~ ~ ~ ~ ~ ~ ~ ~ ~ Thottathil B.Radhakrishnan, J.
An Office Attendant in a Grama Panchayat challenges his transfer to another Grama Panchayat under orders of the jurisdictional Deputy Director of Panchayats in the Government of Kerala. The learned single Judge, examining the question of jurisdiction, found himself unable to agree with the ratio of Minimol Vs. Director of Municipalities [2012 (1) KLT 600], that even after the constitution of the State Administrative Tribunal in Kerala, under the provisions of Section 15 of the Administrative Tribunals Act, 1985, - for short, the 'AT Act' -, members of W.P.(C) No.158/2013 : 2 : the Municipal Common Service can agitate their service disputes in the High Court. Hence, this reference to the Division Bench.
2. In the reference order, the learned single Judge has pointed out that the stipulation in sub-section (1) of Section 180 of the KPR Act that panchayat employees (except contingent employees) are full scale government servants needs to be considered.
3. The learned counsel for the petitioner argued that the status obtained by the panchayats following 73rd amendment to the Constitution introducing Part IX puts the panchayats in a pedestal much higher than what they were before. Making reference to the judgment of this Court in Raveendran Vs. State of Kerala [2006 (1) KLT 427], he rightly pointed out that the panchayats are now not mere statutory institutions, but have independent constitutional setting on which they rest. He further argued that if that is the situation obtained as a result of the 73rd amendment to W.P.(C) No.158/2013 : 3 : the Constitution, as a necessary corollary, it has to follow that the persons employed in the panchayats are not to be treated as government servants because panchayats cannot be treated or reckoned as institutions under the control of the government, to bring them within the format of Section 15(1)(b) of the AT Act.
4. Per contra, the learned standing counsel for the Kerala Public Service Commission and the learned government pleader argued that it has been repeatedly held by this Court that, on examination of the Kerala Municipal Common Service Rules, it can be seen that municipal common service is also public service. Reference was made to Balakrishnan Nair Vs. Ram Mohan Nair [1998 (1) KLT 766 (FB)] rendered noticing that the ratio of State of Haryana Vs. D.R.Sangar [AIR 1976 SC 1199] points to such conclusion. The learned government pleader also referred to the decision of the Andra Pradesh High Court in Mohammed Azmat Ali Vs. Director of Intermediate W.P.(C) No.158/2013 : 4 : Education [2012 (2) KLT S.N.106 (FB)], the full text of which has been made available to us by Senior Advocate Sri.S.Sreekumar during the course of his submissions in connection with another writ petition, which we have dealt with by a separate judgment. The learned standing counsel for the Kerala Public Service Commission also pointed out the decision of this Court in Satheesan Vs. State of Kerala [1990 (2) KLT 705], which also proceeds stating that Panchayat Common Services and Municipal Common Services are government services.
5. Noticing the status of the Grama Panchayats and the Municipalities following the 73rd and 74th 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 provision in the Constitution conceiving or requiring separate service or staff for the panchayats or municipalities. We say so, particularly because, there is no W.P.(C) No.158/2013 : 5 : provision in the Constitution authorising 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 provisions contained in Article 318 under Chapter II relating to the Public Service Commission, specifically authorise the making of regulations 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 services for the panchayats and municipalities to be independent of the government 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 powers and functions of Grama Sabha and such other matters are required to be covered by legislation W.P.(C) No.158/2013 : 6 : 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-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. W.P.(C) No.158/2013 : 7 : 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 W.P.(C) No.158/2013 : 8 : 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 Section 15 (1)(b) of the Administrative Tribunals Act, 1985.
8. In the light of what we have stated above, Minimol (supra) has not been decided correctly and that will stand overruled by the ratio of this judgment to that extent.
In the result, this writ petition is dismissed without W.P.(C) No.158/2013 : 9 : prejudice to the contentions with liberty to the petitioner therein to move the Tribunal.
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(THOTTATHIL B.RADHAKRISHNAN, JUDGE) Sd/-
(B.KEMAL PASHA, JUDGE) aks/13/03 //True copy// P.A. to Judge.