Kerala High Court

The District Collector vs The District Collector on 8 February, 2021

O.P.(KAT) No. 44 of 2021                   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 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942

                             OP(KAT).No.44 OF 2021

    AGAINST THE ORDER IN OA (EKM) 608/2015 DATED 30-10-2019 OF
        KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM


PETITIONERS/RESPONDENTS IN OA:

         1         THE DISTRICT COLLECTOR
                   KALPETTA, WAYANAD
                   PIN 673 121

         2         THE TAHASILDAR,
                   SULTHANBATHERY,
                   WAYANAD PIN 673 592

         3         STATE OF KERALA
                   REPRESENTED BY THE SECREETARY TO GOVERNMENT,
                   REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
                   THIRUVANANTHAPURAM PIN 695 001

                   SRI.B.VINOD, SR.GOVT.PLEADER,

RESPONDENT/APPLICANT IN THE OA:

                   K.VASU
                   AGED 48 YEARS
                   S/O. SIDHAYYA, POOLAVAYAL HOUSE, KUPPADY,
                   SULTHANBATHERY, WAYANAD DISTRICT PIN 673 592
                   CASUAL SWEEPER, KUPPADY VILLAGE OFFICE,
                   SULTHANBATHERY.

                   BY ADV. SRI.V.SHYAM


     THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 08.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 O.P.(KAT) No. 44 of 2021                         2




                  ALEXANDER THOMAS & T.R. RAVI, JJ.
                   ------------------------------------------------
                          O.P.(KAT) No. 44 of 2021
                    [Arising out of order dated 30.10.2019 in O.A.
                     (Ekm)No. 608 of 2015 of KAT, Ekm.Bench]
                      --------------------------------------------------
                   Dated this the 8th 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 30.10.2019 in O.A.

(EKM)No.608 of 2015 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. Heard Sri B.Vinod, learned Senior Government Pleader on

behalf of the petitioners and Sri V.Shyam, learned counsel for the

respondent.

3. The issue relates to entitlement of the respondent to be

regularised in service as a Part Time Sweeper. Pursuant to the directions

issued by a learned Single Judge of this Court in its judgment in Mercy v.

State of Kerala reported in [2004 (2) KLT 848], confirmed by a Division

Bench in its 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 State Government had issued GO(P) No.501/2005/Fin. dated

25.11.2005, introducing a scheme to govern the cases of regularisation of

existing eligible casual sweepers and regarding appointments to future

vacancies. Paragraph 8 of the above Government order deals with

regularisation of the existing casual sweepers. As per the Government

order, the sweeping area has to be calculated in accordance with the

guidelines given in the appendix, the measurement being carried out by

the PWD officials after notice to the incumbent casual sweeper and in his

presence. 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 of the judgment of the

learned Single Judge in Mercy v. State of Kerala [2004 (2) KLT 848]),

whichever is later.

4. The Government thereafter issued G.O.(P)No.61/2010/Fin

dated 09.02.2010 modifying the earlier order dated 25.11.2005. It was

ordered that all existing sweepers other than casual sweepers, irrespective

of the mode of appointment, shall also be entitled for regularisation based

on the sweeping area, provided that their appointments were made on

before the issuance of the Government order dated 25.11.2005. As per

paragraph 3(iv) of G.O.(P)No. 61/2010/Fin dated 9.2.2010, where

sweepers were engaged against existing sanctioned posts for any reason,

they shall also be entitled to regularisation, provided the date of

appointment was on or before 25.11.2005 and on the retirement of the

existing sweeper in such offices, the vacancy is to be filled up through

Employment Exchange only.

5. In the case on hand, admittedly, the respondent was being

engaged as a part-time sweeper in Kuppady Village Office in Wayanad

District from March, 1991 onwards. Initially, the sweeping area of the

Village Office was less than 100M² . It is admitted that the Village Office

was shifted to a new premises on 26.9.2011, where the sweeping area was

169.4 M². The contention of the respondent before the Tribunal was that

on shifting of the Village Office, he was entitled to be regularised as a Part-

Time Sweeper. It is further admitted that on the shifting of the premises, a

proposal had been put up before the Government, through the District

Collector for sanctioning of a post of Part-Time Sweeper. It appears that

the office was again shifted to another premises, where also the sweeping

area was more than 100 M², to be precise 127.15 sq.mts. In the light of the

admitted facts, the Tribunal directed the regularisation of the respondent

as Part-Time Sweeper, with effect from 26.9.2011, with all consequential

benefits.

6. The main ground which has been put forth in the original

petition is that neither the Government order GO(P)No.501/2005/Fin.

dated 25.11.2005 nor the subsequent order G.O.(P)No.61/2010/Fin. dated

09.2.2010 postulate that existing sweepers continuing in offices with less

than 100 M2 of sweeping area will be entitled to get regularisation in

service as and when the sweeping area increases beyond 100 M 2. This

Court has considered similar issues in several cases and has held that in

cases of existing casual sweepers who were sweeping, area less than 100

M2 and where the sweeping area increased subsequent to the issuance of

G.O.(P) No.501/2005/Fin. dated 25.11.2005, they were entitled to be

regularised with effect from the date on which the sweeping area exceeded

100 M2 .

7. In the judgment dated 18.01.2019 in O.P.(KAT) No.26 of 2019,

a Division Bench of this Court held in paragraph 6 as follows:-

"6. ..... .... Therefore, essential question is whether, solely because the sweeping area was below 100 sq.m till 2014, the respondent could hold it out to be a reason to deprive the benefit flowing from the said G.O. dated 25.11.2005, to the petitioner. When the admitted position is that subsequent to the renovation of the office in question there occurred an increase in the sweeping area and thereby it became 124.164 sq.m, cannot be ignored while considering that question. The Tribunal after considering the rival contentions had arrived at the conclusion that it could not be assigned as a reason for not granting the benefit to the petitioner. Evidently, it was based on such consideration that the Tribunal found the respondent eligible for regularisation in terms of the said G.O dated 25.11.2005 and also the benefit of the subsequent G.O(P)No.61 of 2010 dated 9.2.2010. It is an interpretation beneficial to the employee and it cannot be taken as a perverse or

absurd interpretation considering the object behind issuance of the aforesaid Government Orders. We do not find any reason to hold that the Tribunal had erred in arriving such a conclusion. We also got no hesitation to hold that the said conclusion nothing but the culmination of the rightful consideration. ..... ...."

8. We find no reason to take a different view. The order of the

Tribunal cannot be said to be illegal, improper or irregular or perverse in

any manner. No grounds are made out warranting interference by this

Court in exercise of its extraordinary and supervisory jurisdiction under

Articles 226 and 227 of the Constitution of India. The time granted by the

Tribunal for complying with its directions has expired long back and we

think it appropriate to extend the time granted. We hence direct the

petitioners to comply with the directions issued by the Tribunal in its

order dated 30.10.2019 in OA(EKM) 608 of 2015 within six weeks from

the date of receipt of a certified copy of this judgment.

The original petition is dismissed modifying the order of the

Tribunal to the above extent. The parties will bear their respective costs.