Kerala High Court
The State Of Kerala vs The State Of Kerala on 9 March, 2021
OP(KAT)No.332/2020 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.332 OF 2020
AGAINST THE ORDER IN TA 5085/2012 DATED 25-10-2018 OF KERALA
ADMINISTRATIVE TRIBUNAL, ERNAKULAM
PETITIONERS/RESPONDENTS 1 TO 4:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE REVENUE (T),
DEPARTMENT, THIRUVANANTHAPURAM, KERALA
2 THE DISTRICT COLLECTOR
KOTTAYAM, KERALA
3 THE VILLAGE OFFICER
PEROOR VILLAGE OFFICE, KOTTAYAM DISTRICT, KERALA
4 THE VILLAGE OFFICER
VELOOR VILLAGE OFFICE, KOTTAYAM DISTRICT, KERALA.
BY SR. GOVERNMENT PLEADER SRI B. VINOD,
RESPONDENTS/APPLICANTS 1 AND 2:
1 ANNAMMA U.C.,
VARUVAKULAM, PEROOR P.O,
KOTTAYAM, DISTRICT -686637
(PARK -TIME CASUAL SWEEPR AT PEROOR VILLAGE OFFICE,
KOTTAYAM)
2 ITTIAVARA N.T,AGED 51 YEARS
KALARIKKAL, VELOOR P.O,
KOTTAYAM DISTRICT-686003,
(PART-TIME CASUAL SWEEPER AT VELOOR VILLAGE OFFICE,
KOTTAYAM), KERALA.
R1-2 BY ADV. SRI.K.JAJU BABU (SR.)
R1-2 BY ADV. SMT.M.U.VIJAYALAKSHMI
R1-2 BY ADV. SRI.BRIJESH MOHAN
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD
ON 15-02-2021, THE COURT ON 09-03-2021 DELIVERED THE FOLLOWING:
OP(KAT)No.332/2020 2
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No.332 of 2020
[Arising out of order dated 25.10.2018 in
T.A.No. 5085 of 2012 of KAT, Ekm.]
--------------------------------------------------
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 25.10.2018 in
T.A.No.5085 of 2012, on the file of the Kerala Administrative Tribunal,
Ernakulam Bench (hereinafter referred to as the Tribunal). The
petitioners were the respondents before the Tribunal and the
respondents were the applicants.
2. The respondents herein were working as casual sweepers in
the Village Offices at Peroor and Veloor in Kottayam District from 1986
continuously. They along with some others had filed W.P.(C)No.8274
of 2003 before this Court seeking salary in the scale of pay applicable to
part time sweepers. This Court allowed the writ petitions by Ext.P2
judgment directing to disburse the salary at the rates provided in the
Government order dated 25.11.1998. Ext.P2 judgment was challenged
by the Government in W.A.No.95 of 2005, which was disposed of along
with several other appeals by judgment dated 12.8.2005 with certain
modifications. The respondents submit that thereafter the sweeping
area was measured and found to be 152 M2 and 147 M2 in the case of
the respondents 1 and 2 respectively and that they are hence eligible for
the reliefs prayed for. However, after issuance of G.O.
(P)No.501/2005/Fin. dated 25.11.2005, it was found that the sweeping
area was below 100 M2 when measured according to the guidelines
contained therein. However, even if regularisation cannot be granted to
the respondents, they claimed that they were entitled to the protection
of pay contained in clause 11 of the above Government order dated
25.11.2005. In the meanwhile, a learned Single Judge of this Court had
in its judgment dated 17.3.2007 in Sujatha K and Ors. v. District
Collector & Ors. (W.P.(c)No.19186 of 2005) held that the benefit
of G.O.(P)No. 501/2005/Fin. dated 25.11.2005 is available to casual
sweepers as well. The respondents herein thereupon filed W.P.
(C)No.9338 of 2008, for a direction to the petitioners to disburse the
remuneration in parity with the regular part time sweepers, in the light
of the judgment of this Court in W.P.(c)No.19186 of 2005 and in terms
of clause 11 of G.O.(P)No.501/2005/Fin. dated 25.11.2005. By Ext.P4
judgment dated 9.4.2008 the above writ petition was disposed of
directing the respondents therein to consider and pass orders on the
representations submitted by the respondents. However, by Ext.P1
order dated 30.9.2008, the claim of the respondents were rejected by
the petitioners stating that the sweeping area was less than 100 M2 and
that the respondents had not earlier been sanctioned regular pay based
on any court orders. The respondents challenged the above order in
W.P.(C)No.3324 of 2010 before this Court which was transferred to the
Tribunal and renumbered as T.A.No. 5085 of 2012.
3. By G.O.(P) No.831/80/Fin. dated 3.11.1980, the
Government had revised the remuneration payable to part time
contingent workers, based on the area to be cleaned by the part time
contingent employees/sweepers. Subsequently, by a pay revision order
G.O.(P) No.3000/98/Fin. dated 25.11.1998 which came into effect on
01.03.1997, certain modifications were ordered. Accordingly, Part
Time Sweepers who were sweeping an area above 100 M2 but below
400 M2 were to be paid at the revised rate of Rs.1,250/- per month plus
DA and persons who were sweeping an area above 400M 2 , but below
800 M2 were to be paid at the rate of Rs.1,500/- per month plus DA.
With respect to casual sweepers who were sweeping an area of less than
100 M2, the Government issued G.O.(P)No.3002/98/Fin. dated
25.11.1998 ordering that such persons will be paid at the rate of
Rs.600/- per month with effect from 1.11.1998. Several writ petitions
were filed before this Court seeking the benefits of the pay revision as
well as protection against termination of service. In the meanwhile, the
Government issued G.O.(P) No.390/03/Fin. dated 17.07.2003, which
said that Part Time Sweepers should be engaged only for a period of
two months and should be changed every two months. The above
order was however withdrawn as per G.O.(P) No.500/2003/Fin. Dated
25.9.2003. The Government thereafter issued letter No.28555/T1/
03/RD dated 6.10.2003 clarifying that the sweeping area is the area
excluding staircase, veranda, courtyard, etc. The order also said that if
casual sweepers are appointed for two months and sweeping area is
more than 100M2 they can be paid at par with part time sweepers and
in cases where the area is below 100M2 such persons are to be paid at
the rate of Rs.600/- per month as a consolidated pay.
4. A learned Single Judge of this Court in the judgment in
Mercy v. State of Kerala reported in [2004 (2) KLT 848] disposed
of a batch of writ petitions directing that the sweeping area with regard
to persons who were engaged prior to 6.10.2003, it is to be calculated
as the carpet area, veranda, corridor, staircase and the courtyard,
usually swept. It was also held that in any case the area shall not
exceed 1½ times the plinth area. It was further held that since the
State had enjoyed the fruits of the labour of such persons, they shall not
be terminated from service for the only reason that they have not been
appointed through the Employment Exchange. The Court further
directed that all the Part Time Sweepers who have approached the
Court as well as those who have not approached the Court shall be paid
wages including arrears on the basis of the 1997 pay revision order with
effect from 01.03.1997. Appeals filed against the above judgment were
disposed of by a Division Bench of this Court by 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). After
referring to the scheme issued pending the appeals as proposed in G.O.
(P) No.361/2005/Fin. dated 02.08.2005, the Division Bench noted that
in the light of the Scheme framed, the issue remains in a narrow
compass regarding the directions contained in paragraph 15 of the
judgment of the learned Single Judge in the judgment in Mercy v.
State of Kerala [2004 (2) KLT 848], relating to the payment of
arrears. The Division Bench in paragraph 18 held that the sweeping
area is a matter to be found on actual measurement at the instance of
the respective officers under the supervision of the head of the district
of the concerned Department with the aid of an Engineer from the
Public Works Department, taking into account of the requirement of
the offices concerned. It was further held that in cases where sweeping
area is disputed, the same shall be fixed by causing actual measurement
with notice to the incumbents concerned in their presence. On the
basis of the judgment of the Division Bench, the Government modified
the order dated 02.08.2005 and carved out a fresh a order GO(P)
No.501/2005/Fin dated 25.11.2005 to govern the cases of
regularisation of existing eligible casual sweepers and regarding
appointments to future vacancies. Paragraph 11 of the Government
order deals with cases where the sweeping area on re-measurement,
increases from below 400 M2 to above 400 M2, requiring the payment
of higher remuneration. The order provided for a fresh certification of
the sweeping area of the existing premises within one year from the
date of the order. It also said that if the sweeping area on refixation
reduces to below 100 M2, the existing incumbent shall continue to get
Rs.1250/- plus DA which he was getting and that vacancy in the said
post shall be filled up only by a casual sweeper, by paying Rs.600/- per
month.
5. Admittedly, the respondents were continuing in service
from 1986 onwards. It is not disputed that by Ext.P2 judgment, this
Court had already held that the respondents are entitled to pay parity
and directed to disburse the arrears of pay. This was even before G.O.
(P)No.501/2005/Fin dated 25.11.2005. The only reason stated in
Ext.P1 for denying the benefit to the respondents is that the sweeping
area was less than 100 M2 and that the respondents had not been
sanctioned regular pay as per any court orders. In the circumstances,
the Tribunal has allowed the original application, set aside Ext.P1 order
and directed the petitioners to refix the pay of the respondents in
accordance with the directions contained in Ext.P2 judgment and
provide the benefits of the government order dated 25.11.2005.
6. We do not find any reason to interfere with the well
considered order issued by the Tribunal. The failure of the petitioners
to pass consequential orders in terms of Ext.P2 judgment of this Court
cannot be taken as a defence to deny the benefits as stated in Ext.P1.
When there is already a court order declaring the right of the
respondents, the petitioners were bound to grant the respondents the
regular pay applicable to part time sweepers and continue to do so
whenever the pay is revised. No grounds have been made out for
interference with the order of the Tribunal in exercise of the
extraordinary and supervisory jurisdiction of this Court under Articles
226 and 227 of the Constitution of India. The time granted by the
Tribunal for compliance with the directions issued are long over. In the
above circumstances, we deem it fit to grant the petitioners a further
time of 6 weeks from the date of receipt of a certified copy of this
judgment, to comply with the directions issued by the Tribunal in its
order dated 25.10.2018 in T.A.No.5085 of 2012.
With the above modification of the order of the Tribunal, the
original petition is dismissed. The parties will suffer their respective
costs.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R. RAVI, JUDGE
dsn
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE A1 A PHOTOCOPY OF THE TRANSFERRED
APPLICATION T.A NO.5085/2012 ALONG WITH
ANNEXURES.
EXHIBIT P1 THE TRUE COPY OF THE G.O(Rt)
NO.3098/2008/RD DATED 30.09.2008 ISSUED
BY THE 1ST RESPONDENT.
EXHIBIT P2 THE TRUE COPY OF THE JUDGMENT DATED
02.06.2003 IN OP NO. 8274/2003.
EXHIBIT P3 THE TRUE COPY OF THE G.O(P)
NO.501/2005/Fin DATED 25.11.2005 ISSUED
BY THE GOVERNMENT.
EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT DATED
09.04.2008 IN WP(C0 MO.9838/2008.
EXHIBIT P5 THE TRUE COPY OF THE REPRESENTATION
DATED 07/11/2008 PREFERRED BY THE
PETITIONERS.
ANNEXURE A2 THE TRUE COPY OF THE MA NO.2229/2018
ANNEXURE MA1 THE TRUE COPY OF THE SWEEPER AREA
CERTIFICATE OF THE 1ST APPLICANT IN THE
SA ISSUED BY THE 3RD RESPONDENT (AS PER
IN MA. (EKM) NO. 2229/2018).
ANNEXURE-MA2 THE TRUE COPY OF THE SWEEPER AREA
CERTIFICATE OF THE 1ST APPLICANT IN THE
SA ISSUED BY THE 4TH RESPONDENT (AS PER
IN MA, (EKM) N0.2229/2018)
ANNEXURE -MA 3 THE TRUE COPY OF THE INFORMATION DATED
09.08.2018 UNDER THE RTI ACT 2005 (AS
PER IN MA, (EKM) N0.2229/2018)
ANNEXURE A3 A TRUE PHOTOCOPY OF THE SWEEPING AREA
CERTIFICATE ALONG WITH SKETCH OF THE 3RD
PETITIONER'S VILLAGE OFFICES ISSUED BY
THE ASSISTANT ENGINEER, PWD, KOTTAYAM.
ANNEXURE-A4 THE TRUE COPY OF THE SWEEPING AREA
CERTIFICATES ALONG WITH SKETCH OF THE
4TH PETITIONER'S VILLAGE OFFICES ISSUED
BY THE ASSISTANT ENGINEER, PWD,
KOTTAYAM.
ANNEXURE A 5 A PHOTOCOPY OF THE ORDER DATED
25.10.2018 IN T.A NO.5085/2012.
