Kerala High Court
The State Of Kerala vs The State Of Kerala on 7 January, 2021
O.P.(KAT) 116 of 2020 1
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.116 OF 2020
AGAINST THE ORDER IN TA 6160/2012 DATED 11-06-2019 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS IN TA:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
DEPARTMENT OF AGRICULTURE,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA.
2 THE DIRECTOR OF AGRICULTURE,
THIRUVANANTHAPURAM, KERALA.
3 THE PRINCIPAL AGRICULTURAL OFFICER,
ALAPPUZHA, KERALA.
4 THE AGRICULTURAL OFFICER,
KRISHI BHAVAN, VAYALAR,
PATTANAKKADU P O, ALAPPUZHA DISTRICT,
KERALA.
BY SR. GOVERNMENT PLEADER SRI.B.VINOD
RESPONDENT/APPLICANT IN TA:
A.S.SAJEEV
PART TIME CASUAL SWEEPER, KRISHI BHAVAN,
VAYALAR, ALAPPUZHA DISTRICT, KERALA, PIN-688536.
BY ADV. SRI.KALEESWARAM RAJ
BY ADV. SRI.VARUN C.VIJAY
BY ADV. KUM.THULASI K. RAJ
BY ADV. LAILA THASNIM
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 07.01.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P.(KAT) 116 of 2020 2
ALEXANDER THOMAS & T.R. RAVI, JJ.
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O.P.(KAT) No.116 of 2020
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Dated this the 7th day of January, 2021
JUDGMENT
T.R.Ravi, J.
The original petition has been filed at the instance of the State of
Kerala and its officers, challenging the order dated 11.06.2019 in
T.A.No. 6160 of 2012 on the file of the Kerala Administrative Tribunal,
Ernakulam Bench(the Tribunal for short). The respondent(hereinafter
referred to as the applicant), was working as a casual sweeper in Krishi
Bhavan, Vayalar, from July 1995 onwards. On 25.11.2005, the 1 st
petitioner issued G.O.(P).No.501 of 2005, produced as Exhibit P1 TA 5
in the original petition, issuing guidelines for regularisation of the
existing eligible casual sweepers and for appointment against future
arising vacancies of sweepers/cleaners in Government offices. As per
the Government order, for regularising the existing casual sweepers
where the sweeping area exceeds 100 square metres, creation of posts of
part-time contingent employees depending on the sweeping area has to
be made. The sweeping area is to be calculated on the basis of the
guidelines given in the appendix to the Government order. The
measurement was to be carried out by the PWD officials, after notice to
O.P.(KAT) 116 of 2020 3
the incumbent casual sweeper and in his presence. The exercise was to
be completed in all cases by 15.12.2005. The order provided that if on
measurement of the area, it is found that the area exceeds 100 m² and if
there is a casual sweeper being engaged, a post of part-time contingent
sweeper will be created and such person will be absorbed. It is further
provided that the posts created will be with effect from the date of
appointment of the incumbent as casual sweeper or from 18.06.2001,
whichever is later.
2. The applicant submits that the sweeping area was initially
assessed by the Assistant Executive Engineer as 118.52 m², as is evident
from the Certificate dated 13.2.2006, which has been produced as
Exhibit P1 TA 1 in the original petition. The measurement was revised
by excluding the area covered by the store, porch, passage, toilet and
yard and re-fixed as 103.44 m² as can be seen from the letter dated
9.10.2007, issued by the the Assistant Executive Engineer to the
Agricultural Officer. A sketch of the area has been annexed to the above
letter showing the manner in which the measurement was carried out.
However, by order dated 19.1.2009, it was ordered that the post of part-
time sweeper cannot be created at Krishi Bhavan, Vayalar, where the
applicant was working, since the sweeping area is less than 100 metre
square. Aggrieved by the above order, the applicant initially filed W.P.
O.P.(KAT) 116 of 2020 4
(C)No.4037 of 2009, which was later transferred to the Kerala
Administrative Tribunal and re-numbered as T.A.No.6160 of 2012. In
the counter affidavit filed on behalf of the petitioners on 14.5.2010, it is
admitted that the applicant was working from July, 1995, that the
sweeping area Certificate initially issued shows 118.52 m² as the area,
that by circular No.58/07/Fin. dated 5.7.2007, certain areas were to be
excluded for the purpose of calculating the sweeping area and that on
re-measurement, it was found that the area comes to 103.44 m². It is
further stated that the Finance (Inspection-Technical Wing) had
verified the area of Krishi Bhavan, Vayalar, and tabulated the same as
77.68 m². However, no supporting material has been produced to show
the manner in which the above area was arrived at, or to show how the
area earlier fixed as 103.44 m² was reduced considerably. There is no
contention that the earlier measurement was factually wrong. An
additional reply statement was thereafter filed on behalf of the 1 st
petitioner, wherein it has been reiterated that the sweeping area was
77.68 m² from 2001 to March 2013, that it was 135.79 metre square
from April 2013 to 16.8.2015, and that thereafter, it is 152.2 m². Again,
except for the statement, absolutely no details are given regarding the
manner in which the measurement was carried out and how the earlier
measurement got reduced.
O.P.(KAT) 116 of 2020 5
3. The Tribunal by order dated 11.6.2019, allowed the original
application, directing the 1st petitioner to issue orders sanctioning a post
of regular part-time sweeper in the office of the 4 th respondent before
the Tribunal and to regularise the services of the applicant with effect
from 18.6.2001 as provided in paragraph 8 of the Government order
dated 25.11.2005. It is aggrieved by the above direction that the
petitioners have preferred this Writ petition.
4. Heard Sri B.Vinod, learned Senior Government Pleader on
behalf of the petitioners and Advocate Sri Kaleeswaram Raj, on behalf
of the respondent/applicant. In paragraph 11 of the impugned order,
the Tribunal has referred to circular No.58 of 2007 and the Government
order G.O.(P)No.584/2007 dated 12.12.2007, which clarified the mode
of measurement of the sweeping area, and to G.O.(P)No.61/2010/Fin.
dated 9.2.2010, wherein the Government directed the Chief Technical
Examiner, Finance Department to re-assess the sweeping area assessed
by the Public Works Department authorities. The Tribunal found that
the said circulars and orders cannot be made applicable in the case of
the applicant, who was in service from 1995, particularly since the
above orders were not in force on 25.11.2005, either when the
Government order providing for regularisation was issued or when the
sweeping area was certified to be above 100 square metres by the
O.P.(KAT) 116 of 2020 6
authorities, who were authorised by the Government order. Apart from
the fact that no materials were placed before the Tribunal to show the
manner in which the sweeping area got reduced to 77.68 m², even in
the original petition which has been filed before this Court, no such
materials are forthcoming. The learned Senior Government Pleader
appearing for the petitioners, fairly admitted that the Government
orders of 2007 and 2010 on the basis of which the sweeping area has
been reduced, have not been produced either before the Tribunal or
before this Court. On the facts admitted, we are of the considered
opinion that even if the above said orders are produced, a different view
cannot be taken in the matter. We are in complete agreement with the
reasoning adopted by the Tribunal that while calculating the sweeping
area in the case of the applicant, who was in service from 1995 onwards,
the authorised officers have certified the area to be more than 100
square metres on the basis of the Government orders and guidelines
existing as on 25.11.2005. A reading of the guidelines, which had been
issued would show that there is no requirement to exclude the toilets, or
the car porch or the staircase or the store area. All that is stated in the
order is that, if such areas are not used for the exclusive purpose of the
office they cannot be included and that if the areas are common areas
shared by different offices, the same will have to be apportioned
O.P.(KAT) 116 of 2020 7
between the various offices in question. As such, there was no
justification even to reduce the area from 118.52 m². Even if the store
area is to be reduced, the sweeping area will still be more than 100
square metres. There is hence no justification for treating the sweeping
area as less than 100 m² and refusing the relief of regularisation to the
applicant. No grounds have been made out warranting the interference
by this Court in exercise of its jurisdiction under Articles 226 and 227 of
Constitution of India. The Original petition fails and a same is
dismissed. The parties shall bear their respective costs.
Sd/-
ALEXANDER THOMAS,
JUDGE
Sd/-
T.R. RAVI,
JUDGE
dsn
O.P.(KAT) 116 of 2020 8
APPENDIX OF OP(KAT) 116/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1(TA) TRUE COPY OF THE TA ALONG WITH EXHIBITS.
EXHIBITS:
EXHIBIT P1(TA)(1) TRUE COPY OF THE CERTIFICATE DATED
13.02.2006.
EXHIBIT P1(TA)(2) TRUE COPY OF THE SWEEPING AREA
CERTIFICATE DATED 09.10.2007 TOGETHER
WITH PLAN.
EXHIBIT P1(TA)(3) TRUE COPY OF THE JUDGMENT DATED
04.11.2003 IN WP(C) 19117/2003.
EXHIBIT P1(TA)(4) TRUE COPY OF THE GO(MS) NO.12/09 DATED
19.01.2009.
EXHIBIT P1(TA)(5) TRUE COPY OF THE (P) 501/2005 DATED
25.11.2005.
EXHIBIT P2(TA) TRUE COPY OF THE COUNTER AFFIDAVIT FILED
ON BEHALF OF THE 1ST RESPONDENT.
EXHIBIT P3(TA) TRUE COPY OF THE ADDITIONAL REPLY
STATEMENT FILED ON BEHALF OF THE 1ST
RESPONDENT.
EXHIBIT P4(TA) TRUE COPY OF THE TA NO.6060/2012 DATED
11.06.2019.
