Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 16TH DAY OF AUGUST 2023 / 25TH SRAVANA, 1945 WP(C) NO. 2683 OF 2016 PETITIONER: V.INDIRA., PART TIME SWEEPER/ SEAVENGER (MAZDOOR), DISTRICT COURT COMPLEX, KOZHIKODE, RESIDING AT VELANCHERY, NEAR GURUVAYOORAPPAN COLLEGE, KOZHIKODE DT BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH RESPONDENTS: 1 THE STATE OF KERALA, RERPESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001
2 THE REGISTRAR (SUBORDINATE JUDICIARY) HIGH COURT OF KERALA, ERNAKULAM 682 031 3 THE DISTRICT JUDGE, DISTRICT COURT COMPLEX, KOZHIKODE 673 032 BY ADVS. SRI.M.R.ANISON SMT.V.P.SEEMANDINI SR. SMT MABLE CKURIAN-SR GP SMT.P.A.RINUSA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The petitioner, who is stated to have worked as a ‘Mazdoor’ on daily wages in the Judicial Department for more than 35 years, has approached this Court impugning Ext.P6 order of the Government, whereby, his request to be appointed as a Part-time Sweeper in exceptional circumstances, has been rejected, saying that such an engagement would be counter to the provisions of the Special Rules for Part-time Contingent Service.
2. The petitioner points out to Ext.P5 recommendations
made by the 2nd respondent - Registrar (Subordinate Judiciary) of the High Court of Kerala (as the post was then called), explaining why she is entitled to be considered to the post of Part-time Sweeper, indicating therein the extenuating circumstances faced by her and requesting the Government to consider her case sympathetically on compassionate grounds; but that, disregarding all these, through Ext.P6, same has been rejected. She thus prays that Ext.P6 be set aside and the Government be directed to reconsider her claim, based on Ext.P5 recommendations, within a time frame to be fixed by this Court.
3. The afore submissions of Sri.K.R.Avinash - learned
counsel for the petitioner, were controverted by Smt.Mable C. Kurian - learned Senior Government Pleader, pointing out that Government could not accede to Ext.P5 recommendations because, appointment of the petitioner as a Part-time Sweeper would be contrary to Rule 3 of the Special Rules for Part-time Contingent Service, since any recruitment can be made only through Employment Exchange. She thus prayed that this Writ Petition be dismissed.
4. Smt.V.P.Seemanthini - learned Senior Counsel
instructed by Smt.P.A.Rinusa, appearing for respondents 2 and 3, submitted that it is solely because the appointment of the petitioner as a Part-time Sweeper would be contrary to the Statutory Scheme, that Ext.P5 request was made to the Government, to consider her claim sympathetically. She invited my attention to the specific recommendations made in the second and third pages of Ext.P5 and argued that the Government ought to have taken a more empathetic view of the petitioner’s situation, before Ext.P6 had been issued. She concluded saying that she has nothing more to comment in the matter and left it to this Court to take an apposite decision.
5. I have evaluated Ext.P6 and, as rightly argued by
Sri.K.R.Avinash, it cites only one reason for denying the claim of the petitioner, namely, that it would fall foul of Rule 3 of the Special Rules for Part-time Contingent Service, because appointment to the post of Part-time Sweeper can be done only through the Employment Exchange. However, in Ext.P5, the 2 nd respondent had categorically recorded why the petitioner is deserving an empathetic treatment. I, therefore, deem it appropriate to extract the relevant portions of it, so as to have a full reading, as under:
High Court has examined the matter and it is found that as Smt.Indira is working as a Mazdoor on daily wages and as no independent sweeping are is allotted to her she
does not come under the purview of the Government Order
for regularistaion as Part-time Sweeper. The District Judge has reported that there is an existing vacancy of Part-time Sweeper in the district which is to be filled through the Employment Exchange as per rules. However, Smt.Indira has been working as Mazdoor on daily wages for the last 26 years. Her date of birth is 15.06.1956 and she is 55 years old. The age limit for appointment of Part-time Sweeper is 35 years and appointment to an existing
vacancy of Part-time Sweeper is to be made through Employment Exchange vide Rule 5(a) and Rule 3, Special rule for Part-time Contingent Service. High Court found that her case is genuine as she has been serving the department for a period of more than 25 years receiving meagre remuneration. But due to the above rule position, the High Court is not in a position to grant relief to the incumbent though a vacancy is available to accommodate her. The Government could alone grant her appointment in the existing vacancy in relaxation of rules by invoking Rule 39 of Kerala State and Subordinate Service Rules. Further, as per the report of the District Judge, Smt.V.Indira has no house or land of her own. The daily wages is the sole income of her family. Her husband, who was a lottery seller is not able to go to any job due to illness. She has submitted an Income Certificate from the Village Officer and her annual income is Rs.9000/-. The vacancy of Part-time Sweeper in the Family Court, Kozhikode sanctioned as per GO(MS)No.117/92/Home dated 06.06.1992 is kept vacant for the time being for consideration of appointment of Smt.Indira, otherwise the vacancy has to be filled up through the Employment Exchange. The District Judge, Kozhikode has no objection to appoint her in the existing vacancy. On consideration of all the circumstances, it is found that Smt.Indira deserves sympathetic consideration as a special case. I am therefore directed to request the Government to consider the matter sympathetically on compassionate grounds and to issue orders granting appointment to Smt.V.Indira as Part-time Sweeper in the existing vacancy, in relaxation to the rules, invoking the power under Rule 39 of Kerala State and Subordinate Service Rules.
6. Obviously, when such recommendations were made, it
was certainly incumbent upon the Government to have considered it in its proper perspective, rather than to reject it through Ext.P6, in a rather mechanical fashion, as has been done now. I cannot find favour with Ext.P6 for this reason and am certain that the Government must reconsider the claim of the petitioner, particularly because she has not yet reached the age of 70, which is the age of superannuation for Part-time Sweeper. In the afore circumstances, I order this Writ Petition and set aside Ext.P6; with a consequential direction to the Government to advert to Ext.P5 and take an apposite decision with respect to the petitioner’s case and communicate to her the resultant order, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. I make it clear that if the Government is to find in favour of the petitioner in terms of Ext.P5, it is up to them to specifically mention that it will not operate as a precedent and that it has been issued only in the exceptional circumstances presented, as mentioned therein. Sd/- RR DEVAN RAMACHANDRAN JUDGE APPENDIX OF WP(C) 2683/2016 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 15-10-2009 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 11-10-2011 ISSUED BY THE SHIRASTHADAR OF THE 3RD RESPONDENT EXHIBIT P3 TRUE COPY OF THE INCOME CERTIFICATE DATED 12-10-2011 ISSUED BY THE VILLAGE OFFICER, NELLIKODE EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 14-11-2011 ISSUED BY THE THEN COUNCILOR OF WARD NO 28 OF KOZHIKODE CORPORATION EXHIBIT P5 TRUE COPY FO THE LETTER DATED 16-12-2011 OF THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 18-04-2012 INTIMATING THE DECISION OF THE 1ST RESPONDENT EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER IN 2013 RESPONDENT EXHIBITS R2(a) True copy of the order bearing G.O.(P) No.501/2005/Fin. dated 25.11.2005 by government R2(b) Circular bearing No.64/2009/Fin. dated 04.08.2009 issued by the Government R2(c) A true copy of the order bearing G.O.
(MS) No.274/82/GAD dated 08.09.1982 R2(d) A true copy of the order bearing G.O.(P) No.154/08/Fin. dated 05.04.2008 R2(e) True copy of letter No.A1-9133/2023 dated 25.07.2023