OP(KAT) No.378/2018

OP(KAT)No.378/2018 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.378 OF 2018** **AGAINST THE ORDER IN TA 191/2013 DATED 31-01-2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 TO 3 IN TA:** - **1 STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE DIRECTOR OF PANCHAYAT, THIRUVANANTHAPURAM-01.** - **3 THE DEPUTY DIRECTOR OF PANCHAYAT, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT, PATHANAMTHITTA-01. BY SR.GOVERNMENT PLEADER SRI B. VINOD** ## **RESPONDENTS/APPLICANTS & 4TH RESPONDENT IN TA:** - **1 T.K.KAMALAMMA, PART TIME CASUAL SWEEPER, ARANMULA GRAMA PANCHAYAT, EDAYARAMULA WEST P.O, PATHANAMTHITTA 689532.** - **2 SASI P.K., PART TIME CASUAL SWEEPER, ARANMULA GRAMA PANCHAYAT, EDAYARAMULA WEST P.O., PATHANAMTHITTA-689532.** OP(KAT)No.378/2018 2 **3 THE SECRETARY, ARANMULA GRAMA PANCHAYAT, EDAYARAMULA WEST P.O., PATHANAMTHITTA-689532.** **R1-2 BY ADV. SRI.KALEESWARAM RAJ R1-2 BY ADV. SRI.VARUN C.VIJAY R1-2 BY ADV. KUM.A.ARUNA R1-2 BY ADV. SMT.RIYA RAYMOL IYPE R1-2 BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE R1-2 BY ADV. SMT.K.C.AISHWARYA R3 BY ADV. SRI.S.MUHAMMED HANEEFF R3 BY ADV. SRI.M.H.ASIF ALI** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 23-02-2021, THE COURT ON 09-03-2021 DELIVERED THE FOLLOWING:** OP(KAT)No.378/2018 3 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. ------------------------------------------------** ## **O.P.(KAT) No.378 of 2018** [ _Arising out of order dated 31.01.2017 in T.A.No.191 of 2013 of KAT, Tvm_ ] **--------------------------------------------------** ## **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 _31_ .01.2017 in T.A.No. 191 of 2013, on the file of the Kerala Administrative Tribunal, Thiruvananthapuram (hereinafter referred to as the Tribunal). The petitioners were the respondents before the Tribunal and the respondents 1 and 2 were the applicants. 2. The issue relates to entitlement of the respondents 1 and 2 to be regularised in service as a Part Time Sweepers. Pursuant to directions issued by a learned Single Judge of this Court in its 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 & Ors. v. M.M.Mercy & Ors. (W.A.No.1863** OP(KAT)No.378/2018 4 **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. 3. 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, OP(KAT)No.378/2018 5 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. 4. In the case on hand, the respondents 1 and 2 were being engaged as sweepers on daily wage basis in Aranmula Grama Panchayat from 1998 and 1997 respectively. They had filed W.P. (C)No.24758 of 2008, along with another part time sweeper named P.K.Sajini, seeking regularisation as per GO(P) No.501/2005/Fin. dated 25.11.2005. By Ext.P7 judgment dated 30.03.2009, this Court categorically found that the respondents 1 and 2 are part time sweepers entitled to the benefit of regularisation as per the Government order dated 25.11.2005 and directed the Government to issue final orders regularising the service. The Government thereafter issued Ext.P9 order dated 28.05.2010 finding Smt.P.K.Sajini who was the 1[st] petitioner in W.P.(C)No.24758 of 2008 alone is entitled to be regularised, since she was sweeping the office area and the respondents 1 and 2 who were engaged as market and road sweepers were not entitled to the benefit. The order is issued relying on G.O.(P) No.61/2010/Fin. dated 09.02.2010 wherein under the guise of OP(KAT)No.378/2018 6 clarification of the order dated 25.11.2005, it is stated that the said order will not apply to sweepers engaged for cleaning bus stands, streets, markets, public gardens, etc. The respondents 1 and 2 filed W.P.(C)No.2363 of 2011 challenging the order Ext.P9. The writ petition was transferred to the Tribunal and renumbered as T.A.No.191 of 2013. The Tribunal by Annexure A4 order dated 31.01.2017, allowed the application and directed the 1[st] petitioner to issue appropriate orders directing regularisation of respondents 1 and 2 either in the 4[th] respondent Grama Panchayat office or in other Panchayat offices in the District. The Tribunal specifically found that the 1[st] petitioner was bound by the _inter parte_ judgment Ext.P7 and the benefit granted in the said judgment cannot be taken away by placing reliance on the Government order dated 09.02.2010 issued thereafter. Aggrieved by the order of the Tribunal, the petitioners have filed this original petition. 5. Heard Sri B.Vinod, learned Senior Government Pleader on behalf of the petitioners and Sri Kaleeswaram Raj learned counsel appearing on behalf of respondents 1 and 2. It is contended on behalf of the petitioners that Ext.P7 judgment cannot be understood to be conclusive and that this Court had only directed the Government to OP(KAT)No.378/2018 7 pass appropriate final orders. According to the Senior Government Pleader, the final order Ext.P9 has been hence issued, placing reliance on Ext.P8 order dated 09.02.2010, which clarified that the order dated 25.11.2005 does not apply to persons engaged to sweep the market area, bus stands, public gardens etc. We are not in any manner impressed by the contentions advanced by the petitioners. Firstly, it is not correct to say that Ext.P7 judgment is not conclusive. In paragraph 5 of the judgment it is specifically held that the petitioners therein are entitled for regularisation. This is a declaration made by the Court. It is further held that the contention of the Government that the order dated 25.11.2005 does not apply to the petitioners therein cannot hold good. In paragraph 6 of the judgment it is reiterated by stating that “It is made clear that the petitioners are entitled for the benefit of Ext.P8 Government order dated 25.11.2005”. In the light of the above categoric findings, the petitioners can no longer contend that the respondents 1 and 2 are not entitled to regularisation. 6. In this context, it is brought to our attention that a Single Judge has in the judgment dated 19.12.2016 in W.P.(C)No.16151 of 2010, while directing regularisation of part time sweepers, held that the contention that the Government order dated 25.11.2005 will not apply OP(KAT)No.378/2018 8 to persons engaged to sweep market place and public roads is distressing and that the attitude is very harsh and uncharitable. This court held that no distinction can be drawn between persons who sweep office buildings and persons who sweep public places or markets. The Court further observed that it is the persons who are sweeping public places and market places who are doing a more arduous job. A similar view has been taken by another Single Judge in the decisions dated 5.2.2020 in W.P.(C)No.3866 of 2011 and dated 11.2.2020 in W.P.(C)No.1099 of 2011. We fully agree with the reasonings in the above said judgments and hold that the benefit of regularisation will be available to persons who are engaged to sweep market places, public places, bus stands, streets, public gardens, etc. and that no distinction can be made between such persons and persons who are engaged to sweep office areas. 7. We find no legal reason to upset the orders issued by the Tribunal to the effect that the respondents 1 and 2 are entitled to regularisation. The time granted by the Tribunal to comply with its directions is long over. We hence grant the petitioners a further time of six weeks from the date of receipt of a copy of this judgment, to comply with the directions contained in the order dated 31.1.2017 of the OP(KAT)No.378/2018 9 Tribunal in T.A.No.191 of 2013. The order of the Tribunal stands modified to that extent. The original petition is dismissed subject to the above modification. The parties will bear their respective costs. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn OP(KAT)No.378/2018 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1: TRUE COPY OF WPC No.2362/2011 ALONG WITH EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 20.10.2000** **EXHIBIT P2 TRUE COPY OF THE MUSTER ROLL WITH RESPECT TO THE 1ST PETITIONER** - **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE DATED 12.8.2008** - **EXHIBIT P4 TRUE COPY OF THE MUSTER ROLL WITH RESPECT TO THE 2ND PETITIONER** - **EXHIBIT P5 TRUE COPY OF THE G.O.(P)501/2005/FIN DATED 25.11.2005** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 6.5.2006 ISSUED BY THE 1ST PETITIONER** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 30.3.2009 IN WPC.24758/2008** - **EXHIBIT P8 TRUE COPY OF THE G.O.(P)61/2010 DATED 9.2.2010** - **EXHIBIT P9 TRUE COPY OF THE G.O(RT) NO.1781/2010/LSGD DATED 28.5.2010** - **EXHIBIT P10 TRUE COPY OF THE CIRCULAR DATED 21.12.2010** **ANNEXURE A2: PHOTOCOPY OF COUNTER AFFIDAVIT FILED ON BEHALF OF THE 3RD RESPONDENT. EXHIBIT R3(A): TRUE COPY OF CIRCULAR No.65/2008 DT.28.10.2008.** **ANNEXURE A3: PHOTOCOPY OF ACCEPT PETITION DT.22.8.2012.** OP(KAT)No.378/2018 11 |**EXHIBIT P11**|**TRUE COPY OF THE LETTER DATED 06-06-2012**| |---|---| ||**ISSUED BY THE SECRETARY, SECRETARIAT AOF**| ||**KERALA LEGISLATURE.**| |**EXHIBIT P12**|**TRUECOPY OF THE RESOLUTION DATED**| ||**23.07.2012 ISSUED BY THE PANCHAYAT.**| |**ANNEXURE A4**|**PHOTO COPY OF THE ORDER DATED 31.01.2017**| ||**IN T.A.NO.191/2013.**| |**ANNEXURE A5**|**TRUE COPY OF THE INTERIM ORDER DATED**| ||**29.11.2017 OF THIS HON'BLE COURT IN**| ||**OP(KAT) 470/2017.**|