GOPALAKRISHNA PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is from the judgment in O. P. No. 1097 of 1974 dismissing the petition. The prayer in that petition was that Ext. P5 order be quashed and the 1st respondent, the State of Kerala be directed to dispose of Exts. P6 and P7 representations made by the petitioner in the Original Petition who is the appellant before the 1st respondent. The learned Judge, as we indicated, dismissed the petition.

(2.) The order Ext. P5 indicates that it was passed in exercise of the powers conferred by S.85 of the Kerala Municipal Corporations Act, 1961, for short, the Act. The contention that was raised before the learned Judge was that the person appointed, the 5th respondent in the petition and in this appeal was a member of the municipal common service and that an appointment under S.85(b) of the Act cannot be made of a member of the municipal common service to the detriment of other members of the service by overlooking seniority. It was also alleged that the order was discriminatory and mala fide. These contentions were negatived.

(3.) Before us, the main point that was urged was that even assuming that S.85 envisaged or permitted the appointment of a member of municipal common service to any of the posts mentioned in the section, such power, could be exercised by the Commissioner only after rules had been framed by the Government as the section has made the exercise of power "subject to rules". We shall extract the relevant part of the section: