OP(KAT) No.102/2019

OP(KAT)No.102/2019 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942** ## **OP(KAT).No.102 OF 2019** **AGAINST THE ORDER IN OA(EKM)No.121/2016 DATED 21-12-2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN OA(EKM):** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF ANIMAL HUSBANDRY, SECRETARIAT, THIRUVANANTHAPURAM- 695001.** - **2 THE DIRECTOR, ANIMAL HUSBANDRY, VIKAS BHAVAN, THIRUVANANTHAPURAM- 695001.** - **3 THE DISTRICT ANIMAL HUSBANDRY OFFICER, KANNUR.** **BY SR. GOVERNMENT PLEADER SRI B.VINOD** ## **RESPONDENTS/APPLICANTS IN OA(EKM):** - **1 ARUN KUMAR K.V., AGED 41 YEARS S/O.ACHUTHAN K (L), PART TIME CASUAL SWEEPER, I.C.D.P. MELOOR P.O., MELOOR, KANNUR- 670661, RESIDING AT PULARI, MELOOR P.O., KANNUR- 670661.** - **2 P.NARAYANAN, AGED 67 YEARS S/O.RAMAN NAMBIAR, PART TIME CASUAL SWEEPER,** OP(KAT)No.102/2019 2 **ICDP NANIYOOR NAMBRAM, P.O.MULLAKKODI, KANNUR, RESIDING AT PARASSINI ROAD, MULLAKKODI P.O, KANNUR- 670692.** - **3 ANITHA K.C., AGED 45 YEARS** **W/O.SUDHAKARAN, PART TIME CASUAL SWEEPER, ICDP VELLACHAL, MAKRERI P.O, KANNUR, RESIDING AT PUTHAN VEETTIL, KOTTUR, KADACHIRA P.O, KANNUR- 670621.** - **4 KORAMBETH SHYLAJA, AGED 50 YEARS** **W/O.C.K.SURENDRAN, PART TIME CASUAL SWEEPER, ICDP SUB CENTRE, KAVINMOOLA, ANJARAKKANDY, MAMBA P.O., KANNUR, RESIDING AT SRUTHI NIVAS, CHIRAKKATH, MUZHAPPALA P.O., KANNUR- 670611.** - **5 P.P.MEERA,** **AGED 49 YEARS** **W/O.PRABHAKARAN P.P., PART TIME CASUAL SWEEPER, ICDP KOODALI, KOODALI P.O., KANNUR DISTRICT, RESIDING AT PUTHIYAPURAYIL HOUSE, KUMBAM P.O., KOODALI, KANNUR, PIN 670 592.** **6 SREELATHA P.V., AGED 41 YEARS W/O.V.V.PRAKASAN, PART TIME CASUAL SWEEPER, ICDP MANIYOOR, KOODALI P.O, KANNUR, RESIDING AT PUTHAN VEEDU, VILLAGE MUKKU, KOODALI P.O., KANNUR, KERALA- 670592.** **7 K.GANGADHARAN, AGED 61 YEARS S/O.(L) KUNHIKANNAN, PART TIME CASUAL SWEEPER, ICDP PACHAPOYIL, PACHAPOYKA P.O, KANNUR, RESIDING AT THEJAS, PACHAPOYKA P.O., KANNUR- 670643.** **8 BABURAJ N.A,AGED 38 YEARS S/O.(L)DAMODHARAN, PART TIME CASUAL SWEEPER, ICDP VENGAD, PATHIRIYAD P.O., KANNUR- 670742, RESIDING AT ERINHIPOYIL HOUSE, PATHIRIYAD P.O, KANNUR- 670742.** OP(KAT)No.102/2019 3 **9 CHANDRAN M., AGED 52 YEARS S/O.(L) RAMA, PART TIME CASUAL SWEEPER, ICDP CHALA, KOYYOD P.O., KANNUR, RESIDING AT MANNAMBETH HOUSE, MOWANCHERY P.O., KANNUR- 670611.** **10 VIJESH A., AGED 36 YEARS S/O.JATHAN C.H., PART TIME CASUAL SWEEPER, ICDP SUB CENTRE, AROLI, AROLI P.O., KANNUR- 670561, RESIDING AT ARINGALYIAN HOUSE, KATTYAM, AROLI P.O., KANNUR- 670561. 11 BYJU U.P., AGED 33 YEARS S/O.NARAYANAN P., PART TIME CASUAL SWEEPER, ICDP KUTTIYATTOOR, CHATTUKAPARA P.O., KANNUR- 670592, RESIDING AT THAIKKANDY HOUSE, KATTOLI, KOODALI P.O., KANNUR- 670592. 12 GOPALAKRISHNAN M., AGED 35 YEARS S/O.R.K.KUNHIRAMAN NAMBIAR, PART TIME CASUAL SWEEPER, ICDP KODOLIPRAM, P.O.PATTANNUR, KANNUR- 670595, RESIDING AT KARIYIL HOUSE, PULKARI, KODALIPRAM, PATTANNUR P.O., KANNUR- 670595. 13 BINDU M., AGED 41 YEARS D/O.(L) NANU, P ART TIME CASUAL SWEEPER, ICDP SUB CENTRE, MUZHAPPILANGADU, MUZHAPPILANGADU P.O, KANNUR, RESIDING AT USHALAYAM, PALAYAD P.O., THALASSERY, KANNUR.** OP(KAT)No.102/2019 4 **14 SAINABA M., AGED 50 YEARS W/O.KASIM B., PART TIME CASUAL SWEEPER, ICDP PANNIYOOR, PANNIYOOR P.O., KANNUR, RESIDING AT MUTTHOTHI HOUSE, PANNIYOOR P.O., PALLIVAYAL, KANNUR- 670142. R1-14 BY ADV. SRI.VARUN C.VIJAY R1-14 BY ADV. KUM.A.ARUNA R1-14 BY ADV. KUM.THULASI K. RAJ R1-14 BY ADV. SMT.RIYA RAYMOL IYPE R1-14 BY ADV. SRI.KALEESWARAM RAJ** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 15-02-2021, THE COURT ON 09-03-2021 DELIVERED THE FOLLOWING:** OP(KAT)No.102/2019 5 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. -----------------------------------------------O.P.(KAT) No.102 of 2019** [ _Arising out of order dated 21.12.2017 in O.A.(EKM) No.121 of 2016 of KAT, Ekm._ ] **--------------------------------------------------** ## **Dated this the 9[th] day of March, 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 21.12.2017 in O.A. (EKM)No.121 of 2016, 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. 2. The issue relates to payment of enhanced pay and arrears of pay to the respondents. By G.O.(P) No.831/80/Fin. dated 3.11.1980, the Government had sanctioned benefits to part time contingent employees, whereby the remuneration payable to them was revised. The revision was based on the sweeping area or the area to be cleaned by such part time contingent employees/sweepers. The rates were OP(KAT)No.102/2019 6 specified therein for two different types of cases depending on whether the sweeping area was less than 200 M[2] or more than 200 M[2] . Subsequently, by a pay revision order G.O.(P) No.3000/98/Fin. dated 25.11.1998 which came into effect on 01.03.1997, certain modifications were ordered. The categorisation was also different as per the 1998 pay revision. Accordingly, Part Time Sweepers who were sweeping an area above 100 M[2] but below 400 M[2] were to be paid at the revised rate of Rs.1,250/- per month plus DA and persons who were sweeping an area above 400M[2] , but below 800 M[2] were to be paid at the rate of Rs.1,500/- per month plus DA. Enhanced pay was available to persons who were put in service as part time employees for 10 years, 20 years and 25 years. With respect to casual sweepers who were sweeping an area of less than 100 M[2] , the Government issued G.O.(P) No.3002/98/Fin. dated 25.11.1998 ordering that such persons will be paid at the rate of Rs.600/- per month with effect from 1.11.1998. 3. Faced with denial of pay in accordance with the pay revisions and threat of losing their engagement on the ground that they are casual sweepers, several persons approached this Court by way of writ petitions. In the meanwhile, the Government issued G.O.(P) No.390/03/Fin. dated 17.07.2003, which said that Part Time Sweepers OP(KAT)No.102/2019 7 should be engaged only for a period of two months and should be changed every two months. The above order was however withdrawn as per G.O.(P) No.500/2003/Fin. dated 25.9.2003. The Government thereafter issued letter No.28555/T1/03/RD dated 6.10.2003 clarifying that the sweeping area is the area excluding staircase, veranda, courtyard, etc. The order also said that if casual sweepers are appointed for two months and sweeping area is more than 100 M[2] they can be paid at par with part time sweepers and in cases where the area is below 100M[2] such persons are to be paid at the rate of Rs.600/- per month as a consolidated pay. There was also a direction to make appointments through Employment Exchange for the sanctioned post. 4. A learned Single Judge of this Court in the judgment in **Mercy v. State of Kerala** reported in [2004 (2) KLT 848] disposed of a batch of writ petitions with certain directions. In the cases before the learned Single Judge, the petitioners were all persons who were engaged prior to 6.10.2003 on which day, the Government had issued clarifications regarding the manner of calculation of sweeping area. It was directed that the sweeping area with regard to persons who were engaged prior to 6.10.2003, it is to be calculated as the carpet area, veranda, corridor, staircase and the courtyard, usually swept. It was OP(KAT)No.102/2019 8 also held that in any case the area shall not exceed 1½ times the plinth area. It was further held that since the State had enjoyed the fruits of the labour of such persons, they shall not be terminated from service for the only reason that they have not been appointed through the Employment Exchange. The Court further directed that all the Part Time Sweepers who have approached the Court as well as those who have not approached the Court shall be paid wages including arrears on the basis of the 1997 pay revision order with effect from 01.03.1997. 5. The judgment of the learned Single Judge was carried in appeal by the State and its Officers. Pending the appeal, the Government issued GO(P)No.361/2005/Fin. dated 02.08.2005, whereby a scheme was evolved regarding regularisation of the existing eligible casual sweepers and regarding the appointments against future arising vacancies of sweepers in Government offices. A Division Bench of this Court disposed of the appeals filed by the State by 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)** . After referring to the scheme proposed in G.O.(P) No.361/2005/Fin dated 02.08.2005, the Division Bench noted that in the light of the Scheme framed, the issue remains in a narrow compass regarding the directions OP(KAT)No.102/2019 9 contained in paragraph 15 of the judgment of the learned Single Judge in the judgment in **Mercy v. State of Kerala** [2004 (2) KLT 848], relating to the payment of arrears. The Division Bench in paragraph 18 held that the sweeping area is a matter to be found on actual measurement at the instance of the respective officers under the supervision of the head of the district of the concerned Department with the aid of an Engineer from the Public Works Department, taking into account of the requirement of the offices concerned. It was further held that in cases where sweeping area is disputed, the same shall be fixed by causing actual measurement with notice to the incumbents concerned in their presence. On the basis of the judgment of the Division Bench, the Government modified the order dated 02.08.2005 and carved out a fresh a order GO(P) No.501/2005/Fin. dated 25.11.2005 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 OP(KAT)No.102/2019 10 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. Paragraph 11 of the Government order deals with cases where the sweeping area on remeasurement, increases from below 400 M[2] to above 400 M[2] , requiring the payment of higher remuneration. The order provided for a fresh certification of the sweeping area of the existing premises within one year from the date of the order. It also said that if the sweeping area on refixation reduces to below 100 M[2] , the existing incumbent shall continue to get Rs.1250/- plus DA which he was getting and that vacancy in the said post shall be filled up only by a casual sweeper, by paying Rs.600/- per month. 6. The respondents herein are all persons who were engaged continuously from the years 1999 to 2004 and were working as casual sweepers in various offices and admittedly the sweeping area was less OP(KAT)No.102/2019 11 than 100 M[2] . Some of the respondents had approached this Court earlier through writ petitions which were disposed of by Exts.P1 to P3 judgments, directing the respondents therein to consider their cases for regularisation and for revised pay. Since their requests for pay as protected by paragraph 11 of the order G.O.(P)No.501/2005/Fin. dated 25.11.2005 were not favourably considered, they filed the original application before the Tribunal. A reply statement was filed on behalf of the petitioners contending that the respondents are casual sweepers who were engaged in offices where the sweeping area was less than 100 M[2] and that as such they are entitled only to the consolidated pay of Rs.600/- as revised from time to time, as per the Government orders issued in that regard. It is contended that the pay protection is available only to part time sweepers and not casual sweepers. The fact that all except one among the respondents are persons who were being engaged even before 2003 is admitted. Admittedly, all respondents were persons in service when G.P.(P)501/2005/Fin. dated 25.11.2005 was issued. 7. The Tribunal by order dated 27.11.2018, allowed the original application holding that persons who were already getting enhanced salary, were entitled to continue to get the same even if the OP(KAT)No.102/2019 12 sweeping area is reduced subsequently, going by the terms of G.O.(P) 501/2005/Fin dated 25.11.2005. The Tribunal relied on earlier orders issued by the Tribunal in T.A.No.5533 of 2012, O.A.(EKM) No.1059 of 2015 and in Thankamma T.P. v. State of Kerala and 2 others reported in (2015) 4 KATR Part II Page 100 and held that the respondents are entitled to get Rs.2300/- plus DA w.e.f. 1.3.2004 and Rs. 4250/- plus DA from 1.7.2009 and for subsequent pay revisions. 8. Aggrieved by the above order, this original petition is filed. Before this Court also, except for the contentions taken before the Tribunal, no new contentions are taken. We do not find any illegality, impropriety or irregularity in the order of the Tribunal. No grounds have been made out 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 are 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 27.11.2018 in T.A.No.7538 of 2012. With the above modification of the order of the Tribunal, the OP(KAT)No.102/2019 13 original petition is dismissed. The parties will suffer their respective costs. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn OP(KAT)No.102/2019 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE O.A(EKM)NO.121/2016 ALONG WITH ANNEXURE A1 TO A8 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** **ANNEXURE A1: TRUE COPY OF JUDGMENT DT.27.2.2007 IN WPC.6491/2007.** - **ANNEXURE A2: TRUE COPY OF JUDGMENT DT.23.2.2007 IN WPC.6169/2007.** - **ANNEXURE A3: TRUE COPY OF JUDGMENT DT.18.6.2004 IN WPC.30927/2004.** - **ANNEXURE A4: TRUE COPY OF GO(P)No.501/2005 DT.25.11.2005.** - **ANNEXURE A5: TRUE COPY OF GO DT.9.2.2010.** - **ANNEXURE A6: TRUE COPY OF CIRCULAR DT.15.7.2011.** - **ANNEXURE A7: TRUE COPY OF GO(P)No.262/07/59 (FIN) DT.19.6.07.** - **ANNEXURE A8: TRUE COPY OF THE GO(P)No.1481/2011 DT.17.8.2011** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 30.11.2017 FILED BY THE 1ST PETITIONER ALONG WITH ANNEXURES R1(A) TO R1(B) BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** - **ANNEXURE R1(A): TRUE COPY OF THE SWEEPING AREA CERTIFICATES.** - **ANNEXURE R1(B): TRUE COPY OF GO(P)No.501/2005/FIN. DT.25.11.2005.** - **ANNEXURE R1(C): TRUE COPY OF LETTER No.9631/AHE2/07/AD DT.6.6.2017.** - **ANNEXURE R1(D): TRUE COPY OF GO(P)No.7/2016/FIN. DT.20.1.2016.** **EXHIBIT P3 TRUE COPY OF ORDER DATED 21.12.2017 OF THE KERALA ADMINISTRATIVE TRIBUNAL.**