The main legal point established in the judgment is that the Kerala Service Rules (K.S.R.) would not be automatically attracted to Municipal employees and that the option under R.2(b) of the K.S.R. must be exercised by Government servants of similar standing and status before its applicability to them and Municipal employees of coequal rank and status would follow.

V.P. Gopalan Nambiyar, J.

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:-

"12. 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 under 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 R.12 above extracted and that the petitioner is entitled to the benefit of the Rules in the K. S. R.

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

"2. Subject to the provisions of R.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 pers