Kerala High Court
State Of Kerala vs State Of Kerala on 9 March, 2021
OP(KAT)No.102/2019 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.102 OF 2019
AGAINST THE ORDER IN OA(EKM)No.121/2016 DATED 21-12-2017 OF
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS IN OA(EKM):
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF ANIMAL HUSBANDRY, SECRETARIAT,
THIRUVANANTHAPURAM- 695001.
2 THE DIRECTOR,
ANIMAL HUSBANDRY, VIKAS BHAVAN,
THIRUVANANTHAPURAM- 695001.
3 THE DISTRICT ANIMAL HUSBANDRY OFFICER,
KANNUR.
BY SR. GOVERNMENT PLEADER SRI B.VINOD
RESPONDENTS/APPLICANTS IN OA(EKM):
1 ARUN KUMAR K.V.,
AGED 41 YEARS
S/O.ACHUTHAN K (L), PART TIME CASUAL SWEEPER,
I.C.D.P. MELOOR P.O.,
MELOOR, KANNUR- 670661,
RESIDING AT PULARI, MELOOR P.O.,
KANNUR- 670661.
2 P.NARAYANAN,
AGED 67 YEARS
S/O.RAMAN NAMBIAR, PART TIME CASUAL SWEEPER,
OP(KAT)No.102/2019 2
ICDP NANIYOOR NAMBRAM, P.O.MULLAKKODI,
KANNUR, RESIDING AT PARASSINI ROAD,
MULLAKKODI P.O, KANNUR- 670692.
3 ANITHA K.C.,
AGED 45 YEARS
W/O.SUDHAKARAN, PART TIME CASUAL SWEEPER,
ICDP VELLACHAL, MAKRERI P.O, KANNUR,
RESIDING AT PUTHAN VEETTIL, KOTTUR,
KADACHIRA P.O, KANNUR- 670621.
4 KORAMBETH SHYLAJA,
AGED 50 YEARS
W/O.C.K.SURENDRAN, PART TIME CASUAL SWEEPER,
ICDP SUB CENTRE, KAVINMOOLA, ANJARAKKANDY,
MAMBA P.O., KANNUR, RESIDING AT SRUTHI NIVAS,
CHIRAKKATH, MUZHAPPALA P.O.,
KANNUR- 670611.
5 P.P.MEERA,
AGED 49 YEARS
W/O.PRABHAKARAN P.P., PART TIME CASUAL SWEEPER,
ICDP KOODALI, KOODALI P.O.,
KANNUR DISTRICT, RESIDING AT PUTHIYAPURAYIL HOUSE,
KUMBAM P.O., KOODALI,
KANNUR, PIN 670 592.
6 SREELATHA P.V.,
AGED 41 YEARS
W/O.V.V.PRAKASAN, PART TIME CASUAL SWEEPER,
ICDP MANIYOOR, KOODALI P.O,
KANNUR, RESIDING AT PUTHAN VEEDU,
VILLAGE MUKKU, KOODALI P.O.,
KANNUR, KERALA- 670592.
7 K.GANGADHARAN,
AGED 61 YEARS
S/O.(L) KUNHIKANNAN, PART TIME CASUAL SWEEPER,
ICDP PACHAPOYIL, PACHAPOYKA P.O, KANNUR,
RESIDING AT THEJAS, PACHAPOYKA P.O.,
KANNUR- 670643.
8 BABURAJ N.A,AGED 38 YEARS
S/O.(L)DAMODHARAN, PART TIME CASUAL SWEEPER,
ICDP VENGAD, PATHIRIYAD P.O., KANNUR- 670742,
RESIDING AT ERINHIPOYIL HOUSE, PATHIRIYAD P.O,
KANNUR- 670742.
OP(KAT)No.102/2019 3
9 CHANDRAN M.,
AGED 52 YEARS
S/O.(L) RAMA, PART TIME CASUAL SWEEPER,
ICDP CHALA, KOYYOD P.O.,
KANNUR,
RESIDING AT MANNAMBETH HOUSE,
MOWANCHERY P.O.,
KANNUR- 670611.
10 VIJESH A.,
AGED 36 YEARS
S/O.JATHAN C.H.,
PART TIME CASUAL SWEEPER,
ICDP SUB CENTRE, AROLI,
AROLI P.O., KANNUR- 670561,
RESIDING AT ARINGALYIAN HOUSE,
KATTYAM, AROLI P.O.,
KANNUR- 670561.
11 BYJU U.P.,
AGED 33 YEARS
S/O.NARAYANAN P.,
PART TIME CASUAL SWEEPER,
ICDP KUTTIYATTOOR, CHATTUKAPARA P.O.,
KANNUR- 670592, RESIDING AT THAIKKANDY HOUSE,
KATTOLI, KOODALI P.O.,
KANNUR- 670592.
12 GOPALAKRISHNAN M.,
AGED 35 YEARS
S/O.R.K.KUNHIRAMAN NAMBIAR,
PART TIME CASUAL SWEEPER,
ICDP KODOLIPRAM, P.O.PATTANNUR, KANNUR- 670595,
RESIDING AT KARIYIL HOUSE, PULKARI,
KODALIPRAM, PATTANNUR P.O., KANNUR- 670595.
13 BINDU M.,
AGED 41 YEARS
D/O.(L) NANU, P
ART TIME CASUAL SWEEPER,
ICDP SUB CENTRE, MUZHAPPILANGADU,
MUZHAPPILANGADU P.O, KANNUR,
RESIDING AT USHALAYAM,
PALAYAD P.O.,
THALASSERY, KANNUR.
OP(KAT)No.102/2019 4
14 SAINABA M.,
AGED 50 YEARS
W/O.KASIM B., PART TIME CASUAL SWEEPER,
ICDP PANNIYOOR, PANNIYOOR P.O.,
KANNUR, RESIDING AT MUTTHOTHI HOUSE,
PANNIYOOR P.O., PALLIVAYAL, KANNUR- 670142.
R1-14 BY ADV. SRI.VARUN C.VIJAY
R1-14 BY ADV. KUM.A.ARUNA
R1-14 BY ADV. KUM.THULASI K. RAJ
R1-14 BY ADV. SMT.RIYA RAYMOL IYPE
R1-14 BY ADV. SRI.KALEESWARAM RAJ
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.102/2019 5
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No.102 of 2019
[Arising out of order dated 21.12.2017 in
O.A.(EKM) No.121 of 2016 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 21.12.2017 in O.A.
(EKM)No.121 of 2016, on the file of the Kerala Administrative Tribunal,
Ernakulam (hereinafter referred to as the Tribunal). The petitioners
were the respondents before the Tribunal and the respondents were the
applicants.
2. The issue relates to payment of enhanced pay and arrears of
pay to the respondents. 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 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 400M2 , 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 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.
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 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 100 M2 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 6.10.2003 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 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.
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 and others v. M.M.Mercy
and others (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 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 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. 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.
6. The respondents herein are all persons who were engaged
continuously from the years 1999 to 2004 and were working as casual
sweepers in various offices and admittedly the sweeping area was less
than 100 M2. Some of the respondents had approached this Court
earlier through writ petitions which were disposed of by Exts.P1 to P3
judgments, directing the respondents therein to consider their cases for
regularisation and for revised pay. Since their requests for pay as
protected by paragraph 11 of the order G.O.(P)No.501/2005/Fin. dated
25.11.2005 were not favourably considered, they filed the original
application before the Tribunal. A reply statement was filed on behalf
of the petitioners contending that the respondents are casual sweepers
who were engaged in offices where the sweeping area was less than 100
M2 and that as such they are entitled only to the consolidated pay of
Rs.600/- as revised from time to time, as per the Government orders
issued in that regard. It is contended that the pay protection is available
only to part time sweepers and not casual sweepers. The fact that all
except one among the respondents are persons who were being
engaged even before 2003 is admitted. Admittedly, all respondents
were persons in service when G.P.(P)501/2005/Fin. dated 25.11.2005
was issued.
7. The Tribunal by order dated 27.11.2018, allowed the
original application holding that persons who were already getting
enhanced salary, were entitled to continue to get the same even if the
sweeping area is reduced subsequently, going by the terms of G.O.(P)
501/2005/Fin dated 25.11.2005. The Tribunal relied on earlier orders
issued by the Tribunal in T.A.No.5533 of 2012, O.A.(EKM) No.1059 of
2015 and in Thankamma T.P. v. State of Kerala and 2 others reported
in (2015) 4 KATR Part II Page 100 and held that the respondents are
entitled to get Rs.2300/- plus DA w.e.f. 1.3.2004 and Rs. 4250/- plus
DA from 1.7.2009 and for subsequent pay revisions.
8. Aggrieved by the above order, this original petition is filed.
Before this Court also, except for the contentions taken before the
Tribunal, no new contentions are taken. We do not find any illegality,
impropriety or irregularity in the order of the Tribunal. 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 27.11.2018 in T.A.No.7538 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:
EXHIBIT P1 TRUE COPY OF THE O.A(EKM)NO.121/2016 ALONG
WITH ANNEXURE A1 TO A8 BEFORE THE KERALA
ADMINISTRATIVE TRIBUNAL.
ANNEXURE A1: TRUE COPY OF JUDGMENT DT.27.2.2007 IN
WPC.6491/2007.
ANNEXURE A2: TRUE COPY OF JUDGMENT DT.23.2.2007 IN
WPC.6169/2007.
ANNEXURE A3: TRUE COPY OF JUDGMENT DT.18.6.2004 IN
WPC.30927/2004.
ANNEXURE A4: TRUE COPY OF GO(P)No.501/2005 DT.25.11.2005.
ANNEXURE A5: TRUE COPY OF GO DT.9.2.2010.
ANNEXURE A6: TRUE COPY OF CIRCULAR DT.15.7.2011.
ANNEXURE A7: TRUE COPY OF GO(P)No.262/07/59 (FIN)
DT.19.6.07.
ANNEXURE A8: TRUE COPY OF THE GO(P)No.1481/2011
DT.17.8.2011
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED
30.11.2017 FILED BY THE 1ST PETITIONER ALONG
WITH ANNEXURES R1(A) TO R1(B) BEFORE THE
KERALA ADMINISTRATIVE TRIBUNAL.
ANNEXURE R1(A): TRUE COPY OF THE SWEEPING AREA CERTIFICATES.
ANNEXURE R1(B): TRUE COPY OF GO(P)No.501/2005/FIN.
DT.25.11.2005.
ANNEXURE R1(C): TRUE COPY OF LETTER No.9631/AHE2/07/AD
DT.6.6.2017.
ANNEXURE R1(D): TRUE COPY OF GO(P)No.7/2016/FIN.
DT.20.1.2016.
EXHIBIT P3 TRUE COPY OF ORDER DATED 21.12.2017 OF THE
KERALA ADMINISTRATIVE TRIBUNAL.
