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2026 DAILYLAW 606 (KER)

State of Kerala v. Saji S. S/o Sahadevan K.

2026-06-01

Anil K Narendran, Muralee Krishna S

body2026
JUDGMENT : MURALEE KRISHNA S., J. 1. The respondents 1 to 4 in O.A.No.535 of 2025 on the file of the Kerala Administrative Tribunal, Principal Bench, Thiruvananthapuram (the ‘Tribunal’ for short), filed this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India , challenging Ext.P5 order dated 10.07.2025 passed by the Tribunal in that original application. 2. Respondents 1 and 2 - applicants who are retired from the service of Maradu Municipality and Cochin Corporation, respectively, from the post of Senior Clerks on 31.05.2024, approached the Tribunal by filing O.A.No.535 of 2025, invoking the provisions under Section 19 of the Administrative Tribunals Act, 1985 , seeking the following reliefs: “1. Call for the records leading to the issuance of Annexure A-8 letter and quash the same declaring that the applicants are entitled for all service benefits including protection of salary and other consequential benefits including pensionery benefits owing to their government service in KPSC and General Administration department from 2002 & 2004 respectively and direct the Respondents sanction and to disburse such benefits without any further delay. 2. Declare that the prior service of the applicants in KPSC and General Administration department from 2002 & 2004 respectively are liable to be reckoned as qualifying service for pension and pensionary benefits and consequently direct the Respondents to revise the sanctioned pension and pensionary benefits”. 2.1. The 1 st respondent was initially appointed as Peon Grade-II in the office of the Kerala Public Service Commission (‘KPSC’ for short) with effect from 30.05.2002. While he was working in that post, he was appointed in Municipal Common Service as Lower Division Clerk as per Annexure A4 order dated 12.03.2010 issued by the Director of Urban Affairs, and the 1 st respondent joined Municipal Common Service on 08.04.2010. The 2 nd respondent was initially appointed as Peon Grade-II in the General Administration Department with effect from 27.05.2004. After a brief period of two months' service, the 2 nd respondent got an inter-departmental transfer to the office of Advocate General, Ernakulam, as per order dated 29.06.2004, and she served in that office till 28.03.2010. She was also appointed as Lower Division Clerk in Municipal Common Service along with the 1 st respondent as per Annexure A4 order dated 12.03.2010 of the Director of Urban Affairs, and she joined Municipal Common Service on 29.03.2010. 2.2. She was also appointed as Lower Division Clerk in Municipal Common Service along with the 1 st respondent as per Annexure A4 order dated 12.03.2010 of the Director of Urban Affairs, and she joined Municipal Common Service on 29.03.2010. 2.2. On the appointment of respondents 1 and 2 in Municipal Common Service, their pay was fixed without giving them the benefit of the protection of pay which they were drawing in the Government Departments. Though respondents 1 and 2 submitted representations before the Government requesting to grant them all service benefits including pension, reckoning the service rendered by them in the Government Departments prior their entry in Municipal Common Service, the said requests were rejected by the 1 st petitioner stating the reason that in the absence of amendment to Rule 20 of Part III of the Kerala Service Rules, the service rendered by them in Municipal Common Service alone can be reckoned as qualifying service for pension. Under those circumstances, the respondents 1 and 2 filed O.A.No.535 of 2025 claiming that they are entitled to protection of pay and fixation of pension, reckoning the service rendered by them in the Government Departments before their entry in the Municipal Common Service. 2.3. In the original application, the 1st petitioner herein filed a reply statement dated 03.05.2025 opposing the reliefs sought and producing therewith Annexure R1(a) document. The 4 th petitioner filed a reply statement dated 11.06.2025 opposing the averments in the original application and producing therewith Annexures R4(a) to R4(c) documents. Similarly, the 2 nd petitioner filed a reply statement dated 19.06.2025, taking similar contentions as that of the remaining petitioners and producing therewith Annexure R2(a) document. After hearing both sides, the Tribunal, by the impugned Ext.P5 order, allowed the original application. Paragraph 8 and the last paragraph of that order read thus; “8. The applicants are seeking the benefit of Annexure A13 judgment in O.P.(KAT) No.219 of 2022. In that case the Hon'ble High Court upheld the order of this Tribunal, by which it was declared that the respondent therein was entitled to all service benefits including protection of pay based on the service rendered by him in Government Departments prior to his entry in MCS. In that case the Hon'ble High Court upheld the order of this Tribunal, by which it was declared that the respondent therein was entitled to all service benefits including protection of pay based on the service rendered by him in Government Departments prior to his entry in MCS. Though the aforesaid judgment has been stayed by the Apex Court, as long as the judgment of the Division Bench is not reversed, we are bound to follow the Judgment of the Hon'ble High Court. 1. In the circumstances, Annexure A8 letter issued in the case of the 1 st applicant is set aside. 2. It is declared that the applicants are entitled to get their pay in Municipal Common Service fixed with reckoning the service rendered by them under the Government Departments including the benefit of protection of pay and also to get their pension re-fixed based on the pay thus re-fixed and reckoning the service rendered by them in Government Department along with Municipal Common Service, towards qualifying service for the purpose of pension. 3. There shall be a direction to the respondents to see that the pay of the applicants is re-fixed granting them the benefit of protection of pay, which they were drawing in Government service and reckoning the service rendered by them from the date of their joining in Government service and on the basis of such fixation, re- fix their pension also reckoning the service rendered under the Government Departments towards qualifying service, along with their service in Kerala Municipal Common service, within a period of 3 months from the date of receipt of a copy of this order. This Original Application is allowed accordingly.” 2.4. Being aggrieved by the aforesaid order of the Tribunal, the respondents 1 to 4 - petitioners are now before this Court with this original petition. 3. Heard the learned Senior Government Pleader and the learned counsel for respondents 1 and 2. 4. During the course of arguments, the learned Senior Government Pleader fairly conceded that the issue involved in this case is now settled in view of the Government Order dated 28.02.2026 bearing G.O.(MS)No.64/2026/LSGD, whereby pay protection is granted to the employees in the Municipal Common Service, reckoning their past Government service, and therefore this original petition has become infructuous. 5. 4. During the course of arguments, the learned Senior Government Pleader fairly conceded that the issue involved in this case is now settled in view of the Government Order dated 28.02.2026 bearing G.O.(MS)No.64/2026/LSGD, whereby pay protection is granted to the employees in the Municipal Common Service, reckoning their past Government service, and therefore this original petition has become infructuous. 5. Article 227 of the Constitution of India deals with the power 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. 6. In Estralla Rubber v. Dass Estate Pvt. Ltd.  (2001) 8 SCC 97 , the Apex Court held thus: "The scope and ambit of exercise of power and jurisdiction by a High Court under Art.227 of the Constitution of India is examined and explained in number of decisions of this Court. The exercise of power under this Article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do duty expected or required by them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the courts subordinate or tribunals. Exercise of this power and interfering with the orders of the courts or tribunal is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the fact of the record. The High Court can set aside or ignore the findings of facts of inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or Tribunal has come to." 7. The High Court can set aside or ignore the findings of facts of inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or Tribunal has come to." 7. 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. 8. 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 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. 9. 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. 9. 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. 10. In Sobhana Nair K.N. v. Shaji S.G. Nair, 2016 (1) 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. 11. 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 a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High 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 or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 12. From the perusal of the judgment of this Court dated 05.02.2026 in O.P.(KAT)No.145 of 2024, we notice that the issue decided in that case is the same issue involved in the present case also. Paragraphs 15 to 18 of the said judgment read thus: “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 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. 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 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. 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 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. 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, 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. (2) The Government may make rules to regulate the recruitment and conditions of service of officers and servants of Municipal Corporations. (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 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. 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 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. 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 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. 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 1 st respondent to 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” 13. Moreover, at present, the Government has issued an order dated 28.02.2026 bearing G.O.(MS) No.64/2026/LSGD, granting pay protection to the employees in Municipal Common Service, reckoning their previous Government service. In such circumstances, we find no ground to hold the impugned order of the Tribunal as perverse or patently illegal, which warrants interference by exercising supervisory jurisdiction under Article 227 of the Constitution of India . In the result, the original petition stands dismissed.