRUE COPY OF ORDER OF THE HON'BLE SUPREME
COURT DATED 12.08.2025 IN SLP NO(S)
