Kerala High Court
The Medical Officer vs Shyja P on 28 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942
OP(KAT).No.23 OF 2021
AGAINST THE ORDER/JUDGMENT IN OA 2894/2017 DATED 13-03-2019 OF KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/S:
1 THE MEDICAL OFFICER,
GOVT. HOMEO DISPENSARY, DHARMADAM, THALASSERY, KANNUR-
670661.
2 THE DISTRICT MEDICAL OFFICER,
GOVERNMENT HOMEO DISPENSARY, CIVIL STATION, KANNUR-670002.
3 THE DIRECTOR HOMEO,
DIRECTORATE OF HOMOEOPATHY, THIRUVANANTHAPURAM-695001.
4 THE SECRETARY TO GOVERNMENT,
AYUSH DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-
695001.
BY GOVERNMENT PLEADER
RESPONDENT/S:
1 SHYJA P.
W/O. SANIL, RESIDING AT VAYALILVEEDU, PO MELOOR, VIA
PALAYAD, THALASSERY, KANNUR DISTRICT, PART TIME CASUAL
SWEEPER, HOMEO DISPENSARY, DHAMADAM, THALASSERY, KANNUR,
KERALA-670661.
2 MR. SREEDHARAN CHANNAPOY,
AGED 48 YEARS
S/O. KELAPPAN, PART TIME SWEEPER, OFFICE OF THE HOMEO
DISPENSARY, DHARMADAM, KERALA-670661.
R2 BY ADV. SMT.M.M.DEEPA
R2 BY ADV. SMT.P.MAYA
OTHER PRESENT:
SRI.ANTONY MUKKATH, SR.GP, SRI.C.K.SREEJITH FOR R1,
SMT.M.M.DEEPA FOR R2
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON
28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No.23 OF 2021 2
ALEXANDER THOMAS, J.
&
T.R.RAVI, JJ.
-----------------------------------------
O.P.(KAT) No. 23 of 2021
(arising out of order dated 13.3.2019 in
O.A.No.2894/2017 of the KAT, TVM Bench)
---------------------------------------------------------
Dated this the 28th day of January, 2021
JUDGMENT
The prayers in the aforecaptioned OP(KAT) filed under Articles
226and 227 of the Constitution of India are as follows (See page 10 of this
paper book) :
"....to set aside Ext.P7 orders in OA(E) No. 2894/2017 on the file of Kerala
Administrative Tribunal by allowing this original petition."
2. Heard Sri.Antony Mukkath, learned senior Government Pleader
appearing for the petitioners in the OP/respondents 1 to 4 in the OA, Sri.
C.K.Sreejith, learned counsel appearing for R1 in the OP/original applicant
before the Tribunal and Smt. M.M.Deepa, learned counsel appearing for R2
in the OP/additional R5 in the OA.
3. R1 herein (original applicant) had filed Ext.P1 original
application O.A.(Ekm) No.2894/2017 before the KAT, Ernakulam bench
with the following prayers (See page 21 of this paper book) :
i. "Issue direction directing the 1st respondent too formed necessary
proposal to the 3rd respondent to create a post of part time sweeping
considering the present sweeping area.
i. Issue direction directing the 3rd respondent to regularise the petitioner as
part time sweeper in the Govt. Homeo Dispensary, Meloor with back wages.
ii. Issue any other relief that this Hon'ble Court may deem fit to grant in the
facts and circumstances of the case for the interest of justice."
4. The Tribunal after hearing both sides, has rendered the
impugned Ext.P7 final order dated 13.3.2019 in OA (Ekm) No.2894/2017
allowing the main prayers of the applicant and directing that the applicant
who is a casual sweeper, should be regularised in service as the sweeping
area of the office premise in question had subsequently got increased to be
about the minimum threshold level of 100 sq.mtrs. It is this order at Ext.P7
that is under challenge in this original petition.
5. It is common ground that the original applicant was initially
employed and engaged as casual sweeper in the office of R1 in the OA (1 st
petitioner) viz., Medical Officer, Govt.Homeo Dispensary, Dharmadam,
Thalassery, Kannur with effect from 9.7.2004 and was intermittently
working upto June 2006 and was later continuously working in that
capacity from August 2006 to June 2007. Thereafter, he was working from
March, 2007 to January 2009 and thereafter, has been continuing since
September 2012. It is also the admitted case of the respondents in the OA
that she has been duly paid the admissible remuneration for the periods in
question. The details of the abovesaid aspects are also discernible from the
contents of Annexrure-A6 letter dated 10.8.2017 issued by the R1 in the OA
as well as in the pleadings in Ext.P4 dated April, 2018 filed by the
respondents in the OA before the Tribunal.
6. It is also common ground that the sweeping area of the office
premise in question, where the petitioner has been engaged as part time sweeper
had not attained the minimum threshold level of 100 sq.mtrs. either as on
the date of issuance of the primary Government order involved in this case
viz., GO (P) No. 501/2005/Fin dated 25.11.2005 as well as the subsequent
Government order issued in that regard confirming certain additional
rights to part time sweepers as made out in GO(P) No. 61/2010/Fin dated
9.2.2010. It is also common ground that the sweeping area in question had
attained the minimum threshold level of 100 sq.mtrs and above only later
as discernible from the certificate dated 24.11.2017 issued by the
Asst.Engineer, PWD Building section in accordance with the guidelines
contained in the Appendix appended to GO(P) No. 501/2005/Fin dated
25.11.2005. The respondents in the OA have taken up the contention that
since the sweeping area of the office premises, where the original applicant
has been employed have not attained the minimum threshold level of 100
sq.mtrs or above either at the time of the issuance of the GO(P) dated
25.11.2005 or as on the date of issuance of the subsequent GO(P) dated
9.2.2010 and the sweeping area had attained the minimum threshold level,
only subsequently, he is not entitled for regularisation in terms of the
Government orders governing the norms and hence, they decided to make
a regular selection afresh by taking resort to the employment exchange
process. In that regard, the requisition was send by the competent
authority among the respondents to the employment exchange concerned,
which led to the sponsoring of the name of the respondent No.2
herein/additional respondent No.5 in the OA. It appears that on account of
the interim orders passed in the Tribunal, the additional respondent No.2
has not been actually given any appointment and the original applicant has
also not been terminated from service and he has continued in service all
along.
7. The Tribunal as per the impugned Ext.P7 order dated 13.3.2019
has taken the view that a casual sweeper like the applicant is entitled to get
regularisation at least from the day on which the sweeping area attains
minimum threshold level of 100 sq. mtrs above, provided the person
concerned otherwise fulfill the eligibility norms in the abovesaid GO(P)
dated 25.11.2005 and GO(P) dated 9.2.2010. Being aggrieved by the said
impugned Ext.P7 final order that the petitioners herein/official
respondents in the OA have initiated the present proceedings by way of
judicial review and superintendence by invoking the extraordinary
discretionary powers conferred in this case under Articles 226 and 227 of
the Constitution of India.
8. Based on the directions issued by this Court in a series of
judgments as in the judgment dated 18.6.2004 in W.P.(C.) No.30927/2003
and many connected cases, the competent authority of the Government in
the Finance Department has issued GO(P) No. 501/2005/Fin dated
25.11.2005 for effectuating the considered policy decision taken by the State
Government to implement and comply with the directions of this Court in
the abovesaid Writ Petitions mentioned hereinabove.
9. It has been ordered in para No.8 of the said GO(P) dated
25.11.2005 that where the casual sweepers have been employed as on or
prior to the said GO(P) dated 25.11.2005 and the sweeping area exceeds the
minimum threshold level of 100 sq.mtrs. as on the date of issuance of the
said GO, 25.11.2005, then they are entitled for regularisation and the
sweeping area will have to be calculated and computed strictly in
accordance with the guidelines and norms contained in the Appendix of
the said GO(P) dated 25.11.2005. It has also been inter alia ordered in Para
No.8 thereof that for such regularisation, posts shall 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 the abovesaid common judgments
dated 18.6.2004 of this Court, referred to as item No.10 of the said GO(P)
dated 25.11.2005, whichever is later etc.)
10. Later, the competent authority of the State Government in the
Finance Department has issued GO(P) No.61/2010/Fin dated 9.2.2010
noting that as per the conditions stipulated in the abovesaid GO(P) dated
25.11.2005, those casual sweepers, who are working on daily wages and
those working in offices having sweeping area below 100 sq.mtrs are not
eligible for regularisation and that a number of such casual sweepers are
not benefited by the abovesaid policy decision contained in the said GO(P)
dated 25.11.2005 and it has been inter alia ordered in para No.3(i) of the
said GO(P) dated 9.2.2010 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 defined in the GO(P) dated
25.11.2005 provided their appointments are made on or before the issuance
of the GO(P) dated 25.11.2005 and are continuing as such on the date of
this order and that the regularisation will have effect from the date of the
said latter GO(P) dated 9.2.2010.
11. Hence, in the case of a sweeper, who was in service as on the
date of issuance of the GO(P) dated 25.11.2005 and when the sweeping area
in question had exceeded the minimum threshold level of 100 sq.mtrs.,
then such an incumbent was entitled for regularisation on the basis of the
said GO(P) dated 25.11.2005. In the case of those sweepers, who were in
service as on 25.11.2005 and the sweeping area of their premises had not
attained the minimum threshold level of 100 sq.mtrs and it was only
subsequently enhanced as on the issuance of the subsequent latter GO(P)
dated 9.2.2010, then such sweepers should also get the benefit of
regularisation service from 9.2.2010 onwards. In the instant case, there is
no serious dispute that the petitioner has been engaged as a sweeper in the
Government office concerned prior to the cut off date of 25.11.2005 and the
sweeping area of the office premise in question has not attained the
minimum threshold level of 100 sq. mtrs either as on the date of issuance
of the GO(P) dated 25.11.2005 or as on the date of issuance of the latter
GO(P) dated 9.2.2010, but had attained the minimum threshold level only
later.
12. The case of such a person for regularisation based on the
abovesaid Government norm has been the subject matter of consideration
of the Division Bench of this Court in quite a number of cases. One such
decision rendered by the Division Bench of this Court is the judgment
dated 18.1.2019 in OP(KAT) No. 26 of 2019 in the case State of Kerala
and others v. Annam David (reported in Manu/KE/1641/2019). It will
be profitable to refer to para Nos. 5 and 6 of the aforementioned judgments
dated 18.1.2019 in the Division Bench of this Court in OP(KAT) No. 26 of
2019 which reads as follows :
5. "On the basic fact there is no dispute at all. The fact that but for the break
in service occurred on 15.6.2005 the respondent has been in continuous service
in the 4th respondent's office, on casual basis from 1.10.2002. Though the
sweeping area in the office concerned was less than 100 Sq.m with the
renovation of the office in the year 2014, there occurred an increase in the
sweeping area and it became 124.164 sq.ms. Taking into account the said
circumstances, the 4th respondent forwarded a proposal for creation of posts
and also recommended for the regularisation of the respondent in service. It is
the delay on the part of the competent authority despite receipt of such proposal
to consider the claim of the respondent for regularisation that constrained her to
file the above mentioned Original Application, which culminated in the
impugned order.
6. A perusal of the impugned order would reveal that all the relevant aspects
were taken into consideration by the Tribunal. The relevant Government Order
dated 25.11.2005 carrying the guidelines for sanctioning of posts and also for
regularising the casual/daily wage employees engaged in various offices was
evidently taken into account by the Tribunal. Therefore, essential question is
whether, solely because the sweeping area was below 100 sq.m till 2014, the
respondents 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 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 is nothing
but the culmination of the rightful consideration. The directions issued
thereafter is a necessary sequel of such conclusion. In the said circumstances, we
do not find any reason to interfere with the order passed by the Tribunal in
O.A.No.1465 of 2017. As per the impugned order the Tribunal granted two
months time from the date of receipt of a copy of the judgment, for complying
with the directions thereunder. The said time limit stands extended by two
months from the date of receipt of a copy of this judgment. Subject to the above,
this Original Petition is dismissed."
13. It can be seen from a reading of the abovesaid judgment in
OP(KAT) No. 26 of 2019 that the Division Bench has ordered that a
sweeper in such a case would get the right to be regularised from the day on
which the sweeping area has attained the minimum threshold level of 100
sq.mtrs. and above. In the said case, the sweeping area in question was
below 100 sq.mtrs. till 2014 and it was only in the year 2014 that the
sweeping area got enhanced to 124.164 sq.mtrs. This Court has consistently
followed the said view in similar cases.
14. In the instant case, there is no serious dispute that the applicant
was employed as sweeper in the Government office concerned as on the
date of issuance of the GO(P) dated 25.11.2005 and the sweeping area had
not attained the minimum threshold level either as on 25.11.2005 or as on
9.2.2010 and had attained the minimum threshold level of 100 sq.mtrs and
above only subsequently as can be seen from the certificate dated
24.11.2017 issued by the Asst. Engineer, PWD Building Section in terms of
the guidelines and norms contained in the appendix to the GO(P) dated
25.11.2005 where it has been certified that the sweeping area in question
has become 143.12 sq.mtrs.
15. This aspect of the matter is clearly admitted in para No.3 of the
pleadings submitted by the respondents in the OA before the Tribunal as
given at Ext.P4. (See page No.47 of this paper book).
16. However, from the pleadings on both sides, it is not clear as to
when exactly the sweeping area had become 143.12 sq.mtrs. That is a
question of fact to be ascertained by the competent authority concerned. In
the light of these aspects, the Tribunal cannot be found fault with for
having issued the impugned directions in the abovesaid as per Ext.P7. The
competent authority among the petitioners may ascertain as to well exactly
the sweeping area in question had become 143.12 sq.mtrs. as shown in the
certificate dated 24.11.2017 and if the said precise date is not ascertainable,
then alone the date of regularisation may be reckoned as 24.11.2017 for the
sake of convenience. If as a matter of fact, the precise date of attainment of
the sweeping area as 143.12 sq.mtrs could be ascertained and if the same is
prior to 24.11.2017, then the date of regularisation should be from such
date.
17. The upshot of the above discussion is that the Tribunal has not
committed any illegality or unreasonableness in rendering the impugned
Ext.P7 final order and the matter does not require any interdiction at the
hands of this Court in exercise of the powers of the judicial review and
superintendence. However, taking note of the fact that the impugned
Ext.P7 final order has been rendered by the Tribunal on 13.3.2019 and as
the present OP(KAT) has been filed before this Court on 13.1.2021, it is
ordered that the directions rendered by the Tribunal in favour of the
original applicant should be implemented and complied with by the
competent authority of respondents, without any further delay, at any rate,
within an outer time limit of 2 months from the date of production of a
certified copy of this judgment.
18. The Secretary to the office of the Advocate General will ensure
that copies of this judgment are forwarded to all the petitioners for
necessary action.
With these observations and directions, the above original petition
will stand dismissed.
sd/-
ALEXANDER THOMAS,
JUDGE
sd/-
T.R.RAVI
JUDGE
SKS
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE O.A(EKM) NO.2894/2017
ALONG WITH ANNEXURES.
ANNEXURE A1 THE TRUE COPY OF THE SWEEPING AREA
CERTIFICATE ISSUED BY THE ASSISTANT
EXECUTIVE ENGINEER, PWD BUILDING SUB
DIVISION, THALASSERY DATED 13.8.2007.
ANNEXURE A2 THE TRUE COPY OF THE FULLY VOUCHED
CONTINGENT BILL NO.17/2004-2005 ISSUED BY
THE HOMEO DISPENSARY, DHARMADAM.
ANNEXURE A3 THE TRUE COPY OF THE BILL NO.21/2005-2006
ISSUED BY THE HOMEO DISPENSARY, DHARMADAM.
ANNEXURE A4 THE TRUE COPY OF THE FULLY VOUCHED
CONTINGENT BILL NO.17/2006-2007 ISSUED BY
THE HOMEO DISPENSARY, DHARMADAM.
ANNEXURE A5 TRUE COPY OF THE FULLY VOUCHED CONTINGENT
BILL NO.31/08-09 FOR THE MONTH OF 1/2009
ISSUED BY THE HOMEO DISPENSARY, DHARMADAM.
ANNEXURE A6 TRUE COPY OF THE LETTER ISSUED BY THE
MEDICAL OFFICER, HOMEO DISPENSARY,
DHARMADAM.
ANNEXURE A7 TRUE COPY OF THE REPRESENTATION DATED
30.10.2017.
EXHIBIT P2 A TRUE COPY OF THE M.A.NO.480/2018.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT OF THE 1ST
RESPONDENT IN O.A.(EKM) 2894/2017.
EXHIBIT P4 TRUE COPY OF THE M.A.(EKM) NO.1833/2018 FOR
VACATING THE INTERIM ORDER DATED 23.3.2018.
EXHIBIT P5 A TRUE COPY OF THE M.A.(EKM) NO.1587/2018.
EXHIBIT P6 A TRUE COPY OF THE REPLY STATEMENT FILED BY
THE 5TH RESPONDENT ALONG WITH ITS
ANNEXURES.
ANNEXURE R5(A) TRUE COPY OF THE CALL LETTER BEARING
NO.EBI-2837/2016/D.OK DATED 28.1.2018
ISSUED BY THE DISTRICT MEDICAL OFFICER
(HOMEO) KANNUR.
ANNEXURE R5(B) TRUE COPY OF THE ORDER NO.ERI/2837/2016/DOK
DATED 17.2.2018 ISSUED BY THE DISTRICT
MEDICAL OFFICER.
ANNEXURE R5(C) TRUE COPY OF THE COMMUNICATION
NO.EBI/2837/2016/DOK DATED 27.2.2018 ISSUED
BY THE DISTRICT MEDICAL OFFICER.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 13.3.2019 IN
O.A.(EKM) NO.2894/2017.
