IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
OP(KAT).No.118 OF 2020
AGAINST THE ORDER/JUDGMENT IN OA (EKM) 806/2015 OF KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/S:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF
REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, KERALA -
695 001.
2 THE DISTRICT COLLECTOR,
KALPETTA, WAYANAD, KERALA - 673 122.
3 THE VILLAGE OFFICER,
VILLAGE OFFICE, IRULAM, SULTHAN BATHERY, WAYANAD,
KERALA -673 679.
BY GOVERNMENT PLEADER
RESPONDENT/S:
RADHAMANI P.K.,
AGED 56 YEARS, W/O.VELAYUDHAN, CASUAL SWEEPER,
VILLAGE OFFICE, IRULAM, SULTHAN BATHERY TALUK,
WAYANAD DISTRICT, RESIDING AT MUTHUKULATHIL HOUSE,
MANALVAYAL POST, IRULAM, WAYANAD, KERALA -673 579.
R1 BY ADV. SRI.KALEESWARAM RAJ
R1 BY ADV. SRI.VARUN C.VIJAY
R1 BY ADV. KUM.A.ARUNA
R1 BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 07.01.2021, ALONG WITH OP(KAT).116/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No.118 OF 2020 2
ALEXANDER THOMAS
&
T.R. RAVI, JJ.
=================
O.P.(KAT) No.118 of 2020
-----------------------------------
Dated this the 7th day of January, 2021
JUDGMENT
Alexander Thomas, J.
The prayers in the aforecaptioned original petition filed under Article 226 of the Constitution of India are as follows :
(i) "To set aside Ext.P4 order of the Kerala Administrative Tribunal Order dated 10.10.2019 in OA (Ekm) No. 806/2015
(ii) Any other order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case."
2. Heard Sr.B.Vinod, learned Government Pleader appearing for the petitioners/respondents in the OA (State of Kerala and others) and Sri.Kaleeswaram Raj, learned counsel appearing for the respondents herein/applicants in the OA.
3. It is common ground of both sides as can be seen from the averments in para No.3 of the reply statement dated 8.2.2016 filed by the State Government and para No.2 of the reply statement dated 23.11.2015 filed by the District Collector concerned that the respondent herein (original applicant before the Tribunal) has been working continuously as casual sweeper in the Village Officer, Irulam from 1.8.2000. OP(KAT).No.118 OF 2020 3
4. The original applicant along with certain other similarly situated persons had approached this Court seeking regularisation of the service and this Court as per Ext.P1(A1) judgment dated 27.8.2002 in O.P.No.28610 of 1999 had directed the District Collector concerned to sanction and disburse the pay and allowances to the petitioners therein at the rate applicable to the regular part time sweepers in the light of the decision of this Court in Santhamma Amma v. State of Kerala [2001 (1) KLT SN 69]. Thereafter, the applicant has been continuing in service and getting regular pay as directed in the said Annexure-A1 judgment. Later, the State Government has issued a GO(P) No. 501/2005/Fin dated 25.11.2005 issuing guidelines for regularisation of the service of casual sweepers whereby in all offices/establishments where sweeping area is above 100 sq.mtrs. the head of the offices were directed to send proposals for creation of the post of part time sweepers for regularising the casual sweepers for working in such posts. The abovesaid GO(P) No.501/2005/Fin dated 25.11.2005 has not been produced by both sides in this case for reasons not known to this Court. However, we are fortunate that a copy of the said GO(P) dated 25.11.2005 has been produced as an exhibit in the case in OP(KAT) No.116 of 2020, which has been produced as an annexure in the original application from which that original petitioner has arisen.
OP(KAT).No.118 OF 2020 4
5. It is indeed the admitted case of the petitioners herein (respondents in OA) that later the sweeping area in the Village Office, Irulam was increased and the total sweeping area has come to 100.70 sq.mtrs. w.e.f. 10.9.2012 as can be seen from Annexure-A2 certificate. Hence, it is the claim of the original applicant that based on the enhanced sweeping area, her service is entitled to be regularised in terms of the abovesaid GO(P) No.501/2005/Fin dated 25.11.2005 and it is a subsequent clarification as per Annexure-A7 GO dated 9.2.2010.
6. The State Government and the District Collector concerned have filed the aforementioned reply statements in the OA filed before the Tribunal. The abovesaid crucial factual aspects that the applicant has been consistently and continuously working as sweeper in the Village Office, Irulam from 1.8.2000 is fully admitted in both the said reply statements. The only objection raised in the said reply statements filed before the Tribunal as against the claim made by the original applicant for regularisation as above is that the earlier, the application submitted for regularisation of service and for creation of post of part time sweeper was not in the prescribed proforma as per GO(P) No.501/2005/Fin dated 25.11.2005 and hence, the District Collector, Wayanad had directed the Tahsildar concerned to obtain the application in the prescribed proforma from the applicant. Later that, the District Collector has infact forwarded OP(KAT).No.118 OF 2020 5 the said proposal to the Commissioner for Land Revenue, Government of Kerala as early as on 28.10.2015, but that the proposal has not been received in Government so far. It is also admitted in para No.4 of the abovesaid reply statement filed by the State Government before the Tribunal that the sweeping area of Irulam Village office is 100.70 sq.mtrs. after completing an additional construction in the building concerned on 10.9.2012 and that the District Collector, Wayanad has forwarded the proposal for creation of post of part time sweeper in the Village Office, Irulam to the Commissioner for Land Revenue, Government of Kerala on 28.10.2015.
7. Further, there is an averment that as the creation of posts and regularisation of service involves financial implication, the administrative department has to consult the finance Department also after receipt of the proposal and that the Government has not denied the regularisation of service of the applicant. Similar averments have been replicated in the reply statement dated 23.11.2015 filed by the District Collector before the Tribunal. A reading of the said reply statement filed by both the State Government and the District Collector would make it clear that no major objection has been raised thereto as against the claim of the applicant for regularisation, except that the application was initially not in the prescribed proforma and that later, the same was obtained in the OP(KAT).No.118 OF 2020 6 prescribed proforma, through the Tahsildar, who in turn has forwarded to the District Collector, who in turn has forwarded the same to the Commissioner for Land Revenue.
8. While the State Government would say in the reply statement that they have not so far received the said application from the Commissioner for Land Revenue, the District Collector in his reply statement would submit that he has already done his part by forwarding the same to the Commissioner for Land Revenue, meaning thereby thereafter, it is the obligation of the Commissioner for Land Revenue who in turn forwarded the same to the State Government. It is repeatedly admitted in both the reply statements that as a matter of fact, sweeping area of the Village Office, Irulam has come to the area of 100.70 sq.mtrs. on 10.9.2012 as a result of additional construction completed thereto.
9. It is in the light of these admitted facts that the Tribunal has passed the impugned order, which is a well considered one, whereby it has been held that the petitioner is entitled for regularisation as part time sweeper w.e.f. 10.9.2012 with all consequential benefits and needless to say the relevance of sanctity of the said cut-off date of 10.9.2012 is that the date on which admittedly the sweeping area has come to the level of above 100 sq.mtrs., which is the pre-requisite norm for regularisation. Para No.8 of GO(P) No. 501/2005/Fin dated 25.11.2005 reads as follows :
"For the regularization of the existing casual sweepers (where the sweeping OP(KAT).No.118 OF 2020 7 area exceeds 100 sq.mtrs.), creation of posts of part-time contingent employees depending on the sweeping area has to be made. The sweeping area will be calculated in accordance with the guidelines given in the Appendix. As far as regularisation of existing casual sweepers are concerned, the measurement will be made by the PWD official after notice to the incumbent casual sweeper and in his presence. The incumbent casual sweeper will also sign in the format at Annexure either agreeing with the measurement or disagreeing with it. This exercise will be completed in all cases by 15-12-2005. If, on fixation, the area is seen to exceed 100 sq.mtrs, and if there is no post of part time sweeper sanctioned for the office in question, but there is a casual sweeper being engaged, the Head of the Office shall immediately take up with the Government for creation of a post of part-time contingent sweeper. Copies of the certificate of the PWD Engineer and full details of the case in the proforma in the Annexure shall be furnished along with the proposal. The Administrative Dept. In Govt. Shall then issue orders before 21-1-2006, in consultation with the Finance Dept.,for the creation of the post of part-time sweeper in relaxation of the economy orders and absorbing the existing casual sweeper by giving the remuneration of Rs.1250 plus DA p.m. (for area of 100 sq.mtrs. And above but below 400 sq.mtrs.) and Rs.1500 plus DA p.m. (for area of 400 sq.mtrs. And above but below 800 sq.mtrs.). The posts shall be created with effect from the date of appointment of the incumbent as Casual Sweeper or from 18.6.2001 [i.e. 3 years preceding the date of judgment vide ref. (10) above] whichever is later. In the case of those covered by earlier orders of the High Court (for regularisation) the relevant date shall be the date of appointment of the incumbent as Casual Sweeper or the date 3 years preceding the date of such judgment ordering regularisation, whichever is later. The absorption/regularization shall be done with effect from this date only. Back arrears shall be payable only with effect from this date of regularisation. The period spent prior to regularisation shall not count for any purpose."
10. Since, the sweeping area in the office in which the applicant has been employed as the part time sweeper, was below the threshold level of 100 sq.mtrs, even as on the issuance of GO(P) No. 501/2005/Fin dated 25.11.2005 and thereafter, upto 10.9.2012, the Tribunal has very guardedly ordered that the regularisation of the applicant can take effect only from 10.9.2012. As a matter of fact, such a plea was not even put up by the State Government and the District Collector in the reply statements. Even without such a plea put up by the State Government and the District Collector, the Tribunal has very fairly and consciously guarded the interests OP(KAT).No.118 OF 2020 8 of the State Government and the Government Department by ordering that the regularisation can take effect only from 10.9.2012. This Court would say so as a reading of the abovesaid GO(P) dated 25.11.2005 would indicate that in case the sweeping area is above 100 sq.mtrs. as on the issuance of said GO dated 25.11.2005, then post has to be created with effect from the date of appointment of the incumbent as casual sweeper or from 18.6.2001 (3 years preceding the date of judgment referred to therein).
11. Thus it can be seen that the Tribunal has very carefully and prudently taken care of even all aspects of the matter including the public interest and financial implications by very guardedly ordering that the date of regularisation of the applicant can only be from the date on which the sweeping area has attained the area/level of above 100 sq.mtrs. viz.10.9.2012. It is this order of the Tribunal rendered on 10.10.2019 leading to the final disposal of the abovesaid OA (Ekm) No. 806 of 2015 that is now sought to be challenge by the petitioners herein by filing the abovesaid OP(KAT).
12. After hearing both sides and after going through the pleadings and materials on record, it appears that a totally new plea is now put forward by the petitioners herein in objecting to the directions in the impugned order of the Tribunal. In the last paragraph of the synopsis of OP(KAT) No. 118 of 2020, the averments are to the effect that "the OP(KAT).No.118 OF 2020 9 Tribunal, while disposing the Original Application in the light of G.O.(P) No.501/2005/Fin dated 25.11.2005, erroneously omitted to appreciate the fact that the very same order categorically says that part time contingent sweepers will be employed in new offices against vacancies that arise in future only after getting name from the employment exchange. It is also further clarified in Government order that under no circumstances any person shall be engaged otherwise than through employment exchange. There, the sweeping area was increased to 100.70 sq. ms with effect from 10.9.2012 and therefore, as stated in the said GO, if a new post is sanctioned to be filled up through employment exchange. The Tribunal glossed over the above facts and allowed the OA........".
13. The objections in that regard are also made using a different language, by putting the averments in a different form as can be seen from para No.4 of the averments in the present OP(KAT), which reads as follows :
"4. The Tribunal while disposing the Original Application in the light of GO(P) No. 501/2005/Fin dated 25.11.2005, erroneously omitted to appreciate the fact that the very same order categorically says that Part Time Contingent Sweepers will be employed in new offices against vacancies arise in future, only after getting name from the employment exchange. It is also further clarified in the Government Order that, under no circumstances any person shall be engaged otherwise than through employment exchange. Here, the sweeping area was increased to 100.70 square meters with effect from 10.09.2012. Therefore, as stated in the Government Order, if a new post is sanctioned it is to be filled up through Employment exchange. Accordingly, the claim of the respondent herein for regularization in the post of Part Time Sweeper cannot be considered. True copy of the order of the learned Tribunal dated 10.10.2019 in the above Original Application is produced herewith and marked as Exhibit P4. Aggrieved by Exhibit P4 order, this OP(KAT) is being field on the following among other."
14. A reading of the para No.4 of the OP(KAT) would show that OP(KAT).No.118 OF 2020 10 since the sweeping area was increased to 100.70 sq.mtrs. with effect from 10.9.2012, therefore, as stated in the Government order, if a new post is sanctioned, it is to be filled up through the employment exchange. Accordingly, the claim of the respondent herein "for regularisation of the post of part time sweeper cannot be considered etc."
15. This Court finds it extremely difficult to understand the exact import of the language employed in para No.4 of OP(KAT). It is common ground that if the total sweeping area exceeded 100 sq.mtrs. only with effect from 10.9.2012. Thereafter, without stating any factual aspects, straightaway the petitioners would jump to the conclusion that therefore, it has been stated as if a new post is sanctioned and since what is involved is creation of a new post, it can be filled up through employment exchange etc. A reading of the averments in OP(KAT) as well as in its synopsis, would lead to the inference that presumably the contention appears to be that since the alteration of building appears to be a new building etc., which has been treated as a new office and that therefore, the post of part time sweeper should be treated as a fresh post in the new establishment and therefore, going by the said GO(P) dated 25.11.2005, it has to be only in accordance with the regular method of appointment through the employment exchange.
16. Admittedly, the petitioner has been working in the OP(KAT).No.118 OF 2020 11 establishment of the Village Office, Irulam since 1.8.2000, it appears that from a reading of the averments of the two reply statements filed by the State Government and District Collector before the Tribunal, it appears that some alterations in the building was conducted and thereafter, the total sweeping area of the Village Office became 100.70 sq.mtrs. with effect from 10.9.2012. The details regarding the increase of the sweeping area are discernible from a mere reading of Annexures-A2 and A3 produced in the OA filed before the Tribunal. Moreover, the abovesaid facts borne out from Annexures-A2 and A3 have been also reinforced by the report of the Tahsildar produced as Ext.A4 filed in the OA. It appears that the endeavour sought to be made by the petitioners is that going by the abovesaid GO(P) No.501/2005/Fin dated 25.11.2005, if the sweeping area was below 100 sq.mtrs. as on the date of the said GO, then the incumbent was not entitled for regularisation as envisaged in para No.8 thereof, but such incumbent would be entitled only for the benefit envisaged in terms of para No.9 thereof.
17. Para No.13 of the said GO dated 25.11.2005 speaks about part time contingent sweepers employed in new offices and establishments. In other words, para No.13 deals with cases where offices/establishments are established for the first time and therefore, since it is a new establishment of the office, there could not have been any part time sweeper working in OP(KAT).No.118 OF 2020 12 such office and in such cases, if a sweeper is to be engaged or appointed, then it is strictly ordered in para No.13 of the said GO that in such cases, the part time sweepers could be appointed only through the regular method of consideration of candidates sponsored by the employment exchange. Yet another temporary contingency is also envisaged therein that until the process of regular appointment through the employment exchange, contract engagement through the local 'Kudumbasree' society could also be permitted on a short term basis. Para No.14 of the GO dated 25.11.2005 deals with further aspects regarding creation of posts of part time sweeper in the newly formed offices.
18. After hearing both sides, there cannot be any doubt for any ordinary reasonable prudent person that para Nos.13 and 14 will have no application whatsoever in the facts and circumstances of this case. The Village Office, Irulam has been in existence for quite a long time and the petitioner has been working as sweeper in the said Village Office, Irulam since 1.8.2000. It so happened that subsequently, alterations of the building was made which resulted in the enhancement of the sweeping area to 100.7 sq.mtrs. with effect from 10.9.2012. Therefore, to construe that in such a contingency, the existing incumbent has to be totally thrown out and a new incumbent can be appointed only through the regular process of consideration of candidates through the employment exchange, is to say OP(KAT).No.118 OF 2020 13 the least absolutely unreasonable and arbitrary and never intended in the abovesaid GO and the norms governing the field. In a case of this nature, where the sweeping area had not come to the threshold level of 100 sq.mtrs. as on the date of the GO dated 25.11.2005, the incumbent is not entitled for regularisation as ordered in para No.8 of the said GO, but could get only certain lesser benefits in terms of para No.9 thereof etc. The said crucial aspect of the matter is all the more evident and manifest from a mere reading of the provisions contained in GO(P) No.61/2010/Fin dated 09.02.2010 produced at Annexure-A7 in the instant OA. A reading of para No.2 of the said GO dated 09.02.2010 would make it clear that as per the conditions stipulated in the earlier GO dated 25.11.2005, those incumbent, who were working in offices having sweeping area below 100 sq.mtrs were not eligible for regularisation and hence, number of such sweepers who were not benefited by the decisions and accordingly, taking note of certain directions in the judgments issued by this Court referred to therein, which has been ordered in para No.3 (i) of the said Annexure-A7 GO dated 09.02.2010 as follows :
3. "In view of the above observations Government felt it highly necessary to incorporate certain modifications/clarification to the existing Government Order. Accordingly, the following clarifications are issued.
(i) All existing sweepers, other than Casual Sweepers, irrespective of the mode of appointment, shall also be entitled for regularization based on the sweeping area, defined in the Government order read as 3 rd paper above, provided their appointments were made on or before the issuance of GO read above and are continuing as such on the date of this order. The regularisation will have effect from the date of this order only."
19. Thus, it can be seen that in a case where an incumbent like the OP(KAT).No.118 OF 2020 14 applicant was not entitled for regularisation on the basis of GO(P) dated 25.11.2005 on the ground that the sweeping area was below the threshold level of 100 sq.mtrs, then they shall be entitled for regularisation based on the sweeping area defined in the said GO dated 25.11.2005, provided that appointments made on or before the issuance of the GO read above and are continuing as such on the date of this order and that the regularization will have effect from the date of the said GO(P) dated 09.02.2010. Therefore, the case of the petitioner would be fully covered by the provisions of the said Annexure-A7 GO dated 09.02.2010. It is beyond any doubt that the applicant was in service from 01.08.2000 and she was continuing in service thereafter. Hence, she would fulfill both the conditions that the incumbent was already in service on or before the issuance of GO(P) dated 25.11.2005 and has also continuing in service as on the date of Annexure-A7 GO dated 09.02.2010. However, there could be some pre-area as to whether the date of regularization in such cases would be from the date of the said GO dated 09.02.2010 or only after the minimum sweeping area norm is fulfilled subsequently. There cannot be any doubt that if the minimum sweeping area norm is fulfilled only after the issuance of GO(P) dated 09.02.2010, then the regularization can take effect only from the date on which the said minimum norm of sweeping area is actually fulfilled and it cannot be from the date of issuance of OP(KAT).No.118 OF 2020 15 Annexure-A7 GO dated 09.02.2010. In a case where the sweeping area norm was not fulfilled as on the date of issuance of GO(P) dated 25.11.2005 and the said sweeping area norm was fulfilled only later and irrespective as to whether the said sweeping area increment happened immediately before or after the issuance of said GO(P) dated 09.02.2010, the benefit of regularization in such case can be claimed only or after from the date of issuance of GO(P) dated 09.02.2010, as the case may be.
20. In the instant case, where the minimum sweeping area norm is fulfilled only after the date of issuance of GO(P) dated 09.02.2010, the incumbent like the applicant cannot claim that the benefit of regularisation enures to her from 09.02.2010 but only from the date on which the said minimum norm is subsequently fulfilled, which in the instant case is 10.09.2012. Even without raising any such specific plea by the respondents in the OA, the Tribunal has very guardedly and carefully taken care of the public interest element as well as the financial implications by specifically ordering that the date of regularization as per the case of the applicant herein would be only with effect from the date on which the minimal sweeping area norm is actually fulfilled, viz. 10.09.2012. Judging from these aspects, it can be seen that the directions and orders passed by the Tribunal is a wholesome one dealing with various aspects of the matter, which are not even canvassed by the respondents in the OA. After this OP(KAT).No.118 OF 2020 16 process of adjudication, it is really disheartened to note that the petitioners have thought it fit to get into this exercise of filing the original petition under Articles 226 and 227 of the Constitution of India for challenging the said well considered order of the Tribunal. The objections raised in this original petition were never raised by the respondents in the OA before the Tribunal. Even the objections raised in this OP are quite ambiguous and it would require very strenuous effort of linguistic analysis for the Court to come to the conclusion as to what exactly is meant by the said objections sought to be projected in the synopsis and in the averments in the original petition. The objections are as aforestated, which appears to be absolutely untenable. It is not known as to why the State Government and the other authorities concerned have chosen to file such an original petition.
21. The Apex Court and various High Courts including this Court has consistently held and cautioned the public authorities to ensure that unnecessary exercise of appeals or litigative proceedings are not set in motion, as otherwise it would entail not only waste of public expenditure, but would also detrimentally affect the precious time and resources of the judicial organs of the State and also the time and the machinery of the public authorities concerned.
22. The upshot of the above discussion is that the original petition is devoid of any merit whatsoever and the pleas cannot be entertained by OP(KAT).No.118 OF 2020 17 this Court. However, we would only order that the time limit stipulated by the Tribunal in the impugned order dated 10.10.2019 in O.A.(EKM) No. 806 of 2015 for compliance of the directions and orders made therein will stand extended by a further period of two months from the date of production of a certified copy of this order as last chance. If there is an unreasonable delay on the part of the petitioners in complying with the abovesaid directions, it is for the petitioner to set in motion the appropriate proceedings before the Tribunal in the manner known to law.
With these observations and directions, the above Original Petition will stand dismissed.
sd/-
ALEXANDER THOMAS, JUDGE sd/-
T.R. RAVI JUDGE SKS OP(KAT).No.118 OF 2020 18 APPENDIX OF OP(KAT) 118/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF THE ORIGINAL APPLICATION
EXHIBIT P1(A1) TRUE COPY OF THE JUDGMENT DATED 27.8.2002
IN OP NO.28610/1999.
EXHIBIT P1(A2) TRUE COPY OF THE SWEEPING AREA CERTIFICATE
DATED 8.10.2012 PERTAINING TO THE
APPLICANT.
EXHIBIT P1(A3) TRUE COPY OF THE SWEEPING AREA CERTIFICATE
CALCULATION WITH SKETCH.
EXHIBIT P1(A4) TRUE COPY OF THE LETTER DATED 17.4.2013
EXHIBIT P1(A5) TRUE COPY OF THE LETTER DATED 07.02.2015
EXHIBIT P1(A6) TRUE COPY OF THE LETTER DATED 27.4.2015
EXHIBIT P1 (A7) TRUE COPY OF THE GO DATED 9.2.2010
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY
THE 1ST RESPONDENT IN THE OA
EXHIBIT P3 THE 2ND RESPONDENT IN THE OA HAS ALSO FILED
A REPLY STATEMENT
EXHIBIT P4 TRUE COPY OF THE ORDER OF THE LEARNED
TRIBUNAL DATED 10.10.2019 IN THE ABOVE
ORIGINAL APPLICATION.