OP(KAT) No.429/2022

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ``` & ``` ## **`THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN`** ``` WEDNESDAY, THE 2[ND] DAY OF AUGUST 2023 / 11TH SRAVANA, 1945 ``` ## **`OP(KAT) NO. 429 OF 2022`** ## **`AGAINST THE ORDER/JUDGMENTOA (EKM) 181/2020 OF KERALA ADMINISTRATIVE`** ## **`TRIBUNAL, THIRUVANANTHAPURAM`** ## **`PETITIONERS:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, AYUSH DEPARTMENT , GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001., PIN - 695001 2THE DIRECTOR, DIRECTORATE OF HOMOEOPATHY, EAST FORT, THIRUVANANTHAPURAM, KERALA - 695 023, PIN - 695023 3THE DISTRICT MEDICAL OFFICER (HOMOEO). CIVIL STATION, B.BLOCK, 3RD FLOOR, KOZHIKODE- 673020, PIN - 673020 4GOVERNMENT HOMOEOPATHY DISPENSARY KAKKODI GRAMA PANCHAYATH, KAKKODI, KOZHIKODE -673 611, REPRESENTED BY ITS SUPERINTENDENT, KERALA., PIN - 673611 BY ADV GOVERNMENT PLEADER ``` ## **`RESPONDENT:`** ``` SARA K.V., AGED 56 YEARS, W/O HANEEFA P.K, WORKING AS CASUAL SWEEPER, GOVERNMENT HOMOEOPATHY DISPENSARY, KAKKODI GRAMAPANJAYATH, KOZHIKODE- 673611 RESIDING AT K.V. HOUSE, SHARIYEKKAL THAZHAM KUDATHUMPOYIL, KAKKODI P.O, KIZHAKKUMURI, KOZHIKKODE, KERALA 673611 MOB NO.8086809227., PIN - 673611 BY ADVS. C.A.MAJEED MOLTY MAJEED K.H.ASIF(K/478/2007) P.B.UNNIKRISHNAN NAIR(K/445/2012) RUBEN GEORGE ROCK(K/636/2014) ``` ``` SRI. SAIGI JACOB PALATTY-SR. GP ``` ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 02.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## ALEXANDER THOMAS & C. JAYACHANDRAN, JJ. ================== ## OP(KAT) No.429/2022 (Arising out of the order dated 02.06.2022 in OA(Ekm) No.181/2020 of the KAT, Tvm) ================== Dated this the 2[nd] day of August, 2023 ## J U D G M E N T ## ALEXANDER THOMAS, J This Original Petition is directed against the impugned Ext.P4 final verdict rendered by the Kerala Administrative Tribunal on 02.06.2022. The petitioners herein are the respondents in the OA. The sole respondent herein is the sole applicant in the OA. 2. Heard Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the petitioners and Smt. Molty Majeed, learned counsel appearing for the sole respondent herein/sole applicant in the OA. 3. The prayers in the instant Ext.P1 Original Application, OA(Ekm) No.181/2020, filed by the respondent herein, before the Kerala Administrative Tribunal, Ernakulam Bench, are as follows: “(i) Call for the records leading to Annexures A1 to A11 andto set aside Annexure A5 and Annexure A10 as illega, arbitrary and unjust. (ii) Direct the 1[st] respondent to create a post of part time sweeper at the 4[th] respondent dispensary and regularize the Applicant against the post so created; (iii) Declare that the non-consideration of Annexure A6 in the light of Annexures A2 and A4 Government orders is illegal and arbitrary; (iv) Declare that the non-regularization of the applicant as Part time sweeper at the 4[th] respondent dispensary is illegal, unjust and arbitrary. (v) Pass such other order or direction which this Hon’ble OP(KAT) No.429/2022 - : 2 :- Tribunal may deem fit and proper to grant in the circumstances of the case. (vi) Award the cost of the Original Application to the applicant.” 4. The Tribunal, after hearing both sides, has rendered the impugned Ext.P4 final order on 02.06.2022, whereby the main pleas of the applicant in OA(Ekm) No.181/2020 has been substantially allowed by directing that the applicant will be entitled for regularization in the post of part-time sweeper, with effect from March 2010, from which day onwards, she was found to be in continuous service and that all consequential benefits should also be paid to her in that regard. Being aggrieved by the said verdict, the respondents in the OA has preferred the said Original Petition, instituted under Articles 226 &227 of the Constitution of India. 5. We have heard both sides and have considered the pleadings and materials on record. 6. A brief reference to the core facts of the case would be pertinent. The applicant was engaged as a casual sweeper in the office premises of the 4[th] respondent Government Homeo Dispensary, Kakkodi, Kozhikode District, from 08.08.2005 onwards. It is the specific case, which has also been admitted by the respondents in the OA in the reply statement, that even before she was taken into service OP(KAT) No.429/2022 - : 3 :- as a casual sweeper, the Government had sanctioned regular post of part-time sweeper in the above office. It is the further specific case that the sweeping area of the office premises then was 106.02 sq.m. as can be seen from Annexure A1 certificate dated 21.05.1994. It was much later, on 24.11.2018, that the dispensary was shifted to a new building and even thereafter, the sweeping area, as evident from Annexure A9 certificate, would show that it was 179.27 sq.m. According to the applicant, she has filed various representations in the matter, seeking the benefit of regularization, more particularly after coming into force of Annexure A2 GO(P) NO.501/2005/Fin. dated 25.11.2005, whereby a scheme has been framed by the Government, for regularization of casual sweepers in the post of part-time sweeper, on the basis of the directions issued by this Court in the judgment, Mercy vs. State of Kerala [(2004) 2 KLT 848], confirmed by the judgment dated 12.08.2005 in WA No.1863/2004 and connected cases, which was subsequently affirmed by the Division Bench of this Court. Annexure A4 dated 07.10.2017, Annexure A6 dated 16.03.2018 and Annexure A7 dated 27.11.2018 are some of the representations in that regard. The claim of the applicant for regularization has been rejected by the Director concerned, as per Annexure A5 order dated 08.02.2018, on OP(KAT) No.429/2022 - : 4 :- the ground that the total sweeping area in the office premises was less than the minimum threshold level of 100 sq.m., as required in Annexure A2 GO. Later, the Government has also rejected her claim for regularization, as per Annexure A10 dated 18.11.2019, on the ground that the sweeping area, as on the cut off date of 25.11.2005 (date of issuance of Annexure A2 GO) was less than 100 sq.m and further that, the applicant and her sister were both working as casual sweepers in the same office premises for the years from 2005 to 2010. 7. The Tribunal, after hearing both sides, has ordered for the regularization of the applicant from March 2010, mainly on the ground that Annexure A1 certificate dated 21.05.1994 would show that the sweeping area, then was 106.02 sq.m. and even if there are disputes in that regard and also issues regarding engagement of more than one casual sweepers, it is indisputable that the applicant has been working continuously as the sole casual sweeper in the said office from the year 2010 onwards and moreover, the regular post of part-time sweeper was sanctioned by the Government in the abovesaid office premises, much prior to the engagement of the applicant on 08.08.2005 and much before the issuance of Annexure A2 GO dated 25.11.2005. Hence, the Tribunal has ordered that the Original Applicant be OP(KAT) No.429/2022 - : 5 :- regularized to the already sanctioned regular post of part-time sweeper in the above office, with effect from March 2010 and to pay her all consequential benefits. It is this verdict of the Tribunal, at Ext.P4, that is under challenge in the present OP. 8. The main contentions urged by Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the petitioners, is to the effect that the abovesaid office in question had functioned in the old building premises till 23.04.2018 and it had shifted to the new building only on 24.11.2018. That, Ext.R3(a) dated 18.03.2015 is the sweeping area certificate issued by the competent Public Works Department Engineers, strictly in terms of Annexure A2 GO and it has been found therein that the sweeping area of the old premises is only 80.67 sq.m. We specifically queried as to whether there is any effective denial of the specific averments in the OA regarding Annexure A1 certificate dated 21.05.1994, that the sweeping area then was 106.02 sq.m., which is above the minimum threshold level of 100 sq.m. The learned Senior Government Pleader would point out that the overall tone and tenor of the pleadings in Ext.P2 reply statement, filed by the petitioners herein before the Tribunal, is to the effect that Ext.R3(a) certificate was issued on 18.03.2015 by the PWD Engineers concerned, OP(KAT) No.429/2022 - : 6 :- strictly in terms of the norms for measurement contained in Annexure A2 GO and that, since the applicant has been engaged all through out in the old premises, prior to the shifting, there cannot be any dispute regarding Annexure.R3(a). Further that, the measurement, on the basis of Annexure A1 dated 21.05.1994, was done without applying the norms, which are only subsequently framed, as per Annexure A2 GO dated 25.11.2005 and the entire courtyard would have been taken into account for showing that the total sweeping area is 106.02 sq.m. Whereas, as per the norms in Annexure A2, the entire courtyard area cannot be reckoned for the purpose of measuring the sweeping area rd and the courtyard area shall not exceed[1] /3 of the sweeping area in the building. Further that, the applicant has also admitted, in Annexure A6 representation dated 16.03.2018, regarding the correctness of Annexure.R3(a) and at any rate, she has not made any denial of the correctness of Annexure.R3(a). Further that, it was pleaded in the reply statement of the petitioners herein before the Tribunal that Annexure.R3(a) certificate dated 18.03.2015 was measured in accordance with the norms as per Annexure A2 and that too, in the presence of the Original Applicant herein, as required in Annexure A2 norms. Hence, it is contended that the view taken by the Tribunal OP(KAT) No.429/2022 - : 7 :- ## would require interdiction. 9. Per contra, Smt.Molty Majeed, learned Counsel appearing for the Original Applicant/respondent herein, would submit that it is an indisputable fact that a regular post of part-time sweeper in the above office was sanctioned by the Government long before the respondent commenced her casual service and much before the issuance of Annexure A2 GO. It is indisputable that the respondent was engaged as a casual sweeper continuously from 08.08.2005 onwards and even if there are any issues in that regard, it is indisputable, even to the petitioners, that the respondent has been engaged as a sole Casual Sweeper in the post at the said office from March 2010 onwards and that therefore, the verdict of the Tribunal does not require any interdiction. 10. We have heard both sides and considered the rival pleas. In case the Original Applicant claim for regularisation in terms of Annexure-A2 G.O. is to accepted, then two vital parameters will be satisfied. Firstly, that the incumbent should have commenced casual service in the office concerned as on 25.11.2005 (date of issuance of Annexure-A2 G.O.) and secondly, the sweeping area of the office premises should not be less than 100 sq.m. As regards the first OP(KAT) No.429/2022 - : 8 :- contention, the pleadings would generally show that the applicant has casual service, as a Sweeper from 08.08.2005. But the petitioners have clearly averred in the reply statement that for the period from 2005 up to March, 2010, applicant and her sister were both engaged as Casual Sweepers in the very same sweeping area in the above said offices and that she became the sole Casual Sweeper only from March, 2010 onwards. Secondly, it is true that Annexure-A1 certificate dated 21.05.1994 would show that the sweeping area was 106.02 sq.m. There is force in the contention of the petitioners that the said sweeping area certificate may have been issued not on the basis of the subsequent norms framed by the Government as per Annexure-A2 G.O dated 25.11.2005. The claim for regularization can succeed in terms of Annexure-A2 G.O. only if the second condition is also satisfied, that is the sweeping area should not be less that 100 sq.m. as on 25.11.2005. Annexure-R3(a) dated 18.03.2015, which is the sweeping area said to be issued in accordance with the norms in Annexure-A2, would show that the sweeping area in the old premises, was only 80.67 sq.m., which is less than the minimum threshold level of 100 sq.m. The office premises had shifted from the old building to the new building only on 24.11.2018. Thereafter, sweeping area measurement was done. OP(KAT) No.429/2022 - : 9 :- Annexure-A9 would show that the sweeping area in the new premises is 179.27 sq.m., which is above the minimum threshold level. The applicant has been almost continuously working as a Part-Time Casual Sweeper for the period from 08.08.2005 up to March, 2010. We have used the expression Part-Time Sweeper only because there is no serious dispute that both the applicant and her sister were engaged Casual Sweepers for the above said period, in respect of the very same old office premises. Therefore, at least from March, 2010 she has continuous service as Casual Sweeper in the above said office. The sweeping area has crossed the minimum threshold level of 100 sq.m. only after shifting to the new building on 24.11.2018. But the core aspect of the matter is that the regular post of Part-Time Sweeper was already sanctioned by the Government in the above said office, long prior to the engagement of the applicant as a Casual Sweeper in August, 2005 and much before the issuance of Annexure-A2 G.O. dated 25.11.2005. 10. In the light of these aspects, we are not inclined to interdict with the substantial reliefs granted by the Tribunal, as per the verdict. However, the said verdict requires some modification. Accordingly, we will take the view that the applicant’s case for regularisation should be OP(KAT) No.429/2022 **==> picture [33 x 8] intentionally omitted <==** ordered from 24.11.2018 (date of shifting to the new office building), against the already sanctioned regular post of Part-Time Sweeper and all consequent benefits in that regard should be paid to her without much delay, preferably within a period of two months from the date of receipt of a copy of the judgment. The impugned directions and orders of the Tribunal will stand modified to the extent as above. With the above observations and directions, the above O.P.(KAT) will stand disposed of. sd/- ALEXANDER THOMAS, JUDGE sd/- C. JAYACHANDRAN, Nsd/ww JUDGE ## **`APPENDIX OF OP(KAT) 429/2022`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure A1`|`TRUE COPY OF THE CERTIFICATE DATED 21.05.1994.`| |`Annexure A2`|`TRUE COPY OF THE GO. (P).NO.501/2005/FIN DATED`| ||`25.11.2005.`| |`Annexure A3`|`TRUE COPY OF THE G.O.(P) NO.61/2010/FIN DATED`| ||`09.02.2010.`| |`Annexure A4`|`TRUE COPY OF THE REPRESENTATION DATED 07.10.2017`| ||`SUBMITTED TO THE 2ND REPRESENTATION.`| |`Annexure A5`|`A TRUE COPY OF THE LETTER DATED 08.02.2018 OF THE`| ||`2ND RESPONDENT.`| |`Annexure A6`|`A TRUE COPY OF THE REPRESENTATION DATED`| ||`16.03.2018 SUBMITTED TO THE 2ND RESPONDENT.`| |`Annexure A7`|`A TRUE COPY OF THE REPRESENTATION DATED`| ||`27.11.2018 SUBMITTED TO THE 1ST RESPONDENT.`| |`Annexure A8`|`A TRUE COPY OF FINAL ORDER DATED 12.07.2019 IN OA`| ||`(EKM) 2377/2018.`| |`Annexure A9`|`A TRUE COPY OF CERTIFICATE ISSUED BY THE`| ||`ASSISTANT ENGINEER, PWD, KOZHIKODE.`| |`Annexure A10`|`A TRUE COPY OF THE G.O.(RT) NO.593/2019/AYUSH`| ||`DATED 18.11.2019.`| |`Annexure A11`|`A TRUE COPY OF THE LETTER DATED NIL SUBMITTED TO`| ||`THE 4TH RESPONDENT BY K.V.SALEENA.`| |`Annexure R3(a)`|`A TRUE COPY OF SWEEPING AREA CERTIFICATE ISSUED`| ||`BY ASSISTANT ENGINEER,PWD BUILDING`| ||`SECTION,KOZHIKODE DATED 18/03/2015`| |`Annexure R3(b)`|`A TRUE COPY OF LETTER NO.BSI/SWA 18-19 DATED`| ||`22.02.2019`| |`Annexure R3(c)`|`A TRUE COPY OF GO(RT)NO.593/2019/AYUSH DATED`| ||`18.11.2019`| |`Exhibit P1`|`TRUE COPY OF THE O.A.NO.181/2020 ALONG WITH`| ||`ANNEXURES.`| |`Exhibit P2`|`TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD`| ||`PETITIONER HEREIN/3RD RESPONDENT`| |`Exhibit P3`|`TRUE COPY OF THE REJOINDER FILED BY THE`| ||`RESPONDENT HEREIN/APPLICANT TO THE REPLY`| ||`STATEMENT FILED BY THE 3RD RESPONDENT IN OA`| |`Exhibit P4`|`TRUE COPY OF THE ORDER DATED 02.06.2022 PASSED BY`| ||`THE KERALA ADMINISTRATIVE BENCH, ADDITIONAL`| ||`BENCH, ERNAKULAM IN OA(EKM) 181/2020`|