OP(KAT) No.23 of 2021

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942** ## **OP(KAT).No.23 OF 2021** ## **AGAINST THE ORDER/JUDGMENT IN OA 2894/2017 DATED 13-03-2019 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** - **1 THE MEDICAL OFFICER, GOVT. HOMEO DISPENSARY, DHARMADAM, THALASSERY, KANNUR670661.** - **2 THE DISTRICT MEDICAL OFFICER, GOVERNMENT HOMEO DISPENSARY, CIVIL STATION, KANNUR-670002.** - **3 THE DIRECTOR HOMEO, DIRECTORATE OF HOMOEOPATHY, THIRUVANANTHAPURAM-695001.** **4 THE SECRETARY TO GOVERNMENT, AYUSH DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM695001.** **BY GOVERNMENT PLEADER** ## **RESPONDENT/S:** **1 SHYJA P. W/O. SANIL, RESIDING AT VAYALILVEEDU, PO MELOOR, VIA PALAYAD, THALASSERY, KANNUR DISTRICT, PART TIME CASUAL SWEEPER, HOMEO DISPENSARY, DHAMADAM, THALASSERY, KANNUR, KERALA-670661.** **2 MR. SREEDHARAN CHANNAPOY, AGED 48 YEARS S/O. KELAPPAN, PART TIME SWEEPER, OFFICE OF THE HOMEO DISPENSARY, DHARMADAM, KERALA-670661.** **R2 BY ADV. SMT.M.M.DEEPA R2 BY ADV. SMT.P.MAYA** ## **OTHER PRESENT:** **SRI.ANTONY MUKKATH, SR.GP, SRI.C.K.SREEJITH FOR R1, SMT.M.M.DEEPA FOR R2** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 28.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No.23 OF 2021** **2** # **ALEXANDER THOMAS, J. & T.R.RAVI, JJ.** ## **-----------------------------------------** **O.P.(KAT) No. 23 of 2021** _(arising out of order dated 13.3.2019 in O.A.No.2894/2017 of the KAT, TVM Bench)_ ## **--------------------------------------------------------Dated this the 28[th] day of January, 2021** ## **JUDGMENT** The prayers in the aforecaptioned OP(KAT) filed under Articles 226and 227 of the Constitution of India are as follows (See page 10 of this paper book) : _“....to set aside Ext.P7 orders in OA(E) No. 2894/2017 on the file of Kerala Administrative Tribunal by allowing this original petition.”_ 2. Heard Sri.Antony Mukkath, learned senior Government Pleader appearing for the petitioners in the OP/respondents 1 to 4 in the OA, Sri. C.K.Sreejith, learned counsel appearing for R1 in the OP/original applicant before the Tribunal and Smt. M.M.Deepa, learned counsel appearing for R2 in the OP/additional R5 in the OA. 3. R1 herein (original applicant) had filed Ext.P1 original application O.A.(Ekm) No.2894/2017 before the KAT, Ernakulam bench with the following prayers (See page 21 of this paper book) : _i. “Issue direction directing the 1[st] respondent too formed necessary proposal to the 3[rd] respondent to create a post of part time sweeping considering the present sweeping area. i. Issue direction directing the 3[rd] respondent to regularise the petitioner as part time sweeper in the Govt. Homeo Dispensary, Meloor with back wages. ii. Issue any other relief that this Hon'ble Court may deem fit to grant in the facts and circumstances of the case for the interest of justice.”_ **OP(KAT).No.23 OF 2021** **3** 4. The Tribunal after hearing both sides, has rendered the impugned Ext.P7 final order dated 13.3.2019 in OA (Ekm) No.2894/2017 allowing the main prayers of the applicant and directing that the applicant who is a casual sweeper, should be regularised in service as the sweeping area of the office premise in question had subsequently got increased to be about the minimum threshold level of 100 sq.mtrs. It is this order at Ext.P7 that is under challenge in this original petition. 5. It is common ground that the original applicant was initially employed and engaged as casual sweeper in the office of R1 in the OA (1[st] petitioner) viz., Medical Officer, Govt.Homeo Dispensary, Dharmadam, Thalassery, Kannur with effect from 9.7.2004 and was intermittently working upto June 2006 and was later continuously working in that capacity from August 2006 to June 2007. Thereafter, he was working from March, 2007 to January 2009 and thereafter, has been continuing since September 2012. It is also the admitted case of the respondents in the OA that she has been duly paid the admissible remuneration for the periods in question. The details of the abovesaid aspects are also discernible from the contents of Annexrure-A6 letter dated 10.8.2017 issued by the R1 in the OA as well as in the pleadings in Ext.P4 dated April, 2018 filed by the respondents in the OA before the Tribunal. 6. It is also common ground that the sweeping area of the office premise in question, where the petitioner has been engaged as part time sweeper **OP(KAT).No.23 OF 2021** **4** had not attained the minimum threshold level of 100 sq.mtrs. either as on the date of issuance of the primary Government order involved in this case viz., GO (P) No. 501/2005/Fin dated 25.11.2005 as well as the subsequent Government order issued in that regard confirming certain additional rights to part time sweepers as made out in GO(P) No. 61/2010/Fin dated 9.2.2010. It is also common ground that the sweeping area in question had attained the minimum threshold level of 100 sq.mtrs and above only later as discernible from the certificate dated 24.11.2017 issued by the Asst.Engineer, PWD Building section in accordance with the guidelines contained in the Appendix appended to GO(P) No. 501/2005/Fin dated 25.11.2005. The respondents in the OA have taken up the contention that since the sweeping area of the office premises, where the original applicant has been employed have not attained the minimum threshold level of 100 sq.mtrs or above either at the time of the issuance of the GO(P) dated 25.11.2005 or as on the date of issuance of the subsequent GO(P) dated 9.2.2010 and the sweeping area had attained the minimum threshold level, only subsequently, he is not entitled for regularisation in terms of the Government orders governing the norms and hence, they decided to make a regular selection afresh by taking resort to the employment exchange process. In that regard, the requisition was send by the competent authority among the respondents to the employment exchange concerned, which led to the sponsoring of the name of the respondent No.2 **OP(KAT).No.23 OF 2021** **5** herein/additional respondent No.5 in the OA. It appears that on account of the interim orders passed in the Tribunal, the additional respondent No.2 has not been actually given any appointment and the original applicant has also not been terminated from service and he has continued in service all along. 7. The Tribunal as per the impugned Ext.P7 order dated 13.3.2019 has taken the view that a casual sweeper like the applicant is entitled to get regularisation at least from the day on which the sweeping area attains minimum threshold level of 100 sq. mtrs above, provided the person concerned otherwise fulfill the eligibility norms in the abovesaid GO(P) dated 25.11.2005 and GO(P) dated 9.2.2010. Being aggrieved by the said impugned Ext.P7 final order that the petitioners herein/official respondents in the OA have initiated the present proceedings by way of judicial review and superintendence by invoking the extraordinary discretionary powers conferred in this case under Articles 226 and 227 of the Constitution of India. 8. Based on the directions issued by this Court in a series of judgments as in the judgment dated 18.6.2004 in W.P.(C.) No.30927/2003 and many connected cases, the competent authority of the Government in the Finance Department has issued GO(P) No. 501/2005/Fin dated 25.11.2005 for effectuating the considered policy decision taken by the State Government to implement and comply with the directions of this Court in **OP(KAT).No.23 OF 2021** **6** the abovesaid Writ Petitions mentioned hereinabove. 9. It has been ordered in para No.8 of the said GO(P) dated 25.11.2005 that where the casual sweepers have been employed as on or prior to the said GO(P) dated 25.11.2005 and the sweeping area exceeds the minimum threshold level of 100 sq.mtrs. as on the date of issuance of the said GO, 25.11.2005, then they are entitled for regularisation and the sweeping area will have to be calculated and computed strictly in accordance with the guidelines and norms contained in the Appendix of the said GO(P) dated 25.11.2005. It has also been _inter alia_ ordered in Para No.8 thereof that for such regularisation, posts shall be created with effect from the date of appointment of the incumbent as casual sweeper or from 18.6.2001 (3 years preceding the date of the abovesaid common judgments dated 18.6.2004 of this Court, referred to as item No.10 of the said GO(P) dated 25.11.2005, whichever is later etc.) 10. Later, the competent authority of the State Government in the Finance Department has issued GO(P) No.61/2010/Fin dated 9.2.2010 noting that as per the conditions stipulated in the abovesaid GO(P) dated 25.11.2005, those casual sweepers, who are working on daily wages and those working in offices having sweeping area below 100 sq.mtrs are not eligible for regularisation and that a number of such casual sweepers are not benefited by the abovesaid policy decision contained in the said GO(P) dated 25.11.2005 and it has been _inter alia_ ordered in para No.3(i) of the **OP(KAT).No.23 OF 2021** **7** said GO(P) dated 9.2.2010 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 defined in the GO(P) dated 25.11.2005 provided their appointments are made on or before the issuance of the GO(P) dated 25.11.2005 and are continuing as such on the date of this order and that the regularisation will have effect from the date of the said latter GO(P) dated 9.2.2010. 11. Hence, in the case of a sweeper, who was in service as on the date of issuance of the GO(P) dated 25.11.2005 and when the sweeping area in question had exceeded the minimum threshold level of 100 sq.mtrs., then such an incumbent was entitled for regularisation on the basis of the said GO(P) dated 25.11.2005. In the case of those sweepers, who were in service as on 25.11.2005 and the sweeping area of their premises had not attained the minimum threshold level of 100 sq.mtrs and it was only subsequently enhanced as on the issuance of the subsequent latter GO(P) dated 9.2.2010, then such sweepers should also get the benefit of regularisation service from 9.2.2010 onwards. In the instant case, there is no serious dispute that the petitioner has been engaged as a sweeper in the Government office concerned prior to the cut off date of 25.11.2005 and the sweeping area of the office premise in question has not attained the minimum threshold level of 100 sq. mtrs either as on the date of issuance of the GO(P) dated 25.11.2005 or as on the date of issuance of the latter **OP(KAT).No.23 OF 2021** **8** GO(P) dated 9.2.2010, but had attained the minimum threshold level only later. 12. The case of such a person for regularisation based on the abovesaid Government norm has been the subject matter of consideration of the Division Bench of this Court in quite a number of cases. One such decision rendered by the Division Bench of this Court is the judgment dated 18.1.2019 in OP(KAT) No. 26 of 2019 in the case _**State of Kerala and others v. Annam David**_ (reported in Manu/KE/1641/2019). It will be profitable to refer to para Nos. 5 and 6 of the aforementioned judgments dated 18.1.2019 in the Division Bench of this Court in OP(KAT) No. 26 of 2019 which reads as follows : _5. “On the basic fact there is no dispute at all. The fact that but for the break in service occurred on 15.6.2005 the respondent has been in continuous service in the 4th respondent's office, on casual basis from 1.10.2002. Though the sweeping area in the office concerned was less than 100 Sq.m with the renovation of the office in the year 2014, there occurred an increase in the sweeping area and it became 124.164 sq.ms. Taking into account the said circumstances, the 4th respondent forwarded a proposal for creation of posts and also recommended for the regularisation of the respondent in service. It is the delay on the part of the competent authority despite receipt of such proposal to consider the claim of the respondent for regularisation that constrained her to file the above mentioned Original Application, which culminated in the impugned order._ _6. A perusal of the impugned order would reveal that all the relevant aspects were taken into consideration by the Tribunal. The relevant Government Order dated 25.11.2005 carrying the guidelines for sanctioning of posts and also for regularising the casual/daily wage employees engaged in various offices was evidently taken into account by the Tribunal. Therefore, essential question is whether, solely because the sweeping area was below 100 sq.m till 2014, the respondents could hold it out to be a reason to deprive the benefit flowing from the said G.O dated 25.11.2005, to the petitioner. When the admitted position is that subsequent to the renovation of the office in question there occurred an increase in the sweeping area and thereby it became 124.164 Sq.m, cannot be ignored while considering that question. The Tribunal after considering the rival contentions had arrived at the conclusion that it could not be assigned as a reason for granting the benefit to the petitioner. Evidently, it was based on such consideration that the Tribunal found the respondent eligible for regularisation in terms of the said G.O dated 25.11.2005 and also the benefit of the subsequent G.O(P)No.61 of 2010 dated 9.2.2010. It is an interpretation beneficial to the_ **OP(KAT).No.23 OF 2021** **9** _employee and it cannot be taken as a perverse or absurd interpretation considering the object behind issuance of the aforesaid Government Orders. We do not find any reason to hold that the Tribunal had erred in arriving such a conclusion. We also got no hesitation to hold that the said conclusion is nothing but the culmination of the rightful consideration. The directions issued thereafter is a necessary sequel of such conclusion. In the said circumstances, we do not find any reason to interfere with the order passed by the Tribunal in O.A.No.1465 of 2017. As per the impugned order the Tribunal granted two months time from the date of receipt of a copy of the judgment, for complying with the directions thereunder. The said time limit stands extended by two months from the date of receipt of a copy of this judgment. Subject to the above, this Original Petition is dismissed.”_ 13. It can be seen from a reading of the abovesaid judgment in OP(KAT) No. 26 of 2019 that the Division Bench has ordered that a sweeper in such a case would get the right to be regularised from the day on which the sweeping area has attained the minimum threshold level of 100 sq.mtrs. and above. In the said case, the sweeping area in question was below 100 sq.mtrs. till 2014 and it was only in the year 2014 that the sweeping area got enhanced to 124.164 sq.mtrs. This Court has consistently followed the said view in similar cases. 14. In the instant case, there is no serious dispute that the applicant was employed as sweeper in the Government office concerned as on the date of issuance of the GO(P) dated 25.11.2005 and the sweeping area had not attained the minimum threshold level either as on 25.11.2005 or as on 9.2.2010 and had attained the minimum threshold level of 100 sq.mtrs and above only subsequently as can be seen from the certificate dated 24.11.2017 issued by the Asst. Engineer, PWD Building Section in terms of the guidelines and norms contained in the appendix to the GO(P) dated 25.11.2005 where it has been certified that the sweeping area in question **OP(KAT).No.23 OF 2021** **10** has become 143.12 sq.mtrs. 15. This aspect of the matter is clearly admitted in para No.3 of the pleadings submitted by the respondents in the OA before the Tribunal as given at Ext.P4. (See page No.47 of this paper book). 16. However, from the pleadings on both sides, it is not clear as to when exactly the sweeping area had become 143.12 sq.mtrs. That is a question of fact to be ascertained by the competent authority concerned. In the light of these aspects, the Tribunal cannot be found fault with for having issued the impugned directions in the abovesaid as per Ext.P7. The competent authority among the petitioners may ascertain as to well exactly the sweeping area in question had become 143.12 sq.mtrs. as shown in the certificate dated 24.11.2017 and if the said precise date is not ascertainable, then alone the date of regularisation may be reckoned as 24.11.2017 for the sake of convenience. If as a matter of fact, the precise date of attainment of the sweeping area as 143.12 sq.mtrs could be ascertained and if the same is prior to 24.11.2017, then the date of regularisation should be from such date. 17. The upshot of the above discussion is that the Tribunal has not committed any illegality or unreasonableness in rendering the impugned Ext.P7 final order and the matter does not require any interdiction at the hands of this Court in exercise of the powers of the judicial review and superintendence. However, taking note of the fact that the impugned **OP(KAT).No.23 OF 2021** **11** Ext.P7 final order has been rendered by the Tribunal on 13.3.2019 and as the present OP(KAT) has been filed before this Court on 13.1.2021, it is ordered that the directions rendered by the Tribunal in favour of the original applicant should be implemented and complied with by the competent authority of respondents, without any further delay, at any rate, within an outer time limit of 2 months from the date of production of a certified copy of this judgment. 18. The Secretary to the office of the Advocate General will ensure that copies of this judgment are forwarded to all the petitioners for necessary action. With these observations and directions, the above original petition will stand dismissed. **sd/ALEXANDER THOMAS, JUDGE** **sd/T.R.RAVI JUDGE** SKS **OP(KAT).No.23 OF 2021** **12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE O.A(EKM) NO.2894/2017**| |---|---| ||**ALONG WITH ANNEXURES.**| |**ANNEXURE A1**|**THE TRUE COPY OF THE SWEEPING AREA**| ||**CERTIFICATE ISSUED BY THE ASSISTANT**| ||**EXECUTIVE ENGINEER, PWD BUILDING SUB**| ||**DIVISION, THALASSERY DATED 13.8.2007.**| |**ANNEXURE A2**|**THE TRUE COPY OF THE FULLY VOUCHED**| ||**CONTINGENT BILL NO.17/2004-2005 ISSUED BY**| ||**THE HOMEO DISPENSARY, DHARMADAM.**| |**ANNEXURE A3**|**THE TRUE COPY OF THE BILL NO.21/2005-2006**| ||**ISSUED BY THE HOMEO DISPENSARY, DHARMADAM.**| |**ANNEXURE A4**|**THE TRUE COPY OF THE FULLY VOUCHED**| ||**CONTINGENT BILL NO.17/2006-2007 ISSUED BY**| ||**THE HOMEO DISPENSARY, DHARMADAM.**| |**ANNEXURE A5**|**TRUE COPY OF THE FULLY VOUCHED CONTINGENT**| ||**BILL NO.31/08-09 FOR THE MONTH OF 1/2009**| ||**ISSUED BY THE HOMEO DISPENSARY, DHARMADAM.**| |**ANNEXURE A6**|**TRUE COPY OF THE LETTER ISSUED BY THE**| ||**MEDICAL OFFICER, HOMEO DISPENSARY,**| ||**DHARMADAM.**| |**ANNEXURE A7**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**30.10.2017.**| |**EXHIBIT P2**|**A TRUE COPY OF THE M.A.NO.480/2018.**| |**EXHIBIT P3**|**TRUE COPY OF THE REPLY STATEMENT OF THE 1ST**| ||**RESPONDENT IN O.A.(EKM) 2894/2017.**| |**EXHIBIT P4**|**TRUE COPY OF THE M.A.(EKM) NO.1833/2018 FOR**| ||**VACATING THE INTERIM ORDER DATED 23.3.2018.**| |**EXHIBIT P5**|**A TRUE COPY OF THE M.A.(EKM) NO.1587/2018.**| |**EXHIBIT P6**|**A TRUE COPY OF THE REPLY STATEMENT FILED BY**| ||**THE 5TH RESPONDENT ALONG WITH ITS**| ||**ANNEXURES.**| |**ANNEXURE R5(A)**|**TRUE COPY OF THE CALL LETTER BEARING**| ||**NO.EBI-2837/2016/D.OK DATED 28.1.2018**| ||**ISSUED BY THE DISTRICT MEDICAL OFFICER**| ||**(HOMEO) KANNUR.**| **OP(KAT).No.23 OF 2021 13** |**ANNEXURE R5(B)**|**TRUE COPY OF THE ORDER NO.ERI/2837/2016/DOK**| |---|---| ||**DATED 17.2.2018 ISSUED BY THE DISTRICT**| ||**MEDICAL OFFICER.**| |**ANNEXURE R5(C)**|**TRUE COPY OF THE COMMUNICATION**| ||**NO.EBI/2837/2016/DOK DATED 27.2.2018 ISSUED**| ||**BY THE DISTRICT MEDICAL OFFICER.**| |**EXHIBIT P7**|**TRUE COPY OF THE ORDER DATED 13.3.2019 IN**| ||**O.A.(EKM) NO.2894/2017.**|