OP(KAT) No. 41 of 2020

O.P.(KAT) No. 41 of 2020 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.41 OF 2020** **AGAINST THE ORDER IN OA 2135/2014 DATED 24-09-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT IN OA:** **SHYBA.T AGED 38 YEARS D/O.OMANA, CASUAL SWEEPER(ON FIXED REMUNERATION) OFFICE OF THE ASSISTANT ENGINEER, (BUILDING SECTION) PUBLIC WORKS DEPARTMENT, THIROOR, THRIKANDIYOOR P.O, MALAPPURAM DISTRICT, PIN-676104 RESIDING AT THACHARAKKAL HOUSE, NIRAMARETHOOR.P.O, CHAKKARAMOOLA, MALAPPURAM DISTRICT, MOB-9746112278** **BY ADVS. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE SMT.RENI JAMES** ## **RESPONDENTS/RESPONDENTS 1 TO 5 IN TA:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF PUBLIC WORKS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001** **2 THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT, OFFICE OF THE CHIEF ENGINEER(PWD), THIRUVANANTHAPURAM, PIN-695003** O.P.(KAT) No. 41 of 2020 2 - **3 THE ASSISTANT EXECUTIVE ENGINEER BUILDING SUB DIVISION, PUBLIC WORKS DEPARTMENT, PARAPPANAGADY.P.O, MALAPPURAM DISTRICT, PN-676303** - **4 THE ASSISTANT ENGINEER (BUILDING SECTION) PUBLIC WORKS DEPARTMENT, THIROOR, THRIKANDIYOOR .P.O, MALAPPUAM DISTRICT, PIN-676104** - **5 THE SECRETARY TO THE GOVERNMENT DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPRUAM, PIN-695001** ## **BY SR.GOVT.PLEADER SRI B.VINOD** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No. 41 of 2020 3 # **ALEXANDER THOMAS & T.R. RAVI, JJ.** # **-----------------------------------------------O.P.(KAT) No. 41 of 2020** [ _Arising out of order dated 24.09.2019 in O.A.No. 2135 of 2014 of KAT, Tvm Bench_ ] **-------------------------------------------------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 24.9.2019 in O.A.No.2135 of 2014 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram (hereinafter referred to as the Tribunal). The petitioner was the applicant before the Tribunal and the respondents were the respondents. 2. The issue relates to entitlement of the petitioner 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 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** O.P.(KAT) No. 41 of 2020 4 **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 ordered that all existing sweepers other than casual sweepers, O.P.(KAT) No. 41 of 2020 5 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. As per paragraph 3(iv) of G.O. (P)No.61/2010/Fin. dated 09.02.2010, where sweepers were engaged against existing sanctioned posts for any reason, they shall also be entitled to regularisation, provided the date of appointment was on or before 25.11.2005 and on the retirement of the existing sweeper in such offices, the vacancy is to be filled up through Employment Exchange only. 4. In the case on hand, the petitioner filed O.A.No.2135 of 2014 before the Tribunal claiming regularisation in terms of the Government orders of 2005 and 2010. The petitioner was admittedly being engaged from 1998. The respondents however contend that the engagement was not continuous and it was intermittent. The respondent contended that the sweeping area was only 94.21 m² and there was no sanctioned post of regular part-time sweeper existing in the office concerned. It is also stated that in terms of the Government order dated 09.02.2010, the petitioner is retained as casual sweeper in the office. Pending the application, the Tribunal on 08.07.2019, O.P.(KAT) No. 41 of 2020 6 directed re-measurement of the area and on re-measurement, it was found that the sweeping area was 94.57 m². On the factual situation, the Tribunal held that the petitioner was not entitled to regularisation in service, but that she is entitled to the protection of the wages that she has been receiving and also entitled to continue till she attains the age of superannuation. The petitioner has hence filed this original petition challenging the order of the Tribunal to the extent the prayer for regularisation is denied. 5. Heard Sri M.V.Thamban, learned counsel appearing on behalf of the petitioner and Sri B.Vinod, learned Senior Government Pleader on behalf of the respondents. 6. The contention of Sri M.V.Thamban, learned counsel for the petitioner is that the Tribunal went wrong in accepting the certification of the sweeping area by the respondents as 94.57M², since a mere reading of the documents produced by the respondents as sweeping area certificates will show that the area covered by the plinth protection area (Thinna in vernacular) has been excluded from the measurement. On directions issued by the Tribunal, the plinth protection area was measured by the Assistant Engineer, PWD (Buildings) Section, Tirur and his report has been produced along with O.P.(KAT) No. 41 of 2020 7 a memo as Ext.P4. The report will clearly show that the plinth protection area is 12.132 M². It is the contention of Sri M.V.Thamban that if the said area is added to the certified area of 94.57 M², the sweeping area will be more than 100M² and the petitioner will hence be entitled to be regularised. We find considerable force in the said contention. 7. In the above circumstances, the respondents are directed to cause a re-measurement of the carpet area of the 4[th] respondent's office, including the area covered by the plinth protection area (Thinna in vernacular) also and if it is found on such measurement that the sweeping area is more than 100 sq.mts, the respondent shall take steps to regularise the petitioner as part-time sweeper. In case the sweeping area is found to be less that 100 M², even after inclusion of the plinth protection area, the directions issued by the Tribunal regarding the protection of the wages that she is receiving now will have to be ensured by the respondents. The order of the Tribunal setting aside Annexure A4 whereby applications were invited for appointment of casual sweepers was set aside is confirmed. The respondents shall complete the process of the re-measurement as directed above within a period of six weeks from the date of receipt of a certified copy of this O.P.(KAT) No. 41 of 2020 8 judgment. If on re-measurement it is found that the sweeping area is more than 100M², the respondents shall issue further orders regarding regularisation of the petitioner, within a further period of six weeks therefrom. The original petition is disposed of with the above directions. The parties will bear their respective costs. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn O.P.(KAT) No. 41 of 2020 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE MEMORANDUM OF O.A.NO.2135/2014 ON THE FILES OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **EXHIBIT P1(A1) TRUE COPY OF THE REPRESENTATION DT.05.09.2012 FILED BEFORE THE 1ST RESPONDENT** - **EXHIBIT P1(A2) TRUE COPY OF THE REPRESENTATION DT.07.09.2012 FILED BEFORE THE 4TH RESPONDENT** - **EXHIBIT P1(A3) TRUE COPY OF THE G.O.(P) NO.501/2005/FIN DATED 25.11.2005** - **EXHIBIT P1(A4) TRUE COPY OF THE NOTICE DT.04.11.2014 ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT P1(A4(A)) TRUE COPY OF THE ENGLISH TRANSLATION OF ANNEXURE A4** - **EXHIBIT P1(A5) TRUE COPY OF THE GOVERNMENT CIRCULAR NO.98/2010/FIN DT.19.11.2010** - **EXHIBIT P1(A6) TRUE COPY OF THE REPRESENTATION DT.06.11.2014 FILED BEFORE THE 1ST RESPONDENT** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN O.A.NO.2135/2014, ON THE FILES OF HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** - **EXHIBIT P3 TRUE COPY OF THE MEMORANDUM FILED BY THE LEARNED GOVERNMENT PLEADER IN M.A.NO.374/2019 IN O.A.NO.2135/2014 ON THE FILES OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** - **EXHIBIT P4 TRUE COPY OF THE MEMORANDUM FILED BY THE LEARNED GOVERNMENT PLEADR IN O.A.NO.2135/2014 ON THE FILES OF THE** O.P.(KAT) No. 41 of 2020 10 ## **HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM** **EXHIBIT P5: TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT IN OA No.2135/2014 ON THE FILES OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPRUAM.** **EXT.P5 (R3(A): TRUE COPY OF THE LINE SKETCH OF PWD BUILDING SECTION TIRUR.** **EXT.P5(R3(B): TRUE COPY OF CIRCULAR NO.13239/B1/11/PWD DT.12.6.2012.** **EXHIBIT P6** **TRUE COPY OF THE ORDER DATED 24.09.2019 IN O.A.NO.2135/2014 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM**