MATHUKUTTY Vs. THE MUNICIPAL COMMISSIONER SHERTALLAI

JUDGEMENT

(1.) 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 Para.2 of the petitioner's affidavit that the leave was granted under R.82, and 83 of Part (1) of the Kerala Service Rules (compendiously referred to as the K.S.R.) read with R.12 of the Rules published by the Travancore Government under 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 S.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 Ext. 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 Ext. 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 Ext. 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 Ext. P1 and P3 and for consequential reliefs by way of refund of the amounts already collected from the petitioner in pursuance of these orders.

(2.) The sole question for determination is whether the petitioner is governed by R.82 and 83 of the K.S.R., promulgated under Art.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 R.12 of the Rules framed under S.69 of the Travancore District Municipalities Act, 1116 (hereinafter referred to as the 1948 Rules). The said rule runs as follows:-

(3.) R.2 of the K.S.R. reads: