Full Judgment
O.P.(KAT) No.540 of 2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR. JUSTICE T.R.RAVI MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942 OP(KAT).No.540 OF 2019 AGAINST THE ORDER IN OA 416/2017 DATED 06-03-2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONERS/RESPONDENTS IN THE OA:
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001. 2 DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, THIRUVANATHAPURAM, KERALA - 695 001. 3 THAHSILDAR, TALUK OFFICE, NEYYATTINKARA, THIRUVANANTHAPURAM, KERALA - 695 121. 4 VILLAGE OFFICER, VILLAGE OFFICE, PARASUVAKKAL, THIRUVANANTHAPURAM, KERALA - 695 508. 5 VILLAGE OFFICER, VILLAGE OFFICE, KARODE, THIRUVANANTHAPURAM, KERALA - 695 508. 6 VILLAGE OFFICER, VILLAGE OFFICE, KOLLAYIL, AMARAVILA P.O., THIRUVANANTHAPURAM, KERALA - 695 122. 7 VILLAGE OFFICER, VILLAGE OFFICE, VIZHNJAM,
O.P.(KAT) No.540 of 2019 2 THIRUVANANTHAPURAM, KERALA - 695 521. BY SR.GOVERNMENT PLEADER SRI B.VINOD RESPONDENTS/APPLICANTS IN THE OA:
1 LALITHAMMA, AGED 63,SWEEPER, PARASSUVAKKAL VILLAGE OFFICE, PARASUVAKKAL P.O., NEYYATTINKARA, THIRUVANANTHAPURAM - 695 508, RESIDING AT KALIYIKKAL VEEDU, PARASUVAKKAL, PARASUVAKKAL P.O., THIRUVANANTHAPURAM, KERALA - 695 508. 2 MARY ROSE, AGED 47, SWEEPER, KARODE VILLAGE OFFICE, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 506, RESIDING AT AJEESH BHAVAN, MAARADI, ERICHALLOOR, PLAMOLOTTUKKADA, PLAMOOTTUKKADA P.O., THIRUVANANTHAPURAM, KERALA- 695 122. 3 SYAMALA, AGED 50 YEARS CASUAL SWEEPER, KOLLAYIL VILLAGE OFFICE, NEYYATTINKARA, THIRUVANANTHAPURAM- 695 122, RESIDING AT CHERUKOTTUKONAM, KADAYARA PUTHENVEEDU, MANCHAVILAKOM P.O., THIRUVANANTHAPURAM, KERALA - 695 503. 4 SUJA, AGED 45, CASUAL SWEEPER, VIZHINJAM VILLAGE OFFICE, VIZHINJAM, THIRUVANANTHAPURAM-695521, RESIDING AT MUKKOLA, MUDUPARAVILA COLONY, VENGANNOOR, VENGANNOOR P.O., THIRUVANANTHAPURAM, KERALA-695 523. R1-4 BY ADV. SRI.L.MOHANAN R1-4 BY ADV. SMT.LIGEY ANTONY R1-4 BY ADV. SMT.ZISMA MADHU THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(KAT) No.540 of 2019 3 ALEXANDER THOMAS & T.R. RAVI, JJ. ------------------------------------------------ O.P.(KAT) No.540 of 2019 [Arising out of order dated 06.03.2017 in O.A.No. 416 of 2017 of KAT, Tvm Bench] -------------------------------------------------- Dated this the 1st day of February, 2021
JUDGMENT
T.R. RAVI, J.
The original petition has been filed by the State of Kerala and its officers/authorities, challenging the order dated 06.03.2017 in O.A.No.416 of 2017 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram (hereinafter referred to as the Tribunal). The petitioners were the respondents before the Tribunal and the respondents were the applicants.
2. The issue relates to entitlement of the respondents to be
regularised in service as a Part Time Sweepers. A learned Single Judge of this Court in the judgment in Mercy v. State of Kerala reported in [2004 (2) KLT 848] disposed of a batch of writ petitions filed by casual sweepers, with certain directions. In the cases before the learned Single Judge, the petitioners were all persons who were engaged prior
O.P.(KAT) No.540 of 2019 4
to 06.10.2003 on which day, the Government had issued clarifications regarding the manner of calculation of sweeping area. The respondents herein are also persons similarly situated like the petitioners in the above said case, since they are persons who were being engaged with effect from November 1985, 15.2.1986, 7.3.1995 and 1.5.2001, respectively. In Mercy's case (supra) reported in [2004 (2) KLT 848], it was directed that the sweeping area with regard to persons who were engaged prior to 06.10.2003, it is to be calculated as the carpet area, varandah, corridor, staircase and the courtyard, usually swept. It was also held that in any case the area shall not exceed 1½ times the plinth area. It was further held that since the State had enjoyed the fruits of the labour of such persons, they shall not be terminated from service for the only reason that they have not been appointed through the Employment Exchange. The Court further directed that all the Part Time Sweepers who have approached the Court as well as those who have not approached the Court shall be paid wages including arrears on the basis of the 1997 pay revision order with effect from 01.03.1997.
3. The judgment of the learned Single Judge was carried in
appeal by the State and its Officers. A Division Bench of this Court took note of a scheme proposed by the State for regularisation of the part-time sweepers and disposed of the appeals filed by the State by O.P.(KAT) No.540 of 2019 5
judgment dated 12.08.2005 in State of Kerala and others v.
M.M.Mercy and others (W.A.No.1863 of 2004 and connected cases). The Division Bench confirmed the judgment of the learned Single Judge and further directed that the sweeping area is a matter to be found on actual measurement at the instance of the respective officers under the supervision of the head of the district of the concerned Department with the aid of an Engineer from the Public Works Department, taking into account the requirement of the offices concerned. It was further held that in cases where sweeping area is disputed, the same shall be fixed by causing actual measurement with notice to the incumbents concerned in their presence.
4. On the basis of the judgment of the Division Bench, the
Government modified the order dated 02.08.2005 and carved out a fresh a order, GO(P) No.501/2005/Fin. dated 25.11.2005 to govern the cases of regularisation of existing eligible casual sweepers, wherein it is ordered that wherever the sweeping area exceeds 100 M 2 and if there is no post of Part Time Sweeper sanctioned for the office in question, but there is a casual sweeper being engaged, steps are to be taken for creation of a post of part time contingent sweeper. The posts are to be created with effect from the date of appointment of the incumbent as casual sweeper or from 18.6.2001 (i.e., three years preceding the date
O.P.(KAT) No.540 of 2019 6 of the judgment of the learned Single Judge in Mercy v. State of Kerala [2004 (2) KLT 848]), whichever is later.
5. In the case on hand, according to the respondents/
applicants before the Tribunal, the sweeping area was more than 100M2 and they were granted the benefit of the pay scale as per G.O. (P)No. 3000/1998/Fin dated 25.11.1998. The Tribunal found that since applicants were engaged continuously from 1985, 1986, 1995 and 2001 onwards, they are eligible to the benefits of the Government orders of 2005 and 2010. The Tribunal has only directed that if the respondents have been in continuous engagement in their respective Village Offices, the petitioners 4 to 7 herein will take immediate steps to have the sweeping area measured by an Assistant Engineer of PWD of the area and, if on obtaining the sweeping area certificate, it is found that the area is beyond 100 M2, necessary proposals for creating posts of Part Time Sweeper and regularisation of the respondents against the said posts will have to follow. This Original Petition has been filed contending that the sweeping area is less than 100 M2 and that when the sweeping area increased subsequent to 25.11.2005, the posts can be filled up only from among persons to be sponsored by the Employment Exchange.
6. We have considered the contentions raised by the learned O.P.(KAT) No.540 of 2019 7
Senior Government Pleader appearing on behalf of the petitioners. Primarily, since there is no positive direction issued by the Tribunal to regularise the respondents, we do not find any reason why the petitioners should feel aggrieved by the order of the Tribunal. The question of regularisation will arise only after the measurement is carried out in terms of G.P.(P)No.501/2005/Fin. dated 25.11.2005 read with the judgment of the learned Single Judge in Mercy's case (supra) reported in [2004 (2) KLT 848], regarding persons who were engaged prior to the year 2003. The contention that in case the sweeping area increased subsequent to 25.11.2005, the incumbent is not entitled to regularisation is not legally sustainable in the light of the subsequent Government order G.O.(P)No.61/2010/Fin. dated 09.02.2010 which provided for regularisation of existing sweepers. The contention that if sweeping area increased after 25.11.2005, persons will have to be appointed through Employment Exchange also is not tenable in the light of the fact that the respondents are persons who were engaged prior to 06.10.2003, in whose case this Court had in Mercy's case (supra) [2004(2) KLT 848] specifically held that the sweeping area will be calculated as the carpet area, the verandah/corridor, stair case and the courtyard usually swept and that they shall not be terminated from service for the only reason that they were not appointed through
O.P.(KAT) No.540 of 2019 8 Employment Exchange.
7. We do not find any reasons to interfere with the order
passed by the Tribunal, in exercise of the extraordinary and supervisory jurisdiction under Articles 226 and 227 of the Constitution of India. The order of the Tribunal was issued on 06.03.2017 and the time
granted by the Tribunal for complying with the directions in the order
is long over. In the circumstances, we are inclined to grant a further period of two months from the date of receipt of a certified copy of this judgment, to the petitioners for complying with the directions issued by the Tribunal. The order dated 06.03.2017 issued by the Tribunal stands modified to the above extent. The original petition fails and is dismissed. In the circumstances of the case, there will be no order as to costs.
Sd/- ALEXANDER THOMAS, JUDGE Sd/- T.R. RAVI, JUDGE dsn O.P.(KAT) No.540 of 2019 9 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION ALONG WITH ANNEXURES. EXHIBIT P1(A1) COPY OF THE G.O.(P) NO. 501/2005/FIN DATED 25-11-2005. EXHIBIT P1(A2) COPY OF THE JUDGMENT DATED 16-09-2003 IN OP 1188/2003 (N) OF HONOURABLE HIGH COURT OF KERALA. EXHIBIT P1(A3) COPY OF THE REPORT SENT BY THE 4TH RESPONDENT ALONG WITH THE CERTIFICATE FROM THE PWD ENGINEER TO THE 3RD RESPONDENT. EXHIBIT P1(A4) COPY OF THE REPORT DATED 10-08-2010 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P1(A5) COPY OF THE LETTER DATED 17-07-2014 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P1(A6) COPY OF THE LETTER DATED 27-09-2016 ISSUED BY THE 4TH RESPONDENT . EXHIBIT P1(A7) COPY OF THE REPORT DATED 15-02-1986. EXHIBIT P1(A8) COPY OF THE REPORT OF THE KOZHIKODE VILLAGE OFFICER DATED 11-11-2003. EXHIBIT P1(A9) COPY OF THE REPORT OF THE KOLLAYIL VILLAGE OFFICER DATED 26-09-2016. EXHIBIT P1(A10) COPY OF THE JUDGMENT DATED 17-02-2014 IN WPC 5655/2004(W) OF HONOURABLE HIGH COURT OF KERALA. EXHIBIT P1(A11) COPY OF THE REPORT OF THE VIZHINJAM VILLAGE OFFICER DATED 01-04-2014 WITH
O.P.(KAT) No.540 of 2019 10
PROFORMA OF 4TH RESPONDENT. EXHIBIT P1(A12) COPY OF THE PROCEEDINGS OF 2ND RESPONDENT DATED 24-12-2004. EXHIBIT P1(A13) COPY OF THE PROCEEDINGS OF THE TAHSILDAR NEYYATTINKARA DATED 18-02-2005. EXHIBIT P1(A14) COPY OF THE ORDER G.O.(P) NO. 761/13/RD DATED 15-02-2013. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 06-03-2017 OF THE TRIBUNAL.