L. Bindhu Ushus v State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945** **WA NO.913 OF 2016 JUDGMENT IN WPC 10998/2015 OF HIGH COURT OF KERALA DATED 9.12.2015 & THE ORDER DATED 19.2.2016 IN RP No.79/2016 ---------------------** ## **- APPELLANT/PETITIONER :** L.BINDHU USHUS, TC.10/2184, KPNRA - 127, KANJIRAMPPARA P.O., THIRUVANANTHAPURAM - 695 030. (PART TIME SWEEPER, KERALA STATE VETERINARY COUNCIL, PEROORKADA, THIRUVANANTHAPURAM - 695 005). BY ADVS. SRI.B.RAGHUNATHAN SRI.V.M.JACOB SRI.M.M.LALBIND SRI.P.PRASANTH SRI.M.SALIM SRI.R.SRINATH ## **- RESPONDENTS/RESPONDENTS :** 1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, AGRICULTURE (ANIMAL HUSBANDRY) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 DIRECTOR ANIMAL HUSBANDRY DEPARTMENT, VIKAS BHAVAN P.O. THIRUVANANTHAPURAM - 695 033. 3 KERALA STATE VETERINARY COUNCIL REPRESENTED BY REGISTRAR, KERALA STATE VETERINARY COUNCIL, PEROORKADA, THIRUVANANTHAPURAM - 695 005. BY ADVS. SRI.P.MOHANDAS (ERNAKULAM) DR.K.P.SATHEESAN SR. SRI.S.VIBHEESHANAN SRI.B.UNNIKRISHNA KAIMAL, SR.GP THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO.913 OF 2016 ## -: 2 :- ## **JUDGMENT Dated this the 10th day of January, 2024** ## **Anu Sivaraman, J.** This appeal is preferred against the judgment of the learned Single Judge, by which, the request made by the appellant, who was the writ petitioner, for regularisation of service or at least for grant of the regular scale of pay of Part Time Contingent Sweeper had been rejected. 2. It is submitted by the learned counsel appearing for the appellant that the appellant was engaged as Part Time Sweeper with effect from 1.8.2003 at a pay of Rs.20/- per day, which was later enhanced as Rs.4,000/- per month. It is submitted that it was in a duly sanctioned post of Part Time Sweeper that the appellant was appointed as is evident from Ext.P1 Government Order dated 28.8.1997. It is stated that Ext.P1 would clearly show that the post of Part Time Sweeper was created in the 3[rd] respondent Council. However, it is stated therein that the appointments to the posts which are created in the Council shall be filled up on deputation basis from the Animal Husbandry Department on usual terms and conditions of deputation. It is stated by the learned counsel for the appellant that there was no Part Time Sweeper available for appointment WA NO.913 OF 2016 -: 3 :- by deputation which was the reason why the appellant had been engaged from 1.8.2003 onwards. It is submitted that requests had been made for regularisation of the services of the appellant as Part Time Sweeper, which were also duly recommended by respondents 2 and 3. It is contended that by Ext.P6, the request was rejected on the ground that the sweeping area was mentioned at two places as 489.25m[2] and 1141.79m[2] and that the cost of expenses for the post created by Ext.P1 was to be shared on a 50/50 basis by the State and Central Governments and therefore, the regularisation cannot be accepted. 3. The learned counsel for the appellant submits that it is clear from Ext.P7 and the sweeping area certificates produced as Ext.P12 that the sweeping was initially 489.25m[2] and by later constructions and enhancements, it was increased to 1141.79m[2] . This aspect has been duly clarified in Ext.P7 which was also not considered. It is further contended by the learned counsel for the appellant that Ext.P10 order was passed by the Government regularising the services of a driver appointed by the 3[rd] respondent in identical circumstances and that the post of driver was a post to which appointment could have been made through PSC. It is submitted that thereafter also Annexure A1, A2 and A4 WA NO.913 OF 2016 -: 4 :- requests have been made by respondents 2 and 3 where all relevant aspects of the matter have been highlighted and that the said requests were also not considered and the appellant continues in service of the 3[rd] respondent as Part Time Sweeper drawing a meagre pay without any of the benefits being made available to her. 4. The 3[rd] respondent had filed a counter affidavit in the writ petition contending that it is clear from Ext.P5 that appointments should have been made by deputation and that since the expenditure of the 3[rd] respondent is to be shared equally by the State and Central Governments as the 3[rd] respondent is run under the 50% centrally sponsored scheme, the appellant's claim for regularisation cannot be accepted. 5. A reply affidavit was also placed on record in the writ petition. 6. In the writ appeal, a statement has been filed on behalf of the 1[st] respondent stating that the casual driver whose services had been regularised had been removed from service by order dated 26.2.2022, on the directions of this Court, copy of the order has also been produced along with a memo. It is further contended that the GO(P)No.501/2005/Fin dated 25-11-2005 and WA NO.913 OF 2016 -: 5 :- GO(P)No.61/ 2010/Fin dated 09-02-2010 are the Government orders applicable to the appointment of part time sweepers in Government offices and that these orders are not applicable to appointment of part time sweepers in the Kerala State Veterinary Council. It is stated that regularisation of casual sweepers in self governing bodies are done subject to terms and conditions of G.O(P) No.412/2011/Fin dated 30.09.2011 and that going by paragraph 2(g) of the Government Order dated 30.9.2011, the appellant is not eligible for regularisation in the post of part time sweeper in the Kerala State Veterinary Council. It is, therefore, contended that the Government was unable to consider the claim of the appellant for regularisation of service as sought for by her. 7. The learned counsel for the appellant would point out that the order removing the casual driver from service and the cancellation of the order of his regularisation was on the specific ground that he had actually worked in the KSRTC as a driver from 2006-2011 during the period when he was drawing salary from the Veterinary Council as a driver. It is submitted that there is no contention in the Government Order that it was on account of the fact that the casual driver was not appointed by deputation that his services had been terminated. It is, WA NO.913 OF 2016 -: 6 :- therefore, contended that the contention of the appellant that other persons engaged and who were identically placed as the appellant had been regularised in service and that her claim for remuneration has not been considered in spite of the binding orders of the Government in the matter of regularisation and granting benefits to casual sweepers and part time sweepers is only reiterated by the Government Order produced by the respondents. 8. We have considered the contentions advanced on either side. It is not in dispute that the appellant was appointed as a Part Time Sweeper and she has been working as such from 1.8.2003 in the 3[rd] respondent Council. It appears that the appointment was in a duly sanctioned post of Part Time Sweepers which as available as evidenced by Ext.P1 Government Order. It is true that Ext.P1 provided for the filling up of the posts which were created by the Government Order by deputation. However, the specific contention of the appellant that there was nobody available for appointment on deputation and that the appellant had been appointed on 1.8.2003 and had continued without break since then is not controverted by any pleadings on record. It is contended that the conditions with regard to regularisation and WA NO.913 OF 2016 -: 7 :- payment of proper wages to Part Time Contingent Sweepers and Casual Sweepers had been made applicable to all State Public Sector Undertakings, Boards and autonomous institutions by the Government Order dated 30.9.2011. Where the sweeping area is 100 sq.m or more, but less than 800 sq.m, the post of Part Time Contingent Sweeper was to be created with prior approval of the Government. If the sweeping area is 800 sq.m. or above but below 900 sq.m., the post of a Part Time Contingent Sweeper was to be created and a Casual Sweeper was permitted to be engaged in addition. If the sweeping area is 900 sq.m. Or above, but below 1600 sq.m, two posts of Part Time Contingent Sweepers was to be created. The Government Order also provided that the remuneration of Part Time Contingent Sweepers and Casual Sweepers was to be in conformity with the pay/wage structure of the PSU/Organisation concerned and Government approval shall be obtained in this regard. 9. It is clear that the 3[rd] respondent had been addressing requests for the regularisation of the appellant as Part Time Sweeper in view of the fact that the sweeping area was initially 489.25m[2] and was enhanced as 1141.79m[2] and the appellant was carrying out the sweeping duties without fail from 1.8.2003. In WA NO.913 OF 2016 -: 8 :- Annexure A4 dated 27.9.2017, all the factual aspects have been highlighted while recommending that the services of the appellant are to be regularised as Part Time Sweeper. 10. Ext.P9 is a Government Order dated 9.2.2010 which refers to the Government Order dated 25.11.2005 as well as the judgments of this Court. Clauses (i), (ii) and (iii) of paragraph 3 of Ext.P9 reads as follows :- “3. In view of the above observations Government felt it highly necessary to incorporate certain modifications/clarification to the existing Government Order. Accordingly the following clarifications are issued. (i) All existing sweepers, other than Casual Sweepers, irrespective of the mode of appointment, shall also be entitled for regularization based on the sweeping area, defined in the Government Order read as 3[rd] paper above, provided their appointments were made on or before the issuance of GO read above and are continuing as such on the date of this order. The regularisation will have effect from the date of this order only. (ii) In temporary establishments of Government, which are created for a specific purpose and for a specific period, post of part time sweeper shall not be allowed. However the person engaged for sweeping in such offices shall be entitled to payment at par with that of regular part time sweepers/casual sweepers, with effect from the date of this order strictly based on the sweeping area of such offices, calculated in accordance with Appendix to the GO read as 3[rd] paper above. In any case, the sweepers engaged in temporary establishments shall not be entitled for regularization irrespective of their length of service, sweeping area etc. Hereinafter, all fresh appointments of WA NO.913 OF 2016 -: 9 :- sweepers in temporary establishments shall be made only through nearest Kudumbasree unit. (iii) The Government are at liberty to conduct the reassessment of the sweeping area of any office, wherever necessary, by the Chief Technical Examiner, who is the competent Technical Authority of Finance Department. Such reassessment will be made strictly subject to the provisions contained in the appendix to the GO reas as 3[rd] paper above, with notice to the sweeper and others concerned.” It is contended that by Ext.P4, a request had been made for creation of post and for regularization along with details of the sweeping area only on 28.9.2013. 11. The learned Government Pleader contends that the claim of the appellant for regularization from any earlier date could not have been considered at all since the details of the sweeping area and a proper application in format was forwarded for the first time only by Ext.P4. 12. The learned counsel appearing for the 3[rd] respondent would further contend that Ext.P9 Government Order was applicable only to temporary establishments under the Government of Kerala and since the expenses of the 3[rd] respondent was to be borne equally by the Central and State Governments, the same could not be applicable for the 3[rd] respondent. WA NO.913 OF 2016 -: 10 :- 13. Having considered the contentions advanced on either side and in view of the Government Orders issued with regard to appointment, regularization and payment of wages to Part Time Contingent Sweepers, we are of the opinion that the contention raised by the learned Government Pleader as well as the learned counsel for the 3[rd] respondent that the Government Orders would not be applicable to the 3[rd] respondent cannot be accepted. The 3[rd] respondent admittedly is a Council which answers the definition of an establishment under the Government. A reading of Exts.P8, P9 and Annexure A2 Government Orders would make it clear that the Government Orders with regard to Part Time Contingent Sweepers and Casual Sweepers and their regularization and payment of wages are applicable to all Government offices including temporary establishments of the Government. In the above factual situation, we are of the opinion that the contention that the 3[rd] respondent does not come within the purview of a temporary establishment of the Government and that the benefits of the Government Orders are not applicable to the appellant cannot be accepted. 14. A learned Single Judge of this Court in **C.Madusoothanan** v. **State of Kerala and others** [judgment WA NO.913 OF 2016 -: 11 :- dated 17.7.2009 in W.P.(C) No.547/2009] held that temporary establishments of the Government are also covered by the Government Order dated 25.11.2005 and that regularisation is liable to be granted to Part Time Sweepers working in such establishments as well. Further, in **State of Kerala and others** v. **Radhamani P.K.** [judgment dated 7.1.2021 in OP(KAT) No.118/2020], a Division Bench of this Court had cautioned the public authorities to ensure that unnecessary exercise of appeals or litigative proceedings should not be set in motion as it would entail only waste of public money and affect the time and resources of the judicial organs as well. That was also a case of regularisation of a Part Time Sweeper. We are, therefore, of the opinion that the appellant is definitely entitled to the benefits of Ext.P9 Government Order. In the above view of the matter, we are of the opinion that the rejection of the claim by the learned Single Judge was not proper. In view of the fact that a proper application in proforma had been forwarded by Ext.P4 as early as on 28.9.2013, the appellant would be entitled to the benefit of Ext.P9 Government Order, at least with effect from that date. There will, accordingly, be a direction to the respondents to grant WA NO.913 OF 2016 -: 12 :- the benefits of regular scale of pay of the post of Part Time Contingent Sweeper with effect from the date of Ext.P4 and to calculate and disburse the arrears thereof to the appellant. Appropriate orders shall be passed and the amounts disbursed within a period of three months from the date of receipt of a copy of this judgment. The judgment of the learned Single Judge shall stand modified to the above extent. **Sd/ANU SIVARAMAN** **JUDGE** **Sd/C. PRATHEEP KUMAR JUDGE** Jvt/15.1.2024