OP(KAT) No.382/2020 (State of Kerala & Ors. v. P. Chandrika)

OP(KAT)No.382/2020 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.382 OF 2020** **AGAINST THE ORDER IN OA 1559/2018 DATED 16-01-2020 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 AND 2 IN OA:** **1 STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT,GOVT.SECRETARIAT, THIRUVANANTHAPURAM,PIN - 695 001. 2 THE DEPUTY DIRECTOR OF PANCHAYATS, CIVIL STATION KUDAPPANAKUNNU, THIRUVANANTHAPURAM,PIN-695 043.** **BY SR. GOVERNMENT PLEADER SRI B.VINOD RESPONDENTS/APPLICANT/3RD RESPONDENT IN OA:** **1 P.CHANDRIKA, AGED 57 YEARS,W/O.VIJAYAN, PARAKUKALIL VEEDU, MADALKONAM,PACHA P.O., NANNIYODE,THIRUVANANTHAPURAM,PIN-695 562. EMPLOYED AS PART TIME SWEEPER, NANNIYODE GRAMA PANCHAYAT, THIRUVANANTHAPURAM,PIN-695 562. 2 THE SECRETARY, NANNIYODE GRAMA PANCHAYAT, NANNIYODE,THIRUVANANTHAPURAM, PIN-695 562.** **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.382/2020 2 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. -----------------------------------------------O.P.(KAT) No.382 of 2020** [ _Arising out of order dated 16.01.2020 in O.A.No. 1559 of 2018 of KAT, Tvm Bench_ ] **--------------------------------------------------** **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 16.1.2020 in O.A.No. 1559 of 2018, 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 1[st] respondent was the applicant. 2. The issue relates to entitlement of the 1[st] 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 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.382/2020 3 **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.382/2020 4 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 1[st] respondent was being engaged as part time sweeper in Nanniyode Grama Panchayat from 1996 onwards to sweep the Panchayat roads which comes to more than 6000 M[2] . The above aspect is evidenced by Annexure A1 report dated 13.01.2016 prepared by the Assistant Engineer. Earlier, on 26.11.2015, the Deputy Director of Panchayat had written to the Secretary of Nanniyode Grama Panchayat for submitting a proposal for regularisation of the 1[st] respondent. The Panchayat had on 02.11.2016 requested the Government for orders regularising the 1[st] respondent as part time sweeper. When no action was being taken, the 1[st] respondent approached the Tribunal filing O.A.No.1559 of 2018. The petitioners filed reply statement contending that the 1[st] respondent was not entitled to regularisation since by Government order dated 09.02.2010 it is clarified that the order dated 25.11.2005 will not apply to persons engaged to sweep market places, streets etc., and that as per Circular No.19/2016/Fin. dated 05.03.2016, no proposal for regularisation of OP(KAT)No.382/2020 5 part time sweepers can be entertained. By order dated 16.01.2020, the Tribunal relying on the decision dated 19.12.2016 of this Court in W.P. (C)No.16151 of 2010 held that the 1[st] respondent was entitled to regularisation and directed the 3[rd] respondent in the original application to forward a proposal for creation of a post of Part time sweeper in the Grama panchayat and for regularisation of the 1[st] respondent in the said post. Aggrieved by the order of the Tribunal, the petitioners have filed this original petition. 5. Heard Sri B.Vinod, Senior Government Pleader on behalf of the petitioner. Even though notice was ordered in the original petition, no steps have been taken by the petitioners to serve notice. In the light of the judgment we propose to pass, we need not wait for completion of service on the respondents. The Senior Government Pleader reiterated the contentions raised by the petitioners before the Tribunal. 6. 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 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 OP(KAT)No.382/2020 6 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. The above judgment has been relied on by the Tribunal in the impugned order. A similar view has been taken by another Single Judge in the decisions dated 05.02.2020 in W.P. (C)No.3866 of 2011 and dated 11.02.2020 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 regularise the service of the 1[st] respondent. 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 16.01.2020 of the Tribunal in O.A.No.1559 of 2018. The order of the Tribunal stands modified to that extent. The original petition is dismissed subject to the above OP(KAT)No.382/2020 7 modification. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn OP(KAT)No.382/2020 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: TRUE COPY OF OA No.1559/2018 ALONG WITH ANNEXURES.** - **ANNEXURE A1: TRUE COPY OF REPORT DT.13.1.2016 ISSUED BY THE ASSISTANT ENGINEER OF SECOND RESPONDENT PANCHAYAT.** - **ANNEXURE A2: TRUE COPY OF LETTER DT.26.11.2015 ISSUED BY THE 2ND PETITIONER TO THE 2ND RESPONDENT.** - **ANNEXURE A3: TRUE COPY OF LETTER DT.2.11.2016 ISSUED BY THE 2ND PETITIONER TO THE HON'BLE MINISTER OF LOCAL SELF GOVERNMENT.** - **ANNEXURE A4: TRUE COPY OF REPRESENTATION DT.5.8.2017 SUBMITTED BY THE APPLICANT TO THE HON'BLE CHIEF MINISTER.** - **ANNEXURE A5: TRUE COPY OF REPRESENTATION DT.18.7.2018 SUBMITTED TO THE 2ND PETITIONER.** - **ANNEXURE A6 TRUE COPY OF JUDGMENT DT.5.8.2004 IN OP No.25785/2002 OF THE HON'BLE HIGH COURT OF KERALA.** - **ANNEXURE A7: TRUE COPY OF ORDER DT.29.6.2017 IN OA 1535/2016 OF THIS TRIBUNAL.** - **ANNEXURE A8: TRUE COPY OF DECISION OF THE HIGH COURT OF KERALA REPORTED IN 2001 (1) KLT SN 53.** - **EXHIBIT P2: TRUE COPY OF REPLY STATEMENT FILED BY THE 2ND PETITIONER DT.13.11.2008.** - **EXHIBIT P3: TRUE COPY OF REJOINDER FILED BY THE FIRST RESPONDENT TO THE REPLY STATEMENT FILED BY THE 2ND PETITIONER DT.14.11.2018.** - **EXHIBIT P4: TRUE COPY OF REPLY STATEMENT FILED BY THE 2ND RESPONDENT DT.26.8.2019 ALONG WITH EXHIBITS.** **ANNEXURE R3(A): TRUE COPY OF ROAD SWEEPING AREA OF THE 1ST RESPONDENT MEASURED BY THE OVERSEER, LOCAL SELF GOVT.DEPARTMENT, NANNIYODE GRAMA PANCHAYAT.** OP(KAT)No.382/2020 9 **ANNEXURE R3(B): TRUE COPY OF ORDER No.GO(P)No.61/2010/FIN. DT.9.2.2010. EXHIBIT P5: TRUE COPY OF REJOINDER FILED BY THE 1ST RESPONDENT TO REPLY STATEMENT FILED BY THE 2ND RESPONDENT ALONG WITH ANNEXURE. ANNEXURE A9: TRUE COPY OF EXTRACTS FROM GOP No.3000/98/FIN. DT.25.11.1998. EXHIBIT P6: TRUE COPY OF IMPUGNED ORDER PASSED BY THE TRIBUNAL ON 16.1.2020 IN OA No.1559/2018.**