Kerala High Court
State Of Kerala vs State Of Kerala on 22 January, 2021
O.P.(KAT) No.24 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 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942
OP(KAT).No.24 OF 2021
AGAINST THE ORDER DT.6.2.2020 IN OA 861/2019 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 4 IN OA:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
SECRETARIAT, THIRUVANANTHAPURAM,
KERALA 695 001
2 THE DIRECTOR OF HEALTH SERVICES
DIRECTORATE OF HEALTH SERVICE,
THIRUVANANTHAPURAM, KERALA 695 001
3 THE DISTRICT MEDICAL OFFICER (HEALTH)
IDUKKI, KERALA 686 919
4 THE MEDICAL OFFICER
PUBLIC HEALTH CENTRE, SENAPATHY,
ARIVILAMCHAL P.O., IDUKKI,
KERALA 686 919
BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL
RESPONDENT/APPLICANT IN OA:
VIJAYAMMA PONNAPPAN,
AGED 56 YEARS, W/O.LATE PONNAPPAN,
PART TIME CASUAL SWEEPER, PHC,
SENAPATHY, ARIVILAMCHAL P.O.,
IDUKKI DISTRICT, PIN 586 919,
RESIDING AT MANNAN SETTLEMENT,
ARIVILAMCHAL P.O., IDUKKI, KERALA 586 919
BY ADV. SRI KALEESWARAM RAJ
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 22.01.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
O.P.(KAT) No.24 of 2021 2
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No.24 of 2021
[Arising out of order dated 06.02.2020 in
O.A.No.861/2019 of the KAT, Tvm. Bench]
--------------------------------------------------
Dated this the 22nd day of January, 2021
JUDGMENT
T.R.RAVI, J.
The original petition has been filed by the State and its
officers/authorities challenging the order dated 6.2.2020 in O.A.No.861
of 2019 on the file of the Kerala Administrative Tribunal,
Thiruvananthapuram (the Tribunal for short). The petitioners were
respondents before the Tribunal and the respondent was the applicant
before the Tribunal.
2. The issue relates to the regularisation of a part-time sweeper
in accordance with GO(P) No.501/2005/Fin. dated 25.11.2005. The
respondent was engaged as part-time sweeper in the Primary Health
Centre, Senapathy, Idukki on daily wages with effect from 12.3.1998,
giving one day break after 14 days. When the service of the respondent
was not regularised, she approached this Court by filing W.P.(C)
No.28598 of 2005, which was disposed of by this Court as per Annexure
A1 judgment. This Court held that the respondent was entitled to the
benefits of the judgment of the Division bench in Writ appeal No.1863 of
2004 and connected cases which were disposed of on 9.9.2005. Pending
the above writ petition, the respondent had been terminated with effect
from 25.11.2005, on which day GO(P)No.501/2005/Fin. was issued
granting benefits of regularisation to Part-time Sweepers. The
respondent filed Contempt Case No.194 of 2006 and to avoid action
being taken against them, the petitioners (the 3 rd petitioner in
particular), re-engaged the respondent as per Annexure A3 order dated
28.2.2006 as Part-time Sweeper. The respondent filed representations
seeking regularisation and moved the Tribunal by filing O.A.(EKM) No.
571 of 2008. By Annexure A8 order, the Tribunal directed the 1 st
petitioner to dispose of Annexure A6 representation, pursuant to which
the 1st petitioner issued Annexure A9 order, rejecting the claim of the
respondent for regularisation. Annexure A9 order was challenged by the
respondent before the Tribunal in O.A.No.861 of 2019, the order in
which is impugned in this Writ petition (Ext.P3).
3. Heard Sri B.Unnikrishna Kaimal, Government Pleader on
behalf of the petitioners and Sri Kaleeswaram Raj on behalf of the
respondent.
4. Admittedly, the respondent was being engaged as part-time
sweeper from 12.3.1998 and this Court had in Annexure A1 judgment
directed the consideration of the claim of the respondent in accordance
with the judgment of the Division Bench of this Court relating to
regularisation of Part-time Sweepers. It is pursuant to the directions of
the Division Bench that the Government issued G.O.(P)No.501/2005/
Fin. dated 25.11.2005. Admittedly, the sweeping area of the Primary
Health Centre at Senapathy was more than 100 M 2. The only reason for
denying the claim of the respondent is that, prior to 2005, the
respondent was being engaged with one day gap after 14 days, and hence
it cannot be said that the respondent was in continuous service. The
Tribunal found that imposing such a break after 14 days for one day,
cannot be legally sustained and that the same cannot be taken up as a
defence for denying regularisation of benefits to the respondent. Another
contention that was raised by the petitioners before the Tribunal was
that the application for regularisation was forwarded only after the
issuance of Circular No.19/2016/Fin. dated 05.03.2016, which said that
no application for regularisation of Part-time Sweepers would be
considered after the said date. The Tribunal found that the above
contention cannot be sustained and the order, which was issued in 2016
cannot affect the rights of the respondent who was being engaged from
12.3.1998 onwards in the Primary Health Centre, Senapathy, where there
was already a sanctioned post of a regular Part-timeSweeper.
5. It can thus be seen that when G.O.(P)No.501/2005/Fin.
dated 25.11.2005 was issued, the respondent was already working as a
sweeper, having put in more than 7 years of service. It is significant to
note that there was a sanctioned post of regular part-time sweeper
existing in the Primary Health Centre, Senapathy and there was not even
a need to create/sanction a post. Even though there was an attempt,
unjustly we add, to end the service of the respondent with effect from the
date of the above Government order, the same was thereafter set right by
re-engaging the respondent. The right that had vested in the respondent
on 25.11.2005 cannot be taken away by means of a Circular issued 11
years thereafter as was sought to be contended by the petitioners.
6. We are in complete agreement with the reasonings of the
Tribunal in Exhibit P3 order. The petitioners who are the State and its
authorities cannot deprive the benefits of regularisation to a Part-time
Sweeper for the reason that an artificial break in the service was created
after every 14 days, that too for a period of one day. Such a contention on
the part of the State can only be termed as unfair. No grounds have been
made out for interference with the Exhibit P3 issued by the Tribunal. The
original petition fails and is dismissed.
7. The Tribunal had granted 3 months' time to the petitioners
for giving effect to the directions. The time stipulated is long over. We
hence grant a further period of 2 months from the date of receipt of a
certified copy of this judgment for complying with the directions issued
by the Tribunal. The order dated 6.2.2020 of the Tribunal in O.A.No.861
of 2019 will stand modified to that extent.
In the circumstances of the case, there will be no order as to costs.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R. RAVI, JUDGE
dsn
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE O.A.NO.861/2019 ALONG
WITH ANNEXURES.
ANNEXURE A1 TRUE COPY OF THE JUDGMENT DATED 7.10.2005
IN WP(C) NO.28598/2005 PASSED BY THE
HONOURABLE HIGH COURT OF KERALA
ANNEXURE A2 TRUE COPY OF THE JUDGMENT DATED 8.3.2006
IN C.C. NO.194/2006 PASSED BY THE
HONOURABLE HIGH COURT OF KERALA
ANNEXURE A3 TRUE COPY OF THE ORDER NO.A2/8998/2005
DATED 28.2.2006 PASSED BY THE 3RD
RESPONDENT
ANNEXURE A4 TRUE COPY OF THE G.O.(RT) NO.2057/06/H
AND FWD DATED 12.7.2006 PASSED BY THE 1ST
RESPONDENT
ANNEXURE A5 TRUE COPY OF THE G.O.(P) NO.501/2005/FIN
DATED 25.11.2005
ANNEXURE A6 TRUE COPY OF THE REPRESENTATION DATED
7.2.2018 SUBMITTED BY THE APPLICANT
BEFORE THE 1ST RESPONDENT SEEKING
REGULARIZATION WITH EFFECT FROM 12.3.1998
ANNEXURE A7 TRUE COPY OF THE POSTAL RECEIPT
ANNEXURE A8 TRUE COPY OF THE ORDER DATED 1.3.2018 IN
OA(EKM) 571/2018 PASSED BY THE HONOURABLE
TRIBUNAL.
ANNEXURE A9 TRUE COPY OF THE G.O.(P) NO.39/2019/H AND
FWD DATED 7.1.2019
ANNEXURE A10 TRUE COPY OF THE CIRCULAR NO.19/2016
DATED 5.3.2016
ANNEXURE A11 TRUE COPY OF THE ORDER DATED 21.3.2019 IN
OA(EKM) 1131/2017
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED
17.1.2020
EXHIBIT P3 TRUE COPY OF ORDER OF THE KERALA
ADMINISTRATIVE TRIBUNAL DATED 6.2.2020 IN
THE AFORESAID ORIGINAL APPLICATION (OA
861/2019)
