A. Salim v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).No. 8463 of 2010(G) ------------------------- PETITIONER(S): --------------- A.SALIM, S/O.ALI AKBAR, PART-TIME SWEEPER ON DAILY WAGES, THAZHAVA GRAMA PANCHAYAT, THAZHAVA P.O., KOLLAM DISTRICT. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.V.K.SATHYANATHAN SRI.B.BIPIN RESPONDENT(S): - --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYAT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF PANCHAYAT, KOLLAM. 4. THEZHAVA GRAMA PANCHAYAT, REPRESENTED BY THE SECRETARY, GRAMA PANCHAYT OFFICE, THAZHAVA, KOLLAM DISTRICT. 5. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 6. THE MEDIAL OFFICER, PRIMARY HEALTH CENTRE, THAZHAVA, KOLLAM DISTRICT. 7. THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADDL.R8 8. V.GIRIJA, W/O JAYANTHAN, KUNNATHU VEEDU, THOTTAMUGHAM P.O., SOUTH MYNAGAPPALLY, KARUNAGAPPALLY, KOLLAM (Impleaded as per I.A. 5455/2010) ADV. SRI.N.UNNIKRISHNAN FOR R4 SRI.B.MOHANLAL FOR ADDL.R8 GP SRI. P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J ------------------W.P.(C).8463/2010 -------------------Dated this the 17[th] day of May, 2010 ## JUDGMENT Petitioner claims to be a physically handicapped person having 47% disability. He seeks regularization as a Part Time Sweeper on the basis of Ext.P6 Government Order and on the basis of Ext.P8 judgment. Consequent direction for payment of monetary benefits is also sought. 2. According to the petitioner, he was engaged as a Part Time Sweeper on daily wages by the 4[th] respondent from 1.5.1989 and he continued as such till he was replaced by a regular Part Time Sweeper with effect from 11.12.2002. It is stated that thereafter he was engaged in the Primary Health Centre attached to the Panchayat from 2003, again on daily wages and continued as such till 25.10.2008 with occasional breaks. Subsequently during December 2009, the regular Part Time Sweeper who replaced the petitioner in 2002 expired and according to the petitioner, he was engaged by the Panchayat as Part Time W.P.(C).8463/10 2 Sweeper on daily wages with effect from 1.1.2010. It is stated that while continuing as such, Panchayat proposed to conduct interview of candidates sponsored by the Employment Exchange to make appointment replacing him. Petitioner apprehended that he will be terminated and therefore, the writ petition was filed. 3. At the stage of admission, this Court by order dated 15.3.2010 directed the Panchayat to maintain status quo and the petitioner alleges that ignoring the said order, the Panchayat proceeded with the selection process and finalized the select list. It is alleged that from 16.3.2010, he is not permitted to continue in work. The main argument of the learned counsel for the petitioner is that in view of the provisions of Ext.P6 Government Order, the petitioner is entitled to regularization as Part Time Sweeper. 4. 4[th] respondent has filed a counter affidavit and an additional counter affidavit. According to the 4[th] respondent, W.P.(C).8463/10 3 contrary to the assertions made, it has not engaged the petitioner as Part Time Sweeper with effect from 1.1.2010. Various documents have been produced to substantiate the contention that the petitioner is running a tea shop and was supplying food items to the Panchayat. It is stated that the allegation that the petitioner has been engaged as Part Time Sweeper from 1.1.2010 and that he was not permitted to work after 16.3.2010 are incorrect. It is also stated that a Part Time Sweeper can be engaged only in terms of the provisions in Ext.P6 Government Order, from among those sponsored by the Employment Exchange and that they have initiated selection process by making requisitions to the Employment Exchange, interviewed candidates and finalized the select list. In fact the additional 8[th] respondent who got himself impleaded, contends that he is the selected candidate and that but for the pendency of the writ petition, he would have been appointed as a Part Time Sweeper in the Panchayat. 5. Petitioner has filed a reply affidavit contending that he was W.P.(C).8463/10 4 engaged by the Panchayat as claimed by him. Reliance is placed on Exts.P11 to P16 certificates issued by some of the members of the Panchayat that they have seen the petitioner working in the Panchayat. It should be noticed that according to the learned counsel for the Panchayat, these certificates are issued by the members of the opposition camp and do not show the factual situation. 6. It is contended by the learned counsel for the petitioner that the petitioner is entitled to the benefit of the directions contained in paragraph 14 and 15 of the judgment in Mercy v. State of Kerala (2004 (2) KLT 848). It is also stated that this judgment was confirmed by the Division Bench. The other contention raised is that the petitioner is entitled to a direction that action be taken on the basis of Ext.P5 order passed by the Deputy Director of Panchayats. It is also stated that he having been engaged from 1.1.2010, is entitled to the benefit of the Government Order. W.P.(C).8463/10 5 7. The prayers in the writ petition show that the petitioner claimed regularization either in the Panchayat or in the Primary Health Centre, coming under the Department of Health and Family Welfare. Insofar as the claim made against the Health and Family Welfare Department is concerned, learned Government Pleader, on instructions, submits that the petitioner has not raised any claim for regularization as against that Department. In view of the above, I see no reason to examine the claim of the petitioner for regularization under that Department itself. 8. Insofar as the claim raised by the petitioner for the benefit of the directions in paragraph 14 and 15 in the case of Mercy is concerned, it is stated as follows in paragraph 14 and 15 of the judgment. “All those Part-time Sweepers engaged prior to 6.10.2003 will come under three categories (1) below 100 Sq.metres, (2) between 100 and 400 Sq.metres and (3) above 400 Sq.metres. As the apex Court has made it clear in several cases, taking note of the fact that the State has enjoyed W.P.(C).8463/10 6 the fruits of their labour for quite long for the only reason that they have not been appointed through the Employment Exchange, they shall not be terminated from service. Hereafter the engagement of Part-time Sweepers shall only be through the Employemnt Exchange and in the event of delay it will be open to the Controlling Officers as directed in the Government order dated 6.10.2003 to have the service on a contract basis for two months. But at the earliest they shall be replaced by regular hands through the Employment Exchange. Since there is also a grievance regarding payment of wages including arrears, there will be a direction to the State and the Controlling Officers to see that the petitioners in these cases and also those Part-time Sweepers who have not approached the Court, but covered by this decision, are paid their arrears as calculated on the basis of the 1997 pay revision order, with effect from 1.3.1997. This shall be done within a period of three months from the date of production of a copy of the judgment. It is also made clear that in the case of individual petitioners covered by decisions for payment of salary even prior to the 1997 pay revision order, W.P.(C).8463/10 7 they shall be governed by the respective judgments. But in any case no Part-time Sweeper shall be denied the benefits of 1997 pay revision order. If in any case Part-time Sweepers have been terminated based on G.O.(P) No.390/03 Fin.dated 17.7.2003 they shall be re-engaged forthwith and they will also be governed by this judgment.” 9. A reading of paragraph 14 shows that this Court has directed that Part Time Sweepers shall not be terminated only for the reason that they have not been appointed through Employment Exchange. This necessarily requires that a Part Time Sweeper should be in service at the time when the judgment was rendered. In this case, it is evident that long prior to the judgment, the petitioner was already replaced by a regular Part Time Sweeper as early as on 1.12.2002. Therefore, this direction does not come to the help of the petitioner. The direction in paragraph 15 is that in any case Part Time Sweepers have been terminated based on the Government Order dated 17.7.2003, they shall be re-engaged forthwith. The petitioner W.P.(C).8463/10 8 was terminated way back in 2002 and therefore, her termination could not have been based on the Government Order dated 17.7.2003 and if that be so, the direction in paragraph 15 also does not help the petitioner. 10. Petitioner relies on Ext.P5. Ext.P5 is an order of the Deputy Director of Panchayat dated 4.7.2006 which suggests appointment of the petitioner in the Panchayat and the person who replaced her be appointed in the Primary Health Centre. However, by Ext.R4(q) order dated 19.12.2007, the Government have taken a view contrary to the view taken in Ext.P5 and held the petitioner ineligible for the benefit of Ext.P6 Government Order. Ext.R4(q) has not been challenged and if that be so, petitioner cannot take advantage of Ext.P5, the proceedings of the subordinate officer. 11. As far as the claim of the petitioner that he has been reengaged with effect from 1.1.2010 and therefore the Panchayat should not have been conducted interview on 17.3.2010 is W.P.(C).8463/10 9 concerned, first of all on the factual issue whether the petitioner has been re-engaged, a serious dispute has been raised by the Panchayat in paragraph 4 and 5 of its counter affidavit. That apart the Panchayat refers to clause 13 of Ext.P6 by which the Government has laid down the manner in which the vacancies are to be filled up by the candidates from Employment Exchange. It is stated that soon after the post became vacant consequent on the death of regular part Time Sweeper, Panchayat issued Ext.R4 (M) requisition to the Employment Exchange and in response thereto, as per Ext.R4(N), candidates were sponsored from the eligible categories. It is stated that the name of the petitioner was not sponsored by the Employment Exchange and that among those sponsored, selection was conducted and list has been prepared. Therefore, if, as a matter of fact, the petitioner was engaged as claimed by him, I do not think that the panchayat would have made requisition to the Employment Exchange and initiated selection process. That apart, such engagement would have been contrary to clause 13 of Ext.P6. Therefore, this contention also has to be rejected. W.P.(C).8463/10 10 12. The learned counsel for the petitioner relied on Exts.P11 to P16 certificates issued by some of the members of the Panchayat. However having regard to the materials on record and in the light of the contention raised by the Panchayat that the certificates do not reflect the factual situation, I am not prepared to rest my conclusions entirely on these certificates. Therefore I am not prepared to accept the case of the petitioner that he was engaged with effect from 1.1.2010. 13. For all these reasons, I do not find any merit in the claim made by the petitioner. The writ petition is only to be dismissed and I do so. ANTONY DOMINIC, Judge mrcs