Kerala High Court
The Chief Medical Officer vs Sreedharan K on 15 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
OP(KAT) NO. 95 OF 2021
AGAINST THE ORDER IN OA 1822/2015 OF KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 4IN O.A.:
1 THE CHIEF MEDICAL OFFICER
GOVERNMENT HOMOEO DISPENSARY, ERAMAM P.O, ERAMAM, KUTTOOR,
THALIPARAMBA, KANNUR DISTRICT PIN 670 301
2 THE DISTRICT MEDICAL OFFICER (HOMEO)
DISTRICT MEDICAL OFFICE (HOMOEO), IIND FLOOR, F BLOCK, CIVIL
STATION, KANNUR, PIN 670 002
3 THE STATE OF KERALA,REPRESENTED BY ITS SECRETARY TO
GOVERNMENT, AYUSH DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM PIN 695 001
4 THE DIRECTOR OF HOMOEOPATHY,DIRECTORATE OF HOMOEOPATHY,
PAZHAVANGADY, THIRUVANANTHAPURAM PIN 695 023
BY GOVERNMENT PLEADER
RESPONDENT/APPLICANT & RESPONDENT 5 IN THE O.A.:
SREEDHARAN
1 K., AGED 48 YEARS,
S/O. RAGHAVAN K, RESIDING AT KOYYATH HOUSE, ERAMAM P.O, ERAMAM, PIN 670
307, KANNUR DISTRICT, WORKING AS CASUAL SWEEPER,GOVERNMENT HOMOEO
DISPENSARY,ERAMAM,KANNUR,PIN 670307
2 SMT. VALSALA KUMARI, AGED 50 YEARS,
W/O. SURENDRAN (LATE) PART TIME SWEEPER, GOVERNMENT HOMOEO
DISPENSARY, ERAMAM, ERNAKULAM, PIN 670 307
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER
THIS OP(KAT) HAVING COME UP FOR ADMISSION ON 15.07.2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT) No. 95 of 2021
2
ALEXANDER THOMAS & A.BADHARUDEEN, JJ.
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OP(KAT) No. 95 of 2021
[arising out of the impugned final order dated 20.5.2020 in
O.A. No. 1822 of 2015 on the file of the KAT, Thiruvananthapuram Bench]
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Dated this the 15th day of July, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayers in the afore caption Original Petition (KAT) filed under Articles
226 & 227 of the Constitution of India are as follows:
"
1. To set aside the Exhibit P5 order of the Kerala Administrative
Tribunal in O.A. NO. 1822/2015.
2. To dismiss the Exhibit P1 Original Application No.1822/2015 filed by the 1 st
Respondent before the Kerala Administrative Tribunal.
3. To declare that 1st Respondent is not eligible for any of the reliefs claimed in the
Exhibit P1 Original Application.
4. Any other order or direction as this Honourable Court may deem fit and proper
in the facts and circumstances of the case. "
2. Heard Sri.Saigi Jacob Palatty, learned Senior Government Pleader
appearing for the petitioners herein (R-1 to R-4 in the O.A.) and Sri.Fathahudeen,
learned advocate appearing for R-1 herein. Though notice has been duly served on
R-2 herein, the said party has not entered appearance.
3. The prayers in the instant Ext.P-1 O.A. No. 1822/2015 filed by R-1
herein (original applicant) are as follows [See page 23 of the paper book of this
OP(KAT)]:
OP(KAT) No. 95 of 2021
"
i. Call for the records leads to the engagement of the applicant as casual sweeper
in government Homeo Dispensary, Eramum under the respondents and direct
the respondents not to terminate his engagement.
ii. Direct the 2nd respondent to regularize the service of the applicant as Part time
Sweeper in the Government Homoeo Dispensary at Eramam of Taliparamba
Taluk, Kannur District.
iii. Such other order or direction as this Hon'ble Tribunal may consider fit and
proper in the facts and circumstances of the case to redress the grievances of
the applicants."
4. The Tribunal, after hearing both sides has rendered impugned Ext.P-5
final order dated 20.5.2020 in O.A. No.1822/2015 whereby it has been found that
the applicant is legally entitled for regularization as sweeper in terms of G.O.(P)
No.501/2005/Fin dated 25.11.2005 and the mere fact that R-2 herein (R-5 in the
O.A.) has been subsequently appointed in the year 2016, cannot in any manner
defeat the rights of the original applicant of being regularization, as per the said
G.O. dated 25.11.2005. Accordingly, the Tribunal has ordered that competent
authority of the State Government will pass necessary order for regularization of
original applicant in terms of abovesaid G.O. within 3 months and that the
respondents in the O.A. may also find out another vacancy to accommodate R-5 in
the O.A./R-2 herein. It is this final verdict of the Tribunal at Ext.P-5 that is under
challenge in this Original Petition.
5. The facts in this case are not in serious dispute. The original applicant
was appointed as sweeper in Government Homoeo Dispensary at Eramam in
Kannur District, on 3.8.2005. The sweeping area of the said establishment has been
OP(KAT) No. 95 of 2021
certified as 184.38 sq.m. on 10.7.2006 (as per Ext.P-1) by the Assistant Engineer,
PWD, in terms of the norms contained in G.O.(P) No. 501/2005/Fin dated
25.11.2005 and subsequently the sweeping area has been certified as 179.57 sq.m.
as per Ext.R-2 (b) certificate dated 4.11.2021 issued by the Assistant Engineer,
Public Works Department. There is no factual dispute that the original applicant
has been appointed as Sweeper in the abovesaid office establishment well before
the issuance of G.O.(P) No.501/2005/Fin dated 25.11.2005 and the sweeping area
was above the minimum threshold limit of 100 sq.m.
6. It is common ground that, in compliance of the directions issued by this
Court in various judgments, the competent authority of the State Government has
framed a scheme for regularization of casual sweepers, as per the norms in G.O.(P)
No. 501/2005/Fin dated 25.11.2005. Without getting into details, the core of the
norms as per the said G.O. is that, the incumbent concerned should have been
appointed as sweeper in the office establishment concerned before 25.11.2005 and
the sweeping area as certified by the PWD as on 25.11.2005 should be not less than
100 sq.m. or above. It will be pertinent to refer to para 8 of G.O.(P) No.
501/2005/Fin dated 25.11.2005, 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 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
OP(KAT) No. 95 of 2021
15-12-2005. 1f, 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. mntrs.). 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."
7. Further it appears that the head of the office/competent officer has
strongly recommended the case of the applicant that she is entitled for
regularization in terms of G.O.(P) No. 501/2005/Fin dated 25.11.2005, who in turn
was denied the same as per the impugned Anx.R-2(a) order dated 18.8.2015. (see
page 44 of this paper book) The sole ground of rejection cited in Anx.R-2(a) is on the
basis of para 3(i) of subsequent G.O. viz, G.O.(P) No. 61/2010/Fin dated 9.2.2010.
The government even went to the extend of directing in Anx.R-2(a) that the
department should appoint another sweeper through employment exchange so as
to displace the applicant. A bare reading of abovesaid G.O.(P) No. 501/2005/Fin
dated 25.11.2005 would clearly indicate that the Government has ordered that, even
in case where the sweeper has been appointed before the issuance of said G.O.
dated 25.11.2005 and where the sweeping area is found to be less than 100 sq.m.,
OP(KAT) No. 95 of 2021
still a special remuneration is payable and service of said incumbent is to be
continued. That apart, the Government has subsequently issued norms at G.O.(P)
No. 61/2010/Fin dated 9.2.2010 whereby it has been provided that where the
incumbent has been working as sweeper as on 25.11.2005, and the sweeping area is
found to be less than 100 sq.m., and subsequently the sweeping area increases to
100 sq.m. and above, then such a sweeper can be regularized with effect from the
date of issuance of subsequent G.O. dated 9.2.2010. Therefore, at the outset it has
to be held that the direction given by the State Government in Anx.R-2(a) that
another sweeper should be appointed through employment exchange to displace
and oust the original applicant was illegal in any view of the matter. It appears that,
it is on this basis that the department has appointed R-2 herein (R-5 in the O.A.) as
part time in the same office establishment in the year 2016.
8. Going by the pleadings and materials, there is no dispute that the
applicant was in service as a sweeper in the office establishment prior to 25.11.2005
and the sweeping area has been consistently above 100 sq.m. Hence, the Tribunal
was fully right in holding that the original applicant was legally entitled to secure
regularization in terms of G.O.(P) No. 501/2005/Fin dated 25.11.2005. Even the
head of the office had strongly recommended the case of the original applicant and
the same was forwarded to the Government by none other than the head of the
department (Director of Homeopathy) which has been rejected by citing untenable
OP(KAT) No. 95 of 2021
grounds. The sole ground of rejection is that at para 3(i) of G.O.(P) No.
61/2010/Fin dated 9.2.2010, which reads as follows:
"All existing sweepers, other than Casual Sweepers, irrespective of the mode of
appointment, shall also be entitled for reglarization based on the sweeping area, defined
in the Government order read as 3rd paper above, provided their appointments were
made on or before the issuance of GO read above and are continuing as such as on the
date of this order. The regularisation will have effect from the date of this order only."
9. Para 3(i) of G.O.(P) No. 61/2010/Fin dated 9.2.2010 only stipulates
that all existing sweepers other than casual sweepers irrespective of mode of
appointment, shall be entitled for regularization based on sweeping area defined in
G.O.(P) dated 25.11.2005, provided their appointments were made on or before the
issuance of said G.O. and are continuing as such on the date of subsequent G.O.
dated 9.2.2010. It has to be borne in mind that the said restriction in para 3(i) has
been put in place only to ensure that those sweepers who were in service prior to
25.11.2005 and who were working in office establishment of sweeping area of less
than 100 sq.m. as on 25.11.2005 and the sweeping area subsequently increased to
100 sq.m. or above as on 9.2.2010, will have to fulfill that criteria. That apart, there
is factual case for the respondents that the applicant was not in service as on
9.2.2010. Therefore, the ground of rejection in Anx.R-2(a) based on para 3(i) of
G.O. dated 9.2.2010 is completely untenable and irrelevant. On that sole ground,
the said ground of rejection has to be held as illegal and ultra vires. That apart, this
Court has held in various decisions that in a case where the incumbent is fully
OP(KAT) No. 95 of 2021
entitled for the right of regularization in terms of G.O. dated 25.11.2005, then any
subsequent restrictions that may be put in place on the basis of subsequent
executive orders cannot defeat the rights of such an incumbent who is entitled on
the basis of basic G.O. dated 25.11.2005.
10. Hence, in any view of the matter the Tribunal was fully right in holding
that the respondents in the O.A. are legally obliged to regularize the original
applicant on the basis of G.O. dated 25.11.2005, without any further delay.
Indisputably, R-2 herein/R-5 in the O.A. was appointed only in the year 2016 and
that too, presumably, on the basis of the stand of the Government in
Anx.R-2(a) dated 18.8.2015 . We have already held that the ground of rejection and
the stand of the Government at Anx.R-2(a) is illegal and ultra vires. However, the
Tribunal has protected the interest of R-5 in the O.A./R-2 herein by ordering that
she should be accommodated in another vacancy by the department. We are not
interfering with the said direction of the Tribunal, given in favour of R-2 herein. No
grounds are made out for interfering with the considered verdict of the Tribunal in
this case. However, we note that there is long delay on the part of the petitioners
herein in complying with the directions of the Tribunal. Accordingly, we order that
the directions of the Tribunal to regularize the service of the applicant shall be
complied with by the Government within two months from the date of production
of a certified copy of this judgment. No other orders and directions are called for.
OP(KAT) No. 95 of 2021
With these observations and directions, the above Original Petition (KAT)
will stand dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A.BADHARUDEEN, JUDGE
MMG
OP(KAT) No. 95 of 2021
APPENDIX OF OP(KAT) 95/2021
PETITIONERS' ANNEXURES
ANNEXURE A1 TRUE COPY OF DISABILITY CERTIFICATE ISSUED BY
MEDICAL BOARD OF KANNUR DISTRICT HEAD QUARTERS
HOSPITAL
ANNEXURE A2 TRUE COPY OF THE EMPLOYMENT IDEINTITY CARD
DATED 27-09-2007
ANNEXURE A3 TRUE COPY OF THE CALCULATION STATEMENT
PREPARED BY ASSISTANT EXECUTIVE ENGINEER
FORWARDED TO THE 1ST RESPONDENT.
ANNEXURE A4 TRUE COPY OF THE REPORT DATED 21-01-2015
ANNEXURE R2 A TRUE COPY OF THE LETTER NO. 31146/J3/15 DATED
18-08-2015
ANNEXURE R2 B TRUE COPY OF THE AREA CERTIFICATE DATED 04-11-
2011 FROM ASSISTANT EXEUTIVE ENGINEER, PWD,
THALIPARAMBA
ANNEXURE R2(C) TRUE COPY OF THE LETTER NO. L1/1188/14 DATED
24-05-2014 FROM EMPLOYMENT OFFICER,
THALIPARAMBA
ANNEXURE R2(D) TRUE COPY OF THE LETTER NO. 497/E1/14/DOK
DATED 27-12-2014
ANNEXURE R2(E) TRUE COPY OF THE ORDER NO. 4007/E1/2015/D.O.K
DATED 03-02-2016
EXHIBIT P1 TRUE COPY OF THE O.A NO. 1822/2015 ALONG WITH
ANNEXURES BEFORE THE KERALA ADMINISTRATIVE
TRIBUNAL
EXHIBIT P2 TRUE COPY OF THE MA NO. 716/2016 FOR DIRECTION
FILED BY THE RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT ALONG WITH
OP(KAT) No. 95 of 2021
ANNEXURE R2(A) TO ANNEXURE R2(E) FILED BY THE
SECOND PETITIONER ON 04-07-2019
EXHIBIT P4 TRUE COPY OF THE MA NO. 2205/219 FILED FOR
IMPLEADING ADDITIONAL PETITIONERS 3 TO 5
EXHIBIT P5 TRUE COPY OF THE ORDER OF THE KERALA
ADMINISTRATIVE TRIBUNAL DATED 20-05-2020 IN OA
1822/15
