Kerala High Court
The State Of Kerala vs The State Of Kerala on 9 March, 2021
O.P.(KAT)Nos.261/19 & 152/20 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.261 OF 2019
AGAINST THE ORDER IN OA 2389/2017 DATED 04-04-2018 OF KERALA
ADMINISTRATIVE TRIBUNAL, ERNAKULAM
PETITIONERS/RESPONDENTS 1 & 2 IN OA(EKM):
1 THE STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695001,
KERALA.
2 THE DIRECTOR OF PANCHAYATH,
PUBLIC OFFICE BUILDING,
VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM-695033.
BY SR. GOVERNMENT PLEADER SRI B. VINOD
RESPONDENTS/APPLICANT & RESPONDENTS 3&4 IN OA(EKM):
1 SYAMALA
AGED 57 YEARS
CASUAL SWEEPER,
PUNNAPRA NORTH PANCHAYATH,
AMBALAPPUZHA TALUK, ALAPPUZHA,
RESIDING AT CHIRAYIL (KATTADI VALLAPP),
PUNNAPRA P.O., ALAPPUZHA,
KERALA-688004.
2 PUNNAPRA NORTH PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
AMBALAPPUZHA TALUK,
ALAPPUZHA-680006, KERALA.
O.P.(KAT)Nos.261/19 & 152/20 2
3 P.SUSHEELA,
PART TIME SWEEPER, PUNNAPRA NORTH PANCHAYATH,
AMBALAPPUZHA TALUK, ALAPPUZHA, KERALA-680006.
R1 BY ADV. SRI.S.PRASANTH (AYYAPPANKAVU)
R1 BY ADV. SMT.VARSHA BHASKAR
R1 BY ADV. SRI.JYOTHISH D.MONY
R3 BY SRI V.A.MUHAMMED
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 23.02.2021, ALONG WITH OP(KAT).152/2020, THE COURT ON
09.03.2021 DELIVERED THE FOLLOWING:
O.P.(KAT)Nos.261/19 & 152/20 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.152 OF 2020
AGAINST THE ORDER IN OA (EKM) 2389/2017 DATED 04-04-2018 OF
KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
SYAMALA,AGED 57 YEARS
CASUAL SWEEPER, PUNNAPRA NORTH PANCHAYATH,
AMBALAPPUZHA TALUK, ALAPPUZHA-688561,
AMBALAPPUZHA TALUK,ALAPPUZHA-688561
BY ADVS.SRI.S.PRASANTH (AYYAPPANKAVU)
SMT.VARSHA BHASKAR
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 DIRECTOR OF PANCHAYATHS,PUBLIC OFFICE BUILDING,
VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033
3 PUNNAPRA NORTH PANCHAYATH,REPRESENTED BY ITS
SECRETARY, AMBALAPPUZHA TALUK,
ALAPPUZHA-688 561
4 P.SUSHEELA,PART TIME SWEEPER,
PUNNAPRA NORTH PANCHAYATH,AMBALAPPUZHA TALUK,
ALAPPUZHA-688 561
R3 BY ADV. SRI.V.A.MUHAMMED
R3 BY ADV. SRI.V.RAJASEKHARAN NAIR
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 23-02-2021, ALONG WITH OP(KAT).261/2019, THE COURT ON
09-03-2021 DELIVERED THE FOLLOWING:
O.P.(KAT)Nos.261/19 & 152/20 4
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No.261 of 2019 &
O.P.(KAT) No.152 of 2020
[Both arising out of order dated 04.04.2018
in O.A.(Ekm)No.2389 of 2017 of KAT, Ekm]
-----------------------------------------------
Dated this the 9th day of March, 2021
JUDGMENT
T.R. RAVI, J.
The order dated 04.04.2018 of the Kerala Administrative
Tribunal, Ernakulam Bench (hereinafter referred to as Tribunal) in
O.A.(Ekm)No. 2389 of 2017 has been challenged by the State of Kerala
and its officers/authorities in O.P.(KAT) No.261 of 2019 and by the
applicant in O.P.(KAT)No.152 of 2020. 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. 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 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 applicant claims to have been
engaged as casual sweeper on daily wages in the Punnapra North
Grama Panchayat from 2000 onwards when the Grama Panchayat was
formed, that when the applicant was engaged, the sweeping area was
900 M2 and that when the sweeping area exceeded 900M2, the 4th
respondent Smt.Suseela was also appointed as part time sweeper, on
16.08.2001. The applicant contends that she is thus senior to
Smt.Susheela. The applicant was sweeping/cleaning the Panchayat
market and the community Hall. It is contended that both the market
as well as the community hall is regularly swept and cleaned and
having regard to the sweeping area, two part time sweepers are
required for cleaning the said areas. The applicant states that the 4 th
respondent was regularised as Part time sweeper with effect from
01.11.2001 as per Annexure A2 order G.O.(MS)No.221/2011/LSGD
dated 13.9.2011. The applicant claimed regularisation, since the
sweeping area was more than 900 M2, which allows the engagement of
two part time sweepers. Apparently, the said claim is made on the basis
of paragraphs 14 and 15 of G.O(P)No.501/2005/Fin. dated 25.11.2005.
Despite the fact that the Panchayat had taken up the issue of
regularisation of the applicant before the Government on several
occasions, no decision was being taken. It is in the above situation that
the applicant approached the Tribunal by filing O.A.(Ekm) No.2389 of
2017. The 3rd respondent filed reply statement, wherein it is stated that
the only reason for not regularising the applicant, who is working as
casual sweeper with effect from 03.10.2001, is that the sweeping area
was found to be less than 800 M2 and that the said measurement was
excluding the market area. It is also stated that the sweeping area,
excluding the market area had increased to 1129.356 M2 with effect
from 08.12.2012 and as such they have no objection in regularising the
applicant from 08.12.2012 onwards. The 4th respondent filed reply
statement, wherein it is contended that she is not junior to the
applicant since both of them were appointed on the basis of the very
same resolution passed by the Panchayat on 16.08.2001. The Tribunal
by order dated 04.04.2018, disposed of the application directing the 3 rd
respondent to forward necessary proposals to the 2nd respondent for
creation of an additional post of regular part time sweeper in the 3 rd
respondent Grama Panchayat and to regularise the applicant against
the said post. Subsequent to the order of the Tribunal, the Panchayat
on 30.04.2018 forwarded a proposal for regularisation of the applicant.
The above document has been produced along with a miscellaneous
application before the Tribunal which has been marked as Ext.P6 in
O.P.(KAT)No.261 of 2019. The said proposal was rejected by the
Government as per order dated 19.01.2019, which has been marked as
Ext.P7 along with O.P.(KAT)No.261 of 2019. On 27.02.2019, the
Tribunal directed the respondents to file an affidavit as to why Ext.P7
was issued, which is totally against the order dated 04.04.2018 issued
by the Tribunal. It is in these circumstances that the State has filed O.P.
(KAT)No.261 of 2019. The applicant has filed O.P.(KAT)No.152 of
2020, being aggrieved by the order of the Tribunal to the extent it does
not direct regularisation of the applicant as against the post in which
the 4th respondent is regularised.
5. Heard Sri B.Vinod, learned Senior Government Pleader on
behalf of the petitioners in O.P.(KAT)No.261/2019 and respondents 1
and 2 in O.P.(KAT)No.152 of 2020, Sri S.Prasanth, learned counsel for
the petitioner in O.P.(KAT)No.152 of 2020 and the 1 st respondent in
O.P.(KAT)No.261 of 2019 and Sri V.A.Muhammed, learned counsel for
the 3rd respondent in both the original petitions.
6. The learned Senior Government Pleader challenges the
order of the Tribunal mainly on two contentions. It is contended that in
the light of G.O.(P)No.61/2010/Fin. dated 09.02.2010, which clarifies
that the order G.O.(P)No.501/2005/Fin. dated 25.11.2005 does not
apply in the cases of sweepers who are engaged to sweep public
markets, community halls, streets etc., the applicant is not entitled to
seek regularisation, since she is admittedly sweeping such area.
Another contention raised is that admittedly the sweeping area of the
Panchayat increased above 900 M2 after 25.11.2005 and hence the
order cannot be relied on to claim regularisation. According to us,
neither of the above two contentions can any longer be legally
sustained, for the reasons that follow.
7. 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. The above judgment has been relied on by
the Tribunal in the impugned order. 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. We hold that the applicant is hence entitled to be regularised,
even without going into the question of the total sweeping area by
including the market area also. On the question whether existing
sweepers can be regularised in cases where the sweeping area increased
subsequent to 25.11.2005, a Division Bench of this court in the
judgment dated 18.01.2019 in O.P.(KAT)No.26 of 2019 held that the
casual sweeper in such cases is entitled to be regularised with effect
from the date on which the sweeping area exceeds the prescribed limit.
We have in our decision dated 01.02.2021 in O.P.(KAT) No.340 of
2018, agreed with the above proposition and directed regularisation.
Both the contentions raised by the Senior Government Pleader hence
fail. No other grounds have been made out on behalf of the State,
warranting interference with the finding of the Tribunal regarding the
entitlement of the applicant to be regularised.
8. The issue raised in the original petition filed by the
applicant seeking regularisation as against the post held by the 4 th
respondent will no longer be relevant, since we have already held that
the persons sweeping market area, streets, community halls are also
entitled to regularisation. As such there is no issue of a contest as
between the applicant and the 4th respondent. In our opinion, the
applicant who has been in continuous service from 3.10.2001, as
admitted in the reply statement of the Panchayat, is entitled to be
regularised with effect from the said date, as provided in G.O.
(P)No.501/205/Fin dated 25.11.2005.
9. In the light of the above discussions, O.P.(KAT)No.261 of
2019 filed by the State of Kerala and another stands dismissed. The
Government order G.O.(MS)No.105.2019/LSGD dated 19.01.2019,
produced as Ext.P7 in O.P.(KAT)No.261 of 2019 issued in purported
compliance with directions issued by the Tribunal on 04.04.2018, is
quashed. O.P.(KAT) No.152 of 2020 is disposed of directing
respondents 1 and 2 to reconsider the proposal Ext.P6 (produced
alongwith O.P.(KAT)No.261 of 2019), already submitted by the 3 rd
respondent, and take immediate steps to regularise the applicant
(petitioner in O.P.(KAT) 152 of 2020) as part time sweeper with effect
from 03.10.2001 and disburse the arrears of pay due to the applicant
immediately. The respondents 1 to 3 will pass final orders and make
consequential payments within a period of 2 months from the date of
receipt of a certified copy of this judgment.
The order of the Tribunal stands modified to the above extent.
The parties will bear their respective costs.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R. RAVI, JUDGE
dsn
APPENDIX OF OP(KAT) 261/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OA ALONG WITH ANNEXURES.
EXHIBIT P1(A1) TRUE COPY OF G.O.(P) NO.501/2005/FIN DATED
25.11.2005.
EXHIBIT P1(A2) TRUE COPY OF G.O.(MS)NO.221/2011/LSGD DATED
13.09.2011 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P1(A3) TRUE COPY OF DECISION NO.VII(12) OF THE
MEETING OF THE GOVERNING BODY OF THE 3RD
RESPONDENT HELD ON 04.01.2011.
EXHIBIT P1(A4) TRUE COPY OF DECISION NO.IV(3) OF THE
MEETING OF THE GOVERNING BODY OF THE 3RD
RESPONDENT HELD ON 15.03.2013.
EXHIBIT P1(A5) TRUE COPY OF DECISION NO.V(2) OF THE
MEETING OF THE GOVERNING BODY OF THE 3RD
RESPONDENT HELD ON 07.08.2013.
EXHIBIT P1(A6) TRUE COPY OF DECISION NO.11(11) OF THE
MEETING OF THE GOVERNING BODY OF THE 3RD
RESPONDENT HELD ON 15.07.2014.
EXHIBIT P2 A PHOTOCOPY OF THE MISCELLANEOUS
APPLICATION M.A.(EKM)NO.802/2018 ALONG WITH
ANNEXURE.
EXHIBIT P2 (MA1) TRUE COPY OF THE CERTIFICATE DATED
14.12.2017 ISSUED BY THE ASSISTANT
ENGINEER, PWD BUILDING SECTION, ALAPPUZHA
ALONG WITH THE MEASUREMENT DETAILS AND
SKETCH.
EXHIBIT P3 A PHOTOCOPY OF THE REPLY STATEMENT FILED BY
THE 3RD RESPONDENT HEREIN WITH ANNEXURES.
EXHIBIT P3(R3(A)) TRUE COPY OF THE RESOLUTION NOS.V(1) &
V(2)DATED 16.08.2001 SIGNED BY THE
PRESIDENT.
EXHIBIT P3(R3(B)) TRUE COPY OF THE RESOLUTION NOS.I(7)
23.11.2001 SIGNED BY THE PRESIDENT.
EXHIBIT P3(R3(C)) TRUE COPY OF THE CERTIFICATE ISSUED BY THE
ASSISTANT ENGINEER, PWD BUILDINGS SECTION,
ALAPPUZHA DATED 14.12.2017.
EXHIBIT P4 A PHOTOCOPY OF THE REPLY STATEMENT FILED BY
THE 3RD RESPONDENT HEREIN WITH ANNEXURES.
EXHIBIT P4(R4(A)) TRUE COPY OF THE APPLICATION UNDER RIGHT TO
INFORMATION ACT DATED 13.11.2017.
EXHIBIT P4(R4(B)) TRUE COPY OF THE LETTER NO.A5-7107/17 OF
PUNNAPRA NORTH GRAMA PANCHAYATH DATED
27.11.2011.
EXHIBIT P4(R4(C)) TRUE COPY OF THE G.O.(P) NO.61/2010/FIN
DATED 09.02.2010.
EXHIBIT P4(R4(D)) TRUE COPY OF THE RESOLUTION PASSED BY
PUNNAPRA NORTH GRAMA PANCHAYATH DATED
20.05.2010.
EXHIBIT P4(R4(E)) TRUE COPY OF THE MINUTES BOOK OF PUNNAPRA
NORTH GRAMA PANCHAYATH DATED 16.08.2001.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 04.04.2018.
EXHIBIT P6 A TRUE PHOTOCOPY OF THE M.A.
(EKM)NO.2236/2018 WITH ANNEXURES.
EXHIBIT P6(MA2) TRUE COPY OF THE ORDER DATED 04.04.2018 IN
O.A.(EKM) NO.2389/2017.
EXHIBIT P6(MA3) TRUE COPY OF THE PROPOSAL DATED 30.04.2018
FORWARDED BY THE 3RD RESPONDENT TO THE
DEPUTY DIRECTOR OF PANCHAYATHS, ALAPPUZHA.
EXHIBIT P6(MA4) TRUE COPY OF THE APPLICATION DATED
30.04.2018 FORWARDED BY THE 3RD RESPONDENT
ALONG WITH ANNEXURE MA3.
EXHIBIT P6(MA5) TRUE COPY OF THE LETTER DATED 30.04.2018
SENT BY THE 3RD RESPONDENT TO THE 2ND
RESPONDENT.
EXHIBIT P7 A TRUE PHOTOCOPY OF THE G.O.
(RT)NO.105/2009/LSGD DATED 19.01.2019.
EXHIBIT P8 A TRUE PHOTOCOPY OF THE INTERIM ORDER DATED
27.02.2019 IN M.A.(EKM) NO.2236/2018.
APPENDIX OF OP(KAT) 152/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF OA (EKM) 2389/2017 FILED
BEFORE THE HON'BLE KERALA ADMINISTRATIVE
TRIBUNAL ALONG WITH THE ANNEXURES
ANNEXURE A1 TRUE COPY OF G.O(P) NO.501/2005/FIN DATED
25.11.2005
ANNEXURE-A2 TRUE COPY OF G.O(MS) NO.221/2011/LSGD DATED
13.9.2011 ISSUED BY THE 1ST RESPONDENT
ANNEXURE-A3 TRUE COPY OF DECISION NO.VII(12) OF THE
MEETING THE GOVERNING BODY OF THE 3RD
RESPONDENT HELD ON 4.1.2011
ANNEXURE-A4 TRUE COPY OF DECISION NO.IV(3) OF THE
MEETING OF THE GOVERNING BODY OF THE 3RD
RESPONDENT HELD ON 15.03.2013
ANNEXURE-A5 TRUE COPY OF DECISION NO.V(2) OF THE
MEETING OF THE GOVERNING BODY OF THE 3RD
RESPONDENT HELD ON 7.8.2013
ANNEXURE-A6 TRUE COPY OF DECISION NO.11(11) OF THE
MEETING OF THE GOVERNING BODY OF THE 3RD
RESPONDENT HELD ON 15.07.2014
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY
THE 3RD RESPONDENT IN OA(EKM) 2389/2017
BEFORE THE HON'BLE KERALA ADMINISTRATIVE
TRIBUNAL ALONG WITH THE ANNEXURES
ANNEXURE-R3(A) TRUE COPY OF THE RESOLUTION NOS V(1) AND
V(2) DATED 16.08.2001 SIGNED BY THE
PRESIDENT
ANNEXURE-R3(B) TRUE COPY OF THE RESOLUTION NO.I(7) DATED
23.11.2001 SIGNED BY THE PRESIDENT
ANNEXURE-R3(C) TRUE COPY OF THE CERTIFICATE ISSUED BY THE
ASSISTANT ENGINEER ,PWD BUILDINGS SECTION,
ALAPPUZHA DATED 14.12.2017
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY
THE 4TH RESPONDENT IN OA (EKM) 2389/2017
BEFORE THE HON'BLE KERALA ADMINISTRATIVE
TRIBUNAL ALONG WITH THE ANNEXURES
ANNEXURE-R4(A) TRUE COPY OF APPLICATION UNDER RIGHT TO
INFORMATION ACT DATED 13.11.2011
ANNEXURE-R4(B) TRUE COPY OF REPLY LETTER OF PUNNAPRA NORTH
GRAMA PANCHAYATH DATED 27/11/2011
ANNEXURE-R4(C) TRUE COPY OF G.O.(P) NO.61/2010/FIN DATED
09.02.2010
ANNEXURE-R4(D) TRUE COPY OF RESOLUTION PASSED BY PUNNAPRA
NORTH GRAMA PANCHAYTH DATED 20.05.2010
ANNEXURE-R4(E) TRUE COPY OF MINUTES BOOK OF PUNNAPRA NORTH
GRAMA PANCHAYATH DATED 16.08.2001
EXHIBIT P4 TRUE COPY OF MA(EKM) NO.802/2018 FLED BY
THE PETITIONER
ANNEXURE MA1 TRUE COPY OF THE CERTIFICATE DATED
14.12.2017 ISSUED BY THE ASSISTANT
ENGINEER, PWD BUILDINGS SECTION, ALAPPUZHA
ALONG WITH THE MEASUREMENT DETAILS AND
SKETCH
EXHIBIT P5 CERTIFIED COPY OF THE ORDER DATED
04.04.2018 PASSED BY THE HON'BLE TRIBUNAL
IN OA (EKM) 2389/2017
EXHIBIT P6 TRUE COPY OF THE LETTER DATED 1.3.2017 SENT
BY THE 3RD RESPONDENT TAHSILDAR, TALUK
OFFICE, ALAPPUZHA
