OP(KAT) No.272/2018 (Z)

OP(KAT)No.272/2018 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.272 OF 2018(Z)** **AGAINST THE ORDER DT.2.11.2017 IN OA 544/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN OA:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695 001.** - **2 DIRECTOR OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM.** - **3 PRINCIPAL AGRICULTURAL OFFICER, PALAKKAD, DISTRICT-678 001.** ## **BY SR.GOVERNMENT PLEADER SRI B.VINOD** ## **RESPONDENT/APPLICANT IN OA:** **K.HARIDASAN,** **S/O KRISHNAN, PART TIME SWEEPER, OFFICE OF THE AGRICULTURE OFFICER, KRISHI BHAVAN, ELAPULLY, PALAKKAD , RESIDING AT CHORAKKAPALLAM, VENGODI (PO), PALAKKAD. KERALA.** ## **BY ADV. SRI.U.BALAGANGADHARAN** **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.272/2018 2 ## **ALEXANDER THOMAS & T.R. RAVI, JJ.** ## **------------------------------------------------** ## **O.P.(KAT) No.272 of 2018** [ _Arising out of order dated 02.11.2017 in O.A.(Ekm)No.544 of 2017 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 02.11.2017 in O.A. (Ekm)No.544 of 2017 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram Bench (hereinafter referred to as the Tribunal). The petitioners were the respondents before the Tribunal and the respondent was the applicant. 2. Heard Sri B.Vinod, learned Senior Government Pleader appearing on behalf of the petitioners and Sri U.Balagangadharan, learned counsel for the respondent. 3. The issue relates to entitlement of the respondent to be regularised in service as a Part Time Sweeper. Pursuant to the directions issued by a learned Single Judge of this Court in its OP(KAT)No.272/2018 3 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 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. OP(KAT)No.272/2018 4 4. 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 or before the issuance of the Government order dated 25.11.2005. 5. In the case on hand, the respondent was admittedly engaged continuously as part-time sweeper on daily wages in Krishi Bhavan, Elappully in Palakkad district from 1987 onwards. The sweeping area was admittedly less than 100 M[2] in 2005 and it was later increased when the office was shifted to a larger premises. As per Annexure A2 dated 10.06.2016, the sweeping area was certified as 126.85 M² by the Assistant Engineer, PWD, Palakkad. According to the petitioners, as per circular No.19/2016/Fin. dated 05.03.2016, the Government has decided not to entertain proposal for regularisation of existing casual sweeper with effect from 05.03.2016. The Tribunal on the admitted fact that the area had exceeded 100 M[2] subsequently, held that the applicant is eligible for regularisation on creation of the post of regular part-time sweeper in the office, as and when the sweeping area OP(KAT)No.272/2018 5 exceeded 100 square metres. Apart from relying on the reasonings adopted by the Tribunal, the learned counsel for the respondent also relied on the decision of a learned Single Judge in **Leela Amma v. Managing Director, KSHD Corporation Ltd and Ors.** reported in [2014 (4) KHC 831], wherein this Court had held that a person who was temporarily appointed as a part-time sweeper in a public sector undertaking and continued in service for 25 years was entitled to be regularised in service. 6. This Court has considered similar issues in several cases and has held that in cases of existing casual sweepers who were sweeping area less than 100 M[2] and where the sweeping area increased subsequent to the issuance of G.O.(P) No.501/2005/Fin. dated 25.11.2005, they were entitled to be regularised with effect from the date on which the sweeping area exceeded 100 M[2 ] . 7. In the judgment dated 18.01.2019 in O.P.(KAT) No.26 of 2019, a Division Bench of this Court held in paragraph 6 as follows:- _“6. ….. …. Therefore, essential question is whether, solely because the sweeping area was below 100 sq.m till 2014, the respondent 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_ OP(KAT)No.272/2018 6 _that it could not be assigned as a reason for not 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 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 nothing but the culmination of the rightful consideration. ….. ….”_ 8. We are in complete agreement with the reasoning adopted by the Division Bench in the above referred case. We find that the respondent was being engaged from 1987 onwards. Going by the judgment in **Mercy'** s case (supra) [2004 (2) KLT 848], persons like the respondent were entitled to continue in service. Such a right was recognised in G.O.(P)No.501/2005/Fin dated 25.11.2005 as well. The subsequent order G.O.(P)No.61/2010/Fin dated 09.02.2010 also directed that all existing sweepers, irrespective of the mode of appointment, shall also be entitled for regularisation based on the sweeping area, provided that their appointments were made before the issuance of the Government order dated 25.11.2005. The circular issued in 2016 cannot take away in any manner, the rights that have been granted to a casual sweeper as per the Government orders referred above. The petitioners have not made out any grounds OP(KAT)No.272/2018 7 warranting an interference with the order dated 02.11.2017 issued by the Tribunal in O.A.(Ekm)No. 544 of 2017. The time granted by the Tribunal for complying with its directions have long ended. We hence grant the petitioners, a further period of 6 weeks from the date of receipt of a copy of this judgment, for complying with the directions issued by the Tribunal. Modifying the order dated 02.11.2017 in O.A.(EKM) 544 of 2017, to the above extent, the original petition is dismissed. The parties will bear their respective costs. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn OP(KAT)No.272/2018 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE O.A (EKM) NO 544/2017 ALONG WITH ANNEXURES.** - **ANNEXURE A1 TRUE COPY OF THE SCHOOL ADMISSION REGISTER EXTRACT ISSUED BY THE HEAD MASTER GLP SCHOOL, VENGODI DATED 9.6.1981** - **ANNEXURE A2 TRUE COPY OF THE COMMUNICATION FROM THE ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT, PALAKKAD DATED 10.6.2016 ALONG WITH THE CALCULATION SHEET, SKETCH PREPARED BY ASSISTANT ENGINEER.** - **ANNEXURE A3 TRUE COPY OF THE JUDGMENT DATED 3.12.2003 PASSED BY THIS COURT IN WPC NO 38075/2003** - **ANNEXURE A4 TRUE COPY OF THE GO(P) NO 501/2005/FIN DATED 25.11.2005** - **ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED 25.1.2017 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT** - **ANNEXURE A6 A TRUE COPY OF THE JUDGMENT REPORTED AS 2014 (4) KHC 831.** - **EXHIBIT P2 PHOTOCOPY OF THE ORDER DATED 2.11.2017 IN OA (EKM) NO 544/2017** - **EXHIBIT P3 TRUE COPY OF THE CIRCULAR NO 19/2016/FIN DATED 5.3.2016**