K. Sarala v State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 16TH DAY OF JULY 2014/25TH ASHADHA, 1936 WP(C).No. 3661 of 2012 (G) --------------------------- PETITIONER: -------------------------- K.SARALA, V.P.C.HOUSE, TOLL JUNCTION, CHULLIMANOOR, NEDUMANGAD THIRUVANANTHAPURAM-695541 (PART-TIME SWEEPER, ANAD GRAMA PANCHAYAT, ANAD P.O., NEDUMANGAD THIRUVANANTHAPURAM-695544). BY ADVS.SRI.B.RAGUNATHAN SRI.G.GOPALAKRISHNA PILLAI SRI.R.SRINATH SRI.VIPIN VARGHESE RESPONDENTS: ---------------------------- 1. STATE OF KERALA - REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. DIRECTOR OF PANCHAYATS THIRUVANANTHAPURAM-695033. 3. DEPUTY DIRECTOR OF PANCHAYATS THIRUVANANTHAPURAM-695033. 4. ANAD GRAMA PANCHAYAT REPRESENTED BY SECRETARY, ANAD P.O., NEDUMANGAD THIRUVANANTHAPURAM-695544. BY GOVERNMENT PLEADER SMT.A.LOWSY R4 BY ADV. SRI.P.B.SAHASRANAMAN ADV. SRI.T.S.HARIKUMAR ADV. SRI.K.JAGADEESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## W.P.(C) NO.3661/2012 ## APPENDIX ## **PETITIONER'S EXHIBITS** EXHIBIT-P1. TRUE COPY OF JUDGMENT DATED 4.10.2002 IN O.P.NO.8427 OF 2001-C. EXHIBIT-P2. TRUE COPY OF THE REPRESENTATION DATED 10.12.2002. EXHIBIT-P3. TRUE COPY OF GO(RT).NO.2709/2003/LSGD DATED 19.7.2003. EXHIBIT-P4. TRUE COPY OF THE JUDGMENT DATED 9.9.2005 IN W.P.(C) NO.33682 OF 2003-F. EXHIBIT-P5. TRUE COPY OF THE LETTER DATED 22.6.2010 OF THE 3RD RESPONDENT. EXHIBIT-P6. TRUE COPY OF THE APPLICATION DATED 24.6.2010. EXHIBIT-P7. TRUE COPY OF THE LETTER DATED 24.6.2010 OF THE 4TH RESPONDENT ALONG WITH THE RESOLUTION DATED 31.3.2010. EXHIBIT-P8. TRUE COPY OF GO(P)NO.501/2005/FIN.DATED 25.11.2005. EXHIBIT-P9. TRUE COPY OF THE LETTER DATED 31.3.2014 OF THE 2ND RESPONDENT EXHIBIT-P10. TRUE COPY OF THE LETTER DATED 9.5.2014 OF THE 4TH RESPONDENT EXHIBIT-P11. TRUE COPY OF GO(Rt) No.3312/09/LSGD DATED 14.12.2009 ## **RESPONDENTS' EXHIBITS** NIL /TRUE COPY/ VPS PA TO JUDGE ## **P.N.RAVINDRAN** , **J.** ## **--------------------------W.P.(C) No.3661 of 2012 -------------------------Dated this the 16[th] day of July, 2014** ## **J U D G M E N T** The petitioner was appointed as part-time sweeper on daily wage basis in Anad Grama Panchayat on 25.10.1993. When steps were taken to terminate her services and to engage a fresh hand through the employment exchange, she filed O.P.No.8427 of 2001 in this Court. The said writ petition was disposed of after notice to the respondents herein, who were joined as respondents in the said writ petition as well, by Ext.P1 judgment delivered on 4.10.2002 with a direction that in the event of the petitioner filing a representation to the Government through the Panchayat, the Panchayat shall forward the same with its views to the Government along with a copy of Ext.P1 judgment and the Government shall consider it within four months from the date of receipt of the representation. This Court also observed that if the petitioner is displaced by a regular hand sponsored by the employment exchange, the Government will consider her claim for regular employment having regard to her past service. 2. As directed by this Court in Ext.P1 judgment, the petitioner submitted Ext.P2 representation dated 10.12.2002 addressed to the W.P.(C) No.3661/2012 2 Chief Secretary to Government through the Secretary of Anad Grama Panchayat. The Panchayat in turn forwarded the representation to the Government with its recommendations. The Panchayat conveyed to the Government that it has no objection to the continuance of the petitioner in service. The Government after considering Ext.P2 representation, rejected it by Ext.P3 order dated 19.7.2003 on the ground that regular appointments to part-time contingent posts can be made only through the employment exchange. The petitioner was not however retrenched and she continued in service on daily wage basis. Challenging Ext.P3 , the petitioner filed W.P.(C) No.33652 of 2003 in this Court wherein she sought the following reliefs: _“(i) Issue a writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext.P6 and quash the same._ _(ii) Issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to regularise the service of petitioner as Part-time Contingent Sweeper with effect from the date of her appointment (25.10.1993) with all attendant benefits._ _(iii) Issue an order or direction to the respondents to forbear from terminating the service of petitioner in the 4[th] respondent Panchayat.”_ 3. While W.P.(C) No.33652 of 2003 was pending, in **Mercy v.** **State of Kerala** (2004 (2) KLT 848) a learned single Judge of this Court issued certain directions regarding the engagement of part-time sweepers and payment of wages to them. The State of Kerala carried the matter in W.A.No1863 of 2014 and connected cases. While the 3 W.P.(C) No.3661/2012 writ appeal were pending, the Government issued G.O.(P) No.361/2005/Fin. dated 2.82005 laying down the guidelines for regularisation of then existing casual sweepers. W.A.No.1863 of 2004 and connected cases were heard and disposed of by a common judgment delivered on 12.8.2005. By that judgment, this Court directed G.O.(P) No.361/2005/Fin. dated 2.8.2005 to be implemented with certain modifications. The Government thereupon issued G.O.(P) No.501/2005/Fin. dated 25.11.2005 laying down the guidelines for regularisation of existing eligible casual sweepers. Ext.P8 is a copy thereof. In the interregnum, W.P.(C) No.33652 of 2003 filed by the petitioner challenging Ext.P3 was disposed of by Ext.P4 judgment delivered on 9.9.2005 along with the other cases with a direction that those petitioners continuing in service as on date of the judgment shall be allowed to continue in service in terms of the directions issued by this Court in W.A.No.1863 of 2004 and connected cases. The petitioner thus continued in service. 4. After Ext.P8 Government order was issued, the Anad Gram Panchayat that met on 31.3.2010 unanimously resolved to regularise the petitioner in service and authorised the Secretary of the Panchayat to take steps in that regard. Thereupon, the petitioner submitted Ext.P6 application for regularisation in service accompanied by a W.P.(C) No.3661/2012 4 sweeping area certificate. When no action was taken on the application, the instant writ petition was filed on 24.1.2012 seeking the following reliefs: _“(i) Issue a writ of mandamus or other appropriate writ, direction or order to the respondents to regularise the service of the petitioner in the post of part-time Contingent Sweeper w.e.f. 18.6.2001 with all consequential benefits including arrears of salary in the scale of pay._ _(ii) To issue a writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext.P3 and quash the same.”_ 5. The main ground raised in the instant writ petition is that in view of the terms and stipulations in Ext.P8 Government order and the stand taken by the Panchayat, the petitioner is entitled to be regularised in service. The petitioner has filed I.A.No.9228 of 2014 and produced along with it as Ext.P9, a letter dated 31.3.2014 sent by the Director of Panchayats to the Secretary of Anad Grama Panchayat seeking information as to the reason why notwithstanding Ext.P1 judgment of this Court which was delivered on 4.10.2002, there was delay in submitting the proposal for regularisation. The Director of Panchayats has in Ext.P9 also sought a clarification regarding the disparity in the sweeping area mentioned in the application for regularisation and in the sweeping area certificate. Upon receipt of Ext.P9 letter, the Anad Grama Panchayat sent Ext.P10 reply dated 9.5.2014 stating that pursuant to Ext.P1 judgment delivered on 5 W.P.(C) No.3661/2012 4.10.2011, the representation submitted by the petitioner for regularisation in service was rejected by Ext.P3 Government order dated 19.7.2003, that after Ext.P8 Government order dated 25.11.2005 was issued, a proposal was submitted to regularise the service of the petitioner and that there is no delay in submitting the proposal for regularisation. As regards the disparity in the sweeping area, it was stated that the disparity may be due to the mistake committed in filling up the application form. Along with Ext.P10, a fresh application for regularisation and a sweeping area certificate were also enclosed. The petitioner has also produced along with I.A.No.9228 of 2014, a copy of Government order dated 14.12.2009 whereby the Government created a post of part-time sweeper in the District Panchayat, Thiruvananthapuram and directed regularisation of Smt.M.P.Kumari in service as part-time sweeper with effect from 18.6.2001, in accordance with the stipulations in Ext.P8 Government order. 6. I heard Sri.B.Raghunathan, learned counsel appearing for the petitioner, Smt.A.Lowsy, learned Government Pleader appearing for respondents 1 to 3 and Sri.P.B.Sahasranaman, learned counsel appearing for the fourth respondent. It is not in dispute that the petitioner has been continuously working as part-time sweeper in Anad W.P.(C) No.3661/2012 6 Grama Panchayat from 25.10.1993 onwards. The entitlement of the petitioner to be regularised in service in terms of Ext.P8 Government order dated 25.11.2005 is also not in dispute. The sweeping area admittedly exceeds 100 Sq.metres. The sweeping area certificate enclosed with Ext.P6 application discloses that the sweeping area exceeds 475.65 Sq.metres. The Anad Gama Panchayat is therefore entitled to have a post of part-time sweeper created. Ext.P7 resolution adopted by the Grama Panchayat discloses that it has no objection in the service of the petitioner being regularised. In such circumstances, I am of the opinion that the Director of Panchayats should forward the application submitted by the petitioner for regularisation in service and the accompanying papers which have been forwarded by the Secretary of Anad Grama Panchayat along with Ext.P10 letter to the Secretary to Government, Local Self Government Department and the Government should thereupon pass orders regularising her in service. I accordingly dispose of the writ petition with the following directions: (i) The Director of Panchayats shall within two weeks from the date on which the petitioner produces a copy of this judgment, forward the papers received by him along with Ext.P10 application as also the papers which he had earlier received in the matter of creation of a post of part-time sweeper in Anad Grama Panchayat and regularisation of W.P.(C) No.3661/2012 7 the petitioner in that post to the Secretary to Government, Local Self Government Department. (ii) The Secretary to Government, Local Self Government Department shall within one month from the date of receipt of the papers from the Director of Panchayats, issue orders creating the post of part-time sweeper and regularising the petitioner against that post with effect from 18.6.2001 in accordance with the stipulations contained in G.O.(P) No.501/2005/Fin. dated 25.11.2005. The Government shall after orders are passed, communicate it to the Secretary of Anad Grama Panchayat and the petitioner. The monetary benefits consequent on such regularisation shall be disbursed to the petitioner within three months from the date on which orders are passed regularising her in service. **P.N.RAVINDRAN, (JUDGE)** vps