Judgment:
P.N. Ravindran, J.
1. The petitioner who is working as Casual Sweeper in the Government Veterinary Dispensary at Melady in Kozhikode district has filed this writ petition seeking a writ in the nature of mandamus commanding respondents 1 to 3 to regularise her in service as Part-time Sweeper with effect from 18.6.2001. She has also prayed for payment of salary and arrears consequent upon such regularisation.
2. The petitioner states that a post of Part-time Sweeper was sanctioned in Government Veterinary Dispenssary, Melady as per G.O. (Rt) No. 246/87/AD dated 13.2.1987 and that the sweeping area of Government Veterinary Dispensary, Melady is 261.41 Sq.mts. Claiming regularisation in service as Part- time Sweeper under Ext.P2 Government order dated 25.11.2005, the petitioner submitted a representation before the District Animal Husbandry Officer. She thereafter submitted another representation on 4.1.2007 along with which Ext.P3 relinquishment letter signed by the fourth respondent, Ext.P4 line sketch of Government Veterinary Dispensary, Melady and Ext.P5 sweeping area certificate were enclosed. The representation dated 4.1.2007 along with Exts.P3, P4 and P5 were forwarded by the Veterinary Surgeon, Government Veterinary Dispensary, Melady to the District Animal Husbandry Officer, Kozhikode along with Ext.P6 letter dated 6.9.2007 who in turn forwarded it to the Government. The Government rejected her request for regularisation and communicated the decision to the Director of Animal Husbandry by Ext.P7 letter dated 22.1.2008. The petitioner contends that the Government have not while rejecting her claim for regularisation taken note of the letter of relinquishment submitted by the fourth respondent who had worked as Casual Sweeper only for a short period or the fact that the fourth respondent has not worked as Casual Sweeper since March, 2006. The petitioner also contends that as the Government Veterinary Dispensary at Melady has a sweeping area of more than 100 Sq.mts. and she has been continuously working as Casual Sweeper, the Government erred in rejecting the claim for regularisation. She further contends that paragraph 10 of Ext.P2 Government order cannot stand in the way of her regularisation for the reason that the fourth respondent has relinquished her claim for regularisation.
3. The third respondent has filed a counter affidavit. It is stated that the petitioner was engaged to do sweeping and cleaning work with effect from April, 1999 onwards on daily wage basis. The third respondent admits that the petitioner was engaged during April, 1999 to June, 1999, October, 1999 to December, 1999, April, 2000, July, 2000, September, 2000, November, 2000, January, 2001, March, 2001, May, 2001 and July, 2001. It is also stated that from 1.2.2003 onwards she was engaged only for a fortnight every month and that during the period from July, 1999 to 31.3.2006, fourth respondent was being engaged every alternate fortnight and also on bi-monthly basis. The third respondent further contends that only persons engaged continuously on a consolidated wage of Rs. 600/- per mensem are eligible for regularisation. Relying on paragraph 10 of Ext.P2 Government order dated 25.11.2005 it is contended that when there are two claimants, regularisation can be made only on a case-to-case basis. It is contended that though a sanctioned post of Part-time Sweeper exists and there is adequate sweeping area, the petitioner is not eligible for regularisation as she was not engaged continuously.
4. I have considered the submissions made at the Bar by the learned Counsel appearing on either side. Paragraph 8 of Ext.P2 Government order stipulates that existing casual sweepers shall be regularised if the sweeping area exceeds 100 Sq. mts. by creating a post of Part-time Contingent Sweeper. As per paragraph 8 of Ext.P2, a Casual Sweeper in service as on 25.11.2005 is entitled to regularisation in service. The emphasis in paragraph 8 of Ext.P2 Government order is not on the nature of employment. Paragraph 8 of Ext.P2 Government order does not stipulate that only those casual sweepers who were engaged continuously on payment of Rs. 600/- per mensem as wages are eligible for regularisation. In such circumstances, I am of the opinion that the petitioner cannot be denied regularisation merely for the reason that she had not worked continuously on a consolidated salary of Rs. 600/- per mensem. Yet another ground on which the petitioner's claim for regularisation has been rejected is that the fourth respondent was also being engaged every fortnight upto 31.3.2006. The official respondents rely on paragraph 10 of Ext.P2 Government order to contend that where there are two claimants, the question of regularisation has to be decided on a case-to-case basis if necessary by accommodating the second claimant in another office. Paragraph 10 of Ext.P2 Government order reads as follows:
10. There could be a few cases where the existing casual sweepers were terminated in accordance with the Government order of 19.7.2003 and new persons selected through Employment Exchange. There would then be 2 claimants for the same post. This would be decided on a case to case basis, if necessary, accommodating such persons in other offices. Such cases will also be reported to Government and absorption done only under the orders of the Government.
5. On a plain reading of paragraph 10 of Ext.P2 Government order, it is evident that the situation contemplated therein would arise only where the service of a casual sweeper who was being engaged prior to 19.7.2003 is terminated and a fresh hand appointed through the Employment Exchange. In the instant case, the respondents have no case that the fourth respondent was thus appointed after terminating the service of the petitioner or vice-versa. The case of the official respondents is that till 31.3.2006, the petitioner and the fourth respondent were being engaged every alternate fortnight. Ext.P3 consent letter signed by the fourth respondent would disclose that she is not desirous of seeking regularisation and that she is also not being engaged after March, 2006. Ext.P3 also discloses that the petitioner is none other than the daughter of fourth respondent's mother's sister. The fourth respondent has also stated in categorical terms in Ext.P3 that she would not claim regularisation in service and that she has no objection to the petitioner being regularised in service.
6. The official respondents do not dispute the fact that along with the petitioner's application for regularisation, the original of Ext.P3 was also forwarded to the Government. The Government have however not adverted to the said aspect when it declined regularisation of the petitioner in service. This aspect has not been adverted to by the third respondent in the counter affidavit sworn to on 30.7.2008. The fourth respondent who has been served has also not resiled from Ext.P3. On the other hand, the fourth respondent has filed an affidavit dated 6.8.2008 renouncing her claim or regularisation. In fact, the fourth respondent has stated that her name found a place in the records in view of the insistence by the Veterinary Surgeon that vouchers for payment of wages to casual sweepers should be prepared in the name of two persons. In my opinion, in the light of the stand taken by the fourth respondent in Exts.P3 and in the affidavit dated 6.8.2008 sworn to by her, the petitioner's claim merits reconsideration at the hands of the Government.
I accordingly allow this writ petition, quash Ext.P7 and direct the Government to reconsider the petitioner's application for regularisation in the light of the observations made above and having regard to the fact that the fourth respondent has given up her claim for regularisation, that the sweeping area of the Government Veterinary Dispensary, Melady is 261.41 Sq. mts. and that the petitioner has been admittedly working as Casual Sweeper ever since April, 1999. The Government shall also take note of the fact that the petitioner has been continuously working as Casual Sweeper since 1.4.2006. Final orders in the matter shall be passed expeditiously and in any event within two months from the date on which the petitioner produces a certified copy of this judgment before the Secretary to Government, Animal Husbandry Department.