Kerala High Court
State Of Kerala vs State Of Kerala on 9 March, 2021
O.P.(KAT)Nos.442/18 & 214/19 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.442 OF 2018
AGAINST THE ORDER IN TA 614/2013 DATED 05-12-2017 OF KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 5 IN TA:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF REVENUE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE LAND REVENUE COMMISSIONER,
OFFICE OF THE COMMISSIONER OF LAND REVENUE,
THIRUVANANTHAPURAM-695 001.
3 THE DISTRICT COLLECTOR,
CIVIL STATION,KOLLAM, KERALA-691 001.
4 THE TAHSILDAR,
TALUK OFFICE,
KUNNATHOOR, SASTHAMKOTTA,
KOLLAM, KERALA-690 521.
5 THE ASSISTANT ENGINEER,
PWD BUILDING SECTION,
SASTHAMKOTTA,
KOLLAM,
KERALA-690 521.
BY SR. GOVERNMENT PLEADER SRI B.VINOD
O.P.(KAT)Nos.442/18 & 214/19 2
RESPONDENT/APPLICANT IN TA:
A.BINDU,
CASUAL SWEEPER, TALUK OFFICE,
KUNNATHOOR, SASTHAMKOTTA,
KOLLAM, KERALA.
BY ADV. SRI.M.V.THAMBAN
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 01-02-2021, ALONG WITH OP(KAT).214/2019, THE COURT ON
09-03-2021 DELIVERED THE FOLLOWING:
O.P.(KAT)Nos.442/18 & 214/19 3
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.214 OF 2019
AGAINST THE ORDER IN TA 614/2013 DATED 05-12-2017 OF KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT IN TA:
A.BINDU
AGED 43 YEARS,
CASUAL SWEEPER, TALUK OFFICE,
KUNNATHUR, SASTHAMKOTTA,
KOLLAM, KERALA.
BY ADVS.
SRI.M.V.THAMBAN
SRI.R.REJI
SMT.THARA THAMBAN
SRI.B.BIPIN
SRI.ARUN BOSE
RESPONDENTS/RESPONDENTS 1 TO 5 IN TA:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE LAND REVENUE COMMISSIONER
OFFICE OF THE COMMISSIONER OF LAND REVENUE,
THIRUVANANTHAPURAM, PIN-695001.
3 THE DISTRICT COLLECTOR
CIVIL STATION, KOLLAM ,
KERALA, PIN-691001.
O.P.(KAT)Nos.442/18 & 214/19 4
4 THE TAHSILDAR
TALUK OFFICE, KUNNATHOOR,
SASTHAMKOTTA, KOLLAM, KERALA, PIN-690521.
5. THE ASSISTANT ENGINEER
PWD BUILDING SECTION, SASTHAMKOTTA,
KOLLAM , KERALA, PIN-692521.
BY SR.GOVT.PLEADER SRI B. VINOD
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 01-02-2021, ALONG WITH OP(KAT).442/2018, THE COURT ON
09-03-2021 DELIVERED THE FOLLOWING:
O.P.(KAT)Nos.442/18 & 214/19 5
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No.442 of 2018 &
O.P.(KAT) No.214 of 2019
[Both arising out of order dated 05.12.2017 in
T.A.No. 614 of 2013 of KAT, Tvm]
--------------------------------------------------
Dated this the 9th day of March, 2021
JUDGMENT
T.R. RAVI, J.
The order dated 5.12.2017 of the Kerala Administrative Tribunal,
Thiruvananthapuram (hereinafter referred to as Tribunal) in
T.A.No.614 of 2013 has been challenged by the State of Kerala and its
officers/authorities in O.P.(KAT) No.442 of 2018 and by the applicant
in O.P.(KAT)No.214 of 2019. The parties are referred to as per their
status in the original application.
2. The issue relates to entitlement of the applicant to be
regularised in service as a Part Time Sweeper. By G.O.(P)
No.831/80/Fin. dated 3.11.1980, the Government had sanctioned
benefits to part time contingent employees, whereby the remuneration
payable to them was revised. The revision was based on the sweeping
area or the area to be cleaned by such part time contingent
employees/sweepers. The rates were specified therein for two different
types of cases depending on whether the sweeping area was less than
200 M2 or more than 200 M2. 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. The categorisation
was also different as per the 1998 pay revision. Accordingly, Part Time
Sweepers who were sweeping an area above 100 M 2 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 400 M 2 , but below 800 M2
were to be paid at the rate of Rs.1,500/- per month plus DA. Enhanced
pay was available to persons who were put in service as part time
employees for 10 years, 20 years and 25 years. With respect to casual
sweepers who were sweeping an area of less than 100 M 2, 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 01.11.1998.
3. Faced with denial of pay in accordance with the pay
revisions and threat of losing their engagement on the ground that they
are casual sweepers, several persons approached this Court by way of
writ petitions. 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 06.10.2003
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 100 M 2 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. There was also a direction to make
appointments through Employment Exchange for the sanctioned post.
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 with certain directions. In the cases before
the learned Single Judge, the petitioners were all persons who were
engaged prior to 06.10.2003 on which day, the Government had issued
clarifications regarding the manner of calculation of sweeping area. It
was directed that the sweeping area with regard to persons who were
engaged prior to 06.10.2003, 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.
5. The judgment of the learned Single Judge was carried in
appeal by the State and its Officers. Pending the appeal, the
Government issued GO(P)No.361/2005/Fin. dated 02.08.2005,
whereby a scheme was evolved regarding regularisation of the existing
eligible casual sweepers and regarding the appointments against future
arising vacancies of sweepers in Government offices. A Division Bench
of this Court disposed of the appeals filed by the State by judgment
dated 12.08.2005 in State of Kerala & Ors. v. M.M.Mercy & Ors.
(W.A.No.1863 of 2004 and connected cases). After referring to
the scheme 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 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 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. 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. In paragraph 13 of the order it is provided that in case of
new offices and against vacancies arising in future, part time
contingent sweepers are to be employed only after getting names from
the Employment Exchange. Paragraph 15 of the order says that in
cases where the sweeping area is 800 M2 but below 900 M2, a part time
contingent sweeper and a part time sweeper can be engaged and that if
the area is more than 900 M2, two part time contingent sweepers can
be engaged.
6. 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 before the issuance of the Government
order dated 25.11.2005. It further provided that the Government are at
liberty to conduct re-assessment of the sweeping area in any office,
wherever necessary by the Chief Technical Examiner who is the
competent Technical Authority of the Finance Department, however,
with notice to the incumbent and others concerned. There is also a
direction that wherever sweepers are engaged against existing
sanctioned posts, they shall also be entitled to regularisation, provided
the date of appointment was on or before 25.11.2005. Regarding clause
11 of the Government order dated 25.11.2005, it has been clarified in
the order dated 09.02.2010 that the benefit of clause 11 referred above
will be available to all sweepers including sweepers engaged in offices
were sweeping area is less than 100 M 2, but are in receipt of higher pay
as applicable to regular part time sweepers by virtue of court orders or
otherwise.
7. On 05.03.2016, the Additional Chief Secretary of Finance
Department issued a Circular to the effect that no proposals for
regularisation of Part Time Sweepers will be considered after the date
of the Circular. This was followed by the Government order G.O.
(P)No.58/2018/Fin. dated 10.04.2018, whereby it was ordered that
wherever Part Time Sweepers are being regularised, it will have effect
only from the date of the order, that is, 10.4.2018.
8. The applicant was initially engaged as a casual sweeper at
the Revenue Inspector's office at Kunnathur on a consolidated monthly
remuneration of Rs.100/- with effect from 1997, which was increased to
Rs.600/- per month on the implementation of the 1997 pay revision
order. During 1998, the office of the Revenue Inspector was abolished
and the applicant was engaged at the Taluk Office, Kunnathur at
Sasthamkotta, as the 2nd Part time sweeper. Though the sweeping area
of the office was more than 800 M 2, the applicant was being paid only
the fixed remuneration of Rs.600/- per month. The applicant had
approached this Court by filing O.P.No.5539 of 2003, which was
disposed of by Ext.P1 judgment dated 05.03.2003, declaring that the
applicant was entitled to get salary in the scale of pay applicable to
regular part time sweepers and consequential directions were also
issued. The applicant was thereafter paid the arrears during 2003 and
was being paid at the rate of Rs.1,250/- plus DA per month. After the
implementation of the 2004 pay revision with effect from 01.07.2004,
the applicant was paid salary at the revised rate of Rs.2500/- plus DA
per month. However, when pay revision was implemented in 2009,
she was continued to be paid the salary at the earlier rates and the
revised pay was not disbursed. While so, the Government order, G.O.
(P) No.501/2005/Fin dated 25.11.2005 had been issued, as per which
the applicant was entitled to be regularised in service as part time
sweeper, along with one Gracy Kutty, who was also working as part
time sweeper in the same office, particularly since the sweeping area
was more than 800 M2. Even though there was a re-measurement of
the sweeping area in the light of the directions issued in the judgment
in Mercy (supra) [2004 (2) KLT 848], according to the applicant the
remeasurement was not done in accordance with the guidelines issued
for the purpose, in the sense that the record room was omitted to be
measured and the courtyard was not measured as 1/3 rd of the total
carpet area. Meanwhile, the Government issued G.O.(P)No.61/2010/
Fin. Dated 09.02.2010, whereby the existing sweepers were entitled to
regularisation as well as pay protection. The applicant had not been
afforded the pay protection as well. The applicant thereupon
approached this Court by filing W.P.(C) No.25832 of 2011 seeking the
benefit of regularisation as well as pay protection, for which she was
entitled.
9. The respondents filed counter affidavit contending that
since the sweeping area of the office was between 800 M 2 and 900 M2,
two part time sweepers cannot be accommodated. It is stated that
proposal had been sent to treat the case of the applicant as a special
case. The writ petition was thereafter transferred to the Tribunal and
renumbered as T.A.No.614 of 2013. The Tribunal by order dated
05.12.2017 disposed of the application directing the respondents to
sanction the scale of pay applicable to the part time sweepers to the
applicant and disburse the amounts that will be consequentially due to
the applicant. There is a further direction to sanction a post of regular
part time sweeper and to regularise one among the two casual sweepers
who are working, as per the stipulations contained in paragraph 15 of
GO(P)No.501/2005/Fin. Dated 25.11.2005, with due regard to the
relative seniority as between the applicant and Smt.Gracy Kutty. The 1 st
respondent was directed to decide on who is the better claimant.
Aggrieved by the directions issued by the Tribunal, the State has filed
O.P.(KAT)N0. 442 of 2018. Aggrieved by the order of the Tribunal to
the extent that it does not direct the regularisation of the applicant, the
applicant has filed O.P.(KAT)No. 214 of 2019.
10. Heard Sri B.Vinod, learned Senior Government Pleader on
behalf of the petitioners in O.P.(KAT)No.442/2018 and the
respondents in O.P.(KAT)No. 214 of 2019 and Sri M.V.Thamban,
learned counsel for the petitioner in O.P.(KAT)No. 214 of 2019 and the
respondent in O.P.(KAT)No.442/2018.
11. The Senior Government Pleader reiterated the contentions
that were advanced before the Tribunal. Sri M.V.Thamban, learned
counsel appearing for the applicant before the Tribunal contends that
the direction regarding regularisation issued by the Tribunal is not fully
correct. The counsel refers to paragraph 15 of Ext.P2 Government
order, which has been relied upon by the Tribunal in its order and
argues that the said clause does not apply to the case of existing
sweepers and that the same will apply only in the cases of new offices.
It will be useful to extract paragraphs 14 and 15 of Ext.P2 Government
order, GO(P)No.501/2005/Fin. dated 25.11.2005.
"14. Creation of the post of Part-time contingent sweeper in
newly formed offices shall be done strictly on the basis of the new
guidelines in the Appendix. As it will not be possible to assess in
advance the sweeping area in respect of newly formed offices, such
posts shall be created only after assessing the sweeping area.
Sweeping area shall be determined in accordance with the new
guidelines. If the sweeping area is below 100 sq.mtr. a casual
sweeper (on a monthly pay of Rs.600) can be engaged by the Head
of Office without creating a post. Even if the Government order
sanctioning posts in the new office permits engaging a part-time
contingent sweeper, only a casual sweeper will be engaged if the
sweeping area is less than 100 sq.mtrs. If the sweeping area is 100
sq.mtrs., or above but below 800 sq.mtrs., the matter will be taken
up immediately with the Government (in the proforma given in the
Annexure along with the certificate issued by the PWD Engineer) for
the creation of the post of part-time contingent sweeper. After the
post is created, a part-time contingent sweeper will be engaged, but
only through Employment Exchange. This should be done within
two months. He/she should be paid wages as per the sweeping area
(Rs.1250 plus DA for sweeping area of 100-400 sq.mtrs. and
Rs.1500 plus DA for a sweeping area of 400-800 sq.mtrs.
15. If the sweeping area is above 800 sq.mtrs. but below 900
sq.mtrs. a part-time contingent sweeper and a casual sweeper will
be engaged. If it is above 900 sq.mtrs., 2 part-time contingent
sweepers can be engaged. The same logic will apply if the area
exceeds 1600 sq.mtrs., etc. For this also the matter is to be taken up
with the Government in the proforma given in Appendix with the
certificate from the concerned Engineer of the Public Works
Department. The concerned Department will issue orders to create
the posts in consultation with the Finance Department. Till the
candidate sponsored by the Employment Exchange reports for duty,
the agreement with the Kudumbasree may continue. On no account
shall casual sweepers be engaged in such cases."
12. We find considerable force in the argument advanced by Sri
M.V.Thampan. A reading of the above extracted portion of the order
clearly shows that the said stipulations are relating to the creation of
post of part time contingent sweepers in newly formed offices and do
not apply to the case of existing offices, where casual sweepers are
already working for the past several years. The reliance placed by the
Tribunal on paragraph 15 to limit the right of regularisation to only one
of the casual sweepers who is working is not justified in the
circumstances. The Tribunal ought to have gone by the stipulations
contained in paragraph 8 of Ext.P2 Government order and directed
regularisation of the applicant. In the light of our findings regarding
the applicability of paragraph 15 of Ext.P2 government order dated
25.11.2005, we do not think it necessary to go into the question
regarding the correctness of the measurement of the sweeping area
raised by Sri M.V.Thampan, counsel for the applicant.
13. In the result, O.P.(KAT)No. 442 of 2018 stands dismissed.
O.P.(KAT) No. 214 of 2019 is allowed and the direction contained in the
order of the Tribunal regarding regularisation is modified as below.
14. The respondents are directed to regularise the applicant as
a part time sweeper in the Taluk Office, Kunnathur with effect from
18.06.2001 by creating the required posts, as stipulated in paragraph 8
of Ext.P2 Government order G.O.(P)No.501/ 2005/Fin dated
25.11.2005. The directions issued by the Tribunal regarding the right of
the applicant to receive the revised pay is not interfered with and will
remain. The above directions and the directions issued by the Tribunal
regarding the payment of arrears of pay consequent to revision, if not
already complied with, will be complied with, within a period of 2
months from the date of receipt of the certified copy of this judgment.
The order of the Tribunal stands modified to the above extent. In
the circumstances of the case, there will be no order as to costs.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R. RAVI, JUDGE
dsn
APPENDIX IN OPKAT 442/2018
PETITIONER'S EXHIBITS:
ANNEXURE A1: TRUE COPY OF WPC No.25832/2011 WITH
EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED
05.03.2003 IN O.P.NO.5539/2003(H).
EXHIBIT P2 TRUE COPY OF THE G.O.(P)NO.501/2005/FIN
DATED 25.11.2005.
EXHIBIT P3 TRUE COPY OF THE SWEEPING AREA
CERTIFICATE DATED 19.01.2011.
EXHIBIT P3A TRUE COPY OF THE LETTER NO.318/2006
DATED 31.01.2011 OF THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE G.O.(P)NO.61/2010/FIN
DATED 09.02.2010.
EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED
05.01.2010 IN WP(C)NO.107/2010(K).
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 23.12.2010
IN WPC NO.38378/2010(V).
EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER DATED
23.12.2009 IN WPC NO.37537/2009(J).
ANNEXURE A2: TRUE COPY OF COUNTER AFFIDAVIT FILED ON
BEHALF OF THE 4TH AND 5TH RESPONDENTS.
EXHIBIT R4(A): TRUE COPY OF GOVERNMENT LETTER
No.39832/AF3/05/AD DT.20.7.2007.
ANNEXURE A3: TRUE COPY OF ORDER DT.5.12.2017 IN
T.A.614/2013.
APPENDIX IN OPKAT 214/2019
PETITIONER'S EXHIBITS:
ANNEXURE I: TRUE COPY OF MEMORANDUM OF TA No.614/2013
(ARISING FROM WPC.25832/2011)
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED
05.03.2003 IN O.P.NO.5539/2003(H).
EXHIBIT P2 TRUE COPY OF THE G.O.(P)NO.501/2005/FIN
DATED 25.11.2005.
EXHIBIT P3 TRUE COPY OF THE SWEEPING AREA
CERTIFICATE DATED 19.01.2011.
EXHIBIT P3(A) TRUE COPY OF THE LETTER NO.318/2006
DATED 31.01.2011 OF THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE G.O.(P)NO.61/2010/FIN
DATED 09.02.2010.
EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED
05.01.2010 IN WP(C)NO.107/2010(K).
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 23.12.2010
IN WPC NO.38378/2010(V).
EXHIBIT P7 TRUE COPY OF THE INTERIM ORDER DATED
23.12.2009 IN WPC NO.37537/2009(J).
ANNEXURE A2: TRUE COPY OF COUNTER AFFIDAVIT FILED ON
BEHALF OF THE RESPONDENTS 4 & 5.
ANNEXURE A3: TRUE COPY OF ORDER DT.5.12.2017 IN
T.A.614/2013.
ANNEXURE A4: TRUE COPY OF ORDER OF KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM IN T.A.NO.4647/2012
(WPC.No.20496/2009 OF THE HON'BLE HIGH
COURT OF KERALA).
