OP(KAT) No.332/2020

OP(KAT)No.332/2020 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.332 OF 2020** **AGAINST THE ORDER IN TA 5085/2012 DATED 25-10-2018 OF KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM** ## **PETITIONERS/RESPONDENTS 1 TO 4:** **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE REVENUE (T), DEPARTMENT, THIRUVANANTHAPURAM, KERALA 2 THE DISTRICT COLLECTOR KOTTAYAM, KERALA** - **3 THE VILLAGE OFFICER PEROOR VILLAGE OFFICE, KOTTAYAM DISTRICT, KERALA** - **4 THE VILLAGE OFFICER VELOOR VILLAGE OFFICE, KOTTAYAM DISTRICT, KERALA.** **BY SR. GOVERNMENT PLEADER SRI B. VINOD, RESPONDENTS/APPLICANTS 1 AND 2:** **1 ANNAMMA U.C., VARUVAKULAM, PEROOR P.O, KOTTAYAM, DISTRICT -686637 (PARK -TIME CASUAL SWEEPR AT PEROOR VILLAGE OFFICE, KOTTAYAM)** |**2**|**ITTIAVARA N.T,AGED 51 YEARS**| |---|---| ||**KALARIKKAL, VELOOR P.O,**| ||**KOTTAYAM DISTRICT-686003,**| ||**(PART-TIME CASUAL SWEEPER AT VELOOR VILLAGE OFFICE,**| ||**KOTTAYAM), KERALA.**| **R1-2 BY ADV. SRI.K.JAJU BABU (SR.) R1-2 BY ADV. SMT.M.U.VIJAYALAKSHMI R1-2 BY ADV. SRI.BRIJESH MOHAN** **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.332/2020 2 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. ------------------------------------------------** ## **O.P.(KAT) No.332 of 2020** [ _Arising out of order dated 25.10.2018 in T.A.No. 5085 of 2012 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 25.10.2018 in T.A.No.5085 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. The respondents herein were working as casual sweepers in the Village Offices at Peroor and Veloor in Kottayam District from 1986 continuously. They along with some others had filed W.P.(C)No.8274 of 2003 before this Court seeking salary in the scale of pay applicable to part time sweepers. This Court allowed the writ petitions by Ext.P2 judgment directing to disburse the salary at the rates provided in the OP(KAT)No.332/2020 3 Government order dated 25.11.1998. Ext.P2 judgment was challenged by the Government in W.A.No.95 of 2005, which was disposed of along with several other appeals by judgment dated 12.8.2005 with certain modifications. The respondents submit that thereafter the sweeping area was measured and found to be 152 M[2] and 147 M[2] in the case of the respondents 1 and 2 respectively and that they are hence eligible for the reliefs prayed for. However, after issuance of G.O. (P)No.501/2005/Fin. dated 25.11.2005, it was found that the sweeping area was below 100 M[2] when measured according to the guidelines contained therein. However, even if regularisation cannot be granted to the respondents, they claimed that they were entitled to the protection of pay contained in clause 11 of the above Government order dated 25.11.2005. In the meanwhile, a learned Single Judge of this Court had in its judgment dated 17.3.2007 in **Sujatha K and Ors. v. District Collector & Ors. (W.P.(c)No.19186 of 2005)** held that the benefit of G.O.(P)No. 501/2005/Fin. dated 25.11.2005 is available to casual sweepers as well. The respondents herein thereupon filed W.P. (C)No.9338 of 2008, for a direction to the petitioners to disburse the remuneration in parity with the regular part time sweepers, in the light of the judgment of this Court in W.P.(c)No.19186 of 2005 and in terms OP(KAT)No.332/2020 4 of clause 11 of G.O.(P)No.501/2005/Fin. dated 25.11.2005. By Ext.P4 judgment dated 9.4.2008 the above writ petition was disposed of directing the respondents therein to consider and pass orders on the representations submitted by the respondents. However, by Ext.P1 order dated 30.9.2008, the claim of the respondents were rejected by the petitioners stating that the sweeping area was less than 100 M[2] and that the respondents had not earlier been sanctioned regular pay based on any court orders. The respondents challenged the above order in W.P.(C)No.3324 of 2010 before this Court which was transferred to the Tribunal and renumbered as T.A.No. 5085 of 2012. 3. By G.O.(P) No.831/80/Fin. dated 3.11.1980, the Government had revised the remuneration payable to part time contingent workers, based on the area to be cleaned by the part time contingent employees/sweepers. 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. 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. OP(KAT)No.332/2020 5 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. Several writ petitions were filed before this Court seeking the benefits of the pay revision as well as protection against termination of service. In the meanwhile, 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 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 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. 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 directing that the sweeping area with regard OP(KAT)No.332/2020 6 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 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. Appeals filed against the above judgment were disposed of by a Division Bench of this Court 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 issued pending the appeals as 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 OP(KAT)No.332/2020 7 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 11 of the Government order deals with cases where the sweeping area on re-measurement, 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 OP(KAT)No.332/2020 8 post shall be filled up only by a casual sweeper, by paying Rs.600/- per month. 5. Admittedly, the respondents were continuing in service from 1986 onwards. It is not disputed that by Ext.P2 judgment, this Court had already held that the respondents are entitled to pay parity and directed to disburse the arrears of pay. This was even before G.O. (P)No.501/2005/Fin dated 25.11.2005. The only reason stated in Ext.P1 for denying the benefit to the respondents is that the sweeping area was less than 100 M[2] and that the respondents had not been sanctioned regular pay as per any court orders. In the circumstances, the Tribunal has allowed the original application, set aside Ext.P1 order and directed the petitioners to refix the pay of the respondents in accordance with the directions contained in Ext.P2 judgment and provide the benefits of the government order dated 25.11.2005. 6. We do not find any reason to interfere with the well considered order issued by the Tribunal. The failure of the petitioners to pass consequential orders in terms of Ext.P2 judgment of this Court cannot be taken as a defence to deny the benefits as stated in Ext.P1. When there is already a court order declaring the right of the respondents, the petitioners were bound to grant the respondents the OP(KAT)No.332/2020 9 regular pay applicable to part time sweepers and continue to do so whenever the pay is revised. 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 25.10.2018 in T.A.No.5085 of 2012. With the above modification of the order of the Tribunal, the original petition is dismissed. The parties will suffer their respective costs. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn OP(KAT)No.332/2020 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **ANNEXURE A1** **A PHOTOCOPY OF THE TRANSFERRED APPLICATION T.A NO.5085/2012 ALONG WITH ANNEXURES.** - **EXHIBIT P1 THE TRUE COPY OF THE G.O(Rt) NO.3098/2008/RD DATED 30.09.2008 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P2** - **THE TRUE COPY OF THE JUDGMENT DATED 02.06.2003 IN OP NO. 8274/2003.** - **EXHIBIT P3 THE TRUE COPY OF THE G.O(P) NO.501/2005/Fin DATED 25.11.2005 ISSUED BY THE GOVERNMENT.** - **EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT DATED 09.04.2008 IN WP(C0 MO.9838/2008.** - **EXHIBIT P5 THE TRUE COPY OF THE REPRESENTATION DATED 07/11/2008 PREFERRED BY THE PETITIONERS.** - **ANNEXURE A2 THE TRUE COPY OF THE MA NO.2229/2018** - **ANNEXURE MA1 THE TRUE COPY OF THE SWEEPER AREA CERTIFICATE OF THE 1ST APPLICANT IN THE SA ISSUED BY THE 3RD RESPONDENT (AS PER IN MA. (EKM) NO. 2229/2018).** - **ANNEXURE-MA2 THE TRUE COPY OF THE SWEEPER AREA CERTIFICATE OF THE 1ST APPLICANT IN THE SA ISSUED BY THE 4TH RESPONDENT (AS PER IN MA, (EKM) N0.2229/2018)** - **ANNEXURE -MA 3 THE TRUE COPY OF THE INFORMATION DATED 09.08.2018 UNDER THE RTI ACT 2005 (AS PER IN MA, (EKM) N0.2229/2018)** - **ANNEXURE A3 A TRUE PHOTOCOPY OF THE SWEEPING AREA CERTIFICATE ALONG WITH SKETCH OF THE 3RD PETITIONER'S VILLAGE OFFICES ISSUED BY** OP(KAT)No.332/2020 11 **THE ASSISTANT ENGINEER, PWD, KOTTAYAM.** **ANNEXURE-A4 THE TRUE COPY OF THE SWEEPING AREA CERTIFICATES ALONG WITH SKETCH OF THE 4TH PETITIONER'S VILLAGE OFFICES ISSUED BY THE ASSISTANT ENGINEER, PWD, KOTTAYAM.** **ANNEXURE A 5 A PHOTOCOPY OF THE ORDER DATED 25.10.2018 IN T.A NO.5085/2012.**