Kerala High Court
State Of Kerala vs State Of Kerala on 9 March, 2021
OP(KAT)No.382/2020 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.382 OF 2020
AGAINST THE ORDER IN OA 1559/2018 DATED 16-01-2020 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 AND 2 IN OA:
1 STATE OF KERALA,
REP.BY THE SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,GOVT.SECRETARIAT,
THIRUVANANTHAPURAM,PIN - 695 001.
2 THE DEPUTY DIRECTOR OF PANCHAYATS,
CIVIL STATION KUDAPPANAKUNNU,
THIRUVANANTHAPURAM,PIN-695 043.
BY SR. GOVERNMENT PLEADER SRI B.VINOD
RESPONDENTS/APPLICANT/3RD RESPONDENT IN OA:
1 P.CHANDRIKA,
AGED 57 YEARS,W/O.VIJAYAN,
PARAKUKALIL VEEDU,
MADALKONAM,PACHA P.O.,
NANNIYODE,THIRUVANANTHAPURAM,PIN-695 562.
EMPLOYED AS PART TIME SWEEPER,
NANNIYODE GRAMA PANCHAYAT,
THIRUVANANTHAPURAM,PIN-695 562.
2 THE SECRETARY,
NANNIYODE GRAMA PANCHAYAT,
NANNIYODE,THIRUVANANTHAPURAM,
PIN-695 562.
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.382/2020 2
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No.382 of 2020
[Arising out of order dated 16.01.2020 in
O.A.No. 1559 of 2018 of KAT, Tvm Bench ]
--------------------------------------------------
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 16.1.2020 in O.A.No.
1559 of 2018, 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 1st
respondent was the applicant.
2. The issue relates to entitlement of the 1st respondent to be
regularised in service as a Part Time Sweeper. 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 & 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 M2 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 1st respondent was being engaged
as part time sweeper in Nanniyode Grama Panchayat from 1996
onwards to sweep the Panchayat roads which comes to more than 6000
M2. The above aspect is evidenced by Annexure A1 report dated
13.01.2016 prepared by the Assistant Engineer. Earlier, on 26.11.2015,
the Deputy Director of Panchayat had written to the Secretary of
Nanniyode Grama Panchayat for submitting a proposal for
regularisation of the 1st respondent. The Panchayat had on 02.11.2016
requested the Government for orders regularising the 1st respondent as
part time sweeper. When no action was being taken, the 1 st respondent
approached the Tribunal filing O.A.No.1559 of 2018. The petitioners
filed reply statement contending that the 1 st respondent was not
entitled to regularisation since by Government order dated 09.02.2010
it is clarified that the order dated 25.11.2005 will not apply to persons
engaged to sweep market places, streets etc., and that as per Circular
No.19/2016/Fin. dated 05.03.2016, no proposal for regularisation of
part time sweepers can be entertained. By order dated 16.01.2020, the
Tribunal relying on the decision dated 19.12.2016 of this Court in W.P.
(C)No.16151 of 2010 held that the 1st respondent was entitled to
regularisation and directed the 3rd respondent in the original
application to forward a proposal for creation of a post of Part time
sweeper in the Grama panchayat and for regularisation of the 1 st
respondent in the said post. Aggrieved by the order of the Tribunal, the
petitioners have filed this original petition.
5. Heard Sri B.Vinod, Senior Government Pleader on behalf of
the petitioner. Even though notice was ordered in the original petition,
no steps have been taken by the petitioners to serve notice. In the light
of the judgment we propose to pass, we need not wait for completion of
service on the respondents. The Senior Government Pleader reiterated
the contentions raised by the petitioners before the Tribunal.
6. 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. The above judgment has been relied on by the
Tribunal in the impugned order. A similar view has been taken by
another Single Judge in the decisions dated 05.02.2020 in W.P.
(C)No.3866 of 2011 and dated 11.02.2020 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 regularise the service of the 1st respondent. 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 16.01.2020 of the Tribunal in O.A.No.1559
of 2018. The order of the Tribunal stands modified to that extent.
The original petition is dismissed subject to the above
modification.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R. RAVI, JUDGE
dsn
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1: TRUE COPY OF OA No.1559/2018 ALONG WITH
ANNEXURES.
ANNEXURE A1: TRUE COPY OF REPORT DT.13.1.2016 ISSUED BY
THE ASSISTANT ENGINEER OF SECOND RESPONDENT
PANCHAYAT.
ANNEXURE A2: TRUE COPY OF LETTER DT.26.11.2015 ISSUED BY
THE 2ND PETITIONER TO THE 2ND RESPONDENT.
ANNEXURE A3: TRUE COPY OF LETTER DT.2.11.2016 ISSUED BY
THE 2ND PETITIONER TO THE HON'BLE MINISTER OF
LOCAL SELF GOVERNMENT.
ANNEXURE A4: TRUE COPY OF REPRESENTATION DT.5.8.2017
SUBMITTED BY THE APPLICANT TO THE HON'BLE
CHIEF MINISTER.
ANNEXURE A5: TRUE COPY OF REPRESENTATION DT.18.7.2018
SUBMITTED TO THE 2ND PETITIONER.
ANNEXURE A6 TRUE COPY OF JUDGMENT DT.5.8.2004 IN OP
No.25785/2002 OF THE HON'BLE HIGH COURT OF
KERALA.
ANNEXURE A7: TRUE COPY OF ORDER DT.29.6.2017 IN OA
1535/2016 OF THIS TRIBUNAL.
ANNEXURE A8: TRUE COPY OF DECISION OF THE HIGH COURT OF
KERALA REPORTED IN 2001 (1) KLT SN 53.
EXHIBIT P2: TRUE COPY OF REPLY STATEMENT FILED BY THE 2ND
PETITIONER DT.13.11.2008.
EXHIBIT P3: TRUE COPY OF REJOINDER FILED BY THE FIRST
RESPONDENT TO THE REPLY STATEMENT FILED BY
THE 2ND PETITIONER DT.14.11.2018.
EXHIBIT P4: TRUE COPY OF REPLY STATEMENT FILED BY THE 2ND
RESPONDENT DT.26.8.2019 ALONG WITH EXHIBITS.
ANNEXURE R3(A): TRUE COPY OF ROAD SWEEPING AREA OF THE 1ST
RESPONDENT MEASURED BY THE OVERSEER, LOCAL
SELF GOVT.DEPARTMENT, NANNIYODE GRAMA
PANCHAYAT.
ANNEXURE R3(B): TRUE COPY OF ORDER No.GO(P)No.61/2010/FIN.
DT.9.2.2010.
EXHIBIT P5: TRUE COPY OF REJOINDER FILED BY THE 1ST
RESPONDENT TO REPLY STATEMENT FILED BY THE
2ND RESPONDENT ALONG WITH ANNEXURE.
ANNEXURE A9: TRUE COPY OF EXTRACTS FROM GOP
No.3000/98/FIN. DT.25.11.1998.
EXHIBIT P6: TRUE COPY OF IMPUGNED ORDER PASSED BY THE
TRIBUNAL ON 16.1.2020 IN OA No.1559/2018.
