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Judgment
V.P. Gopalan Nambiyar, J.—The petitioner is an employee of the Shertallai Municipality. He applied for earned leave for a period of three months and two days from 24-10-1960 and for leave on half pay on private affairs in continuation thereof, for a period of three months and thirteen days. The application was granted. Neither application nor the order granting the same, nor copies thereof, have been produced, but it is stated in paragraph 2 of the petitioner''s affidavit that the leave was granted under Rules 82, and 83 of Part (1) of the Kerala Service Rules (compendiously referred to as the K.S.R.) read with rule 12 of the Rules published by the Travancore Government u/s 69 of the Travancore District Municipalities Act, 1116 as per notification No. R.Dis.835/48/LGA. dated 9th September 1948, and continued in force by section 2 of the Kerala Municipalities Act, 14 of 1961. The Local Fund Audit Department seems to have objected to the grant of leave under the K.S.R. to the petitioner on the ground that he was not governed by the K.S.R. and requested that the leave should be converted to other eligible leave under the T.S.R. (Travancore Service Rules). Thereupon, the 1st respondent passed proceedings evidenced by Ex. P1 directing the petitioner to remit the amount of Rs. 155.74, within the time specified in the said communication and threatening recovery from his pay at Rs. 10/- per mensum on default. The petitioner preferred an appeal against Ex.P1 to the 3rd respondent. It is stated that the 3rd respondent forwarded the representation to the Secretary of Health and Labour Department of the State. The Government eventually passed the order, copy of which has been produced as Ex.P3, upholding the audit objection and declining the petitioner''s request for waiver of the amount. This O.P. is to quash the proceedings evidenced by Ex. P1 and P3 and for consequential reliefs by way of refund of the amounts already collected from the petitioner in pursuance of these orders. The sole question for determination is whether the petitioner is governed by Rules 82 and 83 of the K.S.R., promulgated under Article 309 of the Constitution and which came into force on 1-11-1959. The petitioner''s counsel argued that the K.S.R. was attracted in view of the provisions of Rule 12 of the Rules framed u/s 69 of the Travancore District Municipalities Act, 1116 (hereinafter referred to as the 1948 Rules). The said rule runs as follows:-
Save as otherwise provided in these rules or in any other rules in force for the time being, the conditions of service of all officers and servants of the Municipal Council shall where no regulations have been framed by the Council u/s 71 of the Act, be the same as those of Government servants of similar standing and status in respect of the following matters, namely:
(a) leave and leave allowances;
(b) travelling allowance;
(c) superannuation and retirement; and
(d) pension or gratuity.
It will be seen from the above rule that the conditions of service of Municipal employees were to be the same as those of Government servants of similar standing and status in respect of matters enumerated by the rule. The above rule was published in 1948 and at the time of its publication, there is no controversy that the rules applicable to the Government servants of similar standing and status in respect of matters provided therein was the T.S.R. The petitioner''s contention is that on the promulgation of the K.S.R., the same became automatically applicable to Government servants of similar standing and status by reason of Rule 12 above extracted and that the petitioner is entitled to the benefit of the Rules in the K.S.R.
Rule 2 of the K.S.R. reads:
Subject to the provisions of rule 3,:
(1) the rules in Part II relating to travelling allowance shall apply to every person in the whole-time employment of the Government (other than a person so employed in the contingent or work establishment);
(11) the remaining rules shall apply to every person in the whole-time employment of the Government (other than a person so employed in the contingent or work establishment)--
(a) who was not in the service of the Government of Travancore-Cochin or the Government of Madras on 31st October 1956; or
(b) who was in the service of the Government of Travancore-Cochin or the Government of Madras on 31st October 1956 and who continued to be in the service of the Government of Kerala; but has opted to be governed by these rules in accordance with such conditions as may be laid down by the Government in this behalf; or
(c) who was absorbed to Government service on or after 1.11.1956, but who prior to such date was in the service of any quasi-Government or other institution and whose appointment and conditions of service where governed by any law or rule made under any law for the time being in force, if such person exercises his option to be governed by these rules, subject to such conditions as may be laid down by Government in this behalf.
Rule 3 need not be quoted as it was admitted that it has no relevance to the question in controversy. From rule 2 (b), it would be seen that there is no automatic extension of the K.S.R. to persons in Government service in Madras or Travancore-Cochin on 31-10-1956, but that the same would be attracted only on the exercise of an option by the Government servants; and even then only in accordance with such conditions as may be laid down by the Government.
There is neither allegation nor proof that the Government servants of similar standing and status as the petitioner under the Travancore-Cochin State, exercised the option to be governed by the K.S.R. in accordance with Rule 2 (b). That is sufficient to negative the applicability of the K.S.R to the petitioner.
The petitioner''s counsel contended that by reason of rule 12 of the 1948 Rules the right of exercising the option afforded to the Government servants by Rule 2 (b) of the K.S.R. would be available to the Municipal Employees like the petitioner also, and with the exercise of the option by the latter, the provisions of the K.S.R. would apply. I am unable to agree. The right to exercise the option does not inhere in Municipal Employees of the type of the petitioner, automatically. On the promulgation of the K.S.R. the option must be exercised by Government servants of similar standing and status as the petitioner, after which alone, the applicability of the K.S.R. to them and to Municipal employees of co-equal rank and status would follow.
That apart, even granting that the petitioner''s contention that the option under Rule 2(b) of the K.S.R. is exercisable by him is correct, there is neither pleading nor proof of the petitioner having done so. The petitioner''s counsel could only rely on the application for the leave and the order sanctioning the same as proof of the exercise of the option by the petitioner. Neither of these have been produced; and the averment in the affidavit is only to the effect that leave was granted, and not that it was applied for, under Rules 82 and 83 of the K.S.R.
The conclusion that K.S.R. would not be automatically attracted to Municipal employees is still further confirmed by the rules promulgated under the Kerala Municipalities Act. In G.O.Ms. 856/62/DD. dated 20-11-1962, framed in exercise of the power under sections 91 (3) and 345(2) (a) of the Kerala Municipalities Act 14 of 1961, it was provided as follows. 1. The provision in Parts I and 11 of the Kerala Service Rules relating to leave and leave allowance and travelling allowance shall apply mutatis mutandis to the employees of a Municipal council.
Provided that a permanent municipal employee who at the date of commencement of these rules is governed by any other rules, may, if he so opts in writing within a period of two months from such date, continue under those rules, and such an option once exercised shall be final.
The view taken in Ex. P1 and P3 that the petitioner was not eligible for leave under the K.S.R. is correct, and calls for no interference. The O.P. is dismissed; but in the circumstances without costs.