The State Of Kerala vs The State Of Kerala
2021 Latest Caselaw 8025 Ker

OP(KAT)No.470/2017                 1




                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

              THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

                                       &

                     THE HONOURABLE MR. JUSTICE T.R.RAVI

     TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

                           OP(KAT).No.470 OF 2017

   AGAINST THE ORDER IN TA 2285/2012 DATED 13-01-2017 OF KERALA
            ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM


PETITIONERS/RESPONDENTS IN TA:

        1        THE STATE OF KERALA
                 REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
                 FINANCE DEPARTMENT, SECRETARIAT,
                 THIRUVANANTHAPURAM, KERALA

        2        THE STATE OF KEERALA
                 REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
                 CULTURAL AFFAIRS DEPARTMENT,
                 GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM,
                 KERALA

        3        THE DIRECTOR
                 DIRECTORATE OF MUSEUMS & ZOOS,
                 THIRUVANANTHAPURAM, KERALA

                 BY SR. GOVERNMENT PLEADER SRI B. VINOD

RESPONDENTS/APPELLANTS IN TA:

        1        MINI KUMARI, SWEEPER (DAILY WAGES)
                 DIRECTORATE OF MUSEUMS & ZOOS
                 THIRUVANANTHAPURAM, RESIDING AT VANIYATHU,
                 KOCHUKIZHEKKETHIL VEEDU,CHENKALLOOR,
                 POOJAPPURA, THIRUVANANTHAPURAM, KERALA
 OP(KAT)No.470/2017               2




        2        C. GIRIJAKUMARI
                 SWEEPEER(DAILY WAGES)
                 DIRECTORATE OF MUSEUMS & ZOOS,
                 THIRUVANANTHAPURAM,
                 RESIDING AT HARIBHAVAN, SANKAR NAGAR
                 ROAD,PUTHUVITTU MELE, PERUKAVU P.O,
                 THIRUVANANTHAPURAM, KERALA

        3        SUDHA S
                 SWEEPER(DAILY WAGES) DIRECTORATE OF MUSEUMS & ZOOS,
                 THIRUVANANTHAPURAM, RESIDING AT SURAJ BHAVAN,
                 MEL PAYYANADU, ADAYAMON P.O
                 THIRUVANANTHAPURAM, KERALA

        4        HASIL J
                 SWEEPER(DAILY WAGES)DIRECTORATE OF MUSEUMS & ZOOS,
                 THIRUVANANTHAPURAM, RESIDING AT T.C 11/1923,
                 PLANTHOPPU LANE, CHARACHIRA ROAD,
                 THIRUVANANTHAPURAM, KERALA

        5        SOBHANA
                 SWEEPER,(DAILY WAGES)DIRECTORATE OF MUSEUMS & ZOOS,
                 MOONAMOODU, KODUNGANOOR P.O,
                 THIRUVANANTHAPURAM,KERALA

                 R3-5 BY ADV. SRI.M.SASINDRAN

     THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 23-02-2021, THE COURT ON 09-03-2021 DELIVERED THE
FOLLOWING:
 OP(KAT)No.470/2017                      3




                     ALEXANDER THOMAS & T.R. RAVI, JJ.
                      ------------------------------------------------
                             O.P.(KAT) No.470 of 2017
                        [Arising out of order dated 13.01.2017 in
                          T.A.No. 2285 of 2012 of KAT, Tvm.]
                       --------------------------------------------------
                      Dated this the 9th day of March, 2021


                                      JUDGMENT

T.R. RAVI, J.

The original petition has been filed by the State of Kerala and its

officers/authorities, challenging the order dated 13.01.2017 in

T.A.No.2285 of 2013, on the file of the Kerala Administrative Tribunal,

Thiruvananthapuram (hereinafter referred to as the Tribunal). The

petitioners were the respondents before the Tribunal and the

respondents were the applicants.

2. The issue relates to entitlement of the respondents to be

regularised in service as a Part Time Sweepers. Pursuant to the

directions issued by a learned Single Judge of this Court in its

judgment in Mercy v. State of Kerala reported in [2004 (2) KLT

848], confirmed by a Division Bench in its judgment dated 12.08.2005

in State of Kerala and others v. M.M.Mercy and others

(W.A.No.1863 of 2004 and connected cases), the State

Government had issued GO(P) No.501/2005/Fin dated 25.11.2005,

introducing a scheme to govern the cases of regularisation of existing

eligible casual sweepers and regarding appointments to future

vacancies. Paragraph 8 of the above Government order deals with

regularisation of the existing casual sweepers. As per the Government

order, the sweeping area has to be calculated in accordance with the

guidelines given in the appendix, the measurement being carried out by

the PWD officials after notice to the incumbent casual sweeper and in

his presence. Wherever the sweeping area exceeds 100 M 2 and if there

is no post of Part Time Sweeper sanctioned for the office in question,

but there is a casual sweeper being engaged, steps are to be taken for

creation of a post of part time contingent sweeper. The posts are to be

created with effect from the date of appointment of the incumbent as

casual sweeper or from 18.6.2001 (i.e., three years preceding the date

of the judgment of the learned Single Judge in Mercy v. State of

Kerala [2004 (2) KLT 848]), whichever is later.

3. The Government thereafter issued G.O.(P)No.61/2010/Fin.

dated 09.02.2010 modifying the earlier order dated 25.11.2005. It was

ordered 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, provided that their

appointments were made on or before the issuance of the Government

order dated 25.11.2005.

4. In the case on hand, the respondents were working as

sweepers on daily wages under the 3 rd petitioner from the years 2001 to

2003 onwards. They were continuing as sweepers on 23.08.2005 on

which date the certificates Exts.P1 to P5 were issued evidencing the fact

that the respondents were in service. As per GO(P) No.501/2005/Fin

dated 25.11.2005, existing casual sweepers are to be regularised if the

sweeping area is more than 100 M². According to the respondents, they

are engaged to sweep the office of the 3rd petitioner, the museum and

its premises, the Zoo and its pavements, Botanical Garden, etc. and

each of them were sweeping more than 800 M² for the past more than

9 years on daily wage basis and are being paid only Rs.180/- per day.

The respondents had been issued with Identity Cards by the 3 rd

petitioner as can be seen from Ext.P6. The requests made by the

respondents for regularisation was not acceded to by petitioners. By

Ext.P8, the request made by the 3 rd respondent was rejected stating

that the post of sweeper can be filled up only by promotion of part time

employees and in their absence through the Employment Exchange

and that the request of the respondents cannot be granted. The order

was issued on 09.02.2010, on the very same day when the Government

order G.O.(P)No.61/ 2010/Fin. was issued. The respondents thereafter

submitted a mass representation before the Government, pointing out

that even daily wagers are to be regularised as part-time sweepers on

the basis of the Government orders dated 25.11.2005 and 09.02.2010.

The respondents thereafter filed W.P.(C)No.16514 of 2010 before this

Court. An interim order was issued by this Court on 08.03.2011

directing that the respondents shall not be replaced by temporary

hands. The respondents filed W.A.No.1542 of 2011 apprehending that

the interim order in the writ petition may be misconstrued as

permitting replacement of the respondents by Employment Exchange

hands. By Annexure A6 judgment, W.A.No.1542 of 2011 was disposed

of holding that the respondents shall not be replaced by Employment

Exchange hands also. The writ petition was thereafter transferred to

the Tribunal and renumbered as T.A.No.2285 of 2012. The petitioners

filed counter affidavit contending that the engagement of the

respondents was not continuous, that it is not correct to say that the

respondents were sweeping more than 800 M² each, that as per the

order dated 09.02.2010 persons engaged to sweep public gardens,

streets, market place, etc., are not entitled to be regularised and that

the Government has rejected the proposal submitted by the 3 rd

petitioner for regularisation of persons like the respondents. The

Tribunal by order dated 13.01.2017 has allowed the application and

directed the 2nd petitioner to pass orders regularising the respondents

in service as sweepers in accordance with the Government order dated

25.11.2005 and in accordance with the directions issued on 20.10.2011,

by this Court in W.A.No.1542 of 2011. Aggrieved by the order of the

Tribunal, the petitioners have filed this original petition.

5. Heard Sri B.Vinod, learned Senior Government Pleader on

behalf of the petitioners and Sri M.Sasindran learned counsel

appearing on behalf of respondents 3 to 5. The Senior Government

Pleader reiterated the contention that persons engaged to sweep

market places, streets, public gardens, etc. are outside the purview of

the Government order dated 25.11.2005. We are not in any manner

impressed by the contentions advanced by the petitioners.

6. A learned Single Judge has in the judgment dated

19.12.2016 in W.P.(C)No.16151 of 2010, while directing regularisation

of part time sweepers, held that the contention that the Government

order dated 25.11.2005 will not apply to persons engaged to sweep

market place and public roads is distressing and that the attitude is

very harsh and uncharitable. This Court held that no distinction can be

drawn between persons who sweep office buildings and persons who

sweep public places or markets. The Court further observed that it is

the persons who are sweeping public places and market places who are

doing a more arduous job. A similar view has been taken by another

learned Single Judge in the decisions dated 05.02.2020 in W.P.

(C)No.3866 of 2011 and dated 11.2.2020 in W.P.(C)No.1099 of 2011.

We fully agree with the reasonings in the above said judgments and

hold that the benefit of regularisation will be available to persons who

are engaged to sweep market places, public places, bus stands, streets,

public gardens, etc. and that no distinction can be made between such

persons and persons who are engaged to sweep office areas.

7. We find no legal reason to upset the orders issued by the

Tribunal to the effect that the respondents are entitled to

regularisation. The time granted by the Tribunal to comply with its

directions is long over. We hence grant the petitioners a further time of

six weeks from the date of receipt of a copy of this judgment, to comply

with the directions contained in the order dated 13.01.2017 of the

Tribunal in T.A.No.2285 of 2012.

The order of the Tribunal stands modified to that extent. The

original petition is dismissed subject to the above modification. The

parties will bear their respective costs.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

T.R. RAVI, JUDGE

dsn

APPENDIX PETITIONER'S EXHIBITS:

ANNEXURE A1: TRUE COPY OF WPC No.16514/2010 WITH PETITION FOR DIRECTION.

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 23-08-2005 ISSUED BY THE 3RD RESPONDENT TO 1ST PETITIONER

EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 23-08-2005 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER

EXHIBIT P3 TRUE COPY OF THE CERTIFICATE DATED 23-08-2005 ISSUED BY THE 3RD RESPONDENT TO THE 3RD PETITIONER

EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 23-08-2005 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT

EXHIBIT P5 TRUE COPY OF THE CERTIFICATE DATED 23-08-2005 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT

EXHIBIT P6 TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 4TH PETITIONER

EXHIBIT P7 TRUE COPY OF THE GO(P) NO 501/05/FIN DATED 25-11-

EXHIBIT P8 TRUE COPY OF THE PROCEEDIONGS NO.MZ(B) 317/2010 DATED 9-2-2010 OF 3RD RESPONDENT

EXHIBIT P9 TRUE COPY OF GO(P) NO 61/2010/FIN DATED 9-2-2010 OF 1ST RESPONDENT

EXHIBIT P10 TRUE COPY OF MASS REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER AND OTHERS BEFORE THE 2ND RESPONDENT

EXHIBIT P11 TRUE COPY OF THE MEMO DATED 1-2-2011 ISSUED BY THE 3RD RESPONDENT (PETITION FOR DIRECTION)

ANNEXURE A2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDENTS 1 TO 3.

EXHIBIT R1(A) TRUE COPY OF LETTER NO.2985/B2/10/CAD DATED 18/09/2010.

EXHIBIT R1(B) TRUE COPY OF LETTER NO.1520/B2/11/CAD DATED 23/07/2011.

ANNEXURE A3 TRUE COPY OF THE INTERIM ORDER DATED 16/11/2016.

ANNEXURE A4 TRUE COPY OF THE FINAL ORDER DATED 13/01/2017 IN T.A.2285/2012.

ANNEXURE A5 TRUE COPY OF THE INTERIM ORDER DATED 08/03/2011 IN IA NO.3781/2011 IN WPC NO.16514/2010.

ANNEXURE A6 TRUE COPY OF THE JUDGMENT IN WA NO.1542/2011.