O.P.(KAT) No.122 of 2020

O.P.(KAT) No.122 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.122 OF 2020** **AGAINST THE ORDER IN TA 4797/2012 DATED 22-03-2018 OF KERALA ADMINISTRATIVETRIBUNAL, ERNAKULAM** ## **PETITIONERS/RESPONDENTS 1 TO 4S:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001. 2 THE LAND REVENUE COMMISSIONER OFFICE OF THE COMMISSIONER FOR LAND REVENUE, THIRUVANANTHAPURAM - 695 001, KERALA - 695 001. 3 THE DISTRICT COLLECTOR CIVIL STATION, KOLLAM DISTRICT - 691 001, KERALA. 4 THE TAHSILDAR TALUK OFFICE, KOLLAM - 691 001, KERALA.** **BY SR. GOVERNMENT PLEADER SRI B.VINOD RESPONDENTS/APPLICANTS 1 AND 2:** **1 MABLE BRITTO W/O. JOHN BRITTO, PART-TIME SWEEPER (NOT REGULARIZED), TALUK OFFICE, KOLLAM, KERALA - 69 1 001 2 B. NAHEENA S/O. ABOOBACKER, PART-TIME SWEEPER (NOT REGULARIZED), TALUK OFFICE, KOLLAM, KERALA - 691 001.** **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.122 of 2020 2 **ALEXANDER THOMAS & T.R. RAVI, JJ. -----------------------------------------------O.P.(KAT) No.122 of 2020** [ _Arising out of order dated 22.03.2018 in T.A.No. 4797/2012 of KAT, Ekm. 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 22.03.2018 in T.A.No.4797 of 2012 on the file of the Kerala Administrative Tribunal, Ernakulam Bench (hereinafter referred to as the Tribunal). The petitioners were the respondents before the Tribunal and the respondents were the applicants. 2. Heard Sri B.Vinod, learned Senior Government Pleader on behalf of the petitioners and Sri M.V.Thamban, learned counsel for the respondent. 3. The issue relates to entitlement of the respondents to be O.P.(KAT) No.122 of 2020 3 regularised in service as a Part Time Sweeper. The respondents were engaged as casual sweepers in the Taluk Office Kollam from 20.06.1984 and 01.04.1986 respectively. The sweeping area allotted to them were 204.57 M² and 204.64 M². They approached this Court by filing original petitions O.P.Nos.18615 of 2002 and 23323 of 2002, praying for regularisation and for grant of regular scale of pay. By Ext.P1 judgment dated 05.10.2002, this Court directed the Government to sanction and disburse the salary due to them at the rates applicable to part time contingency employees from time to time and further directed the Government to consider their claims for regularisation. The petitioners were granted pay in regular pay scale thereafter. It is thereafter that G.O.(P)No.501/ 2005/Fin was issued by the Government, on the basis of the decision in **Mercy v. State of Kerala** reported in [2004 (2) KLT 848]. Proposals for regularisation of the respondents were forwarded to the District Collector as per Ext.P6 dated 14.6.2010, along with sweeping area certificates and sketch, with recommendation to create posts of Part-time sweepers in respect of the respondents as well as some others in Kollam West Village office. The District Collector forwarded the proposal to the Government as per Ext.P7 on 16.6.2010. It is also seen from Annexure MA1 certificate O.P.(KAT) No.122 of 2020 4 dated 22.2.2017, that the sweeping area of the Taluk office which is housed in a building with five floors from 25.2.2016, is 2065.15M². After shifting to a new building, the respondents were allotted sweeping area of about 500 M² each, along with 2 other regular parttime sweepers who also were allotted similar area. The respondents also claimed that they are entitled to be sanctioned scale of pay similar to those part-time sweepers sweeping area above 400 M². No reply statements appear to have been filed before the Tribunal, denying any of the above said facts. Since the proposal was already pending before the Government, the Tribunal directed the petitioners 3 and 4 to forward the sweeping area certificates and further directed the 1[st] respondent to pass orders on the proposal within a period of 2 months. The Tribunal directed to consider entitlement of the applicants for regularisation in terms of paragraph 8 of the Government order of 2005 and to release consequential benefits. It is aggrieved by the above order that the petitioners have preferred this original petition. 4. By G.O.(P) No.831/80/Fin. dated 03.11.1980, 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 O.P.(KAT) No.122 of 2020 5 by such part time contingent employees/sweepers. The rates were 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] . The respondents are persons who were appointed thereafter during 1984 and 1986. 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. Both the respondents will come within the said category. 5. 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, the respondents and several other persons approached this Court by way of writ petitions. Original petitions filed by the respondents were disposed of by a learned Single Judge as per O.P.(KAT) No.122 of 2020 6 Ext.P1 judgment, directing the grant of scale of pay applicable to part time contingent employees and further directing the Government to consider their claim for regularisation. The Government issued G.O. (P)No.390/03/Fin. dated 17.07.2003, which said that Part Time Sweepers 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 06.10.2003 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 is more than 100M[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. 6. The original petitions filed by several other similarly situated persons came up for hearing before a learned Single Judge. This Court by the judgment in **Mercy v. State of Kerala** reported in [2004 (2) KLT 848] disposed of a batch of writ petitions with certain O.P.(KAT) No.122 of 2020 7 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 06.10.2003, it is to be calculated as the carpet area, varandah, corridor, staircase and the courtyard, usually swept. It was 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. 7. 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 O.P.(KAT) No.122 of 2020 8 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 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 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 O.P.(KAT) No.122 of 2020 9 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 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. In paragraph 13 of the order it is O.P.(KAT) No.122 of 2020 10 provided that in case of new offices and against vacancies arising in future, part time contingent sweepers are to be employed only after getting names from the Employment Exchange. Paragraph 15 of the order says that in cases where the sweeping area is 800 M[2] but below 900 M[2] , a part time contingent sweeper and a part time sweeper can be engaged and that if the area is more than 900 M[2] , two part time contingent sweepers can be engaged. 8. 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, irrespective of the mode of appointment, shall also be entitled for regularisation based on the sweeping area, provided that their appointments were made on 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 O.P.(KAT) No.122 of 2020 11 the date of appointment was on or before 25.11.2005. 9. Much later, on 05.03.2016, the Additional Chief Secretary of Finance Department issued a Circular to the effect that no proposals for regularisation of Part Time Sweepers will be considered after the date of the Circular. This was followed by the Government order G.O. (P)58/2018/Fin. dated 10.04.2018, whereby it was ordered that wherever Part Time Sweepers are being regularised, it will have effect only from the date of the order, that is, 10.04.2018. We have narrated the entire history of the travails and litigations that the casual sweepers had to go through only for the purpose of highlighting the unjust and irresponsible stand that has been taken by the petitioners in the case on hand. 10. Admittedly, the respondents are persons who were engaged continuously as part-time sweepers in the Taluk Office, Kollam from 1984 and 1986 onwards. They already had a judgment in their favour as can be seen from Ext.P1. They were in service in 2005 and 2010, when GO(P)No.501/2005/Fin. dated 25.11.2005 and the subsequent order G.O.(P)No.61/2010/Fin. dated 09.2.2010 were issued. The Taluk Office had submitted proposal for regularisation as early as in 2010. The respondents were sweeping an area of around 500 M[2] each from 2016 O.P.(KAT) No.122 of 2020 12 onwards. Even earlier, they were sweeping an area of more than 200M[2] . 11. Despite all the above facts, the petitioners have chosen to challenge the order issued by the Tribunal which only directed them to pass orders on the proposal already pending before them. The main and only ground which has been put forth in the original petition is that having regard to Circular No.19/2016/Fin dated 5.3.2016, the respondents are not entitled to the relief granted by the Tribunal. The petitioners even go to the extent of stating that enhancement of sweeping area after the issuance of G.O.(P)No.501/2005/Fin dated 25.11.2005 will not entitle the respondents to claim for creating of a post of part-time sweeper, when admittedly, the sweeping area was much more than 100 M², long before 2005 and the claim of the respondents relates back to prior to even 2003 as can be seen from Ext.P1 judgment. We are constrained to observe that the original petition is nothing but frivolous and amounts to harassing the hapless respondents who have been serving the Government from 1984 and 1986 respectively. 12. No grounds are made out warranting interference by this Court with the order dated 22.03.2018 in TA No.4797/2012 of the O.P.(KAT) No.122 of 2020 13 Tribunal, in exercise of the extraordinary and supervisory jurisdiction under Articles 226 and 227 of the Constitution of India. The time granted by the Tribunal to comply with the directions issued by it has long expired. We allow a further period of 6 weeks from the date of receipt of a certified copy of this judgment for due compliance with the order issued by the Tribunal. The order of the Tribunal stands modified to the above limited extent regarding the time for compliance. The original petition is dismissed. We restrain ourselves from ordering costs. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn O.P.(KAT) No.122 of 2020 14 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1(TA)** **A PHOTOCOPY OF THE TRANSFERRED APPLICATION T. A. NO.4797/2012 ALONG WITH ANNEXURES.** **EXHIBIT P1(TA1) TRUE COPY OF THE COMMON JUDGMENT DATED 05.10.2002 I OP NO.18615/02 (N) AND O.P.NO.23323/2002(B)** **EXHIBIT P1(TA2) TRUE COPY OF THE NO.E2-54966/2002 DATED 11.12.2002 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P1(TA3) TRUE COPY OF THE CERTIFICATE NO.A77915/2002 DATED 13.02.2003.** **EXHIBIT P1(TA4) TRUE COPY OF THE G.O.(P) NO.501/2005/FIN. DATED 25.11.2005.** **EXHIBIT P1(TA5) TRUE COPY OF THE G.O.(P) NO.61/2010/FIN. DATED 09.02.2010. EXHIBIT P1(TA6) TRUE COPY OF THE LETTER NO.A2-223/2006 DATED 14.06.2010. EXHIBIT P1(TA7) TRUE COPY OF THE LETTER NO.E2-62033/2005 DATED 16.06.2010 ALONG WITH THE SWEEPING AREA CERTIFICATES.** **EXHIBIT P1(TA8) TRUE COPY OF THE INTERIM ORDER DATED 11.10.2011 IN W.P.(C) NO.21927/2010 (K)** **EXHIBIT P1(TA9) TRUE COPY OF THE INTERIM ORDER DATED 23.12.2009 IN W.P.(C) NO.37537/2009(J)** **EXHIBIT P2(TA) A PHOTOCOPY OF THE ABOVE MISCELLANEOUS APPLICATION M.A.(EKM) NO.739/2018 ALONG WITH ANNEXURE. EXHIBIT P2 TA(MA1) TRUE COPY OF THE LETTER DATED 22.02.2017 OF THE ASSISTANT ENGINEER, PWD BUILDING SECTION, KOLLAM ALONG WITH THE SWEEPING AREA CERTIFICATE AND THE CALCULATION** O.P.(KAT) No.122 of 2020 15 **SHEET OF TALUK OFFICE, KOLLAM. EXHIBIT P3(TA) A PHOTOCOPY OF THE ORDER DATED 22.03.2018 IN T.A.NO.4797/2012. EXHIBIT P4 A PHOTOCOPY OF THE CIRCULAR NO.19/2016/FIN. DATED 05.03.2016 ISSUED BY THE GOVERNMENT.**