OP(KAT) No.470/2017

OP(KAT)No.470/2017 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.470 OF 2017** **AGAINST THE ORDER IN TA 2285/2012 DATED 13-01-2017 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN TA:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, KERALA** - **2 THE STATE OF KEERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CULTURAL AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, KERALA** - **3 THE DIRECTOR DIRECTORATE OF MUSEUMS & ZOOS, THIRUVANANTHAPURAM, KERALA** ## **BY SR. GOVERNMENT PLEADER SRI B. VINOD** ## **RESPONDENTS/APPELLANTS IN TA:** - **1 MINI KUMARI, SWEEPER (DAILY WAGES) DIRECTORATE OF MUSEUMS & ZOOS THIRUVANANTHAPURAM, RESIDING AT VANIYATHU, KOCHUKIZHEKKETHIL VEEDU,CHENKALLOOR, POOJAPPURA, THIRUVANANTHAPURAM, KERALA** OP(KAT)No.470/2017 2 **2 C. GIRIJAKUMARI SWEEPEER(DAILY WAGES) DIRECTORATE OF MUSEUMS & ZOOS, THIRUVANANTHAPURAM, RESIDING AT HARIBHAVAN, SANKAR NAGAR ROAD,PUTHUVITTU MELE, PERUKAVU P.O, THIRUVANANTHAPURAM, KERALA** - **3 SUDHA S** **SWEEPER(DAILY WAGES) DIRECTORATE OF MUSEUMS & ZOOS, THIRUVANANTHAPURAM, RESIDING AT SURAJ BHAVAN, MEL PAYYANADU, ADAYAMON P.O THIRUVANANTHAPURAM, KERALA** - **4 HASIL J** - **SWEEPER(DAILY WAGES)DIRECTORATE OF MUSEUMS & ZOOS, THIRUVANANTHAPURAM, RESIDING AT T.C 11/1923, PLANTHOPPU LANE, CHARACHIRA ROAD, THIRUVANANTHAPURAM, KERALA** - **5 SOBHANA** **SWEEPER,(DAILY WAGES)DIRECTORATE OF MUSEUMS & ZOOS, MOONAMOODU, KODUNGANOOR P.O, THIRUVANANTHAPURAM,KERALA** **R3-5 BY ADV. SRI.M.SASINDRAN** **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.470/2017 3 ## **ALEXANDER THOMAS & T.R. RAVI, JJ. ------------------------------------------------** ## **O.P.(KAT) No.470 of 2017** [ _Arising out of order dated 13.01.2017 in T.A.No. 2285 of 2012 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 13.01.2017 in T.A.No.2285 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 were the applicants. 2. The issue relates to entitlement of the respondents to be regularised in service as a Part Time Sweepers. 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 and others v. M.M.Mercy and others** OP(KAT)No.470/2017 4 **(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. 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.470/2017 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 were working as sweepers on daily wages under the 3[rd] petitioner from the years 2001 to 2003 onwards. They were continuing as sweepers on 23.08.2005 on which date the certificates Exts.P1 to P5 were issued evidencing the fact that the respondents were in service. As per GO(P) No.501/2005/Fin dated 25.11.2005, existing casual sweepers are to be regularised if the sweeping area is more than 100 M². According to the respondents, they are engaged to sweep the office of the 3[rd] petitioner, the museum and its premises, the Zoo and its pavements, Botanical Garden, etc. and each of them were sweeping more than 800 M² for the past more than 9 years on daily wage basis and are being paid only Rs.180/- per day. The respondents had been issued with Identity Cards by the 3[rd] petitioner as can be seen from Ext.P6. The requests made by the respondents for regularisation was not acceded to by petitioners. By Ext.P8, the request made by the 3[rd] respondent was rejected stating that the post of sweeper can be filled up only by promotion of part time OP(KAT)No.470/2017 6 employees and in their absence through the Employment Exchange and that the request of the respondents cannot be granted. The order was issued on 09.02.2010, on the very same day when the Government order G.O.(P)No.61/ 2010/Fin. was issued. The respondents thereafter submitted a mass representation before the Government, pointing out that even daily wagers are to be regularised as part-time sweepers on the basis of the Government orders dated 25.11.2005 and 09.02.2010. The respondents thereafter filed W.P.(C)No.16514 of 2010 before this Court. An interim order was issued by this Court on 08.03.2011 directing that the respondents shall not be replaced by temporary hands. The respondents filed W.A.No.1542 of 2011 apprehending that the interim order in the writ petition may be misconstrued as permitting replacement of the respondents by Employment Exchange hands. By Annexure A6 judgment, W.A.No.1542 of 2011 was disposed of holding that the respondents shall not be replaced by Employment Exchange hands also. The writ petition was thereafter transferred to the Tribunal and renumbered as T.A.No.2285 of 2012. The petitioners filed counter affidavit contending that the engagement of the respondents was not continuous, that it is not correct to say that the respondents were sweeping more than 800 M² each, that as per the OP(KAT)No.470/2017 7 order dated 09.02.2010 persons engaged to sweep public gardens, streets, market place, etc., are not entitled to be regularised and that the Government has rejected the proposal submitted by the 3[rd] petitioner for regularisation of persons like the respondents. The Tribunal by order dated 13.01.2017 has allowed the application and directed the 2[nd] petitioner to pass orders regularising the respondents in service as sweepers in accordance with the Government order dated 25.11.2005 and in accordance with the directions issued on 20.10.2011, by this Court in W.A.No.1542 of 2011. 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 M.Sasindran learned counsel appearing on behalf of respondents 3 to 5. The Senior Government Pleader reiterated the contention that persons engaged to sweep market places, streets, public gardens, etc. are outside the purview of the Government order dated 25.11.2005. We are not in any manner impressed by the contentions advanced by the petitioners. 6. A learned 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 OP(KAT)No.470/2017 8 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 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 learned Single Judge in the decisions dated 05.02.2020 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 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 13.01.2017 of the OP(KAT)No.470/2017 9 Tribunal in T.A.No.2285 of 2012. 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.470/2017 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1: TRUE COPY OF WPC No.16514/2010 WITH PETITION FOR DIRECTION.** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE DATED 23-08-2005 ISSUED BY THE 3RD RESPONDENT TO 1ST PETITIONER** **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 23-08-2005 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE DATED 23-08-2005 ISSUED BY THE 3RD RESPONDENT TO THE 3RD PETITIONER EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 23-08-2005 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT** **EXHIBIT P5 TRUE COPY OF THE CERTIFICATE DATED 23-08-2005 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 4TH PETITIONER** - **EXHIBIT P7 TRUE COPY OF THE GO(P) NO 501/05/FIN DATED 25-112005** - **EXHIBIT P8 TRUE COPY OF THE PROCEEDIONGS NO.MZ(B) 317/2010 DATED 9-2-2010 OF 3RD RESPONDENT** - **EXHIBIT P9 TRUE COPY OF GO(P) NO 61/2010/FIN DATED 9-2-2010 OF 1ST RESPONDENT** **EXHIBIT P10 TRUE COPY OF MASS REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER AND OTHERS BEFORE THE 2ND RESPONDENT** **EXHIBIT P11 TRUE COPY OF THE MEMO DATED 1-2-2011 ISSUED BY THE 3RD RESPONDENT (PETITION FOR DIRECTION)** OP(KAT)No.470/2017 11 |**ANNEXURE A2**|**TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY**| |---|---| ||**RESPONDENTS 1 TO 3.**| |**EXHIBIT R1(A)**|**TRUE COPY OF LETTER NO.2985/B2/10/CAD DATED**| ||**18/09/2010.**| |**EXHIBIT R1(B)**|**TRUE COPY OF LETTER NO.1520/B2/11/CAD DATED**| ||**23/07/2011.**| |**ANNEXURE A3**|**TRUE COPY OF THE INTERIM ORDER DATED 16/11/2016.**| |**ANNEXURE A4**|**TRUE COPY OF THE FINAL ORDER DATED 13/01/2017 IN**| ||**T.A.2285/2012.**| |**ANNEXURE A5**|**TRUE COPY OF THE INTERIM ORDER DATED 08/03/2011**| ||**IN IA NO.3781/2011 IN WPC NO.16514/2010.**| |**ANNEXURE A6**|**TRUE COPY OF THE JUDGMENT IN WA NO.1542/2011.**|