VENUGOPALAN Vs. T P KRISHNAN

JUDGEMENT

(1.) In July 1950, the appellant herein was appointed to the post of Panchayat Assistant of the Pinarayi Panchayat, a Panchayat constituted under the Madras Village Panchayats Act, 1950. After satisfactorily completing the probation prescribed by the rules governing his conditions of service rules made under the aforesaid Act, he was confirmed in that post in September 1953. On 31-12-1961, on the eve of the repeal of the Madras Village Panchayats Act, 1950 by the repealing Section S.151; of the Kerala Panchayats Act, 1960 being brought into force, the appellant was transferred from the Pinarayi Panchayat to the Kottathara Panchayat by the Deputy Director of Local Boards in exercise of the power conferred on him by S.34(4)(1) of the Madras Village Panchayats Act read with an authorisation made under S.2(12) of that Act. In July 1962, he was again transferred by the Deputy Director from the Kottathara Panchayat to the Kakkody Panchayat - this being after the repeal of the Madras Act and before the rules providing for transfers were framed under the Kerala Act on 10-10-1967, was, it would appear, without statutory authority, the Madras rules containing no provision for such transfer, and S.23 of the Interpretation and General Clauses Act not providing for the survival of the provisions of the repealed enactment authorising such transfers. In July 1964, the appellant was likewise transferred from the 'Kakkody Panchayat to the Thaneri Panchayat, and, in July 1967, bank to the Kakkody Panchayat. Against this latter transfer the Kakkody Panchayat petitioned to the Government. The order was stayed, but eventually, on 5-3-1968, Government passed the order, Ext. P3, confirming the Deputy Director's order. Against this order of Government, the Kakkody Panchayat and the person threatened with reversion as a result Of the appellant joining duty as Panchayat Assistant there, moved this court under Art.226 of the Constitution by means of O. P. No 1494 of 1968 which was heard along with the writ petition, O. P. No. 2328 of 1968, out of which the present appeal arises, the two being disposed of on 1-11-1968 by a common Judgment. Pending that, a stay of the operation of the Government order, Ext. P3, had been granted in O.P, No. 1494 of 1968, and, perhaps because of this, the Director of Panchayats took the somewhat surprising step- surprising because it does not appear that it was done with the concurrence of Government whose order posting the appellant to the Kakkody Panchayat had only been stayed and not set aside of making the order, Ext. P4 dated 24-4-1968, directing that the appellant be posted to the office he originally held under the Pinarayi Panchayat. Pursuant to Ext. P4, the 4th respondent Executive Officer of the Pinarayi Panchayat by Ext. P5, posted the appellant as Panchayat Assistant of that Panchayat reverting the 1st respondent to this appeal, who by reason of an appointment made in July 1968 was temporarily holding that post, to the lower post of Bill Collector which he was previously holding. This, it seems to us, was an eminently just and fair outcome, for, it only meant that a person who was temporarily holding a post was going back to his original post to make room for the permanent incumbent of the former post. Or else, by reason of the stay ordered by this Court in O. P. No. 1494 of 1968, it would have meant that the appellant, who had been a Panchayat Assistant for eighteen years and had been confirmed in that post' would have been thrown out of job for the sake of enabling a person who had been temporarily promoted to the post to continue therein. The 1st respondent, however, did not take this dispassionate view of the matter nor perhaps could he be expected to do so and he came to this Court on 27-5-1968, with the present writ petition, O. P. No. 2328 of 1968, assailing the orders, Exts. P4 and P5. This petition, as we have already said, was heard along with O. P. No. 1494 of 1968. Both were allowed by a common judgment dated 1-11-1968. And the result is that, if the decisions in the two writ petitions are to stand, the appellant will find himself without a job while, unless his appointment is otherwise determined, the 1st respondent can continue to hold the post to which he was temporarily promoted Hence this appeal, which, we might mention, is only from the decision in O. P. No. 2328 of 1968 - from the decision in O. P. No. 1494 of 1968 there is no appeal.

(2.) From what we have said it is apparent that the result achieved by the impugned orders, Exts. P4 and P5, is in accord with commonsense and common notions of justice. And, even if they do involve violations of statutory provisions, it might well be said that the 1st respondent has suffered no such injustice as to persuade this Court to exercise its extra ordinary jurisdiction under Art.226 of the Constitution. However that might be, as the learned single Judge found, S.39(2) of the Kerala Panchayats Act and R.20 of the Kerala Panchayats (Establishment) R.1967 (rules made under S.129 read with S.39 of the Act) do prima facie interpose an impediment in the course of justice which, we are happy to say, we think we have been able to surmount with the able assistance of counsel.

(3.) Sub-s.(2) of S.39 of the Kerala Panchayats Act (the Act for short) expressly lays down that the appointment of any member of the establishment of a Panchayat other than the executive officer shall be made only with the approval of the Panchayat. The same sub-section provides for the making of rules "for the constitution of any class of officers or servants of Panchayats, other than the executive officers, into a separate service either for the whole State or for each Revenue District". (Sub-s.(3) of S.33, we might mention, provides for the constitution of the executive officers into a separate service or cadre either for the whole State or for each Revenue District). But no such rules having been made - it seems very desirable that officers below the rank of executive officers should be constituted into at least district services - each Panchayat is a separate and independent unit for the purpose of the appointment of its staff - that was the position under the Madras Act as well. R.20 of the Establishment Rules provides for the transfer of Panchayat employees from one Panchayat to another. Under sub-r.(1) of the rule, this can be done by the specified authority on the request of an employee, and, under sub-r.(2), without such a request in the exigencies of the service. In either case, sub-r.(3), perhaps to be in keeping with sub-s.(2) of S.39, lays down that a transfer shall be made only with the concurrence of the Panchayat concerned. It is because of the approval or the concurrence of the Pinarayi Panchayat not having been obtained to the appellant being posted as Panchayat Assistant there, that O. P. No. 2328 of 1968 has been allowed, the learned single Judge taking the view that the posting effected by means of Exts. P-4 and P5 was in breach of sub-s.(2) of S.39 of the Act and sub-r.(3) of R.20 of the Establishment Rules.