OP(KAT) No. 394 of 2019

OP(KAT)No.394/2019 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942** **OP(KAT).No.394 OF 2019** **AGAINST THE ORDER IN TA 5200/2012 DATED 02-11-2018 OF KERALA ADMINISTRATIVE TRIBUNAL, ADDITIONAL BENCH ERNAKULAM** ## **PETITIONERS/RESPONDENTS IN TA:** - **1 THE STATE OF KERALA REPRESENTED BY SECRETARY TO AGRICULTURE (A & E) DEPARTMENT, THIRUVANANTHAPURAM, KERALA-695 001** - **2 THE DIRECTOR, DIRECTORATE OF ANIMAL HUSBANDRY DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 001, KERALA.** - **3 DISTRICT ANIMAL HUSBANDRY OFFICER, KOTTAYAM, KERALA-686 001.** - **4 THE VETERINARY SURGEON, MOONNILAVU, GOVERNMENT VETERINARY DISPENSARY, CHOVVOOR P.O, KOTTAYAM, KERALA-686 586** - **5 THE VETERINARY SURGEON, ERATTUPETTA, GOVERNMENT VETERINARY DISPENSARY, ERATTUPETTA, KOTTAYAM, KERALA-686 121.** - **6 VETERINARY SURGEON, PARATHODE GOVERNMENT VETERINARY DISPENSARY, PARATHODE P.O, KANJIRAPPALLY, KOTTAYAM, 686 512** ## **BY SR. GOVERNMENT PLEADER SRI B.VINOD** OP(KAT)No.394/2019 2 ## **RESPONDENTS/APPLICANTS IN TA:** - **1 JIJIMOL DOMENIC D/O. M.J. DOMENIC, MOOTHASSERIL HOUSE, CHOVVOOR P.O, KOTTAYAM DISTRICT, (PART TIME CASUAL SWEEPER AT MOONNILAVU GOVERNMENT VETERINARY DISPENSARY, KOTTAYAM DISTRICT, KERALA.PIN - 686 586** **2 JANCYMOL T, W/O. MATHEW SEBASTIAN, PARAYIL HOUSE, ARUVITHURAL P.O, ERATTUPETTA, KOTTAYAM DISTRICT (PART TIME CAUSAL SWEEPER AT ERATTUPETTA GOVERNMENT VETERINARY DISPENSARY, KOTTAYAM DISTRICT, KERALA, PIN 686 122.** - **3 SAJINI P..R., W/O.MADHU V.G.,VADAKKEDATH,CHITTADY P.O.,CHOTTY,KANJIRAPPALY,KOTTAYAM DISTRICT,(PART TIME CASUAL SWEEPER AT PARATHODE GOVERNMENT VETERINARY DISPENSARY,KOTTAYAM,KERALA,PIN-686 512.** ## **BY ADV. SRI.SUNIL V.MOHAMMED** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT)No.394/2019 3 **ALEXANDER THOMAS & T.R. RAVI, JJ.** **-----------------------------------------------O.P.(KAT) No.394 of 2019** [ _Arising out of order dated 02.11.2018 in T.A.No.5200 of 2012 of KAT, Ekm._ ] **--------------------------------------------------** ## **Dated this the 1[st] day of February, 2021** ## **JUDGMENT** ## **T.R. RAVI, J.** The original petition has been filed by the State of Kerala and its officers/authorities, challenging the order dated 2.11.2018 in T.A.No.5200 of 2012, on the file of the Kerala Administrative Tribunal, Ernakulam, (hereinafter referred to as the Tribunal). The petitioners were the respondents before the Tribunal and the respondents were the applicants. Even though there were three applicants in the application, the applicants 2 and 3 gave up their claim and the claim of the 1[st] applicant for regularisation alone was considered by the Tribunal. 2. The issue relates to entitlement of the respondents to be regularised in service as a Part Time Sweeper. Pursuant to directions issued by a learned Single Judge of this Court in its judgment in **Mercy v. State of Kerala** reported in [2004 (2) KLT 848], confirmed by a OP(KAT)No.394/2019 4 Division Bench in its judgment dated 12.08.2005 in **State of Kerala and others v. M.M.Mercy and others (W.A.No.1863 of 2004 and connected cases** ), the State Government had issued GO(P)No.501/2005/Fin.dated 25.11.2005, introducing a scheme to govern the cases of regularisation of existing eligible casual sweepers and regarding appointments to future vacancies. Paragraph 8 of the above Government order deals with regularisation of the existing casual sweepers. As per the Government order, the sweeping area has to be calculated in accordance with the guidelines given in the appendix, the measurement being carried out by the PWD officials after notice to the incumbent casual sweeper and in his presence. Wherever the sweeping area exceeds 100 M[2] and if there is no post of Part Time Sweeper sanctioned for the office in question, but there is a casual sweeper being engaged, steps are to be taken for creation of a post of part time contingent sweeper. The posts are to be created with effect from the date of appointment of the incumbent as casual sweeper or from 18.6.2001 (i.e., three years preceding the date of the judgment of the learned Single Judge in **Mercy v. State of Kerala** [2004 (2) KLT 848]), whichever is later. 3. The Government thereafter issued G.O.(P)No.61/2010/Fin. dated 09.02.2010 modifying the earlier order dated 25.11.2005. It was OP(KAT)No.394/2019 5 ordered that all existing sweepers other than casual sweepers, irrespective of the mode of appointment, shall also be entitled for regularisation based on the sweeping area, provided that their appointments were made on or before the issuance of the Government order dated 25.11.2005. It further provided that the Government are at liberty to conduct re-assessment of the sweeping area in any office, wherever necessary by the Chief Technical Examiner who is the competent Technical Authority of the Finance Department, however, with notice to the incumbent and others concerned. There is also a direction that wherever sweepers are engaged against existing sanctioned posts, they shall also be entitled to regularisation, provided the date of appointment was on or before 25.11.2005. Regarding clause 11 of the Government order dated 25.11.2005, it has been clarified in the order dated 09.02.2010 that the benefit of clause 11 referred above will be available to all sweepers including sweepers engaged in offices where sweeping area is less than 100 M[2] , but are in receipt of higher pay as applicable to regular part time sweepers by virtue of court orders or otherwise. 4. In the case on hand, the respondents approached the Tribunal seeking regularisation as part-time sweepers in petitioners 4 to 6 dispensaries. The 2[nd] and 3[rd] respondents gave up their cause and OP(KAT)No.394/2019 6 the question regarding the regularisation of the 1[st] respondent alone remains to be considered. The 1[st] respondent was admittedly being continuously engaged from January 2001 and on issuance of G.O. (P)No.501/2005/Fin. dated 25.11.2005, proposals were forwarded on 25.11.2005, for regularisation of the 1[st] respondent. It is admitted that the sweeping area was 129 M², that the office had a sanctioned post of part-time sweeper from 1989 onwards as per Order No.1639/89/AD dated 19.9.1989 and there was no necessity for creation of a post for the purpose of regularisation. In spite of all the above facts, the proposal as rejected by Exhibit P7(TA7) communication dated 3.2.2010, for the reason that the Director of Animal Husbandry had reported that the 1[st] respondent was not working continuously and was engaged only for intermittent periods. The 4[th] respondent contended that as per records maintained, the applicant was in service during 2000 to 2004, but was not in service when G.O.(P)No.501/2005/Fin. dated 25.11.2005 was issued. The 1[st] respondent had filed a reply to the above said contention stating that during the interregnum even though she was engaged to work, the mother and the sister of the applicant had received pay slips, for the reason that litigation was pending before this Court. The above averment was not controverted by the petitioners. The Tribunal took note of the fact that but for the interregnum when the applicant's OP(KAT)No.394/2019 7 mother and sister were issued with pay slips the applicant was continuing in service and a post of part-time sweeper was already sanctioned as per order No. 1639/84/AD dated 19.9.1989 and that there are no other claimants for regularisation. The above factual situation was considered and the Tribunal ordered regularisation of the respondent in terms of clause 8 of G.O.(P)No.501/2005/Fin. dated 25.11.2005 5. 5. We do not find any reason to interfere with the well considered order issued by the Tribunal. Admittedly, the 1[st] respondent was being engaged against a sanctioned post from 2001 onwards. Except for the intermittent period, which has been sufficiently explained by the 1[st] respondent, there can be no reason for refusing the benefit of regularisation to the 1[st] respondent. The subsequent order G.O.(P)No.61/2010/Fin dated 9.2.2010 also specifically protects the rights of persons who are continuing as sweepers on the date of the issuance of the order. Even if the contention of the 1[st] respondent that she continued to be in service though her sister and mother had received the pay slips is not accepted, the fact remains that admittedly, the 1[st] respondent was in service from January, 2006 till the issuance of the Government order dated 9.2.201o and even thereafter. No grounds have been made out OP(KAT)No.394/2019 8 for interference with the order of the Tribunal in exercise of the extraordinary and supervisory jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. The time granted by the Tribunal for compliance with the directions issued is long over. In the above circumstances, we deem it fit to grant the petitioners a further time of 6 weeks from the date of receipt of a certified copy of this judgment, to comply with the directions issued by the Tribunal in its order dated 2.11.2018 in T.A.No.5200 of 2012. With the above modification of the order of the Tribunal, the original petition is dismissed. The parties will suffer their respective costs. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn OP(KAT)No.394/2019 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1(TA) TRUE COPY OF THE T.A. NO. 5200/2012 ALONG WITH EXHIBITS.** - **EXHIBIT P1(TA1) TRUE COPY OF THE G.O(P) NO. 501/2005/FIN. DATED 25.11.2005 ISSUED BY THE GOVERNMENT.** **EXHIBIT P1(TA2) TRUE COPY OF THE CIRCULAR NO.J2.22879/05 DATED 26.12.2005 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P1(TA3) TRUE COPY OF THE SWEEPING AREA CERTIFICATE DATED 08.03.2006 CONCERNING THE 1ST PETITIONER.** **EXHIBIT P1(TA4) TRUE COPY OF THE SWEEPING AREA CERTIFICATE DATED 07.03.2006 CONCERNING THE 2ND PETITIONER.** - **EXHIBIT P1(TA5) TRUE COPY OF THE SWEEPING AREA CERTIFICATE DATED 10.04.2006 CONCERNING THE 3RD PETITIONER.** - **EXHIBIT P1(TA6) TRUE COPY OF THE JUDGMENT DATED 30.03.2009 IN W.P.(C) NO. 10195/09** - **EXHIBIT P1(TA7) TRUE COPY OF THE ORDER DATED 03.02.2010 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P1(TA8) TRUE COPY OF THE CERTIFICATE DATED 15.03.2010 ISSUED IN FAVOUR OF THE 1ST PETITIONER BY THE MOONILAVU GRAMA PANCHAYATH PRESIDENT.** - **EXHIBIT P1(TA9) TRUE COPY OF THE CERTIFICATE DATED 15.03.2010 ISSUED IN FAVOUR OF THE 2ND PETITIONER BY THE MEMBER OF ERATTUPETTA GRAMA PANCHAYATH.** **EXHIBIT P1(TA10) TRUE COPY OF THE CERTIFICATE DATED 23.03.2010 ISSUED IN FAVOUR OF THE 3RD PETITIONER BY THE PARATHODU GRAMA PANCHAYATH PRESIDENT.** OP(KAT)No.394/2019 10 - **EXHIBIT P1(TA11) TRUE COPY OF THE LETTER NO. B21954/10/ESTT. DATED 20.09.2010 BY THE 3RD RESPONDENT.** - **EXHIBIT P1(TA12) TRUE COPY OF THE INTERIM ORDER DATED 09.04.2010 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P2 (TA) TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT.** - **EXHIBIT P3(TA) TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 3RD RESPONDENT (COUNTER AFFIDAVIT FILED IN W.P.(C) 31521/2010)** - **EXHIBIT P4(TA) TRUE COPY OF THE REPLY STATEMENT FILED BY THE 4TH RESPONDENT ALONG WITH EXHIBITS.** **EXHIBIT P4(TA) TRUE COPY OF STATEMENT SHOWING ENTIRE (R4(A) SERVICE PERIOD OF THE APPLICANT.** **EXHIBIT P4 (TA) TRUE COPY OF THE PROPOSAL DATED R4(B) 01.08.2009. EXHIBIT P5(TA) TRUE COPY OF THE REJOINDER FILED BY THE 1ST APPLICANT ALONG WITH EXHIBITS. EXHIBIT P5(TA) A13 TRUE COPY OF THE GO(P) NO. 61/2010/FIN DATED 09.02.2010.** - **EXHIBIT P5(TA) A14 TRUE COPY OF THE CERTIFICATE DATED 18.07.2018 ISSUED BY THE PRESIDENT, MOONNILAVU GRAMA PANCHAYAT.** **EXHIBIT P6(TA) TRUE COPY OF ORDER DATED 02.11.2018 IN TA NO. 5200/2012**