Khadeeja v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933** **WP(C).No. 28794 of 2011(Y)** **----------------------------------** ## **PETITIONER(S):** - **-------------------** **KHADEEJA, W/O BEERANKUTTY, PART TIME SWEEPER, TOURIST BANGLOW, AREACODE, MALAPPURAM DISTRICT.** **BY ADVS. SRI.BABU S. NAIR SMT.SMITHA BABU** ## **RESPONDENT(S):** **--------------------** **1. THE STATE OF KERALA, REPRESENTED THE SECRETARY TO GOVERNMENT PUBLIC WORKS (B) DEPARTMENT, TRIVANDRUM, PIN-695 001.** **2. CHIEF ENGINEER, PUBLIC WORKS DEPARTMENT, BUILDING SECTION, MALAPPURAM, PIN-676 001.** **3. THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, BUILDING SECTION, MALAPPURAM, PIN- 676 505.** **4. THE ASSITANT ENGINEER, PUBLIC WORKS DEPARTMENT (BUILDING SECTION), MANJERI, MALAPPURAM DISTRICT. PIN-676 121.** **BY GOVT. PLEADER SRI.M.ABDUL KHADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **svs** ## **W.P.(C). NO. 28794/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE ORDER ISSUED BY THE GOVERNMENT OF KERALA AS GO (P) NO. 501/2005/FIN. DT. 25-11-2005.** - **P2: COPY OF THE JUDGMENT IN O.P NO. 29110/2004 OF THIS HON'BLE COURT DATED,5-102004.** - **P3: COPY OF THE ORDER ISSUED BY THE GOVERNMNET OF KERALA AS NO. 22436/B1/07/PWD DATED, 13-2-2008.** - **P4: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE MINISTER FOR PUBLIC WORKS DEPARTMENT DTD.12-31996** - **P5: COPY OF THE ORDER ISSUED BY THE GOVERNMNET OF KERALA AS NO.G.O (P) 61/2010/ DATED, 09-02-2010.** - **P6: COPY OF THE LETTER ISSUED FROM THE OFFICE OF THE SUPERINTENDING ENGINEER P.W.D, KOZHIKKODE DATED. 9.02.2011.** ## **RESPONDENT'S EXHIBITS:** **R3(a):COPY OF THE IMPEREST REGISTER.** **R3(b):COPY OF THE DETAILS OF THE MONTHS AND DATES WORKED BY THE PETITIONER.** **R3(c):COPY OF THE LETTER DATED 06/06/2006.** **/TRUE COPY/** **P.A. TO JUDGE.** **svs** ## **K.SURENDRA MOHAN, J** = = = = = = = = = = = = = WP(C).No.28794 of 2011-Y. = = = = = = = = = = = = = Dated this the 24[th] November, 2011. ## **J U D G M E N T** The petitioner has filed this writ petition complaining that though she has been working in a Tourist Bungalow under the Public Works Department (PWD) at Areacode in Malappuram District from January, 1991 onwards, she has not been regularised. According to the petitioner, the sweeping area of the tourist bungalow exceeds 100 sq.metres, being 199 sq.metres. Therefore, she claims that she is entitled to regularisation. The petitioner had approached this Court earlier with another writ petition WP (C)No.29110/2004 seeking payment of her pay and allowances. She had also claimed regularisation of her appointment. The said writ petition was disposed of directing the authorities to take necessary action in the light of the judgment of this Court reported in **Mercy v. State of** **WP(C).No.28794/2011-Y.** 2 **Kerala** (2004(2) KLT 848). As per Ext.P2 judgment it has also been directed that she be given all service benefits in accordance with the directions in the said judgment. However, no steps were taken to pay the service benefits that are due to the petitioner. As per Ext.P3 proceedings, her claim for regularisation has been rejected. The petitioner has filed this writ petition challenging Ext.P3. 2. According to the counsel for the petitioner, the petitioner's claim has been rejected finding that the petitioner was engaged alternatively with another person and therefore, in such cases each of the persons so engaged is entitled only to the wages and nothing more. It has also been stated in Ext.P3 that the petitioner is not a part time sweeper but only a casual sweeper on a daily wages. It is contended by the counsel for the petitioner that even assuming that the petitioner is only a casual sweeper she is entitled to claim regularisation in view of clause (i) in paragraph 2 of Ext.P5 Government Order. It is further pointed out that the petitioner was attending to the sweeping work along with her **WP(C).No.28794/2011-Y.** 3 daughter, whose name has been entered in the records as the sweeping worker who is being engaged alternatively. Since the petitioner was doing the work along with her daughter it is contended that the said arrangement could not be taken as a ground to deny to her the relief of regularisation. The counsel for the petitioner therefore prays that the writ petition may be allowed. 3. A counter-affidavit has been filed by the third respondent. In paragraph 2 of the counter-affidavit, it is stated that the petitioner was not working as a part time sweeper, but only as a casual sweeper on daily wages. It is further clear from the counter-affidavit that there is a sanctioned post of part time sweeper in the Tourist Bungalow at Areacode, though the post is vacant since January, 1991. The counter-affidavit also shows that the petitioner has been working continuously from the year 2006 onwards. The counsel for the petitioner places reliance on Ext.R3(c) consent letter submitted by her daughter Shahina who was attending to the sweeping work alternatively, along with her 4 ## **WP(C).No.28794/2011-Y.** mother. As per Ext.R3(c) her daughter Shahina has undertaken that she would not claim any right on the ground that she has been alternatively attending to the sweeping work along with her mother. 4. I have considered the rival contentions anxiously. 5. Exts.R3(a) and R3(b) documents produced along with the counter-affidavit shows that the petitioner had been working as a casual sweeper since the year 1991. During the initial period, she had been working for broken periods. However, from 2006 onwards it is seen that she has been working continuously. During the year 2008, she had worked on all days. It has been admitted in the counter-affidavit that there is a sanctioned post of part time sweeper and that the same is remaining vacant since January, 1991. The petitioner's daughter has undertaken as per Ext.R3(c) that she was only helping her mother to attend to the sweeping work. Therefore, it cannot be said that the petitioner was sweeping the Tourist Bungalow alternatively with the said Shahina, as found in Ext.P3. Since the petitioner has been **WP(C).No.28794/2011-Y.** 5 working continuously as a part-time sweeper, it cannot be said that her service was only for broken periods. 6. Ext.P5 order contains the guidelines that are to govern the regularisation of part time sweepers. It is to be noted that Ext.P5 is not confined in its application to the part time sweepers alone, but is applicable to all general sweepers. Clause (i) in paragraph 2 of the said Govt.Order reads as follows: “(i) Persons engaged for sweeping on daily wages are also entitled for regularisation, since the Government Order read above do not specify that such categories are not entitled to this benefit.” 7. As per the above clause even persons engaged on daily wages for sweeping work are also entitled for regularisation. Since it has been admitted that the petitioner has been working continuously from 2006 onwards and it is submitted in Ext.R3(c) that her daughter has relinquished any claim on the basis of the sweeping work done by her to assist her mother, I find no grounds to dis-entitle the petitioner from being regularised. It is also to be noted that 6 ## **WP(C).No.28794/2011-Y.** there is a regular post of part time sweeper in the Tourist Bungalow which has been remaining vacant since January, 1991. 8. In view of the above, Ext.P3 is set aside. The first respondent is directed to reconsider the claim of the petitioner in the light of the observations made above and to pass appropriate orders regarding regularisation of service of the petitioner. Orders as indicated above shall be passed as expeditiously as possible and at any rate within a period of six weeks from the date of receipt of a copy of this judgment. The petitioner shall inter alia be entitled to pay @ ` 1,250/plus DA as ordered in the case of other similarly situated sweepers with the entitlement for the benefits of the subsequent pay revisions also. The writ petition is allowed as above. ## **K.SURENDRA MOHAN, (Judge)** **Kvs/-**