OP(KAT) 167 of 2021 vs Shyni Eapen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943** ## **OP(KAT) NO. 167 OF 2021** **AGAINST THE ORDER IN TA 3792/2012 OF KERALA ADMINISTRATIVE TRIBUNAL,** ## **THIRUVANANTHAPURAM.** ## **PETITIONERS/RESPONDENTS IN T.A:** - **1 STATE OF KERALA REP. BY ITS SECRETARY, DEPARTMENT OF AGRICULTURE, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA 695 001** - **2 THE PRINCIPAL AGRICULTURAL OFFICER ALAPPUZHA, KERALA 688 013** - **3 THE AGRICULTURAL OFFICER KRISHI BHAVAN, THALAVADY, KUTTANAD, ALAPPUZHA DISTRICT, KERALA 689 572** ## **G.P-SRI. UNNIKRISHNA KAIMAL** ## **RESPONDENT/APPLICANT IN T.A:** **SHYNI EAPEN AGED 44 YEARS** **D/O.EAPEN, PART TIME SWEEPER, KRISHI BHAVAN, THALAVADY, KUTTANAD, ALAPPUZHA, KERALA** **BY ADVS.** **KALEESWARAM RAJ** **VARUN C.VIJAY** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR** **ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P(KAT) 167/2021 2 ## **JUDGMENT** _Murali Purushothaman, J._ The State of Kerala and official respondents in T.A.No.3792/2012 have filed this Original Petition challenging the order dated 26.02.2019 of the Kerala Administrative Tribunal in the said Transfer Application which was originally filed before this Court as W.P. (C) No. 24210/2009. 2. The applicant in T.A.No.3792/2012 was engaged as a casual sweeper in Krishi Bhavan, Thalavady in the Agriculture Department with effect from November, 1994 and is in continuous engagement ever since. In the light of the directions of this Court in **Mercy** _**v**_ **. State of Kerala (2004 (2) KLT 848)** , the Government issued G.O(P) 501/2005/Fin dated 25.11.2005 (Ext. P4) wherein it was stipulated that a government office having sweeping area of more than 100 sq.mtrs is eligible for sanctioning of a post of Part Time Sweeper and the person engaged against the same is entitled for regularization. Pursuant to the said government order, the sweeping area of the Krishi Bhavan, Thalavady was measured and the Assistant Engineer, PWD, by Ext. P2 O.P(KAT) 167/2021 3 dated 6.6.2006, certified that it has a sweeping area of 106.12 sq.mtrs. Accordingly, the proposal for creation of a post of Part Time Sweeper in the Kirishi Bhavan, Thalavady and for regularization of the service of the applicant was forwarded by the Director of Agriculture to the Government. However, the proposal was returned by Ext.P5 as one submitted beyond the time prescribed by the Government in their circular. It was challenging the same that the applicant filed the writ petition. The applicant also prayed for direction to regularize her service and for protection of pay as per Ext.P4 G.O. 3. A Counter Affidavit was filed in the case while the matter was pending before this Court. It is admitted therein that the applicant was being engaged in the Krishi Bhavan, Thalavady from November, 1994 and that the Assistant Engineer, PWD had certified that the sweeping area of the Krishi Bhavan is 106.12 sq.mtrs and pursuant to the directions in **Mercy'** s case (supra), the applicant was disbursed with the arrears of pay and allowances. Thereafter, the salary was reduced in the month of March, 2006 and the sweeping area was re-measured and was O.P(KAT) 167/2021 4 reported to be 106.12 sq.mtrs and that the time limit to submit proposal for regularization of the services has been extended and the applicant's case is being examined by the Government. 4. Later, the Government issued Ext.P7 order dated 24.9.2012 rejecting the proposal stating that the sweeping area of Kirishi Bhavan, Thalavady is below 100 sq.mtrs and therefore, no post of Part Time Sweeper could be created and the applicant is not eligible for regularization in service. However, the applicant was directed to be continued as a casual sweeper. 5. On constitution of the Kerala Administrative Tribunal, the writ petition was transferred to the Tribunal as T.A.No.3792/2012 and the applicant amended the Transferred Application incorporating necessary pleadings and prayers to challenge Ext. P7. 6. The Government contended before the Tribunal that as per G.O(P) No. 378/2008 Fin dated 25.8.2008, further clarification was issued as to the manner of calculation of sweeping areas attached to the Krishi Bhavan and it was directed that the store room and other storage O.P(KAT) 167/2021 5 areas which did not require a regular sweeping was to be excluded from the sweeping area while issuing the certificate and it was in accordance with the same that the sweeping area was revised and certified at 58.02 sq.mtrs on 23.12.2010 and therefore, the Krishi Bhavan, Thalavadi was not eligible for a regular post of Part Time Sweeper and the applicant is not entitled for regularization in service. 7. Before the Tribunal, the learned counsel for the applicant contended that the applicant, who was in continuous service from November, 1994, was governed by the provisions in Ext.P4 G.O and subsequent measurement, if any and the finding that the sweeping area was below 100 sq.mtrs were behind the back of the applicant. 8. Appreciating the rival contentions, the Tribunal held that as per Ext. P4 G.O., a government office with a sweeping area of 100 sq.mtrs or more was eligible for creation of a post of regular Part Time Sweeper and the sweeper being engaged in such office was eligible for regularization in service. Since the sweeping area of the Krishi Bhavan, Thalavady was measured in accordance with the guidelines in Ext.P4 O.P(KAT) 167/2021 6 G.O. and it is admitted by both sides that it was certified as 106.12 sq.mtrs., the applicant is entitled for regularization in service. The subsequent Government Order, viz., G.O(P) 378/2008/Fin dated 25.8.2008 which directed reckoning of sweeping area excluding the store rooms _etc._ were not applicable in so far as the applicant was in service as on the date of issuance of Ext.P4 G.O. The Tribunal also held that, when it is stipulated in Ext. P4 G.O. that the casual sweepers who were being paid salary as per the rate fixed therein could not be paid a revised salary on reduction of sweeping area, the applicant is entitled for protection of pay. Accordingly, the Tribunal directed the Government to take back on record the proposal forwarded by the Director of Agriculture and to consider and pass appropriate orders regularizing the provisional service of the applicant, in accordance with the guidelines in Ext.P4 G.O. and reckoning the sweeping area as per Ext.P2 certificate issued by the Assistant Engineer, PWD ignoring the subsequent certificate issued in accordance with G.O(P) 378/2008/Fin dated 25.8.2008. The Tribunal held that G.O(P) 378/2008/Fin dated 25.8.2008 O.P(KAT) 167/2021 7 is only prospective and the applicant, who admittedly was in continuous engagement from November, 1994 is governed by the guidelines in Ext.P4 G.O. and therefore, entitled for regularization as per Ext.P2 sweeping area certificate. The Tribunal directed the Government to pass appropriate orders within a period of three months from the date of receipt of a copy of the order. The Tribunal also made it clear that on issuance of orders regularizing the services of the applicant, the applicant would be entitled to the pay as per paragraph 8 of Ext.P4 G.O. and the amounts in arrears from March, 2006 would be computed and paid to her within a further period of two months therefrom. 9. It is challenging the above order of the Tribunal that the Government and official respondents in the T.A have filed this Original Petition contending that, as per G.O(P) No. 378/2008 Fin dated 25.8.2008, it was clarified that the store room and other storage areas which did not require a regular sweeping was to be excluded from the sweeping area while issuing certificate and it was in accordance with the same that the sweeping area at Krishi Bhavan, Thalavadi was revised O.P(KAT) 167/2021 8 and certified at 58.02 sq.mtrs and therefore, Krishi Bhavan, Thalavady was not eligible for a regular post of Part Time Sweeper and the applicant was not entitled for regularization in service and the direction issued by the Tribunal to create a regular post of Part Time Sweeper and to regularize the applicant and to disburse the consequential monetary benefits with arrears is misconceived and wrong. 10. Heard Sri. Unnikrishna Kaimal, the learned Government Pleader for the petitioners and Sri. Kaleeswaram Raj for the respondent. 11. Pursuant to the directions of this Court in **Mercy'** s case (supra), the Government issued G.O(P) 501/2005/Fin dated 25.11.2005 (Ext.P4) wherein it was stipulated that a government office having sweeping area of more than 100 sq.mtrs was eligible for sanctioning of a post of Part Time Sweeper and the person engaged against the same was entitled for regularization. It was pursuant to the said government order that the sweeping area of Krishi Bhavan, Thalavady was measured and the Assistant Engineer, PWD, by Ext. P2 dated 6.6.2006, certified that it has a sweeping area of 106.12 sq.mtrs. Later, the Government issued Ext.P7 O.P(KAT) 167/2021 9 order dated 24.9.2012 rejecting the proposal stating that the sweeping area in Kirishi Bhavan, Thalavady is below 100 sq.mtrs and therefore, no post of Part Time Sweeper could be created and the applicant is not eligible for regularization in service. This was based on G.O(P) No. 378/2008 Fin dated 25.8.2008, issued as clarification to the manner of calculation of sweeping areas attached to the Krishi Bhavan which provided that the store room and other storage areas which did not require a regular sweeping are to be excluded while calculating sweeping area. It was in accordance with the same that the sweeping area at Krishi Bhavan, Thalavady was revised and certified at 58.02 sq.mtrs on 23.12.2010. 12. It is not in dispute that the sweeping area of the Krishi Bhavan, Thalavady when measured in accordance with the guidelines in Ext. P4 G.O. was certified as 106.12 sq.mtrs. It is also not in dispute that the applicant was in continuous service from November, 1994 and that she was in service on the date of issuance of Ext.P4. When Ext. P4 G.O. was issued, the applicant who was then in service was governed by the O.P(KAT) 167/2021 10 provisions in the said G.O. As per Ext.P4 G.O., a government office having sweeping area of more than 100 sq.mtrs was eligible for sanctioning of a post of Part Time Sweeper and the person engaged against the same was entitled for regularization. Therefore, as per Ext. P4 G.O. and Ext. P2 certificate, Krishi Bhavan, Thalavady was eligible for sanctioning of a post of Part Time Sweeper and the applicant engaged against the same was entitled for regularization. Subsequent G.O. viz., G.O(P) 378/2008/Fin dated 25.8.2008 which directed reckoning of sweeping area excluding the store rooms _etc_ cannot be applicable in so far as the applicant who was in service as on the date of issuance of Ext.P4 G.O. is concerned. The said G.O. dated 25.8.2008 cannot curtail or take away the benefit of regularization conferred on the applicant _vide_ Ext.P4. We, therefore, concur with the findings of the Tribunal that G.O(P) 378/2008/Fin dated 25.8.2008 is only prospective. For the said reason, we also do not find any error in the finding of the Tribunal that the applicant is entitled to pay as per Ext.P4 Government Order. It is stipulated in paragraph 8 of Ext.P4 G.O. that the casual O.P(KAT) 167/2021 11 sweepers who were being paid salary as per the rate fixed therein could not be paid a revised salary on reduction of sweeping area. The applicant is, therefore, entitled for protection of pay. Since the applicant is paid reduced salary from March, 2006, she is also entitled to arrears from March, 2006 as found by the Tribunal. We do not find any reason to interfere with the order of the Tribunal and the Original Petition is, accordingly, dismissed. The 1[st] respondent herein is granted two months time from the date of receipt of a copy of this Judgment to pass appropriate orders for regularization of the applicant in service. The payment as directed by the Tribunal shall be made within a period of 2 months thereafter. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- ## **MURALI PURUSHOTHAMAN, JUDGE** **spc/** O.P(KAT) 167/2021 12 ## **APPENDIX OF OP(KAT) 167/2021** ## **PETITIONERS' EXHIBITS** **ANNEXURE I TRUE COPY OF THE T.A.3792/2012 IN WP(C) NO.24210/2009 ALONG WITH EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 18.6.2004 IN WP(C) NO.17776 OF 2004. Exhibit P2 TRUE COPY OF THE CERTIFICATE DATED 6.6.2006 ISSUED BY THE ASSISTANT ENGINEER, PWD BUILDING SECTION, EDATHALA Exhibit P3 TRUE COPY OF THE RECEIPT DATED 29.10.2004 IN RECEIPT OF RS.1,12,118/-. Exhibit P4 TRUE COPY OF THE G.O.(P) NO.501/2005 DATED 25.11.2005. Exhibit P5 TRUE COPY OF THE ORDER DATED 29.6.2009 NO.E(2) 11283105 Exhibit P6 TRUE COPY OF THE CIRCULAR DATED 25.10.2008. Exhibit P7 TRUE COPY OF THE COMMUNICATION DATED 24.9.2012 NO.36915/AF3/2009/AD ANNEXURE II TRUE COPY OF THE ORDER DATED 26.2.20219 IN TA 3792/2012. ANNEXURE III TRUE COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF THE 1ST PETITIONER ON 28.1.2011.**