State Of Kerala vs State Of Kerala
2021 Latest Caselaw 1610 Ker

O.P.(KAT) No.19 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

   FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                          OP(KAT).No.19 OF 2021

 AGAINST THE ORDER DATED 09.08.2019 IN OA 625/2017 OF KERALA
         ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM


PETITIONERS/RESPONDENTS IN OA:

       1       STATE OF KERALA
               REPRESENTED BY SECRETARY,
               DEPARTMENT OF ANIMAL HUSBANDRY,
               GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM, PIN-695 001

       2       DIRECTOR OF ANIMAL HUSBANDRY,
               DIRECTORATE OF ANIMAL HUSBANDRY,
               VIKAS BHAVAN BUILDING,
               THIRUVANANTHAPURAM, PIN-695 033

       3       DISTRICT ANIMAL HUSBANDRY OFFICER,
               OFFICE OF THE DISTRICT ANIMAL HUSBANDRY OFFICER,
               MUNICIPAL COMPLEX BUILDING,
               PATHANAMTHITTA, PIN-689 691

       4       VETERINARY SURGEON,
               VETERINARY DISPENSARY,
               AYRAVON P.O, KONNI,
               PATHANAMTHITTA, PIN-689 691

               BY SRI.B.VINOD, SR.GOVT.PLEADER
 O.P.(KAT) No.19 of 2021        2




RESPONDENT/APPLICANT IN OA:

               SUPRABHA .S
               AGED 46 YEARS, W/O. SURESH KUMAR V.K,
               PART TIME SWEEPER, VETERINARY DISPENSARY,
               AYRAVON, PATHANAMTHITTA,
               PIN-689 691, RESIDING AT VARUVAYIL PUTHEN VEEDU,
               ARUVAPPULAM P.O, KONNI,
               PATHANAMTHITTA, PIN-689 691.



     THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 15.01.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 O.P.(KAT) No.19 of 2021              3




              ALEXANDER THOMAS & T.R. RAVI, JJ.
               ------------------------------------------------
                       O.P.(KAT) No.19 of 2021
                   (Arising out of order dated 09.08.2019 in
                      O.A.625/2017 of KAT, Tvm. Bench)
                --------------------------------------------------
              Dated this the 15th day of January, 2021
                               JUDGMENT

ALEXANDER THOMAS, J.

The prayer in the aforecaptioned Original Petition (KAT) filed

under Articles 226 and 227 of the Constitution of India is as follows;

"... ... to set aside Exhibit P7 impugned order dated 09.08.2019 in O.A.No.625/2017 and to dismiss the Original Application."

2. Heard Sri B.Vinod, learned Senior Government Pleader

appearing for the petitioners (State of Kerala and others) in the original

petition/respondents in the OA before the Tribunal. In the nature of

the order proposed to be passed in this original petition, notice to the

contesting respondent herein/sole applicant before the Tribunal will

stand dispensed with.

3. The petitioners in the original petition/respondents in the

OA are aggrieved by the impugned Ext.P7 final order dated 09.08.2019

rendered by the Kerala Administrative Tribunal in O.A.No.625 of 2017

filed by the respondent herein/original applicant, whereby it has been

ordered that the services of the said original applicant as casual sweeper

in the unit concerned should be regularised with effect from 1.04.2002

and to grant her all consequential benefits, as she is fully entitled to get

the benefit of regularisation as envisaged in Annexure A5 G.O.

(P)No.501/2005/Fin. dated 25.11.2005, more particularly, paragraph

No.8 thereof. In this regard, incidentally it is to be noted that the

competent authority of the State Government in the Administrative

Department concerned has issued Annexure A8 G.O.(Ms.)No.133/

2015/AD dated 07.08.2015, whereby it has been ordered that the

petitioner is entitled for regularisation only with effect from

07.08.2005, the date of Annexure A8 order. The interdiction made by

the Tribunal is only to the limited extent of the plea of the original

applicant for getting regularisation with effect from 1.4.2002 and not

merely from 07.08.2015.

4. The case lies in an extremely narrow compass. As can be

seen from the pleadings in page 1 of this paper book, it is admitted by

the petitioners that the respondent herein/original applicant was indeed

engaged as casual sweeper from 13.07.2001 onwards at the Mobile Farm

Aid Unit concerned which was later shifted to a new building on

01.04.2002 and it was subsequently upgraded as a Veterinary

Dispensary on 24.6.2013.

5. The following aspects are beyond any factual controversy

and those aspects mentioned hereinafter are fully admitted by the

petitioners herein/respondent in the OA as can be seen from the

pleadings and materials on record and more particularly the admitted

documents issued by none other than the petitioners herein. Annexure

A2 (see page 33 of this paper book) is a letter dated 19.07.2005 issued

by the Assistant Executive Engineer, Buildings Sub Division,

Pathanamthitta which contains therewith the certificate issued by the

said PWD official on 19.07.2005 certifying that sweeping area of the

building for Mobile Farm Aid Unit as a whole is measured and

calculated as 132.49 M2 including the yard. Later, the Assistant

Engineer, PWD has issued Annexure A2(a) letter dated 24.06.2006

(see page 34 of this paper book) addressed to the Veterinary Surgeon

concerned enclosing therewith the measurement details of the sweeping

area. The measurement certificate and the measurement details given

on 06.11.2013 enclosed along with Annexure A2(a) letter dated

24.06.2006 issued by the Public Works Department are available at

pages 35 and 36 of this paper book, wherein it has been certified beyond

any doubt that the total sweeping area concerned is 113.82 M 2. The

final details of the measurement of the sweeping area to arrive at the

total sweeping area as 113.82 M 2 are given on internal page 21 of Ext.P1

(see page 36 of this paper book). It is also admitted by the petitioners,

more particularly, by none other than the 1st respondent State

Government at Annexure A8 G.O.(Ms)No.133/2015/AD dated

07.08.2015 in paragraph 3 that the sweeping area in question is 113.82

M2 (see page 51 of this paper book).

6. It is by the aforesaid Annexure A8 G.O.(Ms)No.133/

2015/AD dated 07.08.2015 the competent authority of the State

Government in the Administrative Department has taken the stand that

though the original applicant is entitled for the benefit of regularisation,

the new date of such regularisation could only be from 07.08.2015.

7. So it can be seen that as per Annexure A2 measurement

certificate dated 19.07.2005 issued by none other than the competent

officials of the Public Works Department, the total sweeping area is

132.49 M2 including yard. As per the subsequent measurement given at

Annexure A2(a) certificate dated 06.11.2013 (see page 35 of this paper

book) issued by the Public Works Department Officials concerned, the

measurement area is then shown as 113.82 M 2. It is admitted by the

petitioners at page 1 of this paper book that the respondent was engaged

as casual sweeper on 13.07.2001 in the Mobile Farm Aid Unit, which

was shifted to new building on 01.04.2002, which was later changed as

Veterinary Dispensary on 24.06.2013. But the fact that the

measurement was more than 100 M2 ever since the measurement was

taken initially on 19.7.2005 as per Annexure A2 is not in any manner

disputed. When exactly the measurement area was reduced from

132.49 M2 as shown in Annexure A2 (given on page 33 of the paper

book) to 113.82 M2 as shown in Annexure A2(a) (given on pages 35 and

36 of this paper book) is not stated by the petitioners either before the

Tribunal or before this court. The petitioners have no case that the

measurement referred to in Annexure A2 is not in accordance with the

guidelines issued by the Government in the Appendix to Annexure A5

G.O.(P)No.501/2005/Fin. dated 25.11.2005. There is no dispute that

the Mobile Farm Aid Unit was shifted to the new building on

01.04.2002. No materials are placed either before the Tribunal or

before this Court to show that the total sweeping area of the place of

work of the respondent herein was in fact below the permissible limit of

100 M2, before 25.07.2011 (date of issuance of Annexure A1 G.O.). The

entitlement of the sole respondent herein is to be evaluated on the basis

of the basic norms provided in Annexure A5 G.O.(P)No.501/2005/Fin.

dated 25.11.2005. As per Annexure A5 Government order dated

25.11.2005 (see pages 40 to 44 of this paper book), Government have

ordered for regularisation of existing casual sweeper posts, where the

sweeping area exceeds 100 M2 and also for creation of posts of part time

contingent employees, depending upon the sweeping area involved and

that the sweeping area will be calculated on the basis of the guidelines

given in the Appendix to the said Government order. It is further

ordered therein that if on fixation, the area is seen to exceed 100 M 2 and

if there is no post of part time sweeper sanctioned to the office in

question, but there is a casual sweeper being engaged, then the Head of

the Department shall immediately take up the matter for creation of

post of part time contingent sweeper, etc. Further, it is also, inter alia,

ordered therein that the post shall be created, with effect from the date

of appointment of the incumbent as casual sweeper or from 18.6.2001

(three years preceding the date of the judgment referred to as item

No.10 in Annexure A5, viz, judgment dated 18.06.2004 of this Court in

W.P.(C)No.30927/2003 and 47 other connected cases) whichever is

later. It would be pertinent to extract paragraph 8 of Annexure A5 G.O.

(P)No.501/2005/Fin. dated 25.11.2005 (see pages 42 to 43 of this paper

book), which reads as follows:

"8. For the regularization of the existing casual sweepers (where the sweeping 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 causal 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 Govt. 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 D.A. 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/ regularisation 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."

8. In the instant case, the original applicant has been employed

continuously from 13.07.2001 and the unit was shifted to the new

building only on 01.04.2002. Therefore, there is no question of the

original applicant getting regularisation either from the date of the first

appointment (13.7.2001) or with effect from 18.06.2001 (three years

preceding the date of judgment of this Court referred to hereinabove),

as the sweeping area has exceeded the minimum permissible limit of

100 M2 and above only with effect from 1.4.2002, consequent to the

shifting to the new building. It is in the light of these crucial facts

circumstances, that the Tribunal has found that the original applicant is

entitled to get the benefit of regularisation on the basis of Annexure A5

G.O. at least from 01.04.2002 and that the stand of the petitioners that

the original applicant is entitled to get the benefit of regularisation only

with effect from 07.08.2015, is patently wrong. A reading of Annexure

A1 GO(Rt)No.1368/2011/AD dated 25.07.2011 (see page 32 of this

paper book) would show that what is involved therein is that the

existing Mobile Farm Aid Unit was redesignated as Veterinary

Dispensary and formal sanction for the establishment of the Veterinary

Dispensary is accorded. The petitioners have no case either before the

Tribunal or before this Court that the sweeping area had in fact

exceeded the minimum threshold limit of 100 M2 only on or after

25.7.2011 and that the sweeping area of the place where the original

applicant had worked was below 100 M 2 , prior thereto. On the other

hand, the above said documents produced herein, more particularly,

Annexure A2 would show that the sweeping area had indeed exceeded

the minimum threshold limit of 100 M2. The only issue is as to whether

the sweeping area was always 132.49 M2 as shown in Annexure A2 or

113.82 M2 as shown in Annexure A2(a). There is no necessity for

resolution of the issue in that regard and irrespective of as to whether

the sweeping area was on the basis of Annexure A2 or on the basis of

Annexure A2(a), indisputably the said area was above the minimum

threshold limit of 100 M2 . The shifting to the new building admittedly

occurred on 01.04.2002. Hence the Tribunal is fully justified to arrive

at the impugned conclusion that the original applicant is indeed entitled

for the benefit of regularisation at least with effect from 01.04.2002.

Hence the impugned stand of the petitioners that the original applicant

is entitled for regularisation only with effect from 07.08.2005 is

factually and legally wrong and hence the Tribunal cannot be found

fault with for having issued the impugned directions. Hence the

contentions of the petitioners are devoid of any merit. However, we

extend the time limit for compliance with the direction of the Tribunal

as contained in Ext.P7 final order in O.A.No.625 of 2017 dated

09.08.2019 by a further period of two months from the date of

production of a certified copy of this judgment.

With these observations and directions, the above Original

Petition (KAT) will stand dismissed.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

T.R. RAVI, JUDGE

dsn

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE O.A. NO. 625/2017 ALONG WITH ANNEXURES.

ANNEXURES:

ANNEXURE A1 TRUE COPY OF GO(RT) NO. 1368/11/AD DATED 25.07.2011 OF THE GOVERNMENT.

ANNEXURE A2 TRUE COPY OF THE CERTIFICATE NO.

D3.487/04 DATED 19.07.2005 ASSISTANT EXECUTIVE ENGINEER, BUILDING SUB DIVISION, PATHANAMTHITTA.

ANNEXURE A2(A) TRUE COPY OF THE CERTIFICATE, SITE PLAN ISSUED BY THE ASSISTANT ENGINEER, PWD BUILDING SECTION PATHANAMTHITTA ALONG WITH COVERING LETTER DATED 24.06.2006.

ANNEXURE A3 TRUE COPY OF LETTER NO.C. 8195/2005 DATED 17.03.2006 OF THE 3RD PETITIONER.

ANNEXURE A4 TRUE COPY OF LETTER NO. C. 8195/2005 DATED 29.03.2006 OF THE 3RD PETITIONER.

ANNEXURE A5 TRUE COPY OF THE G.O(P) NO. 501/2005/FIN DATED 25.11.2005.

ANNEXURE A6 TRUE COPY FORWARDING LETTER ALONG WITH THE LIST OF CANDIDATES DATED 05.02.2007 OF THE 3RD PETITIONER.

ANNEXURE A7 TRUE COPY ORDER NO. B.827/2011/ESTT.

DATED 16.05.2011.

ANNEXURE A8 TRUE COPY OF ORDER NO. GO(MS)133/2015/AD DATED 07.08.2015 ISSUED BY THE 1ST PETITIONER.

ANNEXURE A9 TRUE COPY OF ORDER NO. J2-21124/16 12.08.2016 OF THE 2ND PETITIONER.

ANNEXURE A10 TRUE COPY OF LETTER NO.2/380/2016-A.H, DATED 31.01.2017 OF THE 1ST PETITIONER.

ANNEXURE A11 TRUE COPY OF REPLY WITH COVERING LETTER RECEIVED FROM THE INFORMATION OFFICER AS PER RTI ACT DATED 04.03.2017

ANNEXURE A12 TRUE COPY OF THE QUESTIONNAIRES DATED 22.02.2017 AND 25.02.2017.

EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON 20.10.2017 BY THE FIRST PETITIONER HEREIN IN THE ORIGINAL APPLICATION.

EXHIBIT P3 TRUE COPY OF REJOINDER FILED BY THE RESPONDENT ON 23.01.2018 AGAINST THE REPLY STATEMENT OF THE 1ST PETITIONER HEREIN IN THE ORIGINAL APPLICATION.

EXHIBIT P4 TRUE COPY OF MA 2076/2018 ALONG WITH ANNEXURES HEREIN IN THE ORIGINAL APPLICATION.

ANNEXURE A13 TRUE COPY OF THE PROCEEDINGS NO. 164/01 DATED 09.08.2001 OF THE PROCEEDINGS NO.

164/01 DATED 09.08.2001 OF THE VETERINARY SURGEON, MOBILE FARM UNIT AYRAVON.

ANNEXURE A14 TRUE COPY OF THE QUESTIONNAIRE SUBMITTED BY ADVOCATE P. SOMAN PILLAI DATED 02.03.2017 UNDER RI ACT.

ANNEXURE A15 TRUE COPY OF THE REPLY FROM THE STATE PUBLIC INFORMATION OFFICER, VETERINARY DISPENSARY, AYRAVON NO. 8/17 DATED 10.03.2017.

ANNEXURE A16 TRUE COPY OF THE SKETCH AND MEASUREMENT DETAILS PREPARED BY THE ASSISTANT ENGINEER , PWD, PATHANAMTHITTA.

ANNEXURE A17 TRUE COPY OF THE COMMUNICATION MADE BY THE 3RD PETITIONER VIDE NO. B1.8195/05 DATED 05.04.2011.

EXHIBIT P5 TRUE COPY OF THE REPLY STATEMENT ALONG WITH ANNEXURES FILED ON 04.02.2019 BY THE THIRD PETITIONER HEREIN THE ORIGINAL APPLICATION.

ANNEXURE R3(A) TRUE COPY OF LETTER NO.C 8195/2005 DATED 20.10.2005.

ANNEXURE R3(B) TRUE COPY OF LETTER NO. J2 25241/2011 DATED 11.0.2011.

EXHIBIT P6 TRUE COPY OF REJOINDER FILED BY THE RESPONDENT ON 29.03.2019 AGAINST THE REPLY STATEMENT OF THE 3RD PETITIONER ALONG WITH ANNEXURES HEREIN IN THE ORIGINAL APPLICATION.

ANNEXURE A18 TRUE COPY OF THE QUESTIONNARE UNDER RTI ACT DATED 20.02.2019.

ANNEXURE A19 TRUE COPY OF THE INFORMATION RECEIVED VIDE NO. 57/19 DATED 20.03.2019 ISSUED BY THE VETERINARY SURGEON, VETERINARY DISPENSARY AYRAON.

ANNEXURE A20 TRUE COPY OF THE RELEVANT PAGES OF ARTIFICIAL INSEMINATION REGISTER IN THE MONTH OF NOVEMBER 2010.

ANNEXURE A21 TRUE COPY OF THE RELEVANT PAGES OF THE O.P. REGISTER IN THE MONTH OF NOVEMBER 2009.

ANNEXURE A22 TRUE COPY OF THE RELEVANT PAGES OF REGISTER SHOWING THE DETAILS OF CAMP CONDUCTED BY THE MOBILE FARM UNIT IN THE MONTH OF MAY 2006.

EXHIBIT P7 TRUE COPY OF THE FINAL ORDER DATED 09.08.2019 IN OA NO. 625/2017 OF THE KERALA ADMINISTRATION TRIBUNAL.