Kerala High Court
State Of Kerala vs State Of Kerala on 1 February, 2021
O.P.(KAT) No. 38 of 2018 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.38 OF 2018(Z)
AGAINST THE ORDER DT.10.3.2017 IN TA 5212/2012 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 3 IN TA:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF INDUSTRIES, VIKAS BHAVAN
THIRUVANANTHAPURAM-695001.
3 ASSISTANT DISTRICT INDUSTRIAL OFFICER
TALUK INDUSTRIAL OFFICE, NEDUMANGAD,
KERALA-695541.
BY SR.GOVERNMENT PLEADER SRI B.VINOD
RESPONDENT/APPLICANT IN TA:
BHARATHY
PART TIME CASUAL SWEEPER,
TALUK INDUSTRIAL OFFICE, NEDUMANGAD,
THIRUVANANTHAPURAM, KERALA-695541.
BY ADV. KUM.A.ARUNA
BY ADV. SRI.KALEESWARAM RAJ
BY ADV. KUM.THULASI K. RAJ
BY ADV. SRI.VARUN C.VIJAY
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. 38 of 2018 2
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No. 38 of 2018
[Arising out of order dated 10.03.2017 in
T.A.No. 5212 of 2012 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 10.3.2017 in
T.A.No.5212 of 2012 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
respondent was the applicant.
2. The issue relates to entitlement of the respondent to be
regularised in service as a Part Time Sweeper. The respondent claims to
have been engaged as casual sweeper in the Taluk Industrial office,
Nedumangad continuously from the year 1990. According to her, the
sweeping area of the office was 164.87 M². The respondent filed
W.P.(C)No. 35813 of 2010 before this Court, praying for a direction to
the respondents to regularise her in service and for consequential
orders regarding pay. After the formation of the Kerala Administrative
Tribunal, the writ petition was transferred to the Tribunal and
renumbered as T.A.No.5212 of 2012. The 2 nd petitioner filed counter
affidavit while the case pending as a writ petition, contending that the
office of the third petitioner was functioning in a rented building from
1990 to 2007 and the sweeping area was below 100 M2. After shifting
to the new premises on 17.4.2007, the sweeping area increased to
164.87 M2. It was also stated in the counter affidavit which was filed on
24.5.2011 that the respondent was an old lady of 77 years and that she
is not entitled to the benefit of the order G.O.(P)No.501/2005/Fin.
dated 25.11.2005, since she cannot be continued in service beyond 70
years of age. The Tribunal considered the entire materials on record
and held that no material is produced to show that the sweeping area is
less than 100 M2 and since the applicant is aged, a direction for
regularisation may not be of any use. Instead, the Tribunal directed the
1st petitioner to sanction scale the of pay attached to the post of part-
time sweeper and that too with effect from 21.11.2010, which was the
date of filing of the petition before the Court. There is a further
direction to continue the respondent in service till her services are
required.
3. Aggrieved by the directions issued by the Tribunal, the State
and its officers have filed this original petition. The main contention of
the petitioners is that the direction to continue the respondent in
service is not legally sustainable since a part time contingent worker
cannot be engaged beyond the age of 70 years and the respondent was
77 years of age, even when she filed the writ petition in 2010. It is also
contended that she had crossed the age of 70 years when the office was
shifted to the new premises in 2007 and that the pay revision orders of
1998 are not applicable to the respondent.
4. Heard the learned Senior Government Pleader B.Vinod on
behalf of the petitioners and Sri Kaleeswaram Raj, learned counsel for
the respondent.
5. The respondent had filed the writ petition praying for a
direction that she should be regularised as a Part-time Sweeper. The
petitioners had filed counter affidavit as early as in 2011 contending
that the respondent was 77 years of age and hence not entitled to the
relief of regularisation. The respondent has not filed any reply refuting
the above statement in the counter affidavit. The Tribunal has held that
the relief of regularisation cannot be granted. On the materials on
record, we do not find any reason to take a different view. However,
after having said so, the Tribunal has issued a further direction that the
respondent shall be continued in service, as long as her services are
required. In our considered opinion, the above direction cannot be
legally sustained. A part-time sweeper comes under the category of
part-time contingent servants and such persons cannot continue in
service after they attain the age of 70 years. As such the respondent
could not have been continued in service after she crossed 70 years.
However, going by the pleadings on record, it would appear that the
respondent was allowed to continue in service beyond the age of 7o
years. So also, admittedly, the sweeping area of the office where the
respondent was engaged, increased to 164.87 M2 with effect from
17.4.2007. In the light of the above facts, we do not find any reason to
interfere with the directions issued by the Tribunal that the respondent
shall be sanctioned the scale of pay attached to the post of Part Time
Sweeper with effect from 21.11.2010. This we say so because, even
otherwise, the respondent was sweeping an area above 100 M2 with
effect from 17.4.2007. However, the payment in terms of such fixation,
as directed by the Tribunal, shall be made till such period the
respondent was actually engaged to do the work. We also make it clear
that the petitioners shall not recover any amounts that might already
have been paid to the respondent while she was in service. We confirm
the order of the Tribunal in all respects, except to the extent that it
directs the continuance of service of the respondent, till her services are
required. The petitioners are directed to comply with the directions
issued by the Tribunal as modified by this Court in this judgment,
within a period of six months from the date of receipt of a certified copy
of this judgment.
The original petition is disposed of as above. There will be no
order as to costs.
Sd/-
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-/-
T.R. RAVI, JUDGE
dsn
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE I: TRUE COPY OF THE TA WITH EXHIBITS
EXHIBIT P1 TRUE COPY OF THE SWEEPING AREA
CERTIFICATE TOGETHER WITH PLAN AND
LETTER DATED 13.09.2010.
EXHIBIT P2 TRUE COPY OF GO(P)NO.501/2005 DATED
25.11.2005.
ANNEXURE II: TRUE COPY OF THE COUNTER AFFIDAVIT FILED
BY 2ND RESPONDENT.
ANNEXURE III: TRUE COPY OF ORDER DT.10.3.2017
