Kerala High Court
State Of Kerala vs Radhamani P.K on 7 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 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
OP(KAT).No.118 OF 2020
AGAINST THE ORDER/JUDGMENT IN OA (EKM) 806/2015 OF KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/S:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF
REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, KERALA -
695 001.
2 THE DISTRICT COLLECTOR,
KALPETTA, WAYANAD, KERALA - 673 122.
3 THE VILLAGE OFFICER,
VILLAGE OFFICE, IRULAM, SULTHAN BATHERY, WAYANAD,
KERALA -673 679.
BY GOVERNMENT PLEADER
RESPONDENT/S:
RADHAMANI P.K.,
AGED 56 YEARS, W/O.VELAYUDHAN, CASUAL SWEEPER,
VILLAGE OFFICE, IRULAM, SULTHAN BATHERY TALUK,
WAYANAD DISTRICT, RESIDING AT MUTHUKULATHIL HOUSE,
MANALVAYAL POST, IRULAM, WAYANAD, KERALA -673 579.
R1 BY ADV. SRI.KALEESWARAM RAJ
R1 BY ADV. SRI.VARUN C.VIJAY
R1 BY ADV. KUM.A.ARUNA
R1 BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 07.01.2021, ALONG WITH OP(KAT).116/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No.118 OF 2020 2
ALEXANDER THOMAS
&
T.R. RAVI, JJ.
=================
O.P.(KAT) No.118 of 2020
-----------------------------------
Dated this the 7th day of January, 2021
JUDGMENT
Alexander Thomas, J.
The prayers in the aforecaptioned original petition filed under Article
226 of the Constitution of India are as follows :
(i) "To set aside Ext.P4 order of the Kerala Administrative Tribunal Order
dated 10.10.2019 in OA (Ekm) No. 806/2015
(ii) Any other order or direction as this Honourable Court may deem fit
and proper in the facts and circumstances of the case."
2. Heard Sr.B.Vinod, learned Government Pleader appearing for
the petitioners/respondents in the OA (State of Kerala and others) and
Sri.Kaleeswaram Raj, learned counsel appearing for the respondents
herein/applicants in the OA.
3. It is common ground of both sides as can be seen from the
averments in para No.3 of the reply statement dated 8.2.2016 filed by the
State Government and para No.2 of the reply statement dated 23.11.2015
filed by the District Collector concerned that the respondent herein
(original applicant before the Tribunal) has been working continuously as
casual sweeper in the Village Officer, Irulam from 1.8.2000.
4. The original applicant along with certain other similarly
situated persons had approached this Court seeking regularisation of the
service and this Court as per Ext.P1(A1) judgment dated 27.8.2002 in
O.P.No.28610 of 1999 had directed the District Collector concerned to
sanction and disburse the pay and allowances to the petitioners therein at
the rate applicable to the regular part time sweepers in the light of the
decision of this Court in Santhamma Amma v. State of Kerala [2001
(1) KLT SN 69]. Thereafter, the applicant has been continuing in service
and getting regular pay as directed in the said Annexure-A1 judgment.
Later, the State Government has issued a GO(P) No. 501/2005/Fin dated
25.11.2005 issuing guidelines for regularisation of the service of casual
sweepers whereby in all offices/establishments where sweeping area is
above 100 sq.mtrs. the head of the offices were directed to send proposals
for creation of the post of part time sweepers for regularising the casual
sweepers for working in such posts. The abovesaid GO(P)
No.501/2005/Fin dated 25.11.2005 has not been produced by both sides in
this case for reasons not known to this Court. However, we are fortunate
that a copy of the said GO(P) dated 25.11.2005 has been produced as an
exhibit in the case in OP(KAT) No.116 of 2020, which has been produced as
an annexure in the original application from which that original petitioner
has arisen.
5. It is indeed the admitted case of the petitioners herein
(respondents in OA) that later the sweeping area in the Village Office,
Irulam was increased and the total sweeping area has come to 100.70
sq.mtrs. w.e.f. 10.9.2012 as can be seen from Annexure-A2 certificate.
Hence, it is the claim of the original applicant that based on the enhanced
sweeping area, her service is entitled to be regularised in terms of the
abovesaid GO(P) No.501/2005/Fin dated 25.11.2005 and it is a
subsequent clarification as per Annexure-A7 GO dated 9.2.2010.
6. The State Government and the District Collector concerned
have filed the aforementioned reply statements in the OA filed before the
Tribunal. The abovesaid crucial factual aspects that the applicant has been
consistently and continuously working as sweeper in the Village Office,
Irulam from 1.8.2000 is fully admitted in both the said reply statements.
The only objection raised in the said reply statements filed before the
Tribunal as against the claim made by the original applicant for
regularisation as above is that the earlier, the application submitted for
regularisation of service and for creation of post of part time sweeper was
not in the prescribed proforma as per GO(P) No.501/2005/Fin dated
25.11.2005 and hence, the District Collector, Wayanad had directed the
Tahsildar concerned to obtain the application in the prescribed proforma
from the applicant. Later that, the District Collector has infact forwarded
the said proposal to the Commissioner for Land Revenue, Government of
Kerala as early as on 28.10.2015, but that the proposal has not been
received in Government so far. It is also admitted in para No.4 of the
abovesaid reply statement filed by the State Government before the
Tribunal that the sweeping area of Irulam Village office is 100.70 sq.mtrs.
after completing an additional construction in the building concerned on
10.9.2012 and that the District Collector, Wayanad has forwarded the
proposal for creation of post of part time sweeper in the Village Office,
Irulam to the Commissioner for Land Revenue, Government of Kerala on
28.10.2015.
7. Further, there is an averment that as the creation of posts and
regularisation of service involves financial implication, the administrative
department has to consult the finance Department also after receipt of the
proposal and that the Government has not denied the regularisation of
service of the applicant. Similar averments have been replicated in the
reply statement dated 23.11.2015 filed by the District Collector before the
Tribunal. A reading of the said reply statement filed by both the State
Government and the District Collector would make it clear that no major
objection has been raised thereto as against the claim of the applicant for
regularisation, except that the application was initially not in the
prescribed proforma and that later, the same was obtained in the
prescribed proforma, through the Tahsildar, who in turn has forwarded to
the District Collector, who in turn has forwarded the same to the
Commissioner for Land Revenue.
8. While the State Government would say in the reply statement
that they have not so far received the said application from the
Commissioner for Land Revenue, the District Collector in his reply
statement would submit that he has already done his part by forwarding
the same to the Commissioner for Land Revenue, meaning thereby
thereafter, it is the obligation of the Commissioner for Land Revenue who
in turn forwarded the same to the State Government. It is repeatedly
admitted in both the reply statements that as a matter of fact, sweeping
area of the Village Office, Irulam has come to the area of 100.70 sq.mtrs. on
10.9.2012 as a result of additional construction completed thereto.
9. It is in the light of these admitted facts that the Tribunal has
passed the impugned order, which is a well considered one, whereby it has
been held that the petitioner is entitled for regularisation as part time
sweeper w.e.f. 10.9.2012 with all consequential benefits and needless to say
the relevance of sanctity of the said cut-off date of 10.9.2012 is that the
date on which admittedly the sweeping area has come to the level of above
100 sq.mtrs., which is the pre-requisite norm for regularisation. Para No.8
of GO(P) No. 501/2005/Fin dated 25.11.2005 reads as follows :
"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 casual 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 Government
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 DA 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/regularization 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."
10. Since, the sweeping area in the office in which the applicant has
been employed as the part time sweeper, was below the threshold level of
100 sq.mtrs, even as on the issuance of GO(P) No. 501/2005/Fin dated
25.11.2005 and thereafter, upto 10.9.2012, the Tribunal has very guardedly
ordered that the regularisation of the applicant can take effect only from
10.9.2012. As a matter of fact, such a plea was not even put up by the State
Government and the District Collector in the reply statements. Even
without such a plea put up by the State Government and the District
Collector, the Tribunal has very fairly and consciously guarded the interests
of the State Government and the Government Department by ordering that
the regularisation can take effect only from 10.9.2012. This Court would say
so as a reading of the abovesaid GO(P) dated 25.11.2005 would indicate
that in case the sweeping area is above 100 sq.mtrs. as on the issuance of
said GO dated 25.11.2005, then post has to 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 judgment referred to therein).
11. Thus it can be seen that the Tribunal has very carefully and
prudently taken care of even all aspects of the matter including the public
interest and financial implications by very guardedly ordering that the date
of regularisation of the applicant can only be from the date on which the
sweeping area has attained the area/level of above 100 sq.mtrs.
viz.10.9.2012. It is this order of the Tribunal rendered on 10.10.2019
leading to the final disposal of the abovesaid OA (Ekm) No. 806 of 2015
that is now sought to be challenge by the petitioners herein by filing the
abovesaid OP(KAT).
12. After hearing both sides and after going through the pleadings
and materials on record, it appears that a totally new plea is now put
forward by the petitioners herein in objecting to the directions in the
impugned order of the Tribunal. In the last paragraph of the synopsis of
OP(KAT) No. 118 of 2020, the averments are to the effect that "the
Tribunal, while disposing the Original Application in the light of G.O.(P)
No.501/2005/Fin dated 25.11.2005, erroneously omitted to appreciate the
fact that the very same order categorically says that part time contingent
sweepers will be employed in new offices against vacancies that arise in
future only after getting name from the employment exchange. It is also
further clarified in Government order that under no circumstances any
person shall be engaged otherwise than through employment exchange.
There, the sweeping area was increased to 100.70 sq. ms with effect from
10.9.2012 and therefore, as stated in the said GO, if a new post is
sanctioned to be filled up through employment exchange. The Tribunal
glossed over the above facts and allowed the OA........".
13. The objections in that regard are also made using a different
language, by putting the averments in a different form as can be seen from
para No.4 of the averments in the present OP(KAT), which reads as
follows :
"4. The Tribunal while disposing the Original Application in the light of
GO(P) No. 501/2005/Fin dated 25.11.2005, erroneously omitted to appreciate the
fact that the very same order categorically says that Part Time Contingent
Sweepers will be employed in new offices against vacancies arise in future, only
after getting name from the employment exchange. It is also further clarified in
the Government Order that, under no circumstances any person shall be engaged
otherwise than through employment exchange. Here, the sweeping area was
increased to 100.70 square meters with effect from 10.09.2012. Therefore, as
stated in the Government Order, if a new post is sanctioned it is to be filled up
through Employment exchange. Accordingly, the claim of the respondent herein
for regularization in the post of Part Time Sweeper cannot be considered. True
copy of the order of the learned Tribunal dated 10.10.2019 in the above Original
Application is produced herewith and marked as Exhibit P4. Aggrieved by
Exhibit P4 order, this OP(KAT) is being field on the following among other."
14. A reading of the para No.4 of the OP(KAT) would show that
since the sweeping area was increased to 100.70 sq.mtrs. with effect from
10.9.2012, therefore, as stated in the Government order, if a new post is
sanctioned, it is to be filled up through the employment exchange.
Accordingly, the claim of the respondent herein "for regularisation of the
post of part time sweeper cannot be considered etc."
15. This Court finds it extremely difficult to understand the exact
import of the language employed in para No.4 of OP(KAT). It is common
ground that if the total sweeping area exceeded 100 sq.mtrs. only with
effect from 10.9.2012. Thereafter, without stating any factual aspects,
straightaway the petitioners would jump to the conclusion that therefore, it
has been stated as if a new post is sanctioned and since what is involved is
creation of a new post, it can be filled up through employment exchange
etc. A reading of the averments in OP(KAT) as well as in its synopsis, would
lead to the inference that presumably the contention appears to be that
since the alteration of building appears to be a new building etc., which has
been treated as a new office and that therefore, the post of part time
sweeper should be treated as a fresh post in the new establishment and
therefore, going by the said GO(P) dated 25.11.2005, it has to be only in
accordance with the regular method of appointment through the
employment exchange.
16. Admittedly, the petitioner has been working in the
establishment of the Village Office, Irulam since 1.8.2000, it appears that
from a reading of the averments of the two reply statements filed by the
State Government and District Collector before the Tribunal, it appears
that some alterations in the building was conducted and thereafter, the
total sweeping area of the Village Office became 100.70 sq.mtrs. with effect
from 10.9.2012. The details regarding the increase of the sweeping area are
discernible from a mere reading of Annexures-A2 and A3 produced in the
OA filed before the Tribunal. Moreover, the abovesaid facts borne out from
Annexures-A2 and A3 have been also reinforced by the report of the
Tahsildar produced as Ext.A4 filed in the OA. It appears that the endeavour
sought to be made by the petitioners is that going by the abovesaid GO(P)
No.501/2005/Fin dated 25.11.2005, if the sweeping area was below 100
sq.mtrs. as on the date of the said GO, then the incumbent was not entitled
for regularisation as envisaged in para No.8 thereof, but such incumbent
would be entitled only for the benefit envisaged in terms of para No.9
thereof.
17. Para No.13 of the said GO dated 25.11.2005 speaks about part
time contingent sweepers employed in new offices and establishments. In
other words, para No.13 deals with cases where offices/establishments are
established for the first time and therefore, since it is a new establishment
of the office, there could not have been any part time sweeper working in
such office and in such cases, if a sweeper is to be engaged or appointed,
then it is strictly ordered in para No.13 of the said GO that in such cases,
the part time sweepers could be appointed only through the regular
method of consideration of candidates sponsored by the employment
exchange. Yet another temporary contingency is also envisaged therein that
until the process of regular appointment through the employment
exchange, contract engagement through the local 'Kudumbasree' society
could also be permitted on a short term basis. Para No.14 of the GO dated
25.11.2005 deals with further aspects regarding creation of posts of part
time sweeper in the newly formed offices.
18. After hearing both sides, there cannot be any doubt for any
ordinary reasonable prudent person that para Nos.13 and 14 will have no
application whatsoever in the facts and circumstances of this case. The
Village Office, Irulam has been in existence for quite a long time and the
petitioner has been working as sweeper in the said Village Office, Irulam
since 1.8.2000. It so happened that subsequently, alterations of the
building was made which resulted in the enhancement of the sweeping area
to 100.7 sq.mtrs. with effect from 10.9.2012. Therefore, to construe that in
such a contingency, the existing incumbent has to be totally thrown out and
a new incumbent can be appointed only through the regular process of
consideration of candidates through the employment exchange, is to say
the least absolutely unreasonable and arbitrary and never intended in the
abovesaid GO and the norms governing the field. In a case of this nature,
where the sweeping area had not come to the threshold level of 100
sq.mtrs. as on the date of the GO dated 25.11.2005, the incumbent is not
entitled for regularisation as ordered in para No.8 of the said GO, but could
get only certain lesser benefits in terms of para No.9 thereof etc. The said
crucial aspect of the matter is all the more evident and manifest from a
mere reading of the provisions contained in GO(P) No.61/2010/Fin dated
09.02.2010 produced at Annexure-A7 in the instant OA. A reading of para
No.2 of the said GO dated 09.02.2010 would make it clear that as per the
conditions stipulated in the earlier GO dated 25.11.2005, those incumbent,
who were working in offices having sweeping area below 100 sq.mtrs were
not eligible for regularisation and hence, number of such sweepers who
were not benefited by the decisions and accordingly, taking note of certain
directions in the judgments issued by this Court referred to therein, which
has been ordered in para No.3 (i) of the said Annexure-A7 GO dated
09.02.2010 as follows :
3. "In view of the above observations Government felt it highly necessary to incorporate
certain modifications/clarification to the existing Government Order. Accordingly, the
following clarifications are issued.
(i) All existing sweepers, other than Casual Sweepers, irrespective of the mode of
appointment, shall also be entitled for regularization based on the sweeping area,
defined in the Government order read as 3 rd paper above, provided their appointments
were made on or before the issuance of GO read above and are continuing as such on
the date of this order. The regularisation will have effect from the date of this order
only."
19. Thus, it can be seen that in a case where an incumbent like the
applicant was not entitled for regularisation on the basis of GO(P) dated
25.11.2005 on the ground that the sweeping area was below the threshold
level of 100 sq.mtrs, then they shall be entitled for regularisation based on
the sweeping area defined in the said GO dated 25.11.2005, provided that
appointments made on or before the issuance of the GO read above and
are continuing as such on the date of this order and that the regularization
will have effect from the date of the said GO(P) dated 09.02.2010.
Therefore, the case of the petitioner would be fully covered by the
provisions of the said Annexure-A7 GO dated 09.02.2010. It is beyond any
doubt that the applicant was in service from 01.08.2000 and she was
continuing in service thereafter. Hence, she would fulfill both the
conditions that the incumbent was already in service on or before the
issuance of GO(P) dated 25.11.2005 and has also continuing in service as
on the date of Annexure-A7 GO dated 09.02.2010. However, there could be
some pre-area as to whether the date of regularization in such cases would
be from the date of the said GO dated 09.02.2010 or only after the
minimum sweeping area norm is fulfilled subsequently. There cannot be
any doubt that if the minimum sweeping area norm is fulfilled only after
the issuance of GO(P) dated 09.02.2010, then the regularization can take
effect only from the date on which the said minimum norm of sweeping
area is actually fulfilled and it cannot be from the date of issuance of
Annexure-A7 GO dated 09.02.2010. In a case where the sweeping area
norm was not fulfilled as on the date of issuance of GO(P) dated
25.11.2005 and the said sweeping area norm was fulfilled only later and
irrespective as to whether the said sweeping area increment happened
immediately before or after the issuance of said GO(P) dated 09.02.2010,
the benefit of regularization in such case can be claimed only or after from
the date of issuance of GO(P) dated 09.02.2010, as the case may be.
20. In the instant case, where the minimum sweeping area norm is
fulfilled only after the date of issuance of GO(P) dated 09.02.2010, the
incumbent like the applicant cannot claim that the benefit of regularisation
enures to her from 09.02.2010 but only from the date on which the said
minimum norm is subsequently fulfilled, which in the instant case is
10.09.2012. Even without raising any such specific plea by the respondents
in the OA, the Tribunal has very guardedly and carefully taken care of the
public interest element as well as the financial implications by specifically
ordering that the date of regularization as per the case of the applicant
herein would be only with effect from the date on which the minimal
sweeping area norm is actually fulfilled, viz. 10.09.2012. Judging from
these aspects, it can be seen that the directions and orders passed by the
Tribunal is a wholesome one dealing with various aspects of the matter,
which are not even canvassed by the respondents in the OA. After this
process of adjudication, it is really disheartened to note that the petitioners
have thought it fit to get into this exercise of filing the original petition
under Articles 226 and 227 of the Constitution of India for challenging the
said well considered order of the Tribunal. The objections raised in this
original petition were never raised by the respondents in the OA before the
Tribunal. Even the objections raised in this OP are quite ambiguous and it
would require very strenuous effort of linguistic analysis for the Court to
come to the conclusion as to what exactly is meant by the said objections
sought to be projected in the synopsis and in the averments in the original
petition. The objections are as aforestated, which appears to be absolutely
untenable. It is not known as to why the State Government and the other
authorities concerned have chosen to file such an original petition.
21. The Apex Court and various High Courts including this Court
has consistently held and cautioned the public authorities to ensure that
unnecessary exercise of appeals or litigative proceedings are not set in
motion, as otherwise it would entail not only waste of public expenditure,
but would also detrimentally affect the precious time and resources of the
judicial organs of the State and also the time and the machinery of the
public authorities concerned.
22. The upshot of the above discussion is that the original petition
is devoid of any merit whatsoever and the pleas cannot be entertained by
this Court. However, we would only order that the time limit stipulated by
the Tribunal in the impugned order dated 10.10.2019 in O.A.(EKM) No.
806 of 2015 for compliance of the directions and orders made therein will
stand extended by a further period of two months from the date of
production of a certified copy of this order as last chance. If there is an
unreasonable delay on the part of the petitioners in complying with the
abovesaid directions, it is for the petitioner to set in motion the appropriate
proceedings before the Tribunal in the manner known to law.
With these observations and directions, the above Original Petition
will stand dismissed.
sd/-
ALEXANDER THOMAS,
JUDGE
sd/-
T.R. RAVI
JUDGE
SKS
APPENDIX OF OP(KAT) 118/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF THE ORIGINAL APPLICATION
EXHIBIT P1(A1) TRUE COPY OF THE JUDGMENT DATED 27.8.2002
IN OP NO.28610/1999.
EXHIBIT P1(A2) TRUE COPY OF THE SWEEPING AREA CERTIFICATE
DATED 8.10.2012 PERTAINING TO THE
APPLICANT.
EXHIBIT P1(A3) TRUE COPY OF THE SWEEPING AREA CERTIFICATE
CALCULATION WITH SKETCH.
EXHIBIT P1(A4) TRUE COPY OF THE LETTER DATED 17.4.2013
EXHIBIT P1(A5) TRUE COPY OF THE LETTER DATED 07.02.2015
EXHIBIT P1(A6) TRUE COPY OF THE LETTER DATED 27.4.2015
EXHIBIT P1 (A7) TRUE COPY OF THE GO DATED 9.2.2010
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY
THE 1ST RESPONDENT IN THE OA
EXHIBIT P3 THE 2ND RESPONDENT IN THE OA HAS ALSO FILED
A REPLY STATEMENT
EXHIBIT P4 TRUE COPY OF THE ORDER OF THE LEARNED
TRIBUNAL DATED 10.10.2019 IN THE ABOVE
ORIGINAL APPLICATION.
