Kerala High Court
State Of Kerala vs State Of Kerala on 9 March, 2021
OP(KAT)No.378/2018 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.378 OF 2018
AGAINST THE ORDER IN TA 191/2013 DATED 31-01-2017 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 3 IN TA:
1 STATE OF KERALA,
REP. BY ITS SECRETARY TO GOVERNMENT,
DEPARTMENT OF LOCAL SELF GOVERNMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
2 THE DIRECTOR OF PANCHAYAT,
THIRUVANANTHAPURAM-01.
3 THE DEPUTY DIRECTOR OF PANCHAYAT,
OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT,
PATHANAMTHITTA-01.
BY SR.GOVERNMENT PLEADER SRI B. VINOD
RESPONDENTS/APPLICANTS & 4TH RESPONDENT IN TA:
1 T.K.KAMALAMMA,
PART TIME CASUAL SWEEPER,
ARANMULA GRAMA PANCHAYAT,
EDAYARAMULA WEST P.O,
PATHANAMTHITTA 689532.
2 SASI P.K.,
PART TIME CASUAL SWEEPER,
ARANMULA GRAMA PANCHAYAT,
EDAYARAMULA WEST P.O.,
PATHANAMTHITTA-689532.
OP(KAT)No.378/2018 2
3 THE SECRETARY,
ARANMULA GRAMA PANCHAYAT,
EDAYARAMULA WEST P.O.,
PATHANAMTHITTA-689532.
R1-2 BY ADV. SRI.KALEESWARAM RAJ
R1-2 BY ADV. SRI.VARUN C.VIJAY
R1-2 BY ADV. KUM.A.ARUNA
R1-2 BY ADV. SMT.RIYA RAYMOL IYPE
R1-2 BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE
R1-2 BY ADV. SMT.K.C.AISHWARYA
R3 BY ADV. SRI.S.MUHAMMED HANEEFF
R3 BY ADV. SRI.M.H.ASIF ALI
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.378/2018 3
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No.378 of 2018
[Arising out of order dated 31.01.2017 in
T.A.No.191 of 2013 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 31.01.2017 in T.A.No.
191 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 1 and 2 were the applicants.
2. The issue relates to entitlement of the respondents 1 and 2
to be regularised in service as a Part Time Sweepers. Pursuant to
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 & Ors. v. M.M.Mercy & Ors. (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 1 and 2 were being
engaged as sweepers on daily wage basis in Aranmula Grama
Panchayat from 1998 and 1997 respectively. They had filed W.P.
(C)No.24758 of 2008, along with another part time sweeper named
P.K.Sajini, seeking regularisation as per GO(P) No.501/2005/Fin.
dated 25.11.2005. By Ext.P7 judgment dated 30.03.2009, this Court
categorically found that the respondents 1 and 2 are part time sweepers
entitled to the benefit of regularisation as per the Government order
dated 25.11.2005 and directed the Government to issue final orders
regularising the service. The Government thereafter issued Ext.P9
order dated 28.05.2010 finding Smt.P.K.Sajini who was the 1 st
petitioner in W.P.(C)No.24758 of 2008 alone is entitled to be
regularised, since she was sweeping the office area and the respondents
1 and 2 who were engaged as market and road sweepers were not
entitled to the benefit. The order is issued relying on G.O.(P)
No.61/2010/Fin. dated 09.02.2010 wherein under the guise of
clarification of the order dated 25.11.2005, it is stated that the said
order will not apply to sweepers engaged for cleaning bus stands,
streets, markets, public gardens, etc. The respondents 1 and 2 filed
W.P.(C)No.2363 of 2011 challenging the order Ext.P9. The writ petition
was transferred to the Tribunal and renumbered as T.A.No.191 of 2013.
The Tribunal by Annexure A4 order dated 31.01.2017, allowed the
application and directed the 1 st petitioner to issue appropriate orders
directing regularisation of respondents 1 and 2 either in the 4 th
respondent Grama Panchayat office or in other Panchayat offices in the
District. The Tribunal specifically found that the 1 st petitioner was
bound by the inter parte judgment Ext.P7 and the benefit granted in
the said judgment cannot be taken away by placing reliance on the
Government order dated 09.02.2010 issued thereafter. 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 Kaleeswaram Raj learned counsel
appearing on behalf of respondents 1 and 2. It is contended on behalf of
the petitioners that Ext.P7 judgment cannot be understood to be
conclusive and that this Court had only directed the Government to
pass appropriate final orders. According to the Senior Government
Pleader, the final order Ext.P9 has been hence issued, placing reliance
on Ext.P8 order dated 09.02.2010, which clarified that the order dated
25.11.2005 does not apply to persons engaged to sweep the market
area, bus stands, public gardens etc. We are not in any manner
impressed by the contentions advanced by the petitioners. Firstly, it is
not correct to say that Ext.P7 judgment is not conclusive. In paragraph
5 of the judgment it is specifically held that the petitioners therein are
entitled for regularisation. This is a declaration made by the Court. It is
further held that the contention of the Government that the order dated
25.11.2005 does not apply to the petitioners therein cannot hold good.
In paragraph 6 of the judgment it is reiterated by stating that "It is
made clear that the petitioners are entitled for the benefit of Ext.P8
Government order dated 25.11.2005". In the light of the above
categoric findings, the petitioners can no longer contend that the
respondents 1 and 2 are not entitled to regularisation.
6. In this context, it is brought to our attention that a 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 Single Judge in
the decisions dated 5.2.2020 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 1 and 2 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 31.1.2017 of the
Tribunal in T.A.No.191 of 2013. 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.2362/2011 ALONG WITH
EXHIBITS
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED
20.10.2000
EXHIBIT P2 TRUE COPY OF THE MUSTER ROLL WITH
RESPECT TO THE 1ST PETITIONER
EXHIBIT P3 TRUE COPY OF THE CERTIFICATE DATED
12.8.2008
EXHIBIT P4 TRUE COPY OF THE MUSTER ROLL WITH
RESPECT TO THE 2ND PETITIONER
EXHIBIT P5 TRUE COPY OF THE G.O.(P)501/2005/FIN
DATED 25.11.2005
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 6.5.2006
ISSUED BY THE 1ST PETITIONER
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED
30.3.2009 IN WPC.24758/2008
EXHIBIT P8 TRUE COPY OF THE G.O.(P)61/2010 DATED
9.2.2010
EXHIBIT P9 TRUE COPY OF THE G.O(RT)
NO.1781/2010/LSGD DATED 28.5.2010
EXHIBIT P10 TRUE COPY OF THE CIRCULAR DATED
21.12.2010
ANNEXURE A2: PHOTOCOPY OF COUNTER AFFIDAVIT FILED ON
BEHALF OF THE 3RD RESPONDENT.
EXHIBIT R3(A): TRUE COPY OF CIRCULAR No.65/2008
DT.28.10.2008.
ANNEXURE A3: PHOTOCOPY OF ACCEPT PETITION
DT.22.8.2012.
EXHIBIT P11 TRUE COPY OF THE LETTER DATED 06-06-2012
ISSUED BY THE SECRETARY, SECRETARIAT AOF
KERALA LEGISLATURE.
EXHIBIT P12 TRUECOPY OF THE RESOLUTION DATED
23.07.2012 ISSUED BY THE PANCHAYAT.
ANNEXURE A4 PHOTO COPY OF THE ORDER DATED 31.01.2017
IN T.A.NO.191/2013.
ANNEXURE A5 TRUE COPY OF THE INTERIM ORDER DATED
29.11.2017 OF THIS HON'BLE COURT IN
OP(KAT) 470/2017.
